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 538
House Bill 2044
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.
Establishes definition of 'palliative care' for workers'
compensation purposes. Modifies certain workers' compensation
medical dispute and claims reconsideration procedures.
A BILL FOR AN ACT
Relating to workers' compensation; amending ORS 656.005, 656.245,
656.248, 656.268, 656.283, 656.319, 656.327 and 656.596.
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 state 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; 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
physician licensed by the State Board of Chiropractic Examiners
for the State of Oregon.
(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) '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 an undesirable medical condition. + }
{ - (20) - } { + (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.
{ - (21) - } { + (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.
{ - (22) - } { + (23) + } 'Person' includes partnership,
joint venture, association and corporation.
{ - (23) - } { + (24) + } '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) - } { + (25) + } 'State Accident Insurance Fund
Corporation' and ' corporation' mean the State Accident Insurance
Fund Corporation created under ORS 656.752.
{ - (25) - } { + (26) + } 'Subject employer' means an
employer who is subject to this chapter as provided by ORS
656.023.
{ - (26) - } { + (27) + } 'Subject worker' means a worker
who is subject to this chapter as provided by ORS 656.027.
{ - (27) - } { + (28) + } '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) - } { + (29) + } '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) - } { + (30) + } 'Independent contractor' has the
meaning for that term provided in ORS 670.600.
SECTION 2. ORS 656.245 is amended to read:
656.245. (1)(a) For every compensable injury, the insurer or
the self-insured employer shall cause to be provided medical
services for conditions resulting from the injury for such period
as the nature of the injury or the process of the recovery
requires, including such medical services as may be required
after a determination of permanent disability.
{ + (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. + }
{ - (b) Notwithstanding paragraph (a) - } { + (c)
Notwithstanding paragraphs (a) and (b) + } of this subsection,
after the worker has become medically stationary, palliative care
is not compensable, except { - when provided - } { + for the
following:
(A) Prescription medication;
(B) Treatment provided + } to a worker who has been determined
to have permanent total disability { + ; + } { - , when
necessary to monitor - }
{ + (C) Monitoring the + } administration of prescription
medication required to maintain the worker in a medically
stationary condition { + ; + } or
{ + (D) Monitoring + } { - to monitor - } the status of a
prosthetic device.
{ + (d) When + } { - If - } the worker's attending
physician referred to in ORS 656.005 (12)(b)(A) believes that
palliative care which would otherwise not be compensable under
this paragraph is appropriate to enable the worker to continue
current employment { + or a vocational training program + }, the
attending physician must first request approval from the insurer
or self-insured employer for such treatment. If approval is not
granted, the attending physician may request approval from the
director for such treatment. The director shall appoint a panel
of physicians pursuant to ORS 656.327 (3) to review the
treatment.
{ - (c) 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. - }
(2) When the time for submitting a claim under ORS 656.273 has
expired, any claim for medical services referred to in this
section shall be submitted to the insurer or self-insured
employer. If the claim for medical services is denied, the worker
may submit to the { + Workers' Compensation + } Board a request
for hearing pursuant to ORS 656.283. In the event the worker
cannot locate the insurer or self-insured employer, if the worker
does not know who the insurer or self-insured employer is, or if
the insurer or self-insured employer has ceased to exist, the
claim shall be submitted to the Director { + of the Department
of Consumer and Business Services + }.
(3)(a) The worker may choose an attending doctor or physician
within the State of Oregon. The worker may choose the initial
attending physician and may subsequently change attending
physician two times without approval from the director. If the
worker thereafter selects another attending physician, the
insurer or self-insured employer may require the director's
approval of the selection and, if requested, the director shall
determine with the advice of one or more physicians, whether the
selection by the worker shall be approved.
(b) A medical service provider who is not a member of a managed
care organization is subject to the following provisions:
(A) A medical service provider who is not qualified to be an
attending physician may provide compensable medical service to an
injured worker for a period of 30 days from the date of injury or
occupational disease or for 12 visits, whichever first occurs,
without the authorization of an attending physician. Thereafter,
medical service provided to an injured worker without the written
authorization of an attending physician is not compensable.
