Kevin Anderson

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

Court of Appeals confirms no permanent disability awarded when work injury has no contribution to claimant’s impairment.

Anderson, Kevin_webThere have been many new issues in claim processing and particularly in rating permanent impairment after Brown/Schleiss and the WCD’s new closure rules. One particular argument we have seen from claimant’s counsel is that all of a worker’s physical limitations (restricted range of motion, loss of sensation, etc.) should be awarded as permanent disability at closure unless the employer can prove those restrictions are due to a preexisting condition. In Magana-Marquez, SAIF accepted a lumbar strain. The attending physician confirmed claimant was medically stationary and had no permanent impairment from the injury. SAIF closed the claim without PPD. Claimant had reduced range of motion and sensation loss “due to spondylosis and body habitus.” Claimant argued under Schleiss, it was improper… Continue reading

Active Preexisting Conditions or Passive Predispositions – How Do I Tell the Difference?

Anderson, Kevin_webA few months ago, we discussed a new Court of Appeals case addressing preexisting conditions. Dennis L. Corkum v. Bi-Mart Corp., 271 Or App 411 (2015). Our main concern was another court-made layer of analysis, specifically distinguishing “active” preexisting conditions and “passive” predispositions. A copy of that article can be found here. The Board has issued two recent opinions attempting to clarify the Corkum decision. Steven Prince treated for a left sided hernia in 1998, a right sided hernia from an off-work injury in 2013, and an alleged work related hernia in 2014. Steven Prince, 67 Van Natta 1325 (2015). The Board put in a footnote that the worker’s 2013 hernia surgery hernia surgery for… Continue reading

Claimant’s Testimony of “Lifting Kegs” Not Enough for Increased Work Disability Award

Anderson, Kevin_webA line cook was injured and his claim was closed with 11% whole person impairment and 27% work disability. On Reconsideration, the worker submitted an affidavit outlining his job duties. He claimed his job required physical activity qualifying for classification as “very heavy.” He described being required to lift full kegs, tubs of dishes, and food—each weighing in excess of 100lbs. Employer’s job description did not include lifting requirements. The ARU, the ALJ, and ultimately the Board refused to defer to claimant’s affidavit. Rather, the Board relied on several DOT codes which classified the job as “Medium.” The Board explained that many of the worker’s job duties are accurately described in the DOT codes (such… Continue reading

Oregon Legislature Increases Claimant’s Attorney Fees

Anderson, Kevin_webThe Oregon Legislature adjourned at the end of June and it is clear some major changes are coming for businesses, small and large, in the state. One of those changes is House Bill 2764, which significantly expands the attorney fees awarded to claimant’s attorneys in workers’ compensation claims. While there are many changes, here are some of the most significant: Hourly Rate for Claimant’s Interviews & Depositions Injured workers continue to have a duty to cooperate and assist with an investigation. However, now if the worker is represented, the claimant’s attorney is entitled to an hourly rate for actual time spent during a personal or telephonic interview, or a deposition. The Oregon Bar and Board will adopt… Continue reading

SBH Attorneys Present at WCCA Spring Conference

Kevin AndersonBy Kevin Anderson I had the pleasure of presenting with my colleague Rebecca Watkins and Sheri Sundstrom from Hoffman Construction at the WCCA conference regarding the new claim closure rules from the WCD. For those of you unable to attend, themost important changes are that the attending physician must address the accepted conditions, direct medical sequela, and now any condition directly resulting from the injury when determining medically stationary status and closing information. Another important change is if the injury results in permanent impairment, then you can only apportion impairment to a preexisting condition if it qualifies as a preexisting condition the Workers’ Compensation Statute. Note that if the injury does not result in any impairment, then there is… Continue reading