When can time loss payments cease in Oregon?
Time-loss payments, penalties, and ambiguous medical opinions are hallmarks of the workers’ compensation system. The Oregon Workers’ Compensation Board recently released an opinion implicating all three when it ruled an employer was subject to penalty for unreasonably failure to pay time-loss based on interpretation of the attending physician’s chart note. The Board’s decision in Thomas Lawson, II, 74 Van Natta 501 (2022) serves as a good reminder to continue time-loss payments until the attending physician gives a clear and unambiguous release, even when the original work release was open-ended.
After a claim is accepted, an employer should be focused on two goals: working with the attending physician to ensure the injury becomes medically stationary and returning the worker to work. Not only is every party best served by a timely return to work, but an employer can be stuck with lengthy periods of time-loss payments when a worker’s return to the jobsite is delayed. Understandably, employers and claims adjusters might be eager to ensure workers are returned to full-duty as soon as possible.
This becomes more complicated when the attending physician does not provide clear guidelines for a return-to-work timeline. Under ORS 656.262(4), an employer must issue time-loss payments every 14 days after notice of temporary disability and must continue doing so while the attending physician continues communicating the worker has a temporary disability. But what about instances wherein the attending physician only implies a disability or gives an open-ended release from work without a time-line for return?
In Thomas Lawson, the Board emphasized the employer’s responsibility to assume liability for temporary disability payments, even when the attending physician does not clarify the nature of the work release or provide a period of authorized disability. In that case, the attending physician stated the claimant could not use hand tools in a manner required by his job and stated the claimant “most likely” could not work. Subsequent chart notes did not include a specific work release, but also did not indicate claimant could resume use of the required hand tools. The employer ceased time-loss payments, reasoning the lack of ongoing authorization did not satisfy the ORS 656.262 requirements for time-loss.
But the Board held the attending physician’s initial release, while open-ended and ambiguous, was never rescinded. Because the employer had knowledge the claimant could not use required tools at one point in time, and never received confirmation the claimant could use the tools, the open-ended work release was presumed to have continued. The employer was required to pay back time-loss and a penalty for unreasonable claims processing.
When a work release appears opaque and ambiguous, the best option is to get a copy of the most up-to-date job description, send it to the attending physician, and speak with them about the work release. Walking through the job duties with the attending physician often clears up any potential confusion and often results in a clearer timeframe to follow for return-to-work. While it may seem easiest to interpret a doctor’s note in a way that seems to make sense, the danger of a penalty is always lurking when an employer imports its own understanding to a vague doctor’s note.
Have questions about time-loss authorization? Feel free to contact me at or 971-867-2718.
Posted by Matthew Baker.
