Kevin Anderson

New Rules in Oregon Affecting Assessed Attorney Fees in Workers’ Compensation Cases

The Oregon Workers’ Compensation Board (“WCB”) met on August 18, 2020 to finalize two new rule proposals affecting attorney fees for claimant’s counsel. First, the WCB will allow information about the claimant’s attorney’s hourly rate to be considered when awarding an assessed fee. This will be an additional factor to the already enumerated factors (time devoted, complexity, value of case, etc.). Additionally, this is an optional factor meaning it does not have to be considered in every case. From the discussions, it sounds like many claimant’s attorneys will submit information from the Oregon Bar about hourly rates, affidavits from other attorneys, and other information to justify how they came to their hourly rate. This new rule will apply to… Continue reading

Oregon Court of Appeals Clarifies Occupational Disease Standard

Kevin AndersonIn a recent decision, the Court of Appeals clarified a worker’s burden of proof in an occupational disease claim. Johnston v. Gordon Trucking – Heartland Express, 305 Or App 531 (2020). The claim for lumbar arthritis was denied in part based on medical evidence confirming claimant’s aging process/genetics was an active contributor to the development of the denied conditions and it was impossible to say whether claimant’s work accelerated those conditions. Claimant argued while he had the initial burden of showing his work activities were the major cause of the occupational disease, the burden should shift to the employer to then prove non-work related factors were in fact the major cause of the condition. The court rejected this argument as… Continue reading

Trial Attorneys and Unions Pushing for COVID-19 Presumption Legislation

On June 23, 2020, Governor Brown directed the Management-Labor Advisory Committee (MLAC) to explore any gaps in our current workers’ compensation system related to COVID-19, including at looking to whether a presumption of compensability is needed to ensure workers are protected under the current system. The governor instructed the committee to provide a response by mid-July to prepare for an upcoming legislative session. MLAC held six meetings to take testimony from workers, attorneys, employers, insurers, administrators, and state officials discussing a list of potential issues. The issues were categorized into worker’s compensation issues MLAC could address and health/safety issues that MLAC could make recommendations, but ultimately would need to be addressed by other agencies. Ultimately, MLAC could not reach a… Continue reading

Oregon Workers’ Compensation Rule Updates During COVID-19 Crisis

Needless to say, there have been a lot of changes recently, not just in our daily lives, but also in claim processing issues. The WCD has begun discussions to address a variety of issues that have arisen with Workers’ Compensation claims in light of COVID-19. Further, the WCD and WCB have continued forward with new rules. As SBH’s legislative liaison I have included some of the highlights below to help continue to process claims in a timely and proper manner during COVID-19. COVID-19 Potential Proposals I among others are working on identifying potential proposals to address many new issues arising from COVID-19 including: • Effect on claim processing deadlines due to lack of available IME and medical arbiter examiners. •… Continue reading

WCB issues new rules related to translation of written documents at hearing

Kevin AndersonAfter several months of deliberation, the board passed new rules requiring translation of non-English documents for hearing. OAR 438-007-0045. The parties can either stipulate to the translation, or the party offering the document must include an English translation. Any dispute regarding the translation will be resolved by the ALJ and the ALJ can consult any person or entity the judge deems to achieve substantial justice. The costs of the translation can be resolved by stipulation, reimbursable to the worker’s attorney, or paid by the WCB if the judge incurred the costs. With these rules, the board also required all acceptances and denials issued on or after June 1, 2019 to include a “multi-language help-page.” The notice provides contact information for… Continue reading

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