72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3811
A-Engrossed
House Bill 3669
Ordered by the Senate August 23
Including Senate Amendments dated August 23
Sponsored by Representative KNOPP; Representatives DINGFELDER,
KITTS, MONNES ANDERSON
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Authorizes certified nurse practitioners to provide compensable
medical services { + for 90 days from first visit on workers'
compensation claim + } and authorize temporary disability
benefits for { + 60 days from first visit on + } workers'
compensation
{ - claims - } { + claim + }.
Sunsets January 2, 2008.
A BILL FOR AN ACT
Relating to authority of nurse practitioners in workers'
compensation claims; creating new provisions; and amending ORS
656.005, 656.245, 656.250, 656.252, 656.262, 656.268, 656.325,
656.340, 656.726, 657.170, 659A.043, 659A.046, 659A.049 and
659A.063.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 656.005 is amended to read:
656.005. (1) 'Average weekly wage' means the Oregon average
weekly wage in covered employment, as determined by the
Employment Department, for the last quarter of the calendar year
preceding the fiscal year in which the injury occurred.
(2) 'Beneficiary' means an injured worker, and the husband,
wife, child or dependent of a worker, who is entitled to receive
payments under this chapter. 'Beneficiary' does not include:
(a) A spouse of an injured worker living in a state of
abandonment for more than one year at the time of the injury or
subsequently. A spouse who has lived separate and apart from the
worker for a period of two years and who has not during that time
received or attempted by process of law to collect funds for
support or maintenance is considered living in a state of
abandonment.
(b) A person who intentionally causes the compensable injury to
or death of an injured worker.
(3) 'Board' means the Workers' Compensation Board.
(4) 'Carrier-insured employer' means an employer who provides
workers' compensation coverage with a guaranty contract insurer.
(5) 'Child' includes a posthumous child, a child legally
adopted prior to the injury, a child toward whom the worker
stands in loco parentis, an illegitimate child and a stepchild,
if such stepchild was, at the time of the injury, a member of the
worker's family and substantially dependent upon the worker for
support. An invalid dependent child is a child, for purposes of
benefits, regardless of age, so long as the child was an invalid
at the time of the accident and thereafter remains an invalid
substantially dependent on the worker for support. For purposes
of this chapter, an invalid dependent child is considered to be a
child under 18 years of age.
(6) 'Claim' means a written request for compensation from a
subject worker or someone on the worker's behalf, or any
compensable injury of which a subject employer has notice or
knowledge.
(7)(a) A 'compensable injury' is an accidental injury, or
accidental injury to prosthetic appliances, arising out of and in
the course of employment requiring medical services or resulting
in disability or death; an injury is accidental if the result is
an accident, whether or not due to accidental means, if it is
established by medical evidence supported by objective findings,
subject to the following limitations:
(A) No injury or disease is compensable as a consequence of a
compensable injury unless the compensable injury is the major
contributing cause of the consequential condition.
(B) If an otherwise compensable injury combines at any time
with a preexisting condition to cause or prolong disability or a
need for treatment, the combined condition is compensable only
if, so long as and to the extent that the otherwise compensable
injury is the major contributing cause of the disability of the
combined condition or the major contributing cause of the need
for treatment of the combined condition.
(b) 'Compensable injury' does not include:
(A) Injury to any active participant in assaults or combats
which are not connected to the job assignment and which amount to
a deviation from customary duties;
(B) Injury incurred while engaging in or performing, or as the
result of engaging in or performing, any recreational or social
activities primarily for the worker's personal pleasure; or
(C) Injury the major contributing cause of which is
demonstrated to be by a preponderance of the evidence the injured
worker's consumption of alcoholic beverages or the unlawful
consumption of any controlled substance, unless the employer
permitted, encouraged or had actual knowledge of such
consumption.
(c) A 'disabling compensable injury' is an injury which
entitles the worker to compensation for disability or death. An
injury is not disabling if no temporary benefits are due and
payable, unless there is a reasonable expectation that permanent
disability will result from the injury.
(d) A 'nondisabling compensable injury' is any injury which
requires medical services only.
(8) 'Compensation' includes all benefits, including medical
services, provided for a compensable injury to a subject worker
or the worker's beneficiaries by an insurer or self-insured
employer pursuant to this chapter.
(9) 'Department' means the Department of Consumer and Business
Services.
(10) 'Dependent' means any of the following-named relatives of
a worker whose death results from any injury: Father, mother,
grandfather, grandmother, stepfather, stepmother, grandson,
granddaughter, brother, sister, half sister, half brother, niece
or nephew, who at the time of the accident, are dependent in
whole or in part for their support upon the earnings of the
worker. Unless otherwise provided by treaty, aliens not residing
within the United States at the time of the accident other than
father, mother, husband, wife or children are not included within
the term ' dependent. '
(11) 'Director' means the Director of the Department of
Consumer and Business Services.
(12)(a) 'Doctor' or 'physician' means a person duly licensed to
practice one or more of the healing arts in any country or in any
state, territory or possession of the United States within the
limits of the license of the licentiate.
(b) Except as otherwise provided for workers subject to a
managed care contract, 'attending physician' means a doctor or
physician who is primarily responsible for the treatment of a
worker's compensable injury and who is:
(A) A medical doctor or doctor of osteopathy licensed under ORS
677.100 to 677.228 by the Board of Medical Examiners for the
State of Oregon or an oral and maxillofacial surgeon licensed by
the Oregon Board of Dentistry or a similarly licensed doctor in
any country or in any state, territory or possession of the
United States; or
(B) For a period of 30 days from the date of first visit on the
initial claim or for 12 visits, whichever first occurs, a doctor
or physician licensed by the State Board of Chiropractic
Examiners for the State of Oregon or a similarly licensed doctor
or physician in any country or in any state, territory or
possession of the United States.
(c) 'Consulting physician' means a doctor or physician who
examines a worker or the worker's medical record to advise the
attending physician { + or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 + }
regarding treatment of a worker's compensable injury.
(13)(a) 'Employer' means any person, including receiver,
administrator, executor or trustee, and the state, state
agencies, counties, municipal corporations, school districts and
other public corporations or political subdivisions, who
contracts to pay a remuneration for and secures the right to
direct and control the services of any person.
(b) Notwithstanding paragraph (a) of this subsection, for
purposes of this chapter, the client of a temporary service
provider is not the employer of temporary workers provided by the
temporary service provider.
(c) As used in paragraph (b) of this subsection, 'temporary
service provider' has the meaning for that term provided in ORS
656.850.
(14) 'Guaranty contract insurer' and 'insurer' mean the State
Accident Insurance Fund Corporation or an insurer authorized
under ORS chapter 731 to transact workers' compensation insurance
in this state or an assigned claims agent selected by the
director under ORS 656.054.
(15) 'Consumer and Business Services Fund' means the fund
created by ORS 705.145.
(16) 'Invalid' means one who is physically or mentally
incapacitated from earning a livelihood.
(17) 'Medically stationary' means that no further material
improvement would reasonably be expected from medical treatment,
or the passage of time.
(18) 'Noncomplying employer' means a subject employer who has
failed to comply with ORS 656.017.
(19) 'Objective findings' in support of medical evidence are
verifiable indications of injury or disease that may include, but
are not limited to, range of motion, atrophy, muscle strength and
palpable muscle spasm. 'Objective findings' does not include
physical findings or subjective responses to physical
examinations that are not reproducible, measurable or observable.
(20) 'Palliative care' means medical service rendered to reduce
or moderate temporarily the intensity of an otherwise stable
medical condition, but does not include those medical services
rendered to diagnose, heal or permanently alleviate or eliminate
a medical condition.
(21) 'Party' means a claimant for compensation, the employer of
the injured worker at the time of injury and the insurer, if any,
of such employer.
(22) 'Payroll' means a record of wages payable to workers for
their services and includes commissions, value of exchange labor
and the reasonable value of board, rent, housing, lodging or
similar advantage received from the employer. However, 'payroll '
does not include overtime pay, vacation pay, bonus pay, tips,
amounts payable under profit-sharing agreements or bonus payments
to reward workers for safe working practices. Bonus pay is
limited to payments which are not anticipated under the contract
of employment and which are paid at the sole discretion of the
employer. The exclusion from payroll of bonus payments to reward
workers for safe working practices is only for the purpose of
calculations based on payroll to determine premium for workers'
compensation insurance, and does not affect any other calculation
or determination based on payroll for the purposes of this
chapter.
(23) 'Person' includes partnership, joint venture, association,
limited liability company and corporation.
(24)(a) 'Preexisting condition' means, for all industrial
injury claims, any injury, disease, congenital abnormality,
personality disorder or similar condition that contributes to
disability or need for treatment, provided that:
(A) Except for claims in which a preexisting condition is
arthritis or an arthritic condition, the worker has been
diagnosed with such condition, or has obtained medical services
for the symptoms of the condition regardless of diagnosis; and
(B)(i) In claims for an initial injury or omitted condition,
the diagnosis or treatment precedes the initial injury;
(ii) In claims for a new medical condition, the diagnosis or
treatment precedes the onset of the new medical condition; or
(iii) In claims for a worsening pursuant to ORS 656.273 or
656.278, the diagnosis or treatment precedes the onset of the
worsened condition.
(b) 'Preexisting condition' means, for all occupational disease
claims, any injury, disease, congenital abnormality, personality
disorder or similar condition that contributes to disability or
need for treatment and that precedes the onset of the claimed
occupational disease, or precedes a claim for worsening in such
claims pursuant to ORS 656.273 or 656.278.
(c) For the purposes of industrial injury claims, a condition
does not contribute to disability or need for treatment if the
condition merely renders the worker more susceptible to the
injury.
(25) 'Self-insured employer' means an employer or group of
employers certified under ORS 656.430 as meeting the
qualifications set out by ORS 656.407.
(26) 'State Accident Insurance Fund Corporation' and '
corporation' mean the State Accident Insurance Fund Corporation
created under ORS 656.752.
(27) 'Subject employer' means an employer who is subject to
this chapter as provided by ORS 656.023.
(28) 'Subject worker' means a worker who is subject to this
chapter as provided by ORS 656.027.
(29) 'Wages' means the money rate at which the service rendered
is recompensed under the contract of hiring in force at the time
of the accident, including reasonable value of board, rent,
housing, lodging or similar advantage received from the employer,
and includes the amount of tips required to be reported by the
employer pursuant to section 6053 of the Internal Revenue Code of
1954, as amended, and the regulations promulgated pursuant
thereto, or the amount of actual tips reported, whichever amount
is greater. The State Accident Insurance Fund Corporation may
establish assumed minimum and maximum wages, in conformity with
recognized insurance principles, at which any worker shall be
carried upon the payroll of the employer for the purpose of
determining the premium of the employer.
(30) 'Worker' means any person, including a minor whether
lawfully or unlawfully employed, who engages to furnish services
for a remuneration, subject to the direction and control of an
employer and includes salaried, elected and appointed officials
of the state, state agencies, counties, cities, school districts
and other public corporations, but does not include any person
whose services are performed as an inmate or ward of a state
institution or as part of the eligibility requirements for a
general or public assistance grant. For the purpose of
determining entitlement to temporary disability benefits or
permanent total disability benefits under this chapter, 'worker'
does not include a person who has withdrawn from the workforce
during the period for which such benefits are sought.
