Washington Department of Labor & Industries Implement Changes to Red Card Appeals Processes and Discrimination Adjudication Processes in August
The Washington Department of Labor & Industries intends to implement the provisions of 2021’s Engrossed Substitute House Bill 1097 later this month. This bill made changes to the inspection and appeal process of Orders of Immediate Restraint (OIR), set up an adjudicatory process for discriminatory employer conduct, and provided additional…
Updated Heat Protections Rules in Washington Implemented Year-Round Focusing on Shade, Cool-Down Rest Periods and Monitoring of Workers.
On July 17, 2023, new changes went into effect under WAC 296-62-095 and WAC 296-307-097 expanding the existing requirements relating to outdoor heat exposure. These changes are targeted at prevention of heat-related illness and reduction of traumatic injuries for outdoor workers associated with heat exposure. The new rules are implemented…
Denying an Oregon Claim Based on an IME? Read This!
At this point, you can probably issue a claim denial in your sleep. You know the denial must state the factual and legal reasons for the denial (OAR 436-060-0140(8)(a)) and must contain, in prominent or bold-face type, notice regarding the worker’s rights to an appeal (OAR 438-005-0055). You also know…
New Notice Requirement for Independent Medical Examinations in Washington Effective July 23, 2023.
Substitute House Bill (SHB) 1068 was adopted into law by the legislature effective July 23, 2023. This legislation amends RCW 51.36.070, giving workers the right to record independent medical examinations ordered under that section, RCW 51.32.110 or by the Board of Industrial Insurance Appeals. A worker can record the audio,…
Oregon Annual Adjustment to Maximum Attorney Fees Effective July 1, 2023
It’s that time of year again, the Oregon Workers’ Compensation Board published the annual adjustment to attorney fees awarded under ORS 656.262(11)(a); ORS 656.262(14)(a); and ORS 656.308(2)(d). This year–there’s a twist: there was no increase to the maximum attorney fees. Per ORS 656.262(11)(a) and ORS 656.308(2), maximum attorney fees under…
2023 Legislative Wrap-Up – Key Changes for Oregon Employers
The 2023 Oregon Legislative session adjourned June 25, 2023. Below is a summary of the bills impacting Oregon employers that passed this session. SB 999 aims to more closely align Paid Leave Oregon and the Oregon Family Leave Act (OFLA). The bill has been signed into law and went into…
Oregon Legislative Roundup
There was slightly more drama to the 2023 Oregon legislative session than in a typical year, but the session came to a close on June 25, 2023 after the legislature finalized a slate of bills. The workers’ compensation system will be impacted in particular by three new pieces of legislation….
COVID-19 Era Amendment to the Oregon Equal Pay Act to Become Permanent?
Under the current version of the Oregon Equal Pay Act, employers are prohibited from paying an employee a higher rate than a coworker for similar work unless the pay disparity is justified by “bona fide factors” such as seniority, merit, travel, education, training, or experience. All types of compensation including…
Oregon Court of Appeals Rejects Claimant Argument to Expand Meaning of “Compensable Injury” for Purposes of Assigning Permanent Impairment
On June 7, 2023, the Oregon Court of Appeals issued its Opinion on Gramada v. SAIF, refusing to expand the meaning of the term “compensable injury” for the purposes of assigning permanent impairment. Gramada stems from an appeal of an Order on Reconsideration which affirmed the Notice of Closure on…
New PTSD Presumption for Registered Nurses in Washington
On May 9, 2023, Governor Jay Inslee signed SB 5454 into law further expanding the number of presumptions under the Washington Industrial Insurance Act. SB 5454 provides presumptive coverage under the Industrial Insurance Act to Registered Nurses for Post Traumatic Stress Disorder (PTSD). The new presumption is limited to Registered…
There’s a fee for that! The Oregon Court of Appeals authorized the award of attorney fees incurred while litigating the reasonableness of an attorney fee award.
In the case of Peabody v. SAIF, 326 Or App 132 (2023), the Oregon Court of Appeals addressed appeals brought by Ms. Peabody regarding entitlement to attorney fees. The Court of Appeals ultimately reversed the Oregon Workers’ Compensation Board’s decision denying the award of an attorney fee to claimant’s attorney…
Oregon OSHA – Senate Bill 592A Significantly Expands Oregon OSHA Investigation Authority and Substantially Increases Civil Penalties.
