Chapter 241
AN ACT
SB 559
Relating to workers’ compensation guaranty contracts; creating new
provisions; and amending ORS 654.097, 656.005, 656.039, 656.128, 656.210,
656.268, 656.407, 656.419, 656.423, 656.427, 656.440, 656.443, 656.447,
656.622, 656.628, 656.726, 656.730, 656.740, 656.850, 731.158, 731.475,
731.480, 731.590, 731.608, 731.628, 737.602 and 746.145.
Be It Enacted by the People of
the State of
SECTION 1. ORS 656.419 is amended to read:
656.419. (1) A [guaranty contract] workers’
compensation insurance policy issued by an insurer under this section
shall provide that the insurer agrees to assume, without monetary limit, the
liability of the employer, arising during the period the [guaranty contract] policy is in effect, for prompt payment
of all compensation for compensable injuries that may become due under this
chapter to subject workers and their beneficiaries.
(2)(a) [A guaranty contract issued by a guaranty
contract] The insurer issuing the workers’ compensation insurance
policy shall [be filed] file
proof of coverage with the Director of the Department of Consumer and
Business Services [by the insurer]
within 30 days after workers’ compensation coverage of the employer is
effective. The filing shall be in [such]
the form and manner and shall include any information that [as] the director may prescribe by
rule. [A guaranty contract shall
contain:]
[(a) The name and address of the employer;]
[(b) A description of the occupation in which
the employer is engaged or proposes to engage;]
[(c) The effective date of the workers’ compensation coverage;]
[(d) Notice that an employer has elected to provide coverage pursuant to
ORS 656.039; and]
[(e) Such other information as the director may from time to time require.]
(b) An insurer shall
file the proof of coverage required under this section for each new or renewed
policy issued by the insurer.
(3) Workers’
compensation coverage is effective when the application of the subject employer
for coverage together with any required fees or premium are received and
accepted by an authorized representative of an insurer or on the date
specified in writing by the employer and the insurer.
[(4) If the name or address of an insured employer is changed, the
insurer shall, within 30 days after the date the change is received by the
insurer, file a change-of-name or change-of-address notice with the director
setting forth the correct name and address of the employer.]
[(5)] (4) Coverage of an employer under a [guaranty contract] workers’
compensation insurance policy continues until [canceled or terminated as provided by ORS 656.423 or 656.427.]:
(a) The expiration of
the term of the policy;
(b) The coverage is
canceled prior to the expiration date of the policy as provided by ORS 656.423
or 656.427;
(c) Another insurer
files proof of coverage on behalf of the employer; or
(d) The employer becomes
self-insured under ORS 656.430.
SECTION 2. ORS 656.423 is amended to read:
656.423. (1) An insured employer may cancel coverage with the insurer by
giving the insurer at least 30 days’ written notice, unless a shorter period is
permitted by subsection (3) of this section.
(2) Cancellation of
coverage is effective at 12 midnight 30 days after the date the cancellation
notice is received by an authorized representative of the insurer, unless a
later date is specified.
(3) An employer may
cancel coverage effective less than 30 days after written notice is received by
an [agent] authorized
representative of the insurer by providing other coverage, [or] by becoming a self-insured employer
or by agreement of the employer and the insurer. A cancellation under this
subsection is effective immediately upon the effective date of the other
coverage, on [or] the
effective date of certification as a self-insured employer or on a date
agreed upon in writing by the employer and insurer.
(4) The insurer shall
file a notice of cancellation with the Director of the Department of Consumer
and Business Services within 10 calendar days after the effective date of the
cancellation or the date on which the insurer receives the notice required
under subsection (1) of this section, whichever is later. The notice required
under this subsection shall be in the form and manner and shall contain any
information that the director may prescribe by rule.
SECTION 3. ORS 656.427 is amended to read:
656.427. (1) An insurer
that issues [a guaranty contract or a
surety bond] a workers’ compensation insurance policy or surety bond
to an employer under this chapter may [terminate
liability on its contract or bond, as the case may be,] cancel the
policy or surety bond prior to the expiration date of the policy or surety bond
by giving the employer and the Director of the Department of Consumer and
Business Services notice of [termination]
cancellation in accordance with rules adopted by the director. [A notice of termination shall state the
effective date of termination.] Notice required under this section must
be provided to the director within 10 calendar days after the effective date of
the cancellation provided in the notice given to the employer.
(2) An insurer may [terminate liability] cancel a workers’
compensation insurance policy or surety bond under this section as follows:
(a) If the [termination of a guaranty contract] cancellation
is for reasons other than those set forth in paragraph (b) of this subsection,
it is effective at 12 midnight not less than 30 days after the date the notice
is mailed to the employer.
(b) If the [termination of a guaranty contract] cancellation
is based on the insurer’s decision not to offer insurance to employers within a
specific premium category, it is effective not sooner than 90 days after the
date the notice is mailed to the employer.
(c) The termination of a
surety bond is effective at 12 midnight not less than 30 days after the date
the notice is received by the director.
(3) An insurer may
nonrenew a workers’ compensation insurance policy by providing notice in the
manner provided for in subsection (2) of this section.
[(3)] (4) Notice to the employer under this section shall be
given by mail, addressed to the employer at the last-known address of the
employer. If the employer is a partnership, notice may be given to any of the
partners. If the employer is a limited liability company, notice may be given
to any manager, or in a member managed limited liability company,
to any of the members. If the employer is a corporation, notice may be given to
any agent or officer of the corporation under whom legal process may be served.
[(4)] (5) [Termination]
Cancellation of a workers’ compensation insurance policy or surety bond
shall in no way limit liability that was incurred under the [guaranty contract or surety bond] policy
or surety bond prior to the effective date of the [termination] cancellation.
[(5)] (6) If, before the effective date of a [termination] cancellation under
this section, the employer gives notice to the insurer that it has not obtained
coverage from another insurer and intends to become insured under the assigned
risk plan established under ORS 656.730, the insurer shall [insure] ensure that continuing
coverage is provided to the employer under the plan without further application
by the employer, transferring the risk to the plan as of the effective date of
[termination] cancellation. If
the insurer is a servicing carrier under the plan, it shall continue to provide
coverage for the employer as a servicing carrier, at least until another
servicing carrier is provided for the employer in the normal course of
administering the plan. If the insurer is not a servicing carrier, it shall
apply to the plan for coverage on the employer’s behalf. Nothing in this
section is intended to limit the authority of administrators of the plan to
require the employer to provide deposits or to make payments consistent with
plan requirements. However, the rules of the plan shall allow any deposit
requirements imposed by the plan to be deferred for as long as one year.
(7) The cancellation
of a workers’ compensation insurance policy under this section is effective on
the earliest of:
(a) The expiration of
the term of the policy;
(b) The effective date
of a cancellation under subsection (2) of this section; or
(c) The effective date
of a policy for which another insurer makes a proof of coverage filing on
behalf of the employer.
SECTION 4. ORS 656.726 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 and to require the
electronic transmission and filing of proof of coverage required under ORS
656.419, 656.423 and 656.427. 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 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 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 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 5. ORS 656.726, as amended by section 4, chapter
657, Oregon Laws 2003, section 18, chapter 811, Oregon Laws 2003, section 17,
chapter 26, Oregon Laws 2005, and section 2a, chapter 653, Oregon Laws 2005, 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 and to require the
electronic transmission and filing of proof of coverage required under ORS
656.419, 656.423 and 656.427. 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 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
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 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 6. ORS 656.005 is amended to read:
656.005. (1) “Average
weekly wage” means the Oregon average weekly wage in covered employment, as
determined by the Employment Department, for the last quarter of the calendar
year preceding the fiscal year in which the injury occurred.
(2) “Beneficiary” means
an injured worker, and the husband, wife, child or dependent of a worker, who
is entitled to receive payments under this chapter. “Beneficiary” does not
include:
(a) A spouse of an
injured worker living in a state of abandonment for more than one year at the
time of the injury or subsequently. A spouse who has lived separate and apart
from the worker for a period of two years and who has not during that time
received or attempted by process of law to collect funds for support or
maintenance is considered living in a state of abandonment.
(b) A person who
intentionally causes the compensable injury to or death of an injured worker.
(3) “Board” means the
Workers’ Compensation Board.
(4) “Carrier-insured
employer” means an employer who provides workers’ compensation coverage with [a guaranty contract insurer] the
State Accident Insurance Fund Corporation or an insurer authorized under ORS
chapter 731 to transact workers’ compensation insurance in this state.
(5) “Child” includes a
posthumous child, a child legally adopted prior to the injury, a child toward
whom the worker stands in loco parentis, an illegitimate child and a stepchild,
if such stepchild was, at the time of the injury, a member of the worker’s
family and substantially dependent upon the worker for support. An invalid
dependent child is a child, for purposes of benefits, regardless of age, so
long as the child was an invalid at the time of the accident and thereafter
remains an invalid substantially dependent on the worker for support. For
purposes of this chapter, an invalid dependent child is considered to be a
child under 18 years of age.
(6) “Claim” means a
written request for compensation from a subject worker or someone on the worker’s
behalf, or any compensable injury of which a subject employer has notice or
knowledge.
(7)(a) A “compensable
injury” is an accidental injury, or accidental injury to prosthetic appliances,
arising out of and in the course of employment requiring medical services or
resulting in disability or death; an injury is accidental if the result is an
accident, whether or not due to accidental means, if it is established by
medical evidence supported by objective findings, subject to the following
limitations:
(A) No injury or disease
is compensable as a consequence of a compensable injury unless the compensable
injury is the major contributing cause of the consequential condition.
(B) If an otherwise
compensable injury combines at any time with a preexisting condition to cause
or prolong disability or a need for treatment, the combined condition is
compensable only if, so long as and to the extent that the otherwise
compensable injury is the major contributing cause of the disability of the
combined condition or the major contributing cause of the need for treatment of
the combined condition.
(b) “Compensable injury”
does not include:
(A) Injury to any active
participant in assaults or combats which are not connected to the job
assignment and which amount to a deviation from customary duties;
(B) Injury incurred
while engaging in or performing, or as the result of engaging in or performing,
any recreational or social activities primarily for the worker’s personal
pleasure; or
(C) Injury the major
contributing cause of which is demonstrated to be by a preponderance of the
evidence the injured worker’s consumption of alcoholic beverages or the unlawful
consumption of any controlled substance, unless the employer permitted,
encouraged or had actual knowledge of such consumption.
(c) A “disabling
compensable injury” is an injury which entitles the worker to compensation for
disability or death. An injury is not disabling if no temporary benefits are
due and payable, unless there is a reasonable expectation that permanent
disability will result from the injury.
(d) A “nondisabling
compensable injury” is any injury which requires medical services only.
(8) “Compensation”
includes all benefits, including medical services, provided for a compensable
injury to a subject worker or the worker’s beneficiaries by an insurer or
self-insured employer pursuant to this chapter.
(9) “Department” means
the Department of Consumer and Business Services.
(10) “Dependent” means
any of the following-named relatives of a worker whose death results from any
injury: Father, mother, grandfather, grandmother, stepfather, stepmother,
grandson, granddaughter, brother, sister, half sister, half brother, niece or
nephew, who at the time of the accident, are dependent in whole or in part for
their support upon the earnings of the worker. Unless otherwise provided by
treaty, aliens not residing within the
(11) “Director” means
the Director of the Department of Consumer and Business Services.
(12)(a) “Doctor” or “physician”
means a person duly licensed to practice one or more of the healing arts in any
country or in any state, territory or possession of the
(b) Except as otherwise
provided for workers subject to a managed care contract, “attending physician”
means a doctor or physician who is primarily responsible for the treatment of a
worker’s compensable injury and who is:
(A) A medical doctor or
doctor of osteopathy licensed under ORS 677.100 to 677.228 by the Board of Medical
Examiners for the State of Oregon or an oral and maxillofacial surgeon licensed
by the Oregon Board of Dentistry or a similarly licensed doctor in any country
or in any state, territory or possession of the United States; or
(B) For a period of 30 days
from the date of first visit on the initial claim or for 12 visits, whichever
first occurs, a doctor or physician licensed by the State Board of Chiropractic
Examiners for the State of Oregon or a similarly licensed doctor or physician
in any country or in any state, territory or possession of the United States.
(c) “Consulting
physician” means a doctor or physician who examines a worker or the worker’s
medical record to advise the attending physician or nurse practitioner
authorized to provide compensable medical services under ORS 656.245 regarding
treatment of a worker’s compensable injury.
