Chapter 252
AN ACT
HB 2756
Relating to authority of medical service
providers in workers’ compensation system; creating new provisions; amending
ORS 656.005, 656.245 and 656.262; and declaring an emergency.
Be It Enacted by the People of
the State of
SECTION 1. 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.
(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
or physician assistant 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]
(B) For a cumulative
total of 60 days from the first visit on the initial claim or for a cumulative
total of 18 visits, whichever occurs first, to any of the medical service
providers listed in this subparagraph, a:
(i) Doctor or
physician licensed by the State Board of Chiropractic Examiners for the State
of Oregon under ORS chapter 684 or a similarly licensed doctor or
physician in any country or in any state, territory or possession of the United
States[.];
(ii) Podiatric physician
and surgeon licensed by the Board of Medical Examiners for the State of Oregon
under ORS 677.805 to 677.840 or a similarly licensed doctor or physician in any
country or in any state, territory or possession of the United States;
(iii) Physician
assistant licensed by the Board of Medical Examiners for the State of Oregon in
accordance with ORS 677.505 to 677.525 or a similarly licensed physician assistant
in any country or in any state, territory or possession of the United States;
or
(iv) Doctor of
naturopathy or naturopathic physician licensed by the Board of Naturopathic
Examiners licensed under ORS chapter 685 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 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 2. 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.
(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 or
physician assistant 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]
(B) For a cumulative
total of 60 days from the first visit on the initial claim or for a cumulative
total of 18 visits, whichever occurs first, to any of the medical service
providers listed in this subparagraph, a:
(i) Doctor or physician licensed by the State
Board of Chiropractic Examiners for the State of Oregon under ORS chapter
684 or a similarly licensed doctor or physician in any country or in any
state, territory or possession of the United States[.];
(ii) Podiatric physician
and surgeon licensed by the Board of Medical Examiners for the State of Oregon
under ORS 677.805 to 677.840 or a similarly licensed doctor or physician in any
country or in any state, territory or possession of the United States;
(iii) Physician
assistant licensed by the Board of Medical Examiners for the State of Oregon in
accordance with ORS 677.505 to 677.525 or a similarly licensed physician
assistant in any country or in any state, territory or possession of the United
States; or
(iv) Doctor of
naturopathy or naturopathic physician licensed by the Board of Naturopathic
Examiners licensed under ORS chapter 685 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 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 3. ORS 656.245 is amended to read:
656.245. (1)(a) For every compensable injury, the insurer or the
self-insured employer shall cause to be provided medical services for
conditions caused in material part by the injury for such period as the nature
of the injury or the process of the recovery requires, subject to the
limitations in ORS 656.225, including such medical services as may be required
after a determination of permanent disability. In addition, for consequential
and combined conditions described in ORS 656.005 (7), the insurer or the
self-insured employer shall cause to be provided only those medical services
directed to medical conditions caused in major part by the injury.
(b) Compensable medical
services shall include medical, surgical, hospital, nursing, ambulances and
other related services, and drugs, medicine, crutches and prosthetic
appliances, braces and supports and where necessary, physical restorative
services. A pharmacist or dispensing physician shall dispense generic drugs to
the worker in accordance with ORS 689.515. The duty to provide such medical
services continues for the life of the worker.
(c) Notwithstanding any
other provision of this chapter, medical services after the worker’s condition
is medically stationary are not compensable except for the following:
(A) Services provided to
a worker who has been determined to be permanently and totally disabled.
(B) Prescription
medications.
(C) Services necessary
to administer prescription medication or monitor the administration of
prescription medication.
(D) Prosthetic devices,
braces and supports.
(E) Services necessary
to monitor the status, replacement or repair of prosthetic devices, braces and
supports.
(F) Services provided
pursuant to an accepted claim for aggravation under ORS 656.273.
(G) Services provided
pursuant to an order issued under ORS 656.278.
(H) Services that are necessary to diagnose the worker’s condition.
(I)
Life-preserving modalities similar to insulin therapy, dialysis and
transfusions.
(J) With the approval of
the insurer or self-insured employer, palliative care that the worker’s
attending physician referred to in ORS 656.005 (12)(b)(A) prescribes and that
is necessary to enable the worker to continue current employment or a
vocational training program. If the insurer or self-insured employer does not
approve, the attending physician or the worker may request approval from the
Director of the Department of Consumer and Business Services for such
treatment. The director may order a medical review by a physician or panel of
physicians pursuant to ORS 656.327 (3) to aid in the review of such treatment.
The decision of the director is subject to review under ORS 656.704.
(K) With the approval of
the director, curative care arising from a generally recognized,
nonexperimental advance in medical science since the worker’s claim was closed
that is highly likely to improve the worker’s condition and that is otherwise
justified by the circumstances of the claim. The decision of the director is
subject to review under ORS 656.704.