(31) 'Independent contractor' has the meaning for that term
provided in ORS 670.600.
SECTION 2. ORS 656.005, as amended by section 1 of this 2003
Act, is amended to read:
656.005. (1) 'Average weekly wage' means the Oregon average
weekly wage in covered employment, as determined by the
Employment Department, for the last quarter of the calendar year
preceding the fiscal year in which the injury occurred.
(2) 'Beneficiary' means an injured worker, and the husband,
wife, child or dependent of a worker, who is entitled to receive
payments under this chapter. 'Beneficiary' does not include:
(a) A spouse of an injured worker living in a state of
abandonment for more than one year at the time of the injury or
subsequently. A spouse who has lived separate and apart from the
worker for a period of two years and who has not during that time
received or attempted by process of law to collect funds for
support or maintenance is considered living in a state of
abandonment.
(b) A person who intentionally causes the compensable injury to
or death of an injured worker.
(3) 'Board' means the Workers' Compensation Board.
(4) 'Carrier-insured employer' means an employer who provides
workers' compensation coverage with a guaranty contract insurer.
(5) 'Child' includes a posthumous child, a child legally
adopted prior to the injury, a child toward whom the worker
stands in loco parentis, an illegitimate child and a stepchild,
if such stepchild was, at the time of the injury, a member of the
worker's family and substantially dependent upon the worker for
support. An invalid dependent child is a child, for purposes of
benefits, regardless of age, so long as the child was an invalid
at the time of the accident and thereafter remains an invalid
substantially dependent on the worker for support. For purposes
of this chapter, an invalid dependent child is considered to be a
child under 18 years of age.
(6) 'Claim' means a written request for compensation from a
subject worker or someone on the worker's behalf, or any
compensable injury of which a subject employer has notice or
knowledge.
(7)(a) A 'compensable injury' is an accidental injury, or
accidental injury to prosthetic appliances, arising out of and in
the course of employment requiring medical services or resulting
in disability or death; an injury is accidental if the result is
an accident, whether or not due to accidental means, if it is
established by medical evidence supported by objective findings,
subject to the following limitations:
(A) No injury or disease is compensable as a consequence of a
compensable injury unless the compensable injury is the major
contributing cause of the consequential condition.
(B) If an otherwise compensable injury combines at any time
with a preexisting condition to cause or prolong disability or a
need for treatment, the combined condition is compensable only
if, so long as and to the extent that the otherwise compensable
injury is the major contributing cause of the disability of the
combined condition or the major contributing cause of the need
for treatment of the combined condition.
(b) 'Compensable injury' does not include:
(A) Injury to any active participant in assaults or combats
which are not connected to the job assignment and which amount to
a deviation from customary duties;
(B) Injury incurred while engaging in or performing, or as the
result of engaging in or performing, any recreational or social
activities primarily for the worker's personal pleasure; or
(C) Injury the major contributing cause of which is
demonstrated to be by a preponderance of the evidence the injured
worker's consumption of alcoholic beverages or the unlawful
consumption of any controlled substance, unless the employer
permitted, encouraged or had actual knowledge of such
consumption.
(c) A 'disabling compensable injury' is an injury which
entitles the worker to compensation for disability or death. An
injury is not disabling if no temporary benefits are due and
payable, unless there is a reasonable expectation that permanent
disability will result from the injury.
(d) A 'nondisabling compensable injury' is any injury which
requires medical services only.
(8) 'Compensation' includes all benefits, including medical
services, provided for a compensable injury to a subject worker
or the worker's beneficiaries by an insurer or self-insured
employer pursuant to this chapter.
(9) 'Department' means the Department of Consumer and Business
Services.
(10) 'Dependent' means any of the following-named relatives of
a worker whose death results from any injury: Father, mother,
grandfather, grandmother, stepfather, stepmother, grandson,
granddaughter, brother, sister, half sister, half brother, niece
or nephew, who at the time of the accident, are dependent in
whole or in part for their support upon the earnings of the
worker. Unless otherwise provided by treaty, aliens not residing
within the United States at the time of the accident other than
father, mother, husband, wife or children are not included within
the term ' dependent. '
(11) 'Director' means the Director of the Department of
Consumer and Business Services.
(12)(a) 'Doctor' or 'physician' means a person duly licensed to
practice one or more of the healing arts in any country or in any
state, territory or possession of the United States within the
limits of the license of the licentiate.
(b) Except as otherwise provided for workers subject to a
managed care contract, 'attending physician' means a doctor or
physician who is primarily responsible for the treatment of a
worker's compensable injury and who is:
(A) A medical doctor or doctor of osteopathy licensed under ORS
677.100 to 677.228 by the Board of Medical Examiners for the
State of Oregon or an oral and maxillofacial surgeon licensed by
the Oregon Board of Dentistry or a similarly licensed doctor in
any country or in any state, territory or possession of the
United States; or
(B) For a period of 30 days from the date of first visit on the
initial claim or for 12 visits, whichever first occurs, a doctor
or physician licensed by the State Board of Chiropractic
Examiners for the State of Oregon or a similarly licensed doctor
or physician in any country or in any state, territory or
possession of the United States.
(c) 'Consulting physician' means a doctor or physician who
examines a worker or the worker's medical record to advise the
attending physician { - or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 - }
regarding treatment of a worker's compensable injury.
(13)(a) 'Employer' means any person, including receiver,
administrator, executor or trustee, and the state, state
agencies, counties, municipal corporations, school districts and
other public corporations or political subdivisions, who
contracts to pay a remuneration for and secures the right to
direct and control the services of any person.
(b) Notwithstanding paragraph (a) of this subsection, for
purposes of this chapter, the client of a temporary service
provider is not the employer of temporary workers provided by the
temporary service provider.
(c) As used in paragraph (b) of this subsection, 'temporary
service provider' has the meaning for that term provided in ORS
656.850.
(14) 'Guaranty contract insurer' and 'insurer' mean the State
Accident Insurance Fund Corporation or an insurer authorized
under ORS chapter 731 to transact workers' compensation insurance
in this state or an assigned claims agent selected by the
director under ORS 656.054.
(15) 'Consumer and Business Services Fund' means the fund
created by ORS 705.145.
(16) 'Invalid' means one who is physically or mentally
incapacitated from earning a livelihood.
(17) 'Medically stationary' means that no further material
improvement would reasonably be expected from medical treatment,
or the passage of time.
(18) 'Noncomplying employer' means a subject employer who has
failed to comply with ORS 656.017.
(19) 'Objective findings' in support of medical evidence are
verifiable indications of injury or disease that may include, but
are not limited to, range of motion, atrophy, muscle strength and
palpable muscle spasm. 'Objective findings' does not include
physical findings or subjective responses to physical
examinations that are not reproducible, measurable or observable.
(20) 'Palliative care' means medical service rendered to reduce
or moderate temporarily the intensity of an otherwise stable
medical condition, but does not include those medical services
rendered to diagnose, heal or permanently alleviate or eliminate
a medical condition.
(21) 'Party' means a claimant for compensation, the employer of
the injured worker at the time of injury and the insurer, if any,
of such employer.
(22) 'Payroll' means a record of wages payable to workers for
their services and includes commissions, value of exchange labor
and the reasonable value of board, rent, housing, lodging or
similar advantage received from the employer. However, 'payroll '
does not include overtime pay, vacation pay, bonus pay, tips,
amounts payable under profit-sharing agreements or bonus payments
to reward workers for safe working practices. Bonus pay is
limited to payments which are not anticipated under the contract
of employment and which are paid at the sole discretion of the
employer. The exclusion from payroll of bonus payments to reward
workers for safe working practices is only for the purpose of
calculations based on payroll to determine premium for workers'
compensation insurance, and does not affect any other calculation
or determination based on payroll for the purposes of this
chapter.
(23) 'Person' includes partnership, joint venture, association,
limited liability company and corporation.
(24)(a) 'Preexisting condition' means, for all industrial
injury claims, any injury, disease, congenital abnormality,
personality disorder or similar condition that contributes to
disability or need for treatment, provided that:
(A) Except for claims in which a preexisting condition is
arthritis or an arthritic condition, the worker has been
diagnosed with such condition, or has obtained medical services
for the symptoms of the condition regardless of diagnosis; and
(B)(i) In claims for an initial injury or omitted condition,
the diagnosis or treatment precedes the initial injury;
(ii) In claims for a new medical condition, the diagnosis or
treatment precedes the onset of the new medical condition; or
(iii) In claims for a worsening pursuant to ORS 656.273 or
656.278, the diagnosis or treatment precedes the onset of the
worsened condition.
(b) 'Preexisting condition' means, for all occupational disease
claims, any injury, disease, congenital abnormality, personality
disorder or similar condition that contributes to disability or
need for treatment and that precedes the onset of the claimed
occupational disease, or precedes a claim for worsening in such
claims pursuant to ORS 656.273 or 656.278.
(c) For the purposes of industrial injury claims, a condition
does not contribute to disability or need for treatment if the
condition merely renders the worker more susceptible to the
injury.
(25) 'Self-insured employer' means an employer or group of
employers certified under ORS 656.430 as meeting the
qualifications set out by ORS 656.407.
(26) 'State Accident Insurance Fund Corporation' and '
corporation' mean the State Accident Insurance Fund Corporation
created under ORS 656.752.
(27) 'Subject employer' means an employer who is subject to
this chapter as provided by ORS 656.023.
(28) 'Subject worker' means a worker who is subject to this
chapter as provided by ORS 656.027.
(29) 'Wages' means the money rate at which the service rendered
is recompensed under the contract of hiring in force at the time
of the accident, including reasonable value of board, rent,
housing, lodging or similar advantage received from the employer,
and includes the amount of tips required to be reported by the
employer pursuant to section 6053 of the Internal Revenue Code of
1954, as amended, and the regulations promulgated pursuant
thereto, or the amount of actual tips reported, whichever amount
is greater. The State Accident Insurance Fund Corporation may
establish assumed minimum and maximum wages, in conformity with
recognized insurance principles, at which any worker shall be
carried upon the payroll of the employer for the purpose of
determining the premium of the employer.
(30) 'Worker' means any person, including a minor whether
lawfully or unlawfully employed, who engages to furnish services
for a remuneration, subject to the direction and control of an
employer and includes salaried, elected and appointed officials
of the state, state agencies, counties, cities, school districts
and other public corporations, but does not include any person
whose services are performed as an inmate or ward of a state
institution or as part of the eligibility requirements for a
general or public assistance grant. For the purpose of
determining entitlement to temporary disability benefits or
permanent total disability benefits under this chapter, 'worker'
does not include a person who has withdrawn from the workforce
during the period for which such benefits are sought.
(31) 'Independent contractor' has the meaning for that term
provided in ORS 670.600.
SECTION 3. ORS 656.245 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. + }
{ - (6) - } { + (7) + } 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.
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.
SECTION 5. ORS 656.250 is amended to read:
656.250. A physical therapist shall not provide compensable
services to injured workers governed by this chapter except as
allowed by a governing managed care organization contract or as
authorized by the worker's attending physician { + or nurse
practitioner authorized to provide compensable medical services
under ORS 656.245 + }.
