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 2007
Senate Bill 560
Sponsored by COMMITTEE ON COMMERCE (at the request of Bob
Livingston)
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 as
introduced.
Establishes presumption that certain cancers are compensable
occupational diseases for firefighters. Requires certain cities
to apply presumption to claims by firefighters employed by
city. Requires certain cities to provide medical services to
firefighters and police officers equivalent to medical services
provided to injured workers under workers' compensation
statutes. Authorizes Hearings Division of Workers' Compensation
Board to enter into agreements with cities to provide
Administrative Law Judges to conduct hearings on certain
disputes.
A BILL FOR AN ACT
Relating to claims for work-related injuries by certain public
safety officers; amending ORS 656.245, 656.708 and 656.802.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 656.802 is amended to read:
656.802. (1)(a) As used in this chapter, 'occupational disease'
means any disease or infection arising out of and in the course
of employment caused by substances or activities to which an
employee is not ordinarily subjected or exposed other than during
a period of regular actual employment therein, and which requires
medical services or results in disability or death, including:
(A) Any disease or infection caused by ingestion of, absorption
of, inhalation of or contact with dust, fumes, vapors, gases,
radiation or other substances.
(B) Any mental disorder, whether sudden or gradual in onset,
which requires medical services or results in physical or mental
disability or death.
(C) Any series of traumatic events or occurrences which
requires medical services or results in physical disability or
death.
(b) As used in this chapter, 'mental disorder' includes any
physical disorder caused or worsened by mental stress.
(2)(a) The worker must prove that employment conditions were
the major contributing cause of the disease.
(b) If the occupational disease claim is based on the worsening
of a preexisting disease or condition pursuant to ORS 656.005
(7), the worker must prove that employment conditions were the
major contributing cause of the combined condition and
pathological worsening of the disease.
(c) Occupational diseases shall be subject to all of the same
limitations and exclusions as accidental injuries under ORS
656.005 (7).
(d) Existence of an occupational disease or worsening of a
preexisting disease must be established by medical evidence
supported by objective findings.
(e) Preexisting conditions shall be deemed causes in
determining major contributing cause under this section.
(3) Notwithstanding any other provision of this chapter, a
mental disorder is not compensable under this chapter unless the
worker establishes all of the following:
(a) The employment conditions producing the mental disorder
exist in a real and objective sense.
(b) The employment conditions producing the mental disorder are
conditions other than conditions generally inherent in every
working situation or reasonable disciplinary, corrective or job
performance evaluation actions by the employer, or cessation of
employment or employment decisions attendant upon ordinary
business or financial cycles.
(c) There is a diagnosis of a mental or emotional disorder
which is generally recognized in the medical or psychological
community.
(d) There is clear and convincing evidence that the mental
disorder arose out of and in the course of employment.
(4) { + (a) + } Death, disability or impairment of health of
firefighters of any political division who have completed five or
more years of employment as firefighters { - , - } { + is an
occupational disease if the death, disability or impairment:
(A) Is + } caused by any disease of the lungs or respiratory
tract, hypertension or cardiovascular-renal disease { - , - }
{ + or cancer of the brain or skin or of the digestive,
hematological or genitourinary systems; + } and
{ + (B) Results + } { - Resulting - } from their
employment as firefighters { + . + } { - is an 'occupational
disease.' - }
{ + (b) + } Any condition or impairment of health arising
under this subsection shall be presumed to result from a
firefighter's employment. However, any such firefighter must have
taken a physical examination upon becoming a firefighter, or
subsequently thereto, which failed to reveal any evidence of such
condition or impairment of health which preexisted employment.
Denial of a claim for any condition or impairment of health
arising under this subsection must be on the basis of clear and
convincing medical evidence that the cause of the condition or
impairment is unrelated to the firefighter's employment.
{ + (c) Notwithstanding ORS 656.027 (6), any city providing a
disability and retirement system by ordinance or charter for
firefighters and police officers not subject to this chapter
shall apply the presumptions established under this section when
processing claims for firefighters covered by the system. + }
SECTION 2. ORS 656.245 is amended to read:
656.245. (1)(a) For every compensable injury, the insurer or
the self-insured employer shall cause to be provided medical
services for conditions caused in material part by the injury for
such period as the nature of the injury or the process of the
recovery requires, subject to the limitations in ORS 656.225,
including such medical services as may be required after a
determination of permanent disability. In addition, for
consequential and combined conditions described in ORS 656.005
(7), the insurer or the self-insured employer shall cause to be
provided only those medical services directed to medical
conditions caused in major part by the injury.
