2007 Oregon Code - Chapter 656 :: Chapter 656 - Workers - Compensation
Chapter 656 —
WorkersÂ’ Compensation
2007 EDITION
WORKERSÂ’ COMPENSATION
LABOR, EMPLOYMENT; UNLAWFUL DISCRIMINATION
GENERAL PROVISIONS
656.001Â Â Â Â Short
title
656.003Â Â Â Â Application
of definitions to construction of chapter
656.005Â Â Â Â Definitions
656.006Â Â Â Â Effect
on employersÂ’ liability law
656.008Â Â Â Â Extension
of laws relating to workersÂ’ compensation to federal lands and projects within
state
656.010Â Â Â Â Treatment
by spiritual means
656.012Â Â Â Â Findings
and policy
COVERAGE
656.017Â Â Â Â Employer
required to pay compensation and perform other duties; state not authorized to
be direct responsibility employer
656.018Â Â Â Â Effect
of providing coverage; exclusive remedy
656.019Â Â Â Â Civil
negligence action for claim denied on basis of failure to meet major
contributing cause standard; statute of limitations
656.020Â Â Â Â Damage
actions by workers against noncomplying employers; defenses outlawed
656.021Â Â Â Â Person
performing work under ORS chapter 701 as subject employer
656.023Â Â Â Â Who
are subject employers
656.025Â Â Â Â Individuals
engaged in commuter ridesharing not subject workers; conditions
656.027Â Â Â Â Who
are subject workers
656.029Â Â Â Â Obligation
of person awarding contract to provide coverage for workers under contract;
exceptions; effect of failure to provide coverage
656.031Â Â Â Â Coverage
for municipal volunteer personnel
656.033Â Â Â Â Coverage
for participants in work experience or school directed professional training
programs
656.035Â Â Â Â Status
of workers in separate occupations of employer
656.037Â Â Â Â Exemption
from coverage for persons engaged in certain real estate activities
656.039Â Â Â Â Election
of coverage for workers not subject to law; procedure; cancellation; election
of coverage for home health care workers employed by clients of Department of
Human Services
656.041Â Â Â Â City
or county may elect to provide coverage for jail inmates
656.043Â Â Â Â Governmental
agency paying wages responsible for providing coverage
656.044Â Â Â Â State
Accident Insurance Fund Corporation may insure liability under LongshoremenÂ’s
and Harbor WorkersÂ’ Compensation Act; procedure; cancellation
656.046Â Â Â Â Coverage
of persons in college work experience and professional education programs
656.052Â Â Â Â Prohibition
against employment without coverage; proposed order declaring noncomplying
employer; effect of failure to comply
656.054Â Â Â Â Claim
of injured worker of noncomplying employer; procedure for disputing acceptance
of claim; recovery of costs from noncomplying employer; restrictions
656.056Â Â Â Â Subject
employers must post notice of manner of compliance
656.070Â Â Â Â Definitions
for ORS 656.027, 656.070 and 656.075
656.075Â Â Â Â Exemption
from coverage for newspaper carriers; casualty insurance and other requirements
656.126Â Â Â Â Coverage
while temporarily in or out of state; judicial notice of other stateÂ’s laws;
agreements between states relating to conflicts of jurisdiction; limitation on
compensation for claims in this state and other jurisdictions
656.128Â Â Â Â Sole
proprietors, limited liability company members, partners, independent
contractors may elect coverage by insurer; cancellation
656.132Â Â Â Â Coverage
of minors
656.135Â Â Â Â Coverage
of deaf school, blind school work experience trainees
656.138Â Â Â Â Coverage
of apprentices, trainees participating in related instruction classes
656.140Â Â Â Â Coverage
of persons operating equipment for hire
656.154Â Â Â Â Injury
due to negligence or wrong of a person not in the same employ as injured
worker; remedy against such person
656.156Â Â Â Â Intentional
injuries
656.160Â Â Â Â Effect
of incarceration on receipt of compensation
656.170Â Â Â Â Validity
of provisions of certain collective bargaining agreements; alternative dispute
resolution systems; exclusive medical service provider lists; authority of
director
656.172Â Â Â Â Applicability
of and criteria for establishing program under ORS 656.170
656.174Â Â Â Â Rules
APPLICABILITY PROVISIONS
656.202Â Â Â Â Compensation
payable to subject worker in accordance with law in effect at time of injury;
exceptions; notice regarding payment
Note         Implementation
of 1990 Laws
Note         Implementation
of 1995 Laws
Note         Implementation
of 1997 Laws
Note         Implementation
of 2001 Laws
Note         Implementation
of 2003 Laws
Note         Implementation
of 2005 Laws
Note         Implementation
of 2007 Laws
COMPENSATION AND MEDICAL BENEFITS
656.204Â Â Â Â Death
656.206Â Â Â Â Permanent
total disability
656.208Â Â Â Â Death
during permanent total disability
656.209Â Â Â Â Offsetting
permanent total disability benefits against Social Security benefits
656.210Â Â Â Â Temporary
total disability; payment during medical treatment; election; rules
656.211    “Average
weekly wage” defined
656.212Â Â Â Â Temporary
partial disability
656.214Â Â Â Â Permanent
partial disability
Note         Benefits,
January 1, 1992, to December 31, 1995
Note         Benefits,
January 1, 1996, to December 31, 1997
Note         Benefits,
January 1, 1998, to October 23, 1999
Note         Benefits,
January 1, 2000, to December 31, 2004
Note         Benefits,
January 1, 2002, to December 31, 2004
656.216Â Â Â Â Permanent
partial disability; method of payment; effect of prior receipt of temporary
disability payments
656.218Â Â Â Â Continuance
of permanent partial disability payments to survivors; effect of death prior to
final claim disposition; burial allowance
656.222Â Â Â Â Compensation
for additional accident
656.225Â Â Â Â Compensability
of certain preexisting conditions
656.226Â Â Â Â Cohabitants
and children entitled to compensation
656.228Â Â Â Â Payments
directly to beneficiary or custodian
656.230Â Â Â Â Lump
sum award payments
656.232Â Â Â Â Payments
to aliens residing outside of
656.234Â Â Â Â Compensation
not assignable nor to pass by operation of law; certain benefits subject to
support obligations
656.236Â Â Â Â Compromise
and release of claim matters except for medical benefits; approval by
Administrative Law Judge or board; approval by director for certain reserve
reimbursements; restriction on charging costs to workers; restriction on
joinder as parties for responsibility determinations
656.240Â Â Â Â Deduction
of benefits from sick leave payments paid to employees
656.245Â Â Â Â Medical
services to be provided; services by providers not members of managed care
organizations; authorizing temporary disability compensation and making finding
of impairment for disability rating purposes by certain providers; review of
disputed claims for medical services; rules
656.247Â Â Â Â Payment
for medical services prior to claim acceptance or denial; review of disputed
services; duty of health benefit plan to pay for certain medical services in
denied claim
656.248Â Â Â Â Medical
service fee schedules; basis of fees; application to service provided by
managed care organization; resolution of fee disputes; rules
656.250Â Â Â Â Limitation
on compensability of physical therapist services
656.252Â Â Â Â Medical
report regulation; rules; duties of attending physician or nurse practitioner;
disclosure of information; notice of changing attending physician or nurse
practitioner; copies of medical service billings to be furnished to worker
656.254Â Â Â Â Medical
report forms; sanctions; procedure for declaring health care practitioner
ineligible for workersÂ’ compensation reimbursement
656.256Â Â Â Â Considerations
for rules regarding certain rural hospitals
656.258Â Â Â Â Vocational
assistance service payments
656.260Â Â Â Â Certification
procedure for managed health care provider; peer review, quality assurance,
service utilization and contract review; confidentiality of certain
information; immunity from liability; rules; medical service dispute resolution
PROCEDURE FOR OBTAINING COMPENSATION
656.262Â Â Â Â Processing
of claims and payment of compensation; payment by employer; acceptance and
denial of claim; penalty for unreasonable payment delay; cooperation by worker
and attorney in claim investigation; rules
656.263Â Â Â Â To
whom notices sent under ORS 656.262, 656.265, 656.268 to 656.289, 656.295 to
656.325 and 656.382 to 656.388
656.264Â Â Â Â Compensable
injury, denied claim and other reports
656.265Â Â Â Â Notice
of accident from worker
656.266Â Â Â Â Burden
of proving compensability and nature and extent of disability
656.267Â Â Â Â Claims
for new and omitted medical conditions
656.268Â Â Â Â Claim
closure; termination of temporary total disability benefits; reconsideration of
closure; medical arbiter to make findings of impairment for reconsideration;
credit or offset for fraudulently obtained or overpaid benefits; rules
656.270Â Â Â Â Contents
of notice required on closure
656.273Â Â Â Â Aggravation
for worsened conditions; procedure; limitations; additional compensation
656.277Â Â Â Â Request
for reclassification of nondisabling claim; nondisabling claim procedure
656.278Â Â Â Â Board
has continuing authority to alter earlier action on claim; limitations
656.283Â Â Â Â Hearing
rights and procedure; rules; modification of vocational assistance actions;
impeachment evidence; use of standards for evaluation of disability
656.285Â Â Â Â Protection
of witnesses at hearings
656.287Â Â Â Â Use
of vocational reports in determining loss of earning capacity at hearing; rules
656.289Â Â Â Â Orders
of Administrative Law Judge; review; disposition of claim when compensability
disputed; approval of director required for reimbursement of certain
expenditures
656.291Â Â Â Â Expedited
Claim Service; jurisdiction; procedure; representation; rules
656.295Â Â Â Â Board
review of Administrative Law Judge orders; application of standards for
evaluation of disability
656.298Â Â Â Â Judicial
review of board orders; settlement during pendency of petition for review
656.304Â Â Â Â When
acceptance of compensation precludes hearing
656.307Â Â Â Â Determination
of issues regarding responsibility for compensation payment; mediation or
arbitration procedure; rules
656.308Â Â Â Â Responsibility
for payment of claims; effect of new injury; denial of responsibility;
procedure for joining employers and insurers; attorney fees; limitation on
filing claims subject to settlement agreement
656.310Â Â Â Â Presumption
concerning notice of injury and self-inflicted injuries; reports as evidence
656.313Â Â Â Â Stay
of compensation pending request for hearing or review; procedure for denial of
claim for medical services; reimbursement
656.319Â Â Â Â Time
within which hearing must be requested
656.325Â Â Â Â Required
medical examination; worker-requested examination; qualified physicians;
claimantÂ’s duty to reduce disability; suspension or reduction of benefits;
cessation or reduction of temporary total disability benefits; rules; penalties
656.327Â Â Â Â Review
of medical treatment of worker; findings; review; costs
656.328Â Â Â Â List
of authorized providers and standards of professional conduct for providers of
independent medical examinations; exclusion; complaints; rules
656.331Â Â Â Â Contact,
medical examination of worker represented by attorney prohibited without
written notice; rules
656.340Â Â Â Â Vocational
assistance procedure; eligibility criteria; service providers; rules
DISCLOSURE OF WORKER MEDICAL AND VOCATIONAL CLAIM
RECORDS
656.360Â Â Â Â Confidentiality
of worker medical and vocational claim records; exceptions where disclosure
permitted
656.362Â Â Â Â Liability
for disclosure of worker medical and vocational claim records
LEGAL REPRESENTATION
656.382Â Â Â Â Penalties
and attorney fees payable by insurer or employer in processing claim
656.385Â Â Â Â Attorney
fees in cases regarding certain medical service or vocational rehabilitation
matters; rules; limitation; penalties
656.386Â Â Â Â Recovery
of attorney fees, expenses and costs in appeal on denied claim; attorney fees
in other cases
656.388Â Â Â Â Approval
of attorney fees required; lien for fees; fee schedule; report of legal service
costs
656.390Â Â Â Â Frivolous
appeals, hearing requests or motions; expenses and attorney fee
SELF-INSURED AND CARRIER-INSURED EMPLOYERS; INSURERS AND GUARANTY
CONTRACTS
656.403Â Â Â Â Obligations
of self-insured employer
656.407Â Â Â Â Qualifications
of insured employers; rules
656.419Â Â Â Â Guaranty
contracts
656.423Â Â Â Â Cancellation
of coverage by employer; notice required
656.427Â Â Â Â Termination
of guaranty contract or surety bond liability by insurer; rules
656.430Â Â Â Â Certification
of self-insured employer; employer groups; insurance policy requirements;
revocation of certification; rules
656.434Â Â Â Â Certification
effective until canceled or revoked; revocation of certificate
656.440Â Â Â Â Notice
of certificate revocation; appeal; effective date
656.443Â Â Â Â Procedure
upon default by employer
656.445Â Â Â Â Advancement
of funds from WorkersÂ’ Benefit Fund for compensation due workers insured by
insurer in default; limitations; rules
656.447Â Â Â Â Sanctions
against insurer for failure to comply with contracts, orders or rules
656.455Â Â Â Â Self-insured
employers required to keep records of compensation claims; location and
inspection; expenses of audits and inspections; rules
CHARGES AGAINST EMPLOYERS AND WORKERS
656.502    “Fiscal
year” defined
656.504Â Â Â Â Rates,
charges, fees and reports by employers insured by State Accident Insurance Fund
Corporation
656.505Â Â Â Â Estimate
of payroll when employer fails to file payroll report; demand for and recovery
of premiums and assessments
656.506Â Â Â Â Assessments
for programs; setting assessment amount; determination by director of benefit
level
656.508Â Â Â Â Authority
to fix premium rates for employers
656.526Â Â Â Â Distribution
of dividends from surplus in Industrial Accident Fund
656.536Â Â Â Â Premium
charges for coverage of reforestation cooperative workers based on prevailing
wage; manner of determining prevailing wage
ENFORCEMENT OF PREMIUM PAYMENTS
656.552Â Â Â Â Deposit
of cash or bond to secure payment of employerÂ’s premiums
656.554Â Â Â Â Injunction
against employer failing to comply with deposit requirements
656.556Â Â Â Â Liability
of person letting a contract for amounts due from contractor
656.560Â Â Â Â Default
in payment of premiums, fees, assessments or deposit; remedies
656.562Â Â Â Â Moneys
due Industrial Accident Fund as preferred claims; moneys due department as
taxes due state
656.564Â Â Â Â Lien
for amounts due from employer on real property, improvements and equipment on
or with which labor is performed by workers of employer
656.566
Lien on
property of employer for amounts due
RECOVERY AGAINST THIRD PERSONS AND
NONCOMPLYING EMPLOYERS
656.576    “Paying
agency” defined
656.578Â Â Â Â WorkersÂ’
election whether to sue third person or noncomplying employer for damages
656.580Â Â Â Â Payment
of compensation notwithstanding cause of action for damages; lien on cause of
action for compensation paid
656.583Â Â Â Â Paying
agency may compel election and prompt action
656.587Â Â Â Â Paying
agency must join in any compromise
656.591Â Â Â Â Election
not to bring action operates as assignment of cause of action
656.593Â Â Â Â Procedure
when worker elects to bring action; release of liability and lien of paying
agency in certain cases
656.595Â Â Â Â Precedence
of cause of action; compensation paid or payable not to be an issue
656.596Â Â Â Â Damage
recovery as offset against compensation; recovery procedure; notice to paying
agent
FUNDS; SOURCE; INVESTMENT; DISBURSEMENT
(General Provisions)
656.602Â Â Â Â Disbursement
procedures
656.605Â Â Â Â WorkersÂ’
Benefit Fund; uses and limitations
656.612Â Â Â Â Assessments
for department activities; amount; collection procedure
656.614Â Â Â Â Self-Insured
Employer Adjustment Reserve; Self-Insured Employer Group Adjustment Reserve
656.622Â Â Â Â Reemployment
Assistance Program; claim data not to be used for insurance rating; rules
656.625Â Â Â Â Reopened
Claims Program; rules
656.628Â Â Â Â Workers
with Disabilities Program; use of funds; conditions and limitations; rules
656.630Â Â Â Â Center
for Research on Occupational and Environmental Toxicology funding; report of
activities
(Industrial Accident Fund and Reserves)
656.632Â Â Â Â Industrial
Accident Fund
656.634Â Â Â Â Trust
fund status of Industrial Accident Fund
656.635Â Â Â Â Reserve
accounts in Industrial Accident Fund
656.636Â Â Â Â Reserves
in Industrial Accident Fund for awards for permanent disability or death
656.640Â Â Â Â Creation
of reserves
(Other Funds)
656.642Â Â Â Â Emergency
Fund
656.644Â Â Â Â Petty
cash funds
ADMINISTRATION
(General Provisions)
656.702Â Â Â Â Disclosure
of records of corporation, department and insurers
656.704Â Â Â Â Actions
and orders regarding matters concerning claim and matters other than matters concerning
claim; authority of director and board; administrative and judicial review;
rules
656.708Â Â Â Â Hearings
Division; duties
656.709Â Â Â Â Ombudsman
for injured workers; ombudsman for small business; duties
656.712Â Â Â Â WorkersÂ’
Compensation Board; members; qualifications; chairperson; confirmation; term;
vacancies
656.714Â Â Â Â Removal
of board member
656.716Â Â Â Â Board
members not to engage in political or business activity that interferes with
duties as board member; oath and bond required
656.718Â Â Â Â Chairperson;
quorum; panels
656.720Â Â Â Â Prosecution
and defense of actions by Attorney General and district attorneys
656.722Â Â Â Â Authority
to employ subordinates
656.724Â Â Â Â Administrative
Law Judges; appointment; qualifications; term; performance survey; removal
procedure
656.725Â Â Â Â Duties
and status of Administrative Law Judges
656.726Â Â Â Â Duties
and powers to carry out workersÂ’ compensation and occupational safety laws;
rules
656.727Â Â Â Â Rules
for administration of benefit offset
656.730Â Â Â Â Assigned
risk plan
656.732Â Â Â Â Power
to compel obedience to subpoenas and punish for misconduct
656.735Â Â Â Â Civil
penalty for noncomplying employers; amount; liability of partners and of
corporate and limited liability company officers; effect of final order;
penalty as preferred claim; disposition of moneys collected
656.740Â Â Â Â Review
of proposed order declaring noncomplying employer or nonsubjectivity
determination; review of proposed assessment or civil penalty; insurer as
party; hearing
656.745Â Â Â Â Civil
penalty for inducing failure to report claims; failure to pay assessments;
failure to comply with statutes, rules or orders; amount; procedure
656.750Â Â Â Â Civil
penalty for failure to maintain records of compensation claims; amount;
disposition of funds
(State Accident Insurance Fund Corporation)
656.751Â Â Â Â State
Accident Insurance Fund Corporation created; board; membersÂ’ qualifications;
terms; compensation; expenses; function; report
656.752Â Â Â Â State
Accident Insurance Fund Corporation; purpose and functions
656.753Â Â Â Â State
Accident Insurance Fund Corporation exempt from certain financial
administration laws; contracts with state agencies for services
656.754Â Â Â Â Manager;
appointment; functions
656.758Â Â Â Â Inspection
of books, records and payrolls; statement of employment data; civil penalty for
misrepresentation; failure to submit books for inspection and refusal to keep
correct payroll
656.772Â Â Â Â Annual
audit of State Accident Insurance Fund Corporation by Secretary of State; scope
of review; report of audit
656.774Â Â Â Â Annual
report by State Accident Insurance Fund Corporation to Secretary of State;
contents
656.776Â Â Â Â Notice
to Secretary of State regarding action on audit report
(Claims Examiner Certification)
656.780Â Â Â Â Certification
and training of claims examiners; records of certification and training of
examiners; department inspection of records; penalties; rules
(Reinsurance Program for Medical Professional
Liability Insurance)
(Temporary provisions relating to reinsurance
program for medical professional liability insurance are compiled as notes
following ORS 656.780)
(Advisory Committees)
656.790Â Â Â Â WorkersÂ’
Compensation Management-Labor Advisory Committee; membership; duties; expenses
656.794Â Â Â Â Advisory
committee on medical care; rules
INFORMATIONAL MATERIALS ABOUT WORKERSÂ’
COMPENSATION SYSTEM
656.795Â Â Â Â Informational
materials for nurse practitioners
656.797Â Â Â Â Certification
by nurse practitioner of review of required materials
656.798Â Â Â Â Duty
of insurer, self-insured employer and self-insured employer group to provide
information to director
656.799Â Â Â Â Informational
materials for other health care professionals; certification of review of
materials
OCCUPATIONAL DISEASE LAW
656.802Â Â Â Â Occupational
disease; mental disorder; proof
656.804Â Â Â Â Occupational
disease as an injury under WorkersÂ’ Compensation Law
656.807Â Â Â Â Time
for filing of claims for occupational disease; procedure
WORKER LEASING COMPANIES
656.850Â Â Â Â License;
compliance with workersÂ’ compensation and safety laws
656.855Â Â Â Â Licensing
system for worker leasing companies; rules; dedication of moneys received
PENALTIES
656.990Â Â Â Â Penalties
GENERAL PROVISIONS
     656.001
Short title. This chapter
may be cited as the Workers’ Compensation Law. [1965 c.285 §1; 1977 c.109 §1]
     656.002 [Amended by 1957 c.718 §1; 1959 c.448 §1;
1965 c.285 §4; 1967 c.341 §2; 1969 c.125 §1; 1969 c.247 §1; 1973 c.497 §1; 1973
c.620 §1; repealed by 1975 c.556 §1 (656.003, 656.005 enacted in lieu of
656.002)]
     656.003
Application of definitions to construction of chapter. Except where the context otherwise requires,
the definitions given in this chapter govern its construction. [1975 c.556 §2
(enacted in lieu of 656.002)]
     656.004 [Repealed by 1981 c.535 §28, (656.012
enacted in lieu of 656.004)]
     656.005
Definitions. (1) “Average
weekly wage” means the Oregon average weekly wage in covered employment, as
determined by the Employment Department, for the last quarter of the calendar
year preceding the fiscal year in which the injury occurred.
     (2) “Beneficiary” means an injured worker,
and the husband, wife, child or dependent of a worker, who is entitled to
receive payments under this chapter. “Beneficiary” does not include:
     (a) A spouse of an injured worker living
in a state of abandonment for more than one year at the time of the injury or
subsequently. A spouse who has lived separate and apart from the worker for a
period of two years and who has not during that time received or attempted by
process of law to collect funds for support or maintenance is considered living
in a state of abandonment.
     (b) A person who intentionally causes the
compensable injury to or death of an injured worker.
     (3) “Board” means the Workers’
Compensation Board.
     (4) “Carrier-insured employer” means an
employer who provides workersÂ’ compensation coverage with a guaranty contract
insurer.
     (5) “Child” includes a posthumous child, a
child legally adopted prior to the injury, a child toward whom the worker
stands in loco parentis, an illegitimate child and a stepchild, if such
stepchild was, at the time of the injury, a member of the workerÂ’s family and
substantially dependent upon the worker for support. An invalid dependent child
is a child, for purposes of benefits, regardless of age, so long as the child
was an invalid at the time of the accident and thereafter remains an invalid
substantially dependent on the worker for support. For purposes of this
chapter, an invalid dependent child is considered to be a child under 18 years
of age.
     (6) “Claim” means a written request for
compensation from a subject worker or someone on the workerÂ’s behalf, or any
compensable injury of which a subject employer has notice or knowledge.
     (7)(a) A “compensable injury” is an
accidental injury, or accidental injury to prosthetic appliances, arising out
of and in the course of employment requiring medical services or resulting in
disability or death; an injury is accidental if the result is an accident,
whether or not due to accidental means, if it is established by medical
evidence supported by objective findings, subject to the following limitations:
     (A) No injury or disease is compensable as
a consequence of a compensable injury unless the compensable injury is the
major contributing cause of the consequential condition.
