Chapter 865 Oregon Laws 2001
AN ACT
SB 485
Relating to employment;
creating new provisions; amending ORS 656.005, 656.210, 656.214, 656.252,
656.262, 656.266, 656.268, 656.278, 656.308, 656.313, 656.325, 656.386,
656.605, 656.625 and 656.804; repealing ORS 654.335 and sections 3, 4 and 5,
chapter 6, Oregon Laws 1999; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 656.005 is amended to read:
656.005. (1) “Average weekly wage” means the Oregon average
weekly wage in covered employment, as determined by the Employment Department,
for the last quarter of the calendar year preceding the fiscal year in which
the injury occurred.
(2) “Beneficiary” means an injured worker, and the husband,
wife, child or dependent of a worker, who is entitled to receive payments under
this chapter. “Beneficiary” does not include:
(a) A spouse of an injured worker living in a state of
abandonment for more than one year at the time of the injury or subsequently. A
spouse who has lived separate and apart from the worker for a period of two
years and who has not during that time received or attempted by process of law
to collect funds for support or maintenance is considered living in a state of
abandonment.
(b) A person who intentionally causes the compensable
injury to or death of an injured worker.
(3) “Board” means the Workers’ Compensation Board.
(4) “Carrier-insured employer” means an employer who
provides workers’ compensation coverage with a guaranty contract insurer.
(5) “Child” includes a posthumous child, a child legally
adopted prior to the injury, a child toward whom the worker stands in loco
parentis, an illegitimate child and a stepchild, if such stepchild was, at the
time of the injury, a member of the worker’s family and substantially dependent
upon the worker for support. An invalid dependent child is a child, for
purposes of benefits, regardless of age, so long as the child was an invalid at
the time of the accident and thereafter remains an invalid substantially
dependent on the worker for support. For purposes of this chapter, an invalid
dependent child is considered to be a child under 18 years of age.
(6) “Claim” means a written request for compensation from a
subject worker or someone on the worker’s behalf, or any compensable injury of
which a subject employer has notice or knowledge.
(7)(a) A “compensable injury” is an accidental injury, or
accidental injury to prosthetic appliances, arising out of and in the course of
employment requiring medical services or resulting in disability or death; an
injury is accidental if the result is an accident, whether or not due to
accidental means, if it is established by medical evidence supported by
objective findings, subject to the following limitations:
(A) No injury or disease is compensable as a consequence of
a compensable injury unless the compensable injury is the major contributing
cause of the consequential condition.
(B) If an otherwise compensable injury combines at any time
with a preexisting condition to cause or prolong disability or a need for
treatment, the combined condition is compensable only if, so long as and to the
extent that the otherwise compensable injury is the major contributing cause of
the disability of the combined condition or the major contributing cause of the
need for treatment of the combined condition.
(b) “Compensable injury” does not include:
(A) Injury to any active participant in assaults or combats
which are not connected to the job assignment and which amount to a deviation
from customary duties;
(B) Injury incurred while engaging in or performing, or as
the result of engaging in or performing, any recreational or social activities
primarily for the worker’s personal pleasure; or
(C) Injury the major contributing cause of which is
demonstrated to be by a preponderance of the evidence the injured worker’s
consumption of alcoholic beverages or the unlawful consumption of any
controlled substance, unless the employer permitted, encouraged or had actual
knowledge of such consumption.
(c) A “disabling compensable injury” is an injury which
entitles the worker to compensation for disability or death. An injury is not
disabling if no temporary benefits are due and payable, unless there is a
reasonable expectation that permanent disability will result from the injury.
(d) A “nondisabling compensable injury” is any injury which
requires medical services only.
(8) “Compensation” includes all benefits, including medical
services, provided for a compensable injury to a subject worker or the worker’s
beneficiaries by an insurer or self-insured employer pursuant to this chapter.
(9) “Department” means the Department of Consumer and
Business Services.
(10) “Dependent” means any of the following-named relatives
of a worker whose death results from any injury: Father, mother, grandfather,
grandmother, stepfather, stepmother, grandson, granddaughter, brother, sister,
half sister, half brother, niece or nephew, who at the time of the accident,
are dependent in whole or in part for their support upon the earnings of the
worker. Unless otherwise provided by treaty, aliens not residing within the
United States at the time of the accident other than father, mother, husband,
wife or children are not included within the term “dependent.”
(11) “Director” means the Director of the Department of
Consumer and Business Services.
(12)(a) “Doctor” or “physician” means a person duly
licensed to practice one or more of the healing arts in any country or in any
state, territory or possession of the United States within the limits of the
license of the licentiate.
(b) Except as otherwise provided for workers subject to a
managed care contract, “attending physician” means a doctor or physician who is
primarily responsible for the treatment of a worker’s compensable injury and
who is:
(A) A medical doctor or doctor of osteopathy licensed under
ORS 677.100 to 677.228 by the Board of Medical Examiners for the State of
Oregon or an oral and maxillofacial surgeon licensed by the Oregon Board of
Dentistry or a similarly licensed doctor in any country or in any state,
territory or possession of the United States; or
(B) For a period of 30 days from the date of first visit on
the initial claim or for 12 visits, whichever first occurs, a doctor or
physician licensed by the State Board of Chiropractic Examiners for the State
of Oregon or a similarly licensed doctor or physician in any country or in any
state, territory or possession of the United States.
(c) “Consulting physician” means a doctor or physician who
examines a worker or the worker’s medical record to advise the attending
physician regarding treatment of a worker’s compensable injury.
(13)(a) “Employer” means any person, including receiver,
administrator, executor or trustee, and the state, state agencies, counties,
municipal corporations, school districts and other public corporations or
political subdivisions, who contracts to pay a remuneration for and secures the
right to direct and control the services of any person.
(b) Notwithstanding paragraph (a) of this subsection, for
purposes of this chapter, the client of a temporary service provider is not the
employer of temporary workers provided by the temporary service provider.
(c) As used in paragraph (b) of this subsection, “temporary
service provider” has the meaning for that term provided in ORS 656.850.
(14) “Guaranty contract insurer” and “insurer” mean the
State Accident Insurance Fund Corporation or an insurer authorized under ORS
chapter 731 to transact workers’ compensation insurance in this state or an
assigned claims agent selected by the director under ORS 656.054.
(15) “Consumer and Business Services Fund” means the fund
created by ORS 705.145.
(16) “Invalid” means one who is physically or mentally
incapacitated from earning a livelihood.
(17) “Medically stationary” means that no further material
improvement would reasonably be expected from medical treatment, or the passage
of time.
(18) “Noncomplying employer” means a subject employer who
has failed to comply with ORS 656.017.
(19) “Objective findings” in support of medical evidence
are verifiable indications of injury or disease that may include, but are not
limited to, range of motion, atrophy, muscle strength and palpable muscle
spasm. “Objective findings” does not include physical findings or subjective
responses to physical examinations that are not reproducible, measurable or
observable.
(20) “Palliative care” means medical service rendered to
reduce or moderate temporarily the intensity of an otherwise stable medical
condition, but does not include those medical services rendered to diagnose,
heal or permanently alleviate or eliminate a medical condition.
(21) “Party” means a claimant for compensation, the
employer of the injured worker at the time of injury and the insurer, if any,
of such employer.
(22) “Payroll” means a record of wages payable to workers
for their services and includes commissions, value of exchange labor and the
reasonable value of board, rent, housing, lodging or similar advantage received
from the employer. However, “payroll” does not include overtime pay, vacation
pay, bonus pay, tips, amounts payable under profit-sharing agreements or bonus
payments to reward workers for safe working practices. Bonus pay is limited to
payments which are not anticipated under the contract of employment and which
are paid at the sole discretion of the employer. The exclusion from payroll of
bonus payments to reward workers for safe working practices is only for the
purpose of calculations based on payroll to determine premium for workers’
compensation insurance, and does not affect any other calculation or
determination based on payroll for the purposes of this chapter.
(23) “Person” includes partnership, joint venture,
association, limited liability company and corporation.
(24)(a)
“Preexisting condition” means, for all
industrial injury claims, any injury, disease, congenital abnormality,
personality disorder or similar condition that contributes [or predisposes a worker] to disability
or need for treatment [and that precedes
the onset of an initial claim for an injury or occupational disease, or that
precedes a claim for worsening pursuant to ORS 656.273.], provided that:
(A) Except for claims in
which a preexisting condition is arthritis or an arthritic condition, the worker
has been diagnosed with such condition, or has obtained medical services for
the symptoms of the condition regardless of diagnosis; and
(B)(i) In claims for an
initial injury or omitted condition, the diagnosis or treatment precedes the
initial injury;
(ii) In claims for a new
medical condition, the diagnosis or treatment precedes the onset of the new
medical condition; or
(iii) In claims for a
worsening pursuant to ORS 656.273 or 656.278, the diagnosis or treatment
precedes the onset of the worsened condition.
(b) “Preexisting
condition” means, for all occupational disease claims, any injury, disease,
congenital abnormality, personality disorder or similar condition that
contributes to disability or need for treatment and that precedes the onset of
the claimed occupational disease, or precedes a claim for worsening in such
claims pursuant to ORS 656.273 or 656.278.
(c) For the purposes of
industrial injury claims, a condition does not contribute to disability or need
for treatment if the condition merely renders the worker more susceptible to
the injury.
(25) “Self-insured employer” means an employer or group of
employers certified under ORS 656.430 as meeting the qualifications set out by
ORS 656.407.
(26) “State Accident Insurance Fund Corporation” and
“corporation” mean the State Accident Insurance Fund Corporation created under
ORS 656.752.
(27) “Subject employer” means an employer who is subject to
this chapter as provided by ORS 656.023.
(28) “Subject worker” means a worker who is subject to this
chapter as provided by ORS 656.027.
(29) “Wages” means the money rate at which the service
rendered is recompensed under the contract of hiring in force at the time of
the accident, including reasonable value of board, rent, housing, lodging or
similar advantage received from the employer, and includes the amount of tips
required to be reported by the employer pursuant to section 6053 of the
Internal Revenue Code of 1954, as amended, and the regulations promulgated
pursuant thereto, or the amount of actual tips reported, whichever amount is
greater. The State Accident Insurance Fund Corporation may establish assumed
minimum and maximum wages, in conformity with recognized insurance principles,
at which any worker shall be carried upon the payroll of the employer for the
purpose of determining the premium of the employer.
