68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
HA to SB 63
LC 955
HOUSE AMENDMENTS TO
SENATE BILL 63
By COMMITTEE ON JUDICIARY
April 5
On page 1 of the printed bill, line 2, delete 'and'.
In line 5, after '656.027,' insert '656.029,' and after '
656.128' insert ', 656.419, 656.427' and before the period insert
'; repealing section 18, chapter ___, Oregon Laws 1995 (Enrolled
Senate Bill 851), and section 68, chapter ___, Oregon Laws 1995
(Enrolled Senate Bill 369); and declaring an emergency'.
On page 6, after line 26, insert:
' { + SECTION 7a. + } { + If Senate Bill 851 becomes law,
section 18, chapter ___, Oregon Laws 1995 (Enrolled Senate Bill
851) (amending ORS 63.160), is repealed. + } ' .
On page 19, delete lines 27 through 45.
Delete pages 20 through 23.
On page 24, delete lines 1 through 30 and insert:
' { + SECTION 31. + } 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) 'Party' means a claimant for compensation, the employer
of the injured worker at the time of injury and the insurer, if
any, of such employer.
' (21) 'Payroll' means a record of wages payable to workers for
their services and includes commissions, value of exchange labor
and the reasonable value of board, rent, housing, lodging or
similar advantage received from the employer. However, 'payroll '
does not include overtime pay, vacation pay, bonus pay, tips,
amounts payable under profit-sharing agreements or bonus payments
to reward workers for safe working practices. Bonus pay is
limited to payments which are not anticipated under the contract
of employment and which are paid at the sole discretion of the
employer. The exclusion from payroll of bonus payments to reward
workers for safe working practices is only for the purpose of
calculations based on payroll to determine premium for workers'
compensation insurance, and does not affect any other calculation
or determination based on payroll for the purposes of this
chapter.
' (22) 'Person' includes partnership, joint venture,
association { + , limited liability company + } and corporation.
' (23) 'Self-insured employer' means an employer or group of
employers certified under ORS 656.430 as meeting the
qualifications set out by ORS 656.407.
' (24) 'State Accident Insurance Fund Corporation' and '
corporation' mean the State Accident Insurance Fund Corporation
created under ORS 656.752.
' (25) 'Subject employer' means an employer who is subject to
this chapter as provided by ORS 656.023.
' (26) 'Subject worker' means a worker who is subject to this
chapter as provided by ORS 656.027.
' (27) 'Wages' means the money rate at which the service
rendered is recompensed under the contract of hiring in force at
the time of the accident, including reasonable value of board,
rent, housing, lodging or similar advantage received from the
employer, and includes the amount of tips required to be reported
by the employer pursuant to section 6053 of the Internal Revenue
Code of 1954, as amended, and the regulations promulgated
pursuant thereto, or the amount of actual tips reported,
whichever amount is greater. The State Accident Insurance Fund
Corporation may establish assumed minimum and maximum wages, in
conformity with recognized insurance principles, at which any
worker shall be carried upon the payroll of the employer for the
purpose of determining the premium of the employer.
' (28) 'Worker' means any person, including a minor whether
lawfully or unlawfully employed, who engages to furnish services
for a remuneration, subject to the direction and control of an
employer and includes salaried, elected and appointed officials
of the state, state agencies, counties, cities, school districts
and other public corporations, but does not include any person
whose services are performed as an inmate or ward of a state
institution or as part of the eligibility requirements for a
general or public assistance grant.
' (29) 'Independent contractor' has the meaning for that term
provided in ORS 670.600.
' { + SECTION 32. + } ORS 656.027 is amended to read:
' 656.027. All workers are subject to this chapter except those
nonsubject workers described in the following subsections:
' (1) A worker employed as a domestic servant in or about a
private home. For the purposes of this subsection 'domestic
servant' means any worker engaged in household domestic service
by private employment contract, including, but not limited to,
home health workers.
' (2) A worker employed to do gardening, maintenance, repair,
remodeling or similar work in or about the private home of the
person employing the worker.
' (3)(a) A worker whose employment is casual and either:
' (A) The employment is not in the course of the trade,
business or profession of the employer; or
' (B) The employment is in the course of the trade, business or
profession of a nonsubject employer.
' (b) For the purpose of this subsection, 'casual' refers only
to employments where the work in any 30-day period, without
regard to the number of workers employed, involves a total labor
cost of less than $200.
' (4) A person for whom a rule of liability for injury or death
arising out of and in the course of employment is provided by the
laws of the United States.
' (5) A worker engaged in the transportation in interstate
commerce of goods, persons or property for hire by rail, water,
aircraft or motor vehicle, and whose employer has no fixed place
of business in this state.
