75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
House Bill 2195
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor Theodore R.
Kulongoski for Department of Consumer and Business Services)
CHAPTER ................
AN ACT
Relating to vocational rehabilitation provided in workers'
compensation claims; amending ORS 656.262, 656.283, 656.313,
656.340 and 656.704.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 656.340 is amended to read:
656.340. (1)(a) The insurer or self-insured employer shall
cause vocational assistance to be provided to an injured worker
who is eligible for assistance in returning to work.
(b) For this purpose the insurer or self-insured employer shall
contact a worker with a claim for a disabling compensable injury
or claim for aggravation for evaluation of the worker's
eligibility for vocational assistance within five days of:
(A) Having knowledge of the worker's likely eligibility for
vocational assistance, from a medical or investigation report,
notification from the worker, or otherwise; or
(B) The time the worker is medically stationary, if the worker
has not returned to the worker's regular employment or other
suitable employment with the employer at the time of injury or
aggravation and the worker is not receiving vocational
assistance.
(c) Eligibility may be redetermined by the insurer or
self-insured employer upon receipt of new information that would
change the eligibility determination.
(2) Contact under subsection (1) of this section shall include
informing the worker about reemployment rights, the
responsibility of the worker to request reemployment, and wage
subsidy and job site modification assistance and the provisions
of the preferred worker program pursuant to rules adopted by the
Director of the Department of Consumer and Business Services.
(3) Within five days after notification that the attending
physician or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 has released a worker to
return to work, the insurer or self-insured employer shall inform
the worker about the opportunity to seek reemployment or
reinstatement under ORS 659A.043 and 659A.046. The insurer shall
inform the employer of the worker's reemployment rights, wage
subsidy and the job site modification assistance and the
provisions of the preferred worker program.
(4) As soon as possible, and not more than 30 days after the
contact required by subsection (1) of this section, the insurer
Enrolled House Bill 2195 (HB 2195-INTRO) Page 1
or self-insured employer shall cause an individual certified by
the director to provide vocational assistance to determine
whether the worker is eligible for vocational assistance. The
insurer or self-insured employer shall notify the worker of the
decision regarding the worker's eligibility for vocational
assistance. If the insurer or self-insured employer decides that
the worker is not eligible, the worker may apply to the director
for review of the decision as provided in { - ORS 656.283
(2) - } { + subsection (16) of this section + }. A worker
determined ineligible upon evaluation under subsection (1)(b)(B)
of this section, or because the worker's eligibility has fully
and finally expired under standards prescribed by the director,
may not be found eligible thereafter unless that eligibility
determination is rejected by the director under { - ORS 656.283
(2) - } { + subsection (16) of this section + } or the worker's
condition worsens so as to constitute an aggravation claim under
ORS 656.273. A worker is not entitled to vocational assistance
benefits when possible eligibility for such benefits arises from
a worsening of the worker's condition that occurs after the
expiration of the worker's aggravation rights under ORS 656.273.
(5) The objectives of vocational assistance are to return the
worker to employment which is as close as possible to the
worker's regular employment at a wage as close as possible to the
weekly wage currently being paid for employment which was the
worker's regular employment even though the wage available
following employment may be less than the wage prescribed by
subsection (6) of this section. As used in this subsection and
subsection (6) of this section, 'regular employment' means the
employment the worker held at the time of the injury or the claim
for aggravation under ORS 656.273, whichever gave rise to the
potential eligibility for vocational assistance; or, for a worker
not employed at the time of the aggravation, the employment the
worker held on the last day of work prior to the aggravation.
(6)(a) A worker is eligible for vocational assistance if the
worker will not be able to return to the previous employment or
to any other available and suitable employment with the employer
at the time of injury or aggravation, and the worker has a
substantial handicap to employment.
(b) As used in this subsection:
(A) A 'substantial handicap to employment' exists when the
worker, because of the injury or aggravation, lacks the necessary
physical capacities, knowledge, skills and abilities to be
employed in suitable employment.
(B) 'Suitable employment' means:
(i) Employment of the kind for which the worker has the
necessary physical capacity, knowledge, skills and abilities;
(ii) Employment that is located where the worker customarily
worked or is within reasonable commuting distance of the worker's
residence; and
(iii) Employment that produces a weekly wage within 20 percent
of that currently being paid for employment that was the worker's
regular employment as defined in subsection (5) of this section.
The director shall adopt rules providing methods of calculating
the weekly wage currently being paid for the worker's regular
employment for use in determining eligibility and for providing
assistance to eligible workers. If the worker's regular
employment was seasonal or temporary, the worker's wage shall be
averaged based on a combination of the worker's earned income and
any unemployment insurance payments. Only earned income evidenced
by verifiable documentation such as federal or state tax returns
Enrolled House Bill 2195 (HB 2195-INTRO) Page 2
shall be used in the calculation. Earned income does not include
fringe benefits or reimbursement of the worker's employment
expenses.
(7) Vocational evaluation, help in directly obtaining
employment and training shall be available under conditions
prescribed by the director. The director may establish other
conditions for providing vocational assistance, including those
relating to the worker's availability for assistance,
participation in previous assistance programs connected with the
same claim and the nature and extent of assistance that may be
provided. Such conditions shall give preference to direct
employment assistance over training.
(8) An insurer or self-insured employer may utilize its own
staff or may engage any other individual certified by the
director to perform the vocational evaluation required by
subsection (4) of this section.
