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 3719
Senate Bill 914
Sponsored by COMMITTEE ON RULES (at the request of Oregon
Self-Insurers Association)
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.
Requires Director of Department of Consumer and Business
Services or paying agent selected by director to administer
supplemental temporary disability benefits in certain workers'
compensation claims. Modifies reporting requirements for workers'
compensation claims by insurer and self-insured employer.
Requires director to conduct evaluation of requirements for
reporting claims to Department of Consumer and Business Services
and report results to Workers' Compensation Management-Labor
Advisory Committee.
A BILL FOR AN ACT
Relating to workers' compensation claims; creating new
provisions; and amending ORS 656.210, 656.262 and 656.264.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 656.210 is amended to read:
656.210. (1) When the total disability is only temporary, the
worker shall receive during the period of that total disability
compensation equal to 66-2/3 percent of wages, but not more than
133 percent of the average weekly wage nor less than the amount
of 90 percent of wages a week or the amount of $50 a week,
whichever amount is less. Notwithstanding the limitation imposed
by this subsection, an injured worker who is not otherwise
eligible to receive an increase in benefits for the fiscal year
in which compensation is paid shall have the benefits increased
each fiscal year by the percentage which the applicable average
weekly wage has increased since the previous fiscal year.
(2)(a) For the purpose of this section, the weekly wage of
workers shall be ascertained:
(A) For workers employed in one job at the time of injury, by
multiplying the daily wage the worker was receiving by the number
of days per week that the worker was regularly employed; or
(B) For workers employed in more than one job at the time of
injury, by adding all earnings the worker was receiving from all
subject employment.
(b) Notwithstanding paragraph (a)(B) of this subsection, the
weekly wage calculated under paragraph (a)(A) of this subsection
shall be used for workers employed in more than one job at the
time of injury unless, within 30 days of receipt of the initial
claim, the insurer, self-insured employer or assigned claims
agent for a noncomplying employer receives notice that the worker
was employed in more than one job with a subject employer at the
time of injury and receives verifiable documentation of wages
from such additional employment.
(c) Notwithstanding ORS 656.005 (7)(c), an injury to a worker
employed in more than one job at the time of injury is not
disabling if no temporary disability benefits are payable for
time lost from the job at injury. Claim costs incurred as a
result of supplemental temporary disability benefits paid as
provided in subsection (5) of this section may not be included in
any data used for ratemaking or individual employer rating or
dividend calculations by a guaranty contract insurer, a rating
organization licensed pursuant to ORS chapter 737, the State
Accident Insurance Fund Corporation or the Department of Consumer
and Business Services if the injured worker is not eligible for
permanent disability benefits or temporary disability benefits
for time lost from the job at injury.
(d) For the purpose of this section:
(A) The benefits of a worker who incurs an injury shall be
based on the wage of the worker at the time of injury.
(B) The benefits of a worker who incurs an occupational disease
shall be based on the wage of the worker at the time there is
medical verification that the worker is unable to work because of
the disability caused by the occupational disease. If the worker
is not working at the time that there is medical verification
that the worker is unable to work because of the disability
caused by the occupational disease, the benefits shall be based
on the wage of the worker at the worker's last regular
employment.
(e) As used in this subsection, 'regularly employed' means
actual employment or availability for such employment. For
workers not regularly employed and for workers with no
remuneration or whose remuneration is not based solely upon daily
or weekly wages, the Director of the Department of Consumer and
Business Services, by rule, may prescribe methods for
establishing the worker's weekly wage.
(3) No disability payment is recoverable for temporary total or
partial disability suffered during the first three calendar days
after the worker leaves work or loses wages as a result of the
compensable injury unless the worker is totally disabled after
the injury and the total disability continues for a period of 14
consecutive days or unless the worker is admitted as an inpatient
to a hospital within 14 days of the first onset of total
disability. If the worker leaves work or loses wages on the day
of the injury due to the injury, that day shall be considered the
first day of the three-day period.
(4) When an injured worker with an accepted disabling
compensable injury is required to leave work for a period of four
hours or more to receive medical consultation, examination or
treatment with regard to the compensable injury, the worker shall
receive temporary disability benefits calculated pursuant to ORS
656.212 for the period during which the worker is absent, until
such time as the worker is determined to be medically stationary.
However, benefits under this subsection are not payable if wages
are paid for the period of absence by the employer.
(5)(a) The insurer of the employer at injury or the
self-insured employer at injury, may elect to be responsible for
payment of supplemental temporary disability benefits to a worker
employed in more than one job at the time of injury. In
accordance with rules adopted by the director, if the worker's
weekly wage is determined under subsection (2)(a)(B) of this
section, the insurer or self-insured employer shall be reimbursed
from the Workers' Benefit Fund for the amount of temporary
disability benefits paid that exceeds the amount payable pursuant
to subsection (2)(a)(A) of this section had the worker been
employed in only one job at the time of injury. Such
reimbursement shall include an administrative fee payable to the
insurer or self-insured employer pursuant to rules adopted by the
director.
(b) If the insurer or self-insured employer elects not to pay
the supplemental temporary disability benefits for a worker
employed in more than { + one + } job at the time of injury, the
director shall either { + administer and + } pay the
supplemental benefits directly or shall assign responsibility to
{ + administer and + } process the payment to a paying agent
selected by the director.
SECTION 2. 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) - } { + (13) + } 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) - } { + (14) + } 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 3. ORS 656.264 is amended to read:
656.264. (1) Insurers and self-insured employers shall report
to the Director of the Department of Consumer and Business
Services compensable injuries, { + denied claims, + } claims
disposition and payments made by them under this chapter.
(2) The director may require insurers and self-insured
employers to report other information as required to carry out
this chapter.
(3) The director may prescribe the interval and the form of
such reports and establish sanctions for the enforcement of
reporting requirements.
SECTION 4. { + The Director of the Department of Consumer and
Business Services shall conduct an evaluation of the requirements
for reporting claims to the Department of Consumer and Business
Services under ORS chapter 656. The director shall report the
results of the evaluation to the Workers' Compensation
Management-Labor Advisory Committee established under ORS 656.790
by December 15, 2004. + }
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