Teitelman v. SAIF

72 April 17, 2024 No. 238

IN THE COURT OF APPEALS OF

THE STATE OF OREGON

In the Matter of the Compensation of Thomas K. Cardoza,

Claimant.

Andrew TEITELMAN,

Personal Representative of the Estate of

Thomas K. Cardoza, Deceased.

Petitioner,

v.

SAIF CORPORATION

and Werner Gourmet Meat Snacks, Inc.,

Respondents.

Workers’ Compensation Board

1906431, 2003506; A176678

Argued and submitted October 6, 2022.

Bennett P. Dalton argued the cause and filed the briefs for

petitioner. Also on the reply brief was The Dalton Law Firm.

Daniel Walker argued the cause and filed the brief for

respondents.

Before Ortega, Presiding Judge, Powers, Judge, and

Hellman, Judge.

POWERS, J.

Reversed and remanded.

Cite as 332 Or App 72 (2024) 73

POWERS, J.

At issue in this workers’ compensation case is

whether the worker, Thomas K. Cardoza, was eligible for a

Worker Requested Medical Examination (WRME). Cardoza,

who died during the pendency of this judicial review proceed-

ing and whose personal representative has been substituted

as claimant, requested a WRME following the denial of his

claim and nonconcurring medical opinions as to whether

his injury was work-related. The Workers’ Compensation

Division denied Cardoza’s WRME request, concluding that

the denial was not “based” on an independent medical

examination or IME as required by ORS 656.325(1)(e) and

the applicable administrative rule. On Cardoza’s challenge,

both an administrative law judge (ALJ) and the Workers’

Compensation Board upheld the denial. As explained below,

we conclude that, when an insurer submits an IME report as

evidence to support its denial of a worker’s claim, the denial

is “based” on an IME such that the worker is eligible for a

WRME under the terms of ORS 656.325(1)(e). Accordingly,

we reverse and remand.

The facts are primarily procedural and are not

in dispute. While working for employer Werner Gourmet

Meat Snacks, Inc., Cardoza filed a claim for a back injury.

Employer’s insurer, SAIF, denied the claim, concluding that

Cardoza “did not sustain a compensable injury arising out

of, or in the course of, [his] employment.” Cardoza sought

a hearing to challenge that denial, and SAIF requested

that Cardoza submit to an IME conducted by Dr. Ballard.

See ORS 656.325(1)(a) (requiring any worker entitled to

receive compensation to submit to a medical examination, if

requested). Ballard’s IME report supported the denial, con-

cluding that preexisting conditions, and not a work incident,

were the major cause of any disability or need for treatment.

Cardoza then submitted to an examination by his

own attending physician, Dr. Mitchell, who disagreed with

Ballard’s opinion, and concluded in his written report that

Cardoza’s work injury was the major cause of his need for

treatment. Citing the nonconcurrence between the reports,

Cardoza submitted a request to the division for authoriza-

tion of a WRME. The division denied Cardoza’s request,

74 Teitelman v. SAIF

concluding that he “[did] not meet the eligibility require-

ments under statute and rule.” The division cited the three

requirements for WRME eligibility: (1) a timely request

for a hearing; (2) the denial of the worker’s claim be based

on an IME; and (3) the attending physician’s statement of

nonconcurrence with the IME. See ORS 656.325(1)(e); OAR

436-060-0147(1). Although the division’s order agreed that

Cardoza had timely requested a hearing and successfully

submitted a nonconcurrence report from his attending phy-

sician, it concluded that he had not met the requirement

that the denial be “based” on an IME. The division reasoned

that, because SAIF denied Cardoza’s claim before the IME

occurred, the denial could not be “based” on the IME under

the applicable statute and administrative rule.

