Farmers Ins. Co. v. Aranda

Under OAR 438-006-0036, a motion made to dismiss a claim during closing arguments, rather than filed as a response to the claim or brought up during the hearing, is not a timely response.

Employer and its insurer sought review of the Workers’ Compensation Board’s (WCB’s) determination that Claimant’s new/omitted medical condition claim was compensable and Employer had failed to timely move to dismiss the claim regarding the alleged de facto denial of Claimant’s new/omitted medical condition claim. The WCB held the motion to dismiss was not timely because Employer made the argument during closing arguments rather than before or during the hearing. Under ORS 656.262(6)(d), to prove a de facto denial, a claimant must show (1) he filed a written claim for the condition, (2) the employer received the claim, and (3) the employer failed to issue an acceptance or denial within 60 days of receipt. The ALJ initially sided with Employer, finding Claimant had failed to establish the claim was de facto denied; Claimant appealed, and the Board reversed, finding that Claimant had raised the issue of de facto denial and Employer failed to respond specifically, either by filing a response as required by OAR 438-006-0036, or by bringing it up during the hearing. Affirmed.