(B) A medical service provider who is not an attending
physician cannot authorize the payment of temporary disability
compensation. Except as otherwise provided in this chapter, only
the attending physician at the time of claim closure may make
findings regarding the worker's impairment for the purpose of
evaluating the worker's disability.
(4) 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.
(5) Notwithstanding subsection (3)(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, those workers who are subject to the
contract shall receive medical services in the manner prescribed
in the contract. 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.
(6) Notwithstanding any other provision of this chapter, the
director, by rule, shall authorize nurse practitioners certified
by the Oregon State Board of Nursing and physician assistants
registered by the Board of Medical Examiners for the State of
Oregon who practice in areas served by Type A or Type B rural
hospitals described in ORS 442.470 to authorize the payment of
temporary disability compensation for injured workers for a
period not to exceed 30 days from the date of the first visit on
the claim. In addition, the director, by rule, may authorize such
practitioners and assistants who practice in areas served by a
Type C rural hospital described in ORS 442.470 to authorize such
payment.
SECTION 3. ORS 656.248 is amended to read:
656.248. (1) The Director { + of the Department of Consumer
and Business Services + }, in compliance with ORS 183.310 to
183.550 and 656.794, shall promulgate rules for medical fee
schedules. These schedules shall represent the 75th percentile of
usual and customary fees as determined by the director who shall
determine those fees on the basis of current procedural
terminology.
(2) Medical fees equal to or less than the 75th percentile
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 75th percentile.
(3) In no event shall a provider charge more than the provider
charges to the general public.
(4) If no usual and customary fee has been established for a
given service or procedure the director may, in compliance with
ORS 183.310 to 183.550 and 656.794, 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) The director may, in compliance with ORS 183.310 to 183.550
and 656.794, promulgate a reasonable rate of markup for the sale
of medical devices.
(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. The update shall be
based upon:
(a) A statistically valid survey by the director of usual and
customary medical fees or upon the basis of that information
provided to the director by any state agency having access to
usual and customary medical fee information; or
(b) 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 specifically 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 inpatient hospital services based on
diagnostic related groups.
(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) In accordance with ORS 183.310 to 183.550, the director
shall establish utilization and treatment standards for all
medical services provided under this chapter.
(12) Notwithstanding any other provision of this section, the
director may exclude from the application of medical fee
schedules and hospital services, those services performed by a
managed care organization certified pursuant to ORS 656.260.
(13) When a dispute exists between an insurer or self-insured
employer and a medical service provider regarding { + either + }
the amount of a fee { + or nonpayment of bills + } for medical
services, notwithstanding any other provision of this chapter,
the director may resolve the dispute in such summary manner as
the director may prescribe. Determinations of the director
pursuant to this subsection are subject to review as provided in
ORS 183.310 to 183.550.
(14) 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.
SECTION 4. ORS 656.268 is amended to read:
656.268. (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. Claims shall not be closed if the worker's condition has
not become medically stationary or if the worker is enrolled and
actively engaged in training according to rules adopted pursuant
to ORS 656.340 and 656.726, provided however, that temporary
disability compensation shall be proportionately reduced by any
sums earned during the training.
(2)(a) Unless the insurer or self-insured employer has elected
to close the claim pursuant to this section, when the injured
worker's condition resulting from an accepted disabling injury
has become medically stationary, unless the injured worker is
enrolled and actively engaged in training, the insurer or
self-insured employer shall so notify the Department of Consumer
and Business Services, the worker, and the employer, if any, and
request the claim be examined and further compensation, if any,
be determined.
(b) A copy of all medical reports and reports of vocational
rehabilitation agencies or counselors shall be furnished to the
Department of Consumer and Business Services and to the worker
and to the employer, if requested by the worker or employer.
(3) 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 gives the worker a written release
to return to regular employment; or
(c) The attending physician gives the worker a written release
to return to modified employment, such employment is offered in
writing to the worker and the worker fails to begin such
employment.
(4)(a) When the worker's condition resulting from an accepted
disabling injury has become medically stationary, and the worker
has returned to work or the worker's attending physician releases
the worker to return to regular or modified employment, the claim
may be closed by the insurer or self-insured employer, without
the issuance of a determination order by the Department of
Consumer and Business Services.
(b) 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 Department
of Consumer and Business Services. The insurer or self-insured
employer shall issue a notice of closure of such a claim to the
worker and to the Department of Consumer and Business Services.