(13)(a) “Employer” means
any person, including receiver, administrator, executor or trustee, and the
state, state agencies, counties, municipal corporations, school districts and
other public corporations or political subdivisions, who contracts to pay a
remuneration for and secures the right to direct and control the services of
any person.
(b) Notwithstanding
paragraph (a) of this subsection, for purposes of this chapter, the client of a
temporary service provider is not the employer of temporary workers provided by
the temporary service provider.
(c) As used in paragraph
(b) of this subsection, “temporary service provider” has the meaning for that
term provided in ORS 656.850.
(14) [“Guaranty contract insurer” and] “Insurer”
[mean] means the State
Accident Insurance Fund Corporation or an insurer authorized under ORS chapter
731 to transact workers’ compensation insurance in this state or an assigned
claims agent selected by the director under ORS 656.054.
(15) “Consumer and
Business Services Fund” means the fund created by ORS 705.145.
(16) “Invalid” means one
who is physically or mentally incapacitated from earning a livelihood.
(17) “Medically
stationary” means that no further material improvement would reasonably be
expected from medical treatment, or the passage of time.
(18) “Noncomplying
employer” means a subject employer who has failed to comply with ORS 656.017.
(19) “Objective findings”
in support of medical evidence are verifiable indications of injury or disease
that may include, but are not limited to, range of motion, atrophy, muscle
strength and palpable muscle spasm. “Objective findings” does not include
physical findings or subjective responses to physical examinations that are not
reproducible, measurable or observable.
(20) “Palliative care”
means medical service rendered to reduce or moderate temporarily the intensity
of an otherwise stable medical condition, but does not include those medical
services rendered to diagnose, heal or permanently alleviate or eliminate a
medical condition.
(21) “Party” means a
claimant for compensation, the employer of the injured worker at the time of
injury and the insurer, if any, of such employer.
(22) “Payroll” means a
record of wages payable to workers for their services and includes commissions,
value of exchange labor and the reasonable value of board, rent, housing,
lodging or similar advantage received from the employer. However, “payroll”
does not include overtime pay, vacation pay, bonus pay, tips, amounts payable under profit-sharing agreements or bonus
payments to reward workers for safe working practices. Bonus pay is limited to
payments which are not anticipated under the contract of employment and which
are paid at the sole discretion of the employer. The exclusion from payroll of
bonus payments to reward workers for safe working practices is only for the
purpose of calculations based on payroll to determine premium for workers’
compensation insurance, and does not affect any other calculation or
determination based on payroll for the purposes of this chapter.
(23) “Person” includes
partnership, joint venture, association, limited liability
company and corporation.
(24)(a) “Preexisting
condition” means, for all industrial injury claims, any injury, disease,
congenital abnormality, personality disorder or similar condition that
contributes to disability or need for treatment, provided that:
(A) Except for claims in
which a preexisting condition is arthritis or an arthritic condition, the
worker has been diagnosed with such condition, or has obtained medical services
for the symptoms of the condition regardless of diagnosis; and
(B)(i) In claims for an
initial injury or omitted condition, the diagnosis or treatment precedes the
initial injury;
(ii) In claims for a new
medical condition, the diagnosis or treatment precedes the onset of the new
medical condition; or
(iii) In claims for a
worsening pursuant to ORS 656.273 or 656.278, the diagnosis or treatment
precedes the onset of the worsened condition.
(b) “Preexisting
condition” means, for all occupational disease claims, any injury, disease,
congenital abnormality, personality disorder or similar condition that
contributes to disability or need for treatment and that precedes the onset of
the claimed occupational disease, or precedes a claim for worsening in such
claims pursuant to ORS 656.273 or 656.278.
(c) For the purposes of
industrial injury claims, a condition does not contribute to disability or need
for treatment if the condition merely renders the worker more susceptible to
the injury.
(25) “Self-insured
employer” means an employer or group of employers certified under ORS 656.430
as meeting the qualifications set out by ORS 656.407.
(26) “State Accident
Insurance Fund Corporation” and “corporation” mean the State Accident Insurance
Fund Corporation created under ORS 656.752.
(27) “Subject employer”
means an employer who is subject to this chapter as provided by ORS 656.023.
(28) “Subject worker”
means a worker who is subject to this chapter as provided by ORS 656.027.
(29) “Wages” means the
money rate at which the service rendered is recompensed under the contract of
hiring in force at the time of the accident, including reasonable value of
board, rent, housing, lodging or similar advantage received from the employer,
and includes the amount of tips required to be reported by the employer
pursuant to section 6053 of the Internal Revenue Code of 1954, as amended, and
the regulations promulgated pursuant thereto, or the amount of actual tips
reported, whichever amount is greater. The State Accident Insurance Fund
Corporation may establish assumed minimum and maximum wages, in conformity with
recognized insurance principles, at which any worker shall be carried upon the
payroll of the employer for the purpose of determining the premium of the
employer.
(30) “Worker” means any
person, including a minor whether lawfully or unlawfully employed, who engages
to furnish services for a remuneration, subject to the direction and control of
an employer and includes salaried, elected and appointed officials of the
state, state agencies, counties, cities, school districts and other public
corporations, but does not include any person whose services are performed as
an inmate or ward of a state institution or as part of the eligibility
requirements for a general or public assistance grant. For the purpose of
determining entitlement to temporary disability benefits or permanent total
disability benefits under this chapter, “worker” does not include a person who
has withdrawn from the workforce during the period for which such benefits are
sought.
(31) “Independent
contractor” has the meaning for that term provided in ORS 670.600.
SECTION 7. ORS 656.005, as amended by section 2, chapter
811, Oregon Laws 2003, is amended to read:
656.005. (1) “Average
weekly wage” means the Oregon average weekly wage in covered employment, as
determined by the Employment Department, for the last quarter of the calendar
year preceding the fiscal year in which the injury occurred.
(2) “Beneficiary” means
an injured worker, and the husband, wife, child or dependent of a worker, who
is entitled to receive payments under this chapter. “Beneficiary” does not
include:
(a) A spouse of an
injured worker living in a state of abandonment for more than one year at the
time of the injury or subsequently. A spouse who has lived separate and apart
from the worker for a period of two years and who has not during that time
received or attempted by process of law to collect funds for support or
maintenance is considered living in a state of abandonment.
(b) A person who
intentionally causes the compensable injury to or death of an injured worker.
(3) “Board” means the
Workers’ Compensation Board.
(4) “Carrier-insured
employer” means an employer who provides workers’ compensation coverage with [a guaranty contract insurer] the
State Accident Insurance Fund Corporation or an insurer authorized under ORS
chapter 731 to transact workers’ compensation insurance in this state.
(5) “Child” includes a
posthumous child, a child legally adopted prior to the injury, a child toward
whom the worker stands in loco parentis, an illegitimate child and a stepchild,
if such stepchild was, at the time of the injury, a member of the worker’s
family and substantially dependent upon the worker for support. An invalid
dependent child is a child, for purposes of benefits, regardless of age, so
long as the child was an invalid at the time of the accident and thereafter
remains an invalid substantially dependent on the worker for support. For
purposes of this chapter, an invalid dependent child is considered to be a
child under 18 years of age.
(6) “Claim” means a
written request for compensation from a subject worker or someone on the worker’s
behalf, or any compensable injury of which a subject employer has notice or
knowledge.
(7)(a) A “compensable
injury” is an accidental injury, or accidental injury to prosthetic appliances,
arising out of and in the course of employment requiring medical services or
resulting in disability or death; an injury is accidental if the result is an
accident, whether or not due to accidental means, if it is established by
medical evidence supported by objective findings, subject to the following
limitations:
(A) No injury or disease
is compensable as a consequence of a compensable injury unless the compensable
injury is the major contributing cause of the consequential condition.
(B) If an otherwise
compensable injury combines at any time with a preexisting condition to cause
or prolong disability or a need for treatment, the combined condition is
compensable only if, so long as and to the extent that the otherwise
compensable injury is the major contributing cause of the disability of the
combined condition or the major contributing cause of the need for treatment of
the combined condition.
(b) “Compensable injury”
does not include:
(A) Injury to any active
participant in assaults or combats which are not connected to the job
assignment and which amount to a deviation from customary duties;
(B) Injury incurred
while engaging in or performing, or as the result of engaging in or performing,
any recreational or social activities primarily for the worker’s personal
pleasure; or
(C) Injury the major
contributing cause of which is demonstrated to be by a preponderance of the
evidence the injured worker’s consumption of alcoholic beverages or the
unlawful consumption of any controlled substance, unless the employer
permitted, encouraged or had actual knowledge of such consumption.
(c) A “disabling
compensable injury” is an injury which entitles the worker to compensation for
disability or death. An injury is not disabling if no temporary benefits are
due and payable, unless there is a reasonable expectation that permanent
disability will result from the injury.
(d) A “nondisabling
compensable injury” is any injury which requires medical services only.
(8) “Compensation”
includes all benefits, including medical services, provided for a compensable
injury to a subject worker or the worker’s beneficiaries by an insurer or
self-insured employer pursuant to this chapter.
(9) “Department” means
the Department of Consumer and Business Services.
(10) “Dependent” means
any of the following-named relatives of a worker whose death results from any
injury: Father, mother, grandfather, grandmother, stepfather, stepmother,
grandson, granddaughter, brother, sister, half sister, half brother, niece or
nephew, who at the time of the accident, are dependent in whole or in part for
their support upon the earnings of the worker. Unless otherwise provided by
treaty, aliens not residing within the
(11) “Director” means
the Director of the Department of Consumer and Business Services.
(12)(a) “Doctor” or “physician”
means a person duly licensed to practice one or more of the healing arts in any
country or in any state, territory or possession of the
(b) Except as otherwise
provided for workers subject to a managed care contract, “attending physician”
means a doctor or physician who is primarily responsible for the treatment of a
worker’s compensable injury and who is:
(A) A medical doctor or
doctor of osteopathy licensed under ORS 677.100 to 677.228 by the Board of
Medical Examiners for the State of Oregon or an oral and maxillofacial surgeon
licensed by the Oregon Board of Dentistry or a similarly licensed doctor in any
country or in any state, territory or possession of the United States; or
(B) For a period of 30
days from the date of first visit on the initial claim or for 12 visits,
whichever first occurs, a doctor or physician licensed by the State Board of
Chiropractic Examiners for the State of Oregon or a similarly licensed doctor
or physician in any country or in any state, territory or possession of the
United States.
(c) “Consulting physician”
means a doctor or physician who examines a worker or the worker’s medical
record to advise the attending physician regarding treatment of a worker’s
compensable injury.
(13)(a) “Employer” means
any person, including receiver, administrator, executor or trustee, and the
state, state agencies, counties, municipal corporations, school districts and
other public corporations or political subdivisions, who contracts to pay a
remuneration for and secures the right to direct and control the services of
any person.
(b) Notwithstanding
paragraph (a) of this subsection, for purposes of this chapter, the client of a
temporary service provider is not the employer of temporary workers provided by
the temporary service provider.
(c) As used in paragraph
(b) of this subsection, “temporary service provider” has the meaning for that
term provided in ORS 656.850.
(14) [“Guaranty contract insurer” and] “Insurer”
[mean] means the State
Accident Insurance Fund Corporation or an insurer authorized under ORS chapter
731 to transact workers’ compensation insurance in this state or an assigned
claims agent selected by the director under ORS 656.054.
(15) “Consumer and
Business Services Fund” means the fund created by ORS 705.145.
(16) “Invalid” means one
who is physically or mentally incapacitated from earning a livelihood.
(17) “Medically
stationary” means that no further material improvement would reasonably be
expected from medical treatment, or the passage of time.
(18) “Noncomplying
employer” means a subject employer who has failed to comply with ORS 656.017.
(19) “Objective findings”
in support of medical evidence are verifiable indications of injury or disease
that may include, but are not limited to, range of motion, atrophy, muscle
strength and palpable muscle spasm. “Objective findings” does not include
physical findings or subjective responses to physical examinations that are not
reproducible, measurable or observable.
(20) “Palliative care”
means medical service rendered to reduce or moderate temporarily the intensity
of an otherwise stable medical condition, but does not include those medical
services rendered to diagnose, heal or permanently alleviate or eliminate a
medical condition.
(21) “Party” means a
claimant for compensation, the employer of the injured worker at the time of
injury and the insurer, if any, of such employer.
(22) “Payroll” means a
record of wages payable to workers for their services and includes commissions,
value of exchange labor and the reasonable value of board, rent, housing, lodging
or similar advantage received from the employer. However, “payroll” does not
include overtime pay, vacation pay, bonus pay, tips, amounts
payable under profit-sharing agreements or bonus payments to reward workers for
safe working practices. Bonus pay is limited to payments which are not
anticipated under the contract of employment and which are paid at the sole
discretion of the employer. The exclusion from payroll of bonus payments to
reward workers for safe working practices is only for the purpose of
calculations based on payroll to determine premium for workers’ compensation
insurance, and does not affect any other calculation or determination based on
payroll for the purposes of this chapter.
