Chapter 274
AN ACT
HB 2244
Relating to permanent partial disability awards in workers’
compensation claims; creating new provisions; and amending ORS 656.206,
656.214, 656.268, 656.307, 656.325, 656.726 and 656.790.
Be It Enacted by the People of
the State of
SECTION 1.
ORS 656.214, as amended by section 2, chapter 657, Oregon Laws 2003, and
section 4, chapter 653, Oregon Laws 2005, is amended to read:
656.214. (1) As used in
this section:
(a) “Impairment”
means the loss of use or function of a body part or system due to the
compensable industrial injury or occupational disease determined in accordance
with the standards provided under ORS 656.726, expressed as a percentage of the
whole person.
[(a)] (b) “Loss” includes permanent and complete or partial
loss of use.
[(b)] (c) “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 $511.29 for each degree stated against such disability in subsections
(2) to (4) of this section as follows:]
(A) Permanent
impairment resulting from the compensable industrial injury or occupational
disease; or
(B) Permanent impairment
and work disability resulting from the compensable industrial injury or
occupational disease.
(d) “Regular work” means
the job the worker held at injury.
(e) “Work disability”
means impairment modified by age, education and adaptability to perform a given
job.
(2) When permanent
partial disability results from a compensable injury or occupational disease,
benefits shall be awarded as follows:
(a) If the worker has
been released to regular work by the attending physician or nurse practitioner
authorized to provide compensable medical services under ORS 656.245 or has
returned to regular work at the job held at the time of injury, the award shall
be for impairment only. Impairment shall be determined in accordance with the
standards provided by the Director of the Department of Consumer and Business
Services pursuant to ORS 656.726 (4). Impairment benefits are determined by
multiplying the impairment value times 100 times the average weekly wage as
defined by ORS 656.005.
(b) If the worker has
not been released to regular work by the attending physician or nurse
practitioner authorized to provide compensable medical services under ORS
656.245 or has not returned to regular work at the job held at the time of
injury, the award shall be for impairment and work disability. Work disability
shall be determined in accordance with the standards provided by the director
pursuant to ORS 656.726 (4). Impairment shall be determined as provided in
paragraph (a) of this subsection. Work disability benefits shall be determined
by multiplying the impairment value, as modified by the factors of age,
education and adaptability to perform a given job, times 150 times the worker’s
weekly wage for the job at injury as calculated under ORS 656.210 (2). The
factor for the worker’s weekly wage used for the determination of the work
disability may be no more than 133 percent or no less than 50 percent of the
average weekly wage as defined in ORS 656.005.
(3) Impairment benefits
awarded under subsection (2)(a) of this section shall be expressed as a
percentage of the whole person. Impairment benefits for the following body
parts may not exceed:
(a) For the loss of one
arm at or above the elbow joint, 60 percent [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, 47 percent
[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, 47 percent [150 degrees, or a proportion thereof for losses less than a complete
loss].
(d) For the loss of one
foot, 42 percent [135 degrees, or
a proportion thereof for losses less than a complete loss].
(e) For the loss of a
great toe, six percent; for loss of any other toe, one percent [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 proportion [percentage] of 19 percent [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] 60 percent 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] impairment.
(h) For partial or
complete loss of vision of one eye, that proportion of [100 degrees] 31 percent 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] 94 percent 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] impairment.
(j) For the loss of a
thumb, [48 degrees, or a portion thereof
for losses less than a complete loss] 15 percent.
(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] eight percent; of a second finger,
seven percent; of a third finger, three percent; of a fourth finger, two
percent.
[(3)] (4) 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 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)] (5) A proportionate loss of the hand may be allowed
where [disability] impairment
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 (4)(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.]
[(6) For injuries for which the disability is determined pursuant to
subsection (5) of this section, the worker shall receive an amount equal to:]
[(a) When the number of degrees stated against the disability is equal
to or less than 64, $153.00 times the number of degrees.]
[(b) When the number of degrees stated against the disability is more
than 64 but equal to or less than 160, $153.00 times 64 plus $267.44 times the
number of degrees in excess of 64.]
[(c) When the number of degrees stated against the disability is more
than 160, $153.00 times 64 plus $267.44 times 96 plus $709.79 times the number
of degrees in excess of 160.]
[(7)] (6) All permanent disability contemplates future waxing
and waning of symptoms of the condition. The results of waxing and waning of
symptoms may include, but are not limited to, loss of earning capacity, periods
of temporary total or temporary partial disability, or inpatient
hospitalization.
SECTION 2.
ORS 656.726, as amended by section 4, chapter 657, Oregon Laws 2003, section
18, chapter 811, Oregon Laws 2003, section 17, chapter 26, Oregon Laws 2005,
and section 2a, chapter 653, Oregon Laws 2005, is amended to read:
656.726. (1) The Workers’
Compensation Board in its name and the Director of the Department of Consumer
and Business Services in the director’s name as director may sue and be sued,
and each shall have a seal.
(2) The board hereby is
charged with reviewing appealed orders of Administrative Law Judges in
controversies concerning a claim arising under this chapter, exercising own
motion jurisdiction under this chapter and providing such policy advice as the
director may request, and providing such other review functions as may be
prescribed by law. To that end any of its members or assistants authorized
thereto by the members shall have power to:
(a) Hold sessions at any
place within the state.
(b) Administer oaths.
(c) Issue and serve by
the board’s representatives, or by any sheriff, subpoenas for the attendance of
witnesses and the production of papers, contracts, books, accounts, documents
and testimony before any hearing under ORS 654.001 to 654.295, 654.750 to
654.780 and this chapter.
(d) Generally provide
for the taking of testimony and for the recording of proceedings.
(3) The board
chairperson is hereby charged with the administration of and responsibility for
the Hearings Division.
(4) The director hereby
is charged with duties of administration, regulation and enforcement of ORS
654.001 to 654.295, 654.750 to 654.780 and this chapter. To that end the
director may:
(a) Make and declare all
rules and issue orders which are reasonably required in the performance of the
director’s duties. Unless otherwise specified by law, all reports, claims or
other documents shall be deemed timely provided to the director or board if
mailed by regular mail or delivered within the time required by law.
