In the Matter of the Compensation of Basil D. Yauger, Claimant.
Basil D. YAUGER, Respondent. HILTON HOTELS CORP - HILTON WORLDWIDE, Petitioner,
Workers' Compensation Board 1405824, 1405176
and submitted September 8, 2017
Christo J. de Villiers argued the cause for petitioner.
briefs was Scott H. Terrall. Jovanna L. Patrick argued the
cause and fled the brief for respondent.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Employer petitions for review of an order of the
Workers' Compensation Board setting aside employer's
denial of claimant's claim based on noncooperation.
Employer contends that the board applied an incorrect legal
standard in determining that, after the issuance of a notice
of temporary suspension, claimant cooperated sufficiently to
avoid a denial of the claim based on non-cooperation.
Held: The proper standard of cooperation in order to
avoid a denial of a claim based on noncooperation under ORS
656.262(15) is "reasonable cooperation." Because
the "any effort" standard applied by the board did
not necessarily comport with "reasonable
cooperation," the Court of Appeals remanded the case so
that the board could determine in the first instance whether
claimant's conduct after the issuance of the suspension
order refected reasonable cooperation.
Or.App. 331] ARMSTRONG, P. J.
question in this workers' compensation case is the level
of cooperation required to avoid a "noncooperation
denial" for a worker whose benefits have been
temporarily suspended for noncooperation. See ORS
656.262(15) (setting forth procedures for suspension and
denial of benefits based on noncooperation). We conclude that
ORS 656.262(15) requires that the worker "reasonably
cooperate" with the employer's investigation. On
employer's petition for judicial review, we conclude that
the board erred in its application of the statute in this
case because the board applied an "any effort" to
cooperate standard. We therefore reverse and remand for
reconsideration. ORS 183.482(7), (8); ORS 656.298(7).
pertinent facts as found by the board are largely undisputed.
Claimant notified employer on August 9, 2014, that he had
sustained an injury during an altercation at work. An injured
worker has a duty to cooperate with an employer's
investigation of the worker's claim for compensation. ORS
656.262(l4)(a) provides, as relevant:
workers have a duty to cooperate and assist the insurer or
self-insured employer in the investigation of claims for
compensation. Injured workers shall submit to and shall fully
cooperate with personal and telephonic interviews and other
formal or informal information gathering techniques."
notified claimant of a deposition scheduled for September 4,
2014. Claimant received the notice but did not attend.
Employer requested that the Workers' Compensation
Division of the Department of Consumer and Business Services
issue an order suspending claimant's benefits pursuant to
ORS 656.262(15), which provides, as relevant:
the director finds that a worker fails to reasonably
cooperate with an investigation involving an initial claim to
establish a compensable injury or an aggravation claim to
reopen the claim for a worsened condition, the director shall
suspend all or part of the payment of compensation after
notice to the worker."
Or.App. 332] The applicable version of OAR 436-060-0135 (Jan
1, 2010) also authorizes the suspension of benefits when a