68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
HA to HB 2044
LC 538
HOUSE AMENDMENTS TO
HOUSE BILL 2044
By COMMITTEE ON LABOR
May 17
On page 1 of the printed bill, line 2, after the semicolon
delete the rest of the line and delete line 3 and insert '
creating new provisions; amending ORS 293.115, 656.054, 656.236,
656.262, 656.289, 656.506, 656.530, 656.593, 656.622, 656.625,
656.628, 656.735, 656.740 and 705.145; and appropriating money.'.
Delete lines 5 through 31 and pages 2 through 14 and insert:
' { + SECTION 1. + } ORS 293.115 is amended to read:
' 293.115. The following moneys shall be separate and distinct
from the General Fund:
' (1) Moneys paid into the State Treasury for fiduciary
purposes.
' (2) Moneys by law directed and required to be placed by the
State Treasurer to the credit of:
' (a) The Agricultural College Fund principal and the interest
accruing from the investment thereof.
' (b) The Burbank Trust Fund and the interest accruing from the
investment thereof.
' (c) The Common School Fund and the interest accruing from the
investment thereof.
' (d) The Industrial Accident Fund under ORS 656.632 and the
interest accruing from the investment thereof.
' (e) The Consumer and Business Services Fund under ORS 705.145
and the interest accruing from the investment thereof.
' { + (f) The Workers' Benefit Fund created in section 15 of
this 1995 Act and the interest accruing from the investment
thereof. + }
' { - (f) - } { + (g) + } The University Fund principal and
the interest accruing from the investment thereof.
' { - (g) - } { + (h) + } The University of Oregon Villard
Endowment Interest Fund.
' (3) All sums received by the state from the Federal
Government from forest reserves, rentals, sales of timber and
other sources from forest reserves, under ORS 293.560 and the
interest accruing from the investment thereof.
' (4) All sums received from the five percentum of sales of
public lands and apportioned under ORS 272.085 and the interest
accruing from the investment thereof.
' (5) All sums received from the Federal Government under ORS
293.565 to 293.575 under Mineral Leasing Act, Federal Flood
Control Act and the Taylor Grazing Act and the interest accruing
from the investment thereof.
' (6) Any other trust funds created by law.
' { + SECTION 2. + } ORS 656.054 is amended to read:
' 656.054. (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 shall refer the claim for such an injury to the
State Accident Insurance Fund Corporation 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 State Accident Insurance
Fund Corporation 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 State Accident Insurance
Fund Corporation. 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) Whenever a subject worker suffers a compensable injury
while in the employ of a noncomplying employer, the director
shall, after an order closing the claim has become final, serve
upon the employer a notice of proposed penalty to be assessed
pursuant to ORS 656.735 (3).
' (3) In addition to, and not in lieu of, any civil penalties
assessed pursuant to ORS 656.735, all costs to the Industrial
Accident Fund of a claim processed under subsection (1) of this
section shall be a liability of the noncomplying employer. Such
costs include compensation, reasonable administrative costs and
any attorney fees awarded to the claimant, but do not include
assessments for { - reserves in the Consumer and Business
Services - } { + the Workers' Benefit + }Fund. The director
shall recover such costs from the employer. The director shall
provide by regulation for the { - Consumer and Business
Services - } { + Workers' Benefit + } Fund to reimburse, on a
periodic basis, the Industrial Accident Fund for any costs it
incurs under this section. 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.
' (4) Periodically the director shall audit the files of the
State Accident Insurance Fund Corporation to validate the amount
reimbursed pursuant to subsection (3) of this section.
Reimbursement shall not be allowed, 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.
' (5) The State Accident Insurance Fund Corporation may appeal
any disapproval of reimbursement made by the director under this
section pursuant to ORS 183.310 to 183.550 and such procedural
rules as the director may prescribe.
' { + SECTION 3. + } ORS 656.236 is amended to read:
' 656.236. (1) 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 director may prescribe. Any
such disposition shall be filed for approval with 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 board finds the proposed disposition is unreasonable
as a matter of law;
' (b) 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 requests the board to disapprove 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. The board shall file with the
department a copy of each disposition that the board approves. If
the board does not approve a disposition 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 board approves the
disposition. The Court of Appeals or Supreme Court shall remand
to the board cases in which proposed dispositions are submitted
to the court for approval.
' (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 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 from
the { - Reemployment Assistance Reserve, the Handicapped
Workers Reserve, the Reopened Claims Reserve or the Retroactive
Reserve - } { + Workers' Benefit Fund + } without the prior
approval of the director.
