74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
HA to HB 2244
LC 784/HB 2244-4
HOUSE AMENDMENTS TO
HOUSE BILL 2244
By COMMITTEE ON BUSINESS AND LABOR
April 4
In line 2 of the printed bill, after 'claims' insert ';
creating new provisions; and amending ORS 656.206, 656.214,
656.268, 656.307, 656.325, 656.726 and 656.790'.
Delete lines 4 through 7 and insert:
' { + SECTION 1. + } ORS 656.214, as amended by section 2,
chapter 657, Oregon Laws 2003, and section 4, chapter 653, Oregon
Laws 2005, is amended to read:
' 656.214. (1) As used in this section:
' { + (a) 'Impairment' means the loss of use or function of a
body part or system due to the compensable industrial injury or
occupational disease determined in accordance with the standards
provided under ORS 656.726, expressed as a percentage of the
whole person. + }
' { - (a) - } { + (b) + } 'Loss' includes permanent and
complete or partial loss of use.
' { - (b) - } { + (c) + } 'Permanent partial disability'
means { + : + } { - the loss of either one arm, one hand, one
leg, one foot, loss of hearing in one or both ears, loss of one
eye, one or more fingers, or any other injury known in surgery to
be permanent partial disability. - }
' { - (2) When permanent partial disability results from an
injury, the criteria for the rating of disability shall be the
permanent loss of use or function of the injured member due to
the industrial injury. The worker shall receive $511.29 for each
degree stated against such disability in subsections (2) to (4)
of this section as follows: - }
' { + (A) Permanent impairment resulting from the compensable
industrial injury or occupational disease; or
' (B) Permanent impairment and work disability resulting from
the compensable industrial injury or occupational disease.
' (d) 'Regular work' means the job the worker held at injury.
' (e) 'Work disability' means impairment modified by age,
education and adaptability to perform a given job.
' (2) When permanent partial disability results from a
compensable injury or occupational disease, benefits shall be
awarded as follows:
' (a) 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, the award
shall be for impairment only. Impairment shall be determined in
accordance with the standards provided by the Director of the
Department of Consumer and Business Services pursuant to ORS
656.726 (4). Impairment benefits are determined by multiplying
the impairment value times 100 times the average weekly wage as
defined by ORS 656.005.
' (b) If the worker has not been released to regular work by
the attending physician or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 or has not
returned to regular work at the job held at the time of injury,
the award shall be for impairment and work disability. Work
disability shall be determined in accordance with the standards
provided by the director pursuant to ORS 656.726 (4). Impairment
shall be determined as provided in paragraph (a) of this
subsection. Work disability benefits shall be determined by
multiplying the impairment value, as modified by the factors of
age, education and adaptability to perform a given job, times 150
times the worker's weekly wage for the job at injury as
calculated under ORS 656.210 (2). The factor for the worker's
weekly wage used for the determination of the work disability may
be no more than 133 percent or no less than 50 percent of the
average weekly wage as defined in ORS 656.005.
' (3) Impairment benefits awarded under subsection (2)(a) of
this section shall be expressed as a percentage of the whole
person. Impairment benefits for the following body parts may not
exceed: + }
' (a) For the loss of one arm at or above the elbow joint,
{ + 60 percent + } { - 192 degrees, or a proportion thereof
for losses less than a complete loss - } .
' (b) For the loss of one forearm at or above the wrist joint,
or the loss of one hand, { + 47 percent + } { - 150 degrees,
or a proportion thereof for losses less than a complete loss - }
.
' (c) For the loss of one leg, at or above the knee joint,
{ + 47 percent + } { - 150 degrees, or a proportion thereof
for losses less than a complete loss - } .
' (d) For the loss of one foot, { + 42 percent + } { - 135
degrees, or a proportion thereof for losses less than a complete
loss - } .
' (e) For the loss of a great toe, { + six percent; for loss
of any other toe, one percent + } { - 18 degrees, or a
proportion thereof for losses less than a complete loss; of any
other toe, four degrees, or a proportion thereof for losses less
than a complete loss - } .
' (f) For partial or complete loss of hearing in one ear, that
{ + proportion + } { - percentage - } of { + 19 percent + }
{ - 60 degrees - } which the loss bears to normal monaural
hearing.
' (g) For partial or complete loss of hearing in both ears,
that proportion of { - 192 degrees - } { + 60 percent + }
which the combined binaural hearing loss bears to normal combined
binaural hearing. For the purpose of this paragraph, combined
binaural hearing loss shall be calculated by taking seven times
the hearing loss in the less damaged ear plus the hearing loss in
the more damaged ear and dividing that amount by eight. In the
case of individuals with compensable hearing loss involving both
ears, either the method of calculation for monaural hearing loss
or that for combined binaural hearing loss shall be used,
depending upon which allows the greater award of
{ - disability - } { + impairment + }.
' (h) For partial or complete loss of vision of one eye, that
proportion of { - 100 degrees - } { + 31 percent + } which
the loss of monocular vision bears to normal monocular vision.
For the purposes of this paragraph, the term 'normal monocular
vision' shall be considered as Snellen 20/20 for distance and
Snellen 14/14 for near vision with full sensory field.
' (i) For partial loss of vision in both eyes, that proportion
of { - 300 degrees - } { + 94 percent + } which the combined
binocular visual loss bears to normal combined binocular vision.
In all cases of partial loss of sight, the percentage of said
loss shall be measured with maximum correction. For the purpose
of this paragraph, combined binocular visual loss shall be
calculated by taking three times the visual loss in the less
damaged eye plus the visual loss in the more damaged eye and
dividing that amount by four. In the case of individuals with
compensable visual loss involving both eyes, either the method of
calculation for monocular visual loss or that for combined
binocular visual loss shall be used, depending upon which allows
the greater award of
{ - disability - } { + impairment + }.
