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In re Compensation of Yauger

Court of Appeals of Oregon

December 12, 2018

In the Matter of the Compensation of Basil D. Yauger, Claimant.
v.
Basil D. YAUGER, Respondent. HILTON HOTELS CORP - HILTON WORLDWIDE, Petitioner,

          Workers' Compensation Board 1405824, 1405176

          Argued and submitted September 8, 2017

          Christo J. de Villiers argued the cause for petitioner.

          On the briefs was Scott H. Terrall. Jovanna L. Patrick argued the cause and fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Reversed and remanded.

         Case 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.

         Reversed and remanded.

         [295 Or.App. 331] ARMSTRONG, P. J.

         The 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).

         The 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:

         "Injured 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."

         Employer 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:

         "If 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."

         [295 Or.App. 332] The applicable version of OAR 436-060-0135 (Jan 1, 2010) also authorizes the suspension of benefits when a ...


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