October 13, 2014
by Kevin Anderson

Workers’ Compensation Division Proposes Drastic Overhaul to OAR 436

Kevin AndersonBy:  Kevin Anderson

Back in May, we let you know about a Court of Appeals decision that could have drastic changes to processing combined conditions.  Brown v. SAIF (2014).  After Brown, the proper inquiry in analyzing a combined condition is whether the work injury ceased being the major cause of the disability and need for treatment, as opposed to looking at the accepted condition.  The Oregon Supreme Court has just agreed to review the Brown decision.


The Supreme Court also issued a decision significantly affecting the impairment rating process.  Schleiss v. SAIF (2013).  After Schleiss, if the work injury materially contributed to claimant’s impairment, then all of the impairment is due to the work injury, unless a legally preexisting condition allows for apportionment.


The effect of these two cases is that even if a carrier issues a limited acceptance (i.e. a strain), the door could be opened to significant benefits if the worker can prove that treatment or impairment is related to the injury itself irrespective of the limited acceptance.


Over the last couple of months, I have participated in a committee with the WCD and other attorneys, insurers, TPAs, medical providers, vocational counselors, and employers.  The committee’s purpose is to determine what changes, if any, need to be made to bring OAR 436 into conformity with Brown and Schleiss.


The WCD’s position is that after Brown and Schleiss all of a worker’s benefits stem from the work injury (not the accepted conditions) and therefore any reference in OAR 436 to the accepted condition should be changed to work injury.


Under the WCD’s most recent proposal, the attending physician (AP), or possibly a medical arbiter, will determine the scope of the injury and this would govern all of claimant’s benefits, with only minimal input from other physicians.  A claim could not close until the work injury was medically stationary.  At closing, the worker would be entitled to impairment not only for the accepted conditions, but any condition the AP/medical arbiter determine to be a direct result of the work injury.  Other benefits such as timeloss, vocational training, and work disability, would also relate back to what the AP considers the work injury.


Because Brown only was looking at combined conditions, we suggested the proposal exceeded the mandate from the Court of Appeals in Brown.  We also argued it was premature to make these changes until the Supreme Court issued its decision, which is expected in the summer/fall of 2015.  Additionally, we argued the impairment determination was beyond the WCD’s jurisdiction since they are awarding compensation to conditions that might not be accepted, or even requested.


WCD personnel are not comfortable deferring rule making until the Supreme Court decision since they are obligated to continue reviewing closures and other issues.  They argue it is important to revise the rules so that all of the stakeholders know what to expect from WCD.  WCD considers these changes within their jurisdiction because Brown addressed the definition of compensable injury throughout ORS 656 and OAR 436.  Additionally, they do not consider awarding permanent impairment a compensability determination since it is within the purview of the Director to review closures.


So, now what?


The WCD has temporarily postponed the rule changes because they are looking for information from insurers, administrators, and employers regarding the financial impact these changes would have.  SAIF estimated the changes would raise their premiums 2.43-3.01%, or $10.8-13.4M for 2015.


The WCD is looking for comments on (1) whether the WCD should proceed with the changes (2) do the proposed changes bring the WCD into conformity with Brown/Schleiss and (3) any other concerns or comments about how these changes affect workers compensation processing.


The committee is meeting again on October 29, 2014 and any input would be appreciated.  Please send any concerns, comments, or information about financial impact to Fred Bruyns, Policy Analyst/Rules Coordinator for DCBS-WCD at: .


What about current claims?


Krishna Balasubramani is presenting tomorrow at the WCCA Fall Seminar on October 14, 2014 regarding these (and other) changes, to the workers’ compensation administrative rules.


Rebecca Watkins and I will be providing a summary of these cases, along with other significant court decisions at SBH’s 13th Annual Workshop on October 31, 2014.  We will also have tips for how to process claims after these decisions.  Steve Verotsky and Megan Vaniman will then discuss these rule changes in further depth, what you can expect from the WCD in the near future, and tips for processing claims.  If you are interested in attending, please contact .

I have included links with the full text of the cases and the proposed changes below.  Please contact me with any questions, comments, or concerns you may have.