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In re Compensation of Pena

Court of Appeals of Oregon

November 7, 2018

In the Matter of the Compensation of Jesus Pena, Claimant.
v.
TRAVELERS INSURANCE COMPANY and Progressive Logistics Services, Respondents. Jesus PENA, Petitioner,

          Argued and submitted September 17, 2018

          Workers' Compensation Board 1601027

          Julene M. Quinn argued the cause and fled the briefs for petitioner.

          Jonathan A. Rose argued the cause for respondents. Also on the brief was MacColl Busch Sato, PC.

          Before Lagesen, Presiding Judge, and James, Judge, and Sercombe, Senior Judge.

         Case Summary:

Claimant was injured at work and his employer's insurer, Travelers Insurance Company (Travelers), accepted a claim for cervical, thoracic, and lumbar strains/sprains. On reconsideration of that closure, a panel of medical arbiters evaluated claimant and found decreased ranges of motion, but the panel also reviewed a DVD of surveillance video of claimant that had been taken before claim closure. In its report, the arbiter panel determined that the surveillance video demonstrated greater ranges of motion than was seen in their examination, and that the panel's own examination of motion was "not valid for the purpose of measuring permanent impairment." Based on the medical arbiters' report, the Appellate Review Unit (ARU) of the Workers' Compensation Division reduced claimant's permanent partial disability award to zero. After an administrative law judge affirmed the decision, claimant appealed to the Workers' Compensation Board, arguing that the DVD had been provided to the arbiter panel in violation of one of the agency's rules, OAR 436-036-0155(4)(a), and that the medical arbiters' report therefore should have been excluded from the ARU's consideration. The board agreed that the DVD had been provided in violation of the agency's rule but disagreed that exclusion from consideration was the correct remedy for noncompliance. On judicial review of the board's final order, claimant again [294 Or.App. 741] argues that the appropriate remedy for the violation of OAR 436-030-0155(4)(a) was exclusion of the report from the ARU's consideration.
Held: Nothing in the text, context, or history of OAR 436-030-0155(4) suggests that its restriction on arbiter review of surveillance video is hortatory. The only plausible interpretation of the rule is that it precludes the agency from relying upon findings in a medical arbiters' report that are based on consideration of surveillance video that never should have been part of the arbiter review.

         Reversed and remanded.

         [294 Or.App. 742] LAGESEN, P. J.

         This workers' compensation case requires us to determine the correct remedy when the Workers' Compensation Division provides surveillance video of a claimant to a panel of medical arbiters in violation of one of the agency's own rules, OAR 436-030-0155(4)(a). We agree with claimant that OAR 436-030-0155(4)(a) precludes the agency from relying upon findings in a medical arbiter panel's report that are based on the arbiters' improper consideration of surveillance video, and we reverse and remand for further proceedings under a correct interpretation of that rule.

         Claimant was injured at work in April 2013, and his employer's insurer, Travelers Insurance Company (Travelers), accepted a claim for cervical, thoracic, and lumbar strains/sprains. Travelers issued a notice of closure in November 2015 that awarded claimant permanent partial disability for impairment of the thoracic and lumbar spine. Both claimant and Travelers then sought reconsideration by the Appellate Review Unit (ARU) of the Workers' Compensation Division. As part of the reconsideration process, a panel of medical arbiters evaluated claimant and found decreased spinal ranges of motion, but the panel also reviewed a DVD of surveillance video of claimant that had been taken before claim closure. In its report, the arbiter panel determined that the surveillance video on the DVD "demonstrate[d] greater cervical, thoracic, and lumbar motion than what was seen" in the examination of claimant, such that the panel's own examination of motion was "not valid for the purpose of measuring permanent impairment."

         Based on the medical arbiters' report, the ARU reduced claimant's permanent partial disability award to zero. Claimant appealed that decision, and a hearing was scheduled before an administrative law judge (AL J). Before the ALJ, claimant argued that the underlying medical arbiters' report was flawed and should have been excluded from consideration by the ARU, because the arbiters had improperly considered surveillance video on the DVD as part of their review. Specifically, claimant argued that some of that video had not been reviewed by claimant's treating physician prior to claim closure, in violation of OAR 436-030-0155 [294 Or.App. 743] (4)(a). That rule, which concerns the record on reconsideration, provides:

"(4) When any surveillance video obtained prior to closure has been submitted to a physician involved in the evaluation or treatment of the worker, it must be provided for arbiter review.
"(a) Surveillance video provided for arbiter review must have been reviewed prior to claim closure by a physician involved in the evaluation or ...

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