Oregon Workers’ Compensation Division announces new administrative rules in response to Brown v. SAIF

On March 30, 2017, the Oregon Supreme Court issued a much-awaited decision in Brown v. SAIF Corporation, 361 Or 241 (2017), ruling that the term “compensable injury” shall be interpreted to mean only the medical conditions accepted by the insurer or self-insured employer.

Since then, however, there has been some uncertainty regarding how and when the Workers’ Compensation Division (WCD) would permanently incorporate the Brown ruling into the Oregon Administrative Rules (OAR), Chapter 436. On September 8, 2017, the WCD announced and posted its final amendments to the following Divisions: OAR 436-010, Medical Services; OAR 436-030, Claim Closure and Reconsideration; and OAR 436-035, Disability Rating Standards. The permanent rules are effective October 8, 2017.

As expected, the predominant change in the administrative rules is that the language “or a condition directly resulting from the work injury” has been eliminated, narrowing the scope of an injured worker’s compensable injury to the accepted conditions and direct medical sequelae of accepted conditions.

Under OAR 436-030-0035, an injured worker is now medically stationary when all accepted conditions and direct medical sequelae of accepted conditions are medically stationary. Once the worker is stationary, the claim may be closed without impairment if the attending provider provides a qualifying statement of no disability. OAR 436-030-0020(2)(a), only requires a statement that there is no reasonable expectation of permanent impairment, or permanent work restriction preventing the worker from returning to the job at injury, caused in any part by an accepted condition or direct medical sequelae of an accepted condition. If there is a reasonable expectation of permanent impairment or work restrictions, either by narrative report or as reflected in the medical record, a closing report is necessary. Under OARs 436-010-0280 and 436-030-0020(2)(b), a closing report now needs only include objective findings of permanent impairment, and document any permanent work restriction preventing an injured worker from returning to the job at injury, caused in any part by an accepted condition or direct medical sequelae of an accepted condition. Additionally, permanent disability is now only awarded for disability caused in any part by an accepted condition or direct medical sequelae of an accepted condition, including when apportioning impairment at closure.

The Brown decision was a great win for Oregon administrators, insurers, and self-insured employers, alike, and the OARs provide additional clarity moving forward. Please contact me with any questions related to the new administrative rules, or with any other Oregon workers’ compensation questions or concerns. I can be reached at 503-595-6109 or Aevenson@sbhlegal.com.

CLICK HERE to view the WCD’s publication regarding the upcoming rule changes.

CLICK HERE to read public testimony regarding the rule changes and the WCD’s responses.