68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
LC 1477
SENATE MINORITY REPORT
AMENDMENTS TO
SENATE BILL 369
February 22
President Smith:
A minority of your Committee on Labor and Government
Operations, to whom was referred Senate Bill 369, having had the
same under consideration, respectfully reports it back with the
recommendation that it do pass with the following amendments:
On page 1 of the printed bill, delete lines 3 through 8 and
insert '656.204, 656.214 and 656.262 and section 2, chapter 745,
Oregon Laws 1991; and declaring an emergency.'.
Delete lines 10 through 31 and delete pages 2 through 60 and
insert:
' { + 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, - } { +
'Beneficiary' does not include: + }
' { + (a) + } 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.
' { + (b) A person who intentionally causes the compensable
injury or death. + }
' (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 { + or any
other + } 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
SMRA to SB 369 Page 2
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 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.
SMRA to SB 369 Page 3
' (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 2. + } ORS 656.012 is amended to read:
' 656.012. (1) The Legislative Assembly finds that:
' (a) The performance of various industrial enterprises
necessary to the enrichment and economic well-being of all the
citizens of this state will inevitably involve injury to some of
the workers employed in those enterprises; { - and - }
' (b) The method provided by the common law for compensating
injured workers involves long and costly litigation, without
commensurate benefit to either the injured workers or the
employers, and often requires the taxpayer to provide expensive
care and support for the injured workers and their
dependents { + ; and + }
{ - . - }
' { + (c) An exclusive, statutory system of compensation will
provide the best societal measure of those injuries that bear a
sufficient relationship to employment to merit incorporation of
their costs into the stream of commerce. + }
' (2) In consequence of these findings, the objectives of the
Workers' Compensation Law are declared to be as follows:
' (a) To provide, regardless of fault, sure, prompt and
complete medical treatment for injured workers and fair, adequate
and reasonable income benefits to injured workers and their
dependents;
' (b) To provide a fair and just administrative system for
delivery of medical and financial benefits to injured workers
that reduces litigation and eliminates the adversary nature of
the compensation proceedings, to the greatest extent practicable;
' (c) To restore the injured worker physically and economically
to a self-sufficient status in an expeditious manner and to the
greatest extent practicable; { - and - }
' (d) To encourage maximum employer implementation of accident
study, analysis and prevention programs to reduce the economic
SMRA to SB 369 Page 4
loss and human suffering caused by industrial accidents { + ;
and + } { - . - }
' { + (e) To provide the sole and exclusive source and means
by which subject workers, their beneficiaries and anyone
otherwise entitled to receive benefits on account of injuries or
diseases arising out of and in the course of employment shall
seek and qualify for remedies for such conditions. + }
' { + SECTION 3. + } ORS 656.018 is amended to read:
' 656.018. (1)(a) The liability of every employer who satisfies
the duty required by ORS 656.017 (1) is exclusive and in place of
all other liability arising out of { - compensable - }
injuries { + , diseases, symptom complexes or similar conditions
arising out of and in the course of employment that are sustained
by + } { - to the - } subject workers, the workers'
beneficiaries and anyone otherwise entitled to recover damages
from the employer on account of such { - injuries - }
{ + conditions + } or claims resulting therefrom, specifically
including claims for contribution or indemnity asserted by third
persons from whom damages are sought on account of such
{ - injuries - } { + conditions + }, except as specifically
provided otherwise in this chapter.
' (b) This subsection shall not apply to claims for indemnity
or contribution asserted by a corporation, individual or
association of individuals which is subject to regulation
pursuant to ORS chapter 757, 759 or 760.
' (c) Except as provided in paragraph (b) of this subsection,
all agreements or warranties contrary to the provisions of
paragraph (a) of this subsection entered into after July 19,
1977, are void.
' (2) The rights given to a subject worker and the
beneficiaries of the subject worker for compensable injuries
under this chapter are in lieu of any remedies they might
otherwise have for such injuries against the worker's employer
under ORS 654.305 to 654.335 or other laws, common law or
statute, except to the extent the worker is expressly given the
right under this chapter to bring suit against the employer of
the worker for an injury.