Notwithstanding any other provision of this chapter, the director may adopt
rules to allow for the electronic transmission and filing of reports, claims or
other documents required to be filed under this chapter. Notwithstanding ORS
183.310 to 183.410, if a matter comes before the director that is not addressed
by rule and the director finds that adoption of a rule to accommodate the
matter would be inefficient, unreasonable or unnecessarily burdensome to the
public, the director may resolve the matter by issuing an order, subject to
review under ORS 656.704. Such order shall not have precedential effect as to
any other situation.
(b) Hold sessions at any
place within the state.
(c) Administer oaths.
(d) Issue and serve by
representatives of the director, or by any sheriff, subpoenas for the
attendance of witnesses and the production of papers, contracts, books,
accounts, documents and testimony in any inquiry, investigation, proceeding or
rulemaking hearing conducted by the director or the director’s representatives.
The director may require the attendance and testimony of employers, their
officers and representatives in any inquiry under this chapter, and the
production by employers of books, records, papers and documents without the
payment or tender of witness fees on account of such attendance.
(e) Generally provide
for the taking of testimony and for the recording of such proceedings.
(f) Provide standards
for the evaluation of disabilities. The following provisions apply to the
standards:
(A) The [criteria] criterion for
evaluation of [disabilities under ORS
656.214 (5) shall be permanent impairment due to the industrial injury as
modified by the factors of age, education and adaptability to perform a given
job] permanent impairment under ORS 656.214 is the loss of use or
function of a body part or system due to the compensable industrial injury or
occupational disease. Permanent impairment is expressed as a percentage of the
whole person. The impairment value may not exceed 100 percent of the whole
person.
(B) Impairment is
established by a preponderance of medical evidence based upon objective
findings.
(C) The criterion for
evaluation of work disability under ORS 656.214 is permanent impairment as
modified by the factors of age, education and adaptability to perform a given
job.
[(C)] (D) When, upon reconsideration of a notice of closure
pursuant to ORS 656.268, it is found that the worker’s disability is not
addressed by the standards adopted pursuant to this paragraph, notwithstanding
ORS 656.268, the director shall stay further proceedings on the reconsideration
of the claim and shall adopt temporary rules amending the standards to
accommodate the worker’s impairment.
(E) Notwithstanding
any other provision of this section, only impairment benefits shall be awarded
under ORS 656.214 if the worker has been released to regular work by the
attending physician or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 or has returned to regular work at the job
held at the time of injury.
[(D) Notwithstanding any other provision of this section, impairment is
the only factor to be considered in evaluation of the worker’s disability under
ORS 656.214 (5) if:]
[(i) The worker returns to regular work at the job held at the time of
injury;]
[(ii) The attending physician releases the worker to regular work at the
job held at the time of injury and the job is available but the worker fails or
refuses to return to that job; or]
[(iii) The attending physician releases the worker to regular work at
the job held at the time of injury but the worker’s employment is terminated
for cause unrelated to the injury.]
(g) Prescribe procedural
rules for and conduct hearings, investigations and other proceedings pursuant
to ORS 654.001 to 654.295, 654.750 to 654.780 and this chapter regarding all
matters other than those specifically allocated to the board or the Hearings
Division.
(h) Participate fully in
any proceeding before the Hearings Division, board or Court of Appeals in which
the director determines that the proceeding involves a matter that affects or
could affect the discharge of the director’s duties of administration,
regulation and enforcement of ORS 654.001 to 654.295 and 654.750 to 654.780 and
this chapter.
(5) The board may make
and declare all rules which are reasonably required in the performance of its
duties, including but not limited to rules of practice and procedure in
connection with hearing and review proceedings and exercising its authority
under ORS 656.278. The board shall adopt standards governing the format and timing
of the evidence. The standards shall be uniformly followed by all
Administrative Law Judges and practitioners. The rules may provide for informal
prehearing conferences in order to expedite claim adjudication, amicably
dispose of controversies, if possible, narrow issues and simplify the method of
proof at hearings. The rules shall specify who may appear with parties at
prehearing conferences and hearings.
(6) The director and the
board chairperson may incur such expenses as they respectively determine are
reasonably necessary to perform their authorized functions.
(7) The director, the
board chairperson and the State Accident Insurance Fund Corporation shall have
the right, not subject to review, to contract for the exchange of, or payment
for, such services between them as will reduce the overall cost of
administering this chapter.
(8) The director shall
have lien and enforcement powers regarding assessments to be paid by subject
employers in the same manner and to the same extent as is provided for lien and
enforcement of collection of premiums and assessments by the corporation under
ORS 656.552 to 656.566.
(9) The director shall
have the same powers regarding inspection of books, records and payrolls of
employers as are granted the corporation under ORS 656.758. The director may
disclose information obtained from such inspections to the Director of the
Department of Revenue to the extent the Director of the Department of Revenue
requires such information to determine that a person complies with the revenue
and tax laws of this state and to the Director of the Employment Department to
the extent the Director of the Employment Department requires such information
to determine that a person complies with ORS chapter 657.
(10) The director shall
collect hours-worked data information in addition to total payroll for workers
engaged in various jobs in the construction industry classifications described
in the job classification portion of the Workers’ Compensation and Employers
Liability Manual and the Oregon Special Rules Section published by the National
Council on Compensation Insurance. The information shall be collected in the
form and format necessary for the National Council on Compensation Insurance to
analyze premium equity.
SECTION 3.
ORS 656.206, as amended by section 6, chapter 657, Oregon Laws 2003, and
section 2, chapter 461, Oregon Laws 2005, is amended to read:
656.206. (1) As used in
this section:
(a) “Essential functions”
means the primary tasks associated with the job.
(b) “Materially improved
medically” means an actual change for the better in the worker’s medical
condition that is supported by objective findings.