(b) Compensable medical services shall include medical,
surgical, hospital, nursing, ambulances and other related
services, and drugs, medicine, crutches and prosthetic
appliances, braces and supports and where necessary, physical
restorative services. A pharmacist or dispensing physician shall
dispense generic drugs to the worker in accordance with ORS
689.515. The duty to provide such medical services continues for
the life of the worker.
(c) Notwithstanding any other provision of this chapter,
medical services after the worker's condition is medically
stationary are not compensable except for the following:
(A) Services provided to a worker who has been determined to be
permanently and totally disabled.
(B) Prescription medications.
(C) Services necessary to administer prescription medication or
monitor the administration of prescription medication.
(D) Prosthetic devices, braces and supports.
(E) Services necessary to monitor the status, replacement or
repair of prosthetic devices, braces and supports.
(F) Services provided pursuant to an accepted claim for
aggravation under ORS 656.273.
(G) Services provided pursuant to an order issued under ORS
656.278.
(H) Services that are necessary to diagnose the worker's
condition.
(I) Life-preserving modalities similar to insulin therapy,
dialysis and transfusions.
(J) With the approval of the insurer or self-insured employer,
palliative care that the worker's attending physician referred to
in ORS 656.005 (12)(b)(A) prescribes and that is necessary to
enable the worker to continue current employment or a vocational
training program. If the insurer or self-insured employer does
not approve, the attending physician or the worker may request
approval from the Director of the Department of Consumer and
Business Services for such treatment. The director may order a
medical review by a physician or panel of physicians pursuant to
ORS 656.327 (3) to aid in the review of such treatment. The
decision of the director is subject to review under ORS 656.704.
(K) With the approval of the director, curative care arising
from a generally recognized, nonexperimental advance in medical
science since the worker's claim was closed that is highly likely
to improve the worker's condition and that is otherwise justified
by the circumstances of the claim. The decision of the director
is subject to review under ORS 656.704.
(L) Curative care provided to a worker to stabilize a temporary
and acute waxing and waning of symptoms of the worker's
condition.
(d) When the medically stationary date in a disabling claim is
established by the insurer or self-insured employer and is not
based on the findings of the attending physician, the insurer or
self-insured employer is responsible for reimbursement to
affected medical service providers for otherwise compensable
services rendered until the insurer or self-insured employer
provides written notice to the attending physician of the
worker's medically stationary status.
(e) Except for services provided under a managed care contract,
out-of-pocket expense reimbursement to receive care from the
attending physician or nurse practitioner authorized to provide
compensable medical services under this section shall not exceed
the amount required to seek care from an appropriate nurse
practitioner or attending physician of the same specialty who is
in a medical community geographically closer to the worker's
home. For the purposes of this paragraph, all physicians and
nurse practitioners within a metropolitan area are considered to
be part of the same medical community.
(2)(a) The worker may choose an attending doctor, physician or
nurse practitioner within the State of Oregon. The worker may
choose the initial attending physician or nurse practitioner and
may subsequently change attending physician or nurse practitioner
two times without approval from the director. If the worker
thereafter selects another attending physician or nurse
practitioner, the insurer or self-insured employer may require
the director's approval of the selection and, if requested, the
director shall determine with the advice of one or more
physicians, whether the selection by the worker shall be
approved. The decision of the director is subject to review
under ORS 656.704. The worker also may choose an attending doctor
or physician in another country or in any state or territory or
possession of the United States with the prior approval of the
insurer or self-insured employer.
(b) A medical service provider who is not a member of a managed
care organization is subject to the following provisions:
(A) A medical service provider who is not qualified to be an
attending physician may provide compensable medical service to an
injured worker for a period of 30 days from the date of injury or
occupational disease or for 12 visits, whichever first occurs,
without the authorization of an attending physician. Thereafter,
medical service provided to an injured worker without the written
authorization of an attending physician is not compensable.
