73rd OREGON LEGISLATIVE ASSEMBLY--2005 Regular Session
Enrolled
House Bill 2091
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor Theodore R.
Kulongoski for Office of Regulatory Streamlining)
CHAPTER ................
AN ACT
Relating to review of certain decisions in workers' compensation
claims; creating new provisions; and amending ORS 183.635,
656.054, 656.170, 656.245, 656.247, 656.248, 656.254, 656.260,
656.262, 656.283, 656.327, 656.385, 656.440, 656.704 and
656.726.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 656.054 is amended to read:
656.054. (1) A compensable injury to a subject worker while in
the employ of a noncomplying employer is compensable to the same
extent as if the employer had complied with this chapter. The
Director of the Department of Consumer and Business Services
shall refer the claim for such an injury to an assigned claims
agent within 60 days of the date the director has notice of the
claim. At the time of referral of the claim, the director shall
notify the employer in writing regarding the referral of the
claim and the employer's right to object to the claim. A claim
for compensation made by such a worker shall be processed by the
assigned claims agent in the same manner as a claim made by a
worker employed by a carrier-insured employer, except that the
time within which the first installment of compensation is to be
paid, pursuant to ORS 656.262 (4), shall not begin to run until
the director has referred the claim to the assigned claims agent.
At any time within which the claim may be accepted or denied as
provided in ORS 656.262, the employer may request a hearing to
object to the claim. If an order becomes final holding the claim
to be compensable, the employer is liable for all costs imposed
by this chapter, including reasonable attorney fees to be paid to
the worker's attorney for services rendered in connection with
the employer's objection to the claim.
(2) In addition to, and not in lieu of, any civil penalties
assessed pursuant to ORS 656.735, all costs to the Workers'
Benefit Fund incurred under subsection (1) of this section shall
be a liability of the noncomplying employer. Such costs include
compensation, disputed claim settlements pursuant to ORS 656.289
and claim disposition agreements pursuant to ORS 656.236, whether
or not the noncomplying employer agrees and executes such
documents, reasonable administrative costs and claims processing
costs provided by contract, attorney fees related to
compensability issues and any attorney fees awarded to the
claimant, but do not include assessments for reserves in the
Enrolled House Bill 2091 (HB 2091-A) Page 1
Workers' Benefit Fund. The director shall recover such costs from
the employer. The director periodically shall pay the assigned
claims agent from the Workers' Benefit Fund for any costs the
assigned claims agent incurs under this section in accordance
with the terms of the contract. When the director prevails in any
action brought pursuant to this subsection, the director is
entitled to recover from the noncomplying employer court costs
and attorney fees incurred by the director.
(3) Periodically, or upon the request of a noncomplying
employer in a particular claim, the director shall audit the
files of the State Accident Insurance Fund Corporation and any
assigned claims agents to validate the amount reimbursed pursuant
to subsection (2) of this section. The conditions for granting or
denying of reimbursement shall be specified in the contract with
the assigned claims agent. The contract at least shall provide
for denial of reimbursement if, upon such audit, any of the
following are found to apply:
(a) Compensation has been paid as a result of untimely,
inaccurate, or improper claims processing;
(b) Compensation has been paid negligently for treatment of any
condition unrelated to the compensable condition;
(c) The compensability of an accepted claim is questionable and
the rationale for acceptance has not been reasonably documented
in accordance with generally accepted claims management
procedures;
(d) The separate payments of compensation have not been
documented in accordance with generally accepted accounting
procedures; or
(e) The payments were made pursuant to a disposition agreement
as provided by ORS 656.236 without the prior approval of the
director.
(4) The State Accident Insurance Fund Corporation and any
assigned claims agent may { - appeal - } { + request review
under ORS 656.704 of + } any disapproval of reimbursement made by
the director under this section { - pursuant to ORS chapter 183
and such procedural rules as the director may prescribe - } .
(5) Claims of injured workers of noncomplying employers may be
assigned and reassigned by the director for claims processing
regardless of the date of the worker's injury.
(6) In selecting an assigned claims agent, the director must
consider the assigned claims agent's ability to deliver timely
and appropriate benefits to injured workers, the ability to
control both claims cost and administrative cost and such other
factors as the director considers appropriate.
(7) If no qualified entity agrees to be an assigned claims
agent, the director may require one or more of the three highest
premium producing insurers to be assigned claims agents.
Notwithstanding any other provision of law, the director's
selection of assigned claims agents shall be made at the sole
discretion of the director. Such selections shall not be subject
to review by any court or other administrative body.
(8) Any assigned claims agent, except the State Accident
Insurance Fund Corporation, may employ legal counsel of its
choice for representation under this section.
(9) As used in this section, 'assigned claims agent' means an
insurer, casualty adjuster or a third party administrator with
whom the director contracts to manage claims of injured workers
of noncomplying employers.
SECTION 2. ORS 656.170 is amended to read:
Enrolled House Bill 2091 (HB 2091-A) Page 2
656.170. (1) In a collective bargaining agreement between a
private employer or groups of employers engaged in construction,
construction maintenance or activities limited to rock, sand,
gravel, cement and asphalt operations, heavy duty mechanics,
surveying or construction inspection, and a union that is the
recognized or certified exclusive bargaining representative, a
provision establishing either of the following is valid and
binding:
(a) An alternative dispute resolution system governing disputes
between employees, employers and their insurers that supplements
or replaces all or part of the dispute resolution processes of
this chapter, including but not limited to provisions:
(A) Establishing any limitations on the liability of the
employer while determinations regarding the compensability of an
injury are being made;
(B) Describing the method for resolving disputes involving
compensability of injuries under the alternative dispute
resolution system and the amount of compensation due for a
compensable injury and for medical and legal services;
(C) Relating to the payment of compensation for injuries
incurred when the collective bargaining agreement is terminated
or when an injured worker is no longer subject to the agreement;
and
(D) Establishing arbitration and mediation procedures; or
(b) The use of a list of medical service providers that the
parties may agree is the exclusive source of all medical
treatment provided under this chapter.
(2) Any decision, order or award of compensation issued under
an agreed upon alternative dispute resolution system adopted
under subsection (1)(a) of this section is subject to review in
the same manner as provided for the review of an order of an
Administrative Law Judge pursuant to the provisions of this
chapter.
(3) Nothing in this section allows a collective bargaining
agreement that diminishes the entitlement of an employee to
compensation as provided in this chapter. The portion of an
agreement that violates this subsection is void. Notwithstanding
any other provision of law, original jurisdiction over the
compliance of a proposed collective bargaining agreement with
this subsection is with the Director of the Department of
Consumer and Business Services. The director shall determine the
compliance of the agreement with this subsection prior to the
agreement becoming operative. The decision of the director is
subject to review as provided under ORS { - chapter 183 and no
other review of the director's decision shall be allowed - }
{ + 656.704 + }.
SECTION 3. ORS 656.245 is amended to read:
656.245. (1)(a) For every compensable injury, the insurer or
the self-insured employer shall cause to be provided medical
services for conditions caused in material part by the injury for
such period as the nature of the injury or the process of the
recovery requires, subject to the limitations in ORS 656.225,
including such medical services as may be required after a
determination of permanent disability. In addition, for
consequential and combined conditions described in ORS 656.005
(7), the insurer or the self-insured employer shall cause to be
provided only those medical services directed to medical
conditions caused in major part by the injury.
(b) Compensable medical services shall include medical,
surgical, hospital, nursing, ambulances and other related
Enrolled House Bill 2091 (HB 2091-A) Page 3
services, and drugs, medicine, crutches and prosthetic
appliances, braces and supports and where necessary, physical
restorative services. A pharmacist or dispensing physician shall
dispense generic drugs to the worker in accordance with ORS
689.515. The duty to provide such medical services continues for
the life of the worker.
(c) Notwithstanding any other provision of this chapter,
medical services after the worker's condition is medically
stationary are not compensable except for the following:
(A) Services provided to a worker who has been determined to be
permanently and totally disabled.
(B) Prescription medications.
(C) Services necessary to administer prescription medication or
monitor the administration of prescription medication.
(D) Prosthetic devices, braces and supports.
(E) Services necessary to monitor the status, replacement or
repair of prosthetic devices, braces and supports.
(F) Services provided pursuant to an accepted claim for
aggravation under ORS 656.273.
(G) Services provided pursuant to an order issued under ORS
656.278.
(H) Services that are necessary to diagnose the worker's
condition.
(I) Life-preserving modalities similar to insulin therapy,
dialysis and transfusions.
(J) With the approval of the insurer or self-insured employer,
palliative care that the worker's attending physician referred to
in ORS 656.005 (12)(b)(A) prescribes and that is necessary to
enable the worker to continue current employment or a vocational
training program. If the insurer or self-insured employer does
not approve, the attending physician or the worker may request
approval from the Director of the Department of Consumer and
Business Services for such treatment. The director may order a
medical review by a physician or panel of physicians pursuant to
ORS 656.327 (3) to aid in the review of such treatment. The
decision of the director is subject to { - the contested case
and - } review { - provisions of - } { + under + } ORS
{ - chapter 183 - } { + 656.704 + }.
(K) With the approval of the director, curative care arising
from a generally recognized, nonexperimental advance in medical
science since the worker's claim was closed that is highly likely
to improve the worker's condition and that is otherwise justified
by the circumstances of the claim. The decision of the director
is subject to { - the contested case and - } review
{ - provisions of - } { + under + } ORS { - chapter 183 - }
{ + 656.704 + }.
(L) Curative care provided to a worker to stabilize a temporary
and acute waxing and waning of symptoms of the worker's
condition.
(d) When the medically stationary date in a disabling claim is
established by the insurer or self-insured employer and is not
based on the findings of the attending physician, the insurer or
self-insured employer is responsible for reimbursement to
affected medical service providers for otherwise compensable
services rendered until the insurer or self-insured employer
provides written notice to the attending physician of the
worker's medically stationary status.
(e) Except for services provided under a managed care contract,
out-of-pocket expense reimbursement to receive care from the
attending physician or nurse practitioner authorized to provide
Enrolled House Bill 2091 (HB 2091-A) Page 4
compensable medical services under this section shall not exceed
the amount required to seek care from an appropriate nurse
practitioner or attending physician of the same specialty who is
in a medical community geographically closer to the worker's
home. For the purposes of this paragraph, all physicians and
nurse practitioners within a metropolitan area are considered to
be part of the same medical community.
(2)(a) The worker may choose an attending doctor, physician or
nurse practitioner within the State of Oregon. The worker may
choose the initial attending physician or nurse practitioner and
may subsequently change attending physician or nurse practitioner
two times without approval from the director. If the worker
thereafter selects another attending physician or nurse
practitioner, the insurer or self-insured employer may require
the director's approval of the selection and, if requested, the
director shall determine with the advice of one or more
physicians, whether the selection by the worker shall be
approved. The decision of the director is subject to { - a
contested case - } review under ORS { - chapter 183 - } { +
656.704 + }. The worker also may choose an attending doctor or
physician in another country or in any state or territory or
possession of the United States with the prior approval of the
insurer or self-insured employer.
