Shift in Oregon Claim Closure Analysis? By Megan Vaniman

As of recently, the Oregon Supreme Court, Court of Appeals, and Workers’ Compensation Board have issued significant decisions relating to closure of Oregon workers’ compensation claims. Overall, these cases indicate a potential larger shift of court and board interpretation of closure rules. Ultimately, what does this mean for claim closure in Oregon? Claim closure in Oregon can be a frustrating process. The administrative rules require either a statement of medically stationary with no permanent impairment from the attending physician or a qualifying closing report that carefully establishes the permanent impairment related to the compensable conditions. As we all know–these can be hard requirements to meet. In 2019, the Oregon Supreme Court issued Caren v. Providence. As we all know now,… Continue reading

What Came First: The Acceptance or the Authorization? An exploration of Clark County v. Maphet by Dan Schmidt

In 2019, the Washington Court of Appeals issued Clark County v. Maphet, 451 P.3d 713 (2019). The case held that a self-insured employer authorizing treatment of a condition is tantamount to that self-insured employer accepting the condition as part of the claim. A careful understanding of the case is important to understanding how to process claims in Washington. The Maphet fact pattern is familiar to anyone who has worked with an injured worker or with workers’ compensation: Jennifer Maphet injured her right knee while at work and multiple knee surgeries did not resolve her knee pain and instability that resulted. The wrench in the equation, of course, was that the multiple surgeries uncovered other, unaccounted-for conditions which the surgeons treated… Continue reading

Employee Handbook: The Gift that Keeps on Giving

Adriana Ortega - SBH LegalAs the holiday season rounds the corner of this eventful year, our thoughts turn to gifts and gift-giving. From a business perspective, I happen to believe that a solid employee handbook is the best gift for any business. A carefully crafted employee handbook is an investment that can yield significant returns year after year so long as it is kept up to date and properly implemented. Now that the Workplace Fairness Act (WFA) has gone into effect in Oregon as of October 1, 2020, it is a great time to revisit, update and otherwise improve your employee handbook as we head into a new—and hopefully better—year. I discuss below some of the provisions of the WFA and tips in drafting… Continue reading

Oregon Court of Appeals Expands on Supreme Court’s Holding in Caren in Robinette v. SAIF

Last year, in Caren v. Providence Health System Oregon the Oregon Supreme Court held that without a preclosure combined condition denial employers must pay the full measure of impairment stemming from a combined condition where the work injury was a material contributing cause of the impairment as a whole. In doing so, the Court reasoned a worker is entitled to some notice where an employer contends a portion of the worker’s impairment is not compensable. Recently the Court of Appeals expanded on that decision in Robinette v. SAIF by holding employer’s must pay for the full measure of a workers’ impairment where the work injury was the material contributing cause of their impairment as a whole even if the apportioned… Continue reading

OR OSHA still has not passed final rules relating to COVID-19

stephen verotskyIn June 2020 Oregon OSHA announced it would implement temporary workplace rules to address the COVID-19 hazard. Oregon OSHA expected it would have the final rule in place by September 1, 2020. After four drafts of the proposed rule, there is still no final rule. However, Oregon OSHA expects to have the rule in place by November 6, 2020. The delay is due in part to Oregon OSHA coordinating with the Oregon Health Authority which continues to refine the physical distancing and face covering guidelines for employers. Although, there is no rule in place, Oregon OSHA continues to inspect places of employment to ensure compliance with the Governor’s Executive Orders and the evolving guidelines from the Oregon Health… Continue reading

Court of Appeals reconsiders Meyers v. SAIF in light of the Supreme Court’s opinion in Gadalean

Meyers v. SAIF has been a long time coming– the case has been on appeal since 2013, traveling all the way up to the Oregon Supreme Court which remanded the case to the Court of Appeals in 2019. It appears, however, we finally have an answer to the question of whether a claimant was a subject worker when she was injured during orientation and paid training. The claimant in this case had previously worked as a telemarketer for CMG, a company that performed contract work for the employer. When CMG closed its operations in 2011, the employer, Jadent, encouraged CMG employees to apply. Although claimant had not previously applied, she contacted Jadent about the status of her application in 2013.… Continue reading

Washington employers, remember to review exempt salaries for 2021

In late 2019, the Washington Department of Labor & Industries (L&I) outlined new rules for exempt employees, including base salaries. The salary threshold for exempt employees is now a multiplier of the state minimum wage. Each September, L&I sets the state minimum wage for the next year based on US Bureau of Labor Statistics. As a result, the salary threshold for exempt employees will also change each January 1st as well. By 2028, the salary level will be 2.5 times the state minimum wage, but the increase is phased in over the next seven years with a more gradual increase for employers with 50 or fewer Washington employees. Effective January 1, 2021, the new state minimum wage will be $13.69… Continue reading

Oregon WCD Issues Revised Temporary Rule on Claims for COVID-19 or Exposure to COVID-19

The Workers’ Compensation Division has issued OAR 436-060-0141, a temporary rule addressing claims for COVID-19 and claims for exposure to COVID-19. The rule will remain in effect for 180 days while the Department works on a permanent rule. The rule covers claims for COVID-19 as well as presumptive cases where a worker has not tested positive but has certain symptoms with no more likely alternative explanation and where the worker has been in close contact with a confirmed case of COVID-19. The rule requires insurers to conduct a “reasonable investigation” before denying any claim for COVID-19 or exposure to COVID-19. For claims filed after October 1, 2020, the rule provides extra steps the insurer must follow prior to denying… Continue reading

Washington Court of Appeals opinion serves as a strong reminder to double check filing requirements for appealing BIIA orders

On September 8, 2020, the Washington Court of Appeals published a decision that serves as a reminder of the importance of double checking state and local rules in order to timely and appropriately file appellate documents. In Long Painting Co., Inc. v. Mark Donkel, the Court of Appeals ruled the employer failed to timely file its appeal, and thus the Board of Industrial Insurance Appeals (BIIA) order allowing a worker’s occupational disease claim was final and binding. Legal Requirements for Notice of Appeals Washington law requires notice of appeals of BIIA decisions be filed in superior court and served on necessary parties within 30 days of the decision. RCW 51.52.110. This filing is required for the superior court to have… Continue reading

As the COVID pandemic continues, where does the Oregon Workers’ Compensation Division stand on telemedicine?

In March 2020, the Division set out temporary rules to address fees related to telemedicine appointments following Governor Brown’s “Stay at Home Order.” The temporary rules increased the amount of fees that would be paid to medical providers for telemedicine visits so that providers would be able to serve more injured workers during the pandemic. Essentially, providers would be able to collect the same fee they would be allowed to collect for a regular in-person office visit. At the time the temporary rules were adopted, the Division was encouraging both medical providers and injured workers to utilize telemedicine visits in order to minimize the risk of contracting and spreading the virus. Telemedicine visits were not restricted by type of service… Continue reading
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