(B) A medical service provider who is not an attending
physician cannot authorize the payment of temporary disability
compensation. Except as otherwise provided in this chapter, only
the attending physician at the time of claim closure may make
findings regarding the worker's impairment for the purpose of
evaluating the worker's disability.
(C) Notwithstanding subparagraphs (A) and (B) of this
paragraph, a nurse practitioner licensed under ORS 678.375 to
678.390 may:
(i) Provide compensable medical services for 90 days from the
date of the first visit on the claim;
(ii) Authorize the payment of temporary disability benefits for
a period not to exceed 60 days from the date of the first visit
on the initial claim; and
(iii) When an injured worker treating with a nurse practitioner
authorized to provide compensable services under this section
becomes medically stationary within the 90-day period in which
the nurse practitioner is authorized to treat the injured worker,
shall refer the injured worker to a physician qualified to be an
attending physician as defined in ORS 656.005 for the purpose of
making findings regarding the worker's impairment for the purpose
of evaluating the worker's disability. If a worker returns to the
nurse practitioner after initial claim closure for evaluation of
a possible worsening of the worker's condition, the nurse
practitioner shall refer the worker to an attending physician and
the insurer shall compensate the nurse practitioner for the
examination performed.
(3) Notwithstanding any other provision of this chapter, the
director, by rule, upon the advice of the committee created by
ORS 656.794 and upon the advice of the professional licensing
boards of practitioners affected by the rule, may exclude from
compensability any medical treatment the director finds to be
unscientific, unproven, outmoded or experimental. The decision of
the director is subject to review under ORS 656.704.
(4) Notwithstanding subsection (2)(a) of this section, when a
self-insured employer or the insurer of an employer contracts
with a managed care organization certified pursuant to ORS
656.260 for medical services required by this chapter to be
provided to injured workers:
(a) Those workers who are subject to the contract shall receive
medical services in the manner prescribed in the contract.
Workers subject to the contract include those who are receiving
medical treatment for an accepted compensable injury or
occupational disease, regardless of the date of injury or
medically stationary status, on or after the effective date of
the contract. If the managed care organization determines that
the change in provider would be medically detrimental to the
worker, the worker shall not become subject to the contract until
the worker is found to be medically stationary, the worker
changes physicians or nurse practitioners, or the managed care
organization determines that the change in provider is no longer
medically detrimental, whichever event first occurs. A worker
becomes subject to the contract upon the worker's receipt of
actual notice of the worker's enrollment in the managed care
organization, or upon the third day after the notice was sent by
regular mail by the insurer or self-insured employer, whichever
event first occurs. A worker shall not be subject to a contract
after it expires or terminates without renewal. A worker may
continue to treat with the attending physician or nurse
practitioner authorized to provide compensable medical services
under this section under an expired or terminated managed care
organization contract if the physician or nurse practitioner
agrees to comply with the rules, terms and conditions regarding
services performed under any subsequent managed care organization
contract to which the worker is subject. A worker shall not be
subject to a contract if the worker's primary residence is more
than 100 miles outside the managed care organization's certified
geographical area. Each such contract must comply with the
certification standards provided in ORS 656.260. However, a
worker may receive immediate emergency medical treatment that is
compensable from a medical service provider who is not a member
of the managed care organization. Insurers or self-insured
employers who contract with a managed care organization for
medical services shall give notice to the workers of eligible
medical service providers and such other information regarding
the contract and manner of receiving medical services as the
director may prescribe. Notwithstanding any provision of law or
rule to the contrary, a worker of a noncomplying employer is
considered to be subject to a contract between the State Accident
Insurance Fund Corporation as a processing agent or the assigned
claims agent and a managed care organization.
(b)(A) For initial or aggravation claims filed after June 7,
1995, the insurer or self-insured employer may require an injured
worker, on a case-by-case basis, immediately to receive medical
services from the managed care organization.
