68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session NOTE: Matter within { + braces and plus signs + } in an amended section is new. Matter within { - braces and minus signs - } is existing law to be omitted. New sections are within { + braces and plus signs + } . LC 533 House Bill 2040 Ordered printed by the Speaker pursuant to House Rule 12.00A (5). Presession filed (at the request of Department of Consumer and Business Services) SUMMARY The following summary is not prepared by the sponsors of the measure and is not a part of the body thereof subject to consideration by the Legislative Assembly. It is an editor's brief statement of the essential features of the measure as introduced. Modifies definition of 'doctor' or 'physician' under workers' compensation law. A BILL FOR AN ACT Relating to qualifications for providing medical services under workers' compensation law; amending ORS 656.005. Be It Enacted by the People of the State of Oregon: SECTION 1. ORS 656.005 is amended to read: 656.005. (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. However, 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 is not a beneficiary. 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. (3) 'Board' means the Workers' Compensation Board. (4) 'Carrier-insured employer' means an employer who provides workers' compensation coverage with a guaranty contract insurer. (5) 'Child' includes a posthumous child, a child legally adopted prior to the injury, a child toward whom the worker stands in loco parentis, an illegitimate child 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. An invalid dependent child 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, an invalid dependent child 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 a compensable injury combines with a preexisting disease or condition to cause or prolong disability or a need for treatment, the resultant condition is compensable only to the extent the compensable injury is and remains the major contributing cause of the disability or need for treatment. (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 clear and convincing 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. (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 and who leaves surviving no widow, widower or child under the age of 18 years: 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 { - this - } { + any + } state { + , country, territory or possession of the United States + } within the limits of the license of the licentiate. (b) 'Attending physician' means a doctor or physician 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 Board of Medical Examiners for the State of Oregon - } or a board certified oral surgeon licensed { - by the Oregon Board of Dentistry - } { + under the laws of any state, country, territory or possession of the United States + }; or (B) For a period of 30 days from the date of first visit on the claim or for 12 visits, whichever first occurs, a { - doctor or - } { + chiropractic + } physician licensed { - by the State Board of Chiropractic Examiners for the State of Oregon - } { + under the laws of any state, country, territory or possession of the United States + }. (c) 'Consulting physician' means a doctor or physician who examines a worker or the worker's medical record to advise the attending physician regarding treatment of a worker's compensable injury. (13) '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. (14) 'Guaranty contract insurer' and 'insurer' mean the State Accident Insurance Fund Corporation or an insurer authorized under ORS chapter 731 to transact workers' compensation insurance in this state. (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 include, but are not limited to, range of motion, atrophy, muscle strength, muscle spasm and diagnostic evidence substantiated by clinical findings. (20) '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. (21) '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. (22) 'Person' includes partnership, joint venture, association and corporation. (23) '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. (24) 'State Accident Insurance Fund Corporation' and ' corporation' mean the State Accident Insurance Fund Corporation created under ORS 656.752. (25) 'Subject employer' means an employer who is subject to this chapter as provided by ORS 656.023. (26) 'Subject worker' means a worker who is subject to this chapter as provided by ORS 656.027. (27) '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. (28) '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. (29) 'Independent contractor' has the meaning for that term provided in ORS 670.600. ----------