Chapter 656 — Workers’
Compensation
ORS sections in this chapter were
amended or repealed by the Legislative Assembly during its 2012 regular
session. See the table of ORS sections amended or repealed during the 2012
regular session: 2012 A&R Tables
2011 EDITION
WORKERS’ COMPENSATION
LABOR, EMPLOYMENT; UNLAWFUL
DISCRIMINATION
GENERAL PROVISIONS
656.001 Short
title
656.003 Application
of definitions to construction of chapter
656.005 Definitions
656.006 Effect
on employers’ liability law
656.008 Extension
of laws relating to workers’ compensation to federal lands and projects within
state
656.010 Treatment
by spiritual means
656.012 Findings
and policy
COVERAGE
656.017 Employer
required to pay compensation and perform other duties; state not authorized to
be direct responsibility employer
656.018 Effect
of providing coverage; exclusive remedy
656.019 Civil
negligence action for claim denied on basis of failure to meet major contributing
cause standard; statute of limitations
656.020 Damage
actions by workers against noncomplying employers; defenses outlawed
656.021 Person
performing work under ORS chapter 701 as subject employer
656.023 Who
are subject employers
656.025 Individuals
engaged in commuter ridesharing not subject workers; conditions
656.027 Who
are subject workers
656.029 Obligation
of person awarding contract to provide coverage for workers under contract;
exceptions; effect of failure to provide coverage
656.031 Coverage
for municipal volunteer personnel
656.033 Coverage
for participants in work experience or school directed professional training
programs
656.035 Status
of workers in separate occupations of employer
656.037 Exemption
from coverage for persons engaged in certain real estate activities
656.039 Election
of coverage for workers not subject to law; procedure; cancellation; election
of coverage for home health care workers employed by clients of Department of
Human Services
656.041 City
or county may elect to provide coverage for jail inmates
656.043 Governmental
agency paying wages responsible for providing coverage
656.044 State
Accident Insurance Fund Corporation may insure liability under Longshoremen’s
and Harbor Workers’ Compensation Act; procedure; cancellation
656.046 Coverage
of persons in college work experience and professional education programs
656.052 Prohibition
against employment without coverage; proposed order declaring noncomplying
employer; effect of failure to comply
656.054 Claim
of injured worker of noncomplying employer; procedure for disputing acceptance
of claim; recovery of costs from noncomplying employer; restrictions
656.056 Subject
employers must post notice of manner of compliance
656.070 Definitions
for ORS 656.027, 656.070 and 656.075
656.075 Exemption
from coverage for newspaper carriers; casualty insurance and other requirements
656.126 Coverage
while temporarily in or out of state; judicial notice of other state’s laws;
agreements between states relating to conflicts of jurisdiction; limitation on
compensation for claims in this state and other jurisdictions
656.128 Sole
proprietors, limited liability company members, partners, independent
contractors may elect coverage by insurer; cancellation
656.132 Coverage
of minors
656.135 Coverage
of deaf school work experience trainees
656.138 Coverage
of apprentices, trainees participating in related instruction classes
656.140 Coverage
of persons operating equipment for hire
656.154 Injury
due to negligence or wrong of a person not in the same employ as injured
worker; remedy against such person
656.156 Intentional
injuries
656.160 Effect
of incarceration on receipt of compensation
656.170 Validity
of provisions of certain collective bargaining agreements; alternative dispute
resolution systems; exclusive medical service provider lists; authority of
director
656.172 Applicability
of and criteria for establishing program under ORS 656.170
656.174 Rules
APPLICABILITY PROVISIONS
656.202 Compensation
payable to subject worker in accordance with law in effect at time of injury;
exceptions; notice regarding payment
Note Implementation
of 1990 Laws
Note Implementation
of 1995 Laws
Note Implementation
of 1997 Laws
Note Implementation
of 2001 Laws
Note Implementation
of 2003 Laws
Note Implementation
of 2005 Laws
Note Implementation
of 2007 Laws
Note Implementation
of 2009 Laws
Note Implementation
of 2011 Laws
COMPENSATION AND MEDICAL BENEFITS
656.204 Death
656.206 Permanent
total disability
656.208 Death
during permanent total disability
656.209 Offsetting
permanent total disability benefits against Social Security benefits
656.210 Temporary
total disability; payment during medical treatment; election; rules
656.211 “Average
weekly wage” defined
656.212 Temporary
partial disability
656.214 Permanent
partial disability
Note Benefits,
January 1, 1992, to December 31, 1995
Note Benefits,
January 1, 1996, to December 31, 1997
Note Benefits,
January 1, 1998, to October 23, 1999
Note Benefits,
January 1, 2000, to December 31, 2004
Note Benefits,
January 1, 2002, to December 31, 2004
656.216 Permanent
partial disability; method of payment; effect of prior receipt of temporary
disability payments
656.218 Continuance
of permanent partial disability payments to survivors; effect of death prior to
final claim disposition
656.222 Compensation
for additional accident
656.225 Compensability
of certain preexisting conditions
656.226 Cohabitants
and children entitled to compensation
656.228 Payments
directly to beneficiary or custodian
656.230 Lump
sum award payments
656.232 Payments
to aliens residing outside of United States
656.234 Compensation
not assignable nor to pass by operation of law; certain benefits subject to
support obligations
656.236 Compromise
and release of claim matters except for medical benefits; approval by
Administrative Law Judge or board; approval by director for certain reserve
reimbursements; restriction on charging costs to workers; restriction on
joinder as parties for responsibility determinations
656.240 Deduction
of benefits from sick leave payments paid to employees
656.245 Medical
services to be provided; services by providers not members of managed care
organizations; authorizing temporary disability compensation and making finding
of impairment for disability rating purposes by certain providers; review of
disputed claims for medical services; rules
656.247 Payment
for medical services prior to claim acceptance or denial; review of disputed
services; duty of health benefit plan to pay for certain medical services in
denied claim
656.248 Medical
service fee schedules; basis of fees; application to service provided by
managed care organization; resolution of fee disputes; rules
656.250 Limitation
on compensability of physical therapist services
656.252 Medical
report regulation; rules; duties of attending physician or nurse practitioner;
disclosure of information; notice of changing attending physician or nurse
practitioner; copies of medical service billings to be furnished to worker
656.254 Medical
report forms; sanctions; procedure for declaring health care practitioner
ineligible for workers’ compensation reimbursement
656.256 Considerations
for rules regarding certain rural hospitals
656.258 Vocational
assistance service payments
656.260 Certification
procedure for managed health care provider; peer review, quality assurance,
service utilization and contract review; confidentiality of certain
information; immunity from liability; rules; medical service dispute resolution;
penalties
PROCEDURE FOR OBTAINING COMPENSATION
656.262 Processing
of claims and payment of compensation; payment by employer; acceptance and
denial of claim; penalties and attorney fees; cooperation by worker and
attorney in claim investigation; rules
656.263 To
whom notices sent under ORS 656.262, 656.265, 656.268 to 656.289, 656.295 to
656.325 and 656.382 to 656.388
656.264 Compensable
injury, denied claim and other reports
656.265 Notice
of accident from worker
656.266 Burden
of proving compensability and nature and extent of disability
656.267 Claims
for new and omitted medical conditions
656.268 Claim
closure; termination of temporary total disability benefits; reconsideration of
closure; medical arbiter to make findings of impairment for reconsideration;
credit or offset for fraudulently obtained or overpaid benefits; rules
656.273 Aggravation
for worsened conditions; procedure; limitations; additional compensation
656.277 Request
for reclassification of nondisabling claim; nondisabling claim procedure
656.278 Board
has continuing authority to alter earlier action on claim; limitations
656.283 Hearing
rights and procedure; rules; impeachment evidence; use of standards for
evaluation of disability
656.285 Protection
of witnesses at hearings
656.287 Use
of vocational reports in determining loss of earning capacity at hearing; rules
656.289 Orders
of Administrative Law Judge; review; disposition of claim when compensability
disputed; approval of director required for reimbursement of certain
expenditures
656.291 Expedited
Claim Service; jurisdiction; procedure; representation; rules
656.295 Board
review of Administrative Law Judge orders; application of standards for
evaluation of disability
656.298 Judicial
review of board orders; settlement during pendency of petition for review
656.304 When
acceptance of compensation precludes hearing
656.307 Determination
of issues regarding responsibility for compensation payment; mediation or
arbitration procedure; rules
656.308 Responsibility
for payment of claims; effect of new injury; denial of responsibility;
procedure for joining employers and insurers; attorney fees; limitation on
filing claims subject to settlement agreement
656.310 Presumption
concerning notice of injury and self-inflicted injuries; reports as evidence
656.313 Stay
of compensation pending request for hearing or review; procedure for denial of
claim for medical services; reimbursement
656.319 Time
within which hearing must be requested
656.325 Required
medical examination; worker-requested examination; qualified physicians;
claimant’s duty to reduce disability; suspension or reduction of benefits;
cessation or reduction of temporary total disability benefits; rules; penalties
656.327 Review
of medical treatment of worker; findings; review; costs
656.328 List
of authorized providers and standards of professional conduct for providers of
independent medical examinations; exclusion; complaints; rules
656.331 Contact,
medical examination of worker represented by attorney prohibited without
written notice; rules
656.340 Vocational
assistance procedure; eligibility criteria; service providers; resolution of
vocational assistance disputes; rules
DISCLOSURE OF WORKER MEDICAL AND
VOCATIONAL CLAIM RECORDS
656.360 Confidentiality
of worker medical and vocational claim records
656.362 Liability
for disclosure of worker medical and vocational claim records
LEGAL REPRESENTATION
656.382 Penalties
and attorney fees payable by insurer or employer in processing claim
656.385 Attorney
fees in cases regarding certain medical service or vocational rehabilitation
matters; rules; limitation; penalties
656.386 Recovery
of attorney fees, expenses and costs in appeal on denied claim; attorney fees
in other cases
656.388 Approval
of attorney fees required; lien for fees; fee schedule; report of legal service
costs
656.390 Frivolous
appeals, hearing requests or motions; expenses and attorney fee
SELF-INSURED AND CARRIER-INSURED
EMPLOYERS; INSURERS
656.403 Obligations
of self-insured employer
656.407 Qualifications
of insured employers; rules
656.419 Workers’
compensation insurance contracts
656.423 Cancellation
of coverage by employer; notice required
656.427 Termination
of workers’ compensation insurance contract or surety bond liability by
insurer; rules
656.430 Certification
of self-insured employer; employer groups; insurance policy requirements;
revocation of certification; rules
656.434 Certification
effective until canceled or revoked; revocation of certificate
656.440 Notice
of certificate revocation; appeal; effective date
656.443 Procedure
upon default by employer
656.445 Advancement
of funds from Workers’ Benefit Fund for compensation due workers insured by
insurer in default; limitations; rules
656.447 Sanctions
against insurer for failure to comply with contracts, orders or rules
656.455 Self-insured
employers required to keep records of compensation claims; location and
inspection; expenses of audits and inspections; rules
CHARGES AGAINST EMPLOYERS AND WORKERS
656.502 “Fiscal
year” defined
656.504 Rates,
charges, fees and reports by employers insured by State Accident Insurance Fund
Corporation
656.505 Estimate
of payroll when employer fails to file payroll report; demand for and recovery
of premiums and assessments
656.506 Assessments
for programs; setting assessment amount; determination by director of benefit
level
656.508 Authority
to fix premium rates for employers
656.526 Distribution
of dividends from surplus in Industrial Accident Fund
656.536 Premium
charges for coverage of reforestation cooperative workers based on prevailing
wage; manner of determining prevailing wage
ENFORCEMENT OF PREMIUM PAYMENTS
656.552 Deposit
of cash, bond or letter of credit to secure payment of employer’s premiums
656.554 Injunction
against employer failing to comply with deposit requirements
656.556 Liability
of person letting a contract for amounts due from contractor
656.560 Default
in payment of premiums, fees, assessments or deposit; remedies
656.562 Moneys
due Industrial Accident Fund as preferred claims; moneys due department as
taxes due state
656.564 Lien
for amounts due from employer on real property, improvements and equipment on
or with which labor is performed by workers of employer
656.566 Lien
on property of employer for amounts due
RECOVERY AGAINST THIRD PERSONS AND
NONCOMPLYING EMPLOYERS
656.576 “Paying
agency” defined
656.578 Workers’
election whether to sue third person or noncomplying employer for damages
656.580 Payment
of compensation notwithstanding cause of action for damages; lien on cause of
action for compensation paid
656.583 Paying
agency may compel election and prompt action
656.587 Paying
agency must join in any compromise
656.591 Election
not to bring action operates as assignment of cause of action
656.593 Procedure
when worker elects to bring action; release of liability and lien of paying
agency in certain cases
656.595 Precedence
of cause of action; compensation paid or payable not to be an issue
656.596 Damage
recovery as offset against compensation; recovery procedure; notice to paying
agent
FUNDS; SOURCE; INVESTMENT; DISBURSEMENT
(General Provisions)
656.602 Disbursement
procedures
656.605 Workers’
Benefit Fund; uses and limitations
656.612 Assessments
for department activities; amount; collection procedure
656.614 Self-Insured
Employer Adjustment Reserve; Self-Insured Employer Group Adjustment Reserve
656.622 Reemployment
Assistance Program; claim data not to be used for insurance rating; rules
656.625 Reopened
Claims Program; rules
656.628 Workers
with Disabilities Program; use of funds; conditions and limitations; rules
656.630 Center
for Research on Occupational and Environmental Toxicology funding; report of
activities
(Industrial Accident Fund and Reserves)
656.632 Industrial
Accident Fund
656.634 Trust
fund status of Industrial Accident Fund
656.635 Reserve
accounts in Industrial Accident Fund
656.636 Reserves
in Industrial Accident Fund for awards for permanent disability or death
656.640 Creation
of reserves
(Other Funds)
656.642 Emergency
Fund
656.644 Petty
cash funds
ADMINISTRATION
(General Provisions)
656.702 Disclosure
of records of corporation, department and insurers
656.704 Actions
and orders regarding matters concerning claim and matters other than matters
concerning claim; authority of director and board; administrative and judicial
review; rules
656.708 Hearings
Division; duties
656.709 Ombudsman
for injured workers; ombudsman for small business; duties
656.712 Workers’
Compensation Board; members; qualifications; chairperson; confirmation; term;
vacancies
656.714 Removal
of board member
656.716 Board
members not to engage in political or business activity that interferes with
duties as board member; oath and bond required
656.718 Chairperson;
quorum; panels
656.720 Prosecution
and defense of actions by Attorney General and district attorneys
656.722 Authority
to employ subordinates
656.724 Administrative
Law Judges; appointment; qualifications; term; performance survey; removal procedure
656.725 Duties
and status of Administrative Law Judges
656.726 Duties
and powers to carry out workers’ compensation and occupational safety laws;
rules
656.727 Rules
for administration of benefit offset
656.730 Assigned
risk plan
656.732 Power
to compel obedience to subpoenas and punish for misconduct
656.735 Civil
penalty for noncomplying employers; amount; liability of partners and of
corporate and limited liability company officers; effect of final order;
penalty as preferred claim; disposition of moneys collected
656.740 Review
of proposed order declaring noncomplying employer or nonsubjectivity
determination; review of proposed assessment or civil penalty; insurer as
party; hearing
656.745 Civil
penalty for inducing failure to report claims; failure to pay assessments;
failure to comply with statutes, rules or orders; amount; procedure
656.750 Civil
penalty for failure to maintain records of compensation claims; amount;
disposition of funds
(State Accident Insurance Fund Corporation)
656.751 State
Accident Insurance Fund Corporation created; board; members’ qualifications;
terms; compensation; expenses; function; report
656.752 State
Accident Insurance Fund Corporation; purpose and functions
656.753 State
Accident Insurance Fund Corporation exempt from certain financial
administration laws; contracts with state agencies for services
656.754 Manager;
appointment; functions
656.758 Inspection
of books, records and payrolls; statement of employment data; civil penalty for
misrepresentation; failure to submit books for inspection and refusal to keep
correct payroll
656.772 Annual
audit of State Accident Insurance Fund Corporation by Secretary of State; scope
of review; report of audit
656.774 Annual
report by State Accident Insurance Fund Corporation to Secretary of State;
contents
656.776 Notice
to Secretary of State regarding action on audit report
(Claims Examiner Certification)
656.780 Certification
and training of claims examiners; records of certification and training of
examiners; department inspection of records; penalties; rules
(Reinsurance Program for Medical
Professional Liability Insurance)
(Temporary provisions relating to
reinsurance program for medical professional liability insurance are compiled
as notes following ORS 656.780)
(Advisory Committees)
656.790 Workers’
Compensation Management-Labor Advisory Committee; membership; duties; expenses
656.794 Advisory
committee on medical care; rules
INFORMATIONAL MATERIALS ABOUT WORKERS’
COMPENSATION SYSTEM
656.795 Informational
materials for nurse practitioners
656.797 Certification
by nurse practitioner of review of required materials
656.798 Duty
of insurer, self-insured employer and self-insured employer group to provide
information to director
656.799 Informational
materials for other health care professionals; certification of review of
materials
OCCUPATIONAL DISEASE LAW
656.802 Occupational
disease; mental disorder; proof
656.804 Occupational
disease as an injury under Workers’ Compensation Law
656.807 Time
for filing of claims for occupational disease; procedure
WORKER LEASING COMPANIES
656.850 License;
compliance with workers’ compensation and safety laws
656.855 Licensing
system for worker leasing companies; rules; dedication of moneys received
PENALTIES
656.990 Penalties
GENERAL PROVISIONS
656.001 Short title.
This chapter may be cited as the Workers’ Compensation Law. [1965 c.285 §1;
1977 c.109 §1]
656.002
[Amended by 1957 c.718 §1; 1959 c.448 §1; 1965 c.285 §4; 1967 c.341 §2; 1969
c.125 §1; 1969 c.247 §1; 1973 c.497 §1; 1973 c.620 §1; repealed by 1975 c.556 §1
(656.003, 656.005 enacted in lieu of 656.002)]
656.003 Application of definitions to
construction of chapter. Except where the context
otherwise requires, the definitions given in this chapter govern its
construction. [1975 c.556 §2 (enacted in lieu of 656.002)]
656.004
[Repealed by 1981 c.535 §28, (656.012 enacted in lieu of 656.004)]
656.005 Definitions.
(1) “Average weekly wage” means the Oregon average weekly wage in covered employment,
as determined by the Employment Department, for the last quarter of the
calendar year preceding the fiscal year in which the injury occurred.
(2)
“Beneficiary” means an injured worker, and the husband, wife, child or
dependent of a worker, who is entitled to receive payments under this chapter. “Beneficiary”
does not include:
(a)
A spouse of an injured worker living in a state of abandonment for more than
one year at the time of the injury or subsequently. A spouse who has lived
separate and apart from the worker for a period of two years and who has not
during that time received or attempted by process of law to collect funds for
support or maintenance is considered living in a state of abandonment.
(b)
A person who intentionally causes the compensable injury to or death of an
injured worker.
(3)
“Board” means the Workers’ Compensation Board.
(4)
“Carrier-insured employer” means an employer who provides workers’ compensation
coverage with the State Accident Insurance Fund Corporation or an insurer
authorized under ORS chapter 731 to transact workers’ compensation insurance in
this state.
(5)
“Child” includes a posthumous child, a child legally adopted prior to the
injury, a child toward whom the worker stands in loco parentis, a child born
out of wedlock and a stepchild, if such stepchild was, at the time of the
injury, a member of the worker’s family and substantially dependent upon the
worker for support. A dependent child who is an invalid is a child, for
purposes of benefits, regardless of age, so long as the child was an invalid at
the time of the accident and thereafter remains an invalid substantially
dependent on the worker for support. For purposes of this chapter, a dependent
child who is an invalid is considered to be a child under 18 years of age.
(6)
“Claim” means a written request for compensation from a subject worker or
someone on the worker’s behalf, or any compensable injury of which a subject
employer has notice or knowledge.
(7)(a)
A “compensable injury” is an accidental injury, or accidental injury to
prosthetic appliances, arising out of and in the course of employment requiring
medical services or resulting in disability or death; an injury is accidental
if the result is an accident, whether or not due to accidental means, if it is
established by medical evidence supported by objective findings, subject to the
following limitations:
(A)
No injury or disease is compensable as a consequence of a compensable injury
unless the compensable injury is the major contributing cause of the
consequential condition.
(B)
If an otherwise compensable injury combines at any time with a preexisting
condition to cause or prolong disability or a need for treatment, the combined
condition is compensable only if, so long as and to the extent that the
otherwise compensable injury is the major contributing cause of the disability
of the combined condition or the major contributing cause of the need for
treatment of the combined condition.
(b)
“Compensable injury” does not include:
(A)
Injury to any active participant in assaults or combats which are not connected
to the job assignment and which amount to a deviation from customary duties;
(B)
Injury incurred while engaging in or performing, or as the result of engaging
in or performing, any recreational or social activities primarily for the
worker’s personal pleasure; or
(C)
Injury the major contributing cause of which is demonstrated to be by a
preponderance of the evidence the injured worker’s consumption of alcoholic
beverages or the unlawful consumption of any controlled substance, unless the
employer permitted, encouraged or had actual knowledge of such consumption.
(c)
A “disabling compensable injury” is an injury which entitles the worker to
compensation for disability or death. An injury is not disabling if no
temporary benefits are due and payable, unless there is a reasonable
expectation that permanent disability will result from the injury.
(d)
A “nondisabling compensable injury” is any injury which requires medical
services only.
(8)
“Compensation” includes all benefits, including medical services, provided for
a compensable injury to a subject worker or the worker’s beneficiaries by an
insurer or self-insured employer pursuant to this chapter.
(9)
“Department” means the Department of Consumer and Business Services.
(10)
“Dependent” means any of the following-named relatives of a worker whose death
results from any injury: Father, mother, grandfather, grandmother, stepfather,
stepmother, grandson, granddaughter, brother, sister, half sister, half
brother, niece or nephew, who at the time of the accident, are dependent in
whole or in part for their support upon the earnings of the worker. Unless
otherwise provided by treaty, aliens not residing within the United States at
the time of the accident other than father, mother, husband, wife or children
are not included within the term “dependent.”
(11)
“Director” means the Director of the Department of Consumer and Business
Services.
(12)(a)
“Doctor” or “physician” means a person duly licensed to practice one or more of
the healing arts in any country or in any state, territory or possession of the
United States within the limits of the license of the licentiate.
(b)
Except as otherwise provided for workers subject to a managed care contract, “attending
physician” means a doctor, physician or physician assistant who is primarily
responsible for the treatment of a worker’s compensable injury and who is:
(A)
A medical doctor or doctor of osteopathy licensed under ORS 677.100 to 677.228
by the Oregon Medical Board, or a podiatric physician and surgeon licensed
under ORS 677.805 to 677.840 by the Oregon Medical Board, an oral and
maxillofacial surgeon licensed by the Oregon Board of Dentistry or a similarly
licensed doctor in any country or in any state, territory or possession of the
United States; or
(B)
For a cumulative total of 60 days from the first visit on the initial claim or
for a cumulative total of 18 visits, whichever occurs first, to any of the
medical service providers listed in this subparagraph, a:
(i)
Doctor or physician licensed by the State Board of Chiropractic Examiners for
the State of Oregon under ORS chapter 684 or a similarly licensed doctor or
physician in any country or in any state, territory or possession of the United
States;
(ii)
Physician assistant licensed by the Oregon Medical Board in accordance with ORS
677.505 to 677.525 or a similarly licensed physician assistant in any country
or in any state, territory or possession of the United States; or
(iii)
Doctor of naturopathy or naturopathic physician licensed by the Oregon Board of
Naturopathic Medicine under ORS chapter 685 or a similarly licensed doctor or
physician in any country or in any state, territory or possession of the United
States.
(c)
Except as otherwise provided for workers subject to a managed care contract, “attending
physician” does not include a physician who provides care in a hospital
emergency room and refers the injured worker to a primary care physician for
follow-up care and treatment.
(d)
“Consulting physician” means a doctor or physician who examines a worker or the
worker’s medical record to advise the attending physician or nurse practitioner
authorized to provide compensable medical services under ORS 656.245 regarding
treatment of a worker’s compensable injury.
(13)(a)
“Employer” means any person, including receiver, administrator, executor or
trustee, and the state, state agencies, counties, municipal corporations,
school districts and other public corporations or political subdivisions, who
contracts to pay a remuneration for and secures the right to direct and control
the services of any person.
(b)
Notwithstanding paragraph (a) of this subsection, for purposes of this chapter,
the client of a temporary service provider is not the employer of temporary
workers provided by the temporary service provider.
(c)
As used in paragraph (b) of this subsection, “temporary service provider” has
the meaning for that term provided in ORS 656.850.
(14)
“Insurer” means the State Accident Insurance Fund Corporation or an insurer
authorized under ORS chapter 731 to transact workers’ compensation insurance in
this state or an assigned claims agent selected by the director under ORS
656.054.
(15)
“Consumer and Business Services Fund” means the fund created by ORS 705.145.
(16)
“Invalid” means one who is physically or mentally incapacitated from earning a
livelihood.
(17)
“Medically stationary” means that no further material improvement would
reasonably be expected from medical treatment, or the passage of time.
(18)
“Noncomplying employer” means a subject employer who has failed to comply with
ORS 656.017.
(19)
“Objective findings” in support of medical evidence are verifiable indications
of injury or disease that may include, but are not limited to, range of motion,
atrophy, muscle strength and palpable muscle spasm. “Objective findings” does
not include physical findings or subjective responses to physical examinations
that are not reproducible, measurable or observable.
(20)
“Palliative care” means medical service rendered to reduce or moderate
temporarily the intensity of an otherwise stable medical condition, but does
not include those medical services rendered to diagnose, heal or permanently
alleviate or eliminate a medical condition.
(21)
“Party” means a claimant for compensation, the employer of the injured worker
at the time of injury and the insurer, if any, of such employer.
(22)
“Payroll” means a record of wages payable to workers for their services and
includes commissions, value of exchange labor and the reasonable value of
board, rent, housing, lodging or similar advantage received from the employer.
However, “payroll” does not include overtime pay, vacation pay, bonus pay,
tips, amounts payable under profit-sharing agreements or bonus payments to
reward workers for safe working practices. Bonus pay is limited to payments
which are not anticipated under the contract of employment and which are paid
at the sole discretion of the employer. The exclusion from payroll of bonus payments
to reward workers for safe working practices is only for the purpose of
calculations based on payroll to determine premium for workers’ compensation
insurance, and does not affect any other calculation or determination based on
payroll for the purposes of this chapter.
