Oregon WCD Proposes Rule Changes

Anderson, Kevin_webThe WCD is seeking input on three topics before the end of August. Proposed rules would be drafted and discussed at a public meeting in the fall. Any input now helps the WCD draft clearer and more helpful rules, or avoid drafting rules if there is a statutory conflict of if the rules would be unnecessary.

  1. Medical Care: The WCD plans to move forward with a change to the 801 form requiring two new acknowledgements, one by the worker and one by the employer. The specific language is still being drafted and will be discussed in the fall, but the language will require the employer to inform claimant of his/her right to choose a medical provider and that the employer cannot direct medical care (subject to MCO rules). Several doctors and a few claimant’s attorneys have raised concerns about employer requiring an injured worker to treat with a specific doctor or at a specific clinic (such as an Occ-Med facility). The WCD has received around 14 complaints a year regarding this; none have required sanctions. One concern is when an 801 is not completed until weeks/months after an injury, often by phone, and claimant is off-work and unable to sign the document.
  1. Attorney Fees: Last year the legislature enacted ORS 656.277, which allows for an attorney fee if claimant’s attorney is instrumental in obtaining an order reclassifying a claim. Currently if claimant’s attorney request review of a Refusal to Reclassify and the WCD begins its review process, the insurer can voluntarily reclassify the claim and claimant’s attorney would not be entitled to a fee. The WCD is considering a process to allow for an attorney fee even if the claim is reclassified before the order is issued. However, the WCD is likely prevented from implementing this as they cannot issue rules conflicting with ORS 656.277 which only allows for a fee after the order is issued.
  1. Supplemental Disability: Currently an insurer is not required to notify a worker when the worker is determined ineligible for supplemental disability benefits until the insurer received verifiable documents of the worker’s wages from the secondary job. In practice, an insurer would send the worker a letter requesting information regarding wages on a second job. If the worker submitted the documentation and still found ineligible, then the worker would be notified of the determination. If the worker never submitted information they would never be informed of their ineligibility. The Department of Justice recommended clear notice provisions to avoid a Due Process claim; the notice to the worker would also allow for a final determination for the insurer.

If you have any questions, comments, or concerns with these proposed rules, please contact me at kanderson@sbhlegal.com.