Oregon Time Loss Refresher
In Oregon, time-loss benefits, also known as temporary disability or lost wages, are paid to workers who are unable to work due to a work-related injury or illness. These benefits compensate for lost income while the worker is under a doctor’s care and authorized to remain off work or modified duty.
What constitutes authorization of time loss?
- Authorization of time loss is a contemporaneous medical confirmation by the worker’s attending physician that the worker cannot do regular work, and is excused from doing so. Lederer v. Viking Freight, Inc., 193 Or App 226, 234, on recons, 195 Or App 94 (2004). Authorization can be express or implied from medical records; oral or written; limited to a specified period or an unlimited duration; retroactive (up to 14 days); and rescinded.
When is time loss authorized?
- Under OAR 436-060-0020(3), temporary disability compensation is authorized when:
(a) The medical service provider provides the insurer or employer with oral or written verification of the worker’s inability to work;
(b) Documents in the insurer’s possession at claim closure reasonably reflect the worker’s inability to work. For the purposes of this rule “documents” and “possession” have the same meaning as in OAR 436-060-0017(1); or
(c) The director determines, at reconsideration of claim closure, there is sufficient contemporaneous medical documentation to reasonably reflect the worker’s inability to work under ORS 656.268.
When is time loss not due or payable?
- Under ORS 656.262(4)(g), temporary disability compensation is not due and payable pursuant to ORS 656.268 after the worker’s attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 ceases to authorize temporary disability or for any period of time not authorized by the attending physician or nurse practitioner.
Who is the attending physician?
- Under ORS 656.005(12)(a) – “attending physician” means a doctor, physician, or physician assistant who is “primarily responsible for the treatment of a worker’s compensable injury” and who is:
- Doctor
- Physician licensed by Oregon Medical Board
- Podiatric physician and surgeon
- Oral and maxillofacial surgeon
- A similarly licensed doctor in any country or in any state, territory or possession of the United States
- “Type B” Provider (limited to 30 days)
- Chiropractor
- Physician assistant
- Naturopathic physician
- Nurse Practitioner (limited to 180 days)
- ER physicians cannot be attending physician, but can authorize for 14 days
- The determination of an “attending physician” is a question of fact, and a worker may have only one attending physician at a time.
When is time loss due?
- In Oregon, workers are entitled to temporary disability prior to a decision on the compensability of their claim. Jones v. Emanuel Hospital, 280 Or 147 (1977). Under ORS 656.262(4)(a), the first installment of temporary disability compensation shall be paid no later than the 14th day after the subject employer has notice or knowledge of the claim and of the worker’s disability, if the attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 authorizes the payment of temporary disability compensation. Thereafter, temporary disability compensation shall be paid at least once each two weeks” unless the director says otherwise.
Who gets paid time loss?
- Subject workers, which are workers subject to ORS 656. “Worker” is defined by ORS 656.005(30): any person, including a minor whether lawfully or unlawfully employed, who engages to furnish services for a remuneration, subject to the direction and control of an employer and includes salaried, elected and appointed officials of the state, state agencies, counties, cities, school districts and other public corporations, but does not include any person whose services are performed as an adult in custody or ward of a state institution or as part of the eligibility requirements for a general or public assistance grant.
- For the purpose of determining entitlement to temporary disability benefits or permanent total disability benefits under this chapter, “worker” does not include a person who has withdrawn from the workforce during the period for which such benefits are sought.
- All workers are subject workers unless excluded by ORS 656.027. Non-subject workers are not entitled to interim compensation. Bell v. Hartman, 289 Or 447 (1980); Darling v. Johnson Controls Battery Group, Inc., 188 Or App 190, 198 n. 7, 70 P3d 894 (2003), rev den 336 Or 376 (2004).
When does time loss stop?
- Worker returns to regular work
- Worker returns to modified work and loses no wages
- Worker refuses wage earning employment
- Worker is terminated from employment
- Worker is incarcerated for commission of a crime
- End of provider’s authorization period
- Recission of authorization
- Type B or C provider authorization period expires
- Insurer issues Notice of Closure (medically stationary stops substantive time loss, not procedural)
The insurer or self-insured employer may not end temporary disability benefits until written notice has been mailed or delivered to the worker and the worker’s attorney, if the worker is represented. The notice must state the reason that temporary disability benefits are no longer due and payable. ORS 656.262(4)(j).
If you have questions, please contact me at (503) 776-5428 or .
Post by Jessica Fox.