(b) A medical service provider who is not a member of a managed
care organization is subject to the following provisions:
(A) A medical service provider who is not qualified to be an
attending physician may provide compensable medical service to an
injured worker for a period of 30 days from the date of injury or
occupational disease or for 12 visits, whichever first occurs,
without the authorization of an attending physician. Thereafter,
medical service provided to an injured worker without the written
authorization of an attending physician is not compensable.
(B) A medical service provider who is not an attending
physician cannot authorize the payment of temporary disability
compensation. Except as otherwise provided in this chapter, only
the attending physician at the time of claim closure may make
findings regarding the worker's impairment for the purpose of
evaluating the worker's disability.
(C) Notwithstanding subparagraphs (A) and (B) of this
paragraph, a nurse practitioner licensed under ORS 678.375 to
678.390 may:
(i) Provide compensable medical services for 90 days from the
date of the first visit on the claim;
(ii) Authorize the payment of temporary disability benefits for
a period not to exceed 60 days from the date of the first visit
on the initial claim; and
(iii) When an injured worker treating with a nurse practitioner
authorized to provide compensable services under this section
becomes medically stationary within the 90-day period in which
the nurse practitioner is authorized to treat the injured worker,
shall refer the injured worker to a physician qualified to be an
attending physician as defined in ORS 656.005 for the purpose of
making findings regarding the worker's impairment for the purpose
of evaluating the worker's disability. If a worker returns to the
nurse practitioner after initial claim closure for evaluation of
a possible worsening of the worker's condition, the nurse
practitioner shall refer the worker to an attending physician and
the insurer shall compensate the nurse practitioner for the
examination performed.
Enrolled House Bill 2091 (HB 2091-A) Page 5
(3) Notwithstanding any other provision of this chapter, the
director, by rule, upon the advice of the committee created by
ORS 656.794 and upon the advice of the professional licensing
boards of practitioners affected by the rule, may exclude from
compensability any medical treatment the director finds to be
unscientific, unproven, outmoded or experimental. The decision of
the director is subject to { - a contested case - } review
under ORS
{ - chapter 183 - } { + 656.704 + }.
(4) Notwithstanding subsection (2)(a) of this section, when a
self-insured employer or the insurer of an employer contracts
with a managed care organization certified pursuant to ORS
656.260 for medical services required by this chapter to be
provided to injured workers:
(a) Those workers who are subject to the contract shall receive
medical services in the manner prescribed in the contract.
Workers subject to the contract include those who are receiving
medical treatment for an accepted compensable injury or
occupational disease, regardless of the date of injury or
medically stationary status, on or after the effective date of
the contract. If the managed care organization determines that
the change in provider would be medically detrimental to the
worker, the worker shall not become subject to the contract until
the worker is found to be medically stationary, the worker
changes physicians or nurse practitioners, or the managed care
organization determines that the change in provider is no longer
medically detrimental, whichever event first occurs. A worker
becomes subject to the contract upon the worker's receipt of
actual notice of the worker's enrollment in the managed care
organization, or upon the third day after the notice was sent by
regular mail by the insurer or self-insured employer, whichever
event first occurs. A worker shall not be subject to a contract
after it expires or terminates without renewal. A worker may
continue to treat with the attending physician or nurse
practitioner authorized to provide compensable medical services
under this section under an expired or terminated managed care
organization contract if the physician or nurse practitioner
agrees to comply with the rules, terms and conditions regarding
services performed under any subsequent managed care organization
contract to which the worker is subject. A worker shall not be
subject to a contract if the worker's primary residence is more
than 100 miles outside the managed care organization's certified
geographical area. Each such contract must comply with the
certification standards provided in ORS 656.260. However, a
worker may receive immediate emergency medical treatment that is
compensable from a medical service provider who is not a member
of the managed care organization. Insurers or self-insured
employers who contract with a managed care organization for
medical services shall give notice to the workers of eligible
medical service providers and such other information regarding
the contract and manner of receiving medical services as the
director may prescribe. Notwithstanding any provision of law or
rule to the contrary, a worker of a noncomplying employer is
considered to be subject to a contract between the State Accident
Insurance Fund Corporation as a processing agent or the assigned
claims agent and a managed care organization.
(b)(A) For initial or aggravation claims filed after June 7,
1995, the insurer or self-insured employer may require an injured
worker, on a case-by-case basis, immediately to receive medical
services from the managed care organization.
Enrolled House Bill 2091 (HB 2091-A) Page 6
(B) If the insurer or self-insured employer gives notice that
the worker is required to receive treatment from the managed care
organization, the insurer or self-insured employer must guarantee
that any reasonable and necessary services so received, that are
not otherwise covered by health insurance, will be paid as
provided in ORS 656.248, even if the claim is denied, until the
worker receives actual notice of the denial or until three days
after the denial is mailed, whichever event first occurs. The
worker may elect to receive care from a primary care physician or
nurse practitioner authorized to provide compensable medical
services under this section who agrees to the conditions of ORS
656.260 (4)(g). However, guarantee of payment is not required by
the insurer or self-insured employer if this election is made.
(C) If the insurer or self-insured employer does not give
notice that the worker is required to receive treatment from the
managed care organization, the insurer or self-insured employer
is under no obligation to pay for services received by the worker
unless the claim is later accepted.
(D) If the claim is denied, the worker may receive medical
services after the date of denial from sources other than the
managed care organization until the denial is reversed.
Reasonable and necessary medical services received from sources
other than the managed care organization after the date of claim
denial must be paid as provided in ORS 656.248 by the insurer or
self-insured employer if the claim is finally determined to be
compensable.
(5) Notwithstanding any other provision of this chapter, the
director, by rule, shall authorize physician assistants licensed
by the Board of Medical Examiners for the State of Oregon who
practice in areas served by Type A or Type B rural hospitals
described in ORS 442.470 to authorize the payment of temporary
disability compensation for injured workers for a period not to
exceed 30 days from the date of the first visit on the claim. In
addition, the director, by rule, may authorize such assistants
who practice in areas served by a Type C rural hospital described
in ORS 442.470 to authorize such payment.
(6) A nurse practitioner licensed under ORS 678.375 to 678.390
who is not a member of the managed care organization, is
authorized to provide the same level of services as a primary
care physician as established by ORS 656.260 (4), if at the time
the worker is enrolled in the managed care organization, the
nurse practitioner maintains the worker's medical records and
with whom the worker has a documented history of treatment, if
that nurse practitioner agrees to refer the worker to the managed
care organization for any specialized treatment, including
physical therapy, to be furnished by another provider that the
worker may require and if that nurse practitioner agrees to
comply with all the rules, terms and conditions regarding
services performed by the managed care organization.
(7) Subject to the provisions of ORS 656.704, if a claim for
medical services is disapproved, the injured worker, insurer or
self-insured employer may request administrative review by the
director pursuant to ORS 656.260 or 656.327.
SECTION 4. ORS 656.245, as amended by section 4, chapter 811,
Oregon Laws 2003, is amended to read:
656.245. (1)(a) For every compensable injury, the insurer or
the self-insured employer shall cause to be provided medical
services for conditions caused in material part by the injury for
such period as the nature of the injury or the process of the
recovery requires, subject to the limitations in ORS 656.225,
Enrolled House Bill 2091 (HB 2091-A) Page 7
including such medical services as may be required after a
determination of permanent disability. In addition, for
consequential and combined conditions described in ORS 656.005
(7), the insurer or the self-insured employer shall cause to be
provided only those medical services directed to medical
conditions caused in major part by the injury.
(b) Compensable medical services shall include medical,
surgical, hospital, nursing, ambulances and other related
services, and drugs, medicine, crutches and prosthetic
appliances, braces and supports and where necessary, physical
restorative services. A pharmacist or dispensing physician shall
dispense generic drugs to the worker in accordance with ORS
689.515. The duty to provide such medical services continues for
the life of the worker.
(c) Notwithstanding any other provision of this chapter,
medical services after the worker's condition is medically
stationary are not compensable except for the following:
(A) Services provided to a worker who has been determined to be
permanently and totally disabled.
(B) Prescription medications.
(C) Services necessary to administer prescription medication or
monitor the administration of prescription medication.
(D) Prosthetic devices, braces and supports.
(E) Services necessary to monitor the status, replacement or
repair of prosthetic devices, braces and supports.
(F) Services provided pursuant to an accepted claim for
aggravation under ORS 656.273.
(G) Services provided pursuant to an order issued under ORS
656.278.
(H) Services that are necessary to diagnose the worker's
condition.
(I) Life-preserving modalities similar to insulin therapy,
dialysis and transfusions.
(J) With the approval of the insurer or self-insured employer,
palliative care that the worker's attending physician referred to
in ORS 656.005 (12)(b)(A) prescribes and that is necessary to
enable the worker to continue current employment or a vocational
training program. If the insurer or self-insured employer does
not approve, the attending physician or the worker may request
approval from the Director of the Department of Consumer and
Business Services for such treatment. The director may order a
medical review by a physician or panel of physicians pursuant to
ORS 656.327 (3) to aid in the review of such treatment. The
decision of the director is subject to { - the contested case
and - } review { - provisions of - } { + under + } ORS
{ - chapter 183 - } { + 656.704 + }.
(K) With the approval of the director, curative care arising
from a generally recognized, nonexperimental advance in medical
science since the worker's claim was closed that is highly likely
to improve the worker's condition and that is otherwise justified
by the circumstances of the claim. The decision of the director
is subject to { - the contested case and - } review
{ - provisions of - } { + under + } ORS { - chapter 183 - }
{ + 656.704 + }.
(L) Curative care provided to a worker to stabilize a temporary
and acute waxing and waning of symptoms of the worker's
condition.
(d) When the medically stationary date in a disabling claim is
established by the insurer or self-insured employer and is not
based on the findings of the attending physician, the insurer or
Enrolled House Bill 2091 (HB 2091-A) Page 8
self-insured employer is responsible for reimbursement to
affected medical service providers for otherwise compensable
services rendered until the insurer or self-insured employer
provides written notice to the attending physician of the
worker's medically stationary status.
(e) Except for services provided under a managed care contract,
out-of-pocket expense reimbursement to receive care from the
attending physician shall not exceed the amount required to seek
care from an appropriate attending physician of the same
specialty who is in a medical community geographically closer to
the worker's home. For the purposes of this paragraph, all
physicians within a metropolitan area are considered to be part
of the same medical community.
(2)(a) The worker may choose an attending doctor or physician
within the State of Oregon. The worker may choose the initial
attending physician and may subsequently change attending
physician two times without approval from the director. If the
worker thereafter selects another attending physician, the
insurer or self-insured employer may require the director's
approval of the selection and, if requested, the director shall
determine with the advice of one or more physicians, whether the
selection by the worker shall be approved. The decision of the
director is subject to { - a contested case - } review under
ORS { - chapter 183 - } { + 656.704 + }. The worker also may
choose an attending doctor or physician in another country or in
any state or territory or possession of the United States with
the prior approval of the insurer or self-insured employer.