(c) “Materially improved
vocationally” means an actual change for the better in the:
(A) Worker’s vocational
capability; or
(B) Likelihood that the
worker can return to work in a gainful and suitable occupation.
(d) “Permanent total
disability” means, notwithstanding ORS 656.225, the loss, including preexisting
disability, of use or function of any [scheduled
or unscheduled] portion of the body which permanently incapacitates the
worker from regularly performing work at a gainful and suitable occupation.
(e) “Regularly
performing work” means the ability of the worker to discharge the essential
functions of the job.
(f) “Suitable occupation”
means one that the worker has the ability and the training or experience to
perform, or an occupation that the worker is able to perform after
rehabilitation.
(g) “Wages” means wages
as determined under ORS 656.210.
(2) When permanent total
disability results from the injury, the worker shall receive during the period
of that disability compensation benefits equal to 66-2/3 percent of wages not
to exceed 100 percent of the average weekly wage nor less than the amount of 90
percent of wages a week or the amount of $50, whichever amount is lesser.
(3) The worker has the
burden of proving permanent total disability status and must establish that the
worker is willing to seek regular gainful employment and that the worker has
made reasonable efforts to obtain such employment.
(4) When requested by
the Director of the Department of Consumer and Business Services, a worker who
receives permanent total disability benefits shall file on a form provided by
the director, a sworn statement of the worker’s gross annual income for the
preceding year along with such other information as the director considers
necessary to determine whether the worker regularly performs work at a gainful
and suitable occupation.
(5) Each insurer shall
reexamine periodically each permanent total disability claim for which the
insurer has current payment responsibility to determine whether the worker has
materially improved, either medically or vocationally, and is no longer
permanently incapacitated from regularly performing work at a gainful and
suitable occupation. Reexamination shall be conducted every two years or at
such other more frequent interval as the director may prescribe. Reexamination
shall include such medical examinations, vocational evaluations, reports and
other records as the insurer considers necessary or the director may require.
(6)(a) If a worker
receiving permanent total disability benefits is found to be materially
improved and capable of regularly performing work at a gainful and suitable occupation,
the insurer or self-insured employer shall issue a notice of closure pursuant
to ORS 656.268. Permanent total disability benefits shall be paid through the
date of the notice of closure. Notwithstanding ORS 656.268 (5), if a worker
objects to a notice of closure issued under this subsection, the worker must
request a hearing. If the worker requests a hearing on the notice of closure
before the Hearings Division of the Workers’ Compensation Board within 30 days
of the date of the notice of closure, the insurer or self-insured employer
shall continue payment of permanent total disability benefits until an order of
the Hearings Division or a subsequent order affirms the notice of closure or
until another order that terminates the worker’s benefits becomes final. If the
worker requests a hearing on the notice of closure more than 30 days from the
date of the notice of closure but before the 60-day period for requesting a
hearing expires, the insurer or self-insured employer shall resume paying
permanent total disability benefits from the date the hearing is requested and
shall continue payment of benefits until an order of the Hearings Division or a
subsequent order affirms the notice of closure or until another order that
terminates the worker’s benefits becomes final. If the notice of closure is
upheld by the Hearings Division, the insurer or self-insured employer shall be
reimbursed from the Workers’ Benefit Fund for the amount of permanent total
disability benefits paid after the date of the notice of closure issued under
this subsection.
(b) An insurer or
self-insured employer must establish that the condition of a worker who is
receiving permanent total disability benefits has materially improved by a
preponderance of the evidence presented at hearing.
(c) Medical examinations
or vocational evaluations used to support the issuance of a notice of closure
under this subsection must include at least one report in which the author
personally observed the worker.
(d) Notwithstanding
section 54 (3), chapter 2, Oregon Laws 1990, the Hearings Division of the
Workers’ Compensation Board may request the director to order a medical arbiter
examination of an injured worker who has requested a hearing under this
subsection.
(7) A worker who has had
permanent total disability benefits terminated under this section by an order
that has become final is eligible for vocational assistance pursuant to ORS
656.340. Notwithstanding ORS 656.268 (9), if a worker has enrolled in and is
actively engaged in a training program, when vocational assistance provided
under this section ends or the worker ceases to be enrolled and actively
engaged in the training program, the insurer or the self-insured
employer shall determine the extent of disability pursuant to ORS 656.214.
(8) A worker receiving
permanent total disability benefits is required, if requested by the director,
the insurer or the self-insured employer, to submit to a vocational evaluation
at a time reasonably convenient to the worker as may be provided by the rules of
the director. No more than three evaluations may be requested except after
notification to and authorization by the director. If the worker refuses to
submit to or obstructs a vocational evaluation, the rights of the worker to
compensation shall be suspended with the consent of the director until the
evaluation has taken place, and no compensation shall be payable for the period
during which the worker refused to submit to or obstructed the evaluation. The
insurer or self-insured employer shall pay the costs of the evaluation and
related services that are reasonably necessary to allow the worker to attend
the evaluation requested under this subsection. As used in this subsection, “related
services” includes, but is not limited to, wages, child care, travel, meals and
lodging.
(9) Notwithstanding any
other provisions of this chapter, if a worker receiving permanent total
disability incurs a new compensable injury, the worker’s entitlement to
compensation for the new injury shall be limited to medical benefits pursuant
to ORS 656.245 and permanent partial disability benefits for impairment, as
determined in the manner set forth in ORS 656.214 (2).
(10) When a worker
eligible for benefits under this section returns to work, if the combined total
of the worker’s post-injury wages plus permanent total disability benefit
exceeds the worker’s wage at the time of injury, the worker’s permanent total
disability benefit shall be reduced by the amount the worker’s wages plus
statutory permanent total disability benefit exceeds the worker’s wage at
injury.
