73rd OREGON LEGISLATIVE ASSEMBLY--2005 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1407
Senate Bill 741
Sponsored by COMMITTEE ON ENVIRONMENT AND LAND USE
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Defines gainful and suitable occupation for purposes of
workers' compensation and reemployment statutes. Modifies
conditions under which injured worker who cannot return to job at
injury must be offered reemployment by employer.
A BILL FOR AN ACT
Relating to rights of injured workers; amending ORS 656.206 and
659A.046.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 656.206, as amended by section 5, chapter 657,
Oregon Laws 2003, is amended to read:
656.206. (1) As used in this section:
{ + (a) 'Consumer Price Index' has the meaning given that
term in ORS 327.006.
(b) 'Gainful occupation' means an occupation that pays wages
equal to or greater than the wage the worker was being paid at
the time of injury, as adjusted for increases in the cost of
living pursuant to the Consumer Price Index during the period the
injured worker was not medically stationary. + }
{ - (a) - } { + (c) + } Notwithstanding ORS 656.225,
'permanent total disability' means the loss, including
preexisting disability, of use or function of any portion of the
body { - which - } { + that + } permanently incapacitates the
worker from regularly performing work at a gainful and suitable
occupation. { - As used in this section, a gainful occupation
is one that pays wages equal to or greater than the state
mandated hourly minimum wage. As used in this section, a suitable
occupation is one that the worker has the ability and the
training or experience to perform, or an occupation that the
worker is able to perform after rehabilitation. - }
{ + (d) 'Suitable occupation' means an occupation that the
worker has the ability and the training or experience to perform,
with or without reasonable accommodation after being declared
medically stationary or after any required rehabilitation. + }
{ - (b) - } { + (e) + } 'Wages' means wages as determined
under ORS 656.210.
(2) When permanent total disability results from the injury,
the worker shall receive during the period of that disability
compensation benefits equal to 66-2/3 percent of wages not to
exceed 100 percent of the average weekly wage nor less than the
amount of 90 percent of wages a week or the amount of $50,
whichever amount is lesser.
(3) The worker has the burden of proving permanent total
disability status and must establish that the worker is willing
to seek regular gainful employment and that the worker has made
reasonable efforts to obtain such employment.
(4) When requested by the Director of the Department of
Consumer and Business Services, a worker who receives permanent
total disability benefits shall file on a form provided by the
director, a sworn statement of the worker's gross annual income
for the preceding year along with such other information as the
director considers necessary to determine whether the worker
regularly performs work at a gainful and suitable occupation.
(5) Each insurer shall reexamine periodically each permanent
total disability claim for which the insurer has current payment
responsibility to determine whether the worker is currently
permanently incapacitated from regularly performing work at a
gainful and suitable occupation. Reexamination shall be conducted
every two years or at such other more frequent interval as the
director may prescribe. Reexamination shall include such medical
examinations, reports and other records as the insurer considers
necessary or the director may require.
SECTION 2. ORS 656.206, as amended by sections 5 and 6, chapter
657, Oregon Laws 2003, is amended to read:
656.206. (1) As used in this section:
{ + (a) 'Consumer Price Index' has the meaning given that
term in ORS 327.006.
(b) 'Gainful occupation' means an occupation that pays wages
equal to or greater than the wage the worker was being paid at
the time of injury, as adjusted for increases in the cost of
living pursuant to the Consumer Price Index during the period the
injured worker was not medically stationary. + }
{ - (a) - } { + (c) + } Notwithstanding ORS 656.225,
'permanent total disability' means the loss, including
preexisting disability, of use or function of any scheduled or
unscheduled portion of the body { - which - } { + that + }
permanently incapacitates the worker from regularly performing
work at a gainful and suitable occupation.
{ - As used in this section, a gainful occupation is one that
pays wages equal to or greater than the state mandated hourly
minimum wage. As used in this section, a suitable occupation is
one that the worker has the ability and the training or
experience to perform, or an occupation that the worker is able
to perform after rehabilitation. - }
{ + (d) 'Suitable occupation' means an occupation that the
worker has the ability and the training or experience to perform,
with or without reasonable accommodation after being declared
medically stationary or after any required rehabilitation. + }
{ - (b) - } { + (e) + } 'Wages' means wages as determined
under ORS 656.210.
(2) When permanent total disability results from the injury,
the worker shall receive during the period of that disability
compensation benefits equal to 66-2/3 percent of wages not to
exceed 100 percent of the average weekly wage nor less than the
amount of 90 percent of wages a week or the amount of $50,
whichever amount is lesser.
(3) The worker has the burden of proving permanent total
disability status and must establish that the worker is willing
to seek regular gainful employment and that the worker has made
reasonable efforts to obtain such employment.
(4) When requested by the Director of the Department of
Consumer and Business Services, a worker who receives permanent
total disability benefits shall file on a form provided by the
director, a sworn statement of the worker's gross annual income
for the preceding year along with such other information as the
director considers necessary to determine whether the worker
regularly performs work at a gainful and suitable occupation.
