Alvarez v. SAIF

632 December 17, 2025 No. 1077

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

In the Matter of the Compensation of Juan Alvarez,

Claimant.

Juan ALVAREZ,

Petitioner,

v.

SAIF CORPORATION

and D & R Masonry Restoration,

Respondents.

Workers’ Compensation Board

2200117;

A184005

Argued and submitted November 19, 2025.

Jodie Anne Phillips Polich argued the cause for peti-

tioner. Also on the briefs was Law Offices of Jodie Anne

Phillips Polich, P.C.

Beth Cupani argued the cause and filed the briefs for

respondents.

Before Tookey, Presiding Judge, Kamins, Judge, and

Jacquot, Judge.

TOOKEY, P. J.

Affirmed.

Cite as 345 Or App 632 (2025) 633

TOOKEY, P. J.

In this workers’ compensation case, claimant seeks

judicial review of an order of the Workers’ Compensation

Board (the board), arguing that the board erred in deter-

mining that SAIF Corporation (SAIF), employer’s workers’

compensation insurer, had met its burden of proof under

ORS 656.262(6)(a). Claimant argues that SAIF had failed

to adequately establish fraud, misrepresentation, or other

illegal activity when issuing a “back up denial” revoking the

previously issued Notice of Acceptance of claimant’s work-

ers’ compensation claim. SAIF argues that the revocation

was proper, because SAIF’s acceptance of the claim could

reasonably have been affected had claimant disclosed cer-

tain information and that the board’s determination that the

failure to disclose that information was a material misrep-

resentation was supported by substantial evidence and sub-

stantial reason. Reviewing the board’s legal conclusions for

errors of law, ORS 183.482(8)(a); Curry Educational Service

Dist. v. Bengtson, 175 Or App 252, 27 P3d 526 (2001), and its

factual findings for substantial evidence, ORS 183.482(8)(c);

Greenbriar Ag Management v. Lemus, 156 Or App 499, 965

P2d 493 (1998), rev den 328 Or 594 (1999), we affirm.

On August 30, 2021, claimant filed a workers’ com-

pensation claim for injuries allegedly sustained in a fall

at work on August 9, 2021. SAIF accepted that claim on

October 7, 2021. After accepting the claim, SAIF obtained

records indicating that claimant had suffered a serious fall

at his home on the same day as the alleged fall at work

and had sustained his injuries from the fall at home. On

December 21, 2021, SAIF notified claimant that it was deny-

ing his claim pursuant to ORS 656.262(6)(a), because it had

“obtained evidence that [claimant’s] claim was procured by

fraud, misrepresentation, or other illegal activity.”

ORS 656.262(6)(a) allows an “insurer or self-insured

employer [to] revoke acceptance and issue a denial at any

time when the denial is for fraud, misrepresentation or other

illegal activity by the worker.” A denial under that statute

is commonly referred to as a “back up” denial. See Ebbtide

Enterprises v. Tucker, 303 Or 459, 461, n 1, 738 P2d 194 (1987)

(stating that a back-up denial is “a retroactive denial of a

634 Alvarez v. SAIF

previously accepted claim”). The insurer must establish that

the misrepresentation was material by showing that its deci-

sion to accept the claim “could reasonably have been affected”

if the true facts had been disclosed. Id. at 464 (internal quota-

tion marks omitted); Greenbriar Ag Management, 156 Or App

at 505 (“[T]he inquiry reduces to a factual determination:

In the totality of the circumstances of this case, could this

insurer’s acceptance decision ‘reasonably have been affected’

by the undisclosed information? If the board’s resolution of

that factual issue is supported by substantial evidence in the

record, we must affirm.” (Emphases in original.)).

Here, the board concluded that SAIF had met its

burden to prove that claimant had misrepresented the

cause of his injury, and that SAIF’s decision to accept the

claim “could reasonably have been affected” had claimant

disclosed all the circumstances related to his injury. As dis-

cussed below, and in light of the record in this case, we con-

clude that the board’s determination that SAIF’s decision

could have been affected by undisclosed information was

supported by substantial evidence and substantial reason.