' (3) The exemption from liability given an employer under this
section is also extended to the employer's insurer, the
self-insured employer's claims administrator, the department, and
the contracted agents, employees, officers and directors of the
employer, the employer's insurer, the self-insured employer's
claims administrator and the department, except that the
exemption from liability shall not apply:
' (a) Where the injury is proximately caused by willful and
unprovoked aggression by the person otherwise exempt under this
subsection;
' (b) Where the worker and the person otherwise exempt under
this subsection are not engaged in the furtherance of a common
enterprise or the accomplishment of the same or related
objectives; or
' (c) Where the injury is proximately caused by failure of the
employer to comply with the notice posted pursuant to ORS
654.082.
' (4) The exemption from liability given an employer under this
section applies both to a worker leasing company and the client
to whom workers are provided when the worker leasing company and
the client comply with ORS 656.850 (3).
' (5) Nothing in this chapter shall prohibit payment,
voluntarily or otherwise, to injured workers or their
SMRA to SB 369 Page 5
beneficiaries in excess of the compensation required to be paid
under this chapter.
' { + (6) The exclusive remedy provisions and limitation on
liability provisions of this section apply to all work-related
injuries to or conditions of subject workers whether or not they
are determined to be compensable under this chapter. + }
' { + SECTION 4. + } ORS 656.204 is amended to read:
' 656.204. If death results from the accidental injury,
payments shall be made as follows:
' (1) The cost of burial, including transportation of the body,
shall be paid, not to exceed { - $3,000 - } { + 10 times the
average weekly wage + } in any case.
' (2) { + (a) + } If the worker is survived by a spouse
{ - with children of the deceased, monthly benefits shall be
paid in an amount equal to 4.35 times 50 percent of the average
weekly wage to the surviving spouse until remarriage. If the
worker is survived by a spouse with no children of the
deceased - } , monthly benefits shall be paid in an amount equal
to 4.35 times 66-2/3 percent of the average weekly wage to the
surviving spouse until remarriage. The payment shall cease at the
end of the month in which the remarriage occurs.
' { + (b) + } { - The surviving spouse - } { + If the
worker is survived by a spouse, monthly benefits + } also shall
be paid { - $150 per month - } { + in an amount equal to 4.35
times 10 percent of the average weekly wage + } for each child of
the deceased until such child becomes 18 years of age.
{ - However: - }
' { - (a) If there are more than two such children, the
surviving spouse shall be paid $50 per month for each child in
excess of two. - }
' { - (b) In no event shall the total monthly benefits
provided for in this subsection exceed 4.35 times 133-1/3 percent
of the average weekly wage. - }
' { - (c) Upon remarriage, a surviving spouse shall be paid 24
times the monthly benefit in a lump sum as final payment of the
claim, but the monthly payments for each child shall continue as
before. - }
' { + (c) If a surviving spouse receiving monthly payments
dies, leaving a child under 18 years of age who is entitled to
compensation on account of the death of the worker, a monthly
benefit equal to 4.35 times 25 percent of the average weekly wage
shall be paid to each such child until the child becomes 18 years
of age. + }
' (d) If a child who has become 18 years of age is a full-time
high school student, benefits shall be paid as provided in
subsection { - (10) - } { + (8) + } of this section.
' { - (e) If the surviving spouse dies before all the children
of the deceased worker become 18 years of age, then each child
under 18 years of age shall be paid $400 per month until the
child becomes 18 years of age. - }
' { + (e) In no event shall the total monthly benefits
provided for in this subsection exceed 4.35 times 133-1/3 percent
of the average weekly wage. If the sum of the individual benefits
exceeds this maximum, the benefit for each child will be reduced
proportionally. + }
' { - (3) If a worker leaves a child under the age of 18 years
by a divorced husband or wife, and the child is in the custody of
the divorced husband or wife, $150 per month shall be paid for
each such child until the child becomes 18 years of age.