(B) If the insurer or self-insured employer gives notice that
the worker is required to receive treatment from the managed care
organization, the insurer or self-insured employer must guarantee
that any reasonable and necessary services so received, that are
not otherwise covered by health insurance, will be paid as
provided in ORS 656.248, even if the claim is denied, until the
worker receives actual notice of the denial or until three days
after the denial is mailed, whichever event first occurs. The
worker may elect to receive care from a primary care physician or
nurse practitioner authorized to provide compensable medical
services under this section who agrees to the conditions of ORS
656.260 (4)(g). However, guarantee of payment is not required by
the insurer or self-insured employer if this election is made.
(C) If the insurer or self-insured employer does not give
notice that the worker is required to receive treatment from the
managed care organization, the insurer or self-insured employer
is under no obligation to pay for services received by the worker
unless the claim is later accepted.
(D) If the claim is denied, the worker may receive medical
services after the date of denial from sources other than the
managed care organization until the denial is reversed.
Reasonable and necessary medical services received from sources
other than the managed care organization after the date of claim
denial must be paid as provided in ORS 656.248 by the insurer or
self-insured employer if the claim is finally determined to be
compensable.
(5) Notwithstanding any other provision of this chapter, the
director, by rule, shall authorize physician assistants licensed
by the Board of Medical Examiners for the State of Oregon who
practice in areas served by Type A or Type B rural hospitals
described in ORS 442.470 to authorize the payment of temporary
disability compensation for injured workers for a period not to
exceed 30 days from the date of the first visit on the claim. In
addition, the director, by rule, may authorize such assistants
who practice in areas served by a Type C rural hospital described
in ORS 442.470 to authorize such payment.
(6) A nurse practitioner licensed under ORS 678.375 to 678.390
who is not a member of the managed care organization, is
authorized to provide the same level of services as a primary
care physician as established by ORS 656.260 (4), if at the time
the worker is enrolled in the managed care organization, the
nurse practitioner maintains the worker's medical records and
with whom the worker has a documented history of treatment, if
that nurse practitioner agrees to refer the worker to the managed
care organization for any specialized treatment, including
physical therapy, to be furnished by another provider that the
worker may require and if that nurse practitioner agrees to
comply with all the rules, terms and conditions regarding
services performed by the managed care organization.
(7) Subject to the provisions of ORS 656.704, if a claim for
medical services is disapproved, the injured worker, insurer or
self-insured employer may request administrative review by the
director pursuant to ORS 656.260 or 656.327.
{ + (8) Notwithstanding ORS 656.027 (6), any city providing a
disability and retirement system by ordinance or charter for
firefighters and police officers not subject to this chapter
shall provide medical services for firefighters and police
officers employed by the city that are equivalent to medical
services provided to injured workers under this section. + }
SECTION 3. ORS 656.245, as amended by section 4, chapter 811,
Oregon Laws 2003, and section 4, chapter 26, Oregon Laws 2005, is
amended to read:
656.245. (1)(a) For every compensable injury, the insurer or
the self-insured employer shall cause to be provided medical
services for conditions caused in material part by the injury for
such period as the nature of the injury or the process of the
recovery requires, subject to the limitations in ORS 656.225,
including such medical services as may be required after a
determination of permanent disability. In addition, for
consequential and combined conditions described in ORS 656.005
(7), the insurer or the self-insured employer shall cause to be
provided only those medical services directed to medical
conditions caused in major part by the injury.
(b) Compensable medical services shall include medical,
surgical, hospital, nursing, ambulances and other related
services, and drugs, medicine, crutches and prosthetic
appliances, braces and supports and where necessary, physical
restorative services. A pharmacist or dispensing physician shall
dispense generic drugs to the worker in accordance with ORS
689.515. The duty to provide such medical services continues for
the life of the worker.
(c) Notwithstanding any other provision of this chapter,
medical services after the worker's condition is medically
stationary are not compensable except for the following:
(A) Services provided to a worker who has been determined to be
permanently and totally disabled.
(B) Prescription medications.
(C) Services necessary to administer prescription medication or
monitor the administration of prescription medication.
(D) Prosthetic devices, braces and supports.
(E) Services necessary to monitor the status, replacement or
repair of prosthetic devices, braces and supports.
(F) Services provided pursuant to an accepted claim for
aggravation under ORS 656.273.
(G) Services provided pursuant to an order issued under ORS
656.278.
(H) Services that are necessary to diagnose the worker's
condition.
