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 3124
 
                         Senate Bill 802
 
Sponsored by Senator BROWN (at the request of Injured Workers
  Coalition)
 
 
                             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 as
introduced.
 
  Modifies meaning of gainful employment for determinations of
permanent total disability in workers' compensation claims.
Provides opportunity for oral evidentiary hearing as part of
reconsideration process. Changes circumstances for extension of
time allowed to complete reconsideration.
 
                        A BILL FOR AN ACT
Relating to permanent disability in workers' compensation claims;
  amending ORS 656.206 and 656.268.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 656.206 is amended to read:
  656.206. (1) As used in this section:
  (a) Notwithstanding ORS 656.225, 'permanent total disability'
means the loss, including preexisting disability, of use or
function of any scheduled or unscheduled portion of the body
which permanently incapacitates the worker from regularly
performing work at a gainful and suitable occupation. As used in
this section, a gainful occupation is one that pays wages equal
to or greater than   { - the state mandated hourly minimum
wage - }  { +  80 percent of the wages the worker was earning at
the time of injury + }.  As used in this section, a suitable
occupation is one that the worker has the ability and the
training or experience to perform, or an occupation that the
worker is able to perform after rehabilitation.
  (b) 'Wages' means wages as determined under ORS 656.210.
  (2) When permanent total disability results from the injury,
the worker shall receive during the period of that disability
compensation benefits equal to 66-2/3 percent of wages not to
exceed 100 percent of the average weekly wage nor less than the
amount of 90 percent of wages a week or the amount of $50,
whichever amount is lesser.
  (3) The worker has the burden of proving permanent total
disability status and must establish that the worker is willing
to seek regular gainful employment and that the worker has made
reasonable efforts to obtain such employment.
  (4) When requested by the Director of the Department of
Consumer and Business Services, a worker who receives permanent
total disability benefits shall file on a form provided by the
director, a sworn statement of the worker's gross annual income
for the preceding year along with such other information as the
director considers necessary to determine whether the worker
regularly performs work at a gainful and suitable occupation.
  (5) Each insurer shall reexamine periodically each permanent
total disability claim for which the insurer has current payment
responsibility to determine whether the worker is currently
permanently incapacitated from regularly performing work at a
gainful and suitable occupation. Reexamination shall be conducted
every two years or at such other more frequent interval as the
director may prescribe. Reexamination shall include such medical
examinations, reports and other records as the insurer considers
necessary or the director may require.
  SECTION 2. ORS 656.268 is amended to read:
  656.268. (1) One purpose of this chapter is to restore the
injured worker as soon as possible and as near as possible to a
condition of self support and maintenance as an able-bodied
worker. The insurer or self-insured employer shall close the
worker's claim, as prescribed by the Director of the Department
of Consumer and Business Services, and determine the extent of
the worker's permanent disability, provided the worker is not
enrolled and actively engaged in training according to rules
adopted by the director pursuant to ORS 656.340 and 656.726,
when:
  (a) The worker has become medically stationary and there is
sufficient information to determine permanent impairment;
  (b) The accepted injury is no longer the major contributing
cause of the worker's combined or consequential condition or
conditions pursuant to ORS 656.005 (7). When the claim is closed
because the accepted injury is no longer the major contributing
cause of the worker's combined or consequential condition or
conditions, and there is sufficient information to determine
permanent impairment, the likely impairment and adaptability that
would have been due to the current accepted condition shall be
estimated; or
  (c) Without the approval of the attending physician, the worker
fails to seek medical treatment for a period of 30 days or the
worker fails to attend a closing examination, unless the worker
affirmatively establishes that such failure is attributable to
reasons beyond the worker's control.
  (2) If the worker is enrolled and actively engaged in training
according to rules adopted pursuant to ORS 656.340 and 656.726,
the temporary disability compensation shall be proportionately
reduced by any sums earned during the training.
  (3) A copy of all medical reports and reports of vocational
rehabilitation agencies or counselors shall be furnished to the
worker { +  and to the employer + }, if requested by the
worker { +  or the employer. The worker must be notified of the
worker's right to these records in the notice of claim
closure + }.
  (4) Temporary total disability benefits shall continue until
whichever of the following events first occurs:
  (a) The worker returns to regular or modified employment;
  (b) The attending physician advises the worker and documents in
writing that the worker is released to return to regular
employment;
  (c) The attending physician advises the worker and documents in
writing that the worker is released to return to modified
