How exclusive is the exclusive remedy in Oregon Workers’ Compensation?
At the core of the Oregon workers’ compensation system is a compromise between workers’ and employers. Employers must provide benefits for work-related injuries even when there was no negligence by the employer which led to the incident. But these work-related injuries cannot serve as the basis of a lawsuit against…
Washington House Bill 1927 Passed to Adjust Time-Loss Eligibility for Injured Workers
Washington State Governor Jay Inslee signed into law House Bill 1927 which makes it easier for injured workers to qualify for workers’ compensation benefits for the first few days following their injury. This change took effect on June 6, 2024 and impacts all claims with dates of injury or manifestation…
Oregon Court of Appeals Upholds Nava Rule
In Nava v. SAIF, 333 Or App 196 (2024), claimant sought judicial review of the Board’s denial of penalty and attorney fees under ORS 656.262(11)(a) for unreasonable delay in payment of compensation. By way of background, claimant was compensably injured in November 2017 and the claim was accepted for left…
Oregon: Processing Proposed Surgical Authorization Requests Is Not Solely Based on Accepted Conditions
In 2019, the Oregon Supreme Court held that medical services materially related to the work injury are compensable under ORS 656.245 and are not limited to only the accepted conditions. Garcia-Solis v. Farmers Ins. Co., 365 Or 26 (2019). This decision continues to have a significant impact on claim processing…
Washington Legislature Potentially Provides Extended Benefits to Claimants on Reopen Applications
The Washington Industrial Insurance Act allows claimants to reopen their claims following closure when the conditions proximately related to their industrial injury or occupational disease objectively worsen post-closure pursuant to RCW 51.28.040. To complete a reopening application, the claimant must submit an application completed both by the claimant and by…
OREGON: When post-denial IME reports are submitted as evidence at hearing to bolster denial, Court of Appeals declares denial is based on the post-denial IME report.
On April 17, 2024, the Oregon Court of Appeals issued a ruling in Teitelman v. SAIF that a Worker Requested Medical Examination (WRME) can be based on a post-denial IME that was submitted into evidence by the insurer to bolster a denial. WRMEs are governed by ORS 656.325(1)(e) and OAR…
Normally Reasonable: Transferring Attending Providers in Washington Workers’ Compensation Claim
Claimant’s attending physician plays an important role in assisting claimant’s return to their job of injury. Their attentiveness and skill as a provider often dictate how efficiently a claim is processed. Many claims have one attending provider for the duration, however, there are some instances where claimant seeks treatment from…
In Oregon, Delay In Seeking Clarification From Attending Physician Regarding an IME, PCE, and Regular Work Release Can Result in Unreasonable Refusal to Close.
The Oregon Workers’ Compensation Board is holding carriers to a high standard when it comes to securing the evidence needed to rate impairment and work disability. The expectation is the carrier will arrange the closing examination, physical capacity evaluation and then ensure the attending physician provides a clear and unconditional…
Is that Docket Properly before the Board? Recent Board of Industrial Insurance Appeals Actions Caution Washington Employers to Double Check the Appealed Department of Labor & Industries’ Order
Washington’s Board of Industrial Insurance Appeals has long been deemed one of limited jurisdiction – the Board cannot act if it does not have the proper authority do so. The Board does not have the statutory authority to consider matters not first determined by the Department of Labor & Industries….
Surgery in Oregon? Here’s What to Know
The Oregon Workers’ Compensation Division recently added some new deadlines to be aware of when dealing with surgery requests in the MCO context. You can read more about the changes here. But, dealing with a surgery request can still be complicated with a lot of short deadlines, so here is…
Navigating suspension of benefits and claim closure for Washington claims
There are several reasons why a self-insured employer may move the Department of Labor & Industries to suspend an injured worker’s benefits under the claim. RCW 51.32.110 and WAC 296-14-410 provide guidance for when it is appropriate to request suspension of benefits. These reasons include when an injured worker refuses…
OREGON: “Exclusive Remedy” win for employers/administrators/insurers at Oregon Court of Appeals
On April 10, 2024, the Oregon Court of Appeals issued a ruling reiterating the importance of the exclusive remedy clause under ORS 656.018. The case, Pierce v. Best Western Int., was litigated by Rebecca Watkins of SBH Legal. ORS 656.018 is the “exclusive remedy” clause for workers’ compensation claims in…
New Oregon Law Amending OFLA & PLO Takes Effect July 1, 2024
Oregon Governor Tina Kotek recently signed new legislation aimed at simplifying Oregon’s leave laws. Senate Bill 1515 eliminates many types of leave previously covered under the Oregon Family Leave Act (OFLA). The goal is to decrease overlap between the types of leave that qualify for OFLA and Paid Leave Oregon…
Oregon Board finds “going and coming” rule does not apply to worker crossing street to retrieve work clothes from her vehicle
A recent Oregon Workers’ Compensation Board case, In re Cambria Souza, 76 Van Natta 130 (2024), found a workers’ injury compensable where they were hurt crossing a public street to retrieve work clothing from their car. Cambria involved an Oregon restaurant server who parker her car in a public lot…
How to Collect an Overpayment in Washington
It is not uncommon for an overpayment of benefits to occur during the administration a workers’ compensation claim. An overpayment may arise due to clerical error, innocent misrepresentation or willful misrepresentation (RCW 51.32.240). Often overpayments arise when a worker is paid provisional time loss benefits and the claim is later…
Navigating the Pitfalls of Oregon Workers’ Compensation. The Ins and Outs of Injury under a Combined Condition.