(11) For purposes of
this section:
(a) A gainful occupation
for workers with a date of injury prior to January 1, 2006, who were:
(A) Employed
continuously for 52 weeks prior to the injury, is an occupation that provides
weekly wages that are the lesser of the most recent federal poverty guidelines
for a family of three that are applicable to Oregon residents and that are
published annually in the Federal Register by the United States Department of
Health and Human Services or 66-2/3 percent of the worker’s average weekly
wages from all employment for the 52 weeks prior to the date of injury.
(B) Not employed
continuously for the 52 weeks prior to the date of injury, but who were
employed for at least four weeks prior to the date of injury, is an occupation
that provides weekly wages that are the lesser of the most recent federal
poverty guidelines for a family of three that are applicable to Oregon
residents and that are published annually in the Federal Register by the United
States Department of Health and Human Services or 66-2/3 percent of the worker’s
average weekly wage from all employment for the 52 weeks prior to the date of
injury based on weeks of actual employment, excluding any extended periods of
unemployment.
(C) Employed for less
than four weeks prior to the date of injury with no other employment during the
52 weeks prior to the date of injury, is an occupation that provides weekly
wages that are the lesser of the most recent federal poverty guidelines for a
family of three that are applicable to Oregon residents and that are published
annually in the Federal Register by the United States Department of Health and
Human Services or 66-2/3 percent of the average weekly wages intended by the
parties at the time of initial hire.
(b) A gainful occupation
for workers with a date of injury on or after January 1, 2006, who were:
(A) Employed
continuously for 52 weeks prior to the injury, is an occupation that provides
weekly wages that are the lesser of the most recent federal poverty guidelines
for a family of three that are applicable to Oregon residents and that are
published annually in the Federal Register by the United States Department of
Health and Human Services or 66-2/3 percent of the worker’s average weekly
wages from all employment for the 52 weeks prior to the date of injury adjusted
by the percentage of change in the applicable federal poverty guidelines for a
family of three from the date of injury to the date of evaluation of the extent
of the worker’s disability.
(B) Not employed
continuously for the 52 weeks prior to the date of injury, but who were
employed for at least four weeks prior to the date of injury, is an occupation
that provides weekly wages that are the lesser of the most recent federal
poverty guidelines for a family of three that are applicable to Oregon
residents and that are published annually in the Federal Register by the United
States Department of Health and Human Services or 66-2/3 percent of the worker’s
average weekly wage from all employment for the 52 weeks prior to the date of
injury based on weeks of actual employment, excluding any extended periods of
unemployment and as adjusted by the percentage of change in the applicable
federal poverty guidelines for a family of three from the date of injury to the
date of evaluation of the extent of the worker’s disability.
(C) Employed for less
than four weeks prior to the date of injury with no other employment during the
52 weeks prior to the date of injury, is an occupation that provides weekly
wages that are the lesser of the most recent federal poverty guidelines for a
family of three that are applicable to Oregon residents and that are published
annually in the Federal Register by the United States Department of Health and
Human Services or 66-2/3 percent of the average weekly wages intended by the
parties at the time of initial hire adjusted by the percentage of change in the
applicable federal poverty guidelines for a family of three from the date of
injury to the date of evaluation of the extent of the worker’s disability.
SECTION 4.
ORS 656.268, as amended by section 8, chapter 657, Oregon Laws 2003, section
12, chapter 811, Oregon Laws 2003, section 2, chapter 221, Oregon Laws 2005,
section 4, chapter 461, Oregon Laws 2005, and section 2, chapter 569, Oregon
Laws 2005, 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. The insurer or self-insured employer shall close the worker’s claim, as
prescribed by the Director of the Department of Consumer and Business Services,
and determine the extent of the worker’s permanent disability, provided the
worker is not enrolled and actively engaged in training according to rules
adopted by the director pursuant to ORS 656.340 and 656.726, when:
(a) The worker has
become medically stationary and there is sufficient information to determine
permanent [impairment] disability;
(b) The accepted injury
is no longer the major contributing cause of the worker’s combined or
consequential condition or conditions pursuant to ORS 656.005 (7). When the
claim is closed because the accepted injury is no longer the major contributing
cause of the worker’s combined or consequential condition or conditions, and
there is sufficient information to determine permanent [impairment] disability, the likely [impairment and adaptability] permanent disability that would
have been due to the current accepted condition shall be estimated;
(c) Without the approval
of the attending physician, the worker fails to seek medical treatment for a
period of 30 days or the worker fails to attend a closing examination, unless
the worker affirmatively establishes that such failure is attributable to
reasons beyond the worker’s control; or
(d) An insurer or
self-insured employer finds that a worker who has been receiving permanent
total disability benefits has materially improved and is capable of regularly
performing work at a gainful and suitable occupation.
(2) If the worker is
enrolled and actively engaged in training according to rules adopted pursuant
to ORS 656.340 and 656.726, the temporary disability compensation shall be
proportionately reduced by any sums earned during the training.
(3) A copy of all
medical reports and reports of vocational rehabilitation agencies or counselors
shall be furnished to the worker, if requested by the worker.
(4) 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 advises the worker and documents in writing that the worker is
released to return to regular employment;
(c) The attending
physician advises the worker and documents in writing that the worker is
released to return to modified employment, such employment is offered in
writing to the worker and the worker fails to begin such employment. However,
an offer of modified employment may be refused by the worker without the
termination of temporary total disability benefits if the offer:
(A) Requires a commute
that is beyond the physical capacity of the worker according to the worker’s
attending physician;
(B) Is at a work site
more than 50 miles one way from where the worker was injured unless the site is
less than 50 miles from the worker’s residence or the intent of the parties at
the time of hire or as established by the pattern of employment prior to the
injury was that the employer had multiple or mobile work sites and the worker
could be assigned to any such site;
(C) Is not with the
employer at injury;
(D) Is not at a work
site of the employer at injury;
(E) Is not consistent
with the existing written shift change policy or is not consistent with common
practice of the employer at injury or aggravation; or
(F) Is not consistent
with an existing shift change provision of an applicable collective bargaining
agreement; or
(d) Any other event that
causes temporary disability benefits to be lawfully suspended, withheld or
terminated under ORS 656.262 (4) or other provisions of this chapter.
