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 539
House Bill 2045
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.
Authorizes redetermination of temporary total, temporary
partial or permanent unscheduled disability under workers'
compensation law when worker completes authorized training
program.
A BILL FOR AN ACT
Relating to redetermination of claims after completion of
authorized training under workers' compensation law; amending
ORS 656.268.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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) 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. 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. 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) 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. 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 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 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. 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) 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, whichever is applicable. 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) 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. At the request of either of the parties, a panel
of three medical arbiters shall be appointed. 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. 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. 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. 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.
(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 - } { + redetermine + } the claim pursuant to
this section unless the worker's condition is not medically
stationary. { + The redetermination shall include the amount and
duration of temporary total or temporary partial disability
compensation. Permanent disability compensation shall be
redetermined for unscheduled disability only. + } If the worker
has returned to work { + or the worker's attending physician has
released the worker to return to regular or modified
employment + }, the insurer or self-insured employer may
{ - reevaluate - } { + redetermine + } 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) 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) 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) 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) 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) 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.
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