     (B) If an otherwise compensable injury
combines at any time with a preexisting condition to cause or prolong
disability or a need for treatment, the combined condition is compensable only
if, so long as and to the extent that the otherwise compensable injury is the
major contributing cause of the disability of the combined condition or the
major contributing cause of the need for treatment of the combined condition.
     (b) “Compensable injury” does not include:
     (A) Injury to any active participant in
assaults or combats which are not connected to the job assignment and which
amount to a deviation from customary duties;
     (B) Injury incurred while engaging in or
performing, or as the result of engaging in or performing, any recreational or
social activities primarily for the workerÂ’s personal pleasure; or
     (C) Injury the major contributing cause of
which is demonstrated to be by a preponderance of the evidence the injured
workerÂ’s consumption of alcoholic beverages or the unlawful consumption of any
controlled substance, unless the employer permitted, encouraged or had actual
knowledge of such consumption.
     (c) A “disabling compensable injury” is an
injury which entitles the worker to compensation for disability or death. An
injury is not disabling if no temporary benefits are due and payable, unless
there is a reasonable expectation that permanent disability will result from
the injury.
     (d) A “nondisabling compensable injury” is
any injury which requires medical services only.
     (8) “Compensation” includes all benefits,
including medical services, provided for a compensable injury to a subject
worker or the workerÂ’s beneficiaries by an insurer or self-insured employer
pursuant to this chapter.
     (9) “Department” means the Department of
Consumer and Business Services.
     (10) “Dependent” means any of the
following-named relatives of a worker whose death results from any injury:
Father, mother, grandfather, grandmother, stepfather, stepmother, grandson,
granddaughter, brother, sister, half sister, half brother, niece or nephew, who
at the time of the accident, are dependent in whole or in part for their
support upon the earnings of the worker. Unless otherwise provided by treaty,
aliens not residing within the
     (11) “Director” means the Director of the
Department of Consumer and Business Services.
     (12)(a) “Doctor” or “physician” means a
person duly licensed to practice one or more of the healing arts in any country
or in any state, territory or possession of the
     (b) Except as otherwise provided for
workers subject to a managed care contract, “attending physician” means a
doctor, physician or physician assistant who is primarily responsible for the
treatment of a workerÂ’s compensable injury and who is:
     (A) A medical doctor or doctor of
osteopathy licensed under ORS 677.100 to 677.228 by the Oregon Medical Board or
an oral and maxillofacial surgeon licensed by the Oregon Board of Dentistry or
a similarly licensed doctor in any country or in any state, territory or
possession of the United States; or
     (B) For a cumulative total of 60 days from
the first visit on the initial claim or for a cumulative total of 18 visits,
whichever occurs first, to any of the medical service providers listed in this
subparagraph, a:
     (i) Doctor or physician licensed by the
State Board of Chiropractic Examiners for the State of Oregon under ORS chapter
684 or a similarly licensed doctor or physician in any country or in any state,
territory or possession of the United States;
     (ii) Podiatric physician and surgeon
licensed by the Oregon Medical Board under ORS 677.805 to 677.840 or a
similarly licensed doctor or physician in any country or in any state,
territory or possession of the United States;
     (iii) Physician assistant licensed by the
Oregon Medical Board in accordance with ORS 677.505 to 677.525 or a similarly
licensed physician assistant in any country or in any state, territory or
possession of the United States; or
     (iv) Doctor of naturopathy or naturopathic
physician licensed by the Board of Naturopathic Examiners licensed under ORS
chapter 685 or a similarly licensed doctor or physician in any country or in
any state, territory or possession of the
     (c) Except as otherwise provided for
workers subject to a managed care contract, “attending physician” does not
include a physician who provides care in a hospital emergency room and refers
the injured worker to a primary care physician for follow-up care and
treatment.
     (d) “Consulting physician” means a doctor
or physician who examines a worker or the workerÂ’s medical record to advise the
attending physician or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 regarding treatment of a workerÂ’s
compensable injury.
     (13)(a) “Employer” means any person,
including receiver, administrator, executor or trustee, and the state, state
agencies, counties, municipal corporations, school districts and other public
corporations or political subdivisions, who contracts to pay a remuneration for
and secures the right to direct and control the services of any person.
     (b) Notwithstanding paragraph (a) of this
subsection, for purposes of this chapter, the client of a temporary service
provider is not the employer of temporary workers provided by the temporary
service provider.
     (c) As used in paragraph (b) of this
subsection, “temporary service provider” has the meaning for that term provided
in ORS 656.850.
     (14) “Guaranty contract insurer” and “insurer”
mean the State Accident Insurance Fund Corporation or an insurer authorized
under ORS chapter 731 to transact workersÂ’ compensation insurance in this state
or an assigned claims agent selected by the director under ORS 656.054.
     (15) “Consumer and Business Services Fund”
means the fund created by ORS 705.145.
     (16) “Invalid” means one who is physically
or mentally incapacitated from earning a livelihood.
     (17) “Medically stationary” means that no
further material improvement would reasonably be expected from medical
treatment, or the passage of time.
     (18) “Noncomplying employer” means a
subject employer who has failed to comply with ORS 656.017.
     (19) “Objective findings” in support of
medical evidence are verifiable indications of injury or disease that may
include, but are not limited to, range of motion, atrophy, muscle strength and
palpable muscle spasm. “Objective findings” does not include physical findings
or subjective responses to physical examinations that are not reproducible,
measurable or observable.
     (20) “Palliative care” means medical
service rendered to reduce or moderate temporarily the intensity of an
otherwise stable medical condition, but does not include those medical services
rendered to diagnose, heal or permanently alleviate or eliminate a medical
condition.
     (21) “Party” means a claimant for
compensation, the employer of the injured worker at the time of injury and the
insurer, if any, of such employer.
     (22) “Payroll” means a record of wages
payable to workers for their services and includes commissions, value of exchange
labor and the reasonable value of board, rent, housing, lodging or similar
advantage received from the employer. However, “payroll” does not include
overtime pay, vacation pay, bonus pay, tips, amounts payable under
profit-sharing agreements or bonus payments to reward workers for safe working
practices. Bonus pay is limited to payments which are not anticipated under the
contract of employment and which are paid at the sole discretion of the
employer. The exclusion from payroll of bonus payments to reward workers for
safe working practices is only for the purpose of calculations based on payroll
to determine premium for workersÂ’ compensation insurance, and does not affect
any other calculation or determination based on payroll for the purposes of
this chapter.
     (23) “Person” includes partnership, joint
venture, association, limited liability company and corporation.
     (24)(a) “Preexisting condition” means, for
all industrial injury claims, any injury, disease, congenital abnormality,
personality disorder or similar condition that contributes to disability or
need for treatment, provided that:
     (A) Except for claims in which a
preexisting condition is arthritis or an arthritic condition, the worker has
been diagnosed with such condition, or has obtained medical services for the
symptoms of the condition regardless of diagnosis; and
     (B)(i) In claims for an initial injury or
omitted condition, the diagnosis or treatment precedes the initial injury;
     (ii) In claims for a new medical
condition, the diagnosis or treatment precedes the onset of the new medical
condition; or
     (iii) In claims for a worsening pursuant
to ORS 656.273 or 656.278, the diagnosis or treatment precedes the onset of the
worsened condition.
     (b) “Preexisting condition” means, for all
occupational disease claims, any injury, disease, congenital abnormality,
personality disorder or similar condition that contributes to disability or
need for treatment and that precedes the onset of the claimed occupational
disease, or precedes a claim for worsening in such claims pursuant to ORS
656.273 or 656.278.
     (c) For the purposes of industrial injury
claims, a condition does not contribute to disability or need for treatment if
the condition merely renders the worker more susceptible to the injury.
     (25) “Self-insured employer” means an
employer or group of employers certified under ORS 656.430 as meeting the
qualifications set out by ORS 656.407.
     (26) “State Accident Insurance Fund
Corporation” and “corporation” mean the State Accident Insurance Fund Corporation
created under ORS 656.752.
     (27) “Subject employer” means an employer
who is subject to this chapter as provided by ORS 656.023.
     (28) “Subject worker” means a worker who
is subject to this chapter as provided by ORS 656.027.
     (29) “Wages” means the money rate at which
the service rendered is recompensed under the contract of hiring in force at
the time of the accident, including reasonable value of board, rent, housing,
lodging or similar advantage received from the employer, and includes the amount
of tips required to be reported by the employer pursuant to section 6053 of the
Internal Revenue Code of 1954, as amended, and the regulations promulgated
pursuant thereto, or the amount of actual tips reported, whichever amount is
greater. The State Accident Insurance Fund Corporation may establish assumed
minimum and maximum wages, in conformity with recognized insurance principles,
at which any worker shall be carried upon the payroll of the employer for the
purpose of determining the premium of the employer.
     (30) “Worker” means any person, including
a minor whether lawfully or unlawfully employed, who engages to furnish
services for a remuneration, subject to the direction and control of an
employer and includes salaried, elected and appointed officials of the state,
state agencies, counties, cities, school districts and other public
corporations, but does not include any person whose services are performed as
an inmate or ward of a state institution or as part of the eligibility
requirements for a general or public assistance grant. For the purpose of
determining entitlement to temporary disability benefits or permanent total
disability benefits under this chapter, “worker” does not include a person who
has withdrawn from the workforce during the period for which such benefits are
sought.
     (31) “Independent contractor” has the
meaning for that term provided in ORS 670.600. [1975 c.556 §§2 to 19 (enacted
in lieu of 656.002); 1977 c.109 §2; 1977 c.804 §1; 1979 c.839 §26; 1981 c.535 §30;
1981 c.723 §3; 1981 c.854 §2; 1983 c.740 §242; 1985 c.212 §1; 1985 c.507 §1;
1985 c.770 §1; 1987 c.373 §31; 1987 c.457 §1; 1987 c.713 §3; 1987 c.884 §25;
1989 c.762 §3; 1990 c.2 §3; 1993 c.739 §23; 1993 c.744 §18; 1995 c.93 §31; 1995
c.332 §1; 1997 c.491 §5; 2001 c.865 §1; 2003 c.811 §§1,2; 2007 c.252 §§1,2;
2007 c.365 §1; 2007 c.505 §§1,2]
     Note: The amendments to 656.005 by sections 6 and
7, chapter 241, Oregon Laws 2007, become operative July 1, 2009. See section
31, chapter 241, Oregon Laws 2007. The text that is operative on and after July
1, 2009, is set forth for the userÂ’s convenience.
     656.005. (1) “Average weekly wage” means the Oregon
average weekly wage in covered employment, as determined by the Employment
Department, for the last quarter of the calendar year preceding the fiscal year
in which the injury occurred.
     (2) “Beneficiary” means an injured worker,
and the husband, wife, child or dependent of a worker, who is entitled to
receive payments under this chapter. “Beneficiary” does not include:
     (a) A spouse of an injured worker living
in a state of abandonment for more than one year at the time of the injury or
subsequently. A spouse who has lived separate and apart from the worker for a
period of two years and who has not during that time received or attempted by
process of law to collect funds for support or maintenance is considered living
in a state of abandonment.
     (b) A person who intentionally causes the
compensable injury to or death of an injured worker.
     (3) “Board” means the Workers’
Compensation Board.
     (4) “Carrier-insured employer” means an
employer who provides workersÂ’ compensation coverage with the State Accident
Insurance Fund Corporation or an insurer authorized under ORS chapter 731 to
transact workersÂ’ compensation insurance in this state.
     (5) “Child” includes a posthumous child, a
child legally adopted prior to the injury, a child toward whom the worker
stands in loco parentis, an illegitimate child and a stepchild, if such
stepchild was, at the time of the injury, a member of the workerÂ’s family and
substantially dependent upon the worker for support. An invalid dependent child
is a child, for purposes of benefits, regardless of age, so long as the child
was an invalid at the time of the accident and thereafter remains an invalid
substantially dependent on the worker for support. For purposes of this
chapter, an invalid dependent child is considered to be a child under 18 years
of age.
     (6) “Claim” means a written request for
compensation from a subject worker or someone on the workerÂ’s behalf, or any
compensable injury of which a subject employer has notice or knowledge.
     (7)(a) A “compensable injury” is an
accidental injury, or accidental injury to prosthetic appliances, arising out
of and in the course of employment requiring medical services or resulting in
disability or death; an injury is accidental if the result is an accident,
whether or not due to accidental means, if it is established by medical
evidence supported by objective findings, subject to the following limitations:
     (A) No injury or disease is compensable as
a consequence of a compensable injury unless the compensable injury is the
major contributing cause of the consequential condition.
     (B) If an otherwise compensable injury
combines at any time with a preexisting condition to cause or prolong
disability or a need for treatment, the combined condition is compensable only
if, so long as and to the extent that the otherwise compensable injury is the
major contributing cause of the disability of the combined condition or the major
contributing cause of the need for treatment of the combined condition.
     (b) “Compensable injury” does not include:
     (A) Injury to any active participant in
assaults or combats which are not connected to the job assignment and which
amount to a deviation from customary duties;
     (B) Injury incurred while engaging in or
performing, or as the result of engaging in or performing, any recreational or
social activities primarily for the workerÂ’s personal pleasure; or
     (C) Injury the major contributing cause of
which is demonstrated to be by a preponderance of the evidence the injured
workerÂ’s consumption of alcoholic beverages or the unlawful consumption of any
controlled substance, unless the employer permitted, encouraged or had actual
knowledge of such consumption.
     (c) A “disabling compensable injury” is an
injury which entitles the worker to compensation for disability or death. An
injury is not disabling if no temporary benefits are due and payable, unless
there is a reasonable expectation that permanent disability will result from
the injury.
     (d) A “nondisabling compensable injury” is
any injury which requires medical services only.
     (8) “Compensation” includes all benefits,
including medical services, provided for a compensable injury to a subject
worker or the workerÂ’s beneficiaries by an insurer or self-insured employer
pursuant to this chapter.
     (9) “Department” means the Department of
Consumer and Business Services.
     (10) “Dependent” means any of the
following-named relatives of a worker whose death results from any injury:
Father, mother, grandfather, grandmother, stepfather, stepmother, grandson,
granddaughter, brother, sister, half sister, half brother, niece or nephew, who
at the time of the accident, are dependent in whole or in part for their support
upon the earnings of the worker. Unless otherwise provided by treaty, aliens
not residing within the
     (11) “Director” means the Director of the
Department of Consumer and Business Services.
     (12)(a) “Doctor” or “physician” means a
person duly licensed to practice one or more of the healing arts in any country
or in any state, territory or possession of the
     (b) Except as otherwise provided for
workers subject to a managed care contract, “attending physician” means a
doctor, physician or physician assistant who is primarily responsible for the
treatment of a workerÂ’s compensable injury and who is:
     (A) A medical doctor or doctor of
osteopathy licensed under ORS 677.100 to 677.228 by the Oregon Medical Board or
an oral and maxillofacial surgeon licensed by the Oregon Board of Dentistry or
a similarly licensed doctor in any country or in any state, territory or
possession of the United States; or
     (B) For a cumulative total of 60 days from
the first visit on the initial claim or for a cumulative total of 18 visits,
whichever occurs first, to any of the medical service providers listed in this
subparagraph, a:
     (i) Doctor or physician licensed by the
State Board of Chiropractic Examiners for the State of Oregon under ORS chapter
684 or a similarly licensed doctor or physician in any country or in any state,
territory or possession of the United States;
     (ii) Podiatric physician and surgeon
licensed by the Oregon Medical Board under ORS 677.805 to 677.840 or a
similarly licensed doctor or physician in any country or in any state,
territory or possession of the United States;
     (iii) Physician assistant licensed by the
Oregon Medical Board in accordance with ORS 677.505 to 677.525 or a similarly
licensed physician assistant in any country or in any state, territory or
possession of the United States; or
     (iv) Doctor of naturopathy or naturopathic
physician licensed by the Board of Naturopathic Examiners licensed under ORS
chapter 685 or a similarly licensed doctor or physician in any country or in
any state, territory or possession of the
     (c) Except as otherwise provided for
workers subject to a managed care contract, “attending physician” does not
include a physician who provides care in a hospital emergency room and refers
the injured worker to a primary care physician for follow-up care and treatment.
     (d) “Consulting physician” means a doctor
or physician who examines a worker or the workerÂ’s medical record to advise the
attending physician or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 regarding treatment of a workerÂ’s
compensable injury.
     (13)(a) “Employer” means any person,
including receiver, administrator, executor or trustee, and the state, state
agencies, counties, municipal corporations, school districts and other public
corporations or political subdivisions, who contracts to pay a remuneration for
and secures the right to direct and control the services of any person.
     (b) Notwithstanding paragraph (a) of this
subsection, for purposes of this chapter, the client of a temporary service
provider is not the employer of temporary workers provided by the temporary
service provider.
     (c) As used in paragraph (b) of this
subsection, “temporary service provider” has the meaning for that term provided
in ORS 656.850.
     (14) “Insurer” means the State Accident
Insurance Fund Corporation or an insurer authorized under ORS chapter 731 to
transact workersÂ’ compensation insurance in this state or an assigned claims
agent selected by the director under ORS 656.054.
     (15) “Consumer and Business Services Fund”
means the fund created by ORS 705.145.
     (16) “Invalid” means one who is physically
or mentally incapacitated from earning a livelihood.
     (17) “Medically stationary” means that no
further material improvement would reasonably be expected from medical
treatment, or the passage of time.
     (18) “Noncomplying employer” means a
subject employer who has failed to comply with ORS 656.017.
     (19) “Objective findings” in support of
medical evidence are verifiable indications of injury or disease that may
include, but are not limited to, range of motion, atrophy, muscle strength and
palpable muscle spasm. “Objective findings” does not include physical findings
or subjective responses to physical examinations that are not reproducible,
measurable or observable.
     (20) “Palliative care” means medical
service rendered to reduce or moderate temporarily the intensity of an
otherwise stable medical condition, but does not include those medical services
rendered to diagnose, heal or permanently alleviate or eliminate a medical
condition.
     (21) “Party” means a claimant for
compensation, the employer of the injured worker at the time of injury and the
insurer, if any, of such employer.
     (22) “Payroll” means a record of wages
payable to workers for their services and includes commissions, value of
exchange labor and the reasonable value of board, rent, housing, lodging or
similar advantage received from the employer. However, “payroll” does not
include overtime pay, vacation pay, bonus pay, tips, amounts payable under
profit-sharing agreements or bonus payments to reward workers for safe working
practices. Bonus pay is limited to payments which are not anticipated under the
contract of employment and which are paid at the sole discretion of the
employer. The exclusion from payroll of bonus payments to reward workers for
safe working practices is only for the purpose of calculations based on payroll
to determine premium for workersÂ’ compensation insurance, and does not affect
any other calculation or determination based on payroll for the purposes of
this chapter.
     (23) “Person” includes partnership, joint
venture, association, limited liability company and corporation.
     (24)(a) “Preexisting condition” means, for
all industrial injury claims, any injury, disease, congenital abnormality, personality
disorder or similar condition that contributes to disability or need for
treatment, provided that:
     (A) Except for claims in which a
preexisting condition is arthritis or an arthritic condition, the worker has
been diagnosed with such condition, or has obtained medical services for the
symptoms of the condition regardless of diagnosis; and
     (B)(i) In claims for an initial injury or
omitted condition, the diagnosis or treatment precedes the initial injury;
     (ii) In claims for a new medical
condition, the diagnosis or treatment precedes the onset of the new medical
condition; or
     (iii) In claims for a worsening pursuant
to ORS 656.273 or 656.278, the diagnosis or treatment precedes the onset of the
worsened condition.
     (b) “Preexisting condition” means, for all
occupational disease claims, any injury, disease, congenital abnormality,
personality disorder or similar condition that contributes to disability or
need for treatment and that precedes the onset of the claimed occupational
disease, or precedes a claim for worsening in such claims pursuant to ORS
656.273 or 656.278.
     (c) For the purposes of industrial injury
claims, a condition does not contribute to disability or need for treatment if
the condition merely renders the worker more susceptible to the injury.
     (25) “Self-insured employer” means an
employer or group of employers certified under ORS 656.430 as meeting the
qualifications set out by ORS 656.407.
     (26) “State Accident Insurance Fund
Corporation” and “corporation” mean the State Accident Insurance Fund
Corporation created under ORS 656.752.
     (27) “Subject employer” means an employer
who is subject to this chapter as provided by ORS 656.023.
     (28) “Subject worker” means a worker who
is subject to this chapter as provided by ORS 656.027.
     (29) “Wages” means the money rate at which
the service rendered is recompensed under the contract of hiring in force at
the time of the accident, including reasonable value of board, rent, housing,
lodging or similar advantage received from the employer, and includes the
amount of tips required to be reported by the employer pursuant to section 6053
of the Internal Revenue Code of 1954, as amended, and the regulations
promulgated pursuant thereto, or the amount of actual tips reported, whichever
amount is greater. The State Accident Insurance Fund Corporation may establish
assumed minimum and maximum wages, in conformity with recognized insurance
principles, at which any worker shall be carried upon the payroll of the
employer for the purpose of determining the premium of the employer.
     (30) “Worker” means any person, including
a minor whether lawfully or unlawfully employed, who engages to furnish
services for a remuneration, subject to the direction and control of an
employer and includes salaried, elected and appointed officials of the state,
state agencies, counties, cities, school districts and other public
corporations, but does not include any person whose services are performed as
an inmate or ward of a state institution or as part of the eligibility requirements
for a general or public assistance grant. For the purpose of determining
entitlement to temporary disability benefits or permanent total disability
benefits under this chapter, “worker” does not include a person who has
withdrawn from the workforce during the period for which such benefits are
sought.
     (31) “Independent contractor” has the
meaning for that term provided in ORS 670.600.
     Note: See notes under 656.202.
     656.006
Effect on employersÂ’ liability law. This chapter does not abrogate the rights of the employee under the
present employersÂ’ liability law, in all cases where the employee, under this
chapter is given the right to bring suit against the employer of the employee
for an injury.
     656.008
Extension of laws relating to workersÂ’ compensation to federal lands and
projects within state. Where
not inconsistent with the Constitution and laws of the United States, the laws
of this state relating to workersÂ’ compensation and the duties and powers of
the Department of Consumer and Business Services hereby are extended to all
lands and premises owned or held by the United States of America by deed or act
of cession, by purchase or otherwise, which are within the exterior boundaries
of the State of Oregon and to all projects, buildings, constructions,
improvements and all property belonging to the United States within the
exterior boundaries of the State of Oregon in the same way and to the same
extent as if said premises and property were under the exclusive jurisdiction
of the State of Oregon. [Amended by 1977 c.804 §2]
     656.010
Treatment by spiritual means.
Nothing in this chapter shall be construed to require a worker who in good
faith relies on or is treated by prayer or spiritual means by a duly accredited
practitioner of a well-recognized church to undergo any medical or surgical
treatment nor shall such worker or the dependents of the worker be deprived of
any compensation payments to which the worker would have been entitled if
medical or surgical treatment were employed, and the employer or insurance
carrier may pay for treatment by prayer or spiritual means. [1965 c.285 §41c]
     656.012
Findings and policy. (1) The
Legislative Assembly finds that:
     (a) The performance of various industrial
enterprises necessary to the enrichment and economic well-being of all the
citizens of this state will inevitably involve injury to some of the workers
employed in those enterprises;
     (b) The method provided by the common law
for compensating injured workers involves long and costly litigation, without
commensurate benefit to either the injured workers or the employers, and often
requires the taxpayer to provide expensive care and support for the injured
workers and their dependents; and
     (c) An exclusive, statutory system of
compensation will provide the best societal measure of those injuries that bear
a sufficient relationship to employment to merit incorporation of their costs
into the stream of commerce.