SECTION 6. ORS 656.250, as amended by section 5 of this 2003
Act, is amended to read:
656.250. A physical therapist shall not provide compensable
services to injured workers governed by this chapter except as
allowed by a governing managed care organization contract or as
authorized by the worker's attending physician { - or nurse
practitioner authorized to provide compensable medical services
under ORS 656.245 - } .
SECTION 7. ORS 656.252 is amended to read:
656.252. (1) In order to ensure the prompt and correct
reporting and payment of compensation in compensable injuries,
the Director of the Department of Consumer and Business Services
shall make rules governing audits of medical service bills and
reports by attending and consulting physicians and other
personnel of all medical information relevant to the
determination of a claim to the injured worker's representative,
the worker's employer, the employer's insurer and the Department
of Consumer and Business Services. Such rules shall include, but
not necessarily be limited to:
(a) Requiring attending physicians { + and nurse practitioners
authorized to provide compensable medical services under ORS
656.245 + } to make the insurer or self-insured employer a first
report of injury within 72 hours after the first service
rendered.
(b) Requiring attending physicians { + and nurse practitioners
authorized to provide compensable medical services under ORS
656.245 + } to submit follow-up reports within specified time
limits or upon the request of an interested party.
(c) Requiring examining physicians { + and nurse practitioners
authorized to provide compensable medical services under ORS
656.245 + } 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 { + or nurse practitioner
authorized to provide compensable medical services under ORS
656.245 + } 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.
(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 { + or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 + }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 { + or nurse
practitioner + } shall forward such reports.
(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 { + or nurse
practitioner authorized to provide compensable medical services
under ORS 656.245 + } notify the insurer or employer of the
worker's release to return to work without notifying the worker
at the same time.
(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
{ + or nurse practitioners authorized to provide compensable
medical services under ORS 656.245 + }, the newly selected
attending physician { + or nurse practitioner + } 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 { + or nurse practitioner
authorized to provide compensable medical services under ORS
656.245 + } who refers a worker to a consulting physician
promptly shall notify the responsible insurer or self-insured
employer of the referral.
(6) A provider of medical services, including hospital
services, that submits a billing to the insurer or self-insured
employer shall also submit a copy of the billing to the worker
for whom the service was performed after receipt from the injured
worker of a written request for such a copy.
SECTION 8. ORS 656.252, as amended by section 7 of this 2003
Act, is amended to read:
656.252. (1) In order to ensure the prompt and correct
reporting and payment of compensation in compensable injuries,
the Director of the Department of Consumer and Business Services
shall make rules governing audits of medical service bills and
reports by attending and consulting physicians and other
personnel of all medical information relevant to the
determination of a claim to the injured worker's representative,
the worker's employer, the employer's insurer and the Department
of Consumer and Business Services. Such rules shall include, but
not necessarily be limited to:
(a) Requiring attending physicians { - and nurse
practitioners authorized to provide compensable medical services
under ORS 656.245 - } to make the insurer or self-insured
employer a first report of injury within 72 hours after the first
service rendered.
(b) Requiring attending physicians { - and nurse
practitioners authorized to provide compensable medical services
under ORS 656.245 - } to submit follow-up reports within
specified time limits or upon the request of an interested party.
(c) Requiring examining physicians { - and nurse
practitioners authorized to provide compensable medical services
under ORS 656.245 - } 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 { - or nurse practitioner
authorized to provide compensable medical services under ORS
656.245 - } 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.
(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 { - or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 - } 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 { - or nurse
practitioner - } shall forward such reports.
(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 { - or nurse
practitioner authorized to provide compensable medical services
under ORS 656.245 - } notify the insurer or employer of the
worker's release to return to work without notifying the worker
at the same time.
(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
{ - or nurse practitioners authorized to provide compensable
medical services under ORS 656.245 - } , the newly selected
attending physician { - or nurse practitioner - } 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 { - or nurse practitioner
authorized to provide compensable medical services under ORS
656.245 - } who refers a worker to a consulting physician
promptly shall notify the responsible insurer or self-insured
employer of the referral.
(6) A provider of medical services, including hospital
services, that submits a billing to the insurer or self-insured
employer shall also submit a copy of the billing to the worker
for whom the service was performed after receipt from the injured
worker of a written request for such a copy.
SECTION 9. 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 { + or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 + }
authorizes the payment of temporary disability compensation.
Thereafter, temporary disability compensation shall be paid at
least once each two weeks, except where the Director of the
Department of Consumer and Business Services determines that
payment in installments should be made at some other interval.
The director may by rule convert monthly benefit schedules to
weekly or other periodic schedules.
(b) Notwithstanding any other provision of this chapter, if a
self-insured employer pays to an injured worker who becomes
disabled the same wage at the same pay interval that the worker
received at the time of injury, such payment shall be deemed
timely payment of temporary disability payments pursuant to ORS
656.210 and 656.212 during the time the wage payments are made.
(c) Notwithstanding any other provision of this chapter, when
the holder of a public office is injured in the course and scope
of that public office, full official salary paid to the holder of
that public office shall be deemed timely payment of temporary
disability payments pursuant to ORS 656.210 and 656.212 during
the time the wage payments are made. As used in this subsection,
' public office' has the meaning for that term provided in ORS
260.005.
(d) Temporary disability compensation is not due and payable
for any period of time for which the insurer or self-insured
employer has requested from the worker's attending physician
{ + or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 + } verification of the
worker's inability to work resulting from the claimed injury or
disease and the physician { + or nurse practitioner + } 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 { + or nurse practitioner
authorized to provide compensable medical services under ORS
656.245 + }, 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 { + or
nurse practitioner authorized to provide compensable medical
services under ORS 656.245 + } verification of the worker's
inability to work resulting from the claimed injury or disease,
medical services provided by the attending physician { + or
nurse practitioner + } are not compensable until the attending
physician { + or nurse practitioner + } submits such
verification.
(g) Temporary disability compensation is not due and payable
pursuant to ORS 656.268 after the worker's attending physician
{ + or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 + } ceases to authorize
temporary disability or for any period of time not authorized by
the attending physician { + or nurse practitioner + }. No
authorization of temporary disability compensation by the
attending physician { + or nurse practitioner + } 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 { + or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 + }.
(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 { + or nurse practitioner authorized
to provide compensable medical services under ORS 656.245 that
is + } not authorized by the managed care organization more than
seven days after the mailing of notice by the insurer or
self-insured employer.
(5) Payment of compensation under subsection (4) of this
section or payment, in amounts not to exceed $500 per claim, for
medical services for nondisabling claims, may be made by the
subject employer if the employer so chooses. The making of such
payments does not constitute a waiver or transfer of the
insurer's duty to determine entitlement to benefits. If the
employer chooses to make such payment, the employer shall report
the injury to the insurer in the same manner that other injuries
are reported. However, an insurer shall not modify an employer's
experience rating or otherwise make charges against the employer
for any medical expenses paid by the employer pursuant to this
subsection.
(6)(a) Written notice of acceptance or denial of the claim
shall be furnished to the claimant by the insurer or self-insured
employer within 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 ORS 656.247, 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 659A.
(E) Inform the claimant of assistance available to employers
from the Reemployment Assistance Program under ORS 656.622.
(F) Be modified by the insurer or self-insured employer from
time to time as medical or other information changes a previously
issued notice of acceptance.
(c) An insurer's or self-insured employer's acceptance of a
combined or consequential condition under ORS 656.005 (7),
whether voluntary or as a result of a judgment or order, shall
not preclude the insurer or self-insured employer from later
denying the combined or consequential condition if the otherwise
compensable injury ceases to be the major contributing cause of
the combined or consequential condition.
(d) An injured worker who believes that a condition has been
incorrectly omitted from a notice of acceptance, or that the
notice is otherwise deficient, first must communicate in writing
to the insurer or self-insured employer the worker's objections
to the notice pursuant to ORS 656.267. The insurer or
self-insured employer has 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
ORS 656.267 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
condition claims properly initiated pursuant to ORS 656.267 shall
be furnished to the claimant by the insurer or self-insured
employer within 60 days after the insurer or self-insured
employer receives written notice of such claims. A worker who
fails to comply with the communication requirements of subsection
(6) of this section or ORS 656.267 may not allege at any hearing
or other proceeding on the claim a de facto denial of a condition
based on information in the notice of acceptance from the insurer
or self-insured employer.
(b) Once a worker's claim has been accepted, the insurer or
self-insured employer must issue a written denial to the worker
when the accepted injury is no longer the major contributing
cause of the worker's combined condition before the claim may be
closed.
(c) When an insurer or self-insured employer determines that
the claim qualifies for claim closure, the insurer or
self-insured employer shall issue at claim closure an updated
notice of acceptance that specifies which conditions are
compensable. The procedures specified in subsection (6)(d) of
this section apply to this notice. Any objection to the updated
notice or appeal of denied conditions shall not delay claim
closure pursuant to ORS 656.268. If a condition is found
compensable after claim closure, the insurer or self-insured
employer shall reopen the claim for processing regarding that
condition.
(8) The assigned claims agent in processing claims under ORS
656.054 shall send notice of acceptance or denial to the
noncomplying employer.
(9) If an insurer or any other duly authorized agent of the
employer for such purpose, on record with the Director of the
Department of Consumer and Business Services denies a claim for
compensation, written notice of such denial, stating the reason
for the denial, and informing the worker of the Expedited Claim
Service and of hearing rights under ORS 656.283, shall be given
to the claimant. A copy of the notice of denial shall be mailed
to the director and to the employer by the insurer. The worker
may request a hearing pursuant to ORS 656.319.
(10) Merely paying or providing compensation shall not be
considered acceptance of a claim or an admission of liability,
nor shall mere acceptance of such compensation be considered a
waiver of the right to question the amount thereof. Payment of
permanent disability benefits pursuant to a notice of closure,
reconsideration order or litigation order, or the failure to
appeal or seek review of such an order or notice of closure,
shall not preclude an insurer or self-insured employer from
subsequently contesting the compensability of the condition rated
therein, unless the condition has been formally accepted.
(11)(a) If the insurer or self-insured employer unreasonably
delays or unreasonably refuses to pay compensation, or
unreasonably delays acceptance or denial of a claim, the insurer
or self-insured employer shall be liable for an additional amount
up to 25 percent of the amounts then due. Notwithstanding any
other provision of this chapter, the director shall have
exclusive jurisdiction over proceedings regarding solely the
assessment and payment of the additional amount described in this
subsection. The entire additional amount shall be paid to the
worker if the worker is not represented by an attorney. If the
worker is represented by an attorney, the worker shall be paid
one-half the additional amount and the worker's attorney shall
receive one-half the additional amount, in lieu of an attorney
fee. The director's action and review thereof shall be subject to
ORS 183.310 to 183.550 and such other procedural rules as the
director may prescribe.
(b) When the director does not have exclusive jurisdiction over
proceedings regarding the assessment and payment of the
additional amount described in this subsection, the provision for
attorney fees provided in this subsection shall apply in the
other proceeding.
(12) The insurer may authorize an employer to pay compensation
to injured workers and shall reimburse employers for compensation
so paid.
(13) Insurers and self-insured employers shall report every
claim for disabling injury to the director within 21 days after
the date the employer has notice or knowledge of such injury.