(23) “Person” includes
partnership, joint venture, association, limited liability
company and corporation.
(24)(a) “Preexisting
condition” means, for all industrial injury claims, any injury, disease,
congenital abnormality, personality disorder or similar condition that
contributes to disability or need for treatment, provided that:
(A) Except for claims in
which a preexisting condition is arthritis or an arthritic condition, the
worker has been diagnosed with such condition, or has obtained medical services
for the symptoms of the condition regardless of diagnosis; and
(B)(i) In claims for an
initial injury or omitted condition, the diagnosis or treatment precedes the
initial injury;
(ii) In claims for a new
medical condition, the diagnosis or treatment precedes the onset of the new
medical condition; or
(iii) In claims for a
worsening pursuant to ORS 656.273 or 656.278, the diagnosis or treatment
precedes the onset of the worsened condition.
(b) “Preexisting
condition” means, for all occupational disease claims, any injury, disease,
congenital abnormality, personality disorder or similar condition that
contributes to disability or need for treatment and that precedes the onset of
the claimed occupational disease, or precedes a claim for worsening in such
claims pursuant to ORS 656.273 or 656.278.
(c) For the purposes of
industrial injury claims, a condition does not contribute to disability or need
for treatment if the condition merely renders the worker more susceptible to
the injury.
(25) “Self-insured
employer” means an employer or group of employers certified under ORS 656.430
as meeting the qualifications set out by ORS 656.407.
(26) “State Accident
Insurance Fund Corporation” and “corporation” mean the State Accident Insurance
Fund Corporation created under ORS 656.752.
(27) “Subject employer”
means an employer who is subject to this chapter as provided by ORS 656.023.
(28) “Subject worker”
means a worker who is subject to this chapter as provided by ORS 656.027.
(29) “Wages” means the
money rate at which the service rendered is recompensed under the contract of
hiring in force at the time of the accident, including reasonable value of
board, rent, housing, lodging or similar advantage received from the employer,
and includes the amount of tips required to be reported by the employer
pursuant to section 6053 of the Internal Revenue Code of 1954, as amended, and
the regulations promulgated pursuant thereto, or the amount of actual tips
reported, whichever amount is greater. The State Accident Insurance Fund
Corporation may establish assumed minimum and maximum wages, in conformity with
recognized insurance principles, at which any worker shall be carried upon the
payroll of the employer for the purpose of determining the premium of the
employer.
(30) “Worker” means any
person, including a minor whether lawfully or unlawfully employed, who engages
to furnish services for a remuneration, subject to the direction and control of
an employer and includes salaried, elected and appointed officials of the
state, state agencies, counties, cities, school districts and other public
corporations, but does not include any person whose services are performed as
an inmate or ward of a state institution or as part of the eligibility
requirements for a general or public assistance grant. For the purpose of
determining entitlement to temporary disability benefits or permanent total
disability benefits under this chapter, “worker” does not include a person who
has withdrawn from the workforce during the period for which such benefits are
sought.
(31) “Independent contractor”
has the meaning for that term provided in ORS 670.600.
SECTION 8. ORS 656.039 is amended to read:
656.039. (1) An employer of one or more persons defined as nonsubject
workers or not defined as subject workers may elect to make them subject workers.
If the employer is or becomes a carrier-insured employer, the election shall be
made by filing written notice thereof with the insurer with a copy to the
Director of the Department of Consumer and Business Services. The effective
date of coverage is governed by ORS 656.419 (3). If the employer is or becomes
a self-insured employer, the election shall be made by filing written notice
thereof with the director, the effective date of coverage to be the date
specified in the notice.
(2) Any election under subsection
(1) of this section may be canceled by written notice thereof to the insurer
or, in the case of a self-insured employer, by notice thereof to the director.
The cancellation is effective at 12 midnight ending the day the notice is
received by the insurer or the director, unless a later date is specified in
the notice. The insurer shall, within 10 days after receipt of a notice of
cancellation under this section, send a copy of the notice to the director.
(3) When necessary the
insurer or the director shall fix assumed minimum or maximum wages for persons
made subject workers under this section.
(4) Notwithstanding any
other provision of this section, a person or employer not subject to this
chapter who elects to become covered may apply to [a guaranty contract] an insurer for coverage. An insurer
other than the State Accident Insurance Fund Corporation may provide such
coverage. However, the State Accident Insurance Fund Corporation shall accept
any written notice filed and provide coverage as provided in this section if
all subject workers of the employers will be insured with the State Accident
Insurance Fund Corporation and the coverage of those subject workers is not
considered by the State Accident Insurance Fund Corporation to be a risk properly
assignable to the assigned risk pool.
SECTION 9. ORS 656.128 is amended to read:
656.128. (1) Any person
who is a sole proprietor, or a member, including a member who is a manager, of
a limited liability company, or a member of a partnership, or an independent
contractor pursuant to ORS 670.600, may make written application to an insurer
to become entitled as a subject worker to compensation benefits. Thereupon, the
insurer may accept such application and fix a classification and an assumed
monthly wage at which such person shall be carried on the payroll as a worker
for purposes of computations under this chapter.
(2) When the application
is accepted, such person thereupon is subject to the provisions and entitled to
the benefits of this chapter. The person shall promptly notify the insurer
whenever the status of the person as an employer of subject workers changes.
Any subject worker employed by such a person after the effective date of the
election of the person shall, upon being employed, be considered covered
automatically by the same [guaranty
contract] workers’ compensation insurance policy that covers such
person.
(3) No claim shall be
allowed or paid under this section, except upon corroborative evidence in
addition to the evidence of the claimant.
(4) Any person subject
to this chapter as a worker as provided in this section may cancel such
election by giving written notice to the insurer. The cancellation shall become
effective at 12 midnight ending the day of filing the notice with the insurer.
SECTION 10. ORS 656.210 is amended to read:
656.210. (1) When the
total disability is only temporary, the worker shall receive during the period
of that total disability compensation equal to 66-2/3 percent of wages, but not
more than 133 percent of the average weekly wage nor less than the amount of 90
percent of wages a week or the amount of $50 a week, whichever amount is less.
Notwithstanding the limitation imposed by this subsection, an injured worker
who is not otherwise eligible to receive an increase in benefits for the fiscal
year in which compensation is paid shall have the benefits increased each
fiscal year by the percentage which the applicable average weekly wage has
increased since the previous fiscal year.
(2)(a) For the purpose
of this section, the weekly wage of workers shall be ascertained:
(A) For workers employed
in one job at the time of injury, by multiplying the daily wage the worker was
receiving by the number of days per week that the worker was regularly
employed; or
(B) For workers employed
in more than one job at the time of injury, by adding all earnings the worker
was receiving from all subject employment.
(b) Notwithstanding
paragraph (a)(B) of this subsection, the weekly wage calculated under paragraph
(a)(A) of this subsection shall be used for workers employed in more than one
job at the time of injury unless, within 30 days of receipt of the initial
claim, the insurer, self-insured employer or assigned claims agent for a
noncomplying employer receives notice that the worker was employed in more than
one job with a subject employer at the time of injury and receives verifiable
documentation of wages from such additional employment.
(c) Notwithstanding ORS
656.005 (7)(c), an injury to a worker employed in more
than one job at the time of injury is not disabling if no temporary disability
benefits are payable for time lost from the job at injury. Claim costs incurred
as a result of supplemental temporary disability benefits paid as provided in
subsection (5) of this section may not be included in any data used for
ratemaking or individual employer rating or dividend calculations by [a guaranty contract] an insurer,
a rating organization licensed pursuant to ORS chapter 737, the State Accident
Insurance Fund Corporation or the Department of Consumer and Business Services
if the injured worker is not eligible for permanent disability benefits or
temporary disability benefits for time lost from the job at injury.
(d) For the purpose of
this section:
(A) The benefits of a
worker who incurs an injury shall be based on the wage of the worker at the
time of injury.
(B) The benefits of a
worker who incurs an occupational disease shall be based on the wage of the
worker at the time there is medical verification that the worker is unable to
work because of the disability caused by the occupational disease. If the
worker is not working at the time that there is medical verification that the
worker is unable to work because of the disability caused by the occupational
disease, the benefits shall be based on the wage of the worker at the worker’s
last regular employment.
(e) As used in this
subsection, “regularly employed” means actual employment or availability for
such employment. For workers not regularly employed and for workers with no
remuneration or whose remuneration is not based solely upon daily or weekly
wages, the Director of the Department of Consumer and Business Services, by
rule, may prescribe methods for establishing the worker’s weekly wage.
(3) No disability payment
is recoverable for temporary total or partial disability suffered during the
first three calendar days after the worker leaves work or loses wages as a
result of the compensable injury unless the worker is totally disabled after
the injury and the total disability continues for a period of 14 consecutive
days or unless the worker is admitted as an inpatient to a hospital within 14
days of the first onset of total disability. If the worker leaves work or loses
wages on the day of the injury due to the injury, that day shall be considered
the first day of the three-day period.
(4) When an injured
worker with an accepted disabling compensable injury is required to leave work
for a period of four hours or more to receive medical consultation, examination
or treatment with regard to the compensable injury, the worker shall receive
temporary disability benefits calculated pursuant to ORS 656.212 for the period
during which the worker is absent, until such time as the worker is determined
to be medically stationary. However, benefits under this subsection are not
payable if wages are paid for the period of absence by the employer.
(5)(a) The insurer of
the employer at injury or the self-insured employer at injury,
may elect to be responsible for payment of supplemental temporary disability
benefits to a worker employed in more than one job at the time of injury. In
accordance with rules adopted by the director, if the worker’s weekly wage is
determined under subsection (2)(a)(B) of this section,
the insurer or self-insured employer shall be reimbursed from the Workers’
Benefit Fund for the amount of temporary disability benefits paid that exceeds
the amount payable pursuant to subsection (2)(a)(A) of this section had the
worker been employed in only one job at the time of injury. Such reimbursement
shall include an administrative fee payable to the insurer or self-insured
employer pursuant to rules adopted by the director.
(b) If the insurer or
self-insured employer elects not to pay the supplemental temporary disability
benefits for a worker employed in more than one job at the time of injury, the
director shall either administer and pay the
supplemental benefits directly or shall assign responsibility to administer and
process the payment to a paying agent selected by the director.
SECTION 11. ORS 656.268 is amended to read:
656.268. (1) One purpose
of this chapter is to restore the injured worker as soon as possible and as
near as possible to a condition of self support and maintenance as an
able-bodied worker. The insurer or self-insured employer shall close the worker’s
claim, as prescribed by the Director of the Department of Consumer and Business
Services, and determine the extent of the worker’s permanent disability,
provided the worker is not enrolled and actively engaged in training according
to rules adopted by the director pursuant to ORS 656.340 and 656.726, when:
(a) The worker has
become medically stationary and there is sufficient information to determine
permanent disability;
(b) The accepted injury
is no longer the major contributing cause of the worker’s combined or
consequential condition or conditions pursuant to ORS 656.005 (7). When the
claim is closed because the accepted injury is no longer the major contributing
cause of the worker’s combined or consequential condition or conditions, and
there is sufficient information to determine permanent disability, the likely
permanent disability that would have been due to the current accepted condition
shall be estimated;
(c) Without the approval
of the attending physician or nurse practitioner authorized to provide
compensable medical services under ORS 656.245, the worker fails to seek
medical treatment for a period of 30 days or the worker fails to attend a
closing examination, unless the worker affirmatively establishes that such
failure is attributable to reasons beyond the worker’s control; or
(d) An insurer or
self-insured employer finds that a worker who has been receiving permanent
total disability benefits has materially improved and is capable of regularly
performing work at a gainful and suitable occupation.
(2) If the worker is
enrolled and actively engaged in training according to rules adopted pursuant
to ORS 656.340 and 656.726, the temporary disability compensation shall be
proportionately reduced by any sums earned during the training.
(3) A copy of all
medical reports and reports of vocational rehabilitation agencies or counselors
shall be furnished to the worker, if requested by the worker.
