When do you stop investigating a work “incident” as a potentially compensable work “Injury”?

by: Benjamin C. Debney

A common question for Oregon employers, third-party administrators and insurers is: when do you stop investigating a work “incident” as a potentially compensable work “injury”? Unfortunately, there is no “one-size-fits-all” answer.

Such investigations are entirely dependent upon the specific facts in each case. However, some guidelines are possible both as a matter of practice and as a matter of law. A recurrent issue is whether the employer received timely “knowledge” of a potential claim that prevents dismissal of a claim filed more than 90-days after the work incident under ORS 656.265(4)(a) (“Failure to give notice as required by this section bars a claim under this chapter unless the notice is given within one year after the date of injury and: (a) The employer had knowledge of the injury or death”). A recent Board case sheds some light on this issue.

In Robert E. Suacci, 73 Van Natta 661 (August 20, 2021), the Board reversed the ALJ’s order finding that claimant untimely filed his injury claim because he failed to provide sufficient notice and the employer did not have knowledge of the claim within 90 days as required by ORS 656.265. The Board disagreed with the ALJ that SAIF had “overcome the presumption that claimant provided sufficient and timely notice.”

The Board noted that claimant testified that he told his supervisor that he had injured his back and that his supervisor corroborated that testimony by saying that claimant informed his that claimant had “sustained an injury.” Specifically, although the supervisor stated he thought claimant had aches and pains as opposed to a specific work injury, “the applicable standard is not [the supervisor’s] subjective opinion of claimant’s injury, but, rather, whether he had enough facts for a reasonable employer to conclude that workers’ compensation liability was a possibility and that further investigation was appropriate.” Id. at 665 (emphasis in original).

Practice Tip:

Per Suacci, the standard for required additional investigation is triggered by the mere “possibility” that a work “incident” is instead a work “injury.”

Under this unforgiving standard, to help avoid potential penalties and fees under ORS 656.262(11)(a), in all but the most benign cases, an employer should follow up with a worker on the ninetieth day after a work incident to assess whether the worker has received medical treatment and/or suffered any disability that could qualify the incident as a compensable work “injury” under ORS 656.005(7).

For assistance on the above or any Oregon Workers’ Compensation issue, contact Benjamin Debney at (503) 224-8949 or [email protected] See also https://wkmcblaw.com/person/benjamin-c-debney/