(14) Injured workers have the duty to cooperate and assist the
insurer or self-insured employer in the investigation of claims
for compensation. Injured workers shall submit to and shall fully
cooperate with personal and telephonic interviews and other
formal or informal information gathering techniques. Injured
workers who are represented by an attorney shall have the right
to have the attorney present during any personal or telephonic
interview or deposition. However, if the attorney is not willing
or available to participate in an interview at a time reasonably
chosen by the insurer or self-insured employer within 14 days of
the request for interview and the insurer or self-insured
employer has cause to believe that the attorney's unwillingness
or unavailability is unreasonable and is preventing the worker
from complying within 14 days of the request for interview, the
insurer or self-insured employer shall notify the director. If
the director determines that the attorney's unwillingness or
unavailability is unreasonable, the director shall assess a civil
penalty against the attorney of not more than $1,000.
(15) If the director finds that a worker fails to reasonably
cooperate with an investigation involving an initial claim to
establish a compensable injury or an aggravation claim to reopen
the claim for a worsened condition, the director shall suspend
all or part of the payment of compensation after notice to the
worker. If the worker does not cooperate for an additional 30
days after the notice, the insurer or self-insured employer may
deny the claim because of the worker's failure to cooperate. The
obligation of the insurer or self-insured employer to accept or
deny the claim within 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 10. ORS 656.262, as amended by section 9 of this 2003
Act, 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 { - or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 - }
authorizes the payment of temporary disability compensation.
Thereafter, temporary disability compensation shall be paid at
least once each two weeks, except where the Director of the
Department of Consumer and Business Services determines that
payment in installments should be made at some other interval.
The director may by rule convert monthly benefit schedules to
weekly or other periodic schedules.
(b) Notwithstanding any other provision of this chapter, if a
self-insured employer pays to an injured worker who becomes
disabled the same wage at the same pay interval that the worker
received at the time of injury, such payment shall be deemed
timely payment of temporary disability payments pursuant to ORS
656.210 and 656.212 during the time the wage payments are made.
(c) Notwithstanding any other provision of this chapter, when
the holder of a public office is injured in the course and scope
of that public office, full official salary paid to the holder of
that public office shall be deemed timely payment of temporary
disability payments pursuant to ORS 656.210 and 656.212 during
the time the wage payments are made. As used in this subsection,
' public office' has the meaning for that term provided in ORS
260.005.
(d) Temporary disability compensation is not due and payable
for any period of time for which the insurer or self-insured
employer has requested from the worker's attending physician
{ - or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 - } verification of the
worker's inability to work resulting from the claimed injury or
disease and the physician { - or nurse practitioner - } 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 { - or nurse practitioner
authorized to provide compensable medical services under ORS
656.245 - } , 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 { - or
nurse practitioner authorized to provide compensable medical
services under ORS 656.245 - } verification of the worker's
inability to work resulting from the claimed injury or disease,
medical services provided by the attending physician { - or
nurse practitioner - } are not compensable until the attending
physician { - or nurse practitioner - } submits such
verification.
(g) Temporary disability compensation is not due and payable
pursuant to ORS 656.268 after the worker's attending physician
{ - or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 - } ceases to authorize
temporary disability or for any period of time not authorized by
the attending physician { - or nurse practitioner - } . No
authorization of temporary disability compensation by the
attending physician { - or nurse practitioner - } 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 { - or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 - } .
(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 { - or nurse practitioner
authorized to provide compensable medical services under ORS
656.245 - } that is not authorized by the managed care
organization more than seven days after the mailing of notice by
the insurer or self-insured employer.
(5) Payment of compensation under subsection (4) of this
section or payment, in amounts not to exceed $500 per claim, for
medical services for nondisabling claims, may be made by the
subject employer if the employer so chooses. The making of such
payments does not constitute a waiver or transfer of the
insurer's duty to determine entitlement to benefits. If the
employer chooses to make such payment, the employer shall report
the injury to the insurer in the same manner that other injuries
are reported. However, an insurer shall not modify an employer's
experience rating or otherwise make charges against the employer
for any medical expenses paid by the employer pursuant to this
subsection.
(6)(a) Written notice of acceptance or denial of the claim
shall be furnished to the claimant by the insurer or self-insured
employer within 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 ORS 656.247, 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 659A.
(E) Inform the claimant of assistance available to employers
from the Reemployment Assistance Program under ORS 656.622.
(F) Be modified by the insurer or self-insured employer from
time to time as medical or other information changes a previously
issued notice of acceptance.
(c) An insurer's or self-insured employer's acceptance of a
combined or consequential condition under ORS 656.005 (7),
whether voluntary or as a result of a judgment or order, shall
not preclude the insurer or self-insured employer from later
denying the combined or consequential condition if the otherwise
compensable injury ceases to be the major contributing cause of
the combined or consequential condition.
(d) An injured worker who believes that a condition has been
incorrectly omitted from a notice of acceptance, or that the
notice is otherwise deficient, first must communicate in writing
to the insurer or self-insured employer the worker's objections
to the notice pursuant to ORS 656.267. The insurer or
self-insured employer has 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
ORS 656.267 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
condition claims properly initiated pursuant to ORS 656.267 shall
be furnished to the claimant by the insurer or self-insured
employer within 60 days after the insurer or self-insured
employer receives written notice of such claims. A worker who
fails to comply with the communication requirements of subsection
(6) of this section or ORS 656.267 may not allege at any hearing
or other proceeding on the claim a de facto denial of a condition
based on information in the notice of acceptance from the insurer
or self-insured employer.
(b) Once a worker's claim has been accepted, the insurer or
self-insured employer must issue a written denial to the worker
when the accepted injury is no longer the major contributing
cause of the worker's combined condition before the claim may be
closed.
(c) When an insurer or self-insured employer determines that
the claim qualifies for claim closure, the insurer or
self-insured employer shall issue at claim closure an updated
notice of acceptance that specifies which conditions are
compensable. The procedures specified in subsection (6)(d) of
this section apply to this notice. Any objection to the updated
notice or appeal of denied conditions shall not delay claim
closure pursuant to ORS 656.268. If a condition is found
compensable after claim closure, the insurer or self-insured
employer shall reopen the claim for processing regarding that
condition.
(8) The assigned claims agent in processing claims under ORS
656.054 shall send notice of acceptance or denial to the
noncomplying employer.
(9) If an insurer or any other duly authorized agent of the
employer for such purpose, on record with the Director of the
Department of Consumer and Business Services denies a claim for
compensation, written notice of such denial, stating the reason
for the denial, and informing the worker of the Expedited Claim
Service and of hearing rights under ORS 656.283, shall be given
to the claimant. A copy of the notice of denial shall be mailed
to the director and to the employer by the insurer. The worker
may request a hearing pursuant to ORS 656.319.
(10) Merely paying or providing compensation shall not be
considered acceptance of a claim or an admission of liability,
nor shall mere acceptance of such compensation be considered a
waiver of the right to question the amount thereof. Payment of
permanent disability benefits pursuant to a notice of closure,
reconsideration order or litigation order, or the failure to
appeal or seek review of such an order or notice of closure,
shall not preclude an insurer or self-insured employer from
subsequently contesting the compensability of the condition rated
therein, unless the condition has been formally accepted.
(11)(a) If the insurer or self-insured employer unreasonably
delays or unreasonably refuses to pay compensation, or
unreasonably delays acceptance or denial of a claim, the insurer
or self-insured employer shall be liable for an additional amount
up to 25 percent of the amounts then due. Notwithstanding any
other provision of this chapter, the director shall have
exclusive jurisdiction over proceedings regarding solely the
assessment and payment of the additional amount described in this
subsection. The entire additional amount shall be paid to the
worker if the worker is not represented by an attorney. If the
worker is represented by an attorney, the worker shall be paid
one-half the additional amount and the worker's attorney shall
receive one-half the additional amount, in lieu of an attorney
fee. The director's action and review thereof shall be subject to
ORS 183.310 to 183.550 and such other procedural rules as the
director may prescribe.
(b) When the director does not have exclusive jurisdiction over
proceedings regarding the assessment and payment of the
additional amount described in this subsection, the provision for
attorney fees provided in this subsection shall apply in the
other proceeding.
(12) The insurer may authorize an employer to pay compensation
to injured workers and shall reimburse employers for compensation
so paid.
(13) Insurers and self-insured employers shall report every
claim for disabling injury to the director within 21 days after
the date the employer has notice or knowledge of such injury.
(14) Injured workers have the duty to cooperate and assist the
insurer or self-insured employer in the investigation of claims
for compensation. Injured workers shall submit to and shall fully
cooperate with personal and telephonic interviews and other
formal or informal information gathering techniques. Injured
workers who are represented by an attorney shall have the right
to have the attorney present during any personal or telephonic
interview or deposition. However, if the attorney is not willing
or available to participate in an interview at a time reasonably
chosen by the insurer or self-insured employer within 14 days of
the request for interview and the insurer or self-insured
employer has cause to believe that the attorney's unwillingness
or unavailability is unreasonable and is preventing the worker
from complying within 14 days of the request for interview, the
insurer or self-insured employer shall notify the director. If
the director determines that the attorney's unwillingness or
unavailability is unreasonable, the director shall assess a civil
penalty against the attorney of not more than $1,000.
(15) If the director finds that a worker fails to reasonably
cooperate with an investigation involving an initial claim to
establish a compensable injury or an aggravation claim to reopen
the claim for a worsened condition, the director shall suspend
all or part of the payment of compensation after notice to the
worker. If the worker does not cooperate for an additional 30
days after the notice, the insurer or self-insured employer may
deny the claim because of the worker's failure to cooperate. The
obligation of the insurer or self-insured employer to accept or
deny the claim within 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 11. 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 { + 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.
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.
SECTION 13. ORS 656.325 is amended to read:
656.325. (1)(a) Any worker entitled to receive compensation
under this chapter is required, if requested by the Director of
the Department of Consumer and Business Services, the insurer or
self-insured employer, to submit to a medical examination at a
time reasonably convenient for the worker as may be provided by
the rules of the director. However, no more than three
examinations may be requested except after notification to and
authorization by the director. If the worker refuses to submit to
any such examination, or obstructs the same, the rights of the
worker to compensation shall be suspended with the consent of the
director until the examination has taken place, and no
compensation shall be payable during or for account of such
period. The provisions of this paragraph are subject to the
limitations on medical examinations provided in ORS 656.268.
(b) If the worker has made a timely request for a hearing on a
denial of compensability as required by ORS 656.319 (1)(a) that
is based on one or more reports of examinations conducted
pursuant to paragraph (a) of this subsection and the worker's
attending physician { + or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 + }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.
