Pena v. Travelers Ins. Co. (In re Pena)
Pena v. Travelers Ins. Co. (In re Pena)
Opinion of the Court
*742This workers' compensation case requires us to determine the correct remedy when the Workers' Compensation Division provides surveillance video of a claimant to a panel of medical arbiters in violation of one of the agency's own rules, OAR 436-030-0155(4)(a). We agree with claimant that OAR 436-030-0155(4)(a) precludes the agency from relying upon findings in a medical arbiter panel's report that are based on the arbiters' improper consideration of surveillance video, and we reverse and remand for further proceedings under a correct interpretation of that rule.
Claimant was injured at work in April 2013, and his employer's insurer, Travelers Insurance Company (Travelers), accepted a *384claim for cervical, thoracic, and lumbar strains /sprains. Travelers issued a notice of closure in November 2015 that awarded claimant permanent partial disability for impairment of the thoracic and lumbar spine. Both claimant and Travelers then sought reconsideration by the Appellate Review Unit (ARU) of the Workers' Compensation Division. As part of the reconsideration process, a panel of medical arbiters evaluated claimant and found decreased spinal ranges of motion, but the panel also reviewed a DVD of surveillance video of claimant that had been taken before claim closure. In its report, the arbiter panel determined that the surveillance video on the DVD "demonstrate[d] greater cervical, thoracic, and lumbar motion than what was seen" in the examination of claimant, such that the panel's own examination of motion was "not valid for the purpose of measuring permanent impairment."
Based on the medical arbiters' report, the ARU reduced claimant's permanent partial disability award to zero. Claimant appealed that decision, and a hearing was scheduled before an administrative law judge (ALJ). Before the ALJ, claimant argued that the underlying medical arbiters' report was flawed and should have been excluded from consideration by the ARU, because the arbiters had improperly considered surveillance video on the DVD as part of their review. Specifically, claimant argued that some of that video had not been reviewed by claimant's treating physician prior to claim closure, in violation of *743OAR 436-030-0155 (4)(a). That rule, which concerns the record on reconsideration, provides:
"(4) When any surveillance video obtained prior to closure has been submitted to a physician involved in the evaluation or treatment of the worker, it must be provided for arbiter review.
"(a) Surveillance video provided for arbiter review must have been reviewed prior to claim closure by a physician involved in the evaluation or treatment of the worker ."
(Emphasis added.)
The ALJ agreed with claimant that the DVD included video that had been provided for arbiter review in violation of that rule, but it nonetheless affirmed the order on reconsideration. Claimant then appealed the ALJ's decision to the Workers' Compensation Board, and the board, like the ALJ, rejected claimant's argument that the medical arbiter panel's report should have been excluded from consideration because of the violation of OAR 436-030-0155 (4)(a). The board reasoned:
"Here, claimant does not cite, and we do not find, any statutory authority, administrative rule, or case precedent to support the proposition that the medical arbiter panel's report should be 'excluded from consideration' because the panel reviewed a surveillance video that did not comply with OAR 436-030-0155(4)(a). Instead, an insurer that does not provide information complying with the requirements set forth in OAR 436-030-0135, 436-030-0145, 436-030-0155, and 436-030-0165 may be assessed civil penalties, and such failure may also be grounds for extending the reconsideration proceeding. OAR 436-030-0175(1). Thus, the rules do not outright preclude the consideration of the medical arbiter panel's report in rating claimant's permanent disability under these particular circumstances."
The board affirmed the ALJ's order.
