Highest State Court finds PERS reform unconstitutional
By: Rebecca Watkins In a decision issued April 30th, the Oregon Supreme Court struck down a key provision of 2013 legislation concerning the Public Employees Retirement System. The legislature reduced cost of living adjustments (COLA) for current PERS retirees to cut costs. In a decision that many predicted, the Court…
Federal Court ruling suggests that every disabling Workers’ Compensation claim should trigger ADA interactive process
By: Krishna Balasubramani Judge Michael Simon issued a decision in Dunlap v. Liberty Natural Products, Inc. (April 20, 2015) addressing the overlap between the ADA and a Workers’ Compensation claim. The Defendant employer received a Notice of Closure that “classified Plaintiff’s claim as disabling under Oregon workers’ compensation law.” He…
Could an Increase in Assessed Attorney Fees be Coming?
By: Megan Vaniman House Bill 2764 was introduced to the House Floor on April 20, 2015. HB 2764, spearheaded by the Oregon Trial Lawyers Association, is wide-reaching and proposes to increase or create new bases for attorney fee awards. HB 2764 has the potential to significantly increase employers’ workers’ compensation…
SBH Attorneys Present at WCCA Spring Conference
By Kevin Anderson I had the pleasure of presenting with my colleague Rebecca Watkins and Sheri Sundstrom from Hoffman Construction at the WCCA conference regarding the new claim closure rules from the WCD. For those of you unable to attend, themost important changes are that the attending physician must address the…
Why are Claimant’s Attorneys receiving a Fee when the ALJ affirms a Denial?
By: Kevin Anderson A claimant’s attorney received a fee for unsuccessfully challenging a new/omitted claim for “arthralgia.” Even though the de facto denial was ultimately upheld, the Court of Appeals agreed $1,500 was a reasonable attorney fee given the procedural delay in responding to claimant’s request. SAIF v. Emma R. Traner,…
Join SBH at the WCCA Spring Education Conference
By: Rebecca Watkins Come join us Tuesday April 14, 2015 in Wilsonville for the WCCA Spring Education Conference. Presenters will cover topics such as investigations, job description, chronic pain therapies, and common orthopedic injuries. Kevin Anderson and I will be presenting with Sheri Sundstrom from Hoffman Construction regarding the recent…
Pregnancy and Work: Young v. UPS
By: Sarah Ewing Pregnancy discrimination is protected under the Pregnancy Discrimination Act (PDA). Courts often struggle with how to handle pregnancy issues because it is separate from the American with Disabilities Act (ADA) and an on-the-job injury. Under the ADA, a person qualifies for protected leave when they have a…
Longshore Recent Caselaw Update
By: Norman Cole There have not been many noteworthy cases issued during the last several months. Jackson v. Ceres Marine Terminals, Inc, 2014 WL 749188 (BRB 14-0071, 2014), held an opinion offered by an OWCP sponsored medical examiner is not dispositive. (If it is not dispositive, it would be better…
Managing Chiropractic Care in Oregon
By: Megan Vaniman Chiropractic care is often frequent and long-lasting. Oregon Workers’ Compensation laws limit the time a chiropractic doctor can act as an attending physician. ORS 656.005(12)(b)(B)(i). However, a claimant can continue to receive chiropractic care if an otherwise authorized attending physician continues to prescribe it. Once the new…
New Administrative Rules Regarding Claim Closure effective March 1, 2015
By: Kevin Anderson The WCD has published new administrative rules responding to two recent court cases (Brown v. SAIF, 262 Or App 640 (2014); Schleiss v. SAIF, 364 Or 637 (2013)). The WCD initially proposed a broad-sweeping change that would link all claim benefits to the “work injury” instead of…
DMEC Quarterly Roundtable Tomorrow
By: Rebecca Watkins Do FMLA & ADA issues frustrate you? DMEC hosts quarterly roundtables for employers and HR professionals to come together and discuss the tricky aspects of employee leave and accommodation. Join us tomorrow! The roundtable takes place at Kaiser Permanente Town Hall on January 14th from 11:30 a.m….