(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 nurse
practitioner authorized to provide compensable medical services
under ORS 656.245 + }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)(a) Except as provided by ORS 656.268 (4)(c) and (10), an
insurer or self-insured employer shall cease making payments
pursuant to ORS 656.210 and shall commence making payment of such
amounts as are due pursuant to ORS 656.212 when an injured worker
refuses wage earning employment prior to claim determination and
the worker's attending physician { + or nurse practitioner
authorized to provide compensable medical services under ORS
656.245 + }, 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 { + or nurse practitioner authorized to provide
compensable medical services under ORS 656.245 + } 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 { + or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 + }
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 14. ORS 656.325, as amended by section 13 of this 2003
Act, is amended to read:
656.325. (1)(a) Any worker entitled to receive compensation
under this chapter is required, if requested by the Director of
the Department of Consumer and Business Services, the insurer or
self-insured employer, to submit to a medical examination at a
time reasonably convenient for the worker as may be provided by
the rules of the director. However, no more than three
examinations may be requested except after notification to and
authorization by the director. If the worker refuses to submit to
any such examination, or obstructs the same, the rights of the
worker to compensation shall be suspended with the consent of the
director until the examination has taken place, and no
compensation shall be payable during or for account of such
period. The provisions of this paragraph are subject to the
limitations on medical examinations provided in ORS 656.268.
(b) If the worker has made a timely request for a hearing on a
denial of compensability as required by ORS 656.319 (1)(a) that
is based on one or more reports of examinations conducted
pursuant to paragraph (a) of this subsection and the worker's
attending physician { - or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 - } 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.
(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 nurse
practitioner authorized to provide compensable medical services
under ORS 656.245 - } 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)(a) Except as provided by ORS 656.268 (4)(c) and (10), an
insurer or self-insured employer shall cease making payments
pursuant to ORS 656.210 and shall commence making payment of such
amounts as are due pursuant to ORS 656.212 when an injured worker
refuses wage earning employment prior to claim determination and
the worker's attending physician { - or nurse practitioner
authorized to provide compensable medical services under ORS
656.245 - } , 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 { - or nurse practitioner authorized to provide
compensable medical services under ORS 656.245 - } 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 { - or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 - }
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 15. ORS 656.340 is amended to read:
656.340. (1)(a) The insurer or self-insured employer shall
cause vocational assistance to be provided to an injured worker
who is eligible for assistance in returning to work.
(b) For this purpose the insurer or self-insured employer shall
contact a worker with a claim for a disabling compensable injury
or claim for aggravation for evaluation of the worker's
eligibility for vocational assistance within five days of:
(A) Having knowledge of the worker's likely eligibility for
vocational assistance, from a medical or investigation report,
notification from the worker, or otherwise; or
(B) The time the worker is medically stationary, if the worker
has not returned to the worker's regular employment or other
suitable employment with the employer at the time of injury or
aggravation and the worker is not receiving vocational
assistance.
(c) Eligibility may be redetermined by the insurer or
self-insured employer upon receipt of new information that would
change the eligibility determination.
(2) Contact under subsection (1) of this section shall include
informing the worker about reemployment rights, the
responsibility of the worker to request reemployment, and wage
subsidy and job site modification assistance and the provisions
of the preferred worker program pursuant to rules adopted by the
Director of the Department of Consumer and Business Services.
(3) Within five days after notification that the attending
physician { + or nurse practitioner authorized to provide
compensable medical services under ORS 656.245 + }has released a
worker to return to work, the insurer or self-insured employer
shall inform the worker about the opportunity to seek
reemployment or reinstatement under ORS 659A.043 and 659A.046.
The insurer shall inform the employer of the worker's
reemployment rights, wage subsidy and the job site modification
assistance and the provisions of the preferred worker program.
(4) As soon as possible, and not more than 30 days after the
contact required by subsection (1) of this section, the insurer
or self-insured employer shall cause an individual certified by
the director to provide vocational assistance to determine
whether the worker is eligible for vocational assistance. The
insurer or self-insured employer shall notify the worker of the
decision regarding the worker's eligibility for vocational
assistance. If the insurer or self-insured employer decides that
the worker is not eligible, the worker may apply to the director
for review of the decision as provided in ORS 656.283 (2). A
worker determined ineligible upon evaluation under subsection
(1)(b)(B) of this section, or because the worker's eligibility
has fully and finally expired under standards prescribed by the
director, may not be found eligible thereafter unless that
eligibility determination is rejected by the director under ORS
656.283 (2) or the worker's condition worsens so as to constitute
an aggravation claim under ORS 656.273. A worker is not entitled
to vocational assistance benefits when possible eligibility for
such benefits arises from a worsening of the worker's condition
that occurs after the expiration of the worker's aggravation
rights under ORS 656.273.
(5) The objectives of vocational assistance are to return the
worker to employment which is as close as possible to the
worker's regular employment at a wage as close as possible to the
weekly wage currently being paid for employment which was the
worker's regular employment even though the wage available
following employment may be less than the wage prescribed by
subsection (6) of this section. As used in this subsection and
subsection (6) of this section, 'regular employment' means the
employment the worker held at the time of the injury or the claim
for aggravation under ORS 656.273, whichever gave rise to the
potential eligibility for vocational assistance; or, for a worker
not employed at the time of the aggravation, the employment the
worker held on the last day of work prior to the aggravation.
(6)(a) A worker is eligible for vocational assistance if the
worker will not be able to return to the previous employment or
to any other available and suitable employment with the employer
at the time of injury or aggravation, and the worker has a
substantial handicap to employment.
(b) As used in this subsection:
(A) A 'substantial handicap to employment' exists when the
worker, because of the injury or aggravation, lacks the necessary
physical capacities, knowledge, skills and abilities to be
employed in suitable employment.
(B) 'Suitable employment' means:
(i) Employment of the kind for which the worker has the
necessary physical capacity, knowledge, skills and abilities;
(ii) Employment that is located where the worker customarily
worked or is within reasonable commuting distance of the worker's
residence; and
(iii) Employment that produces a weekly wage within 20 percent
of that currently being paid for employment that was the worker's
regular employment as defined in subsection (5) of this section.
The director shall adopt rules providing methods of calculating
the weekly wage currently being paid for the worker's regular
employment for use in determining eligibility and for providing
assistance to eligible workers. If the worker's regular
employment was seasonal or temporary, the worker's wage shall be
averaged based on a combination of the worker's earned income and
any unemployment insurance payments. Only earned income evidenced
by verifiable documentation such as federal or state tax returns
shall be used in the calculation. Earned income does not include
fringe benefits or reimbursement of the worker's employment
expenses.
(7) Vocational evaluation, help in directly obtaining
employment and training shall be available under conditions
prescribed by the director. The director may establish other
conditions for providing vocational assistance, including those
relating to the worker's availability for assistance,
participation in previous assistance programs connected with the
same claim and the nature and extent of assistance that may be
provided. Such conditions shall give preference to direct
employment assistance over training.
(8) An insurer or self-insured employer may utilize its own
staff or may engage any other individual certified by the
director to perform the vocational evaluation required by
subsection (4) of this section.
(9) The director shall adopt rules providing:
(a) Standards for and methods of certifying individuals and
authorizing vocational assistance providers qualified by
education, training, experience and plan of operation to provide
vocational assistance to injured workers;
(b) Conditions and procedures under which the certification of
an individual or the authorization of a vocational assistance
provider to provide vocational assistance services may be
suspended or revoked for failure to maintain compliance with the
certification or authorization standards;
(c) Standards for the nature and extent of services a worker
may receive, for plans for return to work and for determining
when the worker has returned to work; and
(d) Procedures, schedules and conditions relating to the
payment for services performed by a vocational assistance
provider, which shall be based on payment for specific services
performed and not fees for services performed on an hourly basis.
Fee schedules shall reflect a reasonable rate for direct worker
purchases and for all vocational assistance providers and shall
be the same within suitable geographic areas.
(10) Insurers and self-insured employers shall maintain records
and make reports to the director of vocational assistance actions
at such times and in such manner as the director may prescribe.
Such requirements shall be for the purpose of assisting the
Department of Consumer and Business Services in monitoring
compliance with this section to insure that workers receive
timely and appropriate vocational assistance. The director shall
minimize to the greatest extent possible the number, extent and
kinds of reports required. The director shall compile a list of
the organizations or agencies authorized to provide vocational
assistance. A current list shall be distributed by the director
to all insurers and self-insured employers. The insurer shall
send the list to each worker with the notice of eligibility.
(11) When a worker is eligible to receive vocational
assistance, the worker and the insurer or self-insured employer
shall attempt to agree on the choice of a vocational assistance
provider. If the worker agrees, the insurer or self-insured
employer may utilize its own staff to provide vocational
assistance. If they are unable to agree on a vocational
assistance provider, the insurer or self-insured employer shall
notify the director and the director shall select a provider. Any
change in the choice of vocational assistance provider is subject
to the approval of the director.
(12) Notwithstanding ORS 656.268, a worker actively engaged in
training may receive temporary disability compensation for a
maximum of 16 months, subject to extension to 21 months by order
of the director for good cause shown. The costs related to
vocational assistance training programs may be paid for periods
longer than 21 months, but in no event may temporary disability
benefits be paid for a period longer than 21 months.
(13) As used in this section, 'vocational assistance provider'
means a public or private organization or agency which provides
vocational assistance to injured workers.
(14)(a) Determination of eligibility for vocational assistance
does not entitle all workers to the same type or extent of
assistance.
(b) Training shall not be provided to an eligible worker solely
because the worker cannot obtain employment, otherwise suitable,
that will produce the wage prescribed in subsection (6) of this
section unless such training will enable the worker to find
employment which will produce a wage significantly closer to that
prescribed in subsection (6) of this section.
(c) Nothing in this section shall be interpreted to expand the
availability of training under this section.
(15) A physical capacities evaluation shall be performed in
conjunction with vocational assistance or determination of
eligibility for such assistance at the request of the insurer or
self-insured employer or worker. Such request shall be made to
the attending physician { + or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 + }. The
attending physician { + or nurse practitioner + }, within 20
days of the request, shall perform a physical capacities
evaluation or refer the worker for such evaluation or advise the
insurer or self-insured employer and the worker in writing that
the injured worker is incapable of participating in a physical
capacities evaluation.
SECTION 16. ORS 656.340, as amended by section 15 of this 2003
Act, is amended to read:
656.340. (1)(a) The insurer or self-insured employer shall
cause vocational assistance to be provided to an injured worker
who is eligible for assistance in returning to work.
(b) For this purpose the insurer or self-insured employer shall
contact a worker with a claim for a disabling compensable injury
or claim for aggravation for evaluation of the worker's
eligibility for vocational assistance within five days of:
(A) Having knowledge of the worker's likely eligibility for
vocational assistance, from a medical or investigation report,
notification from the worker, or otherwise; or
(B) The time the worker is medically stationary, if the worker
has not returned to the worker's regular employment or other
suitable employment with the employer at the time of injury or
aggravation and the worker is not receiving vocational
assistance.
(c) Eligibility may be redetermined by the insurer or
self-insured employer upon receipt of new information that would
change the eligibility determination.
(2) Contact under subsection (1) of this section shall include
informing the worker about reemployment rights, the
responsibility of the worker to request reemployment, and wage
subsidy and job site modification assistance and the provisions
of the preferred worker program pursuant to rules adopted by the
Director of the Department of Consumer and Business Services.
(3) Within five days after notification that the attending
physician { - or nurse practitioner authorized to provide
compensable medical services under ORS 656.245 - } has released
a worker to return to work, the insurer or self-insured employer
shall inform the worker about the opportunity to seek
reemployment or reinstatement under ORS 659A.043 and 659A.046.
The insurer shall inform the employer of the worker's
reemployment rights, wage subsidy and the job site modification
assistance and the provisions of the preferred worker program.
