Andrew Evenson

Oregon Workers’ Compensation Board now administering hearings and mediations via “Zoom” platform

Since April, under Governor Brown’s “Stay home, Save lives” Executive Orders, the Workers’ Compensation Board (WCB) hearings divisions have not administered any in-person hearings or mediations. Quite obviously, this development and ongoing complication has presented many hurdles for all parties seeking to obtain expeditious resolutions to litigated claims and issues. As you may have experienced, many, if not most, hearings were postponed over the last six months, especially when the credibility of live witness testimony was relevant to the litigated issue(s). All hearings have been handled either telephonically, or in writing “on the record’ (i.e., without testimony). Last week, the WCB announced that it is officially rolling out a new videoconferencing platform, via Zoom for Government, so that hearings and… Continue reading

Oregon Employee Injured While Working from Home? Best Practices to Determine Compensability

With the onset of COVID-19 and statewide stay-at-home orders, a high percentage of today’s workforce is operating from home, or in some variation of remote setup. Even as employees begin to return to a more traditional work setting, it is reasonable to anticipate that the pandemic-related response will have long-term effects on where and how some employers allow their employees to work. So, with the rise in remote workers will likely come a rise in remote workplace injuries. How do you respond? In Oregon the general rule is injuries occurring “in the course of” and “arising out of” employment are compensable. That remains the case for injuries occurring remotely, if the worker is within the course and scope of his… Continue reading

Oregon Supreme Court rules that medical services for conditions caused in material part by the work injury incident, not just accepted conditions, are compensable

In a much-awaited decision, the Oregon Supreme Court recently ruled in Garcia-Solis v. Farmers Ins. Co., 365 Or 26 (2019) that medical services for conditions caused in material part by the work injury incident, not just accepted conditions, are compensable under ORS 656.245(1)(a). In relevant part, ORS 656.245(1)(a) states that “For every compensable injury, the insurer or the self-insured employer shall cause to be provided medical services for conditions caused in material part by the injury for such period as the nature of the injury or the process of the recovery requires.” This case involves a 2009 work injury, in which a food server sustained bodily injuries. Over the next two years, the insurer accepted numerous musculoskeletal conditions. In 2012,… Continue reading

Oregon Workers’ Compensation Division announces new administrative rules in response to Brown v. SAIF

On March 30, 2017, the Oregon Supreme Court issued a much-awaited decision in Brown v. SAIF Corporation, 361 Or 241 (2017), ruling that the term “compensable injury” shall be interpreted to mean only the medical conditions accepted by the insurer or self-insured employer. Since then, however, there has been some uncertainty regarding how and when the Workers’ Compensation Division (WCD) would permanently incorporate the Brown ruling into the Oregon Administrative Rules (OAR), Chapter 436. On September 8, 2017, the WCD announced and posted its final amendments to the following Divisions: OAR 436-010, Medical Services; OAR 436-030, Claim Closure and Reconsideration; and OAR 436-035, Disability Rating Standards. The permanent rules are effective October 8, 2017. As expected, the predominant change in… Continue reading

What can Brown do for you? In a long-awaited decision, the Oregon Supreme Court reverses Brown v. SAIF

It has been almost three years since the Oregon Court of Appeals issued its decision in Brown v. SAIF, 262 Or App 640 (2014), finding that a “compensable work injury” referred to the injurious incident and all the conditions that flowed from it, accepted or not. The case was appealed to the Oregon Supreme Court, which issued its decision on March 30, 2017, reversing the Court of Appeals’ decision and affirming the Workers’ Compensation Board decision. In a lengthy opinion, the Supreme Court ruled that the term “compensable injury” shall be interpreted to mean only the medical conditions accepted by the insurer or self-insured employer. This case involved a combined condition denial. The claim was accepted for a lumbar strain… Continue reading

“Good cause” for untimely injury filing does not require medical evidence

Evenson, Andrew_167x222Under ORS 656.265, notice of an accident resulting in an injury must be given immediately by the worker, but not later than 90 days after the accident. Failure to give notice of a workplace incident bars an injury claim unless the employer already had knowledge of the injury or death; the worker died within 180 days of the date of injury; or the worker can establish “good cause” for failure to give notice within 90 days after the alleged incident. The Court of Appeals of Oregon recently ruled in Dalia R. Lopez v. SAIF, 505 Or. App. 679 (2016), that a “good cause” showing for untimely injury filing does not require medical evidence. In this case, claimant’s regular work activities… Continue reading

When is an injury sustained in an employer-controlled parking lot NOT compensable?

Evenson, Andrew_167x222As a general rule, injuries sustained by employees when going to and coming from their regular workplace are not deemed to arise out of and in the course of their employment. SAIF v. Reel, 303 Or 210, 216 (1987). One exception is the “parking lot rule.” This rule states that if an injury occurs in a parking lot or other off-premises area over which the employer has some control, the injury may be compensable. Boyd v. SAIF, 115 Or App 241, 243 (1992). The Oregon Supreme Court held in Norpac Foods v. Gilmore, 318 Or 363 (1994), an injury occurring in an employer’s parking lot is not necessarily compensable, as is often the knee-jerk reaction. It explained that the parking… Continue reading

Portland passes new “ban the box” ordinance

Evenson, Andrew_167x222Last month, the Portland City Council unanimously approved a more stringent “ban the box” ordinance than its State counterpart. The Portland ordinance is designed to provide job applicants with criminal histories a better opportunity at employment by protecting them from having to discuss or disclose their criminal background during the interview process. Notably, it disallows employers from inquiring into or accessing an applicant’s criminal background prior to making a conditional offer of employment. The State law, which passed under House Bill 3025 during the 2015 legislative session and goes into effect on January 1, allows employers to ask about an applicant’s criminal history during the interview phase. The city ordinance still permits Portland employers to condition a job offer on… Continue reading

2015 Legislative Update: Changes in Oregon Workers’ Compensation

Evenson, Andrew_167x222A couple of weeks ago, I presented a legislative update related to Oregon employment law and what effects new legislation has on your employment policy both now and in the new year. The 2015 legislative session also included the passage of numerous bills affecting Oregon workers’ compensation law. Among others, Senate Bill 371, House Bill 2797, House Bill 3114, and House Bill 2764 made a splash within the Oregon workers’ compensation community. Senate Bill 371, which became effective May 21, 2015, amended ORS 656.268. It requires that, if a worker is deceased at the time of claim closure, the Notice of Closure be mailed to the estate of the worker at the worker’s last known address and… Continue reading

2015 Legislative Update: What’s New for Oregon Employers

Evenson, Andrew_167x222 The 2015 Oregon State Legislative session included the passage of several bills affecting Oregon employers, employees, and the relationship they share. Most relevant to Oregon employers are: House Bill 3025 (Criminal Conviction History), House Bill 3236 (Non-Compete Limitation), House Bill 2600 (Health Benefits Continuation), and Senate Bill 454 (Paid Sick Leave). Each bill becomes law in 2016. House Bill 3025 sets a new standard under which employers may inquire into an applicant’s criminal background. Effective January 1, 2016, HB 3025 makes it an unlawful practice for an employer to exclude a job applicant from an initial interview solely because of the applicant’s past criminal conviction(s). It also prohibits an employer from requiring an applicant to disclose… Continue reading