' (j) For the loss of a thumb, { - 48 degrees, or a portion
thereof for losses less than a complete loss - } { + 15
percent + }.
' (k) For the loss of a first finger, { - 24 degrees, or a
proportion thereof for losses less than a complete loss; of a
second finger, 22 degrees, or a proportion thereof for losses
less than a complete loss; of a third finger, 10 degrees, or a
proportion thereof for losses less than a complete loss; of a
fourth finger, 6 degrees, or a proportion thereof for losses less
than a complete loss - } { + eight percent; of a second finger,
seven percent; of a third finger, three percent; of a fourth
finger, two percent + }.
' { - (3) - } { + (4) + } The loss of one phalange of a
thumb, including the adjacent epiphyseal region of the proximal
phalange, is considered equal to the loss of one-half of a thumb.
The loss of one phalange of a finger, including the adjacent
epiphyseal region of the middle phalange, is considered equal to
the loss of one-half of a finger. The loss of two phalanges of a
finger, including the adjacent epiphyseal region of the proximal
phalange of a finger, is considered equal to the loss of 75
percent of a finger. The loss of more than one phalange of a
thumb, excluding the epiphyseal region of the proximal phalange,
is considered equal to the loss of an entire thumb. The loss of
more than two phalanges of a finger, excluding the epiphyseal
region of the proximal phalange of a finger, is considered equal
to the loss of an entire finger. A proportionate loss of use may
be allowed for an uninjured finger or thumb where there has been
a loss of effective opposition.
' { - (4) - } { + (5) + } A proportionate loss of the hand
may be allowed where { - disability - } { + impairment + }
extends to more than one digit, in lieu of ratings on the
individual digits.
' { - (5) In all cases of injury resulting in permanent
partial disability, other than those described in subsections (2)
to (4) of this section, the criteria for rating of disability
shall be the permanent loss of earning capacity due to the
compensable injury. Earning capacity is to be calculated using
the standards specified in ORS 656.726 (4)(f). The number of
degrees of disability shall be a maximum of 320 degrees
determined by the extent of the disability compared to the worker
before such injury and without such disability. - }
' { - (6) For injuries for which the disability is determined
pursuant to subsection (5) of this section, the worker shall
receive an amount equal to: - }
' { - (a) When the number of degrees stated against the
disability is equal to or less than 64, $153.00 times the number
of degrees. - }
' { - (b) When the number of degrees stated against the
disability is more than 64 but equal to or less than 160, $153.00
times 64 plus $267.44 times the number of degrees in excess of
64. - }
' { - (c) When the number of degrees stated against the
disability is more than 160, $153.00 times 64 plus $267.44 times
96 plus $709.79 times the number of degrees in excess of 160. - }
' { - (7) - } { + (6) + } All permanent disability
contemplates future waxing and waning of symptoms of the
condition. The results of waxing and waning of symptoms may
include, but are not limited to, loss of earning capacity,
periods of temporary total or temporary partial disability, or
inpatient hospitalization.
' { + SECTION 2. + } 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 - } { + criterion + } 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 - } { + 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. + }
' { - (C) - } { + (D) + } When, upon reconsideration of a
notice of closure pursuant to ORS 656.268, it is found that the
worker's disability is not addressed by the standards adopted
pursuant to this paragraph, notwithstanding ORS 656.268, the
director shall stay further proceedings on the reconsideration of
the claim and shall adopt temporary rules amending the standards
to accommodate the worker's impairment.
' { + (E) Notwithstanding any other provision of this
section, only impairment benefits shall be awarded under ORS
656.214 if the worker has been released to regular work by the
attending physician or nurse practitioner authorized to provide
compensable medical services under ORS 656.245 or has returned to
regular work at the job held at the time of injury. + }
' { - (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 3. + } ORS 656.206, as amended by section 6,
chapter 657, Oregon Laws 2003, and section 2, chapter 461, Oregon
Laws 2005, is amended to read:
' 656.206. (1) As used in this section:
' (a) 'Essential functions' means the primary tasks associated
with the job.
' (b) 'Materially improved medically' means an actual change
for the better in the worker's medical condition that is
supported by objective findings.
' (c) 'Materially improved vocationally' means an actual change
for the better in the:
' (A) Worker's vocational capability; or
' (B) Likelihood that the worker can return to work in a
gainful and suitable occupation.
' (d) 'Permanent total disability' means, notwithstanding ORS
656.225, the loss, including preexisting disability, of use or
function of any { - scheduled or unscheduled - } portion of
the body which permanently incapacitates the worker from
regularly performing work at a gainful and suitable occupation.
' (e) 'Regularly performing work' means the ability of the
worker to discharge the essential functions of the job.
' (f) 'Suitable occupation' means one that the worker has the
ability and the training or experience to perform, or an
occupation that the worker is able to perform after
rehabilitation.
' (g) 'Wages' means wages as determined under ORS 656.210.
' (2) When permanent total disability results from the injury,
the worker shall receive during the period of that disability
compensation benefits equal to 66-2/3 percent of wages not to
exceed 100 percent of the average weekly wage nor less than the
amount of 90 percent of wages a week or the amount of $50,
whichever amount is lesser.
' (3) The worker has the burden of proving permanent total
disability status and must establish that the worker is willing
to seek regular gainful employment and that the worker has made
reasonable efforts to obtain such employment.
' (4) When requested by the Director of the Department of
Consumer and Business Services, a worker who receives permanent
total disability benefits shall file on a form provided by the
director, a sworn statement of the worker's gross annual income
for the preceding year along with such other information as the
director considers necessary to determine whether the worker
regularly performs work at a gainful and suitable occupation.