(4) As soon as possible, and not more than 30 days after the
contact required by subsection (1) of this section, the insurer
or self-insured employer shall cause an individual certified by
the director to provide vocational assistance to determine
whether the worker is eligible for vocational assistance. The
insurer or self-insured employer shall notify the worker of the
decision regarding the worker's eligibility for vocational
assistance. If the insurer or self-insured employer decides that
the worker is not eligible, the worker may apply to the director
for review of the decision as provided in ORS 656.283 (2). A
worker determined ineligible upon evaluation under subsection
(1)(b)(B) of this section, or because the worker's eligibility
has fully and finally expired under standards prescribed by the
director, may not be found eligible thereafter unless that
eligibility determination is rejected by the director under ORS
656.283 (2) or the worker's condition worsens so as to constitute
an aggravation claim under ORS 656.273. A worker is not entitled
to vocational assistance benefits when possible eligibility for
such benefits arises from a worsening of the worker's condition
that occurs after the expiration of the worker's aggravation
rights under ORS 656.273.
(5) The objectives of vocational assistance are to return the
worker to employment which is as close as possible to the
worker's regular employment at a wage as close as possible to the
weekly wage currently being paid for employment which was the
worker's regular employment even though the wage available
following employment may be less than the wage prescribed by
subsection (6) of this section. As used in this subsection and
subsection (6) of this section, 'regular employment' means the
employment the worker held at the time of the injury or the claim
for aggravation under ORS 656.273, whichever gave rise to the
potential eligibility for vocational assistance; or, for a worker
not employed at the time of the aggravation, the employment the
worker held on the last day of work prior to the aggravation.
(6)(a) A worker is eligible for vocational assistance if the
worker will not be able to return to the previous employment or
to any other available and suitable employment with the employer
at the time of injury or aggravation, and the worker has a
substantial handicap to employment.
(b) As used in this subsection:
(A) A 'substantial handicap to employment' exists when the
worker, because of the injury or aggravation, lacks the necessary
physical capacities, knowledge, skills and abilities to be
employed in suitable employment.
(B) 'Suitable employment' means:
(i) Employment of the kind for which the worker has the
necessary physical capacity, knowledge, skills and abilities;
(ii) Employment that is located where the worker customarily
worked or is within reasonable commuting distance of the worker's
residence; and
(iii) Employment that produces a weekly wage within 20 percent
of that currently being paid for employment that was the worker's
regular employment as defined in subsection (5) of this section.
The director shall adopt rules providing methods of calculating
the weekly wage currently being paid for the worker's regular
employment for use in determining eligibility and for providing
assistance to eligible workers. If the worker's regular
employment was seasonal or temporary, the worker's wage shall be
averaged based on a combination of the worker's earned income and
any unemployment insurance payments. Only earned income evidenced
by verifiable documentation such as federal or state tax returns
shall be used in the calculation. Earned income does not include
fringe benefits or reimbursement of the worker's employment
expenses.
(7) Vocational evaluation, help in directly obtaining
employment and training shall be available under conditions
prescribed by the director. The director may establish other
conditions for providing vocational assistance, including those
relating to the worker's availability for assistance,
participation in previous assistance programs connected with the
same claim and the nature and extent of assistance that may be
provided. Such conditions shall give preference to direct
employment assistance over training.
(8) An insurer or self-insured employer may utilize its own
staff or may engage any other individual certified by the
director to perform the vocational evaluation required by
subsection (4) of this section.
(9) The director shall adopt rules providing:
(a) Standards for and methods of certifying individuals and
authorizing vocational assistance providers qualified by
education, training, experience and plan of operation to provide
vocational assistance to injured workers;
(b) Conditions and procedures under which the certification of
an individual or the authorization of a vocational assistance
provider to provide vocational assistance services may be
suspended or revoked for failure to maintain compliance with the
certification or authorization standards;
(c) Standards for the nature and extent of services a worker
may receive, for plans for return to work and for determining
when the worker has returned to work; and
(d) Procedures, schedules and conditions relating to the
payment for services performed by a vocational assistance
provider, which shall be based on payment for specific services
performed and not fees for services performed on an hourly basis.
Fee schedules shall reflect a reasonable rate for direct worker
purchases and for all vocational assistance providers and shall
be the same within suitable geographic areas.
(10) Insurers and self-insured employers shall maintain records
and make reports to the director of vocational assistance actions
at such times and in such manner as the director may prescribe.
Such requirements shall be for the purpose of assisting the
Department of Consumer and Business Services in monitoring
compliance with this section to insure that workers receive
timely and appropriate vocational assistance. The director shall
minimize to the greatest extent possible the number, extent and
kinds of reports required. The director shall compile a list of
the organizations or agencies authorized to provide vocational
assistance. A current list shall be distributed by the director
to all insurers and self-insured employers. The insurer shall
send the list to each worker with the notice of eligibility.
(11) When a worker is eligible to receive vocational
assistance, the worker and the insurer or self-insured employer
shall attempt to agree on the choice of a vocational assistance
provider. If the worker agrees, the insurer or self-insured
employer may utilize its own staff to provide vocational
assistance. If they are unable to agree on a vocational
assistance provider, the insurer or self-insured employer shall
notify the director and the director shall select a provider. Any
change in the choice of vocational assistance provider is subject
to the approval of the director.
(12) Notwithstanding ORS 656.268, a worker actively engaged in
training may receive temporary disability compensation for a
maximum of 16 months, subject to extension to 21 months by order
of the director for good cause shown. The costs related to
vocational assistance training programs may be paid for periods
longer than 21 months, but in no event may temporary disability
benefits be paid for a period longer than 21 months.
(13) As used in this section, 'vocational assistance provider'
means a public or private organization or agency which provides
vocational assistance to injured workers.
(14)(a) Determination of eligibility for vocational assistance
does not entitle all workers to the same type or extent of
assistance.
(b) Training shall not be provided to an eligible worker solely
because the worker cannot obtain employment, otherwise suitable,
that will produce the wage prescribed in subsection (6) of this
section unless such training will enable the worker to find
employment which will produce a wage significantly closer to that
prescribed in subsection (6) of this section.
(c) Nothing in this section shall be interpreted to expand the
availability of training under this section.
(15) A physical capacities evaluation shall be performed in
conjunction with vocational assistance or determination of
eligibility for such assistance at the request of the insurer or
self-insured employer or worker. Such request shall be made to
the attending physician { - or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 - } . The
attending physician { - or nurse practitioner - } , within 20
days of the request, shall perform a physical capacities
evaluation or refer the worker for such evaluation or advise the
insurer or self-insured employer and the worker in writing that
the injured worker is incapable of participating in a physical
capacities evaluation.
SECTION 17. ORS 656.726 is amended to read:
656.726. (1) The Workers' Compensation Board in its name and
the Director of the Department of Consumer and Business Services
in the director's name as director may sue and be sued, and each
shall have a seal.
(2) The board hereby is charged with reviewing appealed orders
of Administrative Law Judges in controversies concerning a claim
arising under this chapter, exercising own motion jurisdiction
under this chapter and providing such policy advice as the
director may request, and providing such other review functions
as may be prescribed by law. To that end any of its members or
assistants authorized thereto by the members shall have power to:
(a) Hold sessions at any place within the state.
(b) Administer oaths.
(c) Issue and serve by the board's representatives, or by any
sheriff, subpoenas for the attendance of witnesses and the
production of papers, contracts, books, accounts, documents and
testimony before any hearing under ORS 654.001 to 654.295,
654.750 to 654.780 and this chapter.
(d) Generally provide for the taking of testimony and for the
recording of proceedings.
(3) The board chairperson is hereby charged with the
administration of and responsibility for the Hearings Division.
(4) The director hereby is charged with duties of
administration, regulation and enforcement of ORS 654.001 to
654.295, 654.750 to 654.780 and this chapter. To that end the
director may:
(a) Make and declare all rules and issue orders which are
reasonably required in the performance of the director's duties.
Unless otherwise specified by law, all reports, claims or other
documents shall be deemed timely provided to the director or
board if mailed by regular mail or delivered within the time
required by law. Notwithstanding ORS 183.310 to 183.410, if a
matter comes before the director that is not addressed by rule
and the director finds that adoption of a rule to accommodate the
matter would be inefficient, unreasonable or unnecessarily
burdensome to the public, the director may resolve the matter by
issuing an order, subject to review under ORS 183.310 to 183.550.
Such order shall not have precedential effect as to any other
situation.
(b) Hold sessions at any place within the state.
(c) Administer oaths.
(d) Issue and serve by representatives of the director, or by
any sheriff, subpoenas for the attendance of witnesses and the
production of papers, contracts, books, accounts, documents and
testimony in any inquiry, investigation, proceeding or rulemaking
hearing conducted by the director or the director's
representatives. The director may require the attendance and
testimony of employers, their officers and representatives in any
inquiry under this chapter, and the production by employers of
books, records, papers and documents without the payment or
tender of witness fees on account of such attendance.
(e) Generally provide for the taking of testimony and for the
recording of such proceedings.
(f) Provide standards for the evaluation of disabilities. The
following provisions apply to the standards:
(A) The criteria for evaluation of disabilities under ORS
656.214 (5) shall be permanent impairment due to the industrial
injury as modified by the factors of age, education and
adaptability to perform a given job.
(B) Impairment is established by a preponderance of medical
evidence based upon objective findings.
(C) When, upon reconsideration of a notice of closure pursuant
to ORS 656.268, it is found that the worker's disability is not
addressed by the standards adopted pursuant to this paragraph,
notwithstanding ORS 656.268, the director shall stay further
proceedings on the reconsideration of the claim and shall adopt
temporary rules amending the standards to accommodate the
worker's impairment. When the director adopts temporary rules
amending the standards, the director shall submit those temporary
rules to the Workers' Compensation Management-Labor Advisory
Committee for review at their next meeting.
(D) Notwithstanding any other provision of this section,
impairment is the only factor to be considered in evaluation of
the worker's disability under ORS 656.214 (5) if:
(i) The worker returns to regular work at the job held at the
time of injury;
(ii) The attending physician { + or nurse practitioner
authorized to provide compensable medical services under ORS
656.245 + }releases the worker to regular work at the job held
at the time of injury and the job is available but the worker
fails or refuses to return to that job; or
(iii) The attending physician { + or nurse practitioner
authorized to provide compensable medical services under ORS
656.245 + }releases the worker to regular work at the job held
at the time of injury but the worker's employment is terminated
for cause unrelated to the injury.
(g) Prescribe procedural rules for and conduct hearings,
investigations and other proceedings pursuant to ORS 654.001 to
654.295, 654.750 to 654.780 and this chapter regarding all
matters other than those specifically allocated to the board or
the Hearings Division.
(h) Participate fully in any proceeding before the Hearings
Division, board or Court of Appeals in which the director
determines that the proceeding involves a matter that affects or
could affect the discharge of the director's duties of
administration, regulation and enforcement of ORS 654.001 to
654.295 and 654.750 to 654.780 and this chapter.