(30) “Worker” means any person, including a minor whether
lawfully or unlawfully employed, who engages to furnish services for a
remuneration, subject to the direction and control of an employer and includes
salaried, elected and appointed officials of the state, state agencies,
counties, cities, school districts and other public corporations, but does not
include any person whose services are performed as an inmate or ward of a state
institution or as part of the eligibility requirements for a general or public
assistance grant. For the purpose of
determining entitlement to temporary disability benefits or permanent total
disability benefits under this chapter, “worker” does not include a person who
has withdrawn from the workforce during the period for which such benefits are
sought.
(31) “Independent contractor” has the meaning for that term
provided in ORS 670.600.
SECTION 2.
ORS 656.266 is amended to read:
656.266. (1) The
burden of proving that an injury or occupational disease is compensable and of
proving the nature and extent of any disability resulting therefrom is upon the
worker. The worker cannot carry the burden of proving that an injury or
occupational disease is compensable merely by disproving other possible
explanations of how the injury or disease occurred.
(2) Notwithstanding
subsection (1) of this section, for the purpose of combined condition injury
claims under ORS 656.005 (7)(a)(B) only:
(a) Once the worker
establishes an otherwise compensable injury, the employer shall bear the burden
of proof to establish the otherwise compensable injury is not, or is no longer,
the major contributing cause of the disability of the combined condition or the
major contributing cause of the need for treatment of the combined condition.
(b) Notwithstanding ORS
656.804, paragraph (a) of this subsection does not apply to any occupational
disease claim.
SECTION 3.
ORS 656.210 is amended to read:
656.210. (1) When the total disability is only temporary,
the worker shall receive during the period of that total disability
compensation equal to 66-2/3 percent of wages, but not more than [100] 133 percent of the average weekly wage nor less than the amount of
90 percent of wages a week or the amount of $50 a week, whichever amount is [lesser] less. Notwithstanding the limitation imposed by this subsection,
an injured worker who is not otherwise eligible to receive an increase in
benefits for the fiscal year in which compensation is paid shall have the
benefits increased each fiscal year by the percentage which the applicable
average weekly wage has increased since the previous fiscal year.
(2)(a) For the purpose of this section, the weekly wage of
workers shall be ascertained:
(A) For workers employed
in one job at the time of injury, by multiplying the daily wage the worker was
receiving by the number of days per week that the worker was regularly
employed[.]; or
(B) For workers employed
in more than one job at the time of injury, by adding all earnings the worker
was receiving from all subject employment.
(b) Notwithstanding
paragraph (a)(B) of this subsection, the weekly wage calculated under paragraph
(a)(A) of this subsection shall be used for workers employed in more than one
job at the time of injury unless, within 30 days of receipt of the initial
claim, the insurer, self-insured employer or assigned claims agent for a
noncomplying employer receives notice that the worker was employed in more than
one job with a subject employer at the time of injury and receives verifiable
documentation of wages from such additional employment.
(c) Notwithstanding ORS
656.005 (7)(c), an injury to a worker employed in more than one job at the time
of injury is not disabling if no temporary disability benefits are payable for
time lost from the job at injury. Claim costs incurred as a result of
supplemental temporary disability benefits paid as provided in subsection (5)
of this section may not be included in any data used for ratemaking or individual
employer rating or dividend calculations by a guaranty contract insurer, a
rating organization licensed pursuant to ORS chapter 737, the State Accident
Insurance Fund Corporation or the Department of Consumer and Business Services
if the injured worker is not eligible for permanent disability benefits or
temporary disability benefits for time lost from the job at injury.
[(b)] (d) For the purpose of this section:
(A) The benefits of a worker who incurs an injury shall be
based on the wage of the worker at the time of injury.
(B) The benefits of a worker who incurs an occupational
disease shall be based on the wage of the worker at the time there is medical
verification that the worker is unable to work because of the disability caused
by the occupational disease. If the worker is not working at the time that
there is medical verification that the worker is unable to work because of the
disability caused by the occupational disease, the benefits shall be based on
the wage of the worker at the worker’s last regular employment.
[(c)] (e) As used in this subsection,
“regularly employed” means actual employment or availability for such
employment. For workers not regularly employed and for workers with no
remuneration or whose remuneration is not based solely upon daily or weekly
wages, the Director of the Department of Consumer and Business Services, by
rule, may prescribe methods for establishing the worker’s weekly wage.
(3) No disability payment is recoverable for temporary
total or partial disability suffered during the first three calendar days after
the worker leaves work or loses wages as a result of the compensable injury
unless the worker is totally disabled after the injury and the total disability
continues for a period of 14 consecutive days or unless the worker is admitted
as an inpatient to a hospital within 14 days of the first onset of total
disability. If the worker leaves work or loses wages on the day of the injury
due to the injury, that day shall be considered the first day of the three-day
period.
(4) When an injured worker with an accepted disabling
compensable injury is required to leave work for a period of four hours or more
to receive medical consultation, examination or treatment with regard to the
compensable injury, the worker shall receive temporary disability benefits
calculated pursuant to ORS 656.212 for the period during which the worker is
absent, until such time as the worker is determined to be medically stationary.
However, benefits under this subsection are not payable if wages are paid for
the period of absence by the employer.
(5)(a) The insurer
of the employer at injury or the self-insured employer at injury, may elect to
be responsible for payment of supplemental temporary disability benefits to a
worker employed in more than one job at the time of injury. In accordance with
rules adopted by the director, if the worker’s weekly wage is determined under
subsection (2)(a)(B) of this section, the insurer or self-insured employer
shall be reimbursed from the Workers’ Benefit Fund for the amount of temporary
disability benefits paid that exceeds the amount payable pursuant to subsection
(2)(a)(A) of this section had the worker been employed in only one job at the
time of injury. Such reimbursement shall include an administrative fee payable
to the insurer or self-insured employer pursuant to rules adopted by the
director.
(b) If the insurer or
self-insured employer elects not to pay the supplemental temporary disability
benefits for a worker employed in more than job at the time of injury, the
director shall either pay the supplemental benefits directly or shall assign responsibility
to process the payment to a paying agent selected by the director.
SECTION 4.
ORS 656.804 is amended to read:
656.804. Subject to
ORS 656.005 (24) and 656.266 (2), an occupational disease, as defined in
ORS 656.802, is considered an injury for employees of employers who have come
under this chapter, except as otherwise provided in ORS 656.802 to 656.807.
SECTION 5.
ORS 656.605 is amended to read:
656.605. (1) The Workers’ Benefit Fund is created in the
State Treasury, separate and distinct from the General Fund. Moneys in the fund
shall be invested in the same manner as other state moneys and investment
earnings shall be credited to the fund. The fund shall consist of the
following:
(a) Moneys received pursuant to ORS 656.506.
(b) Moneys recovered under ORS 656.054.
(c) Fines and penalties recovered under ORS 656.735.
(d) All moneys received by the Director of the Department
of Consumer and Business Services pursuant to law or from any other source for
purposes for which the fund may be expended.
(2) Moneys in the Workers’ Benefit Fund may be expended for
the following purposes:
(a) Expenses of programs under ORS 656.506, 656.622, 656.625,
656.628 and 656.630.
(b) Proceedings against noncomplying employers pursuant to
ORS 656.054 and 656.735.
(c) Expenses of vocational assistance on claims, the cost
of which was imposed pursuant to section 15, chapter 600, Oregon Laws 1985.
(d) Payment of
supplemental temporary disability benefits for workers employed in more than
one job at the time of injury and reimbursement of the costs of administering
payments resulting from elections by insurers and self-insured employers as
provided by ORS 656.210 (5).
(e) Payments made to
injured workers pursuant to section 6a of this 2001 Act.
(3) Subject to the following provisions, all moneys in the
fund are appropriated continuously to the Director of the Department of
Consumer and Business Services to carry out the activities for which the fund
may be expended:
(a) Moneys received pursuant to ORS 656.054 and 656.735 and
transfers made pursuant to ORS 705.148 may be expended only to carry out the
provisions of ORS 656.054 and 656.735 and section 15, chapter 600, Oregon Laws
1985.
(b) Moneys received pursuant to ORS 656.506 and the
transfers of unexpended and unobligated moneys in the Retroactive Reserve,
Reemployment Assistance Reserve, Reopened Claims Reserve and Handicapped
Workers Reserve referred to in ORS 656.506, 656.622, 656.625 and 656.628 (All
1993 Edition) may be expended only to carry out the programs referred to in ORS
656.506, 656.622, 656.625, 656.628 and 656.630.
(4) Notwithstanding any other provision of this chapter, if
the director determines at any time that there are insufficient moneys in the
Workers’ Benefit Fund to pay the expenses of programs for which expenditure of
the fund is authorized, the director may reduce the level of benefits payable
accordingly.
SECTION 6.
ORS 656.214 is amended to read:
656.214. (1) As used in this section:
(a) “Loss” includes permanent and complete or partial loss
of use.
(b) “Permanent partial disability” means the loss of either
one arm, one hand, one leg, one foot, loss of hearing in one or both ears, loss
of one eye, one or more fingers, or any other injury known in surgery to be
permanent partial disability.
(2) When permanent partial disability results from an
injury, the criteria for the rating of disability shall be the permanent loss
of use or function of the injured member due to the industrial injury. The
worker shall receive [$454] $511.29 for each degree stated against
such disability in subsections (2) to (4) of this section as follows:
(a) For the loss of one arm at or above the elbow joint,
192 degrees, or a proportion thereof for losses less than a complete loss.
(b) For the loss of one forearm at or above the wrist
joint, or the loss of one hand, 150 degrees, or a proportion thereof for losses
less than a complete loss.
(c) For the loss of one leg, at or above the knee joint,
150 degrees, or a proportion thereof for losses less than a complete loss.
(d) For the loss of one foot, 135 degrees, or a proportion
thereof for losses less than a complete loss.
(e) For the loss of a great toe, 18 degrees, or a
proportion thereof for losses less than a complete loss; of any other toe, four
degrees, or a proportion thereof for losses less than a complete loss.
(f) For partial or complete loss of hearing in one ear,
that percentage of 60 degrees which the loss bears to normal monaural hearing.
(g) For partial or complete loss of hearing in both ears,
that proportion of 192 degrees which the combined binaural hearing loss bears
to normal combined binaural hearing. For the purpose of this paragraph,
combined binaural hearing loss shall be calculated by taking seven times the
hearing loss in the less damaged ear plus the hearing loss in the more damaged
ear and dividing that amount by eight. In the case of individuals with
compensable hearing loss involving both ears, either the method of calculation
for monaural hearing loss or that for combined binaural hearing loss shall be
used, depending upon which allows the greater award of disability.