We are all familiar with the idea of a “compensable injury” in Oregon workers’ compensation law. A compensable injury is any injury sustained while performing work-related duties that results in a disability or the requirement for medical attention. However, this broad concept of an injury may be somewhat limited when…
New Rules Impacting MCO Enrolled Claims in Oregon – Effective April 1, 2024 and October 1, 2024
The Department of Consumer and Business Services Workers’ Compensation Division amended several provisions of the OAR that will directly impact MCO enrolled claims in Oregon. The net effect of the amended OAR is essentially more claim processing, and in the worst-case scenario, potential exposure for increased claim costs, litigation costs,…
Washington Significant Vocational Board Decisions
Two significant decisions regarding the vocational process were recently determined by the Board of Industrial Insurance Appeals. In re Michael Killpatrick BIIA Dec., 21 13384 (2023) clarified what qualifies as good cause for an interruption of a vocational plan. Mr. Killpatrick was in the process of going through vocational retraining…
Ordered to accept a new/omitted condition in Oregon? Combined condition processing remains a responsive option
On January 9, 2024, the Workers’ Compensation Board ruled in Maria F. Opferman, 76 Van Natta 10 (2024), that the employer’s post-litigation acceptance of a concussion combined with a preexisting condition was valid. Through prior litigation, an administrative law judge (ALJ) ordered the employer to accept a concussion. In lieu…
Guidance on a Washington Workers’ Compensation Occupational Disease in a Post-COVID (Presumption) Era
The Washington Department of Labor & Industries lifted its COVID coverage presumption on April 11, 2023. Under the presumption, frontline workers who tested positive for COVID-19 between February 29, 2020 and April 11, 2023 were automatically considered to have contracted the disease at work and the burden was placed on…
Oregon Injured Worker Not Cooperating? There’s a Denial for that.
Insurers or self-insured employers are required to conduct a reasonable investigation based on all available information” in order to decide whether to accept or deny a claim. See OAR 436-060-0140(1). Additionally, workers also have an obligation to cooperate with and assist the insurer’s or self-insured employer’s investigation into their claim….
New Washington case provides limitations to Maphet
For self-insured employers in Washington, one of the most significant decisions in recent years was the Washington Court of Appeals’ 2019 opinion in Clark County v. Maphet. 10 Wn.App.2d 420 (2019). This decision was significant because it no longer allowed employers to authorize treatment for conditions that held no causal…
Reminder – Significant changes to Oregon claim closure requirements and temporary disability notices
The start of the year brought several updates to the administrative rules governing claim closure, reconsideration, claim administration, and vocational assistance to injured workers. Carriers should be mindful of the changes discussed below as they have been in effect as of January 1, 2024. Changes to the rules governing Claim…
Extinguishing the Firefighter Presumption in Oregon Workers’ Compensation
The introduction of H.B. 2915 to the Oregon Legislature, signed into law in the same year, expanded workers’ compensation protection to Portland firefighters who had previously been exempted under Oregon law due to the city’s independent disability and retirement system. This inclusion further gave rise to the need to understand…
Oregon WCD Proposing New Medical Treatment and Billing Rules
The Oregon Workers’ Compensation Division had a public comment meeting in November 2023 to discuss issues related to the medical fee schedule, medical services, and MCO. The agenda and minutes are included here. From that meeting, the WCD is moving forward with proposed rules. The full proposal is here, but…
