71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
Senate Bill 485
Sponsored by COMMITTEE ON BUSINESS, LABOR, AND ECONOMIC
DEVELOPMENT (at the request of Senator Gene Derfler and
Governor John A. Kitzhaber, M.D., for Associated Oregon
Industries and Oregon AFL-CIO)
CHAPTER ................
AN ACT
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
Enrolled Senate Bill 485 (SB 485-B) Page 1
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
Enrolled Senate Bill 485 (SB 485-B) Page 2
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.
Enrolled Senate Bill 485 (SB 485-B) Page 3
(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.
Enrolled Senate Bill 485 (SB 485-B) Page 4
(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.
Enrolled Senate Bill 485 (SB 485-B) Page 5
(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.
Enrolled Senate Bill 485 (SB 485-B) Page 6
(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).
Enrolled Senate Bill 485 (SB 485-B) Page 7
(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
Enrolled Senate Bill 485 (SB 485-B) Page 8
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.
Enrolled Senate Bill 485 (SB 485-B) Page 9
(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 - }
{ + $153.00 + } times 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
Enrolled Senate Bill 485 (SB 485-B) Page 10
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.
Enrolled Senate Bill 485 (SB 485-B) Page 11
(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
Enrolled Senate Bill 485 (SB 485-B) Page 12
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.
Enrolled Senate Bill 485 (SB 485-B) Page 13
(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
Enrolled Senate Bill 485 (SB 485-B) Page 14
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
Enrolled Senate Bill 485 (SB 485-B) Page 15
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
Enrolled Senate Bill 485 (SB 485-B) Page 16
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:
Enrolled Senate Bill 485 (SB 485-B) Page 17
(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
Enrolled Senate Bill 485 (SB 485-B) Page 18
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.
Enrolled Senate Bill 485 (SB 485-B) Page 19
(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 656.278 + } and 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,
Enrolled Senate Bill 485 (SB 485-B) Page 20
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
Enrolled Senate Bill 485 (SB 485-B) Page 21
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.
Enrolled Senate Bill 485 (SB 485-B) Page 22
{ + (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.
Enrolled Senate Bill 485 (SB 485-B) Page 23
(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
Enrolled Senate Bill 485 (SB 485-B) Page 24
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
Enrolled Senate Bill 485 (SB 485-B) Page 25
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
Enrolled Senate Bill 485 (SB 485-B) Page 26
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
Enrolled Senate Bill 485 (SB 485-B) Page 27
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
Enrolled Senate Bill 485 (SB 485-B) Page 28
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
Enrolled Senate Bill 485 (SB 485-B) Page 29
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.
Enrolled Senate Bill 485 (SB 485-B) Page 30
(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. + }
Enrolled Senate Bill 485 (SB 485-B) Page 31
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. + }
----------
Passed by Senate March 22, 2001
Repassed by Senate July 5, 2001
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House July 4, 2001
...........................................................
Speaker of House
Enrolled Senate Bill 485 (SB 485-B) Page 32
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled Senate Bill 485 (SB 485-B) Page 33