Chapter 518
AN ACT
SB 762
Relating to payment of compensation in nondisabling workers’
compensation claims; amending ORS 656.262.
Be It Enacted by the People of
the State of
SECTION 1. ORS 656.262 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 or nurse practitioner authorized to provide
compensable medical services under ORS 656.245 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 or nurse practitioner authorized to provide compensable medical
services under ORS 656.245 verification of the worker’s inability to work
resulting from the claimed injury or disease and the physician or nurse
practitioner 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 or nurse
practitioner authorized to provide compensable medical services under ORS
656.245, 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 or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 verification of the worker’s inability to
work resulting from the claimed injury or disease, medical services provided by
the attending physician or nurse practitioner are not compensable until the
attending physician or nurse practitioner submits such verification.
(g) Temporary disability
compensation is not due and payable pursuant to ORS 656.268 after the worker’s
attending physician or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 ceases to authorize temporary disability or
for any period of time not authorized by the attending physician or nurse
practitioner. No authorization of temporary disability compensation by the
attending physician or nurse practitioner 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 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 or nurse
practitioner authorized to provide compensable medical services under ORS 656.245.
(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 or nurse practitioner authorized to provide
compensable medical services under ORS 656.245 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)(a) Payment of
compensation under subsection (4) of this section or payment, in amounts per
claim not to exceed [$1,500 per claim]
the maximum amount established annually by the Director of the Department of
Consumer and Business Services, 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.
(b) To establish the
maximum amount an employer may pay for medical services for nondisabling claims
under paragraph (a) of this subsection, the director shall use $1,500 as the
base compensation amount and shall adjust the base compensation amount annually
to reflect changes in the United States City Average Consumer Price Index for
All Urban Consumers for Medical Care for July of each year as published by the
Bureau of Labor Statistics of the United States Department of Labor. The
adjustment shall be rounded to the nearest multiple of $100.
(c) The adjusted amount
established under paragraph (b) of this subsection shall be effective on
January 1 following the establishment of the amount and shall apply to claims
with a date of injury on or after the effective date of the adjusted amount.
(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 2. 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) 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)(a) Payment of
compensation under subsection (4) of this section or payment, in amounts per
claim not to exceed [$1,500 per claim]
the maximum amount established annually by the Director of the Department of
Consumer and Business Services, 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.
(b) To establish the
maximum amount an employer may pay for medical services for nondisabling claims
under paragraph (a) of this subsection, the director shall use $1,500 as the
base compensation amount and shall adjust the base compensation amount annually
to reflect changes in the United States City Average Consumer Price Index for
All Urban Consumers for Medical Care for July of each year as published by the
Bureau of Labor Statistics of the United States Department of Labor. The
adjustment shall be rounded to the nearest multiple of $100.
(c) The adjusted amount
established under paragraph (b) of this subsection shall be effective on
January 1 following the establishment of the amount and shall apply to claims
with a date of injury on or after the effective date of the adjusted amount.
(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.
Approved by the Governor June 20, 2007
Filed in the office of Secretary of State June 21, 2007
Effective date January 1, 2008
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