Oregon Workers’ Compensation Rule Updates During COVID-19 Crisis

Needless to say, there have been a lot of changes recently, not just in our daily lives, but also in claim processing issues. The WCD has begun discussions to address a variety of issues that have arisen with Workers’ Compensation claims in light of COVID-19. Further, the WCD and WCB have continued forward with new rules. As SBH’s legislative liaison I have included some of the highlights below to help continue to process claims in a timely and proper manner during COVID-19.

COVID-19 Potential Proposals

I among others are working on identifying potential proposals to address many new issues arising from COVID-19 including:

• Effect on claim processing deadlines due to lack of available IME and medical arbiter examiners.

• Potentially extending deadlines to respond to elective surgery requests due to lack of IME providers to review the request and lack of clinics to provide elective surgeries if approved.

• Seeking clarification from WCD regarding timeloss payments to workers who would otherwise have been eligible for modified work, but for the state’s stay-home orders.

• Extending continuing education requirements for examiners due to lack of available training.

• Submitting records to WCD and WCB to reduce physical contact with claim documents.

In response to some of these concerns, the WCD issued an FAQ Page addressing some of these concerns:

o Statutory deadlines cannot be waived by rulemaking, but DCBS will take COVID-19 into consideration in audits, so please document your claim files.

o There is a grace period for the continuing education requirements and a limited number of online trainings through the WCD.

o The WCD has been able to accommodate a limited application of providing records electronically. Please note, the WCB is working on this as well.

This is not an exhaustive list of all the possible changes coming our way during COVID-19.

2020 WCB Rule Changes

The Workers Compensation Board (WCB) had already implemented new rules regarding attorney fees. These rules go into effect on June 1, 2020:

• Increasing the hourly rate for an attorney’s time spent during an interview or deposition from $275 to $350, plus an annual adjustment to commensurate with changes in the state’s average weekly wage.

• Adding language in the rules based on statutory language to consider “the necessity of allowing the broadest access to attorney by injured workers” and “fees earned by the attorneys representing insurer/self-insured employer [as complied by WCD’s annual review]” to the list of considered factors in awarding an assessed fee. Other current factors include the time devoted to the case, complexity of legal issues, value of interest involved, skill of the attorneys, nature of proceedings, benefits to the represented part, the risk claimant’s attorney will go uncompensated, and any frivolous issues/defenses.

• Adding a rule stating defense attorney fees must be reasonable.

The WCB is still considering the following proposals:

• Allowing for a voluntary process in which the WCB can bifurcate the attorney fee award issue from the underlying merits of the case. Trial attorneys are requesting the change so that they only need to provide information relating to their requested fee (hours devoted, benefit to the worker, etc.) on those cases where they know they are entitled to a fee. Defense attorneys opposing the proposal noted this only creates additional litigation over fees without any benefit to the worker. The meeting to further discuss the issue was postponed due to Coronavirus concerns.

• Allowing for a “contingent hourly rate” to attorney assessed attorney fees. Trial attorneys suggested the proposal to make up a perceived gap between the amounts paid to defense attorneys and that awarded to claimant’s attorneys. By setting an hourly rate based on some ratio between defense fees and claimant’s fees, trial attorneys argue they can reduce this gap. Again, the meeting to discuss this issue further was postponed.

Potential 2020 WCD Rule Changes

We have also been working with claimant’s attorneys regarding several temporary disability benefit issues:

• Limiting the attending physician’s ability to back-date a medically stationary date, which results in large overpayment issues.

• Providing notification to the worker when timeloss payments will end and explaining to the worker what is required to reinstate benefits.

• Providing for a presumption in favor of the worker’s testimony in disputes over the worker’s wages if the employer did not document the wages.

• Preventing a worker from waiving their right to seek penalties for late payments of their settlements. Similarly, providing for clearer or more streamlined rules for when settlement payments are due.

Any feedback you have on these changes or other changes you would like to see would be appreciated. Please email me at kanderson@sbhlegal.com or call me at 503-412-3107 .