72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
SA to HB 3669
LC 3811/HB 3669-1
SENATE AMENDMENTS TO
HOUSE BILL 3669
By COMMITTEE ON RULES
August 23
On page 1 of the printed bill, line 3, delete '656.273,'.
On page 10, delete lines 14 through 20 and insert:
' (C) Notwithstanding subparagraphs (A) and (B) of this
paragraph, a nurse practitioner licensed under ORS 678.375 to
678.390 may:
' (i) Provide compensable medical services for 90 days from the
date of the first visit on the claim;
' (ii) Authorize the payment of temporary disability benefits
for a period not to exceed 60 days from the date of the first
visit on the initial claim; and'.
In line 26, after the period insert 'If a worker returns to the
nurse practitioner after initial claim closure for evaluation of
a possible worsening of the worker's condition, the nurse
practitioner shall refer the worker to an attending physician and
the insurer shall compensate the nurse practitioner for the
examination performed.'.
On page 12, delete lines 12 through 45 and delete pages 13 and
14.
On page 15, delete lines 1 through 37 and insert:
' { + SECTION 4. + } ORS 656.245, as amended by section 3 of
this 2003 Act, is amended to read:
' 656.245. (1)(a) For every compensable injury, the insurer or
the self-insured employer shall cause to be provided medical
services for conditions caused in material part by the injury for
such period as the nature of the injury or the process of the
recovery requires, subject to the limitations in ORS 656.225,
including such medical services as may be required after a
determination of permanent disability. In addition, for
consequential and combined conditions described in ORS 656.005
(7), the insurer or the self-insured employer shall cause to be
provided only those medical services directed to medical
conditions caused in major part by the injury.
' (b) Compensable medical services shall include medical,
surgical, hospital, nursing, ambulances and other related
services, and drugs, medicine, crutches and prosthetic
appliances, braces and supports and where necessary, physical
restorative services. A pharmacist or dispensing physician shall
dispense generic drugs to the worker in accordance with ORS
689.515. The duty to provide such medical services continues for
the life of the worker.
' (c) Notwithstanding any other provision of this chapter,
medical services after the worker's condition is medically
stationary are not compensable except for the following:
' (A) Services provided to a worker who has been determined to
be permanently and totally disabled.
' (B) Prescription medications.
' (C) Services necessary to administer prescription medication
or monitor the administration of prescription medication.
' (D) Prosthetic devices, braces and supports.
' (E) Services necessary to monitor the status, replacement or
repair of prosthetic devices, braces and supports.
' (F) Services provided pursuant to an accepted claim for
aggravation under ORS 656.273.
' (G) Services provided pursuant to an order issued under ORS
656.278.
' (H) Services that are necessary to diagnose the worker's
condition.
' (I) Life-preserving modalities similar to insulin therapy,
dialysis and transfusions.
' (J) With the approval of the insurer or self-insured
employer, palliative care that the worker's attending physician
referred to in ORS 656.005 (12)(b)(A) prescribes and that is
necessary to enable the worker to continue current employment or
a vocational training program. If the insurer or self-insured
employer does not approve, the attending physician or the worker
may request approval from the Director of the Department of
Consumer and Business Services for such treatment. 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
treatment. The decision of the director is subject to the
contested case and review provisions of ORS 183.310 to 183.550.
' (K) With the approval of the director, curative care arising
from a generally recognized, nonexperimental advance in medical
science since the worker's claim was closed that is highly likely
to improve the worker's condition and that is otherwise justified
by the circumstances of the claim. The decision of the director
is subject to the contested case and review provisions of ORS
183.310 to 183.550.
' (L) Curative care provided to a worker to stabilize a
temporary and acute waxing and waning of symptoms of the worker's
condition.
' (d) When the medically stationary date in a disabling claim
is established by the insurer or self-insured employer and is not
based on the findings of the attending physician, the insurer or
self-insured employer is responsible for reimbursement to
affected medical service providers for otherwise compensable
services rendered until the insurer or self-insured employer
provides written notice to the attending physician of the
worker's medically stationary status.
' (e) Except for services provided under a managed care
contract, out-of-pocket expense reimbursement to receive care
from the attending physician { - or nurse practitioner
authorized to provide compensable medical services under this
section - } shall not exceed the amount required to seek care
from an appropriate { - nurse practitioner or - } attending
physician of the same specialty who is in a medical community
geographically closer to the worker's home. For the purposes of
this paragraph, all physicians { - and nurse practitioners - }
within a metropolitan area are considered to be part of the same
medical community.
