Oregon WCD implements new rejection policy for incomplete or incorrect 801 forms
In a June 27, 2017 Industry Notice, the Oregon WCD announced it will reject incomplete or incorrect insurer/employer created 801 and 1502 forms. Insurers and self-insured employers are required to process and file claims and reports with the WCD in compliance with ORS 656 and OAR chapter 436. OAR 436-060-0011 requires insurers/self-insured employers file a 1502 form within 14 days of (1) the initial decision to accept or deny the claim; (2) the date of any reopening of the claim; (3) the date of change in the acceptance or classification of the claim; (4) the date of a litigation order or the insurer’s decision that changes the acceptance or classification of the claim or causes the claim to be… Continue reading Oregon Passes Fair Work Week Legislation
Oregon made national news yesterday as the first state to pass legislation requiring employers to provide greater schedule predictability to low-wage employees in the retail, food service, and hospitality industries. The bill applies to employers with at least 500 employees worldwide. The bill (SB 828) attempts to address issues that arise with irregular and unpredictable scheduling. One in six Oregonians receive less than 24-hour notice of their job shifts. Employers will now be required to post work schedules 7 days in advance that include all work shifts and on-call shifts for the work period. If the employer wants to change the schedule after the advance posting, the employee may decline any work shifts not included in the written… Continue reading Minimum Wage Increases July 1, 2017
Oregon’s second rate increase under 2016 legislation goes into effect on July 1, 2017. The minimum wage for your company turns on your location. The standard rate will increase to $10.25/hour and applies to most of the state. But nonurban counties have a lower rate increase to $10.00/hour. The nonurban counties include: Baker, Coos, Crook, Curry, Douglas, Gilliam, Grant, Harney, Jefferson, Klamath, Lake, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa and Wheeler counties. And employers located in the Portland Metro area will have a higher rate increase to $11.25/hour. Unsure if your location falls inside the Portland Metro area for purposes of minimum wage? Visit this website and confirm: http://www.oregonmetro.gov/library/urban-growth-boundary/lookup If you have questions about wage and hour law, please give… Continue reading LHWCA Caselaw Update
Below are recent decisions under the LHWCA. Decisions are published in Lexis and posted on the BRB website through 5/30/17. For those among us who deal with Charles Robinowitz, Judge Clark and Judge Gee awarded fees for 2015/2016 services in the range of $350 to $360 rather than $450 to $466, the amount awarded by the Benefits Review Board and 9th Circuit for appellate services in other claims. Judge Clark and Judge Gee based their awards on civil litigation and general categories in the 2012 Oregon State Bar Economic Survey and classified Mr. Robinowitz as a 75th percentile attorney rather than a 95th percentile attorney. In two unpublished decisions the Board affirmed Judge Clark. An appeal from Judge… Continue reading Join SBH at the DMEC Chapter Meeting on June 7
Need a refresher on the ADA? Want tips about accommodating mental health issues? Join us at the DMEC Chapter Meeting on June 7th, when experts from the Job Accommodation Network (JAN) and Kaiser Permanente share their insights on the following ADA topics: accommodating depression & anxiety medical inquiries under the ADA ADA interactive process This half-day program has been approved for 3 CLMS/CPDM credits. It will take place at the Kaiser Permanente Town Hall on 3704 N Interstate Ave. The cost is $50 for members or $60 for nonmembers and includes breakfast. Parking is free. Register at the link below. http://dmec.org/2017/03/10/2017-oregonsouthwest-washington-chapter-meeting-jun-7/ Washington passes strict distracted driving law
Hopefully you are reading this blog post from the safety of your computer and not while driving. If you are using your cell phone to read this while on your morning commute, you could be violating a newly passed Washington Law. Governor Jay Inslee signed a measure that will prohibit Washington drivers from holding an electronic device while driving. Current law in Washington only prohibits texting or holding a phone to the ear while driving. The expanded law prohibits drivers from holding an electronic device while driving, including while in traffic or waiting for a traffic light. This means, no checking Facebook, no reading or sending emails, or using apps. Drivers are allowed to minimally use a finger to activate,… Continue reading Oregon Court of Appeals further defines susceptibilities or predispositions vs. preexisting conditions.