Claimant now seeks judicial review of that final order, arguing that the board erred "in relying on evidence that violated the administrative rules set forth for arbiter examinations and by concluding that 'the rules do not outright preclude the consideration of the medical arbiter panel's report in rating claimant's permanent disability *744under these circumstances.' " Travelers,
When interpreting an administrative rule, we ordinarily must determine whether an agency has interpreted one of its own rules, such that the interpretation is entitled to deference. See Don't Waste Oregon Com. v. Energy Facility Siting ,
*745In determining whether an interpretation of a rule is plausible, we apply the same principles of interpretation that are used to construe statutes. Haskins v. Palmateer ,
The text of OAR 436-030-0155(4)(a), viewed in context, indicates that the rule is more than merely procedural. By stating that "[s]urveillance video provided for arbiter review must have been reviewed prior to claim closure by a physician involved in the evaluation or treatment of the worker" (emphasis added), the rule sets forth a mandatory precondition that must be satisfied for the video to be part of the arbiter review. See generally Oregon Cable Telecommunications v. Dept. of Rev. ,
Nothing in the text, context, or history of the rule suggests that the restriction on arbiter review of surveillance *746video is hortatory.
In that light, the only plausible interpretation of OAR 436-030-0155(4)(a) is that it precludes the agency from relying upon findings in a medical arbiters' report that are based on consideration of surveillance video that never should have been part of the arbiter review. That is the only interpretation that effectuates the plain intent of the rule, which is to prevent that type of surveillance video from influencing the arbiters' findings and any later determination based on those findings.
Neither of the alternative remedies identified by Travelers and the board are plausible ways of understanding the agency's rules concerning surveillance video. First, they point to the opening sentence of OAR 436-030-0175(1), which provides that "[a]n insurer failing to provide information or documentation as set forth in OAR 436-030-0135, 436-030-0145, 436-030-0155 and 436-030-0165 may be assessed civil penalties under OAR 436-030-0580." However, that provision governs only the conduct of insurers . In this case, there is no dispute that the Workers' Compensation Division, not Travelers, provided the surveillance video to the arbiter panel, and the rule does not address that circumstance.
Second, Travelers' argument and the board's order assert that, under the second sentence of that same rule, reconsideration can be extended where the surveillance video has not been provided to the claimant's attending physician. See OAR 436-030-0175(1) ("Failure to comply with the requirements set forth in OAR 436-030-0135, 436-030-0145, 436-030-0155, and 436-030-0165 may also be grounds for extending the reconsideration proceeding under ORS 656.268(6)."). Even assuming that sentence of the rule applies in this circumstance, it only confirms our conclusion that OAR 436-030-0155(4)(a) precludes the agency from relying upon findings in a medical arbiters' report that are based on the arbiters' improper consideration of surveillance video. An extension of the reconsideration proceeding will not change whether a surveillance video satisfies the rule; by its terms, the video "must have been reviewed prior to claim closure ." OAR 436-030-0155(4)(a) (emphasis added). Thus, a violation of OAR 436-030-0155(4)(a) will not be cured through an extension of the reconsideration *387proceeding unless the effect of that extension is to eliminate the arbiters' reliance on the video-the remedy that is implicit in OAR 436-030-0155(4)(a) itself.
For those reasons, we agree with claimant that the board erred in concluding that the agency's rules allowed *748consideration of the medical arbiter panel's report in rating claimant's permanent partial disability under the circumstances of this case. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Respondents are Travelers and claimant's employer, Progressive Logistics Services. For readability, we refer to respondents collectively as "Travelers."
As we explained in Godinez v. SAIF ,
Claimant has provided enactment history that reflects the agency's understanding that only video obtained prior to the notice of closure is "appropriate and pertinent" if viewed by the attending physician.
Travelers' argument and the board's order suggest that any violation of the rule was harmless, because the arbiters relied on other information as well. We reject that contention. The arbiter panel expressly relied on surveillance video in its report and stated that "[t]he DVD has had an impact on our opinion regarding functional capacity and validity." There is no basis for us to conclude that it would have reached the same findings in the absence of the video.
The rules contemplate that the director, not the parties, will provide information to the arbiters for their review. See OAR 436-030-0155(2), (3).
Because we remand based on that error, we do not reach claimant's remaining assignments of error.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.