(9) The director shall adopt rules providing:
(a) Standards for and methods of certifying individuals
{ - and authorizing vocational assistance providers - }
qualified by education, training { - , - } { + and + }
experience { - and plan of operation - } to provide vocational
assistance to injured workers;
{ + (b) Standards for registration of vocational assistance
providers; + }
{ - (b) - } { + (c) + } Conditions and procedures under
which the certification of an individual { + to provide
vocational assistance services + } or the { - authorization - }
{ + registration + } of a vocational assistance provider
{ - to provide vocational assistance services - } may be
suspended or revoked for failure to maintain compliance with the
certification or { - authorization - } { + registration + }
standards;
{ - (c) - } { + (d) + } Standards for the nature and extent
of services a worker may receive, for plans for return to work
and for determining when the worker has returned to work; and
{ - (d) - } { + (e) + } Procedures, schedules and
conditions relating to the payment for services performed by a
vocational assistance provider, { - which shall be - } { +
that are + } based on payment for specific services performed and
not fees for services performed on an hourly basis. Fee schedules
shall reflect a reasonable rate for direct worker purchases and
for all vocational assistance providers and shall be the same
within suitable geographic areas.
(10) Insurers and self-insured employers shall maintain records
and make reports to the director of vocational assistance actions
at { - such - } times and in { - such - } { + the + }
manner as the director may prescribe. { - Such - }
{ + The + } requirements { + prescribed + } shall be for the
purpose of assisting the Department of Consumer and Business
Services in monitoring compliance with this section to insure
that workers receive timely and appropriate vocational
assistance. The director shall minimize to the greatest extent
possible the number, extent and kinds of reports required. The
director shall compile a list of { - the - } organizations or
agencies { - authorized - } { + registered + } to provide
vocational assistance. A current list shall be distributed by the
director to all insurers and self-insured employers. The insurer
shall send the list to each worker with the notice of
eligibility.
Enrolled House Bill 2195 (HB 2195-INTRO) Page 3
(11) When a worker is eligible to receive vocational
assistance, the worker and the insurer or self-insured employer
shall attempt to agree on the choice of a vocational assistance
provider. If the worker agrees, the insurer or self-insured
employer may utilize its own staff to provide vocational
assistance. If they are unable to agree on a vocational
assistance provider, the insurer or self-insured employer shall
notify the director and the director shall select a provider. Any
change in the choice of vocational assistance provider is subject
to the approval of the director.
(12) Notwithstanding ORS 656.268, a worker actively engaged in
training may receive temporary disability compensation for a
maximum of 16 months { - , subject to extension to 21 months by
order of the director for good cause shown - } . { + The insurer
or self-insured employer may voluntarily extend the payment of
temporary disability compensation to a maximum of 21 months. + }
The costs related to vocational assistance training programs may
be paid for periods longer than 21 months, but in no event may
temporary disability benefits be paid for a period longer than 21
months.
(13) As used in this section, 'vocational assistance provider'
means a public or private organization or agency
{ - which - } { + that + } provides vocational assistance to
injured workers.
(14)(a) Determination of eligibility for vocational assistance
does not entitle all workers to the same type or extent of
assistance.
(b) Training shall not be provided to an eligible worker solely
because the worker cannot obtain employment, otherwise suitable,
that will produce the wage prescribed in subsection (6) of this
section unless such training will enable the worker to find
employment which will produce a wage significantly closer to that
prescribed in subsection (6) of this section.
(c) Nothing in this section shall be interpreted to expand the
availability of training under this section.
(15) A physical capacities evaluation shall be performed in
conjunction with vocational assistance or determination of
eligibility for such assistance at the request of the insurer or
self-insured employer or worker. { - Such - } { + The + }
request shall be made to the attending physician or nurse
practitioner authorized to provide compensable medical services
under ORS 656.245. The attending physician or nurse practitioner,
within 20 days of the request, shall perform a physical
capacities evaluation or refer the worker for such evaluation or
advise the insurer or self-insured employer and the worker in
writing that the injured worker is incapable of participating in
a physical capacities evaluation.
{ + (16)(a) The Legislative Assembly finds that vocational
rehabilitation of injured workers requires a high degree of
cooperation between all of the participants in the vocational
assistance process. Based on this finding, the Legislative
Assembly concludes that disputes regarding eligibility for and
extent of vocational assistance services should be resolved
through nonadversarial procedures to the greatest extent possible
consistent with constitutional principles. The director shall
adopt by rule a procedure for resolving vocational assistance
disputes in the manner provided in this subsection.
(b) If a worker is dissatisfied with an action of the insurer
or self-insured employer regarding vocational assistance, the
worker must apply to the director for administrative review of
Enrolled House Bill 2195 (HB 2195-INTRO) Page 4
the matter. Application for review must be made not later than
the 60th day after the date the worker was notified of the
action. The director shall complete the review within a
reasonable time.
(c) If the worker's dissatisfaction is resolved by agreement of
the parties, the agreement shall be reduced to writing, and the
director and the parties shall review the agreement and either
approve or disapprove it. The agreement is subject to
reconsideration by the director under limitations prescribed by
the director, but is not subject to review by any other forum.
(d) If the worker's dissatisfaction is not resolved by
agreement of the parties, the director shall resolve the matter
in a written order based on a record sufficient to permit review.