(h) For partial or complete loss of vision of one eye, that
proportion of 100 degrees which the loss of monocular vision bears to normal
monocular vision. For the purposes of this paragraph, the term “normal
monocular vision” shall be considered as Snellen 20/20 for distance and Snellen
14/14 for near vision with full sensory field.
(i) For partial loss of vision in both eyes, that
proportion of 300 degrees which the combined binocular visual loss bears to
normal combined binocular vision. In all cases of partial loss of sight, the
percentage of said loss shall be measured with maximum correction. For the
purpose of this paragraph, combined binocular visual loss shall be calculated
by taking three times the visual loss in the less damaged eye plus the visual
loss in the more damaged eye and dividing that amount by four. In the case of
individuals with compensable visual loss involving both eyes, either the method
of calculation for monocular visual loss or that for combined binocular visual
loss shall be used, depending upon which allows the greater award of disability.
(j) For the loss of a thumb, 48 degrees, or a proportion
thereof for losses less than a complete loss.
(k) For the loss of a first finger, 24 degrees, or a
proportion thereof for losses less than a complete loss; of a second finger, 22
degrees, or a proportion thereof for losses less than a complete loss; of a
third finger, 10 degrees, or a proportion thereof for losses less than a
complete loss; of a fourth finger, 6 degrees, or a proportion thereof for
losses less than a complete loss.
(3) The loss of one phalange of a thumb, including the
adjacent epiphyseal region of the proximal phalange, is considered equal to the
loss of one-half of a thumb. The loss of one phalange of a finger, including
the adjacent epiphyseal region of the middle phalange, is considered equal to
the loss of one-half of a finger. The loss of two phalanges of a finger,
including the adjacent epiphyseal region of the proximal phalange of a finger,
is considered equal to the loss of 75 percent of a finger. The loss of more
than one phalange of a thumb, excluding the epiphyseal region of the proximal
phalange, is considered equal to the loss of an entire thumb. The loss of more
than two phalanges of a finger, excluding the epiphyseal region of the proximal
phalange of a finger, is considered equal to the loss of an entire finger. A
proportionate loss of use may be allowed for an uninjured finger or thumb where
there has been a loss of effective opposition.
(4) A proportionate loss of the hand may be allowed where
disability extends to more than one digit, in lieu of ratings on the individual
digits.
(5) In all cases of injury resulting in permanent partial
disability, other than those described in subsections (2) to (4) of this
section, the criteria for rating of disability shall be the permanent loss of
earning capacity due to the compensable injury. Earning capacity is to be
calculated using the standards specified in ORS 656.726 (4)(f). The number of
degrees of disability shall be a maximum of 320 degrees determined by the
extent of the disability compared to the worker before such injury and without
such disability.
(6) For injuries for which the disability is determined
pursuant to subsection (5) of this section, the worker shall receive an amount
equal to:
(a) When the number of degrees stated against the
disability is equal to or less than 64, [$137.80] $153.00 times the number of degrees.
(b) When the number of degrees stated against the
disability is more than 64 but equal to or less than 160, [$137.80] $153.00times 64
plus [$243.80] $267.44 times the number of degrees in excess of 64.
(c) When the number of degrees stated against the
disability is more than 160, [$137.80]
$153.00 times 64 plus [$243.80] $267.44 times 96 plus [$662.50] $709.79 times the number of degrees in
excess of 160.
(7) All permanent disability contemplates future waxing and
waning of symptoms of the condition. The results of waxing and waning of
symptoms may include, but are not limited to, loss of earning capacity, periods
of temporary total or temporary partial disability, or inpatient
hospitalization.
SECTION 6a.
(1) Workers injured between January 1,
2000, and the effective date of this 2001 Act who were awarded permanent
partial disability benefits before the effective date of this 2001 Act shall be
paid by the Director of the Department of Consumer and Business Services from
the Workers’ Benefit Fund an amount equal to the amount that benefits
calculated pursuant to section 6b of this 2001 Act are less than the benefits
calculated pursuant to ORS 656.214, as amended by section 6 of this 2001 Act.
(2) The amendments to
ORS 656.214 by section 6 of this 2001 Act may not be applied to the benefits
awarded to any injured worker during the period beginning January 1, 2000, and
ending on the effective date of this 2001 Act in such a manner as to reduce the
benefits awarded to that worker pursuant to section 6b of this 2001 Act.
SECTION 6b.
(1) Notwithstanding any other provision
of this chapter, for injuries occurring in the period beginning January 1,
2000, and ending on the effective date of this 2001 Act, and for which awards
have been made during that period, the worker shall receive an amount equal to:
(a) When the number of
degrees stated against the disability as provided in ORS 656.214 (6) is equal
to or less than 64, $153.00 times the number of degrees.
(b) When the number of
degrees stated against the disability as provided in ORS 656.214 (6) is more
than 64 but equal to or less than 160, $267.44 times 64 plus $153.00 times the
number of degrees in excess of 64.
(c) When the number of
degrees stated against the disability as provided in ORS 656.214 (6) is more
than 160, $153.00 times 64 plus $267.44 times 96 plus $709.79 times the number
of degrees in excess of 160.
(2) Notwithstanding any
other provision of this chapter, for injuries occurring in the period beginning
January 1, 2000, and ending on the effective date of this 2001 Act, and for
which awards are made after the effective date of this 2001 Act, the worker
shall receive payments as provided in ORS 656.214, as amended by section 6 of
this 2001 Act.
SECTION 6c.
(1) Notwithstanding the method of
calculating permanent partial disability benefit amounts provided in ORS
656.214 (2), for injuries occurring during the period beginning January 1,
2002, and ending December 31, 2004, the worker shall receive $559.00 for each
degree stated against the disability as provided in ORS 656.214 (2) to (4).
(2) Notwithstanding the
method of calculating permanent partial disability benefit amounts provided in
ORS 656.214 (6), for injuries occurring during the period beginning January 1,
2002, and ending December 31, 2004, the worker shall receive an amount equal
to:
(a) When the number of
degrees stated against the disability as provided in ORS 656.214 (6) is equal
to or less than 64, $184.00 times the number of degrees.
(b) When the number of
degrees stated against the disability as provided in ORS 656.214 (6) is more
than 64 but equal to or less than 160, $184.00 times 64 plus $321.00 times the
number of degrees in excess of 64.
(c) When the number of
degrees stated against the disability as provided in ORS 656.214 (6) is more
than 160, $184.00 times 64 plus $321.00 times 96 plus $748.00 times the number
of degrees in excess of 160.
(3) Benefits referred to
in this section shall be paid on the basis of the benefit amount in effect on
the date of injury.
SECTION 7.
ORS 656.262 is amended to read:
656.262. (1) Processing of claims and providing
compensation for a worker shall be the responsibility of the insurer or
self-insured employer. All employers shall assist their insurers in processing
claims as required in this chapter.
(2) The compensation due under this chapter shall be paid
periodically, promptly and directly to the person entitled thereto upon the
employer’s receiving notice or knowledge of a claim, except where the right to
compensation is denied by the insurer or self-insured employer.
(3)(a) Employers shall, immediately and not later than five
days after notice or knowledge of any claims or accidents which may result in a
compensable injury claim, report the same to their insurer. The report shall
include:
(A) The date, time, cause and nature of the accident and
injuries.
(B) Whether the accident arose out of and in the course of
employment.
(C) Whether the employer recommends or opposes acceptance
of the claim, and the reasons therefor.
(D) The name and address of any health insurance provider
for the injured worker.
(E) Any other details the insurer may require.
(b) Failure to so report subjects the offending employer to
a charge for reimbursing the insurer for any penalty the insurer is required to
pay under subsection (11) of this section because of such failure. As used in
this subsection, “health insurance” has the meaning for that term provided in
ORS 731.162.
(4)(a) The first installment of temporary disability
compensation shall be paid no later than the 14th day after the subject
employer has notice or knowledge of the claim, if the attending physician
authorizes the payment of temporary disability compensation. Thereafter,
temporary disability compensation shall be paid at least once each two weeks,
except where the Director of the Department of Consumer and Business Services
determines that payment in installments should be made at some other interval.
The director may by rule convert monthly benefit schedules to weekly or other
periodic schedules.
(b) Notwithstanding any other provision of this chapter, if
a self-insured employer pays to an injured worker who becomes disabled the same
wage at the same pay interval that the worker received at the time of injury,
such payment shall be deemed timely payment of temporary disability payments
pursuant to ORS 656.210 and 656.212 during the time the wage payments are made.
(c) Notwithstanding any other provision of this chapter,
when the holder of a public office is injured in the course and scope of that
public office, full official salary paid to the holder of that public office
shall be deemed timely payment of temporary disability payments pursuant to ORS
656.210 and 656.212 during the time the wage payments are made. As used in this
subsection, “public office” has the meaning for that term provided in ORS
260.005.
(d) Temporary disability compensation is not due and
payable for any period of time for which the insurer or self-insured employer
has requested from the worker’s attending physician verification of the
worker’s inability to work resulting from the claimed injury or disease and the
physician cannot verify the worker’s inability to work, unless the worker has
been unable to receive treatment for reasons beyond the worker’s control.
(e) If a worker fails to appear at an appointment with the
worker’s attending physician, the insurer or self-insured employer shall notify
the worker by certified mail that temporary disability benefits may be
suspended after the worker fails to appear at a rescheduled appointment. If the
worker fails to appear at a rescheduled appointment, the insurer or
self-insured employer may suspend payment of temporary disability benefits to
the worker until the worker appears at a subsequent rescheduled appointment.
(f) If the insurer or self-insured employer has requested
and failed to receive from the worker’s attending physician verification of the
worker’s inability to work resulting from the claimed injury or disease,
medical services provided by the attending physician are not compensable until
the attending physician submits such verification.
(g) Temporary disability compensation is not due and
payable pursuant to ORS 656.268 after the worker’s attending physician ceases
to authorize temporary disability or for any period of time not authorized by
the attending physician. No authorization of temporary disability compensation
by the attending physician under ORS 656.268 shall be effective to
retroactively authorize the payment of temporary disability more than 14 days
prior to its issuance.
(h) The worker’s disability may be authorized only by a
person described in ORS 656.005 (12)(b)(B) or 656.245 (5) for the period of
time permitted by those sections. The insurer or self-insured employer may
unilaterally suspend payment of temporary disability benefits to the worker at
the expiration of the period until temporary disability is reauthorized by an
attending physician.