' (2)(a) The worker may choose an attending doctor { - , - }
{ + or + } physician { - or nurse practitioner - } within the
State of Oregon. The worker may choose the initial attending
physician { - or nurse practitioner - } and may subsequently
change attending physician { - or nurse practitioner - } two
times without approval from the director. If the worker
thereafter selects another attending physician { - or nurse
practitioner - } , the insurer or self-insured employer may
require the director's approval of the selection and, if
requested, the director shall determine with the advice of one or
more physicians, whether the selection by the worker shall be
approved. The decision of the director is subject to a contested
case review under ORS 183.310 to 183.550. The worker also may
choose an attending doctor or physician in another country or in
any state or territory or possession of the United States with
the prior approval of the insurer or self-insured employer.
' (b) A medical service provider who is not a member of a
managed care organization is subject to the following provisions:
' (A) A medical service provider who is not qualified to be an
attending physician may provide compensable medical service to an
injured worker for a period of 30 days from the date of injury or
occupational disease or for 12 visits, whichever first occurs,
without the authorization of an attending physician. Thereafter,
medical service provided to an injured worker without the written
authorization of an attending physician is not compensable.
' (B) A medical service provider who is not an attending
physician cannot authorize the payment of temporary disability
compensation. Except as otherwise provided in this chapter, only
the attending physician at the time of claim closure may make
findings regarding the worker's impairment for the purpose of
evaluating the worker's disability.
' { - (C) Notwithstanding subparagraphs (A) and (B) of this
paragraph, a nurse practitioner licensed under ORS 678.375 to
678.390 may: - }
' { - (i) Provide compensable medical services for 90 days
from the date of the first visit on the claim; - }
' { - (ii) Authorize the payment of temporary disability
benefits for a period not to exceed 60 days from the date of the
first visit on the initial claim; and - }
' { - (iii) When an injured worker treating with a nurse
practitioner authorized to provide compensable services under
this section becomes medically stationary within the 90-day
period in which the nurse practitioner is authorized to treat the
injured worker, shall refer the injured worker to a physician
qualified to be an attending physician as defined in ORS 656.005
for the purpose of making findings regarding the worker's
impairment for the purpose of evaluating the worker's disability.
If a worker returns to the nurse practitioner after initial claim
closure for evaluation of a possible worsening of the worker's
condition, the nurse practitioner shall refer the worker to an
attending physician and the insurer shall compensate the nurse
practitioner for the examination performed. - }
' (3) Notwithstanding any other provision of this chapter, the
director, by rule, upon the advice of the committee created by
ORS 656.794 and upon the advice of the professional licensing
boards of practitioners affected by the rule, may exclude from
compensability any medical treatment the director finds to be
unscientific, unproven, outmoded or experimental. The decision of
the director is subject to a contested case review under ORS
183.310 to 183.550.
' (4) Notwithstanding subsection (2)(a) of this section, when a
self-insured employer or the insurer of an employer contracts
with a managed care organization certified pursuant to ORS
656.260 for medical services required by this chapter to be
provided to injured workers:
' (a) Those workers who are subject to the contract shall
receive medical services in the manner prescribed in the
contract. Workers subject to the contract include those who are
receiving medical treatment for an accepted compensable injury or
occupational disease, regardless of the date of injury or
medically stationary status, on or after the effective date of
the contract. If the managed care organization determines that
the change in provider would be medically detrimental to the
worker, the worker shall not become subject to the contract until
the worker is found to be medically stationary, the worker
changes physicians { - or nurse practitioners, - } or the
managed care organization determines that the change in provider
is no longer medically detrimental, whichever event first occurs.
A worker becomes subject to the contract upon the worker's
receipt of actual notice of the worker's enrollment in the
managed care organization, or upon the third day after the notice
was sent by regular mail by the insurer or self-insured employer,
whichever event first occurs. A worker shall not be subject to a
contract after it expires or terminates without renewal. A worker
may continue to treat with the attending physician { - or nurse
practitioner authorized to provide compensable medical services
under this section - } under an expired or terminated managed
care organization contract if the physician { - or nurse
practitioner - } agrees to comply with the rules, terms and
conditions regarding services performed under any subsequent
managed care organization contract to which the worker is
subject. A worker shall not be subject to a contract if the
worker's primary residence is more than 100 miles outside the
managed care organization's certified geographical area. Each
such contract must comply with the certification standards
provided in ORS 656.260. However, a worker may receive immediate
emergency medical treatment that is compensable from a medical
service provider who is not a member of the managed care
organization. Insurers or self-insured employers who contract
with a managed care organization for medical services shall give
notice to the workers of eligible medical service providers and
such other information regarding the contract and manner of
receiving medical services as the director may prescribe.