(L) Curative care
provided to a worker to stabilize a temporary and acute waxing and waning of
symptoms of the worker’s condition.
(d) When the medically
stationary date in a disabling claim is established by the insurer or
self-insured employer and is not based on the findings of the attending
physician, the insurer or self-insured employer is responsible for
reimbursement to affected medical service providers for otherwise compensable
services rendered until the insurer or self-insured employer provides written
notice to the attending physician of the worker’s medically stationary status.
(e) Except for services
provided under a managed care contract, out-of-pocket expense reimbursement to
receive care from the attending physician or nurse practitioner authorized to
provide compensable medical services under this section shall not exceed the
amount required to seek care from an appropriate nurse practitioner or
attending physician of the same specialty who is in a medical community
geographically closer to the worker’s home. For the purposes of this paragraph,
all physicians and nurse practitioners within a metropolitan area are
considered to be part of the same medical community.
(2)(a) The worker may
choose an attending doctor, physician or nurse practitioner within the State of
(b) A medical service
provider who is not a member of a managed care organization is subject to the
following provisions:
(A) A medical service
provider who is not qualified to be an attending physician may provide
compensable medical service to an injured worker for a period of 30 days from
the date of [injury or occupational
disease] the first visit on the initial claim or for 12 visits,
whichever first occurs, without the authorization of an attending physician.
Thereafter, medical service provided to an injured worker without the written
authorization of an attending physician is not compensable.
(B) A medical service
provider who is not an attending physician cannot authorize the payment of
temporary disability compensation. A medical service provider qualified to
serve as an attending physician under ORS 656.005 (12)(b)(B) may authorize the
payment of temporary disability compensation for a period not to exceed 30 days
from the date of the first visit on the initial claim.
(C) Except as otherwise provided in this
chapter, only [the] a physician
qualified to serve as an attending physician under ORS 656.005
(12)(b)(A) who is serving as the attending physician at the time of claim
closure may make findings regarding the worker’s impairment for the purpose of
evaluating the worker’s disability.
[(C)] (D) Notwithstanding subparagraphs (A) and (B) of this
paragraph, a nurse practitioner licensed under ORS 678.375 to 678.390 may:
(i) Provide compensable
medical services for 90 days from the date of the first visit on the claim;
(ii) Authorize the
payment of temporary disability benefits for a period not to exceed 60 days
from the date of the first visit on the initial claim; and
(iii) When an injured
worker treating with a nurse practitioner authorized to provide compensable
services under this section becomes medically stationary within the 90-day
period in which the nurse practitioner is authorized to treat the injured
worker, shall refer the injured worker to a physician qualified to be an
attending physician as defined in ORS [656.005]
656.005 (12)(b)(A) for the purpose of making findings regarding the
worker’s impairment for the purpose of evaluating the worker’s disability. If a
worker returns to the nurse practitioner after initial claim closure for
evaluation of a possible worsening of the worker’s condition, the nurse
practitioner shall refer the worker to an attending physician and the insurer
shall compensate the nurse practitioner for the examination performed.
(3) Notwithstanding any
other provision of this chapter, the director, by rule, upon the advice of the
committee created by ORS 656.794 and upon the advice of the professional
licensing boards of practitioners affected by the rule, may exclude from
compensability any medical treatment the director finds to be unscientific,
unproven, outmoded or experimental. The decision of the director is subject to
review under ORS 656.704.
(4) Notwithstanding
subsection (2)(a) of this section, when a self-insured employer or the insurer
of an employer contracts with a managed care organization certified pursuant to
ORS 656.260 for medical services required by this chapter to be provided to
injured workers:
(a) Those workers who
are subject to the contract shall receive medical services in the manner
prescribed in the contract. Workers subject to the contract include those who
are receiving medical treatment for an accepted compensable injury or
occupational disease, regardless of the date of injury or medically stationary
status, on or after the effective date of the contract. If the managed care
organization determines that the change in provider would be medically
detrimental to the worker, the worker shall not become subject to the contract
until the worker is found to be medically stationary, the worker changes
physicians or nurse practitioners, or the managed care organization determines
that the change in provider is no longer medically detrimental, whichever event
first occurs. A worker becomes subject to the contract upon the worker’s
receipt of actual notice of the worker’s enrollment in the managed care
organization, or upon the third day after the notice was sent by regular mail
by the insurer or self-insured employer, whichever event first occurs. A worker
shall not be subject to a contract after it expires or terminates without
renewal. A worker may continue to treat with the attending physician or nurse
practitioner authorized to provide compensable medical services under this
section under an expired or terminated managed care organization contract if
the physician or nurse practitioner agrees to comply with the rules, terms and
conditions regarding services performed under any subsequent managed care
organization contract to which the worker is subject. A worker shall not be
subject to a contract if the worker’s primary residence is more than 100 miles
outside the managed care organization’s certified geographical area. Each such
contract must comply with the certification standards provided in ORS 656.260.