     (2) In consequence of these findings, the
objectives of the WorkersÂ’ Compensation Law are declared to be as follows:
     (a) To provide, regardless of fault, sure,
prompt and complete medical treatment for injured workers and fair, adequate
and reasonable income benefits to injured workers and their dependents;
     (b) To provide a fair and just administrative
system for delivery of medical and financial benefits to injured workers that
reduces litigation and eliminates the adversary nature of the compensation
proceedings, to the greatest extent practicable;
     (c) To restore the injured worker
physically and economically to a self-sufficient status in an expeditious
manner and to the greatest extent practicable;
     (d) To encourage maximum employer
implementation of accident study, analysis and prevention programs to reduce
the economic loss and human suffering caused by industrial accidents; and
     (e) To provide the sole and exclusive
source and means by which subject workers, their beneficiaries and anyone
otherwise entitled to receive benefits on account of injuries or diseases
arising out of and in the course of employment shall seek and qualify for
remedies for such conditions.
     (3) In recognition that the goals and
objectives of this WorkersÂ’ Compensation Law are intended to benefit all
citizens, it is declared that the provisions of this law shall be interpreted
in an impartial and balanced manner. [1981 c.535 §29 (enacted in lieu of
656.004); 1995 c.332 §4; amendments by 1995 c.332 §4a repealed by 1999 c.6 §1;
amendments by 1999 c.6 §3 repealed by 2001 c.865 §23]
     Note: See notes under 656.202.
     656.016 [1965 c.285 §5; 1967 c.341 §3; repealed by
1975 c.556 §20 (656.017 enacted in lieu of 656.016)]
COVERAGE
     656.017
Employer required to pay compensation and perform other duties; state not
authorized to be direct responsibility employer. (1) Every employer subject to this chapter
shall maintain assurance with the Director of the Department of Consumer and
Business Services that subject workers of the employer and their beneficiaries
will receive compensation for compensable injuries as provided by this chapter
and that the employer will perform all duties and pay other obligations
required under this chapter, by qualifying:
     (a) As a carrier-insured employer; or
     (b) As a self-insured employer as provided
by ORS 656.407.
     (2) Notwithstanding ORS chapter 278, this
state shall provide compensation insurance for its employees through the State
Accident Insurance Fund Corporation.
     (3) Any employer required by the statutes
of this state other than this chapter or by the rules, regulations, contracts
or procedures of any agency of the federal government, this state or a
political subdivision of this state to provide or agree to provide workersÂ’
compensation coverage, either directly or through bond requirements, may
provide such coverage by any method provided in this section. [1975 c.556 §21
(enacted in lieu of 656.016); 1977 c.659 §1; 1979 c.815 §1; 1981 c.854 §3; 1985
c.731 §30]
     656.018
Effect of providing coverage; exclusive remedy. (1)(a) The liability of every employer who
satisfies the duty required by ORS 656.017 (1) is exclusive and in place of all
other liability arising out of injuries, diseases, symptom complexes or similar
conditions arising out of and in the course of employment that are sustained by
subject workers, the workersÂ’ beneficiaries and anyone otherwise entitled to
recover damages from the employer on account of such conditions or claims
resulting therefrom, specifically including claims for contribution or
indemnity asserted by third persons from whom damages are sought on account of
such conditions, except as specifically provided otherwise in this chapter.
     (b) This subsection shall not apply to
claims for indemnity or contribution asserted by a railroad, as defined in ORS
824.020, or by a corporation, individual or association of individuals which is
subject to regulation pursuant to ORS chapter 757 or 759.
     (c) Except as provided in paragraph (b) of
this subsection, all agreements or warranties contrary to the provisions of
paragraph (a) of this subsection entered into after July 19, 1977, are void.
     (2) The rights given to a subject worker
and the beneficiaries of the subject worker under this chapter for injuries,
diseases, symptom complexes or similar conditions arising out of and in the
course of employment are in lieu of any remedies they might otherwise have for
such injuries, diseases, symptom complexes or similar conditions against the
workerÂ’s employer under ORS 654.305 to 654.336 or other laws, common law or
statute, except to the extent the worker is expressly given the right under
this chapter to bring suit against the employer of the worker for an injury,
disease, symptom complex or similar condition.
     (3) The exemption from liability given an
employer under this section is also extended to the employerÂ’s insurer, the
self-insured employerÂ’s claims administrator, the Department of Consumer and
Business Services, and the contracted agents, employees, officers and directors
of the employer, the employerÂ’s insurer, the self-insured employerÂ’s claims
administrator and the department, except that the exemption from liability
shall not apply:
     (a) Where the injury, disease, symptom
complex or similar condition is proximately caused by willful and unprovoked
aggression by the person otherwise exempt under this subsection;
     (b) Where the worker and the person
otherwise exempt under this subsection are not engaged in the furtherance of a
common enterprise or the accomplishment of the same or related objectives; or
     (c) Where the injury, disease, symptom
complex or similar condition is proximately caused by failure of the employer
to comply with the notice posted pursuant to ORS 654.082.
     (4) The exemption from liability given an
employer under this section applies to a worker leasing company and the client
to whom workers are provided when the worker leasing company and the client
comply with ORS 656.850 (3).
     (5)(a) The exemption from liability given
an employer under this section applies to a temporary service provider, as that
term is used in ORS 656.850, and also extends to the client to whom workers are
provided when the temporary service provider complies with ORS 656.017.
     (b) The exemption from liability given a
client under paragraph (a) of this subsection is also extended to the clientÂ’s
insurer, the self-insured clientÂ’s claims administrator, the department, and
the contracted agents, employees, officers and directors of the client, the
clientÂ’s insurer, the self-insured clientÂ’s claims administrator and the
department, except that the exemption from liability shall not apply:
     (A) When the injury, disease, symptom
complex or similar condition is proximately caused by willful and unprovoked
aggression by the person otherwise exempt under this subsection;
     (B) When the worker and the person
otherwise exempt under this subsection are not engaged in the furtherance of a
common enterprise or the accomplishment of the same or related objectives; or
     (C) When the injury, disease, symptom
complex or similar condition is proximately caused by failure of the client to
comply with the notice posted pursuant to ORS 654.082.
     (6) Nothing in this chapter shall prohibit
payment, voluntarily or otherwise, to injured workers or their beneficiaries in
excess of the compensation required to be paid under this chapter.
     (7) The exclusive remedy provisions and
limitation on liability provisions of this chapter apply to all injuries and to
diseases, symptom complexes or similar conditions of subject workers arising
out of and in the course of employment whether or not they are determined to be
compensable under this chapter. [1965 c.285 §6; 1975 c.115 §1; 1977 c.514 §1;
1977 c.804 §3a; 1987 c.447 §110; 1989 c.600 §1; 1993 c.628 §6; 1995 c.332 §5;
amendments by 1995 c.332 §5a repealed by 1999 c.6 §1; 1995 c.733 §76; 1997
c.275 §§6,7; 1997 c.491 §§1,2; amendments by 1999 c.6 §4 repealed by 2001 c.865
§23]
     Note: See notes under 656.202.
     656.019
Civil negligence action for claim denied on basis of failure to meet major
contributing cause standard; statute of limitations. (1)(a) An injured worker may pursue a civil
negligence action for a work-related injury that has been determined to be not
compensable because the worker has failed to establish that a work-related
incident was the major contributing cause of the workerÂ’s injury only after an
order determining that the claim is not compensable has become final. The
injured worker may appeal the compensability of the claim as provided in ORS
656.298, but may not pursue a civil negligence claim against the employer until
the order affirming the denial has become final.
     (b) Nothing in this subsection grants a
right for a person to pursue a civil negligence action that does not otherwise
exist in law.
     (2)(a) Notwithstanding any other statute
of limitation provided in law, a civil negligence action against an employer
that arises because a workersÂ’ compensation claim has been determined to be not
compensable because the worker has failed to establish that a work-related
incident was the major contributing cause of the workerÂ’s injury must be
commenced within the later of two years from the date of injury or 180 days
from the date the order affirming that the claim is not compensable on such
grounds becomes final.
     (b) Notwithstanding paragraph (a) of this
subsection, a person may not commence a civil negligence action for a
work-related injury that has been determined to be not compensable because the
worker has failed to establish that a work-related incident was the major
contributing cause of the workerÂ’s injury, if the period within which such
action may be commenced has expired prior to the filing of a timely workersÂ’
compensation claim for the work-related injury. [2001 c.865 §15]
     656.020
Damage actions by workers against noncomplying employers; defenses outlawed. Actions for damages may be brought by an
injured worker or the legal representative of the injured worker against any
employer who has failed to comply with ORS 656.017 or is in default under ORS
656.560. Except for the provisions of ORS 656.578 to 656.593 and this section,
such noncomplying employer is liable as the noncomplying employer would have
been if this chapter had never been enacted. In such actions, it is no defense
for the employer to show that:
     (1) The injury was caused in whole or in
part by the negligence of a fellow-servant of the injured worker.
     (2) The negligence of the injured worker,
other than a willful act committed for the purpose of sustaining the injury,
contributed to the accident.
     (3) The injured worker had knowledge of
the danger or assumed the risk that resulted in the injury. [1965 c.285 §7]
     656.021
Person performing work under ORS chapter 701 as subject employer. Notwithstanding ORS 656.029 (1), a person
who is licensed pursuant to an application under ORS 701.046 and is acting
under a contract to perform work described by ORS chapter 701 shall be
considered the subject employer for all individuals employed by that person. [1989
c.870 §13; 1999 c.402 §7; 2007 c.836 §48]
     Note: The amendments to 656.021 by section 48,
chapter 836, Oregon Laws 2007, become operative July 1, 2008. See section 70,
chapter 836, Oregon Laws 2007. The text that is operative until July 1, 2008,
is set forth for the userÂ’s convenience.
     656.021. Notwithstanding ORS 656.029 (1), a person
who is licensed pursuant to ORS 701.046 and is acting under a contract to
perform work described by ORS chapter 701 shall be considered the subject
employer for all individuals employed by that person.
     656.022 [Repealed by 1965 c.285 §95]
     656.023
Who are subject employers.
Every employer employing one or more subject workers in the state is subject to
this chapter. [1965 c.285 §8]
     656.024 [Amended by 1959 c.448 §2; repealed by 1965
c.285 §95]
     656.025
Individuals engaged in commuter ridesharing not subject workers; conditions. (1) For the purpose of this chapter, an
individual is not a subject worker while commuting in a voluntary commuter
ridesharing arrangement unless:
     (a) The worker is reimbursed for travel
expenses incurred therein;
     (b) The worker receives payment for
commuting time from the employer; or
     (c) The employer makes an election to
provide coverage for the worker pursuant to ORS 656.039.
     (2) As used in this section “voluntary
commuter ridesharing arrangement” means a carpool or vanpool arrangement in
which participation is not required as a condition of employment and in which
not more than 15 persons are transported to and from their places of
employment, in a single daily round trip where the driver also is on the way to
or from the driver’s place of employment. [1981 c.227 §4]
     656.026 [Amended by 1957 c.440 §1; 1959 c.448 §3;
repealed by 1965 c.285 §95]
     656.027
Who are subject workers. All
workers are subject to this chapter except those nonsubject workers described
in the following subsections:
     (1) A worker employed as a domestic servant
in or about a private home. For the purposes of this subsection “domestic
servant” means any worker engaged in household domestic service by private
employment contract, including, but not limited to, home health workers.
     (2) A worker employed to do gardening,
maintenance, repair, remodeling or similar work in or about the private home of
the person employing the worker.
     (3)(a) A worker whose employment is casual
and either:
     (A) The employment is not in the course of
the trade, business or profession of the employer; or
     (B) The employment is in the course of the
trade, business or profession of a nonsubject employer.
     (b) For the purpose of this subsection, “casual”
refers only to employments where the work in any 30-day period, without regard
to the number of workers employed, involves a total labor cost of less than
$500.
     (4) A person for whom a rule of liability
for injury or death arising out of and in the course of employment is provided
by the laws of the United States.
     (5) A worker engaged in the transportation
in interstate commerce of goods, persons or property for hire by rail, water,
aircraft or motor vehicle, and whose employer has no fixed place of business in
this state.
     (6) Firefighter and police employees of
any city having a population of more than 200,000 that provides a disability
and retirement system by ordinance or charter.
     (7)(a) Sole proprietors, except those
described in paragraph (b) of this subsection. When labor or services are
performed under contract, the sole proprietor must qualify as an independent
contractor.
     (b) Sole proprietors actively licensed
under ORS 671.525 or 701.035. When labor or services are performed under
contract for remuneration, notwithstanding ORS 656.005 (30), the sole
proprietor must qualify as an independent contractor. Any sole proprietor
licensed under ORS 671.525 or 701.035 and involved in activities subject
thereto is conclusively presumed to be an independent contractor.
     (8) Except as provided in subsection (23)
of this section, partners who are not engaged in work performed in direct
connection with the construction, alteration, repair, improvement, moving or
demolition of an improvement on real property or appurtenances thereto. When
labor or services are performed under contract, the partnership must qualify as
an independent contractor.
     (9) Except as provided in subsection (25)
of this section, members, including members who are managers, of limited
liability companies, regardless of the nature of the work performed. However,
members, including members who are managers, of limited liability companies
with more than one member, while engaged in work performed in direct connection
with the construction, alteration, repair, improvement, moving or demolition of
an improvement on real property or appurtenances thereto, are subject workers.
When labor or services are performed under contract, the limited liability
company must qualify as an independent contractor.
     (10) Except as provided in subsection (24)
of this section, corporate officers who are directors of the corporation and
who have a substantial ownership interest in the corporation, regardless of the
nature of the work performed by such officers, subject to the following
limitations:
     (a) If the activities of the corporation
are conducted on land that receives farm use tax assessment pursuant to ORS
chapter 308A, corporate officer includes all individuals identified as
directors in the corporate bylaws, regardless of ownership interest, and who
are members of the same family, whether related by blood, marriage or adoption.
     (b) If the activities of the corporation
involve the commercial harvest of timber and all officers of the corporation
are members of the same family and are parents, daughters or sons,
daughters-in-law or sons-in-law or grandchildren, then all such officers may
elect to be nonsubject workers. For all other corporations involving the
commercial harvest of timber, the maximum number of exempt corporate officers
for the corporation shall be whichever is the greater of the following:
     (A) Two corporate officers; or
     (B) One corporate officer for each 10
corporate employees.
     (c) When labor or services are performed
under contract, the corporation must qualify as an independent contractor.
     (11) A person performing services primarily
for board and lodging received from any religious, charitable or relief
organization.
     (12) A newspaper carrier utilized in
compliance with the provisions of ORS 656.070 and 656.075.
     (13) A person who has been declared an
amateur athlete under the rules of the United States Olympic Committee or the
Canadian Olympic Committee and who receives no remuneration for performance of
services as an athlete other than board, room, rent, housing, lodging or other
reasonable incidental subsistence allowance, or any amateur sports official who
is certified by a recognized Oregon or national certifying authority, which
requires or provides liability and accident insurance for such officials. A
roster of recognized
     (14) Volunteer personnel participating in
the ACTION programs, organized under the Domestic Volunteer Service Act of
1973, P.L. 93-113, known as the Foster Grandparent Program and the Senior
Companion Program, whether or not the volunteers receive a stipend or nominal
reimbursement for time and travel expenses.
     (15) A person who has an ownership or
leasehold interest in equipment and who furnishes, maintains and operates the
equipment. As used in this subsection “equipment” means:
     (a) A motor vehicle used in the
transportation of logs, poles or piling.
     (b) A motor vehicle used in the
transportation of rocks, gravel, sand, dirt or asphalt concrete.
     (c) A motor vehicle used in the
transportation of property by a for-hire motor carrier that is required under
ORS 825.100 or 825.104 to possess a certificate or permit or to be registered.
     (16) A person engaged in the
transportation of the public for recreational down-river boating activities on
the waters of this state pursuant to a federal permit when the person furnishes
the equipment necessary for the activity. As used in this subsection, “recreational
down-river boating activities” means those boating activities for the purpose
of recreational fishing, swimming or sightseeing utilizing a float craft with
oars or paddles as the primary source of power.
     (17) A person who performs volunteer ski
patrol activities who receives no wage other than noncash remuneration.
     (18) A person 19 years of age or older who
contracts with a newspaper publishing company or independent newspaper dealer
or contractor to distribute newspapers to the general public and perform or
undertake any necessary or attendant functions related thereto.
     (19) A person performing foster parent or
adult foster care duties pursuant to ORS 412.001 to 412.161 and 412.991 or ORS
chapter 411, 418, 430 or 443.
     (20) A person performing services on a
volunteer basis for a nonprofit, religious, charitable or relief organization,
whether or not such person receives meals or lodging or nominal reimbursements
or vouchers for meals, lodging or expenses.
     (21) A person performing services under a
property tax work-off program established under ORS 310.800.
     (22) A person who performs service as a
caddy at a golf course in an established program for the training and
supervision of caddies under the direction of a person who is an employee of
the golf course.
     (23)(a) Partners who are actively licensed
under ORS 671.525 or 701.035 and who have a substantial ownership interest in a
partnership. If all partners are members of the same family and are parents,
spouses, sisters, brothers, daughters or sons, daughters-in-law or sons-in-law
or grandchildren, all such partners may elect to be nonsubject workers. For all
other partnerships licensed under ORS 671.510 to 671.760 or ORS chapter 701,
the maximum number of exempt partners shall be whichever is the greater of the
following:
     (A) Two partners; or
     (B) One partner for each 10 partnership
employees.
     (b) When labor or services are performed
under contract for remuneration, notwithstanding ORS 656.005 (30), the partnership
qualifies as an independent contractor. Any partnership licensed under ORS
671.525 or 701.035 and involved in activities subject thereto is conclusively
presumed to be an independent contractor.
     (24)(a) Corporate officers who are
directors of a corporation actively licensed under ORS 671.525 or 701.035 and
who have a substantial ownership interest in the corporation, regardless of the
nature of the work performed. If all officers of the corporation are members of
the same family and are parents, spouses, sisters, brothers, daughters or sons,
daughters-in-law or sons-in-law or grandchildren, all such officers may elect
to be nonsubject workers. For all other corporations licensed under ORS 671.510
to 671.760 or ORS chapter 701, the maximum number of exempt corporate officers
shall be whichever is the greater of the following:
     (A) Two corporate officers; or
     (B) One corporate officer for each 10
corporate employees.
     (b) When labor or services are performed
under contract for remuneration, notwithstanding ORS 656.005 (30), the
corporation qualifies as an independent contractor. Any corporation licensed
under ORS 671.525 or 701.035 and involved in activities subject thereto is
conclusively presumed to be an independent contractor.
     (25)(a) Limited liability company members
who are members of a company actively licensed under ORS 671.525 or 701.035 and
who have a substantial ownership interest in the company, regardless of the
nature of the work performed. If all members of the company are members of the same
family and are parents, spouses, sisters, brothers, daughters or sons,
daughters-in-law or sons-in-law or grandchildren, all such members may elect to
be nonsubject workers. For all other companies licensed under ORS 671.510 to
671.760 or ORS chapter 701, the maximum number of exempt company members shall
be whichever is the greater of the following:
     (A) Two company members; or
     (B) One company member for each 10 company
employees.
     (b) When labor or services are performed
under contract for remuneration, notwithstanding ORS 656.005 (30), the company
qualifies as an independent contractor. Any company licensed under ORS 671.525
or 701.035 and involved in activities subject thereto is conclusively presumed
to be an independent contractor.
     (26) A person serving as a referee or
assistant referee in a youth or adult recreational soccer match whose services
are retained on a match-by-match basis.
     (27) A person performing language
translator or interpreter services that are provided for others through an agent
or broker.
     (28) A person who operates, and who has an
ownership or leasehold interest in, a passenger motor vehicle that is operated
as a taxicab or for nonemergency medical transportation. As used in this
subsection:
     (a) “Lease” means a contract under which
the lessor provides a vehicle to a lessee for consideration.
     (b) “Leasehold” includes, but is not
limited to, a lease for a shift or a longer period.
     (c) “Passenger motor vehicle that is
operated as a taxicab” means a vehicle that:
     (A) Has a passenger seating capacity that
does not exceed seven persons;
     (B) Is transporting persons, property or
both on a route that begins or ends in
     (C)(i) Carries passengers for hire when
the destination and route traveled may be controlled by a passenger and the
fare is calculated on the basis of any combination of an initial fee, distance
traveled or waiting time; or
     (ii) Is in use under a contract to provide
specific service to a third party to transport designated passengers or to
provide errand services to locations selected by the third party.
     (d) “Passenger motor vehicle that is
operated for nonemergency medical transportation” means a vehicle that:
     (A) Has a passenger seating capacity that
does not exceed seven persons;
     (B) Is transporting persons, property or
both on a route that begins or ends in
     (C) Provides medical transportation
services under contract with or on behalf of a mass transit or transportation
district. [1965 c.285 §9; 1971 c.386 §1; 1977 c.683 §1; 1977 c.817 §2; 1977
c.835 §7; 1979 c.821 §1; 1981 c.225 §1; 1981 c.444 §1; 1981 c.535 §3; 1981
c.839 §1; 1983 c.341 §1; 1983 c.541 §1; 1983 c.579 §3; 1985 c.431 §1; 1985
c.706 §2; 1987 c.94 §168; 1987 c.414 §161; 1987 c.800 §2; 1989 c.762 §4; 1990
c.2 §4; 1991 c.469 §1; 1991 c.707 §1; 1993 c.18 §138a; 1993 c.494 §2; 1993
c.777 §10; 1995 c.93 §32; 1995 c.216 §§3,3a; 1995 c.332 §6; 1997 c.337 §1; 1999
c.314 §91; 1999 c.402 §8; 2001 c.363 §1; 2001 c.765 §4; 2003 c.677 §1; 2005
c.167 §1; 2007 c.465 §6; 2007 c.541 §9; 2007 c.721 §1]
     Note: The amendments to 656.027 by section 49,
chapter 836, Oregon Laws 2007, become operative July 1, 2010. See section 70,
chapter 836, Oregon Laws 2007. The text that is operative on and after July 1,
2010, is set forth for the userÂ’s convenience.
     656.027. All workers are subject to this chapter
except those nonsubject workers described in the following subsections:
     (1) A worker employed as a domestic
servant in or about a private home. For the purposes of this subsection “domestic
servant” means any worker engaged in household domestic service by private
employment contract, including, but not limited to, home health workers.
     (2) A worker employed to do gardening,
maintenance, repair, remodeling or similar work in or about the private home of
the person employing the worker.
     (3)(a) A worker whose employment is casual
and either:
     (A) The employment is not in the course of
the trade, business or profession of the employer; or
     (B) The employment is in the course of the
trade, business or profession of a nonsubject employer.
     (b) For the purpose of this subsection, “casual”
refers only to employments where the work in any 30-day period, without regard
to the number of workers employed, involves a total labor cost of less than
$500.
     (4) A person for whom a rule of liability
for injury or death arising out of and in the course of employment is provided
by the laws of the United States.
     (5) A worker engaged in the transportation
in interstate commerce of goods, persons or property for hire by rail, water,
aircraft or motor vehicle, and whose employer has no fixed place of business in
this state.
     (6) Firefighter and police employees of
any city having a population of more than 200,000 that provides a disability
and retirement system by ordinance or charter.
     (7)(a) Sole proprietors, except those
described in paragraph (b) of this subsection. When labor or services are
performed under contract, the sole proprietor must qualify as an independent
contractor.
     (b) Sole proprietors actively licensed under
ORS 671.525 or 701.021. When labor or services are performed under contract for
remuneration, notwithstanding ORS 656.005 (30), the sole proprietor must
qualify as an independent contractor. Any sole proprietor licensed under ORS
671.525 or 701.021 and involved in activities subject thereto is conclusively
presumed to be an independent contractor.
     (8) Except as provided in subsection (23)
of this section, partners who are not engaged in work performed in direct
connection with the construction, alteration, repair, improvement, moving or
demolition of an improvement on real property or appurtenances thereto. When
labor or services are performed under contract, the partnership must qualify as
an independent contractor.