' (5) Each insurer shall reexamine periodically each permanent
total disability claim for which the insurer has current payment
responsibility to determine whether the worker has materially
improved, either medically or vocationally, and is no longer
permanently incapacitated from regularly performing work at a
gainful and suitable occupation. Reexamination shall be conducted
every two years or at such other more frequent interval as the
director may prescribe. Reexamination shall include such medical
examinations, vocational evaluations, reports and other records
as the insurer considers necessary or the director may require.
' (6)(a) If a worker receiving permanent total disability
benefits is found to be materially improved and capable of
regularly performing work at a gainful and suitable occupation,
the insurer or self-insured employer shall issue a notice of
closure pursuant to ORS 656.268. Permanent total disability
benefits shall be paid through the date of the notice of closure.
Notwithstanding ORS 656.268 (5), if a worker objects to a notice
of closure issued under this subsection, the worker must request
a hearing. If the worker requests a hearing on the notice of
closure before the Hearings Division of the Workers' Compensation
Board within 30 days of the date of the notice of closure, the
insurer or self-insured employer shall continue payment of
permanent total disability benefits until an order of the
Hearings Division or a subsequent order affirms the notice of
closure or until another order that terminates the worker's
benefits becomes final. If the worker requests a hearing on the
notice of closure more than 30 days from the date of the notice
of closure but before the 60-day period for requesting a hearing
expires, the insurer or self-insured employer shall resume paying
permanent total disability benefits from the date the hearing is
requested and shall continue payment of benefits until an order
of the Hearings Division or a subsequent order affirms the notice
of closure or until another order that terminates the worker's
benefits becomes final. If the notice of closure is upheld by the
Hearings Division, the insurer or self-insured employer shall be
reimbursed from the Workers' Benefit Fund for the amount of
permanent total disability benefits paid after the date of the
notice of closure issued under this subsection.
' (b) An insurer or self-insured employer must establish that
the condition of a worker who is receiving permanent total
disability benefits has materially improved by a preponderance of
the evidence presented at hearing.
' (c) Medical examinations or vocational evaluations used to
support the issuance of a notice of closure under this subsection
must include at least one report in which the author personally
observed the worker.
' (d) Notwithstanding section 54 (3), chapter 2, Oregon Laws
1990, the Hearings Division of the Workers' Compensation Board
may request the director to order a medical arbiter examination
of an injured worker who has requested a hearing under this
subsection.
' (7) A worker who has had permanent total disability benefits
terminated under this section by an order that has become final
is eligible for vocational assistance pursuant to ORS 656.340.
Notwithstanding ORS 656.268 (9), if a worker has enrolled in and
is actively engaged in a training program, when vocational
assistance provided under this section ends or the worker ceases
to be enrolled and actively engaged in the training program, the
insurer or { + the + } self-insured employer shall determine the
extent of disability pursuant to ORS 656.214.
' (8) A worker receiving permanent total disability benefits is
required, if requested by the director, the insurer or the
self-insured employer, to submit to a vocational evaluation at a
time reasonably convenient to the worker as may be provided by
the rules of the director. No more than three evaluations may be
requested except after notification to and authorization by the
director. If the worker refuses to submit to or obstructs a
vocational evaluation, the rights of the worker to compensation
shall be suspended with the consent of the director until the
evaluation has taken place, and no compensation shall be payable
for the period during which the worker refused to submit to or
obstructed the evaluation. The insurer or self-insured employer
shall pay the costs of the evaluation and related services that
are reasonably necessary to allow the worker to attend the
evaluation requested under this subsection. As used in this
subsection, 'related services' includes, but is not limited to,
wages, child care, travel, meals and lodging.
' (9) Notwithstanding any other provisions of this chapter, if
a worker receiving permanent total disability incurs a new
compensable injury, the worker's entitlement to compensation for
the new injury shall be limited to medical benefits pursuant to
ORS 656.245 and permanent partial disability benefits for
impairment, as determined in the manner set forth in ORS 656.214
(2).
' (10) When a worker eligible for benefits under this section
returns to work, if the combined total of the worker's
post-injury wages plus permanent total disability benefit exceeds
the worker's wage at the time of injury, the worker's permanent
total disability benefit shall be reduced by the amount the
worker's wages plus statutory permanent total disability benefit
exceeds the worker's wage at injury.
' (11) For purposes of this section:
' (a) A gainful occupation for workers with a date of injury
prior to January 1, 2006, who were:
' (A) Employed continuously for 52 weeks prior to the injury,
is an occupation that provides weekly wages that are the lesser
of the most recent federal poverty guidelines for a family of
three that are applicable to Oregon residents and that are
published annually in the Federal Register by the United States
Department of Health and Human Services or 66-2/3 percent of the
worker's average weekly wages from all employment for the 52
weeks prior to the date of injury.
' (B) Not employed continuously for the 52 weeks prior to the
date of injury, but who were employed for at least four weeks
prior to the date of injury, is an occupation that provides
weekly wages that are the lesser of the most recent federal
poverty guidelines for a family of three that are applicable to
Oregon residents and that are published annually in the Federal
Register by the United States Department of Health and Human
Services or 66-2/3 percent of the worker's average weekly wage
from all employment for the 52 weeks prior to the date of injury
based on weeks of actual employment, excluding any extended
periods of unemployment.
' (C) Employed for less than four weeks prior to the date of
injury with no other employment during the 52 weeks prior to the
date of injury, is an occupation that provides weekly wages that
are the lesser of the most recent federal poverty guidelines for
a family of three that are applicable to Oregon residents and
that are published annually in the Federal Register by the United
States Department of Health and Human Services or 66-2/3 percent
of the average weekly wages intended by the parties at the time
of initial hire.
' (b) A gainful occupation for workers with a date of injury on
or after January 1, 2006, who were:
' (A) Employed continuously for 52 weeks prior to the injury,
is an occupation that provides weekly wages that are the lesser
of the most recent federal poverty guidelines for a family of
three that are applicable to Oregon residents and that are
published annually in the Federal Register by the United States
Department of Health and Human Services or 66-2/3 percent of the
worker's average weekly wages from all employment for the 52
weeks prior to the date of injury adjusted by the percentage of
change in the applicable federal poverty guidelines for a family
of three from the date of injury to the date of evaluation of the
extent of the worker's disability.