(23)
“Person” includes partnership, joint venture, association, limited liability
company and corporation.
(24)(a)
“Preexisting condition” means, for all industrial injury claims, any injury,
disease, congenital abnormality, personality disorder or similar condition that
contributes to disability or need for treatment, provided that:
(A)
Except for claims in which a preexisting condition is arthritis or an arthritic
condition, the worker has been diagnosed with such condition, or has obtained
medical services for the symptoms of the condition regardless of diagnosis; and
(B)(i)
In claims for an initial injury or omitted condition, the diagnosis or
treatment precedes the initial injury;
(ii)
In claims for a new medical condition, the diagnosis or treatment precedes the
onset of the new medical condition; or
(iii)
In claims for a worsening pursuant to ORS 656.273 or 656.278, the diagnosis or
treatment precedes the onset of the worsened condition.
(b)
“Preexisting condition” means, for all occupational disease claims, any injury,
disease, congenital abnormality, personality disorder or similar condition that
contributes to disability or need for treatment and that precedes the onset of
the claimed occupational disease, or precedes a claim for worsening in such
claims pursuant to ORS 656.273 or 656.278.
(c)
For the purposes of industrial injury claims, a condition does not contribute
to disability or need for treatment if the condition merely renders the worker
more susceptible to the injury.
(25)
“Self-insured employer” means an employer or group of employers certified under
ORS 656.430 as meeting the qualifications set out by ORS 656.407.
(26)
“State Accident Insurance Fund Corporation” and “corporation” mean the State
Accident Insurance Fund Corporation created under ORS 656.752.
(27)
“Subject employer” means an employer who is subject to this chapter as provided
by ORS 656.023.
(28)
“Subject worker” means a worker who is subject to this chapter as provided by
ORS 656.027.
(29)
“Wages” means the money rate at which the service rendered is recompensed under
the contract of hiring in force at the time of the accident, including
reasonable value of board, rent, housing, lodging or similar advantage received
from the employer, and includes the amount of tips required to be reported by
the employer pursuant to section 6053 of the Internal Revenue Code of 1954, as
amended, and the regulations promulgated pursuant thereto, or the amount of
actual tips reported, whichever amount is greater. The State Accident Insurance
Fund Corporation may establish assumed minimum and maximum wages, in conformity
with recognized insurance principles, at which any worker shall be carried upon
the payroll of the employer for the purpose of determining the premium of the
employer.
(30)
“Worker” means any person, including a minor whether lawfully or unlawfully
employed, who engages to furnish services for a remuneration, subject to the
direction and control of an employer and includes salaried, elected and appointed
officials of the state, state agencies, counties, cities, school districts and
other public corporations, but does not include any person whose services are
performed as an inmate or ward of a state institution or as part of the
eligibility requirements for a general or public assistance grant. For the
purpose of determining entitlement to temporary disability benefits or
permanent total disability benefits under this chapter, “worker” does not
include a person who has withdrawn from the workforce during the period for
which such benefits are sought.
(31)
“Independent contractor” has the meaning for that term provided in ORS 670.600.
[1975 c.556 §§2 to 19 (enacted in lieu of 656.002); 1977 c.109 §2; 1977 c.804 §1;
1979 c.839 §26; 1981 c.535 §30; 1981 c.723 §3; 1981 c.854 §2; 1983 c.740 §242;
1985 c.212 §1; 1985 c.507 §1; 1985 c.770 §1; 1987 c.373 §31; 1987 c.457 §1;
1987 c.713 §3; 1987 c.884 §25; 1989 c.762 §3; 1990 c.2 §3; 1993 c.739 §23; 1993
c.744 §18; 1995 c.93 §31; 1995 c.332 §1; 1997 c.491 §5; 2001 c.865 §1; 2003
c.811 §§1,2; 2007 c.241 §§6,7; 2007 c.252 §§1,2; 2007 c.365 §1; 2007 c.505 §§1,2;
2009 c.43 §§6,7; 2011 c.117 §1]
Note: See
notes under 656.202.
656.006 Effect on employers’ liability
law. This chapter does not abrogate the
rights of the employee under the present employers’ liability law, in all cases
where the employee, under this chapter is given the right to bring suit against
the employer of the employee for an injury.
656.008 Extension of laws relating to
workers’ compensation to federal lands and projects within state.
Where not inconsistent with the Constitution and laws of the United States, the
laws of this state relating to workers’ compensation and the duties and powers
of the Department of Consumer and Business Services hereby are extended to all
lands and premises owned or held by the United States of America by deed or act
of cession, by purchase or otherwise, which are within the exterior boundaries
of the State of Oregon and to all projects, buildings, constructions, improvements
and all property belonging to the United States within the exterior boundaries
of the State of Oregon in the same way and to the same extent as if said
premises and property were under the exclusive jurisdiction of the State of
Oregon. [Amended by 1977 c.804 §2]
656.010 Treatment by spiritual means.
Nothing in this chapter shall be construed to require a worker who in good
faith relies on or is treated by prayer or spiritual means by a duly accredited
practitioner of a well-recognized church to undergo any medical or surgical
treatment nor shall such worker or the dependents of the worker be deprived of
any compensation payments to which the worker would have been entitled if
medical or surgical treatment were employed, and the employer or insurance
carrier may pay for treatment by prayer or spiritual means. [1965 c.285 §41c]
656.012 Findings and policy.
(1) The Legislative Assembly finds that:
(a)
The performance of various industrial enterprises necessary to the enrichment
and economic well-being of all the citizens of this state will inevitably
involve injury to some of the workers employed in those enterprises;
(b)
The method provided by the common law for compensating injured workers involves
long and costly litigation, without commensurate benefit to either the injured
workers or the employers, and often requires the taxpayer to provide expensive
care and support for the injured workers and their dependents; and
(c)
An exclusive, statutory system of compensation will provide the best societal
measure of those injuries that bear a sufficient relationship to employment to
merit incorporation of their costs into the stream of commerce.
(2)
In consequence of these findings, the objectives of the Workers’ Compensation
Law are declared to be as follows:
(a)
To provide, regardless of fault, sure, prompt and complete medical treatment
for injured workers and fair, adequate and reasonable income benefits to
injured workers and their dependents;
(b)
To provide a fair and just administrative system for delivery of medical and
financial benefits to injured workers that reduces litigation and eliminates
the adversary nature of the compensation proceedings, to the greatest extent
practicable;
(c)
To restore the injured worker physically and economically to a self-sufficient
status in an expeditious manner and to the greatest extent practicable;
(d)
To encourage maximum employer implementation of accident study, analysis and
prevention programs to reduce the economic loss and human suffering caused by industrial
accidents; and
(e)
To provide the sole and exclusive source and means by which subject workers,
their beneficiaries and anyone otherwise entitled to receive benefits on
account of injuries or diseases arising out of and in the course of employment
shall seek and qualify for remedies for such conditions.
(3)
In recognition that the goals and objectives of this Workers’ Compensation Law
are intended to benefit all citizens, it is declared that the provisions of
this law shall be interpreted in an impartial and balanced manner. [1981 c.535 §29
(enacted in lieu of 656.004); 1995 c.332 §4; amendments by 1995 c.332 §4a
repealed by 1999 c.6 §1; amendments by 1999 c.6 §3 repealed by 2001 c.865 §23]
Note: See
notes under 656.202.
656.016 [1965
c.285 §5; 1967 c.341 §3; repealed by 1975 c.556 §20 (656.017 enacted in lieu of
656.016)]
COVERAGE
656.017 Employer required to pay
compensation and perform other duties; state not authorized to be direct
responsibility employer. (1) Every employer subject to
this chapter shall maintain assurance with the Director of the Department of
Consumer and Business Services that subject workers of the employer and their
beneficiaries will receive compensation for compensable injuries as provided by
this chapter and that the employer will perform all duties and pay other
obligations required under this chapter, by qualifying:
(a)
As a carrier-insured employer; or
(b)
As a self-insured employer as provided by ORS 656.407.
(2)
Notwithstanding ORS chapter 278, this state shall provide compensation
insurance for its employees through the State Accident Insurance Fund
Corporation.
(3)
Any employer required by the statutes of this state other than this chapter or
by the rules, regulations, contracts or procedures of any agency of the federal
government, this state or a political subdivision of this state to provide or
agree to provide workers’ compensation coverage, either directly or through
bond requirements, may provide such coverage by any method provided in this
section. [1975 c.556 §21 (enacted in lieu of 656.016); 1977 c.659 §1; 1979
c.815 §1; 1981 c.854 §3; 1985 c.731 §30]
656.018 Effect of providing coverage;
exclusive remedy. (1)(a) The liability of every
employer who satisfies the duty required by ORS 656.017 (1) is exclusive and in
place of all other liability arising out of injuries, diseases, symptom
complexes or similar conditions arising out of and in the course of employment
that are sustained by subject workers, the workers’ beneficiaries and anyone
otherwise entitled to recover damages from the employer on account of such
conditions or claims resulting therefrom, specifically including claims for
contribution or indemnity asserted by third persons from whom damages are
sought on account of such conditions, except as specifically provided otherwise
in this chapter.
(b)
This subsection shall not apply to claims for indemnity or contribution
asserted by a railroad, as defined in ORS 824.020, or by a corporation,
individual or association of individuals which is subject to regulation
pursuant to ORS chapter 757 or 759.
(c)
Except as provided in paragraph (b) of this subsection, all agreements or
warranties contrary to the provisions of paragraph (a) of this subsection
entered into after July 19, 1977, are void.
(2)
The rights given to a subject worker and the beneficiaries of the subject
worker under this chapter for injuries, diseases, symptom complexes or similar
conditions arising out of and in the course of employment are in lieu of any
remedies they might otherwise have for such injuries, diseases, symptom
complexes or similar conditions against the worker’s employer under ORS 654.305
to 654.336 or other laws, common law or statute, except to the extent the
worker is expressly given the right under this chapter to bring suit against
the employer of the worker for an injury, disease, symptom complex or similar
condition.
(3)
The exemption from liability given an employer under this section is also
extended to the employer’s insurer, the self-insured employer’s claims
administrator, the Department of Consumer and Business Services, and the
contracted agents, employees, officers and directors of the employer, the
employer’s insurer, the self-insured employer’s claims administrator and the
department, except that the exemption from liability shall not apply:
(a)
Where the injury, disease, symptom complex or similar condition is proximately
caused by willful and unprovoked aggression by the person otherwise exempt
under this subsection;
(b)
Where the worker and the person otherwise exempt under this subsection are not
engaged in the furtherance of a common enterprise or the accomplishment of the
same or related objectives; or
(c)
Where the injury, disease, symptom complex or similar condition is proximately
caused by failure of the employer to comply with the notice posted pursuant to
ORS 654.082.
(4)
The exemption from liability given an employer under this section applies to a
worker leasing company and the client to whom workers are provided when the
worker leasing company and the client comply with ORS 656.850 (3).
(5)(a)
The exemption from liability given an employer under this section applies to a
temporary service provider, as that term is used in ORS 656.850, and also
extends to the client to whom workers are provided when the temporary service
provider complies with ORS 656.017.
(b)
The exemption from liability given a client under paragraph (a) of this
subsection is also extended to the client’s insurer, the self-insured client’s
claims administrator, the department, and the contracted agents, employees,
officers and directors of the client, the client’s insurer, the self-insured
client’s claims administrator and the department, except that the exemption
from liability shall not apply:
(A)
When the injury, disease, symptom complex or similar condition is proximately
caused by willful and unprovoked aggression by the person otherwise exempt
under this subsection;
(B)
When the worker and the person otherwise exempt under this subsection are not
engaged in the furtherance of a common enterprise or the accomplishment of the
same or related objectives; or
(C)
When the injury, disease, symptom complex or similar condition is proximately
caused by failure of the client to comply with the notice posted pursuant to
ORS 654.082.
(6)
Nothing in this chapter shall prohibit payment, voluntarily or otherwise, to
injured workers or their beneficiaries in excess of the compensation required
to be paid under this chapter.
(7)
The exclusive remedy provisions and limitation on liability provisions of this
chapter apply to all injuries and to diseases, symptom complexes or similar
conditions of subject workers arising out of and in the course of employment
whether or not they are determined to be compensable under this chapter. [1965
c.285 §6; 1975 c.115 §1; 1977 c.514 §1; 1977 c.804 §3a; 1987 c.447 §110; 1989
c.600 §1; 1993 c.628 §6; 1995 c.332 §5; amendments by 1995 c.332 §5a repealed
by 1999 c.6 §1; 1995 c.733 §76; 1997 c.275 §§6,7; 1997 c.491 §§1,2; amendments
by 1999 c.6 §4 repealed by 2001 c.865 §23]
Note: See
notes under 656.202.
656.019 Civil negligence action for claim
denied on basis of failure to meet major contributing cause standard; statute of
limitations. (1)(a) An injured worker may pursue a
civil negligence action for a work-related injury that has been determined to
be not compensable because the worker has failed to establish that a
work-related incident was the major contributing cause of the worker’s injury
only after an order determining that the claim is not compensable has become
final. The injured worker may appeal the compensability of the claim as
provided in ORS 656.298, but may not pursue a civil negligence claim against
the employer until the order affirming the denial has become final.
(b)
Nothing in this subsection grants a right for a person to pursue a civil
negligence action that does not otherwise exist in law.
(2)(a)
Notwithstanding any other statute of limitation provided in law, a civil
negligence action against an employer that arises because a workers’
compensation claim has been determined to be not compensable because the worker
has failed to establish that a work-related incident was the major contributing
cause of the worker’s injury must be commenced within the later of two years
from the date of injury or 180 days from the date the order affirming that the
claim is not compensable on such grounds becomes final.
(b)
Notwithstanding paragraph (a) of this subsection, a person may not commence a
civil negligence action for a work-related injury that has been determined to
be not compensable because the worker has failed to establish that a
work-related incident was the major contributing cause of the worker’s injury,
if the period within which such action may be commenced has expired prior to
the filing of a timely workers’ compensation claim for the work-related injury.
[2001 c.865 §15]
656.020 Damage actions by workers against
noncomplying employers; defenses outlawed.
Actions for damages may be brought by an injured worker or the legal
representative of the injured worker against any employer who has failed to
comply with ORS 656.017 or is in default under ORS 656.560. Except for the
provisions of ORS 656.578 to 656.593 and this section, such noncomplying
employer is liable as the noncomplying employer would have been if this chapter
had never been enacted. In such actions, it is no defense for the employer to
show that:
(1)
The injury was caused in whole or in part by the negligence of a fellow-servant
of the injured worker.
(2)
The negligence of the injured worker, other than a willful act committed for
the purpose of sustaining the injury, contributed to the accident.
(3)
The injured worker had knowledge of the danger or assumed the risk that
resulted in the injury. [1965 c.285 §7]
656.021 Person performing work under ORS
chapter 701 as subject employer.
Notwithstanding ORS 656.029 (1), a person who is licensed pursuant to an
application under ORS 701.046 and is acting under a contract to perform work
described by ORS chapter 701 shall be considered the subject employer for all
individuals employed by that person. [1989 c.870 §13; 1999 c.402 §7; 2007 c.836
§48]
656.022
[Repealed by 1965 c.285 §95]
656.023 Who are subject employers.
Every employer employing one or more subject workers in the state is subject to
this chapter. [1965 c.285 §8]
656.024
[Amended by 1959 c.448 §2; repealed by 1965 c.285 §95]
656.025 Individuals engaged in commuter
ridesharing not subject workers; conditions. (1)
For the purpose of this chapter, an individual is not a subject worker while
commuting in a voluntary commuter ridesharing arrangement unless:
(a)
The worker is reimbursed for travel expenses incurred therein;
(b)
The worker receives payment for commuting time from the employer; or
(c)
The employer makes an election to provide coverage for the worker pursuant to
ORS 656.039.
(2)
As used in this section “voluntary commuter ridesharing arrangement” means a
carpool or vanpool arrangement in which participation is not required as a condition
of employment and in which not more than 15 persons are transported to and from
their places of employment, in a single daily round trip where the driver also
is on the way to or from the driver’s place of employment. [1981 c.227 §4]
656.026 [Amended
by 1957 c.440 §1; 1959 c.448 §3; repealed by 1965 c.285 §95]
656.027 Who are subject workers.
All workers are subject to this chapter except those nonsubject workers
described in the following subsections:
(1)
A worker employed as a domestic servant in or about a private home. For the
purposes of this subsection “domestic servant” means any worker engaged in
household domestic service by private employment contract, including, but not
limited to, home health workers.
(2)
A worker employed to do gardening, maintenance, repair, remodeling or similar
work in or about the private home of the person employing the worker.
(3)(a)
A worker whose employment is casual and either:
(A)
The employment is not in the course of the trade, business or profession of the
employer; or
(B)
The employment is in the course of the trade, business or profession of a
nonsubject employer.
(b)
For the purpose of this subsection, “casual” refers only to employments where
the work in any 30-day period, without regard to the number of workers
employed, involves a total labor cost of less than $500.
(4)
A person for whom a rule of liability for injury or death arising out of and in
the course of employment is provided by the laws of the United States.
(5)
A worker engaged in the transportation in interstate commerce of goods, persons
or property for hire by rail, water, aircraft or motor vehicle, and whose
employer has no fixed place of business in this state.
(6)
Firefighter and police employees of any city having a population of more than
200,000 that provides a disability and retirement system by ordinance or
charter.
(7)(a)
Sole proprietors, except those described in paragraph (b) of this subsection.
When labor or services are performed under contract, the sole proprietor must
qualify as an independent contractor.
(b)
Sole proprietors actively licensed under ORS 671.525 or 701.021. When labor or
services are performed under contract for remuneration, notwithstanding ORS
656.005 (30), the sole proprietor must qualify as an independent contractor.
Any sole proprietor licensed under ORS 671.525 or 701.021 and involved in
activities subject thereto is conclusively presumed to be an independent
contractor.
(8)
Except as provided in subsection (23) of this section, partners who are not
engaged in work performed in direct connection with the construction,
alteration, repair, improvement, moving or demolition of an improvement on real
property or appurtenances thereto. When labor or services are performed under
contract, the partnership must qualify as an independent contractor.
(9)
Except as provided in subsection (25) of this section, members, including
members who are managers, of limited liability companies, regardless of the
nature of the work performed. However, members, including members who are
managers, of limited liability companies with more than one member, while
engaged in work performed in direct connection with the construction,
alteration, repair, improvement, moving or demolition of an improvement on real
property or appurtenances thereto, are subject workers. When labor or services
are performed under contract, the limited liability company must qualify as an
independent contractor.
(10)
Except as provided in subsection (24) of this section, corporate officers who are
directors of the corporation and who have a substantial ownership interest in
the corporation, regardless of the nature of the work performed by such
officers, subject to the following limitations:
(a)
If the activities of the corporation are conducted on land that receives farm
use tax assessment pursuant to ORS chapter 308A, corporate officer includes all
individuals identified as directors in the corporate bylaws, regardless of
ownership interest, and who are members of the same family, whether related by
blood, marriage or adoption.
(b)
If the activities of the corporation involve the commercial harvest of timber
and all officers of the corporation are members of the same family and are
parents, daughters or sons, daughters-in-law or sons-in-law or grandchildren,
then all such officers may elect to be nonsubject workers. For all other
corporations involving the commercial harvest of timber, the maximum number of
exempt corporate officers for the corporation shall be whichever is the greater
of the following:
(A)
Two corporate officers; or
(B)
One corporate officer for each 10 corporate employees.
(c)
When labor or services are performed under contract, the corporation must
qualify as an independent contractor.
(11)
A person performing services primarily for board and lodging received from any
religious, charitable or relief organization.
(12)
A newspaper carrier utilized in compliance with the provisions of ORS 656.070
and 656.075.
(13)
A person who has been declared an amateur athlete under the rules of the United
States Olympic Committee or the Canadian Olympic Committee and who receives no
remuneration for performance of services as an athlete other than board, room,
rent, housing, lodging or other reasonable incidental subsistence allowance, or
any amateur sports official who is certified by a recognized Oregon or national
certifying authority, which requires or provides liability and accident
insurance for such officials. A roster of recognized Oregon and national
certifying authorities will be maintained by the Department of Consumer and
Business Services, from lists of certifying organizations submitted by the
Oregon School Activities Association and the Oregon Park and Recreation
Society.
(14)
Volunteer personnel participating in the ACTION programs, organized under the
Domestic Volunteer Service Act of 1973, P.L. 93-113, known as the Foster
Grandparent Program and the Senior Companion Program, whether or not the
volunteers receive a stipend or nominal reimbursement for time and travel expenses.
(15)
A person who has an ownership or leasehold interest in equipment and who
furnishes, maintains and operates the equipment. As used in this subsection “equipment”
means:
(a)
A motor vehicle used in the transportation of logs, poles or piling.
(b)
A motor vehicle used in the transportation of rocks, gravel, sand, dirt or
asphalt concrete.
(c)
A motor vehicle used in the transportation of property by a for-hire motor
carrier that is required under ORS 825.100 or 825.104 to possess a certificate
or permit or to be registered.
(16)
A person engaged in the transportation of the public for recreational
down-river boating activities on the waters of this state pursuant to a federal
permit when the person furnishes the equipment necessary for the activity. As
used in this subsection, “recreational down-river boating activities” means
those boating activities for the purpose of recreational fishing, swimming or
sightseeing utilizing a float craft with oars or paddles as the primary source
of power.
(17)
A person who receives no wage other than ski passes or other noncash
remuneration for performing volunteer:
(a)
Ski patrol activities; or
(b)
Ski area program activities sponsored by a ski area operator, as defined in ORS
30.970, or by a nonprofit corporation or organization.
(18)
A person 19 years of age or older who contracts with a newspaper publishing
company or independent newspaper dealer or contractor to distribute newspapers
to the general public and perform or undertake any necessary or attendant
functions related thereto.
(19)
A person performing foster parent or adult foster care duties pursuant to ORS
412.001 to 412.161 and 412.991 or ORS chapter 411, 418, 430 or 443.
(20)
A person performing services on a volunteer basis for a nonprofit, religious,
charitable or relief organization, whether or not such person receives meals or
lodging or nominal reimbursements or vouchers for meals, lodging or expenses.
(21)
A person performing services under a property tax work-off program established
under ORS 310.800.
(22)
A person who performs service as a caddy at a golf course in an established
program for the training and supervision of caddies under the direction of a
person who is an employee of the golf course.
(23)(a)
Partners who are actively licensed under ORS 671.525 or 701.021 and who have a
substantial ownership interest in a partnership. If all partners are members of
the same family and are parents, spouses, sisters, brothers, daughters or sons,
daughters-in-law or sons-in-law or grandchildren, all such partners may elect
to be nonsubject workers. For all other partnerships licensed under ORS 671.510
to 671.760 or 701.021, the maximum number of exempt partners shall be whichever
is the greater of the following:
(A)
Two partners; or
(B)
One partner for each 10 partnership employees.
(b)
When labor or services are performed under contract for remuneration,
notwithstanding ORS 656.005 (30), the partnership qualifies as an independent
contractor. Any partnership licensed under ORS 671.525 or 701.021 and involved
in activities subject thereto is conclusively presumed to be an independent
contractor.
(24)(a)
Corporate officers who are directors of a corporation actively licensed under
ORS 671.525 or 701.021 and who have a substantial ownership interest in the
corporation, regardless of the nature of the work performed. If all officers of
the corporation are members of the same family and are parents, spouses,
sisters, brothers, daughters or sons, daughters-in-law or sons-in-law or
grandchildren, all such officers may elect to be nonsubject workers. For all
other corporations licensed under ORS 671.510 to 671.760 or 701.021, the
maximum number of exempt corporate officers shall be whichever is the greater
of the following:
(A)
Two corporate officers; or
(B)
One corporate officer for each 10 corporate employees.
(b)
When labor or services are performed under contract for remuneration,
notwithstanding ORS 656.005 (30), the corporation qualifies as an independent
contractor. Any corporation licensed under ORS 671.525 or 701.021 and involved
in activities subject thereto is conclusively presumed to be an independent
contractor.
(25)(a)
Limited liability company members who are members of a company actively
licensed under ORS 671.525 or 701.021 and who have a substantial ownership
interest in the company, regardless of the nature of the work performed. If all
members of the company are members of the same family and are parents, spouses,
sisters, brothers, daughters or sons, daughters-in-law or sons-in-law or
grandchildren, all such members may elect to be nonsubject workers. For all
other companies licensed under ORS 671.510 to 671.760 or 701.021, the maximum
number of exempt company members shall be whichever is the greater of the
following:
(A)
Two company members; or
(B)
One company member for each 10 company employees.
(b)
When labor or services are performed under contract for remuneration,
notwithstanding ORS 656.005 (30), the company qualifies as an independent
contractor. Any company licensed under ORS 671.525 or 701.021 and involved in
activities subject thereto is conclusively presumed to be an independent
contractor.
(26)
A person serving as a referee or assistant referee in a youth or adult
recreational soccer match whose services are retained on a match-by-match
basis.
(27)
A person performing language translator or interpreter services that are
provided for others through an agent or broker.
(28)
A person who operates, and who has an ownership or leasehold interest in, a
passenger motor vehicle that is operated as a taxicab or for nonemergency
medical transportation. As used in this subsection:
(a)
“Lease” means a contract under which the lessor provides a vehicle to a lessee
for consideration.
(b)
“Leasehold” includes, but is not limited to, a lease for a shift or a longer
period.
(c)
“Passenger motor vehicle that is operated as a taxicab” means a vehicle that:
(A)
Has a passenger seating capacity that does not exceed seven persons;
(B)
Is transporting persons, property or both on a route that begins or ends in
Oregon; and
(C)(i)
Carries passengers for hire when the destination and route traveled may be
controlled by a passenger and the fare is calculated on the basis of any
combination of an initial fee, distance traveled or waiting time; or
(ii)
Is in use under a contract to provide specific service to a third party to
transport designated passengers or to provide errand services to locations
selected by the third party.
