Megan Vaniman

Oregon Workers’ Compensation Mental Health Presumption of Compensability

Presumption—it’s a scary word in the world of Oregon workers’ compensation. Last year Oregon passed Senate Bill 507—now codified at ORS 656.802(7)—creating a presumption of compensability of certain mental health claims filed by first responders working for public entities. A careful look at the presumption created by ORS 656.802(7) reveals it actually applies in limited circumstances and may not be so scary after all. Covered Employees The presumption applies to limited group of employees employed by public employers. Only those employees that are full-time paid firefighters, emergency medical services providers, police officers, corrections officers or you corrections officers, parole or probation officer, or emergency dispatcher or 9-1-1 emergency operated are covered by the presumption. Further, the employee in question must… Continue reading

Reductions in Hours, Furloughs, and Layoffs During COVID-19

A lot of employers are having hard conversations right now. A part of those conversations inevitably includes employment decisions. Many companies are trying to decide what is best both for their employees and their companies during this uncertain time. The three big options we’ve seen from our clients is a potential reduction in hours due to decreased demand, furloughs, and layoffs. This post will address areas employers should consider when determining the best option for the business and its employees. Employment Agreements Employment agreements are not widely used. However, employers should review any employment agreements entered into with employees to ensure it is not violating any terms of the agreements. Agreement may include notice provisions where employers are required to… Continue reading

Oregon Legislature Makes Sweeping changes with Workplace Fairness Act

In response to the national #metoo movement, the Oregon legislature passed the 2019 Oregon Workplace Fairness Act. The Workplace Fairness Act (the “Act”) takes aim at employer’s employment agreements, settlement agreements, anti-harassment and discrimination policies as well as increasing the statute of limitations for a number of unlawful employment actions. The Act was passed in the 2019 legislature and governs activity after September 29, 2019. However, employers are not required to implement the anti-harassment and discrimination policies discussed below until October 2020. Employment and Severance Agreements The Act prohibits employers from entering into employment agreements that contain a nondisclosure or non-disparagement provision that prevents employees from discussing workplace harassment or discrimination. In addition, the Act prohibits nondisclosure, non-disparagement, and no-rehire… Continue reading

Oregon WCD implements new rejection policy for incomplete or incorrect 801 forms

In a June 27, 2017 Industry Notice, the Oregon WCD announced it will reject incomplete or incorrect insurer/employer created 801 and 1502 forms. Insurers and self-insured employers are required to process and file claims and reports with the WCD in compliance with ORS 656 and OAR chapter 436. OAR 436-060-0011 requires insurers/self-insured employers file a 1502 form within 14 days of (1) the initial decision to accept or deny the claim; (2) the date of any reopening of the claim; (3) the date of change in the acceptance or classification of the claim; (4) the date of a litigation order or the insurer’s decision that changes the acceptance or classification of the claim or causes the claim to be… Continue reading

Washington passes strict distracted driving law

Hopefully you are reading this blog post from the safety of your computer and not while driving. If you are using your cell phone to read this while on your morning commute, you could be violating a newly passed Washington Law. Governor Jay Inslee signed a measure that will prohibit Washington drivers from holding an electronic device while driving. Current law in Washington only prohibits texting or holding a phone to the ear while driving. The expanded law prohibits drivers from holding an electronic device while driving, including while in traffic or waiting for a traffic light. This means, no checking Facebook, no reading or sending emails, or using apps. Drivers are allowed to minimally use a finger to activate,… Continue reading

WCD Adresses Supreme Court’s Brown v. SAIF decision

The Oregon Supreme Court’s recent decision in Brown v. SAIF, 361 Or 241 (2017) calls into doubt the applicability of the Workers’ Compensation Division rules involving claim closure. Specifically, the WCD amended closure rules in 2015 to require an impairment rating based on the compensable injury rather than the accepted conditions. Brown held that a compensable injury refers only to the accepted conditions. (For more information on the recent decision see Andrew Evenson’s post here.) The WCD issued an industry notice on April 3, 2017 to address the case. The WCD is reviewing the rules and will be holding its first meeting to discuss rule changes in light of the recent decision on April 20, 2017. The WCD stated they… Continue reading

Changes to OAR 436-060 effective as of January 1, 2017

vaniman-megan-colorIn 2016, the Workers’ Compensation Division drafted changes to OAR 436-060. These changes went into effect on January 1, 2017. Below, I have outlined several changes that claim’s administrators should be aware of. Please note that the below list and recommendations is not a complete list of changes to Division 060. I encourage you to review the new rules. OAR 436-060-0010(6): The worker may choose a medical service provider, attending physician or authorized nurse practitioner under ORS 656.245, 656.260, OAR 436-010 and 436-015. Except as provided under ORS 656.260 and OAR 436-015, if an employer restricts the worker’s choice of medical service provider the director may impose a civil penalty of up to $2,000. What this means for you: This… Continue reading

New Oregon WCD Rules go into effect January 1, 2017

vaniman-megan-colorEarlier this year, the Oregon Workers’ Compensation Division proposed extensive changes to division rules. The rule changes go into effect on January 1, 2017. The following OAR 436 divisions include changes: – 050, Employer/Insurer Coverage Responsibility – 060, Claims Administration – 105, Employer‐at‐Injury Program – 110, Preferred Worker Program – 120, Vocational Assistance to injured Workers A complete copy of the rules and changes can be found here. Over the next couple of weeks, SBH will provide details on how the rule changes will impact claims administration. In the meantime, if you have any questions about the rule changes please contact me at mvaniman@sbhlegal.com.

Claimant only required to show idiopathic factors were less likely to have caused unexplained injury

Vaniman-Megan_160-x-222The Oregon Court of Appeals established new case-law on claimant’s burden of proof in “unexplained fall” claims. If an injury is unexplained, as a matter of law, it is presumed to arise out of employment. Whether an injury is unexplained, is a question of fact. An injury is only deemed truly unexplained if the claimant eliminates idiopathic factors as causative. In Sheldon v. U.S. Bank, claimant fell in the lobby of her employer’s building. U.S. Bank denied the claim and argued her fall was caused by her diabetes and obesity. The Workers’ Compensation Board agreed and determined because there was medical evidence demonstrating diabetes and obesity can contribute to balance problems her fall was not truly unexplained.… Continue reading