The notice shall inform the parties, in capital letters and
boldfaced type, of the proper manner in which to proceed if they
are dissatisfied with the terms of the notice. The notice must
inform the worker of the amount of any further compensation,
including permanent disability compensation to be awarded; of the
amount and duration of temporary total or temporary partial
disability compensation; of the obligation of the worker to
request reconsideration by the Department of Consumer and
Business Services under this section; of the right of the worker
to request a hearing pursuant to ORS 656.283 within 180 days of
the date of the notice of claim closure; of the aggravation
rights; and of such other information as the director may
require.
(c) All medical reports and reports of vocational
rehabilitation agencies or counselors shall be furnished to the
worker and to the employer, if requested by the worker or
employer.
(d) If the worker has returned to work but 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, if the insurer or self-insured
employer has not yet notified the Department of Consumer and
Business Services, the insurer or self-insured employer shall
forward the request for closure and all medical reports and
reports of vocational rehabilitation agencies or counselors to
the Department of Consumer and Business Services or shall issue a
notice of closure if the worker is medically stationary or a
notice of refusal to close if the worker is not medically
stationary. 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.
(e) If a worker objects to the notice of closure, the worker
first must request reconsideration by the department under this
section.
(f) If an insurer or self-insured employer has closed a claim
or refused to close a claim pursuant to this subsection, 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.
(g) If, upon reconsideration of a claim closed by an insurer or
self-insured employer, the department 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.
(5) { + (a) + } Within 10 working days after the department
receives the medical and vocational reports relating to an
accepted disabling injury, the claim shall be examined and
further compensation, including permanent disability award, if
any, determined under the director's supervision. If necessary
the department may require additional medical or other
information with respect to the claim, and may postpone the
determination or reconsideration for not more than 60 additional
days. { + The department shall mail a copy of the determination
to all interested parties. Any such party may request a hearing
under ORS 656.283 on the determination within 180 days after
copies of the determination are mailed, or as allowed by
subsection (6) of this section. + }
{ + (b) + } If the worker, the insurer or self-insured
employer objects to a determination order issued by the
department, the objecting party must first request
reconsideration of the order.
{ + (6)(a) + } At the reconsideration proceeding, 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
physician serving as the attending physician at the time of claim
closure.
{ - (6)(a) - } { + (b) + } In any reconsideration
proceeding under this section in which the worker was represented
by an attorney, the department 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.
{ + (c) + } Reconsideration shall be completed within 18
working days from the date of receipt of the request therefor 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 of the receipt of the
request for reconsideration, or within { - 75 days - } { + 18
working days plus the additional 60 calendar days + } where a
notice for medical arbiter review was timely mailed,
reconsideration shall be deemed denied and any further
proceedings shall occur as though an order on reconsideration
affirming the notice of closure or the determination order was
mailed on the { - 18th working day or where an order was timely
mailed on the 75th day - } { + date the order was due to
issue + }.
{ + (d) + } 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.
{ - (b) - } { + (e) + } If any party objects to the
reconsideration order, the party may request a hearing under ORS
656.283 within 180 days after copies of notice of closure or the
determination order are mailed { + or within 30 days from the
date of the reconsideration order + }, whichever is
{ - applicable - } { + later + }. The time from the request
for reconsideration until the reconsideration is made shall not
be counted in any limitation on the time allowed for the request
for hearing.
(7) { + (a) + } If the basis for objection to a notice of
closure or determination order 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) + } At the request of either of the parties, a panel
of three medical arbiters shall be appointed.
{ + (c) + } The arbiter, or panel of the 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 Board of
Medical Examiners for the State of Oregon and the committee
referred to in ORS 656.790.
{ + (d) + } 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.
{ + (e) + } 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.
{ + (f) + } The findings of the medical arbiter or panel of
medical arbiters shall be submitted to the department for
reconsideration of the determination order or notice of closure,
and no subsequent medical evidence of the worker's impairment is
admissible before the department, the board or the courts for
purposes of making findings of impairment on the claim closure.
{ + (g)(A) When the basis for objection to a notice of
closure or determination order issued under this section is a
disagreement with the impairment used in rating of the worker's
disability, and the director determines that the worker is not
medically stationary at the time of the reconsideration, the
director is not required to appoint a medical arbiter prior to
the completion of the reconsideration proceeding.
