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Jackson v. Tuality Community Hospital12/28/1994
d 475 (1993), rev. den., 319 Or. 36, 876 P.2d 782 (1994), because claimant here "voluntarily boycotted process," i.e., she refused to submit to the arbiter's examination. However, in Scheller, the claimant also voluntarily boycotted the process. In Scheller, it was the claimant's action in not challenging impairment on reconsideration that led the director not to appoint an arbiter. 125 Or.App. at 456, 865 P.2d 475; see also ORS 656.268(2). In both cases, a claimant's unilateral action allows medical evidence prepared after the reconsideration process to be considered by the referee. Any distinction between the two cases is illusory.
My reading of the statute does not allow a claimant to completely circumvent the statutory procedures. The statute only provides that " he medical arbiter or panel of medical arbiters may examine the worker." (Emphasis supplied.) The statute does not require an examination by a medical arbiter. If a claimant refuses to cooperate in the examination process, the medical arbiter may nevertheless prepare and submit a
report using the medical evidence already before DIF. That was not done here. Had it been done, my reading of ORS 656.268(7) would potentially result in the proper exclusion of claimant's medical evidence prepared after the findings of the medical arbiter.
The Board erred when it decided that the medical evidence prepared after the appointment of the medical arbiter should be excluded. Because I believe that the majority misreads ORS 656.268(7), I Dissent.
LANDAU and HASELTON, JJ., join in this Concurring and Dissenting opinion.
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