     (9) Except as provided in subsection (25)
of this section, members, including members who are managers, of limited
liability companies, regardless of the nature of the work performed. However,
members, including members who are managers, of limited liability companies
with more than one member, while engaged in work performed in direct connection
with the construction, alteration, repair, improvement, moving or demolition of
an improvement on real property or appurtenances thereto, are subject workers.
When labor or services are performed under contract, the limited liability
company must qualify as an independent contractor.
     (10) Except as provided in subsection (24)
of this section, corporate officers who are directors of the corporation and
who have a substantial ownership interest in the corporation, regardless of the
nature of the work performed by such officers, subject to the following
limitations:
     (a) If the activities of the corporation
are conducted on land that receives farm use tax assessment pursuant to ORS
chapter 308A, corporate officer includes all individuals identified as
directors in the corporate bylaws, regardless of ownership interest, and who
are members of the same family, whether related by blood, marriage or adoption.
     (b) If the activities of the corporation
involve the commercial harvest of timber and all officers of the corporation
are members of the same family and are parents, daughters or sons,
daughters-in-law or sons-in-law or grandchildren, then all such officers may
elect to be nonsubject workers. For all other corporations involving the
commercial harvest of timber, the maximum number of exempt corporate officers
for the corporation shall be whichever is the greater of the following:
     (A) Two corporate officers; or
     (B) One corporate officer for each 10 corporate
employees.
     (c) When labor or services are performed
under contract, the corporation must qualify as an independent contractor.
     (11) A person performing services
primarily for board and lodging received from any religious, charitable or
relief organization.
     (12) A newspaper carrier utilized in
compliance with the provisions of ORS 656.070 and 656.075.
     (13) A person who has been declared an
amateur athlete under the rules of the United States Olympic Committee or the
Canadian Olympic Committee and who receives no remuneration for performance of
services as an athlete other than board, room, rent, housing, lodging or other
reasonable incidental subsistence allowance, or any amateur sports official who
is certified by a recognized Oregon or national certifying authority, which
requires or provides liability and accident insurance for such officials. A
roster of recognized
     (14) Volunteer personnel participating in
the ACTION programs, organized under the Domestic Volunteer Service Act of
1973, P.L. 93-113, known as the Foster Grandparent Program and the Senior
Companion Program, whether or not the volunteers receive a stipend or nominal
reimbursement for time and travel expenses.
     (15) A person who has an ownership or
leasehold interest in equipment and who furnishes, maintains and operates the
equipment. As used in this subsection “equipment” means:
     (a) A motor vehicle used in the
transportation of logs, poles or piling.
     (b) A motor vehicle used in the
transportation of rocks, gravel, sand, dirt or asphalt concrete.
     (c) A motor vehicle used in the
transportation of property by a for-hire motor carrier that is required under
ORS 825.100 or 825.104 to possess a certificate or permit or to be registered.
     (16) A person engaged in the
transportation of the public for recreational down-river boating activities on
the waters of this state pursuant to a federal permit when the person furnishes
the equipment necessary for the activity. As used in this subsection, “recreational
down-river boating activities” means those boating activities for the purpose
of recreational fishing, swimming or sightseeing utilizing a float craft with
oars or paddles as the primary source of power.
     (17) A person who performs volunteer ski
patrol activities who receives no wage other than noncash remuneration.
     (18) A person 19 years of age or older who
contracts with a newspaper publishing company or independent newspaper dealer
or contractor to distribute newspapers to the general public and perform or
undertake any necessary or attendant functions related thereto.
     (19) A person performing foster parent or
adult foster care duties pursuant to ORS 412.001 to 412.161 and 412.991 or ORS
chapter 411, 418, 430 or 443.
     (20) A person performing services on a
volunteer basis for a nonprofit, religious, charitable or relief organization,
whether or not such person receives meals or lodging or nominal reimbursements
or vouchers for meals, lodging or expenses.
     (21) A person performing services under a
property tax work-off program established under ORS 310.800.
     (22) A person who performs service as a
caddy at a golf course in an established program for the training and
supervision of caddies under the direction of a person who is an employee of
the golf course.
     (23)(a) Partners who are actively licensed
under ORS 671.525 or 701.021 and who have a substantial ownership interest in a
partnership. If all partners are members of the same family and are parents,
spouses, sisters, brothers, daughters or sons, daughters-in-law or sons-in-law
or grandchildren, all such partners may elect to be nonsubject workers. For all
other partnerships licensed under ORS 671.510 to 671.760 or 701.021, the
maximum number of exempt partners shall be whichever is the greater of the
following:
     (A) Two partners; or
     (B) One partner for each 10 partnership
employees.
     (b) When labor or services are performed
under contract for remuneration, notwithstanding ORS 656.005 (30), the
partnership qualifies as an independent contractor. Any partnership licensed
under ORS 671.525 or 701.021 and involved in activities subject thereto is
conclusively presumed to be an independent contractor.
     (24)(a) Corporate officers who are
directors of a corporation actively licensed under ORS 671.525 or 701.021 and
who have a substantial ownership interest in the corporation, regardless of the
nature of the work performed. If all officers of the corporation are members of
the same family and are parents, spouses, sisters, brothers, daughters or sons,
daughters-in-law or sons-in-law or grandchildren, all such officers may elect
to be nonsubject workers. For all other corporations licensed under ORS 671.510
to 671.760 or 701.021, the maximum number of exempt corporate officers shall be
whichever is the greater of the following:
     (A) Two corporate officers; or
     (B) One corporate officer for each 10
corporate employees.
     (b) When labor or services are performed
under contract for remuneration, notwithstanding ORS 656.005 (30), the
corporation qualifies as an independent contractor. Any corporation licensed
under ORS 671.525 or 701.021 and involved in activities subject thereto is
conclusively presumed to be an independent contractor.
     (25)(a) Limited liability company members
who are members of a company actively licensed under ORS 671.525 or 701.021 and
who have a substantial ownership interest in the company, regardless of the
nature of the work performed. If all members of the company are members of the
same family and are parents, spouses, sisters, brothers, daughters or sons,
daughters-in-law or sons-in-law or grandchildren, all such members may elect to
be nonsubject workers. For all other companies licensed under ORS 671.510 to
671.760 or 701.021, the maximum number of exempt company members shall be
whichever is the greater of the following:
     (A) Two company members; or
     (B) One company member for each 10 company
employees.
     (b) When labor or services are performed
under contract for remuneration, notwithstanding ORS 656.005 (30), the company
qualifies as an independent contractor. Any company licensed under ORS 671.525
or 701.021 and involved in activities subject thereto is conclusively presumed
to be an independent contractor.
     (26) A person serving as a referee or
assistant referee in a youth or adult recreational soccer match whose services
are retained on a match-by-match basis.
     (27) A person performing language
translator or interpreter services that are provided for others through an
agent or broker.
     (28) A person who operates, and who has an
ownership or leasehold interest in, a passenger motor vehicle that is operated
as a taxicab or for nonemergency medical transportation. As used in this
subsection:
     (a) “Lease” means a contract under which
the lessor provides a vehicle to a lessee for consideration.
     (b) “Leasehold” includes, but is not limited
to, a lease for a shift or a longer period.
     (c) “Passenger motor vehicle that is
operated as a taxicab” means a vehicle that:
     (A) Has a passenger seating capacity that
does not exceed seven persons;
     (B) Is transporting persons, property or
both on a route that begins or ends in
     (C)(i) Carries passengers for hire when
the destination and route traveled may be controlled by a passenger and the
fare is calculated on the basis of any combination of an initial fee, distance
traveled or waiting time; or
     (ii) Is in use under a contract to provide
specific service to a third party to transport designated passengers or to
provide errand services to locations selected by the third party.
     (d) “Passenger motor vehicle that is
operated for nonemergency medical transportation” means a vehicle that:
     (A) Has a passenger seating capacity that
does not exceed seven persons;
     (B) Is transporting persons, property or
both on a route that begins or ends in
     (C) Provides medical transportation
services under contract with or on behalf of a mass transit or transportation
district.
     656.028 [Amended by 1959 c.448 §4; repealed by 1965
c.285 §95]
     656.029
Obligation of person awarding contract to provide coverage for workers under
contract; exceptions; effect of failure to provide coverage. (1) If a person awards a contract involving
the performance of labor where such labor is a normal and customary part or
process of the personÂ’s trade or business, the person awarding the contract is
responsible for providing workersÂ’ compensation insurance coverage for all
individuals, other than those exempt under ORS 656.027, who perform labor under
the contract unless the person to whom the contract is awarded provides such
coverage for those individuals before labor under the contract commences. If an
individual who performs labor under the contract incurs a compensable injury,
and no workersÂ’ compensation insurance coverage is provided for that individual
by the person who is charged with the responsibility for providing such
coverage before labor under the contract commences, that person shall be
treated as a noncomplying employer and benefits shall be paid to the injured
worker in the manner provided in this chapter for the payment of benefits to
the worker of a noncomplying employer.
     (2) If a person to whom the contract is
awarded is exempt from coverage under ORS 656.027, and that person engages
individuals who are not exempt under ORS 656.027 in the performance of the
contract, that person shall provide workersÂ’ compensation insurance coverage
for all such individuals. If an individual who performs labor under the
contract incurs a compensable injury, and no workersÂ’ compensation insurance
coverage is provided for that individual by the person to whom the contract is
awarded, that person shall be treated as a noncomplying employer and benefits
shall be paid to the injured worker in the manner provided in this chapter for
the payment of benefits to the worker of a noncomplying employer.
     (3) As used in this section:
     (a) “Person” includes partnerships, joint
ventures, associations, corporations, limited liability companies, governmental
agencies and sole proprietorships.
     (b) “Sole proprietorship” means a business
entity or individual who performs labor without the assistance of others. [1979
c.864 §2; 1981 c.725 §1; 1981 c.854 §4; 1983 c.397 §1; 1983 c.579 §2a; 1985
c.706 §1; 1989 c.762 §5; 1995 c.93 §34; 1995 c.332 §6a]
     656.030 [Repealed by 1959 c.448 §14]
     656.031
Coverage for municipal volunteer personnel. (1) All municipal personnel, other than those employed full-time,
part-time, or substitutes therefor, shall, for the purpose of this chapter, be
known as volunteer personnel and shall not be considered as workers unless the
municipality has filed the election provided by this section.
     (2) The county, city or other municipality
utilizing volunteer personnel as specified in subsection (1) of this section
may elect to have such personnel considered as subject workers for purposes of
this chapter. Such election shall be made by filing a written application to
the insurer, or in the case of a self-insured employer, the Director of the
Department of Consumer and Business Services, that includes a resolution of the
governing body declaring its intent to cover volunteer personnel as provided in
subsection (1) of this section and a description of the work to be performed by
such personnel. The application shall also state the estimated total number of
volunteer personnel on a roster for each separate category for which coverage
is elected. The county, city or other municipality shall notify the insurer, or
in the case of self-insurers, the director, of changes in the estimated total
number of volunteers.
     (3) Upon receiving the written application
the insurer or self-insured employer may fix assumed wage rates for the
volunteer personnel, which may be used only for purposes of computations under
this chapter, and shall require the regular payment of premiums or assessments
based upon the estimated total numbers of such volunteers carried on the roster
for each category being covered. The self-insured employer shall submit such
assumed wage rates to the director. If the director finds that the rates are
unreasonable, the director may fix appropriate rates to be used for purposes of
this section.
     (4) The county, city or municipality shall
maintain separate official membership rosters for each category of volunteers.
A certified copy of the official membership roster shall be furnished the
insurer or director upon request. Persons covered under this section are
entitled to the benefits of this chapter and they are entitled to such benefits
if injured as provided in ORS 656.202 while performing any duties arising out
of and in the course of their employment as volunteer personnel, if the duties
being performed are among those:
     (a) Described on the application of the
county, city or municipality; and
     (b) Required of similar full-time paid
employees.
     (5) The filing of claims for benefits
under this section is the exclusive remedy of a volunteer or a beneficiary of
the volunteer for injuries compensable under this chapter against the state,
its political subdivisions, their officers, employees, or any employer,
regardless of negligence. [Formerly 656.088; 1969 c.527 §1; 1977 c.72 §1; 1979
c.815 §2; 1981 c.854 §5; 1981 c.874 §1]
     656.032 [Amended by 1959 c.451 §1; repealed by 1965
c.285 §95]
     656.033
Coverage for participants in work experience or school directed professional
training programs. (1) All
persons participating as trainees in a work experience program or school
directed professional education project of a school district as defined in ORS
332.002 in which such persons are enrolled, including persons with mental
retardation in training programs, are considered as workers of the district
subject to this chapter for purposes of this section. Trainees placed in a work
experience program with their resident school district as the training employer
shall be subject workers under this section when the training and supervision
are performed by noninstructional personnel.
     (2) A school district conducting a work
experience program or school directed professional education project shall
submit a written statement to the insurer, or in the case of self-insurers, the
Director of the Department of Consumer and Business Services, that includes a
description of the work to be performed by such persons and an estimate of the
total number of persons enrolled.
     (3) The premium cost for coverage under
this section shall be based on an assumed hourly wage which is approved by the
Director of the Department of Consumer and Business Services. Such assumed wage
is to be used only for calculation purposes under this chapter and without
regard to ORS chapter 652 or ORS 653.010 to 653.545 and 653.991. A self-insured
district shall submit such assumed wage rates to the director. If the director
finds that the rates are unreasonable, the director may fix appropriate rates
to be used for purposes of this section.
     (4) The school district shall furnish the
insurer, or in the case of self-insurers, the director, with an estimate of the
total number of persons enrolled in its work experience program or school
directed professional education project and shall notify the insurer or
director of any significant changes therein. Persons covered under this section
are entitled to the benefits of this chapter. However, such persons are not
entitled to benefits under ORS 656.210 or 656.212. They are entitled to such
benefits if injured as provided in ORS 656.156 and 656.202 while performing any
duties arising out of and in the course of their participation in the work
experience program or school directed professional education project, provided
the duties being performed are among those:
     (a) Described on the application of the
school district; and
     (b) Required of similar full-time paid
employees.
     (5) The filing of claims for benefits
under this section is the exclusive remedy of a trainee or a beneficiary of the
trainee for injuries compensable under this chapter against the state, its
political subdivisions, the school district board, its members, officers and
employees, or any employer, regardless of negligence.
     (6) The provisions of this section shall
be inapplicable to any trainee who has earned wages for such employment.
     (7) As used in this section, “school
directed professional education project” means an on-campus or off-campus
project supervised by school personnel and which is an assigned activity of a
local professional education program approved pursuant to operating procedures
of the State Board of Education. A school directed professional education
project must be of a practicum experience nature, performed outside of a
classroom environment and extending beyond initial instruction or demonstration
activities. Such projects are limited to logging, silvicultural thinning, slash
burning, fire fighting, stream enhancement, woodcutting, reforestation, tree
surgery, construction, printing and manufacturing involving formed metals.
     (8) Notwithstanding subsection (1) of this
section, a school district may elect to make trainees subject workers under
this chapter for school directed professional education projects not enumerated
in subsection (7) of this section by making written request to the districtÂ’s
insurer, or in the case of a self-insured district, the director, with coverage
to begin no sooner than the date the request is received by the insurer or
director. The request for coverage shall include a description of the work to
be performed under the project and an estimate of the number of participating
trainees. The insurer or director shall accept a request that meets the
criteria of this section. [1967 c.374 §2; 1979 c.814 §2a; 1979 c.815 §3; 1981
c.874 §2; 1987 c.489 §1; 1989 c.491 §63; 1991 c.534 §1; 1995 c.343 §52; 2007
c.70 §285]
     656.034 [Amended by 1959 c.441 §1; 1959 c.448 §5;
repealed by 1965 c.285 §95]
     656.035
Status of workers in separate occupations of employer. If an employer is engaged in an occupation
in which the employer employs one or more subject workers and is also engaged
in a separate occupation in which there are no subject workers, the employer is
not subject to this chapter as to that separate occupation, nor are the workers
wholly engaged in that occupation subject to this chapter. [1965 c.285 §10]
     656.036 [Amended by 1957 c.441 §2; 1959 c.448 §6;
repealed by 1965 c.285 §95]
     656.037
Exemption from coverage for persons engaged in certain real estate activities. A person contracting to pay remuneration for
professional real estate activity as defined in ORS chapter 696 to a qualified
real estate broker or qualified principal real estate broker, as defined in ORS
316.209, is not an employer of that qualified broker under the WorkersÂ’
Compensation Law. A qualified real estate broker or qualified principal real
estate broker is not entitled to benefits under the WorkersÂ’ Compensation Law
unless such individual has obtained coverage for such benefits pursuant to ORS
656.128. [1983 c.597 §5; 2001 c.300 §71]
     656.038 [Repealed by 1965 c.285 §95]
     656.039
Election of coverage for workers not subject to law; procedure; cancellation;
election of coverage for home health care workers employed by clients of Department
of Human Services. (1) An
employer of one or more persons defined as nonsubject workers or not defined as
subject workers may elect to make them subject workers. If the employer is or
becomes a carrier-insured employer, the election shall be made by filing
written notice thereof with the insurer with a copy to the Director of the
Department of Consumer and Business Services. The effective date of coverage is
governed by ORS 656.419 (3). If the employer is or becomes a self-insured
employer, the election shall be made by filing written notice thereof with the
director, the effective date of coverage to be the date specified in the
notice.
     (2) Any election under subsection (1) of
this section may be canceled by written notice thereof to the insurer or, in
the case of a self-insured employer, by notice thereof to the director. The
cancellation is effective at 12 midnight ending the day the notice is received
by the insurer or the director, unless a later date is specified in the notice.
The insurer shall, within 10 days after receipt of a notice of cancellation
under this section, send a copy of the notice to the director.
     (3) When necessary the insurer or the
director shall fix assumed minimum or maximum wages for persons made subject
workers under this section.
     (4) Notwithstanding any other provision of
this section, a person or employer not subject to this chapter who elects to
become covered may apply to a guaranty contract insurer for coverage. An
insurer other than the State Accident Insurance Fund Corporation may provide
such coverage. However, the State Accident Insurance Fund Corporation shall
accept any written notice filed and provide coverage as provided in this
section if all subject workers of the employers will be insured with the State
Accident Insurance Fund Corporation and the coverage of those subject workers
is not considered by the State Accident Insurance Fund Corporation to be a risk
properly assignable to the assigned risk pool.
     (5)(a) The Home Care Commission created by
ORS 410.602 shall elect coverage on behalf of clients of the Department of Human
Services who employ home care workers to make home care workers subject workers
if the home care worker is paid by the state on behalf of the client.
     (b) As used in this subsection, “home care
worker” has the meaning given that term in ORS 410.600. [1965 c.285 §11; 1975
c.556 §22; 1979 c.839 §1; 1981 c.854 §6; 1983 c.816 §1; 1985 c.212 §2; 2007
c.835 §1]
     Note: The amendments to 656.039 by section 8,
chapter 241,
     656.039. (1) An employer of one or more persons
defined as nonsubject workers or not defined as subject workers may elect to
make them subject workers. If the employer is or becomes a carrier-insured
employer, the election shall be made by filing written notice thereof with the
insurer with a copy to the Director of the Department of Consumer and Business
Services. The effective date of coverage is governed by ORS 656.419 (3). If the
employer is or becomes a self-insured employer, the election shall be made by
filing written notice thereof with the director, the effective date of coverage
to be the date specified in the notice.
     (2) Any election under subsection (1) of
this section may be canceled by written notice thereof to the insurer or, in
the case of a self-insured employer, by notice thereof to the director. The
cancellation is effective at 12 midnight ending the day the notice is received
by the insurer or the director, unless a later date is specified in the notice.
The insurer shall, within 10 days after receipt of a notice of cancellation
under this section, send a copy of the notice to the director.
     (3) When necessary the insurer or the
director shall fix assumed minimum or maximum wages for persons made subject
workers under this section.
     (4) Notwithstanding any other provision of
this section, a person or employer not subject to this chapter who elects to
become covered may apply to an insurer for coverage. An insurer other than the
State Accident Insurance Fund Corporation may provide such coverage. However,
the State Accident Insurance Fund Corporation shall accept any written notice
filed and provide coverage as provided in this section if all subject workers
of the employers will be insured with the State Accident Insurance Fund
Corporation and the coverage of those subject workers is not considered by the
State Accident Insurance Fund Corporation to be a risk properly assignable to
the assigned risk pool.
     (5)(a) The Home Care Commission created by
ORS 410.602 shall elect coverage on behalf of clients of the Department of
Human Services who employ home care workers to make home care workers subject
workers if the home care worker is paid by the state on behalf of the client.
     (b) As used in this subsection, “home care
worker” has the meaning given that term in ORS 410.600.
     656.040 [Amended by 1959 c.448 §7; repealed by 1965
c.285 §95]
     656.041
City or county may elect to provide coverage for jail inmates. (1) As used in this section, unless the
context requires otherwise:
     (a) “Authorized employment” means the
employment of an inmate on work authorized by the governing body of a city or
county.
     (b) “Inmate” means a person sentenced by
any court or legal authority, whether in default of the payment of a fine or
committed for a definite number of days, to serve sentence in a city or county
jail or other place of incarceration except state and federal institutions. “Inmate”
includes a person who performs community service pursuant to ORS 137.128,
whether or not the person is incarcerated.
     (2) A city or county may elect to have
inmates performing authorized employment considered as subject workers of the
city or county for purposes of this chapter. Such election shall be made by a
written application to the insurer, or in the case of a self-insured employer,
the Director of the Department of Consumer and Business Services, that includes
a resolution of the governing body declaring its intent to cover inmates as
provided in this section and a description of the work to be performed by such
inmates. The application shall also state the estimated total number of inmates
for which coverage is requested. The county or city shall notify the insurer or
director of changes in the estimated total number of inmates performing
authorized employment.
     (3) Upon receiving the written application
the insurer or self-insured employer may fix assumed wage rates for the
inmates, which may be used only for purposes of computations under this
chapter, and shall require the regular payment of premiums or assessments based
upon the estimated total number of such inmates for which coverage is
requested. The self-insured employer shall submit such assumed wage rates to the
director. If the director finds that the rates are unreasonable, the director
may fix appropriate rates to be used for purposes of this section.
     (4) The city or county shall maintain a
separate list of inmates performing authorized employment. A certified copy of
the list shall be furnished the insurer or director upon request. Inmates
covered under this section are entitled to the benefits of this chapter and
they are entitled to such benefits if injured as provided in ORS 656.202 while
performing any duties arising out of and in the course of their participation
in the authorized employment, provided the duties being performed are among
those described on the application of the city or county.
     (5) The filing of claims for benefits
under this section is the exclusive remedy of an inmate or a beneficiary of the
inmate for injuries compensable under this chapter against a city or county and
its officers and employees, regardless of negligence. [1967 c.472 §§2,3; 1977
c.807 §1; 1979 c.815 §4; 1981 c.854 §7; 1981 c.874 §3; 1983 c.706 §2]
     656.042 [Amended by 1959 c.448 §8; repealed by 1965
c.285 §95]
     656.043
Governmental agency paying wages responsible for providing coverage. Except as otherwise provided in ORS 656.029
to 656.033 and 656.041, but notwithstanding any other provision of law, the
state or any city, county, district, or agency thereof, that pays the wages of
a subject worker is responsible for providing workersÂ’ compensation insurance
coverage for that worker. [1987 c.414 §183]
     656.044
State Accident Insurance Fund Corporation may insure liability under
LongshoremenÂ’s and Harbor WorkersÂ’ Compensation Act; procedure; cancellation. (1) The State Accident Insurance Fund
Corporation may insure Oregon employers against their liability for compensation
under the LongshoremenÂ’s and Harbor WorkersÂ’ Compensation Act (33 U.S.C. 901 to
950) or any Act amendatory or supplementary thereto or in lieu thereof, as
fully as any private insurance carrier.