The order is subject to review under ORS 656.704. The request for
a hearing must be filed within 60 days of the date the order was
issued. At the hearing, the order of the director shall be
modified only if it:
(A) Violates a statute or rule;
(B) Exceeds the statutory authority of the agency;
(C) Was made upon unlawful procedure; or
(D) Was characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
(e) For purposes of this subsection, the term 'parties ' does
not include a noncomplying employer. + }
SECTION 2. ORS 656.283 is amended to read:
656.283. (1) Subject to ORS 656.319, any party or the Director
of the Department of Consumer and Business Services may at any
time request a hearing on any matter concerning a claim, except
matters for which a procedure for resolving the dispute is
provided in another statute, including ORS 656.704.
{ - (2)(a) The Legislative Assembly finds that vocational
rehabilitation of injured workers requires a high degree of
cooperation between all of the participants in the vocational
assistance process. Based on this finding, the Legislative
Assembly concludes that disputes regarding eligibility for and
extent of vocational assistance services should be resolved
through nonadversarial procedures to the greatest extent possible
consistent with constitutional principles. The director is hereby
charged with the duty of creating a procedure for resolving
vocational assistance disputes in the manner provided in this
subsection. - }
{ - (b) If a worker is dissatisfied with an action of the
insurer or self-insured employer regarding vocational assistance,
the worker must apply to the director for administrative review
of the matter. Such application must be made not later than the
60th day after the date the worker was notified of the action.
The director shall complete the review within a reasonable time.
If the worker's dissatisfaction is resolved by agreement of the
parties, the agreement shall be reduced to writing, and the
director and the parties shall review the agreement and either
approve or disapprove it. If the worker's dissatisfaction is not
resolved by agreement of the parties, the director shall resolve
the matter in a written order containing findings of fact and
conclusions of law. The order shall be based on a record
sufficient to permit review under paragraph (c) of this
subsection. For purposes of this subsection, the term 'parties '
does not include a noncomplying employer. - }
{ - (c) Director approval of an agreement resolving a
vocational assistance matter shall be subject to reconsideration
by the director under limitations prescribed by the director, but
Enrolled House Bill 2195 (HB 2195-INTRO) Page 5
shall not be subject to review by any other forum. When the
director issues an order after review under paragraph (b) of this
subsection, the order shall be subject to review under ORS
656.704. At the contested case hearing, the decision of the
director's administrative review shall be modified only if
it: - }
{ - (A) Violates a statute or rule; - }
{ - (B) Exceeds the statutory authority of the agency; - }
{ - (C) Was made upon unlawful procedure; or - }
{ - (D) Was characterized by abuse of discretion or clearly
unwarranted exercise of discretion. - }
{ - (d) An appeal of the director's administrative review
under paragraph (b) of this subsection must be made within 60
days of the review issue date. - }
{ - (3) - } { + (2) + } A request for hearing may be made
by any writing, signed by or on behalf of the party and including
the address of the party, requesting the hearing, stating that a
hearing is desired, and mailed to the Workers' Compensation
Board.
{ - (4) - } { + (3) + }(a) The board shall refer the
request for hearing to an Administrative Law Judge for
determination as expeditiously as possible. The hearing shall be
scheduled for a date not more than 90 days after receipt by the
board of the request for hearing. The hearing may not be
postponed:
(A) Except in extraordinary circumstances beyond the control of
the requesting party; and
(B) For more than 120 days after the date of the postponed
hearing.
(b) When a hearing set pursuant to paragraph (a) of this
subsection is postponed because of the need to join one or more
potentially responsible employers or insurers, the assigned
Administrative Law Judge shall reschedule the hearing as
expeditiously as possible after all potentially responsible
employers and insurers have been joined in the proceeding and the
medical record has been fully developed. The board shall adopt
rules for hearings on claims involving one or more potentially
responsible employers and insurers that:
(A) Require the parties to participate in any prehearing
conferences required to expedite the hearing; and
(B) Authorize the Administrative Law Judge conducting the
hearing to:
(i) Establish a prehearing schedule for investigation of the
claim, including but not limited to the interviewing of the
claimant;
(ii) Make prehearing rulings necessary to promote full
discovery and completion of the medical record required for
determination of the issues arising from the claim; and
(iii) Specify what is required of the claimant to meet the
obligation to reasonably cooperate with the investigation of
claims.
(c) Nothing in paragraph (b) of this subsection alters the
obligation of an insurer or self-insured employer to accept or
deny a claim for compensation as required under this chapter.
(d) If a hearing has been postponed in accordance with
paragraph (b) of this subsection:
(A) The director may not consider the timeliness of a denial
issued in the claim that is the subject of the hearing for the
purpose of imposing a penalty against an insurer or self-insured
employer that is potentially responsible for the claim; and
Enrolled House Bill 2195 (HB 2195-INTRO) Page 6
(B) The 120-day maximum postponement established under
paragraph (a) of this subsection for rescheduling a hearing does
not apply.
{ - (5)(a) - } { + (4)(a) + } At least 60 days' prior
notice of the time and place of hearing shall be given to all
parties in interest by mail. Hearings shall be held in the county
where the worker resided at the time of the injury or such other
place selected by the Administrative Law Judge.
(b) The 60-day prior notice required by paragraph (a) of this
subsection:
(A) May be waived by agreement of the parties and the board if
waiver of the notice will result in an earlier date for the
hearing.