However: - }
SMRA to SB 369 Page 6
' { + (3) Upon remarriage, a surviving spouse shall be paid
24 times the monthly benefit in a lump sum as final payment of
the claim, but the monthly payments for each child shall continue
as before. + }
' { - (a) If there are more than two such children the
divorced husband or wife shall be paid $50 per month for each
child in excess of two. - }
' { - (b) In no event shall the total benefits provided for in
this subsection exceed 4.35 times 66-2/3 percent of the average
weekly wage. - }
' { - (c) If a child who has become 18 years of age is a
full-time high school student, benefits shall be paid as provided
in subsection (10) of this section. - }
' (4) { + (a) + } If the worker leaves neither wife nor
husband, but a child under { - the age of - } 18 years { + of
age, + } { - other than one described in subsection (3) of this
section, $400 per month - } { + a monthly benefit equal to 4.35
times 25 percent of the average weekly wage + } shall be paid to
each such child until the child becomes 18 years of age.
{ - However, - }
' { + (b) + } If a child who has become 18 years of age is a
full-time high school student, benefits shall be paid as provided
in subsection { - (10) - } { + (8) + } of this section.
' { + (c) In no event shall the total benefits provided for
in this subsection exceed 4.35 times 66-2/3 percent of the
average weekly wage. If the sum of the individual benefits
exceeds this maximum, the benefit for each child will be reduced
proportionally. + }
' (5) { + (a) + } If the worker leaves { - neither widow,
widower nor child for whom compensation may be paid, but
leaves - } a dependent { + other than a surviving spouse or a
child + }, a monthly payment shall be made to each dependent
equal to 50 percent of the average monthly support actually
received by such dependent from the worker during the 12 months
next preceding the occurrence of the accidental injury { - , but
the total payments to all dependents in any case shall not exceed
$150 per month - } . If a dependent is under the age of 18 years
at the time of the accidental injury, the payment to the
dependent shall cease when such dependent becomes 18 years of
age. { - However, if the dependent who has become 18 years of
age is a full-time high school student, benefits shall be paid as
provided in subsection (10) of this section. - } The payment to
any dependent shall cease under the same circumstances that would
have terminated the dependency had the injury not happened.
' { + (b) If the dependent who has become 18 years of age is
a full-time high school student, benefits shall be paid as
provided in subsection (8) of this section.
' (c) In no event shall the total benefits provided for in this
subsection exceed 4.35 times 10 percent of the average weekly
wage. If the sum of the individual benefits exceeds this maximum,
the benefit for each dependent will be reduced
proportionally. + }
' { - (6) If the worker is under the age of 21 years at the
time of death and leaves neither widow, widower, nor child, the
parents of the worker shall be paid, in a lump sum, an amount
equal to $75 per month from the death of the worker until the
time at which the worker would have become 21 years of age. The
parents, if dependents at the time of the accidental injury, are
entitled thereafter to compensation as dependents under
subsection (5) of this section. - }
SMRA to SB 369 Page 7
' { - (7) If a surviving spouse receiving monthly payments
dies, leaving a child under the age of 18 years who is entitled
to compensation on account of the death of the worker, a monthly
payment of $150 shall be made to each such child until the child
becomes 18 years of age. However, if a child who has become 18
years of age is a full-time high school student, benefits shall
be paid as provided in subsection (10) of this section. - }
' { - (8) - } { + (6) + } If a child is an invalid at the
time the child otherwise becomes ineligible for benefits under
this section, the payment to the child shall continue while the
child remains an invalid. If a person is entitled to payment
because the person is an invalid, payment shall terminate when
the person ceases to be an invalid.
' { - (9) - } { + (7) + } If, at the time of the death of a
worker, the child of the worker or dependent has become 17 years
of age but is under 18 years of age, the child or dependent shall
receive the payment provided in this section for a period of one
year from the date of the death. However, if after such period
the child is a full-time high school student, benefits shall be
paid as provided in subsection { - (10) - } { + (8) + } of
this section.
' { - (10) - } { + (8)(a) + } Benefits under this section
which are to be paid as provided in this subsection shall be paid
for the child or dependent until the child or dependent becomes
19 years of age. If, however, the child or dependent is
{ - enrolled, or enrolls - } { + attending higher education or
begins attending higher education + } within six months of the
date the child { + or dependent + } leaves high school, { - as
a full-time student in an accredited institution of higher
education, a technical institute or an approved on-the-job
training or apprenticeship program, - } benefits shall be paid
until the child or dependent becomes 23 years of age { + , ceases
attending higher education + } or graduates from { - such - }
an { + approved + } institute or program, whichever is earlier.