' (B) Not employed continuously for the 52 weeks prior to the
date of injury, but who were employed for at least four weeks
prior to the date of injury, is an occupation that provides
weekly wages that are the lesser of the most recent federal
poverty guidelines for a family of three that are applicable to
Oregon residents and that are published annually in the Federal
Register by the United States Department of Health and Human
Services or 66-2/3 percent of the worker's average weekly wage
from all employment for the 52 weeks prior to the date of injury
based on weeks of actual employment, excluding any extended
periods of unemployment and as adjusted by the percentage of
change in the applicable federal poverty guidelines for a family
of three from the date of injury to the date of evaluation of the
extent of the worker's disability.
' (C) Employed for less than four weeks prior to the date of
injury with no other employment during the 52 weeks prior to the
date of injury, is an occupation that provides weekly wages that
are the lesser of the most recent federal poverty guidelines for
a family of three that are applicable to Oregon residents and
that are published annually in the Federal Register by the United
States Department of Health and Human Services or 66-2/3 percent
of the average weekly wages intended by the parties at the time
of initial hire adjusted by the percentage of change in the
applicable federal poverty guidelines for a family of three from
the date of injury to the date of evaluation of the extent of the
worker's disability.
' { + SECTION 4. + } 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 - } { + 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 { - impairment - } { + disability + }, the likely
{ - impairment and adaptability - } { + permanent
disability + } that would have been due to the current accepted
condition shall be estimated;
' (c) Without the approval of the attending physician, the
worker fails to seek medical treatment for a period of 30 days or
the worker fails to attend a closing examination, unless the
worker affirmatively establishes that such failure is
attributable to reasons beyond the worker's control; or
' (d) An insurer or self-insured employer finds that a worker
who has been receiving permanent total disability benefits has
materially improved and is capable of regularly performing work
at a gainful and suitable occupation.
' (2) If the worker is enrolled and actively engaged in
training according to rules adopted pursuant to ORS 656.340 and
656.726, the temporary disability compensation shall be
proportionately reduced by any sums earned during the training.
' (3) A copy of all medical reports and reports of vocational
rehabilitation agencies or counselors shall be furnished to the
worker, if requested by the worker.
' (4) Temporary total disability benefits shall continue until
whichever of the following events first occurs:
' (a) The worker returns to regular or modified employment;
' (b) The attending physician advises the worker and documents
in writing that the worker is released to return to regular
employment;
' (c) The attending physician advises the worker and documents
in writing that the worker is released to return to modified
employment, such employment is offered in writing to the worker
and the worker fails to begin such employment. However, an offer
of modified employment may be refused by the worker without the
termination of temporary total disability benefits if the offer:
' (A) Requires a commute that is beyond the physical capacity
of the worker according to the worker's attending physician;
' (B) Is at a work site more than 50 miles one way from where
the worker was injured unless the site is less than 50 miles from
the worker's residence or the intent of the parties at the time
of hire or as established by the pattern of employment prior to
the injury was that the employer had multiple or mobile work
sites and the worker could be assigned to any such site;
' (C) Is not with the employer at injury;
' (D) Is not at a work site of the employer at injury;
' (E) Is not consistent with the existing written shift change
policy or is not consistent with common practice of the employer
at injury or aggravation; or
' (F) Is not consistent with an existing shift change provision
of an applicable collective bargaining agreement; or
' (d) Any other event that causes temporary disability benefits
to be lawfully suspended, withheld or terminated under ORS
656.262 (4) or other provisions of this chapter.
' (5)(a) Findings by the insurer or self-insured employer
regarding the extent of the worker's disability in closure of the
claim shall be pursuant to the standards prescribed by the
director. The insurer or self-insured employer shall issue a
notice of closure of such a claim to the worker, to the worker's
attorney if the worker is represented, and to the director. The
notice must inform:
' (A) The parties, in boldfaced type, of the proper manner in
which to proceed if they are dissatisfied with the terms of the
notice;
' (B) The worker of the amount of any further compensation,
including permanent disability compensation to be awarded; of the
duration of temporary total or temporary partial disability
compensation; of the right of the worker to request
reconsideration by the director under this section within 60 days
of the date of the notice of claim closure; of the right of the
insurer or self-insured employer to request reconsideration by
the director under this section within seven days of the date of
the notice of claim closure; of the aggravation rights; and of
such other information as the director may require; and
' (C) Any beneficiaries of death benefits to which they may be
entitled pursuant to ORS 656.204 and 656.208.
' (b) If the insurer or self-insured employer has not issued a
notice of closure, the worker may request closure. Within 10 days
of receipt of a written request from the worker, the insurer or
self-insured employer shall issue a notice of closure if the
requirements of this section have been met or a notice of refusal
to close if the requirements of this section have not been met. A
notice of refusal to close shall advise the worker of the
decision not to close; of the right of the worker to request a
hearing pursuant to ORS 656.283 within 60 days of the date of the
notice of refusal to close the claim; of the right to be
represented by an attorney; and of such other information as the
director may require.
' (c) If a worker, insurer or self-insured employer objects to
the notice of closure, the objecting party first must request
reconsideration by the director under this section. A worker's
request for reconsideration must be made within 60 days of the
date of the notice of closure. A request for reconsideration by
an insurer or self-insured employer may be based only on
disagreement with the findings used to rate impairment and must
be made within seven days of the date of the notice of closure.
