Proposed BOLI Rules
BOLI is currently proposing and taking input regarding several changes to Oregon employment regulations. Among the many newly proposed rules are the following: *Clarifications to disability regulations *Clarifications of “health care provider” and “victim” under the Oregon Family Leave Act laws *Extension of OFLA leave for death of family member…
Join me for a ADA FMLA Employer Work Group hosted by Kaiser
Mike Moses of Kaiser and I will be moderating an ADA/FMLA roundtable event to answer some of your questions. This is a roundtable forum, which allows employers to pose questions and get feedback in an informal environment. We will tackle real world situations presented by local employers. If you have…
The Latest on Independent Contractors
I had a recent victory from the Office of Administrative Hearings setting aside an Employment Department tax assessment based on the purported employee’s status as an independent contractor. The ALJ relied on a line of recent Court of Appeals cases that have trended toward applying a much broader interpretation of…
Court of Appeals Expands Smothers: Dan Alcutt v. Adams Family Food Services, Inc. (A147515) decided October 9, 2013.
The denial of this injury claim was approved as the insurer proved preexisting DDD, rather than a workplace injury, was the major contributing cause of disability/treatment for the combined condition. After an ALJ upheld the denial, the worker filed a negligence civil action against his employer. The trial court granted…
Oregon OSHA Backtracks on Confined Space Rule
In September 2012 the Oregon Occupational Safety and Health Division (Oregon OSHA) adopted a new confined space rule. Confined spaces, such as tanks, wells, or tunnels, have limited ability to exit, may contain potentially harmful material, and are not intended for human habitation. Workplace safety rules require employers take proper…
Loophole in Exclusive Remedy Protections Fixed
The Oregon legislature passed SB 678, amending ORS 656.018 to include limited liability partners, partners, general partners, limited partners, and limited liaibility company members to the list of persons entitled to immunity for providing workers’ compensation coverage to employees. This legislation arose in response to a decision by the Oregon…
Combined Conditions = OCI +PEC
Court of Appeals boils combined conditions down to a mathematical equation. In Vigor Industrial , LLC v. Randi Ayres, the Court of Appeals held that ORS 656.005(7)(a)(B), permits consideration of only qualifying preexisting conditions when determining the major contributing cause of a “combined condition.” Ayres had an accepted…
ARU threatens to overturn Oregon closures where job analysis not sent to claimant
To determine the extent of disability for the purposes of claim closure, OAR 436-030-0020 requires insurers mail of an accurate job description to claimants prior to closure. The provision applies if the worker has not been released to regular work or has not returned to the job at injury. Job…
Longshore Recent Caselaw Update
Here are a few interesting, if not noteworthy Longshore decisions for employers to be aware of. When a worker sustains an injury and produces evidence the injury could have been caused by work, the injury is presumed compensable, per §20(a), until the employer produces affirmative evidence the injury is not…
Join me for a ADA FMLA Roundtable hosted by Kaiser
Mike Moses of Kaiser and I will be moderating an ADA/FMLA roundtable event to answer your ADA/FMLA questions. This is a roundtable forum, which allows employers to pose questions and get feedback in an informal environment. We will tackle real world situations presented by local employers. If you have a situation you…
New Washington 2013 Benefits Schedule Effective Today
On June 25, 2013 the Department announced the 2013 benefits schedule. The cost of living adjustment (COLA) rate increase is 1.03409, based on a statewide average wage of $51,595 for 2012, a slight increase from the $49,894 average wage in 2011. The new COLA rate will be effective July 1,…
US Supreme Court Issues Two Title VII Decisions That Favor Employers
On June 24, 2013 the US Supreme Court issued 2 decisions dealing with Title VII cases. Both cases were decided by a divided 5-4 court and were decidedly ‘employer friendly’. Somewhat predictably, the same 5 conservative justices were in the majority on both cases. The Supreme Court accepted review of…
Case Summary: Mendoza v. Liberty, Decided by the Court of Appeals June 12, 2013
Claimant was the team leader of a small crew working for a property management company in its Portland location. Her responsibilities included distributing paychecks issued from the employer’s Tacoma, Washington office. The Employer allowed team leaders to travel to the Tacoma office to pick up paychecks, but did not pay…
Do I have to pre-approve a referral or treatment request?
