55 Trial Lawyer • Fall 2022 Comp Corner reques t ed a pena l ty under ORS 656.262(11)(a). The Board issued an en banc decision, with two members, concurring, because, while they disagreed thatORS 656.262(6) (b)(F) placed any affirmative duty on an insurer, they agreed with the Board’s decision not to award a penalty. The Board reasoned the modification of the notice of acceptance is triggered under the statute by medical and other information that changes an acceptance. It is not triggered by a claim, and so a claim does not need to be made for the insurer to have an affirmative duty. ORS 656.262(6)(b)(F) “prescribes specific processing requirements for carriers when there is no ‘claim.’” The statute “places an independent obligation on a carrier to review the scope of its acceptance from time to time when it receives new information.” The Board, however, determined not to award a penalty, because the Board had not squarely addressed whether the statute imposed a duty without a claim. From time to time The concurring members interpreted various statutes to require the injured worker to make a claim before the insurer had any affirmative duty. They argued the statute provides no guidance on what “from time to time” means. It relied on a previous decision that addressed the initial claim context, Ernest R. Lyons, 69 Van Natta 688, 694 (2017). It is worth discussing the reasons why the concurrence is incorrect. ORS 656.267 — the new/omitted medical condition statute — is permissive, allowing a worker to make a claim, when an insurer’s notice of acceptance is incorrect. While an injured worker must follow the process under ORS 656.267 to ask for a By Julene Quinn OTLA Guardian The Board has issued an important d e c i s i o n r e g a r d i n g ORS 656.262(6)(b)(F), which provides: “The notice of acceptance shal l : *** Be modified by the insurer or self-insured employer from time to time as medical or other informat ion changes a previously issued notice of acceptance.” Luis F. Nava, 74 Van Natta 372 (2022)(en banc) (Chris Frost, attorney). In Nava, the claimant slipped and fell on metal stairs sustaining injuries to multiple body parts. The insurer accepted a left knee sprain and chest wall contusion. Nava underwent knee surgery for a meniscus tear. The claim was closed without any amendment to the acceptance and without any impairment for the knee, despite the surgery. The claimant was unrepresented. He later had continued problems and filed an aggravation claim. The IME opined the meniscus tear was compensable, but the attending indicated there was no objective worsening of the accepted knee condition. SAIF denied the aggravation claim but did not modify its notice of acceptance to include the meniscus tear. When the claimant obtained an attorney and made a claim for the condition, the claim was quickly accepted without any further investigation. When the claimwas closed again, permanent impairment was awarded (finally) for the knee. The claimant Insurer’s Responsibility Issues & Topics for theWorkers’ Compensation Attorney Julene Quinn new/omitted medical condition to be added, the statute is fully permissive, stating “the worker may…” In contrast, ORS 656.262(6)(b)(F) is fully mandatory, using the word “shall.” Additionally, ORS 656.262(1) places the full onus of processing on the insurer. “From time to time” is not a new or unique phrase. It is used in other sections of the chapter, including the Board’s own motion authority under ORS 656.278 and the director authority to require security from a self insured employer, ORS 656.407. Determining a reasonable time that an insurer must modify its notice of acceptance is not difficult. Injured workers are required to act within seven days to change physicians when enrolled in an MCO or face unilateral suspension of benefits. Certainly, an informed and knowledgeable insurer can amend a notice of acceptance quicker than that. There are various pivotal claims processing moments when the scope of acceptance matters, such as paying medical bills or determining impairment at closure. The decision is well-supported by interpretation and policy. It is long overdue that insurers take responsibility for the entire compensable injury. Accepting the most minor condition and daring the injured worker to ask for more is simply wrong. Julene Quinn is an appellate attorney who focuses on workers’ compensation. She contributes to OTLA Guardians at the Sustaining Member level. Her firm is Julene M. Quinn LLC, Box 820087, Portland, OR 97282. She can be reached at 503-983-3205 or julene.m.quinn@ gmail.com.
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