' (d) If an insurer or self-insured employer has closed a claim
or refused to close a claim pursuant to this section, if the
correctness of that notice of closure or refusal to close is at
issue in a hearing on the claim and if a finding is made at the
hearing that the notice of closure or refusal to close was not
reasonable, a penalty shall be assessed against the insurer or
self-insured employer and paid to the worker in an amount equal
to 25 percent of all compensation determined to be then due the
claimant.
' (e) If, upon reconsideration of a claim closed by an insurer
or self-insured employer, the director orders an increase by 25
percent or more of the amount of compensation to be paid to the
worker for { - either a scheduled or unscheduled - } permanent
disability and the worker is found upon reconsideration to be at
least 20 percent permanently disabled, a penalty shall be
assessed against the insurer or self-insured employer and paid to
the worker in an amount equal to 25 percent of all compensation
determined to be then due the claimant. If the increase in
compensation results from information that the insurer or
self-insured employer demonstrates the insurer or self-insured
employer could not reasonably have known at the time of claim
closure, from new information obtained through a medical arbiter
examination or from the adoption of a temporary emergency rule,
the penalty shall not be assessed.
' (6)(a) Notwithstanding any other provision of law, only one
reconsideration proceeding may be held on each notice of closure.
At the reconsideration proceeding:
' (A) A deposition arranged by the worker, limited to the
testimony and cross-examination of the worker about the worker's
condition at the time of claim closure, shall become part of the
reconsideration record. The deposition must be conducted subject
to the opportunity for cross-examination by the insurer or
self-insured employer and in accordance with rules adopted by the
director. The cost of the court reporter and one original of the
transcript of the deposition for the Department of Consumer and
Business Services and one copy of the transcript of the
deposition for each party shall be paid by the insurer or
self-insured employer. The reconsideration proceeding may not be
postponed to receive a deposition taken under this subparagraph.
A deposition taken in accordance with this subparagraph may be
received as evidence at a hearing even if the deposition is not
prepared in time for use in the reconsideration proceeding.
' (B) Pursuant to rules adopted by the director, the worker or
the insurer or self-insured employer may correct information in
the record that is erroneous and may submit any medical evidence
that should have been but was not submitted by the attending
physician at the time of claim closure.
' (C) If the director determines that a claim was not closed in
accordance with subsection (1) of this section, the director may
rescind the closure.
' (b) If necessary, the director may require additional medical
or other information with respect to the claims and may postpone
the reconsideration for not more than 60 additional calendar
days.
' (c) In any reconsideration proceeding under this section in
which the worker was represented by an attorney, the director
shall order the insurer or self-insured employer to pay to the
attorney, out of the additional compensation awarded, an amount
equal to 10 percent of any additional compensation awarded to the
worker.
' (d) The reconsideration proceeding shall be completed within
18 working days from the date the reconsideration proceeding
begins, and shall be performed by a special evaluation appellate
unit within the department. The deadline of 18 working days may
be postponed by an additional 60 calendar days if within the 18
working days the department mails notice of review by a medical
arbiter. If an order on reconsideration has not been mailed on or
before 18 working days from the date the reconsideration
proceeding begins, or within 18 working days plus the additional
60 calendar days where a notice for medical arbiter review was
timely mailed or the director postponed the reconsideration
pursuant to paragraph (b) of this subsection, or within such
additional time as provided in subsection (7) of this section
when reconsideration is postponed further because the worker has
failed to cooperate in the medical arbiter examination,
reconsideration shall be deemed denied and any further
proceedings shall occur as though an order on reconsideration
affirming the notice of closure was mailed on the date the order
was due to issue.
' (e) The period for completing the reconsideration proceeding
described in paragraph (d) of this subsection begins upon receipt
by the director of a worker's request for reconsideration
pursuant to subsection (5)(c) of this section. If the insurer or
self-insured employer requests reconsideration, the period for
reconsideration begins upon the earlier of the date of the
request for reconsideration by the worker, the date of receipt of
a waiver from the worker of the right to request reconsideration
or the date of expiration of the right of the worker to request
reconsideration. If a party elects not to file a separate request
for reconsideration, the party does not waive the right to fully
participate in the reconsideration proceeding, including the
right to proceed with the reconsideration if the initiating party
withdraws the request for reconsideration.
' (f) Any medical arbiter report may be received as evidence at
a hearing even if the report is not prepared in time for use in
the reconsideration proceeding.
' (g) If any party objects to the reconsideration order, the
party may request a hearing under ORS 656.283 within 30 days from
the date of the reconsideration order.
' (7)(a) If the basis for objection to a notice of closure
issued under this section is disagreement with the impairment
used in rating of the worker's disability, the director shall
refer the claim to a medical arbiter appointed by the director.
' (b) If neither party requests a medical arbiter and the
director determines that insufficient medical information is
available to determine disability, the director may refer the
claim to a medical arbiter appointed by the director.
' (c) At the request of either of the parties, a panel of three
medical arbiters shall be appointed.
' (d) The arbiter, or panel of medical arbiters, shall be
chosen from among a list of physicians qualified to be attending
physicians referred to in ORS 656.005 (12)(b)(A) who were
selected by the director in consultation with the Board of
Medical Examiners for the State of Oregon and the committee
referred to in ORS 656.790.
' (e)(A) The medical arbiter or panel of medical arbiters may
examine the worker and perform such tests as may be reasonable
and necessary to establish the worker's impairment.
' (B) If the director determines that the worker failed to
attend the examination without good cause or failed to cooperate
with the medical arbiter, or panel of medical arbiters, the
director shall postpone the reconsideration proceedings for up to
60 days from the date of the determination that the worker failed
to attend or cooperate, and shall suspend all disability benefits
resulting from this or any prior opening of the claim until such
time as the worker attends and cooperates with the examination or
the request for reconsideration is withdrawn. Any additional
evidence regarding good cause must be submitted prior to the
conclusion of the 60-day postponement period.