(i) The insurer or self-insured employer may unilaterally
suspend payment of all compensation to a worker enrolled in a managed care
organization if the worker continues to seek care from an attending physician
not authorized by the managed care organization more than seven days after the
mailing of notice by the insurer or self-insured employer.
(5) Payment of compensation under subsection (4) of this
section or payment, in amounts not to exceed $500 per claim, for medical
services for nondisabling claims, may be made by the subject employer if the
employer so chooses. The making of such payments does not constitute a waiver
or transfer of the insurer’s duty to determine entitlement to benefits. If the
employer chooses to make such payment, the employer shall report the injury to
the insurer in the same manner that other injuries are reported. However, an
insurer shall not modify an employer’s experience rating or otherwise make
charges against the employer for any medical expenses paid by the employer
pursuant to this subsection.
(6)(a) Written notice of acceptance or denial of the claim
shall be furnished to the claimant by the insurer or self-insured employer
within [90] 60 days after the employer has notice or knowledge of the claim.
Once the claim is accepted, the insurer or self-insured employer shall not
revoke acceptance except as provided in this section. The insurer or
self-insured employer may revoke acceptance and issue a denial at any time when
the denial is for fraud, misrepresentation or other illegal activity by the
worker. If the worker requests a hearing on any revocation of acceptance and
denial alleging fraud, misrepresentation or other illegal activity, the insurer
or self-insured employer has the burden of proving, by a preponderance of the
evidence, such fraud, misrepresentation or other illegal activity. Upon such
proof, the worker then has the burden of proving, by a preponderance of the
evidence, the compensability of the claim. If the insurer or self-insured
employer accepts a claim in good faith, in a case not involving fraud,
misrepresentation or other illegal activity by the worker, and later obtains
evidence that the claim is not compensable or evidence that the insurer or
self-insured employer is not responsible for the claim, the insurer or
self-insured employer may revoke the claim acceptance and issue a formal notice
of claim denial, if such revocation of acceptance and denial is issued no later
than two years after the date of the initial acceptance. If the worker requests
a hearing on such revocation of acceptance and denial, the insurer or
self-insured employer must prove, by a preponderance of the evidence, that the
claim is not compensable or that the insurer or self-insured employer is not
responsible for the claim. Notwithstanding any other provision of this chapter,
if a denial of a previously accepted claim is set aside by an Administrative
Law Judge, the Workers’ Compensation Board or the court, temporary total
disability benefits are payable from the date any such benefits were terminated
under the denial. Except as provided in
section 14 of this 2001 Act, pending acceptance or denial of a claim,
compensation payable to a claimant does not include the costs of medical
benefits or burial expenses. The insurer shall also furnish the employer a copy
of the notice of acceptance.
(b) The notice of acceptance shall:
(A) Specify what conditions are compensable.
(B) Advise the claimant whether the claim is considered
disabling or nondisabling.
(C) Inform the claimant of the Expedited Claim Service and
of the hearing and aggravation rights concerning nondisabling injuries,
including the right to object to a decision that the injury of the claimant is
nondisabling by requesting reclassification pursuant to ORS 656.277.
(D) Inform the claimant of employment reinstatement rights
and responsibilities under ORS chapter 659.
(E) Inform the claimant of assistance available to
employers from the Reemployment Assistance Program under ORS 656.622.
(F) Be modified by the insurer or self-insured employer
from time to time as medical or other information changes a previously issued
notice of acceptance.
(c) An insurer’s or self-insured employer’s acceptance of a
combined or consequential condition under ORS 656.005 (7), whether voluntary or
as a result of a judgment or order, shall not preclude the insurer or
self-insured employer from later denying the combined or consequential
condition if the otherwise compensable injury ceases to be the major contributing
cause of the combined or consequential condition.
(d) An injured worker who believes that a condition has
been incorrectly omitted from a notice of acceptance, or that the notice is
otherwise deficient, first must communicate in writing to the insurer or
self-insured employer the worker’s objections to the notice pursuant to section 10 of this 2001 Act. The insurer or
self-insured employer has [30] 60 days from receipt of the
communication from the worker to revise the notice or to make other written
clarification in response. A worker who fails to comply with the communication
requirements of this paragraph or
section 10 of this 2001 Act may not allege at any hearing or other
proceeding on the claim a de facto denial of a condition based on information
in the notice of acceptance from the insurer or self-insured employer.
Notwithstanding any other provision of this chapter, the worker may initiate
objection to the notice of acceptance at any time.
(7)(a) After claim acceptance, written notice of acceptance
or denial of claims for aggravation or new medical or omitted [conditions] condition claims properly initiated
pursuant to section 10 of this 2001 Act shall be furnished to the claimant
by the insurer or self-insured employer within [90] 60 days after the
insurer or self-insured employer receives written notice of such claims. [New medical condition claims must clearly
request formal written acceptance of the condition and are not made by the
receipt of a medical claim billing for the provision of, or requesting
permission to provide, medical treatment for the new condition. The worker must
clearly request formal written acceptance of any new medical condition from the
insurer or self-insured employer. The insurer or self-insured employer is not required
to accept each and every diagnosis or medical condition with particularity, so
long as the acceptance tendered reasonably apprises the claimant and medical
providers of the nature of the compensable conditions. Notwithstanding any
other provision of this chapter, the worker may initiate a new medical
condition claim at any time.] A
worker who fails to comply with the communication requirements of subsection
(6) of this section or section 10 of this 2001 Act may not allege at any
hearing or other proceeding on the claim a de facto denial of a condition based
on information in the notice of acceptance from the insurer or self-insured
employer.
(b) Once a worker’s claim has been accepted, the insurer or
self-insured employer must issue a written denial to the worker when the
accepted injury is no longer the major contributing cause of the worker’s
combined condition before the claim may be closed.
(c) When an insurer or self-insured employer determines
that the claim qualifies for claim closure, the insurer or self-insured
employer shall issue at claim closure an updated notice of acceptance that
specifies which conditions are compensable. The procedures specified in
subsection (6)(d) of this section apply to this notice. Any objection to the
updated notice or appeal of denied conditions shall not delay claim closure
pursuant to ORS 656.268. If a condition is found compensable after claim
closure, the insurer or self-insured employer shall reopen the claim for
processing regarding that condition.
(8) The assigned claims agent in processing claims under
ORS 656.054 shall send notice of acceptance or denial to the noncomplying
employer.
(9) If an insurer or any other duly authorized agent of the
employer for such purpose, on record with the Director of the Department of
Consumer and Business Services denies a claim for compensation, written notice
of such denial, stating the reason for the denial, and informing the worker of
the Expedited Claim Service and of hearing rights under ORS 656.283, shall be
given to the claimant. A copy of the notice of denial shall be mailed to the
director and to the employer by the insurer. The worker may request a hearing
pursuant to ORS 656.319.
(10) Merely paying or providing compensation shall not be
considered acceptance of a claim or an admission of liability, nor shall mere
acceptance of such compensation be considered a waiver of the right to question
the amount thereof. Payment of permanent disability benefits pursuant to a
notice of closure, reconsideration order or litigation order, or the failure to
appeal or seek review of such an order or notice of closure, shall not preclude
an insurer or self-insured employer from subsequently contesting the
compensability of the condition rated therein, unless the condition has been
formally accepted.
(11)(a) If the insurer or self-insured employer
unreasonably delays or unreasonably refuses to pay compensation, or
unreasonably delays acceptance or denial of a claim, the insurer or
self-insured employer shall be liable for an additional amount up to 25 percent
of the amounts then due. Notwithstanding any other provision of this chapter,
the director shall have exclusive jurisdiction over proceedings regarding
solely the assessment and payment of the additional amount described in this
subsection. The entire additional amount shall be paid to the worker if the
worker is not represented by an attorney. If the worker is represented by an
attorney, the worker shall be paid one-half the additional amount and the
worker’s attorney shall receive one-half the additional amount, in lieu of an
attorney fee. The director’s action and review thereof shall be subject to ORS
183.310 to 183.550 and such other procedural rules as the director may
prescribe.
(b) When the director does not have exclusive jurisdiction
over proceedings regarding the assessment and payment of the additional amount
described in this subsection, the provision for attorney fees provided in this
subsection shall apply in the other proceeding.
(12) The insurer may authorize an employer to pay
compensation to injured workers and shall reimburse employers for compensation
so paid.
(13) Insurers and self-insured employers shall report every
claim for disabling injury to the director within 21 days after the date the
employer has notice or knowledge of such injury.
(14) Injured workers have the duty to cooperate and assist
the insurer or self-insured employer in the investigation of claims for
compensation. Injured workers shall submit to and shall fully cooperate with
personal and telephonic interviews and other formal or informal information
gathering techniques. Injured workers who are represented by an attorney shall
have the right to have the attorney present during any personal or telephonic
interview or deposition. However, if the attorney is not willing or available
to participate in an interview at a time reasonably chosen by the insurer or
self-insured employer within 14 days of the request for interview and the
insurer or self-insured employer has cause to believe that the attorney’s
unwillingness or unavailability is unreasonable and is preventing the worker
from complying within 14 days of the request for interview, the insurer or
self-insured employer shall notify the director. If the director determines
that the attorney’s unwillingness or unavailability is unreasonable, the
director shall assess a civil penalty against the attorney of not more than
$1,000.
(15) If the director finds that a worker fails to
reasonably cooperate with an investigation involving an initial claim to
establish a compensable injury or an aggravation claim to reopen the claim for
a worsened condition, the director shall suspend all or part of the payment of
compensation after notice to the worker. If the worker does not cooperate for
an additional 30 days after the notice, the insurer or self-insured employer
may deny the claim because of the worker’s failure to cooperate. The obligation
of the insurer or self-insured employer to accept or deny the claim within [90] 60
days is suspended during the time of the worker’s noncooperation. After such a
denial, the worker shall not be granted a hearing or other proceeding under
this chapter on the merits of the claim unless the worker first requests and
establishes at an expedited hearing under ORS 656.291 that the worker fully and
completely cooperated with the investigation, that the worker failed to
cooperate for reasons beyond the worker’s control or that the investigative
demands were unreasonable. If the Administrative Law Judge finds that the
worker has not fully cooperated, the Administrative Law Judge shall affirm the
denial, and the worker’s claim for injury shall remain denied. If the
Administrative Law Judge finds that the worker has cooperated, or that the
investigative demands were unreasonable, the Administrative Law Judge shall set
aside the denial, order the reinstatement of interim compensation if
appropriate and remand the claim to the insurer or self-insured employer to
accept or deny the claim.
SECTION 8.
