73rd OREGON LEGISLATIVE ASSEMBLY--2005 Regular Session
Enrolled
House Bill 2408
Sponsored by COMMITTEE ON BUSINESS, LABOR AND CONSUMER AFFAIRS
CHAPTER ................
AN ACT
Relating to workers' compensation claims; creating new
provisions; and amending ORS 656.214 and 656.726.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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 2408 (HB 2408-B) Page 1
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. 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 - } { + the worker has been
released to regular work by the attending physician or nurse
practitioner authorized to provide compensable medical services
under ORS 656.245 or has returned to regular work at the job held
at the time of injury + }.
(g) Prescribe procedural rules for and conduct hearings,
investigations and other proceedings pursuant to ORS 654.001 to
Enrolled House Bill 2408 (HB 2408-B) Page 2
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
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 2. ORS 656.726, as amended by section 3, chapter 657,
Oregon Laws 2003, and section 1 of this 2005 Act, 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
Enrolled House Bill 2408 (HB 2408-B) Page 3
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
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. 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 - } { + criteria + } 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
Enrolled House Bill 2408 (HB 2408-B) Page 4
is expressed as a percentage of the whole person. The impairment
value may not exceed 100 percent of the whole person - } { +
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) 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) - } { + (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 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
the worker has been released to regular work by the attending
physician or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 or has returned to regular
work at the job held at the time of injury. - }
{ + (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.
Enrolled House Bill 2408 (HB 2408-B) Page 5
(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 2a. { + If House Bill 2091 becomes law, section 2 of
this 2005 Act (amending ORS 656.726) is repealed and ORS 656.726,
as amended by section 3, chapter 657, Oregon Laws 2003, and
section 1 of this 2005 Act, 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.
Enrolled House Bill 2408 (HB 2408-B) Page 6
(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 { - criterion - } { + criteria + } 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 - } { +
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) 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) - } { + (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 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
the worker has been released to regular work by the attending
Enrolled House Bill 2408 (HB 2408-B) Page 7
physician or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 or has returned to regular
work at the job held at the time of injury. - }
{ + (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 2408 (HB 2408-B) Page 8
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 3. ORS 656.214, as amended by section 1, chapter 657,
Oregon Laws 2003, is amended to read:
656.214. (1) As used in this section:
(a) 'Impairment' means the loss of use or function of a body
part or system due to the compensable industrial injury or
occupational disease determined in accordance with the standards
provided under ORS 656.726, expressed as a percentage of the
whole person.
(b) 'Loss' includes permanent and complete or partial loss of
use.
(c) 'Permanent partial disability' means:
(A) Permanent impairment resulting from the compensable
industrial injury or occupational disease; or
(B) Permanent impairment and work disability resulting from the
compensable industrial injury or occupational disease.
(d) 'Regular work' means the job the worker held at injury.
(e) 'Work disability' means impairment modified by age,
education and adaptability to perform a given job.
(2) When permanent partial disability results from a
compensable injury or occupational disease, benefits shall be
awarded as follows:
(a) If the { - conditions for the worker's return to or
release for regular work in ORS 656.726 (4) have been met - }
{ + worker has been released to regular work by the attending
physician or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 or has returned to regular
work at the job held at the time of injury + }, the award shall
be for impairment only. Impairment shall be determined in
accordance with the standards provided by the Director of the
Department of Consumer and Business Services pursuant to ORS
656.726 (4). Impairment benefits are determined by multiplying
the impairment value times 100 times the average weekly wage as
defined by ORS 656.005.
(b) If the { - conditions for the worker's return to or
release for regular work in ORS 656.726 (4) have not been met - }
{ + worker has not been released to regular work by the
attending physician or nurse practitioner authorized to provide
compensable medical services under ORS 656.245 or has not
returned to regular work at the job held at the time of
injury + }, the award shall be for impairment and work
disability. Work disability shall be determined in accordance
with the standards provided by the director pursuant to ORS
656.726 (4). Impairment shall be determined as provided in
paragraph (a) of this subsection. Work disability benefits shall
be determined by multiplying the impairment value, as modified by
the factors of age, education and adaptability to perform a given
job, times 150 times the worker's weekly wage for the job at
injury as calculated under ORS 656.210 (2). The factor for the
worker's weekly wage used for the determination of the work
Enrolled House Bill 2408 (HB 2408-B) Page 9
disability may be no more than 133 percent or no less than 50
percent of the average weekly wage as defined in ORS 656.005.
(3) Impairment benefits awarded under subsection (2)(a) of this
section shall be expressed as a percentage of the whole person.
Impairment benefits for the following body parts may not exceed:
(a) For the loss of one arm at or above the elbow joint, 60
percent.