(d)
“Passenger motor vehicle that is operated for nonemergency medical
transportation” means a vehicle that:
(A)
Has a passenger seating capacity that does not exceed seven persons;
(B)
Is transporting persons, property or both on a route that begins or ends in
Oregon; and
(C)
Provides medical transportation services under contract with or on behalf of a
mass transit or transportation district. [1965 c.285 §9; 1971 c.386 §1; 1977
c.683 §1; 1977 c.817 §2; 1977 c.835 §7; 1979 c.821 §1; 1981 c.225 §1; 1981
c.444 §1; 1981 c.535 §3; 1981 c.839 §1; 1983 c.341 §1; 1983 c.541 §1; 1983
c.579 §3; 1985 c.431 §1; 1985 c.706 §2; 1987 c.94 §168; 1987 c.414 §161; 1987
c.800 §2; 1989 c.762 §4; 1990 c.2 §4; 1991 c.469 §1; 1991 c.707 §1; 1993 c.18 §138a;
1993 c.494 §2; 1993 c.777 §10; 1995 c.93 §32; 1995 c.216 §§3,3a; 1995 c.332 §6;
1997 c.337 §1; 1999 c.314 §91; 1999 c.402 §8; 2001 c.363 §1; 2001 c.765 §4;
2003 c.677 §1; 2005 c.167 §1; 2007 c.465 §6; 2007 c.541 §9; 2007 c.721 §1; 2007
c.836 §49; 2008 c.32 §§2,3]
656.028
[Amended by 1959 c.448 §4; repealed by 1965 c.285 §95]
656.029 Obligation of person awarding
contract to provide coverage for workers under contract; exceptions; effect of
failure to provide coverage. (1) If a
person awards a contract involving the performance of labor where such labor is
a normal and customary part or process of the person’s trade or business, the
person awarding the contract is responsible for providing workers’ compensation
insurance coverage for all individuals, other than those exempt under ORS
656.027, who perform labor under the contract unless the person to whom the
contract is awarded provides such coverage for those individuals before labor
under the contract commences. If an individual who performs labor under the
contract incurs a compensable injury, and no workers’ compensation insurance
coverage is provided for that individual by the person who is charged with the
responsibility for providing such coverage before labor under the contract
commences, that person shall be treated as a noncomplying employer and benefits
shall be paid to the injured worker in the manner provided in this chapter for
the payment of benefits to the worker of a noncomplying employer.
(2)
If a person to whom the contract is awarded is exempt from coverage under ORS
656.027, and that person engages individuals who are not exempt under ORS
656.027 in the performance of the contract, that person shall provide workers’
compensation insurance coverage for all such individuals. If an individual who
performs labor under the contract incurs a compensable injury, and no workers’
compensation insurance coverage is provided for that individual by the person
to whom the contract is awarded, that person shall be treated as a noncomplying
employer and benefits shall be paid to the injured worker in the manner
provided in this chapter for the payment of benefits to the worker of a
noncomplying employer.
(3)
As used in this section:
(a)
“Person” includes partnerships, joint ventures, associations, corporations,
limited liability companies, governmental agencies and sole proprietorships.
(b)
“Sole proprietorship” means a business entity or individual who performs labor
without the assistance of others. [1979 c.864 §2; 1981 c.725 §1; 1981 c.854 §4;
1983 c.397 §1; 1983 c.579 §2a; 1985 c.706 §1; 1989 c.762 §5; 1995 c.93 §34; 1995
c.332 §6a]
656.030
[Repealed by 1959 c.448 §14]
656.031 Coverage for municipal volunteer
personnel. (1) Except as provided in ORS 404.215,
all municipal personnel, other than those employed full-time, part-time, or
substitutes therefor, shall, for the purpose of this chapter, be known as
volunteer personnel and shall not be considered as workers unless the
municipality has filed the election provided by this section.
(2)
The county, city or other municipality utilizing volunteer personnel as
specified in subsection (1) of this section may elect to have such personnel
considered as subject workers for purposes of this chapter. Such election shall
be made by filing a written application to the insurer, or in the case of a
self-insured employer, the Director of the Department of Consumer and Business
Services, that includes a resolution of the governing body declaring its intent
to cover volunteer personnel as provided in subsection (1) of this section and
a description of the work to be performed by such personnel. The application
shall also state the estimated total number of volunteer personnel on a roster
for each separate category for which coverage is elected. The county, city or
other municipality shall notify the insurer, or in the case of self-insurers,
the director, of changes in the estimated total number of volunteers.
(3)
Upon receiving the written application the insurer or self-insured employer may
fix assumed wage rates for the volunteer personnel, which may be used only for
purposes of computations under this chapter, and shall require the regular
payment of premiums or assessments based upon the estimated total numbers of
such volunteers carried on the roster for each category being covered. The
self-insured employer shall submit such assumed wage rates to the director. If
the director finds that the rates are unreasonable, the director may fix
appropriate rates to be used for purposes of this section.
(4)
The county, city or municipality shall maintain separate official membership
rosters for each category of volunteers. A certified copy of the official
membership roster shall be furnished the insurer or director upon request.
Persons covered under this section are entitled to the benefits of this chapter
and they are entitled to such benefits if injured as provided in ORS 656.202
while performing any duties arising out of and in the course of their
employment as volunteer personnel, if the duties being performed are among
those:
(a)
Described on the application of the county, city or municipality; and
(b)
Required of similar full-time paid employees.
(5)
The filing of claims for benefits under this section is the exclusive remedy of
a volunteer or a beneficiary of the volunteer for injuries compensable under
this chapter against the state, its political subdivisions, their officers,
employees, or any employer, regardless of negligence. [Formerly 656.088; 1969
c.527 §1; 1977 c.72 §1; 1979 c.815 §2; 1981 c.854 §5; 1981 c.874 §1; 2009 c.718
§14a]
656.032
[Amended by 1959 c.451 §1; repealed by 1965 c.285 §95]
656.033 Coverage for participants in work
experience or school directed professional training programs.
(1) All persons participating as trainees in a work experience program or
school directed professional education project of a school district as defined
in ORS 332.002 in which such persons are enrolled, including persons with
mental retardation in training programs, are considered as workers of the
district subject to this chapter for purposes of this section. Trainees placed
in a work experience program with their resident school district as the
training employer shall be subject workers under this section when the training
and supervision are performed by noninstructional personnel.
(2)
A school district conducting a work experience program or school directed
professional education project shall submit a written statement to the insurer,
or in the case of self-insurers, the Director of the Department of Consumer and
Business Services, that includes a description of the work to be performed by
such persons and an estimate of the total number of persons enrolled.
(3)
The premium cost for coverage under this section shall be based on an assumed
hourly wage which is approved by the Director of the Department of Consumer and
Business Services. Such assumed wage is to be used only for calculation
purposes under this chapter and without regard to ORS chapter 652 or ORS
653.010 to 653.545 and 653.991. A self-insured district shall submit such
assumed wage rates to the director. If the director finds that the rates are
unreasonable, the director may fix appropriate rates to be used for purposes of
this section.
(4)
The school district shall furnish the insurer, or in the case of self-insurers,
the director, with an estimate of the total number of persons enrolled in its
work experience program or school directed professional education project and
shall notify the insurer or director of any significant changes therein.
Persons covered under this section are entitled to the benefits of this chapter.
However, such persons are not entitled to benefits under ORS 656.210 or
656.212. They are entitled to such benefits if injured as provided in ORS
656.156 and 656.202 while performing any duties arising out of and in the
course of their participation in the work experience program or school directed
professional education project, provided the duties being performed are among
those:
(a)
Described on the application of the school district; and
(b)
Required of similar full-time paid employees.
(5)
The filing of claims for benefits under this section is the exclusive remedy of
a trainee or a beneficiary of the trainee for injuries compensable under this
chapter against the state, its political subdivisions, the school district
board, its members, officers and employees, or any employer, regardless of
negligence.
(6)
The provisions of this section shall be inapplicable to any trainee who has
earned wages for such employment.
(7)
As used in this section, “school directed professional education project” means
an on-campus or off-campus project supervised by school personnel and which is
an assigned activity of a local professional education program approved
pursuant to operating procedures of the State Board of Education. A school
directed professional education project must be of a practicum experience
nature, performed outside of a classroom environment and extending beyond
initial instruction or demonstration activities. Such projects are limited to
logging, silvicultural thinning, slash burning, fire fighting, stream
enhancement, woodcutting, reforestation, tree surgery, construction, printing
and manufacturing involving formed metals.
(8)
Notwithstanding subsection (1) of this section, a school district may elect to
make trainees subject workers under this chapter for school directed
professional education projects not enumerated in subsection (7) of this
section by making written request to the district’s insurer, or in the case of
a self-insured district, the director, with coverage to begin no sooner than
the date the request is received by the insurer or director. The request for
coverage shall include a description of the work to be performed under the
project and an estimate of the number of participating trainees. The insurer or
director shall accept a request that meets the criteria of this section. [1967
c.374 §2; 1979 c.814 §2a; 1979 c.815 §3; 1981 c.874 §2; 1987 c.489 §1; 1989
c.491 §63; 1991 c.534 §1; 1995 c.343 §52; 2007 c.70 §285]
656.034
[Amended by 1959 c.441 §1; 1959 c.448 §5; repealed by 1965 c.285 §95]
656.035 Status of workers in separate
occupations of employer. If an employer is engaged in an
occupation in which the employer employs one or more subject workers and is
also engaged in a separate occupation in which there are no subject workers,
the employer is not subject to this chapter as to that separate occupation, nor
are the workers wholly engaged in that occupation subject to this chapter. [1965
c.285 §10]
656.036
[Amended by 1957 c.441 §2; 1959 c.448 §6; repealed by 1965 c.285 §95]
656.037 Exemption from coverage for
persons engaged in certain real estate activities.
A person contracting to pay remuneration for professional real estate activity
as defined in ORS chapter 696 to a qualified real estate broker or qualified principal
real estate broker, as defined in ORS 316.209, is not an employer of that
qualified broker under the Workers’ Compensation Law. A qualified real estate
broker or qualified principal real estate broker is not entitled to benefits
under the Workers’ Compensation Law unless such individual has obtained
coverage for such benefits pursuant to ORS 656.128. [1983 c.597 §5; 2001 c.300 §71]
656.038
[Repealed by 1965 c.285 §95]
656.039 Election of coverage for workers
not subject to law; procedure; cancellation; election of coverage for home
health care workers employed by clients of Department of Human Services.
(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 an 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 created by ORS 410.602 shall elect coverage on behalf
of clients of the Department of Human Services or the Oregon Health Authority
who employ home care workers to make home care workers subject workers if the
home care worker is funded 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. [1965 c.285 §11; 1975 c.556 §22; 1979 c.839 §1; 1981 c.854 §6;
1983 c.816 §1; 1985 c.212 §2; 2007 c.241 §8; 2007 c.835 §1; 2010 c.100 §9]
656.040
[Amended by 1959 c.448 §7; repealed by 1965 c.285 §95]
656.041 City or county may elect to
provide coverage for jail inmates. (1) As used
in this section, unless the context requires otherwise:
(a)
“Authorized employment” means the employment of an inmate on work authorized by
the governing body of a city or county.
(b)
“Inmate” means a person sentenced by any court or legal authority, whether in
default of the payment of a fine or committed for a definite number of days, to
serve sentence in a city or county jail or other place of incarceration except
state and federal institutions. “Inmate” includes a person who performs
community service pursuant to ORS 137.128, whether or not the person is incarcerated.
(2)
A city or county may elect to have inmates performing authorized employment
considered as subject workers of the city or county for purposes of this
chapter. Such election shall be made by a written application to the insurer,
or in the case of a self-insured employer, the Director of the Department of
Consumer and Business Services, that includes a resolution of the governing
body declaring its intent to cover inmates as provided in this section and a
description of the work to be performed by such inmates. The application shall
also state the estimated total number of inmates for which coverage is
requested. The county or city shall notify the insurer or director of changes
in the estimated total number of inmates performing authorized employment.
(3)
Upon receiving the written application the insurer or self-insured employer may
fix assumed wage rates for the inmates, which may be used only for purposes of
computations under this chapter, and shall require the regular payment of
premiums or assessments based upon the estimated total number of such inmates
for which coverage is requested. The self-insured employer shall submit such
assumed wage rates to the director. If the director finds that the rates are
unreasonable, the director may fix appropriate rates to be used for purposes of
this section.
(4)
The city or county shall maintain a separate list of inmates performing
authorized employment. A certified copy of the list shall be furnished the
insurer or director upon request. Inmates covered under this section are
entitled to the benefits of this chapter and they are entitled to such benefits
if injured as provided in ORS 656.202 while performing any duties arising out
of and in the course of their participation in the authorized employment,
provided the duties being performed are among those described on the
application of the city or county.
(5)
The filing of claims for benefits under this section is the exclusive remedy of
an inmate or a beneficiary of the inmate for injuries compensable under this
chapter against a city or county and its officers and employees, regardless of
negligence. [1967 c.472 §§2,3; 1977 c.807 §1; 1979 c.815 §4; 1981 c.854 §7;
1981 c.874 §3; 1983 c.706 §2]
656.042
[Amended by 1959 c.448 §8; repealed by 1965 c.285 §95]
656.043 Governmental agency paying wages
responsible for providing coverage. Except as
otherwise provided in ORS 656.029 to 656.033 and 656.041, but notwithstanding
any other provision of law, the state or any city, county, district, or agency
thereof, that pays the wages of a subject worker is responsible for providing
workers’ compensation insurance coverage for that worker. [1987 c.414 §183]
656.044 State Accident Insurance Fund
Corporation may insure liability under Longshoremen’s and Harbor Workers’
Compensation Act; procedure; cancellation. (1)
The State Accident Insurance Fund Corporation may insure Oregon employers
against their liability for compensation under the Longshoremen’s and Harbor
Workers’ Compensation Act (33 U.S.C. 901 to 950) or any Act amendatory or
supplementary thereto or in lieu thereof, as fully as any private insurance
carrier.
(2)
The State Accident Insurance Fund Corporation may, from time to time, fix rates
of contributions to be paid by such employers. These rates shall be based upon
the costs of inspection and other administration, the hazard of the occupation
and the accident experience of the employers. The State Accident Insurance Fund
Corporation may require a minimum annual premium, contributions, assessments and
fees from such employers.
(3)
All claims for compensation and other costs arising from such insurance shall
be paid from the Industrial Accident Fund.
(4)
The State Accident Insurance Fund Corporation or any employer may cancel any
insurance coverage issued under this section by giving notice as required by
the Longshoremen’s and Harbor Workers’ Compensation Act, or the rules or
regulations made in pursuance thereof. [Amended by 1965 c.285 §13; 1981 c.876 §2]
656.046 Coverage of persons in college work
experience and professional education programs.
(1) All persons registered at a college and participating as unpaid trainees in
a work experience program who are subject to the direction of
noncollege-employed supervisors, and those trainees participating in college
directed professional education projects, are considered workers of the college
subject to this chapter for purposes of this section. However, trainees who are
covered by the Federal Employees Compensation Act shall not be subject to the provisions
of this section.
(2)
A college conducting a work experience program or college directed professional
education project shall submit a written statement to the insurer, or in the
case of self-insurers, to the Director of the Department of Consumer and
Business Services, that includes a description of the work to be performed by
such persons and an estimate of the total number of persons enrolled in the
program or project.
(3)
Persons covered under this section are entitled to the benefits of this chapter.
However, such persons are not entitled to benefits under ORS 656.210 or
656.212. They are entitled to such benefits if injured as provided in ORS
656.156 and 656.202 while performing any duties arising out of and in the
course of their participation in the work experience program or college
directed professional education project, provided the duties being performed
are among those:
(a)
Described on the application of the college; and
(b)
Required of similar full-time paid employees.
(4)
The filing of claims for benefits under this section is the exclusive remedy of
a trainee or a beneficiary of the trainee for injuries compensable under this
chapter against the state, its political subdivisions, the college district
board, members, officers and employees of the board or any employer, regardless
of negligence.
(5)
A college may elect to make trainees subject to this chapter for college
directed professional education projects not enumerated in subsection (8) of
this section or for work experience programs under the direction of
college-employed supervisors by filing a written request with the insurer of
the college, or in the case of self-insured colleges, with the director.
Coverage under such election shall become effective no sooner than the date of
receipt by the insurer. The coverage request shall include a description of the
work to be performed and an estimate of the number of participating trainees.
The insurer or director shall accept a request that meets the criteria of this
section.
(6)
The provisions of this section shall be inapplicable to any trainee who has
earned wages for such employment.
(7)
As used in this section, “college” means any community college district or
community college service district as defined in ORS chapter 341.
(8)
As used in this section, “college directed professional education project”
means an assigned on-campus or off-campus project that is a component of a
program approved by the college board or the operating procedures of the State
Board of Education and involves work that provides practical experience beyond
the initial instruction and demonstration phases, performed outside of the
college classroom or laboratory environment and requiring substantial hands-on
participation by trainees. Such projects are further limited to logging,
silvicultural thinning, slash burning, fire fighting, stream enhancement,
woodcutting, reforestation, tree surgery, construction, printing and
manufacturing involving formed metals. [1991 c.534 §3; 1993 c.18 §139; 1995
c.343 §53]
656.052 Prohibition against employment
without coverage; proposed order declaring noncomplying employer; effect of
failure to comply. (1) No person shall engage as a
subject employer unless and until the person has provided coverage pursuant to
ORS 656.017 for subject workers the person employs.
(2)
Whenever the Director of the Department of Consumer and Business Services has
reason to believe that any person has violated subsection (1) of this section,
the director shall serve upon the person a proposed order declaring the person
to be a noncomplying employer and containing the amount, if any, of civil
penalty to be assessed pursuant to ORS 656.735 (1).
(3)
If any person fails to comply with ORS 656.017 after an order declaring the
person to be a noncomplying employer has become final by operation of law or on
appeal, the circuit court of the county in which the person resides or in which
the person employs workers shall, upon the commencement of a suit by the
director for that purpose, permanently enjoin the person from employing subject
workers without complying with ORS 656.017. Upon the filing of such a suit, the
court shall set a day for hearing and shall cause notice thereof to be served
upon the noncomplying employer. The hearing shall be not less than five days
from the service of the notice.
(4)
The court may award reasonable attorney fees to the director if the director
prevails in an action under subsection (3) of this section. The court may award
reasonable attorney fees to a defendant who prevails in an action under
subsection (3) of this section if the court determines that the director had no
objectively reasonable basis for asserting the claim or no reasonable basis for
appealing an adverse decision of the trial court. [Amended by 1957 c.574 §2;
1965 c.285 §14; 1967 c.341 §4; 1973 c.447 §1; 1987 c.234 §1; 1990 c.2 §5; 1995
c.332 §6b; 1995 c.696 §43]
656.054 Claim of injured worker of
noncomplying employer; procedure for disputing acceptance of claim; recovery of
costs from noncomplying employer; restrictions.
(1) A compensable injury to a subject worker while in the employ of a
noncomplying employer is compensable to the same extent as if the employer had
complied with this chapter. The Director of the Department of Consumer and
Business Services shall refer the claim for such an injury to an assigned
claims agent within 60 days of the date the director has notice of the claim.
At the time of referral of the claim, the director shall notify the employer in
writing regarding the referral of the claim and the employer’s right to object
to the claim. A claim for compensation made by such a worker shall be processed
by the assigned claims agent in the same manner as a claim made by a worker
employed by a carrier-insured employer, except that the time within which the
first installment of compensation is to be paid, pursuant to ORS 656.262 (4),
shall not begin to run until the director has referred the claim to the
assigned claims agent. At any time within which the claim may be accepted or
denied as provided in ORS 656.262, the employer may request a hearing to object
to the claim. If an order becomes final holding the claim to be compensable,
the employer is liable for all costs imposed by this chapter, including
reasonable attorney fees to be paid to the worker’s attorney for services
rendered in connection with the employer’s objection to the claim.
(2)
In addition to, and not in lieu of, any civil penalties assessed pursuant to
ORS 656.735, all costs to the Workers’ Benefit Fund incurred under subsection
(1) of this section shall be a liability of the noncomplying employer. Such
costs include compensation, disputed claim settlements pursuant to ORS 656.289
and claim disposition agreements pursuant to ORS 656.236, whether or not the
noncomplying employer agrees and executes such documents, reasonable
administrative costs and claims processing costs provided by contract, attorney
fees related to compensability issues and any attorney fees awarded to the
claimant, but do not include assessments for reserves in the Workers’ Benefit
Fund. The director shall recover such costs from the employer. The director
periodically shall pay the assigned claims agent from the Workers’ Benefit Fund
for any costs the assigned claims agent incurs under this section in accordance
with the terms of the contract. When the director prevails in any action
brought pursuant to this subsection, the director is entitled to recover from
the noncomplying employer court costs and attorney fees incurred by the
director.
(3)
Periodically, or upon the request of a noncomplying employer in a particular
claim, the director shall audit the files of the State Accident Insurance Fund
Corporation and any assigned claims agents to validate the amount reimbursed
pursuant to subsection (2) of this section. The conditions for granting or
denying of reimbursement shall be specified in the contract with the assigned
claims agent. The contract at least shall provide for denial of reimbursement
if, upon such audit, any of the following are found to apply:
(a)
Compensation has been paid as a result of untimely, inaccurate, or improper
claims processing;
(b)
Compensation has been paid negligently for treatment of any condition unrelated
to the compensable condition;
(c)
The compensability of an accepted claim is questionable and the rationale for
acceptance has not been reasonably documented in accordance with generally
accepted claims management procedures;
(d)
The separate payments of compensation have not been documented in accordance
with generally accepted accounting procedures; or
(e)
The payments were made pursuant to a disposition agreement as provided by ORS
656.236 without the prior approval of the director.
(4)
The State Accident Insurance Fund Corporation and any assigned claims agent may
request review under ORS 656.704 of any disapproval of reimbursement made by
the director under this section.
(5)
Claims of injured workers of noncomplying employers may be assigned and
reassigned by the director for claims processing regardless of the date of the
worker’s injury.
(6)
In selecting an assigned claims agent, the director must consider the assigned
claims agent’s ability to deliver timely and appropriate benefits to injured
workers, the ability to control both claims cost and administrative cost and
such other factors as the director considers appropriate.
(7)
If no qualified entity agrees to be an assigned claims agent, the director may
require one or more of the three highest premium producing insurers to be
assigned claims agents. Notwithstanding any other provision of law, the
director’s selection of assigned claims agents shall be made at the sole
discretion of the director. Such selections shall not be subject to review by
any court or other administrative body.
(8)
Any assigned claims agent, except the State Accident Insurance Fund
Corporation, may employ legal counsel of its choice for representation under
this section.
(9)
As used in this section, “assigned claims agent” means an insurer, casualty
adjuster or a third party administrator with whom the director contracts to
manage claims of injured workers of noncomplying employers. [Amended by 1959
c.448 §9; 1965 c.285 §15; 1967 c.341 §5; 1971 c.72 §1; 1973 c.447 §2; 1979
c.839 §2; 1981 c.854 §8; 1983 c.816 §2; 1987 c.234 §2; 1987 c.250 §3; 1991
c.679 §1; 1995 c.332 §7; 1995 c.641 §17; 1999 c.1020 §1; 2003 c.14 §399; 2003
c.170 §1; 2005 c.26 §1]
Note: See
notes under 656.202.
Note:
Section 9, chapter 332, Oregon Laws 1995, provides:
Sec. 9. The
amendments to ORS 656.054 by section 7 of this 1995 Act do not remove the
authority of the Director of the Department of Consumer and Business Services
to audit files of the State Accident Insurance Fund Corporation for claims
against noncomplying employers assigned to the State Accident Insurance Fund
Corporation prior to the effective date of this 1995 Act [June 7, 1995]. [1995
c.332 §9]
656.056 Subject employers must post notice
of manner of compliance. (1) All subject employers shall
display in a conspicuous manner about their works, and in a sufficient number
of places reasonably to inform their workers of the fact, printed notices
furnished by the Director of the Department of Consumer and Business Services
stating that they are subject to this chapter and the manner of their compliance
with this chapter.
(2)
No employer who is not currently a subject employer shall post or permit to
remain on or about the place of business or premises of the employer any notice
that the employer is subject to, and complying with, this chapter. [Amended by
1965 c.285 §16]
656.070 Definitions for ORS 656.027,
656.070 and 656.075. As used in ORS 656.027, 656.075
and this section:
(1)
“Newspaper” has the meaning for that term provided in ORS 193.010.
(2)
“Newspaper carrier” means an individual age 18 years or younger who contracts
with a newspaper publishing company or independent newspaper dealer or
contractor to distribute newspapers to the general public and performs or
undertakes any necessary or attendant functions related thereto, but receives
no salary or wages, other than sales incentives or bonuses, for the performance
of those duties from the newspaper publishing company or independent newspaper
dealer or contractor. “Newspaper carrier” includes any individual appointed or
utilized on a temporary basis by a newspaper carrier, a newspaper publishing
company or independent newspaper dealer or contractor to perform any or all of
the duties of a newspaper carrier. [1977 c.835 §3; 1981 c.535 §52]
656.075 Exemption from coverage for
newspaper carriers; casualty insurance and other requirements.
An individual qualifies for the exemption provided in ORS 656.027 only if the
newspaper publishing company or independent newspaper dealer or contractor
utilizing the individual:
(1)
Encourages any minor so utilized to remain in school and attend classes;
(2)
Encourages any minor so utilized to not allow newspaper carrier duties to
interfere with any school activities of the individual; and
(3)
Provides accident insurance coverage for the individual while the individual is
engaged in newspaper carrier duties that is at least equal to the following:
(a)
$250,000 unallocated hospital and medical benefits;
(b)
$10 per week lost time benefits for a period of 52 weeks; and
(c)
$5,000 accidental death and dismemberment benefit.
(4)
Provides the individual with a clear, written explanation or description of the
amount and the terms and conditions of the insurance coverage required by this
section, including a specific statement that the insurance coverage is in lieu
of benefits under the Workers’ Compensation Law. [1977 c.835 §4; 1981 c.535 §53]
656.082
[Repealed by 1965 c.285 §95]
656.084
[Amended by 1959 c.448 §10; repealed by 1965 c.285 §95a]
656.086
[Repealed by 1965 c.285 §95]
656.088
[Amended by 1955 c.320 §1; 1965 c.285 §17; renumbered 656.031]
656.090
[Amended by 1953 c.673 §2; 1959 c.448 §11; repealed by 1965 c.285 §97]
656.120 [1969
c.527 §3; repealed by 1979 c.815 §9]
656.122
[Repealed by 1965 c.285 §95]
656.124
[Amended by 1957 c.554 §1; repealed by 1965 c.285 §95]
656.126 Coverage while temporarily in or
out of state; judicial notice of other state’s laws; agreements between states
relating to conflicts of jurisdiction; limitation on compensation for claims in
this state and other jurisdictions. (1) If a
worker employed in this state and subject to this chapter temporarily leaves
the state incidental to that employment and receives an accidental injury
arising out of and in the course of employment, the worker, or beneficiaries of
the worker if the injury results in death, is entitled to the benefits of this
chapter as though the worker were injured within this state.