(I) Life-preserving modalities similar to insulin therapy,
dialysis and transfusions.
(J) With the approval of the insurer or self-insured employer,
palliative care that the worker's attending physician referred to
in ORS 656.005 (12)(b)(A) prescribes and that is necessary to
enable the worker to continue current employment or a vocational
training program. If the insurer or self-insured employer does
not approve, the attending physician or the worker may request
approval from the Director of the Department of Consumer and
Business Services for such treatment. The director may order a
medical review by a physician or panel of physicians pursuant to
ORS 656.327 (3) to aid in the review of such treatment. The
decision of the director is subject to review under ORS 656.704.
(K) With the approval of the director, curative care arising
from a generally recognized, nonexperimental advance in medical
science since the worker's claim was closed that is highly likely
to improve the worker's condition and that is otherwise justified
by the circumstances of the claim. The decision of the director
is subject to review under ORS 656.704.
(L) Curative care provided to a worker to stabilize a temporary
and acute waxing and waning of symptoms of the worker's
condition.
(d) When the medically stationary date in a disabling claim is
established by the insurer or self-insured employer and is not
based on the findings of the attending physician, the insurer or
self-insured employer is responsible for reimbursement to
affected medical service providers for otherwise compensable
services rendered until the insurer or self-insured employer
provides written notice to the attending physician of the
worker's medically stationary status.
(e) Except for services provided under a managed care contract,
out-of-pocket expense reimbursement to receive care from the
attending physician shall not exceed the amount required to seek
care from an appropriate attending physician of the same
specialty who is in a medical community geographically closer to
the worker's home. For the purposes of this paragraph, all
physicians within a metropolitan area are considered to be part
of the same medical community.
(2)(a) The worker may choose an attending doctor or physician
within the State of Oregon. The worker may choose the initial
attending physician and may subsequently change attending
physician two times without approval from the director. If the
worker thereafter selects another attending physician, the
insurer or self-insured employer may require the director's
approval of the selection and, if requested, the director shall
determine with the advice of one or more physicians, whether the
selection by the worker shall be approved. The decision of the
director is subject to review under ORS 656.704. The worker also
may choose an attending doctor or physician in another country or
in any state or territory or possession of the United States with
the prior approval of the insurer or self-insured employer.
(b) A medical service provider who is not a member of a managed
care organization is subject to the following provisions:
(A) A medical service provider who is not qualified to be an
attending physician may provide compensable medical service to an
injured worker for a period of 30 days from the date of injury or
occupational disease or for 12 visits, whichever first occurs,
without the authorization of an attending physician. Thereafter,
medical service provided to an injured worker without the written
authorization of an attending physician is not compensable.
(B) A medical service provider who is not an attending
physician cannot authorize the payment of temporary disability
compensation. Except as otherwise provided in this chapter, only
the attending physician at the time of claim closure may make
findings regarding the worker's impairment for the purpose of
evaluating the worker's disability.
(3) Notwithstanding any other provision of this chapter, the
director, by rule, upon the advice of the committee created by
ORS 656.794 and upon the advice of the professional licensing
boards of practitioners affected by the rule, may exclude from
compensability any medical treatment the director finds to be
unscientific, unproven, outmoded or experimental. The decision of
the director is subject to review under ORS 656.704.
(4) Notwithstanding subsection (2)(a) of this section, when a
self-insured employer or the insurer of an employer contracts
with a managed care organization certified pursuant to ORS
656.260 for medical services required by this chapter to be
provided to injured workers:
(a) Those workers who are subject to the contract shall receive
medical services in the manner prescribed in the contract.