Oregon lawmakers have approved a bill that expands OSHA investigation authority and increase the penalties businesses face when they violate workplace safety rules. Governor Tina Kotek is expected to approve and the bill will go into effect immediately. The bill creates significant changes to the Oregon Safe Employment Act including:…
Changes coming to retroactive temporary disability authorizations in Oregon
In our prior blog post, here, we discussed the changes coming under House Bill 4138, as it relates to claim closure and overpayment issues. We turn now to the changes to temporary disability issues. These changes go into effect on January 1, 2024. The first amendment permits the attending physician…
Compensability of Medical Treatment in Oregon – Standard: Related in Material part to “Work Injury” or Directed to Accepted Conditions
In 2019 the Oregon Supreme Court determined that medical services under ORS 656.245 for an unclaimed, unaccepted condition can be the responsibility of a carrier if the medical services were due in material part to the work accident. Garcia-Solis v. Farmers Ins. Co., 365 Or 26 (2019). This remains the…
New Claim Closure and Overpayment Rules in Oregon Starting January 1, 2024
As we have touched on before, there will be some major changes next year to how we process claims, particularly when it comes to claim closure and overpayment issues. These changes have already been made, but will not apply to claims until January 1, 2024. First, when determining claimant’s medically…
Washington’s Department of Labor & Industries Announces Changes to Covid-19 Presumption and IME Rules
As the saying goes, change is constant. Never, it seems, has this saying been more applicable to Washington workers’ compensation laws and claims administration. The past few years have seen drastic changes in how employers process and manage Washington workers’ compensation claims (the ramifications of Maphet continue to unfold), and…
Climate change shapes the Department’s proposed rule changes for outdoor heat exposure safety in Washington
Summer is right around the corner and every year, outdoor temperatures are rising due to climate change. Before the first heat wave sets in, now is a great time to remind Washington employers of the current outdoor heat exposure rules and review the Department’s recently proposed changes for these rules….
When can a worker reclassify a Washington industrial injury claim to an occupational disease claim?
In Washington, workers’ compensation claims are bifurcated and categorized as an industrial injury or an occupational disease. An “industrial injury” involves a sudden and tangible happening of traumatic nature, producing an immediate or prompt result, and such physical conditions result there from. See RCW 51.08.100. An “occupational disease” involves a…
Oregon State Legislature likely to pass House Bill 3471, creating new law for future “global” workers’ compensation settlements
Oregon workers’ compensation claim settlements come in many forms. Claim Disposition Agreements (CDAs) resolve disability entitlements related to an accepted claim, such as temporary and permanent disability benefits, aggravation rights, and entitlement to vocational services. Disputed Claim Settlement Agreements (DCSs) affirm partial and complete claim denials and, if a current…
New Washington Board Decision Addresses Closure of Claims When Worker Deceased
The Washington Board of Industrial Insurance Appeals recently designated a new significant decision addressing the situation where a worker dies for unrelated reasons with an open claim, and before their ability to work within their industrial restrictions has been established. This decision holds that employers cannot defeat a pension claim…
Washington Board of Industrial Insurance Appeals Makes In Re Michael Reed a Significant Decision
On March 7, 2023, the Washington Board of Industrial Insurance Appeals published its Significant Decisions from 2022. Each year the Board classifies a small number of decision and orders as “significant”, meaning they contain an analysis or decision of substantial importance. The Board originally published In re Michael Reed, BIIA…
Where should Oregon Claim Disputes be Decided?
When Oregon workers’ compensation claim disputes arise, it is important to assess whether the dispute should be heard by the Oregon Workers’ Compensation Division or by the Workers’ Compensation Board. Oregon workers’ compensation statutory and regulatory scheme provides that the Board has jurisdiction over “matters concerning a claim.” ORS 656.283(1);…
Are Oregon Attorney Fee Awards Higher in Workers’ Compensation? Yes!
It is not your imagination. The Workers’ Compensation Board published their Annual Attorney Fee Report on January 19, 2023, which includes a breakdown of the attorney fees the Board awarded in the 2021 calendar year. You can find the complete report here. The total attorney fees awarded to claimant are…
Washington Legislature Considers Bills to Drastically Increase Penalties and Impose Standard of Care on Self Insured Employer’s/TPAs
As part of the current session, the Washington State legislature is considering bills in the House and Senate which impose a duty of good faith and fair dealing on self-insured employer and their administrators. Both bills include unprecedented penalties for violations of the duty they create. HB 1521 Amends to…
No Doctor, No Problem? Rule 904 & Washington State Claims
There are many reasons, despite the best efforts of adjusters, adjudicators, and attorneys, that a workers compensation claim may take a while to resolve. Long courses of treatment, symptom improvement followed by aggravations and setbacks, intervening injuries or even disappearing claimants can all leave claims languishing without resolution. After years…