(4) Temporary total
disability benefits shall continue until whichever of the following events
first occurs:
(a) The worker returns
to regular or modified employment;
(b) The attending
physician or nurse practitioner who has authorized temporary disability
benefits for the worker under ORS 656.245 advises the worker and documents in
writing that the worker is released to return to regular employment;
(c) The attending
physician or nurse practitioner who has authorized temporary disability
benefits for the worker under ORS 656.245 advises the worker and documents in
writing that the worker is released to return to modified employment, such
employment is offered in writing to the worker and the worker fails to begin
such employment. However, an offer of modified employment may be refused by the
worker without the termination of temporary total disability benefits if the
offer:
(A) Requires a commute
that is beyond the physical capacity of the worker according to the worker’s
attending physician or the nurse practitioner who may authorize temporary
disability under ORS 656.245;
(B) Is at a work site
more than 50 miles one way from where the worker was injured unless the site is
less than 50 miles from the worker’s residence or the intent of the parties at
the time of hire or as established by the pattern of employment prior to the
injury was that the employer had multiple or mobile work sites and the worker
could be assigned to any such site;
(C) Is
not with the employer at injury;
(D) Is
not at a work site of the employer at injury;
(E) Is
not consistent with the existing written shift change policy or is not
consistent with common practice of the employer at injury or aggravation; or
(F) Is
not consistent with an existing shift change provision of an applicable
collective bargaining agreement; or
(d) Any other event that
causes temporary disability benefits to be lawfully suspended,
withheld or terminated under ORS 656.262 (4) or other provisions of this
chapter.
(5)(a) Findings by the
insurer or self-insured employer regarding the extent of the worker’s
disability in closure of the claim shall be pursuant to the standards
prescribed by the director. The insurer or self-insured employer shall issue a
notice of closure of such a claim to the worker, to the worker’s attorney if
the worker is represented, and to the director. The notice must inform:
(A) The parties, in
boldfaced type, of the proper manner in which to proceed if they are
dissatisfied with the terms of the notice;
(B) The worker of the
amount of any further compensation, including permanent disability compensation
to be awarded; of the duration of temporary total or temporary partial
disability compensation; of the right of the worker to request reconsideration
by the director under this section within 60 days of the date of the notice of
claim closure; of the right of the insurer or self-insured employer to request
reconsideration by the director under this section within seven days of the
date of the notice of claim closure; of the aggravation rights; and of such
other information as the director may require; and
(C) Any beneficiaries of
death benefits to which they may be entitled pursuant to ORS 656.204 and
656.208.
(b) If the insurer or
self-insured employer has not issued a notice of closure, the worker may
request closure. Within 10 days of receipt of a written request from the
worker, the insurer or self-insured employer shall issue a notice of closure if
the requirements of this section have been met or a notice of refusal to close
if the requirements of this section have not been met. A notice of refusal to
close shall advise the worker of the decision not to close; of the right of the
worker to request a hearing pursuant to ORS 656.283 within 60 days of the date
of the notice of refusal to close the claim; of the right to be represented by
an attorney; and of such other information as the director may require.
(c) If a worker, insurer
or self-insured employer objects to the notice of closure, the objecting party
first must request reconsideration by the director under this section. A worker’s
request for reconsideration must be made within 60 days of the date of the
notice of closure. A request for reconsideration by an insurer or self-insured
employer may be based only on disagreement with the findings used to rate impairment
and must be made within seven days of the date of the notice of closure.
(d) If an insurer or
self-insured employer has closed a claim or refused to close a claim pursuant
to this section, if the correctness of that notice of closure or refusal to close
is at issue in a hearing on the claim and if a finding is made at the hearing
that the notice of closure or refusal to close was not reasonable, a penalty
shall be assessed against the insurer or self-insured employer and paid to the
worker in an amount equal to 25 percent of all compensation determined to be
then due the claimant.
(e) If, upon
reconsideration of a claim closed by an insurer or self-insured employer, the
director orders an increase by 25 percent or more of the amount of compensation
to be paid to the worker for permanent disability and the worker is found upon
reconsideration to be at least 20 percent permanently disabled, a penalty shall
be assessed against the insurer or self-insured employer and paid to the worker
in an amount equal to 25 percent of all compensation determined to be then due
the claimant. If the increase in compensation results from information that the
insurer or self-insured employer demonstrates the insurer or self-insured
employer could not reasonably have known at the time of claim closure, from new
information obtained through a medical arbiter examination or from the adoption
of a temporary emergency rule, the penalty shall not be assessed.
(6)(a) Notwithstanding
any other provision of law, only one reconsideration proceeding may be held on
each notice of closure. At the reconsideration proceeding:
(A) A deposition
arranged by the worker, limited to the testimony and cross-examination of the
worker about the worker’s condition at the time of claim closure, shall become
part of the reconsideration record. The deposition must be conducted subject to
the opportunity for cross-examination by the insurer or self-insured employer
and in accordance with rules adopted by the director. The cost of the court
reporter and one original of the transcript of the deposition for the
Department of Consumer and Business Services and one copy of the transcript of
the deposition for each party shall be paid by the insurer or self-insured
employer. The reconsideration proceeding may not be postponed to receive a
deposition taken under this subparagraph. A deposition taken in accordance with
this subparagraph may be received as evidence at a hearing even if the
deposition is not prepared in time for use in the reconsideration proceeding.
(B) Pursuant to rules
adopted by the director, the worker or the insurer or self-insured employer may
correct information in the record that is erroneous and may submit any medical
evidence that should have been but was not submitted by the attending physician
or nurse practitioner authorized to provide compensable medical services under
ORS 656.245 at the time of claim closure.
(C) If the director
determines that a claim was not closed in accordance with subsection (1) of
this section, the director may rescind the closure.
(b) If necessary, the
director may require additional medical or other information with respect to
the claims and may postpone the reconsideration for not more than 60 additional
calendar days.
(c) In any
reconsideration proceeding under this section in which the worker was
represented by an attorney, the director shall order the insurer or
self-insured employer to pay to the attorney, out of the additional
compensation awarded, an amount equal to 10 percent of any additional compensation
awarded to the worker.
(d) The reconsideration
proceeding shall be completed within 18 working days from the date the
reconsideration proceeding begins, and shall be performed by a special
evaluation appellate unit within the department. The deadline of 18 working
days may be postponed by an additional 60 calendar days if within the 18
working days the department mails notice of review by a medical arbiter. If an
order on reconsideration has not been mailed on or before 18 working days from
the date the reconsideration proceeding begins, or within 18 working days plus
the additional 60 calendar days where a notice for medical arbiter review was
timely mailed or the director postponed the reconsideration pursuant to
paragraph (b) of this subsection, or within such additional time as provided in
subsection (7) of this section when reconsideration is postponed further
because the worker has failed to cooperate in the medical arbiter examination,
reconsideration shall be deemed denied and any further proceedings shall occur
as though an order on reconsideration affirming the notice of closure was
mailed on the date the order was due to issue.
(e) The period for
completing the reconsideration proceeding described in paragraph (d) of this
subsection begins upon receipt by the director of a worker’s request for
reconsideration pursuant to subsection (5)(c) of this section. If the insurer
or self-insured employer requests reconsideration, the period for
reconsideration begins upon the earlier of the date of the request for
reconsideration by the worker, the date of receipt of a waiver from the worker
of the right to request reconsideration or the date of expiration of the right
of the worker to request reconsideration. If a party elects not to file a
separate request for reconsideration, the party does not waive the right to
fully participate in the reconsideration proceeding, including the right to
proceed with the reconsideration if the initiating party withdraws the request
for reconsideration.
(f) Any medical arbiter
report may be received as evidence at a hearing even if the report is not
prepared in time for use in the reconsideration proceeding.
(g) If any party objects
to the reconsideration order, the party may request a hearing under ORS 656.283
within 30 days from the date of the reconsideration order.
(7)(a) If the basis for
objection to a notice of closure issued under this section is disagreement with
the impairment used in rating of the worker’s disability, the director shall
refer the claim to a medical arbiter appointed by the director.
(b) If neither party
requests a medical arbiter and the director determines that insufficient
medical information is available to determine disability, the director may
refer the claim to a medical arbiter appointed by the director.
(c) At the request of
either of the parties, a panel of three medical arbiters shall be appointed.
(d) The arbiter, or
panel of medical arbiters, shall be chosen from among a list of physicians
qualified to be attending physicians referred to in ORS 656.005 (12)(b)(A) who
were selected by the director in consultation with the Board of Medical
Examiners for the State of Oregon and the committee referred to in ORS 656.790.
(e)(A) The medical
arbiter or panel of medical arbiters may examine the worker and perform such
tests as may be reasonable and necessary to establish the worker’s impairment.
(B) If the director
determines that the worker failed to attend the examination without good cause
or failed to cooperate with the medical arbiter, or panel of medical arbiters,
the director shall postpone the reconsideration proceedings for up to 60 days
from the date of the determination that the worker failed to attend or
cooperate, and shall suspend all disability benefits resulting from this or any
prior opening of the claim until such time as the worker attends and cooperates
with the examination or the request for reconsideration is withdrawn. Any
additional evidence regarding good cause must be submitted prior to the
conclusion of the 60-day postponement period.
(C) At the conclusion of
the 60-day postponement period, if the worker has not attended and cooperated
with a medical arbiter examination or established good cause, there shall be no
further opportunity for the worker to attend a medical arbiter examination for
this claim closure. The reconsideration record shall be closed, and the
director shall issue an order on reconsideration based upon the existing
record.
(D) All disability
benefits suspended pursuant to this subsection, including all disability
benefits awarded in the order on reconsideration, or by an Administrative Law
Judge, the Workers’ Compensation Board or upon court review, shall not be due
and payable to the worker.
(f) The costs of
examination and review by the medical arbiter or panel of medical arbiters
shall be paid by the insurer or self-insured employer.
(g) The findings of the
medical arbiter or panel of medical arbiters shall be submitted to the director
for reconsideration of the notice of closure.
(h) After
reconsideration, no subsequent medical evidence of the worker’s impairment is
admissible before the director, the Workers’ Compensation Board or the courts
for purposes of making findings of impairment on the claim closure.
(i)(A)
When the basis for objection to a notice of closure issued under this section
is a disagreement with the impairment used in rating the worker’s disability,
and the director determines that the worker is not medically stationary at the
time of the reconsideration or that the closure was not made pursuant to this
section, the director is not required to appoint a medical arbiter prior to the
completion of the reconsideration proceeding.
(B) If the worker’s
condition has substantially changed since the notice of closure, upon the
consent of all the parties to the claim, the director shall postpone the
proceeding until the worker’s condition is appropriate for claim closure under
subsection (1) of this section.
(8) No hearing shall be
held on any issue that was not raised and preserved before the director at
reconsideration. However, issues arising out of the reconsideration order may
be addressed and resolved at hearing.
(9) If, after the notice
of closure issued pursuant to this section, the worker becomes enrolled and
actively engaged in training according to rules adopted pursuant to ORS 656.340
and 656.726, any permanent disability payments due for work disability under
the closure shall be suspended, and the worker shall receive temporary
disability compensation and any permanent disability payments due for
impairment while the worker is enrolled and actively engaged in the training.
When the worker ceases to be enrolled and actively engaged in the training, the
insurer or self-insured employer shall again close the claim pursuant to this
section if the worker is medically stationary or if the worker’s accepted
injury is no longer the major contributing cause of the worker’s combined or
consequential condition or conditions pursuant to ORS 656.005 (7). The closure
shall include the duration of temporary total or temporary partial disability
compensation. Permanent disability compensation shall be redetermined for work
disability only. If the worker has returned to work or the worker’s attending
physician has released the worker to return to regular or modified employment,
the insurer or self-insured employer shall again close the claim. This notice
of closure may be appealed only in the same manner as are other notices of
closure under this section.
(10) If the attending
physician or nurse practitioner authorized to provide compensable medical
services under ORS 656.245 has approved the worker’s return to work and there
is a labor dispute in progress at the place of employment, the worker may
refuse to return to that employment without loss of reemployment rights or any
vocational assistance provided by this chapter.
(11) Any notice of
closure made under this section may include necessary adjustments in
compensation paid or payable prior to the notice of closure, including disallowance
of permanent disability payments prematurely made, crediting temporary
disability payments against current or future permanent or temporary disability
awards or payments and requiring the payment of temporary disability payments
which were payable but not paid.
(12) An insurer or
self-insured employer may take a credit or offset of previously paid workers’
compensation benefits or payments against any further workers’ compensation
benefits or payments due a worker from that insurer or self-insured employer
when the worker admits to having obtained the previously paid benefits or
payments through fraud, or a civil judgment or criminal conviction is entered
against the worker for having obtained the previously paid benefits through
fraud. Benefits or payments obtained through fraud by a worker shall not be
included in any data used for ratemaking or individual employer rating or
dividend calculations by [a guaranty
contract] an insurer, a rating organization licensed pursuant to ORS
chapter 737, the State Accident Insurance Fund Corporation or the director.