However, a worker may receive immediate emergency medical treatment that is
compensable from a medical service provider who is not a member of the managed
care organization. Insurers or self-insured employers who contract with a
managed care organization for medical services shall give notice to the workers
of eligible medical service providers and such other information regarding the
contract and manner of receiving medical services as the director may
prescribe. Notwithstanding any provision of law or rule to the contrary, a
worker of a noncomplying employer is considered to be subject to a contract
between the State Accident Insurance Fund Corporation as a processing agent or
the assigned claims agent and a managed care organization.
(b)(A) For initial or
aggravation claims filed after June 7, 1995, the insurer or self-insured
employer may require an injured worker, on a case-by-case basis, immediately to
receive medical services from the managed care organization.
(B) If the insurer or
self-insured employer gives notice that the worker is required to receive
treatment from the managed care organization, the insurer or self-insured
employer must guarantee that any reasonable and necessary services so received,
that are not otherwise covered by health insurance, will be paid as provided in
ORS 656.248, even if the claim is denied, until the worker receives actual
notice of the denial or until three days after the denial is mailed, whichever
event first occurs. The worker may elect to receive care from a primary care
physician or nurse practitioner authorized to provide compensable medical
services under this section who agrees to the conditions of ORS 656.260 (4)(g).
However, guarantee of payment is not required by the insurer or self-insured
employer if this election is made.
(C) If the insurer or
self-insured employer does not give notice that the worker is required to
receive treatment from the managed care organization, the insurer or
self-insured employer is under no obligation to pay for services received by the
worker unless the claim is later accepted.
(D) If the claim is
denied, the worker may receive medical services after the date of denial from
sources other than the managed care organization until the denial is reversed.
Reasonable and necessary medical services received from sources other than the
managed care organization after the date of claim denial must be paid as
provided in ORS 656.248 by the insurer or self-insured employer if the claim is
finally determined to be compensable.
[(5) Notwithstanding any other provision of this chapter, the director,
by rule, shall authorize physician assistants licensed by the Board of Medical
Examiners for the State of Oregon who practice in areas served by Type A or
Type B rural hospitals described in ORS 442.470 to authorize the payment of
temporary disability compensation for injured workers for a period not to
exceed 30 days from the date of the first visit on the claim. In addition, the
director, by rule, may authorize such assistants who practice in areas served
by a Type C rural hospital described in ORS 442.470 to authorize such payment.]
[(6)] (5) A nurse practitioner licensed under ORS 678.375 to
678.390 who is not a member of the managed care organization, is authorized to
provide the same level of services as a primary care physician as established
by ORS 656.260 (4), if at the time the worker is enrolled in the managed care
organization, the nurse practitioner maintains the worker’s medical records and
with whom the worker has a documented history of treatment, if that nurse
practitioner agrees to refer the worker to the managed care organization for
any specialized treatment, including physical therapy, to be furnished by
another provider that the worker may require and if that nurse practitioner
agrees to comply with all the rules, terms and conditions regarding services
performed by the managed care organization.
[(7)] (6) Subject to the provisions of ORS 656.704, if a
claim for medical services is disapproved, the injured worker, insurer or
self-insured employer may request administrative review by the director
pursuant to ORS 656.260 or 656.327.
SECTION 4. ORS 656.245, as amended by section 4, chapter
811, Oregon Laws 2003, and section 4, chapter 26, Oregon Laws 2005, is amended
to read:
656.245. (1)(a) For every compensable injury, the insurer or the
self-insured employer shall cause to be provided medical services for
conditions caused in material part by the injury for such period as the nature
of the injury or the process of the recovery requires, subject to the
limitations in ORS 656.225, including such medical services as may be required
after a determination of permanent disability. In addition, for consequential
and combined conditions described in ORS 656.005 (7), the insurer or the self-insured
employer shall cause to be provided only those medical services directed to
medical conditions caused in major part by the injury.
(b) Compensable medical
services shall include medical, surgical, hospital, nursing, ambulances and
other related services, and drugs, medicine, crutches and prosthetic
appliances, braces and supports and where necessary, physical restorative
services. A pharmacist or dispensing physician shall dispense generic drugs to
the worker in accordance with ORS 689.515. The duty to provide such medical
services continues for the life of the worker.
(c) Notwithstanding any
other provision of this chapter, medical services after the worker’s condition
is medically stationary are not compensable except for the following:
(A) Services provided to
a worker who has been determined to be permanently and totally disabled.
(B) Prescription
medications.
(C) Services necessary
to administer prescription medication or monitor the administration of
prescription medication.
(D) Prosthetic devices,
braces and supports.
(E) Services necessary
to monitor the status, replacement or repair of prosthetic devices, braces and
supports.
(F) Services provided
pursuant to an accepted claim for aggravation under ORS 656.273.