' { + SECTION 4. + } ORS 656.262 is amended to read:
' 656.262. (1) Processing of claims and providing compensation
for a worker shall be the responsibility of the insurer or
self-insured employer. All employers shall assist their insurers
in processing claims as required in this chapter.
' (2) The compensation due under this chapter shall be paid
periodically, promptly and directly to the person entitled
thereto upon the employer's receiving notice or knowledge of a
claim, except where the right to compensation is denied by the
insurer or self-insured employer.
' (3) 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.
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 (10) 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 compensation shall be paid no
later than the 14th day after the subject employer has notice or
knowledge of the claim. Thereafter, compensation shall be paid at
least once each two weeks, except where the director 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) 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
verification of the worker's inability to work resulting from the
claimed injury or disease and the physician cannot verify the
worker's inability to work, unless the worker has been unable to
receive treatment for reasons beyond the worker's control.
' (c) If a worker fails to appear at an appointment with the
worker's attending physician, 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.
' (d) If the insurer or self-insured employer has requested and
failed to receive from the worker's attending physician
verification of the worker's inability to work resulting from the
claimed injury or disease, medical services provided by the
attending physician are not compensable until the attending
physician submits such verification.
' (5) Payment of compensation under subsection (4) of this
section or payment, in amounts not to exceed $500 per claim, 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.
' (6) Written notice of acceptance or denial of the claim shall
be furnished to the claimant by the insurer or self-insured
employer within 90 days after the employer has notice or
knowledge of the claim. However, if the insurer or self-insured
employer accepts a claim in good faith but later obtains evidence
that the claim is not compensable or evidence that the paying
agent is not responsible for the claim, the insurer or
self-insured employer, at any time up to two years from the date
of claim acceptance, may revoke the claim acceptance and issue a
formal notice of claim denial. However, if the worker requests a
hearing on such denial, the insurer or self-insured employer must
prove by clear and convincing evidence that the claim is not
compensable or that the paying agent 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 a referee,
the board or the court, temporary total disability benefits are
payable from the date any such benefits were terminated under the
denial. Pending acceptance or denial of a claim, compensation
payable to a claimant does not include the costs of medical
benefits or burial expenses. The insurer shall also furnish the
employer a copy of the notice of acceptance. 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, of
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 a determination
thereon pursuant to ORS 656.268 within one year of the date of
injury.
' (d) Inform the claimant of employment reinstatement rights
and responsibilities under ORS chapter 659.
' (e) Inform the claimant of assistance available to employers
from the Reemployment Assistance { - Reserve - }
{ + Program + } under ORS 656.622.
' (7) The State Accident Insurance Fund Corporation in
processing claims under ORS 656.054 shall send notice of
acceptance or denial to the noncomplying employer.
' (8) 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.
' (9) 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.
' (10)(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. 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 described in this
subsection. The entire additional amount shall be paid to the
worker if the worker is not represented by an attorney. If the
worker is represented by an attorney, the worker shall be paid
one-half the additional amount and the worker's attorney shall
receive one-half the additional amount, in lieu of an attorney
fee. The director's action and review thereof shall be subject to
ORS 183.310 to 183.550 and such other procedural rules as the
director may prescribe.
' (b) When the director does not have exclusive jurisdiction
over proceedings regarding the assessment and payment of the
additional amount described in this subsection, the provision for
attorney fees provided in this subsection shall apply in the
other proceeding.
' (11) The insurer may authorize an employer to pay
compensation to injured workers and shall reimburse employers for
compensation so paid.
' (12) Insurers and self-insured employers shall report every
claim for disabling injury to the director within 21 days after
the date the employer has notice or knowledge of such injury.
' { + SECTION 5. + } ORS 656.289 is amended to read:
' 656.289. (1) Upon the conclusion of any hearing, or prior
thereto with concurrence of the parties, the referee shall
promptly and not later than 30 days after the hearing determine
the matter and make an order in accordance with the referee's
determination.
' (2) A copy of the order shall be sent forthwith by mail to
the director and to all parties in interest.
' (3) The order is final unless, within 30 days after the date
on which a copy of the order is mailed to the parties, one of the
parties requests a review by the board under ORS 656.295. When
one party requests a review by the board, the other party or
parties shall have the remainder of the 30-day period and in no
case less than 10 days in which to request board review in the
same manner. The 10-day requirement may carry the period of time
allowed for requests for board reviews beyond the 30th day. The
order shall contain a statement explaining the rights of the
parties under this subsection and ORS 656.295.