' (6) Workers of any city having a population of more than
200,000 that provides by ordinance or charter compensation
equivalent to compensation under this chapter except for the
provisions of ORS 656.802 to 656.807.
' (7) Sole proprietors. When labor or services are performed
under contract, the sole proprietor must qualify as an
independent contractor.
' (8) Partners who are not engaged in work performed in direct
connection with the construction, alteration, repair,
improvement, moving or demolition of an improvement on real
property or appurtenances thereto. When labor or services are
performed under contract, the partnership must qualify as an
independent contractor.
' { + (9) Members, including members who are managers, of
limited liability companies, regardless of the nature of the work
performed. However, members, including members who are managers,
of limited liability companies with more than one member, while
engaged in work performed in direct connection with the
construction, alteration, repair, improvement, moving or
demolition of an improvement on real property or appurtenances
thereto, are subject workers. When labor or services are
performed under contract, the limited liability company must
qualify as an independent contractor. + }
' { - (9) - } { + (10) + } Corporate officers who are
directors of the corporation and who have a substantial ownership
interest in the corporation subject to the following limitations:
' (a) If the activities of the corporation are conducted on
land that receives farm use tax assessment pursuant to ORS
215.203 and ORS chapter 308, corporate officer includes all
individuals identified as directors in the corporate bylaws,
regardless of ownership interest, and who are members of the same
family, whether related by blood, marriage or adoption.
' (b) If the activities of the corporation involve the
commercial harvest of timber or building and construction and all
officers of the corporation are members of the same family and
are parents, daughters or sons, daughters-in-law or sons-in-law
or grandchildren, then all such officers may elect to be
nonsubject workers. For all other corporations involving the
commercial harvest of timber or building and construction, the
maximum number of exempt corporate officers for the corporation
shall be whichever is the greater of the following:
' (A) Two corporate officers; or
' (B) One corporate officer for each 10 corporate employees.
' (c) When labor or services are performed under contract, the
corporation must qualify as an independent contractor.
' { - (10) - } { + (11) + } A person performing services
primarily for board and lodging received from any religious,
charitable or relief organization.
' { - (11) - } { + (12) + } A newspaper carrier utilized in
compliance with the provisions of ORS 656.070 and 656.075.
' { - (12) - } { + (13) + } A person who has been declared
an amateur athlete under the rules of the United States Olympic
Committee or the Canadian Olympic Committee and who receives no
remuneration for performance of services as an athlete other than
board, room, rent, housing, lodging or other reasonable
incidental subsistence allowance, or any amateur sports official
who is certified by a recognized Oregon or national certifying
authority, which requires or provides liability and accident
insurance for such officials. A roster of recognized Oregon and
national certifying authorities will be maintained by the
Department of Consumer and Business Services, from lists of
certifying organizations submitted by the Oregon School
Activities Association and the Oregon Park and Recreation
Society.
' { - (13) - } { + (14) + } Volunteer personnel
participating in the ACTION programs, organized under the
Domestic Volunteer Service Act of 1973, P.L. 93-113, known as the
Foster Grandparent Program and the Senior Companion Program,
whether or not the volunteers receive a stipend or nominal
reimbursement for time and travel expenses.
' { - (14) - } { + (15) + } A person who has an ownership or
leasehold interest in equipment and who furnishes, maintains and
operates the equipment. As used in this subsection 'equipment'
means:
' (a) A motor vehicle used in the transportation of logs, poles
or piling.
' (b) A motor vehicle used in the transportation of rocks,
gravel, sand, dirt or asphalt concrete.
' (c) A motor vehicle operated as a taxicab as defined in ORS
767.025.
' { - (15) - } { + (16) + } A person engaged in the
transportation of the public for recreational down-river boating
activities on the waters of this state pursuant to a federal
permit when the person furnishes the equipment necessary for the
activity. As used in this subsection, 'recreational down-river
boating activities ' means those boating activities for the
purpose of recreational fishing, swimming or sightseeing
utilizing a float craft with oars or paddles as the primary
source of power.
' { - (16) - } { + (17) + } A person who performs volunteer
ski patrol activities who receives no wage other than noncash
remuneration.
' { - (17) - } { + (18) + } A person 19 years of age or
older who contracts with a newspaper publishing company or
independent newspaper dealer or contractor to distribute
newspapers to the general public and perform or undertake any
necessary or attendant functions related thereto.
' { - (18) - } { + (19) + } A person performing foster
parent or adult foster care duties pursuant to ORS chapter 411,
418, 430 or 443.
' { - (19) - } { + (20) + } A person performing services on
a volunteer basis for a nonprofit, religious, charitable or
relief organization, whether or not such person receives meals or
lodging or nominal reimbursements or vouchers for meals, lodging
or expenses.
' { - (20) - } { + (21) + } A person performing services
under a property tax work-off program established under ORS
310.800.