     (2) The State Accident Insurance Fund
Corporation may, from time to time, fix rates of contributions to be paid by
such employers. These rates shall be based upon the costs of inspection and
other administration, the hazard of the occupation and the accident experience
of the employers. The State Accident Insurance Fund Corporation may require a
minimum annual premium, contributions, assessments and fees from such
employers.
     (3) All claims for compensation and other
costs arising from such insurance shall be paid from the Industrial Accident
Fund.
     (4) The State Accident Insurance Fund
Corporation or any employer may cancel any insurance coverage issued under this
section by giving notice as required by the LongshoremenÂ’s and Harbor WorkersÂ’
Compensation Act, or the rules or regulations made in pursuance thereof. [Amended
by 1965 c.285 §13; 1981 c.876 §2]
     656.046
Coverage of persons in college work experience and professional education
programs. (1) All persons
registered at a college and participating as unpaid trainees in a work
experience program who are subject to the direction of noncollege-employed
supervisors, and those trainees participating in college directed professional
education projects, are considered workers of the college subject to this
chapter for purposes of this section. However, trainees who are covered by the
Federal Employees Compensation Act shall not be subject to the provisions of
this section.
     (2) A college conducting a work experience
program or college directed professional education project shall submit a
written statement to the insurer, or in the case of self-insurers, to the
Director of the Department of Consumer and Business Services, that includes a
description of the work to be performed by such persons and an estimate of the
total number of persons enrolled in the program or project.
     (3) Persons covered under this section are
entitled to the benefits of this chapter. However, such persons are not
entitled to benefits under ORS 656.210 or 656.212. They are entitled to such
benefits if injured as provided in ORS 656.156 and 656.202 while performing any
duties arising out of and in the course of their participation in the work
experience program or college directed professional education project, provided
the duties being performed are among those:
     (a) Described on the application of the
college; and
     (b) Required of similar full-time paid
employees.
     (4) The filing of claims for benefits
under this section is the exclusive remedy of a trainee or a beneficiary of the
trainee for injuries compensable under this chapter against the state, its
political subdivisions, the college district board, members, officers and
employees of the board or any employer, regardless of negligence.
     (5) A college may elect to make trainees
subject to this chapter for college directed professional education projects
not enumerated in subsection (8) of this section or for work experience
programs under the direction of college-employed supervisors by filing a
written request with the insurer of the college, or in the case of self-insured
colleges, with the director. Coverage under such election shall become
effective no sooner than the date of receipt by the insurer. The coverage
request shall include a description of the work to be performed and an estimate
of the number of participating trainees. The insurer or director shall accept a
request that meets the criteria of this section.
     (6) The provisions of this section shall
be inapplicable to any trainee who has earned wages for such employment.
     (7) As used in this section, “college”
means any community college district or community college service district as
defined in ORS chapter 341.
     (8) As used in this section, “college
directed professional education project” means an assigned on-campus or
off-campus project that is a component of a program approved by the college
board or the operating procedures of the State Board of Education and involves
work that provides practical experience beyond the initial instruction and
demonstration phases, performed outside of the college classroom or laboratory
environment and requiring substantial hands-on participation by trainees. Such
projects are further limited to logging, silvicultural thinning, slash burning,
fire fighting, stream enhancement, woodcutting, reforestation, tree surgery,
construction, printing and manufacturing involving formed metals. [1991 c.534 §3;
1993 c.18 §139; 1995 c.343 §53]
     656.052
Prohibition against employment without coverage; proposed order declaring
noncomplying employer; effect of failure to comply. (1) No person shall engage as a subject
employer unless and until the person has provided coverage pursuant to ORS
656.017 for subject workers the person employs.
     (2) Whenever the Director of the
Department of Consumer and Business Services has reason to believe that any
person has violated subsection (1) of this section, the director shall serve
upon the person a proposed order declaring the person to be a noncomplying
employer and containing the amount, if any, of civil penalty to be assessed
pursuant to ORS 656.735 (1).
     (3) If any person fails to comply with ORS
656.017 after an order declaring the person to be a noncomplying employer has
become final by operation of law or on appeal, the circuit court of the county
in which the person resides or in which the person employs workers shall, upon
the commencement of a suit by the director for that purpose, permanently enjoin
the person from employing subject workers without complying with ORS 656.017.
Upon the filing of such a suit, the court shall set a day for hearing and shall
cause notice thereof to be served upon the noncomplying employer. The hearing
shall be not less than five days from the service of the notice.
     (4) The court may award reasonable
attorney fees to the director if the director prevails in an action under
subsection (3) of this section. The court may award reasonable attorney fees to
a defendant who prevails in an action under subsection (3) of this section if
the court determines that the director had no objectively reasonable basis for
asserting the claim or no reasonable basis for appealing an adverse decision of
the trial court. [Amended by 1957 c.574 §2; 1965 c.285 §14; 1967 c.341 §4; 1973
c.447 §1; 1987 c.234 §1; 1990 c.2 §5; 1995 c.332 §6b; 1995 c.696 §43]
     656.054
Claim of injured worker of noncomplying employer; procedure for disputing
acceptance of claim; recovery of costs from noncomplying employer;
restrictions. (1) A
compensable injury to a subject worker while in the employ of a noncomplying
employer is compensable to the same extent as if the employer had complied with
this chapter. The Director of the Department of Consumer and Business Services
shall refer the claim for such an injury to an assigned claims agent within 60
days of the date the director has notice of the claim. At the time of referral
of the claim, the director shall notify the employer in writing regarding the
referral of the claim and the employerÂ’s right to object to the claim. A claim
for compensation made by such a worker shall be processed by the assigned
claims agent in the same manner as a claim made by a worker employed by a
carrier-insured employer, except that the time within which the first
installment of compensation is to be paid, pursuant to ORS 656.262 (4), shall
not begin to run until the director has referred the claim to the assigned
claims agent. At any time within which the claim may be accepted or denied as
provided in ORS 656.262, the employer may request a hearing to object to the
claim. If an order becomes final holding the claim to be compensable, the
employer is liable for all costs imposed by this chapter, including reasonable
attorney fees to be paid to the workerÂ’s attorney for services rendered in
connection with the employerÂ’s objection to the claim.
     (2) In addition to, and not in lieu of,
any civil penalties assessed pursuant to ORS 656.735, all costs to the WorkersÂ’
Benefit Fund incurred under subsection (1) of this section shall be a liability
of the noncomplying employer. Such costs include compensation, disputed claim
settlements pursuant to ORS 656.289 and claim disposition agreements pursuant
to ORS 656.236, whether or not the noncomplying employer agrees and executes
such documents, reasonable administrative costs and claims processing costs
provided by contract, attorney fees related to compensability issues and any
attorney fees awarded to the claimant, but do not include assessments for
reserves in the WorkersÂ’ Benefit Fund. The director shall recover such costs
from the employer. The director periodically shall pay the assigned claims
agent from the WorkersÂ’ Benefit Fund for any costs the assigned claims agent
incurs under this section in accordance with the terms of the contract. When
the director prevails in any action brought pursuant to this subsection, the
director is entitled to recover from the noncomplying employer court costs and
attorney fees incurred by the director.
     (3) Periodically, or upon the request of a
noncomplying employer in a particular claim, the director shall audit the files
of the State Accident Insurance Fund Corporation and any assigned claims agents
to validate the amount reimbursed pursuant to subsection (2) of this section.
The conditions for granting or denying of reimbursement shall be specified in
the contract with the assigned claims agent. The contract at least shall provide
for denial of reimbursement if, upon such audit, any of the following are found
to apply:
     (a) Compensation has been paid as a result
of untimely, inaccurate, or improper claims processing;
     (b) Compensation has been paid negligently
for treatment of any condition unrelated to the compensable condition;
     (c) The compensability of an accepted
claim is questionable and the rationale for acceptance has not been reasonably
documented in accordance with generally accepted claims management procedures;
     (d) The separate payments of compensation
have not been documented in accordance with generally accepted accounting
procedures; or
     (e) The payments were made pursuant to a
disposition agreement as provided by ORS 656.236 without the prior approval of
the director.
     (4) The State Accident Insurance Fund
Corporation and any assigned claims agent may request review under ORS 656.704
of any disapproval of reimbursement made by the director under this section.
     (5) Claims of injured workers of
noncomplying employers may be assigned and reassigned by the director for
claims processing regardless of the date of the workerÂ’s injury.
     (6) In selecting an assigned claims agent,
the director must consider the assigned claims agentÂ’s ability to deliver
timely and appropriate benefits to injured workers, the ability to control both
claims cost and administrative cost and such other factors as the director
considers appropriate.
     (7) If no qualified entity agrees to be an
assigned claims agent, the director may require one or more of the three
highest premium producing insurers to be assigned claims agents.
Notwithstanding any other provision of law, the directorÂ’s selection of
assigned claims agents shall be made at the sole discretion of the director.
Such selections shall not be subject to review by any court or other
administrative body.
     (8) Any assigned claims agent, except the
State Accident Insurance Fund Corporation, may employ legal counsel of its
choice for representation under this section.
     (9) As used in this section, “assigned
claims agent” means an insurer, casualty adjuster or a third party
administrator with whom the director contracts to manage claims of injured
workers of noncomplying employers. [Amended by 1959 c.448 §9; 1965 c.285 §15;
1967 c.341 §5; 1971 c.72 §1; 1973 c.447 §2; 1979 c.839 §2; 1981 c.854 §8; 1983
c.816 §2; 1987 c.234 §2; 1987 c.250 §3; 1991 c.679 §1; 1995 c.332 §7; 1995
c.641 §17; 1999 c.1020 §1; 2003 c.14 §399; 2003 c.170 §1; 2005 c.26 §1]
     Note: See notes under 656.202.
     Note: Section 9, chapter 332, Oregon Laws 1995,
provides:
     Sec.
9. The amendments to ORS
656.054 by section 7 of this 1995 Act do not remove the authority of the
Director of the Department of Consumer and Business Services to audit files of
the State Accident Insurance Fund Corporation for claims against noncomplying
employers assigned to the State Accident Insurance Fund Corporation prior to
the effective date of this 1995 Act [June 7, 1995]. [1995 c.332 §9]
     656.056
Subject employers must post notice of manner of compliance. (1) All subject employers shall display in a
conspicuous manner about their works, and in a sufficient number of places
reasonably to inform their workers of the fact, printed notices furnished by
the Director of the Department of Consumer and Business Services stating that
they are subject to this chapter and the manner of their compliance with this
chapter.
     (2) No employer who is not currently a
subject employer shall post or permit to remain on or about the place of
business or premises of the employer any notice that the employer is subject
to, and complying with, this chapter. [Amended by 1965 c.285 §16]
     656.070
Definitions for ORS 656.027, 656.070 and 656.075. As used in ORS 656.027, 656.075 and this
section:
     (1) “Newspaper” has the meaning for that
term provided in ORS 193.010.
     (2) “Newspaper carrier” means an
individual age 18 years or younger who contracts with a newspaper publishing
company or independent newspaper dealer or contractor to distribute newspapers
to the general public and performs or undertakes any necessary or attendant
functions related thereto, but receives no salary or wages, other than sales
incentives or bonuses, for the performance of those duties from the newspaper
publishing company or independent newspaper dealer or contractor. “Newspaper
carrier” includes any individual appointed or utilized on a temporary basis by
a newspaper carrier, a newspaper publishing company or independent newspaper
dealer or contractor to perform any or all of the duties of a newspaper carrier.
[1977 c.835 §3; 1981 c.535 §52]
     656.075
Exemption from coverage for newspaper carriers; casualty insurance and other
requirements. An individual
qualifies for the exemption provided in ORS 656.027 only if the newspaper
publishing company or independent newspaper dealer or contractor utilizing the
individual:
     (1) Encourages any minor so utilized to
remain in school and attend classes;
     (2) Encourages any minor so utilized to
not allow newspaper carrier duties to interfere with any school activities of
the individual; and
     (3) Provides accident insurance coverage
for the individual while the individual is engaged in newspaper carrier duties
that is at least equal to the following:
     (a) $250,000 unallocated hospital and
medical benefits;
     (b) $10 per week lost time benefits for a
period of 52 weeks; and
     (c) $5,000 accidental death and
dismemberment benefit.
     (4) Provides the individual with a clear,
written explanation or description of the amount and the terms and conditions
of the insurance coverage required by this section, including a specific
statement that the insurance coverage is in lieu of benefits under the WorkersÂ’
Compensation Law. [1977 c.835 §4; 1981 c.535 §53]
     656.082 [Repealed by 1965 c.285 §95]
     656.084 [Amended by 1959 c.448 §10; repealed by 1965
c.285 §95a]
     656.086 [Repealed by 1965 c.285 §95]
     656.088 [Amended by 1955 c.320 §1; 1965 c.285 §17;
renumbered 656.031]
     656.090 [Amended by 1953 c.673 §2; 1959 c.448 §11;
repealed by 1965 c.285 §97]
     656.120 [1969 c.527 §3; repealed by 1979 c.815 §9]
     656.122 [Repealed by 1965 c.285 §95]
     656.124 [Amended by 1957 c.554 §1; repealed by 1965
c.285 §95]
     656.126
Coverage while temporarily in or out of state; judicial notice of other stateÂ’s
laws; agreements between states relating to conflicts of jurisdiction;
limitation on compensation for claims in this state and other jurisdictions. (1) If a worker employed in this state and
subject to this chapter temporarily leaves the state incidental to that
employment and receives an accidental injury arising out of and in the course
of employment, the worker, or beneficiaries of the worker if the injury results
in death, is entitled to the benefits of this chapter as though the worker were
injured within this state.
     (2) Any worker from another state and the
employer of the worker in that other state are exempted from the provisions of
this chapter while that worker is temporarily within this state doing work for
the employer:
     (a) If that employer has furnished workers’
compensation insurance coverage under the workersÂ’ compensation insurance or
similar laws of a state other than
     (b) If the extraterritorial provisions of
this chapter are recognized in that other state; and
     (c) If employers and workers who are
covered in this state are likewise exempted from the application of the workersÂ’
compensation insurance or similar laws of the other state.
The benefits
under the workersÂ’ compensation insurance Act or similar laws of the other
state, or other remedies under a like Act or laws, are the exclusive remedy
against the employer for any injury, whether resulting in death or not,
received by the worker while working for that employer in this state.
     (3) A certificate from the duly authorized
officer of the Department of Consumer and Business Services or similar
department of another state certifying that the employer of the other state is
insured therein and has provided extraterritorial coverage insuring workers
while working within this state is prima facie evidence that the employer
carries that workersÂ’ compensation insurance.
     (4) Whenever in any appeal or other
litigation the construction of the laws of another jurisdiction is required,
the courts shall take judicial notice thereof.
     (5) The Director of the Department of
Consumer and Business Services shall have authority to enter into agreements
with the workersÂ’ compensation agencies of other states relating to conflicts
of jurisdiction where the contract of employment is in one state and the
injuries are received in the other state, or where there is a dispute as to the
boundaries or jurisdiction of the states and when such agreements have been
executed and made public by the respective state agencies, the rights of workers
hired in such other state and injured while temporarily in Oregon, or hired in
Oregon and injured while temporarily in another state, or where the
jurisdiction is otherwise uncertain, shall be determined pursuant to such
agreements and confined to the jurisdiction provided in such agreements.
     (6) When a worker has a claim under the
workersÂ’ compensation law of another state, territory, province or foreign
nation for the same injury or occupational disease as the claim filed in
     656.128
Sole proprietors, limited liability company members, partners, independent
contractors may elect coverage by insurer; cancellation. (1) Any person who is a sole proprietor, or
a member, including a member who is a manager, of a limited liability company,
or a member of a partnership, or an independent contractor pursuant to ORS
670.600, may make written application to an insurer to become entitled as a
subject worker to compensation benefits. Thereupon, the insurer may accept such
application and fix a classification and an assumed monthly wage at which such
person shall be carried on the payroll as a worker for purposes of computations
under this chapter.
     (2) When the application is accepted, such
person thereupon is subject to the provisions and entitled to the benefits of
this chapter. The person shall promptly notify the insurer whenever the status
of the person as an employer of subject workers changes. Any subject worker
employed by such a person after the effective date of the election of the
person shall, upon being employed, be considered covered automatically by the
same guaranty contract that covers such person.
     (3) No claim shall be allowed or paid
under this section, except upon corroborative evidence in addition to the
evidence of the claimant.
     (4) Any person subject to this chapter as
a worker as provided in this section may cancel such election by giving written
notice to the insurer. The cancellation shall become effective at 12 midnight
ending the day of filing the notice with the insurer. [Amended by 1957 c.440 §2;
1959 c.448 §12; 1965 c.285 §18; 1969 c.400 §1; 1975 c.556 §23; 1981 c.854 §9;
1981 c.876 §3; 1993 c.777 §11; 1995 c.93 §33; 1995 c.332 §11]
     Note: The amendments to 656.128 by section 9,
chapter 241,
     656.128. (1) Any person who is a sole proprietor, or
a member, including a member who is a manager, of a limited liability company,
or a member of a partnership, or an independent contractor pursuant to ORS
670.600, may make written application to an insurer to become entitled as a
subject worker to compensation benefits. Thereupon, the insurer may accept such
application and fix a classification and an assumed monthly wage at which such
person shall be carried on the payroll as a worker for purposes of computations
under this chapter.
     (2) When the application is accepted, such
person thereupon is subject to the provisions and entitled to the benefits of
this chapter. The person shall promptly notify the insurer whenever the status
of the person as an employer of subject workers changes. Any subject worker
employed by such a person after the effective date of the election of the
person shall, upon being employed, be considered covered automatically by the
same workersÂ’ compensation insurance policy that covers such person.
     (3) No claim shall be allowed or paid
under this section, except upon corroborative evidence in addition to the
evidence of the claimant.
     (4) Any person subject to this chapter as
a worker as provided in this section may cancel such election by giving written
notice to the insurer. The cancellation shall become effective at 12 midnight
ending the day of filing the notice with the insurer.
     656.130 [Amended by 1957 c.574 §3; repealed by 1959
c.448 §14]
     656.132
Coverage of minors. (1) A
minor working at an age legally permitted under the laws of this state is
considered sui juris for the purpose of this chapter. No other person shall
have any cause of action or right to compensation for an injury to such minor
worker, except as expressly provided in this chapter, but in the event of a
lump-sum payment becoming due under this chapter to such minor worker, the
control and management of any sum so paid shall be within the jurisdiction of
the courts as in the case of other property of minors.
     (2) If an employer subject to this chapter
in good faith employed a minor under the age permitted by law, believing the
minor to be of lawful age, and the minor sustains an injury or suffers death in
such employment, the minor is conclusively presumed to have accepted the
provisions of this chapter. The Director of the Department of Consumer and
Business Services may determine conclusively the good faith of such employer
unless the employer possessed at the time of the accident resulting in such
injury or death a certificate from some duly constituted authority of this
state authorizing the employment of the minor in the work in which the minor
was then engaged. Such certificate is conclusive evidence of the good faith of
such employer.
     (3) If the employer holds no such
certificate and the director finds that the employer did not employ such minor
in good faith, the minor is entitled to the benefits of this chapter, but the
employer shall pay to the Consumer and Business Services Fund by way of penalty
a sum equal to 25 percent of the amount paid out or set apart under such
statutes on account of the injury or death of such minor, but such penalty
shall be not less than $100 nor exceed $500. [Amended by 1959 c.448 §13; 1985
c.212 §3]
     656.135
Coverage of deaf school, blind school work experience trainees. (1) As used in this section “school” means
the
     (2) All persons participating as trainees
in a work experience program of a school in which such persons are enrolled are
considered as workers of the school subject to this chapter for purposes of
this section.
     (3) On behalf of a school conducting a
work experience program, the Department of Education shall submit a written statement
to the State Accident Insurance Fund Corporation that includes a description of
the work to be performed by such persons.
     (4) Upon receiving the written statement,
the corporation may fix assumed wage rates for the persons enrolled in the work
experience program, without regard to ORS chapter 652 or ORS 653.010 to 653.545
and 653.991, which may be used only for purposes of computations under this
chapter.
     (5) The Department of Education shall
furnish the corporation with a list of the names of those enrolled in work
experience programs in the schools and shall notify the corporation of any
changes therein. Only those persons whose names appear on such list prior to
their personal injury by accident are entitled to the benefits of this chapter
and they are entitled to such benefits if injured as provided in ORS 656.156
and 656.202 while performing any duties arising out of and in the course of
their participation in the work experience program, provided the duties being
performed are among those:
     (a) Described on the application of the
department; and
     (b) Required of similar full-time paid
employees.
     (6) The filing of claims for benefits
under this section is the exclusive remedy of a trainee or beneficiary of the
trainee for injuries compensable under this chapter against the state, the
school, the department, its officers and employees, or any employer, regardless
of negligence.
     (7) The provisions of this section shall
be inapplicable to any trainee who is earning wages for such employment. [1969
c.406 §2; 2007 c.858 §83]
     656.138
Coverage of apprentices, trainees participating in related instruction classes. (1) All persons registered as apprentices or
trainees and participating in related instruction classes conducted by a school
district, community college district or education service district in
accordance with the requirements of ORS 660.002 to 660.210 or section 50, title
29, United States Code as of September 13, 1975, are considered as workers of
the school district, community college district or education service district
subject to this chapter.
     (2) A school district, community college
district or education service district conducting related instruction classes
shall submit a written statement to the insurer, or in the case of self-insurers,
the Director of the Department of Consumer and Business Services, that includes
a description of the related instruction to be given to such apprentices or
trainees and an estimate of the total number of persons enrolled.
     (3) Upon receiving the written statement,
the insurer, or in the case of self-insurers, the director, may fix assumed
wage rates for those apprentices or trainees participating in related
instruction classes, which may be used only for the purposes of computations
under this chapter.
     (4) The State Apprenticeship and Training
Council shall furnish the insurer, or in the case of self-insurers, the
director, and the school district, community college district or education
service district with an estimate of the total number of apprentices or
trainees approved by it for participation in related instruction classes
subject to coverage under this section and any significant changes in the
estimated total. Apprentices and trainees as provided in subsection (1) of this
section are entitled to benefits under this chapter.
     (5) The filing of claims for benefits
under the authority of this section is the exclusive remedy of apprentices or
trainees or their beneficiaries for injuries compensable under this chapter
against the state, its political subdivisions, the school district, community
college district or education service district, their members, officers and
employees, or any employer, regardless of negligence.
     (6) This section does not apply to any
apprentice or trainee who has earned wages for performing such duties. [1971
c.634 §2; 1975 c.775 §1; 1979 c.815 §5]
     656.140
Coverage of persons operating equipment for hire. (1) Any person, or persons operating as
partners, who have an ownership or leasehold interest in equipment and are engaged
in the business of operating such equipment for hire, may elect to cover
themselves under the WorkersÂ’ Compensation Law by filing with an insurer a
written application to become entitled as subject workers to the benefits of
the WorkersÂ’ Compensation Law.
     (2) As used in this section “equipment”
means:
     (a) A motor vehicle used in the
transportation of logs, poles or pilings.
     (b) A motor vehicle used in the
transportation of rocks, gravel, sand or dirt.
     (c) A backhoe or other similar equipment
used for digging and filling ditches or trenches.
     (d) A tractor.
     (e) Any other motor vehicle or heavy
equipment of a kind commonly operated for hire.
     (3) The insurer may accept such
application and fix a classification and an assumed monthly wage at which such
person, or persons operating as partners, shall be carried on the payroll as
workers for purposes of computations under this chapter.
     (4) When the application is accepted, such
person, or persons operating as partners, become subject workers. Thereupon,
such person, or persons operating as partners, shall be subject to this chapter
as a subject employer notwithstanding ORS 656.023 and shall be entitled to
benefits as subject workers.