employment, such employment is offered in writing to the worker
and the worker fails to begin such employment. However, an offer
of modified employment may be refused by the worker without the
termination of temporary total disability benefits if the offer:
  (A) Requires a commute that is beyond the physical capacity of
the worker according to the worker's attending physician;
  (B) Is at a work site more than 50 miles one way from where the
worker was injured unless the site is less than 50 miles from the
worker's residence or the intent of the parties at the time of
hire or as established by the pattern of employment prior to the
injury was that the employer had multiple or mobile work sites
and the worker could be assigned to any such site;
  (C) Is not with the employer at injury;
  (D) Is not at a work site of the employer at injury;
  (E) Is not consistent with the existing written shift change
policy or is not consistent with common practice of the employer
at injury or aggravation; or
  (F) Is not consistent with an existing shift change provision
of an applicable collective bargaining agreement; or
  (d) Any other event that causes temporary disability benefits
to be lawfully suspended, withheld or terminated under ORS
656.262 (4) or other provisions of this chapter.
  (5)(a) Findings by the insurer or self-insured employer
regarding the extent of the worker's disability in closure of the
claim shall be pursuant to the standards prescribed by the
Director of the Department of Consumer and Business Services. The
insurer or self-insured employer shall issue a notice of closure
of such a claim to the worker, to the worker's attorney if the
worker is represented, and to the director. The notice must
inform:
  (A) The parties, in boldfaced type, of the proper manner in
which to proceed if they are dissatisfied with the terms of the
notice;
  (B) The worker of the amount of any further compensation,
including permanent disability compensation to be awarded; of the
duration of temporary total or temporary partial disability
compensation; of the right of the worker to request
reconsideration by the director under this section within 60 days
of the date of the notice of claim closure; of the aggravation
rights; and of such other information as the director may
require; and
  (C) Any beneficiaries of death benefits to which they may be
entitled pursuant to ORS 656.204 and 656.208.
  (b) If the 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 - }   { + As part of + } the reconsideration proceeding
 { - : - }  { + , the worker may request an oral evidentiary
hearing to make a meaningful record on the elements of proof that
are necessary to meet the burden of proof and persuasion required
to establish the extent of the worker's disability. If permanent
total disability is an issue at the hearing, the worker may
present evidence of impairment resulting from the compensable
injury as well as modifying factors including age, education,
adaptability to perform a given job and preexisting
conditions. + }
    { - (A) A deposition arranged by the worker, limited to the
testimony and cross-examination of the worker about the worker's
condition at the time of claim closure, shall become part of the
reconsideration record. The deposition must be conducted subject
to the opportunity for cross-examination by the insurer or
self-insured employer and in accordance with rules adopted by the
director. The cost of the court reporter and one original of the
transcript of the deposition for the Department of Consumer and
Business Services and one copy of the transcript of the
deposition for each party shall be paid by the insurer or
self-insured employer. The reconsideration proceeding may not be
postponed to receive a deposition taken under this subparagraph.
A deposition taken in accordance with this subparagraph may be
received as evidence at a hearing even if the deposition is not
prepared in time for use in the reconsideration proceeding. - }
    { - (B) - }  Pursuant to rules adopted by the director, the
worker or the insurer or self-insured employer may correct
information in the record that is erroneous and may submit any
medical evidence that should have been but was not submitted by
the attending physician at the time of claim closure.
    { - (C) - }  If the director determines that a claim was not
closed in accordance with subsection (1) of this section, the
director may rescind the closure.
  (b) If necessary, the director may require additional medical
or other information with respect to the claims and may postpone
the reconsideration for not more than 60 additional calendar
days.
  (c) In any reconsideration proceeding under this section in
which the worker was represented by an attorney, the director
shall order the insurer or self-insured employer to pay to the
attorney, out of the additional compensation awarded, an amount
equal to 10 percent of any additional compensation awarded to the
worker.
  (d) The reconsideration proceeding shall be completed within 18
working days from the date the reconsideration proceeding begins,
and shall be performed by a special evaluation appellate unit
within the department. The deadline of 18 working days may be
postponed by an additional 60 calendar days if within the 18
working days the department mails notice of review by a medical
arbiter { +  or if the worker requests an oral evidentiary
hearing on the notice of closure + }. 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 a request
for hearing has been made + } 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 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.
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