ORS 656.308 is amended to read:
656.308. (1) When a worker sustains a compensable injury,
the responsible employer shall remain responsible for future compensable
medical services and disability relating to the compensable condition unless
the worker sustains a new compensable injury involving the same condition. If a
new compensable injury occurs, all further compensable medical services and
disability involving the same condition shall be processed as a new injury
claim by the subsequent employer. The standards for determining the
compensability of a combined condition under ORS 656.005 (7) shall also be used
to determine the occurrence of a new compensable injury or disease under this
section.
(2)(a) Any insurer or self-insured employer who disputes
responsibility for a claim shall so indicate in or as part of a denial
otherwise meeting the requirements of ORS 656.262 issued in the [90]
60 days allowed for processing of the claim. The denial shall advise the
worker to file separate, timely claims against other potentially responsible
insurers or self-insured employers, including other insurers for the same
employer, in order to protect the right to obtain benefits on the claim. The
denial may list the names and addresses of other insurers or self-insured
employers. Such denials shall be final unless the worker files a timely request
for hearing pursuant to ORS 656.319. All such requests for hearing shall be
consolidated into one proceeding.
(b) No insurer or self-insured employer, including other
insurers for the same employer, shall be joined to any workers’ compensation
hearing unless the worker has first filed a timely, written claim against that
insurer or self-insured employer, or the insurer or self-insured employer has
consented to issuance of an order designating a paying agent pursuant to ORS
656.307. An insurer or self-insured employer against whom a claim is filed may
contend that responsibility lies with another insurer or self-insured employer,
including another insurer for the same employer, regardless of whether the
worker has filed a claim against that insurer or self-insured employer.
(c) Upon written notice by an insurer or self-insured
employer filed not more than 28 days or less than 14 days before the hearing,
the Administrative Law Judge shall dismiss that party from the proceeding if
the record does not contain substantial evidence to support a finding of
responsibility against that party. The Administrative Law Judge shall decide
such motions and inform the parties not less than seven days prior to the hearing,
or postpone the hearing.
(d) Notwithstanding ORS 656.382 (2), 656.386 and 656.388, a
reasonable attorney fee shall be awarded to the injured worker for the
appearance and active and meaningful participation by an attorney in finally
prevailing against a responsibility denial. Such a fee shall not exceed $1,000
absent a showing of extraordinary circumstances.
(3) A worker who is a party to an approved disputed claim
settlement agreement under ORS 656.289 (4) may not subsequently file a claim
against an insurer or a self-insured employer who is a party to the agreement
with regard to claim conditions settled in the agreement even if other insurers
or employers disclaim responsibility for those claim conditions. A worker who
is a party to an approved claim disposition agreement under ORS 656.236 (1) may
not subsequently file a claim against an insurer or a self-insured employer who
is a party to the agreement with regard to any matter settled in the agreement
even if other insurers or employers disclaim responsibility for those claim
conditions, unless the claim in the subsequent proceeding is limited to a claim
for medical services for claim conditions settled in the agreement.
SECTION 9.
ORS 656.386 is amended to read:
656.386. (1)(a) In all cases involving denied claims where
a claimant finally prevails against the denial in an appeal to the Court of
Appeals or petition for review to the Supreme Court, the court shall allow a
reasonable attorney fee to the claimant’s attorney. In such cases involving denied
claims where the claimant prevails finally in a hearing before an
Administrative Law Judge or in a review by the Workers’ Compensation Board,
then the Administrative Law Judge or board shall allow a reasonable attorney
fee. In such cases involving denied claims where an attorney is instrumental in
obtaining a rescission of the denial prior to a decision by the Administrative
Law Judge, a reasonable attorney fee shall be allowed.
(b) For purposes of this section, a “denied claim” is:
(A) A claim for compensation which an insurer or
self-insured employer refuses to pay on the express ground that the injury or
condition for which compensation is claimed is not compensable or otherwise
does not give rise to an entitlement to any compensation;
(B) A claim for compensation for a condition omitted from a
notice of acceptance, made pursuant to ORS 656.262 (6)(d), which the insurer or
self-insured employer does not respond to within [30] 60 days; or
(C) A claim for an aggravation made pursuant to ORS 656.273 (2) or for a new medical condition[,]
made pursuant to [ORS 656.262 (7)(a),]
section 10 of this 2001 Act, which
the insurer or self-insured employer does not respond to within [90]
60 days.
(c) A denied claim shall not be presumed or implied from an
insurer’s or self-insured employer’s failure to pay compensation for a
previously accepted injury or condition in timely fashion. Attorney fees
provided for in this subsection shall be paid by the insurer or self-insured
employer.
(2) In all other cases, attorney fees shall be paid from
the increase in the claimant’s compensation, if any, except as otherwise
expressly provided in this chapter.
SECTION 10.
(1) To initiate omitted medical
condition claims under ORS 656.262 (6)(d) or new medical condition claims under
this section, the worker must clearly request formal written acceptance of a
new medical condition or an omitted medical condition from the insurer or
self-insured employer. A claim for a new medical condition or an omitted
condition is not made by the receipt of medical billings, nor by requests for
authorization to provide medical services for the new or omitted condition, nor
by actually providing such medical services. The insurer or self-insured
employer is not required to accept each and every diagnosis or medical
condition with particularity, as long as the acceptance tendered reasonably
apprises the claimant and the medical providers of the nature of the
compensable conditions. Notwithstanding any other provision of this chapter,
the worker may initiate a new medical or omitted condition claim at any time.
(2) Claims properly
initiated for new medical conditions and omitted medical conditions related to
an initially accepted claim shall be processed pursuant to ORS 656.262.
(3) Notwithstanding
subsection (2) of this section, claims for new medical or omitted medical
conditions related to an initially accepted claim that are initiated after the
rights under ORS 656.273 have expired shall be processed as requests for relief
under the Workers’ Compensation Board’s own motion jurisdiction pursuant to ORS
656.278 (1)(b).
SECTION 11.
ORS 656.278 is amended to read:
656.278. (1) Except as provided in subsection [(6)] (7) of this section, the power and jurisdiction of the Workers’
Compensation Board shall be continuing, and it may, upon its own motion, from
time to time modify, change or terminate former findings, orders or awards if
in its opinion such action is justified in those cases in which:
(a) There is a worsening of a compensable injury that results in the inability of the worker to
work and requires [either] hospitalization or inpatient or
outpatient surgery, or other curative treatment [requiring] prescribed in lieu of hospitalization that is necessary to enable the injured worker to return to work.
In such cases, [the board may authorize]
the payment of temporary disability compensation in accordance with ORS 656.210, 656.212 (2) and 656.262 (4) may be
provided from the time [the worker is
actually hospitalized or undergoes outpatient surgery] the attending physician authorizes temporary disability compensation
for the hospitalization, surgery or other curative treatment until the
worker’s condition becomes medically stationary[, as determined by the board]; [or]
(b) The worker
submits and obtains acceptance of a claim for a compensable new medical
condition or an omitted medical condition pursuant to section 10 of this 2001
Act and the claim is initiated after the rights under ORS 656.273 have expired.
In such cases, the payment of temporary disability compensation in accordance
with the provisions of ORS 656.210, 656.212 (2) and 656.262 (4) may be provided
from the time the attending physician authorizes temporary disability
compensation for the hospitalization, surgery or other curative treatment until
the worker’s condition becomes medically stationary, and the payment of
permanent disability benefits may be provided after application of the
standards for the evaluation and determination of disability as may be adopted
by the Director of the Department of Consumer and Business Services pursuant to
ORS 656.726; or
[(b)] (c) The date of injury is earlier than
January 1, 1966. In such cases, in addition to the payment of temporary
disability compensation, the [board may
authorize] payment of medical benefits
may be provided.
(2) Benefits provided under subsection (1) of this section:
(a) Do not include vocational
assistance benefits under ORS 656.340;
(b) Do not include
temporary disability compensation for periods of time during which the claimant
did not qualify as a “worker” pursuant to ORS 656.005 (30);
(c) Do not include
medical services provided pursuant to ORS 656.245 except as provided under
subsection (1)(c) of this section; and
(d) May include
permanent disability benefits for additional impairment to an injured body part
that has previously been the basis of a permanent partial disability award, but
only to the extent that the permanent partial disability rating exceeds the permanent
partial disability rated by the prior award or awards.
(3) An order or award made by the board during the time
within which the claimant has the right to request a hearing on aggravation
under ORS 656.273 is not an order or award, as the case may be, made by the
board on its own motion.
(4) The claimant has no right to appeal any order or award
made by the board on its own motion, except when the order diminishes or
terminates a former award. The employer may appeal from an order which
increases the award.
(5) The insurer or self-insured employer may voluntarily
reopen any claim to provide benefits allowable
under this section or to grant
additional medical or hospital care to the claimant. The board shall establish procedures for the resolution of disputes
arising out of a voluntary reopening of a claim under this section.
(6) Any claim reopened
under this section shall be closed by the insurer or self-insured employer in a
manner prescribed by the board, including, when appropriate, an award of
permanent disability benefits as determined under subsections (1)(b) and (2)(d)
of this section. The board shall also prescribe a process to be followed if the
worker objects to the claim closure.
[(6)] (7) The provisions of this section do
not authorize the board, on its own motion, to modify, change or terminate
former findings or orders:
(a) That a claimant incurred no injury or incurred a
noncompensable injury; or
(b) Approving disposition of a claim under ORS 656.236 or
656.289 (4).
SECTION 11a.
ORS 656.625 is amended to read:
656.625. (1) There is established a Reopened Claims Program
for the purpose of reimbursing the additional amounts of compensation payable
to injured workers that results from any award made by the Workers’
Compensation Board or voluntary claim
reopening pursuant to ORS 656.278 after January 1, 1988.
(2) Notwithstanding any other provision of law, any
reimbursement from the Workers’ Benefit Fund for the purposes of the Reopened
Claims Program shall be in such amounts [as
the board prescribes] payable to an
injured worker pursuant to ORS 656.278and only to the extent that moneys
are available in the fund as determined by the Director of the Department of
Consumer and Business Services.
(3) The director, by rule, shall prescribe the form and
manner of requesting reimbursement under this section, the amount payable and
such other matters as may be necessary for the administration of this section.
SECTION 12.