(2)
Any worker from another state and the employer of the worker in that other
state are exempted from the provisions of this chapter while that worker is
temporarily within this state doing work for the employer:
(a)
If that employer has furnished workers’ compensation insurance coverage under
the workers’ compensation insurance or similar laws of a state other than
Oregon so as to cover that worker’s employment while in this state;
(b)
If the extraterritorial provisions of this chapter are recognized in that other
state; and
(c)
If employers and workers who are covered in this state are likewise exempted
from the application of the workers’ compensation insurance or similar laws of
the other state.
The benefits under the workers’
compensation insurance Act or similar laws of the other state, or other
remedies under a like Act or laws, are the exclusive remedy against the
employer for any injury, whether resulting in death or not, received by the
worker while working for that employer in this state.
(3)
A certificate from the duly authorized officer of the Department of Consumer
and Business Services or similar department of another state certifying that
the employer of the other state is insured therein and has provided
extraterritorial coverage insuring workers while working within this state is
prima facie evidence that the employer carries that workers’ compensation
insurance.
(4)
Whenever in any appeal or other litigation the construction of the laws of
another jurisdiction is required, the courts shall take judicial notice
thereof.
(5)
The Director of the Department of Consumer and Business Services shall have
authority to enter into agreements with the workers’ compensation agencies of
other states relating to conflicts of jurisdiction where the contract of
employment is in one state and the injuries are received in the other state, or
where there is a dispute as to the boundaries or jurisdiction of the states and
when such agreements have been executed and made public by the respective state
agencies, the rights of workers hired in such other state and injured while
temporarily in Oregon, or hired in Oregon and injured while temporarily in
another state, or where the jurisdiction is otherwise uncertain, shall be
determined pursuant to such agreements and confined to the jurisdiction
provided in such agreements.
(6)
When a worker has a claim under the workers’ compensation law of another state,
territory, province or foreign nation for the same injury or occupational
disease as the claim filed in Oregon, the total amount of compensation paid or
awarded under such other workers’ compensation law shall be credited against
the compensation due under Oregon workers’ compensation law. The worker shall
be entitled to the full amount of compensation due under Oregon law. If Oregon
compensation is more than the compensation under another law, or compensation
paid the worker under another law is recovered from the worker, the insurer
shall pay any unpaid compensation to the worker up to the amount required by
the claim under Oregon law. [Amended by 1955 c.723 §1; 1957 c.474 §1; 1977
c.804 §4; 1989 c.684 §1; 1995 c.332 §10; 1997 c.234 §1]
656.128 Sole proprietors, limited
liability company members, partners, independent contractors may elect coverage
by insurer; cancellation. (1) Any person who is a sole
proprietor, or a member, including a member who is a manager, of a limited
liability company, or a member of a partnership, or an independent contractor
pursuant to ORS 670.600, may make written application to an insurer to become
entitled as a subject worker to compensation benefits. Thereupon, the insurer
may accept such application and fix a classification and an assumed monthly
wage at which such person shall be carried on the payroll as a worker for
purposes of computations under this chapter.
(2)
When the application is accepted, such person thereupon is subject to the
provisions and entitled to the benefits of this chapter. The person shall
promptly notify the insurer whenever the status of the person as an employer of
subject workers changes. Any subject worker employed by such a person after the
effective date of the election of the person shall, upon being employed, be
considered covered automatically by the same workers’ compensation insurance
policy that covers such person.
(3)
No claim shall be allowed or paid under this section, except upon corroborative
evidence in addition to the evidence of the claimant.
(4)
Any person subject to this chapter as a worker as provided in this section may
cancel such election by giving written notice to the insurer. The cancellation
shall become effective at 12 midnight ending the day of filing the notice with
the insurer. [Amended by 1957 c.440 §2; 1959 c.448 §12; 1965 c.285 §18; 1969
c.400 §1; 1975 c.556 §23; 1981 c.854 §9; 1981 c.876 §3; 1993 c.777 §11; 1995
c.93 §33; 1995 c.332 §11; 2007 c.241 §9]
656.130
[Amended by 1957 c.574 §3; repealed by 1959 c.448 §14]
656.132 Coverage of minors.
(1) A minor working at an age legally permitted under the laws of this state is
considered sui juris for the purpose of this chapter. No other person shall
have any cause of action or right to compensation for an injury to such minor
worker, except as expressly provided in this chapter, but in the event of a
lump-sum payment becoming due under this chapter to such minor worker, the
control and management of any sum so paid shall be within the jurisdiction of
the courts as in the case of other property of minors.
(2)
If an employer subject to this chapter in good faith employed a minor under the
age permitted by law, believing the minor to be of lawful age, and the minor
sustains an injury or suffers death in such employment, the minor is
conclusively presumed to have accepted the provisions of this chapter. The
Director of the Department of Consumer and Business Services may determine
conclusively the good faith of such employer unless the employer possessed at
the time of the accident resulting in such injury or death a certificate from
some duly constituted authority of this state authorizing the employment of the
minor in the work in which the minor was then engaged. Such certificate is conclusive
evidence of the good faith of such employer.
(3)
If the employer holds no such certificate and the director finds that the
employer did not employ such minor in good faith, the minor is entitled to the
benefits of this chapter, but the employer shall pay to the Consumer and
Business Services Fund by way of penalty a sum equal to 25 percent of the
amount paid out or set apart under such statutes on account of the injury or
death of such minor, but such penalty shall be not less than $100 nor exceed
$500. [Amended by 1959 c.448 §13; 1985 c.212 §3]
656.135 Coverage of deaf school work
experience trainees. (1) As used in this section “school”
means the Oregon School for the Deaf.
(2)
All persons participating as trainees in a work experience program of the
school are considered as workers of the school subject to this chapter for
purposes of this section.
(3)
On behalf of a school conducting a work experience program, the Department of
Education shall submit a written statement to the State Accident Insurance Fund
Corporation that includes a description of the work to be performed by such
persons.
(4)
Upon receiving the written statement, the corporation may fix assumed wage
rates for the persons enrolled in the work experience program, without regard
to ORS chapter 652 or ORS 653.010 to 653.545 and 653.991, which may be used
only for purposes of computations under this chapter.
(5)
The Department of Education shall furnish the corporation with a list of the
names of those enrolled in work experience programs in the school and shall
notify the corporation of any changes therein. Only those persons whose names
appear on such list prior to their personal injury by accident are entitled to
the benefits of this chapter and they are entitled to such benefits if injured
as provided in ORS 656.156 and 656.202 while performing any duties arising out
of and in the course of their participation in the work experience program,
provided the duties being performed are among those:
(a)
Described on the application of the department; and
(b)
Required of similar full-time paid employees.
(6)
The filing of claims for benefits under this section is the exclusive remedy of
a trainee or beneficiary of the trainee for injuries compensable under this
chapter against the state, the school, the department, its officers and
employees, or any employer, regardless of negligence.
(7)
The provisions of this section shall be inapplicable to any trainee who is
earning wages for such employment. [1969 c.406 §2; 2007 c.858 §83; 2009 c.562 §35]
656.138 Coverage of apprentices, trainees
participating in related instruction classes. (1)
All persons registered as apprentices or trainees and participating in related
instruction classes conducted by a school district, community college district
or education service district in accordance with the requirements of ORS
660.002 to 660.210 or section 50, title 29, United States Code as of September
13, 1975, are considered as workers of the school district, community college
district or education service district subject to this chapter.
(2)
A school district, community college district or education service district
conducting related instruction classes shall submit a written statement to the
insurer, or in the case of self-insurers, the Director of the Department of
Consumer and Business Services, that includes a description of the related
instruction to be given to such apprentices or trainees and an estimate of the
total number of persons enrolled.
(3)
Upon receiving the written statement, the insurer, or in the case of
self-insurers, the director, may fix assumed wage rates for those apprentices
or trainees participating in related instruction classes, which may be used
only for the purposes of computations under this chapter.
(4)
The State Apprenticeship and Training Council shall furnish the insurer, or in
the case of self-insurers, the director, and the school district, community
college district or education service district with an estimate of the total
number of apprentices or trainees approved by it for participation in related
instruction classes subject to coverage under this section and any significant
changes in the estimated total. Apprentices and trainees as provided in
subsection (1) of this section are entitled to benefits under this chapter.
(5)
The filing of claims for benefits under the authority of this section is the
exclusive remedy of apprentices or trainees or their beneficiaries for injuries
compensable under this chapter against the state, its political subdivisions,
the school district, community college district or education service district,
their members, officers and employees, or any employer, regardless of
negligence.
(6)
This section does not apply to any apprentice or trainee who has earned wages
for performing such duties. [1971 c.634 §2; 1975 c.775 §1; 1979 c.815 §5]
656.140 Coverage of persons operating
equipment for hire. (1) Any person, or persons
operating as partners, who have an ownership or leasehold interest in equipment
and are engaged in the business of operating such equipment for hire, may elect
to cover themselves under the Workers’ Compensation Law by filing with an
insurer a written application to become entitled as subject workers to the
benefits of the Workers’ Compensation Law.
(2)
As used in this section “equipment” means:
(a)
A motor vehicle used in the transportation of logs, poles or pilings.
(b)
A motor vehicle used in the transportation of rocks, gravel, sand or dirt.
(c)
A backhoe or other similar equipment used for digging and filling ditches or
trenches.
(d)
A tractor.
(e)
Any other motor vehicle or heavy equipment of a kind commonly operated for
hire.
(3)
The insurer may accept such application and fix a classification and an assumed
monthly wage at which such person, or persons operating as partners, shall be
carried on the payroll as workers for purposes of computations under this
chapter.
(4)
When the application is accepted, such person, or persons operating as
partners, become subject workers. Thereupon, such person, or persons operating
as partners, shall be subject to this chapter as a subject employer
notwithstanding ORS 656.023 and shall be entitled to benefits as subject
workers.
(5)
No claim shall be allowed or paid under this section, except upon corroborative
evidence in addition to the evidence of the claimant.
(6)
Any person, or persons operating as partners, electing coverage under this
section, have the same duties and responsibilities of any other subject
employer in the event they hire one or more subject workers.
(7)
The rights given to a person, or persons operating as partners, and their
beneficiaries pursuant to this section for injuries compensable under this
chapter are in lieu of any remedies they might otherwise have for such injuries
against the person for whom services are being performed. [1969 c.463 §2; 1975
c.556 §24; 1981 c.854 §10; 1981 c.876 §4]
656.152
[Amended by 1957 c.718 §2; repealed by 1965 c.285 §95]
656.154 Injury due to negligence or wrong
of a person not in the same employ as injured worker; remedy against such
person. If the injury to a worker is due to the
negligence or wrong of a third person not in the same employ, the injured
worker, or if death results from the injury, the spouse, children or other
dependents, as the case may be, may elect to seek a remedy against such third
person. [Amended by 1959 c.504 §1; 1975 c.152 §1; 1985 c.212 §4]
656.156 Intentional injuries.
(1) If injury or death results to a worker from the deliberate intention of the
worker to produce such injury or death, neither the worker nor the widow,
widower, child or dependent of the worker shall receive any payment whatsoever
under this chapter.
(2)
If injury or death results to a worker from the deliberate intention of the
employer of the worker to produce such injury or death, the worker, the widow,
widower, child or dependent of the worker may take under this chapter, and also
have cause for action against the employer, as if such statutes had not been
passed, for damages over the amount payable under those statutes. [Amended by
1965 c.285 §20]
656.160 Effect of incarceration on receipt
of compensation. (1) Notwithstanding any other
provision of this chapter, an injured worker is not eligible to receive
compensation under ORS 656.210 or 656.212 for periods of time during which the
worker is incarcerated for the commission of a crime.
(2)
As used in this section, an individual is not “incarcerated” if the individual
is on parole or work release status. [1990 c.2 §50]
656.170 Validity of provisions of certain
collective bargaining agreements; alternative dispute resolution systems;
exclusive medical service provider lists; authority of director.
(1) In a collective bargaining agreement between a private employer or groups
of employers engaged in construction, construction maintenance or activities
limited to rock, sand, gravel, cement and asphalt operations, heavy duty
mechanics, surveying or construction inspection, and a union that is the
recognized or certified exclusive bargaining representative, a provision
establishing either of the following is valid and binding:
(a)
An alternative dispute resolution system governing disputes between employees,
employers and their insurers that supplements or replaces all or part of the
dispute resolution processes of this chapter, including but not limited to
provisions:
(A)
Establishing any limitations on the liability of the employer while
determinations regarding the compensability of an injury are being made;
(B)
Describing the method for resolving disputes involving compensability of
injuries under the alternative dispute resolution system and the amount of
compensation due for a compensable injury and for medical and legal services;
(C)
Relating to the payment of compensation for injuries incurred when the
collective bargaining agreement is terminated or when an injured worker is no
longer subject to the agreement; and
(D)
Establishing arbitration and mediation procedures; or
(b)
The use of a list of medical service providers that the parties may agree is
the exclusive source of all medical treatment provided under this chapter.
(2)
Any decision, order or award of compensation issued under an agreed upon
alternative dispute resolution system adopted under subsection (1)(a) of this
section is subject to review in the same manner as provided for the review of
an order of an Administrative Law Judge pursuant to the provisions of this
chapter.
(3)
Nothing in this section allows a collective bargaining agreement that
diminishes the entitlement of an employee to compensation as provided in this
chapter. The portion of an agreement that violates this subsection is void.
Notwithstanding any other provision of law, original jurisdiction over the
compliance of a proposed collective bargaining agreement with this subsection
is with the Director of the Department of Consumer and Business Services. The
director shall determine the compliance of the agreement with this subsection
prior to the agreement becoming operative. The decision of the director is
subject to review as provided under ORS 656.704. [1999 c.841 §2; 2005 c.26 §2]
656.172 Applicability of and criteria for
establishing program under ORS 656.170. (1) ORS
656.170 applies only to:
(a)
An employer incurring or projecting an annual workers’ compensation insurance
premium in Oregon of at least $250,000 or an employer that paid an annual
workers’ compensation insurance premium in Oregon of at least $250,000 in one
of the three years prior to the year in which the collective bargaining
agreement takes effect.
(b)
An employer who qualifies as a self-insured employer under ORS 656.407 and
656.430 that is incurring or projecting annual workers’ compensation costs of
at least $250,000 or who has had annual workers’ compensation costs of at least
$250,000 in one of the three years prior to the year in which the collective
bargaining agreement takes effect.
(c)
A group of employers who combine for the purpose of obtaining workers’
compensation insurance as provided by ORS 737.316 and incur or project annual
workers’ compensation premiums of at least $1 million.
(d)
A group of employers who qualify as a self-insured employer group under ORS
656.430 and incur or project annual workers’ compensation costs of at least $1
million.
(e)
Employers covered by a wrap-up insurance policy provided by an owner or general
contractor and authorized by ORS 737.602 and 737.604, and that requires payment
of annual workers’ compensation premiums of $1 million or more for coverage of
those employees covered by the wrap-up insurance policy.
(2)
An employer or group of employers may not establish or continue a program
established under ORS 656.170 until:
(a)
The employer has provided the Director of the Department of Consumer and
Business Services with the following:
(A)
Upon original application and whenever the collective bargaining agreement is
renegotiated, a copy of the collective bargaining agreement and an estimate of
the number of employees covered by the collective bargaining agreement;
(B)
Upon original application and annually thereafter, a valid license when that
license is required as a condition of doing business in Oregon;
(C)
Upon original application and annually thereafter, a signed, sworn statement
that no action has been taken by any administrative agency or court of the
United States to invalidate the collective bargaining agreement;
(D)
Upon original application and annually thereafter, the name, address and
telephone number of the contact person of the employer or group of employers;
and
(E)
A statement from the insurer or self-insured employer that the insurer or
self-insured employer is willing to insure the risk under the terms of the
collective bargaining agreement; and
(b)
The director has approved the proposed program.
(3)
A collective bargaining representative may not establish or continue to
participate in a program established under ORS 656.170 until:
(a)
The collective bargaining representative has provided the following to the
director:
(A)
Upon original application and annually thereafter, a copy of the most recent
LM-2 or LM-3 filing with the United States Department of Labor, and a signed,
sworn statement that the document is a true and correct copy; and
(B)
Upon original application and annually thereafter, the name, address and
telephone number of the contact person for the collective bargaining
representative; and
(b)
The director has approved the proposed program.
(4)
When an employer, a group of employers or a collective bargaining
representative has met the eligibility requirements of this section, the
director shall issue a letter to the employer, group of employers or collective
bargaining representative indicating that such eligibility has been
established. [1999 c.841 §3; 2007 c.71 §207]
656.174 Rules.
The Director of the Department of Consumer and Business Services shall adopt
rules necessary for the implementation of the provisions of ORS 656.170 and
656.172. The rules must include, but are not limited to procedures for:
(1)
Establishing and operating an alternative dispute resolution system;
(2)
Resolution of disputes involving multiple claims when one or more of the claims
are not subject to the collective bargaining agreement; and
(3)
Providing benefits to injured workers whose compensable claims are covered
under an alternative dispute resolution system after the expiration of the
collective bargaining agreement or termination of any arrangement for the
provision of benefits under ORS 656.170 and 656.172. [1999 c.841 §4]
APPLICABILITY PROVISIONS
656.202 Compensation payable to subject
worker in accordance with law in effect at time of injury; exceptions; notice
regarding payment. (1) If any subject worker
sustains a compensable injury, the worker or the beneficiaries of the worker,
if the injury results in death, shall receive compensation as provided in this
chapter, regardless of whether the worker was employed by a complying or
noncomplying employer.
(2)
Except as otherwise provided by law, payment of benefits for injuries or deaths
under this chapter shall be continued as authorized, and in the amounts
provided for, by the law in force at the time the injury giving rise to the
right to compensation occurred.
(3)
When compensation is paid to a claimant or other payment is made to the
provider of service pursuant to this chapter, the insurer or self-insured
employer shall notify the payment recipient in writing of the specific purpose
of the payment. When applicable, the notice shall indicate the time period for
which the payment is made and the reimbursable expenses or other bills and
charges covered. If any portion of the claim is denied, the notice shall
identify that portion of the claimed amounts that is not being paid.
(4)
Notwithstanding subsections (1) to (3) of this section, the amendments to ORS
656.325 by section 4, chapter 723, Oregon Laws 1981, and ORS 656.335 (1993
Edition) apply to all workers regardless of the date of injury.
(5)
This section does not apply to vocational assistance benefits.
(6)
Notwithstanding subsection (2) of this section, the increase in benefits to the
surviving spouse of an injured worker made by the amendment to ORS 656.204
(2)(c) (1993 Edition) by section 1, chapter 108, Oregon Laws 1985, applies to a
surviving spouse who remarries after September 20, 1985, regardless of the date
of injury or death of the worker.
(7)
Notwithstanding subsection (2) of this section, the increase in benefits to the
surviving spouse of an injured worker made by the amendments to ORS 656.204
(3)(a) and (b) (1997 Edition) by section 2, chapter 927, Oregon Laws 1999,
applies to a surviving spouse who remarries on or after October 23, 1999,
regardless of the date of injury or death of the worker. [Amended by 1953 c.669
§4; 1953 c.670 §4; 1957 c.718 §3; 1959 c.450 §1; 1965 c.285 §21; 1977 c.430 §6;
1981 c.770 §1; subsection (4) enacted as 1981 c.723 §8; 1985 c.108 §3; 1985
c.600 §6; 1985 c.706 §6; 1985 c.770 §6; 1995 c.332 §12; 1999 c.927 §1]
(Implementation of 1990 Laws)
Note:
Section 54, chapter 2, Oregon Laws 1990, provides:
Sec. 54. (1)
Except for amendments to ORS 656.027, 656.211, 656.214 (2) and 656.790, this
1990 Act becomes operative July 1, 1990, and notwithstanding ORS 656.202, this
1990 Act applies to all claims existing or arising on and after July 1, 1990,
regardless of date of injury, except as specifically provided in this section.
(2)
Any matter regarding a claim which is in litigation before the Hearings
Division, the board, the Court of Appeals or the Supreme Court under this
chapter, and regarding which matter a request for hearing was filed before May
1, 1990, and a hearing was convened before July 1, 1990, shall be determined
pursuant to the law in effect before July 1, 1990.
(3)
Amendments by this 1990 Act to ORS 656.214 (5), the amendments to ORS 656.268
(4), (5), (6), (7) and (8), ORS 656.283 (7), 656.295, 656.319, 656.325, 656.382
and 656.726 shall apply to all claims which become medically stationary after
July 1, 1990. [1990 c.2 §54]
(Implementation of 1995 Laws)
Note:
Section 66, chapter 332, Oregon Laws 1995, provides:
Sec. 66. (1)
Notwithstanding any other provision of law, chapter 332, Oregon Laws 1995,
applies to all claims or causes of action existing or arising on or after June
7, 1995, regardless of the date of injury or the date a claim is presented, and
chapter 332, Oregon Laws 1995, is intended to be fully retroactive unless a
specific exception is stated in chapter 332, Oregon Laws 1995.
(2)
The amendments to ORS 656.204 and 656.265 by sections 13 and 29, chapter 332,
Oregon Laws 1995, and the amendments to ORS 656.210 (2)(a) by section 15,
chapter 332, Oregon Laws 1995, apply only to injuries occurring on or after
June 7, 1995.
(3)
Sections 8 and 9, chapter 332, Oregon Laws 1995, and the amendments to ORS
656.054, 656.248 and 656.622 by sections 7, 26 and 49, chapter 332, Oregon Laws
1995, become operative January 1, 1996.
(4)
The amendments to ORS 656.268 (4), (5), (6) and (9), 656.319 (4) and 656.726
(3)(f) by sections 30, 39 and 55, chapter 332, Oregon Laws 1995, shall apply
only to claims that become medically stationary on or after June 7, 1995.
(5)(a)
The amendments to statutes by chapter 332, Oregon Laws 1995, and new sections
added to ORS chapter 656 by chapter 332, Oregon Laws 1995, do not apply to any
matter for which an order or decision has become final on or before June 7,
1995.
(b)
Notwithstanding paragraph (a) of this subsection, the amendments to ORS 656.262
(6) creating new paragraph (c) and the amendments to the subsection designated
(10) by section 28, chapter 332, Oregon Laws 1995, apply to all claims without
regard to any previous order or closure.
(6)
The amendments to statutes by chapter 332, Oregon Laws 1995, and new sections
added to ORS chapter 656 by chapter 332, Oregon Laws 1995, do not extend or
shorten the procedural time limitations with regard to any action on a claim
taken prior to June 7, 1995.
(7)
The amendments to ORS 656.506 by section 63, chapter 332, Oregon Laws 1995,
first become operative October 1, 1995. [1995 c.332 §66; 1999 c.6 §2]
(Implementation of 1997 Laws)
Note:
Section 2, chapter 605, Oregon Laws 1997, provides:
Sec. 2.
Notwithstanding any other provision of law to the contrary, the amendments to
ORS 656.262 by section 1 of this Act apply to all claims or causes of action
existing or arising on or after the effective date of this Act [July 25, 1997],
regardless of the date of injury or the date a claim is presented, and this Act
is intended to be fully retroactive. [1997 c.605 §2]
Note:
Section 6, chapter 639, Oregon Laws 1997, provides:
Sec. 6.
Notwithstanding any other provision of law, the amendments to ORS 656.593 by
section 4 of this Act apply to all claims or causes of action existing on or
arising on or after the effective date of this Act [July 25, 1997], regardless
of the date of injury or the date a claim is presented, and the amendments to
ORS 656.593 by section 4 of this Act are intended to be fully retroactive.
[1997 c.639 §6]
(Implementation of 2001 Laws)
Note:
Section 22, chapter 865, Oregon Laws 2001, provides:
Sec. 22. (1)
Section 14 of this 2001 Act [656.247] and the amendments to ORS 656.005,
656.210, 656.262, 656.266, 656.308, 656.313, 656.325 (5), 656.386, 656.605 and
656.804 by sections 1, 2, 3, 4, 5, 7, 8, 9, 13 and 13a of this 2001 Act apply
to all claims with a date of injury on or after January 1, 2002.
(2)
Section 10 of this 2001 Act [656.267] and the amendments to ORS 656.278 and
656.625 by sections 11 and 11a of this 2001 Act apply to all claims regardless
of date of injury.
(3)
The amendments to ORS 656.268 (6) by section 12 of this 2001 Act apply to any
claim with a date of closure on or after January 1, 2002.
(4)
The amendments to ORS 656.325 (1) by section 13 of this 2001 Act apply to any
claim with a date of denial on or after January 1, 2002. [2001 c.865 §22]
(Implementation of 2003 Laws)
Note:
Section 2, chapter 429, Oregon Laws 2003, provides:
Sec. 2. The
amendments to ORS 656.268 by section 1 of this 2003 Act apply to all claims
first closed on or after the effective date of this 2003 Act [January 1, 2004].
[2003 c.429 §2]
Note:
Sections 13 and 15, chapter 657, Oregon Laws 2003, provide:
Sec. 13. The
amendments to ORS 656.206, 656.214, 656.268, 656.307, 656.325 and 656.726 by
sections 1, 3, 5, 7, 9 and 11 of this 2003 Act apply to injuries occurring on
or after January 1, 2005. [2003 c.657 §13]
Sec. 15. The
amendments to ORS 656.206, 656.214, 656.268, 656.307, 656.325 and 656.726 by
sections 2, 4, 6, 8, 10 and 12 of this 2003 Act apply to injuries occurring on
or after January 1, 2008. [2003 c.657 §15]
Note: Section
3, chapter 756, Oregon Laws 2003, provides:
Sec. 3. The
amendments to ORS 656.262 and 656.385 by sections 1 and 2 of this 2003 Act
apply to all claims for which an order relating to the issue on which attorney
fees are sought has not become final on or before the effective date of this
2003 Act [January 1, 2004], regardless of the date of injury. [2003 c.756 §3]
(Implementation of 2005 Laws)
Note:
Section 4, chapter 188, Oregon Laws 2005, provides:
Sec. 4. (1)
The amendments to ORS 656.267, 656.278 and 656.298 by sections 1, 2 and 3 of
this 2005 Act apply to all claims existing or arising on or after the effective
date of this 2005 Act [January 1, 2006].