(B) Does not apply to hearings in cases assigned to the
Expedited Claim Service under ORS 656.291, cases involving stayed
compensation under ORS 656.313 (1)(b) and requests for hearing
that are consolidated with an existing case with an existing
hearing date.
{ - (6) - } { + (5) + } A record of all proceedings at the
hearing shall be kept but need not be transcribed unless a party
requests a review of the order of the Administrative Law Judge.
Transcription shall be in written form as provided by ORS 656.295
(3).
{ - (7) - } { + (6) + } Except as otherwise provided in
this section and rules of procedure established by the board, the
Administrative Law Judge is not bound by common law or statutory
rules of evidence or by technical or formal rules of procedure,
and may conduct the hearing in any manner that will achieve
substantial justice. Neither the board nor an Administrative Law
Judge may prevent a party from withholding impeachment evidence
until the opposing party's case in chief has been presented, at
which time the impeachment evidence may be used. Impeachment
evidence consisting of medical or vocational reports not used
during the course of a hearing must be provided to any opposing
party at the conclusion of the presentation of evidence and
before closing arguments are presented. Impeachment evidence
other than medical or vocational reports that is not presented as
evidence at hearing is not subject to disclosure. Evaluation of
the worker's disability by the Administrative Law Judge shall be
as of the date of issuance of the reconsideration order pursuant
to ORS 656.268. Any finding of fact regarding the worker's
impairment must be established by medical evidence that is
supported by objective findings. The Administrative Law Judge
shall apply to the hearing of the claim such standards for
evaluation of disability as may be adopted by the director
pursuant to ORS 656.726. Evidence on an issue regarding a notice
of closure that was not submitted at the reconsideration required
by ORS 656.268 is not admissible at hearing, and issues that were
not raised by a party to the reconsideration may not be raised at
hearing unless the issue arises out of the reconsideration order
itself. However, nothing in this section shall be construed to
prevent or limit the right of a worker, insurer or self-insured
employer to present the reconsideration record at hearing to
establish by a preponderance of that evidence that the standards
adopted pursuant to ORS 656.726 for evaluation of the worker's
permanent disability were incorrectly applied in the
reconsideration order pursuant to ORS 656.268. If the
Administrative Law Judge finds that the claim has been closed
prematurely, the Administrative Law Judge shall issue an order
rescinding the notice of closure.
Enrolled House Bill 2195 (HB 2195-INTRO) Page 7
{ - (8) - } { + (7) + } Any party shall be entitled to
issuance and service of subpoenas under the provisions of ORS
656.726 (2)(c). Any party or representative of the party may
serve such subpoenas.
{ - (9) - } { + (8) + } After a party requests a hearing
and before the hearing commences, the board, by rule, may require
the requesting party, if represented by an attorney, to notify
the Administrative Law Judge in writing that the attorney has
conferred with the other party and that settlement has been
achieved, subject to board approval, or that settlement cannot be
achieved.
SECTION 3. ORS 656.262 is amended to read:
656.262. (1) Processing of claims and providing compensation
for a worker shall be the responsibility of the insurer or
self-insured employer. All employers shall assist their insurers
in processing claims as required in this chapter.
(2) The compensation due under this chapter shall be paid
periodically, promptly and directly to the person entitled
thereto upon the employer's receiving notice or knowledge of a
claim, except where the right to compensation is denied by the
insurer or self-insured employer.
(3)(a) Employers shall, immediately and not later than five
days after notice or knowledge of any claims or accidents which
may result in a compensable injury claim, report the same to
their insurer. The report shall include:
(A) The date, time, cause and nature of the accident and
injuries.
(B) Whether the accident arose out of and in the course of
employment.
(C) Whether the employer recommends or opposes acceptance of
the claim, and the reasons therefor.
(D) The name and address of any health insurance provider for
the injured worker.
(E) Any other details the insurer may require.
(b) Failure to so report subjects the offending employer to a
charge for reimbursing the insurer for any penalty the insurer is
required to pay under subsection (11) of this section because of
such failure. As used in this subsection, 'health insurance' has
the meaning for that term provided in ORS 731.162.
(4)(a) The first installment of temporary disability
compensation shall be paid no later than the 14th day after the
subject employer has notice or knowledge of the claim, if the
attending physician or nurse practitioner authorized to provide
compensable medical services under ORS 656.245 authorizes the
payment of temporary disability compensation. Thereafter,
temporary disability compensation shall be paid at least once
each two weeks, except where the Director of the Department of
Consumer and Business Services determines that payment in
installments should be made at some other interval. The director
may by rule convert monthly benefit schedules to weekly or other
periodic schedules.
(b) Notwithstanding any other provision of this chapter, if a
self-insured employer pays to an injured worker who becomes
disabled the same wage at the same pay interval that the worker
received at the time of injury, such payment shall be deemed
timely payment of temporary disability payments pursuant to ORS
656.210 and 656.212 during the time the wage payments are made.
(c) Notwithstanding any other provision of this chapter, when
the holder of a public office is injured in the course and scope
of that public office, full official salary paid to the holder of
Enrolled House Bill 2195 (HB 2195-INTRO) Page 8
that public office shall be deemed timely payment of temporary
disability payments pursuant to ORS 656.210 and 656.212 during
the time the wage payments are made. As used in this subsection,
' public office' has the meaning for that term provided in ORS
260.005.