(b) A medical service provider who is not a member of a managed
care organization is subject to the following provisions:
(A) A medical service provider who is not qualified to be an
attending physician may provide compensable medical service to an
injured worker for a period of 30 days from the date of injury or
occupational disease or for 12 visits, whichever first occurs,
without the authorization of an attending physician. Thereafter,
medical service provided to an injured worker without the written
authorization of an attending physician is not compensable.
(B) A medical service provider who is not an attending
physician cannot authorize the payment of temporary disability
compensation. Except as otherwise provided in this chapter, only
the attending physician at the time of claim closure may make
findings regarding the worker's impairment for the purpose of
evaluating the worker's disability.
(3) Notwithstanding any other provision of this chapter, the
director, by rule, upon the advice of the committee created by
ORS 656.794 and upon the advice of the professional licensing
boards of practitioners affected by the rule, may exclude from
compensability any medical treatment the director finds to be
unscientific, unproven, outmoded or experimental. The decision of
the director is subject to { - a contested case - } review
under ORS
{ - chapter 183 - } { + 656.704 + }.
(4) Notwithstanding subsection (2)(a) of this section, when a
self-insured employer or the insurer of an employer contracts
with a managed care organization certified pursuant to ORS
656.260 for medical services required by this chapter to be
provided to injured workers:
(a) Those workers who are subject to the contract shall receive
medical services in the manner prescribed in the contract.
Workers subject to the contract include those who are receiving
medical treatment for an accepted compensable injury or
Enrolled House Bill 2091 (HB 2091-A) Page 9
occupational disease, regardless of the date of injury or
medically stationary status, on or after the effective date of
the contract. If the managed care organization determines that
the change in provider would be medically detrimental to the
worker, the worker shall not become subject to the contract until
the worker is found to be medically stationary, the worker
changes physicians or the managed care organization determines
that the change in provider is no longer medically detrimental,
whichever event first occurs. A worker becomes subject to the
contract upon the worker's receipt of actual notice of the
worker's enrollment in the managed care organization, or upon the
third day after the notice was sent by regular mail by the
insurer or self-insured employer, whichever event first occurs. A
worker shall not be subject to a contract after it expires or
terminates without renewal. A worker may continue to treat with
the attending physician under an expired or terminated managed
care organization contract if the physician agrees to comply with
the rules, terms and conditions regarding services performed
under any subsequent managed care organization contract to which
the worker is subject. A worker shall not be subject to a
contract if the worker's primary residence is more than 100 miles
outside the managed care organization's certified geographical
area. Each such contract must comply with the certification
standards provided in ORS 656.260. However, a worker may receive
immediate emergency medical treatment that is compensable from a
medical service provider who is not a member of the managed care
organization. Insurers or self-insured employers who contract
with a managed care organization for medical services shall give
notice to the workers of eligible medical service providers and
such other information regarding the contract and manner of
receiving medical services as the director may prescribe.
Notwithstanding any provision of law or rule to the contrary, a
worker of a noncomplying employer is considered to be subject to
a contract between the State Accident Insurance Fund Corporation
as a processing agent or the assigned claims agent and a managed
care organization.
(b)(A) For initial or aggravation claims filed after June 7,
1995, the insurer or self-insured employer may require an injured
worker, on a case-by-case basis, immediately to receive medical
services from the managed care organization.
(B) If the insurer or self-insured employer gives notice that
the worker is required to receive treatment from the managed care
organization, the insurer or self-insured employer must guarantee
that any reasonable and necessary services so received, that are
not otherwise covered by health insurance, will be paid as
provided in ORS 656.248, even if the claim is denied, until the
worker receives actual notice of the denial or until three days
after the denial is mailed, whichever event first occurs. The
worker may elect to receive care from a primary care physician
who agrees to the conditions of ORS 656.260 (4)(g). However,
guarantee of payment is not required by the insurer or
self-insured employer if this election is made.
(C) If the insurer or self-insured employer does not give
notice that the worker is required to receive treatment from the
managed care organization, the insurer or self-insured employer
is under no obligation to pay for services received by the worker
unless the claim is later accepted.
(D) If the claim is denied, the worker may receive medical
services after the date of denial from sources other than the
managed care organization until the denial is reversed.
Enrolled House Bill 2091 (HB 2091-A) Page 10
Reasonable and necessary medical services received from sources
other than the managed care organization after the date of claim
denial must be paid as provided in ORS 656.248 by the insurer or
self-insured employer if the claim is finally determined to be
compensable.
(5) Notwithstanding any other provision of this chapter, the
director, by rule, shall authorize nurse practitioners certified
by the Oregon State Board of Nursing and physician assistants
licensed by the Board of Medical Examiners for the State of
Oregon who practice in areas served by Type A or Type B rural
hospitals described in ORS 442.470 to authorize the payment of
temporary disability compensation for injured workers for a
period not to exceed 30 days from the date of the first visit on
the claim. In addition, the director, by rule, may authorize such
practitioners and assistants who practice in areas served by a
Type C rural hospital described in ORS 442.470 to authorize such
payment.
(6) Subject to the provisions of ORS 656.704, if a claim for
medical services is disapproved, the injured worker, insurer or
self-insured employer may request administrative review by the
director pursuant to ORS 656.260 or 656.327.
SECTION 5. ORS 656.247 is amended to read:
656.247. (1) Except for medical services provided to workers
subject to ORS 656.245 (4)(b)(B), payment for medical services
provided to a subject worker in response to an initial claim for
a work-related injury or occupational disease from the date of
the employer's notice or knowledge of the claim until the date
the claim is accepted or denied shall be payable in accordance
with subsection (4) of this section if the expenses are for:
(a) Diagnostic services required to identify appropriate
treatment or to prevent disability;
(b) Medication required to alleviate pain; or
(c) Services required to stabilize the worker's claimed
condition and to prevent further disability.
(2) Notwithstanding subsection (1) of this section, no payment
shall be due from the insurer or self-insured employer if the
insurer or self-insured employer denies the claim within 14 days
of the date of the employer's notice or knowledge of the claim.
(3)(a) Disputes about whether the medical services provided to
treat the claimed work-related injury or occupational disease
under subsection (1) of this section are excessive, inappropriate
or ineffectual or are consistent with the criteria in subsection
(1) of this section shall be resolved by the Director of the
Department of Consumer and Business Services. The director may
order a medical review by a physician or panel of physicians
pursuant to ORS 656.327 (3) to aid in the review of such
services. If a party is dissatisfied with the order of the
director, the dissatisfied party may request { - a contested
case hearing before the director pursuant to ORS chapter 183 - }
{ + review under ORS 656.704 + } within 60 days of the date of
the director's order. { - At the contested case hearing, the
administrative order - } { + The order of the director + } may
be modified only if it is not supported by substantial evidence
in the record or if it reflects an error of law.
(b) Disputes about the amount of the fee or nonpayment of bills
for medical treatment and services pursuant to this section shall
be resolved pursuant to ORS 656.248.
(c) Except as provided in subsection (2) of this section, when
a claim is settled pursuant to ORS 656.289 (4), all medical
services payable under subsection (1) of this section that are
Enrolled House Bill 2091 (HB 2091-A) Page 11
provided on or before the date of denial shall be paid in
accordance with subsection (4) of this section. The insurer or
self-insured employer shall notify each affected service provider
of the results of the settlement.
(4)(a) If the claim in which medical services are provided
under subsection (1) of this section is accepted, the insurer or
self-insured employer shall make payment for such medical
services subject to the limitations and conditions of this
chapter.
(b) If the claim in which medical services are provided under
subsection (1) of this section is denied and a health benefit
plan provides benefits to the worker, the health benefit plan
shall be the first payer of the expenses for medical services
according to the terms, conditions and benefits of the plan.
Except as provided by subsection (2) of this section, after
payment by the health benefit plan, the workers' compensation
insurer or self-insured employer shall pay any balance remaining
for such services subject to the limitations and conditions of
this chapter.
(c) As used in this subsection, 'health benefit plan' has the
meaning given that term in ORS 743.730.
(5) An insurer or self-insured employer may recover expenses
for medical services paid under subsection (1) of this section as
an overpayment as provided by ORS 656.268 (13)(a).
SECTION 6. ORS 656.248 is amended to read:
656.248. (1) The Director of the Department of Consumer and
Business Services, in compliance with ORS 656.794 and ORS chapter
183, shall promulgate rules for developing and publishing fee
schedules for medical services provided under this chapter. These
schedules shall represent the reimbursement generally received
for the services provided. Where applicable, and to the extent
the director determines practicable, these fee schedules shall be
based upon any one or all of the following:
(a) The current procedural codes and relative value units of
the Department of Health and Human Services Medicare Fee
Schedules for all medical service provider services included
therein;
(b) The average rates of fee schedules of the Oregon health
insurance industry;
(c) A reasonable rate of markup for the sale of medical devices
or other medical services;
(d) A commonly used and accepted medical service fee schedule;
or
(e) The actual cost of providing medical services.
(2) Medical fees equal to or less than the fee schedules
published under this section shall be paid when the vendor
submits a billing for medical services. In no event shall that
portion of a medical fee be paid that exceeds the schedules.
(3) In no event shall a provider charge more than the provider
charges to the general public.
(4) If no fee has been established for a given service or
procedure the director may, in compliance with ORS 656.794 and
ORS chapter 183, promulgate a reasonable rate, which shall be the
same within any given area for all primary health care providers
to be paid for that service or procedure.
(5) At the request of the director and in the method and manner
prescribed by rule, all providers of health insurance, as defined
by ORS 731.162, shall cooperate and consult with the director in
providing information reasonably necessary and available to
develop the fee schedules prescribed under subsection (1) of this
Enrolled House Bill 2091 (HB 2091-A) Page 12
section. A provider shall not be required to provide information
or data that the provider deems proprietary or confidential.
However, the information provided shall be considered proprietary
and shall not be released by the director. The director shall
not require such information from a health insurance provider
more than once per year and shall reimburse the provider's costs
for providing the required information.
(6) Notwithstanding subsection (1) or (2) of this section, such
rates or fees provided in subsections (1) and (2) of this section
shall be adequate to insure at all times to the injured workers
the standard of services and care intended by this chapter.
(7) The director shall update the schedule required by
subsection (1) of this section annually. As appropriate and
applicable, the update shall be based upon:
(a) A statistically valid survey by the director of medical
service fees or markups;
(b) That information provided to the director by any person or
state agency having access to medical service fee information;
(c) That information provided to the director pursuant to
subsection (5) of this section; or
(d) The annual percentage increase or decrease in the
physician's services component of the national Consumer Price
Index published by the Bureau of Labor Statistics of the United
States Department of Labor.
(8) The director is { - specifically - } prohibited from
adopting or administering rules which treat manipulation, when
performed by an osteopathic physician, as anything other than a
separate therapeutic procedure which is paid in addition to other
services or office visits.
(9) The director may, by rule, establish a fee schedule for
reimbursement for specific hospital services based upon the
actual cost of providing the services.