(b) For the loss of one forearm at or above the wrist joint, or
the loss of one hand, 47 percent.
(c) For the loss of one leg, at or above the knee joint, 47
percent.
(d) For the loss of one foot, 42 percent.
(e) For the loss of a great toe, six percent; for loss of any
other toe, one percent.
(f) For partial or complete loss of hearing in one ear, that
proportion of 19 percent which the loss bears to normal monaural
hearing.
(g) For partial or complete loss of hearing in both ears, that
proportion of 60 percent which the combined binaural hearing loss
bears to normal combined binaural hearing. For the purpose of
this paragraph, combined binaural hearing loss shall be
calculated by taking seven times the hearing loss in the less
damaged ear plus the hearing loss in the more damaged ear and
dividing that amount by eight. In the case of individuals with
compensable hearing loss involving both ears, either the method
of calculation for monaural hearing loss or that for combined
binaural hearing loss shall be used, depending upon which allows
the greater award of impairment.
(h) For partial or complete loss of vision of one eye, that
proportion of 31 percent which the loss of monocular vision bears
to normal monocular vision. For the purposes of this paragraph,
the term 'normal monocular vision' shall be considered as Snellen
20/20 for distance and Snellen 14/14 for near vision with full
sensory field.
(i) For partial loss of vision in both eyes, that proportion of
94 percent which the combined binocular visual loss bears to
normal combined binocular vision. In all cases of partial loss of
sight, the percentage of said loss shall be measured with maximum
correction. For the purpose of this paragraph, combined binocular
visual loss shall be calculated by taking three times the visual
loss in the less damaged eye plus the visual loss in the more
damaged eye and dividing that amount by four. In the case of
individuals with compensable visual loss involving both eyes,
either the method of calculation for monocular visual loss or
that for combined binocular visual loss shall be used, depending
upon which allows the greater award of impairment.
(j) For the loss of a thumb, 15 percent.
(k) For the loss of a first finger, eight percent; of a second
finger, seven percent; of a third finger, three percent; of a
fourth finger, two percent.
(4) The loss of one phalange of a thumb, including the adjacent
epiphyseal region of the proximal phalange, is considered equal
to the loss of one-half of a thumb. The loss of one phalange of a
finger, including the adjacent epiphyseal region of the middle
phalange, is considered equal to the loss of one-half of a
finger. The loss of two phalanges of a finger, including the
adjacent epiphyseal region of the proximal phalange of a finger,
is considered equal to the loss of 75 percent of a finger. The
loss of more than one phalange of a thumb, excluding the
epiphyseal region of the proximal phalange, is considered equal
Enrolled House Bill 2408 (HB 2408-B) Page 10
to the loss of an entire thumb. The loss of more than two
phalanges of a finger, excluding the epiphyseal region of the
proximal phalange of a finger, is considered equal to the loss of
an entire finger. A proportionate loss of use may be allowed for
an uninjured finger or thumb where there has been a loss of
effective opposition.
(5) A proportionate loss of the hand may be allowed where
impairment extends to more than one digit, in lieu of ratings on
the individual digits.
(6) All permanent disability contemplates future waxing and
waning of symptoms of the condition. The results of waxing and
waning of symptoms may include, but are not limited to, loss of
earning capacity, periods of temporary total or temporary partial
disability, or inpatient hospitalization.
SECTION 4. ORS 656.214, as amended by section 1, chapter 657,
Oregon Laws 2003, and section 3 of this 2005 Act, is amended to
read:
656.214. (1) As used in this section:
{ - (a) 'Impairment' means the loss of use or function of a
body part or system due to the compensable industrial injury or
occupational disease determined in accordance with the standards
provided under ORS 656.726, expressed as a percentage of the
whole person. - }
{ - (b) - } { + (a) + } 'Loss' includes permanent and
complete or partial loss of use.
{ - (c) - } { + (b) + } 'Permanent partial disability'
means { - : - } { + the loss of either one arm, one hand, one
leg, one foot, loss of hearing in one or both ears, loss of one
eye, one or more fingers, or any other injury known in surgery to
be permanent partial disability.
