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 471
A-Engrossed
Senate Bill 63
Ordered by the Senate April 1
Including Senate Amendments dated April 1
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Joint Interim Committee on
Judiciary for Oregon State Bar Workers Compensation Section)
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.
Requires Administrative Law Judge to set hearing on multiple
employer claims after all potentially responsible employers have
been joined and medical record has been developed. Requires
Workers' Compensation Board to adopt rules for multiple employer
hearings.
{ + Prohibits imposing penalty related to timeliness of
denial when hearing has been postponed. + }
A BILL FOR AN ACT
Relating to multiple employer hearings on workers' compensation
claims; amending ORS 656.262 and 656.283.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 656.262 is amended to read:
656.262. (1) Processing of claims and providing compensation
for a worker shall be the responsibility of the insurer or
self-insured employer. All employers shall assist their insurers
in processing claims as required in this chapter.
(2) The compensation due under this chapter shall be paid
periodically, promptly and directly to the person entitled
thereto upon the employer's receiving notice or knowledge of a
claim, except where the right to compensation is denied by the
insurer or self-insured employer.
(3)(a) Employers shall, immediately and not later than five
days after notice or knowledge of any claims or accidents which
may result in a compensable injury claim, report the same to
their insurer. The report shall include:
(A) The date, time, cause and nature of the accident and
injuries.
(B) Whether the accident arose out of and in the course of
employment.
(C) Whether the employer recommends or opposes acceptance of
the claim, and the reasons therefor.
(D) The name and address of any health insurance provider for
the injured worker.
(E) Any other details the insurer may require.
(b) Failure to so report subjects the offending employer to a
charge for reimbursing the insurer for any penalty the insurer is
required to pay under subsection (11) of this section because of
such failure. As used in this subsection, 'health insurance' has
the meaning for that term provided in ORS 731.162.
(4)(a) The first installment of temporary disability
compensation shall be paid no later than the 14th day after the
subject employer has notice or knowledge of the claim, if the
attending physician authorizes the payment of temporary
disability compensation. Thereafter, temporary disability
compensation shall be paid at least once each two weeks, except
where the Director of the Department of Consumer and Business
Services determines that payment in installments should be made
at some other interval. The director may by rule convert monthly
benefit schedules to weekly or other periodic schedules.
(b) Notwithstanding any other provision of this chapter, if a
self-insured employer pays to an injured worker who becomes
disabled the same wage at the same pay interval that the worker
received at the time of injury, such payment shall be deemed
timely payment of temporary disability payments pursuant to ORS
656.210 and 656.212 during the time the wage payments are made.
(c) Notwithstanding any other provision of this chapter, when
the holder of a public office is injured in the course and scope
of that public office, full official salary paid to the holder of
that public office shall be deemed timely payment of temporary
disability payments pursuant to ORS 656.210 and 656.212 during
the time the wage payments are made. As used in this subsection,
' public office' has the meaning for that term provided in ORS
260.005.
(d) Temporary disability compensation is not due and payable
for any period of time for which the insurer or self-insured
employer has requested from the worker's attending physician
verification of the worker's inability to work resulting from the
claimed injury or disease and the physician cannot verify the
worker's inability to work, unless the worker has been unable to
receive treatment for reasons beyond the worker's control.
(e) If a worker fails to appear at an appointment with the
worker's attending physician, the insurer or self-insured
employer shall notify the worker by certified mail that temporary
disability benefits may be suspended after the worker fails to
appear at a rescheduled appointment. If the worker fails to
appear at a rescheduled appointment, the insurer or self-insured
employer may suspend payment of temporary disability benefits to
the worker until the worker appears at a subsequent rescheduled
appointment.
(f) If the insurer or self-insured employer has requested and
failed to receive from the worker's attending physician
verification of the worker's inability to work resulting from the
claimed injury or disease, medical services provided by the
attending physician are not compensable until the attending
physician submits such verification.
(g) Temporary disability compensation is not due and payable
pursuant to ORS 656.268 after the worker's attending physician
ceases to authorize temporary disability or for any period of
time not authorized by the attending physician. No authorization
of temporary disability compensation by the attending physician
under ORS 656.268 shall be effective to retroactively authorize
the payment of temporary disability more than 14 days prior to
its issuance.