(G) Services provided
pursuant to an order issued under ORS 656.278.
(H) Services that are necessary to diagnose the worker’s condition.
(I)
Life-preserving modalities similar to insulin therapy, dialysis and
transfusions.
(J) With the approval of
the insurer or self-insured employer, palliative care that the worker’s
attending physician referred to in ORS 656.005 (12)(b)(A) prescribes and that
is necessary to enable the worker to continue current employment or a
vocational training program. If the insurer or self-insured employer does not
approve, the attending physician or the worker may request approval from the
Director of the Department of Consumer and Business Services for such
treatment. The director may order a medical review by a physician or panel of
physicians pursuant to ORS 656.327 (3) to aid in the review of such treatment.
The decision of the director is subject to review under ORS 656.704.
(K) With the approval of
the director, curative care arising from a generally recognized,
nonexperimental advance in medical science since the worker’s claim was closed
that is highly likely to improve the worker’s condition and that is otherwise
justified by the circumstances of the claim. The decision of the director is
subject to review under ORS 656.704.
(L) Curative care provided
to a worker to stabilize a temporary and acute waxing and waning of symptoms of
the worker’s condition.
(d) When the medically
stationary date in a disabling claim is established by the insurer or
self-insured employer and is not based on the findings of the attending
physician, the insurer or self-insured employer is responsible for
reimbursement to affected medical service providers for otherwise compensable
services rendered until the insurer or self-insured employer provides written
notice to the attending physician of the worker’s medically stationary status.
(e) Except for services
provided under a managed care contract, out-of-pocket expense reimbursement to
receive care from the attending physician shall not exceed the amount required
to seek care from an appropriate attending physician of the same specialty who
is in a medical community geographically closer to the worker’s home. For the
purposes of this paragraph, all physicians within a metropolitan area are
considered to be part of the same medical community.
(2)(a) The worker may
choose an attending doctor or physician within the State of
(b) A medical service
provider who is not a member of a managed care organization is subject to the
following provisions:
(A) A medical service
provider who is not qualified to be an attending physician may provide
compensable medical service to an injured worker for a period of 30 days from
the date of injury or occupational disease or for 12 visits, whichever first
occurs, without the authorization of an attending physician. Thereafter,
medical service provided to an injured worker without the written authorization
of an attending physician is not compensable.
(B) A medical service
provider who is not an attending physician cannot authorize the payment of
temporary disability compensation. A medical service provider qualified to
serve as an attending physician under ORS 656.005 (12)(b)(B) may authorize the
payment of temporary disability compensation for a period not to exceed 30 days
from the date of the first visit on the initial claim.
(C) Except as otherwise provided in this
chapter, only [the] a physician
qualified to serve as an attending physician under ORS 656.005
(12)(b)(A) who is serving as the attending physician at the time of claim
closure may make findings regarding the worker’s impairment for the purpose of
evaluating the worker’s disability.
(3) Notwithstanding any
other provision of this chapter, the director, by rule, upon the advice of the
committee created by ORS 656.794 and upon the advice of the professional
licensing boards of practitioners affected by the rule, may exclude from
compensability any medical treatment the director finds to be unscientific,
unproven, outmoded or experimental. The decision of the director is subject to
review under ORS 656.704.
(4) Notwithstanding
subsection (2)(a) of this section, when a self-insured employer or the insurer
of an employer contracts with a managed care organization certified pursuant to
ORS 656.260 for medical services required by this chapter to be provided to
injured workers:
(a) Those workers who
are subject to the contract shall receive medical services in the manner
prescribed in the contract. Workers subject to the contract include those who
are receiving medical treatment for an accepted compensable injury or occupational
disease, regardless of the date of injury or medically stationary status, on or
after the effective date of the contract. If the managed care organization
determines that the change in provider would be medically detrimental to the
worker, the worker shall not become subject to the contract until the worker is
found to be medically stationary, the worker changes physicians or the managed
care organization determines that the change in provider is no longer medically
detrimental, whichever event first occurs. A worker becomes subject to the
contract upon the worker’s receipt of actual notice of the worker’s enrollment
in the managed care organization, or upon the third day after the notice was
sent by regular mail by the insurer or self-insured employer, whichever event
first occurs. A worker shall not be subject to a contract after it expires or
terminates without renewal. A worker may continue to treat with the attending
physician under an expired or terminated managed care organization contract if the
physician agrees to comply with the rules, terms and conditions regarding
services performed under any subsequent managed care organization contract to
which the worker is subject. A worker shall not be subject to a contract if the
worker’s primary residence is more than 100 miles outside the managed care
organization’s certified geographical area. Each such contract must comply with
the certification standards provided in ORS 656.260. However, a worker may
receive immediate emergency medical treatment that is compensable from a
medical service provider who is not a member of the managed care organization.