(2) When permanent partial disability results from an injury,
the criteria for the rating of disability shall be the permanent
loss of use or function of the injured member due to the
industrial injury. The worker shall receive $511.29 for each
degree stated against such disability in subsections (2) to (4)
of this section as follows: + }
{ - (A) Permanent impairment resulting from the compensable
industrial injury or occupational disease; or - }
{ - (B) Permanent impairment and work disability resulting
from the compensable industrial injury or occupational
disease. - }
{ - (d) 'Regular work' means the job the worker held at
injury. - }
{ - (e) 'Work disability' means impairment modified by age,
education and adaptability to perform a given job. - }
{ - (2) When permanent partial disability results from a
compensable injury or occupational disease, benefits shall be
awarded as follows: - }
{ - (a) If the worker has been released to regular work by
the attending physician or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 or has
returned to regular work at the job held at the time of injury,
the award shall be for impairment only. Impairment shall be
determined in accordance with the standards provided by the
Director of the Department of Consumer and Business Services
pursuant to ORS 656.726 (4). Impairment benefits are determined
by multiplying the impairment value times 100 times the average
weekly wage as defined by ORS 656.005. - }
{ - (b) If the worker has not been released to regular work
by the attending physician or nurse practitioner authorized to
Enrolled House Bill 2408 (HB 2408-B) Page 11
provide compensable medical services under ORS 656.245 or has not
returned to regular work at the job held at the time of injury,
the award shall be for impairment and work disability. Work
disability shall be determined in accordance with the standards
provided by the director pursuant to ORS 656.726 (4). Impairment
shall be determined as provided in paragraph (a) of this
subsection. Work disability benefits shall be determined by
multiplying the impairment value, as modified by the factors of
age, education and adaptability to perform a given job, times 150
times the worker's weekly wage for the job at injury as
calculated under ORS 656.210 (2). The factor for the worker's
weekly wage used for the determination of the work disability may
be no more than 133 percent or no less than 50 percent of the
average weekly wage as defined in ORS 656.005. - }
{ - (3) Impairment benefits awarded under subsection (2)(a)
of this section shall be expressed as a percentage of the whole
person. Impairment benefits for the following body parts may not
exceed: - }
(a) For the loss of one arm at or above the elbow joint,
{ - 60 percent - } { + 192 degrees, or a proportion thereof
for losses less than a complete loss + }.
(b) For the loss of one forearm at or above the wrist joint, or
the loss of one hand, { - 47 percent - } { + 150 degrees, or
a proportion thereof for losses less than a complete loss + }.
(c) For the loss of one leg, at or above the knee joint,
{ - 47 percent - } { + 150 degrees, or a proportion thereof
for losses less than a complete loss + }.
(d) For the loss of one foot, { - 42 percent - } { + 135
degrees, or a proportion thereof for losses less than a complete
loss + }.
(e) For the loss of a great toe, { - six percent; for loss of
any other toe, one percent - } { + 18 degrees, or a proportion
thereof for losses less than a complete loss; of any other toe,
four degrees, or a proportion thereof for losses less than a
complete loss + }.
(f) For partial or complete loss of hearing in one ear, that
{ - proportion - } { + percentage + } of { - 19 percent - }
{ + 60 degrees + } which the loss bears to normal monaural
hearing.
(g) For partial or complete loss of hearing in both ears, that
proportion of { - 60 percent - } { + 192 degrees + } which
the combined binaural hearing loss bears to normal combined
binaural hearing. For the purpose of this paragraph, combined
binaural hearing loss shall be calculated by taking seven times
the hearing loss in the less damaged ear plus the hearing loss in
the more damaged ear and dividing that amount by eight. In the
case of individuals with compensable hearing loss involving both
ears, either the method of calculation for monaural hearing loss
or that for combined binaural hearing loss shall be used,
depending upon which allows the greater award of
{ - impairment - } { + disability + }.
(h) For partial or complete loss of vision of one eye, that
proportion of { - 31 percent - } { + 100 degrees + } which
the loss of monocular vision bears to normal monocular vision.
For the purposes of this paragraph, the term 'normal monocular
vision' shall be considered as Snellen 20/20 for distance and
Snellen 14/14 for near vision with full sensory field.
(i) For partial loss of vision in both eyes, that proportion of
{ - 94 percent - } { + 300 degrees + } which the combined
binocular visual loss bears to normal combined binocular vision.
Enrolled House Bill 2408 (HB 2408-B) Page 12
In all cases of partial loss of sight, the percentage of said
loss shall be measured with maximum correction. For the purpose
of this paragraph, combined binocular visual loss shall be
calculated by taking three times the visual loss in the less
damaged eye plus the visual loss in the more damaged eye and
dividing that amount by four. In the case of individuals with
compensable visual loss involving both eyes, either the method of
calculation for monocular visual loss or that for combined
binocular visual loss shall be used, depending upon which allows
the greater award of
{ - impairment - } { + disability + }.
(j) For the loss of a thumb, { - 15 percent - } { + 48
degrees, or a portion thereof for losses less than a complete
loss + }.