(2)
Notwithstanding subsection (1) of this section, the amendments to ORS 656.267,
656.278 and 656.298 by sections 1, 2 and 3 of this 2005 Act do not apply to any
matter for which an order has become final prior to the effective date of this
2005 Act. [2005 c.188 §4]
Note:
Section 5, chapter 221, Oregon Laws 2005, provides:
Sec. 5. The
amendments to ORS 656.268 by sections 1 and 2 of this 2005 Act apply to notices
of closure issued on or after January 1, 2006. [2005 c.221 §5]
Note:
Section 7, chapter 461, Oregon Laws 2005, provides:
Sec. 7. The
amendments to ORS 656.206, 656.268, 656.319 and 656.605 by sections 1 to 6 of
this 2005 Act apply to all claims for which a notice of closure is issued under
ORS 656.206 or 656.268 on or after the effective date of this 2005 Act [January
1, 2006]. [2005 c.461 §7]
Note:
Section 2, chapter 624, Oregon Laws 2005, provides:
Sec. 2. The
amendments to ORS 656.283 by section 1 of this 2005 Act apply to requests for
hearing made on or after the effective date of this 2005 Act [January 1, 2006].
[2005 c.624 §2]
Note:
Section 5, chapter 653, Oregon Laws 2005, provides:
Sec. 5. The
amendments to ORS 656.214 and 656.726 by sections 1 and 3 of this 2005 Act
apply to injuries occurring on or after January 1, 2006. [2005 c.653 §5]
Note:
Section 8, chapter 675, Oregon Laws 2005, provides:
Sec. 8. The
amendments to ORS 656.325 and 656.780 by sections 1, 2 and 3 of this 2005 Act
apply to all claims in which an independent medical examination required under
ORS 656.325 is scheduled on or after the effective date of this 2005 Act
[January 1, 2006]. [2005 c.675 §8]
(Implementation of 2007 Laws)
Note:
Section 3, chapter 17, Oregon Laws 2007, provides:
Sec. 3. (1)
The amendments to ORS 656.298 (3) and (5) by section 1 of this 2007 Act apply
to petitions for judicial review filed on or after the effective date of this 2007
Act [January 1, 2008].
(2)
The provisions of ORS 656.298 (9) apply to petitions for judicial review
pending with the appellate court on the effective date of this 2007 Act and to
petitions for judicial review filed on or after the effective date of this 2007
Act. [2007 c.17 §3]
Note:
Section 2, chapter 908, Oregon Laws 2007, provides:
Sec. 2. The
amendments to ORS 656.386 by section 1 of this 2007 Act apply to workers’
compensation claims in which the order on the compensability of the claim
denial has not become final on or before the effective date of this 2007 Act
[January 1, 2008]. [2007 c.908 §2]
Note:
Section 4, chapter 908, Oregon Laws 2007, provides:
Sec. 4. The
amendments to ORS 656.388 by section 3 of this 2007 Act apply to all claims in
which an order that grants attorney fees is issued after the effective date of
this 2007 Act [January 1, 2008], regardless of the date of injury. [2007 c.908 §4]
(Implementation of 2009 Laws)
Note:
Section 6, chapter 526, Oregon Laws 2009, provides:
Sec. 6.
Regardless of the date of injury, the amendments to ORS 656.262, 656.308,
656.382, 656.385 and 656.386 by sections 1 to 5 of this 2009 Act apply to all
claims for which an order is issued on or after the effective date of this 2009
Act [January 1, 2010]. [2009 c.526 §6]
(Implementation of 2011 Laws)
Note:
Section 2, chapter 80, Oregon Laws 2011, provides:
Sec. 2. The
amendments to ORS 656.313 by section 1 of this 2011 Act apply to settlements of
workers’ compensation claims entered into on or after the effective date of
this 2011 Act [January 1, 2012]. [2011 c.80 §2]
Note:
Section 5, chapter 99, Oregon Laws 2011, provides:
Sec. 5. The
amendments to ORS 656.206, 656.247, 656.268 and 656.325 by sections 1 to 4 of
this 2011 Act apply to requests for reconsideration made on or after the
effective date of this 2011 Act [January 1, 2012]. [2011 c.99 §5]
COMPENSATION AND MEDICAL BENEFITS
656.204 Death.
If death results from the accidental injury, payments shall be made as follows:
(1)(a)
The cost of final disposition of the body and funeral expenses, including but
not limited to transportation of the body, shall be paid, not to exceed 20
times the average weekly wage in any case.
(b)
The insurer or self-insured employer shall pay bills submitted for disposition
and funeral expenses up to the benefit limit established in paragraph (a) of
this subsection. If any part of the benefit remains unpaid 60 days after claim
acceptance, the insurer or self-insured employer shall pay the unpaid amount to
the estate of the worker.
(2)(a)
If the worker is survived by a spouse, monthly benefits shall be paid in an
amount equal to 4.35 times 66-2/3 percent of the average weekly wage to the
surviving spouse until remarriage. The payment shall cease at the end of the
month in which the remarriage occurs.
(b)
If the worker is survived by a spouse, monthly benefits also shall be paid in
an amount equal to 4.35 times 10 percent of the average weekly wage for each
child of the deceased who is substantially dependent on the spouse for support,
until such child becomes 18 years of age.
(c)
If the worker is survived by a spouse, monthly benefits also shall be paid in
an amount equal to 4.35 times 25 percent of the average weekly wage for each
child of the deceased who is not substantially dependent on the spouse for
support, until such child becomes 18 years of age.
(d)
If a surviving spouse receiving monthly payments dies, leaving a child who is
entitled to compensation on account of the death of the worker, a monthly benefit
equal to 4.35 times 25 percent of the average weekly wage shall be paid to each
such child until the child becomes 18 years of age or the child’s entitlement
to benefits under subsection (8) of this section ceases, whichever is later.
(e)
If a child who has become 18 years of age is a full-time high school student,
benefits shall be paid as provided in subsection (8) of this section.
(f)
In no event shall the total monthly benefits provided for in this subsection
exceed 4.35 times 133-1/3 percent of the average weekly wage. If the sum of the
individual benefits exceeds this maximum, the benefit for each child will be
reduced proportionally.
(3)(a)
Upon remarriage, a surviving spouse shall be paid 36 times the monthly benefit
in a lump sum as final payment of the claim, but the monthly payments for each
child shall continue as before.
(b)
If, after the date of the subject worker’s death, the surviving spouse cohabits
with another person for an aggregate period of more than one year and a child
has resulted from the relationship, the surviving spouse shall be paid 36 times
the monthly benefit in a lump sum as final payment of the claim, but the
monthly payment for any child who is entitled to compensation on account of the
death of the worker shall continue as before.
(4)(a)
If the worker leaves neither wife nor husband, but a child under 18 years of
age, a monthly benefit equal to 4.35 times 25 percent of the average weekly
wage shall be paid to each such child until the child becomes 18 years of age.
(b)
If a child who has become 18 years of age is a full-time high school student,
benefits shall be paid as provided in subsection (8) of this section.
(c)
In no event shall the total benefits provided for in this subsection exceed
4.35 times 133-1/3 percent of the average weekly wage. If the sum of the
individual benefits exceeds this maximum, the benefit for each child will be
reduced proportionally.
(5)(a)
If the worker leaves a dependent other than a surviving spouse or a child, a
monthly payment shall be made to each dependent equal to 50 percent of the
average monthly support actually received by such dependent from the worker
during the 12 months next preceding the occurrence of the accidental injury. If
a dependent is under the age of 18 years at the time of the accidental injury,
the payment to the dependent shall cease when such dependent becomes 18 years
of age. The payment to any dependent shall cease under the same circumstances
that would have terminated the dependency had the injury not happened.
(b)
If the dependent who has become 18 years of age is a full-time high school
student, benefits shall be paid as provided in subsection (8) of this section.
(c)
In no event shall the total benefits provided for in this subsection exceed
4.35 times 10 percent of the average weekly wage. If the sum of the individual
benefits exceeds this maximum, the benefit for each dependent will be reduced
proportionally.
(6)
If a child is an invalid at the time the child otherwise becomes ineligible for
benefits under this section, the payment to the child shall continue while the
child remains an invalid. If a person is entitled to payment because the person
is an invalid, payment shall terminate when the person ceases to be an invalid.
(7)
If, at the time of the death of a worker, the child of the worker or dependent
has become 17 years of age but is under 18 years of age, the child or dependent
shall receive the payment provided in this section for a period of one year
from the date of the death. However, if after such period the child is a
full-time high school student, benefits shall be paid as provided in subsection
(8) of this section.
(8)(a)
Benefits under this section which are to be paid as provided in this subsection
shall be paid for the child or dependent until the child or dependent becomes
19 years of age. If, however, the child or dependent is attending higher
education or begins attending higher education within six months of the date
the child or dependent leaves high school, benefits shall be paid until the
child or dependent becomes 23 years of age, ceases attending higher education
or graduates from an approved institute or program, whichever is earlier.
(b)
If a child or dependent who is eligible for benefits under this subsection has
no surviving parent, the child or dependent shall receive 4.35 times 66-2/3
percent of the average weekly wage until the child or dependent becomes 23
years of age, ceases attending higher education or graduates from an approved
institute or program, whichever is earlier.
(c)
As used in this subsection, “attending higher education” means regularly
attending community college, college or university, or regularly attending a
course of vocational or technical training designed to prepare the participant
for gainful employment. A child or dependent enrolled in an educational course
load of less than one-half of that determined by the educational facility to
constitute “full-time” enrollment is not “attending higher education.”
(9)
As used in this section, “average weekly wage” has the meaning for that term
provided in ORS 656.211. [Amended by 1957 c.453 §1; 1965 c.285 §22; 1967 c.286 §1;
1969 c.521 §1; 1971 c.415 §1; 1973 c.497 §2; 1974 c.41 §4; 1981 c.535 §4; 1981
c.874 §15; 1985 c.108 §1; 1987 c.235 §1; 1991 c.473 §1; 1995 c.332 §13; 1999
c.927 §2; 2009 c.171 §1]
Note: See
notes under 656.202.
Note:
Section 59, chapter 332, Oregon Laws 1995, provides:
Sec. 59. (1)
Surviving spouses without children, whose entitlement to benefits under ORS
656.204 is based on an injury before September 20, 1985, shall have their
benefits supplemented from the Retroactive Reserve. The total benefits payable,
comprising the benefits in effect on the date of injury plus the Retroactive
Reserve supplement, shall be equal to the total benefits payable under the
formula prescribed for surviving spouses without children, whose entitlement to
benefits is based on an injury occurring on September 20, 1985.
(2)
The provisions of this section apply to benefits for periods beginning on and
after the effective date of this 1995 Act [June 7, 1995]. [1995 c.332 §59]
656.206 Permanent total disability.
(1) As used in this section:
(a)
“Essential functions” means the primary tasks associated with the job.
(b)
“Materially improved medically” means an actual change for the better in the
worker’s medical condition that is supported by objective findings.
(c)
“Materially improved vocationally” means an actual change for the better in
the:
(A)
Worker’s vocational capability; or
(B)
Likelihood that the worker can return to work in a gainful and suitable
occupation.
(d)
“Permanent total disability” means, notwithstanding ORS 656.225, the loss,
including preexisting disability, of use or function of any portion of the body
which permanently incapacitates the worker from regularly performing work at a
gainful and suitable occupation.
(e)
“Regularly performing work” means the ability of the worker to discharge the
essential functions of the job.
(f)
“Suitable occupation” means one that the worker has the ability and the
training or experience to perform, or an occupation that the worker is able to
perform after rehabilitation.
(g)
“Wages” means wages as determined under ORS 656.210.
(2)
When permanent total disability results from the injury, the worker shall
receive during the period of that disability compensation benefits equal to
66-2/3 percent of wages not to exceed 100 percent of the average weekly wage
nor less than the amount of 90 percent of wages a week or the amount of $50,
whichever amount is lesser.
(3)
The worker has the burden of proving permanent total disability status and must
establish that the worker is willing to seek regular gainful employment and
that the worker has made reasonable efforts to obtain such employment.
(4)
When requested by the Director of the Department of Consumer and Business
Services, a worker who receives permanent total disability benefits shall file
on a form provided by the director, a sworn statement of the worker’s gross
annual income for the preceding year along with such other information as the
director considers necessary to determine whether the worker regularly performs
work at a gainful and suitable occupation.
(5)
Each insurer shall reexamine periodically each permanent total disability claim
for which the insurer has current payment responsibility to determine whether
the worker has materially improved, either medically or vocationally, and is no
longer permanently incapacitated from regularly performing work at a gainful
and suitable occupation. Reexamination shall be conducted every two years or at
such other more frequent interval as the director may prescribe. Reexamination
shall include such medical examinations, vocational evaluations, reports and
other records as the insurer considers necessary or the director may require.
(6)(a)
If a worker receiving permanent total disability benefits is found to be
materially improved and capable of regularly performing work at a gainful and
suitable occupation, the insurer or self-insured employer shall issue a notice
of closure pursuant to ORS 656.268. Permanent total disability benefits shall
be paid through the date of the notice of closure. Notwithstanding ORS 656.268
(5), if a worker objects to a notice of closure issued under this subsection,
the worker must request a hearing. If the worker requests a hearing on the
notice of closure before the Hearings Division of the Workers’ Compensation
Board within 30 days of the date of the notice of closure, the insurer or
self-insured employer shall continue payment of permanent total disability
benefits until an order of the Hearings Division or a subsequent order affirms
the notice of closure or until another order that terminates the worker’s
benefits becomes final. If the worker requests a hearing on the notice of
closure more than 30 days from the date of the notice of closure but before the
60-day period for requesting a hearing expires, the insurer or self-insured
employer shall resume paying permanent total disability benefits from the date
the hearing is requested and shall continue payment of benefits until an order
of the Hearings Division or a subsequent order affirms the notice of closure or
until another order that terminates the worker’s benefits becomes final. If the
notice of closure is upheld by the Hearings Division, the insurer or
self-insured employer shall be reimbursed from the Workers’ Benefit Fund for
the amount of permanent total disability benefits paid after the date of the
notice of closure issued under this subsection.
(b)
An insurer or self-insured employer must establish that the condition of a
worker who is receiving permanent total disability benefits has materially
improved by a preponderance of the evidence presented at hearing.
(c)
Medical examinations or vocational evaluations used to support the issuance of
a notice of closure under this subsection must include at least one report in
which the author personally observed the worker.
(d)
Notwithstanding section 54 (3), chapter 2, Oregon Laws 1990, the Hearings
Division of the Workers’ Compensation Board may request the director to order a
medical arbiter examination of an injured worker who has requested a hearing
under this subsection.
(7)
A worker who has had permanent total disability benefits terminated under this
section by an order that has become final is eligible for vocational assistance
pursuant to ORS 656.340. Notwithstanding ORS 656.268 (10), if a worker has
enrolled in and is actively engaged in a training program, when vocational
assistance provided under this section ends or the worker ceases to be enrolled
and actively engaged in the training program, the insurer or the self-insured
employer shall determine the extent of disability pursuant to ORS 656.214.
(8)
A worker receiving permanent total disability benefits is required, if
requested by the director, the insurer or the self-insured employer, to submit
to a vocational evaluation at a time reasonably convenient to the worker as may
be provided by the rules of the director. No more than three evaluations may be
requested except after notification to and authorization by the director. If
the worker refuses to submit to or obstructs a vocational evaluation, the
rights of the worker to compensation shall be suspended with the consent of the
director until the evaluation has taken place, and no compensation shall be
payable for the period during which the worker refused to submit to or
obstructed the evaluation. The insurer or self-insured employer shall pay the
costs of the evaluation and related services that are reasonably necessary to
allow the worker to attend the evaluation requested under this subsection. As
used in this subsection, “related services” includes, but is not limited to,
wages, child care, travel, meals and lodging.
(9)
Notwithstanding any other provisions of this chapter, if a worker receiving
permanent total disability incurs a new compensable injury, the worker’s
entitlement to compensation for the new injury shall be limited to medical
benefits pursuant to ORS 656.245 and permanent partial disability benefits for
impairment, as determined in the manner set forth in ORS 656.214 (2).
(10)
When a worker eligible for benefits under this section returns to work, if the
combined total of the worker’s post-injury wages plus permanent total disability
benefit exceeds the worker’s wage at the time of injury, the worker’s permanent
total disability benefit shall be reduced by the amount the worker’s wages plus
statutory permanent total disability benefit exceeds the worker’s wage at
injury.
(11)
For purposes of this section:
(a)
A gainful occupation for workers with a date of injury prior to January 1,
2006, who were:
(A)
Employed continuously for 52 weeks prior to the injury, is an occupation that
provides weekly wages that are the lesser of the most recent federal poverty
guidelines for a family of three that are applicable to Oregon residents and
that are published annually in the Federal Register by the United States
Department of Health and Human Services or 66-2/3 percent of the worker’s
average weekly wages from all employment for the 52 weeks prior to the date of
injury.
(B)
Not employed continuously for the 52 weeks prior to the date of injury, but who
were employed for at least four weeks prior to the date of injury, is an
occupation that provides weekly wages that are the lesser of the most recent
federal poverty guidelines for a family of three that are applicable to Oregon
residents and that are published annually in the Federal Register by the United
States Department of Health and Human Services or 66-2/3 percent of the worker’s
average weekly wage from all employment for the 52 weeks prior to the date of
injury based on weeks of actual employment, excluding any extended periods of
unemployment.
(C)
Employed for less than four weeks prior to the date of injury with no other
employment during the 52 weeks prior to the date of injury, is an occupation
that provides weekly wages that are the lesser of the most recent federal
poverty guidelines for a family of three that are applicable to Oregon
residents and that are published annually in the Federal Register by the United
States Department of Health and Human Services or 66-2/3 percent of the average
weekly wages intended by the parties at the time of initial hire.
(b)
A gainful occupation for workers with a date of injury on or after January 1,
2006, who were:
(A)
Employed continuously for 52 weeks prior to the injury, is an occupation that
provides weekly wages that are the lesser of the most recent federal poverty
guidelines for a family of three that are applicable to Oregon residents and
that are published annually in the Federal Register by the United States
Department of Health and Human Services or 66-2/3 percent of the worker’s
average weekly wages from all employment for the 52 weeks prior to the date of
injury adjusted by the percentage of change in the applicable federal poverty
guidelines for a family of three from the date of injury to the date of
evaluation of the extent of the worker’s disability.
(B)
Not employed continuously for the 52 weeks prior to the date of injury, but who
were employed for at least four weeks prior to the date of injury, is an
occupation that provides weekly wages that are the lesser of the most recent
federal poverty guidelines for a family of three that are applicable to Oregon
residents and that are published annually in the Federal Register by the United
States Department of Health and Human Services or 66-2/3 percent of the worker’s
average weekly wage from all employment for the 52 weeks prior to the date of
injury based on weeks of actual employment, excluding any extended periods of
unemployment and as adjusted by the percentage of change in the applicable
federal poverty guidelines for a family of three from the date of injury to the
date of evaluation of the extent of the worker’s disability.
(C)
Employed for less than four weeks prior to the date of injury with no other
employment during the 52 weeks prior to the date of injury, is an occupation
that provides weekly wages that are the lesser of the most recent federal
poverty guidelines for a family of three that are applicable to Oregon
residents and that are published annually in the Federal Register by the United
States Department of Health and Human Services or 66-2/3 percent of the average
weekly wages intended by the parties at the time of initial hire adjusted by
the percentage of change in the applicable federal poverty guidelines for a
family of three from the date of injury to the date of evaluation of the extent
of the worker’s disability. [Amended by 1953 c.670 §4; 1955 c.553 §1; 1957
c.452 §1; 1959 c.517 §1; 1965 c.285 §22a; 1969 c.500 §2; 1973 c.614 §2; 1974
c.41 §5; 1975 c.506 §1; 1977 c.430 §1; 1981 c.874 §12; 1983 c.816 §3; 1995
c.332 §14; 1999 c.313 §13; 1999 c.927 §3; 2003 c.657 §§5,6; 2005 c.461 §§1,2;
2007 c.274 §3; 2011 c.99 §2]
Note: See
notes under 656.202.
656.207 [1959
c.589 §2; repealed by 1965 c.285 §95]
656.208 Death during permanent total
disability. (1) If the injured worker dies during
the period of permanent total disability, whatever the cause of death, leaving
a spouse or any dependents listed in ORS 656.204, payment shall be made in the
same manner and in the same amounts as provided in ORS 656.204.
(2)
If any surviving spouse to whom the provisions of this section apply remarries,
the payments on account of a child or children shall continue to be made to the
child or children the same as before the remarriage. [Amended by 1957 c.453 §2;
1959 c.450 §2; 1965 c.285 §22b; 1969 c.521 §2; 1971 c.415 §2; 1973 c.497 §3;
1975 c.497 §2; 1985 c.108 §2]
656.209 Offsetting permanent total
disability benefits against Social Security benefits.
(1) With the authorization of the Department of Consumer and Business Services,
the amount of any permanent total disability benefits payable to an injured
worker shall be reduced by the amount of any disability benefits the worker
receives from federal Social Security.
(a)
If the benefit amount to which the worker is entitled pursuant to this chapter
exceeds the worker’s federal disability benefit limitation determined pursuant
to 42 U.S.C. 424(a), the reduction in worker’s compensation benefits authorized
by this subsection shall not be administered in such manner as to lower the
amount the worker would have received pursuant to this chapter had such
reduction not been made.
(b)
If the benefit amount to which the worker is entitled pursuant to this chapter
is less than the worker’s federal disability benefit limitation determined
pursuant to 42 U.S.C. 424(a), the reduction in worker’s compensation
benefits authorized by this subsection shall not be administered in such manner
as to lower the amount of combined benefits the worker receives below the
federal benefit limitation.
(2)
No reduction of permanent total disability benefits shall be made pursuant to
this section unless authorized by the department.
(3)
No reduction of benefits shall be authorized pursuant to this section except
upon actual receipt of federal Social Security disability benefits by the
injured worker.
(4)
The effective date of the operation of any offset provided in this section
shall be the date established in the authorization provided in subsection (1)
of this section, whether the authorization was issued prior to or subsequent to
May 8, 1979. [1977 c.430 §5; 1979 c.117 §3]
656.210 Temporary total disability;
payment during medical treatment; election; rules.
(1) When the total disability is only temporary, the worker shall receive
during the period of that total disability compensation equal to 66-2/3 percent
of wages, but not more than 133 percent of the average weekly wage nor less
than the amount of 90 percent of wages a week or the amount of $50 a week,
whichever amount is less. Notwithstanding the limitation imposed by this
subsection, an injured worker who is not otherwise eligible to receive an
increase in benefits for the fiscal year in which compensation is paid shall
have the benefits increased each fiscal year by the percentage which the
applicable average weekly wage has increased since the previous fiscal year.
(2)(a)
For the purpose of this section, the weekly wage of workers shall be
ascertained:
(A)
For workers employed in one job at the time of injury, by multiplying the daily
wage the worker was receiving by the number of days per week that the worker
was regularly employed; or
(B)
For workers employed in more than one job at the time of injury, by adding all
earnings the worker was receiving from all subject employment.
(b)
Notwithstanding paragraph (a)(B) of this subsection, the weekly wage calculated
under paragraph (a)(A) of this subsection shall be used for workers employed in
more than one job at the time of injury unless the insurer, self-insured
employer or assigned claims agent for a noncomplying employer receives:
(A)
Within 30 days of receipt of the initial claim, notice that the worker was
employed in more than one job with a subject employer at the time of injury;
and
(B)
Within 60 days of the date of mailing a request for verification, verifiable
documentation of wages from such additional employment.
(c)
Notwithstanding ORS 656.005 (7)(c), an injury to a worker employed in more than
one job at the time of injury is not disabling if no temporary disability
benefits are payable for time lost from the job at injury. Claim costs incurred
as a result of supplemental temporary disability benefits paid as provided in
subsection (5) of this section may not be included in any data used for
ratemaking or individual employer rating or dividend calculations by an
insurer, a rating organization licensed pursuant to ORS chapter 737, the State
Accident Insurance Fund Corporation or the Department of Consumer and Business
Services if the injured worker is not eligible for permanent disability
benefits or temporary disability benefits for time lost from the job at injury.
(d)
For the purpose of this section:
(A)
The benefits of a worker who incurs an injury shall be based on the wage of the
worker at the time of injury.
(B)
The benefits of a worker who incurs an occupational disease shall be based on
the wage of the worker at the time there is medical verification that the
worker is unable to work because of the disability caused by the occupational
disease. If the worker is not working at the time that there is medical
verification that the worker is unable to work because of the disability caused
by the occupational disease, the benefits shall be based on the wage of the
worker at the worker’s last regular employment.
(e)
As used in this subsection, “regularly employed” means actual employment or
availability for such employment. For workers not regularly employed and for
workers with no remuneration or whose remuneration is not based solely upon
daily or weekly wages, the Director of the Department of Consumer and Business
Services, by rule, may prescribe methods for establishing the worker’s weekly
wage.
(3)
No disability payment is recoverable for temporary total or partial disability
suffered during the first three calendar days after the worker leaves work or
loses wages as a result of the compensable injury unless the worker is totally
disabled after the injury and the total disability continues for a period of 14
consecutive days or unless the worker is admitted as an inpatient to a hospital
within 14 days of the first onset of total disability. If the worker leaves
work or loses wages on the day of the injury due to the injury, that day shall
be considered the first day of the three-day period.
(4)
When an injured worker with an accepted disabling compensable injury is
required to leave work for a period of four hours or more to receive medical
consultation, examination or treatment with regard to the compensable injury,
the worker shall receive temporary disability benefits calculated pursuant to
ORS 656.212 for the period during which the worker is absent, until such time
as the worker is determined to be medically stationary. However, benefits under
this subsection are not payable if wages are paid for the period of absence by
the employer.
(5)(a)
The insurer of the employer at injury or the self-insured employer at injury,
may elect to be responsible for payment of supplemental temporary disability
benefits to a worker employed in more than one job at the time of injury. In
accordance with rules adopted by the director, if the worker’s weekly wage is
determined under subsection (2)(a)(B) of this section, the insurer or
self-insured employer shall be reimbursed from the Workers’ Benefit Fund for
the amount of temporary disability benefits paid that exceeds the amount
payable pursuant to subsection (2)(a)(A) of this section had the worker been
employed in only one job at the time of injury. Such reimbursement shall
include an administrative fee payable to the insurer or self-insured employer
pursuant to rules adopted by the director.
(b)
If the insurer or self-insured employer elects not to pay the supplemental
temporary disability benefits for a worker employed in more than one job at the
time of injury, the director shall either administer and pay the supplemental
benefits directly or shall assign responsibility to administer and process the
payment to a paying agent selected by the director.