(5)(a) 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 director. The insurer or self-insured employer shall issue a
notice of closure of such a claim to the worker, to the worker’s attorney if
the worker is represented, and to the director. The notice must inform:
(A) The parties, in
boldfaced type, of the proper manner in which to proceed if they are
dissatisfied with the terms of the notice;
(B) The worker of the
amount of any further compensation, including permanent disability compensation
to be awarded; of the duration of temporary total or temporary partial
disability compensation; of the right of the worker to request reconsideration
by the director under this section within 60 days of the date of the notice of
claim closure; of the right of the insurer or self-insured employer to request
reconsideration by the director under this section within seven days of the
date of the notice of claim closure; of the aggravation rights; and of such
other information as the director may require; and
(C) Any beneficiaries of
death benefits to which they may be entitled pursuant to ORS 656.204 and
656.208.
(b) If 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,
the insurer or self-insured employer shall issue a notice of closure if the
requirements of this section have been met or a notice of refusal to close if
the requirements of this section have not been met. 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.
(c) If a worker, insurer
or self-insured employer objects to the notice of closure, the objecting party
first must request reconsideration by the director under this section. A worker’s
request for reconsideration must be made within 60 days of the date of the
notice of closure. A request for reconsideration by an insurer or self-insured
employer may be based only on disagreement with the findings used to rate
impairment and must be made within seven days of the date of the notice of
closure.
(d) If an insurer or
self-insured employer has closed a claim or refused to close a claim pursuant
to this section, 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.
(e) If, upon
reconsideration of a claim closed by an insurer or self-insured employer, the
director orders an increase by 25 percent or more of the amount of compensation
to be paid to the worker for [either a
scheduled or unscheduled] 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. If the increase in compensation results from information that the
insurer or self-insured employer demonstrates the insurer or self-insured
employer could not reasonably have known at the time of claim closure, from new
information obtained through a medical arbiter examination or from the adoption
of a temporary emergency rule, the penalty shall not be assessed.
(6)(a) Notwithstanding
any other provision of law, only one reconsideration proceeding may be held on
each notice of closure. At the reconsideration proceeding:
(A) A deposition
arranged by the worker, limited to the testimony and cross-examination of the
worker about the worker’s condition at the time of claim closure, shall become
part of the reconsideration record. The deposition must be conducted subject to
the opportunity for cross-examination by the insurer or self-insured employer
and in accordance with rules adopted by the director. The cost of the court
reporter and one original of the transcript of the deposition for the
Department of Consumer and Business Services and one copy of the transcript of
the deposition for each party shall be paid by the insurer or self-insured
employer. The reconsideration proceeding may not be postponed to receive a
deposition taken under this subparagraph. A deposition taken in accordance with
this subparagraph may be received as evidence at a hearing even if the
deposition is not prepared in time for use in the reconsideration proceeding.
(B) Pursuant to rules
adopted by the director, 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 attending physician
at the time of claim closure.
(C) If the director
determines that a claim was not closed in accordance with subsection (1) of
this section, the director may rescind the closure.
(b) If necessary, the
director may require additional medical or other information with respect to
the claims and may postpone the reconsideration for not more than 60 additional
calendar days.
(c) In any
reconsideration proceeding under this section in which the worker was
represented by an attorney, the director 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.
(d) The reconsideration
proceeding shall be completed within 18 working days from the date the
reconsideration proceeding begins, 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 the reconsideration proceeding begins, or within 18 working days plus
the additional 60 calendar days where a notice for medical arbiter review was
timely mailed or the director postponed the reconsideration pursuant to
paragraph (b) of this subsection, or within such additional time as provided in
subsection (7) of this section when reconsideration is postponed further
because the worker has failed to cooperate in the medical arbiter examination,
reconsideration shall be deemed denied and any further proceedings shall occur
as though an order on reconsideration affirming the notice of closure was
mailed on the date the order was due to issue.
(e) The period for
completing the reconsideration proceeding described in paragraph (d) of this
subsection begins upon receipt by the director of a worker’s request for
reconsideration pursuant to subsection (5)(c) of this section. If the insurer
or self-insured employer requests reconsideration, the period for
reconsideration begins upon the earlier of the date of the request for
reconsideration by the worker, the date of receipt of a waiver from the worker
of the right to request reconsideration or the date of expiration of the right
of the worker to request reconsideration. If a party elects not to file a
separate request for reconsideration, the party does not waive the right to
fully participate in the reconsideration proceeding, including the right to
proceed with the reconsideration if the initiating party withdraws the request
for reconsideration.
(f) 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.
(g) If any party objects
to the reconsideration order, the party may request a hearing under ORS 656.283
within 30 days from the date of the reconsideration order.
(7)(a) If the basis for
objection to a notice of closure 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) If neither party
requests a medical arbiter and the director determines that insufficient
medical information is available to determine disability, the director may
refer the claim to a medical arbiter appointed by the director.
(c) At the request of
either of the parties, a panel of three medical arbiters shall be appointed.
(d) The arbiter, or
panel of 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.
(e)(A) 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.
(B) If the director
determines that the worker failed to attend the examination without good cause
or failed to cooperate with the medical arbiter, or panel of medical arbiters,
the director shall postpone the reconsideration proceedings for up to 60 days from
the date of the determination that the worker failed to attend or cooperate,
and shall suspend all disability benefits resulting from this or any prior
opening of the claim until such time as the worker attends and cooperates with
the examination or the request for reconsideration is withdrawn. Any additional
evidence regarding good cause must be submitted prior to the conclusion of the
60-day postponement period.
(C) At the conclusion of
the 60-day postponement period, if the worker has not attended and cooperated
with a medical arbiter examination or established good cause, there shall be no
further opportunity for the worker to attend a medical arbiter examination for
this claim closure. The reconsideration record shall be closed, and the
director shall issue an order on reconsideration based upon the existing
record.