(B) When the worker's condition is not medically stationary at
the time of reconsideration, upon the mutual consent of the
parties to the claim, the director shall postpone the proceeding
until the director finds that the worker is medically stationary.
(C) If all parties to the claim do not want to postpone the
reconsideration, the director shall complete the reconsideration
proceeding without a medical arbiter review. If the
reconsideration is appealed in accordance with subsection (6) of
this section and the worker returns to a medically stationary
status, upon the referral of the referee, the director shall
arrange a medical arbiter examination pursuant to this section
and submit the medical arbiter's report for use at hearing.
(D) The findings of the medical arbiter shall be admissible
before the board and the courts for purposes of making findings
of impairment on the claim closure. + }
(8) If, after the determination made or 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
under the determination or closure shall be suspended, and the
worker shall receive temporary disability compensation 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 Department of Consumer and Business Services shall
reconsider the claim pursuant to this section unless the worker's
condition is not medically stationary. If the worker has returned
to work, the insurer or self-insured employer may reevaluate and
close the claim without the issuance of a determination order by
the Department of Consumer and Business Services.
{ - (9) The Department of Consumer and Business Services
shall mail a copy of the determination to all interested parties.
Any such party may request a hearing under ORS 656.283 on the
determination within 180 days after copies of the determination
are mailed. - }
{ - (10) - } { + (9) + } If the claim resulted from an
injury to a worker while in the employ of an employer insured by
the State Accident Insurance Fund Corporation, the corporation
shall set aside an amount of money sufficient to pay the award or
benefits. If the claim resulted from an injury to a worker while
in the employ of a self-insured employer or an employer insured
with a carrier other than the State Accident Insurance Fund
Corporation, the director may, in the event of:
(a) The insolvency or threatened insolvency of such employer or
the employer's surety or guarantor, and
(b) The inadequacy of cash, bond or securities otherwise on
deposit by any of them to secure such payment,
require the employer to deposit cash, securities or other assets
in such amount as the director deems necessary to assure ultimate
payment of the award.
{ - (11) - } { + (10) + } Upon receipt of a request made
pursuant to ORS 656.262, this section or ORS 656.277, the
Department of Consumer and Business Services shall determine
whether the claim is disabling or nondisabling. A copy of such
determination shall be mailed to all interested parties in
accordance with this section.
{ - (12) - } { + (11) + } If the attending physician 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.
{ - (13) - } { + (12) + } Any determination or notice of
closure made under this section may include necessary adjustments
in compensation paid or payable prior to the determination or
notice of closure, including disallowance of permanent disability
payments prematurely made, crediting temporary disability
payments against permanent disability awards and payment of
temporary disability payments which were payable but not paid.
{ - (14) - } { + (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 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 a guaranty contract insurer, a rating
organization licensed pursuant to ORS chapter 737, the State
Accident Insurance Fund Corporation or the department.
SECTION 5. ORS 656.283 is amended to read:
656.283. (1) Subject to subsection (2) of this section and 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 question concerning a claim.
(2) If a worker is dissatisfied with an action of the insurer
or self-insured employer regarding vocational assistance, the
worker must first apply to the director for administrative review
of the matter before requesting a hearing on that matter. Such
application must be made not later than the 60th day after the
date the worker was notified of the action. The director shall
complete the review within a reasonable time, unless the worker's
dissatisfaction is otherwise resolved. The decision of the
director may be modified only if it:
(a) Violates a statute or rule;
(b) Exceeds the statutory authority of the agency;
(c) Was made upon unlawful procedure; or
(d) Was characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
(3) 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 board.
(4) The board shall refer the request for hearing to a referee
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 shall not be
postponed except in extraordinary circumstances beyond the
control of the requesting party.
(5) At least 10 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
referee.
(6) 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 referee. Transcription shall be in written form
as provided by ORS 656.295 (3).
(7) { + (a) + } Except as otherwise provided in this section
and rules of procedure established by the board, the referee 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.
{ + (b) + } Evaluation of the worker's disability by the
referee shall be as of the date of issuance of the
reconsideration order pursuant to ORS 656.268.