(10) A medical service provider is not authorized to charge a
fee for preparing or submitting a medical report form required by
the director under this chapter.
(11) Notwithstanding any other provision of this section, fee
schedules for medical services and hospital services shall apply
to those services performed by a managed care organization
certified pursuant to ORS 656.260, unless otherwise provided in
the managed care contract.
(12) When a dispute exists between an injured worker, insurer
or self-insured employer and a medical service provider regarding
either the amount of the fee or nonpayment of bills for
compensable medical services, notwithstanding any other provision
of this chapter, the injured worker, insurer, self-insured
employer or medical service provider shall request administrative
review by the director. The decision of the director is subject
to review { - as provided in - } { + under + } ORS
{ - chapter 183 - } { + 656.704 + }.
(13) The director may exclude hospitals defined in ORS 442.470
from imposition of a fee schedule authorized by this section upon
a determination of economic necessity.
SECTION 7. ORS 656.254 is amended to read:
656.254. (1) The Director of the Department of Consumer and
Business Services shall establish medical report forms, in
duplicate snap-outs where applicable, to be used by insurers,
self-insured employers and physicians, including in such forms
information necessary to establish facts required in the
determination of the claim.
Enrolled House Bill 2091 (HB 2091-A) Page 13
(2) The director shall establish sanctions for the enforcement
of medical reporting requirements. Such sanctions may include,
but are not limited to, forfeiture of fees and penalty not to
exceed $1,000 for each occurrence.
(3) { - In accordance with the provisions of ORS chapter
183, - } If the director finds that a health care practitioner
has:
(a) Been found, pursuant to ORS 656.327, to have failed to
comply with rules adopted pursuant to this chapter regarding the
performance of medical services for injured workers or to have
provided medical treatment that is excessive, inappropriate or
ineffectual, the director may impose a sanction that includes
forfeiture of fees and a penalty not to exceed $1,000 for each
occurrence. If the failure to comply or perform is repeated and
willful, the director may declare the health care practitioner
ineligible for reimbursement for treating workers' compensation
claimants for a period not to exceed three years.
(b) Had the health care practitioner's license revoked or
suspended by the practitioner's professional licensing board for
a violation of that profession's ethical standards, the director
may declare the health care practitioner ineligible for
reimbursement for treating workers' compensation claimants for a
period not to exceed three years or the period the practitioner's
license is suspended or revoked, whichever period is the longer.
(c) Engaged in any course of conduct demonstrated to be
dangerous to the health or safety of a workers' compensation
claimant, the director may impose a sanction that includes
forfeiture of fees and a penalty not to exceed $1,000 for each
occurrence. If the conduct is repeated and willful, the director
may declare the health care practitioner ineligible for
reimbursement for treating workers' compensation claimants for a
period not to exceed three years.
(4) Any declaration that a health care practitioner is
ineligible to receive reimbursement under this chapter shall not
otherwise interfere with or impair treatment of any person by the
health care practitioner.
(5) ORS 656.735 (4) to (6) and 656.740 also apply to orders and
penalties assessed under this section.
SECTION 8. ORS 656.260 is amended to read:
656.260. (1) Any health care provider or group of medical
service providers may make written application to the Director of
the Department of Consumer and Business Services to become
certified to provide managed care to injured workers for injuries
and diseases compensable under this chapter. However, nothing in
this section authorizes an organization that is formed, owned or
operated by an insurer or employer other than a health care
provider to become certified to provide managed care.
(2) Each application for certification shall be accompanied by
a reasonable fee prescribed by the director. A certificate is
valid for such period as the director may prescribe unless sooner
revoked or suspended.
(3) Application for certification shall be made in such form
and manner and shall set forth such information regarding the
proposed plan for providing services as the director may
prescribe. The information shall include, but not be limited to:
(a) A list of the names of all individuals who will provide
services under the managed care plan, together with appropriate
evidence of compliance with any licensing or certification
requirements for that individual to practice in this state.
Enrolled House Bill 2091 (HB 2091-A) Page 14
(b) A description of the times, places and manner of providing
services under the plan.
(c) A description of the times, places and manner of providing
other related optional services the applicants wish to provide.
(d) Satisfactory evidence of ability to comply with any
financial requirements to insure delivery of service in
accordance with the plan which the director may prescribe.
(4) The director shall certify a health care provider or group
of medical service providers to provide managed care under a plan
if the director finds that the plan:
(a) Proposes to provide services that meet quality, continuity
and other treatment standards prescribed by the director and will
provide all medical and health care services that may be required
by this chapter in a manner that is timely, effective and
convenient for the worker.
(b) Subject to any other provision of law, does not
discriminate against or exclude from participation in the plan
any category of medical service providers and includes an
adequate number of each category of medical service providers to
give workers adequate flexibility to choose medical service
providers from among those individuals who provide services under
the plan. However, nothing in the requirements of this paragraph
shall affect the provisions of ORS 441.055 relating to the
granting of medical staff privileges.
(c) Provides appropriate financial incentives to reduce service
costs and utilization without sacrificing the quality of service.
(d) Provides adequate methods of peer review, service
utilization review, quality assurance, contract review and
dispute resolution to ensure appropriate treatment or to prevent
inappropriate or excessive treatment, to exclude from
participation in the plan those individuals who violate these
treatment standards and to provide for the resolution of such
medical disputes as the director considers appropriate. A
majority of the members of each peer review, quality assurance,
service utilization and contract review committee shall be
physicians licensed to practice medicine by the Board of Medical
Examiners. As used in this paragraph:
(A) 'Peer review' means evaluation or review of the performance
of colleagues by a panel with similar types and degrees of
expertise. Peer review requires participation of at least three
physicians prior to final determination.
(B) 'Service utilization review' means evaluation and
determination of the reasonableness, necessity and
appropriateness of a worker's use of medical care resources and
the provision of any needed assistance to clinician or member, or
both, to ensure appropriate use of resources. 'Service
utilization review ' includes prior authorization, concurrent
review, retrospective review, discharge planning and case
management activities.
(C) 'Quality assurance' means activities to safeguard or
improve the quality of medical care by assessing the quality of
care or service and taking action to improve it.
(D) 'Dispute resolution' includes the resolution of disputes
arising under peer review, service utilization review and quality
assurance activities between insurers, self-insured employers,
workers and medical and health care service providers, as
required under the certified plan.
(E) 'Contract review' means the methods and processes whereby
the managed care organization monitors and enforces its contracts
Enrolled House Bill 2091 (HB 2091-A) Page 15
with participating providers for matters other than matters
enumerated in subparagraphs (A), (B) and (C) of this paragraph.
(e) Provides a program involving cooperative efforts by the
workers, the employer and the managed care organizations to
promote workplace health and safety consultative and other
services and early return to work for injured workers.
(f) Provides a timely and accurate method of reporting to the
director necessary information regarding medical and health care
service cost and utilization to enable the director to determine
the effectiveness of the plan.
(g) Authorizes workers to receive compensable medical treatment
from a primary care physician who is not a member of the managed
care organization, but who maintains the worker's medical records
and with whom the worker has a documented history of treatment,
if that primary care physician agrees to refer the worker to the
managed care organization for any specialized treatment,
including physical therapy, to be furnished by another provider
that the worker may require and if that primary care physician
agrees to comply with all the rules, terms and conditions
regarding services performed by the managed care organization.
Nothing in this paragraph is intended to limit the worker's right
to change primary care physicians prior to the filing of a
workers' compensation claim. As used in this paragraph, 'primary
care physician' means a physician who is qualified to be an
attending physician referred to in ORS 656.005 (12)(b)(A) and who
is a family practitioner, a general practitioner or an internal
medicine practitioner.
(h) Provides a written explanation for denial of participation
in the managed care organization plan to any licensed health care
provider that has been denied participation in the managed care
organization plan.
(i) Complies with any other requirement the director determines
is necessary to provide quality medical services and health care
to injured workers.
(5) The director shall refuse to certify or may revoke or
suspend the certification of any health care provider or group of
medical service providers to provide managed care if the director
finds that:
(a) The plan for providing medical or health care services
fails to meet the requirements of this section.
(b) Service under the plan is not being provided in accordance
with the terms of a certified plan.
(6) Any issue concerning the provision of medical services to
injured workers subject to a managed care contract and service
utilization review, quality assurance, dispute resolution,
contract review and peer review activities as well as
authorization of medical services to be provided by other than an
attending physician pursuant to ORS 656.245 (2)(b) shall be
subject { - solely - } to review by the director or the
director's designated representatives { - , or as otherwise
provided in this section - } . { + The decision of the director
is subject to review under ORS 656.704. + } Data generated by or
received in connection with these activities, including written
reports, notes or records of any such activities, or of { - the
director's - } { + any + } review thereof, shall be
confidential, and shall not be disclosed except as considered
necessary by the director in the administration of this chapter.
The director may report professional misconduct to an appropriate
licensing board.
Enrolled House Bill 2091 (HB 2091-A) Page 16
(7) No data generated by service utilization review, quality
assurance, dispute resolution or peer review activities and no
physician profiles or data used to create physician profiles
pursuant to this section or { - the director's - } { + a + }
review thereof shall be used in any action, suit or proceeding
except to the extent considered necessary by the director in the
administration of this chapter. The confidentiality provisions of
this section shall not apply in any action, suit or proceeding
arising out of or related to a contract between a managed care
organization and a health care provider whose confidentiality is
protected by this section.
(8) A person participating in service utilization review,
quality assurance, dispute resolution or peer review activities
pursuant to this section shall not be examined as to any
communication made in the course of such activities or the
findings thereof, nor shall any person be subject to an action
for civil damages for affirmative actions taken or statements
made in good faith.
(9) No person who participates in forming consortiums,
collectively negotiating fees or otherwise solicits or enters
into contracts in a good faith effort to provide medical or
health care services according to the provisions of this section
shall be examined or subject to administrative or civil liability
regarding any such participation except pursuant to the
director's active supervision of such activities and the managed
care organization. Before engaging in such activities, the
person shall provide notice of intent to the director in a form
prescribed by the director.
(10) The provisions of this section shall not affect the
confidentiality or admission in evidence of a claimant's medical
treatment records.
(11) In consultation with the committees referred to in ORS
656.790 and 656.794, the director shall adopt such rules as may
be necessary to carry out the provisions of this section.
(12) As used in this section, ORS 656.245, 656.248 and 656.327,
'medical service provider' means a person duly licensed to
practice one or more of the healing arts in any country or in any
state or territory or possession of the United States.
(13) Notwithstanding ORS 656.005 (12) or subsection (4)(b) of
this section, a managed care organization contract may designate
any medical service provider or category of providers as
attending physicians.
(14) If a worker, insurer, self-insured employer or the
attending physician is dissatisfied with an action of the managed
care organization regarding the provision of medical services
pursuant to this chapter, peer review, service utilization review
or quality assurance activities, that person or entity must first
apply to the director for administrative review of the matter
before requesting a hearing { - before the director - } . Such
application must be made not later than the 60th day after the
date the managed care organization has completed and issued its
final decision.
(15) Upon a request for administrative review, the director
shall create a documentary record sufficient for judicial review.