ORS 656.268 is amended to read:
656.268. (1) One purpose of this chapter is to restore the
injured worker as soon as possible and as near as possible to a condition of
self support and maintenance as an able-bodied worker. The insurer or
self-insured employer shall close the worker’s claim, as prescribed by the
Director of the Department of Consumer and Business Services, and determine the
extent of the worker’s permanent disability, provided the worker is not
enrolled and actively engaged in training according to rules adopted by the
director pursuant to ORS 656.340 and 656.726, when:
(a) The worker has become medically stationary and there is
sufficient information to determine permanent impairment;
(b) The accepted injury is no longer the major contributing
cause of the worker’s combined or consequential condition or conditions
pursuant to ORS 656.005 (7). When the claim is closed because the accepted
injury is no longer the major contributing cause of the worker’s combined or
consequential condition or conditions, and there is sufficient information to
determine permanent impairment, the likely impairment and adaptability that
would have been due to the current accepted condition shall be estimated; or
(c) Without the approval of the attending physician, the
worker fails to seek medical treatment for a period of 30 days or the worker
fails to attend a closing examination, unless the worker affirmatively
establishes that such failure is attributable to reasons beyond the worker’s
control.
(2) If the worker is enrolled and actively engaged in
training according to rules adopted pursuant to ORS 656.340 and 656.726, the
temporary disability compensation shall be proportionately reduced by any sums
earned during the training.
(3) A copy of all medical reports and reports of vocational
rehabilitation agencies or counselors shall be furnished to the worker and to
the employer, if requested by the worker or employer.
(4) Temporary total disability benefits shall continue
until whichever of the following events first occurs:
(a) The worker returns to regular or modified employment;
(b) The attending physician advises the worker and
documents in writing that the worker is released to return to regular
employment;
(c) The attending physician advises the worker and
documents in writing that the worker is released to return to modified
employment, such employment is offered in writing to the worker and the worker
fails to begin such employment. However,
an offer of modified employment may be refused by the worker without the
termination of temporary total disability benefits if the offer:
(A) Requires a commute
that is beyond the physical capacity of the worker according to the worker’s
attending physician;
(B) Is at a work site
more than 50 miles one way from where the worker was injured unless the site is
less than 50 miles from the worker’s residence or the intent of the parties at
the time of hire or as established by the pattern of employment prior to the
injury was that the employer had multiple or mobile work sites and the worker
could be assigned to any such site;
(C) Is not with the
employer at injury;
(D) Is not at a work
site of the employer at injury;
(E) Is not consistent
with the existing written shift change policy or is not consistent with common
practice of the employer at injury or aggravation; or
(F) Is not consistent
with an existing shift change provision of an applicable collective bargaining
agreement;
or
(d) Any other event that causes temporary disability
benefits to be lawfully suspended, withheld or terminated under ORS 656.262 (4)
or other provisions of this chapter.
(5)(a) Findings by the insurer or self-insured employer
regarding the extent of the worker’s disability in closure of the claim shall
be pursuant to the standards prescribed by the Director of the Department of
Consumer and Business Services. The insurer or self-insured employer shall issue
a notice of closure of such a claim to the worker, to the worker’s attorney if
the worker is represented, and to the director. The notice must inform:
(A) The parties, in boldfaced type, of the proper manner in
which to proceed if they are dissatisfied with the terms of the notice;
(B) The worker of the amount of any further compensation,
including permanent disability compensation to be awarded; of the duration of
temporary total or temporary partial disability compensation; of the right of
the worker to request reconsideration by the director under this section within
60 days of the date of the notice of claim closure; of the aggravation rights;
and of such other information as the director may require; and
(C) Any beneficiaries of death benefits to which they may
be entitled pursuant to ORS 656.204 and 656.208.
(b) If the worker has returned to work but the insurer or
self-insured employer has not issued a notice of closure, the worker may
request closure. Within 10 days of receipt of a written request from the
worker, the insurer or self-insured employer shall issue a notice of closure if
the requirements of this section have been met or a notice of refusal to close
if the requirements of this section have not been met. A notice of refusal to
close shall advise the worker of the decision not to close; of the right of the
worker to request a hearing pursuant to ORS 656.283 within 60 days of the date
of the notice of refusal to close the claim; of the right to be represented by
an attorney; and of such other information as the director may require.
(c) If a worker objects to the notice of closure, the
worker first must request reconsideration by the director under this section.
The request for reconsideration must be made within 60 days of the date of the
notice of closure.
(d) If an insurer or self-insured employer has closed a
claim or refused to close a claim pursuant to this section, if the correctness
of that notice of closure or refusal to close is at issue in a hearing on the
claim and if a finding is made at the hearing that the notice of closure or
refusal to close was not reasonable, a penalty shall be assessed against the
insurer or self-insured employer and paid to the worker in an amount equal to
25 percent of all compensation determined to be then due the claimant.
(e) If, upon reconsideration of a claim closed by an
insurer or self-insured employer, the director orders an increase by 25 percent
or more of the amount of compensation to be paid to the worker for either a
scheduled or unscheduled permanent disability and the worker is found upon
reconsideration to be at least 20 percent permanently disabled, a penalty shall
be assessed against the insurer or self-insured employer and paid to the worker
in an amount equal to 25 percent of all compensation determined to be then due
the claimant. If the increase in compensation results from new information
obtained through a medical arbiter examination or from the adoption of a
temporary emergency rule, the penalty shall not be assessed.
(6)(a) Notwithstanding any other provision of law, only one
reconsideration proceeding may be held on each notice of closure. At the
reconsideration proceeding[,]:
(A) A deposition
arranged by the worker, limited to the testimony and cross-examination of the
worker about the worker’s condition at the time of claim closure, shall become
part of the reconsideration record. The deposition must be conducted subject to
the opportunity for cross-examination by the insurer or self-insured employer
and in accordance with rules adopted by the director. The cost of the court
reporter and one original of the transcript of the deposition for the
Department of Consumer and Business Services and one copy of the transcript of
the deposition for each party shall be paid by the insurer or self-insured
employer. The reconsideration proceeding may not be postponed to receive a
deposition taken under this subparagraph. A deposition taken in accordance with
this subparagraph may be received as evidence at a hearing even if the deposition
is not prepared in time for use in the reconsideration proceeding.
(B) Pursuant to rules
adopted by the director, the worker or the insurer or self-insured employer may correct
information in the record that is erroneous and may submit any medical evidence
that should have been but was not submitted by the attending physician at the
time of claim closure.
(C) If the
director determines that a claim was not closed in accordance with subsection
(1) of this section, the director may rescind the closure.
(b) If necessary, the director may require additional
medical or other information with respect to the claims and may postpone the
reconsideration for not more than 60 additional calendar days.
(c) In any reconsideration proceeding under this section in
which the worker was represented by an attorney, the director shall order the
insurer or self-insured employer to pay to the attorney, out of the additional
compensation awarded, an amount equal to 10 percent of any additional
compensation awarded to the worker.
(d) The reconsideration proceeding shall be completed
within 18 working days from the date the reconsideration proceeding begins, and
shall be performed by a special evaluation appellate unit within the
department. The deadline of 18 working days may be postponed by an additional
60 calendar days if within the 18 working days the department mails notice of
review by a medical arbiter. If an order on reconsideration has not been mailed
on or before 18 working days from the date the reconsideration proceeding
begins, or within 18 working days plus the additional 60 calendar days where a
notice for medical arbiter review was timely mailed or the director postponed
the reconsideration pursuant to paragraph (b) of this subsection, or within
such additional time as provided in subsection (7) of this section when
reconsideration is postponed further because the worker has failed to cooperate
in the medical arbiter examination, reconsideration shall be deemed denied and
any further proceedings shall occur as though an order on reconsideration
affirming the notice of closure was mailed on the date the order was due to
issue.
(e) The period for completing the reconsideration
proceeding described in paragraph (d) of this subsection begins upon receipt by
the director of a worker’s request for reconsideration pursuant to subsection
(5)(c) of this section. The insurer may fully participate in the
reconsideration proceeding.
(f) Any medical arbiter report may be received as evidence
at a hearing even if the report is not prepared in time for use in the
reconsideration proceeding.
(g) If any party objects to the reconsideration order, the
party may request a hearing under ORS 656.283 within 30 days from the date of
the reconsideration order.
(7)(a) If the basis for objection to a notice of closure
issued under this section is disagreement with the impairment used in rating of
the worker’s disability, the director shall refer the claim to a medical
arbiter appointed by the director.
(b) If neither party requests a medical arbiter and the
director determines that insufficient medical information is available to
determine disability, the director may refer the claim to a medical arbiter
appointed by the director.
(c) At the request of either of the parties, a panel of three
medical arbiters shall be appointed.
(d) The arbiter, or panel of medical arbiters, shall be
chosen from among a list of physicians qualified to be attending physicians
referred to in ORS 656.005 (12)(b)(A) who were selected by the director in
consultation with the Board of Medical Examiners for the State of Oregon and
the committee referred to in ORS 656.790.
(e)(A) The medical arbiter or panel of medical arbiters may
examine the worker and perform such tests as may be reasonable and necessary to
establish the worker’s impairment.
(B) If the director determines that the worker failed to
attend the examination without good cause or failed to cooperate with the
medical arbiter, or panel of medical arbiters, the director shall postpone the
reconsideration proceedings for up to 60 days from the date of the
determination that the worker failed to attend or cooperate, and shall suspend
all disability benefits resulting from this or any prior opening of the claim
until such time as the worker attends and cooperates with the examination or
the request for reconsideration is withdrawn. Any additional evidence regarding
good cause must be submitted prior to the conclusion of the 60-day postponement
period.
(C) At the conclusion of the 60-day postponement period, if
the worker has not attended and cooperated with a medical arbiter examination
or established good cause, there shall be no further opportunity for the worker
to attend a medical arbiter examination for this claim closure. The
reconsideration record shall be closed, and the director shall issue an order
on reconsideration based upon the existing record.
(D) All disability benefits suspended pursuant to this
subsection, including all disability benefits awarded in the order on
reconsideration, or by an Administrative Law Judge, the Workers’ Compensation
Board or upon court review, shall not be due and payable to the worker.
(f) The costs of examination and review by the medical
arbiter or panel of medical arbiters shall be paid by the insurer or self-insured
employer.
(g) The findings of the medical arbiter or panel of medical
arbiters shall be submitted to the director for reconsideration of the notice
of closure.
(h) After reconsideration, no subsequent medical evidence
of the worker’s impairment is admissible before the director, the Workers’
Compensation Board or the courts for purposes of making findings of impairment
on the claim closure.
(i)(A) When the basis for objection to a notice of closure
issued under this section is a disagreement with the impairment used in rating
the worker’s disability, and the director determines that the closure was not
made pursuant to this section, the director is not required to appoint a
medical arbiter prior to the completion of the reconsideration proceeding.