(d) Temporary disability compensation is not due and payable
for any period of time for which the insurer or self-insured
employer has requested from the worker's attending physician or
nurse practitioner authorized to provide compensable medical
services under ORS 656.245 verification of the worker's inability
to work resulting from the claimed injury or disease and the
physician or nurse practitioner cannot verify the worker's
inability to work, unless the worker has been unable to receive
treatment for reasons beyond the worker's control.
(e) If a worker fails to appear at an appointment with the
worker's attending physician or nurse practitioner authorized to
provide compensable medical services under ORS 656.245, the
insurer or self-insured employer shall notify the worker by
certified mail that temporary disability benefits may be
suspended after the worker fails to appear at a rescheduled
appointment. If the worker fails to appear at a rescheduled
appointment, the insurer or self-insured employer may suspend
payment of temporary disability benefits to the worker until the
worker appears at a subsequent rescheduled appointment.
(f) If the insurer or self-insured employer has requested and
failed to receive from the worker's attending physician or nurse
practitioner authorized to provide compensable medical services
under ORS 656.245 verification of the worker's inability to work
resulting from the claimed injury or disease, medical services
provided by the attending physician or nurse practitioner are not
compensable until the attending physician or nurse practitioner
submits such verification.
(g) Temporary disability compensation is not due and payable
pursuant to ORS 656.268 after the worker's attending physician or
nurse practitioner authorized to provide compensable medical
services under ORS 656.245 ceases to authorize temporary
disability or for any period of time not authorized by the
attending physician or nurse practitioner. No authorization of
temporary disability compensation by the attending physician or
nurse practitioner under ORS 656.268 shall be effective to
retroactively authorize the payment of temporary disability more
than 14 days prior to its issuance.
(h) The worker's disability may be authorized only by a person
described in ORS 656.005 (12)(b)(B) or 656.245 for the period of
time permitted by those sections. The insurer or self-insured
employer may unilaterally suspend payment of temporary disability
benefits to the worker at the expiration of the period until
temporary disability is reauthorized by an attending physician or
nurse practitioner authorized to provide compensable medical
services under ORS 656.245.
(i) The insurer or self-insured employer may unilaterally
suspend payment of all compensation to a worker enrolled in a
managed care organization if the worker continues to seek care
from an attending physician or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 that is
not authorized by the managed care organization more than seven
days after the mailing of notice by the insurer or self-insured
employer.
(5)(a) Payment of compensation under subsection (4) of this
section or payment, in amounts per claim not to exceed the
Enrolled House Bill 2195 (HB 2195-INTRO) Page 9
maximum amount established annually by the Director of the
Department of Consumer and Business Services, for medical
services for nondisabling claims, may be made by the subject
employer if the employer so chooses. The making of such payments
does not constitute a waiver or transfer of the insurer's duty to
determine entitlement to benefits. If the employer chooses to
make such payment, the employer shall report the injury to the
insurer in the same manner that other injuries are reported.
However, an insurer shall not modify an employer's experience
rating or otherwise make charges against the employer for any
medical expenses paid by the employer pursuant to this
subsection.
(b) To establish the maximum amount an employer may pay for
medical services for nondisabling claims under paragraph (a) of
this subsection, the director shall use $1,500 as the base
compensation amount and shall adjust the base compensation amount
annually to reflect changes in the United States City Average
Consumer Price Index for All Urban Consumers for Medical Care for
July of each year as published by the Bureau of Labor Statistics
of the United States Department of Labor. The adjustment shall be
rounded to the nearest multiple of $100.
(c) The adjusted amount established under paragraph (b) of this
subsection shall be effective on January 1 following the
establishment of the amount and shall apply to claims with a date
of injury on or after the effective date of the adjusted amount.
(6)(a) Written notice of acceptance or denial of the claim
shall be furnished to the claimant by the insurer or self-insured
employer within 60 days after the employer has notice or
knowledge of the claim. Once the claim is accepted, the insurer
or self-insured employer shall not revoke acceptance except as
provided in this section. The insurer or self-insured employer
may revoke acceptance and issue a denial at any time when the
denial is for fraud, misrepresentation or other illegal activity
by the worker. If the worker requests a hearing on any revocation
of acceptance and denial alleging fraud, misrepresentation or
other illegal activity, the insurer or self-insured employer has
the burden of proving, by a preponderance of the evidence, such
fraud, misrepresentation or other illegal activity. Upon such
proof, the worker then has the burden of proving, by a
preponderance of the evidence, the compensability of the claim.
If the insurer or self-insured employer accepts a claim in good
faith, in a case not involving fraud, misrepresentation or other
illegal activity by the worker, and later obtains evidence that
the claim is not compensable or evidence that the insurer or
self-insured employer is not responsible for the claim, the
insurer or self-insured employer may revoke the claim acceptance
and issue a formal notice of claim denial, if such revocation of
acceptance and denial is issued no later than two years after the
date of the initial acceptance. If the worker requests a hearing
on such revocation of acceptance and denial, the insurer or
self-insured employer must prove, by a preponderance of the
evidence, that the claim is not compensable or that the insurer
or self-insured employer is not responsible for the claim.
