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Federal Court Stops DOL Exempt Salary Changes

rebecca_watkinsOn December 1st, the Department of Labor’s new rule regarding exemptions from overtime was set to go into effect. A ruling from a federal court yesterday suspends that rule. The DOL rule in question updated exemption rules that allow employees meeting both a salary test and duties test to be exempt from receiving overtime. The rule can be found at https://www.dol.gov/WHD/overtime/final2016/. It raises the salary test from $23,660 to $47,467 for most employees, and the salary test for “highly compensated employees” to $134,004. The rule ties the standard salary level to the 40th percentile of full time salaries of employees in the lowest census region, and ties the highly compensated employees salary level to the 90th percentile of full time… Continue reading

Claimant only required to show idiopathic factors were less likely to have caused unexplained injury

Vaniman-Megan_160-x-222The Oregon Court of Appeals established new case-law on claimant’s burden of proof in “unexplained fall” claims. If an injury is unexplained, as a matter of law, it is presumed to arise out of employment. Whether an injury is unexplained, is a question of fact. An injury is only deemed truly unexplained if the claimant eliminates idiopathic factors as causative. In Sheldon v. U.S. Bank, claimant fell in the lobby of her employer’s building. U.S. Bank denied the claim and argued her fall was caused by her diabetes and obesity. The Workers’ Compensation Board agreed and determined because there was medical evidence demonstrating diabetes and obesity can contribute to balance problems her fall was not truly unexplained.… Continue reading

“Good cause” for untimely injury filing does not require medical evidence

Evenson, Andrew_167x222Under ORS 656.265, notice of an accident resulting in an injury must be given immediately by the worker, but not later than 90 days after the accident. Failure to give notice of a workplace incident bars an injury claim unless the employer already had knowledge of the injury or death; the worker died within 180 days of the date of injury; or the worker can establish “good cause” for failure to give notice within 90 days after the alleged incident. The Court of Appeals of Oregon recently ruled in Dalia R. Lopez v. SAIF, 505 Or. App. 679 (2016), that a “good cause” showing for untimely injury filing does not require medical evidence. In this case, claimant’s regular work activities… Continue reading

Board’s new attorney fee rules go into effect on November 1.

vaniman-megan-colorThe Oregon Workers’ Compensation Board passed revised attorney fee rules on October 13, 2016. The most significant changes involve increased attorney fees for disputed claims settlements and claims disposition agreements. The Board increased attorney fees on Disputed Claim Settlements and Claims Disposition Agreements. Previously attorneys were awarded 25% of the first $17,500 of the settlement process plus 10% of any amount of proceeds in excess. The Board revised the rules to allow 25% of the first $50,000 of the settlement proceeds plus 10% of any amount of proceeds in excess of $50,000. The Board also increased the amount of attorney fees received in PPD and PTD cases. Previously awards were limited to 25% of increased compensation not to exceed… Continue reading

Claimant’s request for hearing on 10 year old denial is untimely.

Vaniman-Megan_160-x-222On October 26, 2006, SAIF issued a denial of claimant’s injury claim. The denial was mailed via certified mail and a person who identified himself as claimant signed for the denial. In June 2015, claimant requested hearing on the denial. Claimant testified that the address the denial was sent to was his address but denied signing for it. Claimant argued the statutory timeline for requesting the hearing did not start until he was made aware of the denial in June 2015. The Board first held the relevant time period for starting the statutory timeline is the date the denial is mailed, not the date claimant became aware of the denial. The Board next held, per ORS 656.319(1), there… Continue reading

October 5th seminar on workforce management

rebecca_watkinsJoin me and an excellent group of presenters for a full day of cutting edge topics related to disability management. Topics include emergency preparedness, ADA/FMLA challenges, productivity management, and more. This seminar is hosted by the Oregon/Southwest Washington Disability Management Employer Coalition, which has been recognized nationally for excellence by the DMEC. The meeting has been approved for 6 CPDM and 6 CDMS credits. For more information and to register, go to http://dmec.org/2016/08/01/2016-oregonsouthwest-washington-chapter-meeting-oct-5/

New Washington Supreme Court “Innocent Misrepresentation” Overpayment Case

Ewing, Sarah_160x222The Washington Supreme Court issued a new case addressing whether the Department has authority to issue an overpayment order and an order modifying claimant’s compensation rate based on claimant’s innocent misrepresentation. Claimant was injured at work. He needed assistance to complete the SIF-2 and because of a language barrier and claimant coming in and out of consciousness, the SIF-2 stated claimant was married and had a dependent child at the time of injury. The listed persons were actually his sister and niece. The Department issued several wage orders, each basing the wage calculation on claimant having a spouse at the time of injury. Claimant was awarded a pension and when he filled out the pension paperwork, he indicated he was… Continue reading

Proposed clarifications to Oregon Sick Leave rules

rebecca_watkinsActing on employer requests, BOLI has proposed additions and amendments to its rules about state sick leave. The proposed changes address the definition of “employee” and “employer”, the calculation of rate of pay for employees working on a piece-rate or commission basis, the responsibilities of joint employers (temporary or PEO situations), and undue hardships. The proposed rules can be viewed at http://www.oregon.gov/boli/Pages/legal/H_Notices.aspx . BOLI will accept comments on the proposed rules through September 26, 2016. Comments may be emailed to paloma.sparks@state.or.us or Marcia.L.Ohlemiller@state.or.us or mailed to Marcia Ohlemiller c/o BOLI, 800 NE Oregon St. #1045, Portland OR 97232. If you have any questions regarding the proposed clarifications or other employment law related questions, please contact me at rwatkins@sbhlegal.com
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