The director shall complete administrative review and issue a
proposed order within a reasonable time. The proposed
{ - administrative - } order of the director { + issued + }
pursuant to this section shall become final and not subject to
further review unless a written request for a hearing is filed
Enrolled House Bill 2091 (HB 2091-A) Page 17
with the director within 30 days of the mailing of the order to
all parties.
(16) At the contested case hearing, the
{ - administrative - } order may be modified only if it is not
supported by substantial evidence in the record or reflects an
error of law. No new medical evidence or issues shall be
admitted. The dispute may also be remanded to the managed care
organization for further evidence taking, correction or other
necessary action if the { + Administrative Law Judge or + }
director determines the record has been improperly, incompletely
or otherwise insufficiently developed. Decisions by the director
regarding medical disputes are subject to review under ORS
{ - chapter 183 - } { + 656.704 + }.
(17) Any person who is dissatisfied with an action of a managed
care organization other than regarding the provision of medical
services pursuant to this chapter, peer review, service
utilization review or quality assurance activities may request
{ - a contested case hearing before the director pursuant to ORS
chapter 183. The decision of the director is final if an appeal
is not made to the Court of Appeals within 60 days of the mailing
of the order - } { + review under ORS 656.704 + }.
(18) Notwithstanding any other provision of law, original
jurisdiction over contract review disputes is with the director.
The director may resolve the matter by issuing an order subject
to review under ORS { - chapter 183 - } { + 656.704 + }, or
the director may determine that the matter in dispute would be
best addressed in another forum and so inform the parties.
(19) The director shall conduct such investigations, audits and
other administrative oversight in regard to managed care as the
director deems necessary to carry out the purposes of this
chapter.
SECTION 9. ORS 656.262 is amended to read:
656.262. (1) Processing of claims and providing compensation
for a worker shall be the responsibility of the insurer or
self-insured employer. All employers shall assist their insurers
in processing claims as required in this chapter.
(2) The compensation due under this chapter shall be paid
periodically, promptly and directly to the person entitled
thereto upon the employer's receiving notice or knowledge of a
claim, except where the right to compensation is denied by the
insurer or self-insured employer.
(3)(a) Employers shall, immediately and not later than five
days after notice or knowledge of any claims or accidents which
may result in a compensable injury claim, report the same to
their insurer. The report shall include:
(A) The date, time, cause and nature of the accident and
injuries.
(B) Whether the accident arose out of and in the course of
employment.
(C) Whether the employer recommends or opposes acceptance of
the claim, and the reasons therefor.
(D) The name and address of any health insurance provider for
the injured worker.
(E) Any other details the insurer may require.
(b) Failure to so report subjects the offending employer to a
charge for reimbursing the insurer for any penalty the insurer is
required to pay under subsection (11) of this section because of
such failure. As used in this subsection, 'health insurance' has
the meaning for that term provided in ORS 731.162.
Enrolled House Bill 2091 (HB 2091-A) Page 18
(4)(a) The first installment of temporary disability
compensation shall be paid no later than the 14th day after the
subject employer has notice or knowledge of the claim, if the
attending physician or nurse practitioner authorized to provide
compensable medical services under ORS 656.245 authorizes the
payment of temporary disability compensation. Thereafter,
temporary disability compensation shall be paid at least once
each two weeks, except where the Director of the Department of
Consumer and Business Services determines that payment in
installments should be made at some other interval. The director
may by rule convert monthly benefit schedules to weekly or other
periodic schedules.
(b) Notwithstanding any other provision of this chapter, if a
self-insured employer pays to an injured worker who becomes
disabled the same wage at the same pay interval that the worker
received at the time of injury, such payment shall be deemed
timely payment of temporary disability payments pursuant to ORS
656.210 and 656.212 during the time the wage payments are made.
(c) Notwithstanding any other provision of this chapter, when
the holder of a public office is injured in the course and scope
of that public office, full official salary paid to the holder of
that public office shall be deemed timely payment of temporary
disability payments pursuant to ORS 656.210 and 656.212 during
the time the wage payments are made. As used in this subsection,
' public office' has the meaning for that term provided in ORS
260.005.
(d) Temporary disability compensation is not due and payable
for any period of time for which the insurer or self-insured
employer has requested from the worker's attending physician or
nurse practitioner authorized to provide compensable medical
services under ORS 656.245 verification of the worker's inability
to work resulting from the claimed injury or disease and the
physician or nurse practitioner cannot verify the worker's
inability to work, unless the worker has been unable to receive
treatment for reasons beyond the worker's control.
(e) If a worker fails to appear at an appointment with the
worker's attending physician or nurse practitioner authorized to
provide compensable medical services under ORS 656.245, the
insurer or self-insured employer shall notify the worker by
certified mail that temporary disability benefits may be
suspended after the worker fails to appear at a rescheduled
appointment. If the worker fails to appear at a rescheduled
appointment, the insurer or self-insured employer may suspend
payment of temporary disability benefits to the worker until the
worker appears at a subsequent rescheduled appointment.
(f) If the insurer or self-insured employer has requested and
failed to receive from the worker's attending physician or nurse
practitioner authorized to provide compensable medical services
under ORS 656.245 verification of the worker's inability to work
resulting from the claimed injury or disease, medical services
provided by the attending physician or nurse practitioner are not
compensable until the attending physician or nurse practitioner
submits such verification.
(g) Temporary disability compensation is not due and payable
pursuant to ORS 656.268 after the worker's attending physician or
nurse practitioner authorized to provide compensable medical
services under ORS 656.245 ceases to authorize temporary
disability or for any period of time not authorized by the
attending physician or nurse practitioner. No authorization of
temporary disability compensation by the attending physician or
Enrolled House Bill 2091 (HB 2091-A) Page 19
nurse practitioner under ORS 656.268 shall be effective to
retroactively authorize the payment of temporary disability more
than 14 days prior to its issuance.
(h) The worker's disability may be authorized only by a person
described in ORS 656.005 (12)(b)(B) or 656.245 for the period of
time permitted by those sections. The insurer or self-insured
employer may unilaterally suspend payment of temporary disability
benefits to the worker at the expiration of the period until
temporary disability is reauthorized by an attending physician or
nurse practitioner authorized to provide compensable medical
services under ORS 656.245.
(i) The insurer or self-insured employer may unilaterally
suspend payment of all compensation to a worker enrolled in a
managed care organization if the worker continues to seek care
from an attending physician or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 that is
not authorized by the managed care organization more than seven
days after the mailing of notice by the insurer or self-insured
employer.
(5) Payment of compensation under subsection (4) of this
section or payment, in amounts not to exceed $500 per claim, for
medical services for nondisabling claims, may be made by the
subject employer if the employer so chooses. The making of such
payments does not constitute a waiver or transfer of the
insurer's duty to determine entitlement to benefits. If the
employer chooses to make such payment, the employer shall report
the injury to the insurer in the same manner that other injuries
are reported. However, an insurer shall not modify an employer's
experience rating or otherwise make charges against the employer
for any medical expenses paid by the employer pursuant to this
subsection.
(6)(a) Written notice of acceptance or denial of the claim
shall be furnished to the claimant by the insurer or self-insured
employer within 60 days after the employer has notice or
knowledge of the claim. Once the claim is accepted, the insurer
or self-insured employer shall not revoke acceptance except as
provided in this section. The insurer or self-insured employer
may revoke acceptance and issue a denial at any time when the
denial is for fraud, misrepresentation or other illegal activity
by the worker. If the worker requests a hearing on any revocation
of acceptance and denial alleging fraud, misrepresentation or
other illegal activity, the insurer or self-insured employer has
the burden of proving, by a preponderance of the evidence, such
fraud, misrepresentation or other illegal activity. Upon such
proof, the worker then has the burden of proving, by a
preponderance of the evidence, the compensability of the claim.
If the insurer or self-insured employer accepts a claim in good
faith, in a case not involving fraud, misrepresentation or other
illegal activity by the worker, and later obtains evidence that
the claim is not compensable or evidence that the insurer or
self-insured employer is not responsible for the claim, the
insurer or self-insured employer may revoke the claim acceptance
and issue a formal notice of claim denial, if such revocation of
acceptance and denial is issued no later than two years after the
date of the initial acceptance. If the worker requests a hearing
on such revocation of acceptance and denial, the insurer or
self-insured employer must prove, by a preponderance of the
evidence, that the claim is not compensable or that the insurer
or self-insured employer is not responsible for the claim.
Notwithstanding any other provision of this chapter, if a denial
Enrolled House Bill 2091 (HB 2091-A) Page 20
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
Enrolled House Bill 2091 (HB 2091-A) Page 21
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 plus any attorney fees
assessed under this section. The fees assessed by the director,
an Administrative Law Judge, the board or the court under this
section shall be proportionate to the benefit to the injured
worker. The board shall adopt rules for establishing the amount
of the attorney fee, giving primary consideration to the results
achieved and to the time devoted to the case. An attorney fee
awarded pursuant to this subsection may not exceed $2,000 absent
a showing of extraordinary circumstances. 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 and attorney fees
described in this subsection. { - The director's action and
review thereof shall be subject to ORS chapter 183 and such other
procedural rules as the director may prescribe. - } { + The
action of the director and the review of the action taken by the
director shall be subject to review under ORS 656.704. + }
(b) When the director does not have exclusive jurisdiction over
proceedings regarding the assessment and payment of the
additional amount and attorney fees described in this subsection,
Enrolled House Bill 2091 (HB 2091-A) Page 22
the provisions of 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) 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.
(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.
(15) 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 (13) of this section.
SECTION 10. ORS 656.262, as amended by section 10, chapter 811,
Oregon Laws 2003, is amended to read:
656.262. (1) Processing of claims and providing compensation
for a worker shall be the responsibility of the insurer or
Enrolled House Bill 2091 (HB 2091-A) Page 23
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
Enrolled House Bill 2091 (HB 2091-A) Page 24
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 that is not authorized by the managed
care organization more than seven days after the mailing of
notice by the insurer or self-insured employer.
(5) Payment of compensation under subsection (4) of this
section or payment, in amounts not to exceed $500 per claim, for
medical services for nondisabling claims, may be made by the
subject employer if the employer so chooses. The making of such
payments does not constitute a waiver or transfer of the
insurer's duty to determine entitlement to benefits. If the
employer chooses to make such payment, the employer shall report
the injury to the insurer in the same manner that other injuries
are reported. However, an insurer shall not modify an employer's
experience rating or otherwise make charges against the employer
for any medical expenses paid by the employer pursuant to this
subsection.
(6)(a) Written notice of acceptance or denial of the claim
shall be furnished to the claimant by the insurer or self-insured
employer within 60 days after the employer has notice or
knowledge of the claim. Once the claim is accepted, the insurer
or self-insured employer shall not revoke acceptance except as
provided in this section. The insurer or self-insured employer
may revoke acceptance and issue a denial at any time when the
denial is for fraud, misrepresentation or other illegal activity
by the worker. If the worker requests a hearing on any revocation
of acceptance and denial alleging fraud, misrepresentation or
other illegal activity, the insurer or self-insured employer has
the burden of proving, by a preponderance of the evidence, such
fraud, misrepresentation or other illegal activity. Upon such
proof, the worker then has the burden of proving, by a
preponderance of the evidence, the compensability of the claim.