' { - (21) - } { + (22) + } A person who performs service as
a caddy at a golf course in an established program for the
training and supervision of caddies under the direction of a
person who is an employee of the golf course.
' { + SECTION 33. + } ORS 656.128 is amended to read:
' 656.128. (1) Any person who is a sole proprietor, { + or a
member, including a member who is a manager, of a limited
liability company, + } or a member of a partnership, or an
independent contractor pursuant to ORS 310.800, may make written
application to an insurer to become entitled as a subject worker
to compensation benefits. Thereupon, the insurer may accept such
application and fix a classification and an assumed monthly wage
at which such person shall be carried on the payroll as a worker
for purposes of computations under this chapter.
' (2) When the application is accepted, such person thereupon
is subject to the provisions and entitled to the benefits of this
chapter. The person shall promptly notify the insurer whenever
the status of the person as an employer of subject workers
changes. Any subject worker employed by such a person after the
effective date of the election of the person shall, upon being
employed, be considered covered automatically by the same
guaranty contract that covers such person.
' (3) No claim shall be allowed or paid under this section,
except upon corroborative evidence in addition to the evidence of
the claimant.
' (4) Any person subject to this chapter as a worker as
provided in this section may cancel such election by giving
written notice to the insurer. The cancellation shall become
effective at 12 midnight ending the day of filing the notice with
the insurer.
' { + SECTION 34. + } ORS 656.029 is amended to read:
' 656.029. (1) If a person awards a contract involving the
performance of labor where such labor is a normal and customary
part or process of the person's trade or business, the person
awarding the contract is responsible for providing workers'
compensation insurance coverage for all individuals, other than
those exempt under ORS 656.027, who perform labor under the
contract unless the person to whom the contract is awarded
provides such coverage for those individuals before labor under
the contract commences. If an individual who performs labor under
the contract incurs a compensable injury, and no workers'
compensation insurance coverage is provided for that individual
by the person who is charged with the responsibility for
providing such coverage before labor under the contract
commences, that person shall be treated as a noncomplying
employer and benefits shall be paid to the injured worker in the
manner provided in this chapter for the payment of benefits to
the worker of a noncomplying employer.
' (2) If a person to whom the contract is awarded is exempt
from coverage under ORS 656.027, and that person engages
individuals who are not exempt under ORS 656.027 in the
performance of the contract, that person shall provide workers'
compensation insurance coverage for all such individuals. If an
individual who performs labor under the contract incurs a
compensable injury, and no workers' compensation insurance
coverage is provided for that individual by the person to whom
the contract is awarded, that person shall be treated as a
noncomplying employer and benefits shall be paid to the injured
worker in the manner provided in this chapter for the payment of
benefits to the worker of a noncomplying employer.
' (3) As used in this section:
' (a) 'Person' includes partnerships, joint ventures,
associations, corporations, { + limited liability companies, + }
governmental agencies and sole proprietorships.
' (b) 'Sole proprietorship' means a business entity or
individual who performs labor without the assistance of others.
' { + SECTION 35. + } ORS 656.419 is amended to read:
' 656.419. (1) A guaranty contract issued by an insurer shall
provide that the insurer agrees to assume, without monetary
limit, the liability of the employer, arising during the period
the guaranty contract is in effect, for prompt payment of:
' (a) All compensation for compensable injuries that may become
due under this chapter to subject workers and their
beneficiaries; and
' (b) All assessments and other obligations imposed on the
insured employer and subject workers under this chapter that may
become due from such employer to the director, except the
obligation to pay a penalty assessed against the employer under
ORS 656.745.
' (2) A guaranty contract issued by a guaranty contract insurer
shall be filed with the Director { + of the Department of
Consumer and Business Services + } by the insurer within 30 days
after workers' compensation coverage of the employer is
effective. The filing shall be in such form and manner as the
director may prescribe. A guaranty contract shall contain:
' (a) The name and address of the employer;
' (b) A description of the occupation in which the employer is
engaged or proposes to engage;
' (c) The effective date of the workers' compensation coverage;
' (d) A specific statement that a named sole proprietor,
partner { + , member of a limited liability company + } or
corporate officer is covered by the contract by reason of an
election to be covered, if such is the case, and, if coverage
extends to any other person by reason of an election of the
employer of the person, a statement of that fact; and
' (e) Such other information as the director may from time to
time require.
' (3) Workers' compensation coverage is effective when the
application of the subject employer for coverage together with
any required fees or premium are received and accepted by an
authorized representative of an insurer.
' (4) If the name or address of an insured employer is changed,
the insurer shall, within 30 days after the date the change is
received by the insurer, file a change-of-name or
change-of-address notice with the director setting forth the
correct name and address of the employer.
