September 17, 2013

Oregon Workers Compensation Board rules Claimant required to cooperate with employer/insurers reasonable investigation. Claimant’s attorney sanctioned.

In The Matter of the Compensation of Tracey Sklenar, WCB #12-00548.  On October 3, 2011, Claimant filed an occupational disease claim for work-related stress allegedly stemming from her job. On October 11, 2011, Claimant and her attorney were notified that as part of the investigation of her claim, a deposition had been scheduled for October 26, 2011, pursuant to ORS 656.262 and OAR 436-060-0135.

Claimant and her counsel refused repeatedly to submit to the deposition. Instead they offered to submit to a recorded statement.  Claimant was advised that her failure to cooperate with the deposition would result in remedies being sought with the Workers Compensation Division.  The non-cooperation continued. On November 1, 2011, the Oregon Workers Compensation Division (WCD) advised Claimant and her counsel that her benefits would be suspended. The WCD also informed Claimant’s counsel that he may face civil penalties for his unreasonable refusal to cooperate with the deposition.

On December 2, 2011, the WCD suspended Claimant’s compensation.  Thereafter, a non-cooperation claim denial issued.  Also, the WCD levied a civil penalty against Claimant’s counsel for his conduct associated with the non-cooperation.

Claimant and counsel appealed. Claimant argued that she cooperated because it was her option to choose the investigation/information gathering method. Claimant also argued that if her conduct constituted a failure to cooperate, her non-cooperation was beyond her control because she was following her attorney’s advice.

The Oregon Workers Compensation Board ruled that the employer/insurer had the right to choose among the investigatory options, including a deposition, authorized by the statute.  Claimant could propose alternatives, but ultimately, Claimant was required to cooperate.  The Board further ruled that Claimant could not point to her attorney’s bad advice to excuse her failure to cooperate.  The Employer’s denial was upheld.  The sanction assessed against the Claimant’s attorney was affirmed.

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