(B) If the worker’s condition has substantially changed
since the notice of closure, upon the consent of all the parties to the claim,
the director shall postpone the proceeding until the worker’s condition is
appropriate for claim closure under subsection (1) of this section.
(8) No hearing shall be held on any issue that was not
raised and preserved before the director at reconsideration. However, issues
arising out of the reconsideration order may be addressed and resolved at
hearing.
(9) If, after the notice of closure issued pursuant to this
section, the worker becomes enrolled and actively engaged in training according
to rules adopted pursuant to ORS 656.340 and 656.726, any permanent disability
payments due under the closure shall be suspended, and the worker shall receive
temporary disability compensation while the worker is enrolled and actively
engaged in the training. When the worker ceases to be enrolled and actively
engaged in the training, the insurer or self-insured employer shall again close
the claim pursuant to this section if the worker is medically stationary or if
the worker’s accepted injury is no longer the major contributing cause of the
worker’s combined or consequential condition or conditions pursuant to ORS
656.005 (7). The closure shall include the duration of temporary total or
temporary partial disability compensation. Permanent disability compensation
shall be redetermined for unscheduled disability only. If the worker has
returned to work or the worker’s attending physician has released the worker to
return to regular or modified employment, the insurer or self-insured employer
shall again close the claim. This notice of closure may be appealed only in the
same manner as are other notices of closure under this section.
(10) If the attending physician has approved the worker’s
return to work and there is a labor dispute in progress at the place of
employment, the worker may refuse to return to that employment without loss of
reemployment rights or any vocational assistance provided by this chapter.
(11) Any notice of closure made under this section may
include necessary adjustments in compensation paid or payable prior to the
notice of closure, including disallowance of permanent disability payments
prematurely made, crediting temporary disability payments against current or
future permanent or temporary disability awards or payments and requiring the
payment of temporary disability payments which were payable but not paid.
(12) An insurer or self-insured employer may take a credit
or offset of previously paid workers’ compensation benefits or payments against
any further workers’ compensation benefits or payments due a worker from that
insurer or self-insured employer when the worker admits to having obtained the
previously paid benefits or payments through fraud, or a civil judgment or
criminal conviction is entered against the worker for having obtained the
previously paid benefits through fraud. Benefits or payments obtained through
fraud by a worker shall not be included in any data used for ratemaking or
individual employer rating or dividend calculations by a guaranty contract
insurer, a rating organization licensed pursuant to ORS chapter 737, the State
Accident Insurance Fund Corporation or the director.
(13)(a) An insurer or self-insured employer may offset any
compensation payable to the worker to recover an overpayment from a claim with
the same insurer or self-insured employer. When overpayments are recovered from
temporary disability or permanent total disability benefits, the amount
recovered from each payment shall not exceed 25 percent of the payment, without
prior authorization from the worker.
(b) An insurer or self-insured employer may suspend and
offset any compensation payable to the beneficiary of the worker, and recover
an overpayment of permanent total disability benefits caused by the failure of
the worker’s beneficiaries to notify the insurer or self-insured employer about
the death of the worker.
(14) Conditions that are direct medical sequelae to the
original accepted condition shall be included in rating permanent disability of
the claim unless they have been specifically denied.
SECTION 13.
ORS 656.325 is amended to read:
656.325. (1)(a) Any worker entitled to receive compensation
under this chapter is required, if requested by the Director of the Department
of Consumer and Business Services, the insurer or self-insured employer, to
submit to a medical examination at a time reasonably convenient for the worker
as may be provided by the rules of the director. However, no more than three
examinations may be requested except after notification to and authorization by
the director. If the worker refuses to submit to any such examination, or
obstructs the same, the rights of the worker to compensation shall be suspended
with the consent of the director until the examination has taken place, and no
compensation shall be payable during or for account of such period. The
provisions of this paragraph are subject to the limitations on medical
examinations provided in ORS 656.268.
(b) If the worker
has made a timely request for a hearing on a denial of compensability as
required by ORS 656.319 (1)(a) that is based on one or more reports of
examinations conducted pursuant to paragraph (a) of this subsection and the
worker’s attending physician does not concur with the report or reports, the
worker may request an examination to be conducted by a physician selected by
the director from the list described in ORS 656.268 (7)(d). The cost of the
examination and the examination report shall be paid by the insurer or
self-insured employer.
[(b)] (c) The insurer or self-insured
employer shall pay the costs of the medical examination and related services
which are reasonably necessary to allow the worker to submit to any examination
requested under this section. As used in this subsection, “related services”
includes, but is not limited to, child care, travel, meals, lodging and an
amount equivalent to the worker’s net lost wages for the period during which
the worker is absent if the worker does not receive benefits pursuant to ORS
656.210 (4) during the period of absence. A claim for “related services”
described in this section shall be made in the manner prescribed by the
director.
(2) For any period of time during which any worker commits
insanitary or injurious practices which tend to either imperil or retard
recovery of the worker, or refuses to submit to such medical or surgical
treatment as is reasonably essential to promote recovery, or fails to
participate in a program of physical rehabilitation, the right of the worker to
compensation shall be suspended with the consent of the director and no payment
shall be made for such period. The period during which such worker would
otherwise be entitled to compensation may be reduced with the consent of the
director to such an extent as the disability has been increased by such
refusal.
(3) A worker who has received an award for unscheduled
permanent total or unscheduled partial disability should be encouraged to make
a reasonable effort to reduce the disability; and the award shall be subject to
periodic examination and adjustment in conformity with ORS 656.268.
(4) When the employer of an injured worker, or the
employer’s insurer determines that the injured worker has failed to follow
medical advice from the attending physician or has failed to participate in or
complete physical restoration or vocational rehabilitation programs prescribed
for the worker pursuant to this chapter, the employer or insurer may petition
the director for reduction of any benefits awarded the worker. Notwithstanding
any other provision of this chapter, if the director finds that the worker has
failed to accept treatment as provided in this subsection, the director may
reduce any benefits awarded the worker by such amount as the director considers
appropriate.
[(5) Notwithstanding
ORS 656.268:]
(5)(a) Except as provided by ORS 656.268 (4)(c)
and (10), an insurer or self-insured employer shall cease making payments
pursuant to ORS 656.210 and shall commence making payment of such amounts as
are due pursuant to ORS 656.212 when an injured worker refuses wage earning
employment prior to claim determination and the worker’s attending physician,
after being notified by the employer of the specific duties to be performed by
the injured worker, agrees that the injured worker is capable of performing the
employment offered.
(b) If the worker has been terminated for violation of work
rules or other disciplinary reasons, the insurer or self-insured employer shall
cease payments pursuant to ORS 656.210 and commence payments pursuant to ORS
656.212 when the attending physician approves employment in a modified job that
would have been offered to the worker if the worker had remained employed,
provided that the employer has a written policy of offering modified work to
injured workers.
(c) If the worker is a person present in the United States
in violation of federal immigration laws, the insurer or self-insured employer
shall cease payments pursuant to ORS 656.210 and commence payments pursuant to
ORS 656.212 when the attending physician approves employment in a modified job
whether or not such a job is available.
(6) Any party may request a hearing on any dispute under
this section pursuant to ORS 656.283.
SECTION 13a.
ORS 656.313 is amended to read:
656.313. (1)(a) Filing by an employer or the insurer of a
request for hearing on a reconsideration order before the Hearings Division, a
request for Workers’ Compensation Board review or court appeal or request for
review of an order of the Director of the Department of Consumer and Business
Services regarding vocational assistance stays payment of the compensation
appealed, except for:
(A) Temporary disability benefits that accrue from the date
of the order appealed from until closure under ORS 656.268, or until the order
appealed from is itself reversed, whichever event first occurs;
(B) Permanent total disability benefits that accrue from
the date of the order appealed from until the order appealed from is reversed;
(C) Death benefits payable to a surviving spouse prior to
remarriage, to children or dependents that accrue from the date of the order
appealed from until the order appealed from is reversed; and
(D) Vocational benefits for services for vocational
evaluation and help in directly obtaining employment as provided by ORS 656.340
(7) and for services related to the development of plans for return to work, as
provided by ORS 656.340 (9). No plan for return to work may be implemented
until the vocational order on appeal has become final.
(b) If ultimately found payable under a final order,
benefits withheld under this subsection shall accrue interest at the rate
provided in ORS 82.010 from the date of the order appealed from through the
date of payment. The board shall expedite review of appeals in which payment of
compensation has been stayed under this section.
(2) If the board or court subsequently orders that
compensation to the claimant should not have been allowed or should have been
awarded in a lesser amount than awarded, the claimant shall not be obligated to
repay any such compensation which was paid pending the review or appeal.
(3) If an insurer or self-insured employer denies the
compensability of all or any portion of a claim submitted for medical services,
the insurer or self-insured employer shall send notice of the denial to each
provider of such medical services and to any provider of health insurance for
the injured worker. Except for medical
services payable in accordance with section 14 of this 2001 Act, after
receiving notice of the denial, a medical service provider may submit medical
reports and bills for the disputed medical services to the provider of health
insurance for the injured worker. The health insurance provider shall pay all
such bills in accordance with the limits, terms and conditions of the policy.
If the injured worker has no health insurance, such bills may be submitted to
the injured worker. A provider of disputed medical services shall make no
further effort to collect disputed medical service bills from the injured
worker until the issue of compensability of the medical services has been
finally determined.
(4) Except for
medical services payable in accordance with section 14 of this 2001 Act:
(a) When the compensability issue has been finally
determined or when disposition or settlement of the claim has been made
pursuant to ORS 656.236 or 656.289 (4), the insurer or self-insured employer
shall notify each affected service provider and health insurance provider of
the results of the disposition or settlement.
(b) If the services are determined to be compensable, the
insurer or self-insured employer shall reimburse each health insurance provider
for the amount of claims paid by the health insurance provider pursuant to this
section. Such reimbursement shall be in addition to compensation or medical
benefits the worker receives. Medical service reimbursement shall be paid
directly to the health insurance provider.
(c) If the services are settled pursuant to ORS 656.289
(4), the insurer or self-insured employer shall reimburse, out of the
settlement proceeds, each medical service provider for billings received by the
insurer or self-insured employer on and before the date on which the terms of
settlement are agreed as specified in the settlement document that are not
otherwise partially or fully reimbursed.