Notwithstanding any provision of law or rule to the contrary, a
worker of a noncomplying employer is considered to be subject to
a contract between the State Accident Insurance Fund Corporation
as a processing agent or the assigned claims agent and a managed
care organization.
' (b)(A) For initial or aggravation claims filed after June 7,
1995, the insurer or self-insured employer may require an injured
worker, on a case-by-case basis, immediately to receive medical
services from the managed care organization.
' (B) If the insurer or self-insured employer gives notice that
the worker is required to receive treatment from the managed care
organization, the insurer or self-insured employer must guarantee
that any reasonable and necessary services so received, that are
not otherwise covered by health insurance, will be paid as
provided in ORS 656.248, even if the claim is denied, until the
worker receives actual notice of the denial or until three days
after the denial is mailed, whichever event first occurs. The
worker may elect to receive care from a primary care physician
{ - or nurse practitioner authorized to provide compensable
medical services under this section - } who agrees to the
conditions of ORS 656.260 (4)(g). However, guarantee of payment
is not required by the insurer or self-insured employer if this
election is made.
' (C) If the insurer or self-insured employer does not give
notice that the worker is required to receive treatment from the
managed care organization, the insurer or self-insured employer
is under no obligation to pay for services received by the worker
unless the claim is later accepted.
' (D) If the claim is denied, the worker may receive medical
services after the date of denial from sources other than the
managed care organization until the denial is reversed.
Reasonable and necessary medical services received from sources
other than the managed care organization after the date of claim
denial must be paid as provided in ORS 656.248 by the insurer or
self-insured employer if the claim is finally determined to be
compensable.
' (5) Notwithstanding any other provision of this chapter, the
director, by rule, shall authorize { + nurse practitioners
certified by the Oregon State Board of Nursing and + } physician
assistants licensed by the Board of Medical Examiners for the
State of Oregon who practice in areas served by Type A or Type B
rural hospitals described in ORS 442.470 to authorize the payment
of temporary disability compensation for injured workers for a
period not to exceed 30 days from the date of the first visit on
the claim. In addition, the director, by rule, may authorize such
{ + practitioners and + } assistants who practice in areas
served by a Type C rural hospital described in ORS 442.470 to
authorize such payment.
' { - (6) A nurse practitioner licensed under ORS 678.375 to
678.390 who is not a member of the managed care organization, is
authorized to provide the same level of services as a primary
care physician as established by ORS 656.260 (4), if at the time
the worker is enrolled in the managed care organization, the
nurse practitioner maintains the worker's medical records and
with whom the worker has a documented history of treatment, if
that nurse practitioner agrees to refer the worker to the managed
care organization for any specialized treatment, including
physical therapy, to be furnished by another provider that the
worker may require and if that nurse practitioner agrees to
comply with all the rules, terms and conditions regarding
services performed by the managed care organization. - }
' { - (7) - } { + (6) + } Subject to the provisions of ORS
656.704, if a claim for medical services is disapproved, the
injured worker, insurer or self-insured employer may request
administrative review by the director pursuant to ORS 656.260 or
656.327.'.
On page 28, line 24, after 'physician' insert 'or the nurse
practitioner who may authorize temporary disability under ORS
656.245'.
On page 31, lines 42 and 43, delete the boldfaced material.
On page 32, delete lines 31 through 45 and delete pages 33
through 38.
On page 39, delete lines 1 through 15 and insert:
' { + SECTION 12. + } ORS 656.268, as amended by section 11
of this 2003 Act, 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 { - or
nurse practitioner authorized to provide compensable medical
services under ORS 656.245 - } , the worker fails to seek medical
treatment for a period of 30 days or the worker fails to attend a
closing examination, unless the worker affirmatively establishes
that such failure is attributable to reasons beyond the worker's
control.
' (2) If the worker is enrolled and actively engaged in
training according to rules adopted pursuant to ORS 656.340 and
656.726, the temporary disability compensation shall be
proportionately reduced by any sums earned during the training.
' (3) A copy of all medical reports and reports of vocational
rehabilitation agencies or counselors shall be furnished to the
worker, if requested by the worker.