{ + (c) + } Any finding of fact regarding the worker's
impairment must be established by medical evidence that is
supported by objective findings. The referee 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.
Nothing in this section shall be construed to prevent or limit
the right of a worker, insurer or self-insured employer to
present evidence at hearing and to establish by a preponderance
of the 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.
{ + (d) + } If the referee finds that the claim has been
closed prematurely, the referee shall issue an order rescinding
the determination order or notice of closure.
(8) Any party shall be entitled to issuance and service of
subpoenas under the provisions of ORS 656.726 (2)(c). Any party
or representative of the party may serve such subpoenas.
(9) 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 referee in writing
that the attorney has conferred with the other party and that
settlement has been achieved, subject to board approval, or that
settlement cannot be achieved.
SECTION 6. ORS 656.319 is amended to read:
656.319. (1) With respect to objection by a claimant to denial
of a claim for compensation under ORS 656.262, a hearing thereon
shall not be granted and the claim shall not be enforceable
unless:
(a) A request for hearing is filed not later than the 60th day
after the claimant was notified of the denial; or
(b) The request is filed not later than the 180th day after
notification of denial and the claimant establishes at a hearing
that there was good cause for failure to file the request by the
60th day after notification of denial.
(2) Notwithstanding subsection (1) of this section, a hearing
shall be granted even if a request therefor is filed after the
time specified in subsection (1) of this section if the claimant
can show lack of mental competency to file the request within
that time. The period for filing under this subsection shall not
be extended more than five years by lack of mental competency,
nor shall it extend in any case longer than one year after the
claimant regains mental competency.
(3) With respect to subsection (2) of this section, lack of
mental competency shall apply only to an individual suffering
from such mental disorder, mental illness or nervous disorder as
is required for commitment or voluntary admission to a treatment
facility pursuant to ORS 426.005 to 426.223 and 426.241 to
426.380 and the rules of the Mental Health and Developmental
Disability Services Division.
(4) With respect to objections to a reconsideration order under
ORS 656.268, a hearing on such objections shall not be granted
unless a request for hearing is filed within 180 days after the
copies of the determination or notice of closure were mailed to
the parties { + or within 30 days after a reconsideration order
was mailed, whichever is later + }.
(5) With respect to objection by a claimant to a notice of
refusal to close a claim under ORS 656.268, a hearing on the
objection shall not be granted unless the request for hearing is
filed within 60 days after copies of the notice of refusal to
close were mailed to the parties.
SECTION 7. ORS 656.327 is amended to read:
656.327. (1)(a) If an injured worker, an insurer or
self-insured employer or the director believes that an injured
worker is receiving medical treatment that is excessive,
inappropriate, ineffectual or in violation of rules regarding the
performance of medical services and wishes review of the
treatment by the Director { + of the Department of Consumer and
Business Services + }, the injured worker, insurer or
self-insured employer shall so notify the parties and the
director.
{ - (b) Unless the director issues an order finding that no
bona fide medical services dispute exists, the director shall
review the matter as provided in this section. Appeal of an order
finding that no bona fide medical services dispute exists shall
be made directly to the board within 30 days after issuance of
the order. The board shall set aside or remand the order only if
the board finds that the order is not supported by substantial
evidence in the record. Substantial evidence exists to support a
finding in the order when the record, reviewed as a whole, would
permit a reasonable person to make that finding. The decision of
the board is not subject to review by any other court or
administrative agency. - }
{ - (c) The insurer or self-insured employer shall not deny
the claim for medical services nor shall the worker request a
hearing on any issue that is subject to the jurisdiction of the
director under this section until the director issues an order
under subsection (2) of this section. - }
{ - (2) - } { + (b)(A) + } The director shall review
medical information and records regarding the treatment
{ + disputed under paragraph (a) of this subsection + }. The
director may cause an appropriate medical service provider to
{ + examine the worker and to + } perform reasonable and
appropriate tests, other than invasive tests { - , upon the
worker and may examine the worker - } . Notwithstanding ORS
656.325 (1), the worker may refuse a test without sanction.