The Oregon Court of Appeals recently decided another case addressing what qualifies as a preexisting condition. Doris L. Lowells v. SAIF, 285 Or App 161 (2017). In Lowells, the court confirmed “chronic pain disorder” was not a compensable occupational disease because the major cause of the condition was claimant’s weight, deconditioning, and chronic tobacco use. Claimant argued on appeal that those personal factors should not be considered because they were “mere susceptibilities or predispositions.” The court previously discussed preexisting conditions and confirmed if a condition merely renders a worker more susceptible to an injury, but does not actively contribute to damaging the body part, it cannot qualify as a preexisting condition. Corkum v. Bi-Mart Corp., 271 Or App 411, 419,… Continue reading Oregon WCD issues Temporary Rules Clarifying Claim Closure Requirements
In our efforts to keep you apprised of the latest developments regarding the Oregon Supreme Court’s decision in Brown (see Andrew’s blog on the case here.) and how the decision could affect claim processing (see Megan’s blog on the issue here.), we are forwarding the temporary administrative rules issued by the WCD. As expected, the rules confirm that medically stationary status, permanent impairment, and permanent work restrictions must relate to the accepted condition or to a direct medical sequela of the accepted condition. The temporary rules remove the phrase “a condition directly resulting from the work injury.” The WCD also revised Bulletin 239, the claim closure guide provided to medical arbiters. The bulletin provides useful information to ask the attending… Continue reading 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 What can Brown do for you? In a long-awaited decision, the Oregon Supreme Court reverses Brown v. SAIF
It has been almost three years since the Oregon Court of Appeals issued its decision in Brown v. SAIF, 262 Or App 640 (2014), finding that a “compensable work injury” referred to the injurious incident and all the conditions that flowed from it, accepted or not. The case was appealed to the Oregon Supreme Court, which issued its decision on March 30, 2017, reversing the Court of Appeals’ decision and affirming the Workers’ Compensation Board decision. In a lengthy opinion, the Supreme Court ruled that the term “compensable injury” shall be interpreted to mean only the medical conditions accepted by the insurer or self-insured employer. This case involved a combined condition denial. The claim was accepted for a lumbar strain… Continue reading Join SBH Attorney Lauren Oda at WSIA Region Meetings
Lauren Oda will be presenting with orthopaedic surgeon Scott Kitchel, M.D. at four WSIA Region Meetings in April. Lauren and Dr. Kitchel will discuss common orthopaedic injuries of the spine and various mechanisms of injuries. The presentation will also discuss strategies for writing clear and concise IME cover letters to obtain persuasive IME reports. Information on the meetings is below. Tuesday, April 4, 2017 8:00 AM- 9:45 AM WSIA Office • 828 7th Avenue Southeast • Olympia, WA 98501 Tuesday, April 4, 2017 11:00 AM – 12:30 PM Valley Medical Center • Medical Arts Center MAC A • 400 S. 43rd Street Renton, Washington 98055 Tuesday, April 25, 2017 8:00 AM – 9:30 AM US Bancorp Tower • Training Room… Continue reading Disability/Leave Roundtable for Employers
The Oregon/SW Washington chapter of the DMEC is hosting a free lunch roundtable on March 15, 2017. Employers, HR professionals, and leave administrators are encouraged to attend to discuss leave management challenges. The event is free, but registration is required. March 15, 2017 from 11:30 a.m. to 1:00 p.m. at Kaiser Town Hall – 3704 N Interstate Avenue. Register here: http://dmec.org/2016/12/20/2017-oregonsouthwest-washington-chapter-meeting-mar-15/ 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 LHWCA Caselaw Summary