WCD Seeks Input on Significant Changes to OAR 436
By: Kevin Anderson Over the last few months, the Oregon Workers’ Compensation Division was considering making significant changes to OAR 436 in light of two recent court decisions. (Brown v. SAIF, 262 Or App 640 (2014); Schleiss v. SAIF, 364 Or 637 (2013). The WCD has decided to move forward…
Oregon Bureau of Labor & Industries Seeks Comments on Proposed Rule Changes
By: Rebecca Watkins The proposed changes include a number of “housekeeping” items that simply update language or make it consistent throughout the rules, and to implement a reorganization of BOLI. Among more substantive changes, there are proposed rules pertaining to retaliation under the Oregon Safe Employment Act (division 4), discrimination…
Workers’ Compensation Division Proposes Drastic Overhaul to OAR 436
By: Kevin Anderson Back in May, we let you know about a Court of Appeals decision that could have drastic changes to processing combined conditions. Brown v. SAIF (2014). After Brown, the proper inquiry in analyzing a combined condition is whether the work injury ceased being the major cause of…
Two favorable decisions from the Washington Court of Appeals.
By: Sarah Ewing Two recent published cases from the Court of Appeals both are favorable to employers. Mario Arriaga v. Department of Labor and Industries – (Division III) – At issue in this case is whether the attending physician’s protest of a segregation Order was timely. In December 2005, Arriaga…
Can you be terminated for being a jerk at work?
Since the 2008 ADA amendments, the ADA seems to get bigger and bigger as more impairments are given protection. The Ninth Circuit recently overturned a District Court jury verdict. This is a big deal in the legal world. Overturning a jury verdict is very unusual, especially one finding an employer…
Brown v. SAIF: End of the Combined Condition?
A recent Court of Appeals decision changes the test for closing an accepted combined condition claim. What does Brown v. SAIF mean for employers and insurers? In Brown v. SAIF, SAIF initially accepted a lumbar strain and was later ordered to accept a lumbar strain combined with lumbar disc disease…
Washington Court of Appeals finally issues long-awaited Zimmerman opinion.
In Board of Industrial Insurance Appeals v. South Kitsap School District and Daniel Zimmerman, issued today, the Court of Appeals addressed the extent of the Board’s authority to disapprove structured settlements. In February 2012 Mr. Zimmerman and the District entered into a structured settlement agreement in which he agreed to…
L&I Responsible for Post-Pension Medical Treatment When Second Injury Fund Relief Has Been Granted
The Court of Appeals has determined when Second Injury Fund relief has been granted, the Department, not the employer, is responsible for payment of post-closure medical treatment when the treatment is not solely due to the work injury. In The Boeing Co. v. Dep’t of Labor and Indus., ___ Wn….
Third Party Election Letters: Administrative Rule Changes Effective April 1, 2014
OAR 438-011-0055, effective April 1, 2014, mandates a new procedure for notifying claimants of third party election rights. Paying agencies must serve a written election demand by registered or certified mail or by personal service upon the claimant. The demand must include an informational disclosure complying with Board Bulletin #2….
Upcoming Work Sessions for Oregon Employers
The Oregon Employment Department and various workforce groups are hosting forums throughout the state in March and April to gather employer input. The goal is to determine what state-wide and local needs exist and how best to deliver state resources. Here are the upcoming dates: March 18 @ Seaside, OR…
FMLA vs. Paid Vacation Days: New Case from the Ninth Circuit
Do you have a FMLA policy that requires an employee to first exhaust paid vacation time that runs concurrently with the FMLA leave? What would you do if the employee elected to use paid vacation but not FMLA leave for qualified FMLA leave? The Ninth Circuit provided the answers in…
Join me at the ADA FMLA Employer Work Group March 6th
Kaiser Permanente and DMEC are partnering up and sponsoring an employer work group in response to continuing questions regarding ADA and family leave. This will be an opportunity for employers to bring questions about any aspect of the ADA and family leave process, challenging case studies, or examples of best…
New Washington Appellate decision limits Department discretion to authorize additional medical treatment under RCW 51.36.010 to cases closed with permanent total disability.
In Dep’t of Labor and Indus. v. Slaugh, decided October 31, 2013, the Washington Court of Appeals, Division III reversed a BIIA Order allowing ongoing treatment after claim closure. The claim for occupational asthma and restrictive airways disease was closed in May 2010 with an award for PPD. Claimant requested…
LHWCA Quarterly Update
Schwirse v. Director, OWCP, __ F.3d ___, 2013 WL 3840332 (9th Cir 2013). Longshoreman drank alcohol when at work and fell on concrete and a metal slab. Claimant argued the injury was not solely due to intoxication because the result of the fall was worse because of the hard surface…