     (5) No claim shall be allowed or paid
under this section, except upon corroborative evidence in addition to the
evidence of the claimant.
     (6) Any person, or persons operating as
partners, electing coverage under this section, have the same duties and
responsibilities of any other subject employer in the event they hire one or
more subject workers.
     (7) The rights given to a person, or
persons operating as partners, and their beneficiaries pursuant to this section
for injuries compensable under this chapter are in lieu of any remedies they
might otherwise have for such injuries against the person for whom services are
being performed. [1969 c.463 §2; 1975 c.556 §24; 1981 c.854 §10; 1981 c.876 §4]
     656.152 [Amended by 1957 c.718 §2; repealed by 1965
c.285 §95]
     656.154
Injury due to negligence or wrong of a person not in the same employ as injured
worker; remedy against such person. If the injury to a worker is due to the negligence or wrong of a third
person not in the same employ, the injured worker, or if death results from the
injury, the spouse, children or other dependents, as the case may be, may elect
to seek a remedy against such third person. [Amended by 1959 c.504 §1; 1975
c.152 §1; 1985 c.212 §4]
     656.156
Intentional injuries. (1) If
injury or death results to a worker from the deliberate intention of the worker
to produce such injury or death, neither the worker nor the widow, widower,
child or dependent of the worker shall receive any payment whatsoever under
this chapter.
     (2) If injury or death results to a worker
from the deliberate intention of the employer of the worker to produce such
injury or death, the worker, the widow, widower, child or dependent of the
worker may take under this chapter, and also have cause for action against the
employer, as if such statutes had not been passed, for damages over the amount
payable under those statutes. [Amended by 1965 c.285 §20]
     656.160
Effect of incarceration on receipt of compensation. (1) Notwithstanding any other provision of
this chapter, an injured worker is not eligible to receive compensation under
ORS 656.210 or 656.212 for periods of time during which the worker is
incarcerated for the commission of a crime.
     (2) As used in this section, an individual
is not “incarcerated” if the individual is on parole or work release status. [1990
c.2 §50]
     656.170
Validity of provisions of certain collective bargaining agreements; alternative
dispute resolution systems; exclusive medical service provider lists; authority
of director. (1) In a
collective bargaining agreement between a private employer or groups of employers
engaged in construction, construction maintenance or activities limited to
rock, sand, gravel, cement and asphalt operations, heavy duty mechanics,
surveying or construction inspection, and a union that is the recognized or
certified exclusive bargaining representative, a provision establishing either
of the following is valid and binding:
     (a) An alternative dispute resolution
system governing disputes between employees, employers and their insurers that
supplements or replaces all or part of the dispute resolution processes of this
chapter, including but not limited to provisions:
     (A) Establishing any limitations on the
liability of the employer while determinations regarding the compensability of
an injury are being made;
     (B) Describing the method for resolving
disputes involving compensability of injuries under the alternative dispute
resolution system and the amount of compensation due for a compensable injury
and for medical and legal services;
     (C) Relating to the payment of
compensation for injuries incurred when the collective bargaining agreement is
terminated or when an injured worker is no longer subject to the agreement; and
     (D) Establishing arbitration and mediation
procedures; or
     (b) The use of a list of medical service
providers that the parties may agree is the exclusive source of all medical
treatment provided under this chapter.
     (2) Any decision, order or award of
compensation issued under an agreed upon alternative dispute resolution system
adopted under subsection (1)(a) of this section is subject to review in the
same manner as provided for the review of an order of an Administrative Law
Judge pursuant to the provisions of this chapter.
     (3) Nothing in this section allows a
collective bargaining agreement that diminishes the entitlement of an employee
to compensation as provided in this chapter. The portion of an agreement that
violates this subsection is void. Notwithstanding any other provision of law,
original jurisdiction over the compliance of a proposed collective bargaining agreement
with this subsection is with the Director of the Department of Consumer and
Business Services. The director shall determine the compliance of the agreement
with this subsection prior to the agreement becoming operative. The decision of
the director is subject to review as provided under ORS 656.704. [1999 c.841 §2;
2005 c.26 §2]
     656.172
Applicability of and criteria for establishing program under ORS 656.170. (1) ORS 656.170 applies only to:
     (a) An employer incurring or projecting an
annual workersÂ’ compensation insurance premium in
     (b) An employer who qualifies as a
self-insured employer under ORS 656.407 and 656.430 that is incurring or
projecting annual workersÂ’ compensation costs of at least $250,000 or who has
had annual workersÂ’ compensation costs of at least $250,000 in one of the three
years prior to the year in which the collective bargaining agreement takes
effect.
     (c) A group of employers who combine for
the purpose of obtaining workersÂ’ compensation insurance as provided by ORS
737.316 and incur or project annual workersÂ’ compensation premiums of at least
$1 million.
     (d) A group of employers who qualify as a
self-insured employer group under ORS 656.430 and incur or project annual
workersÂ’ compensation costs of at least $1 million.
     (e) Employers covered by a wrap-up
insurance policy provided by an owner or general contractor and authorized by
ORS 737.602 and 737.604, and that requires payment of annual workersÂ’
compensation premiums of $1 million or more for coverage of those employees
covered by the wrap-up insurance policy.
     (2) An employer or group of employers may
not establish or continue a program established under ORS 656.170 until:
     (a) The employer has provided the Director
of the Department of Consumer and Business Services with the following:
     (A) Upon original application and whenever
the collective bargaining agreement is renegotiated, a copy of the collective
bargaining agreement and an estimate of the number of employees covered by the
collective bargaining agreement;
     (B) Upon original application and annually
thereafter, a valid license when that license is required as a condition of
doing business in
     (C) Upon original application and annually
thereafter, a signed, sworn statement that no action has been taken by any
administrative agency or court of the
     (D) Upon original application and annually
thereafter, the name, address and telephone number of the contact person of the
employer or group of employers; and
     (E) A statement from the insurer or
self-insured employer that the insurer or self-insured employer is willing to
insure the risk under the terms of the collective bargaining agreement; and
     (b) The director has approved the proposed
program.
     (3) A collective bargaining representative
may not establish or continue to participate in a program established under ORS
656.170 until:
     (a) The collective bargaining
representative has provided the following to the director:
     (A) Upon original application and annually
thereafter, a copy of the most recent LM-2 or LM-3 filing with the United
States Department of Labor, and a signed, sworn statement that the document is
a true and correct copy; and
     (B) Upon original application and annually
thereafter, the name, address and telephone number of the contact person for
the collective bargaining representative; and
     (b) The director has approved the proposed
program.
     (4) When an employer, a group of employers
or a collective bargaining representative has met the eligibility requirements
of this section, the director shall issue a letter to the employer, group of
employers or collective bargaining representative indicating that such
eligibility has been established. [1999 c.841 §3; 2007 c.71 §207]
     656.174
Rules. The Director of the
Department of Consumer and Business Services shall adopt rules necessary for
the implementation of the provisions of ORS 656.170 and 656.172. The rules must
include, but are not limited to procedures for:
     (1) Establishing and operating an
alternative dispute resolution system;
     (2) Resolution of disputes involving
multiple claims when one or more of the claims are not subject to the
collective bargaining agreement; and
     (3) Providing benefits to injured workers
whose compensable claims are covered under an alternative dispute resolution
system after the expiration of the collective bargaining agreement or
termination of any arrangement for the provision of benefits under ORS 656.170
and 656.172. [1999 c.841 §4]
APPLICABILITY
PROVISIONS
     656.202
Compensation payable to subject worker in accordance with law in effect at time
of injury; exceptions; notice regarding payment. (1) If any subject worker sustains a
compensable injury, the worker or the beneficiaries of the worker, if the
injury results in death, shall receive compensation as provided in this
chapter, regardless of whether the worker was employed by a complying or
noncomplying employer.
     (2) Except as otherwise provided by law,
payment of benefits for injuries or deaths under this chapter shall be
continued as authorized, and in the amounts provided for, by the law in force
at the time the injury giving rise to the right to compensation occurred.
     (3) When compensation is paid to a
claimant or other payment is made to the provider of service pursuant to this
chapter, the insurer or self-insured employer shall notify the payment
recipient in writing of the specific purpose of the payment. When applicable,
the notice shall indicate the time period for which the payment is made and the
reimbursable expenses or other bills and charges covered. If any portion of the
claim is denied, the notice shall identify that portion of the claimed amounts
that is not being paid.
     (4) Notwithstanding subsections (1) to (3)
of this section, the amendments to ORS 656.325 by section 4, chapter 723,
Oregon Laws 1981, and ORS 656.335 (1993 Edition) apply to all workers
regardless of the date of injury.
     (5) This section does not apply to
vocational assistance benefits.
     (6) Notwithstanding subsection (2) of this
section, the increase in benefits to the surviving spouse of an injured worker
made by the amendment to ORS 656.204 (2)(c) (1993 Edition) by section 1,
chapter 108, Oregon Laws 1985, applies to a surviving spouse who remarries
after September 20, 1985, regardless of the date of injury or death of the
worker.
     (7) Notwithstanding subsection (2) of this
section, the increase in benefits to the surviving spouse of an injured worker
made by the amendments to ORS 656.204 (3)(a) and (b) (1997 Edition) by section
2, chapter 927, Oregon Laws 1999, applies to a surviving spouse who remarries
on or after October 23, 1999, regardless of the date of injury or death of the
worker. [Amended by 1953 c.669 §4; 1953 c.670 §4; 1957 c.718 §3; 1959 c.450 §1;
1965 c.285 §21; 1977 c.430 §6; 1981 c.770 §1; subsection (4) enacted as 1981
c.723 §8; 1985 c.108 §3; 1985 c.600 §6; 1985 c.706 §6; 1985 c.770 §6; 1995
c.332 §12; 1999 c.927 §1]
(Implementation
of 1990 Laws)
     Note: Section 54, chapter 2, Oregon Laws 1990,
provides:
     Sec.
54. (1) Except for
amendments to ORS 656.027, 656.211, 656.214 (2) and 656.790, this 1990 Act
becomes operative July 1, 1990, and notwithstanding ORS 656.202, this 1990 Act
applies to all claims existing or arising on and after July 1, 1990, regardless
of date of injury, except as specifically provided in this section.
     (2) Any matter regarding a claim which is
in litigation before the Hearings Division, the board, the Court of Appeals or
the Supreme Court under this chapter, and regarding which matter a request for
hearing was filed before May 1, 1990, and a hearing was convened before July 1,
1990, shall be determined pursuant to the law in effect before July 1, 1990.
     (3) Amendments by this 1990 Act to ORS
656.214 (5), the amendments to ORS 656.268 (4), (5), (6), (7) and (8), ORS
656.283 (7), 656.295, 656.319, 656.325, 656.382 and 656.726 shall apply to all
claims which become medically stationary after July 1, 1990. [1990 c.2 §54]
(Implementation
of 1995 Laws)
     Note: Section 66, chapter 332, Oregon Laws 1995, provides:
     Sec.
66. (1) Notwithstanding any
other provision of law, chapter 332, Oregon Laws 1995, applies to all claims or
causes of action existing or arising on or after June 7, 1995, regardless of
the date of injury or the date a claim is presented, and chapter 332, Oregon
Laws 1995, is intended to be fully retroactive unless a specific exception is
stated in chapter 332, Oregon Laws 1995.
     (2) The amendments to ORS 656.204 and
656.265 by sections 13 and 29, chapter 332, Oregon Laws 1995, and the amendments
to ORS 656.210 (2)(a) by section 15, chapter 332, Oregon Laws 1995, apply only
to injuries occurring on or after June 7, 1995.
     (3) Sections 8 and 9, chapter 332, Oregon
Laws 1995, and the amendments to ORS 656.054, 656.248 and 656.622 by sections
7, 26 and 49, chapter 332, Oregon Laws 1995, become operative January 1, 1996.
     (4) The amendments to ORS 656.268 (4),
(5), (6) and (9), 656.319 (4) and 656.726 (3)(f) by sections 30, 39 and 55,
chapter 332, Oregon Laws 1995, shall apply only to claims that become medically
stationary on or after June 7, 1995.
     (5)(a) The amendments to statutes by
chapter 332, Oregon Laws 1995, and new sections added to ORS chapter 656 by
chapter 332, Oregon Laws 1995, do not apply to any matter for which an order or
decision has become final on or before June 7, 1995.
     (b) Notwithstanding paragraph (a) of this
subsection, the amendments to ORS 656.262 (6) creating new paragraph (c) and
the amendments to the subsection designated (10) by section 28, chapter 332,
Oregon Laws 1995, apply to all claims without regard to any previous order or
closure.
     (6) The amendments to statutes by chapter
332, Oregon Laws 1995, and new sections added to ORS chapter 656 by chapter
332, Oregon Laws 1995, do not extend or shorten the procedural time limitations
with regard to any action on a claim taken prior to June 7, 1995.
     (7) The amendments to ORS 656.506 by
section 63, chapter 332, Oregon Laws 1995, first become operative October 1,
1995. [1995 c.332 §66; 1999 c.6 §2]
(Implementation
of 1997 Laws)
     Note: Section 2, chapter 605, Oregon Laws 1997,
provides:
     Sec.
2. Notwithstanding any other
provision of law to the contrary, the amendments to ORS 656.262 by section 1 of
this Act apply to all claims or causes of action existing or arising on or
after the effective date of this Act [July 25, 1997], regardless of the date of
injury or the date a claim is presented, and this Act is intended to be fully
retroactive. [1997 c.605 §2]
     Note: Section 6, chapter 639, Oregon Laws 1997,
provides:
     Sec.
6. Notwithstanding any other
provision of law, the amendments to ORS 656.593 by section 4 of this Act apply
to all claims or causes of action existing on or arising on or after the
effective date of this Act [July 25, 1997], regardless of the date of injury or
the date a claim is presented, and the amendments to ORS 656.593 by section 4
of this Act are intended to be fully retroactive. [1997 c.639 §6]
(Implementation
of 2001 Laws)
     Note: Section 22, chapter 865, Oregon Laws 2001,
provides:
     Sec.
22. (1) Section 14 of this
2001 Act [656.247] and the amendments to ORS 656.005, 656.210, 656.262,
656.266, 656.308, 656.313, 656.325 (5), 656.386, 656.605 and 656.804 by
sections 1, 2, 3, 4, 5, 7, 8, 9, 13 and 13a of this 2001 Act apply to all
claims with a date of injury on or after January 1, 2002.
     (2) Section 10 of this 2001 Act [656.267]
and the amendments to ORS 656.278 and 656.625 by sections 11 and 11a of this
2001 Act apply to all claims regardless of date of injury.
     (3) The amendments to ORS 656.268 (6) by
section 12 of this 2001 Act apply to any claim with a date of closure on or
after January 1, 2002.
     (4) The amendments to ORS 656.325 (1) by
section 13 of this 2001 Act apply to any claim with a date of denial on or
after January 1, 2002. [2001 c.865 §22]
(Implementation
of 2003 Laws)
     Note: Section 2, chapter 429, Oregon Laws 2003,
provides:
     Sec.
2. The amendments to ORS
656.268 by section 1 of this 2003 Act apply to all claims first closed on or
after the effective date of this 2003 Act [January 1, 2004]. [2003 c.429 §2]
     Note: Sections 13 and 15, chapter 657, Oregon Laws
2003, provide:
     Sec.
13. The amendments to ORS
656.206, 656.214, 656.268, 656.307, 656.325 and 656.726 by sections 1, 3, 5, 7,
9 and 11 of this 2003 Act apply to injuries occurring on or after January 1,
2005. [2003 c.657 §13]
     Sec.
15. The amendments to ORS
656.206, 656.214, 656.268, 656.307, 656.325 and 656.726 by sections 2, 4, 6, 8,
10 and 12 of this 2003 Act apply to injuries occurring on or after January 1,
2008. [2003 c.657 §15]
     Note: Section 3, chapter 756, Oregon Laws 2003,
provides:
     Sec.
3. The amendments to ORS
656.262 and 656.385 by sections 1 and 2 of this 2003 Act apply to all claims
for which an order relating to the issue on which attorney fees are sought has
not become final on or before the effective date of this 2003 Act [January 1,
2004], regardless of the date of injury. [2003 c.756 §3]
(Implementation
of 2005 Laws)
     Note: Section 4, chapter 188, Oregon Laws 2005,
provides:
     Sec.
4. (1) The amendments to ORS
656.267, 656.278 and 656.298 by sections 1, 2 and 3 of this 2005 Act apply to
all claims existing or arising on or after the effective date of this 2005 Act
[January 1, 2006].
     (2) Notwithstanding subsection (1) of this
section, the amendments to ORS 656.267, 656.278 and 656.298 by sections 1, 2
and 3 of this 2005 Act do not apply to any matter for which an order has become
final prior to the effective date of this 2005 Act. [2005 c.188 §4]
     Note: Section 5, chapter 221, Oregon Laws 2005,
provides:
     Sec.
5. The amendments to ORS
656.268 by sections 1 and 2 of this 2005 Act apply to notices of closure issued
on or after January 1, 2006. [2005 c.221 §5]
     Note: Section 7, chapter 461, Oregon Laws 2005,
provides:
     Sec.
7. The amendments to ORS
656.206, 656.268, 656.319 and 656.605 by sections 1 to 6 of this 2005 Act apply
to all claims for which a notice of closure is issued under ORS 656.206 or
656.268 on or after the effective date of this 2005 Act [January 1, 2006].
[2005 c.461 §7]
     Note: Section 2, chapter 624, Oregon Laws 2005,
provides:
     Sec.
2. The amendments to ORS
656.283 by section 1 of this 2005 Act apply to requests for hearing made on or
after the effective date of this 2005 Act [January 1, 2006]. [2005 c.624 §2]
     Note: Section 5, chapter 653, Oregon Laws 2005,
provides:
     Sec.
5. The amendments to ORS
656.214 and 656.726 by sections 1 and 3 of this 2005 Act apply to injuries
occurring on or after January 1, 2006. [2005 c.653 §5]
     Note: Section 8, chapter 675, Oregon Laws 2005,
provides:
     Sec.
8. The amendments to ORS
656.325 and 656.780 by sections 1, 2 and 3 of this 2005 Act apply to all claims
in which an independent medical examination required under ORS 656.325 is
scheduled on or after the effective date of this 2005 Act [January 1, 2006].
[2005 c.675 §8]
(Implementation
of 2007 Laws)
     Note: Section 3, chapter 17, Oregon Laws 2007,
provides:
     Sec.
3. (1) The amendments to ORS
656.298 (3) and (5) by section 1 of this 2007 Act apply to petitions for
judicial review filed on or after the effective date of this 2007 Act [January
1, 2008].
     (2) The provisions of ORS 656.298 (9)
apply to petitions for judicial review pending with the appellate court on the
effective date of this 2007 Act and to petitions for judicial review filed on
or after the effective date of this 2007 Act. [2007 c.17 §3]
     Note: Section 2, chapter 908, Oregon Laws 2007,
provides:
     Sec.
2. The amendments to ORS
656.386 by section 1 of this 2007 Act apply to workersÂ’ compensation claims in
which the order on the compensability of the claim denial has not become final
on or before the effective date of this 2007 Act [January 1, 2008]. [2007 c.908
§2]
     Note: Section 4, chapter 908, Oregon Laws 2007,
provides:
     Sec.
4. The amendments to ORS
656.388 by section 3 of this 2007 Act apply to all claims in which an order
that grants attorney fees is issued after the effective date of this 2007 Act
[January 1, 2008], regardless of the date of injury. [2007 c.908 §4]
COMPENSATION
AND MEDICAL BENEFITS
     656.204
Death. If death results from
the accidental injury, payments shall be made as follows:
     (1) The cost of burial, including
transportation of the body, shall be paid, not to exceed 10 times the average
weekly wage in any case.
     (2)(a) If the worker is survived by a
spouse, monthly benefits shall be paid in an amount equal to 4.35 times 66-2/3
percent of the average weekly wage to the surviving spouse until remarriage.
The payment shall cease at the end of the month in which the remarriage occurs.
     (b) If the worker is survived by a spouse,
monthly benefits also shall be paid in an amount equal to 4.35 times 10 percent
of the average weekly wage for each child of the deceased who is substantially
dependent on the spouse for support, until such child becomes 18 years of age.
     (c) If the worker is survived by a spouse,
monthly benefits also shall be paid in an amount equal to 4.35 times 25 percent
of the average weekly wage for each child of the deceased who is not
substantially dependent on the spouse for support, until such child becomes 18
years of age.
     (d) If a surviving spouse receiving
monthly payments dies, leaving a child who is entitled to compensation on
account of the death of the worker, a monthly benefit equal to 4.35 times 25
percent of the average weekly wage shall be paid to each such child until the
child becomes 18 years of age or the childÂ’s entitlement to benefits under
subsection (8) of this section ceases, whichever is later.
     (e) If a child who has become 18 years of
age is a full-time high school student, benefits shall be paid as provided in
subsection (8) of this section.
     (f) In no event shall the total monthly
benefits provided for in this subsection exceed 4.35 times 133-1/3 percent of
the average weekly wage. If the sum of the individual benefits exceeds this
maximum, the benefit for each child will be reduced proportionally.
     (3)(a) Upon remarriage, a surviving spouse
shall be paid 36 times the monthly benefit in a lump sum as final payment of
the claim, but the monthly payments for each child shall continue as before.
     (b) If, after the date of the subject
workerÂ’s death, the surviving spouse cohabits with another person for an
aggregate period of more than one year and a child has resulted from the
relationship, the surviving spouse shall be paid 36 times the monthly benefit
in a lump sum as final payment of the claim, but the monthly payment for any
child who is entitled to compensation on account of the death of the worker
shall continue as before.
     (4)(a) If the worker leaves neither wife
nor husband, but a child under 18 years of age, a monthly benefit equal to 4.35
times 25 percent of the average weekly wage shall be paid to each such child
until the child becomes 18 years of age.
     (b) If a child who has become 18 years of
age is a full-time high school student, benefits shall be paid as provided in
subsection (8) of this section.
     (c) In no event shall the total benefits
provided for in this subsection exceed 4.35 times 133-1/3 percent of the
average weekly wage. If the sum of the individual benefits exceeds this maximum,
the benefit for each child will be reduced proportionally.
     (5)(a) If the worker leaves a dependent
other than a surviving spouse or a child, a monthly payment shall be made to
each dependent equal to 50 percent of the average monthly support actually
received by such dependent from the worker during the 12 months next preceding
the occurrence of the accidental injury. If a dependent is under the age of 18
years at the time of the accidental injury, the payment to the dependent shall
cease when such dependent becomes 18 years of age. The payment to any dependent
shall cease under the same circumstances that would have terminated the
dependency had the injury not happened.
     (b) If the dependent who has become 18
years of age is a full-time high school student, benefits shall be paid as
provided in subsection (8) of this section.
     (c) In no event shall the total benefits
provided for in this subsection exceed 4.35 times 10 percent of the average
weekly wage. If the sum of the individual benefits exceeds this maximum, the
benefit for each dependent will be reduced proportionally.
     (6) If a child is an invalid at the time
the child otherwise becomes ineligible for benefits under this section, the
payment to the child shall continue while the child remains an invalid. If a
person is entitled to payment because the person is an invalid, payment shall
terminate when the person ceases to be an invalid.
     (7) If, at the time of the death of a
worker, the child of the worker or dependent has become 17 years of age but is
under 18 years of age, the child or dependent shall receive the payment
provided in this section for a period of one year from the date of the death.
However, if after such period the child is a full-time high school student,
benefits shall be paid as provided in subsection (8) of this section.
     (8)(a) Benefits under this section which
are to be paid as provided in this subsection shall be paid for the child or
dependent until the child or dependent becomes 19 years of age. If, however,
the child or dependent is attending higher education or begins attending higher
education within six months of the date the child or dependent leaves high
school, benefits shall be paid until the child or dependent becomes 23 years of
age, ceases attending higher education or graduates from an approved institute
or program, whichever is earlier.