(13)(a) An insurer or
self-insured employer may offset any compensation payable to the worker to
recover an overpayment from a claim with the same insurer or self-insured
employer. When overpayments are recovered from temporary disability or
permanent total disability benefits, the amount recovered from each payment
shall not exceed 25 percent of the payment, without prior authorization from
the worker.
(b) An insurer or
self-insured employer may suspend and offset any compensation payable to the
beneficiary of the worker, and recover an overpayment of permanent total
disability benefits caused by the failure of the worker’s beneficiaries to
notify the insurer or self-insured employer about the death of the worker.
(14) Conditions that are
direct medical sequelae to the original accepted condition shall be included in
rating permanent disability of the claim unless they have been specifically
denied.
SECTION 12. ORS 656.268, as amended by section 8, chapter
657, Oregon Laws 2003, section 12, chapter 811, Oregon Laws 2003, section 2,
chapter 221, Oregon Laws 2005, section 4, chapter 461, Oregon Laws 2005, and
section 2, chapter 569, Oregon Laws 2005, is amended to read:
656.268. (1) One purpose
of this chapter is to restore the injured worker as soon as possible and as
near as possible to a condition of self support and maintenance as an
able-bodied worker. The insurer or self-insured employer shall close the worker’s
claim, as prescribed by the Director of the Department of Consumer and Business
Services, and determine the extent of the worker’s permanent disability,
provided the worker is not enrolled and actively engaged in training according
to rules adopted by the director pursuant to ORS 656.340 and 656.726, when:
(a) The worker has
become medically stationary and there is sufficient information to determine
permanent impairment;
(b) The accepted injury
is no longer the major contributing cause of the worker’s combined or
consequential condition or conditions pursuant to ORS 656.005 (7). When the
claim is closed because the accepted injury is no longer the major contributing
cause of the worker’s combined or consequential condition or conditions, and
there is sufficient information to determine permanent impairment, the likely
impairment and adaptability that would have been due to the current accepted
condition shall be estimated;
(c) Without the approval
of the attending physician, the worker fails to seek medical treatment for a
period of 30 days or the worker fails to attend a closing examination, unless
the worker affirmatively establishes that such failure is attributable to
reasons beyond the worker’s control; or
(d) An insurer or
self-insured employer finds that a worker who has been receiving permanent
total disability benefits has materially improved and is capable of regularly
performing work at a gainful and suitable occupation.
(2) If the worker is
enrolled and actively engaged in training according to rules adopted pursuant
to ORS 656.340 and 656.726, the temporary disability compensation shall be
proportionately reduced by any sums earned during the training.
(3) A copy of all
medical reports and reports of vocational rehabilitation agencies or counselors
shall be furnished to the worker, if requested by the worker.
(4) Temporary total
disability benefits shall continue until whichever of the following events
first occurs:
(a) The worker returns
to regular or modified employment;
(b) The attending
physician advises the worker and documents in writing that the worker is
released to return to regular employment;
(c) The attending
physician advises the worker and documents in writing that the worker is
released to return to modified employment, such employment is offered in writing
to the worker and the worker fails to begin such employment. However, an offer
of modified employment may be refused by the worker without the termination of
temporary total disability benefits if the offer:
(A) Requires a commute
that is beyond the physical capacity of the worker according to the worker’s
attending physician;
(B) Is at a work site
more than 50 miles one way from where the worker was injured unless the site is
less than 50 miles from the worker’s residence or the intent of the parties at
the time of hire or as established by the pattern of employment prior to the
injury was that the employer had multiple or mobile work sites and the worker
could be assigned to any such site;
(C) Is
not with the employer at injury;
(D) Is
not at a work site of the employer at injury;
(E) Is
not consistent with the existing written shift change policy or is not
consistent with common practice of the employer at injury or aggravation; or
(F) Is
not consistent with an existing shift change provision of an applicable
collective bargaining agreement; or
(d) Any other event that
causes temporary disability benefits to be lawfully suspended,
withheld or terminated under ORS 656.262 (4) or other provisions of this
chapter.
(5)(a) Findings by the
insurer or self-insured employer regarding the extent of the worker’s
disability in closure of the claim shall be pursuant to the standards
prescribed by the director. The insurer or self-insured employer shall issue a
notice of closure of such a claim to the worker, to the worker’s attorney if
the worker is represented, and to the director. The notice must inform:
(A) The parties, in
boldfaced type, of the proper manner in which to proceed if they are
dissatisfied with the terms of the notice;
(B) The worker of the amount
of any further compensation, including permanent disability compensation to be
awarded; of the duration of temporary total or temporary partial disability
compensation; of the right of the worker to request reconsideration by the
director under this section within 60 days of the date of the notice of claim
closure; of the right of the insurer or self-insured employer to request
reconsideration by the director under this section within seven days of the
date of the notice of claim closure; of the aggravation rights; and of such
other information as the director may require; and
(C) Any beneficiaries of
death benefits to which they may be entitled pursuant to ORS 656.204 and
656.208.
(b) If the insurer or
self-insured employer has not issued a notice of closure, the worker may
request closure. Within 10 days of receipt of a written request from the
worker, the insurer or self-insured employer shall issue a notice of closure if
the requirements of this section have been met or a notice of refusal to close
if the requirements of this section have not been met. A notice of refusal to
close shall advise the worker of the decision not to close; of the right of the
worker to request a hearing pursuant to ORS 656.283 within 60 days of the date
of the notice of refusal to close the claim; of the right to be represented by
an attorney; and of such other information as the director may require.
(c) If a worker, insurer
or self-insured employer objects to the notice of closure, the objecting party
first must request reconsideration by the director under this section. A worker’s
request for reconsideration must be made within 60 days of the date of the
notice of closure. A request for reconsideration by an insurer or self-insured
employer may be based only on disagreement with the findings used to rate
impairment and must be made within seven days of the date of the notice of
closure.
(d) If an insurer or
self-insured employer has closed a claim or refused to close a claim pursuant
to this section, if the correctness of that notice of closure or refusal to
close is at issue in a hearing on the claim and if a finding is made at the
hearing that the notice of closure or refusal to close was not reasonable, a
penalty shall be assessed against the insurer or self-insured employer and paid
to the worker in an amount equal to 25 percent of all compensation determined
to be then due the claimant.
(e) If, upon
reconsideration of a claim closed by an insurer or self-insured employer, the
director orders an increase by 25 percent or more of the amount of compensation
to be paid to the worker for either a scheduled or unscheduled permanent
disability and the worker is found upon reconsideration to be at least 20
percent permanently disabled, a penalty shall be assessed against the insurer
or self-insured employer and paid to the worker in an amount equal to 25
percent of all compensation determined to be then due the claimant. If the
increase in compensation results from information that the insurer or
self-insured employer demonstrates the insurer or self-insured employer could
not reasonably have known at the time of claim closure, from new information
obtained through a medical arbiter examination or from the adoption of a
temporary emergency rule, the penalty shall not be assessed.
(6)(a) Notwithstanding
any other provision of law, only one reconsideration proceeding may be held on
each notice of closure. At the reconsideration proceeding:
(A) A deposition
arranged by the worker, limited to the testimony and cross-examination of the
worker about the worker’s condition at the time of claim closure, shall become
part of the reconsideration record. The deposition must be conducted subject to
the opportunity for cross-examination by the insurer or self-insured employer
and in accordance with rules adopted by the director. The cost of the court
reporter and one original of the transcript of the deposition for the
Department of Consumer and Business Services and one copy of the transcript of
the deposition for each party shall be paid by the insurer or self-insured
employer. The reconsideration proceeding may not be postponed to receive a
deposition taken under this subparagraph. A deposition taken in accordance with
this subparagraph may be received as evidence at a hearing even if the
deposition is not prepared in time for use in the reconsideration proceeding.
(B) Pursuant to rules
adopted by the director, the worker or the insurer or self-insured employer may
correct information in the record that is erroneous and may submit any medical
evidence that should have been but was not submitted by the attending physician
at the time of claim closure.
(C) If the director
determines that a claim was not closed in accordance with subsection (1) of
this section, the director may rescind the closure.
(b) If necessary, the
director may require additional medical or other information with respect to
the claims and may postpone the reconsideration for not more than 60 additional
calendar days.
(c) In any
reconsideration proceeding under this section in which the worker was
represented by an attorney, the director shall order the insurer or
self-insured employer to pay to the attorney, out of the additional
compensation awarded, an amount equal to 10 percent of any additional
compensation awarded to the worker.
(d) The reconsideration
proceeding shall be completed within 18 working days from the date the
reconsideration proceeding begins, and shall be performed by a special
evaluation appellate unit within the department. The deadline of 18 working
days may be postponed by an additional 60 calendar days if within the 18
working days the department mails notice of review by a medical arbiter. If an
order on reconsideration has not been mailed on or before 18 working days from
the date the reconsideration proceeding begins, or within 18 working days plus
the additional 60 calendar days where a notice for medical arbiter review was
timely mailed or the director postponed the reconsideration pursuant to
paragraph (b) of this subsection, or within such additional time as provided in
subsection (7) of this section when reconsideration is postponed further
because the worker has failed to cooperate in the medical arbiter examination,
reconsideration shall be deemed denied and any further proceedings shall occur
as though an order on reconsideration affirming the notice of closure was
mailed on the date the order was due to issue.
(e) The period for
completing the reconsideration proceeding described in paragraph (d) of this
subsection begins upon receipt by the director of a worker’s request for
reconsideration pursuant to subsection (5)(c) of this section. If the insurer
or self-insured employer requests reconsideration, the period for
reconsideration begins upon the earlier of the date of the request for reconsideration
by the worker, the date of receipt of a waiver from the worker of the right to
request reconsideration or the date of expiration of the right of the worker to
request reconsideration. If a party elects not to file a separate request for reconsideration,
the party does not waive the right to fully participate in the reconsideration
proceeding, including the right to proceed with the reconsideration if the
initiating party withdraws the request for reconsideration.
(f) Any medical arbiter
report may be received as evidence at a hearing even if the report is not
prepared in time for use in the reconsideration proceeding.
(g) If any party objects
to the reconsideration order, the party may request a hearing under ORS 656.283
within 30 days from the date of the reconsideration order.
(7)(a) If the basis for
objection to a notice of closure issued under this section is disagreement with
the impairment used in rating of the worker’s disability, the director shall
refer the claim to a medical arbiter appointed by the director.
(b) If neither party
requests a medical arbiter and the director determines that insufficient
medical information is available to determine disability, the director may
refer the claim to a medical arbiter appointed by the director.
(c) At the request of
either of the parties, a panel of three medical arbiters shall be appointed.
(d) The arbiter, or
panel of medical arbiters, shall be chosen from among a list of physicians
qualified to be attending physicians referred to in ORS 656.005 (12)(b)(A) who
were selected by the director in consultation with the Board of Medical
Examiners for the State of Oregon and the committee referred to in ORS 656.790.
(e)(A) The medical
arbiter or panel of medical arbiters may examine the worker and perform such
tests as may be reasonable and necessary to establish the worker’s impairment.
(B) If the director
determines that the worker failed to attend the examination without good cause
or failed to cooperate with the medical arbiter, or panel of medical arbiters,
the director shall postpone the reconsideration proceedings for up to 60 days
from the date of the determination that the worker failed to attend or
cooperate, and shall suspend all disability benefits resulting from this or any
prior opening of the claim until such time as the worker attends and cooperates
with the examination or the request for reconsideration is withdrawn. Any
additional evidence regarding good cause must be submitted prior to the
conclusion of the 60-day postponement period.
(C) At the conclusion of
the 60-day postponement period, if the worker has not attended and cooperated
with a medical arbiter examination or established good cause, there shall be no
further opportunity for the worker to attend a medical arbiter examination for
this claim closure. The reconsideration record shall be closed, and the
director shall issue an order on reconsideration based upon the existing
record.
(D) All disability
benefits suspended pursuant to this subsection, including all disability
benefits awarded in the order on reconsideration, or by an Administrative Law
Judge, the Workers’ Compensation Board or upon court review, shall not be due
and payable to the worker.
(f) The costs of
examination and review by the medical arbiter or panel of medical arbiters
shall be paid by the insurer or self-insured employer.
(g) The findings of the
medical arbiter or panel of medical arbiters shall be submitted to the director
for reconsideration of the notice of closure.
(h) After reconsideration,
no subsequent medical evidence of the worker’s impairment is admissible before
the director, the Workers’ Compensation Board or the courts for purposes of
making findings of impairment on the claim closure.
