Oregon Workers Compensation

Oregon Workers’ Compensation Board now administering hearings and mediations via “Zoom” platform

Since April, under Governor Brown’s “Stay home, Save lives” Executive Orders, the Workers’ Compensation Board (WCB) hearings divisions have not administered any in-person hearings or mediations. Quite obviously, this development and ongoing complication has presented many hurdles for all parties seeking to obtain expeditious resolutions to litigated claims and issues. As you may have experienced, many, if not most, hearings were postponed over the last six months, especially when the credibility of live witness testimony was relevant to the litigated issue(s). All hearings have been handled either telephonically, or in writing “on the record’ (i.e., without testimony). Last week, the WCB announced that it is officially rolling out a new videoconferencing platform, via Zoom for Government, so that hearings and… Continue reading

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

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

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

The Oregon Court of Appeals doubles down on the two-prong Roseburg Forest test making it easier for a presumptively responsible employer to shift responsibility

In April 2020, the Court of Appeals issued a significant decision regarding responsibility cases. In NAES Corporation v. SCI 3.2, Inc., 303 Or. App. 684 (2020), the issue was whether the Board erroneously focused on “probability” and not “possibility” of contribution in determining that claimant’s prior work exposure was the sole cause of his hearing loss such that the presumptively responsible employer could successfully shift its responsibility backwards. Claimant worked as a boilermaker for various employers from 1966 through 2012 when he retired. At that time, he was working for NAES. Following his retirement, claimant worked seasonally for SCI fabricating parade floats from 2013 through 2016. This seasonal work involved sawing, welding, grinding, and hammering. In 2014, claimant was diagnosed… Continue reading

Annual Adjustment of Attorney Fees in Workers’ Compensation Claims in Oregon

The Oregon Workers’ Compensation Board recently issued a revised Bulletin No. 1 addressing the maximum attorney fee under several statutes. The attorney fees affected by the revised bulletin are provided in ORS 656.262(11)(a) (unreasonable delay or refusal to pay compensation or accept or deny), ORS 656.262(14)(a) (claimant attorney participation in claimant’s statement or deposition), and ORS 656.308(2)(d) (responsibility denial). The maximum attorney fee amount is adjusted annually on July 1 by the same percentage increase, if any, as made to the state’s average weekly wage (SAWW) under ORS 656.211. The reasonable hourly rate for an attorney’s time spent during a claimant’s interview or deposition pursuant to ORS 656.262(14)(a) is also adjusted by the same percentage on July 1. Effective July… Continue reading

Claims Examiner Certification Renewal in Oregon and COVID-19

Three months into the pandemic, we have all seen changes in both our daily lives and in our professional lives. One of these changes has been the cancellation of several conferences and seminars which provide the continuing education units (CEUs) required for recertification. Under OAR 436-055-0070, claims examiners are required to complete 24 hours of training within a three-year cycle. These CEUs include at least 6 hours on ORS chapter 656 and OAR chapter 436, at least one hour on interactions with IME providers, and additional training related to medical case management, communication skills, and claims processing skills. Thankfully, the administrative rules provide a 12-month grace period to renew certification. During the grace period, an examiner is still “certified” under… Continue reading

In the midst of COVID-19 pandemic, Oregon Court of Appeals issues troubling ruling for processing new/omitted condition claims

The Oregon Court of Appeals issued its decision in Coleman v. SAIF, 304 Or App 122 (2020) on May 13, 2020. Claimant filed a claim for a left knee injury on June 12, 2015. On June 29, 2015, claimant and his attending physician submitted an 827 form for a new/omitted condition claim for medial femoral chondral defect in the left knee. The carrier issued an initial notice of acceptance on August 11, 2015, accepting a left knee strain and contusion; there was no reference to the June 29, 2015 827 form. In a chart note dated October 15, 2015, claimant’s attending physician referenced the June 2015 827 form and indicated it needed to be addressed by the carrier. The carrier… Continue reading

Oregon Employee Injured While Working from Home? Best Practices to Determine Compensability

With the onset of COVID-19 and statewide stay-at-home orders, a high percentage of today’s workforce is operating from home, or in some variation of remote setup. Even as employees begin to return to a more traditional work setting, it is reasonable to anticipate that the pandemic-related response will have long-term effects on where and how some employers allow their employees to work. So, with the rise in remote workers will likely come a rise in remote workplace injuries. How do you respond? In Oregon the general rule is injuries occurring “in the course of” and “arising out of” employment are compensable. That remains the case for injuries occurring remotely, if the worker is within the course and scope of his… Continue reading