' (4) Notwithstanding ORS 656.236, in any case where there is a
bona fide dispute over compensability of a claim, the parties
may, with the approval of a referee, the board or the court, by
agreement make such disposition of the claim as is considered
reasonable.
' (5) Any claim in which the parties enter into a disposition
under subsection (4) of this section shall not be eligible for
reimbursement from the { - Reemployment Assistance Reserve, the
Handicapped Workers Reserve, the Reopened Claims Reserve or the
Retroactive Reserve - } { + Workers' Benefit Fund + } without
the prior approval of the director.
' { + SECTION 6. + } ORS 656.506, as amended by section 1,
chapter 760, Oregon Laws 1993, is amended to read:
' 656.506. (1) As used in this section:
' (a) 'Employee' has the meaning for that term provided in ORS
657.015.
' (b) 'Employer' has the meaning for that term provided in ORS
657.025.
' (2) Every employer shall retain from the moneys earned by all
employees an amount { - not to exceed two cents - } { +
determined by the + } { + director + } for each hour or part
of an hour the employee is employed and pay the money retained in
the manner and at such intervals as the director shall direct.
' (3) In addition to all moneys retained under subsection (2)
of this section, the director shall assess each employer an
amount equal to that assessed pursuant to subsection (2) of this
section. The assessment shall be paid in such manner and at such
intervals as the director may direct.
' (4) Moneys collected pursuant to subsections (2) and (3) of
this section { - shall be allocated to the Retroactive Reserve,
Reemployment Assistance Reserve, Reopened Claims Reserve and
Handicapped Workers Reserve in such manner as the director, by
rule, may prescribe - } { + shall be deposited by the
department into the Workers' Benefit Fund + }. Subject to the
limitations in subsections (2) and (3) of this section, the
amount of the hourly assessments provided in subsections (2) and
(3) of this section annually may be adjusted to meet the needs of
the { - reserves referred to in this subsection, in such manner
as the director, by rule, may prescribe - } { + Workers'
Benefit Fund for the expenditures of the department in carrying
out its functions and duties pursuant to subsection (7) of this
section and ORS 656.622, 656.625, 656.628 and 656.630 + }.
Factors to be considered in making such { - allocations or - }
adjustment of the assessments shall include, but not be limited
to, the { - reserves' fund balances - } { + cash + } balance
and estimated expenditures and revenues { + of the Workers'
Benefit Fund + }.
' { + (5) It is the intent of the Legislative Assembly that
the department set rates for the collection of assessments
pursuant to subsections (2) and (3) of this section in a manner
so that at the end of the period for which the rates shall be
effective, the cash balance shall be an amount approximating six
months of projected expenditures from the Workers' Benefit Fund
in regard to its functions and duties under subsection (7) of
this section and ORS 656.622, 656.625, 656.628 and 656.630. The
department may set the assessment rate at a higher level if the
department determines that a higher rate is necessary to avoid
unintentional program or benefit reductions in the time period
immediately following the period for which the rate is being
set. + }
' { - (5) - } { + (6) + } Every employer required to pay the
assessments referred to in this section shall make and file a
quarterly report of employee hours worked and amounts due under
this section upon a combined quarterly report form prescribed by
the Department of Revenue. The report shall be filed with the
Department of Revenue at the times and in the manner prescribed
in ORS 316.168 and 316.171.
' { - (6) - } { + (7) + } { - The purpose of the - } { +
There is established a + } Retroactive { - Reserve is to
provide - } { + Program for the purpose of providing + }
increased benefits to claimants or beneficiaries eligible to
receive compensation under the benefit schedules of ORS 656.204,
656.206, 656.208 and 656.210 which are lower than currently being
paid for like injuries. However, benefits payable under ORS
656.210 shall not be increased by the Retroactive
{ - Reserve - } { + Program + } for claimants whose injury
occurred on or after April 1, 1974. Notwithstanding the formulas
for computing benefits provided in ORS 656.204, 656.206, 656.208
and 656.210, the increased benefits payable under this subsection
shall be in such amount as the director considers appropriate.