If the insurer or self-insured employer accepts a claim in good
faith, in a case not involving fraud, misrepresentation or other
Enrolled House Bill 2091 (HB 2091-A) Page 25
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
Enrolled House Bill 2091 (HB 2091-A) Page 26
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 plus any attorney fees
assessed under this section. The fees assessed by the director,
an Administrative Law Judge, the board or the court under this
section shall be proportionate to the benefit to the injured
worker. The board shall adopt rules for establishing the amount
of the attorney fee, giving primary consideration to the results
achieved and to the time devoted to the case. An attorney fee
awarded pursuant to this subsection may not exceed $2,000 absent
a showing of extraordinary circumstances. Notwithstanding any
Enrolled House Bill 2091 (HB 2091-A) Page 27
other provision of this chapter, the director shall have
exclusive jurisdiction over proceedings regarding solely the
assessment and payment of the additional amount and attorney fees
described in this subsection. { - The director's action and
review thereof shall be subject to ORS chapter 183 and such other
procedural rules as the director may prescribe. - } { + The
action of the director and the review of the action taken by the
director shall be subject to review under ORS 656.704. + }
(b) When the director does not have exclusive jurisdiction over
proceedings regarding the assessment and payment of the
additional amount and attorney fees described in this subsection,
the provisions of 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) 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.
(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.
Enrolled House Bill 2091 (HB 2091-A) Page 28
(15) 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 (13) of this section.
SECTION 11. 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 - }
{ + 656.704 + }.
(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 - } { + under ORS 656.704 + }. 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 chapter 183. - }
Enrolled House Bill 2091 (HB 2091-A) Page 29
(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 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
Enrolled House Bill 2091 (HB 2091-A) Page 30
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.
SECTION 12. ORS 656.327 is amended to read:
656.327. (1)(a) If an injured worker, an insurer or
self-insured employer or the Director of the Department of
Consumer and Business Services believes that the medical
treatment, not subject to ORS 656.260, that the injured worker
has received, is receiving, will receive or is proposed to
receive is excessive, inappropriate, ineffectual or in violation
of rules regarding the performance of medical services, the
injured worker, insurer or self-insured employer { - shall - }
{ + must + } request { + administrative + }review of the
treatment by the director { + prior to requesting a hearing on
the issue + } and so notify the parties.
(b) Unless the director issues an order finding that no bona
fide medical services dispute exists, the director shall review
the matter as provided in this section. Appeal of an order
finding that no bona fide medical services dispute exists shall
be made directly to the Workers' Compensation Board within 30
days after issuance of the order. The board shall set aside or
remand the order only if the board finds that the order is not
supported by substantial evidence in the record. Substantial
evidence exists to support a finding in the order when the
record, reviewed as a whole, would permit a reasonable person to
make that finding. The decision of the board is not subject to
review by any other court or administrative agency.
Enrolled House Bill 2091 (HB 2091-A) Page 31
(c) The insurer or self-insured employer shall not deny the
claim for medical services nor shall the worker request a hearing
on any issue { - that is subject to the jurisdiction of the
director - } under this section until the director issues an
order under subsection (2) of this section.
(2) The director shall review medical information and records
regarding the treatment. The director may cause an appropriate
medical service provider to perform reasonable and appropriate
tests, other than invasive tests, upon the worker and may examine
the worker. Notwithstanding ORS 656.325 (1), the worker may
refuse a test without sanction. Review of the medical treatment
shall be completed and the director shall issue an order within
60 days of the request for review. The director shall create a
documentary record sufficient for purposes of judicial review. If
the worker, insurer, self-insured employer or medical service
provider is dissatisfied with that order, the dissatisfied party
may request
{ - a contested case hearing before the director pursuant to
ORS chapter 183 - } { + review under ORS 656.704 + }. { - At
the contested case hearing, - } The administrative order may be
modified { + at hearing + } only if it is not supported by
substantial evidence in the record or if it reflects an error of
law. No new medical evidence or issues shall be admitted.
{ - If the director issues an order declaring medical treatment
to be not compensable, - } The worker is not obligated to pay
for { - such treatment. Review of the director's order shall be
by the Court of Appeals pursuant to ORS chapter 183 - } { +
medical treatment determined not to be compensable under this
subsection + }.
(3) Upon request of either party, the director may delegate to
a physician or a panel of physicians the review of medical
treatment under this section. At least one member of any such
panel shall be a practitioner of the healing art of the medical
service provider whose treatment is being reviewed. No member of
any such panel shall be a physician whose treatment is the
subject of review. The panel shall be chosen in such manner as
the director may prescribe, in consultation with the committee
referred to in ORS 656.790. The physician or panel shall submit
findings to the director within the time limits as prescribed by
the director.
(4) The physician or the panel of physicians and the medical
arbiter or panel of medical arbiters appointed pursuant to ORS
656.268 acting pursuant to the authority of the director are
agents of the Department of Consumer and Business Services and
are subject to the provisions of ORS 30.260 to 30.300. The
findings of the physician or panel of physicians, the medical
arbiter or panel of medical arbiters, all of the records and all
communications to or before a panel or arbiter are privileged and
are not discoverable or admissible in any proceeding other than
those proceedings under this chapter. No member of a panel or a
medical arbiter shall be examined or subject to administrative or
civil liability regarding participation in or the findings of the
panel or medical arbiter or any matter before the panel or
medical arbiter other than in proceedings under this chapter.
(5) The costs of review of medical treatment by the physician
or panel of physicians pursuant to this section and costs
incurred by the worker in attending any examination required
under this section, including child care, transportation, lodging
and meals, shall be paid by the insurer or self-insured employer.
SECTION 13. ORS 656.385 is amended to read:
Enrolled House Bill 2091 (HB 2091-A) Page 32
656.385. (1) In all cases involving a dispute over compensation
benefits pursuant to ORS 656.245, { + 656.247, + } 656.260,
656.327 or 656.340, where a claimant finally prevails after a
proceeding has commenced { + , + } { - before - } the Director
of the Department of Consumer and Business Services { - , the
director - } { + or the Administrative Law Judge + } shall
require the insurer or self-insured employer to pay a reasonable
attorney fee to the claimant's attorney. In such cases, where an
attorney is instrumental in obtaining a settlement of the dispute
prior to a decision by the director { + or an Administrative Law
Judge + }, the director { + or Administrative Law Judge + }
shall require the insurer or self-insured employer to pay a
reasonable attorney fee to the claimant or claimant's attorney.
The attorney fee must be based on all work the claimant's
attorney has done relative to the proceeding at all levels before
the department. The attorney fee assessed { - by the director,
or on appeal from an order of the director, - } under this
section must be proportionate to the benefit to the injured
worker. The director shall adopt rules for establishing the
amount of the attorney fee, giving primary consideration to the
results achieved and to the time devoted to the case. An attorney
fee awarded pursuant to this subsection may not exceed $2,000
absent a showing of extraordinary circumstances.
(2) If an insurer or self-insured employer refuses to pay
compensation due under ORS 656.245, { + 656.247, + } 656.260,
656.327 or 656.340 pursuant to { - a final contested case - }
{ + an + } order of the director, { + an Administrative Law
Judge or + } { - order of - } the court or otherwise
unreasonably resists the payment of such compensation, the
insurer or self-insured employer shall pay to the claimant or the
attorney of the claimant a reasonable attorney fee as provided in
subsection (3) of this section. To the extent an employer has
caused the insurer to be charged such fees, such employer may be
charged with those fees.
(3) If a request for a contested case hearing, review on appeal
or cross-appeal to the Court of Appeals or petition for review to
the Supreme Court is initiated by an insurer or self-insured
employer, and the director { + , Administrative Law Judge + } or
court finds that the compensation awarded under ORS 656.245,
{ + 656.247, + } 656.260, 656.327 or 656.340 to a claimant
should not be disallowed or reduced, the insurer or self-insured
employer shall be required to pay to the claimant or the attorney
of the claimant a reasonable attorney fee in an amount set by the
director { + , the Administrative Law Judge + } or the court for
legal representation by an attorney for the claimant at the
contested case hearing, review on appeal or cross-appeal.
(4) If upon reaching a final contested case decision where such
contested case was initiated by an insurer or self-insured
employer it is found { - by the director - } that the insurer
or self-insured employer initiated the contested case hearing for
the purpose of delay or other vexatious reason or without
reasonable ground, the director { + or Administrative Law
Judge + } may order the insurer or self-insured employer to pay
to the claimant such penalty not exceeding $750 and not less than
$100 as may be reasonable in the circumstances.
(5) { - Notwithstanding any other provision in ORS 656.382 or
656.386, an Administrative Law Judge or the Workers' Compensation
Board may not award penalties or attorney fees for matters
arising under the review jurisdiction of the director. - }
Penalties and attorney fees awarded pursuant to this section by
Enrolled House Bill 2091 (HB 2091-A) Page 33
the director { + , an Administrative Law Judge + } or the courts
shall be paid for by the employer or insurer in addition to
compensation found to be due to the claimant.
SECTION 14. ORS 656.440 is amended to read:
656.440. (1) Before revocation of certification under ORS
656.434 becomes effective, the Director of the Department of
Consumer and Business Services shall give the employer notice
that the certification will be revoked stating the grounds for
the revocation. The notice shall be served on the employer in the
manner provided by ORS 656.427 (3). The revocation shall become
effective within 10 days after receipt of such notice by the
employer unless within such period of time the employer corrects
the grounds for the revocation or appeals in writing to the
{ - Department of Consumer and Business Services - }
{ + director. The director shall refer the request for hearing
to the Workers' Compensation Board for a hearing before an
Administrative Law Judge + }.
(2) If the employer appeals, the { - director - }
{ + Hearings Division of the Workers' Compensation Board under
ORS 656.283 + } shall set a date for a hearing, which date shall
be within { - 20 - } { + 30 + } days after receiving the
appeal request, and shall give the employer at least five days'
notice of the time and place of the hearing. A record of the
hearing shall be kept but it need not be transcribed unless
requested by the employer { + . + } { - ; and - } The cost of
transcription shall be charged to the employer. Within
{ - five - } { + 10 + } days after the hearing, the
{ - director - } { + Administrative Law Judge + } shall either
affirm or disaffirm the revocation and give the employer written
notice thereof by registered or certified mail.
(3) If revocation is affirmed on review by the
{ - director - } { + Administrative Law Judge + }, the
revocation is effective five days after the employer receives
notice of the affirmance unless within such period of time the
employer corrects the grounds for the revocation or petitions for
judicial review of the affirmance pursuant to ORS { - chapter
183 - } { + 183.480 to 183.497 + }.
(4) If the revocation is affirmed following judicial review,
the revocation is effective five days after entry of the final
judgment of affirmance, unless within such period the employer
corrects the grounds for the revocation.