{ + The director shall + } review { - of - } the medical
{ - treatment shall be completed and the findings of the
director shall be submitted to the parties - } { + record and
shall issue a proposed order + } within 30 days of the request
for review. The findings of the director regarding the treatment
in question shall be prepared in such form and manner and shall
contain such information as the director may prescribe. Within 10
days of making the findings, the director shall issue an order
based upon the findings.
{ + (B) + } If the worker, insurer, self-insured employer or
medical service provider is dissatisfied with { - that - }
{ + the proposed + } order, the dissatisfied party may
{ + comment on the proposed order within 10 days of its
issuance.
(C) If the worker, insurer, self-insured employer or medical
service provider is dissatisfied with the director's final order,
the dissatisfied party has 30 days from the issuance of the final
order to + } request a hearing on the order.
{ + (D) + } If the director issues an order declaring medical
treatment to be not compensable, the worker is not obligated to
pay for such treatment.
{ + (E) + } Review of the { + director's + } order shall be
as provided in ORS 656.283 in accordance with expedited hearing
procedures established by the board, except that the order of the
director may be modified only if the order is not supported by
substantial evidence in the record.
{ + (2)(a) If the director issues an order finding that no
bona fide medical services dispute exists, appeal of that order
finding that no bona fide medical services dispute exists shall
be made directly to the board within 30 days after its issuance.
The board shall set aside or remand the order only if the board
finds that the order is not supported by substantial evidence in
the record. Substantial evidence exists to support a finding in
the order when the record, reviewed as a whole, would permit a
reasonable person to make that finding. The decision of the board
is not subject to review by any other court or administrative
agency.
(b) The insurer or self-insured employer shall not deny the
claim for medical services nor shall the worker request a hearing
on any issue that is subject to the jurisdiction of the director
under this section until the director issues an order under
subsection (1)(b) of this section. + }
(3) Upon request of either party, the director may delegate to
a panel of three physicians the review of medical treatment under
this section. At least one member of any such panel shall be a
practitioner of the healing art of the medical service provider
whose treatment is being reviewed. No member of any such panel
shall be a physician whose treatment is the subject of review.
The panel shall be chosen in such manner as the director may
prescribe, in consultation with the committee referred to in ORS
656.790. The panel shall submit findings to the director in the
same manner and within the time limits as prescribed in
{ - subsection (2) - } { + subsection (1)(b)(A) + } of this
section.
(4) Members of the panel of physicians and the medical arbiter
or panel of medical arbiters appointed pursuant to ORS 656.268
acting pursuant to the authority of the director are agents of
the department and are subject to the provisions of ORS 30.260 to
30.300. The findings of the panel of physicians, the medical
arbiter or panel of medical arbiters, all of the records and all
communications to or before a panel or arbiter are privileged and
are not discoverable or admissible in any proceeding other than
those proceedings under this chapter. No member of a panel or a
medical arbiter shall be examined or subject to administrative or
civil liability regarding participation in or the findings of the
panel or medical arbiter or any matter before the panel or
medical arbiter other than in proceedings under this chapter.
(5) The costs of review of medical treatment by the panel of
physicians pursuant to this section and costs incurred by the
worker in attending any examination required under this section,
including child care, transportation, lodging and meals, shall be
paid by the insurer or self-insured employer.
SECTION 8. ORS 656.596 is amended to read:
656.596. (1) If no workers' compensation claim has been filed
or accepted at the time a worker or the beneficiaries of a worker
recover damages from a third person or noncomplying employer
pursuant to ORS 656.576 to 656.596, the amount of the damages
shall constitute an offset against compensation due the worker or
beneficiaries of the worker for the injuries for which the
recovery is made to the extent of any lien that would have been
authorized by ORS 656.576 to 656.596 if a workers' compensation
claim had been filed and accepted at the time of recovery of
damages.
(2) The offset created by subsection (1) of this section shall
be recoverable only as follows:
(a) Out of compensation due prior to the filing of a workers'
compensation claim; and
(b) In the manner provided for adjustments in compensation
under ORS 656.268 { - (13) - } { + (12) + }.
(3) The worker or the beneficiaries of the worker shall notify
the paying agency or potential paying agency of the amount of any
damages recovered from a third person or noncomplying employer at
the time of recovery or when the worker or the beneficiaries of a
worker file a workers' compensation claim that is subject to ORS
656.576 to 656.596.
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