(D) All disability
benefits suspended pursuant to this subsection, including all disability
benefits awarded in the order on reconsideration, or by an Administrative Law
Judge, the Workers’ Compensation Board or upon court review, shall not be due
and payable to the worker.
(f) 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.
(g) The findings of the
medical arbiter or panel of medical arbiters shall be submitted to the director
for reconsideration of the notice of closure.
(h) After
reconsideration, no subsequent medical evidence of the worker’s impairment is
admissible before the director, the Workers’ Compensation Board or the courts
for purposes of making findings of impairment on the claim closure.
(i)(A) When the basis
for objection to a notice of closure issued under this section is a
disagreement with the impairment used in rating the worker’s disability, and
the director determines that the worker is not medically stationary at the time
of the reconsideration or that the closure was not made pursuant to this
section, the director is not required to appoint a medical arbiter prior to the
completion of the reconsideration proceeding.
(B) If the worker’s
condition has substantially changed since the notice of closure, upon the
consent of all the parties to the claim, the director shall postpone the
proceeding until the worker’s condition is appropriate for claim closure under
subsection (1) of this section.
(8) No hearing shall be
held on any issue that was not raised and preserved before the director at
reconsideration. However, issues arising out of the reconsideration order may
be addressed and resolved at hearing.
(9) If, after the 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 for work disability
under the closure shall be suspended, and the worker shall receive temporary
disability compensation and any permanent disability payments due for
impairment 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 insurer or self-insured employer shall again close the claim
pursuant to this section if the worker is medically stationary or if the worker’s
accepted injury is no longer the major contributing cause of the worker’s
combined or consequential condition or conditions pursuant to ORS 656.005 (7).
The closure shall include the duration of temporary total or temporary partial
disability compensation. Permanent disability compensation shall be
redetermined for [unscheduled] work
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 shall again close the claim. This notice
of closure may be appealed only in the same manner as are other notices of
closure under this section.
(10) 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.
(11) Any notice of
closure made under this section may include necessary adjustments in
compensation paid or payable prior to the notice of closure, including
disallowance of permanent disability payments prematurely made, crediting
temporary disability payments against current or future permanent or temporary
disability awards or payments and requiring the payment of temporary disability
payments which were payable but not paid.
(12) 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 from that insurer or self-insured employer
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 director.
(13)(a) An insurer or
self-insured employer may offset any compensation payable to the worker to
recover an overpayment from a claim with the same insurer or self-insured
employer. When overpayments are recovered from temporary disability or
permanent total disability benefits, the amount recovered from each payment
shall not exceed 25 percent of the payment, without prior authorization from the
worker.
(b) An insurer or
self-insured employer may suspend and offset any compensation payable to the
beneficiary of the worker, and recover an overpayment of permanent total
disability benefits caused by the failure of the worker’s beneficiaries to notify
the insurer or self-insured employer about the death of the worker.
(14) Conditions that are
direct medical sequelae to the original accepted condition shall be included in
rating permanent disability of the claim unless they have been specifically
denied.
SECTION 5.
ORS 656.307, as amended by section 10, chapter 657, Oregon Laws 2003, is
amended to read:
656.307. (1)(a) Where
there is an issue regarding:
(A) Which of several
subject employers is the true employer of a claimant worker;
(B) Which of more than
one insurer of a certain employer is responsible for payment of compensation to
a worker;
(C) Responsibility
between two or more employers or their insurers involving payment of
compensation for one or more accidental injuries; or
(D) Joint employment by
two or more employers,
the Director of the Department of Consumer and Business Services shall,
by order, designate who shall pay the claim, if the employers and insurers
admit that the claim is otherwise compensable. Payments shall begin in any
event as provided in ORS 656.262 (4).
(b) At the time of claim
closure, all parties to an order issued pursuant to paragraph (a) of this
subsection shall have reconsideration and appeal rights.
(2) The director then
shall request the Workers’ Compensation Board chairperson to appoint an
Administrative Law Judge to determine the responsible paying party. The
proceedings shall be conducted in the same manner as any other hearing and any
further appeal shall be conducted pursuant to ORS 656.295 and 656.298.
(3) When a determination
of the responsible paying party has been made, the director shall direct any
necessary monetary adjustment between the parties involved. Any monetary
adjustment not reimbursed by an insurer or self-insured employer shall be
recovered from the Consumer and Business Services Fund. Any stipulation or
agreement under subsection (6) of this section shall not obligate the Consumer
and Business Services Fund for reimbursement without prior approval of the
Director of the Department of Consumer and Business Services.
(4) No self-insured
employer or an insurer shall be joined in any proceeding under this section
regarding its responsibility for any claim subject to ORS 656.273 unless the
issue is entitled to hearing on application of the worker.
(5) The claimant shall
be joined in any proceeding under this section as a necessary party, but may
elect to be treated as a nominal party. If the claimant appears at any such
proceeding and actively and meaningfully participates through an attorney, the
Administrative Law Judge may require that a reasonable fee for the claimant’s
attorney be paid by the employer or insurer determined by the Administrative
Law Judge to be the party responsible for paying the claim.
(6)(a) Notwithstanding
subsection (2) of this section, parties to a responsibility proceeding under
this section may agree to resolution of the dispute by mediation or arbitration
by a private party. Any settlement stipulation, arbitration decision or other
resolution of matters in dispute resulting from mediation or arbitration
proceedings shall be filed with the Hearings Division and shall be given the
same force and effect as an order of an Administrative Law Judge made pursuant
to subsection (2) of this section. However, any such settlement stipulation,
arbitration decision or other resolution is binding on the parties and is not
subject to review by the director, an Administrative Law Judge, the board or
any court or other administrative body, unless required pursuant to paragraph
(d) of this subsection or subsection (3) of this section.
(b) For purposes of this
subsection, mediation is a process of discussion and negotiation, with the
mediator playing a central role in seeking a consensus among the parties. Such
consensus may be reflected in a final mediation settlement stipulation, signed
by all the parties and fully binding upon the parties with the same effect as a
final order of an Administrative Law Judge, when the signed mediation
settlement stipulation is filed with the Hearings Division of the Workers’
Compensation Board.
