Chapter 675 Oregon Laws 2005

AN ACT

SB 311

Relating to required medical examinations for workers’ compensation claims; creating new provisions; amending ORS 656.325 and 656.780; and limiting expenditures.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 656.325, as amended by section 11, chapter 657, Oregon Laws 2003, 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 independent medical 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) When a worker is requested by the director, the insurer or self-insured employer to attend an independent medical examination, the examination must be conducted by a physician selected from a list of qualified physicians established by the director under section 5 of this 2005 Act.

(c) The director shall adopt rules applicable to independent medical examinations conducted pursuant to paragraph (a) of this subsection that:

(A) Provide a worker the opportunity to request review by the director of the reasonableness of the location selected for an independent medical examination. Upon receipt of the request for review, the director shall conduct an expedited review of the location selected for the independent medical examination and issue an order on the reasonableness of the location of the examination. The director shall determine if there is substantial evidence for the objection to the location for the independent medical examination based on a conclusion that the required travel is medically contraindicated or other good cause establishing that the required travel is unreasonable. The determinations of the director about the location of independent medical examinations are not subject to review.

(B) Impose a monetary penalty against a worker who fails to attend an independent medical examination without prior notification or without justification for not attending the examination. A penalty imposed under this subparagraph may be imposed only on a worker who is not receiving temporary disability benefits under ORS 656.210 or 656.212. An insurer or self-insured employer may offset any future compensation payable to the worker to recover any penalty imposed under this subparagraph from a claim with the same insurer or self-insured employer. When a penalty is recovered from temporary disability or permanent total disability benefits, the amount recovered from each payment may not exceed 25 percent of the benefit payment without prior authorization from the worker.

(C) Impose a sanction against a medical service provider that unreasonably fails to provide in a timely manner diagnostic records required for an independent medical examination.

(d) Notwithstanding ORS 656.262 (6), if the director determines that the location selected for an independent medical examination is unreasonable, the insurer or self-insured employer shall accept or deny the claim within 90 days after the employer has notice or knowledge of the claim.

[(b)] (e) 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)] section 5 of this 2005 Act. The cost of the examination and the examination report shall be paid by the insurer or self-insured employer.

[(c)] (f) 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] paragraph, “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] paragraph shall be made in the manner prescribed by the director.

(g) A worker who objects to the location of an independent medical examination must request review by the director under paragraph (c)(A) of this subsection within six business days of the date the notice of the independent medical examination was mailed.

(2) For any period of time during which any worker commits unsanitary 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 permanent total or permanent 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 2. ORS 656.325, as amended by sections 11 and 12, chapter 657, Oregon Laws 2003, and section 14, chapter 811, Oregon Laws 2003, is amended to read:

(c) The director shall adopt rules applicable to independent medical examinations conducted pursuant to paragraph (a) of this subsection that:

(A) Provide a worker the opportunity to request review by the director of the reasonableness of the location selected for an independent examination. Upon receipt of the request for review, the director shall conduct an expedited review of the location selected for the independent medical examination and issue an order on the reasonableness of the location of the examination. The director shall determine if there is substantial evidence for the objection to the location for the independent medical examination based on a conclusion that the required travel is medically contraindicated or other good cause establishing that the required travel is unreasonable. The determinations of the director about the location of independent medical examinations are not subject to review.

(C) Impose a sanction against a medical service provider that unreasonably fails to provide in a timely manner diagnostic records required for an independent medical examination.

[(b)] (e) 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 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)] section 5 of this 2005 Act. The cost of the examination and the examination report shall be paid by the insurer or self-insured employer.

(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 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, 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 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 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 3. ORS 656.780 is amended to read:

656.780. (1) The Director of the Department of Consumer and Business Services shall:

(a) Adopt by rule standards for certification of workers’ compensation claims examiners[.] that shall be administered byworkers’ compensation insurers, self-insured employers and third party administrators [shall administer the standards.]; and

(b) Develop or approve any training curriculum used by insurers, self-insured employers and third party administrators that is related to interactions with independent medical examination providers required under ORS 656.325.

(2)(a) Each insurer, self-insured employer and third party administrator shall maintain records of the certification and training of their workers’ compensation claims examiners. These records are subject to inspection and review by the director.

(b) The director may impose a civil penalty against any insurer, self-insured employer or third party administrator that fails to:

(A) Maintain or produce certification and training records as required by the rules of the director; or

(B) Provide training based on a curriculum approved by the director related to interactions with independent medical examination providers required under ORS 656.325.

(3) Insurers, self-insured employers and third party administrators may employ only certified workers’ compensation claims examiners to process workers’ compensation claims. The director may impose a civil penalty against any insurer, self-insured employer or third party administrator that violates this subsection.

SECTION 4. Section 5 of this 2005 Act is added to and made a part of ORS chapter 656.

SECTION 5. (1) The Director of the Department of Consumer and Business Services shall maintain a list of providers that are authorized to perform independent medical examinations.

(2) A provider on the list maintained by the director under subsection (1) of this section may be excluded from the list by the director after a finding of a violation of standards of professional conduct for conducting independent medical examinations adopted by the appropriate health professional regulatory board. If a health professional regulatory board has not adopted standards pertaining to independent medical examinations, the guidelines of conduct published by the American Board of Independent Medical Examiners in effect on the effective date of this 2005 Act shall apply as standards pertaining to providers conducting independent medical examinations that are licensed by that board. The decision of the director to exclude a provider from the list maintained under subsection (1) of this section is subject to review under ORS 656.704.

(3) The director, in consultation with the advisory committee on medical care of the Workers’ Compensation Division of the Department of Consumer and Business Services, the Workers’ Compensation Management-Labor Advisory Committee and affected interest groups shall develop, and the director shall adopt by rule:

(a) Professional licensing training requirements and educational materials for physicians participating in the workers’ compensation system and conducting independent medical examinations required under ORS 656.325 (1); and

(b) A process for investigating and reviewing complaints about independent medical examinations conducted under the requirements of ORS 656.325 (1) that includes, but is not limited to, standards for referring complaints to the appropriate health professional regulatory board and an appeals process for a physician who disagrees with an action taken by the director under subsection (2) of this section.

SECTION 6. Section 5 of this 2005 Act becomes operative on July 1, 2006.

SECTION 7. The Director of the Department of Consumer and Business Services may take any action before the operative date of section 5 of this 2005 Act that is necessary to enable the director to exercise, on and after the operative date of section 5 of this 2005 Act, the duties, powers and functions conferred on the director by this 2005 Act.

SECTION 8. The amendments to ORS 656.325 and 656.780 by sections 1, 2 and 3 of this 2005 Act apply to all claims in which an independent medical examination required under ORS 656.325 is scheduled on or after the effective date of this 2005 Act.

SECTION 9. Notwithstanding any other law limiting expenditures, the limitation on expenditures for the Department of Consumer and Business Services for the biennium beginning July 1, 2005, established as the maximum limit for payment of expenses from fees, moneys or other revenues, including Miscellaneous Receipts, but excluding lottery funds and federal funds, collected or received by the Department of Consumer and Business Services, is increased by $525,608 for the purpose of carrying out the provisions of sections 5 and 7 of this 2005 Act and the amendments to ORS 656.325 and 656.780 by sections 1, 2 and 3 of this 2005 Act.

Approved by the Governor July 29, 2005

Filed in the office of Secretary of State July 29, 2005

Effective date January 1, 2006

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