SECTION 15. ORS 656.704 is amended to read:
656.704. (1) Actions and orders of the Director of the
Department of Consumer and Business Services { + regarding
matters concerning a claim under this chapter + }, and
administrative and judicial review { - thereof - } { + of
those matters + }, { - regarding matters concerning a claim
under this chapter - } are subject to the procedural provisions
of this chapter and such procedural rules as the Workers'
Compensation Board may prescribe.
(2) { + (a) + } { - Notwithstanding ORS 183.315 (1), actions
and orders of the director and the conduct of hearings and other
proceedings pursuant to this chapter, and judicial review
thereof, regarding all matters other than those concerning a
claim under this chapter, are subject to ORS chapter 183. Except
as provided in subsections (4) and (5) of this section, contested
case hearings under this subsection shall be conducted by an
administrative law judge assigned from the Office of
Administrative Hearings established under ORS 183.605. - }
{ + A party dissatisfied with an action or order regarding a
Enrolled House Bill 2091 (HB 2091-A) Page 34
matter other than a matter concerning a claim under this chapter
may request a hearing on the matter in writing to the director.
The director shall refer the request for hearing to the Workers'
Compensation Board for a hearing before an Administrative Law
Judge. Review of an order issued by the Administrative Law Judge
shall be by the director and the director shall issue a final
order that is subject to judicial review as provided by ORS
183.480 to 183.497.
(b) + } The director { - by rule - } shall prescribe the
classes of orders issued { + under this subsection + } by
Administrative Law Judges and other personnel that are final,
appealable orders and those orders that are preliminary orders
subject to revision by the director.
(3)(a) For the purpose of determining the respective authority
of the director and the board to conduct hearings, investigations
and other proceedings under this chapter, and for determining the
procedure for the conduct and review thereof, matters concerning
a claim under this chapter are those matters in which a worker's
right to receive compensation, or the amount thereof, are
directly in issue. However, subject to paragraph (b) of this
subsection, such matters do not include any disputes arising
under ORS 656.245, { + 656.247, + } 656.248, 656.260 { - , - }
{ + or + } 656.327, any other provisions directly relating to
the provision of medical services to workers or any disputes
arising under ORS 656.340 except as those provisions may
otherwise provide.
(b) The respective authority of the board and the director to
resolve medical service disputes { - , other than disputes
arising under ORS 656.260, - } shall be determined according to
the following principles:
(A) Any dispute that requires a determination of the
compensability of the medical condition for which medical
services are proposed is a matter concerning a claim.
(B) Any dispute that requires a determination of whether
medical services are excessive, inappropriate, ineffectual or in
violation of the rules regarding the performance of medical
services, or a determination of whether medical services for an
accepted condition qualify as compensable medical services among
those listed in ORS 656.245 (1)(c), is not a matter concerning a
claim.
(C) Any dispute that requires a determination of whether a
sufficient causal relationship exists between medical services
and an accepted claim to establish compensability is a matter
concerning a claim.
{ - (D) The board and the director shall adopt rules to
facilitate the fair and orderly determination of disputes that
involve matters concerning a claim and additional issues. Such
rules shall first require the determination of those issues that
are matters concerning a claim. - }
{ + (c) Notwithstanding ORS 656.283 (4), if parties to a
hearing scheduled before an Administrative Law Judge are involved
in a dispute regarding both matters concerning a claim and
matters not concerning a claim, the Administrative Law Judge may
defer any action on the matter concerning a claim until the
director has completed an administrative review of the matters
other than those concerning a claim. The director shall mail a
copy of the administrative order to the parties and to the
Administrative Law Judge. A party may request a hearing on the
order of the director. At the request of a party or by the own
motion of the Administrative Law Judge, the hearings on the
Enrolled House Bill 2091 (HB 2091-A) Page 35
separate matters may be consolidated. The Administrative Law
Judge shall issue an order for those matters concerning a claim
and a separate order for matters other than those concerning a
claim. + }
{ - (4) If a hearing involves actions and orders of the
director that are subject to hearing under this section and also
involves issues subject to hearing by an Administrative Law Judge
from the board's Hearings Division, the director may direct that
the hearing be conducted by an Administrative Law Judge from the
board's Hearings Division in lieu of an administrative law judge
assigned from the Office of Administrative Hearings established
under ORS 183.605. - }
{ - (5) - } { + (4) + } Hearings under ORS 656.740 shall be
conducted by an Administrative Law Judge from the board's
Hearings Division.
{ + (5) If a request for hearing or administrative review is
filed with either the director or the board and it is determined
that the request should have been filed with the other, the
dispute shall be transferred. Filing a request will be timely
filed if the original filing was completed within the prescribed
time. + }
SECTION 16. ORS 656.726, as amended by section 3, chapter 657,
Oregon Laws 2003, is amended to read:
656.726. (1) The Workers' Compensation Board in its name and
the Director of the Department of Consumer and Business Services
in the director's name as director may sue and be sued, and each
shall have a seal.
(2) The board hereby is charged with reviewing appealed orders
of Administrative Law Judges in controversies concerning a claim
arising under this chapter, exercising own motion jurisdiction
under this chapter and providing such policy advice as the
director may request, and providing such other review functions
as may be prescribed by law. To that end any of its members or
assistants authorized thereto by the members shall have power to:
(a) Hold sessions at any place within the state.
(b) Administer oaths.
(c) Issue and serve by the board's representatives, or by any
sheriff, subpoenas for the attendance of witnesses and the
production of papers, contracts, books, accounts, documents and
testimony before any hearing under ORS 654.001 to 654.295,
654.750 to 654.780 and this chapter.
(d) Generally provide for the taking of testimony and for the
recording of proceedings.
(3) The board chairperson is hereby charged with the
administration of and responsibility for the Hearings Division.
(4) The director hereby is charged with duties of
administration, regulation and enforcement of ORS 654.001 to
654.295, 654.750 to 654.780 and this chapter. To that end the
director may:
(a) Make and declare all rules and issue orders which are
reasonably required in the performance of the director's duties.
Unless otherwise specified by law, all reports, claims or other
documents shall be deemed timely provided to the director or
board if mailed by regular mail or delivered within the time
required by law. Notwithstanding any other provision of this
chapter, the director may adopt rules to allow for the electronic
transmission and filing of reports, claims or other documents
required to be filed under this chapter. Notwithstanding ORS
183.310 to 183.410, if a matter comes before the director that is
not addressed by rule and the director finds that adoption of a
Enrolled House Bill 2091 (HB 2091-A) Page 36
rule to accommodate the matter would be inefficient, unreasonable
or unnecessarily burdensome to the public, the director may
resolve the matter by issuing an order, subject to review under
ORS { - chapter 183 - } { + 656.704 + }. Such order shall not
have precedential effect as to any other situation.
(b) Hold sessions at any place within the state.
(c) Administer oaths.
(d) Issue and serve by representatives of the director, or by
any sheriff, subpoenas for the attendance of witnesses and the
production of papers, contracts, books, accounts, documents and
testimony in any inquiry, investigation, proceeding or rulemaking
hearing conducted by the director or the director's
representatives. The director may require the attendance and
testimony of employers, their officers and representatives in any
inquiry under this chapter, and the production by employers of
books, records, papers and documents without the payment or
tender of witness fees on account of such attendance.
(e) Generally provide for the taking of testimony and for the
recording of such proceedings.
(f) Provide standards for the evaluation of disabilities. The
following provisions apply to the standards:
(A) The criterion for evaluation of permanent impairment under
ORS 656.214 is the loss of use or function of a body part or
system due to the compensable industrial injury or occupational
disease. Permanent impairment is expressed as a percentage of the
whole person. The impairment value may not exceed 100 percent of
the whole person.
(B) Impairment is established by a preponderance of medical
evidence based upon objective findings.
(C) The criterion for evaluation of work disability under ORS
656.214 is permanent impairment as modified by the factors of
age, education and adaptability to perform a given job.
(D) When, upon reconsideration of a notice of closure pursuant
to ORS 656.268, it is found that the worker's disability is not
addressed by the standards adopted pursuant to this paragraph,
notwithstanding ORS 656.268, the director shall stay further
proceedings on the reconsideration of the claim and shall adopt
temporary rules amending the standards to accommodate the
worker's impairment.
(E) Notwithstanding any other provision of this section, only
impairment benefits shall be awarded under ORS 656.214 if:
(i) The worker returns to regular work at the job held at the
time of injury;
(ii) The attending physician or nurse practitioner authorized
to provide compensable medical services under ORS 656.245
releases the worker to regular work at the job held at the time
of injury and the job is available but the worker fails or
refuses to return to that job; or
(iii) The attending physician or nurse practitioner authorized
to provide compensable medical services under ORS 656.245
releases the worker to regular work at the job held at the time
of injury but the worker's employment is terminated for cause
unrelated to the injury.
(g) Prescribe procedural rules for and conduct hearings,
investigations and other proceedings pursuant to ORS 654.001 to
654.295, 654.750 to 654.780 and this chapter regarding all
matters other than those specifically allocated to the board or
the Hearings Division.
(h) Participate fully in any proceeding before the Hearings
Division, board or Court of Appeals in which the director
Enrolled House Bill 2091 (HB 2091-A) Page 37
determines that the proceeding involves a matter that affects or
could affect the discharge of the director's duties of
administration, regulation and enforcement of ORS 654.001 to
654.295 and 654.750 to 654.780 and this chapter.
(5) The board may make and declare all rules which are
reasonably required in the performance of its duties, including
but not limited to rules of practice and procedure in connection
with hearing and review proceedings and exercising its authority
under ORS 656.278. The board shall adopt standards governing the
format and timing of the evidence. The standards shall be
uniformly followed by all Administrative Law Judges and
practitioners. The rules may provide for informal prehearing
conferences in order to expedite claim adjudication, amicably
dispose of controversies, if possible, narrow issues and simplify
the method of proof at hearings. The rules shall specify who may
appear with parties at prehearing conferences and hearings.
(6) The director and the board chairperson may incur such
expenses as they respectively determine are reasonably necessary
to perform their authorized functions.
(7) The director, the board chairperson and the State Accident
Insurance Fund Corporation shall have the right, not subject to
review, to contract for the exchange of, or payment for, such
services between them as will reduce the overall cost of
administering this chapter.
(8) The director shall have lien and enforcement powers
regarding assessments to be paid by subject employers in the same
manner and to the same extent as is provided for lien and
enforcement of collection of premiums and assessments by the
corporation under ORS 656.552 to 656.566.
(9) The director shall have the same powers regarding
inspection of books, records and payrolls of employers as are
granted the corporation under ORS 656.758. The director may
disclose information obtained from such inspections to the
Director of the Department of Revenue to the extent the Director
of the Department of Revenue requires such information to
determine that a person complies with the revenue and tax laws of
this state and to the Director of the Employment Department to
the extent the Director of the Employment Department requires
such information to determine that a person complies with ORS
chapter 657.