(i)(A)
When the basis for objection to a notice of closure issued under this section
is a disagreement with the impairment used in rating the worker’s disability,
and the director determines that the worker is not medically stationary at the
time of the reconsideration or that the closure was not made pursuant to this
section, the director is not required to appoint a medical arbiter prior to the
completion of the reconsideration proceeding.
(B) If the worker’s
condition has substantially changed since the notice of closure, upon the
consent of all the parties to the claim, the director shall postpone the
proceeding until the worker’s condition is appropriate for claim closure under
subsection (1) of this section.
(8) No hearing shall be
held on any issue that was not raised and preserved before the director at
reconsideration. However, issues arising out of the reconsideration order may
be addressed and resolved at hearing.
(9) If, after the notice
of closure issued pursuant to this section, the worker becomes enrolled and
actively engaged in training according to rules adopted pursuant to ORS 656.340
and 656.726, any permanent disability payments due under the closure shall be
suspended, and the worker shall receive temporary disability compensation while
the worker is enrolled and actively engaged in the training. When the worker
ceases to be enrolled and actively engaged in the training, the insurer or
self-insured employer shall again close the claim pursuant to this section if
the worker is medically stationary or if the worker’s accepted injury is no
longer the major contributing cause of the worker’s combined or consequential
condition or conditions pursuant to ORS 656.005 (7). The closure shall include
the duration of temporary total or temporary partial disability compensation.
Permanent disability compensation shall be redetermined for unscheduled
disability only. If the worker has returned to work or the worker’s attending
physician has released the worker to return to regular or modified employment,
the insurer or self-insured employer shall again close the claim. This notice
of closure may be appealed only in the same manner as are other notices of
closure under this section.
(10) If the attending
physician has approved the worker’s return to work and there is a labor dispute
in progress at the place of employment, the worker may refuse to return to that
employment without loss of reemployment rights or any vocational assistance
provided by this chapter.
(11) Any notice of
closure made under this section may include necessary adjustments in
compensation paid or payable prior to the notice of closure, including
disallowance of permanent disability payments prematurely made, crediting
temporary disability payments against current or future permanent or temporary
disability awards or payments and requiring the payment of temporary disability
payments which were payable but not paid.
(12) An insurer or
self-insured employer may take a credit or offset of previously paid workers’
compensation benefits or payments against any further workers’ compensation
benefits or payments due a worker from that insurer or self-insured employer
when the worker admits to having obtained the previously paid benefits or
payments through fraud, or a civil judgment or criminal conviction is entered
against the worker for having obtained the previously paid benefits through
fraud. Benefits or payments obtained through fraud by a worker shall not be
included in any data used for ratemaking or individual employer rating or
dividend calculations by [a guaranty
contract] an insurer, a rating organization licensed pursuant to ORS
chapter 737, the State Accident Insurance Fund Corporation or the director.
(13)(a) An insurer or
self-insured employer may offset any compensation payable to the worker to
recover an overpayment from a claim with the same insurer or self-insured
employer. When overpayments are recovered from temporary disability or
permanent total disability benefits, the amount recovered from each payment
shall not exceed 25 percent of the payment, without prior authorization from
the worker.
(b) An insurer or
self-insured employer may suspend and offset any compensation payable to the
beneficiary of the worker, and recover an overpayment of permanent total
disability benefits caused by the failure of the worker’s beneficiaries to
notify the insurer or self-insured employer about the death of the worker.
(14) Conditions that are
direct medical sequelae to the original accepted condition shall be included in
rating permanent disability of the claim unless they have been specifically
denied.
SECTION 13. ORS 656.407 is amended to read:
656.407. (1) An employer shall establish proof with the Director of the
Department of Consumer and Business Services that the employer is qualified
either:
(a) As a carrier-insured
employer by causing [a guaranty contract
issued by a guaranty contract] proof of coverage provided by an
insurer to be filed with the director; or
(b) As a self-insured
employer by establishing proof that the employer has an adequate staff
qualified to process claims promptly and has the financial ability to make
certain the prompt payment of all compensation and other payments that may
become due to the director under this chapter.
(2) Except as provided
in subsection (3) of this section, a self-insured employer shall establish
proof of financial ability by providing security that the director determines
acceptable by rule. The security must be in an amount reasonably sufficient to
insure payment of compensation and other payments that may become due to the
director but not less than the employer’s normal expected annual claim
liabilities and in no event less than $100,000. In arriving at the amount of
security required under this subsection, the director may take into
consideration the financial ability of the employer to pay compensation and
other payments and probable continuity of operation. The security shall be held
by the director to secure the payment of compensation for injuries to subject
workers of the employer and to secure other payments that may become due from
the employer to the director under this chapter. Moneys received as security
under this subsection shall be deposited with the State Treasurer in an account
separate and distinct from the General Fund. Interest earned by the account shall
be credited to the account. The amount of security may be increased or
decreased from time to time by the director.
(3)(a) A city or county
that wishes to be exempt from subsection (2) of this section may make written
application therefor to the director. The application shall include a copy of
the city’s or county’s most recent annual audit as filed with the Secretary of
State under ORS 297.405 to 297.740, information regarding the establishment of
a loss reserve account for the payment of compensation to injured workers and
such other information as the director may require. The director shall approve
the application and the city or county shall be exempt from subsection (2) of
this section if the director finds that:
(A) The city or county
has been a self-insured employer in compliance with subsection (2) of this
section for more than three consecutive years prior to making the application
referred to in this subsection as an independently self-insured employer and
not as part of a self-insured group.
(B) The city or county
has in effect a loss reserve account:
(i)
That is actuarially sound and that is adequately funded as determined by an
annual audit under ORS 297.405 to 297.740 to pay all compensation to injured
workers and amounts due the director pursuant to this chapter. A copy of the
annual audit shall be filed with the director. Upon a finding that there is
probable cause to believe that the loss reserve account is not actuarially
sound, the director may require a city or county to obtain an independent
actuarial audit of the loss reserve account. The requirements of this
subsection are in addition to and not in lieu of any other audit or reporting
requirement otherwise prescribed by or pursuant to law.
(ii)
That is dedicated to and may be expended only for the payment of compensation
and amounts due the director by the city or county under this chapter.
(b) The director shall
have the first lien and priority right to the full amount of the loss reserve
account required to pay the present discounted value of all present and future
claims under this chapter.
(c) The city or county
shall notify the director no later than 60 days prior to any action to
discontinue the loss reserve account. The city or county shall advise the
director of the city’s or county’s plans to submit the security deposits
required in subsection (2) of this section, or obtain coverage as a
carrier-insured employer prior to the date the loss reserve account ceases to
exist. If the city or county elects to discontinue self-insurance, it shall
submit such security as the director may require to insure
payment of all compensation and amounts due the director for the period the
city or county was self-insured.
(d) In order to
requalify as a self-insured employer, the city or county must deposit prior to
discontinuance of the loss reserve account such security as is required by the
director pursuant to subsection (2) of this section.
(e) Notwithstanding ORS
656.440, if prior to the date of discontinuance of the loss reserve account the
director has not received the security deposits required in subsection (2) of
this section, the city’s or county’s certificate of self-insurance is
automatically revoked as of that date.
SECTION 14. ORS 656.443 is amended to read:
656.443. (1) If an
employer defaults in payment of compensation or other payments due to the
Director of the Department of Consumer and Business Services under this
chapter, the director may, on notice to the employer and any insurer providing
[a guaranty contract or surety bond] workers’
compensation insurance coverage or a surety bond to such employer, use
money or interest and dividends on securities, sell securities or institute
legal proceedings on any surety bond or [guaranty
contract deposited or] insurance policy for which a notice of coverage
has been filed with the director to the extent necessary to make such
payments.
(2) Prior to any default
by the employer, the employer is entitled to all interest and dividends on
securities on deposit and to exercise all voting rights, stock options and
other similar incidents of ownership of the securities.
[(3) If for any reason the certification of a self-insured employer is
canceled or terminated, or the coverage of a carrier-insured employer is
canceled or terminated, the security deposited or the guaranty contract filed
with the director shall remain on deposit or in effect, as the case may be, for
a period of at least 62 months after the employer ceases to be a self-insured
or a carrier-insured employer. The security or contract shall be maintained in
such amount as is necessary to secure the outstanding and contingent liability
arising from the accidental injuries secured by such security or contract, and
to assure the payment of claims for aggravation and claims under ORS 656.278
based on such accidental injuries. At the expiration of the 62 months’ period,
or such other period as the director may consider proper, the director may
accept in lieu of any such security or contract a policy of paid-up insurance
in a form approved by the director.]
(3) If for any reason
the certification of a self-insured employer is canceled or terminated, the
security deposited with the director shall remain on deposit or in effect, as
the case may be, for a period of at least 62 months after the employer ceases
to be a self-insured employer. The security shall be maintained in an amount
necessary to secure the outstanding and contingent liability arising from the
accidental injuries secured by the security, and to assure the payment of
claims for aggravation and claims arising under ORS 656.278 based on those
accidental injuries. At the expiration of the 62-month period, or of another
period the director may consider proper, the director may accept in lieu of the
security deposited with the director a policy of paid-up insurance in a form
approved by the director.
SECTION 15. ORS 656.447 is amended to read:
656.447. (1) The
Director of the Department of Consumer and Business Services may suspend or
revoke the authorization of [a guaranty
contract] an insurer to issue [guaranty
contracts] workers’ compensation insurance policies if the director,
after notice to the company and giving the company an opportunity to be heard
and present evidence, finds that:
(a) The company has
failed to comply with its obligations under any such [contract] policy; or
(b) The company has
failed to comply with the orders of the director or the provisions of this
chapter or any rule promulgated pursuant thereto.
(2) A suspension or
revocation shall not affect the liability of any such company on any [guaranty contract] workers’
compensation insurance policy in force prior to the suspension or
revocation.
SECTION 16. ORS 656.622 is amended to read:
656.622. (1) There is established a Reemployment Assistance Program for
the benefit of employers and workers and for the purpose of:
(a) Giving employers and
workers the benefits provided in this section.
(b) Providing
reimbursement of reasonable program administration costs of self-insured
employers and of insurers of employers who participate in any program funded
through the Reemployment Assistance Program.
(2) In order to preclude
or reduce nondisabling claims from becoming disabling claims, preclude
on-the-job injuries from recurring, reduce disability by returning injured
workers to work sooner and to help injured workers remain employed, the
Director of the Department of Consumer and Business Services may provide
assistance to employers from the Reemployment Assistance Program in such manner
and amount as the director considers appropriate. Assistance may include, but
need not be limited to, modification of work sites. For purposes of this
subsection, work site modification may include engineering design work and
occupational health consulting services. Factors to be considered by the
director in determining the extent of assistance must include but need not be
limited to the financial stability and solvency of employers, the employer’s
record of returning injured workers to the workplace and the cost-effectiveness
of modifications. Assistance may be provided in the form of grants and matching
contributions from employers for funds.
(3) In order to
encourage the employment of individuals who have incurred compensable injuries
that result in disability which may be a substantial obstacle to employment,
the director may provide, to eligible injured workers and to employers who
employ them, assistance from the Workers’ Benefit Fund in such manner and
amount as the director considers appropriate.
(4)(a) In addition to
such assistance as the director may provide under this section, the director
shall provide reimbursement to self-insured employers or to the insurers of
employers who hire preferred workers for the claim costs incurred for injuries
to those workers during the first three years from the date of hire, as
follows:
(A) The claim costs of
injuries incurred by those workers.
(B) Reasonable claims
administration costs.
(b) A worker may not
waive eligibility for preferred worker status in the claim by agreement
pursuant to ORS 656.236.
(5)(a) In addition to
such assistance as the Director of the Department of Consumer and Business
Services may provide under subsection (3) of this section, the director shall
provide to participating self-insured employers and the insurers of
participating employers reimbursement of reasonable
program administration costs.
(b) As used in this
subsection, “participating employer” or “participating self-insured employer”
means an employer participating in any program funded through the Reemployment
Assistance Program.
(6) Notwithstanding any
other provision of law, determinations by the director regarding assistance
pursuant to this section are not subject to review by any court or other
administrative body.
(7) The Reemployment
Assistance Program shall be funded with moneys collected as provided in ORS
656.506.
(8) Any assistance from
the Reemployment Assistance Program shall be to the extent of the moneys
available in the Workers’ Benefit Fund, for the purpose of the program as
determined by the director.