' { + (b) As used in this subsection, 'attending higher
education' means regularly attending community college, college
or university, or regularly attending a course of vocational or
technical training designed to prepare the participant for
gainful employment. A child or dependent enrolled in an
educational course load of less than one-half of that determined
by the educational facility to constitute 'full-time' enrollment
is not 'attending higher education.' + }
' { + SECTION 5. + } ORS 656.214 is amended to read:
' 656.214. (1) As used in this section:
' (a) 'Loss' includes permanent and complete or partial loss of
use.
' (b) 'Permanent partial disability' means the loss of either
one arm, one hand, one leg, one foot, loss of hearing in one or
both ears, loss of one eye, one or more fingers, or any other
injury known in surgery to be permanent partial disability.
' (2) When permanent partial disability results from an injury,
the criteria for the rating of disability shall be the permanent
loss of use or function of the injured member due to the
industrial injury. { - The worker shall receive $305 for each
degree stated against such disability in subsections (2) to (4)
of this section as follows: - } { + The worker shall receive an
amount equal to 75 percent of the average weekly wage times the
number of degrees stated against the disability as provided in
this subsection and subsections (3) and (4) of this section as
follows: + }
SMRA to SB 369 Page 8
' (a) For the loss of one arm at or above the elbow joint, 192
degrees, or a proportion thereof for losses less than a complete
loss.
' (b) For the loss of one forearm at or above the wrist joint,
or the loss of one hand, 150 degrees, or a proportion thereof for
losses less than a complete loss.
' (c) For the loss of one leg, at or above the knee joint, 150
degrees, or a proportion thereof for losses less than a complete
loss.
' (d) For the loss of one foot, 135 degrees, or a proportion
thereof for losses less than a complete loss.
' (e) For the loss of a great toe, 18 degrees, or a proportion
thereof for losses less than a complete loss; of any other toe,
four degrees, or a proportion thereof for losses less than a
complete loss.
' (f) For partial or complete loss of hearing in one ear, that
percentage of 60 degrees which the loss bears to normal monaural
hearing.
' (g) For partial or complete loss of hearing in both ears,
that proportion of 192 degrees which the combined binaural
hearing loss bears to normal combined binaural hearing. For the
purpose of this paragraph, combined binaural hearing loss shall
be calculated by taking seven times the hearing loss in the less
damaged ear plus the hearing loss in the more damaged ear and
dividing that amount by eight. In the case of individuals with
compensable hearing loss involving both ears, either the method
of calculation for monaural hearing loss or that for combined
binaural hearing loss shall be used, depending upon which allows
the greater award of disability.
' (h) For partial or complete loss of vision of one eye, that
proportion of 100 degrees which the loss of monocular vision
bears to normal monocular vision. For the purposes of this
paragraph, the term 'normal monocular vision' shall be considered
as Snellen 20/20 for distance and Snellen 14/14 for near vision
with full sensory field.
' (i) For partial loss of vision in both eyes, that proportion
of 300 degrees which the combined binocular visual loss bears to
normal combined binocular vision. In all cases of partial loss of
sight, the percentage of said loss shall be measured with maximum
correction. For the purpose of this paragraph, combined binocular
visual loss shall be calculated by taking three times the visual
loss in the less damaged eye plus the visual loss in the more
damaged eye and dividing that amount by four. In the case of
individuals with compensable visual loss involving both eyes,
either the method of calculation for monocular visual loss or
that for combined binocular visual loss shall be used, depending
upon which allows the greater award of disability.
' (j) For the loss of a thumb, 48 degrees, or a proportion
thereof for losses less than a complete loss.
' (k) For the loss of a first finger, 24 degrees, or a
proportion thereof for losses less than a complete loss; of a
second finger, 22 degrees, or a proportion thereof for losses
less than a complete loss; of a third finger, 10 degrees, or a
proportion thereof for losses less than a complete loss; of a
fourth finger, 6 degrees, or a proportion thereof for losses less
than a complete loss.