Notwithstanding any other provision of this chapter, if a denial
of a previously accepted claim is set aside by an Administrative
Law Judge, the Workers' Compensation Board or the court,
temporary total disability benefits are payable from the date any
such benefits were terminated under the denial. Except as
provided in ORS 656.247, pending acceptance or denial of a claim,
compensation payable to a claimant does not include the costs of
Enrolled House Bill 2195 (HB 2195-INTRO) Page 10
medical benefits or burial expenses. The insurer shall also
furnish the employer a copy of the notice of acceptance.
(b) The notice of acceptance shall:
(A) Specify what conditions are compensable.
(B) Advise the claimant whether the claim is considered
disabling or nondisabling.
(C) Inform the claimant of the Expedited Claim Service and of
the hearing and aggravation rights concerning nondisabling
injuries, including the right to object to a decision that the
injury of the claimant is nondisabling by requesting
reclassification pursuant to ORS 656.277.
(D) Inform the claimant of employment reinstatement rights and
responsibilities under ORS chapter 659A.
(E) Inform the claimant of assistance available to employers
and workers from the Reemployment Assistance Program under ORS
656.622.
(F) Be modified by the insurer or self-insured employer from
time to time as medical or other information changes a previously
issued notice of acceptance.
(c) An insurer's or self-insured employer's acceptance of a
combined or consequential condition under ORS 656.005 (7),
whether voluntary or as a result of a judgment or order, shall
not preclude the insurer or self-insured employer from later
denying the combined or consequential condition if the otherwise
compensable injury ceases to be the major contributing cause of
the combined or consequential condition.
(d) An injured worker who believes that a condition has been
incorrectly omitted from a notice of acceptance, or that the
notice is otherwise deficient, first must communicate in writing
to the insurer or self-insured employer the worker's objections
to the notice pursuant to ORS 656.267. The insurer or
self-insured employer has 60 days from receipt of the
communication from the worker to revise the notice or to make
other written clarification in response. A worker who fails to
comply with the communication requirements of this paragraph or
ORS 656.267 may not allege at any hearing or other proceeding on
the claim a de facto denial of a condition based on information
in the notice of acceptance from the insurer or self-insured
employer. Notwithstanding any other provision of this chapter,
the worker may initiate objection to the notice of acceptance at
any time.
(7)(a) After claim acceptance, written notice of acceptance or
denial of claims for aggravation or new medical or omitted
condition claims properly initiated pursuant to ORS 656.267 shall
be furnished to the claimant by the insurer or self-insured
employer within 60 days after the insurer or self-insured
employer receives written notice of such claims. A worker who
fails to comply with the communication requirements of subsection
(6) of this section or ORS 656.267 may not allege at any hearing
or other proceeding on the claim a de facto denial of a condition
based on information in the notice of acceptance from the insurer
or self-insured employer.
(b) Once a worker's claim has been accepted, the insurer or
self-insured employer must issue a written denial to the worker
when the accepted injury is no longer the major contributing
cause of the worker's combined condition before the claim may be
closed.
(c) When an insurer or self-insured employer determines that
the claim qualifies for claim closure, the insurer or
self-insured employer shall issue at claim closure an updated
Enrolled House Bill 2195 (HB 2195-INTRO) Page 11
notice of acceptance that specifies which conditions are
compensable. The procedures specified in subsection (6)(d) of
this section apply to this notice. Any objection to the updated
notice or appeal of denied conditions shall not delay claim
closure pursuant to ORS 656.268. If a condition is found
compensable after claim closure, the insurer or self-insured
employer shall reopen the claim for processing regarding that
condition.
(8) The assigned claims agent in processing claims under ORS
656.054 shall send notice of acceptance or denial to the
noncomplying employer.
(9) If an insurer or any other duly authorized agent of the
employer for such purpose, on record with the Director of the
Department of Consumer and Business Services denies a claim for
compensation, written notice of such denial, stating the reason
for the denial, and informing the worker of the Expedited Claim
Service and of hearing rights under ORS 656.283, shall be given
to the claimant. A copy of the notice of denial shall be mailed
to the director and to the employer by the insurer. The worker
may request a hearing pursuant to ORS 656.319.
(10) Merely paying or providing compensation shall not be
considered acceptance of a claim or an admission of liability,
nor shall mere acceptance of such compensation be considered a
waiver of the right to question the amount thereof. Payment of
permanent disability benefits pursuant to a notice of closure,
reconsideration order or litigation order, or the failure to
appeal or seek review of such an order or notice of closure,
shall not preclude an insurer or self-insured employer from
subsequently contesting the compensability of the condition rated
therein, unless the condition has been formally accepted.
(11)(a) If the insurer or self-insured employer unreasonably
delays or unreasonably refuses to pay compensation, or
unreasonably delays acceptance or denial of a claim, the insurer
or self-insured employer shall be liable for an additional amount
up to 25 percent of the amounts then due plus any attorney fees
assessed under this section. The fees assessed by the director,
an Administrative Law Judge, the board or the court under this
section shall be proportionate to the benefit to the injured
worker. The board shall adopt rules for establishing the amount
of the attorney fee, giving primary consideration to the results
achieved and to the time devoted to the case. An attorney fee
awarded pursuant to this subsection may not exceed $2,000 absent
a showing of extraordinary circumstances. Notwithstanding any
other provision of this chapter, the director shall have
exclusive jurisdiction over proceedings regarding solely the
assessment and payment of the additional amount and attorney fees
described in this subsection. The action of the director and the
review of the action taken by the director shall be subject to
review under ORS 656.704.
