Kevin Anderson

2019 Oregon Legislative Update

It has been a busy year in the Oregon legislature, but there has been only one major change to the statutes governing workers’ compensation. Senate Bill 507 creates a new presumption of compensability for certain mental health claims filed by first responders working for public entities. If a claim does not meet all of the criteria in the new law, the worker can still pursue a mental health claim under ORS 656.802(3) without the use of the presumption. Here are the key points of the new law: Only applies to public employers; Only applies to listed professions; Employees can file injury claim on first day of job, but requires 5 years of employment for an occupational disease; Covers employees for… Continue reading

WCD Issues New Rules Related to Medical Services

Kevin AndersonThe WCD has written new rules related to medial services that will go into effect April 1, 2019. While there are a number of changes, here are a couple of the most significant: MCO’s Requires MCO when less than 3 providers in a provider category in a geographical service area, to provide list of at least 3 physicians willing to treat claimant in given area. If the MCO does not provide the list or have anyone available, the worker is allowed to treat outside the MCO. Allows worker to continue treating with current provider for 14 days (formerly 7 days) after being enrolled in the MCO before having to establish with MCO provider.   Elective Surgery Removes statement that chart… Continue reading

Workers Compensation Board Reviewing Attorney Fees

The WCB is statutorily required to review claimant attorney fees every other year and it just held a public meeting to discuss the issue. Several concepts were put forward by the claimant’s attorneys including: Creating an optional bifurcated proceeding to address attorney fees after the judge has ruled on the merits of the case; Using a set multiplier to compensate attorneys for the contingent nature of their work; Increasing the fees for recorded statements to $400/hour (now at $275) and/or allowing attorney’s to be paid for the time preparing for the worker’s statement/deposition, and; Using defense fees/hours as a factor for the judge to consider in awarding a fee to claimant’s attorney. You can find the proposals and written testimony… Continue reading

WCD Rulemaking Meeting – Medical Billing/Services

The WCD held another public advisory meeting, this time to discuss the medical billing and medical services administrative rules. Probably the most important and interesting topic was whether the WCD should look into rules to regulate and/or promote telemedicine in Oregon. The discussion was generally positive. Allowing workers to speak with a doctor via video on the work site was described as a good screening tool to determine whether the worker needed to seek emergency, urgent, or any follow up care. Telemedicine would also increase the availability of medical providers to many workers in rural areas. If you have any experience with telemedicine and workers’ compensation claims, the WCD would like your input. Our meeting agenda also covered a variety… Continue reading

WCD Reviewing Rules Pertaining to IME’s and WRME’s

Kevin AndersonThe WCD held a meeting to take public comment on the administrative rules related to Independent Medical Exams (IME’s) and Worker Requested Medical Exams (WRME’s).   Some of the more lively discussions centered around whether IME providers should be required to produce their report within a certain time frame with claimants’ attorneys arguing medical treatment, time-loss benefits, and permanent impairment can be all be delayed pending these reports. We provided ample testimony that the current rules were adequate to address these concerns.   The majority of the rules discussed pertain to the medical providers’ licensing and training. These discussions focused on confirming the WCD’s ability to sanction or remove an IME provider from the approved list of providers is consistent… Continue reading

New Average Weekly Wage Calculation Rules

The Workers’ Compensation Division recently issued new rules for calculating average weekly wage. The new rules will apply to claims with dates of injury on or after February 21, 2018. Under the new rule: When a worker is paid irregular wages and there is an increase or decrease in the worker’s pay rate in the previous 52 weeks before the injury/occupational disease, this will not constitute a “new wage earning agreement.” The insurer must calculate the worker’s average weekly hours worked at each pay rate since the last wage earning agreement (not to exceed 52 weeks). The average hours at each pay rate will then be multiplied by the pay rate at the time of injury/occupational disease. Any irregular… Continue reading

Oregon Court of Appeals further defines susceptibilities or predispositions vs. preexisting conditions.

The Oregon Court of Appeals recently decided another case addressing what qualifies as a preexisting condition. Doris L. Lowells v. SAIF, 285 Or App 161 (2017). In Lowells, the court confirmed “chronic pain disorder” was not a compensable occupational disease because the major cause of the condition was claimant’s weight, deconditioning, and chronic tobacco use. Claimant argued on appeal that those personal factors should not be considered because they were “mere susceptibilities or predispositions.” The court previously discussed preexisting conditions and confirmed if a condition merely renders a worker more susceptible to an injury, but does not actively contribute to damaging the body part, it cannot qualify as a preexisting condition. Corkum v. Bi-Mart Corp., 271 Or App 411, 419,… Continue reading

Oregon WCD issues Temporary Rules Clarifying Claim Closure Requirements

In our efforts to keep you apprised of the latest developments regarding the Oregon Supreme Court’s decision in Brown (see Andrew’s blog on the case here.) and how the decision could affect claim processing (see Megan’s blog on the issue here.), we are forwarding the temporary administrative rules issued by the WCD. As expected, the rules confirm that medically stationary status, permanent impairment, and permanent work restrictions must relate to the accepted condition or to a direct medical sequela of the accepted condition. The temporary rules remove the phrase “a condition directly resulting from the work injury.” The WCD also revised Bulletin 239, the claim closure guide provided to medical arbiters. The bulletin provides useful information to ask the attending… Continue reading

New 801 Form and Medical Treatment

You may have noticed, the Oregon Workers’ Compensation Division has revised the standard Form-801 “Report of Job Injury or Illness.” This form is the normal starting place for many claims and used throughout the claims administration process. The new revisions include acknowledgements by both the worker and employer regarding the worker’s right to select their medical provider. Specifically, by signing the 801: The worker is agreeing “I understand I have a right to see a health care provider of my choice subject to certain restrictions under ORS 656.260 and ORS 656.325.” The employer is agreeing “I understand I may not restrict the worker’s choice of or access to a health care provider. If I do, it could result in… Continue reading

Changes to Oregon Employer-at-Injury Program effective as of January 1, 2017

Anderson, Kevin_webOAR 436-105 explains who qualifies for and how to request assistance and reimbursement from the Employer-at-Injury Program (EAIP). The EAIP encourages early return to work by providing incentives to employers from the Workers’ Benefit Fund. Several changes were made to the EAIP administrative rules and vocational assistance rules. The following are some of the key changes to the EAIP. OAR 436-105-0003(3): Clarifies documents can be submitted to the WCD via the US Postal Service, physical delivery to the Salem WCD office, fax, or any other method approved by the WCD (the WCD is working on developing an online portal system similar to the WCB’s portal). OAR 436-105-0006: Specifies money from the Workers’ Benefit Fund cannot be used to provide benefits… Continue reading