(d) Reimbursement under this section shall be made only for
medical services related to the claim that would be compensable under this
chapter if the claim were compensable and shall be made at one-half the amount
provided under ORS 656.248. In no event shall reimbursement made to medical
service providers exceed 40 percent of the total present value of the
settlement amount, except with the consent of the worker. If the settlement
proceeds are insufficient to allow each medical service provider the
reimbursement amount authorized under this subsection, the insurer or
self-insured employer shall reduce each provider’s reimbursement by the same
proportional amount. Reimbursement under this section shall not prevent a
medical service provider or health insurance provider from recovering the
balance of amounts owing for such services directly from the worker.
(5) As used in this section, “health insurance” has the meaning
for that term provided in ORS 731.162.
SECTION 14.
(1) Except for medical services provided
to workers subject to ORS 656.245 (4)(b)(B), payment for medical services
provided to a subject worker in response to an initial claim for a work-related
injury or occupational disease from the date of the employer’s notice or
knowledge of the claim until the date the claim is accepted or denied shall be
payable in accordance with subsection (4) of this section if the expenses are
for:
(a) Diagnostic services
required to identify appropriate treatment or to prevent disability;
(b) Medication required
to alleviate pain; or
(c) Services required to
stabilize the worker’s claimed condition and to prevent further disability.
(2) Notwithstanding
subsection (1) of this section, no payment shall be due from the insurer or
self-insured employer if the insurer or self-insured employer denies the claim
within 14 days of the date of the employer’s notice or knowledge of the claim.
(3)(a) Disputes about
whether the medical services provided to treat the claimed work-related injury
or occupational disease under subsection (1) of this section are excessive,
inappropriate or ineffectual or are consistent with the criteria in subsection
(1) of this section shall be resolved by the Director of the Department of
Consumer and Business Services. The director may order a medical review by a
physician or panel of physicians pursuant to ORS 656.327 (3) to aid in the
review of such services. If a party is dissatisfied with the order of the
director, the dissatisfied party may request a contested case hearing before
the director pursuant to ORS 183.310 to 183.550 within 60 days of the date of
the director’s order. At the contested case hearing, the administrative order
may be modified only if it is not supported by substantial evidence in the
record or if it reflects an error of law.
(b) Disputes about the
amount of the fee or nonpayment of bills for medical treatment and services
pursuant to this section shall be resolved pursuant to ORS 656.248.
(c) Except as provided
in subsection (2) of this section, when a claim is settled pursuant to ORS
656.289 (4), all medical services payable under subsection (1) of this section
that are provided on or before the date of denial shall be paid in accordance
with subsection (4) of this section. The insurer or self-insured employer shall
notify each affected service provider of the results of the settlement.
(4)(a) If the claim in
which medical services are provided under subsection (1) of this section is
accepted, the insurer or self-insured employer shall make payment for such
medical services subject to the limitations and conditions of this chapter.
(b) If the claim in
which medical services are provided under subsection (1) of this section is
denied and a health benefit plan provides benefits to the worker, the health
benefit plan shall be the first payer of the expenses for medical services
according to the terms, conditions and benefits of the plan. Except as provided
by subsection (2) of this section, after payment by the health benefit plan,
the workers’ compensation insurer or self-insured employer shall pay any
balance remaining for such services subject to the limitations and conditions
of this chapter.
(c) As used in this
subsection, “health benefit plan” has the meaning given that term in ORS
743.730.
(5) An insurer or
self-insured employer may recover expenses for medical services paid under
subsection (1) of this section as an overpayment as provided by ORS 656.268
(13)(a).
SECTION 14a.
ORS 656.252 is amended to read:
656.252. (1) In order to ensure the prompt and correct
reporting and payment of compensation in compensable injuries, the Director of
the Department of Consumer and Business Services shall make rules governing
audits of medical service bills and reports by attending and consulting
physicians and other personnel of all medical information relevant to the
determination of a claim to the injured worker’s representative, the worker’s
employer, the employer’s insurer and the Department of Consumer and Business
Services. Such rules shall include, but not necessarily be limited to:
(a) Requiring attending physicians to make the insurer or
self-insured employer a first report of injury within [a specified time] 72 hours
after the first service rendered.
(b) Requiring attending physicians to submit follow-up
reports within specified time limits or upon the request of an interested
party.
(c) Requiring examining physicians to submit their reports,
and to whom, within a specified time.
(d) Such other reporting requirements as the director may
deem necessary to insure that payments of compensation be prompt and that all
interested parties be given information necessary to the prompt determination
of claims.
(e) Requiring insurers and self-insured employers to audit
billings for all medical services, including hospital services.
(2) The attending physician shall do the following:
(a) Cooperate with
the insurer or self-insured employer to expedite diagnostic and treatment procedures
and with efforts to return injured workers to appropriate work.
[(a)] (b) Advise the insurer or self-insured
employer of the anticipated date for release of the injured worker to return to
employment, the anticipated date that the worker will be medically stationary,
and the next appointment date. Except when the attending physician has
previously indicated that temporary disability will not exceed 14 days, the
insurer or self-insured employer may request a medical report every 15 days,
and the attending physician shall forward such reports.
[(b)] (c) Advise the insurer or self-insured
employer within five days of the date the injured worker is released to return
to work. Under no circumstances shall the physician notify the insurer or
employer of the worker’s release to return to work without notifying the worker
at the same time.
[(c)] (d) After a claim has been closed,
advise the insurer or self-insured employer within five days after the
treatment is resumed or the reopening of a claim is recommended. The attending
physician under this paragraph need not be the same attending physician who
released the worker when the claim was closed.
(3) In promulgating the rules regarding medical reporting
the director may consult and confer with physicians and members of medical
associations and societies.
(4) No person who reports medical information to a person
referred to in subsection (1) of this section, in accordance with department
rules, shall incur any legal liability for the disclosure of such information.
(5) Whenever an injured worker changes attending
physicians, the newly selected attending physician shall so notify the
responsible insurer or self-insured employer not later than five days after the
date of the change or the date of first treatment. Every attending physician
who refers a worker to a consulting physician promptly shall notify the
responsible insurer or self-insured employer of the referral.
(6) A provider of medical services, including hospital
services, that submits a billing to the insurer or self-insured employer shall
also submit a copy of the billing to the worker for whom the service was
performed after receipt from the injured worker of a written request for such a
copy.
SECTION 15.
(1)(a) An injured worker may pursue a
civil negligence action for a work-related injury that has been determined to
be not compensable because the worker has failed to establish that a
work-related incident was the major contributing cause of the worker’s injury
only after an order determining that the claim is not compensable has become
final. The injured worker may appeal the compensability of the claim as
provided in ORS 656.298, but may not pursue a civil negligence claim against
the employer until the order affirming the denial has become final.
(b) Nothing in this
subsection grants a right for a person to pursue a civil negligence action that
does not otherwise exist in law.
(2)(a) Notwithstanding
any other statute of limitation provided in law, a civil negligence action
against an employer that arises because a workers’ compensation claim has been
determined to be not compensable because the worker has failed to establish
that a work-related incident was the major contributing cause of the worker’s
injury must be commenced within the later of two years from the date of injury
or 180 days from the date the order affirming that the claim is not compensable
on such grounds becomes final.
(b) Notwithstanding
paragraph (a) of this subsection, a person may not commence a civil negligence
action for a work-related injury that has been determined to be not compensable
because the worker has failed to establish that a work-related incident was the
major contributing cause of the worker’s injury, if the period within which
such action may be commenced has expired prior to the filing of a timely
workers’ compensation claim for the work-related injury.
SECTION 15a.
To assist the Legislative Assembly in
developing a constitutionally adequate system of exclusive remedies for
workplace injuries, the Workers’ Compensation Management-Labor Advisory
Committee shall recommend to the Seventy-second Legislative Assembly an
exclusive, no-fault, expeditious alternative remedy to civil litigation for
injured workers who have established that their injuries were work-related but
whose claims have been denied because the workers have failed to establish that
work-related incidents were the major contributing cause of their injuries.
SECTION 15b.
(1) The Department of Consumer and
Business Services shall collect data and report to the Seventy-second
Legislative Assembly on civil negligence claims filed for a work-related injury
that has been determined to be not compensable under this chapter because the
injured worker has failed to establish that a work-related incident was the
major contributing cause of the worker’s injury. This information shall include
the number of claims filed, verdicts rendered, settlements reached and the
average cost of such claims, including litigation costs.
(2) Insurers and
self-insured employers shall assist the department in gathering such data.
SECTION 16.
Section 17 of this 2001 Act is added to
and made a part of ORS 654.305 to 654.335.
SECTION 17.
The provisions of ORS 18.470 to 18.490
apply to an action under ORS 654.305 to 654.335.
SECTION 18.
Section 17 of this 2001 Act applies only to actions under ORS 654.305 to
654.335 that are filed on or after January 1, 2002.
SECTION 19.
ORS 654.335 is repealed.
SECTION 19a.
Section 17 of this 2001 Act and the
repeal of ORS 654.335 by section 19 of this 2001 Act become operative on
January 1, 2002.
SECTION 20.
Sections 6a, 6b, 6c, 10, 14, 15 and 15b
of this 2001 Act are added to and made a part of ORS chapter 656.
SECTION 21.
Section 10 of this 2001 Act and the
amendments to ORS 656.278 and 656.625 by sections 11 and 11a of this 2001 Act
become operative on January 1, 2002.
SECTION 22.
(1) Section 14 of this 2001 Act and the
amendments to ORS 656.005, 656.210, 656.262, 656.266, 656.308, 656.313, 656.325
(5), 656.386, 656.605 and 656.804 by sections 1, 2, 3, 4, 5, 7, 8, 9, 13 and
13a of this 2001 Act apply to all claims with a date of injury on or after
January 1, 2002.
(2) Section 10 of this
2001 Act and the amendments to ORS 656.278 and 656.625 by sections 11 and 11a
of this 2001 Act apply to all claims regardless of date of injury.
(3) The amendments to
ORS 656.268 (6) by section 12 of this 2001 Act apply to any claim with a date
of closure on or after January 1, 2002.
(4) The amendments to
ORS 656.325 (1) by section 13 of this 2001 Act apply to any claim with a date
of denial on or after January 1, 2002.
SECTION 23.
Sections 3 (amending ORS 656.012), 4
(amending ORS 656.018) and 5, chapter 6, Oregon Laws 1999, are repealed.
SECTION 24.
This 2001 Act being necessary for the
immediate preservation of the public peace, health and safety, an emergency is
declared to exist, and this 2001 Act takes effect on its passage.
Approved by the Governor
July 30, 2001
Filed in the office of
Secretary of State July 30, 2001
Effective date July 30, 2001
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