(b) When the director does not have exclusive jurisdiction over
proceedings regarding the assessment and payment of the
additional amount and attorney fees described in this subsection,
the provisions of this subsection shall apply in the other
proceeding.
(12) The insurer may authorize an employer to pay compensation
to injured workers and shall reimburse employers for compensation
so paid.
(13) Injured workers have the duty to cooperate and assist the
insurer or self-insured employer in the investigation of claims
for compensation. Injured workers shall submit to and shall fully
Enrolled House Bill 2195 (HB 2195-INTRO) Page 12
cooperate with personal and telephonic interviews and other
formal or informal information gathering techniques. Injured
workers who are represented by an attorney shall have the right
to have the attorney present during any personal or telephonic
interview or deposition. However, if the attorney is not willing
or available to participate in an interview at a time reasonably
chosen by the insurer or self-insured employer within 14 days of
the request for interview and the insurer or self-insured
employer has cause to believe that the attorney's unwillingness
or unavailability is unreasonable and is preventing the worker
from complying within 14 days of the request for interview, the
insurer or self-insured employer shall notify the director. If
the director determines that the attorney's unwillingness or
unavailability is unreasonable, the director shall assess a civil
penalty against the attorney of not more than $1,000.
(14) If the director finds that a worker fails to reasonably
cooperate with an investigation involving an initial claim to
establish a compensable injury or an aggravation claim to reopen
the claim for a worsened condition, the director shall suspend
all or part of the payment of compensation after notice to the
worker. If the worker does not cooperate for an additional 30
days after the notice, the insurer or self-insured employer may
deny the claim because of the worker's failure to cooperate. The
obligation of the insurer or self-insured employer to accept or
deny the claim within 60 days is suspended during the time of the
worker's noncooperation. After such a denial, the worker shall
not be granted a hearing or other proceeding under this chapter
on the merits of the claim unless the worker first requests and
establishes at an expedited hearing under ORS 656.291 that the
worker fully and completely cooperated with the investigation,
that the worker failed to cooperate for reasons beyond the
worker's control or that the investigative demands were
unreasonable. If the Administrative Law Judge finds that the
worker has not fully cooperated, the Administrative Law Judge
shall affirm the denial, and the worker's claim for injury shall
remain denied. If the Administrative Law Judge finds that the
worker has cooperated, or that the investigative demands were
unreasonable, the Administrative Law Judge shall set aside the
denial, order the reinstatement of interim compensation if
appropriate and remand the claim to the insurer or self-insured
employer to accept or deny the claim.
(15) In accordance with ORS { - 656.283 (4) - } { + 656.283
(3) + }, the Administrative Law Judge assigned a request for
hearing for a claim for compensation involving more than one
potentially responsible employer or insurer may specify what is
required of an injured worker to reasonably cooperate with the
investigation of the claim as required by subsection (13) of this
section.
SECTION 4. ORS 656.313 is amended to read:
656.313. (1)(a) Filing by an employer or the insurer of a
request for hearing on a reconsideration order before the
Hearings Division, a request for Workers' Compensation Board
review or court appeal or request for review of an order of the
Director of the Department of Consumer and Business Services
regarding vocational assistance stays payment of the compensation
appealed, except for:
(A) Temporary disability benefits that accrue from the date of
the order appealed from until closure under ORS 656.268, or until
the order appealed from is itself reversed, whichever event first
occurs;
Enrolled House Bill 2195 (HB 2195-INTRO) Page 13
(B) Permanent total disability benefits that accrue from the
date of the order appealed from until the order appealed from is
reversed;
(C) Death benefits payable to a surviving spouse prior to
remarriage, to children or dependents that accrue from the date
of the order appealed from until the order appealed from is
reversed; and
(D) Vocational benefits ordered by the director pursuant to ORS
{ - 656.283 (2) - } { + 656.340 (16) + }. If a denial of
vocational benefits is upheld by a final order, the insurer or
self-insured employer shall be reimbursed from the Workers'
Benefit Fund pursuant to ORS 656.605 for all costs incurred in
providing vocational benefits as a result of the order that was
appealed.
(b) If ultimately found payable under a final order, benefits
withheld under this subsection shall accrue interest at the rate
provided in ORS 82.010 from the date of the order appealed from
through the date of payment. The board shall expedite review of
appeals in which payment of compensation has been stayed under
this section.
(2) If the board or court subsequently orders that compensation
to the claimant should not have been allowed or should have been
awarded in a lesser amount than awarded, the claimant shall not
be obligated to repay any such compensation which was paid
pending the review or appeal.
(3) If an insurer or self-insured employer denies the
compensability of all or any portion of a claim submitted for
medical services, the insurer or self-insured employer shall send
notice of the denial to each provider of such medical services
and to any provider of health insurance for the injured worker.
Except for medical services payable in accordance with ORS
656.247, after receiving notice of the denial, a medical service
provider may submit medical reports and bills for the disputed
medical services to the provider of health insurance for the
injured worker. The health insurance provider shall pay all such
bills in accordance with the limits, terms and conditions of the
policy. If the injured worker has no health insurance, such bills
may be submitted to the injured worker. A provider of disputed
medical services shall make no further effort to collect disputed
medical service bills from the injured worker until the issue of
compensability of the medical services has been finally
determined.