' (C) At the conclusion of the 60-day postponement period, if
the worker has not attended and cooperated with a medical arbiter
examination or established good cause, there shall be no further
opportunity for the worker to attend a medical arbiter
examination for this claim closure. The reconsideration record
shall be closed, and the director shall issue an order on
reconsideration based upon the existing record.
' (D) All disability benefits suspended pursuant to this
subsection, including all disability benefits awarded in the
order on reconsideration, or by an Administrative Law Judge, the
Workers' Compensation Board or upon court review, shall not be
due and payable to the worker.
' (f) The costs of examination and review by the medical
arbiter or panel of medical arbiters shall be paid by the insurer
or self-insured employer.
' (g) The findings of the medical arbiter or panel of medical
arbiters shall be submitted to the director for reconsideration
of the notice of closure.
' (h) After reconsideration, no subsequent medical evidence of
the worker's impairment is admissible before the director, the
Workers' Compensation Board or the courts for purposes of making
findings of impairment on the claim closure.
' (i)(A) When the basis for objection to a notice of closure
issued under this section is a disagreement with the impairment
used in rating the worker's disability, and the director
determines that the worker is not medically stationary at the
time of the reconsideration or that the closure was not made
pursuant to this section, the director is not required to appoint
a medical arbiter prior to the completion of the reconsideration
proceeding.
' (B) If the worker's condition has substantially changed since
the notice of closure, upon the consent of all the parties to the
claim, the director shall postpone the proceeding until the
worker's condition is appropriate for claim closure under
subsection (1) of this section.
' (8) No hearing shall be held on any issue that was not raised
and preserved before the director at reconsideration. However,
issues arising out of the reconsideration order may be addressed
and resolved at hearing.
' (9) If, after the notice of closure issued pursuant to this
section, the worker becomes enrolled and actively engaged in
training according to rules adopted pursuant to ORS 656.340 and
656.726, any permanent disability payments due { + 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 { - unscheduled - }
{ + 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 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 656.307, as amended by section 10,
chapter 657, Oregon Laws 2003, is amended to read:
' 656.307. (1)(a) Where there is an issue regarding:
' (A) Which of several subject employers is the true employer
of a claimant worker;
' (B) Which of more than one insurer of a certain employer is
responsible for payment of compensation to a worker;
' (C) Responsibility between two or more employers or their
insurers involving payment of compensation for one or more
accidental injuries; or
' (D) Joint employment by two or more employers,
the Director of the Department of Consumer and Business Services
shall, by order, designate who shall pay the claim, if the
employers and insurers admit that the claim is otherwise
compensable. Payments shall begin in any event as provided in ORS
656.262 (4).
' (b) At the time of claim closure, all parties to an order
issued pursuant to paragraph (a) of this subsection shall have
reconsideration and appeal rights.
' (2) The director then shall request the Workers' Compensation
Board chairperson to appoint an Administrative Law Judge to
determine the responsible paying party. The proceedings shall be
conducted in the same manner as any other hearing and any further
appeal shall be conducted pursuant to ORS 656.295 and 656.298.
' (3) When a determination of the responsible paying party has
been made, the director shall direct any necessary monetary
adjustment between the parties involved. Any monetary adjustment
not reimbursed by an insurer or self-insured employer shall be
recovered from the Consumer and Business Services Fund. Any
stipulation or agreement under subsection (6) of this section
shall not obligate the Consumer and Business Services Fund for
reimbursement without prior approval of the Director of the
Department of Consumer and Business Services.
' (4) No self-insured employer or an insurer shall be joined in
any proceeding under this section regarding its responsibility
for any claim subject to ORS 656.273 unless the issue is entitled
to hearing on application of the worker.
' (5) The claimant shall be joined in any proceeding under this
section as a necessary party, but may elect to be treated as a
nominal party. If the claimant appears at any such proceeding and
actively and meaningfully participates through an attorney, the
Administrative Law Judge may require that a reasonable fee for
the claimant's attorney be paid by the employer or insurer
determined by the Administrative Law Judge to be the party
responsible for paying the claim.
' (6)(a) Notwithstanding subsection (2) of this section,
parties to a responsibility proceeding under this section may
agree to resolution of the dispute by mediation or arbitration by
a private party. Any settlement stipulation, arbitration decision
or other resolution of matters in dispute resulting from
mediation or arbitration proceedings shall be filed with the
Hearings Division and shall be given the same force and effect as
an order of an Administrative Law Judge made pursuant to
subsection (2) of this section. However, any such settlement
stipulation, arbitration decision or other resolution is binding
on the parties and is not subject to review by the director, an
Administrative Law Judge, the board or any court or other
administrative body, unless required pursuant to paragraph (d) of
this subsection or subsection (3) of this section.
' (b) For purposes of this subsection, mediation is a process
of discussion and negotiation, with the mediator playing a
central role in seeking a consensus among the parties. Such
consensus may be reflected in a final mediation settlement
stipulation, signed by all the parties and fully binding upon the
parties with the same effect as a final order of an
Administrative Law Judge, when the signed mediation settlement
stipulation is filed with the Hearings Division of the Workers'
Compensation Board.
' (c) For purposes of this subsection, arbitration is an
agreement to submit the matter to a binding decision by an
arbitrator, through a process mutually agreed upon in advance.
Once all the parties have agreed in writing to proceed with
arbitration, no party may withdraw from the arbitration process
except as provided in the written arbitration agreement.
' (d) A mediation settlement stipulation may include matters
beyond the responsibility issues. If other matters are included,
the settlement agreement shall be submitted to the Hearings
Division of the Workers' Compensation Board for review and
approval, under this chapter, as to such additional matters
beyond the responsibility issues.
' (e) Any arbitration decision shall be limited to a decision
as to responsibility and, where appropriate, the payment of
associated costs and attorney fees. The arbitrator's decision
shall have the same effect as a final order of an Administrative
Law Judge when the signed decision is filed with the Hearings
Division.