The director annually shall compute the amount which may be
available during the succeeding year for payment of such
increased benefits and determine the level of benefits to be paid
during such year. If, during such year, it is determined that
there are insufficient funds to increase benefits to the level
fixed by the director, the director may reduce the level of
benefits payable under this subsection. The increase in benefits
to workers shall be payable in the first instance by the insurer
or self-insured employer subject to reimbursement from the
{ - Retroactive Reserve - } { + Workers' Benefit Fund + } by
the director. If the insurer is a member of the Oregon Insurance
Guaranty Association and becomes insolvent and the Oregon
Insurance Guaranty Association assumes the insurer's obligations
to pay covered claims of subject workers, including Retroactive
{ - Reserve - } { + Program + } benefits, such benefits shall
be payable in the first instance by the Oregon Insurance Guaranty
Association, subject to reimbursement from the { - Retroactive
Reserve - } { + Workers' Benefit Fund + } by the director.
' { + SECTION 7. + } ORS 656.530 is amended to read:
' 656.530. (1) As soon as practicable after each calendar
quarter, the director shall pay from the { - Reemployment
Assistance Reserve - } { + Workers' Benefit Fund + } to each
rehabilitation facility that was an employer during all or part
of the preceding calendar quarter, an amount equal to 75 percent
of the premiums paid by such facility during that quarter
pursuant to any guaranty contract filed with the director under
ORS 656.419.
' (2) As used in this section, 'rehabilitation facility ' means
a nonprofit facility established and operated by a private
organization, agency or institution to provide vocational
training, employment opportunity and employment for disabled and
severely handicapped individuals, but does not include a facility
established or operated by this state or a political subdivision
within this state.
' { + SECTION 8. + } ORS 656.593 is amended to read:
' 656.593. (1) If the worker or the beneficiaries of the worker
elect to recover damages from the employer or third person,
notice of such election shall be given the paying agency by
personal service or by registered or certified mail. The paying
agency likewise shall be given notice of the name of the court in
which such action is brought, and a return showing service of
such notice on the paying agency shall be filed with the clerk of
the court but shall not be a part of the record except to give
notice to the defendant of the lien of the paying agency, as
provided in this section. The proceeds of any damages recovered
from an employer or third person by the worker or beneficiaries
shall be subject to a lien of the paying agency for its share of
the proceeds as set forth in this section and the total proceeds
shall be distributed as follows:
' (a) Costs and attorney fees incurred shall be paid, such
attorney fees in no event to exceed the advisory schedule of fees
established by the board for such actions.
' (b) The worker or the beneficiaries of the worker shall
receive at least 33-1/3 percent of the balance of such recovery.
' (c) The paying agency shall be paid and retain the balance of
the recovery, but only to the extent that it is compensated for
its expenditures for compensation, first aid or other medical,
surgical or hospital service, and for the present value of its
reasonably to be expected future expenditures for compensation
and other costs of the worker's claim under this chapter. Such
other costs include expenditures of the department from the
Consumer and Business Services Fund, the Self-Insured Employer
Adjustment Reserve { - , the Handicapped Workers Reserve, the
Reemployment Assistance Reserve, the Retroactive Reserve and the
Reopened Claims Reserve - } { + and the Workers' Benefit
Fund + } in reimbursement of the costs of the paying agency. Such
other costs also include assessments for { - reserves in the
Consumer and Business Services - } { + the Workers' Benefit + }
Fund, but do not include any compensation which may become
payable under ORS 656.273 or 656.278.
' (d) The balance of the recovery shall be paid to the worker
or the beneficiaries of the worker forthwith. Any conflict as to
the amount of the balance which may be retained by the paying
agency shall be resolved by the board.
' (2) The amount retained by the worker or the beneficiaries of
the worker shall be in addition to the compensation or other
benefits to which such worker or beneficiaries are entitled under
this chapter.
' (3) A claimant may settle any third party case with the
approval of the paying agency, in which event the paying agency
is authorized to accept such a share of the proceeds as may be
just and proper and the worker or the beneficiaries of the worker
shall receive the amount to which the worker would be entitled
for a recovery under subsections (1) and (2) of this section. Any
conflict as to what may be a just and proper distribution shall
be resolved by the board.
' (4) As used in this section, 'paying agency' includes the
Department of Consumer and Business Services with respect to its
expenditures from the { - Consumer and Business Services - }
{ + Workers' Benefit + } Fund in reimbursement of the costs of
another paying agency for vocational assistance and the costs of
claims of noncomplying employers.
' (5) The department shall be repaid for its expenditures from
the proceeds recovered by the paying agency in an amount
proportional to the amount of the department's reimbursement of
the paying agency's costs. All moneys received by the department
under this section shall be deposited in the same { - reserve
or - } fund from which the paying agency's costs originally had
been reimbursed.
