Kevin Anderson

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

Oregon WCD Proposes Rule Changes

Anderson, Kevin_webThe WCD is seeking input on three topics before the end of August. Proposed rules would be drafted and discussed at a public meeting in the fall. Any input now helps the WCD draft clearer and more helpful rules, or avoid drafting rules if there is a statutory conflict of if the rules would be unnecessary. Medical Care: The WCD plans to move forward with a change to the 801 form requiring two new acknowledgements, one by the worker and one by the employer. The specific language is still being drafted and will be discussed in the fall, but the language will require the employer to inform claimant of his/her right to choose a medical provider and that the employer… Continue reading

Attorney Fee Proposals

Anderson, Kevin_webThe Workers’ Compensation Board is moving forward with several changes in attorney fee rules. Formal rules will be drafted and reviewed at a public hearing this fall. The board welcomes any input, comments, or concerns with these rules. These rules will not be effective until after the public hearing. If an ALJ awards additional PPD, claimant’s attorney is entitled to a fee up to 25% of the increased compensation, but no more than $4,600. The board is proposing to remove the cap and award a “reasonable attorney fee.” See OAR 438-015-0040(1). If the board, on review, awards additional PPD, claimant’s attorney is entitled to a fee up to 25% of the increased compensation, but no more than $6,000. The board… Continue reading

When is a worker a “subject worker?”

Anderson, Kevin_webThe vast majority of workers in Oregon will be subject to the workers compensation system, with some exceptions. It is important to consider whether an injured worker is a subject worker when investigating the claim. Two recent cases address this important question. Carpenter hired to remodel apartment on a couple’s farm not a subject worker when the work was unrelated to the day-to-day activities of the farm. Randall Royer v. Touch of Grey Ranch, 276 Or App 909 (2016). Employer bought, boarded, trained, and sold polo horses. The couple who owned the business hired a carpenter to convert a hay barn into two apartment units. Claimant helped finish the interior of the apartments in exchange for being allowed… Continue reading

Attorney Fees for Claimant Statements/Depositions

Anderson, Kevin_webAs of January 1, 2016, worker’s attorneys have been entitled to a new hourly attorney fee for “actual time spent during the personal or telephonic interview or deposition.” ORS 656.262(14)(a). These statements are taken as a part of the injured worker’s duty to cooperate with the investigation of a claim. The attorney fee only applies to statements or depositions by the worker, not medical experts. The worker must be represented at the time of the statement for the attorney to be entitled to a fee. The WCB has issued new administrative rules to clarify the procedure for requesting and paying these new fees. See OAR 438-015-0033. Generally these procedures were designed to mirror a cost bill at hearing. A reasonable… Continue reading

Oregon Legislature begins Short Session

Anderson, Kevin_webThe Oregon Legislature met on February 1, 2016 beginning a 35-day “Short Session.” In 2010, Oregon approved these sessions in even numbered years to allow the legislature to make corrections in its two year budgets. These sessions have increasingly been used to make new policy changes though. Here are a few of the new legislative concepts which might be addressed by the legislature in the next month. Legislative Concept 103 (LC 103) Would remove “sick leave pay” from the Workers’ Compensation definition for payroll. Legislative Concept 254 (LC 254) If passed, this would change the term limits for members of the Management-Labor Advisory Committee. The committee is made up of 10 members, five representing organized labor interests (including the Oregon… Continue reading