Cardoza challenged the division’s order and also

sought an interim order requiring SAIF to amend the

denial because, in his view, the denial was based on an IME

report, or, alternatively, to withdraw the IME report as a

hearing exhibit. See OAR 436-060-0140(8)(a) (requiring a

denial notice to specify if it was based in whole or in part

on an IME). The ALJ denied that request and, following a

hearing, upheld the denial. In particular, the ALJ’s order

cited the IME report as “persuasive” evidence that Cardoza’s

claim was not compensable

Cardoza appealed the ALJ’s order to the board,

challenging both the denial of compensability and the

request for WRME authorization. The board affirmed the

ALJ’s order on both issues. Regarding Cardoza’s eligibility

for a WRME, the board agreed with the division and ALJ,

concluding:

“At the time of SAIF’s October 2019 denial, no IME had

been conducted. As such, because SAIF’s denial was not

based in whole or in part on an IME, it did not include any

of the language concerning claimant’s WRME entitlement

required by OAR 436-060-0140(8)(b). Because an IME had

not occurred at the time the denial issued, the denial was

not based on an IME.”

Cardoza seeks judicial review of the board’s order.

We review the board’s order for substantial evidence and

errors of law. ORS 183.482(8)(a), (c); see also ORS 656.298(7)

Cite as 332 Or App 72 (2024) 75

(review of board orders “shall be as provided in ORS

183.482(7) and (8)”). Whether the board correctly inter-

preted a statute is a question that we review for legal error

under ORS 183.482(8)(a). Travelers Ins. Co. v. Arevalo, 296

Or App 514, 520, 437 P3d 1153 (2019).

On judicial review, claimant, as the personal rep-

resentative of Cardoza’s estate, argues that the board erred

in its interpretation of ORS 656.325(1)(e). He contends that,

although the IME was requested and occurred after SAIF’s

initial denial of his claim, the denial is still “based” on the

IME because the statute makes no distinction between

IMEs that occur before a denial and those that occur after.

That is, claimant asserts that the denial of a claim is an

ongoing action, and that when an insurer submits an IME

as evidence to support its denial of a claim, that is enough

to meet the statute’s requirement that the denial be “based”

on an IME. To hold otherwise, claimant argues, would allow

insurers to deny all claims prior to requesting an IME, thus

frustrating the statute’s intended purpose of leveling the

playing field between workers and insurers.

SAIF and employer argue that the text, context, and

legislative history support the board’s determination that a

claim denial cannot be “based” on an IME if the IME occurs

after the issuance of the denial. The parties’ arguments pres-

ent a straightforward issue of statutory interpretation, viz.,

whether the legislature intended that a denial can be “based”

on a post-denial IME. Accordingly, we resolve the issue

through our customary statutory interpretive framework

articulated in State v. Gaines, 346 Or 160, 171, 206 P3d 1042

(2009), under which our “paramount goal” is to ascertain the

intent of the legislature that enacted the disputed provision.

We determine that intent by examining the text, in context,

as well as the legislative history “where that legislative his-

tory appears useful to the court’s analysis.” Id. at 172.

A worker’s eligibility for WRME authorization is

established by ORS 656.325(1)(e), which provides:

“If the worker has made a timely request for a hearing

on a denial of compensability as required by ORS 656.319

(1)(a) that is based on one or more reports of examinations

conducted pursuant to paragraph (a) of this subsection

76 Teitelman v. SAIF

and the worker’s attending physician or nurse practitioner

authorized to provide compensable medical services under

ORS 656.245 does not concur with the report or reports,

the worker may request an examination to be conducted by

a physician selected by the director from the list described

in ORS 656.328. The cost of the examination and the exam-

ination report shall be paid by the insurer or self-insured

employer.”

The referenced “reports of examination conducted pursu-

ant to paragraph (a)” refer to IMEs. See ORS 656.325(1)(a).

Eligibility for the WRME process is also guided by OAR

436-060-0147, which provides, in part:

“(1) Eligibility. The worker is eligible for a worker

requested medical examination if:

“(a) The worker has made a timely request for a board

hearing on a denial of compensability;

“(b) The denial is based on one or more independent

medical examination reports; and

“(c) The attending physician or authorized nurse prac-

titioner does not concur with the report or reports.”