' (3) The loss of one phalange of a thumb, including the
adjacent epiphyseal region of the proximal phalange, is
considered equal to the loss of one-half of a thumb. The loss of
one phalange of a finger, including the adjacent epiphyseal
SMRA to SB 369 Page 9
region of the middle phalange, is considered equal to the loss of
one-half of a finger. The loss of two phalanges of a finger,
including the adjacent epiphyseal region of the proximal phalange
of a finger, is considered equal to the loss of 75 percent of a
finger. The loss of more than one phalange of a thumb, excluding
the epiphyseal region of the proximal phalange, is considered
equal to the loss of an entire thumb. The loss of more than two
phalanges of a finger, excluding the epiphyseal region of the
proximal phalange of a finger, is considered equal to the loss of
an entire finger. A proportionate loss of use may be allowed for
an uninjured finger or thumb where there has been a loss of
effective opposition.
' (4) A proportionate loss of the hand may be allowed where
disability extends to more than one digit, in lieu of ratings on
the individual digits.
' (5) In all cases of injury resulting in permanent partial
disability, other than those described in subsections (2) to (4)
of this section, the criteria for rating of disability shall be
the permanent loss of earning capacity due to the compensable
injury. Earning capacity is to be calculated using the standards
specified in ORS 656.726 (3)(f). The number of degrees of
disability shall be a maximum of 320 degrees determined by the
extent of the disability compared to the worker before such
injury and without such disability. { - For the purpose of this
subsection, the value of each degree of disability is $100. - }
{ + The benefit amount received by a worker under this
subsection shall be as follows:
' (a) When the number of degrees stated against the disability
as provided in this subsection is equal to or less than 64, 30
percent of the average weekly wage times the number of degrees.
' (b) When the number of degrees stated against the disability
as provided in this subsection is more than 64 but equal to or
less than 160, 30 percent of the average weekly wage times 64
plus 75 percent of the average weekly wage times the number of
degrees in excess of 64.
' (c) When the number of degrees stated against the disability
as provided in this subsection is more than 160, 30 percent of
the average weekly wage times 64 plus 75 percent of the average
weekly wage times 96 plus 150 percent of the average weekly wage
times the number of degrees in excess of 160.
' (6)(a) For the purpose of determining the benefit amount
under this section, as annual changes in the average weekly wage
occur, the amount of the average weekly wage used in calculation
of the benefit amount shall not be more than five percent larger
than the amount used in the previous year.
' (b) As used in this section, 'average weekly wage' has the
meaning for that term provided in ORS 656.211. + }
' { + SECTION 6. + } Section 2, chapter 745, Oregon Laws
1991, is amended to read:
' { + Sec. 2. + } (1) Notwithstanding the method of
calculating permanent partial disability benefit amounts provided
in ORS 656.214 (2), for injuries occurring during the period
beginning January 1, 1992, and ending { - December 31, 1995 - }
{ + June 30, 1995 + }, the worker shall receive an amount equal
to 71 percent of the average weekly wage times the number of
degrees stated against the disability as provided in ORS 656.214
(2) to (4). However, as annual changes in the average weekly wage
occur, the amount of the average weekly wage used in calculation
of the benefit amount pursuant to this subsection shall not be
SMRA to SB 369 Page 10
more than five percent larger than the amount used in the
previous year.
' (2)(a) Notwithstanding the method of calculating permanent
partial disability benefit amounts provided in ORS 656.214 (5),
for injuries occurring during the period beginning January 1,
1992, and ending { - January 1, 1996 - } { + June 30,
1995 + }, the worker shall receive an amount equal to:
' (A) When the number of degrees stated against the disability
as provided in ORS 656.214 (5) is equal to or less than 96, 24
percent of the average weekly wage times the number of degrees.
' (B) When the number of degrees stated against the disability
as provided in ORS 656.214 (5) is more than 96 but equal to or
less than 192, 24 percent of the average weekly wage times 96
plus 28 percent of the average weekly wage times the number of
degrees in excess of 96.
' (C) When the number of degrees stated against the disability
as provided in ORS 656.214 (5) is more than 192, 24 percent of
the average weekly wage times 96 plus 28 percent of the average
weekly wage times 96 plus 71 percent of the average weekly wage
times the number of degrees in excess of 192.