(6)
The director shall adopt rules for the payment and reimbursement of
supplemental temporary disability benefits under this section. [Amended by 1955
c.713 §1; 1957 c.452 §2; 1959 c.517 §2; 1965 c.285 §22c; 1969 c.183 §1; 1969
c.500 §1; 1971 c.204 §1; 1973 c.614 §1; 1974 c.41 §6; 1975 c.507 §1; 1975 c.663
§1; 1985 c.507 §3; 1987 c.521 §1; 1987 c.713 §7; 1995 c.332 §15; 2001 c.865 §3;
2003 c.760 §1; 2007 c.241 §10; 2009 c.313 §1]
Note: See
notes under 656.202.
656.211 “Average weekly wage” defined.
As used in ORS 656.210 (1), “average weekly wage” means the average weekly wage
of workers in covered employment in Oregon, as determined by the Employment
Department, for the last quarter of the calendar year preceding the fiscal year
in which compensation is paid and as computed by the Employment Department as
of May 15 of each year. [1973 c.614 §4; 1990 c.2 §6]
Note: See
notes under 656.202.
656.212 Temporary partial disability.
When the disability is or becomes partial only and is temporary in character:
(1)
No disability payment is recoverable for temporary disability suffered during
the first three calendar days after the worker leaves work or loses wages as a
result of the compensable injury. If the worker leaves work or loses wages on
the day of the injury due to the injury, that day shall be considered the first
day of the three-day period.
(2)
The payment of temporary total disability pursuant to ORS 656.210 shall cease
and the worker shall receive that proportion of the payments provided for
temporary total disability which the loss of wages bears to the wage used to
calculate temporary total disability pursuant to ORS 656.210. [Amended by 1953
c.672 §2; 1995 c.332 §16; amendments by 1995 c.332 §16a repealed by 1999 c.6 §1;
1999 c.538 §1]
Note: See
notes under 656.202.
656.214 Permanent partial disability.
(1) As used in this section:
(a)
“Impairment” means the loss of use or function of a body part or system due to
the compensable industrial injury or occupational disease determined in
accordance with the standards provided under ORS 656.726, expressed as a
percentage of the whole person.
(b)
“Loss” includes permanent and complete or partial loss of use.
(c)
“Permanent partial disability” means:
(A)
Permanent impairment resulting from the compensable industrial injury or
occupational disease; or
(B)
Permanent impairment and work disability resulting from the compensable industrial
injury or occupational disease.
(d)
“Regular work” means the job the worker held at injury.
(e)
“Work disability” means impairment modified by age, education and adaptability
to perform a given job.
(2)
When permanent partial disability results from a compensable injury or
occupational disease, benefits shall be awarded as follows:
(a)
If the worker has been released to regular work by the attending physician or
nurse practitioner authorized to provide compensable medical services under ORS
656.245 or has returned to regular work at the job held at the time of injury,
the award shall be for impairment only. Impairment shall be determined in
accordance with the standards provided by the Director of the Department of
Consumer and Business Services pursuant to ORS 656.726 (4). Impairment benefits
are determined by multiplying the impairment value times 100 times the average
weekly wage as defined by ORS 656.005.
(b)
If the worker has not been released to regular work by the attending physician
or nurse practitioner authorized to provide compensable medical services under
ORS 656.245 or has not returned to regular work at the job held at the time of
injury, the award shall be for impairment and work disability. Work disability
shall be determined in accordance with the standards provided by the director
pursuant to ORS 656.726 (4). Impairment shall be determined as provided in
paragraph (a) of this subsection. Work disability benefits shall be determined
by multiplying the impairment value, as modified by the factors of age,
education and adaptability to perform a given job, times 150 times the worker’s
weekly wage for the job at injury as calculated under ORS 656.210 (2). The
factor for the worker’s weekly wage used for the determination of the work disability
may be no more than 133 percent or no less than 50 percent of the average
weekly wage as defined in ORS 656.005.
(3)
Impairment benefits awarded under subsection (2)(a) of this section shall be
expressed as a percentage of the whole person. Impairment benefits for the
following body parts may not exceed:
(a)
For the loss of one arm at or above the elbow joint, 60 percent.
(b)
For the loss of one forearm at or above the wrist joint, or the loss of one
hand, 47 percent.
(c)
For the loss of one leg, at or above the knee joint, 47 percent.
(d)
For the loss of one foot, 42 percent.
(e)
For the loss of a great toe, six percent; for loss of any other toe, one
percent.
(f)
For partial or complete loss of hearing in one ear, that proportion of 19
percent which the loss bears to normal monaural hearing.
(g)
For partial or complete loss of hearing in both ears, that proportion of 60
percent which the combined binaural hearing loss bears to normal combined
binaural hearing. For the purpose of this paragraph, combined binaural hearing
loss shall be calculated by taking seven times the hearing loss in the less
damaged ear plus the hearing loss in the more damaged ear and dividing that
amount by eight. In the case of individuals with compensable hearing loss involving
both ears, either the method of calculation for monaural hearing loss or that
for combined binaural hearing loss shall be used, depending upon which allows
the greater award of impairment.
(h)
For partial or complete loss of vision of one eye, that proportion of 31
percent which the loss of monocular vision bears to normal monocular vision.
For the purposes of this paragraph, the term “normal monocular vision” shall be
considered as Snellen 20/20 for distance and Snellen 14/14 for near vision with
full sensory field.
(i)
For partial loss of vision in both eyes, that proportion of 94 percent which
the combined binocular visual loss bears to normal combined binocular vision.
In all cases of partial loss of sight, the percentage of said loss shall be
measured with maximum correction. For the purpose of this paragraph, combined
binocular visual loss shall be calculated by taking three times the visual loss
in the less damaged eye plus the visual loss in the more damaged eye and
dividing that amount by four. In the case of individuals with compensable
visual loss involving both eyes, either the method of calculation for monocular
visual loss or that for combined binocular visual loss shall be used, depending
upon which allows the greater award of impairment.
(j)
For the loss of a thumb, 15 percent.
(k)
For the loss of a first finger, eight percent; of a second finger, seven
percent; of a third finger, three percent; of a fourth finger, two percent.
(4)
The loss of one phalange of a thumb, including the adjacent epiphyseal region
of the proximal phalange, is considered equal to the loss of one-half of a
thumb. The loss of one phalange of a finger, including the adjacent epiphyseal
region of the middle phalange, is considered equal to the loss of one-half of a
finger. The loss of two phalanges of a finger, including the adjacent
epiphyseal region of the proximal phalange of a finger, is considered equal to
the loss of 75 percent of a finger. The loss of more than one phalange of a
thumb, excluding the epiphyseal region of the proximal phalange, is considered
equal to the loss of an entire thumb. The loss of more than two phalanges of a
finger, excluding the epiphyseal region of the proximal phalange of a finger,
is considered equal to the loss of an entire finger. A proportionate loss of
use may be allowed for an uninjured finger or thumb where there has been a loss
of effective opposition.
(5)
A proportionate loss of the hand may be allowed where impairment extends to
more than one digit, in lieu of ratings on the individual digits.
(6)
All permanent disability contemplates future waxing and waning of symptoms of
the condition. The results of waxing and waning of symptoms may include, but
are not limited to, loss of earning capacity, periods of temporary total or
temporary partial disability, or inpatient hospitalization. [Amended by 1953
c.669 §4; 1955 c.716 §1; 1957 c.449 §1; 1965 c.285 §22d; 1967 c.529 §1; 1971
c.178 §1; 1977 c.557 §1; 1979 c.839 §27; 1981 c.535 §27; 1985 c.506 §3; 1987
c.884 §36; 1990 c.2 §7; 1995 c.332 §17; 1999 c.6 §7; 1999 c.876 §2; 2001 c.865 §6;
2003 c.657 §§1,2; 2005 c.653 §§3,4; 2007 c.274 §1]
Note: See
notes under 656.202.
(Benefits, January 1, 1992, to December
31, 1995)
Note:
Section 2, chapter 745, Oregon Laws 1991, provides:
Sec. 2. (1)
Notwithstanding the method of calculating permanent partial disability benefit
amounts provided in ORS 656.214 (2), for injuries occurring during the period
beginning January 1, 1992, and ending December 31, 1995, the worker shall
receive an amount equal to 71 percent of the average weekly wage times the
number of degrees stated against the disability as provided in ORS 656.214 (2)
to (4). However, as annual changes in the average weekly wage occur, the amount
of the average weekly wage used in calculation of the benefit amount pursuant
to this subsection shall not be more than five percent larger than the amount
used in the previous year.
(2)(a)
Notwithstanding the method of calculating permanent partial disability benefit
amounts provided in ORS 656.214 (5), for injuries occurring during the period
beginning January 1, 1992, and ending December 31, 1995, the worker shall
receive an amount equal to:
(A)
When the number of degrees stated against the disability as provided in ORS
656.214 (5) is equal to or less than 96, 24 percent of the average weekly wage
times the number of degrees.
(B)
When the number of degrees stated against the disability as provided in ORS
656.214 (5) is more than 96 but equal to or less than 192, 24 percent of the average
weekly wage times 96 plus 28 percent of the average weekly wage times the
number of degrees in excess of 96.
(C)
When the number of degrees stated against the disability as provided in ORS
656.214 (5) is more than 192, 24 percent of the average weekly wage times 96
plus 28 percent of the average weekly wage times 96 plus 71 percent of the
average weekly wage times the number of degrees in excess of 192.
(b)
However, as annual changes in the average weekly wage occur, the amount of the
average weekly wage used in calculation of the benefit amount pursuant to this
subsection shall not be more than five percent larger than the amount used in
the previous year.
(3)
Benefits referred to in this section shall be paid on the basis of the benefit
amount in effect on the date of injury.
(4)
As used in this section, “average weekly wage” has the meaning for that term
provided in ORS 656.211. [1991 c.745 §2; 1995 c.332 §18]
(Benefits, January 1, 1996, to December
31, 1997)
Note:
Section 20, chapter 332, Oregon Laws 1995, provides:
Sec. 20. (1)
Notwithstanding the method of calculating permanent partial disability benefit
amounts provided in ORS 656.214 (2), for injuries occurring during the period
beginning January 1, 1996, and ending December 31, 1997, the worker shall
receive $420 for each degree stated against the disability as provided in ORS
656.214 (2) to (4).
(2)
Notwithstanding the method of calculating permanent partial disability benefit
amounts provided in ORS 656.214 (5), for injuries occurring during the period
beginning January 1, 1996, and ending December 31, 1997, the worker shall
receive an amount equal to:
(a)
When the number of degrees stated against the disability as provided in ORS
656.214 (5) is equal to or less than 64, $130 times the number of degrees.
(b)
When the number of degrees stated against the disability as provided in ORS
656.214 (5) is more than 64 but equal to or less than 160, $130 times 64 plus
$230 times the number of degrees in excess of 64.
(c)
When the number of degrees stated against the disability as provided in ORS
656.214 (5) is more than 160, $130 times 64 plus $230 times 96 plus $625 times
the number of degrees in excess of 160.
(3)
Benefits referred to in this section shall be paid on the basis of the benefit
amount in effect on the date of injury. [1995 c.332 §20; 1997 c.380 §1]
(Benefits, January 1, 1998, to October
23, 1999)
Note:
Section 3, chapter 380, Oregon Laws 1997, provides:
Sec. 3. (1)
Notwithstanding the method of calculating permanent partial disability benefit
amounts provided in ORS 656.214 (2), for injuries occurring during the period
beginning January 1, 1998, and ending on the effective date of this 1999 Act
[October 23, 1999], the worker shall receive $454 for each degree stated against
the disability as provided in ORS 656.214 (2) to (4).
(2)
Notwithstanding the method of calculating permanent partial disability benefit
amounts provided in ORS 656.214 (6), for injuries occurring during the period
beginning January 1, 1998, and ending on the effective date of this 1999 Act,
the worker shall receive an amount equal to:
(a)
When the number of degrees stated against the disability as provided in ORS
656.214 (6) is equal to or less than 64, $137.80 times the number of degrees.
(b)
When the number of degrees stated against the disability as provided in ORS
656.214 (6) is more than 64 but equal to or less than 160, $137.80 times 64
plus $243.80 times the number of degrees in excess of 64.
(c)
When the number of degrees stated against the disability as provided in ORS
656.214 (6) is more than 160, $137.80 times 64 plus $243.80 times 96 plus
$662.50 times the number of degrees in excess of 160.
(3)
Benefits referred to in this section shall be paid on the basis of the benefit
amount in effect on the date of injury. [1997 c.380 §3; 1999 c.6 §6]
(Benefits, January 1, 2000, to December
31, 2004)
Note:
Section 9, chapter 6, Oregon Laws 1999, provides:
Sec. 9. (1)
Notwithstanding the method of calculating permanent partial disability benefit
amounts provided in ORS 656.214 (2), for injuries occurring during the period
beginning January 1, 2000, and ending December 31, 2004, the worker shall
receive $511.29 for each degree stated against the disability as provided in
ORS 656.214 (2) to (4).
(2)
Notwithstanding the method of calculating permanent partial disability benefit
amounts provided in ORS 656.214 (6), for injuries occurring during the period
beginning January 1, 2000, and ending December 31, 2004, the worker shall
receive an amount equal to:
(a)
When the number of degrees stated against the disability as provided in ORS
656.214 (6) is equal to or less than 64, $153.00 times the number of degrees.
(b)
When the number of degrees stated against the disability as provided in ORS
656.214 (6) is more than 64 but equal to or less than 160, $267.44 times 64
plus $153.00 times the number of degrees in excess of 64.
(c)
When the number of degrees stated against the disability as provided in ORS
656.214 (6) is more than 160, $153.00 times 64 plus $267.44 times 96 plus
$709.79 times the number of degrees in excess of 160.
(3)
Benefits referred to in this section shall be paid on the basis of the benefit
amount in effect on the date of injury. [1999 c.6 §9]
Note:
Sections 6a and 6b, chapter 865, Oregon Laws 2001, modify benefit amounts paid
under section 9, chapter 6, Oregon Laws 1999, for injuries occurring during the
period beginning January 1, 2000, and ending July 30, 2001. For benefit amounts
paid for injuries occurring during the period beginning July 31, 2001, and
ending December 31, 2001, see 656.214.
Note:
Sections 6a and 6b, chapter 865, Oregon Laws 2001, provide:
Sec. 6a. (1)
Workers injured between January 1, 2000, and the effective date of this 2001
Act [July 30, 2001] who were awarded permanent partial disability benefits
before the effective date of this 2001 Act shall be paid by the Director of the
Department of Consumer and Business Services from the Workers’ Benefit Fund an
amount equal to the amount that benefits calculated pursuant to section 6b of
this 2001 Act are less than the benefits calculated pursuant to ORS 656.214, as
amended by section 6 of this 2001 Act.
(2)
The amendments to ORS 656.214 by section 6 of this 2001 Act may not be applied
to the benefits awarded to any injured worker during the period beginning
January 1, 2000, and ending on the effective date of this 2001 Act in such a
manner as to reduce the benefits awarded to that worker pursuant to section 6b
of this 2001 Act. [2001 c.865 §6a]
Sec. 6b. (1)
Notwithstanding any other provision of this chapter [ORS chapter 656], for
injuries occurring in the period beginning January 1, 2000, and ending on the
effective date of this 2001 Act [July 30, 2001], and for which awards have been
made during that period, the worker shall receive an amount equal to:
(a)
When the number of degrees stated against the disability as provided in ORS
656.214 (6) is equal to or less than 64, $153.00 times the number of degrees.
(b)
When the number of degrees stated against the disability as provided in ORS
656.214 (6) is more than 64 but equal to or less than 160, $267.44 times 64
plus $153.00 times the number of degrees in excess of 64.
(c)
When the number of degrees stated against the disability as provided in ORS
656.214 (6) is more than 160, $153.00 times 64 plus $267.44 times 96 plus
$709.79 times the number of degrees in excess of 160.
(2)
Notwithstanding any other provision of this chapter, for injuries occurring in
the period beginning January 1, 2000, and ending on the effective date of this
2001 Act, and for which awards are made after the effective date of this 2001
Act, the worker shall receive payments as provided in ORS 656.214, as amended
by section 6 of this 2001 Act. [2001 c.865 §6b]
(Benefits, January 1, 2002, to December
31, 2004)
Note:
Section 6c, chapter 865, Oregon Laws 2001, provides:
Sec. 6c. (1)
Notwithstanding the method of calculating permanent partial disability benefit
amounts provided in ORS 656.214 (2), for injuries occurring during the period
beginning January 1, 2002, and ending December 31, 2004, the worker shall
receive $559.00 for each degree stated against the disability as provided in
ORS 656.214 (2) to (4).
(2)
Notwithstanding the method of calculating permanent partial disability benefit
amounts provided in ORS 656.214 (6), for injuries occurring during the period
beginning January 1, 2002, and ending December 31, 2004, the worker shall
receive an amount equal to:
(a)
When the number of degrees stated against the disability as provided in ORS 656.214
(6) is equal to or less than 64, $184.00 times the number of degrees.
(b)
When the number of degrees stated against the disability as provided in ORS
656.214 (6) is more than 64 but equal to or less than 160, $184.00 times 64
plus $321.00 times the number of degrees in excess of 64.
(c)
When the number of degrees stated against the disability as provided in ORS
656.214 (6) is more than 160, $184.00 times 64 plus $321.00 times 96 plus
$748.00 times the number of degrees in excess of 160.
(3)
Benefits referred to in this section shall be paid on the basis of the benefit
amount in effect on the date of injury. [2001 c.865 §6c]
656.215 [1987
c.884 §36b; 1990 c.2 §8; repealed by 1991 c.745 §3]
656.216 Permanent partial disability;
method of payment; effect of prior receipt of temporary disability payments.
(1) Compensation for permanent partial disability may be paid monthly at 4.35
times the rate per week as provided for compensation for temporary total
disability at the time the determination is made. In no case shall such
payments be less than $108.75 per month.
(2)
If a worker, who is entitled to compensation for a permanent disability, has
received compensation for a temporary disability by reason of the same injury,
compensation for such permanent disability shall be in addition to the payments
which the worker has received on account of such temporary disability. [Amended
by 1967 c.529 §2; 1973 c.459 §1; 1974 c.41 §7]
656.218 Continuance of permanent partial
disability payments to survivors; effect of death prior to final claim disposition.
(1) In case of the death of a worker entitled to
compensation, whether eligibility therefor or the amount thereof have been
determined, payments shall be made for the period during which the worker, if
surviving, would have been entitled thereto.
(2)
If the worker’s death occurs prior to issuance of a notice of closure under ORS
656.268, the insurer or the self-insured employer shall determine compensation
for permanent partial disability, if any.
(3)
If the worker has filed a request for a hearing pursuant to ORS 656.283 and
death occurs prior to the final disposition of the request, the persons
described in subsection (5) of this section shall be entitled to pursue the
matter to final determination of all issues presented by the request for
hearing.
(4)
If the worker dies before filing a request for hearing, the persons described
in subsection (5) of this section shall be entitled to file a request for
hearing and to pursue the matter to final determination as to all issues
presented by the request for hearing.
(5)
The payments provided in this section shall be made to the persons who would
have been entitled to receive death benefits if the injury causing the
disability had been fatal. In the absence of persons so entitled, the unpaid
balance of the award shall be paid to the worker’s estate.
(6)
This section does not entitle any person to double payments on account of the
death of a worker and a continuation of payments for permanent partial
disability, or to a greater sum in the aggregate than if the injury had been
fatal. [Amended by 1959 c.450 §3; 1973 c.355 §1; 1975 c.497 §3; 1981 c.854 §11;
1987 c.884 §16; 1999 c.313 §4; 2009 c.171 §2]
656.220
[Amended by 1957 c.718 §4; 1965 c.285 §24; repealed by 1975 c.505 §1]
656.222 Compensation for additional
accident. Should a further accident occur to a
worker who is receiving compensation for a temporary disability, or who has
been paid or awarded compensation for a permanent disability, the award of
compensation for such further accident shall be made with regard to the
combined effect of the injuries of the worker and past receipt of money for
such disabilities.
656.224
[Amended by 1953 c.674 §13; repealed by 1959 c.517 §5]
656.225 Compensability of certain
preexisting conditions. In accepted injury or
occupational disease claims, disability solely caused by or medical services
solely directed to a worker’s preexisting condition are not compensable unless:
(1)
In occupational disease or injury claims other than those involving a
preexisting mental disorder, work conditions or events constitute the major
contributing cause of a pathological worsening of the preexisting condition.
(2)
In occupational disease or injury claims involving a preexisting mental
disorder, work conditions or events constitute the major contributing cause of
an actual worsening of the preexisting condition and not just of its symptoms.
(3)
In medical service claims, the medical service is prescribed to treat a change
in the preexisting condition as specified in subsection (1) or (2) of this
section, and not merely as an incident to the treatment of a compensable injury
or occupational disease. [1995 c.332 §3]
656.226 Cohabitants and children entitled
to compensation. In case an unmarried man and an
unmarried woman have cohabited in this state as husband and wife for over one
year prior to the date of an accidental injury received by one or the other as
a subject worker, and children are living as a result of that relation, the surviving
cohabitant and the children are entitled to compensation under this chapter the
same as if the man and woman had been legally married. [Amended by 1983 c.816 §4]
656.228 Payments directly to beneficiary
or custodian. (1) If compensation is payable for the
benefit of a beneficiary other than the injured worker, the insurer or the
self-insured employer may segregate any additional compensation payable on
account of that beneficiary and make payment directly to the beneficiary, if
sui juris; otherwise, to the guardian or person having custody of the
beneficiary.
(2)
Compensation paid to an injured worker who is a minor prior to receipt of
notice by the insurer or the self-insured employer from the parent or guardian
of the minor that the parent or guardian claims the compensation shall
discharge the obligation to pay compensation to the extent of such payment. [Amended
by 1957 c.477 §1; 1965 c.285 §25; 1981 c.854 §12]
656.230 Lump sum award payments.
(1) When a worker has been awarded compensation for permanent partial
disability, and the worker requests payment of all or part of the award in a
lump sum payment, the insurer shall make the payment requested unless the:
(a)
Worker has not waived the right to appeal the adequacy of the award;
(b)
Award has not become final by operation of law;
(c)
Payment of compensation has been stayed pending a request for hearing or review
under ORS 656.313; or
(d)
Worker is enrolled and actively engaged in training according to rules adopted
pursuant to ORS 656.340 and 656.726.
(2)
Any unpaid balance of the award not paid in a lump sum payment shall be paid
pursuant to ORS 656.216.
(3)
In all cases where the award for permanent partial disability does not exceed
$6,000, the insurer or the self-insured employer shall pay all of the award to
the worker in a lump sum. [Amended by 1957 c.574 §4; 1959 c.449 §1; 1965 c.285 §23a;
1973 c.221 §1; 1981 c.854 §13; 1983 c.816 §15; 1995 c.332 §22; 2007 c.270 §1]
656.232 Payments to aliens residing
outside of United States. (1) If a beneficiary is an alien
residing outside of the United States or its dependencies, payment of the sums
due such beneficiary may, in the discretion of the Director of the Department
of Consumer and Business Services, be made to the consul general of the country
in which such beneficiary resides on behalf of the beneficiary. The receipt of
the consul general to the director for the amounts thus paid shall be a full
and sufficient receipt for the payment of the funds thus due the beneficiary.
(2)
If a beneficiary is an alien residing outside of the United States or its
dependencies, the director may, in lieu of awarding such beneficiary
compensation in the amount provided by this chapter, award such beneficiary
such lesser sum by way of compensation which, according to the conditions and
costs of living in the place of residence of such beneficiary will, in the
opinion of the director, maintain the beneficiary in a like degree of comfort
as a beneficiary of the same class residing in this state and receiving the
full compensation authorized by this chapter. The director shall determine the
amount of compensation benefits upon the basis of the rate of exchange between
the United States and any foreign country as determined by the Federal Reserve
Bank as of January 1 and July 1 of the year when paid.
(3)
All benefit rights shall be canceled upon the commencement of a state of war
between the United States and the country of a beneficiary’s domicile.
656.234 Compensation not assignable nor to
pass by operation of law; certain benefits subject to support obligations.
(1) No moneys payable under this chapter on account of injuries or death are
subject to assignment prior to their receipt by the beneficiary entitled
thereto, nor shall they pass by operation of law. All such moneys and the right
to receive them are exempt from seizure on execution, attachment or
garnishment, or by the process of any court.
(2)
Notwithstanding any other provision of this section:
(a)
Moneys payable under ORS 656.210 and 656.212 are subject to an order to enforce
child support obligations, and spousal support when there is a current support
obligation for a joint child of the obligated parent and the person to whom
spousal support is owed, under ORS 25.378; and
(b)
Moneys payable under ORS 656.206, 656.214, 656.236 and 656.289 (4) are subject
to an order to enforce child support obligations under ORS 25.378.
(3)
Notwithstanding the provisions of ORS 25.378 and 25.414, the amount of child
support obligation subject to enforcement may not exceed:
(a)
One-fourth of moneys paid under ORS 656.210 and 656.212 or the amount of the
current support to be paid as continuing support, whichever is less, or, if
there is no current support obligation and the withholding is for arrearages only,
15 percent of the moneys paid under ORS 656.210 and 656.212 or the amount
previously paid as current support, whichever is less;
(b)
One-half of moneys paid in a lump sum award under ORS 656.210 and 656.212 when
the award becomes final by operation of law or waiver of the right to appeal
its adequacy;
(c)
One-half of moneys paid under ORS 656.206, 656.214 and 656.236; or
(d)
One-half of the net proceeds paid to the worker in a disputed claim settlement
under ORS 656.289 (4).
(4)
Notwithstanding any other provision of this section, when withholding is only
for arrearages assigned to this or another state, the Department of Justice may
set a lesser amount to be withheld if the obligor demonstrates the withholding
is prejudicial to the obligor’s ability to provide for a child the obligor has
a duty to support. [Amended by 1967 c.468 §1; 1989 c.520 §2; 1991 c.758 §3;
1993 c.48 §1; 1993 c.798 §22; 1995 c.272 §2; 2001 c.455 §26; 2003 c.73 §70;
2011 c.317 §2]
656.236 Compromise and release of claim
matters except for medical benefits; approval by Administrative Law Judge or
board; approval by director for certain reserve reimbursements;
restriction on charging costs to workers; restriction on joinder as parties for
responsibility determinations. (1)(a) The parties
to a claim, by agreement, may make such disposition of any or all matters
regarding a claim, except for medical services, as the parties consider
reasonable, subject to such terms and conditions as the Workers’ Compensation
Board may prescribe. For the purposes of this section, “matters regarding a
claim” includes the disposition of a beneficiary’s independent claim for
compensation under this chapter. Unless otherwise specified, a disposition
resolves all matters and all rights to compensation, attorney fees and
penalties potentially arising out of claims, except medical services,
regardless of the conditions stated in the agreement. Each disposition shall be
filed with the board for approval by the Administrative Law Judge who mediated
the agreement or by the board. If the worker is not represented by an attorney,
the worker may, at the worker’s request, personally appear before the board.