(5) The board may make and declare all rules which are
reasonably required in the performance of its duties, including
but not limited to rules of practice and procedure in connection
with hearing and review proceedings and exercising its authority
under ORS 656.278. The board shall adopt standards governing the
format and timing of the evidence. The standards shall be
uniformly followed by all Administrative Law Judges and
practitioners. The rules may provide for informal prehearing
conferences in order to expedite claim adjudication, amicably
dispose of controversies, if possible, narrow issues and simplify
the method of proof at hearings. The rules shall specify who may
appear with parties at prehearing conferences and hearings.
(6) The director and the board chairperson may incur such
expenses as they respectively determine are reasonably necessary
to perform their authorized functions.
(7) The director, the board chairperson and the State Accident
Insurance Fund Corporation shall have the right, not subject to
review, to contract for the exchange of, or payment for, such
services between them as will reduce the overall cost of
administering this chapter.
(8) The director shall have lien and enforcement powers
regarding assessments to be paid by subject employers in the same
manner and to the same extent as is provided for lien and
enforcement of collection of premiums and assessments by the
corporation under ORS 656.552 to 656.566.
(9) The director shall have the same powers regarding
inspection of books, records and payrolls of employers as are
granted the corporation under ORS 656.758. The director may
disclose information obtained from such inspections to the
Director of the Department of Revenue to the extent the Director
of the Department of Revenue requires such information to
determine that a person complies with the revenue and tax laws of
this state and to the Director of the Employment Department to
the extent the Director of the Employment Department requires
such information to determine that a person complies with ORS
chapter 657.
(10) The director shall collect hours-worked data information
in addition to total payroll for workers engaged in various jobs
in the construction industry classifications described in the job
classification portion of the Workers' Compensation and Employers
Liability Manual and the Oregon Special Rules Section published
by the National Council on Compensation Insurance. The
information shall be collected in the form and format necessary
for the National Council on Compensation Insurance to analyze
premium equity.
SECTION 18. ORS 656.726, as amended by section 17 of this 2003
Act, is amended to read:
656.726. (1) The Workers' Compensation Board in its name and
the Director of the Department of Consumer and Business Services
in the director's name as director may sue and be sued, and each
shall have a seal.
(2) The board hereby is charged with reviewing appealed orders
of Administrative Law Judges in controversies concerning a claim
arising under this chapter, exercising own motion jurisdiction
under this chapter and providing such policy advice as the
director may request, and providing such other review functions
as may be prescribed by law. To that end any of its members or
assistants authorized thereto by the members shall have power to:
(a) Hold sessions at any place within the state.
(b) Administer oaths.
(c) Issue and serve by the board's representatives, or by any
sheriff, subpoenas for the attendance of witnesses and the
production of papers, contracts, books, accounts, documents and
testimony before any hearing under ORS 654.001 to 654.295,
654.750 to 654.780 and this chapter.
(d) Generally provide for the taking of testimony and for the
recording of proceedings.
(3) The board chairperson is hereby charged with the
administration of and responsibility for the Hearings Division.
(4) The director hereby is charged with duties of
administration, regulation and enforcement of ORS 654.001 to
654.295, 654.750 to 654.780 and this chapter. To that end the
director may:
(a) Make and declare all rules and issue orders which are
reasonably required in the performance of the director's duties.
Unless otherwise specified by law, all reports, claims or other
documents shall be deemed timely provided to the director or
board if mailed by regular mail or delivered within the time
required by law. Notwithstanding ORS 183.310 to 183.410, if a
matter comes before the director that is not addressed by rule
and the director finds that adoption of a rule to accommodate the
matter would be inefficient, unreasonable or unnecessarily
burdensome to the public, the director may resolve the matter by
issuing an order, subject to review under ORS 183.310 to 183.550.
Such order shall not have precedential effect as to any other
situation.
(b) Hold sessions at any place within the state.
(c) Administer oaths.
(d) Issue and serve by representatives of the director, or by
any sheriff, subpoenas for the attendance of witnesses and the
production of papers, contracts, books, accounts, documents and
testimony in any inquiry, investigation, proceeding or rulemaking
hearing conducted by the director or the director's
representatives. The director may require the attendance and
testimony of employers, their officers and representatives in any
inquiry under this chapter, and the production by employers of
books, records, papers and documents without the payment or
tender of witness fees on account of such attendance.
(e) Generally provide for the taking of testimony and for the
recording of such proceedings.
(f) Provide standards for the evaluation of disabilities. The
following provisions apply to the standards:
(A) The criteria for evaluation of disabilities under ORS
656.214 (5) shall be permanent impairment due to the industrial
injury as modified by the factors of age, education and
adaptability to perform a given job.
(B) Impairment is established by a preponderance of medical
evidence based upon objective findings.
(C) When, upon reconsideration of a notice of closure pursuant
to ORS 656.268, it is found that the worker's disability is not
addressed by the standards adopted pursuant to this paragraph,
notwithstanding ORS 656.268, the director shall stay further
proceedings on the reconsideration of the claim and shall adopt
temporary rules amending the standards to accommodate the
worker's impairment. When the director adopts temporary rules
amending the standards, the director shall submit those temporary
rules to the Workers' Compensation Management-Labor Advisory
Committee for review at their next meeting.
(D) Notwithstanding any other provision of this section,
impairment is the only factor to be considered in evaluation of
the worker's disability under ORS 656.214 (5) if:
(i) The worker returns to regular work at the job held at the
time of injury;
(ii) The attending physician { - or nurse practitioner
authorized to provide compensable medical services under ORS
656.245 - } releases the worker to regular work at the job held
at the time of injury and the job is available but the worker
fails or refuses to return to that job; or
(iii) The attending physician { - or nurse practitioner
authorized to provide compensable medical services under ORS
656.245 - } releases the worker to regular work at the job held
at the time of injury but the worker's employment is terminated
for cause unrelated to the injury.
(g) Prescribe procedural rules for and conduct hearings,
investigations and other proceedings pursuant to ORS 654.001 to
654.295, 654.750 to 654.780 and this chapter regarding all
matters other than those specifically allocated to the board or
the Hearings Division.
(h) Participate fully in any proceeding before the Hearings
Division, board or Court of Appeals in which the director
determines that the proceeding involves a matter that affects or
could affect the discharge of the director's duties of
administration, regulation and enforcement of ORS 654.001 to
654.295 and 654.750 to 654.780 and this chapter.
(5) The board may make and declare all rules which are
reasonably required in the performance of its duties, including
but not limited to rules of practice and procedure in connection
with hearing and review proceedings and exercising its authority
under ORS 656.278. The board shall adopt standards governing the
format and timing of the evidence. The standards shall be
uniformly followed by all Administrative Law Judges and
practitioners. The rules may provide for informal prehearing
conferences in order to expedite claim adjudication, amicably
dispose of controversies, if possible, narrow issues and simplify
the method of proof at hearings. The rules shall specify who may
appear with parties at prehearing conferences and hearings.
(6) The director and the board chairperson may incur such
expenses as they respectively determine are reasonably necessary
to perform their authorized functions.
(7) The director, the board chairperson and the State Accident
Insurance Fund Corporation shall have the right, not subject to
review, to contract for the exchange of, or payment for, such
services between them as will reduce the overall cost of
administering this chapter.
(8) The director shall have lien and enforcement powers
regarding assessments to be paid by subject employers in the same
manner and to the same extent as is provided for lien and
enforcement of collection of premiums and assessments by the
corporation under ORS 656.552 to 656.566.
(9) The director shall have the same powers regarding
inspection of books, records and payrolls of employers as are
granted the corporation under ORS 656.758. The director may
disclose information obtained from such inspections to the
Director of the Department of Revenue to the extent the Director
of the Department of Revenue requires such information to
determine that a person complies with the revenue and tax laws of
this state and to the Director of the Employment Department to
the extent the Director of the Employment Department requires
such information to determine that a person complies with ORS
chapter 657.
(10) The director shall collect hours-worked data information
in addition to total payroll for workers engaged in various jobs
in the construction industry classifications described in the job
classification portion of the Workers' Compensation and Employers
Liability Manual and the Oregon Special Rules Section published
by the National Council on Compensation Insurance. The
information shall be collected in the form and format necessary
for the National Council on Compensation Insurance to analyze
premium equity.
SECTION 19. ORS 657.170 is amended to read:
657.170. (1) If the Director of the Employment Department finds
that during the base year of the individual any individual has
been incapable of work during the greater part of any calendar
quarter, such base year shall be extended a calendar quarter.
Except as provided in subsection (2) of this section, no such
extension of an individual's base year shall exceed four calendar
quarters.
(2) If the director finds that during and prior to the
individual's base year the individual has had a period of
temporary total disability caused by illness or injury and has
received compensation under ORS chapter 656 for a period of
temporary total disability during the greater part of any
calendar quarter, the individual's base year shall be extended as
many calendar quarters as necessary to establish a valid claim,
up to a maximum of four calendar quarters prior to the quarter in
which the illness or injury occurred, if the individual:
(a) Files a claim for benefits not later than the fourth
calendar week of unemployment following whichever is the latest
of the following dates:
(A) The date the individual is released to return to work by
the attending physician, as defined in ORS chapter 656 { + , or a
nurse practitioner authorized to provide compensable medical
services under ORS 656.245 + }; or
(B) The date of mailing of a notice of claim closure pursuant
to ORS chapter 656; and
(b) Files such a claim within the three-year period immediately
following the commencement of such period of illness or injury.
(3) Notwithstanding the provisions of this section, benefits
payable as a result of the use of wages paid in a calendar
quarter prior to the individual's current base year as defined in
ORS 657.010 (1) shall not exceed one-third of such wages less
benefits paid previously as a result of the use of such wages in
computing a previous benefit determination.
SECTION 20. ORS 657.170, as amended by section 19 of this 2003
Act, is amended to read:
657.170. (1) If the Director of the Employment Department finds
that during the base year of the individual any individual has
been incapable of work during the greater part of any calendar
quarter, such base year shall be extended a calendar quarter.
Except as provided in subsection (2) of this section, no such
extension of an individual's base year shall exceed four calendar
quarters.
(2) If the director finds that during and prior to the
individual's base year the individual has had a period of
temporary total disability caused by illness or injury and has
received compensation under ORS chapter 656 for a period of
temporary total disability during the greater part of any
calendar quarter, the individual's base year shall be extended as
many calendar quarters as necessary to establish a valid claim,
up to a maximum of four calendar quarters prior to the quarter in
which the illness or injury occurred, if the individual:
(a) Files a claim for benefits not later than the fourth
calendar week of unemployment following whichever is the latest
of the following dates:
(A) The date the individual is released to return to work by
the attending physician, as defined in ORS chapter 656 { - , or
a nurse practitioner authorized to provide compensable medical
services under ORS 656.245 - } ; or
(B) The date of mailing of a notice of claim closure pursuant
to ORS chapter 656; and
(b) Files such a claim within the three-year period immediately
following the commencement of such period of illness or injury.
(3) Notwithstanding the provisions of this section, benefits
payable as a result of the use of wages paid in a calendar
quarter prior to the individual's current base year as defined in
ORS 657.010 (1) shall not exceed one-third of such wages less
benefits paid previously as a result of the use of such wages in
computing a previous benefit determination.
SECTION 21. ORS 659A.043 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.
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.
SECTION 23. ORS 659A.046 is amended to read:
659A.046. (1) A worker who has sustained a compensable injury
and is disabled from performing the duties of the worker's former
regular employment shall, upon demand, be reemployed by the
worker's employer at employment which is available and suitable.