(k) For the loss of a first finger, { - eight percent; of a
second finger, seven percent; of a third finger, three percent;
of a fourth finger, two percent - } { + 24 degrees, or a
proportion thereof for losses less than a complete loss; of a
second finger, 22 degrees, or a proportion thereof for losses
less than a complete loss; of a third finger, 10 degrees, or a
proportion thereof for losses less than a complete loss; of a
fourth finger, 6 degrees, or a proportion thereof for losses less
than a complete loss + }.
{ - (4) - } { + (3) + } The loss of one phalange of a
thumb, including the adjacent epiphyseal region of the proximal
phalange, is considered equal to the loss of one-half of a thumb.
The loss of one phalange of a finger, including the adjacent
epiphyseal region of the middle phalange, is considered equal to
the loss of one-half of a finger. The loss of two phalanges of a
finger, including the adjacent epiphyseal region of the proximal
phalange of a finger, is considered equal to the loss of 75
percent of a finger. The loss of more than one phalange of a
thumb, excluding the epiphyseal region of the proximal phalange,
is considered equal to the loss of an entire thumb. The loss of
more than two phalanges of a finger, excluding the epiphyseal
region of the proximal phalange of a finger, is considered equal
to the loss of an entire finger. A proportionate loss of use may
be allowed for an uninjured finger or thumb where there has been
a loss of effective opposition.
{ - (5) - } { + (4) + } A proportionate loss of the hand
may be allowed where { - impairment - } { + disability + }
extends to more than one digit, in lieu of ratings on the
individual digits.
{ + (5) In all cases of injury resulting in permanent partial
disability, other than those described in subsections (2) to (4)
of this section, the criteria for rating of disability shall be
the permanent loss of earning capacity due to the compensable
injury. Earning capacity is to be calculated using the standards
specified in ORS 656.726 (4)(f). The number of degrees of
disability shall be a maximum of 320 degrees determined by the
extent of the disability compared to the worker before such
injury and without such disability.
(6) For injuries for which the disability is determined
pursuant to subsection (5) of this section, the worker shall
receive an amount equal to:
(a) When the number of degrees stated against the disability is
equal to or less than 64, $153.00 times the number of degrees.
(b) When the number of degrees stated against the disability is
more than 64 but equal to or less than 160, $153.00 times 64 plus
$267.44 times the number of degrees in excess of 64.
Enrolled House Bill 2408 (HB 2408-B) Page 13
(c) When the number of degrees stated against the disability is
more than 160, $153.00 times 64 plus $267.44 times 96 plus
$709.79 times the number of degrees in excess of 160. + }
{ - (6) - } { + (7) + } All permanent disability
contemplates future waxing and waning of symptoms of the
condition. The results of waxing and waning of symptoms may
include, but are not limited to, loss of earning capacity,
periods of temporary total or temporary partial disability, or
inpatient hospitalization.
SECTION 5. { + The amendments to ORS 656.214 and 656.726 by
sections 1 and 3 of this 2005 Act apply to injuries occurring on
or after January 1, 2006. + }
SECTION 6. { + The amendments to ORS 656.214 and 656.726 by
sections 2 and 4 of this 2005 Act become operative on January 1,
2008. + }
SECTION 6a. If House Bill 2091 becomes law, section 6 of this
2005 Act is amended to read:
{ + Sec. 6. + } The amendments to ORS 656.214 and 656.726 by
sections
{ - 2 - } { + 2a + } and 4 of this 2005 Act become operative
on January 1, 2008.
SECTION 7. { + (1) The Department of Consumer and Business
Services shall collect data and report to the Seventy-fourth
Legislative Assembly by January 30, 2007, on the impact to
permanent partial disability awards in workers' compensation
claims by:
(a) The amendments to ORS 656.214 by section 1, chapter 657,
Oregon Laws 2003, and section 3 of this 2005 Act; and
(b) The amendments to ORS 656.726 by section 3, chapter 657,
Oregon Laws 2003, and section 1 of this 2005 Act.
(2) The report required by subsection (1) of this section shall
be made in the manner provided by ORS 192.245.
(3) The Director of the Department of Consumer and Business
Services shall adopt rules requiring that workers' compensation
insurers and self-insured employers assist the department in
gathering the data necessary to complete the report as required
by subsection (1) of this section. + }
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Passed by House May 18, 2005
Repassed by House July 15, 2005
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate July 11, 2005
...........................................................
President of Senate
Enrolled House Bill 2408 (HB 2408-B) Page 14
Received by Governor:
......M.,............., 2005
Approved:
......M.,............., 2005
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2005
...........................................................
Secretary of State
Enrolled House Bill 2408 (HB 2408-B) Page 15