Insurers or self-insured employers who contract with a managed care
organization for medical services shall give notice to the workers of eligible
medical service providers and such other information regarding the contract and
manner of receiving medical services as the director may prescribe.
Notwithstanding any provision of law or rule to the contrary, a worker of a
noncomplying employer is considered to be subject to a contract between the
State Accident Insurance Fund Corporation as a processing agent or the assigned
claims agent and a managed care organization.
(b)(A) For initial or
aggravation claims filed after June 7, 1995, the insurer or self-insured
employer may require an injured worker, on a case-by-case basis, immediately to
receive medical services from the managed care organization.
(B) If the insurer or
self-insured employer gives notice that the worker is required to receive
treatment from the managed care organization, the insurer or self-insured
employer must guarantee that any reasonable and necessary services so received,
that are not otherwise covered by health insurance, will be paid as provided in
ORS 656.248, even if the claim is denied, until the worker receives actual
notice of the denial or until three days after the denial is mailed, whichever
event first occurs. The worker may elect to receive care from a primary care
physician who agrees to the conditions of ORS 656.260 (4)(g).
However, guarantee of payment is not required by the insurer or self-insured
employer if this election is made.
(C) If the insurer or
self-insured employer does not give notice that the worker is required to
receive treatment from the managed care organization, the insurer or
self-insured employer is under no obligation to pay for services received by
the worker unless the claim is later accepted.
(D) If the claim is
denied, the worker may receive medical services after the date of denial from
sources other than the managed care organization until the denial is reversed.
Reasonable and necessary medical services received from sources other than the
managed care organization after the date of claim denial must be paid as
provided in ORS 656.248 by the insurer or self-insured employer if the claim is
finally determined to be compensable.
(5) Notwithstanding any
other provision of this chapter, the director, by rule, shall authorize nurse
practitioners certified by the Oregon State Board of Nursing [and physician assistants licensed by the
Board of Medical Examiners for the State of Oregon] who practice in areas
served by Type A or Type B rural hospitals described in ORS 442.470 to
authorize the payment of temporary disability compensation for injured workers
for a period not to exceed 30 days from the date of the first visit on the
claim. In addition, the director, by rule, may authorize such practitioners [and assistants] who practice in areas
served by a Type C rural hospital described in ORS 442.470 to authorize such
payment.
(6) Subject to the
provisions of ORS 656.704, if a claim for medical services is disapproved, the
injured worker, insurer or self-insured employer may request administrative
review by the director pursuant to ORS 656.260 or 656.327.
SECTION 5. ORS 656.262, as amended by section 10, chapter
811, Oregon Laws 2003, section 10, chapter 26, Oregon Laws 2005, section 2,
chapter 511, Oregon Laws 2005, and section 3, chapter 588, Oregon Laws 2005, is
amended to read:
656.262. (1) Processing
of claims and providing compensation for a worker shall be the responsibility
of the insurer or self-insured employer. All employers shall assist their
insurers in processing claims as required in this chapter.
(2) The compensation due
under this chapter shall be paid periodically, promptly and directly to the
person entitled thereto upon the employer’s receiving notice or knowledge of a
claim, except where the right to compensation is denied by the insurer or
self-insured employer.
(3)(a) Employers shall,
immediately and not later than five days after notice or knowledge of any
claims or accidents which may result in a compensable injury claim, report the
same to their insurer. The report shall include:
(A) The date, time,
cause and nature of the accident and injuries.
(B) Whether the accident
arose out of and in the course of employment.
(C) Whether the employer
recommends or opposes acceptance of the claim, and the reasons therefor.
(D) The name and address
of any health insurance provider for the injured worker.
(E) Any other details
the insurer may require.
(b) Failure to so report
subjects the offending employer to a charge for reimbursing the insurer for any
penalty the insurer is required to pay under subsection (11) of this section
because of such failure. As used in this subsection, “health insurance” has the
meaning for that term provided in ORS 731.162.
(4)(a) The first
installment of temporary disability compensation shall be paid no later than
the 14th day after the subject employer has notice or knowledge of the claim,
if the attending physician authorizes the payment of temporary disability
compensation. Thereafter, temporary disability compensation shall be paid at
least once each two weeks, except where the Director of the Department of
Consumer and Business Services determines that payment in installments should
be made at some other interval. The director may by rule convert monthly
benefit schedules to weekly or other periodic schedules.
(b) Notwithstanding any
other provision of this chapter, if a self-insured employer pays to an injured
worker who becomes disabled the same wage at the same pay interval that the
worker received at the time of injury, such payment shall be deemed timely
payment of temporary disability payments pursuant to ORS 656.210 and 656.212
during the time the wage payments are made.
(c) Notwithstanding any
other provision of this chapter, when the holder of a public office is injured
in the course and scope of that public office, full official salary paid to the
holder of that public office shall be deemed timely payment of temporary
disability payments pursuant to ORS 656.210 and 656.212 during the time the
wage payments are made. As used in this subsection, “public office” has the
meaning for that term provided in ORS 260.005.