' (5) Coverage of an employer under a guaranty contract
continues until canceled or terminated as provided by ORS 656.423
or 656.427.
' { + SECTION 36. + } ORS 656.427 is amended to read:
' 656.427. (1) An insurer that issues a guaranty contract or a
surety bond to an employer under this chapter may terminate
liability on its contract or bond, as the case may be, by giving
the employer and the director written notice of termination. A
notice of termination shall state the effective date and hour of
termination.
' (2) An insurer may terminate liability under this section as
follows:
' (a) If the termination is for reasons other than those set
forth in paragraph (b) of this subsection, it is effective at 12
midnight not less than 30 days after the date the notice is
received by the director.
' (b) If the termination is based on the insurer's decision not
to offer insurance to employers within a specific premium
category, it is effective not sooner than 90 days after the date
the notice is received by the director.
' (3) Notice under this section shall be given by mail,
addressed to the employer at the last-known address of the
employer. If the employer is a partnership, notice may be given
to any of the partners. { + If the employer is a limited
liability company, notice may be given to any manager, or in a
member managed limited liability company, to any of the
members. + } If the employer is a corporation, notice may be
given to any agent or officer of the corporation under whom legal
process may be served.
' (4) Termination shall in no way limit liability that was
incurred under the guaranty contract or surety bond prior to the
effective date of the termination.
' (5) If, before the effective date of a termination under this
section, the employer gives notice to the insurer that it has not
obtained coverage from another insurer and intends to become
insured under the assigned risk plan established under ORS
656.730, the insurer shall insure that continuing coverage is
provided to the employer under the plan without further
application by the employer, transferring the risk to the plan as
of the effective date of termination. If the insurer is a
servicing carrier under the plan, it shall continue to provide
coverage for the employer as a servicing carrier, at least until
another servicing carrier is provided for the employer in the
normal course of administering the plan. If the insurer is not a
servicing carrier, it shall apply to the plan for coverage on the
employer's behalf. Nothing in this section is intended to limit
the authority of administrators of the plan to require the
employer to provide deposits or to make payments consistent with
plan requirements. However, the rules of the plan shall allow any
deposit requirements imposed by the plan to be deferred for as
long as one year.'.
In line 31, delete '34' and insert '37'.
On page 25, line 3, delete '35' and insert '38'.
In line 8, after '68.020 (3),' delete the rest of the line and
insert '656.005, 656.027, 656.029, 656.128, 656.419, 656.427
and'.
In line 9, delete '34' and insert '37'.
After line 16, insert:
' { + SECTION 39. + } { + (1) For the period beginning
January 1, 1994, and ending on the effective date of this Act,
any member, including a member who is a manager, of a limited
liability company who made payments or incurred obligations, or
for whom payments were made or obligations incurred, consistent
with the position that the member was a subject worker under ORS
chapter 656 and who otherwise satisfied the requirements of a
subject worker thereunder, shall be treated as a subject worker
during the period such payments were made or such obligations
were incurred to the same extent and in the same manner as if the
member had otherwise been a nonsubject worker who made written
application to the insurer to become entitled to compensation
benefits as a subject worker under ORS 656.128 for such period
and such insurer had accepted the application.
' (2) Insurers receiving premiums for or from members,
including members who are managers, of a limited liability
company for the period beginning January 1, 1994, and ending on
the effective date of this Act shall provide compensation
benefits to such members to the same extent and in the same
manner as if the members had applied to become entitled as
subject workers under ORS 656.128 and the insurer had accepted
the application for the periods the premiums were paid.
' (3) The application and acceptance of coverage of a member of
a limited liability company pursuant to subsections (1) and (2)
of this section shall terminate on the effective date of this
Act. Nothing in this section precludes a member of a limited
liability company from applying for coverage under ORS 656.039 or
656.128 for periods on and after the effective date of this Act
and nothing in this section precludes or requires an insurer to
accept any application for such periods. + }
' { + SECTION 40. + } { + (1) If Senate Bill 369 becomes
law, section 68, chapter ___, Oregon Laws 1995 (Enrolled Senate
Bill 369) is repealed.
' (2) It is the intent of the Legislative Assembly that, if
Senate Bill 369 becomes law, subsection (1) of this section shall
prevail over section 68, chapter ___, Oregon Laws 1995 (Enrolled
Senate Bill 369) (repealing sections 31, 32 and 33 of this Act),
regardless of the effective dates of chapter ___, Oregon Laws
1995 (Enrolled Senate Bill 369) and this Act. + }
' { + SECTION 41. + } { + Sections 1 to 39 of this Act
become operative on the 91st day after the date on which the
regular session of the Sixty-eighth Legislative Assembly
ends. + }
' { + SECTION 42. + } { + This Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this Act takes effect on its
passage. + } ' .
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