Workers subject to the contract include those who are receiving
medical treatment for an accepted compensable injury or
occupational disease, regardless of the date of injury or
medically stationary status, on or after the effective date of
the contract. If the managed care organization determines that
the change in provider would be medically detrimental to the
worker, the worker shall not become subject to the contract until
the worker is found to be medically stationary, the worker
changes physicians or the managed care organization determines
that the change in provider is no longer medically detrimental,
whichever event first occurs. A worker becomes subject to the
contract upon the worker's receipt of actual notice of the
worker's enrollment in the managed care organization, or upon the
third day after the notice was sent by regular mail by the
insurer or self-insured employer, whichever event first occurs. A
worker shall not be subject to a contract after it expires or
terminates without renewal. A worker may continue to treat with
the attending physician under an expired or terminated managed
care organization contract if the physician agrees to comply with
the rules, terms and conditions regarding services performed
under any subsequent managed care organization contract to which
the worker is subject. A worker shall not be subject to a
contract if the worker's primary residence is more than 100 miles
outside the managed care organization's certified geographical
area. Each such contract must comply with the certification
standards provided in ORS 656.260. However, a worker may receive
immediate emergency medical treatment that is compensable from a
medical service provider who is not a member of the managed care
organization. Insurers or self-insured employers who contract
with a managed care organization for medical services shall give
notice to the workers of eligible medical service providers and
such other information regarding the contract and manner of
receiving medical services as the director may prescribe.
Notwithstanding any provision of law or rule to the contrary, a
worker of a noncomplying employer is considered to be subject to
a contract between the State Accident Insurance Fund Corporation
as a processing agent or the assigned claims agent and a managed
care organization.
(b)(A) For initial or aggravation claims filed after June 7,
1995, the insurer or self-insured employer may require an injured
worker, on a case-by-case basis, immediately to receive medical
services from the managed care organization.
(B) If the insurer or self-insured employer gives notice that
the worker is required to receive treatment from the managed care
organization, the insurer or self-insured employer must guarantee
that any reasonable and necessary services so received, that are
not otherwise covered by health insurance, will be paid as
provided in ORS 656.248, even if the claim is denied, until the
worker receives actual notice of the denial or until three days
after the denial is mailed, whichever event first occurs. The
worker may elect to receive care from a primary care physician
who agrees to the conditions of ORS 656.260 (4)(g). However,
guarantee of payment is not required by the insurer or
self-insured employer if this election is made.
(C) If the insurer or self-insured employer does not give
notice that the worker is required to receive treatment from the
managed care organization, the insurer or self-insured employer
is under no obligation to pay for services received by the worker
unless the claim is later accepted.
(D) If the claim is denied, the worker may receive medical
services after the date of denial from sources other than the
managed care organization until the denial is reversed.
Reasonable and necessary medical services received from sources
other than the managed care organization after the date of claim
denial must be paid as provided in ORS 656.248 by the insurer or
self-insured employer if the claim is finally determined to be
compensable.
(5) Notwithstanding any other provision of this chapter, the
director, by rule, shall authorize nurse practitioners certified
by the Oregon State Board of Nursing and physician assistants
licensed by the Board of Medical Examiners for the State of
Oregon who practice in areas served by Type A or Type B rural
hospitals described in ORS 442.470 to authorize the payment of
temporary disability compensation for injured workers for a
period not to exceed 30 days from the date of the first visit on
the claim. In addition, the director, by rule, may authorize such
practitioners and assistants who practice in areas served by a
Type C rural hospital described in ORS 442.470 to authorize such
payment.
(6) Subject to the provisions of ORS 656.704, if a claim for
medical services is disapproved, the injured worker, insurer or
self-insured employer may request administrative review by the
director pursuant to ORS 656.260 or 656.327.
{ + (7) Notwithstanding ORS 656.027 (6), any city providing a
disability and retirement system by ordinance or charter for
firefighters and police officers not subject to this chapter
shall provide medical services for firefighters and police
officers employed by the city that are equivalent to medical
services provided to injured workers under this section. + }
SECTION 4. ORS 656.708 is amended to read:
656.708. { + (1) + } The Hearings Division is continued within
the Workers' Compensation Board. The division has the
responsibility for providing an impartial forum for deciding all
cases, disputes and controversies arising under ORS 654.001 to
654.295 and 654.750 to 654.780, all cases, disputes and
controversies regarding matters concerning a claim under this
chapter, and for conducting such other hearings and proceedings
as may be prescribed by law.
{ + (2) The Hearings Division may enter into an agreement
with any city providing a disability and retirement system by
ordinance or charter for firefighters and police officers not
subject to this chapter to provide Administrative Law Judges
employed by the Workers' Compensation Board under ORS 656.724 to
hold hearings or other proceedings to decide any cases, disputes
and controversies arising under the disability and retirement
system. + }
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