' { + SECTION 9. + } ORS 656.622, as amended by section 3,
chapter 760, Oregon Laws 1993, is amended to read:
' 656.622 (1) { - The director shall establish - } { +
There is established + } a Reemployment Assistance { - Reserve
within the Consumer and Business Services Fund - } { +
Program + } for the benefit of employers and their workers and
for the purpose of:
' (a) Giving employers and their workers the benefits provided
in subsection (2) of this section.
' (b) Assisting rehabilitation facilities as provided in ORS
656.530.
' (2) In order to encourage the employment of individuals who
have incurred compensable injuries that result in permanent
disability which may be a substantial obstacle to employment, the
director may provide, to employers who employ such individuals,
assistance from the { - Reemployment Assistance Reserve - }
{ + Workers' Benefit Fund + } in such manner and amount as the
director considers appropriate.
' (3) In addition to such assistance as the director may
provide under subsection (2) of this section, the director shall
provide to self-insured employers or to the insurers of employers
who hire preferred workers reimbursement of the claim costs of
injuries incurred by those workers for the first three years from
the date of hire. As used in this subsection, 'preferred worker '
means a worker who, because of a permanent disability resulting
from a compensable injury or occupational disease, is unable to
return to the worker's regular employment, whether or not an
order has been issued awarding permanent disability. A worker may
not waive eligibility for preferred worker status in the claim by
agreement pursuant to ORS 656.236.
' (4) Notwithstanding any other provision of law,
determinations by the director regarding assistance pursuant to
this section are not subject to review by any court or other
administrative body.
' (5) The Reemployment Assistance { - Reserve - } { +
Program + } shall be
{ - made up of and operated - } { + funded + } with moneys
collected as provided in ORS 656.506.
' (6) Any assistance from the Reemployment Assistance
{ - Reserve - } { + Program + } shall be to the extent of the
moneys available in the { - reserve - } { + Workers' Benefit
Fund, + } for the purpose of the
{ - reserve - } { + program + }.
' (7) The director may make such rules as may be required to
establish, regulate, manage and disburse { - the reserve
created - } { + moneys in the Workers' Benefit Fund + } in
accordance with the intent of this section. Such rules shall
include, but are not limited to, the eligibility criteria to
receive assistance under this section and the issuance of
identity cards to preferred workers to assist employers in the
administration of the program.
' (8) Claims costs incurred as a result of an injury sustained
by a preferred worker during the three years after that worker is
hired shall not be included in any data used for ratemaking or
individual employer rating or dividend calculations by a guaranty
contract insurer, a rating organization licensed pursuant to ORS
chapter 737, the State Accident Insurance Fund Corporation or the
department. Neither insurance premiums nor premium assessments
under this chapter are payable for preferred workers.
' { - (9) The director may set aside such other reserves
within the Consumer and Business Services Fund as are deemed
necessary. - }
' { - (10) - } { + (9) + } Any { - funds from the
Reemployment Assistance Reserve - } { + moneys from the
Workers' Benefit Fund + } reimbursed to an agency for costs
incurred in reemploying injured state workers in the manner
described in ORS 659.412 or in providing wage subsidies for the
reemployment of injured state workers shall be outside the
biennial expenditure limitation imposed on the agency by the
Legislative Assembly and shall be available for expenditure by
the agency as a continuous appropriation.
' { + SECTION 10. + } ORS 656.625 is amended to read:
' 656.625. (1) { - The director shall establish - } { +
There is established + } a Reopened Claims { - Reserve within
the Consumer and Business Services Fund, - } { + Program + }
for the purpose of reimbursing the additional amounts of
compensation payable to injured workers that results from any
award made by the board pursuant to ORS 656.278 after January 1,
1988.
' (2) Notwithstanding any other provision of law, any
reimbursement from the { + Workers' Benefit Fund for the
purposes of the + } Reopened Claims { - Reserve - } { +
Program + } shall be in such amounts as the board prescribes and
only to the extent that { - funds - } { + moneys + } are
available in the { - reserve - } { + fund as determined by
the director + }.
' (3) The director, by rule, shall prescribe the form and
manner of requesting reimbursement under this section, the amount
payable and such other matters as may be necessary for the
administration of this section.
' { + SECTION 11. + } ORS 656.628 is amended to read:
' 656.628. (1) { - The director shall establish in the
Consumer and Business Services Fund - } { + There is
established + } a Handicapped Workers { - Reserve - } { +
Program + } for the benefit of complying employers and their
workers. The purpose of the { - reserve - } { + program + }
is to encourage the employment or reemployment of handicapped
workers.