(5) Each insurer shall reexamine periodically each permanent
total disability claim for which the insurer has current payment
responsibility to determine whether the worker is currently
permanently incapacitated from regularly performing work at a
gainful and suitable occupation. Reexamination shall be conducted
every two years or at such other more frequent interval as the
director may prescribe. Reexamination shall include such medical
examinations, reports and other records as the insurer considers
necessary or the director may require.
SECTION 3. ORS 659A.046 is amended to read:
659A.046. (1) A worker who has sustained a compensable injury
and is disabled from performing the duties of the worker's former
regular employment shall, upon demand, be reemployed by the
worker's employer { - at employment which is available and
suitable - } { + in a gainful and suitable occupation that is
available + }.
(2) A certificate of the worker's attending physician or a
nurse practitioner authorized to provide compensable medical
services under ORS 656.245 that the worker is able to perform
described types of work shall be prima facie evidence of such
ability.
(3) Notwithstanding subsection (1) of this section, the right
to reemployment under this section terminates when whichever of
the following events first occurs:
(a) The worker cannot return to reemployment at any position
with the employer either by determination of the attending
physician or a nurse practitioner authorized to provide
compensable medical services under ORS 656.245 or upon appeal of
that determination, by determination of a medical arbiter or
panel of medical arbiters pursuant to ORS chapter 656.
{ - (b) The worker is eligible and participates in vocational
assistance under ORS 656.340. - }
{ - (c) - } { + (b) + } The worker accepts suitable
employment with another employer after becoming medically
stationary.
{ - (d) - } { + (c) + } The worker refuses a bona fide
offer from the employer of light duty or modified employment that
is suitable prior to becoming medically stationary.
{ - (e) - } { + (d) + } Seven days elapse from the date
that the worker is notified by the insurer or self-insured
employer by certified mail that the worker's attending physician
or a nurse practitioner authorized to provide compensable medical
services under ORS 656.245 has released the worker for
reemployment { + in a gainful and suitable occupation and the
worker's employer has offered an appropriate position to the
worker in writing, + } unless the worker requests reemployment
within that time period.
{ - (f) - } { + (e) + } Three years elapse from the date of
injury.
(4) Such right of reemployment shall be subject to the
provisions for seniority rights and other employment restrictions
contained in a valid collective bargaining agreement between the
employer and a representative of the employer's employees.
(5) Any violation of this section is an unlawful employment
practice.
(6) This section applies only to employers who employ six or
more persons.
{ + (7) As used in this section:
(a) 'Gainful occupation' means an occupation that pays wages
equal to or greater than the wage the worker was being paid at
the time of injury, as adjusted for increases in the cost of
living pursuant to the Consumer Price Index, as defined in ORS
327.006, during the period the injured worker was not medically
stationary.
(b) 'Suitable occupation' means an occupation that the worker
has the ability and the training or experience to perform, with
or without reasonable accommodation after being declared
medically stationary or after any required rehabilitation. + }
SECTION 4. ORS 659A.046, as amended by section 24, chapter 811,
Oregon Laws 2003, is amended to read:
659A.046. (1) A worker who has sustained a compensable injury
and is disabled from performing the duties of the worker's former
regular employment shall, upon demand, be reemployed by the
worker's employer { - at employment which is available and
suitable - } { + in a gainful and suitable occupation that is
available + }.
(2) A certificate of the worker's attending physician that the
worker is able to perform described types of work shall be prima
facie evidence of such ability.
(3) Notwithstanding subsection (1) of this section, the right
to reemployment under this section terminates when whichever of
the following events first occurs:
(a) The worker cannot return to reemployment at any position
with the employer either by determination of the attending
physician or upon appeal of that determination, by determination
of a medical arbiter or panel of medical arbiters pursuant to ORS
chapter 656.
{ - (b) The worker is eligible and participates in vocational
assistance under ORS 656.340. - }
{ - (c) - } { + (b) + } The worker accepts suitable
employment with another employer after becoming medically
stationary.
{ - (d) - } { + (c) + } The worker refuses a bona fide
offer from the employer of light duty or modified employment that
is suitable prior to becoming medically stationary.
{ - (e) - } { + (d) + } Seven days elapse from the date
that the worker is notified by the insurer or self-insured
employer by certified mail that the worker's attending physician
has released the worker for reemployment { + in a gainful and
suitable occupation and the worker's employer has offered an
appropriate position to the worker in writing, + } unless the
worker requests reemployment within that time period.
{ - (f) - } { + (e) + } Three years elapse from the date of
injury.
(4) Such right of reemployment shall be subject to the
provisions for seniority rights and other employment restrictions
contained in a valid collective bargaining agreement between the
employer and a representative of the employer's employees.
(5) Any violation of this section is an unlawful employment
practice.
(6) This section applies only to employers who employ six or
more persons.
{ + (7) As used in this section:
(a) 'Gainful occupation' means an occupation that pays wages
equal to or greater than the wage the worker was being paid at
the time of injury, as adjusted for increases in the cost of
living pursuant to the Consumer Price Index, as defined in ORS
327.006, during the period the injured worker was not medically
stationary.
(b) 'Suitable occupation' means an occupation that the worker
has the ability and the training or experience to perform, with
or without reasonable accommodation after being declared
medically stationary or after any required rehabilitation. + }
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