(d) Temporary disability
compensation is not due and payable for any period of time for which the
insurer or self-insured employer has requested from the worker’s attending
physician verification of the worker’s inability to work resulting from the
claimed injury or disease and the physician cannot verify the worker’s
inability to work, unless the worker has been unable to receive treatment for
reasons beyond the worker’s control.
(e) If a worker fails to
appear at an appointment with the worker’s attending physician, the insurer or
self-insured employer shall notify the worker by certified mail that temporary
disability benefits may be suspended after the worker fails to appear at a
rescheduled appointment. If the worker fails to appear at a rescheduled
appointment, the insurer or self-insured employer may suspend payment of
temporary disability benefits to the worker until the worker appears at a
subsequent rescheduled appointment.
(f) If the insurer or
self-insured employer has requested and failed to receive from the worker’s
attending physician verification of the worker’s inability to work resulting
from the claimed injury or disease, medical services provided by the attending
physician are not compensable until the attending physician submits such
verification.
(g) Temporary disability
compensation is not due and payable pursuant to ORS 656.268 after the worker’s
attending physician ceases to authorize temporary disability or for any period
of time not authorized by the attending physician. No authorization of
temporary disability compensation by the attending physician under ORS 656.268
shall be effective to retroactively authorize the payment of temporary
disability more than 14 days prior to its issuance.
(h) The worker’s disability
may be authorized only by a person described in ORS 656.005 (12)(b)(B) or [656.245
(5)] 656.245 for the period of time permitted by those sections. The
insurer or self-insured employer may unilaterally suspend payment of temporary
disability benefits to the worker at the expiration of the period until
temporary disability is reauthorized by an attending physician.
(i) The insurer or
self-insured employer may unilaterally suspend payment of all compensation to a
worker enrolled in a managed care organization if the worker continues to seek
care from an attending physician that is not authorized by the managed care
organization more than seven days after the mailing of notice by the insurer or
self-insured employer.
(5) Payment of
compensation under subsection (4) of this section or payment, in amounts not to
exceed $1,500 per claim, for medical services for nondisabling claims, may be
made by the subject employer if the employer so chooses. The making of such
payments does not constitute a waiver or transfer of the insurer’s duty to
determine entitlement to benefits. If the employer chooses to make such
payment, the employer shall report the injury to the insurer in the same manner
that other injuries are reported. However, an insurer shall not modify an
employer’s experience rating or otherwise make charges against the employer for
any medical expenses paid by the employer pursuant to this subsection.
(6)(a) Written notice of
acceptance or denial of the claim shall be furnished to the claimant by the
insurer or self-insured employer within 60 days after the employer has notice
or knowledge of the claim. Once the claim is accepted, the insurer or
self-insured employer shall not revoke acceptance except as provided in this
section. The insurer or self-insured employer may revoke acceptance and issue a
denial at any time when the denial is for fraud, misrepresentation or other
illegal activity by the worker. If the worker requests a hearing on any
revocation of acceptance and denial alleging fraud, misrepresentation or other
illegal activity, the insurer or self-insured employer has the burden of
proving, by a preponderance of the evidence, such fraud, misrepresentation or
other illegal activity. Upon such proof, the worker then has the burden of
proving, by a preponderance of the evidence, the compensability of the claim.
If the insurer or self-insured employer accepts a claim in good faith, in a
case not involving fraud, misrepresentation or other illegal activity by the
worker, and later obtains evidence that the claim is not compensable or
evidence that the insurer or self-insured employer is not responsible for the
claim, the insurer or self-insured employer may revoke the claim acceptance and
issue a formal notice of claim denial, if such revocation of acceptance and
denial is issued no later than two years after the date of the initial
acceptance. If the worker requests a hearing on such revocation of acceptance
and denial, the insurer or self-insured employer must prove, by a preponderance
of the evidence, that the claim is not compensable or that the insurer or
self-insured employer is not responsible for the claim. Notwithstanding any
other provision of this chapter, if a denial of a previously accepted claim is
set aside by an Administrative Law Judge, the Workers’ Compensation Board or
the court, temporary total disability benefits are payable from the date any
such benefits were terminated under the denial. Except as provided in ORS
656.247, pending acceptance or denial of a claim, compensation payable to a
claimant does not include the costs of medical benefits or burial expenses. The
insurer shall also furnish the employer a copy of the notice of acceptance.
(b) The notice of
acceptance shall:
(A) Specify what
conditions are compensable.
(B) Advise the claimant
whether the claim is considered disabling or nondisabling.
(C) Inform the claimant
of the Expedited Claim Service and of the hearing and aggravation rights
concerning nondisabling injuries, including the right to object to a decision
that the injury of the claimant is nondisabling by requesting reclassification
pursuant to ORS 656.277.