' (f) When the parties have reported to the Hearings Division
that they have agreed upon a mediation or arbitration process,
the hearing shall be deferred for 90 days to allow the mediation
or arbitration process to occur. Once 90 days have passed, the
matter shall again be docketed for hearing unless the parties
advise the Hearings Division in writing that progress has been
made and request an extension of time of up to 90 days, which
extension of time shall be granted as a matter of right. Once the
second 90 days have passed, the matter shall again be docketed
for hearing, and the hearing shall proceed before an
Administrative Law Judge as though there had been no mediation or
arbitration process, unless the parties present a mediation
settlement stipulation or signed arbitration decision before the
hearing begins.
' (g) All parties must agree in writing to pursue mediation or
arbitration and must agree upon the selection of the mediator or
arbitrator. The mediator or arbitrator shall not be an employee
of any insurer or self-insured employer that is a party to the
proceedings. The mediator or arbitrator must be an attorney
admitted to practice law in the State of Oregon. The mediator or
arbitrator may serve as a mediator or arbitrator, even if the
mediator or arbitrator separately represents any insurer or
self-insured employer in other proceedings, provided that all
parties are advised of such representation and consent in writing
that the mediator or arbitrator may so serve despite such other
representation. Such written consent supersedes any legal ethics
restrictions otherwise provided for in law or regulation.
' (h) If the claimant is represented by an attorney, the other
parties must arrange for payment of a reasonable attorney fee for
the claimant's attorney's services during the mediation or
arbitration. Any mediation or arbitration agreement shall specify
the terms of the fee arrangement.
' (i) If the claimant is not represented by an attorney, the
mediation process cannot include any issue other than
responsibility. A nonrepresented claimant must be advised in
writing of the following before the mediation or arbitration
proceeds:
' (A) The claimant's right to refuse to participate in
mediation or arbitration proceedings and to, instead, proceed to
a hearing before an Administrative Law Judge;
' (B) The present rate of temporary total disability benefits
for each alleged date of injury;
' (C) The present rate of { - unscheduled and scheduled - }
permanent partial disability benefits for each alleged date of
injury;
' (D) The estimated date of expiration of aggravation rights
for each alleged date of injury; and
' (E) The claimant's right to be represented by counsel of the
claimant's choice at no expense to the claimant.
' (j) Notwithstanding any other provision of law, any insurer
or self-insured employer may be represented by a certified claims
examiner rather than by an attorney in any mediation or
arbitration hereunder. Any separate insured for the same insurer
shall be represented by a separate claims examiner, if the
insured has a continuing financial exposure as to the claim;
where no continuing financial exposure exists, a single certified
claims examiner may represent more than one insured for the same
insurer in the mediation or arbitration proceeding.
' (k) Any other procedures as to mediation or arbitration shall
be subject to agreement among the parties. The Workers'
Compensation Board may adopt rules as to the process for deferral
and docketing of hearings where mediation or arbitration occurs,
the filing of arbitration decisions as orders of the Hearings
Division, the filing of mediation settlement stipulations
regarding responsibility as orders of the Hearings Division, and
review and approval of mediation settlement stipulations that
extend beyond the issues of responsibility and associated
attorney fees and costs. The Workers' Compensation Board shall
not enact rules that restrict the mediation or arbitration
process except to the extent provided within this section.
' { + SECTION 6. + } ORS 656.325, as amended by section 12,
chapter 657, Oregon Laws 2003, section 14, chapter 811, Oregon
Laws 2003, and section 2, chapter 675, Oregon Laws 2005, is
amended to read:
' 656.325. (1)(a) Any worker entitled to receive compensation
under this chapter is required, if requested by the Director of
the Department of Consumer and Business Services, the insurer or
self-insured employer, to submit to a medical examination at a
time reasonably convenient for the worker as may be provided by
the rules of the director. No more than three independent medical
examinations may be requested except after notification to and
authorization by the director. If the worker refuses to submit to
any such examination, or obstructs the same, the rights of the
worker to compensation shall be suspended with the consent of the
director until the examination has taken place, and no
compensation shall be payable during or for account of such
period. The provisions of this paragraph are subject to the
limitations on medical examinations provided in ORS 656.268.
' (b) When a worker is requested by the director, the insurer
or self-insured employer to attend an independent medical
examination, the examination must be conducted by a physician
selected from a list of qualified physicians established by the
director under ORS 656.328.
' (c) The director shall adopt rules applicable to independent
medical examinations conducted pursuant to paragraph (a) of this
subsection that:
' (A) Provide a worker the opportunity to request review by the
director of the reasonableness of the location selected for an
independent { + medical + } examination. Upon receipt of the
request for review, the director shall conduct an expedited
review of the location selected for the independent medical
examination and issue an order on the reasonableness of the
location of the examination. The director shall determine if
there is substantial evidence for the objection to the location
for the independent medical examination based on a conclusion
that the required travel is medically contraindicated or other
good cause establishing that the required travel is unreasonable.
The determinations of the director about the location of
independent medical examinations are not subject to review.
' (B) Impose a monetary penalty against a worker who fails to
attend an independent medical examination without prior
notification or without justification for not attending the
examination. A penalty imposed under this subparagraph may be
imposed only on a worker who is not receiving temporary
disability benefits under ORS 656.210 or 656.212. An insurer or
self-insured employer may offset any future compensation payable
to the worker to recover any penalty imposed under this
subparagraph from a claim with the same insurer or self-insured
employer. When a penalty is recovered from temporary disability
or permanent total disability benefits, the amount recovered from
each payment may not exceed 25 percent of the benefit payment
without prior authorization from the worker.
' (C) Impose a sanction against a medical service provider that
unreasonably fails to provide in a timely manner diagnostic
records required for an independent medical examination.
