Chapter 270
AN ACT
HB 2218
Relating to workers’ compensation; amending ORS 656.230, 656.245,
656.268, 656.304, 656.726 and 656.745.
Be It Enacted by the People of
the State of
SECTION 1. ORS 656.230 is amended to read:
656.230. (1) [Where] When a worker has been
awarded compensation for permanent partial disability, [and the award has become final by operation of law or waiver of the
right to appeal its adequacy, the insurer shall upon the worker’s application
pay all or any part of the remaining unpaid award to the worker in a lump sum,
unless the insurer disagrees with payment, in which case the insurer, within 14
days, will refer the matter to the Director of the Department of Consumer and
Business Services to determine whether all or part of the lump sum should be
paid. The director’s decision shall be final and not subject to review. Any
remaining balance shall be paid pursuant to ORS 656.216.] and the worker requests payment of all or part of
the award in a lump sum payment, the insurer shall make the payment requested
unless the:
(a) Worker has not
waived the right to appeal the adequacy of the award;
(b) Award has not become
final by operation of law;
(c) Payment of
compensation has been stayed pending a request for hearing or review under ORS
656.313; or
(d) Worker is enrolled
and actively engaged in training according to rules adopted pursuant to ORS
656.340 and 656.726.
(2) Any unpaid balance
of the award not paid in a lump sum payment shall be paid pursuant to ORS
656.216.
[(2)] (3) In all cases where the
award for permanent partial disability does not exceed $6,000, the insurer or
the self-insured employer shall pay all of the award to the worker in a lump
sum.
SECTION 2. 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 or for 12 visits, whichever first
occurs, without the authorization of an attending physician. Thereafter,
medical service provided to an injured worker without the written authorization
of an attending physician is not compensable.
(B) A medical service
provider who is not an attending physician cannot authorize the payment of
temporary disability compensation. Except as otherwise provided
in this chapter, only the attending physician at the time of claim closure may
make findings regarding the worker’s impairment for the purpose of evaluating
the worker’s disability.
(C) Notwithstanding
subparagraphs (A) and (B) of this paragraph, a nurse practitioner licensed
under ORS 678.375 to 678.390 may:
(i) Provide compensable
medical services for 90 days from the date of the first visit on the claim;
(ii) Authorize the
payment of temporary disability benefits for a period not to exceed 60 days
from the date of the first visit on the initial claim; and
(iii) When an injured
worker treating with a nurse practitioner authorized to provide compensable
services under this section becomes medically stationary within the 90-day
period in which the nurse practitioner is authorized to treat the injured
worker, shall refer the injured worker to a physician qualified to be an
attending physician as defined in ORS 656.005 for the purpose of making
findings regarding the worker’s impairment for the purpose of evaluating the
worker’s disability. If a worker returns to the nurse practitioner after
initial claim closure for evaluation of a possible worsening of the worker’s
condition, the nurse practitioner shall refer the worker to an attending
physician and the insurer shall compensate the nurse practitioner for the
examination performed.
(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) A nurse practitioner
licensed under ORS 678.375 to 678.390 who is not a member of the managed care
organization, is authorized to provide the same level of services as a primary
care physician as established by ORS 656.260 (4), if at the time the worker is
enrolled in the managed care organization, the nurse practitioner maintains the
worker’s medical records and with whom the worker has a documented history of
treatment, if that nurse practitioner agrees to refer the worker to the managed
care organization for any specialized treatment, including physical therapy, to
be furnished by another provider that the worker may require and if that nurse
practitioner agrees to comply with all the rules, terms and conditions
regarding services performed by the managed care organization.
(7) Subject to the
provisions of ORS 656.704, if a claim for medical services is disapproved, the
injured worker, insurer or self-insured employer may request administrative
review by the director pursuant to ORS 656.260 or 656.327.
SECTION 3. 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. Except as otherwise
provided in this chapter, only the attending physician at the time of claim
closure may make findings regarding the worker’s impairment for the purpose of
evaluating the worker’s disability.
(3) Notwithstanding any
other provision of this chapter, the director, by rule, upon the advice of the
committee created by ORS 656.794 and upon the advice of the professional
licensing boards of practitioners affected by the rule, may exclude from
compensability any medical treatment the director finds to be unscientific,
unproven, outmoded or experimental. The decision of the director is subject to
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 4. 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]
a determination order issued by the director that addresses the extent of the
worker’s permanent disability that is not based on the standards adopted
pursuant to ORS 656.726 (4)(f), 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 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 5. 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] a determination
order issued by the director that addresses the extent of the worker’s
permanent disability that is not based on the standards adopted pursuant to ORS
656.726 (4)(f), 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 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 6. ORS 656.304 is amended to read:
656.304. A claimant may
accept and cash any check given in payment of any award or compensation without
affecting the right to a hearing, except that the right of hearing on any award
shall be waived by acceptance of a lump sum award by a claimant where such lump
sum award was granted [on] as a
result of the claimant’s own [application]
request under ORS 656.230. This section shall not be construed as a
waiver of the necessity of complying with ORS 656.283 to 656.298.
SECTION 7. 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. 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], in the order on reconsideration, determine the extent
of permanent disability that addresses 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 8. 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. 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], in the order on reconsideration, determine
the extent of permanent disability that addresses 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 9. ORS 656.745 is amended to read:
656.745. (1) The
Director of the Department of Consumer and Business Services shall assess a
civil penalty against an employer or insurer who intentionally or repeatedly
induces claimants for compensation to fail to report accidental injuries,
causes employees to collect accidental injury claims as off-the-job injury
claims, persuades claimants to accept less than the compensation due or makes
it necessary for claimants to resort to proceedings against the employer to
secure compensation due.
(2) The director may
assess a civil penalty against an employer, [or] insurer [who] or
managed care organization that:
(a) Fails to pay
assessments or other payments due to the director under this chapter and is in
default; or
(b) Fails to comply with
statutes, rules or orders of the director regarding reports or other
requirements necessary to carry out the purposes of this chapter.
(3) A civil penalty
shall be not more than $2,000 for each violation or $10,000 in the aggregate
for all violations within any three-month period. Each violation, or each day a
violation continues, shall be considered a separate violation.
(4) ORS 656.735 (4) to
(6) and 656.740 also apply to orders and penalties assessed under this section.
Approved by the Governor June 1, 2007
Filed in the office of Secretary of State June 1, 2007
Effective date January 1, 2008
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