' (b) However, as annual changes in the average weekly wage
occur, the amount of the average weekly wage used in calculation
of the benefit amount pursuant to this subsection shall not be
more than five percent larger than the amount used in the
previous year.
' (3) Benefits referred to in this section shall be paid on the
basis of the benefit amount in effect on the date of injury.
' (4) As used in this section, 'average weekly wage' has the
meaning for that term provided in ORS 656.211.
' { + SECTION 7. + } ORS 656.262 is amended to read:
' 656.262. (1) Processing of claims and providing compensation
for a worker shall be the responsibility of the insurer or
self-insured employer. All employers shall assist their insurers
in processing claims as required in this chapter.
' (2) The compensation due under this chapter shall be paid
periodically, promptly and directly to the person entitled
thereto upon the employer's receiving notice or knowledge of a
claim, except where the right to compensation is denied by the
insurer or self-insured employer.
' (3) Employers shall, immediately and not later than five days
after notice or knowledge of any claims or accidents which may
result in a compensable injury claim, report the same to their
insurer. The report shall include:
' (a) The date, time, cause and nature of the accident and
injuries.
' (b) Whether the accident arose out of and in the course of
employment.
' (c) Whether the employer recommends or opposes acceptance of
the claim, and the reasons therefor.
' (d) The name and address of any health insurance provider for
the injured worker.
' (e) Any other details the insurer may require.
Failure to so report subjects the offending employer to a charge
for reimbursing the insurer for any penalty the insurer is
required to pay under subsection (10) of this section because of
such failure. As used in this subsection, 'health insurance' has
the meaning for that term provided in ORS 731.162.
' (4)(a) The first installment of compensation shall be paid no
later than the 14th day after the subject employer has notice or
SMRA to SB 369 Page 11
knowledge of the claim. Thereafter, compensation shall be paid at
least once each two weeks, except where the director determines
that payment in installments should be made at some other
interval. The director may by rule convert monthly benefit
schedules to weekly or other periodic schedules.
' (b) Temporary disability compensation is not due and payable
for any period of time for which the insurer or self-insured
employer has requested from the worker's attending physician
verification of the worker's inability to work resulting from the
claimed injury or disease and the physician cannot verify the
worker's inability to work, unless the worker has been unable to
receive treatment for reasons beyond the worker's control.
' (c) If a worker fails to appear at an appointment with the
worker's attending physician, the insurer or self-insured
employer shall notify the worker by certified mail that temporary
disability benefits may be suspended after the worker fails to
appear at a rescheduled appointment. If the worker fails to
appear at a rescheduled appointment, the insurer or self-insured
employer may suspend payment of temporary disability benefits to
the worker until the worker appears at a subsequent rescheduled
appointment.
' (d) If the insurer or self-insured employer has requested and
failed to receive from the worker's attending physician
verification of the worker's inability to work resulting from the
claimed injury or disease, medical services provided by the
attending physician are not compensable until the attending
physician submits such verification.
' (5) Payment of compensation under subsection (4) of this
section or payment, in amounts not to exceed $500 per claim, for
medical services for nondisabling claims, may be made by the
subject employer if the employer so chooses. The making of such
payments does not constitute a waiver or transfer of the
insurer's duty to determine entitlement to benefits. If the
employer chooses to make such payment, the employer shall report
the injury to the insurer in the same manner that other injuries
are reported. However, an insurer shall not modify an employer's
experience rating or otherwise make charges against the employer
for any medical expenses paid by the employer pursuant to this
subsection.
' (6) Written notice of acceptance or denial of the claim shall
be furnished to the claimant by the insurer or self-insured
employer within 90 days after the employer has notice or
knowledge of the claim. However, if the insurer or self-insured
employer accepts a claim in good faith but later obtains evidence
that the claim is not compensable or evidence that the paying
agent is not responsible for the claim, the insurer or
self-insured employer, at any time up to two years from the date
of claim acceptance, may revoke the claim acceptance and issue a
formal notice of claim denial. However, if the worker requests a
hearing on such denial, the insurer or self-insured employer must
prove by clear and convincing evidence that the claim is not
compensable or that the paying agent is not responsible for the
claim. Notwithstanding any other provision of this chapter, if a
denial of a previously accepted claim is set aside by a referee
Board or the court, temporary total disability benefits are
payable from the date any such benefits were terminated under the
denial. Pending acceptance or denial of a claim, compensation
payable to a claimant does not include the costs of medical
benefits or burial expenses. The insurer shall also furnish the
SMRA to SB 369 Page 12
employer a copy of the notice of acceptance. The notice of
acceptance shall:
' (a) Specify what conditions are compensable.