In reaching its decision, the board relied on an

ambulance report (stating in part that “[the patient] states

he fell off the roof of his house approximately [two hours]

prior to [the] alert” (capitalization omitted)), an emergency

room report (stating in part that “[the patient] reports he was

up on the roof installing his son’s AC unit when he slipped

and fell off the roof onto the grass” (capitalization omitted)),

and a 9-1-1 call placed by claimant’s wife (stating in part

that “[m]y husband fell off the roof and he walked into the

house” after “putting in an air conditioner”). Relying on that

information, the board determined that claimant’s claim

that he was injured in a workplace accident was a material

misrepresentation. Additionally, the board heard testimony

from the claims adjuster who worked on claimant’s case, who

testified that she made “probably five attempts” to obtain a

legible copy of the ambulance report before receiving it after

the claim had been accepted, and that she did not receive a

transcript or recording of the 9-1-1 call until after the claim

had been accepted. The claims adjuster testified that both

the ambulance report and the 9-1-1 call would have affected

Cite as 345 Or App 632 (2025) 635

her decision to accept the claim. Based on that testimony,

the ambulance report, the emergency room report, and the

9-1-1 call, the board concluded that SAIF met its burden to

prove that claimant had misrepresented the cause of his

injury and that SAIF’s decision to accept the claim could

reasonably have been affected had claimant disclosed the

cause of his injury.

We note that the board’s findings also reflect that while

working as a foreman “[o]n August 9, 2021, * * * [c]laimant

slipped and fell while climbing an access ladder” and also

that “[a]t some point after he went home, [c]laimant * * *

slipped off the roof of his residence.” Claimant argues that

SAIF failed to meet its burden of proof, because his fall at

work was “an actual event,” rather than “a misrepresenta-

tion or lie,” and that the denial of his claim was erroneous,

because it was based on the assertion by SAIF that there

was only one fall, which occurred at claimant’s home.

SAIF maintains that even if claimant did fall at

work, the record contains substantial evidence that claim-

ant misrepresented the true cause of his injuries, which was

the fall at home and, therefore, the “acceptance was pro-

cured by fraud, misrepresentation, or other illegal activity.”

Regarding uncertainty related to the number of falls and

also when the falls occurred, SAIF maintains that the ques-

tion ultimately before the board was whether “[i]n the total-

ity of the circumstances of this case,” SAIF’s acceptance

decision could “reasonably have been affected by the undis-

closed information.” Greenbriar Ag Management, 156 Or App

at 505-06 (emphasis and internal quotation marks omitted)

(concluding that the board did not err in determining that

the insurer did not meet its burden to prove that misrepre-

sentations “could reasonably have affected” its decision to

accept a claim when there was “substantial, indeed uncon-

troverted” evidence that the insurer knew that the claimant

had made misrepresentations).

Claimant argues that SAIF failed to meet its bur-

den of proof, because SAIF knew that there was conflicting

information about the cause of claimant’s injuries before it

issued the acceptance. However, unlike in Greenbriar, the

record supports the board’s finding that SAIF did not have

636 Alvarez v. SAIF

substantial or uncontroverted evidence of claimant’s mis-

representations prior to issuing an acceptance of claimant’s

claim.

Having reviewed the record, we agree with the board

that the evidence, “[i]n the totality of the circumstances of

this case,” supports a determination that SAIF met its bur-

den to prove that claimant misrepresented the true cause of

his injuries by failing to disclose that he had a significant

fall from the roof of his home, and that SAIF’s decision to

accept the claim “could reasonably have been affected” by

that misrepresentation. Greenbriar Ag Management, 156 Or

App at 505 (emphasis omitted); Ebbtide Enterprises, 303 Or

at 464-65. SAIF accepted claimant’s claim based on claim-

ant’s written and verbal statement that he had been injured

during a fall at work. After the acceptance had been issued

and after multiple efforts on the part of the claims adjuster,

SAIF received a legible copy of the ambulance report and a

transcript of a 9-1-1 call that was not available to SAIF at

the time they issued the claim acceptance that showed that

claimant had been injured at home.

In sum, the board’s determination that claimant

made a material misrepresentation and that SAIF’s deci-

sion to accept the claim could reasonably have been affected

had claimant disclosed the information in question was sup-

ported by substantial evidence—including an ambulance

report, emergency room report, a 9-1-1 call placed by claim-

ant’s spouse, and the testimony of the claims adjuster—and

was also supported by substantial reason. Therefore, we

conclude that the board did not err.

Affirmed.