' (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 { - or nurse practitioner who
has authorized temporary disability benefits for the worker under
ORS 656.245 - } advises the worker and documents in writing that
the worker is released to return to regular employment;
' (c) The attending physician { - or nurse practitioner who
has authorized temporary disability benefits for the worker under
ORS 656.245 - } 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
{ - or the nurse practitioner who may authorize temporary
disability under ORS 656.245 - } ;
' (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 insurer or self-insured employer has not issued a
notice of closure, the worker may request closure. Within 10 days
of receipt of a written request from the worker, the insurer or
self-insured employer shall issue a notice of closure if the
requirements of this section have been met or a notice of refusal
to close if the requirements of this section have not been met. A
notice of refusal to close shall advise the worker of the
decision not to close; of the right of the worker to request a
hearing pursuant to ORS 656.283 within 60 days of the date of the
notice of refusal to close the claim; of the right to be
represented by an attorney; and of such other information as the
director may require.
' (c) If a worker objects to the notice of closure, the worker
first must request reconsideration by the director under this
section. The request for reconsideration must be made within 60
days of the date of the notice of closure.
' (d) If an insurer or self-insured employer has closed a claim
or refused to close a claim pursuant to this section, if the
correctness of that notice of closure or refusal to close is at
issue in a hearing on the claim and if a finding is made at the
hearing that the notice of closure or refusal to close was not
reasonable, a penalty shall be assessed against the insurer or
self-insured employer and paid to the worker in an amount equal
to 25 percent of all compensation determined to be then due the
claimant.
' (e) If, upon reconsideration of a claim closed by an insurer
or self-insured employer, the director orders an increase by 25
percent or more of the amount of compensation to be paid to the
worker for either a scheduled or unscheduled permanent disability
and the worker is found upon reconsideration to be at least 20
percent permanently disabled, a penalty shall be assessed against
the insurer or self-insured employer and paid to the worker in an
amount equal to 25 percent of all compensation determined to be
then due the claimant. If the increase in compensation results
from new information obtained through a medical arbiter
examination or from the adoption of a temporary emergency rule,
the penalty shall not be assessed.
' (6)(a) Notwithstanding any other provision of law, only one
reconsideration proceeding may be held on each notice of closure.
At the reconsideration proceeding:
' (A) A deposition arranged by the worker, limited to the
testimony and cross-examination of the worker about the worker's
condition at the time of claim closure, shall become part of the
reconsideration record. The deposition must be conducted subject
to the opportunity for cross-examination by the insurer or
self-insured employer and in accordance with rules adopted by the
director. The cost of the court reporter and one original of the
transcript of the deposition for the Department of Consumer and
Business Services and one copy of the transcript of the
deposition for each party shall be paid by the insurer or
self-insured employer. The reconsideration proceeding may not be
postponed to receive a deposition taken under this subparagraph.
A deposition taken in accordance with this subparagraph may be
received as evidence at a hearing even if the deposition is not
prepared in time for use in the reconsideration proceeding.
' (B) Pursuant to rules adopted by the director, the worker or
the insurer or self-insured employer may correct information in
the record that is erroneous and may submit any medical evidence
that should have been but was not submitted by the attending
physician { - or nurse practitioner authorized to provide
compensable medical services under ORS 656.245 - } at the time
of claim closure.
' (C) If the director determines that a claim was not closed in
accordance with subsection (1) of this section, the director may
rescind the closure.
' (b) If necessary, the director may require additional medical
or other information with respect to the claims and may postpone
the reconsideration for not more than 60 additional calendar
days.
' (c) In any reconsideration proceeding under this section in
which the worker was represented by an attorney, the director
shall order the insurer or self-insured employer to pay to the
attorney, out of the additional compensation awarded, an amount
equal to 10 percent of any additional compensation awarded to the
worker.
' (d) The reconsideration proceeding shall be completed within
18 working days from the date the reconsideration proceeding
begins, and shall be performed by a special evaluation appellate
unit within the department. The deadline of 18 working days may
be postponed by an additional 60 calendar days if within the 18
working days the department mails notice of review by a medical
arbiter. If an order on reconsideration has not been mailed on or
before 18 working days from the date the reconsideration
proceeding begins, or within 18 working days plus the additional
60 calendar days where a notice for medical arbiter review was
timely mailed or the director postponed the reconsideration
pursuant to paragraph (b) of this subsection, or within such
additional time as provided in subsection (7) of this section
when reconsideration is postponed further because the worker has
failed to cooperate in the medical arbiter examination,
reconsideration shall be deemed denied and any further
proceedings shall occur as though an order on reconsideration
affirming the notice of closure was mailed on the date the order
was due to issue.