(h) The worker's disability may be authorized only by a person
described in ORS 656.005 (12)(b)(B) or 656.245 (5) for the period
of time permitted by those sections. The insurer or self-insured
employer may unilaterally suspend payment of temporary disability
benefits to the worker at the expiration of the period until
temporary disability is reauthorized by an attending physician.
(i) The insurer or self-insured employer may unilaterally
suspend payment of all compensation to a worker enrolled in a
managed care organization if the worker continues to seek care
from an attending physician not authorized by the managed care
organization more than seven days after the mailing of notice by
the insurer or self-insured employer.
(5) Payment of compensation under subsection (4) of this
section or payment, in amounts not to exceed $500 per claim, for
medical services for nondisabling claims, may be made by the
subject employer if the employer so chooses. The making of such
payments does not constitute a waiver or transfer of the
insurer's duty to determine entitlement to benefits. If the
employer chooses to make such payment, the employer shall report
the injury to the insurer in the same manner that other injuries
are reported. However, an insurer shall not modify an employer's
experience rating or otherwise make charges against the employer
for any medical expenses paid by the employer pursuant to this
subsection.
(6)(a) Written notice of acceptance or denial of the claim
shall be furnished to the claimant by the insurer or self-insured
employer within 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.
{ + (16) In accordance with ORS 656.283 (4), the
Administrative Law Judge assigned a request for hearing for a
claim for compensation involving more than one potentially
responsible employer or insurer may specify what is required of
an injured worker to reasonably cooperate with the investigation
of the claim as required by subsection (14) of this section. + }
SECTION 2. ORS 656.283 is amended to read:
656.283. (1) Subject to ORS 656.319, any party or the Director
of the Department of Consumer and Business Services may at any
time request a hearing on any matter concerning a claim, except
matters for which a procedure for resolving the dispute is
provided in another statute, including ORS 656.245, 656.248,
656.260, 656.327 and subsection (2) of this section.
(2)(a) The Legislative Assembly finds that vocational
rehabilitation of injured workers requires a high degree of
cooperation between all of the participants in the vocational
assistance process. Based on this finding, the Legislative
Assembly concludes that disputes regarding eligibility for and
extent of vocational assistance services should be resolved
through nonadversarial procedures to the greatest extent possible
consistent with constitutional principles. The director is hereby
charged with the duty of creating a procedure for resolving
vocational assistance disputes in the manner provided in this
subsection.
(b) If a worker is dissatisfied with an action of the insurer
or self-insured employer regarding vocational assistance, the
worker must apply to the director for administrative review of
the matter. Such application must be made not later than the 60th
day after the date the worker was notified of the action. The
director shall complete the review within a reasonable time. If
the worker's dissatisfaction is resolved by agreement of the
parties, the agreement shall be reduced to writing, and the
director and the parties shall review the agreement and either
approve or disapprove it. If the worker's dissatisfaction is not
resolved by agreement of the parties, the director shall resolve
the matter in a written order containing findings of fact and
conclusions of law. The order shall be based on a record
sufficient to permit review under paragraph (c) of this
subsection. For purposes of this subsection, the term 'parties'
does not include a noncomplying employer.
(c) Director approval of an agreement resolving a vocational
assistance matter shall be subject to reconsideration by the
director under limitations prescribed by the director, but shall
not be subject to review by any other forum. When the director
issues an order after review under paragraph (b) of this
subsection, the order shall be subject to review only by the
director. At the contested case hearing, the decision of the
director's administrative review shall be modified only if it:
(A) Violates a statute or rule;
(B) Exceeds the statutory authority of the agency;
(C) Was made upon unlawful procedure; or
(D) Was characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
(d) An appeal of the director's administrative review under
paragraph (b) of this subsection must be made within 60 days of
the review issue date. Judicial review of the order shall be
pursuant to ORS 183.310 to 183.550.
(3) A request for hearing may be made by any writing, signed by
or on behalf of the party and including the address of the party,
requesting the hearing, stating that a hearing is desired, and
mailed to the Workers' Compensation Board.