(2) A certificate of the worker's attending physician { + or a
nurse practitioner authorized to provide compensable medical
services under ORS 656.245 + } that the worker is able to perform
described types of work shall be prima facie evidence of such
ability.
(3) Notwithstanding subsection (1) of this section, the right
to reemployment under this section terminates when whichever of
the following events first occurs:
(a) The worker cannot return to reemployment at any position
with the employer either by determination of the attending
physician { + or a nurse practitioner authorized to provide
compensable medical services under ORS 656.245 + } or upon appeal
of that determination, by determination of a medical arbiter or
panel of medical arbiters pursuant to ORS chapter 656.
(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 that is suitable prior to
becoming medically stationary.
(e) Seven days elapse 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 reemployment unless the
worker requests reemployment within that time period.
(f) Three years elapse from the date of injury.
(4) 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.
(5) Any violation of this section is an unlawful employment
practice.
(6) This section applies only to employers who employ six or
more persons.
SECTION 24. ORS 659A.046, as amended by section 23 of this 2003
Act, is amended to read:
659A.046. (1) A worker who has sustained a compensable injury
and is disabled from performing the duties of the worker's former
regular employment shall, upon demand, be reemployed by the
worker's employer at employment which is available and suitable.
(2) A certificate of the worker's attending physician { - or
a nurse practitioner authorized to provide compensable medical
services under ORS 656.245 - } that the worker is able to
perform described types of work shall be prima facie evidence of
such ability.
(3) Notwithstanding subsection (1) of this section, the right
to reemployment under this section terminates when whichever of
the following events first occurs:
(a) The worker cannot return to reemployment at any position
with the employer either by determination of the attending
physician { - or a nurse practitioner authorized to provide
compensable medical services under ORS 656.245 - } or upon
appeal of that determination, by determination of a medical
arbiter or panel of medical arbiters pursuant to ORS chapter 656.
(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 that is suitable prior to
becoming medically stationary.
(e) Seven days elapse 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 reemployment unless the
worker requests reemployment within that time period.
(f) Three years elapse from the date of injury.
(4) 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.
(5) Any violation of this section is an unlawful employment
practice.
(6) This section applies only to employers who employ six or
more persons.
SECTION 25. ORS 659A.049 is amended to read:
659A.049. The rights of reinstatement afforded by ORS 659A.043
and 659A.046 shall not be forfeited if the worker refuses to
return to the worker's regular or other offered employment
without release to such employment by the worker's attending
physician { + or a nurse practitioner authorized to provide
compensable medical services under ORS 656.245 + }.
SECTION 26. ORS 659A.049, as amended by section 25 of this 2003
Act, is amended to read:
659A.049. The rights of reinstatement afforded by ORS 659A.043
and 659A.046 shall not be forfeited if the worker refuses to
return to the worker's regular or other offered employment
without release to such employment by the worker's attending
physician { - or a nurse practitioner authorized to provide
compensable medical services under ORS 656.245 - } .
SECTION 27. ORS 659A.063 is amended to read:
659A.063. (1) The State of Oregon shall cause group health
benefits to continue in effect with respect to that worker and
any covered dependents or family members by timely payment of the
premium that includes the contribution due from the state under
the applicable benefit plan, subject to any premium contribution
due from the worker that the worker paid before the occurrence of
the injury or illness. If the premium increases or decreases, the
State of Oregon and worker contributions shall be adjusted to
remain consistent with similarly situated active employees. The
State of Oregon shall continue the worker's health benefits in
effect until whichever of the following events occurs first:
(a) The worker's attending physician { + or a nurse
practitioner authorized to provide compensable medical services
under ORS 656.245 + } has determined the worker to be medically
stationary and a notice of closure has been entered;
(b) The worker returns to work for the State of Oregon, after a
period of continued coverage under this section, and satisfies
any probationary or minimum work requirement to be eligible for
group health benefits;
(c) The worker takes full or part-time employment with another
employer that is comparable in terms of the number of hours per
week the worker was employed with the State of Oregon or the
worker retires;
(d) Twelve months have elapsed since the date the State of
Oregon received notice that the worker filed a workers'
compensation claim pursuant to ORS chapter 656;
(e) The claim is denied and the claimant fails to appeal within
the time provided by ORS 656.319 or the Workers' Compensation
Board or a workers' compensation hearings referee or a court
issues an order finding the claim is not compensable;
(f) The worker does not pay the required premium or portion
thereof in a timely manner in accordance with the terms and
conditions under this section;
(g) The worker elects to discontinue coverage under this
section and notifies the State of Oregon in writing of this
election;
(h) The worker's attending physician { + or a nurse
practitioner authorized to provide compensable medical services
under ORS 656.245 + } has released the worker to modified or
regular work, the work has been offered to the worker and the
worker refuses to return to work; or
(i) The worker has been terminated from employment for reasons
unrelated to the workers' compensation claim.
(2) If the workers' compensation claim of a worker for whom
health benefits are provided pursuant to subsection (1) of this
section is denied and the worker does not appeal or the worker
appeals and does not prevail, the State of Oregon may recover
from the worker the amount of the premiums plus interest at the
rate authorized by ORS 82.010. The State of Oregon may recover
the payments through a payroll deduction not to exceed 10 percent
of gross pay for each pay period.
(3) The State of Oregon shall notify the worker of the
provisions of ORS 659A.060 to 659A.069, and of the remedies
available for breaches of ORS 659A.060 to 659A.069, within a
reasonable time after the State of Oregon receives notice that
the worker will be absent from work as a result of an injury or
illness for which a workers' compensation claim has been filed
pursuant to ORS chapter 656. The notice from the State of Oregon
shall include the terms and conditions of the continuation of
health benefits and what events will terminate the coverage.
(4) If the worker fails to make timely payment of any premium
contribution owing, the State of Oregon shall notify the worker
of impending cancellation of the health benefits and provide the
worker with 30 days to pay the required premium prior to
canceling the policy.
(5) It is an unlawful employment practice for the State of
Oregon to discriminate against a worker, as defined in ORS
659A.060, by terminating the worker's group health benefits while
that worker is absent from the place of employment as a result of
an injury or illness for which a workers' compensation claim has
been filed pursuant to ORS chapter 656, except as provided for in
this section.
SECTION 28. ORS 659A.063, as amended by section 27 of this 2003
Act, is amended to read:
659A.063. (1) The State of Oregon shall cause group health
benefits to continue in effect with respect to that worker and
any covered dependents or family members by timely payment of the
premium that includes the contribution due from the state under
the applicable benefit plan, subject to any premium contribution
due from the worker that the worker paid before the occurrence of
the injury or illness. If the premium increases or decreases, the
State of Oregon and worker contributions shall be adjusted to
remain consistent with similarly situated active employees. The
State of Oregon shall continue the worker's health benefits in
effect until whichever of the following events occurs first:
(a) The worker's attending physician { - or a nurse
practitioner authorized to provide compensable medical services
under ORS 656.245 - } has determined the worker to be medically
stationary and a notice of closure has been entered;
(b) The worker returns to work for the State of Oregon, after a
period of continued coverage under this section, and satisfies
any probationary or minimum work requirement to be eligible for
group health benefits;
(c) The worker takes full or part-time employment with another
employer that is comparable in terms of the number of hours per
week the worker was employed with the State of Oregon or the
worker retires;
(d) Twelve months have elapsed since the date the State of
Oregon received notice that the worker filed a workers'
compensation claim pursuant to ORS chapter 656;
(e) The claim is denied and the claimant fails to appeal within
the time provided by ORS 656.319 or the Workers' Compensation
Board or a workers' compensation hearings referee or a court
issues an order finding the claim is not compensable;
(f) The worker does not pay the required premium or portion
thereof in a timely manner in accordance with the terms and
conditions under this section;
(g) The worker elects to discontinue coverage under this
section and notifies the State of Oregon in writing of this
election;
(h) The worker's attending physician { - or a nurse
practitioner authorized to provide compensable medical services
under ORS 656.245 - } has released the worker to modified or
regular work, the work has been offered to the worker and the
worker refuses to return to work; or
(i) The worker has been terminated from employment for reasons
unrelated to the workers' compensation claim.
(2) If the workers' compensation claim of a worker for whom
health benefits are provided pursuant to subsection (1) of this
section is denied and the worker does not appeal or the worker
appeals and does not prevail, the State of Oregon may recover
from the worker the amount of the premiums plus interest at the
rate authorized by ORS 82.010. The State of Oregon may recover
the payments through a payroll deduction not to exceed 10 percent
of gross pay for each pay period.
(3) The State of Oregon shall notify the worker of the
provisions of ORS 659A.060 to 659A.069, and of the remedies
available for breaches of ORS 659A.060 to 659A.069, within a
reasonable time after the State of Oregon receives notice that
the worker will be absent from work as a result of an injury or
illness for which a workers' compensation claim has been filed
pursuant to ORS chapter 656. The notice from the State of Oregon
shall include the terms and conditions of the continuation of
health benefits and what events will terminate the coverage.
(4) If the worker fails to make timely payment of any premium
contribution owing, the State of Oregon shall notify the worker
of impending cancellation of the health benefits and provide the
worker with 30 days to pay the required premium prior to
canceling the policy.
(5) It is an unlawful employment practice for the State of
Oregon to discriminate against a worker, as defined in ORS
659A.060, by terminating the worker's group health benefits while
that worker is absent from the place of employment as a result of
an injury or illness for which a workers' compensation claim has
been filed pursuant to ORS chapter 656, except as provided for in
this section.
SECTION 29. { + The Director of the Department of Consumer and
Business Services shall develop and make available to nurse
practitioners informational materials about the workers'
compensation system, including, but not limited to, the
management of indemnity claims, standards for authorization of
temporary disability benefits, return to work responsibilities
and programs, and general workers' compensation rules and
procedures for medical service providers. + }
SECTION 30. { + On or after October 1, 2004, a nurse
practitioner licensed under ORS 678.375 to 678.390, prior to
providing compensable medical services or authorizing temporary
disability benefits under ORS 656.245, must certify in a form
acceptable to the Director of the Department of Consumer and
Business Services that the nurse practitioner has reviewed the
materials developed under section 29 of this 2003 Act. + }
SECTION 31. Every workers' compensation insurer, self-insured
employer and self-insured employer group shall provide to the
Director of the Department of Consumer and Business Services all
information requested by the director for the purpose of
assessing the impact of sections 29 and 30 of this 2003 Act and
the amendments to ORS 656.005, 656.245, 656.250, 656.252,
656.262, 656.268, 656.325, 656.340, 656.726, 657.170, 659A.043,
659A.046, 659A.049 and 659A.063 by sections 1, 3, 5, 7, 9, 11,
13, 15, 17, 19, 21, 23, 25 and 27 of this 2003 Act.
SECTION 32. { + The amendments to ORS 656.005, 656.245,
656.250, 656.252, 656.262, 656.268, 656.325, 656.340, 656.726,
657.170, 659A.043, 659A.046, 659A.049 and 659A.063 by sections 2,
4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26 and 28 of this 2003
Act become operative January 2, 2008. + }
SECTION 33. { + Sections 29, 30 and 31 of this 2003 Act are
repealed on January 2, 2008. + }
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