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WC Appeals

Workers' Compensation Appeals

Workers’ Compensation appeals follow several different tracks at first, depending on whether you are appealing the denial of your claim for benefits, the rating of your permanent disability, the employer’s failure to pay medical expenses, or some other improper action by the insurer or employer.

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These different ways to appeal different decisions will be described in the decision documents you receive, but they are complex, and it makes sense to consult a lawyer with workers’ compensation experience if you receive one of these denials. Do it right away! The deadlines for appealing these decisions are normally short–often 30 or 60 days, and it’s wise to leave yourself and your lawyer plenty of time.

Appealing A Denied Claim:

If you get hurt on the job and file a claim for workers’ compensation benefits, the claims processor has 60 days to tell you whether the claim is accepted or denied. If your claim is not denied within 14 days, you should receive “interim time loss benefits,” which are 2/3 of your regular pay, tax-free, if your doctor releases you from work due to your injury. These interim benefits stop if the claims processor denies your claim. If your claim is denied, you need to file a Request for Hearing within 60 days of the denial. If you don’t appeal the denial, it becomes final, and you lose all of your rights. The hearing is before a workers’ compensation administrative law judge (ALJ), a lawyer who works for the state. If you prevail at the hearing, the employer must pay your attorney’s fees and costs for expert reports you incurred to support your case. These fees and costs do not come out of your compensation.

Appealing Claim Closure:

You will receive time loss benefits as long as your claim remains “open.” The claim stays open as long as you are not “medically stationary,” which means no more time or treatment is going to materially improve your condition. When you become medically stationary for a disabling claim, the claims processor must rate your condition for any permanent impairment and issue a Notice of Closure (NOC) that officially closes your claim and awards permanent impairment if any is due. (Your claim may also be closed if your work injury is no longer the major cause of your impairment.) If you don’t agree that your claim should be closed or you disagree with the permanent impairment award, you have 60 days from the date of the NOC to request the Workers’ Compensation Division conduct a reconsideration proceeding. If there is a dispute about how serious your medical impairment is, the ARU may appoint a “medical arbiter” from a random list of doctors in the specialty that relates to your impairment. The ARU will make its decision on reconsideration based on the medical arbiter report and any other information you or the employer have provided. If you don’t agree with the decision on reconsideration, you can request a hearing before an ALJ.

Appealing Denial Of Medical Care:

If your doctor recommends surgery or some other medical care that the employer or insurer thinks is unnecessary or unrelated to your work injury, they may deny paying for that medical care. You can challenge their decision by requesting a review with the Director of the Department of Consumer and Business Services. Depending on the nature of the denial of services, the Director will either refer your request to an ALJ for hearing to determine the medical services’ relationship to the work injury or appoint a different doctor to determine if the medical services are reasonable and necessary. That final decision is subject to review on the request of either party, by the Oregon Court of Appeals. An appeal of this kind of order does not go to the Workers’ Compensation Board.

Appeals Concerning Vocational Assistance:

Injured workers who cannot return to the jobs at which they were injured, but can still work, may be entitled to vocational rehabilitation. If a dispute arises over whether vocational rehabilitation is appropriate or whether the worker is eligible for it, the worker must request a review by the Director within 60 days of the action s/he challenges. The director issues an order resolving the dispute, and that order is subject to review by filing a request for an ALJ hearing within 60 days of the director’s order. The ALJ can reverse the Director’s decision only if it was clearly unlawful.

Appeals From ALJ Decisions:

The most common ALJ decision is called an “Opinion and Order” or “O&O.” It is the only decision in the workers’ compensation system that is based on a formal hearing before a judge, with witnesses sworn to tell the truth—the one time the injured worker gets to present the case to a live human. The ALJ’s O&O includes findings of fact and conclusions of law that lead to a result that is binding on the worker and the employer. If either party disagrees with the O&O conclusion, an appeal is to the Workers’ Compensation Board, a five member board of lawyers and citizens appointed by the Governor, can be made. The request for review must be filed with the Board within 30 days of the date of the O&O. There is no hearing on Board review. No new evidence may be presented. The parties, however, must submit briefs arguing whether the ALJ’s decision is correct and what the result should be, based on the evidence that was put before the ALJ. The Board considers the facts de novo, which means the Board weighs the evidence to see whether it thinks the ALJ made the right decision about which evidence is more persuasive. The Board also considers any legal error the ALJ may have made if the parties raise it.

Appeals To The Court Of Appeals.

If either party disagrees with a decision of the Board (or the Director in the case of decisions on the compensability of medical care), they can petition for judicial review in the Oregon Court of Appeals within 30 days after the date of the Board’s decision. The Board then files with the court the "agency record," consisting of the paper evidence and a transcript of the hearing before the ALJ. The parties have 15 days to note any inaccuracies in the record. Once the record is settled, the appealing party ("the petitioner") has 49 days to file the opening brief; then the party who won before the Board ("the respondent") has 49 days to file the answering brief; then the petitioner has 21 days to file a reply, which is the final brief. The Court of Appeals then schedules an oral argument, usually in Salem and usually within about six months after the last brief is filed. After oral argument, the court takes as long as it needs to to make a decision.

The court of appeals will not make a new decision on the facts, i.e. the court will not look at the evidence to see what testimony or medical evidence seems more persuasive. The court will reverse a factual decision of the Board only if there is no substantial evidence to support it, i.e. if a reasonable person could not have made the same decision the Board made based on the evidence that was before the ALJ and the Board. The court does make its own decision on any legal issues the parties raise, but it will not ordinarily raise legal issues on its own. If a party does not argue an issue, the court will generally not consider it. The court may affirm the Board’s decision without opinion, or it may write a decision deciding the case. There is no particular requirement for how long the court will take to issue its decision. In most cases the court issues a decision upholding the trial result without writing an opinion ("affirmed without opinion" or "AWOP"). That usually happens within a couple of months of oral argument. If the court decides to write an opinion, it hopes to do so within 6 months but, in complex or controversial cases, it may take a year or even two.

The losing party in the court of appeals can file a petition for review in the Oregon Supreme Court, which has 7 Justices. The Oregon Supreme Court then decides whether to take the case or not. The court considers a number of factors in making this decision, including:

  • whether the question is legal as opposed to a question of fact (the supreme court doesn’t usually fix factual mistakes)
  • the importance of the legal question, and whether it has been decided before
  • whether the legal question is likely to arise often or affect a large number of Oregonians
  • whether court decisions on the legal question are inconsistent or need clarification

If the supreme court allows review, the parties get to file further briefs, and the court hears oral argument. The court then issues its written decision. How long this takes depends on the complexity of the issue and whether there is disagreement in the court as to the result or the reasoning. Different Justices may decide to write concurring opinions, which agree with the result but differ as to the reasoning, or dissenting opinions, which disagree as to the result.

The Oregon Supreme Court is the final appeal in a workers’ compensation case. Because workers’ compensation is governed completely by state law, there are no federal issues, and, unless the law is applied in a way that violates the U.S. Constitution, there is no chance of review by the United States Supreme Court.

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