(c) For purposes of this
subsection, arbitration is an agreement to submit the matter to a binding
decision by an arbitrator, through a process mutually agreed upon in advance.
Once all the parties have agreed in writing to proceed with arbitration, no
party may withdraw from the arbitration process except as provided in the
written arbitration agreement.
(d) A mediation
settlement stipulation may include matters beyond the responsibility issues. If
other matters are included, the settlement agreement shall be submitted to the
Hearings Division of the Workers’ Compensation Board for review and approval,
under this chapter, as to such additional matters beyond the responsibility
issues.
(e) Any arbitration
decision shall be limited to a decision as to responsibility and, where
appropriate, the payment of associated costs and attorney fees. The arbitrator’s
decision shall have the same effect as a final order of an Administrative Law
Judge when the signed decision is filed with the Hearings Division.
(f) When the parties
have reported to the Hearings Division that they have agreed upon a mediation
or arbitration process, the hearing shall be deferred for 90 days to allow the
mediation or arbitration process to occur. Once 90 days have passed, the matter
shall again be docketed for hearing unless the parties advise the Hearings
Division in writing that progress has been made and request an extension of
time of up to 90 days, which extension of time shall be granted as a matter of
right. Once the second 90 days have passed, the matter shall again be docketed
for hearing, and the hearing shall proceed before an Administrative Law Judge
as though there had been no mediation or arbitration process, unless the parties
present a mediation settlement stipulation or signed arbitration decision
before the hearing begins.
(g) All parties must
agree in writing to pursue mediation or arbitration and must agree upon the
selection of the mediator or arbitrator. The mediator or arbitrator shall not
be an employee of any insurer or self-insured employer that is a party to the
proceedings. The mediator or arbitrator must be an attorney admitted to
practice law in the State of
(h) If the claimant is
represented by an attorney, the other parties must arrange for payment of a reasonable
attorney fee for the claimant’s attorney’s services during the mediation or
arbitration. Any mediation or arbitration agreement shall specify the terms of
the fee arrangement.
(i) If the claimant is
not represented by an attorney, the mediation process cannot include any issue
other than responsibility. A nonrepresented claimant must be advised in writing
of the following before the mediation or arbitration proceeds:
(A) The claimant’s right
to refuse to participate in mediation or arbitration proceedings and to,
instead, proceed to a hearing before an Administrative Law Judge;
(B) The present rate of
temporary total disability benefits for each alleged date of injury;
(C) The present rate of
[unscheduled and scheduled] permanent
partial disability benefits for each alleged date of injury;
(D) The estimated date
of expiration of aggravation rights for each alleged date of injury; and
(E) The claimant’s right
to be represented by counsel of the claimant’s choice at no expense to the
claimant.
(j) Notwithstanding any
other provision of law, any insurer or self-insured employer may be represented
by a certified claims examiner rather than by an attorney in any mediation or
arbitration hereunder. Any separate insured for the same insurer shall be represented
by a separate claims examiner, if the insured has a continuing financial
exposure as to the claim; where no continuing financial exposure exists, a
single certified claims examiner may represent more than one insured for the
same insurer in the mediation or arbitration proceeding.
(k) Any other procedures
as to mediation or arbitration shall be subject to agreement among the parties.
The Workers’ Compensation Board may adopt rules as to the process for deferral
and docketing of hearings where mediation or arbitration occurs, the filing of
arbitration decisions as orders of the Hearings Division, the filing of
mediation settlement stipulations regarding responsibility as orders of the
Hearings Division, and review and approval of mediation settlement stipulations
that extend beyond the issues of responsibility and associated attorney fees
and costs. The Workers’ Compensation Board shall not enact rules that restrict
the mediation or arbitration process except to the extent provided within this
section.
SECTION 6.
ORS 656.325, as amended by section 12, chapter 657, Oregon Laws 2003, section
14, chapter 811, Oregon Laws 2003, and section 2, chapter 675, Oregon Laws
2005, is amended to read:
656.325. (1)(a) Any
worker entitled to receive compensation under this chapter is required, if
requested by the Director of the Department of Consumer and Business Services,
the insurer or self-insured employer, to submit to a medical examination at a
time reasonably convenient for the worker as may be provided by the rules of
the director. No more than three independent medical examinations may be
requested except after notification to and authorization by the director. If
the worker refuses to submit to any such examination, or obstructs the same,
the rights of the worker to compensation shall be suspended with the consent of
the director until the examination has taken place, and no compensation shall
be payable during or for account of such period. The provisions of this
paragraph are subject to the limitations on medical examinations provided in
ORS 656.268.
(b) When a worker is
requested by the director, the insurer or self-insured employer to attend an
independent medical examination, the examination must be conducted by a
physician selected from a list of qualified physicians established by the
director under ORS 656.328.
(c) The director shall
adopt rules applicable to independent medical examinations conducted pursuant
to paragraph (a) of this subsection that:
(A) Provide a worker the
opportunity to request review by the director of the reasonableness of the
location selected for an independent medical examination. Upon receipt
of the request for review, the director shall conduct an expedited review of
the location selected for the independent medical examination and issue an
order on the reasonableness of the location of the examination. The director
shall determine if there is substantial evidence for the objection to the
location for the independent medical examination based on a conclusion that the
required travel is medically contraindicated or other good cause establishing
that the required travel is unreasonable. The determinations of the director
about the location of independent medical examinations are not subject to
review.
(B) Impose a monetary
penalty against a worker who fails to attend an independent medical examination
without prior notification or without justification for not attending the
examination. A penalty imposed under this subparagraph may be imposed only on a
worker who is not receiving temporary disability benefits under ORS 656.210 or
656.212. An insurer or self-insured employer may offset any future compensation
payable to the worker to recover any penalty imposed under this subparagraph
from a claim with the same insurer or self-insured employer. When a penalty is
recovered from temporary disability or permanent total disability benefits, the
amount recovered from each payment may not exceed 25 percent of the benefit
payment without prior authorization from the worker.