In our view, nothing in the statute’s or rule’s text

or context requires that an IME be performed before the

denial of a compensation claim. First, we agree with claim-

ant’s argument that the phrase in ORS 656.325(1)(e) that

the compensability denial “is based on one or more” IME

reports suggests a legislative intent that does not limit eli-

gibility to predenial IMEs. That is, we agree with claimant’s

argument that, as a practical matter, there is little reason

that there would be multiple predenial IMEs. Instead, the

inclusion of the phrase “one or more” suggests an intent to

include IMEs that occur after the initial denial. Second, if

the legislature’s intent was to limit eligibility to predenial

IMEs, it could have phrased the requirement more precisely.

For example, the legislature could have used the past tense

such that a denial “was” based on an IME to be more precise

that IMEs after a denial do not trigger the WRME autho-

rization. See, e.g., Martin v. City of Albany, 320 Or 175, 181,

880 P2d 926 (1994) (explaining that the “use of a particular

verb tense in a statute can be a significant indicator of the

legislature’s intention”); V. L. Y. v. Board of Parole, 338 Or

Cite as 332 Or App 72 (2024) 77

44, 50, 106 P3d 145 (2005) (focusing on the legislature’s use

of “is” and “exhibits” to conclude that the statute defines a

concept as a present condition). The legislature, however, did

not provide more explicit language limiting eligibility to the

interpretation that SAIF and employer urge us to adopt.

The context of the statute further supports claim-

ant’s interpretation. See, e.g., Kohring v. Ballard, 355 Or

297, 304, 325 P3d 717 (2014) (explaining that a court exam-

ines “word usage in context to determine which among com-

peting definitions is the one that the legislature more likely

intended”); Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140

(2004) (explaining that “text should not be read in isolation

but must be considered in context”). The purpose of allow-

ing a worker to request a WRME is to obtain an additional

professional opinion where there are at least two competing

reports, or, as in this case, the first two medical examina-

tions are not in concurrence. That purpose would be frus-

trated where a worker submits to two competing profes-

sional examinations and timely requests that the division

make a determination on the claim based on those examina-

tions. That is particularly so, when, as here, the insurer sub-

mits the IME report as evidence supporting the denial of a

claim, and the reviewing authority considers that report as

evidence in deciding whether to affirm or reverse the denial.

In such cases, we conclude that the denial is “based” on an

IME, and that the legislature intended that the worker be

authorized to obtain a WRME that would provide additional

information on the compensability of the claim.

Finally, the parties’ arguments cite extensively to

the legislative history surrounding the statute’s enactment

and amendments. We do not find persuasive for the pur-

pose of resolving the narrow issue presented in this case.

Moreover, we are not aware of any legislative history that

calls into question our conclusion based on the text and con-

text of ORS 656.325(1)(e). See ORS 174.020(3) (explaining

that courts “shall give the weight to the legislative history

that the court considers to be appropriate”); see also State v.

Rainey, 294 Or App 284, 291, 431 P3d 98 (2018) (explaining

that “whatever the legislative history may show the legis-

lature intended by the enactment of a statute, the wording

78 Teitelman v. SAIF

ultimately enacted must be capable of carrying out that

intention”). In short, given the text and context of the WRME

statute and rule, we conclude that SAIF’s denial was based

on an IME. Accordingly, the board erred in affirming the

denial of Cardoza’s request for a WRME.1

Reversed and remanded.

1

In the motion practice substituting Cardoza’s personal representative,

neither party suggested that this judicial review proceeding was moot, and no

party articulated what the proper procedure would be if we ruled in claimant’s

favor. Accordingly, we leave it to the parties and the board to address in the first

instance the effect of Cardoza’s death while this judicial review proceeding was

pending.