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 535
A-Engrossed
Senate Bill 158
Ordered by the Senate March 29
Including Senate Amendments dated March 29
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Governor Theodore R.
Kulongoski for Department of Human 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.
Permits Home Care Commission to elect workers' compensation
coverage for certain home care workers. Allows termination of
temporary total disability benefits of home care workers who
refuse modified employment in certain circumstances.
A BILL FOR AN ACT
Relating to workers' compensation coverage for home care workers;
amending ORS 656.039 and 656.268.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 656.039 is amended to read:
656.039. (1) An employer of one or more persons defined as
nonsubject workers or not defined as subject workers may elect to
make them subject workers. If the employer is or becomes a
carrier-insured employer, the election shall be made by filing
written notice thereof with the insurer with a copy to the
Director of the Department of Consumer and Business Services. The
effective date of coverage is governed by ORS 656.419 (3). If the
employer is or becomes a self-insured employer, the election
shall be made by filing written notice thereof with the director,
the effective date of coverage to be the date specified in the
notice.
(2) Any election under subsection (1) of this section may be
canceled by written notice thereof to the insurer or, in the case
of a self-insured employer, by notice thereof to the director.
The cancellation is effective at 12 midnight ending the day the
notice is received by the insurer or the director, unless a later
date is specified in the notice. The insurer shall, within 10
days after receipt of a notice of cancellation under this
section, send a copy of the notice to the director.
(3) When necessary the insurer or the director shall fix
assumed minimum or maximum wages for persons made subject workers
under this section.
(4) Notwithstanding any other provision of this section, a
person or employer not subject to this chapter who elects to
become covered may apply to a guaranty contract insurer for
coverage. An insurer other than the State Accident Insurance Fund
Corporation may provide such coverage. However, the State
Accident Insurance Fund Corporation shall accept any written
notice filed and provide coverage as provided in this section if
all subject workers of the employers will be insured with the
State Accident Insurance Fund Corporation and the coverage of
those subject workers is not considered by the State Accident
Insurance Fund Corporation to be a risk properly assignable to
the assigned risk pool.
{ + (5)(a) The Home Care Commission, as created by ORS
410.602, may elect coverage on behalf of clients of the
Department of Human Services who employ home care workers to make
home care workers subject workers if the home care worker is paid
by the state on behalf of the client.
(b) As used in this subsection, 'home care worker' has the
meaning given that term in ORS 410.600. + }
SECTION 2. 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 { - . - } { + ;
or
(e) Notwithstanding paragraph (c)(C), (D), (E) and (F) of this
subsection, the attending physician or nurse practitioner who has
authorized temporary disability benefits under ORS 656.245 for a
home care worker who has been made a subject worker pursuant to
ORS 656.039 advises the home care worker and documents in writing
that the home care worker is released to return to modified
employment, appropriate modified employment is offered in writing
by the Home Care Commission or a designee of the commission to
the home care worker for any client of the Department of Human
Services who employs a home care worker and the home care worker
fails to begin the employment. + }
(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, 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 3. 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 { - . - } { + ;
or
(e) Notwithstanding paragraph (c)(C), (D), (E) and (F) of this
subsection, the attending physician or nurse practitioner who has
authorized temporary disability benefits under ORS 656.245 for a
home care worker who has been made a subject worker pursuant to
ORS 656.039 advises the home care worker and documents in writing
that the home care worker is released to return to modified
employment, appropriate modified employment is offered in writing
by the Home Care Commission or a designee of the commission to
the home care worker for any client of the Department of Human
Services who employs a home care worker and the home care worker
fails to begin the employment. + }
(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 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.
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