' (d) Notwithstanding ORS 656.262 (6), if the director
determines that the location selected for an independent medical
examination is unreasonable, the insurer or self-insured employer
shall accept or deny the claim within 90 days after the employer
has notice or knowledge of the claim.
' (e) If the worker has made a timely request for a hearing on
a denial of compensability as required by ORS 656.319 (1)(a) that
is based on one or more reports of examinations conducted
pursuant to paragraph (a) of this subsection and the worker's
attending physician does not concur with the report or reports,
the worker may request an examination to be conducted by a
physician selected by the director from the list described in ORS
656.328. The cost of the examination and the examination report
shall be paid by the insurer or self-insured employer.
' (f) The insurer or self-insured employer shall pay the costs
of the medical examination and related services which are
reasonably necessary to allow the worker to submit to any
examination requested under this section. As used in this
paragraph, 'related services' includes, but is not limited to,
child care, travel, meals, lodging and an amount equivalent to
the worker's net lost wages for the period during which the
worker is absent if the worker does not receive benefits pursuant
to ORS 656.210 (4) during the period of absence. A claim for
'related services' described in this paragraph shall be made in
the manner prescribed by the director.
' (g) A worker who objects to the location of an independent
medical examination must request review by the director under
paragraph (c)(A) of this subsection within six business days of
the date the notice of the independent medical examination was
mailed.
' (2) For any period of time during which any worker commits
insanitary or injurious practices which tend to either imperil or
retard recovery of the worker, or refuses to submit to such
medical or surgical treatment as is reasonably essential to
promote recovery, or fails to participate in a program of
physical rehabilitation, the right of the worker to compensation
shall be suspended with the consent of the director and no
payment shall be made for such period. The period during which
such worker would otherwise be entitled to compensation may be
reduced with the consent of the director to such an extent as the
disability has been increased by such refusal.
' (3) A worker who has received an award for
{ - unscheduled - } permanent total or { - unscheduled - }
{ + permanent + } partial disability should be encouraged to
make a reasonable effort to reduce the disability; and the award
shall be subject to periodic examination and adjustment in
conformity with ORS 656.268.
' (4) When the employer of an injured worker, or the employer's
insurer determines that the injured worker has failed to follow
medical advice from the attending physician or has failed to
participate in or complete physical restoration or vocational
rehabilitation programs prescribed for the worker pursuant to
this chapter, the employer or insurer may petition the director
for reduction of any benefits awarded the worker.
Notwithstanding any other provision of this chapter, if the
director finds that the worker has failed to accept treatment as
provided in this subsection, the director may reduce any benefits
awarded the worker by such amount as the director considers
appropriate.
' (5)(a) Except as provided by ORS 656.268 (4)(c) and (10), an
insurer or self-insured employer shall cease making payments
pursuant to ORS 656.210 and shall commence making payment of such
amounts as are due pursuant to ORS 656.212 when an injured worker
refuses wage earning employment prior to claim determination and
the worker's attending physician, after being notified by the
employer of the specific duties to be performed by the injured
worker, agrees that the injured worker is capable of performing
the employment offered.
' (b) If the worker has been terminated for violation of work
rules or other disciplinary reasons, the insurer or self-insured
employer shall cease payments pursuant to ORS 656.210 and
commence payments pursuant to ORS 656.212 when the attending
physician approves employment in a modified job that would have
been offered to the worker if the worker had remained employed,
provided that the employer has a written policy of offering
modified work to injured workers.
' (c) If the worker is a person present in the United States in
violation of federal immigration laws, the insurer or
self-insured employer shall cease payments pursuant to ORS
656.210 and commence payments pursuant to ORS 656.212 when the
attending physician approves employment in a modified job whether
or not such a job is available.
' (6) Any party may request a hearing on any dispute under this
section pursuant to ORS 656.283.
' { + SECTION 7. + } ORS 656.790 is amended to read:
' 656.790. (1) The Governor shall appoint a Workers'
Compensation Management-Labor Advisory Committee composed of 10
appointed members. Five members from organized labor shall
represent subject workers and five members shall represent
subject employers. In addition to the appointed members, the
Director of the Department of Consumer and Business Services
shall serve ex officio as a member of the committee. The
appointment of members of the committee is subject to
confirmation by the Senate in the manner prescribed in ORS
171.562 and 171.565.
' (2) The director may recommend areas of the law which the
director desires to have studied or the committee may study such
aspects of the law as the committee shall determine require their
consideration. The committee { - periodically - } shall
{ + biennially + } review the standards for evaluation of
permanent disability adopted under ORS 656.726 and shall
recommend to the director factors to be included or such other
modification of application of the standards as the committee
considers appropriate. { + The committee shall biennially review
and make recommendations about permanent partial disability
benefits. + } The committee shall advise the director regarding
any proposed changes in the operation of programs funded by the
Workers' Benefit Fund. The committee shall report its findings to
the director for such action as the director deems appropriate.
' (3) The committee shall report to the Legislative Assembly
such findings and recommendations as the committee considers
appropriate, including a report on the following matters:
' (a) Decisions of the Supreme Court and Court of Appeals that
have significant impact on the workers' compensation system.
' (b) Adequacy of workers' compensation benefits.
' (c) Medical and legal system costs.
' (d) Adequacy of assessments for reserve programs and
administrative costs.
' (e) The operation of programs funded by the Workers' Benefit
Fund.
' (4) The members of the committee shall be appointed for a
term of two years and shall serve without compensation, but shall
be entitled to travel expenses. The committee may hire, subject
to approval of the director, such experts as it may require to
discharge its duties. All expenses of the committee shall be paid
out of the Consumer and Business Services Fund.
' { + SECTION 8. + } { + The amendments to ORS 656.206,
656.214, 656.268, 656.307, 656.325 and 656.726 by sections 1 to 6
of this 2007 Act apply to injuries occurring on or after January
1, 2008. + } ' .
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