     (b) As used in this subsection, “attending
higher education” means regularly attending community college, college or
university, or regularly attending a course of vocational or technical training
designed to prepare the participant for gainful employment. A child or
dependent enrolled in an educational course load of less than one-half of that
determined by the educational facility to constitute “full-time” enrollment is
not “attending higher education.”
     (9) As used in this section, “average
weekly wage” has the meaning for that term provided in ORS 656.211. [Amended by
1957 c.453 §1; 1965 c.285 §22; 1967 c.286 §1; 1969 c.521 §1; 1971 c.415 §1;
1973 c.497 §2; 1974 c.41 §4; 1981 c.535 §4; 1981 c.874 §15; 1985 c.108 §1; 1987
c.235 §1; 1991 c.473 §1; 1995 c.332 §13; 1999 c.927 §2]
     Note: See notes under 656.202.
     Note: Section 59, chapter 332, Oregon Laws 1995,
provides:
     Sec.
59. (1) Surviving spouses
without children, whose entitlement to benefits under ORS 656.204 is based on
an injury before September 20, 1985, shall have their benefits supplemented
from the Retroactive Reserve. The total benefits payable, comprising the
benefits in effect on the date of injury plus the Retroactive Reserve
supplement, shall be equal to the total benefits payable under the formula
prescribed for surviving spouses without children, whose entitlement to
benefits is based on an injury occurring on September 20, 1985.
     (2) The provisions of this section apply
to benefits for periods beginning on and after the effective date of this 1995
Act [June 7, 1995]. [1995 c.332 §59]
     656.206
Permanent total disability.
(1) As used in this section:
     (a) “Essential functions” means the
primary tasks associated with the job.
     (b) “Materially improved medically” means
an actual change for the better in the workerÂ’s medical condition that is
supported by objective findings.
     (c) “Materially improved vocationally”
means an actual change for the better in the:
     (A) Worker’s vocational capability; or
     (B) Likelihood that the worker can return
to work in a gainful and suitable occupation.
     (d) “Permanent total disability” means,
notwithstanding ORS 656.225, the loss, including preexisting disability, of use
or function of any portion of the body which permanently incapacitates the
worker from regularly performing work at a gainful and suitable occupation.
     (e) “Regularly performing work” means the
ability of the worker to discharge the essential functions of the job.
     (f) “Suitable occupation” means one that
the worker has the ability and the training or experience to perform, or an
occupation that the worker is able to perform after rehabilitation.
     (g) “Wages” means wages as determined
under ORS 656.210.
     (2) When permanent total disability
results from the injury, the worker shall receive during the period of that
disability compensation benefits equal to 66-2/3 percent of wages not to exceed
100 percent of the average weekly wage nor less than the amount of 90 percent of
wages a week or the amount of $50, whichever amount is lesser.
     (3) The worker has the burden of proving
permanent total disability status and must establish that the worker is willing
to seek regular gainful employment and that the worker has made reasonable
efforts to obtain such employment.
     (4) When requested by the Director of the
Department of Consumer and Business Services, a worker who receives permanent
total disability benefits shall file on a form provided by the director, a
sworn statement of the workerÂ’s gross annual income for the preceding year
along with such other information as the director considers necessary to
determine whether the worker regularly performs work at a gainful and suitable
occupation.
     (5) Each insurer shall reexamine periodically
each permanent total disability claim for which the insurer has current payment
responsibility to determine whether the worker has materially improved, either
medically or vocationally, and is no longer permanently incapacitated from
regularly performing work at a gainful and suitable occupation. Reexamination
shall be conducted every two years or at such other more frequent interval as
the director may prescribe. Reexamination shall include such medical
examinations, vocational evaluations, reports and other records as the insurer
considers necessary or the director may require.
     (6)(a) If a worker receiving permanent
total disability benefits is found to be materially improved and capable of
regularly performing work at a gainful and suitable occupation, the insurer or
self-insured employer shall issue a notice of closure pursuant to ORS 656.268.
Permanent total disability benefits shall be paid through the date of the
notice of closure. Notwithstanding ORS 656.268 (5), if a worker objects to a notice
of closure issued under this subsection, the worker must request a hearing. If
the worker requests a hearing on the notice of closure before the Hearings
Division of the WorkersÂ’ Compensation Board within 30 days of the date of the
notice of closure, the insurer or self-insured employer shall continue payment
of permanent total disability benefits until an order of the Hearings Division
or a subsequent order affirms the notice of closure or until another order that
terminates the workerÂ’s benefits becomes final. If the worker requests a
hearing on the notice of closure more than 30 days from the date of the notice
of closure but before the 60-day period for requesting a hearing expires, the
insurer or self-insured employer shall resume paying permanent total disability
benefits from the date the hearing is requested and shall continue payment of
benefits until an order of the Hearings Division or a subsequent order affirms
the notice of closure or until another order that terminates the workerÂ’s
benefits becomes final. If the notice of closure is upheld by the Hearings
Division, the insurer or self-insured employer shall be reimbursed from the
WorkersÂ’ Benefit Fund for the amount of permanent total disability benefits
paid after the date of the notice of closure issued under this subsection.
     (b) An insurer or self-insured employer
must establish that the condition of a worker who is receiving permanent total
disability benefits has materially improved by a preponderance of the evidence
presented at hearing.
     (c) Medical examinations or vocational
evaluations used to support the issuance of a notice of closure under this
subsection must include at least one report in which the author personally
observed the worker.
     (d) Notwithstanding section 54 (3), chapter
2, Oregon Laws 1990, the Hearings Division of the WorkersÂ’ Compensation Board
may request the director to order a medical arbiter examination of an injured
worker who has requested a hearing under this subsection.
     (7) A worker who has had permanent total
disability benefits terminated under this section by an order that has become
final is eligible for vocational assistance pursuant to ORS 656.340.
Notwithstanding ORS 656.268 (9), if a worker has enrolled in and is actively
engaged in a training program, when vocational assistance provided under this
section ends or the worker ceases to be enrolled and actively engaged in the
training program, the insurer or the self-insured employer shall determine the
extent of disability pursuant to ORS 656.214.
     (8) A worker receiving permanent total
disability benefits is required, if requested by the director, the insurer or
the self-insured employer, to submit to a vocational evaluation at a time
reasonably convenient to the worker as may be provided by the rules of the
director. No more than three evaluations may be requested except after
notification to and authorization by the director. If the worker refuses to
submit to or obstructs a vocational evaluation, the rights of the worker to
compensation shall be suspended with the consent of the director until the
evaluation has taken place, and no compensation shall be payable for the period
during which the worker refused to submit to or obstructed the evaluation. The
insurer or self-insured employer shall pay the costs of the evaluation and
related services that are reasonably necessary to allow the worker to attend
the evaluation requested under this subsection. As used in this subsection, “related
services” includes, but is not limited to, wages, child care, travel, meals and
lodging.
     (9) Notwithstanding any other provisions
of this chapter, if a worker receiving permanent total disability incurs a new
compensable injury, the workerÂ’s entitlement to compensation for the new injury
shall be limited to medical benefits pursuant to ORS 656.245 and permanent
partial disability benefits for impairment, as determined in the manner set
forth in ORS 656.214 (2).
     (10) When a worker eligible for benefits
under this section returns to work, if the combined total of the workerÂ’s
post-injury wages plus permanent total disability benefit exceeds the workerÂ’s
wage at the time of injury, the workerÂ’s permanent total disability benefit
shall be reduced by the amount the workerÂ’s wages plus statutory permanent
total disability benefit exceeds the workerÂ’s wage at injury.
     (11) For purposes of this section:
     (a) A gainful occupation for workers with
a date of injury prior to January 1, 2006, who were:
     (A) Employed continuously for 52 weeks
prior to the injury, is an occupation that provides weekly wages that are the
lesser of the most recent federal poverty guidelines for a family of three that
are applicable to Oregon residents and that are published annually in the
Federal Register by the United States Department of Health and Human Services
or 66-2/3 percent of the workerÂ’s average weekly wages from all employment for
the 52 weeks prior to the date of injury.
     (B) Not employed continuously for the 52
weeks prior to the date of injury, but who were employed for at least four
weeks prior to the date of injury, is an occupation that provides weekly wages
that are the lesser of the most recent federal poverty guidelines for a family
of three that are applicable to Oregon residents and that are published
annually in the Federal Register by the United States Department of Health and
Human Services or 66-2/3 percent of the workerÂ’s average weekly wage from all
employment for the 52 weeks prior to the date of injury based on weeks of
actual employment, excluding any extended periods of unemployment.
     (C) Employed for less than four weeks
prior to the date of injury with no other employment during the 52 weeks prior
to the date of injury, is an occupation that provides weekly wages that are the
lesser of the most recent federal poverty guidelines for a family of three that
are applicable to Oregon residents and that are published annually in the
Federal Register by the United States Department of Health and Human Services
or 66-2/3 percent of the average weekly wages intended by the parties at the
time of initial hire.
     (b) A gainful occupation for workers with
a date of injury on or after January 1, 2006, who were:
     (A) Employed continuously for 52 weeks
prior to the injury, is an occupation that provides weekly wages that are the
lesser of the most recent federal poverty guidelines for a family of three that
are applicable to Oregon residents and that are published annually in the
Federal Register by the United States Department of Health and Human Services
or 66-2/3 percent of the workerÂ’s average weekly wages from all employment for
the 52 weeks prior to the date of injury adjusted by the percentage of change
in the applicable federal poverty guidelines for a family of three from the
date of injury to the date of evaluation of the extent of the workerÂ’s
disability.
     (B) Not employed continuously for the 52
weeks prior to the date of injury, but who were employed for at least four
weeks prior to the date of injury, is an occupation that provides weekly wages
that are the lesser of the most recent federal poverty guidelines for a family
of three that are applicable to Oregon residents and that are published
annually in the Federal Register by the United States Department of Health and
Human Services or 66-2/3 percent of the workerÂ’s average weekly wage from all
employment for the 52 weeks prior to the date of injury based on weeks of
actual employment, excluding any extended periods of unemployment and as
adjusted by the percentage of change in the applicable federal poverty
guidelines for a family of three from the date of injury to the date of
evaluation of the extent of the workerÂ’s disability.
     (C) Employed for less than four weeks
prior to the date of injury with no other employment during the 52 weeks prior
to the date of injury, is an occupation that provides weekly wages that are the
lesser of the most recent federal poverty guidelines for a family of three that
are applicable to Oregon residents and that are published annually in the
Federal Register by the United States Department of Health and Human Services
or 66-2/3 percent of the average weekly wages intended by the parties at the
time of initial hire adjusted by the percentage of change in the applicable
federal poverty guidelines for a family of three from the date of injury to the
date of evaluation of the extent of the workerÂ’s disability. [Amended by 1953
c.670 §4; 1955 c.553 §1; 1957 c.452 §1; 1959 c.517 §1; 1965 c.285 §22a; 1969
c.500 §2; 1973 c.614 §2; 1974 c.41 §5; 1975 c.506 §1; 1977 c.430 §1; 1981 c.874
§12; 1983 c.816 §3; 1995 c.332 §14; 1999 c.313 §13; 1999 c.927 §3; 2003 c.657 §§5,6;
2005 c.461 §§1,2; 2007 c.274 §3]
     Note: See notes under 656.202.
     656.207 [1959 c.589 §2; repealed by 1965 c.285 §95]
     656.208
Death during permanent total disability. (1) If the injured worker dies during the period of permanent total
disability, whatever the cause of death, leaving a spouse or any dependents
listed in ORS 656.204, payment shall be made in the same manner and in the same
amounts as provided in ORS 656.204.
     (2) If any surviving spouse to whom the
provisions of this section apply remarries, the payments on account of a child
or children shall continue to be made to the child or children the same as
before the remarriage. [Amended by 1957 c.453 §2; 1959 c.450 §2; 1965 c.285 §22b;
1969 c.521 §2; 1971 c.415 §2; 1973 c.497 §3; 1975 c.497 §2; 1985 c.108 §2]
     656.209
Offsetting permanent total disability benefits against Social Security benefits. (1) With the authorization of the Department
of Consumer and Business Services, the amount of any permanent total disability
benefits payable to an injured worker shall be reduced by the amount of any
disability benefits the worker receives from federal Social Security.
     (a) If the benefit amount to which the
worker is entitled pursuant to this chapter exceeds the workerÂ’s federal
disability benefit limitation determined pursuant to 42 U.S.C. 424(a), the
reduction in workerÂ’s compensation benefits authorized by this subsection shall
not be administered in such manner as to lower the amount the worker would have
received pursuant to this chapter had such reduction not been made.
     (b) If the benefit amount to which the
worker is entitled pursuant to this chapter is less than the workerÂ’s federal
disability benefit limitation determined pursuant to 42 U.S.C. 424(a), the
reduction in workerÂ’s compensation benefits authorized by this subsection shall
not be administered in such manner as to lower the amount of combined benefits
the worker receives below the federal benefit limitation.
     (2) No reduction of permanent total
disability benefits shall be made pursuant to this section unless authorized by
the department.
     (3) No reduction of benefits shall be
authorized pursuant to this section except upon actual receipt of federal
Social Security disability benefits by the injured worker.
     (4) The effective date of the operation of
any offset provided in this section shall be the date established in the
authorization provided in subsection (1) of this section, whether the
authorization was issued prior to or subsequent to May 8, 1979. [1977 c.430 §5;
1979 c.117 §3]
     656.210
Temporary total disability; payment during medical treatment; election; rules. (1) When the total disability is only
temporary, the worker shall receive during the period of that total disability
compensation equal to 66-2/3 percent of wages, but not more than 133 percent of
the average weekly wage nor less than the amount of 90 percent of wages a week
or the amount of $50 a week, whichever amount is less. Notwithstanding the
limitation imposed by this subsection, an injured worker who is not otherwise
eligible to receive an increase in benefits for the fiscal year in which
compensation is paid shall have the benefits increased each fiscal year by the
percentage which the applicable average weekly wage has increased since the
previous fiscal year.
     (2)(a) For the purpose of this section,
the weekly wage of workers shall be ascertained:
     (A) For workers employed in one job at the
time of injury, by multiplying the daily wage the worker was receiving by the
number of days per week that the worker was regularly employed; or
     (B) For workers employed in more than one
job at the time of injury, by adding all earnings the worker was receiving from
all subject employment.
     (b) Notwithstanding paragraph (a)(B) of
this subsection, the weekly wage calculated under paragraph (a)(A) of this
subsection shall be used for workers employed in more than one job at the time
of injury unless, within 30 days of receipt of the initial claim, the insurer,
self-insured employer or assigned claims agent for a noncomplying employer
receives notice that the worker was employed in more than one job with a
subject employer at the time of injury and receives verifiable documentation of
wages from such additional employment.
     (c) Notwithstanding ORS 656.005 (7)(c), an
injury to a worker employed in more than one job at the time of injury is not
disabling if no temporary disability benefits are payable for time lost from
the job at injury. Claim costs incurred as a result of supplemental temporary
disability benefits paid as provided in subsection (5) of this section may not
be included in any data used for ratemaking or individual employer rating or
dividend calculations by a guaranty contract insurer, a rating organization licensed
pursuant to ORS chapter 737, the State Accident Insurance Fund Corporation or
the Department of Consumer and Business Services if the injured worker is not
eligible for permanent disability benefits or temporary disability benefits for
time lost from the job at injury.
     (d) For the purpose of this section:
     (A) The benefits of a worker who incurs an
injury shall be based on the wage of the worker at the time of injury.
     (B) The benefits of a worker who incurs an
occupational disease shall be based on the wage of the worker at the time there
is medical verification that the worker is unable to work because of the
disability caused by the occupational disease. If the worker is not working at
the time that there is medical verification that the worker is unable to work
because of the disability caused by the occupational disease, the benefits
shall be based on the wage of the worker at the workerÂ’s last regular
employment.
     (e) As used in this subsection, “regularly
employed” means actual employment or availability for such employment. For
workers not regularly employed and for workers with no remuneration or whose
remuneration is not based solely upon daily or weekly wages, the Director of
the Department of Consumer and Business Services, by rule, may prescribe
methods for establishing the workerÂ’s weekly wage.
     (3) No disability payment is recoverable
for temporary total or partial disability suffered during the first three
calendar days after the worker leaves work or loses wages as a result of the
compensable injury unless the worker is totally disabled after the injury and
the total disability continues for a period of 14 consecutive days or unless
the worker is admitted as an inpatient to a hospital within 14 days of the
first onset of total disability. If the worker leaves work or loses wages on
the day of the injury due to the injury, that day shall be considered the first
day of the three-day period.
     (4) When an injured worker with an
accepted disabling compensable injury is required to leave work for a period of
four hours or more to receive medical consultation, examination or treatment
with regard to the compensable injury, the worker shall receive temporary
disability benefits calculated pursuant to ORS 656.212 for the period during
which the worker is absent, until such time as the worker is determined to be
medically stationary. However, benefits under this subsection are not payable
if wages are paid for the period of absence by the employer.
     (5)(a) The insurer of the employer at
injury or the self-insured employer at injury, may elect to be responsible for
payment of supplemental temporary disability benefits to a worker employed in
more than one job at the time of injury. In accordance with rules adopted by
the director, if the workerÂ’s weekly wage is determined under subsection
(2)(a)(B) of this section, the insurer or self-insured employer shall be
reimbursed from the WorkersÂ’ Benefit Fund for the amount of temporary
disability benefits paid that exceeds the amount payable pursuant to subsection
(2)(a)(A) of this section had the worker been employed in only one job at the
time of injury. Such reimbursement shall include an administrative fee payable
to the insurer or self-insured employer pursuant to rules adopted by the
director.
     (b) If the insurer or self-insured
employer elects not to pay the supplemental temporary disability benefits for a
worker employed in more than one job at the time of injury, the director shall
either administer and pay the supplemental benefits directly or shall assign
responsibility to administer and process the payment to a paying agent selected
by the director. [Amended by 1955 c.713 §1; 1957 c.452 §2; 1959 c.517 §2; 1965
c.285 §22c; 1969 c.183 §1; 1969 c.500 §1; 1971 c.204 §1; 1973 c.614 §1; 1974
c.41 §6; 1975 c.507 §1; 1975 c.663 §1; 1985 c.507 §3; 1987 c.521 §1; 1987 c.713
§7; 1995 c.332 §15; 2001 c.865 §3; 2003 c.760 §1]
     Note: The amendments to 656.210 by section 10,
chapter 241,
     656.210. (1) When the total disability is only
temporary, the worker shall receive during the period of that total disability
compensation equal to 66-2/3 percent of wages, but not more than 133 percent of
the average weekly wage nor less than the amount of 90 percent of wages a week
or the amount of $50 a week, whichever amount is less. Notwithstanding the
limitation imposed by this subsection, an injured worker who is not otherwise
eligible to receive an increase in benefits for the fiscal year in which
compensation is paid shall have the benefits increased each fiscal year by the
percentage which the applicable average weekly wage has increased since the
previous fiscal year.
     (2)(a) For the purpose of this section,
the weekly wage of workers shall be ascertained:
     (A) For workers employed in one job at the
time of injury, by multiplying the daily wage the worker was receiving by the
number of days per week that the worker was regularly employed; or
     (B) For workers employed in more than one
job at the time of injury, by adding all earnings the worker was receiving from
all subject employment.
     (b) Notwithstanding paragraph (a)(B) of
this subsection, the weekly wage calculated under paragraph (a)(A) of this
subsection shall be used for workers employed in more than one job at the time
of injury unless, within 30 days of receipt of the initial claim, the insurer,
self-insured employer or assigned claims agent for a noncomplying employer
receives notice that the worker was employed in more than one job with a
subject employer at the time of injury and receives verifiable documentation of
wages from such additional employment.
     (c) Notwithstanding ORS 656.005 (7)(c), an
injury to a worker employed in more than one job at the time of injury is not
disabling if no temporary disability benefits are payable for time lost from
the job at injury. Claim costs incurred as a result of supplemental temporary disability
benefits paid as provided in subsection (5) of this section may not be included
in any data used for ratemaking or individual employer rating or dividend
calculations by an insurer, a rating organization licensed pursuant to ORS
chapter 737, the State Accident Insurance Fund Corporation or the Department of
Consumer and Business Services if the injured worker is not eligible for
permanent disability benefits or temporary disability benefits for time lost
from the job at injury.
     (d) For the purpose of this section:
     (A) The benefits of a worker who incurs an
injury shall be based on the wage of the worker at the time of injury.
     (B) The benefits of a worker who incurs an
occupational disease shall be based on the wage of the worker at the time there
is medical verification that the worker is unable to work because of the
disability caused by the occupational disease. If the worker is not working at
the time that there is medical verification that the worker is unable to work
because of the disability caused by the occupational disease, the benefits
shall be based on the wage of the worker at the workerÂ’s last regular
employment.
     (e) As used in this subsection, “regularly
employed” means actual employment or availability for such employment. For
workers not regularly employed and for workers with no remuneration or whose
remuneration is not based solely upon daily or weekly wages, the Director of
the Department of Consumer and Business Services, by rule, may prescribe
methods for establishing the workerÂ’s weekly wage.
     (3) No disability payment is recoverable
for temporary total or partial disability suffered during the first three
calendar days after the worker leaves work or loses wages as a result of the
compensable injury unless the worker is totally disabled after the injury and
the total disability continues for a period of 14 consecutive days or unless
the worker is admitted as an inpatient to a hospital within 14 days of the
first onset of total disability. If the worker leaves work or loses wages on
the day of the injury due to the injury, that day shall be considered the first
day of the three-day period.
     (4) When an injured worker with an
accepted disabling compensable injury is required to leave work for a period of
four hours or more to receive medical consultation, examination or treatment
with regard to the compensable injury, the worker shall receive temporary
disability benefits calculated pursuant to ORS 656.212 for the period during
which the worker is absent, until such time as the worker is determined to be
medically stationary. However, benefits under this subsection are not payable
if wages are paid for the period of absence by the employer.
     (5)(a) The insurer of the employer at
injury or the self-insured employer at injury, may elect to be responsible for
payment of supplemental temporary disability benefits to a worker employed in
more than one job at the time of injury. In accordance with rules adopted by
the director, if the workerÂ’s weekly wage is determined under subsection (2)(a)(B)
of this section, the insurer or self-insured employer shall be reimbursed from
the WorkersÂ’ Benefit Fund for the amount of temporary disability benefits paid
that exceeds the amount payable pursuant to subsection (2)(a)(A) of this
section had the worker been employed in only one job at the time of injury.
Such reimbursement shall include an administrative fee payable to the insurer
or self-insured employer pursuant to rules adopted by the director.
     (b) If the insurer or self-insured
employer elects not to pay the supplemental temporary disability benefits for a
worker employed in more than one job at the time of injury, the director shall
either administer and pay the supplemental benefits directly or shall assign
responsibility to administer and process the payment to a paying agent selected
by the director.
     Note: See notes under 656.202.
     656.211
“Average weekly wage” defined.
As used in ORS 656.210 (1), “average weekly wage” means the average weekly wage
of workers in covered employment in
     Note: See notes under 656.202.
     656.212
Temporary partial disability.
When the disability is or becomes partial only and is temporary in character:
     (1) No disability payment is recoverable
for temporary disability suffered during the first three calendar days after
the worker leaves work or loses wages as a result of the compensable injury. If
the worker leaves work or loses wages on the day of the injury due to the
injury, that day shall be considered the first day of the three-day period.
     (2) The payment of temporary total
disability pursuant to ORS 656.210 shall cease and the worker shall receive
that proportion of the payments provided for temporary total disability which
the loss of wages bears to the wage used to calculate temporary total
disability pursuant to ORS 656.210. [Amended by 1953 c.672 §2; 1995 c.332 §16;
amendments by 1995 c.332 §16a repealed by 1999 c.6 §1; 1999 c.538 §1]
     Note: See notes under 656.202.