(9) The director may
make such rules as may be required to establish, regulate, manage and disburse
moneys in the Workers’ Benefit Fund in accordance with the intent of this
section. Such rules shall include, but are not limited to, the eligibility
criteria to receive assistance under this section and the issuance of identity
cards to preferred workers to assist employers in the administration of the
program.
(10) Claims costs
incurred as a result of an injury sustained by a preferred worker during the
three years after that worker is hired shall not be included in any data used
for ratemaking or individual employer rating or dividend calculations by [a guaranty contract] an insurer,
a rating organization licensed pursuant to ORS chapter 737, the State Accident
Insurance Fund Corporation or the Department of Consumer and Business Services.
Neither insurance premiums nor premium assessments under this chapter are
payable for preferred workers.
(11) Any moneys from the
Workers’ Benefit Fund reimbursed to an agency for costs incurred in reemploying
injured state workers in the manner described in ORS 659A.052 or in providing
wage subsidies for the reemployment of injured state workers shall be outside
the biennial expenditure limitation imposed on the agency by the Legislative
Assembly and shall be available for expenditure by the agency as a continuous
appropriation.
(12) As used in this
section, “preferred worker” means a worker who, because of a permanent
disability resulting from a compensable injury or occupational disease, is
unable to return to the worker’s regular employment, whether or not an order
has been issued awarding permanent disability.
SECTION 17. ORS 656.628 is amended to read:
656.628. (1) There is established a Handicapped Workers Program for the
benefit of complying employers and their workers. The purpose of the program is
to encourage the employment or reemployment of handicapped workers.
(2) As used in this
section, “handicapped worker” means a worker who is afflicted with or subject
to any permanent physical or mental impairment, whether congenital or due to an
injury or disease, including periodic impairment of consciousness or muscular
control of such character that the impairment would prevent the worker from
obtaining or retaining employment.
(3) Any employer of a
worker who claims or has received compensation under this chapter, or whose
dependents have claimed or received such compensation, may file an application
with the Director of the Department of Consumer and Business Services
requesting the director to make the determinations referred to in subsection
(4) of this section.
(4) When the director
receives a request referred to in subsection (3) of this section, the director
shall determine:
(a) Whether the injured
worker was a handicapped worker and whether the injury, disease or death
sustained by the worker would not have been sustained except for the handicap;
or
(b) Whether the injured
worker was a handicapped worker and whether the injury, disease or death
sustained by the worker would have been sustained without regard to the
handicap but that:
(A) Any resulting
disability was substantially greater by reason of the handicap; or
(B) The handicap
contributed substantially to the worker’s death; and
(C) Whether the injury,
disease or death of the worker would not have occurred except for the act or
omission of a handicapped worker employed by the same employer and that the act
or omission of the handicapped worker would not have occurred except for the
handicapped worker’s impairment.
(5) If the director
determines that any of the conditions described in subsection (4) of this
section exist, the director may reimburse the paying agency for compensation
amounts in excess of $1,000 per claimant for all subsequent injuries throughout
the claimant’s working career, paid as the result of the condition.
(6) The reimbursement
paid from the Workers’ Benefit Fund shall not be included in any data used for
rate making or individual employer rating or dividend calculations by [a guaranty contract] an insurer,
a rating organization licensed pursuant to ORS chapter 737, the State Accident
Insurance Fund Corporation or the Department of Consumer and Business Services.
(7) Notwithstanding any
other provision of law:
(a) Any reimbursement to
employers under the Handicapped Workers Program shall be in such amounts as the
director prescribes and only to the extent of moneys available in the Workers’
Benefit Fund as determined by the director.
(b) Determinations made
by the director regarding reimbursement from the Workers’ Benefit Fund for the
purposes of this section are not subject to review by any court or
administrative body.
(c) After a
determination has been made by the director that an employer will receive
reimbursement from the Workers’ Benefit Fund, any settlement of the claim by
the parties is void unless made with the written approval of the director.
(8) The director by rule
shall prescribe the form and manner of requesting determinations under this
section, the amount of reimbursement payable and such other matters as may be
necessary for the administration of this section.
SECTION 18. ORS 656.730 is amended to read:
656.730. (1) The
Director of the Department of Consumer and Business Services shall promulgate a
plan for the equitable apportionment among the State Accident Insurance Fund
Corporation and all members of workers’ compensation rating organizations in
the state coverage required by ORS 656.017 for subject employers whose coverage
the fund, or any members of such rating organizations, object to providing. The
plan shall include provisions authorized pursuant to ORS 737.265 (2), except
that:
(a) Regardless of the
rating plans adopted by any rating organization, the plan shall provide a
rating structure with differing rate tiers for insureds too small to qualify
for experience rating and for insureds large enough to be experience rated; and
(b) The plan shall seek
and be entitled to receive approval for all classification exceptions approved
by the director for any insurer.
(2) If any insurer
issuing [guaranty contracts] workers’
compensation insurance policies under this chapter refuses to accept its
equitable apportionment under such plan, the director shall revoke the insurer’s
authority to issue [guaranty contracts]
workers’ compensation insurance policies.
SECTION 19. ORS 656.740 is amended to read:
656.740. (1) A person
may contest a proposed order of the Director of the Department of Consumer and
Business Services declaring that person to be a noncomplying employer, or a
proposed assessment of civil penalty, by filing with the Department of Consumer
and Business Services, within 60 days after the mailing of the order, a written
request for a hearing. Such a request need not be in any particular form, but
shall specify the grounds upon which the person contests the proposed order or
assessment. An order by the director under this subsection is prima facie
correct and the burden is upon the employer to prove that the order is
incorrect.
(2) A person may contest
a nonsubjectivity determination of the director by filing a written request for
hearing with the department within 60 days after the mailing of the
determination.
(3) When any insurance
carrier, including the State Accident Insurance Fund Corporation, is alleged by
an employer to have contracted to provide the employer with workers’
compensation coverage for the period in question, the Workers’ Compensation
Board shall join such insurance carrier as a necessary party to any hearing
relating to such employer’s alleged noncompliance or to any hearing relating to
a nonsubjectivity determination and shall serve the carrier, at least 30 days
prior to such hearing, with notice thereof.
(4) A hearing relating
to a nonsubjectivity determination, to a proposed order declaring a person to
be a noncomplying employer, or to a proposed assessment of civil penalty under
ORS 656.735, shall be held by an Administrative Law Judge of the board’s
Hearings Division. However, a hearing shall not be granted unless a request for
hearing is filed within the period specified in subsection (1) or (2) of this
section, and if a request for hearing is not so filed, the nonsubjectivity
determination, order or penalty, as proposed, shall be a final order of the
department and shall not be subject to review by any agency or court.
(5) Notwithstanding ORS
183.315 (1), the issuance of nonsubjectivity determinations, orders declaring a
person to be a noncomplying employer or the assessment of civil penalties
pursuant to this chapter, the conduct of hearings and the judicial review
thereof shall be as provided in ORS chapter 183, except that:
(a) The order of an
Administrative Law Judge in a contested case shall be deemed to be a final
order of the director.
(b) The director shall
have the same right to judicial review of the order of an Administrative Law
Judge as any person who is adversely affected or aggrieved by such final order.
(c) When a
nonsubjectivity determination or an order declaring a person to be a
noncomplying employer is contested at the same hearing as a matter concerning a
claim pursuant to ORS 656.283 and 656.704, the review thereof shall be as
provided for a matter concerning a claim.
(6)(a) If a person
against whom an order is issued pursuant to this section prevails at hearing or
on appeal, the person is entitled to reasonable attorney fees to be paid by the
director from the Workers’ Benefit Fund.
(b) If a person against
whom an order is issued is found to be a noncomplying employer by the director,
but the person proves coverage pursuant to subsection (3) of this section and
the insurer failed to file timely [a
guaranty contract] proof of coverage as required by ORS 656.419 or
improperly canceled the person’s coverage, the employer is entitled to
reasonable attorney fees paid by the insurer.
(c) If a worker prevails
at hearing or on appeal from a nonsubjectivity determination, the worker is
entitled to reasonable attorney fees to be paid by the director from the
Workers’ Benefit Fund and reimbursed by the employer.
SECTION 20. ORS 656.850 is amended to read:
656.850. (1) As used in this section and ORS 656.018, 656.403, 656.855
and 737.270:
(a) “Worker leasing
company” means a person who provides workers, by contract and for a fee, to
work for a client but does not include a person who provides workers to a
client on a temporary basis.
(b) “Temporary basis”
means providing workers to a client for special situations such as to cover
employee absences, employee leaves, professional skill shortages, seasonal
workloads and special assignments and projects with the expectation that the
position or positions will be terminated upon completion of the special
situation. Workers also are provided on a temporary basis if they are provided
as probationary new hires with a reasonable expectation of transitioning to
permanent employment with the client and the client uses a preestablished
probationary period in its overall employment selection program.
(c) “Temporary service
provider” means a person who provides workers, by contract and for a fee, to a
client on a temporary basis.
(2) No person shall
perform services as a worker leasing company in this state without first having
obtained a license therefor from the Director of the Department of Consumer and
Business Services. No person required by this section to obtain a license shall
fail to comply with this section or ORS 656.855, or any rule adopted pursuant
thereto.
(3) When a worker
leasing company provides workers to a client, the worker leasing company shall
satisfy the requirements of ORS 656.017 and 656.407 and provide workers’
compensation coverage for those workers and any subject workers employed by the
client unless during the term of the lease arrangement the client has [an active guaranty contract] proof of
coverage on file with the director that extends coverage to subject workers
employed by the client and any workers leased by the client. If the client
allows the [guaranty contract to
terminate] coverage to expire and continues to employ subject
workers or has leased workers, the client shall be considered a noncomplying
employer unless the worker leasing company has complied with subsection (5) of
this section.
(4) When a worker
leasing company provides workers for a client, the worker leasing company shall
assure that the client provides adequate training, supervision and instruction
for those workers to meet the requirements of ORS chapter 654.
(5) When a worker
leasing company provides subject workers to work for a client and also provides
workers’ compensation coverage for those workers, the worker leasing company
shall notify the director in writing. The notification shall be given in such
manner as the director may prescribe. A worker leasing company may terminate its
obligation to provide workers’ compensation coverage for workers provided to a
client by giving to the client and the director written notice of the
termination. A notice of termination shall state the effective date and hour of
the termination, but the termination shall be effective not less than 30 days
after the notice is received by the director. Notice to the client under this
section shall be given by mail, addressed to the client at [its] the client’s last-known
address. If the client is a partnership, notice may be given to any of the
partners. If the client is a corporation, notice may be given to any agent or
officer of the corporation upon whom legal process may be served.
SECTION 21. ORS 654.097 is amended to read:
654.097. (1)(a) An
insurer that [issues guaranty contracts]
provides workers’ compensation coverage to employers pursuant to ORS
chapter 656 shall furnish occupational safety and health loss control
consultative services to its insured employers in accordance with standards
established by the Director of the Department of Consumer and Business
Services.
(b) A self-insured
employer shall establish and implement an occupational safety and health loss
control program in accordance with standards established by the director.
(2) An insurer or
self-insured employer may furnish any of the services required by this section
through an independent contractor.
(3) The program of an
insurer for furnishing loss control consultative services as required by this
section shall be adequate to meet the minimum standards prescribed by the
director by rule from time to time. Such services shall include the conduct of
workplace surveys to identify health and safety problems, review of employer
injury records with appropriate persons and development of plans for
improvement of employer health and safety loss records. At the time a [guaranty contract] workers’
compensation insurance policy is issued and on an annual basis thereafter,
the insurer shall notify its insured employers of the loss control consultative
services that the insurer is required by rule to offer, without additional
charge as provided in this section, and shall provide a written description of
the services that the insurer does offer.
(4) The insurer shall
not charge any fee in addition to the insurance premium for safety and health
loss control consultative services.
(5) Each insurer shall
make available, at the request of the director and in the form prescribed by
the director, its annual expenditures for safety and health loss control
activities for the prior year and its budget for safety and health loss control
activities for the following year.
(6) As used in this
section, “employer,” “insurer” and “self-insured employer” have the meaning for
those terms provided in ORS 656.005.