Submission of a disposition shall stay all other proceedings and payment
obligations, except for medical services, on that claim. The disposition shall
be approved in a final order unless:
(A)
The Administrative Law Judge who mediated the agreement or the board finds the
proposed disposition is unreasonable as a matter of law;
(B)
The Administrative Law Judge who mediated the agreement or the board finds the
proposed disposition is the result of an intentional misrepresentation of
material fact; or
(C)
Within 30 days of submitting the disposition for approval, the worker, the
insurer or self-insured employer requests the Administrative Law Judge who
mediated the agreement or the board to disapprove the disposition.
(b)
Notwithstanding paragraph (a)(C) of this subsection, a disposition may provide
for waiver of the provisions of that subparagraph if the worker was represented
by an attorney at the time the worker signed the disposition.
(2)
Notwithstanding any other provision of this chapter, an order approving
disposition of a claim pursuant to this section is not subject to review.
However, an order disapproving a disposition is subject to review pursuant to
ORS 656.298. The board shall file with the Department of Consumer and Business
Services a copy of each disposition that the Administrative Law Judge who
mediated the agreement or the board approves. If the Administrative Law Judge
who mediated the agreement or the board does not approve a disposition, the
Administrative Law Judge or the board shall enter an order setting aside the
disposition.
(3)
Unless the terms of the disposition expressly provide otherwise, no payments,
except for medical services, pursuant to a disposition are payable until the
Administrative Law Judge who mediated the agreement or the board approves the
disposition.
(4)
If a worker is represented by an attorney in the negotiation of a disposition
under this section, the insurer or self-insured employer shall pay to the
attorney a fee prescribed by the Administrative Law Judge who mediated the
agreement or the board.
(5)
Except as otherwise provided in this chapter, none of the cost of workers’
compensation to employers under this chapter, or in the court review of any
claim therefor, shall be charged to a subject worker.
(6)
Any claim in which the parties enter into a disposition under this section
shall not be eligible for reimbursement of expenditures authorized by law from
the Workers’ Benefit Fund without the prior approval of the Director of the
Department of Consumer and Business Services.
(7)
Insurers or self-insured employers who are parties to an approved claim
disposition agreement under this section shall not be joined as parties in
subsequent proceedings under this chapter to determine responsibility for
payment for any matter for which disposition is made by the agreement. Insurers
or self-insured employers may be joined as parties in subsequent proceedings
under this chapter to determine responsibility for medical services for claim
conditions for which disposition is made by an approved claim disposition
agreement, but no order in any subsequent proceedings may alter the obligations
of an insurer or self-insured employer set forth in an approved claims
disposition agreement, except as those obligations concern medical services.
(8)
No release by a worker or beneficiary of any rights under this chapter is
valid, except pursuant to a claim disposition agreement under this section or a
release pursuant to ORS 656.593.
(9)
Notwithstanding ORS 656.005 (21), as used in this section, “party” does not
include a noncomplying employer. [1965 c.285 §28; 1985 c.212 §5; 1987 c.250 §4;
1990 c.2 §9; 1995 c.332 §24; 1995 c.641 §18; 1997 c.639 §5; 2007 c.17 §2; 2007
c.491 §1]
656.240 Deduction of benefits from sick
leave payments paid to employees.
Notwithstanding any other law, an employer, with the consent of the worker, may
deduct from any sick leave payments made to an individual amounts equal to
benefits received by the individual under this chapter with respect to the same
injury that gave rise to the sick leave. However, the deduction of sick leave
shall not exceed an amount determined by taking the worker’s daily wage for the
period less daily time loss benefits received under this chapter divided by the
worker’s daily wage. [1969 c.398 §2; 1983 c.816 §5]
656.242
[Amended by 1959 c.589 §1; repealed by 1965 c.285 §95]
656.244 [Amended
by 1959 c.378 §1; repealed by 1965 c.285 §95]
656.245 Medical services to be provided;
services by providers not members of managed care organizations; authorizing
temporary disability compensation and making finding of impairment for
disability rating purposes by certain providers; review of disputed claims for
medical services; rules. (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. 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 the first visit on the initial claim 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. However, an emergency room
physician who is not authorized to serve as an attending physician under ORS
656.005 (12)(c) may authorize temporary disability benefits for a maximum of 14
days. A medical service provider qualified to serve as an attending physician
under ORS 656.005 (12)(b)(B) may authorize the payment of temporary disability
compensation for a period not to exceed 30 days from the date of the first
visit on the initial claim.
(C)
Except as otherwise provided in this chapter, only a physician qualified to
serve as an attending physician under ORS 656.005 (12)(b)(A) or (B)(i) who is
serving as 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.
(D)
Notwithstanding subparagraphs (A) and (B) of this paragraph, a nurse
practitioner licensed under ORS 678.375 to 678.390:
(i)
May provide compensable medical services for 90 days from the date of the first
visit on the claim;
(ii)
May 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)
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.
(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. [1965
c.285 §23; 1979 c.839 §32; 1981 c.535 §31; 1981 c.854 §14; 1985 c.739 §4; 1987
c.884 §24; 1990 c.2 §10; 1995 c.332 §25; amendments by 1995 c.332 §25a repealed
by 1999 c.6 §1; 1999 c.6 §10; 1999 c.582 §12; 1999 c.868 §1; 1999 c.926 §1;
2003 c.811 §§3,4; 2005 c.26 §§3,4; 2007 c.252 §§3,4; 2007 c.270 §§2,3; 2007
c.365 §2a; 2007 c.505 §§3,4; 2009 c.32 §1; 2009 c.36 §1]
Note: See
notes under 656.202.
656.246
[Repealed by 1965 c.285 §95]
656.247 Payment for medical services prior
to claim acceptance or denial; review of disputed services; duty of health
benefit plan to pay for certain medical services in denied claim.
(1) Except for medical services provided to workers subject to ORS 656.245
(4)(b)(B), payment for medical services provided to a subject worker in
response to an initial claim for a work-related injury or occupational disease
from the date of the employer’s notice or knowledge of the claim until the date
the claim is accepted or denied shall be payable in accordance with subsection
(4) of this section if the expenses are for:
(a)
Diagnostic services required to identify appropriate treatment or to prevent
disability;
(b)
Medication required to alleviate pain; or
(c)
Services required to stabilize the worker’s claimed condition and to prevent
further disability.
(2)
Notwithstanding subsection (1) of this section, no payment shall be due from
the insurer or self-insured employer if the insurer or self-insured employer
denies the claim within 14 days of the date of the employer’s notice or
knowledge of the claim.
(3)(a)
Disputes about whether the medical services provided to treat the claimed
work-related injury or occupational disease under subsection (1) of this section
are excessive, inappropriate or ineffectual or are consistent with the criteria
in subsection (1) of this section shall be resolved by the Director of the
Department of Consumer and Business Services. 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 services. If a party is dissatisfied with the order of
the director, the dissatisfied party may request review under ORS 656.704
within 60 days of the date of the director’s order. The order of the director
may be modified only if it is not supported by substantial evidence in the
record or if it reflects an error of law.
(b)
Disputes about the amount of the fee or nonpayment of bills for medical
treatment and services pursuant to this section shall be resolved pursuant to
ORS 656.248.
(c)
Except as provided in subsection (2) of this section, when a claim is settled
pursuant to ORS 656.289 (4), all medical services payable under subsection (1)
of this section that are provided on or before the date of denial shall be paid
in accordance with subsection (4) of this section. The insurer or self-insured
employer shall notify each affected service provider of the results of the
settlement.
(4)(a)
If the claim in which medical services are provided under subsection (1) of
this section is accepted, the insurer or self-insured employer shall make
payment for such medical services subject to the limitations and conditions of
this chapter.
(b)
If the claim in which medical services are provided under subsection (1) of
this section is denied and a health benefit plan provides benefits to the
worker, the health benefit plan shall be the first payer of the expenses for
medical services according to the terms, conditions and benefits of the plan.
Except as provided by subsection (2) of this section, after payment by the
health benefit plan, the workers’ compensation insurer or self-insured employer
shall pay any balance remaining for such services subject to the limitations
and conditions of this chapter.
(c)
As used in this subsection, “health benefit plan” has the meaning given that
term in ORS 743.730.
(5)
An insurer or self-insured employer may recover expenses for medical services
paid under subsection (1) of this section as an overpayment as provided by ORS
656.268 (14). [2001 c.865 §14; 2005 c.26 §5; 2011 c.99 §3]
Note: See
notes under 656.202.
656.248 Medical service fee schedules;
basis of fees; application to service provided by managed care organization;
resolution of fee disputes; rules. (1) The
Director of the Department of Consumer and Business Services, in compliance
with ORS 656.794 and ORS chapter 183, shall promulgate rules for developing and
publishing fee schedules for medical services provided under this chapter.
These schedules shall represent the reimbursement generally received for the
services provided. Where applicable, and to the extent the director determines
practicable, these fee schedules shall be based upon any one or all of the
following:
(a)
The current procedural codes and relative value units of the Department of
Health and Human Services Medicare Fee Schedules for all medical service
provider services included therein;
(b)
The average rates of fee schedules of the Oregon health insurance industry;
(c)
A reasonable rate of markup for the sale of medical devices or other medical
services;
(d)
A commonly used and accepted medical service fee schedule; or
(e)
The actual cost of providing medical services.
(2)
Medical fees equal to or less than the fee schedules published under this
section shall be paid when the vendor submits a billing for medical services.
In no event shall that portion of a medical fee be paid that exceeds the
schedules.
(3)
In no event shall a provider charge more than the provider charges to the
general public.
(4)
If no fee has been established for a given service or procedure the director
may, in compliance with ORS 656.794 and ORS chapter 183, promulgate a
reasonable rate, which shall be the same within any given area for all primary
health care providers to be paid for that service or procedure.
(5)
At the request of the director and in the method and manner prescribed by rule,
all providers of health insurance, as defined by ORS 731.162, shall cooperate
and consult with the director in providing information reasonably necessary and
available to develop the fee schedules prescribed under subsection (1) of this
section. A provider shall not be required to provide information or data that
the provider deems proprietary or confidential. However, the information
provided shall be considered proprietary and shall not be released by the
director. The director shall not require such information from a health
insurance provider more than once per year and shall reimburse the provider’s
costs for providing the required information.
(6)
Notwithstanding subsection (1) or (2) of this section, such rates or fees
provided in subsections (1) and (2) of this section shall be adequate to insure
at all times to the injured workers the standard of services and care intended
by this chapter.
(7)
The director shall update the schedule required by subsection (1) of this
section annually. As appropriate and applicable, the update shall be based
upon:
(a)
A statistically valid survey by the director of medical service fees or
markups;
(b)
That information provided to the director by any person or state agency having
access to medical service fee information;
(c)
That information provided to the director pursuant to subsection (5) of this
section; or
(d)
The annual percentage increase or decrease in the physician’s services
component of the national Consumer Price Index published by the Bureau of Labor
Statistics of the United States Department of Labor.
(8)
The director is prohibited from adopting or administering rules which treat
manipulation, when performed by an osteopathic physician, as anything other
than a separate therapeutic procedure which is paid in addition to other
services or office visits.
(9)
The director may, by rule, establish a fee schedule for reimbursement for
specific hospital services based upon the actual cost of providing the
services.
(10)
A medical service provider is not authorized to charge a fee for preparing or
submitting a medical report form required by the director under this chapter.
(11)
Notwithstanding any other provision of this section, fee schedules for medical
services and hospital services shall apply to those services performed by a
managed care organization certified pursuant to ORS 656.260, unless otherwise
provided in the managed care contract.
(12)
When a dispute exists between an injured worker, insurer or self-insured
employer and a medical service provider regarding either the amount of the fee
or nonpayment of bills for compensable medical services, notwithstanding any
other provision of this chapter, the injured worker, insurer, self-insured
employer or medical service provider may request administrative review by the
director. The decision of the director is subject to review under ORS 656.704.
(13)
The director may exclude hospitals defined in ORS 442.470 from imposition of a
fee schedule authorized by this section upon a determination of economic
necessity. [Amended by 1965 c.285 §26; 1969 c.611 §1; 1971 c.329 §1; 1981 c.535
§5; 1983 c.816 §6; 1985 c.107 §1; 1985 c.739 §5; 1987 c.884 §42; 1990 c.2 §14;
1995 c.332 §26; 1999 c.233 §1; 2005 c.26 §6; 2009 c.36 §2]
Note: See
notes under 656.202.
656.250 Limitation on compensability of physical
therapist services. A physical therapist shall not provide
compensable services to injured workers governed by this chapter except as
allowed by a governing managed care organization contract or as authorized by
the worker’s attending physician or nurse practitioner authorized to provide
compensable medical services under ORS 656.245. [1993 c.211 §6; 2003 c.811 §§5,6;
2007 c.365 §3]
656.252 Medical report regulation; rules;
duties of attending physician or nurse practitioner; disclosure of information;
notice of changing attending physician or nurse practitioner; copies of medical
service billings to be furnished to worker. (1) In
order to ensure the prompt and correct reporting and payment of compensation in
compensable injuries, the Director of the Department of Consumer and Business
Services shall make rules governing audits of medical service bills and reports
by attending and consulting physicians and other personnel of all medical
information relevant to the determination of a claim to the injured worker’s
representative, the worker’s employer, the employer’s insurer and the
Department of Consumer and Business Services. Such rules shall include, but not
necessarily be limited to:
(a)
Requiring attending physicians and nurse practitioners authorized to provide
compensable medical services under ORS 656.245 to make the insurer or
self-insured employer a first report of injury within 72 hours after the first
service rendered.
(b)
Requiring attending physicians and nurse practitioners authorized to provide
compensable medical services under ORS 656.245 to submit follow-up reports
within specified time limits or upon the request of an interested party.
(c)
Requiring examining physicians and nurse practitioners authorized to provide
compensable medical services under ORS 656.245 to submit their reports, and to
whom, within a specified time.
(d)
Such other reporting requirements as the director may deem necessary to insure
that payments of compensation be prompt and that all interested parties be
given information necessary to the prompt determination of claims.
(e)
Requiring insurers and self-insured employers to audit billings for all medical
services, including hospital services.
(2)
The attending physician or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 shall do the following:
(a)
Cooperate with the insurer or self-insured employer to expedite diagnostic and
treatment procedures and with efforts to return injured workers to appropriate
work.
(b)
Advise the insurer or self-insured employer of the anticipated date for release
of the injured worker to return to employment, the anticipated date that the
worker will be medically stationary, and the next appointment date. Except when
the attending physician or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 has previously indicated that temporary
disability will not exceed 14 days, the insurer or self-insured employer may
request a medical report every 15 days, and the attending physician or nurse
practitioner shall forward such reports.
(c)
Advise the insurer or self-insured employer within five days of the date the
injured worker is released to return to work. Under no circumstances shall the
physician or nurse practitioner authorized to provide compensable medical
services under ORS 656.245 notify the insurer or employer of the worker’s
release to return to work without notifying the worker at the same time.
(d)
After a claim has been closed, advise the insurer or self-insured employer
within five days after the treatment is resumed or the reopening of a claim is
recommended. The attending physician under this paragraph need not be the same
attending physician who released the worker when the claim was closed.
(3)
In promulgating the rules regarding medical reporting the director may consult
and confer with physicians and members of medical associations and societies.
(4)
No person who reports medical information to a person referred to in subsection
(1) of this section, in accordance with department rules, shall incur any legal
liability for the disclosure of such information.
(5)
Whenever an injured worker changes attending physicians or nurse practitioners
authorized to provide compensable medical services under ORS 656.245, the newly
selected attending physician or nurse practitioner shall so notify the
responsible insurer or self-insured employer not later than five days after the
date of the change or the date of first treatment. Every attending physician or
nurse practitioner authorized to provide compensable medical services under ORS
656.245 who refers a worker to a consulting physician promptly shall notify the
responsible insurer or self-insured employer of the referral.
(6)
A provider of medical services, including hospital services, that submits a
billing to the insurer or self-insured employer shall also submit a copy of the
billing to the worker for whom the service was performed after receipt from the
injured worker of a written request for such a copy. [1967 c.626 §§2,5; 1979
c.839 §3; 1981 c.535 §6; 1981 c.874 §17; 1987 c.884 §3; 1995 c.332 §26a; 2001
c.865 §14a; 2003 c.811 §§7,8; 2007 c.365 §4]
656.254 Medical report forms; sanctions;
procedure for declaring health care practitioner ineligible for workers’ compensation
reimbursement. (1) The Director of the Department of
Consumer and Business Services shall establish medical report forms, in
duplicate snap-outs where applicable, to be used by insurers, self-insured
employers and physicians, including in such forms information necessary to
establish facts required in the determination of the claim.
(2)
The director shall establish sanctions for the enforcement of medical reporting
requirements. Such sanctions may include, but are not limited to, forfeiture of
fees and penalty not to exceed $1,000 for each occurrence.
(3)
If the director finds that a health care practitioner has:
(a)
Been found, pursuant to ORS 656.327, to have failed to comply with rules
adopted pursuant to this chapter regarding the performance of medical services
for injured workers or to have provided medical treatment that is excessive,
inappropriate or ineffectual, the director may impose a sanction that includes
forfeiture of fees and a penalty not to exceed $1,000 for each occurrence. If
the failure to comply or perform is repeated and willful, the director may
declare the health care practitioner ineligible for reimbursement for treating
workers’ compensation claimants for a period not to exceed three years.
(b)
Had the health care practitioner’s license revoked or suspended by the practitioner’s
professional licensing board for a violation of that profession’s ethical
standards, the director may declare the health care practitioner ineligible for
reimbursement for treating workers’ compensation claimants for a period not to
exceed three years or the period the practitioner’s license is suspended or
revoked, whichever period is the longer.
(c)
Engaged in any course of conduct demonstrated to be dangerous to the health or
safety of a workers’ compensation claimant, the director may impose a sanction
that includes forfeiture of fees and a penalty not to exceed $1,000 for each
occurrence. If the conduct is repeated and willful, the director may declare
the health care practitioner ineligible for reimbursement for treating workers’
compensation claimants for a period not to exceed three years.
(4)
Any declaration that a health care practitioner is ineligible to receive
reimbursement under this chapter shall not otherwise interfere with or impair
treatment of any person by the health care practitioner.
(5)
ORS 656.735 (4) to (6) and 656.740 also apply to orders and penalties assessed
under this section. [1967 c.626 §§3,4; 1975 c.556 §40; 1979 c.839 §30; 1981
c.854 §15; 1987 c.233 §1; 1987 c.884 §27; 1995 c.94 §2; 1997 c.249 §200; 2003
c.170 §12; 2005 c.26 §7]
656.256 Considerations for rules regarding
certain rural hospitals. Whenever the Workers’
Compensation Division of the Department of Consumer and Business Services
adopts any rule affecting a type A or B rural hospital, the division shall take
into consideration the risk assessment formula set forth in ORS 442.520 (2). [1991
c.947 §19]
656.258 Vocational assistance service
payments. The insurer or self-insured employer
shall pay a vocational assistance provider for all vocational assistance
services, including the cost of an evaluation to determine whether a worker is
eligible for vocational assistance, that are performed at the request of the
insurer or self-insured employer. Within 60 days after receiving a billing, the
insurer or self-insured employer shall pay for all vocational assistance
services performed, including those services performed in good faith without
knowledge that the worker’s eligibility to receive vocational assistance has
been terminated or that the worker has withdrawn or is otherwise ineligible for
vocational assistance. [1985 c.600 §18]
656.260 Certification procedure for
managed health care provider; peer review, quality assurance, service
utilization and contract review; confidentiality of certain information;
immunity from liability; rules; medical service dispute resolution; penalties.
(1) Any health care provider or group of medical service providers may make
written application to the Director of the Department of Consumer and Business
Services to become certified to provide managed care to injured workers for
injuries and diseases compensable under this chapter. However, nothing in this
section authorizes an organization that is formed, owned or operated by an
insurer or employer other than a health care provider to become certified to
provide managed care.
(2)
Each application for certification shall be accompanied by a reasonable fee
prescribed by the director. A certificate is valid for such period as the
director may prescribe unless sooner revoked or suspended.
(3)
Application for certification shall be made in such form and manner and shall
set forth such information regarding the proposed plan for providing services
as the director may prescribe. The information shall include, but not be
limited to:
(a)
A list of the names of all individuals who will provide services under the
managed care plan, together with appropriate evidence of compliance with any
licensing or certification requirements for that individual to practice in this
state.
(b)
A description of the times, places and manner of providing services under the
plan.
(c)
A description of the times, places and manner of providing other related
optional services the applicants wish to provide.
(d)
Satisfactory evidence of ability to comply with any financial requirements to
insure delivery of service in accordance with the plan which the director may
prescribe.
(4)
The director shall certify a health care provider or group of medical service
providers to provide managed care under a plan if the director finds that the
plan:
(a)
Proposes to provide medical and health care services required by this chapter
in a manner that:
(A)
Meets quality, continuity and other treatment standards adopted by the health
care provider or group of medical service providers in accordance with
processes approved by the director; and
(B)
Is timely, effective and convenient for the worker.
(b)
Subject to any other provision of law, does not discriminate against or exclude
from participation in the plan any category of medical service providers and
includes an adequate number of each category of medical service providers to
give workers adequate flexibility to choose medical service providers from
among those individuals who provide services under the plan. However, nothing
in the requirements of this paragraph shall affect the provisions of ORS
441.055 relating to the granting of medical staff privileges.
(c)
Provides appropriate financial incentives to reduce service costs and
utilization without sacrificing the quality of service.
(d)
Provides adequate methods of peer review, service utilization review, quality
assurance, contract review and dispute resolution to ensure appropriate
treatment or to prevent inappropriate or excessive treatment, to exclude from
participation in the plan those individuals who violate these treatment
standards and to provide for the resolution of such medical disputes as the
director considers appropriate. A majority of the members of each peer review,
quality assurance, service utilization and contract review committee shall be
physicians licensed to practice medicine by the Oregon Medical Board. As used
in this paragraph:
(A)
“Peer review” means evaluation or review of the performance of colleagues by a
panel with similar types and degrees of expertise. Peer review requires
participation of at least three physicians prior to final determination.
(B)
“Service utilization review” means evaluation and determination of the
reasonableness, necessity and appropriateness of a worker’s use of medical care
resources and the provision of any needed assistance to clinician or member, or
both, to ensure appropriate use of resources. “Service utilization review”
includes prior authorization, concurrent review, retrospective review,
discharge planning and case management activities.
(C)
“Quality assurance” means activities to safeguard or improve the quality of
medical care by assessing the quality of care or service and taking action to
improve it.
(D)
“Dispute resolution” includes the resolution of disputes arising under peer
review, service utilization review and quality assurance activities between
insurers, self-insured employers, workers and medical and health care service
providers, as required under the certified plan.
(E)
“Contract review” means the methods and processes whereby the managed care
organization monitors and enforces its contracts with participating providers
for matters other than matters enumerated in subparagraphs (A), (B) and (C) of
this paragraph.
(e)
Provides a program involving cooperative efforts by the workers, the employer
and the managed care organizations to promote workplace health and safety
consultative and other services and early return to work for injured workers.
(f)
Provides a timely and accurate method of reporting to the director necessary
information regarding medical and health care service cost and utilization to
enable the director to determine the effectiveness of the plan.
(g)
Authorizes workers to receive compensable medical treatment from a primary care
physician who is not a member of the managed care organization, but who
maintains the worker’s medical records and with whom the worker has a
documented history of treatment, if that primary care physician 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 primary care physician agrees to comply with all the
rules, terms and conditions regarding services performed by the managed care
organization. Nothing in this paragraph is intended to limit the worker’s right
to change primary care physicians prior to the filing of a workers’
compensation claim. As used in this paragraph, “primary care physician” means a
physician who is qualified to be an attending physician referred to in ORS
656.005 (12)(b)(A) and who is a family practitioner, a general practitioner or
an internal medicine practitioner.
(h)
Provides a written explanation for denial of participation in the managed care
organization plan to any licensed health care provider that has been denied
participation in the managed care organization plan.
(i)
Does not prohibit the injured worker’s attending physician from advocating for
medical services and temporary disability benefits for the injured worker that
are supported by the medical record.
(j)
Complies with any other requirement the director determines is necessary to
provide quality medical services and health care to injured workers.
(5)
The director shall refuse to certify or may revoke or suspend the certification
of any health care provider or group of medical service providers to provide
managed care if the director finds that:
(a)
The plan for providing medical or health care services fails to meet the
requirements of this section.
(b)
Service under the plan is not being provided in accordance with the terms of a
certified plan.
(6)
Any issue concerning the provision of medical services to injured workers
subject to a managed care contract and service utilization review, quality
assurance, dispute resolution, contract review and peer review activities as
well as authorization of medical services to be provided by other than an
attending physician pursuant to ORS 656.245 (2)(b) shall be subject to review
by the director or the director’s designated representatives. The decision of
the director is subject to review under ORS 656.704. Data generated by or
received in connection with these activities, including written reports, notes
or records of any such activities, or of any review thereof, shall be
confidential, and shall not be disclosed except as considered necessary by the
director in the administration of this chapter. The director may report
professional misconduct to an appropriate licensing board.
(7)
No data generated by service utilization review, quality assurance, dispute
resolution or peer review activities and no physician profiles or data used to
create physician profiles pursuant to this section or a review thereof shall be
used in any action, suit or proceeding except to the extent considered
necessary by the director in the administration of this chapter. The
confidentiality provisions of this section shall not apply in any action, suit
or proceeding arising out of or related to a contract between a managed care
organization and a health care provider whose confidentiality is protected by
this section.
(8)
A person participating in service utilization review, quality assurance,
dispute resolution or peer review activities pursuant to this section shall not
be examined as to any communication made in the course of such activities or
the findings thereof, nor shall any person be subject to an action for civil
damages for affirmative actions taken or statements made in good faith.
(9)
No person who participates in forming consortiums, collectively negotiating
fees or otherwise solicits or enters into contracts in a good faith effort to
provide medical or health care services according to the provisions of this
section shall be examined or subject to administrative or civil liability
regarding any such participation except pursuant to the director’s active
supervision of such activities and the managed care organization. Before
engaging in such activities, the person shall provide notice of intent to the
director in a form prescribed by the director.
