Washington employers, remember to review exempt salaries for 2021 by Rebecca Watkins

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

Department of Labor & Industries Requiring New and Updated Forms on October 1, 2020

The Department of Labor & Industries has created new forms and templates for use by self-insured employers, third-party administrators, and Physical and Occupational Therapists. The new forms are required as of October 1, 2020. Several of the existing templates and forms that were part of the 2019 claim processing changes were updated with minor changes in language. Employers should make sure to update their form library to ensure the most recent version is submitted. Most notably, however, are several forms that are entirely new. There is a new form for starting/stopping/denying benefits, appropriately titled “Start, Stop, or Deny Compensation Benefits.” The new form combined previous forms for starting and stopping compensation benefits. Self-insured employers and claims administrators should use… Continue reading

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

Proposed Unemployment Rule May Impact Oregon Employers-Feedback Due by October 21

On September 3, 2020, the Employment Department issued a Notice of Proposed Rulemaking of Oregon Administrative Rule (OAR) 471-030-0071. The proposed rule (found here) gives the Department the authority during a declared state of emergency or public health emergency to change eligibility requirements to receive unemployment insurance benefits and the authority to make changes to the rate at what such benefits shall be paid. The proposed rule specifies that the Department shall give public notice of the new requirements to the extent reasonably possible and the public notice shall include the effective dates for the new requirements. Further, the proposed rule clarifies that the new requirements may not extend beyond 90 days from the end of the state of emergency… Continue reading

Ninth Circuit Court of Appeals Upholds Hanford Presumption Law

On August 19, 2020, the Ninth Circuit issued an opinion finding Washington was not in violation of federal law when it implemented HB 1723, also known as the “Hanford Presumption”. HB 1723 was signed into law in March 2018 and created a presumption that certain illness or conditions diagnosed in workers within the 560 square mile Hanford site was a compensable occupational disease. HB 1723 was designed to create a presumption for workers that chemical and radiological exposures at Hanford are the proximate cause of many respiratory illnesses, multiple types of cancer, and certain neurological and cardiac diseases. The presumption applies to any worker, including contractors or subcontractors, who work on the Hanford site for as little as… Continue reading

Washington Self-Insured Employers Face Increased Penalty Amounts Starting September 1

Self-insured employers in Washington should be aware that penalty amounts increase on September 1, 2020, as a result of HB 2409, passed earlier this year. The changes apply to several categories of penalties that the Department of Labor & Industries can impose, including penalties under RCW 51.48.017 for “unreasonably delaying or refusing to pay benefits” under a claim. Previously, penalties under this statute were capped at $500 or 25 percent of the benefits delayed, whichever is greater. Starting September 1, this amount increases to the greater of $1,000 or 25 percent. The new penalty amounts apply to new requests submitted on or after September 1, regardless of when the contended delay in benefits occurred. The penalty amount for a… 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
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