(D) Inform the claimant
of employment reinstatement rights and responsibilities under ORS chapter 659A.
(E) Inform the claimant
of assistance available to employers and workers from the Reemployment
Assistance Program under ORS 656.622.
(F) Be modified by the
insurer or self-insured employer from time to time as medical or other
information changes a previously issued notice of acceptance.
(c) An insurer’s or
self-insured employer’s acceptance of a combined or consequential condition
under ORS 656.005 (7), whether voluntary or as a result of a judgment or order,
shall not preclude the insurer or self-insured employer from later denying the
combined or consequential condition if the otherwise compensable injury ceases
to be the major contributing cause of the combined or consequential condition.
(d) An
injured worker who believes that a condition has been incorrectly omitted from
a notice of acceptance, or that the notice is otherwise deficient, first
must communicate in writing to the insurer or self-insured employer the worker’s
objections to the notice pursuant to ORS 656.267. The insurer or self-insured
employer has 60 days from receipt of the communication from the worker to
revise the notice or to make other written clarification in response. A worker
who fails to comply with the communication requirements of this paragraph or
ORS 656.267 may not allege at any hearing or other proceeding on the claim a de
facto denial of a condition based on information in the notice of acceptance
from the insurer or self-insured employer. Notwithstanding any other provision
of this chapter, the worker may initiate objection to the notice of acceptance
at any time.
(7)(a) After claim
acceptance, written notice of acceptance or denial of claims for aggravation or
new medical or omitted condition claims properly initiated pursuant to ORS
656.267 shall be furnished to the claimant by the insurer or self-insured
employer within 60 days after the insurer or self-insured employer receives
written notice of such claims. A worker who fails to comply with the
communication requirements of subsection (6) of this section or ORS 656.267 may
not allege at any hearing or other proceeding on the claim a de facto denial of
a condition based on information in the notice of acceptance from the insurer
or self-insured employer.
(b) Once a worker’s
claim has been accepted, the insurer or self-insured employer must issue a
written denial to the worker when the accepted injury is no longer the major
contributing cause of the worker’s combined condition before the claim may be
closed.
(c) When an insurer or
self-insured employer determines that the claim qualifies for claim closure,
the insurer or self-insured employer shall issue at claim closure an updated
notice of acceptance that specifies which conditions are compensable. The
procedures specified in subsection (6)(d) of this
section apply to this notice. Any objection to the updated notice or appeal of
denied conditions shall not delay claim closure pursuant to ORS 656.268. If a
condition is found compensable after claim closure, the insurer or self-insured
employer shall reopen the claim for processing regarding that condition.
(8) The assigned claims
agent in processing claims under ORS 656.054 shall send notice of acceptance or
denial to the noncomplying employer.
(9) If an insurer or any
other duly authorized agent of the employer for such purpose, on record with
the Director of the Department of Consumer and Business Services denies a claim
for compensation, written notice of such denial, stating the reason for the
denial, and informing the worker of the Expedited Claim Service and of hearing
rights under ORS 656.283, shall be given to the claimant. A copy of the notice
of denial shall be mailed to the director and to the employer by the insurer.
The worker may request a hearing pursuant to ORS 656.319.
(10) Merely paying or
providing compensation shall not be considered acceptance of a claim or an
admission of liability, nor shall mere acceptance of such compensation be
considered a waiver of the right to question the amount thereof. Payment of
permanent disability benefits pursuant to a notice of closure, reconsideration
order or litigation order, or the failure to appeal or seek review of such an
order or notice of closure, shall not preclude an
insurer or self-insured employer from subsequently contesting the
compensability of the condition rated therein, unless the condition has been
formally accepted.
(11)(a) If the insurer
or self-insured employer unreasonably delays or unreasonably refuses to pay
compensation, or unreasonably delays acceptance or denial of a claim, the
insurer or self-insured employer shall be liable for an additional amount up to
25 percent of the amounts then due plus any attorney fees assessed under this
section. The fees assessed by the director, an Administrative Law Judge, the
board or the court under this section shall be proportionate to the benefit to
the injured worker. The board shall adopt rules for establishing the amount of
the attorney fee, giving primary consideration to the results achieved and to
the time devoted to the case. An attorney fee awarded pursuant to this
subsection may not exceed $2,000 absent a showing of extraordinary
circumstances. Notwithstanding any other provision of this chapter, the
director shall have exclusive jurisdiction over proceedings regarding solely
the assessment and payment of the additional amount and attorney fees described
in this subsection. The action of the director and the review of the action
taken by the director shall be subject to review under ORS 656.704.
(b) When the director
does not have exclusive jurisdiction over proceedings regarding the assessment
and payment of the additional amount and attorney fees described in this
subsection, the provisions of this subsection shall apply in the other
proceeding.
(12) The insurer may
authorize an employer to pay compensation to injured workers and shall reimburse
employers for compensation so paid.