(C) Impose a sanction
against a medical service provider that unreasonably fails to provide in a
timely manner diagnostic records required for an independent medical
examination.
(d) Notwithstanding ORS
656.262 (6), if the director determines that the location selected for an
independent medical examination is unreasonable, the insurer or self-insured
employer shall accept or deny the claim within 90 days after the employer has
notice or knowledge of the claim.
(e) If the worker has
made a timely request for a hearing on a denial of compensability as required
by ORS 656.319 (1)(a) that is based on one or more reports of examinations
conducted pursuant to paragraph (a) of this subsection and the worker’s
attending physician does not concur with the report or reports, the worker may
request an examination to be conducted by a physician selected by the director
from the list described in ORS 656.328. The cost of the examination and the
examination report shall be paid by the insurer or self-insured employer.
(f) The insurer or
self-insured employer shall pay the costs of the medical examination and
related services which are reasonably necessary to allow the worker to submit
to any examination requested under this section. As used in this paragraph, “related
services” includes, but is not limited to, child care, travel, meals, lodging
and an amount equivalent to the worker’s net lost wages for the period during
which the worker is absent if the worker does not receive benefits pursuant to
ORS 656.210 (4) during the period of absence. A claim for “related services”
described in this paragraph shall be made in the manner prescribed by the
director.
(g) A worker who objects
to the location of an independent medical examination must request review by
the director under paragraph (c)(A) of this subsection within six business days
of the date the notice of the independent medical examination was mailed.
(2) For any period of
time during which any worker commits insanitary or injurious practices which
tend to either imperil or retard recovery of the worker, or refuses to submit
to such medical or surgical treatment as is reasonably essential to promote
recovery, or fails to participate in a program of physical rehabilitation, the
right of the worker to compensation shall be suspended with the consent of the
director and no payment shall be made for such period. The period during which
such worker would otherwise be entitled to compensation may be reduced with the
consent of the director to such an extent as the disability has been increased
by such refusal.
(3) A worker who has
received an award for [unscheduled]
permanent total or [unscheduled] permanent
partial disability should be encouraged to make a reasonable effort to reduce
the disability; and the award shall be subject to periodic examination and
adjustment in conformity with ORS 656.268.
(4) When the employer of
an injured worker, or the employer’s insurer determines that the injured worker
has failed to follow medical advice from the attending physician or has failed
to participate in or complete physical restoration or vocational rehabilitation
programs prescribed for the worker pursuant to this chapter, the employer or
insurer may petition the director for reduction of any benefits awarded the
worker. Notwithstanding any other provision of this chapter, if the director
finds that the worker has failed to accept treatment as provided in this
subsection, the director may reduce any benefits awarded the worker by such
amount as the director considers appropriate.
(5)(a) Except as
provided by ORS 656.268 (4)(c) and (10), an insurer or self-insured employer
shall cease making payments pursuant to ORS 656.210 and shall commence making
payment of such amounts as are due pursuant to ORS 656.212 when an injured
worker refuses wage earning employment prior to claim determination and the
worker’s attending physician, after being notified by the employer of the
specific duties to be performed by the injured worker, agrees that the injured
worker is capable of performing the employment offered.
(b) If the worker has
been terminated for violation of work rules or other disciplinary reasons, the
insurer or self-insured employer shall cease payments pursuant to ORS 656.210
and commence payments pursuant to ORS 656.212 when the attending physician
approves employment in a modified job that would have been offered to the
worker if the worker had remained employed, provided that the employer has a
written policy of offering modified work to injured workers.
(c) If the worker is a
person present in the
(6) Any party may
request a hearing on any dispute under this section pursuant to ORS 656.283.
SECTION 7.
ORS 656.790 is amended to read:
656.790. (1) The
Governor shall appoint a Workers’ Compensation Management-Labor Advisory
Committee composed of 10 appointed members. Five members from organized labor
shall represent subject workers and five members shall represent subject
employers. In addition to the appointed members, the Director of the Department
of Consumer and Business Services shall serve ex officio as a member of the
committee. The appointment of members of the committee is subject to
confirmation by the Senate in the manner prescribed in ORS 171.562 and 171.565.
(2) The director may
recommend areas of the law which the director desires to have studied or the
committee may study such aspects of the law as the committee shall determine
require their consideration. The committee [periodically]
shall biennially review the standards for evaluation of permanent
disability adopted under ORS 656.726 and shall recommend to the director
factors to be included or such other modification of application of the
standards as the committee considers appropriate. The committee shall
biennially review and make recommendations about permanent partial disability
benefits. The committee shall advise the director regarding any proposed
changes in the operation of programs funded by the Workers’ Benefit Fund. The
committee shall report its findings to the director for such action as the
director deems appropriate.
(3) The committee shall
report to the Legislative Assembly such findings and recommendations as the
committee considers appropriate, including a report on the following matters:
(a) Decisions of the
Supreme Court and Court of Appeals that have significant impact on the workers’
compensation system.
(b) Adequacy of workers’
compensation benefits.
(c) Medical and legal
system costs.
(d) Adequacy of
assessments for reserve programs and administrative costs.
(e) The operation of
programs funded by the Workers’ Benefit Fund.
(4) The members of the
committee shall be appointed for a term of two years and shall serve without
compensation, but shall be entitled to travel expenses. The committee may hire,
subject to approval of the director, such experts as it may require to
discharge its duties. All expenses of the committee shall be paid out of the
Consumer and Business Services Fund.
SECTION 8. The
amendments to ORS 656.206, 656.214, 656.268, 656.307, 656.325 and 656.726 by
sections 1 to 6 of this 2007 Act apply to injuries occurring on or after
January 1, 2008.
Approved by the Governor June 1, 2007
Filed in the office of Secretary of State June 1, 2007
Effective date January 1, 2008
__________