(4) { + (a) + } The board shall refer the request for hearing
to an Administrative Law Judge for determination as expeditiously
as possible. The hearing shall be scheduled for a date not more
than 90 days after receipt by the board of the request for
hearing. The hearing shall not be postponed except in
extraordinary circumstances beyond the control of the requesting
party.
{ + (b) When a hearing set pursuant to paragraph (a) of this
subsection is postponed because of the need to join one or more
potentially responsible employers or insurers, the assigned
Administrative Law Judge shall reschedule the hearing as
expeditiously as possible after all potentially responsible
employers and insurers have been joined in the proceeding and the
medical record has been fully developed. The board shall adopt
rules for hearings on claims involving one or more potentially
responsible employers and insurers that:
(A) Require the parties to participate in any prehearing
conferences required to expedite the hearing; and
(B) Authorize the Administrative Law Judge conducting the
hearing to:
(i) Establish a prehearing schedule for investigation of the
claim, including but not limited to the interviewing of the
claimant;
(ii) Make prehearing rulings necessary to promote full
discovery and completion of the medical record required for
determination of the the issues arising from the claim; and
(iii) Specify what is required of the claimant to meet the
obligation to reasonably cooperate with the investigation of
claims.
(c) Nothing in paragraph (b) of this subsection alters the
obligation of an insurer or self-insured employer to accept or
deny a claim for compensation as required under this chapter.
(d) If a hearing has been postponed in accordance with
paragraph (b) of this subsection, the director may not consider
the timeliness of a denial issued in the claim that is the
subject of the hearing for the purpose of imposing a penalty
against an insurer or self-insured employer that is potentially
responsible for the claim. + }
(5) At least 10 days' prior notice of the time and place of
hearing shall be given to all parties in interest by mail.
Hearings shall be held in the county where the worker resided at
the time of the injury or such other place selected by the
Administrative Law Judge.
(6) A record of all proceedings at the hearing shall be kept
but need not be transcribed unless a party requests a review of
the order of the Administrative Law Judge. Transcription shall be
in written form as provided by ORS 656.295 (3).
(7) Except as otherwise provided in this section and rules of
procedure established by the board, the Administrative Law Judge
is not bound by common law or statutory rules of evidence or by
technical or formal rules of procedure, and may conduct the
hearing in any manner that will achieve substantial justice.
Neither the board nor an Administrative Law Judge may prevent a
party from withholding impeachment evidence until the opposing
party's case in chief has been presented, at which time the
impeachment evidence may be used. Impeachment evidence consisting
of medical or vocational reports not used during the course of a
hearing must be provided to any opposing party at the conclusion
of the presentation of evidence and before closing arguments are
presented. Impeachment evidence other than medical or vocational
reports that is not presented as evidence at hearing is not
subject to disclosure. Evaluation of the worker's disability by
the Administrative Law Judge shall be as of the date of issuance
of the reconsideration order pursuant to ORS 656.268. Any finding
of fact regarding the worker's impairment must be established by
medical evidence that is supported by objective findings. The
Administrative Law Judge shall apply to the hearing of the claim
such standards for evaluation of disability as may be adopted by
the director pursuant to ORS 656.726. Evidence on an issue
regarding a notice of closure that was not submitted at the
reconsideration required by ORS 656.268 is not admissible at
hearing, and issues that were not raised by a party to the
reconsideration may not be raised at hearing unless the issue
arises out of the reconsideration order itself. However, nothing
in this section shall be construed to prevent or limit the right
of a worker, insurer or self-insured employer to present the
reconsideration record at hearing to establish by a preponderance
of that evidence that the standards adopted pursuant to ORS
656.726 for evaluation of the worker's permanent disability were
incorrectly applied in the reconsideration order pursuant to ORS
656.268. If the Administrative Law Judge finds that the claim has
been closed prematurely, the Administrative Law Judge shall issue
an order rescinding the notice of closure.
(8) Any party shall be entitled to issuance and service of
subpoenas under the provisions of ORS 656.726 (2)(c). Any party
or representative of the party may serve such subpoenas.
(9) After a party requests a hearing and before the hearing
commences, the board, by rule, may require the requesting party,
if represented by an attorney, to notify the Administrative Law
Judge in writing that the attorney has conferred with the other
party and that settlement has been achieved, subject to board
approval, or that settlement cannot be achieved.
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