74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 325
 
                           A-Engrossed
 
                         House Bill 2218
                  Ordered by the House April 4
            Including House Amendments dated April 4
 
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Governor Theodore R.
  Kulongoski for Department of Consumer and Business Services and
  Office of Regulatory Streamlining of Department of Consumer and
  Business Services)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
 
  Requires insurer to make lump sum payment of permanent partial
disability award if requested by worker unless specified
condition exists. Eliminates review of lump sum payment by
Director of Department of Consumer and Business Services.
Authorizes director to approve or deny certain changes of
worker's attending physician or nurse practitioner without advice
of physician. Eliminates requirement of adoption of temporary
rule by director to award compensation on reconsideration for
worker's disability not addressed by standards for evaluation of
disabilities. Authorizes director to assess civil penalty against
managed care organization on same bases as against employer or
insurer.
 
                        A BILL FOR AN ACT
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 Oregon:
  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 Oregon. The worker may
choose the initial attending physician or nurse practitioner and
may subsequently change attending physician or nurse practitioner
two times without approval from the director. If the worker
thereafter selects another attending physician or nurse
practitioner, the insurer or self-insured employer may require
the director's approval of the selection   { - and, if requested,
the director shall determine with the advice of one or more
physicians, whether the selection by the worker shall be
approved - } . The decision of the director is subject to review
under ORS 656.704. The worker also may choose an attending doctor
or physician in another country or in any state or territory or
possession of the United States with the prior approval of the
insurer or self-insured employer.
  (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 Oregon. The worker may choose the initial
attending physician and may subsequently change attending
physician two times without approval from the director. If the
worker thereafter selects another attending physician, the
insurer or self-insured employer may require the director's
approval of the selection   { - and, if requested, the director
shall determine with the advice of one or more physicians,
whether the selection by the worker shall be approved - } . The
decision of the director is subject to review under ORS 656.704.
The worker also may choose an attending doctor or physician in
another country or in any state or territory or possession of the
United States with the prior approval of the insurer or
self-insured employer.
  (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.
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