(4) Except for medical services payable in accordance with ORS
656.247:
(a) When the compensability issue has been finally determined
or when disposition or settlement of the claim has been made
pursuant to ORS 656.236 or 656.289 (4), the insurer or
self-insured employer shall notify each affected service provider
and health insurance provider of the results of the disposition
or settlement.
(b) If the services are determined to be compensable, the
insurer or self-insured employer shall reimburse each health
insurance provider for the amount of claims paid by the health
insurance provider pursuant to this section. Such reimbursement
shall be in addition to compensation or medical benefits the
worker receives. Medical service reimbursement shall be paid
directly to the health insurance provider.
(c) If the services are settled pursuant to ORS 656.289 (4),
the insurer or self-insured employer shall reimburse, out of the
settlement proceeds, each medical service provider for billings
Enrolled House Bill 2195 (HB 2195-INTRO) Page 14
received by the insurer or self-insured employer on and before
the date on which the terms of settlement are agreed as specified
in the settlement document that are not otherwise partially or
fully reimbursed.
(d) Reimbursement under this section shall be made only for
medical services related to the claim that would be compensable
under this chapter if the claim were compensable and shall be
made at one-half the amount provided under ORS 656.248. In no
event shall reimbursement made to medical service providers
exceed 40 percent of the total present value of the settlement
amount, except with the consent of the worker. If the settlement
proceeds are insufficient to allow each medical service provider
the reimbursement amount authorized under this subsection, the
insurer or self-insured employer shall reduce each provider's
reimbursement by the same proportional amount. Reimbursement
under this section shall not prevent a medical service provider
or health insurance provider from recovering the balance of
amounts owing for such services directly from the worker.
(5) As used in this section, 'health insurance' has the meaning
for that term provided in ORS 731.162.
SECTION 5. ORS 656.704 is amended to read:
656.704. (1) Actions and orders of the Director of the
Department of Consumer and Business Services regarding matters
concerning a claim under this chapter, and administrative and
judicial review of those matters, are subject to the procedural
provisions of this chapter and such procedural rules as the
Workers' Compensation Board may prescribe.
(2)(a) A party dissatisfied with an action or order regarding a
matter other than a matter concerning a claim under this chapter
may request a hearing on the matter in writing to the director.
The director shall refer the request for hearing to the Workers'
Compensation Board for a hearing before an Administrative Law
Judge. Review of an order issued by the Administrative Law Judge
shall be by the director and the director shall issue a final
order that is subject to judicial review as provided by ORS
183.480 to 183.497.
(b) The director shall prescribe the classes of orders issued
under this subsection by Administrative Law Judges and other
personnel that are final, appealable orders and those orders that
are preliminary orders subject to revision by the director.
(3)(a) For the purpose of determining the respective authority
of the director and the board to conduct hearings, investigations
and other proceedings under this chapter, and for determining the
procedure for the conduct and review thereof, matters concerning
a claim under this chapter are those matters in which a worker's
right to receive compensation, or the amount thereof, are
directly in issue. However, subject to paragraph (b) of this
subsection, such matters do not include any disputes arising
under ORS 656.245, 656.247, 656.248, 656.260 or 656.327, any
other provisions directly relating to the provision of medical
services to workers or any disputes arising under ORS 656.340
except as those provisions may otherwise provide.
(b) The respective authority of the board and the director to
resolve medical service disputes shall be determined according to
the following principles:
(A) Any dispute that requires a determination of the
compensability of the medical condition for which medical
services are proposed is a matter concerning a claim.
(B) Any dispute that requires a determination of whether
medical services are excessive, inappropriate, ineffectual or in
Enrolled House Bill 2195 (HB 2195-INTRO) Page 15
violation of the rules regarding the performance of medical
services, or a determination of whether medical services for an
accepted condition qualify as compensable medical services among
those listed in ORS 656.245 (1)(c), is not a matter concerning a
claim.
(C) Any dispute that requires a determination of whether a
sufficient causal relationship exists between medical services
and an accepted claim to establish compensability is a matter
concerning a claim.
(c) Notwithstanding ORS { - 656.283 (4) - } { + 656.283
(3) + }, if parties to a hearing scheduled before an
Administrative Law Judge are involved in a dispute regarding both
matters concerning a claim and matters not concerning a claim,
the Administrative Law Judge may defer any action on the matter
concerning a claim until the director has completed an
administrative review of the matters other than those concerning
a claim. The director shall mail a copy of the administrative
order to the parties and to the Administrative Law Judge. A party
may request a hearing on the order of the director. At the
request of a party or by the own motion of the Administrative Law
Judge, the hearings on the separate matters may be consolidated.
The Administrative Law Judge shall issue an order for those
matters concerning a claim and a separate order for matters other
than those concerning a claim.
(4) Hearings under ORS 656.740 shall be conducted by an
Administrative Law Judge from the board's Hearings Division.
(5) If a request for hearing or administrative review is filed
with either the director or the board and it is determined that
the request should have been filed with the other, the dispute
shall be transferred. Filing a request will be timely filed if
the original filing was completed within the prescribed time.
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Passed by House February 19, 2009
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate March 20, 2009
...........................................................
President of Senate
Enrolled House Bill 2195 (HB 2195-INTRO) Page 16
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled House Bill 2195 (HB 2195-INTRO) Page 17