' (2) As used in this section, 'handicapped worker' means a
worker who is afflicted with or subject to any permanent physical
or mental impairment, whether congenital or due to an injury or
disease, including periodic impairment of consciousness or
muscular control of such character that the impairment would
prevent the worker from obtaining or retaining employment.
' (3) Any employer of a worker who claims or has received
compensation under this chapter, or whose dependents have claimed
or received such compensation, may file an application with the
director requesting the director to make the determinations
referred to in subsection (4) of this section.
' (4) When the director receives a request referred to in
subsection (3) of this section, the director shall determine:
' (a) Whether the injured worker was a handicapped worker and
whether the injury, disease or death sustained by the worker
would not have been sustained except for the handicap; or
' (b) Whether the injured worker was a handicapped worker and
whether the injury, disease or death sustained by the worker
would have been sustained without regard to the handicap but
that:
' (A) Any resulting disability was substantially greater by
reason of the handicap; or
' (B) The handicap contributed substantially to the worker's
death; and
' (C) Whether the injury, disease or death of the worker would
not have occurred except for the act or omission of a handicapped
worker employed by the same employer and that the act or omission
of the handicapped worker would not have occurred except for the
handicapped worker's impairment.
' (5) If the director determines that any of the conditions
described in subsection (4) of this section exist, the director
may reimburse the paying agency for compensation amounts in
excess of $1,000 per claimant for all subsequent injuries
throughout the claimant's working career, paid as the result of
the condition.
' (6) The reimbursement paid from the { - Handicapped Workers
Reserve - } { + Workers' Benefit Fund + } shall not be included
in any data used for rate making or individual employer rating or
dividend calculations by a guaranty contract insurer, a rating
organization licensed pursuant to ORS chapter 737, the State
Accident Insurance Fund Corporation or the department.
' (7) Notwithstanding any other provision of law:
' (a) Any reimbursement to employers { - from - } { +
under + } the Handicapped Workers { - Reserve - } { +
Program + } shall be in such amounts as the director prescribes
and only to the extent of moneys available in the
{ - reserve - } { + Workers' Benefit Fund as determined by the
director + }.
' (b) Determinations made by the director regarding
reimbursement from the { - Handicapped Workers Reserve - }
{ + Workers' Benefit Fund for the purposes of this section + }
are not subject to review by any court or administrative body.
' (c) After a determination has been made by the director that
an employer will receive reimbursement from the { - Handicapped
Workers Reserve - } { + Workers' Benefit Fund + }, any
settlement of the claim by the parties is void unless made with
the written approval of the director.
' (8) The director by rule shall prescribe the form and manner
of requesting determinations under this section, the amount of
reimbursement payable and such other matters as may be necessary
for the administration of this section.
' { + SECTION 12. + } ORS 656.735 is amended to read:
' 656.735. (1) The director may assess any person who violates
ORS 656.052 (1) a civil penalty of not more than $1,000.
' (2) The director may assess any person who continues to
violate ORS 656.052 (1), after an order issued pursuant to ORS
656.052 (2) has become final, a civil penalty, in addition to any
penalty assessed under subsection (1) of this section, of not
more than $25 for each day such violation continues.
' (3) In addition to any other penalties assessed under this
section, where a subject worker receives a compensable injury
while in the employ of a noncomplying employer, the director
shall assess such employer a civil penalty of not less than $100
and not more than:
' (a) $500 if the worker suffers no disability;
' (b) $1,000 if the worker suffers a temporary disability;
' (c) $2,500 if the worker suffers a permanent partial
disability; or
' (d) $5,000 if the worker dies or suffers permanent total
disability.
' (4) When a noncomplying employer is a corporation, such
corporation and the officers and directors thereof shall be
jointly and severally liable for any civil penalties assessed
under this section and any claim costs incurred under ORS
656.054.
' (5) When an order assessing a civil penalty becomes final by
operation of law or on appeal, unless the amount of penalty is
paid within 10 days after the order becomes final, it constitutes
a judgment and may be recorded with the county clerk in any
county of this state. The clerk shall thereupon record the name
of the person incurring the penalty and the amount of the penalty
in the County Clerk Lien Record. The penalty provided in the
order so recorded shall become a lien upon the title to any
interest in property owned by the person against whom the order
is entered, and execution may be issued upon the order in the
same manner as execution upon a judgment of a court of record.
