Pena v. Travelers Ins. Co.

The Court will ordinarily extend deference only to a plausible agency interpretation of its own rule and applies the same principles of interpretation that are used to construe statutes.

Claimant appealed an administrative law judge order refusing to exclude a medical arbiter panel's report from consideration. Claimant assigned error to the board's reliance 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 under these circumstances.'" On appeal, Claimant argued that Claimant's treating physician did not review portions of surveillance video before claiming closure, which violated OAR 436-030-0155(4)(a), requiring surveillance video provided for arbiter review be reviewed before claiming closure by a physician involved in the evaluation of the worker. In response, Travelers argued remedy for violation of a rule was to extend the reconsideration process or impose civil penalties on the insurer, not to ignore the medical panel's finding concerning impairment. The Court will ordinarily extend deference only to a plausible agency interpretation of its own rule and applies the same principles of interpretation that are used to construe statutes. The Court held that the board erred by concluding that the agency's rules allowed consideration of the report under the circumstances of this case, because the only plausible interpretation of the plain language of OAR 436-030-0155(4)(a) required surveillance video be reviewed prior to claim closure by a physician involved in the evaluation, and that the alternative remedies Travelers presented were not plausible ways of interpreting the rule. Reversed and remanded.