SECTION 22. ORS 731.158 is amended to read:
731.158. “Casualty
insurance” means:
(1) Insurance against
legal, contractual or assumed liability for death, injury or disability of any
human, or for damage to property; and provision for medical, hospital, surgical
and disability benefits to injured persons including insurance against the risk
of economic loss assumed under a less than fully insured employee health
benefit plan and funeral and death benefits to dependents, beneficiaries or
personal representatives of persons killed, irrespective of legal liability of
the insured, when issued as coverage for personal injury protection benefits
under a motor vehicle liability policy or as an incidental coverage with or
supplemental to liability insurance;
(2) Motor vehicle
physical damage, burglary and theft, glass, boiler and machinery, credit and
livestock insurance;
(3) Insurance of the
obligations accepted by, imposed upon or assumed by employers under law for
death, disablement or occupational diseases of employees;[, including issuing guaranty contracts in
connection therewith;]
(4) Insurance which
undertakes to perform or provide repair or replacement service or
indemnification therefor for the operational or structural failure of specified
real or personal property or property components; and
(5) Insurance against
any other kind of loss, damage or liability properly a subject of insurance and
not within any other class of insurance otherwise defined, if such insurance is
not disapproved by the Director of the Department of Consumer and Business
Services as being contrary to law or public policy.
SECTION 23. ORS 731.475 is amended to read:
731.475. (1) Every insurer authorized to issue workers’ compensation
coverage to subject employers as required by ORS chapter 656 shall maintain a
place of business in this state where the insurer shall:
(a) Process, and keep
complete records of, claims for compensation made to the insurer under ORS
chapter 656.
(b) Make available upon
request complete records, including all records submitted electronically, of
all [guaranty contracts] workers’
compensation insurance policies issued as required by ORS chapter 656.
(c) Keep records
identifying the specific persons covered by an employer electing coverage
pursuant to ORS 656.039.
(2) Claims records must
be retained in, and may be removed from, this state or disposed of, in
accordance with the rules of the Director of the Department of Consumer and
Business Services. The records must be available to the Department of Consumer
and Business Services for examination and audit at all reasonable times upon
notice by the department to the insurer.
(3) In lieu of
establishing a place of business in this state for the purpose required by this
section, an insurer may keep such records in this state at places of business
operated by service companies, if:
(a) Each service company
is incorporated in or authorized to do business in this state;
(b) The agreement
entered into between the insurer and the service company grants each service
company a power of attorney to act for the insurer in workers’ compensation
coverage and claims proceedings under ORS chapter 656; and
(c) The agreement
entered into between the insurer and each service company is approved by the
director.
(4) Notwithstanding
subsection (3) of this section, an insurer may not:
(a) Enter into a service
agreement contract with one of its insureds unless the insured has service
contracts with other insurers; or
(b) Have more than eight
locations at any one time where claims are processed or records are maintained.
SECTION 24. ORS 731.480 is amended to read:
731.480. An insurer
shall not issue [guaranty contracts] workers’
compensation insurance policies pursuant to ORS chapter 656 unless it
furnishes occupational safety and health loss control consultative services to
its insured employers consistent with the requirements of ORS 654.097.
SECTION 25. ORS 731.590 is amended to read:
731.590. As used in ORS
731.592 and 731.594, “insurer” includes, but is not limited to:
(1) An insurer, as
defined in ORS 731.106.
(2) A health care
service contractor, as defined in ORS 750.005, including, but not limited to, a
health maintenance organization.
(3) A multiple employer
welfare arrangement, as defined in ORS 750.301.
(4) A legal entity that
is self-insured and provides insurance services to its employees.
(5) [A guaranty contract] An
insurer, as defined in ORS 656.005.
(6) An employer
authorized under ORS chapter 656 to self-insure its workers’ compensation risk.
(7) A fraternal benefit
society, as described in ORS 748.106.
(8) An insurance
producer, as defined in ORS 731.104.
SECTION 26. ORS 731.608 is amended to read:
731.608. (1) Except as
provided in subsection (2) of this section, deposits made in this state under
ORS 731.624 shall be held for the faithful performance by the insurer of all
insurance obligations, including claims for unearned premiums, with respect to
domestic risks pertaining to the particular class of insurance for which the
deposit was made. However, there shall be excluded from each such obligation
the same amount as is excluded in determining the obligation of the Oregon
Insurance Guaranty Association under ORS 734.510 to 734.710.
(2) If at any time a
deposit made under ORS 731.624 by a particular insurer is insufficient to
perform the insurance obligations upon the faithful performance of which the
deposit was conditioned, then any other deposit made under ORS 731.624 by that
insurer shall be so used to the extent that such other deposit is not used to
perform the insurance obligations upon the faithful performance of which such
other deposit was conditioned.
(3) Deposits made by
insurers and reinsurers in this state under ORS 731.628 shall be held for the
payment of compensation benefits to workers employed by insured employers other
than those insured with the State Accident Insurance Fund Corporation to whom
the insurer has issued a [guaranty
contract] workers’ compensation insurance policy under ORS chapter
656. Deposits made by insurers and reinsurers under ORS 731.628 also shall be
held to reimburse the Department of Consumer and Business Services, subject to
approval by the Director of the Department of Consumer and Business Services,
for costs incurred by the department in processing workers’ compensation claims
of insurers which have been placed in liquidation, receivership, rehabilitation
or other such status for the orderly conservation or distribution of assets,
pursuant to the laws of this state or any other state.
(4) A deposit made in
this state by a domestic insurer transacting insurance in another jurisdiction,
and as required by the laws of such jurisdiction, shall be held for the purpose
or purposes required by such laws.
(5) Deposits of foreign
and alien insurers required pursuant to ORS 731.854 shall be held for such
purposes as are required by such law, and as specified by the director’s order
by which the deposit is required.
(6) Deposits of domestic
reciprocal insurers required pursuant to ORS 731.632 shall be held for the
benefit of subscribers wherever located.
SECTION 27. ORS 731.628 is amended to read:
731.628. (1) In addition
to any other requirement therefor under the Insurance Code, each insurer other
than the State Accident Insurance Fund Corporation that issues [guaranty contracts] workers’
compensation insurance policies to employers under ORS chapter 656 shall
deposit with the Department of Consumer and Business Services an amount that is
the greater of the following amounts:
(a)
$100,000.
(b) An amount equal to
the sum described in this paragraph less credits for approved reinsurance that
the insurer may take under subsection (2) of this section. The sum under this
paragraph is the sum of the following, computed as of December 31 next
preceding in respect to [guaranty
contracts] workers’ compensation insurance policies written subject
to ORS chapter 656:
(A) The aggregate of the
present values at four percent interest of the determined and estimated future
loss and loss-expense payments upon claims incurred more than three years next
preceding the date of computation.
(B) The aggregate of the
amounts computed under this subparagraph for each of the three years next
preceding the date of computation. The amount for each year shall be 65 percent
of the earned premiums for the year less all loss and loss-expense payments
made upon claims incurred in the corresponding year, except that the amount for
any year shall not be less than the present value at four percent interest of
the determined and estimated future loss and loss-expense payments upon claims
incurred in that year.
(2) Before an insurer
may take a credit for reinsurance under subsection (1)(b)
of this section, the reinsurer must deposit with the department an amount equal
to the credit to be taken.
(3) An insurer may be
allowed the credit referred to in subsection (1)(b) of
this section only when the reinsurer has deposited with the department an
amount equal to the credit.
SECTION 28. ORS 737.602 is amended to read:
737.602. (1) As used in this section:
(a) “Project” means a
construction project, a plant expansion or improvements within
(b) “Project sponsor”
means public bodies, utilities, corporations and firms undertaking to construct
a project in excess of $90 million and conducting business in the State of
(c) “Public body” has
the meaning given the term in ORS 30.260.
(2) Notwithstanding ORS
279C.530, 656.126, 737.600 or 746.160, an insurer approved to transact
insurance in this state, including the State Accident Insurance Fund
Corporation or [a guaranty contract] an
insurer as defined in ORS 656.005, may issue with the prior approval of the
Director of the Department of Consumer and Business Services a policy of
insurance [or a guaranty contract
covering and insuring] covering the project sponsor, the prime
contractor under a contract for the construction of the project, any
contractors or subcontractors with whom the prime contractor may enter into
contracts for the purpose of fulfilling its contractual obligations in
construction of the project and any other contractors engaged by a project
sponsor to provide architectural or other design services, engineering services,
construction management services, other consulting services relating to the
design and construction of the project or any combination thereof.
(3) The following
provisions apply to premiums under a policy of insurance [or guaranty contract] described in subsection (2) of this section:
(a) A project sponsor or
a prime contractor may not charge a premium for coverage under a policy of
insurance [or a guaranty contract] to
a contractor or subcontractor with whom the project sponsor or prime contractor
enters into a contract or engages for services described in subsection (2) of
this section.
(b) A prime contractor
may not charge a project sponsor a premium for coverage under a policy of
insurance [or a guaranty contract]
other than a premium approved by the director under ORS chapter 737 prior to or
at the same time as the director approves the project to which the policy [or guaranty contract] applies.
(c) Charging a premium
prohibited by this subsection constitutes the unlawful transaction of insurance
in violation of ORS 731.354.
(4) The director, upon
application of any insurer, shall approve the issuance of a policy of insurance
[or a guaranty contract] to any
grouping of the persons described in subsection (2) of this section if:
(a) The grouping was
formed for the purpose of performing a contract or a series of related
contracts for the design and construction of a project for the project sponsor;
(b) The project sponsor
can reasonably demonstrate that the formation and operation of the grouping will
substantially improve accident prevention and claims handling to the benefit of
the project sponsor and the contractors and workers employed by the project
sponsor on construction related projects;
(c) The established
rating and auditing standards required by authorized advisory organizations and
rating organizations are adhered to;
(d) The insurer for the
grouping guarantees adequate protection to any other insurance producer that
demonstrates that without such protection the producer will suffer losses that
will constitute a threat to the continuation of the business of the producer;
(e) The insurer for the
grouping guarantees insurance coverage of the classes of insurance issued to
the grouping to any contractor who, because of participation in the group, has
been unable to maintain the contractor’s normal coverage. The insurer’s
obligation under this paragraph shall continue until 12 months after
substantial completion of the contractor’s work;
(f) By permitting this
grouping for a project sponsor, greater opportunities will be made available
for historically underutilized businesses to bid on the project;
(g) The project insurers
agree to provide not less than 90 days’ notice to all insured parties of the
cancellation or any material reduction in coverage for the project;
(h) The insurance
coverage for the grouping contains a severability of interest clause with
respect to liability claims between individuals insured under the group policy
and includes contractual liability coverage that applies to the various
contracts and subcontracts entered into in connection with the project; and
(i) The insurer places
with the Department of Consumer and Business Services a special deposit of
$25,000 per $100 million of construction project value, or an amount prescribed
by rule of the director, whichever is greater.
SECTION 29. ORS 746.145 is amended to read:
746.145. (1)
Notwithstanding ORS 737.600, but subject to all other rate filing requirements
of ORS chapter 737, an insurer may combine for dividend purposes the experience
of a group of employers covered for workers’ compensation insurance by the
insurer, subject to applicable rules adopted by the Director of the Department
of Consumer and Business Services, if:
(a) All the employers in
the group are members of an organization.
(b) The employers in the
group constitute at least 50 percent of the employers in the organization,
unless the number of covered workers in the group exceeds 500, in which case
the employers in the group must constitute at least 25 percent of the employers
in the organization.
(c) The grouping of
employers is likely to substantially improve accident prevention, claims
handling for the employers and reduce expenses.
(2) This section does
not apply to an organization of employers for which organization a workers’
compensation policy was lawfully issued before October 4, 1977. The [guaranty contract] policy
required by ORS 656.419 shall contain for each employer covered thereby the
information required by ORS 656.419 (2). When an employer becomes an insured
member of the organization the insurer shall, within 30 days after the date
insured membership commenced, file a notice thereof with the director.
SECTION 30. 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)] (4). 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 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 Hearings Division of the Workers’ Compensation Board under ORS
656.283 shall set a date for a hearing, which date shall be within 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.
The cost of transcription shall be charged to the employer. Within 10 days
after the hearing, the 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 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 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 31. Except as provided in section 32 of this
2007 Act, the amendments to ORS 654.097, 656.005, 656.039, 656.128, 656.210,
656.268, 656.407, 656.419, 656.423, 656.427, 656.440, 656.443, 656.447,
656.622, 656.628, 656.726, 656.730, 656.740, 656.850, 731.158, 731.475,
731.480, 731.590, 731.608, 731.628, 737.602 and 746.145 by sections 1 to 30 of
this 2007 Act become operative on July 1, 2009.
SECTION 32. The Director of the Department of Consumer
and Business Services may take any action before the operative date of this
2007 Act that is necessary to enable the director to exercise, on and after the
operative date of this 2007 Act, all the duties, functions and powers conferred
on the director by this 2007 Act.
Approved by the Governor May 30, 2007
Filed in the office of Secretary of State May 31, 2007
Effective date January 1, 2008
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