' (e) The period for completing the reconsideration proceeding
described in paragraph (d) of this subsection begins upon receipt
by the director of a worker's request for reconsideration
pursuant to subsection (5)(c) of this section. The insurer may
fully participate in the reconsideration proceeding.
' (f) Any medical arbiter report may be received as evidence at
a hearing even if the report is not prepared in time for use in
the reconsideration proceeding.
' (g) If any party objects to the reconsideration order, the
party may request a hearing under ORS 656.283 within 30 days from
the date of the reconsideration order.
' (7)(a) If the basis for objection to a notice of closure
issued under this section is disagreement with the impairment
used in rating of the worker's disability, the director shall
refer the claim to a medical arbiter appointed by the director.
' (b) If neither party requests a medical arbiter and the
director determines that insufficient medical information is
available to determine disability, the director may refer the
claim to a medical arbiter appointed by the director.
' (c) At the request of either of the parties, a panel of three
medical arbiters shall be appointed.
' (d) The arbiter, or panel of medical arbiters, shall be
chosen from among a list of physicians qualified to be attending
physicians referred to in ORS 656.005 (12)(b)(A) who were
selected by the director in consultation with the Board of
Medical Examiners for the State of Oregon and the committee
referred to in ORS 656.790.
' (e)(A) The medical arbiter or panel of medical arbiters may
examine the worker and perform such tests as may be reasonable
and necessary to establish the worker's impairment.
' (B) If the director determines that the worker failed to
attend the examination without good cause or failed to cooperate
with the medical arbiter, or panel of medical arbiters, the
director shall postpone the reconsideration proceedings for up to
60 days from the date of the determination that the worker failed
to attend or cooperate, and shall suspend all disability benefits
resulting from this or any prior opening of the claim until such
time as the worker attends and cooperates with the examination or
the request for reconsideration is withdrawn. Any additional
evidence regarding good cause must be submitted prior to the
conclusion of the 60-day postponement period.
' (C) At the conclusion of the 60-day postponement period, if
the worker has not attended and cooperated with a medical arbiter
examination or established good cause, there shall be no further
opportunity for the worker to attend a medical arbiter
examination for this claim closure. The reconsideration record
shall be closed, and the director shall issue an order on
reconsideration based upon the existing record.
' (D) All disability benefits suspended pursuant to this
subsection, including all disability benefits awarded in the
order on reconsideration, or by an Administrative Law Judge, the
Workers' Compensation Board or upon court review, shall not be
due and payable to the worker.
' (f) The costs of examination and review by the medical
arbiter or panel of medical arbiters shall be paid by the insurer
or self-insured employer.
' (g) The findings of the medical arbiter or panel of medical
arbiters shall be submitted to the director for reconsideration
of the notice of closure.
' (h) After reconsideration, no subsequent medical evidence of
the worker's impairment is admissible before the director, the
Workers' Compensation Board or the courts for purposes of making
findings of impairment on the claim closure.
' (i)(A) When the basis for objection to a notice of closure
issued under this section is a disagreement with the impairment
used in rating the worker's disability, and the director
determines that the worker is not medically stationary at the
time of the reconsideration or that the closure was not made
pursuant to this section, the director is not required to appoint
a medical arbiter prior to the completion of the reconsideration
proceeding.
' (B) If the worker's condition has substantially changed since
the notice of closure, upon the consent of all the parties to the
claim, the director shall postpone the proceeding until the
worker's condition is appropriate for claim closure under
subsection (1) of this section.
' (8) No hearing shall be held on any issue that was not raised
and preserved before the director at reconsideration. However,
issues arising out of the reconsideration order may be addressed
and resolved at hearing.
' (9) If, after the notice of closure issued pursuant to this
section, the worker becomes enrolled and actively engaged in
training according to rules adopted pursuant to ORS 656.340 and
656.726, any permanent disability payments due under the closure
shall be suspended, and the worker shall receive temporary
disability compensation while the worker is enrolled and actively
engaged in the training. When the worker ceases to be enrolled
and actively engaged in the training, the insurer or self-insured
employer shall again close the claim pursuant to this section if
the worker is medically stationary or if the worker's accepted
injury is no longer the major contributing cause of the worker's
combined or consequential condition or conditions pursuant to ORS
656.005 (7). The closure shall include the duration of temporary
total or temporary partial disability compensation. Permanent
disability compensation shall be redetermined for unscheduled
disability only. If the worker has returned to work or the
worker's attending physician has released the worker to return to
regular or modified employment, the insurer or self-insured
employer shall again close the claim. This notice of closure may
be appealed only in the same manner as are other notices of
closure under this section.