The following is a review of recent relevant Longshore and Harbor Workers’ Compensation Act caselaw. There were relatively few decisions and none created new law with the possible exception of the 4th Circuit’s decision in Metro Machine Corporation. The Benefits Review Board issued 13 LHWCA decisions in November, 5 in December, and has not posted January decisions on its website. All of the Board decision were designated as unpublished. They are instructive but do not set precedent. Average Weekly Wage – §10(c) No mandate to base average weekly wage exclusively on overseas earnings. Kuza v. Global Linguist Solutions, LLC, BRB 16-0227, 12/8/16 (unpublished). In 2012, for three and one-half months, claimant worked for UPS in the… Continue reading Changes to Oregon rules regarding Employer/Insurer Coverage Responsibility effective as of January 1, 2017
OAR 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 Oregon Employer-at-Injury Program effective as of January 1, 2017
OAR 436-105 explains who qualifies for and how to request assistance and reimbursement from the Employer-at-Injury Program (EAIP). The EAIP encourages early return to work by providing incentives to employers from the Workers’ Benefit Fund. Several changes were made to the EAIP administrative rules and vocational assistance rules. The following are some of the key changes to the EAIP. OAR 436-105-0003(3): Clarifies documents can be submitted to the WCD via the US Postal Service, physical delivery to the Salem WCD office, fax, or any other method approved by the WCD (the WCD is working on developing an online portal system similar to the WCB’s portal). OAR 436-105-0006: Specifies money from the Workers’ Benefit Fund cannot be used to provide benefits… Continue reading Changes to OAR 436-060 effective as of January 1, 2017
In 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 New Oregon WCD Rules go into effect January 1, 2017
Earlier this year, the Oregon Workers’ Compensation Division proposed extensive changes to division rules. The rule changes go into effect on January 1, 2017. The following OAR 436 divisions include changes: – 050, Employer/Insurer Coverage Responsibility – 060, Claims Administration – 105, Employer‐at‐Injury Program – 110, Preferred Worker Program – 120, Vocational Assistance to injured Workers A complete copy of the rules and changes can be found here. Over the next couple of weeks, SBH will provide details on how the rule changes will impact claims administration. In the meantime, if you have any questions about the rule changes please contact me at mvaniman@sbhlegal.com. LHWCA Quarterly Case Law Summary
Attorney Fees – Entitlement Board allows fees for defending a fee petition. Baker Botts not binding on fee shifting statutes. Clisso v. Elro Coal Company, 2016 WL 3575792 (BRB 15-0010 BLA, 2016). Employer objected to payment of $300 for one hour of attorney services for defense of the fee petition. The Board held the Supreme Court’s decision in Baker Botts LLP v. ASARCO LLC, 135 S.Ct. 2158 (2015) was not applicable because §28(a) is a fee shifting statute and therefore is an exception to the American Rule that litigants pay their own attorney’s fees. The Board cited United States District Court decisions refusing to apply Baker Botts in a Fair Debt Collection Practices Act, Equal Access… Continue reading Federal Court Denies Injunction of OSHA Recordkeeping Rule
OSHA issued a final rule regarding electronic recordkeeping that also included new anti-retaliation records. Read a prior blog post regarding this rule here: https://sbhlegal.com/new-osha-rules-address-post-accident-drug-testing-retaliation-claims-and-electronic-injuryillness-reporting/ A group of insurer and industry groups in Texas filed suit challenging OSHA’s authority to enact the anti-retaliation provisions of the new rule. They asked the court to enjoin OSHA from implementing the new rule until it could consider the merits of the challenge. Today, that federal court denied the motion for that preliminary injunction. The court found the plaintiffs failed to show that irreparable harm would result if the court did not stop implementation of the rule pending a final decision. As a result, the anti-retaliation provisions will go into effect on Thursday, December 1,… Continue reading