(10) The director shall collect hours-worked data information
in addition to total payroll for workers engaged in various jobs
in the construction industry classifications described in the job
classification portion of the Workers' Compensation and Employers
Liability Manual and the Oregon Special Rules Section published
by the National Council on Compensation Insurance. The
information shall be collected in the form and format necessary
for the National Council on Compensation Insurance to analyze
premium equity.
SECTION 17. ORS 656.726, as amended by sections 3 and 4,
chapter 657, Oregon Laws 2003, and section 18, chapter 811,
Oregon Laws 2003, is amended to read:
656.726. (1) The Workers' Compensation Board in its name and
the Director of the Department of Consumer and Business Services
in the director's name as director may sue and be sued, and each
shall have a seal.
(2) The board hereby is charged with reviewing appealed orders
of Administrative Law Judges in controversies concerning a claim
arising under this chapter, exercising own motion jurisdiction
under this chapter and providing such policy advice as the
Enrolled House Bill 2091 (HB 2091-A) Page 38
director may request, and providing such other review functions
as may be prescribed by law. To that end any of its members or
assistants authorized thereto by the members shall have power to:
(a) Hold sessions at any place within the state.
(b) Administer oaths.
(c) Issue and serve by the board's representatives, or by any
sheriff, subpoenas for the attendance of witnesses and the
production of papers, contracts, books, accounts, documents and
testimony before any hearing under ORS 654.001 to 654.295,
654.750 to 654.780 and this chapter.
(d) Generally provide for the taking of testimony and for the
recording of proceedings.
(3) The board chairperson is hereby charged with the
administration of and responsibility for the Hearings Division.
(4) The director hereby is charged with duties of
administration, regulation and enforcement of ORS 654.001 to
654.295, 654.750 to 654.780 and this chapter. To that end the
director may:
(a) Make and declare all rules and issue orders which are
reasonably required in the performance of the director's duties.
Unless otherwise specified by law, all reports, claims or other
documents shall be deemed timely provided to the director or
board if mailed by regular mail or delivered within the time
required by law. Notwithstanding any other provision of this
chapter, the director may adopt rules to allow for the electronic
transmission and filing of reports, claims or other documents
required to be filed under this chapter. Notwithstanding ORS
183.310 to 183.410, if a matter comes before the director that is
not addressed by rule and the director finds that adoption of a
rule to accommodate the matter would be inefficient, unreasonable
or unnecessarily burdensome to the public, the director may
resolve the matter by issuing an order, subject to review under
ORS { - chapter 183 - } { + 656.704 + }. Such order shall not
have precedential effect as to any other situation.
(b) Hold sessions at any place within the state.
(c) Administer oaths.
(d) Issue and serve by representatives of the director, or by
any sheriff, subpoenas for the attendance of witnesses and the
production of papers, contracts, books, accounts, documents and
testimony in any inquiry, investigation, proceeding or rulemaking
hearing conducted by the director or the director's
representatives. The director may require the attendance and
testimony of employers, their officers and representatives in any
inquiry under this chapter, and the production by employers of
books, records, papers and documents without the payment or
tender of witness fees on account of such attendance.
(e) Generally provide for the taking of testimony and for the
recording of such proceedings.
(f) Provide standards for the evaluation of disabilities. The
following provisions apply to the standards:
(A) The criteria for evaluation of disabilities under ORS
656.214 (5) shall be permanent impairment due to the industrial
injury as modified by the factors of age, education and
adaptability to perform a given job.
(B) Impairment is established by a preponderance of medical
evidence based upon objective findings.
(C) When, upon reconsideration of a notice of closure pursuant
to ORS 656.268, it is found that the worker's disability is not
addressed by the standards adopted pursuant to this paragraph,
notwithstanding ORS 656.268, the director shall stay further
Enrolled House Bill 2091 (HB 2091-A) Page 39
proceedings on the reconsideration of the claim and shall adopt
temporary rules amending the standards to accommodate the
worker's impairment.
(D) Notwithstanding any other provision of this section,
impairment is the only factor to be considered in evaluation of
the worker's disability under ORS 656.214 (5) if:
(i) The worker returns to regular work at the job held at the
time of injury;
(ii) The attending physician releases the worker to regular
work at the job held at the time of injury and the job is
available but the worker fails or refuses to return to that job;
or
(iii) The attending physician releases the worker to regular
work at the job held at the time of injury but the worker's
employment is terminated for cause unrelated to the injury.
(g) Prescribe procedural rules for and conduct hearings,
investigations and other proceedings pursuant to ORS 654.001 to
654.295, 654.750 to 654.780 and this chapter regarding all
matters other than those specifically allocated to the board or
the Hearings Division.
(h) Participate fully in any proceeding before the Hearings
Division, board or Court of Appeals in which the director
determines that the proceeding involves a matter that affects or
could affect the discharge of the director's duties of
administration, regulation and enforcement of ORS 654.001 to
654.295 and 654.750 to 654.780 and this chapter.
(5) The board may make and declare all rules which are
reasonably required in the performance of its duties, including
but not limited to rules of practice and procedure in connection
with hearing and review proceedings and exercising its authority
under ORS 656.278. The board shall adopt standards governing the
format and timing of the evidence. The standards shall be
uniformly followed by all Administrative Law Judges and
practitioners. The rules may provide for informal prehearing
conferences in order to expedite claim adjudication, amicably
dispose of controversies, if possible, narrow issues and simplify
the method of proof at hearings. The rules shall specify who may
appear with parties at prehearing conferences and hearings.
(6) The director and the board chairperson may incur such
expenses as they respectively determine are reasonably necessary
to perform their authorized functions.
(7) The director, the board chairperson and the State Accident
Insurance Fund Corporation shall have the right, not subject to
review, to contract for the exchange of, or payment for, such
services between them as will reduce the overall cost of
administering this chapter.
(8) The director shall have lien and enforcement powers
regarding assessments to be paid by subject employers in the same
manner and to the same extent as is provided for lien and
enforcement of collection of premiums and assessments by the
corporation under ORS 656.552 to 656.566.
(9) The director shall have the same powers regarding
inspection of books, records and payrolls of employers as are
granted the corporation under ORS 656.758. The director may
disclose information obtained from such inspections to the
Director of the Department of Revenue to the extent the Director
of the Department of Revenue requires such information to
determine that a person complies with the revenue and tax laws of
this state and to the Director of the Employment Department to
the extent the Director of the Employment Department requires
Enrolled House Bill 2091 (HB 2091-A) Page 40
such information to determine that a person complies with ORS
chapter 657.
(10) The director shall collect hours-worked data information
in addition to total payroll for workers engaged in various jobs
in the construction industry classifications described in the job
classification portion of the Workers' Compensation and Employers
Liability Manual and the Oregon Special Rules Section published
by the National Council on Compensation Insurance. The
information shall be collected in the form and format necessary
for the National Council on Compensation Insurance to analyze
premium equity.
SECTION 18. ORS 183.635 is amended to read:
183.635. (1) Except as provided in this section, all agencies
must use administrative law judges assigned from the Office of
Administrative Hearings established under ORS 183.605 to conduct
contested case hearings, without regard to whether those hearings
are subject to the procedural requirements for contested case
hearings.
(2) The following agencies need not use administrative law
judges assigned from the office:
(a) The Department of Education, the State Board of Education
and the Superintendent of Public Instruction.
(b) Employment Appeals Board.
(c) Employment Relations Board.
(d) Public Utility Commission.
(e) Bureau of Labor and Industries and the Commissioner of the
Bureau of Labor and Industries.
(f) Land Conservation and Development Commission.
(g) Land Use Board of Appeals.
(h) Department of Revenue.
(i) Local government boundary commissions created pursuant to
ORS 199.425 or 199.430.
(j) State Accident Insurance Fund Corporation.
(k) Psychiatric Security Review Board.
(L) State Board of Parole and Post-Prison Supervision.
(m) Department of Corrections.
(n) Energy Facility Siting Council.
(o) Department of Human Services for vocational rehabilitation
services cases under 29 U.S.C. 722(c) and disability
determination cases under 42 U.S.C. 405.
(p) Secretary of State.
(q) State Treasurer.
(r) Attorney General.
(s) Fair Dismissal Appeals Board.
(t) Department of State Police.
(u) Oregon Youth Authority.
(v) Boards of stewards appointed by the Oregon Racing
Commission.
(w) The Department of Higher Education and the institutions of
higher education listed in ORS 352.002.
(x) The Governor.
(y) State Land Board.
(z) Wage and Hour Commission.
(aa) State Apprenticeship and Training Council.
(3) The Workers' Compensation Board is exempt from using
administrative law judges assigned from the office for any
hearing conducted by the board under ORS chapters 147, 654 and
656. { - The Director of the Department of Consumer and
Business Services must use administrative law judges assigned
from the office for all contested case hearings regarding matters
Enrolled House Bill 2091 (HB 2091-A) Page 41
other than those concerning a claim under ORS chapter 656, as
provided in ORS 656.704 (2). - } Except as specifically provided
in this subsection, the Department of Consumer and Business
Services must use administrative law judges assigned from the
office only for contested cases arising out of the department's
powers and duties under:
(a) ORS chapter 59;
(b) ORS 200.005 to 200.075;
(c) ORS chapter 455;
(d) ORS chapter 674;
(e) ORS chapters 706 to 716;
(f) ORS chapter 717;
(g) ORS chapters 722, 723, 725 and 726; and
(h) ORS chapters 731, 732, 733, 734, 735, 737, 742, 743, 744,
746, 748 and 750.
(4) Notwithstanding any other provision of law, in any
proceeding in which an agency is required to use an
administrative law judge assigned from the office, an officer or
employee of the agency may not conduct the hearing on behalf of
the agency.
(5) Notwithstanding any other provision of ORS 183.600 to
183.690, an agency is not required to use an administrative law
judge assigned from the office if:
(a) Federal law requires that a different administrative law
judge or hearing officer be used; or
(b) Use of an administrative law judge from the office could
result in a loss of federal funds.
(6) Notwithstanding any other provision of this section, the
Department of Environmental Quality must use administrative law
judges assigned from the office only for contested case hearings
conducted under the provisions of ORS 183.413 to 183.470.
SECTION 19. { + The amendments to + } { + ORS + }
{ + 183.635, 656.054, 656.170, 656.245, 656.247, 656.248,
656.254, 656.260, 656.262, 656.283, 656.327, 656.385, 656.440,
656.704 and 656.726 by sections 1, 2, 3, 5, 6, 7, 8, 9, 11, 12,
13, 14, 15, 16 and 18 of this 2005 Act apply to hearings held on
or after January 2, 2006. + }
SECTION 20. { + The amendments to ORS 656.245, 656.262 and
656.726 by sections 4, 10 and 17 of this 2005 Act apply to
hearings held on or after January 2, 2008. + }
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Passed by House March 24, 2005
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate April 27, 2005
...........................................................
President of Senate
Enrolled House Bill 2091 (HB 2091-A) Page 42
Received by Governor:
......M.,............., 2005
Approved:
......M.,............., 2005
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2005
...........................................................
Secretary of State
Enrolled House Bill 2091 (HB 2091-A) Page 43