341 P.3d 131
Or. Ct. App.2014Background
- Claimant (a certified nursing assistant) was injured while employed by Adams & Gray and also worked for two other employers; Adams & Gray knew of her secondary employment.
- Claimant filed a workers’ compensation claim with Adams & Gray’s insurer, Liberty, but did not indicate on claims forms that she had multiple employers and did not notify Liberty of secondary employment within 30 days.
- About nine months later claimant (through counsel) told Liberty about the secondary employers and requested supplemental disability; Liberty declined to process the supplemental claim and DCBS’s agent ComPro handled it.
- ComPro denied supplemental disability because Liberty had not received notice of secondary employment within 30 days as required by ORS 656.210(2)(b)(A).
- An ALJ awarded supplemental disability, concluding the insurer had “imputed” notice because the employer knew of the secondary employment; the Workers’ Compensation Board affirmed.
- Oregon Court of Appeals reversed, holding statutory text requires actual notice to the insurer (or specified entity) within 30 days and imputed notice from employer knowledge cannot satisfy ORS 656.210(2)(b)(A).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether employer knowledge of a worker’s secondary employment can be imputed to the insurer to satisfy ORS 656.210(2)(b)(A)’s 30-day notice requirement | Claimant: employer’s knowledge should be imputed to insurer under common-law imputed notice doctrines, satisfying the statute | DCBS/Liberty: statute requires the insurer (or specified entity) actually receive notice within 30 days; no textual basis for imputation | Court: Rejected imputation; statute requires actual notice to insurer (or listed entity) within 30 days; reversed board |
| Whether prior cases (imputation or attribution doctrines) support reading notice to employer as notice to insurer | Claimant: Anfilofieff, Nix, Abbott show employer knowledge/conduct can be attributed to insurer | DCBS: those cases do not support altering ORS 656.210(2)(b)(A)’s explicit notice requirement | Court: Distinguished those precedents as addressing insurer liability/attribution for employer conduct, not satisfying an express statutory notice prerequisite |
| Whether processing agent (ComPro) had duty to investigate employer or insurer to obtain notice or documentation | Claimant: insurer/agent could have discovered info; imputation appropriate | DCBS: Valencia controls — claimant bears burden to provide documentation; processor has no duty to investigate | Court: Agreed with DCBS and Valencia; claimant bears burden and processor has no independent obligation to seek missing information |
| Whether board’s imputation approach effectively rewrites ORS 656.210(2)(b)(A) | Claimant: statutory purpose favors preventing employers from thwarting claims by withholding information | DCBS: allowing imputation would judicially amend clear statutory text | Court: Held board’s imputation did effectively amend statute and was legal error |
Key Cases Cited
- Anfilofieff v. SAIF, 52 Or. App. 127 (1981) (attributing employer’s unreasonable conduct to insurer for penalty purposes)
- Nix v. SAIF, 80 Or. App. 656 (1986) (employer’s failure to report injury attributed to insurer when assessing delay reasonableness)
- SAIF v. Abbott, 103 Or. App. 49 (1990) (employer/supervisor knowledge attributed to insurer in evaluating backup denial based on misrepresentation)
- Valencia v. GET BTL, LLC, 247 Or. App. 115 (2011) (claimant bears burden to provide verifiable documentation for supplemental disability; processor not required to investigate)