' (b) Advise the claimant whether the claim is considered
disabling or nondisabling.
' (c) Inform the claimant of the Expedited Claim Service, of
hearing and aggravation rights concerning nondisabling injuries,
including the right to object to a decision that the injury of
the claimant is nondisabling by requesting a determination
thereon pursuant to ORS 656.268 within one year of the date of
injury.
' (d) Inform the claimant of employment reinstatement rights
and responsibilities under ORS chapter 659.
' (e) Inform the claimant of assistance available to employers
from the Reemployment Assistance Reserve under ORS 656.622.
' (7) The State Accident Insurance Fund Corporation in
processing claims under ORS 656.054 shall send notice of
acceptance or denial to the noncomplying employer.
' (8) If an insurer or any other duly authorized agent of the
employer for such purpose, on record with the Director of the
Department of Consumer and Business Services denies a claim for
compensation, written notice of such denial, stating the reason
for the denial, and informing the worker of the Expedited Claim
Service and of hearing rights under ORS 656.283, shall be given
to the claimant. A copy of the notice of denial shall be mailed
to the director and to the employer by the insurer. The worker
may request a hearing pursuant to ORS 656.319.
' (9) Merely paying or providing compensation shall not be
considered acceptance of a claim or an admission of liability,
nor shall mere acceptance of such compensation be considered a
waiver of the right to question the amount thereof.
' (10)(a) If the insurer or self-insured employer unreasonably
delays or unreasonably refuses to pay compensation, or
unreasonably delays acceptance or denial of a claim, the insurer
or self-insured employer shall be liable for an additional amount
up to 25 percent of the amounts then due. { + If the insurer or
self-insured employer denies a claim and there was substantial
evidence to support the denial at the time the denial was issued,
the insurer or self-insured employer is not subject to the
penalty provided for in this paragraph even if the injury is
later determined to be compensable. + } Notwithstanding any other
provision of this chapter, the director shall have exclusive
jurisdiction over proceedings regarding solely the assessment and
payment of the additional amount described in this subsection.
The entire additional amount shall be paid to the worker if the
worker is not represented by an attorney. If the worker is
represented by an attorney, the worker shall be paid one-half the
additional amount and the worker's attorney shall receive
one-half the additional amount, in lieu of an attorney fee. The
director's action and review thereof shall be subject to ORS
183.310 to 183.550 and such other procedural rules as the
director may prescribe.
' (b) When the director does not have exclusive jurisdiction
over proceedings regarding the assessment and payment of the
additional amount described in this subsection, the provision for
attorney fees provided in this subsection shall apply in the
other proceeding.
' (11) The insurer may authorize an employer to pay
compensation to injured workers and shall reimburse employers for
compensation so paid.
SMRA to SB 369 Page 13
' (12) Insurers and self-insured employers shall report every
claim for disabling injury to the director within 21 days after
the date the employer has notice or knowledge of such injury.
' { + SECTION 8. + } { + Section 9 of this Act is added to
and made a part of ORS chapter 656. + }
' { + SECTION 9. + } { + (1) Surviving spouses without
children, whose entitlement to benefits under ORS 656.204 is
based on an injury before September 20, 1985, shall have their
benefits supplemented from the Retroactive Reserve. The total
benefits payable, comprising the benefits in effect on the date
of injury plus the Retroactive Reserve supplement, shall be equal
to the total benefits payable under the formula prescribed for
surviving spouses without children, whose entitlement to benefits
is based on an injury occurring on September 20, 1985.
' (2) The provisions of this section apply to benefits for
periods beginning on and after the effective date of this 1995
Act. + }
' { + SECTION 10. + } { + 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 July 1,
1995. + } ' .
/sRandy Leonard
Senator
/sBill McCoy
Senator
----------
SMRA to SB 369 Page 14
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