Combined Conditions = OCI +PEC

sarah ewing 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 non-disabling foot strain. He filed an expansion request for two conditions predating his injury: navicular fracture and avascular necrosis (AVN); neither condition had been diagnosed or treated prior to the work injury. The employer issued a Combined Condition Denial. Claimant requested hearing. … Continue reading

ARU threatens to overturn Oregon closures where job analysis not sent to claimant

Jamie CarltonTo 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 descriptions must contain a description of the physical requirements of the job. They must also be sent by certified mail to claimant and his/her counsel. If the insurer does not establish compliance with this rule at the time of reconsideration, ARU will likely overturn the Notice of Closure. In one recent claim, a job description, which did not specifically identify the physical requirements of the… Continue reading

Longshore Recent Caselaw Update

norman coleHere 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 work related. In Insurance Company of State of Pennsylvania v. Director, OWCP, the 5th Circuit held the §20(a) presumption does not apply to secondary injuries, such as an infection that develops as a consequence of a work related surgery but was not directly caused by the on the job injury. Instead, the claimant must prove the secondary injury is the natural and unavoidable consequence of the initial injury.… Continue reading

Join me for a ADA FMLA Roundtable hosted by Kaiser

Jamie CarltonMike 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 would like to see on the agenda, please e-mail me at I hope to see you there. Details for the event are: Thursday, July 11th from 11:30 – 1 p.m. Kaiser Town Hall, 3704 N. Interstate Avenue, Portland, Oregon. Lunch will be provided. Please e-mail Dianne Gibson at if you would like to register.

New Washington 2013 Benefits Schedule Effective Today

lee ann loweOn 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, 2013 through June 30, 2014. RCW 51.32.072 continues to apply, meaning for injuries on or after July 1, 2011 COLA does not apply under the second July after the date of injury. Other notable changes in the benefits schedule effective July 1, 2013 include: For dates of injury on or after July 1, 2013: *The maximum monthly time loss rate is $5,159.50 *15% of the… Continue reading

US Supreme Court Issues Two Title VII Decisions That Favor Employers

Krishna Balasubramani | Sather Byerly and Holloway, Oregon and Washington Employment Law, Workers Compensation, Longshore, and OSHA Defense AttorneysOn 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 these two cases to clarify the law and resolve the conflict between the different legal interpretations being followed by different circuits. In the first case, the US Supreme Court ruled that Title VII retaliation claims must be proved according to traditional principles of ‘but-for’ causation, not the lesser ‘motivating factor’ test that applies to status based discrimination. This requires proof that the unlawful retaliation would not… Continue reading

Case Summary: Mendoza v. Liberty, Decided by the Court of Appeals June 12, 2013

deborah satherClaimant 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 team leaders for this travel time. If the team leader did not travel to the Tacoma office, the checks were mailed to the Portland office or delivered by the district manager. In December 2008, claimant was asked by another team leader to substitute and travel to the Tacoma office and pick up the paychecks. While in route, claimant was injured in a motor vehicle… Continue reading

Do I have to pre-approve a referral or treatment request?

rebecca watkinsWe 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 issue and successfully convinced the MRU that pre-authorization was not necessary for a referral to a specialist. The MRU order states: “While the director appreciates [the doctor] would prefer there be authorization for the referral to a knee specialist prior to making the referral, (assumedly for guarantee of payment), authorization by the insurer is not mandated by statute or rule.” Admin. Order of Dismissal, WCD… Continue reading

Teleworking: Employer Beware

Krishna BalasubramaniThe 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 to represent 4.3 percent of all employment (up from 3.3 percent). A question that is not often asked is: are employers adequately prepared to handle the workers’ compensation liability created by teleworking employees? There are an increasing number of cases being issued by the Workers’ Compensation Board finding injuries occurring at or near… Continue reading

Learn What MLAC Can Do For You

lauren odaEmployers, 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 is MLAC? Why do we have it? What is it doing for us? Tami Cockeram, an MLAC committee member and City of Hillsboro Risk Manager will be presenting on the history and current activities of MLAC. MLAC is the Management-Labor Advisory Committee. MLAC was created in 1990 as an advisory committee to assist with workers’ compensation reform. MLAC provides a forum for business… Continue reading