' (6) Civil penalties, and judgments entered thereon, due to
the director under this section from any person shall be deemed
preferred to all general claims in all bankruptcy proceedings,
trustee proceedings, and proceedings for the administration of
estates and receiverships involving the person liable therefor or
the property of such person.
' (7) All moneys collected under this section shall be paid
into the { - Consumer and Business Services - } { + Workers'
Benefit + } Fund.
' { + SECTION 13. + } ORS 656.740 is amended to read:
' 656.740. (1) A person may contest a proposed order of the
director declaring that person to be a noncomplying employer, or
a proposed assessment of civil penalty, by filing with the
department, within 20 days of receipt of notice thereof, a
written request for a hearing. Such a request need not be in any
particular form, but shall specify the grounds upon which the
person contests the proposed order or assessment. An order by the
director under this subsection is prima facie correct and the
burden is upon the employer to prove that the order is incorrect.
' (2) Where any insurance carrier, including the State Accident
Insurance Fund Corporation, is alleged by an employer to have
contracted to provide the employer with workers' compensation
coverage for the period in question, the board shall join such
insurance carrier as a necessary party to any hearing relating to
such employer's alleged noncompliance and shall serve the
carrier, at least 30 days prior to such hearing, with notice
thereof. If the carrier does not file with the board, within 20
days of receipt of such notice, a written denial of such
coverage, the carrier shall be conclusively presumed to have so
insured the employer.
' (3) A hearing relating to a proposed order declaring a person
to be a noncomplying employer, or to a proposed assessment of
civil penalty under ORS 656.735, shall be held by a referee of
the board's Hearings Division; but a hearing shall not be granted
unless a request for hearing is filed within the period specified
in subsection (1) of this section, and if a request for hearing
is not so filed, the order or penalty, or both, as proposed shall
be a final order of the department and shall not be subject to
review by any agency or court.
' (4) Notwithstanding ORS 183.315 (1), the issuance of orders
declaring a person to be a noncomplying employer or assessing
civil penalties pursuant to this chapter, the conduct of hearings
and the judicial review thereof shall be as provided in ORS
183.310 to 183.550, except that:
' (a) The order of a referee in a contested case shall be
deemed to be a final order of the director.
' (b) The director shall have the same right to judicial review
of the order of a referee as any person who is adversely affected
or aggrieved by such final order.
' (c) When an order declaring a person to be a noncomplying
employer is contested at the same hearing as a matter concerning
a claim pursuant to ORS 656.283 and 656.704, the review thereof
shall be as provided for a matter concerning a claim.
' (5) If a person against whom an order is issued pursuant to
this section prevails at hearing or on appeal, the person is
entitled to reasonable attorney fees to be paid by the director
from the { - Consumer and Business Services - } { + Workers'
Benefit + } Fund.
' { + SECTION 14. + } { + Section 15 of this Act is added to
and made a part of ORS chapter 656. + }
' { + SECTION 15. + } { + (1) The Workers' Benefit Fund is
created in the State Treasury, separate and distinct from the
General Fund. Moneys in the fund shall be invested in the same
manner as other state moneys and investment earnings shall be
credited to the fund. The fund shall consist of the following:
' (a) Moneys received pursuant to ORS 656.506.
' (b) Moneys recovered under ORS 656.054.
' (c) Fines and penalties recovered under ORS 656.735.
' (d) All moneys received by the Director of the Department of
Consumer and Business Services pursuant to law or from any other
source for purposes for which the fund may be expended.
' (2) Moneys in the Workers' Benefit Fund may be expended for
the following purposes:
' (a) Expenses of programs under ORS 656.506, 656.622, 656.628
and 656.630.
' (b) Proceedings against noncomplying employers pursuant to
ORS 656.054 and 656.735.
' (c) Expenses of vocational assistance on claims, the cost of
which was imposed pursuant to section 15, chapter 600, Oregon
Laws 1985.
' (3) Subject to the following provisions, all moneys in the
fund are appropriated continuously to the Director of the
Department of Consumer and Business Services to carry out the
activities for which the fund may be expended:
' (a) Moneys received pursuant to ORS 656.054 and 656.735 and
transfers made pursuant to section 18 of this 1995 Act may be
expended only to carry out the provisions of ORS 656.054 and
656.735 and section 15, chapter 600, Oregon Laws 1985.
' (b) Moneys received pursuant to ORS 656.506 and the transfers
of unexpended and unobligated moneys in the Retroactive Reserve,
Reemployment Assistance Reserve, Reopened Claims Reserve and
Handicapped Workers Reserve referred to in ORS 656.506, 656.622,
656.625 and 656.628 (All 1993 Edition) may be expended only to
carry out the programs referred to in ORS 656.506, 656.530,
656.622, 656.625 and 656.628.
