Aetna Casualty Co. v. Kupetz

DEITS, J.,

dissenting.

The majority holds that the Board did not err in concluding that employer was not prejudiced by claimant’s three year delay in filing her claim for workers’ compensation. I disagree.

As the majority correctly points out, the claim here is not barred if employer has not been prejudiced by the failure to receive timely notice of the claim. ORS 656.265(4). The burden to prove that the delay has caused prejudice is on employer, and mere passage of time is not sufficient to meet that burden. Argonaut Ins. Co. v. Mock, 95 Or App 1, 768 P2d 401, rev den 308 Or 79 (1989). However, employer did more than that here. As we stated in Argonaut, 95 Or App at 6, “the passage of time may have an impact on the ability to make a timely investigation or to seek current medical treatment and examinations.” That is exactly what employer asserts occurred here.

One of the issues in the case was whether claimant was inspecting a house at the time of the bicycle accident and was, therefore, acting within the scope of her employment. Four of claimant’s co-workers and a former supervisor were witnesses at the hearing. Employer called three of those witnesses. They were asked whether claimant had told them at the time of the accident that she had injured herself while on the job. Two co-workers testified that they spoke with her the next day. They could not remember the details of their conversations, but recalled that she had not said that it happened on a job site. Another co-worker talked on the telephone with claimant on the afternoon of the accident, and she could not recall if claimant said where or what they were doing. Her supervisor testified that he could not remember anything about the specifics of her accident because it had occurred *679 almost four years before the hearing. Her co-workers’ lack of recollection is particularly significant because, although it was claimant’s usual practice to claim overtime for such inspections, the records showed that she had claimed no overtime for this work. Further, the documentation that was available concerning the house that claimant allegedly inspected showed that the house had been inspected in August and had been approved as complete two days before the October accident.1

The majority concludes that claimant offered a credible explanation for the inconsistencies in the records and, therefore, that employer was not prejudiced by the witnesses’ inability to remember conversations that had occurred three years before the hearing. The point is, however, that we cannot know how the witnesses would have testified, had they been able to remember what was said at the time or what employer might have been able to discover if it had been able to conduct a timely investigation. The witnesses might have provided evidence that undermined claimant’s credibility. It is these gaps in the witnesses’ memories that prejudiced employer. Claimant’s failure to file the claim until over three years after the accident interfered with employer’s ability to determine whether the accident occurred in the course of her employment.

An additional issue at the hearing was the extent of claimant’s injury and its relationship to a preexisting condition. Two of the witnesses had been responsible for payroll functions. They testified that claimant had filed a claim for her preexisting condition and had had some problems with the company’s insurer, but they did not recall the details of the problems. They both stated that First Security, employer then, was a different entity now and that they now had no access to the records of the earlier claim. Although it is correct, as the majority points out, that many of claimant’s past medical and insurance records are in the record, what is absent is the recollection of these co-employees as to the nature of claimant’s problems that claimant had in obtaining *680 medical coverage. One of the co-employees testified that she could not remember the problems that claimant had in obtaining coverage for her TMJ before the accident, but that it may have been that the insurer excluded TMJ or that coverage was not available because the condition was preexisting. Again, this information may have undermined claimant’s credibility and may have been pertinent to determining the relationship of claimant’s preexisting TMJ condition and the bike accident.

Further, because of the delay in filing the claim, employer was unable to obtain its own medical examination contemporaneous with the accident. The majority concludes that this makes no difference, because claimant’s physicians who examined and treated claimant concluded that, even though she had preexisting TMJ problems, all her jaw problems that developed after the bike accident were caused by the accident.

However, no one examined claimant at the time of the accident for the purpose of distinguishing the injury and its associated problems from the preexisting TMJ. Any examination made now likely would not reveal the effect, if any, of the preexisting condition. When a long-term condition is treated shortly before an injury and the same condition appears after the injury, it should not require medical testimony to show prejudice by the lack of a timely examination. Employer’s inability to have claimant examined closer to the time of the accident seriously interfered with its ability to determine the relationship between her preexisting TMJ problems and her TMJ problems following the accident.

If, after reviewing all the evidence in the record, the Board’s findings are “reasonable in light of countervailing as well as supporting evidence” in the record, then its findings are supported by substantial evidence. Garcia v. Boise Cascade Corp., 309 Or 292, 787 P2d 884 (1990). Here, there was substantial countervailing evidence that, because of the delay in filing, employer was prevented from conducting a meaningful investigation of the claim and fully developing its case. The Board’s conclusion that employer failed to establish that it was prejudiced is not reasonable in the light of countervailing, as well as supporting, evidence.

I would hold that employer did show that the passage *681 of time seriously impeded its ability to investigate this claim and that it was prejudiced by claimant’s delay. Accordingly, I dissent.

The majority contends that employer was not diligent in pursuing all of the witnesses that it could because it did not call Braceo, the builder. However, the failure to call Braceo does not necessarily reflect a lack of diligence. His testimony was only necessary to rebut claimant’s theory, raised for the first time at the hearing, that she was holding funds “over his head” to ensure that he had completed the house before giving him a check.