We are seeing more requests to pre-authorize referrals or treatment other than elective surgery. When no pre-authorization is given, claimants or medical providers file medical disputes with the WCD. However, the administrative rules do not require such pre-approval. In a recent dispute before the Medical Review Unit, SBH confronted this…
Teleworking: Employer Beware
The CEO of Yahoo! recently created headlines by ending the company’s telecommuting or teleworking program. Perhaps not surprisingly, the decision was met with criticism by those who consider it to be going against a modern trend. To be more precise, the practice of telecommuting has grown dramatically in recent years, increasing 31 percent in 2009…
Learn What MLAC Can Do For You
Employers, HR Managers, and claims examiners – the Professionals in Workers’ Compensation organization is hosting their final educational breakfast event of the 2012-2013 season. Please join us for a great breakfast May 16, 2013 at the Crowne Plaza Hotel near Lloyd Center to learn about the importance of MLAC. What…
Wednesday May 8, 2012 WCCA Luncheon – Work Disability: Strategies for Securing a Release or Return to Regular Work
Injured workers have become more aggressive and creative in their pursuit of work disability awards because there is a lot of money at stake. If there is permanent impairment and an employer is unable to establish the worker was released or returned to “regular work,” then the worker is entitled…
Oregon Employer Council – State Conference for Business
Employers, HR managers, & Business Owners – The Oregon Employer Council is holding its annual State Conference for Business on May 6th & 7th on the Oregon Coast (Salishan). This will include keynote speakers such as the NOAA, which has its Marine Operations Center-Pacific in Newport, exhibit booths for businesses…
Some Common Sense from The Oregon Court of Appeals!
Employers have reason to celebrate following the April 17, 2013 decision from the Court of Appeals in Pamela Hamilton v. SAIF. In this course and scope case, the Court ruled that an injury sustained when a worker fainted and fell in the course of her employment was not compensable. …
New Portland City Ordinance Requires Mandatory Sick Leave
Today the City of Portland passed a citywide ordinance which will take effect January 1, 2014 requiring all Portland businesses to provide sick leave to employees. A similar ordinance was instituted in Seattle last year. Under the new Portland ordinance, which applies to all businesses within Portland city limits, businesses…
Drivers Selling Employer’s Products are “Subject Workers.”
The Court of Appeals decided RJ Enterprises LLC of Oregon v. Department of Consumer and Business Services, February 27, 2013. The employer sought review of a Department of Consumer and Business Services (DCBS) order upholding audit billings for workers’ compensation premiums for truck drivers. It argued the drivers that delivered…
Case Alert: Penalties at Claim Closure
In the most recent workers’ compensation case from the Court of Appeals, Walker v. Providence Health System, the court addressed penalties assessed relating to claim closure. The facts and procedural status of this claim have been over-simplified for this summary. The employer noticed an IME to determine if claimant had…
Longshore Act Update
As head of the SBH Longshore practice area, I publish a quarterly summary of recent LHWCA decisions (Benefits Review Board, Courts of Appeal, Supreme Court, and occasionally an ALJ decision). The most recent edition is available on our website, sbhlegal.com. One of the most significant decisions in the last few…
Board’s Interpretation of a Medical Opinion Must Be Reasonable
In a recent decision, Armenta v. PCC Structural, Inc. (A141790), the Oregon Court of Appeals issued an unfavorable opinion regarding the Board’s ability to disregard an expert’s medical opinion when it does not address the subject in dispute. Claimant sought review of the Board’s Order upholding the employer’s denial of…
Washington Court of Appeals Addresses Burdens of Proof in Occupational Disease Cases
Potter v. Department of Labor and Industries, a decision issued yesterday by the Division One Court of Appeals, is a good reminder that building strong medical evidence based on the applicable legal standards can be critical to a case. In June 2007 Ms. Potter’s employer moved into newly remodeled offices. …