' (4) Notwithstanding any other provision of this chapter, if
the director determines at any time that there are insufficient
moneys in the Workers' Benefit Fund to pay the expenses of
programs for which expenditure of the fund is authorized, the
director may reduce the level of benefits payable
accordingly. + }
' { + SECTION 16. + } ORS 705.145 is amended to read:
' 705.145. (1) There is created in the State Treasury a fund to
be known as the Consumer and Business Services Fund, separate
from the General Fund. All moneys collected or received by the
department, except moneys collected pursuant to ORS 735.612 { +
and those moneys required to be paid into the Workers' Benefit
Fund + }, shall be paid into the State Treasury and credited to
the Consumer and Business Services Fund. Moneys in the fund may
be invested in the same manner as other state moneys and any
interest earned shall be credited to the fund.
' (2) The department shall keep a record of all moneys
deposited in the Consumer and Business Services Fund which shall
indicate, by separate account, the source from which the moneys
are derived, the interest earned and the activity or program
against which any withdrawal is charged.
' (3) Should moneys credited to any one account be withdrawn,
transferred or otherwise used for purposes other than the program
or activity for which the account is established, interest shall
accrue on the amount withdrawn from the date of withdrawal and
until such funds are restored.
' (4) Moneys in the fund shall provide and are appropriated for
the administrative expenses of the department and for its
expenses in carrying out its functions and duties under any
provision of law.
' (5) It is the intention of the Legislative Assembly that the
performance of the various duties and functions of the department
in connection with each of its programs shall be financed by the
fees, assessments and charges established and collected in
connection with those programs.
' (6) There is created by transfer from the Consumer and
Business Services Fund a revolving administrative account in the
amount of $100,000. The revolving account shall be disbursed by
checks or orders issued by the director or the board and drawn
upon the State Treasury, to carry on the duties and functions of
the department and the board. All checks or orders paid from the
revolving account shall be reimbursed by a warrant drawn in favor
of the department charged against the Consumer and Business
Services Fund and recorded in the appropriate subsidiary record.
' (7) For the purposes of ORS chapter 656, the revolving
account created pursuant to subsection (6) of this section may
also be used to:
' (a) Pay compensation benefits; and
' (b) Refund to employers amounts paid to the Consumer and
Business Services Fund in excess of the amounts required by ORS
chapter 656.
' (8) There is established in the Consumer and Business
Services Fund the Banking Education Assessment Account. All
moneys in the account are appropriated continuously for use by
the Conference of State Bank Supervisors Education Foundation to
provide quality training and education for state bank examiners.
' { + SECTION 17. + } { + Sections 18 and 19 of this Act are
added to and made a part of ORS 705.010 to 705.350. + }
' { + SECTION 18. + } { + (1) The Director of the Department
of Consumer and Business Services shall transfer workers'
compensation premium assessment revenue from the Consumer and
Business Services Fund to the Workers' Benefit Fund to finance
the cost of carrying out the provisions of ORS 656.054 and
656.735 and section 15, chapter 600, Oregon Laws 1985.
' (2) The amount of total transfers during any one year shall
be limited to an amount that will produce an ending cash balance
approximating six months of projected expenditures in the
Workers' Benefit Fund in regard to its functions under ORS
656.054 and 656.735 and section 15, chapter 600, Oregon Laws
1985.
' (3) The transfers may be conducted annually, quarterly or
monthly. Total annual transfers shall comply with subsection (2)
of this section.
' (4) The department's funded liability for claims costs
pursuant to ORS 656.054 and 656.735 and section 15, chapter 600,
Oregon Laws 1985, shall be limited to the amount of moneys
included in the transfers determined by the director to be
available for these purposes. + }
' { + SECTION 19. + } { + There are transferred and
appropriated to the Workers' Benefit Fund, from the Consumer and
Business Services Fund, all unexpended and unobligated balances
in the Retroactive Reserve, Reemployment Assistance Reserve,
Reopened Claims Reserve and Handicapped Workers Reserve existing
on the operative date of this 1995 Act. + }
' { + SECTION 20. + } { + After the effective date of this
Act, but prior to the operative date, the Director of the
Department of Consumer and Business Services may take any action
necessary to enable the director to implement the provisions of
this Act on its operative date. + }
' { + SECTION 21. + } { + This Act first becomes operative
on January 1, 1996. + } ' .
----------