Oregon Workers Compensation

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

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 rules regarding Employer/Insurer Coverage Responsibility effective as of January 1, 2017

White, David_160x222OAR 436-050 governs the responsibility of employers and insurers to provide workers’ compensation coverage to subject workers for compensable injuries and illnesses. Many changes to an employer/insurers coverage responsibility went into effect at the start of the New Year. Some of these changes were stylistic and meant to provide improved clarity through better organization and use of plain language. Other changes were more substantive and are outlined below. OAR 436-050-0110/OAR 436-050-0210: Requires insurers/self-insurers to process and maintain claim records in the State of Oregon. However, insurers can receive claim reports and issue payments from outside the state so long as records are forwarded to or payments are directed from Oregon. OAR 436-050-0150(3): Requires employers to maintain a financial rating of… 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

Board’s new attorney fee rules go into effect on November 1.

vaniman-megan-colorThe Oregon Workers’ Compensation Board passed revised attorney fee rules on October 13, 2016. The most significant changes involve increased attorney fees for disputed claims settlements and claims disposition agreements. The Board increased attorney fees on Disputed Claim Settlements and Claims Disposition Agreements. Previously attorneys were awarded 25% of the first $17,500 of the settlement process plus 10% of any amount of proceeds in excess. The Board revised the rules to allow 25% of the first $50,000 of the settlement proceeds plus 10% of any amount of proceeds in excess of $50,000. The Board also increased the amount of attorney fees received in PPD and PTD cases. Previously awards were limited to 25% of increased compensation not to exceed… Continue reading

When is an injury sustained in an employer-controlled parking lot NOT compensable?

Evenson, Andrew_167x222As a general rule, injuries sustained by employees when going to and coming from their regular workplace are not deemed to arise out of and in the course of their employment. SAIF v. Reel, 303 Or 210, 216 (1987). One exception is the “parking lot rule.” This rule states that if an injury occurs in a parking lot or other off-premises area over which the employer has some control, the injury may be compensable. Boyd v. SAIF, 115 Or App 241, 243 (1992). The Oregon Supreme Court held in Norpac Foods v. Gilmore, 318 Or 363 (1994), an injury occurring in an employer’s parking lot is not necessarily compensable, as is often the knee-jerk reaction. It explained that the parking… Continue reading

Reasonable Denials?

rebecca_watkinsThe reasonableness of a denial turns on the existence of “legitimate doubt as to liability” and is measured based on the available information at the time the denial issues. (Continuation of a denial may also be deemed unreasonable if the legitimate doubt is later destroyed.) If a denial is deemed unreasonable, a 25% penalty and an attorney fee will be assessed. What seems obvious to you at the time you issued a denial may be hard to demonstrate at a later hearing. Establishing reasonableness requires two things: 1) information that casts doubt on some aspect of liability, and 2) ability to show what information you had when you issued the denial. When considering whether a denial is reasonable, consider the… 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