' (10) If the attending physician { - or nurse practitioner
authorized to provide compensable medical services under ORS
656.245 - } 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.'.
In line 16, delete '15' and insert '13'.
On page 40, line 32, delete '16' and insert '14' and delete
'15' and insert '13'.
On page 42, line 3, delete '17' and insert '15'.
On page 44, line 40, delete '18' and insert '16' and delete
'17' and insert '15'.
On page 47, line 31, delete '19' and insert '17'.
On page 49, line 37, delete '20' and insert '18' and delete
'19' and insert '17'.
On page 51, line 43, delete '21' and insert '19'.
On page 52, line 21, delete '22' and insert '20' and delete
'21' and insert '19'.
In line 44, delete '23' and insert '21'.
On page 53, lines 16 and 17, delete the boldfaced material.
Delete lines 38 through 45.
On page 54, delete lines 1 through 31 and insert:
' { + SECTION 22. + } ORS 659A.043, as amended by section 21
of this 2003 Act, is amended to read:
' 659A.043. (1) A worker who has sustained a compensable injury
shall be reinstated by the worker's employer to the worker's
former position of employment upon demand for such reinstatement,
if the position exists and is available and the worker is not
disabled from performing the duties of such position. A worker's
former position is 'available' even if that position has been
filled by a replacement while the injured worker was absent. If
the former position is not available, the worker shall be
reinstated in any other existing position which is vacant and
suitable. A certificate by the attending physician { - or a
nurse practitioner authorized to provide compensable medical
services under ORS 656.245 - } that the physician { - or nurse
practitioner - } approves the worker's return to the worker's
regular employment or other suitable employment shall be prima
facie evidence that the worker is able to perform such duties.
' (2) Such right of reemployment shall be subject to the
provisions for seniority rights and other employment restrictions
contained in a valid collective bargaining agreement between the
employer and a representative of the employer's employees.
' (3) Notwithstanding subsection (1) of this section:
' (a) The right to reinstatement to the worker's former
position under this section terminates when whichever of the
following events first occurs:
' (A) A medical determination by the attending physician or,
after an appeal of such determination to a medical arbiter or
panel of medical arbiters pursuant to ORS chapter 656, has been
made that the worker cannot return to the former position of
employment.
' (B) The worker is eligible and participates in vocational
assistance under ORS 656.340.
' (C) The worker accepts suitable employment with another
employer after becoming medically stationary.
' (D) The worker refuses a bona fide offer from the employer of
light duty or modified employment which is suitable prior to
becoming medically stationary.
' (E) Seven days from the date that the worker is notified by
the insurer or self-insured employer by certified mail that the
worker's attending physician { - or a nurse practitioner
authorized to provide compensable medical services under ORS
656.245 - } has released the worker for employment unless the
worker requests reinstatement within that time period.
' (F) Three years from the date of injury.
' (b) The right to reinstatement under this section does not
apply to:
' (A) A worker hired on a temporary basis as a replacement for
an injured worker.
' (B) A seasonal worker employed to perform less than six
months' work in a calendar year.
' (C) A worker whose employment at the time of injury resulted
from referral from a hiring hall operating pursuant to a
collective bargaining agreement.
' (D) A worker whose employer employs 20 or fewer workers at
the time of the worker's injury and at the time of the worker's
demand for reinstatement.
' (4) Any violation of this section is an unlawful employment
practice.'.
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On page 55, line 15, delete '26' and insert '24' and delete
'25' and insert '23'.
In line 43, delete '27' and insert '25'.
On page 56, line 3, delete '28' and insert '26' and delete '27'
and insert '25'.
In line 8, delete '29' and insert '27'.
On page 57, line 14, delete '30' and insert '28' and delete
'29' and insert '27'.
On page 58, line 20, delete '31' and insert '29'.
In line 26, delete '32' and insert '30'.
In line 30, delete '31' and insert '29'.
In line 31, delete '33' and insert '31'.
In line 34, delete '31' and insert '29' and delete '32 ' and
insert '30'.
In line 35, delete '656.273,'.
In line 36, delete ', 27 and 29' and insert 'and 27'.
In line 38, delete '34' and insert '32'.
In line 39, delete '656.273,'.
In line 40, delete ', 28 and 30' and insert 'and 28'.
In line 42, delete '35' and insert '33' and delete '31, 32 and
33' and insert '29, 30 and 31'.
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