WCB issues new rules related to translation of written documents at hearing

Kevin AndersonAfter several months of deliberation, the board passed new rules requiring translation of non-English documents for hearing. OAR 438-007-0045. The parties can either stipulate to the translation, or the party offering the document must include an English translation. Any dispute regarding the translation will be resolved by the ALJ and the ALJ can consult any person or entity the judge deems to achieve substantial justice. The costs of the translation can be resolved by stipulation, reimbursable to the worker’s attorney, or paid by the WCB if the judge incurred the costs. With these rules, the board also required all acceptances and denials issued on or after June 1, 2019 to include a “multi-language help-page.” The notice provides contact information for… Continue reading

Reminder: Oregon Minimum Wage Increased on July 1, 2019

For Oregon employers, the minimum wage increased again on July 1, 2019, part of incremental increases under a 2016 law. The new minimum wage rate differs depending on region. Standard: $11.25 Portland Metro Area: $12.50 Non-urban Oregon counties: $11.00. If you are unsure of which rate applies to your employees, visit BOLI’s website for a map of the Portland rate area and list of non-urban counties. Please feel free to contact Sather, Byerly, & Holloway with any questions.

2019 Oregon Legislative Update

It has been a busy year in the Oregon legislature, but there has been only one major change to the statutes governing workers’ compensation. Senate Bill 507 creates a new presumption of compensability for certain mental health claims filed by first responders working for public entities. If a claim does not meet all of the criteria in the new law, the worker can still pursue a mental health claim under ORS 656.802(3) without the use of the presumption. Here are the key points of the new law: Only applies to public employers; Only applies to listed professions; Employees can file injury claim on first day of job, but requires 5 years of employment for an occupational disease; Covers employees for… Continue reading

Oregon Supreme Court rules that medical services for conditions caused in material part by the work injury incident, not just accepted conditions, are compensable

In a much-awaited decision, the Oregon Supreme Court recently ruled in Garcia-Solis v. Farmers Ins. Co., 365 Or 26 (2019) that medical services for conditions caused in material part by the work injury incident, not just accepted conditions, are compensable under ORS 656.245(1)(a). In relevant part, ORS 656.245(1)(a) states that “For every compensable injury, the insurer or the self-insured employer shall cause to be provided medical services for conditions caused in material part by the injury for such period as the nature of the injury or the process of the recovery requires.” This case involves a 2009 work injury, in which a food server sustained bodily injuries. Over the next two years, the insurer accepted numerous musculoskeletal conditions. In 2012,… Continue reading

Employer Disability Leave Roundtable on April 17th

Kaiser Permanente and Sather Byerly & Holloway are sponsoring a work group for Oregon and Washington employers related to leave management. This open-forum roundtable will allow employers to bring their questions and share their insights on how to address various disability and leave requirements under state, federal or local laws. Rebecca Watkins, partner at Sather Byerly & Holloway LLP, will lead the group. She will be joined by Dr. Carrie Davino, Medical Director at Northwest Permanente, PC, who will provide insights from the medical perspective. Come network, learn from, and share with other employers! When: April 17, 2019, 11:30am – 1:30pm Where: Kaiser Permanente- Town Hall Ballroom * 3704 N Interstate Avenue * Portland, OR 97227 Cost: Free… Continue reading

WCD Issues New Rules Related to Medical Services

Kevin AndersonThe WCD has written new rules related to medial services that will go into effect April 1, 2019. While there are a number of changes, here are a couple of the most significant: MCO’s Requires MCO when less than 3 providers in a provider category in a geographical service area, to provide list of at least 3 physicians willing to treat claimant in given area. If the MCO does not provide the list or have anyone available, the worker is allowed to treat outside the MCO. Allows worker to continue treating with current provider for 14 days (formerly 7 days) after being enrolled in the MCO before having to establish with MCO provider.   Elective Surgery Removes statement that chart… Continue reading

Department of Labor & Industries Issues New Checklist for Willful Misrepresentation

The Department of Labor & Industries recently amended the process and published an amended checklist for employers seeking Willful Misrepresentation orders. The Department’s new checklist for reporting Willful Misrepresentation available here. Pursuant to RCW 51.32.240(5), self-insured employers can demand repayment of any benefits induced by willful misrepresentation along with a 50% penalty payable to the Department’s supplemental pension fund so long as the repayment and recoupment of benefits is demanded within three years of the discovery of the worker’s willful misrepresentation. The statute goes on to explain that “willful misrepresentation” includes willful false statements, omissions, or concealment of any material fact. Additionally, Washington Administrative Code 296-14-4121 provides that the term “willful” means a “conscious or deliberate false statement, misrepresentation, omission,… Continue reading

Documenting and discussing work performance issues with employees in relation to the ADA and FMLA

How many times have you heard Human Resources tell you to document, document, document? Well, it’s because of cases like Estep v. Forever 21. This case, from the US District Court of Oregon, is a good reminder of what can happen when you fail to document and discuss performance issues with struggling employees. Forever 21 hired Jonathan Estep in July 2012. He quickly worked his way up to district manager, covering all stores in the state of Washington. By November 2015, he was temporarily assigned to stores in the Sacramento district. Despite his quick rise, Estep was not a top performer. In November 2015, Forever 21 identified the 100 worst performing stores in the US. Estep oversaw 6 of the… Continue reading

Workers Compensation Board Reviewing Attorney Fees

The WCB is statutorily required to review claimant attorney fees every other year and it just held a public meeting to discuss the issue. Several concepts were put forward by the claimant’s attorneys including: Creating an optional bifurcated proceeding to address attorney fees after the judge has ruled on the merits of the case; Using a set multiplier to compensate attorneys for the contingent nature of their work; Increasing the fees for recorded statements to $400/hour (now at $275) and/or allowing attorney’s to be paid for the time preparing for the worker’s statement/deposition, and; Using defense fees/hours as a factor for the judge to consider in awarding a fee to claimant’s attorney. You can find the proposals and written testimony… Continue reading

Final Rules Issued for Oregon Equal Pay Law Effective January 1, 2019

The Oregon Bureau of Labor and Industries (BOLI) recently issued final rules implementing the Oregon Equal Pay Law, most provisions of which take effect on January 1, 2019. The full text is available on the BOLI web site here. The final rules contain only minor changes from the proposed rules (see our previous blog post for a detailed discussion). The rules continue to define “work of comparable character” as work that includes substantially similar knowledge, skill, effort, responsibility and working conditions, with no single factor being determinative.” Key to this definition is the emphasis that “no single factor” will be determinative – in other words, employers should point to multiple factors to justify differences in pay… Continue reading
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