(10)
The provisions of this section shall not affect the confidentiality or
admission in evidence of a claimant’s medical treatment records.
(11)
In consultation with the committees referred to in ORS 656.790 and 656.794, the
director shall adopt such rules as may be necessary to carry out the provisions
of this section.
(12)
As used in this section, ORS 656.245, 656.248 and 656.327, “medical service
provider” means a person duly licensed to practice one or more of the healing
arts in any country or in any state or territory or possession of the United
States.
(13)
Notwithstanding ORS 656.005 (12) or subsection (4)(b) of this section, a
managed care organization contract may designate any medical service provider
or category of providers as attending physicians.
(14)
If a worker, insurer, self-insured employer or the attending physician is
dissatisfied with an action of the managed care organization regarding the
provision of medical services pursuant to this chapter, peer review, service
utilization review or quality assurance activities, that person or entity must
first apply to the director for administrative review of the matter before
requesting a hearing. Such application must be made not later than the 60th day
after the date the managed care organization has completed and issued its final
decision.
(15)
Upon a request for administrative review, the director shall create a
documentary record sufficient for judicial review. The director shall complete
administrative review and issue a proposed order within a reasonable time. The
proposed order of the director issued pursuant to this section shall become
final and not subject to further review unless a written request for a hearing
is filed with the director within 30 days of the mailing of the order to all
parties.
(16)
At the contested case hearing, the order may be modified only if it is not
supported by substantial evidence in the record or reflects an error of law. No
new medical evidence or issues shall be admitted. The dispute may also be
remanded to the managed care organization for further evidence taking,
correction or other necessary action if the Administrative Law Judge or
director determines the record has been improperly, incompletely or otherwise
insufficiently developed. Decisions by the director regarding medical disputes
are subject to review under ORS 656.704.
(17)
Any person who is dissatisfied with an action of a managed care organization
other than regarding the provision of medical services pursuant to this
chapter, peer review, service utilization review or quality assurance
activities may request review under ORS 656.704.
(18)
Notwithstanding any other provision of law, original jurisdiction over contract
review disputes is with the director. The director may resolve the matter by
issuing an order subject to review under ORS 656.704, or the director may
determine that the matter in dispute would be best addressed in another forum
and so inform the parties.
(19)
The director shall conduct such investigations, audits and other administrative
oversight in regard to managed care as the director deems necessary to carry
out the purposes of this chapter.
(20)(a)
Except as otherwise provided in this chapter, only a managed care organization
certified by the director may:
(A)
Restrict the choice of a health care provider or medical service provider by a
worker;
(B)
Restrict the access of a worker to any category of medical service providers;
(C)
Restrict the ability of a medical service provider to refer a worker to another
provider;
(D)
Require preauthorization or precertification to determine the necessity of
medical services or treatment; or
(E)
Restrict treatment provided to a worker by a medical service provider to
specific treatment guidelines, protocols or standards.
(b)
The provisions of paragraph (a) of this subsection do not apply to:
(A)
A medical service provider who refers a worker to another medical service
provider;
(B)
Use of an on-site medical service facility by the employer to assess the nature
or extent of a worker’s injury; or
(C)
Treatment provided by a medical service provider or transportation of a worker
in an emergency or trauma situation.
(c)
Except as provided in paragraph (b) of this subsection, if the director finds
that a person has violated a provision of paragraph (a) of this subsection, the
director may impose a sanction that may include a civil penalty not to exceed
$2,000 for each violation.
(d)
If violation of paragraph (a) of this subsection is repeated or willful, the
director may order the person committing the violation to cease and desist from
making any future communications with injured workers or medical service
providers or from taking any other actions that directly or indirectly affect
the delivery of medical services provided under this chapter.
(e)(A)
Penalties imposed under this subsection are subject to ORS 656.735 (4) to (6)
and 656.740.
(B)
Cease and desist orders issued under this subsection are subject to ORS 656.740.
[1990 c.2 §12; 1995 c.332 §27; amendments by 1995 c.332 §27a repealed by 1999
c.6 §1; 1997 c.639 §§1,2; 2005 c.26 §8; 2005 c.364 §1; 2007 c.423 §1; 2011 c.98
§1]
Note: See
notes under 656.202.
PROCEDURE FOR OBTAINING COMPENSATION
656.262 Processing of claims and payment
of compensation; payment by employer; acceptance and denial of claim; penalties
and attorney fees; cooperation by worker and attorney in claim investigation;
rules. (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 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 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 medical benefits or funeral 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 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 $3,000 absent a showing of extraordinary
circumstances. The maximum attorney fee awarded under this paragraph shall be
adjusted annually on July 1 by the same percentage increase as made to the
average weekly wage defined in ORS 656.211, if any. 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)(a)
If payment is due on a disputed claim settlement authorized by ORS 656.289 and
the insurer or self-insured employer has failed to make the payment in
accordance with the requirements specified in the disputed claim settlement,
the claimant or the claimant’s attorney shall clearly notify the insurer or
self-insured employer in writing that the payment is past due. If the required
payment is not made within five business days after receipt of the notice by
the insurer or self-insured employer, the director may assess a penalty and
attorney fee in accordance with a matrix adopted by the director by rule.
(b)
The director shall adopt by rule a matrix for the assessment of the penalties
and attorney fees authorized under this subsection. The matrix shall provide
for penalties based on a percentage of the settlement proceeds allocated to the
claimant and for attorney fees based on a percentage of the settlement proceeds
allocated to the claimant’s attorney as an attorney fee.
(13)
The insurer may authorize an employer to pay compensation to injured workers
and shall reimburse employers for compensation so paid.
(14)
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 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.
(15)
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.
(16)
In accordance with ORS 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 (14) of this section. [1965 c.285 §30; 1969 c.399 §1; 1973 c.620 §2;
1975 c.556 §41; 1981 c.535 §7; 1981 c.854 §16; 1981 c.874 §4; 1983 c.809 §1;
1983 c.816 §7; 1985 c.600 §7; 1987 c.884 §19; 1990 c.2 §15; 1995 c.332 §28;
1995 c.641 §4; 1997 c.605 §1; 1997 c.639 §7; 1999 c.313 §5; 2001 c.621 §83;
2001 c.865 §7; 2003 c.667 §1; 2003 c.756 §1; 2003 c.760 §2; 2003 c.811 §§9,10;
2005 c.26 §§9,10; 2005 c.511 §§1,2; 2005 c.588 §§2,3; 2007 c.252 §5; 2007 c.365
§5; 2007 c.518 §§1,2; 2009 c.35 §3; 2009 c.171 §3; 2009 c.526 §1]
Note: See
notes under 656.202.
656.263 To whom notices sent under ORS
656.262, 656.265, 656.268 to 656.289, 656.295 to 656.325 and 656.382 to
656.388. All notices of proceedings required to
be sent under ORS 656.262, 656.265, 656.268 to 656.289, 656.295 to 656.325,
656.382 to 656.388 and this section shall be sent to the employer and the
insurer, if any. [1967 c.97 §2; 1975 c.556 §42]
656.264 Compensable injury, denied claim
and other reports. (1) Insurers and self-insured
employers shall report to the Director of the Department of Consumer and
Business Services compensable injuries, denied claims, claims disposition and
payments made by them under this chapter.
(2)
The director may require insurers and self-insured employers to report other
information as required to carry out this chapter.
(3)
The director may prescribe the interval and the form of such reports and
establish sanctions for the enforcement of reporting requirements. [1975 c.556 §39;
1981 c.854 §17; 2003 c.760 §3]
656.265 Notice of accident from worker.
(1) Notice of an accident resulting in an injury or death shall be given
immediately by the worker or a dependent of the worker to the employer, but not
later than 90 days after the accident. The employer shall acknowledge forthwith
receipt of such notice.
(2)
The notice need not be in any particular form. However, it shall be in writing
and shall apprise the employer when and where and how an injury has occurred to
a worker. A report or statement secured from a worker, or from the doctor of
the worker and signed by the worker, concerning an accident which may involve a
compensable injury shall be considered notice from the worker and the employer
shall forthwith furnish the worker a copy of any such report or statement.
(3)
Notice shall be given to the employer by mail, addressed to the employer at the
last-known place of business of the employer, or by personal delivery to the
employer or to a foreman or other supervisor of the employer. If for any reason
it is not possible to so notify the employer, notice may be given to the
Director of the Department of Consumer and Business Services and referred to
the insurer or self-insured employer.
(4)
Failure to give notice as required by this section bars a claim under this
chapter unless the notice is given within one year after the date of the
accident and:
(a)
The employer had knowledge of the injury or death;
(b)
The worker died within 180 days after the date of the accident; or
(c)
The worker or beneficiaries of the worker establish that the worker had good
cause for failure to give notice within 90 days after the accident.
(5)
The issue of failure to give notice must be raised at the first hearing on a
claim for compensation in respect to the injury or death.
(6)
The director shall promulgate and prescribe uniform forms to be used by workers
in reporting their injuries to their employers. These forms shall be supplied
by all employers to injured workers upon request of the injured worker or some
other person on behalf of the worker. The failure of the worker to use a
specified form shall not, in itself, defeat the claim of the worker if the
worker has complied with the requirement that the claim be presented in
writing. [1965 c.285 §30a; 1971 c.386 §2; 1981 c.854 §18; 1995 c.332 §29; 2003
c.707 §1]
656.266 Burden of proving compensability
and nature and extent of disability. (1) The
burden of proving that an injury or occupational disease is compensable and of
proving the nature and extent of any disability resulting therefrom is upon the
worker. The worker cannot carry the burden of proving that an injury or
occupational disease is compensable merely by disproving other possible
explanations of how the injury or disease occurred.
(2)
Notwithstanding subsection (1) of this section, for the purpose of combined
condition injury claims under ORS 656.005 (7)(a)(B) only:
(a)
Once the worker establishes an otherwise compensable injury, the employer shall
bear the burden of proof to establish the otherwise compensable injury is not,
or is no longer, the major contributing cause of the disability of the combined
condition or the major contributing cause of the need for treatment of the
combined condition.
(b)
Notwithstanding ORS 656.804, paragraph (a) of this subsection does not apply to
any occupational disease claim. [1987 c.713 §2; 2001 c.865 §2]
Note: See
notes under 656.202.
656.267 Claims for new and omitted medical
conditions. (1) To initiate omitted medical
condition claims under ORS 656.262 (6)(d) or new medical condition claims under
this section, the worker must clearly request formal written acceptance of a
new medical condition or an omitted medical condition from the insurer or
self-insured employer. A claim for a new medical condition or an omitted
condition is not made by the receipt of medical billings, nor by requests for
authorization to provide medical services for the new or omitted condition, nor
by actually providing such medical services. The insurer or self-insured
employer is not required to accept each and every diagnosis or medical
condition with particularity, as long as the acceptance tendered reasonably
apprises the claimant and the medical providers of the nature of the
compensable conditions. Notwithstanding any other provision of this chapter,
the worker may initiate a new medical or omitted condition claim at any time.
(2)(a)
Claims properly initiated for new medical conditions and omitted medical
conditions related to an initially accepted claim shall be processed pursuant
to ORS 656.262.
(b)
If an insurer or self-insured employer denies a claim for a new medical or
omitted medical condition, the claimant may request a hearing on the denial
pursuant to ORS 656.283.
(3)
Notwithstanding subsection (2) of this section, claims for new medical or
omitted medical conditions related to an initially accepted claim that have
been determined to be compensable and that were initiated after the rights
under ORS 656.273 expired shall be processed as requests for relief under the
Workers’ Compensation Board’s own motion jurisdiction pursuant to ORS 656.278
(1)(b). [2001 c.865 §10; 2005 c.188 §1]
Note: See
notes under 656.202.
656.268 Claim closure; termination of
temporary total disability benefits; reconsideration of closure; medical
arbiter to make findings of impairment for reconsideration; credit or offset
for fraudulently obtained or overpaid benefits; rules.
(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;
(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 a determination order issued by the
director that addresses the extent of the worker’s permanent disability that is
not based on the standards adopted pursuant to ORS 656.726 (4)(f), the penalty
shall not be assessed.
(6)(a)
Notwithstanding any other provision of law, only one reconsideration proceeding
may be held on each notice of closure. At the reconsideration proceeding:
(A)
A deposition arranged by the worker, limited to the testimony and
cross-examination of the worker about the worker’s condition at the time of
claim closure, shall become part of the reconsideration record. The deposition
must be conducted subject to the opportunity for cross-examination by the
insurer or self-insured employer and in accordance with rules adopted by the
director. The cost of the court reporter and one original of the transcript of
the deposition for the Department of Consumer and Business Services and one
copy of the transcript of the deposition for each party shall be paid by the
insurer or self-insured employer. The reconsideration proceeding may not be
postponed to receive a deposition taken under this subparagraph. A deposition
taken in accordance with this subparagraph may be received as evidence at a
hearing even if the deposition is not prepared in time for use in the
reconsideration proceeding.
(B)
Pursuant to rules adopted by the director, the worker or the insurer or
self-insured employer may correct information in the record that is erroneous
and may submit any medical evidence that should have been but was not submitted
by the attending physician or nurse practitioner authorized to provide
compensable medical services under ORS 656.245 at the time of claim closure.
(C)
If the director determines that a claim was not closed in accordance with
subsection (1) of this section, the director may rescind the closure.
(b)
If necessary, the director may require additional medical or other information
with respect to the claims and may postpone the reconsideration for not more
than 60 additional calendar days.
(c)
In any reconsideration proceeding under this section in which the worker was
represented by an attorney, the director shall order the insurer or
self-insured employer to pay to the attorney, out of the additional compensation
awarded, an amount equal to 10 percent of any additional compensation awarded
to the worker.
(d)
Except as provided in subsection (7) of this section, 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 (8) 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)
The director may delay the reconsideration proceeding and toll the
reconsideration timeline established under subsection (6) of this section for
up to 45 calendar days if:
(A)
A request for reconsideration of a notice of closure has been made to the
director within 60 days of the date of the notice of closure;
(B)
The parties are actively engaged in settlement negotiations that include issues
in dispute at reconsideration;
(C)
The parties agree to the delay; and
(D)
Both parties notify the director before the 18th working day after the
reconsideration proceeding has begun that they request a delay under this
subsection.
(b)
A delay of the reconsideration proceeding granted by the director under this
subsection expires:
(A)
If a party requests the director to resume the reconsideration proceeding
before the expiration of the delay period;
(B)
If the parties reach a settlement and the director receives a copy of the
approved settlement documents before the expiration of the delay period; or
(C)
On the next calendar day following the expiration of the delay period authorized
by the director.
(c)
Upon expiration of a delay granted under this subsection, the timeline for the
completion of the reconsideration proceeding shall resume as if the delay had
never been granted.
(d)
Compensation due the worker shall continue to be paid during the period of
delay authorized under this subsection.
(e)
The director may authorize only one delay period for each reconsideration
proceeding.
(8)(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 Oregon
Medical Board 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.
(9)
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.
(10)
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.
(11)
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.
(12)
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.
(13)
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 an insurer, a rating organization
licensed pursuant to ORS chapter 737, the State Accident Insurance Fund
Corporation or the director.
(14)(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.
(15)
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. [1965 c.285 §31; 1973 c.620 §3; 1973 c.634 §2; 1977
c.804 §5; 1977 c.862 §1; 1979 c.839 §4; 1981 c.535 §7a; 1981 c.854 §19; 1981
c.874 §13; 1985 c.425 §1; 1985 c.600 §8; 1987 c.884 §10; 1990 c.2 §16; 1991
c.502 §1; 1995 c.332 §30; 1997 c.111 §1; 1997 c.382 §1; 1999 c.313 §1; 1999
c.1020 §3; 2001 c.349 §1; 2001 c.377 §63; 2001 c.865 §12; 2003 c.429 §1; 2003
c.657 §§7,8; 2003 c.811 §§11,12; 2005 c.221 §§1,2; 2005 c.461 §§3,4; 2005 c.569
§§1,2; 2007 c.241 §§11,12; 2007 c.270 §§4,5; 2007 c.274 §4; 2007 c.365 §6; 2007
c.835 §§2,3; 2011 c.99 §1]
Note: See
notes under 656.202.
656.270 [1971
c.155 §2; 1977 c.804 §6; 1979 c.839 §5; 1990 c.2 §17; 1999 c.313 §6; repealed
by 2009 c.36 §5]
656.271 [1965
c.285 §32; 1969 c.171 §1; repealed by 1973 c.620 §4 (656.273 enacted in lieu of
656.271)]
656.272
[Repealed by 1965 c.285 §95]
656.273 Aggravation for worsened
conditions; procedure; limitations; additional compensation.
(1) After the last award or arrangement of compensation, an injured worker is
entitled to additional compensation for worsened conditions resulting from the
original injury. A worsened condition resulting from the original injury is
established by medical evidence of an actual worsening of the compensable
condition supported by objective findings. However, if the major contributing
cause of the worsened condition is an injury not occurring within the course
and scope of employment, the worsening is not compensable. A worsened condition
is not established by either or both of the following:
(a)
The worker’s absence from work for any given amount of time as a result of the
worker’s condition from the original injury; or
(b)
Inpatient treatment of the worker at a hospital for the worker’s condition from
the original injury.
(2)
To obtain additional medical services or disability compensation, the injured
worker must file a claim for aggravation with the insurer or self-insured
employer. In the event the insurer or self-insured employer cannot be located,
is unknown, or has ceased to exist, the claim shall be filed with the Director
of the Department of Consumer and Business Services.
(3)
A claim for aggravation must be in writing in a form and format prescribed by
the director and signed by the worker or the worker’s representative and the
worker’s attending physician. When an insurer or self-insured employer receives
a completed aggravation form, the insurer or self-insured employer shall
process the claim.
(4)
The claim for aggravation must be filed within five years:
(a)
After the first notice of closure made under ORS 656.268 for a disabling claim;
or
(b)
After the date of injury, provided the claim has been classified as
nondisabling for at least one year after the date of acceptance.
(5)
The director may order the claimant, the insurer or self-insured employer to
pay for such medical opinion.
(6)
A claim submitted in accordance with this section shall be processed by the
insurer or self-insured employer in accordance with the provisions of ORS
656.262. The first installment of compensation due under ORS 656.262 shall be
paid no later than the 14th day after the subject employer or paying agent of
the subject employer receives a written report that verifies the worker’s
inability to work resulting from a compensable worsening under subsection (1)
of this section and that establishes by medical evidence supported by objective
findings that the claimant has suffered a worsened condition attributable to
the compensable injury.
(7)
A request for hearing on any issue involving a claim for aggravation must be
made to the Workers’ Compensation Board in accordance with ORS 656.283.
(8)
If the worker submits a claim for aggravation of an injury or disease for which
permanent disability has been previously awarded, the worker must establish
that the worsening is more than waxing and waning of symptoms of the condition
contemplated by the previous permanent disability award. [1973 c.620 §5
(enacted in lieu of 656.271); 1975 c.497 §1; 1977 c.804 §7; 1979 c.839 §6; 1981
c.854 §20; 1987 c.884 §23; 1989 c.171 §76; 1990 c.2 §18; 1995 c.332 §31; 1999
c.313 §2; 2001 c.350 §1; 2005 c.50 §1]
656.274
[Repealed by 1965 c.285 §95]
656.275 [1963
c.20 §2; repealed by 1965 c.285 §95]
656.276
[Repealed by 1965 c.285 §95]
656.277 Request for reclassification of
nondisabling claim; nondisabling claim procedure.
(1) A request for reclassification by the worker of an accepted nondisabling
injury that the worker believes was or has become disabling must be submitted
to the insurer or self-insured employer. The insurer or self-insured employer
shall classify the claim as disabling or nondisabling within 14 days of the
request. A notice of such classification shall be mailed to the worker and the
worker’s attorney if the worker is represented. The worker may ask the Director
of the Department of Consumer and Business Services to review the
classification by the insurer or self-insured employer by submitting a request
for review within 60 days of the mailing of the classification notice by the
insurer or self-insured employer. If any party objects to the classification of
the director, the party may request a hearing under ORS 656.283 within 30 days
from the date of the director’s order.
(2)
A request by the worker that an accepted nondisabling injury was or has become
disabling shall be made pursuant to ORS 656.273 as a claim for aggravation,
provided the claim has been classified as nondisabling for at least one year
after the date of acceptance.
(3)
A claim for a nondisabling injury shall not be reported to the director by the
insurer or self-insured employer except:
(a)
When a notice of claim denial is filed;
(b)
When the status of the claim is as described in subsection (1) or (2) of this
section; or
(c)
When otherwise required by the director. [1990 c.2 §48; 1995 c.332 §32; 1999
c.313 §3; 2001 c.350 §2]
Note:
656.277 was added to and made a part of ORS chapter 656 by legislative action
but was not added to any smaller series therein. See Preface to Oregon Revised
Statutes for further explanation.
656.278 Board has continuing authority to
alter earlier action on claim; limitations. (1)
Except as provided in subsection (7) of this section, the power and
jurisdiction of the Workers’ Compensation Board shall be continuing, and it
may, upon its own motion, from time to time modify, change or terminate former
findings, orders or awards if in its opinion such action is justified in those
cases in which:
(a)
There is a worsening of a compensable injury that results in the inability of
the worker to work and requires hospitalization or inpatient or outpatient
surgery, or other curative treatment prescribed in lieu of hospitalization that
is necessary to enable the injured worker to return to work. In such cases, the
payment of temporary disability compensation in accordance with ORS 656.210,
656.212 (2) and 656.262 (4) may be provided from the time the attending
physician authorizes temporary disability compensation for the hospitalization,
surgery or other curative treatment until the worker’s condition becomes
medically stationary;
(b)
The worker submits and obtains acceptance of a claim for a compensable new
medical condition or an omitted medical condition pursuant to ORS 656.267 and
the claim is initiated after the rights under ORS 656.273 have expired. In such
cases, the payment of temporary disability compensation in accordance with the
provisions of ORS 656.210, 656.212 (2) and 656.262 (4) may be provided from the
time the attending physician authorizes temporary disability compensation for
the hospitalization, surgery or other curative treatment until the worker’s
condition becomes medically stationary, and the payment of permanent disability
benefits may be provided after application of the standards for the evaluation
and determination of disability as may be adopted by the Director of the
Department of Consumer and Business Services pursuant to ORS 656.726; or
(c)
The date of injury is earlier than January 1, 1966. In such cases, in addition
to the payment of temporary disability compensation, the payment of medical
benefits may be provided.
(2)
Benefits provided under subsection (1) of this section:
(a)
Do not include vocational assistance benefits under ORS 656.340;
(b)
Do not include temporary disability compensation for periods of time during
which the claimant did not qualify as a “worker” pursuant to ORS 656.005 (30);
(c)
Do not include medical services provided pursuant to ORS 656.245 except as
provided under subsection (1)(c) of this section; and
(d)
May include permanent disability benefits for additional impairment to an
injured body part that has previously been the basis of a permanent partial
disability award, but only to the extent that the permanent partial disability
rating exceeds the permanent partial disability rated by the prior award or awards.
(3)
An order or award made by the board during the time within which the claimant
has the right to request a hearing on aggravation under ORS 656.273 is not an
order or award, as the case may be, made by the board on its own motion.
(4)
Pursuant to ORS 656.298, any party may appeal an order or award made by the
board on its own motion.
(5)
The insurer or self-insured employer may voluntarily reopen any claim to
provide benefits allowable under this section or to grant additional medical or
hospital care to the claimant. The board shall establish procedures for the
resolution of disputes arising out of a voluntary reopening of a claim under
this section.
(6)
Any claim reopened under this section shall be closed by the insurer or
self-insured employer in a manner prescribed by the board, including, when
appropriate, an award of permanent disability benefits as determined under
subsections (1)(b) and (2)(d) of this section. The board shall also prescribe a
process to be followed if the worker objects to the claim closure.
(7)
The provisions of this section do not authorize the board, on its own motion,
to modify, change or terminate former findings or orders:
(a)
That a claimant incurred no injury or incurred a noncompensable injury; or
(b)
Approving disposition of a claim under ORS 656.236 or 656.289 (4). [Amended by
1955 c.718 §1; 1957 c.559 §1; 1965 c.285 §33; 1981 c.535 §32; 1985 c.212 §6;
1987 c.884 §37; 1990 c.2 §19; 1995 c.332 §33; 2001 c.865 §11; 2005 c.188 §2]
Note: See
notes under 656.202.
656.280
[Amended by 1965 c.285 §41b; renumbered 656.325]
656.282
[Amended by 1957 c.455 §1; repealed by 1965 c.285 §95]
656.283 Hearing rights and procedure;
rules; impeachment evidence; use of standards for evaluation of disability.
(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 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.
(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
(B)
The 120-day maximum postponement established under paragraph (a) of this
subsection for rescheduling a hearing does not apply.
(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.
(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).
(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.
(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.
(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. [1965 c.285 §34; 1979 c.839 §7;
1981 c.535 §33; 1981 c.860 §§1,5; 1985 c.600 §9; 1987 c.884 §11; 1990 c.2 §20;
1995 c.332 §34; 1999 c.313 §7; 2003 c.667 §2; 2005 c.26 §11; 2005 c.624 §1;
2009 c.35 §2]
Note: See
notes under 656.202.
656.284
[Amended by 1953 c.671 §2; 1955 c.718 §2; 1959 c.450 §4; repealed by 1965 c.285
§95]
656.285 Protection of witnesses at
hearings. ORCP 36 C shall apply to workers’
compensation cases, except that the Administrative Law Judge shall make the
determinations and orders required of the court in ORCP 36 C, and in addition
attorney fees shall not be declared as a matter of course but only in cases of
harassment or hardship. [1973 c.652 §1; 1977 c.358 §11; 1979 c.284 §187]
656.287 Use of vocational reports in
determining loss of earning capacity at hearing; rules.
(1) Where there is an issue regarding loss of earning capacity, reports from
vocational consultants employed by governmental agencies, insurers or
self-insured employers, or from private vocational consultants, regarding job
opportunities, the fitness of claimant to perform certain jobs, wage levels, or
other information relating to claimant’s employability shall be admitted into
evidence at compensation hearings, provided such information is submitted to
claimant 10 days prior to hearing and that upon demand from the adverse party
the person preparing such report shall be made available for testimony and
cross-examination.
(2)
The Workers’ Compensation Board shall establish rules to govern the
admissibility of reports from vocational experts, including guidelines to
establish the competency of vocational experts. [1973 c.581 §§1,2; 1985 c.600 §10]
656.288
[Amended by 1957 c.288 §1; repealed by 1965 c.285 §95]