(13) Injured workers
have the duty to cooperate and assist the insurer or self-insured employer in
the investigation of claims for compensation. Injured workers shall submit to
and shall fully cooperate with personal and telephonic interviews and other
formal or informal information gathering techniques. Injured workers who are
represented by an attorney shall have the right to have the attorney present
during any personal or telephonic interview or deposition. However, if the
attorney is not willing or available to participate in an interview at a time
reasonably chosen by the insurer or self-insured employer within 14 days of the
request for interview and the insurer or self-insured employer has cause to
believe that the attorney’s unwillingness or unavailability is unreasonable and
is preventing the worker from complying within 14 days of the request for
interview, the insurer or self-insured employer shall notify the director. If
the director determines that the attorney’s unwillingness or unavailability is
unreasonable, the director shall assess a civil penalty against the attorney of
not more than $1,000.
(14) If the director
finds that a worker fails to reasonably cooperate with an investigation
involving an initial claim to establish a compensable injury or an aggravation
claim to reopen the claim for a worsened condition, the director shall suspend
all or part of the payment of compensation after notice to the worker. If the
worker does not cooperate for an additional 30 days after the notice, the
insurer or self-insured employer may deny the claim because of the worker’s
failure to cooperate. The obligation of the insurer or self-insured employer to
accept or deny the claim within 60 days is suspended during the time of the
worker’s noncooperation. After such a denial, the worker shall not be granted a
hearing or other proceeding under this chapter on the merits of the claim
unless the worker first requests and establishes at an expedited hearing under
ORS 656.291 that the worker fully and completely cooperated with the
investigation, that the worker failed to cooperate for reasons beyond the
worker’s control or that the investigative demands were unreasonable. If the
Administrative Law Judge finds that the worker has not fully cooperated, the
Administrative Law Judge shall affirm the denial, and the worker’s claim for
injury shall remain denied. If the Administrative Law Judge finds that the
worker has cooperated, or that the investigative demands were unreasonable, the
Administrative Law Judge shall set aside the denial, order the reinstatement of
interim compensation if appropriate and remand the claim to the insurer or
self-insured employer to accept or deny the claim.
(15) In accordance with
ORS 656.283 (4), the Administrative Law Judge assigned a request for hearing
for a claim for compensation involving more than one potentially responsible
employer or insurer may specify what is required of an injured worker to
reasonably cooperate with the investigation of the claim as required by
subsection (13) of this section.
SECTION 6. Section 7 of this 2007 Act is added to and
made a part of ORS chapter 656.
SECTION 7. (1) The Director of the Department of
Consumer and Business Services shall develop and make available to medical
service providers informational materials about the workers’ compensation
system including, but not limited to, the management of indemnity claims,
standards for the authorization of temporary disability benefits, return to
work responsibilities and programs, and workers’ compensation rules and
procedures for medical service providers.
(2) Prior to providing
compensable medical services or authorizing temporary disability benefits under
ORS 656.245, a medical service provider must certify, in a form acceptable to
the director, that the medical service provider has reviewed the materials developed under this section.
(3) As used in this
section, “medical service provider” means a:
(a) Doctor or physician
licensed by the State Board of Chiropractic Examiners for the State of Oregon
under ORS chapter 684 or a similarly licensed doctor or physician in any
country or in any state, territory or possession of the United States;
(b) Podiatric physician
and surgeon licensed by the Board of Medical Examiners for the State of Oregon
under ORS 677.805 to 677.840 or a similarly licensed doctor or physician in any
country or in any state, territory or possession of the United States;
(c) Physician assistant
licensed by the Board of Medical Examiners for the State of Oregon in
accordance with ORS 677.505 to 677.525 or a similarly licensed physician
assistant in any country or in any state, territory or possession of the United
States; or
(d) Doctor of
naturopathy or naturopathic physician licensed by the Board of Naturopathic
Examiners licensed under ORS chapter 685 or a similarly licensed doctor or
physician in any country or in any state, territory or possession of the United
States.
SECTION 8. The amendments to ORS 656.005, 656.245 and
656.262 by sections 1 to 5 of this 2007 Act and section 7 of this 2007 Act
become operative on January 2, 2008.
SECTION 9. The Director of the Department of Consumer
and Business Services may take any action necessary before the operative date
of the amendments to ORS 656.005, 656.245 and 656.262 by sections 1 to 5 of
this 2007 Act and of section 7 of this 2007 Act to enable the director to
exercise, on and after the operative date of those sections, all the duties,
functions and powers conferred on the director by this 2007 Act.
SECTION 10. This 2007 Act being necessary for the
immediate preservation of the public peace, health and safety, an emergency is
declared to exist, and this 2007 Act takes effect on its passage.
Approved by the Governor June 1, 2007
Filed in the office of Secretary of State June 1, 2007
Effective date June 1, 2007
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