     656.214
Permanent partial disability.
(1) As used in this section:
     (a) “Impairment” means the loss of use or
function of a body part or system due to the compensable industrial injury or
occupational disease determined in accordance with the standards provided under
ORS 656.726, expressed as a percentage of the whole person.
     (b) “Loss” includes permanent and complete
or partial loss of use.
     (c) “Permanent partial disability” means:
     (A) Permanent impairment resulting from
the compensable industrial injury or occupational disease; or
     (B) Permanent impairment and work
disability resulting from the compensable industrial injury or occupational
disease.
     (d) “Regular work” means the job the
worker held at injury.
     (e) “Work disability” means impairment
modified by age, education and adaptability to perform a given job.
     (2) When permanent partial disability
results from a compensable injury or occupational disease, benefits shall be
awarded as follows:
     (a) If the worker has been released to
regular work by the attending physician or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 or has returned to
regular work at the job held at the time of injury, the award shall be for
impairment only. Impairment shall be determined in accordance with the
standards provided by the Director of the Department of Consumer and Business
Services pursuant to ORS 656.726 (4). Impairment benefits are determined by
multiplying the impairment value times 100 times the average weekly wage as
defined by ORS 656.005.
     (b) If the worker has not been released to
regular work by the attending physician or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 or has not returned to
regular work at the job held at the time of injury, the award shall be for
impairment and work disability. Work disability shall be determined in
accordance with the standards provided by the director pursuant to ORS 656.726
(4). Impairment shall be determined as provided in paragraph (a) of this
subsection. Work disability benefits shall be determined by multiplying the
impairment value, as modified by the factors of age, education and adaptability
to perform a given job, times 150 times the workerÂ’s weekly wage for the job at
injury as calculated under ORS 656.210 (2). The factor for the workerÂ’s weekly
wage used for the determination of the work disability may be no more than 133
percent or no less than 50 percent of the average weekly wage as defined in ORS
656.005.
     (3) Impairment benefits awarded under
subsection (2)(a) of this section shall be expressed as a percentage of the
whole person. Impairment benefits for the following body parts may not exceed:
     (a) For the loss of one arm at or above
the elbow joint, 60 percent.
     (b) For the loss of one forearm at or
above the wrist joint, or the loss of one hand, 47 percent.
     (c) For the loss of one leg, at or above
the knee joint, 47 percent.
     (d) For the loss of one foot, 42 percent.
     (e) For the loss of a great toe, six
percent; for loss of any other toe, one percent.
     (f) For partial or complete loss of
hearing in one ear, that proportion of 19 percent which the loss bears to
normal monaural hearing.
     (g) For partial or complete loss of
hearing in both ears, that proportion of 60 percent which the combined binaural
hearing loss bears to normal combined binaural hearing. For the purpose of this
paragraph, combined binaural hearing loss shall be calculated by taking seven
times the hearing loss in the less damaged ear plus the hearing loss in the
more damaged ear and dividing that amount by eight. In the case of individuals
with compensable hearing loss involving both ears, either the method of
calculation for monaural hearing loss or that for combined binaural hearing
loss shall be used, depending upon which allows the greater award of
impairment.
     (h) For partial or complete loss of vision
of one eye, that proportion of 31 percent which the loss of monocular vision
bears to normal monocular vision. For the purposes of this paragraph, the term “normal
monocular vision” shall be considered as Snellen 20/20 for distance and Snellen
14/14 for near vision with full sensory field.
     (i) For partial loss of vision in both
eyes, that proportion of 94 percent which the combined binocular visual loss
bears to normal combined binocular vision. In all cases of partial loss of
sight, the percentage of said loss shall be measured with maximum correction.
For the purpose of this paragraph, combined binocular visual loss shall be
calculated by taking three times the visual loss in the less damaged eye plus
the visual loss in the more damaged eye and dividing that amount by four. In
the case of individuals with compensable visual loss involving both eyes,
either the method of calculation for monocular visual loss or that for combined
binocular visual loss shall be used, depending upon which allows the greater
award of impairment.
     (j) For the loss of a thumb, 15 percent.
     (k) For the loss of a first finger, eight
percent; of a second finger, seven percent; of a third finger, three percent;
of a fourth finger, two percent.
     (4) The loss of one phalange of a thumb,
including the adjacent epiphyseal region of the proximal phalange, is
considered equal to the loss of one-half of a thumb. The loss of one phalange
of a finger, including the adjacent epiphyseal region of the middle phalange,
is considered equal to the loss of one-half of a finger. The loss of two
phalanges of a finger, including the adjacent epiphyseal region of the proximal
phalange of a finger, is considered equal to the loss of 75 percent of a
finger. The loss of more than one phalange of a thumb, excluding the epiphyseal
region of the proximal phalange, is considered equal to the loss of an entire
thumb. The loss of more than two phalanges of a finger, excluding the
epiphyseal region of the proximal phalange of a finger, is considered equal to the
loss of an entire finger. A proportionate loss of use may be allowed for an
uninjured finger or thumb where there has been a loss of effective opposition.
     (5) A proportionate loss of the hand may
be allowed where impairment extends to more than one digit, in lieu of ratings
on the individual digits.
     (6) All permanent disability contemplates
future waxing and waning of symptoms of the condition. The results of waxing
and waning of symptoms may include, but are not limited to, loss of earning
capacity, periods of temporary total or temporary partial disability, or
inpatient hospitalization. [Amended by 1953 c.669 §4; 1955 c.716 §1; 1957 c.449
§1; 1965 c.285 §22d; 1967 c.529 §1; 1971 c.178 §1; 1977 c.557 §1; 1979 c.839 §27;
1981 c.535 §27; 1985 c.506 §3; 1987 c.884 §36; 1990 c.2 §7; 1995 c.332 §17;
1999 c.6 §7; 1999 c.876 §2; 2001 c.865 §6; 2003 c.657 §§1,2; 2005 c.653 §§3,4;
2007 c.274 §1]
     Note: See notes under 656.202.
(Benefits, January 1, 1992, to December 31,
1995)
     Note: Section 2, chapter 745, Oregon Laws 1991,
provides:
     Sec.
2. (1) Notwithstanding the
method of calculating permanent partial disability benefit amounts provided in
ORS 656.214 (2), for injuries occurring during the period beginning January 1,
1992, and ending December 31, 1995, the worker shall receive an amount equal to
71 percent of the average weekly wage times the number of degrees stated
against the disability as provided in ORS 656.214 (2) to (4). However, as
annual changes in the average weekly wage occur, the amount of the average
weekly wage used in calculation of the benefit amount pursuant to this
subsection shall not be more than five percent larger than the amount used in
the previous year.
     (2)(a) Notwithstanding the method of
calculating permanent partial disability benefit amounts provided in ORS
656.214 (5), for injuries occurring during the period beginning January 1,
1992, and ending December 31, 1995, the worker shall receive an amount equal
to:
     (A) When the number of degrees stated
against the disability as provided in ORS 656.214 (5) is equal to or less than
96, 24 percent of the average weekly wage times the number of degrees.
     (B) When the number of degrees stated
against the disability as provided in ORS 656.214 (5) is more than 96 but equal
to or less than 192, 24 percent of the average weekly wage times 96 plus 28
percent of the average weekly wage times the number of degrees in excess of 96.
     (C) When the number of degrees stated
against the disability as provided in ORS 656.214 (5) is more than 192, 24 percent
of the average weekly wage times 96 plus 28 percent of the average weekly wage
times 96 plus 71 percent of the average weekly wage times the number of degrees
in excess of 192.
     (b) However, as annual changes in the
average weekly wage occur, the amount of the average weekly wage used in
calculation of the benefit amount pursuant to this subsection shall not be more
than five percent larger than the amount used in the previous year.
     (3) Benefits referred to in this section
shall be paid on the basis of the benefit amount in effect on the date of
injury.
     (4) As used in this section, “average
weekly wage” has the meaning for that term provided in ORS 656.211. [1991 c.745
§2; 1995 c.332 §18]
(Benefits, January 1, 1996, to December 31,
1997)
     Note: Section 20, chapter 332, Oregon Laws 1995,
provides:
     Sec.
20. (1) Notwithstanding the
method of calculating permanent partial disability benefit amounts provided in
ORS 656.214 (2), for injuries occurring during the period beginning January 1,
1996, and ending December 31, 1997, the worker shall receive $420 for each
degree stated against the disability as provided in ORS 656.214 (2) to (4).
     (2) Notwithstanding the method of
calculating permanent partial disability benefit amounts provided in ORS
656.214 (5), for injuries occurring during the period beginning January 1,
1996, and ending December 31, 1997, the worker shall receive an amount equal
to:
     (a) When the number of degrees stated
against the disability as provided in ORS 656.214 (5) is equal to or less than
64, $130 times the number of degrees.
     (b) When the number of degrees stated
against the disability as provided in ORS 656.214 (5) is more than 64 but equal
to or less than 160, $130 times 64 plus $230 times the number of degrees in
excess of 64.
     (c) When the number of degrees stated
against the disability as provided in ORS 656.214 (5) is more than 160, $130
times 64 plus $230 times 96 plus $625 times the number of degrees in excess of
160.
     (3) Benefits referred to in this section
shall be paid on the basis of the benefit amount in effect on the date of
injury. [1995 c.332 §20; 1997 c.380 §1]
(Benefits, January 1, 1998, to October 23,
1999)
     Note: Section 3, chapter 380, Oregon Laws 1997,
provides:
     Sec.
3. (1) Notwithstanding the
method of calculating permanent partial disability benefit amounts provided in
ORS 656.214 (2), for injuries occurring during the period beginning January 1,
1998, and ending on the effective date of this 1999 Act [October 23, 1999], the
worker shall receive $454 for each degree stated against the disability as
provided in ORS 656.214 (2) to (4).
     (2) Notwithstanding the method of
calculating permanent partial disability benefit amounts provided in ORS
656.214 (6), for injuries occurring during the period beginning January 1,
1998, and ending on the effective date of this 1999 Act, the worker shall
receive an amount equal to:
     (a) When the number of degrees stated
against the disability as provided in ORS 656.214 (6) is equal to or less than
64, $137.80 times the number of degrees.
     (b) When the number of degrees stated
against the disability as provided in ORS 656.214 (6) is more than 64 but equal
to or less than 160, $137.80 times 64 plus $243.80 times the number of degrees
in excess of 64.
     (c) When the number of degrees stated
against the disability as provided in ORS 656.214 (6) is more than 160, $137.80
times 64 plus $243.80 times 96 plus $662.50 times the number of degrees in
excess of 160.
     (3) Benefits referred to in this section
shall be paid on the basis of the benefit amount in effect on the date of
injury. [1997 c.380 §3; 1999 c.6 §6]
(Benefits, January 1, 2000, to December 31,
2004)
     Note: Section 9, chapter 6, Oregon Laws 1999,
provides:
     Sec.
9. (1) Notwithstanding the
method of calculating permanent partial disability benefit amounts provided in
ORS 656.214 (2), for injuries occurring during the period beginning January 1,
2000, and ending December 31, 2004, the worker shall receive $511.29 for each
degree stated against the disability as provided in ORS 656.214 (2) to (4).
     (2) Notwithstanding the method of
calculating permanent partial disability benefit amounts provided in ORS
656.214 (6), for injuries occurring during the period beginning January 1,
2000, and ending December 31, 2004, the worker shall receive an amount equal
to:
     (a) When the number of degrees stated
against the disability as provided in ORS 656.214 (6) is equal to or less than
64, $153.00 times the number of degrees.
     (b) When the number of degrees stated
against the disability as provided in ORS 656.214 (6) is more than 64 but equal
to or less than 160, $267.44 times 64 plus $153.00 times the number of degrees
in excess of 64.
     (c) When the number of degrees stated
against the disability as provided in ORS 656.214 (6) is more than 160, $153.00
times 64 plus $267.44 times 96 plus $709.79 times the number of degrees in
excess of 160.
     (3) Benefits referred to in this section
shall be paid on the basis of the benefit amount in effect on the date of
injury. [1999 c.6 §9]
     Note: Sections 6a and 6b, chapter 865, Oregon Laws
2001, modify benefit amounts paid under section 9, chapter 6, Oregon Laws 1999,
for injuries occurring during the period beginning January 1, 2000, and ending
July 30, 2001. For benefit amounts paid for injuries occurring during the
period beginning July 31, 2001, and ending December 31, 2001, see 656.214.
     Note: Sections 6a and 6b, chapter 865, Oregon Laws
2001, provide:
     Sec.
6a. (1) Workers injured
between January 1, 2000, and the effective date of this 2001 Act [July 30, 2001]
who were awarded permanent partial disability benefits before the effective
date of this 2001 Act shall be paid by the Director of the Department of
Consumer and Business Services from the WorkersÂ’ Benefit Fund an amount equal
to the amount that benefits calculated pursuant to section 6b of this 2001 Act
are less than the benefits calculated pursuant to ORS 656.214, as amended by
section 6 of this 2001 Act.
     (2) The amendments to ORS 656.214 by
section 6 of this 2001 Act may not be applied to the benefits awarded to any
injured worker during the period beginning January 1, 2000, and ending on the
effective date of this 2001 Act in such a manner as to reduce the benefits
awarded to that worker pursuant to section 6b of this 2001 Act. [2001 c.865 §6a]
     Sec.
6b. (1) Notwithstanding any
other provision of this chapter [ORS chapter 656], for injuries occurring in
the period beginning January 1, 2000, and ending on the effective date of this
2001 Act [July 30, 2001], and for which awards have been made during that
period, the worker shall receive an amount equal to:
     (a) When the number of degrees stated
against the disability as provided in ORS 656.214 (6) is equal to or less than
64, $153.00 times the number of degrees.
     (b) When the number of degrees stated against
the disability as provided in ORS 656.214 (6) is more than 64 but equal to or
less than 160, $267.44 times 64 plus $153.00 times the number of degrees in
excess of 64.
     (c) When the number of degrees stated
against the disability as provided in ORS 656.214 (6) is more than 160, $153.00
times 64 plus $267.44 times 96 plus $709.79 times the number of degrees in
excess of 160.
     (2) Notwithstanding any other provision of
this chapter, for injuries occurring in the period beginning January 1, 2000,
and ending on the effective date of this 2001 Act, and for which awards are
made after the effective date of this 2001 Act, the worker shall receive
payments as provided in ORS 656.214, as amended by section 6 of this 2001 Act.
[2001 c.865 §6b]
(Benefits, January 1, 2002, to December 31,
2004)
     Note: Section 6c, chapter 865, Oregon Laws 2001,
provides:
     Sec.
6c. (1) Notwithstanding the
method of calculating permanent partial disability benefit amounts provided in
ORS 656.214 (2), for injuries occurring during the period beginning January 1,
2002, and ending December 31, 2004, the worker shall receive $559.00 for each
degree stated against the disability as provided in ORS 656.214 (2) to (4).
     (2) Notwithstanding the method of
calculating permanent partial disability benefit amounts provided in ORS
656.214 (6), for injuries occurring during the period beginning January 1,
2002, and ending December 31, 2004, the worker shall receive an amount equal
to:
     (a) When the number of degrees stated
against the disability as provided in ORS 656.214 (6) is equal to or less than
64, $184.00 times the number of degrees.
     (b) When the number of degrees stated
against the disability as provided in ORS 656.214 (6) is more than 64 but equal
to or less than 160, $184.00 times 64 plus $321.00 times the number of degrees
in excess of 64.
     (c) When the number of degrees stated
against the disability as provided in ORS 656.214 (6) is more than 160, $184.00
times 64 plus $321.00 times 96 plus $748.00 times the number of degrees in
excess of 160.
     (3) Benefits referred to in this section
shall be paid on the basis of the benefit amount in effect on the date of
injury. [2001 c.865 §6c]
     656.215 [1987 c.884 §36b; 1990 c.2 §8; repealed by
1991 c.745 §3]
     656.216
Permanent partial disability; method of payment; effect of prior receipt of
temporary disability payments.
(1) Compensation for permanent partial disability may be paid monthly at 4.35
times the rate per week as provided for compensation for temporary total
disability at the time the determination is made. In no case shall such
payments be less than $108.75 per month.
     (2) If a worker, who is entitled to
compensation for a permanent disability, has received compensation for a
temporary disability by reason of the same injury, compensation for such
permanent disability shall be in addition to the payments which the worker has
received on account of such temporary disability. [Amended by 1967 c.529 §2;
1973 c.459 §1; 1974 c.41 §7]
     656.218
Continuance of permanent partial disability payments to survivors; effect of
death prior to final claim disposition; burial allowance. (1) In case of the death of a worker
entitled to compensation, whether eligibility therefor or the amount thereof
have been determined, payments shall be made for the period during which the
worker, if surviving, would have been entitled thereto.
     (2) If the worker’s death occurs prior to
issuance of a notice of closure under ORS 656.268, the insurer or the
self-insured employer shall determine compensation for permanent partial
disability, if any.
     (3) If the worker has filed a request for
a hearing pursuant to ORS 656.283 and death occurs prior to the final
disposition of the request, the persons described in subsection (5) of this
section shall be entitled to pursue the matter to final determination of all
issues presented by the request for hearing.
     (4) If the worker dies before filing a
request for hearing, the persons described in subsection (5) of this section
shall be entitled to file a request for hearing and to pursue the matter to
final determination as to all issues presented by the request for hearing.
     (5) The payments provided in this section
shall be made to the persons who would have been entitled to receive death
benefits if the injury causing the disability had been fatal. In the absence of
persons so entitled, a burial allowance may be paid not to exceed the lesser of
either the unpaid award or the amount payable by ORS 656.204.
     (6) This section does not entitle any
person to double payments on account of the death of a worker and a
continuation of payments for permanent partial disability, or to a greater sum
in the aggregate than if the injury had been fatal. [Amended by 1959 c.450 §3;
1973 c.355 §1; 1975 c.497 §3; 1981 c.854 §11; 1987 c.884 §16; 1999 c.313 §4]
     656.220 [Amended by 1957 c.718 §4; 1965 c.285 §24;
repealed by 1975 c.505 §1]
     656.222
Compensation for additional accident. Should a further accident occur to a worker who is receiving
compensation for a temporary disability, or who has been paid or awarded
compensation for a permanent disability, the award of compensation for such
further accident shall be made with regard to the combined effect of the
injuries of the worker and past receipt of money for such disabilities.
     656.224 [Amended by 1953 c.674 §13; repealed by 1959
c.517 §5]
     656.225
Compensability of certain preexisting conditions. In accepted injury or occupational disease
claims, disability solely caused by or medical services solely directed to a
workerÂ’s preexisting condition are not compensable unless:
     (1) In occupational disease or injury
claims other than those involving a preexisting mental disorder, work
conditions or events constitute the major contributing cause of a pathological
worsening of the preexisting condition.
     (2) In occupational disease or injury
claims involving a preexisting mental disorder, work conditions or events
constitute the major contributing cause of an actual worsening of the
preexisting condition and not just of its symptoms.
     (3) In medical service claims, the medical
service is prescribed to treat a change in the preexisting condition as
specified in subsection (1) or (2) of this section, and not merely as an
incident to the treatment of a compensable injury or occupational disease. [1995
c.332 §3]
     656.226
Cohabitants and children entitled to compensation. In case an unmarried man and an unmarried
woman have cohabited in this state as husband and wife for over one year prior
to the date of an accidental injury received by one or the other as a subject
worker, and children are living as a result of that relation, the surviving
cohabitant and the children are entitled to compensation under this chapter the
same as if the man and woman had been legally married. [Amended by 1983 c.816 §4]
     656.228
Payments directly to beneficiary or custodian. (1) If compensation is payable for the
benefit of a beneficiary other than the injured worker, the insurer or the
self-insured employer may segregate any additional compensation payable on
account of that beneficiary and make payment directly to the beneficiary, if
sui juris; otherwise, to the guardian or person having custody of the
beneficiary.
     (2) Compensation paid to an injured worker
who is a minor prior to receipt of notice by the insurer or the self-insured
employer from the parent or guardian of the minor that the parent or guardian
claims the compensation shall discharge the obligation to pay compensation to
the extent of such payment. [Amended by 1957 c.477 §1; 1965 c.285 §25; 1981
c.854 §12]
     656.230
Lump sum award payments. (1)
When a worker has been awarded compensation for permanent partial disability,
and the worker requests payment of all or part of the award in a lump sum
payment, the insurer shall make the payment requested unless the:
     (a) Worker has not waived the right to
appeal the adequacy of the award;
     (b) Award has not become final by
operation of law;
     (c) Payment of compensation has been
stayed pending a request for hearing or review under ORS 656.313; or
     (d) Worker is enrolled and actively
engaged in training according to rules adopted pursuant to ORS 656.340 and
656.726.
     (2) Any unpaid balance of the award not
paid in a lump sum payment shall be paid pursuant to ORS 656.216.
     (3) In all cases where the award for
permanent partial disability does not exceed $6,000, the insurer or the
self-insured employer shall pay all of the award to the worker in a lump sum. [Amended
by 1957 c.574 §4; 1959 c.449 §1; 1965 c.285 §23a; 1973 c.221 §1; 1981 c.854 §13;
1983 c.816 §15; 1995 c.332 §22; 2007 c.270 §1]
     656.232
Payments to aliens residing outside of
     (2) If a beneficiary is an alien residing
outside of the United States or its dependencies, the director may, in lieu of
awarding such beneficiary compensation in the amount provided by this chapter,
award such beneficiary such lesser sum by way of compensation which, according
to the conditions and costs of living in the place of residence of such
beneficiary will, in the opinion of the director, maintain the beneficiary in a
like degree of comfort as a beneficiary of the same class residing in this
state and receiving the full compensation authorized by this chapter. The
director shall determine the amount of compensation benefits upon the basis of
the rate of exchange between the
     (3) All benefit rights shall be canceled
upon the commencement of a state of war between the
     656.234
Compensation not assignable nor to pass by operation of law; certain benefits
subject to support obligations.
(1) No moneys payable under this chapter on account of injuries or death are
subject to assignment prior to their receipt by the beneficiary entitled
thereto, nor shall they pass by operation of law. All such moneys and the right
to receive them are exempt from seizure on execution, attachment or
garnishment, or by the process of any court.
     (2) Notwithstanding any other provision of
this section:
     (a) Moneys payable under ORS 656.210 and
656.212 are subject to an order to enforce child support obligations, and
spousal support when there is a current support obligation for a joint child of
the obligated parent and the person to whom spousal support is owed, under ORS
25.378; and
     (b) Moneys payable under ORS 656.206,
656.214, 656.236 and 656.289 (4) are subject to an order to enforce child
support obligations under ORS 25.378.
     (3) Notwithstanding the provisions of ORS
25.378 and 25.414, the amount of child support obligation subject to
enforcement may not exceed:
     (a) One-fourth of moneys paid under ORS
656.210 and 656.212 or the amount of the current support to be paid as
continuing support, whichever is less, or, if there is no current support
obligation and the withholding is for arrearages only, 15 percent of the moneys
paid under ORS 656.210 and 656.212 or the amount previously paid as current
support, whichever is less;
     (b) One-fourth of moneys paid in a lump
sum award under ORS 656.210 and 656.212 when the award becomes final by
operation of law or waiver of the right to appeal its adequacy;
     (c) One-fourth of moneys paid under ORS
656.206, 656.214 and 656.236; or
     (d) One-fourth of the net proceeds paid to
the worker in a disputed claim settlement under ORS 656.289 (4).
     (4) Notwithstanding any other provision of
this section, when withholding is only for arrearages assigned to this or
another state, the Department of Justice may set a lesser amount to be withheld
if the obligor demonstrates the withholding is prejudicial to the obligorÂ’s
ability to provide for a child the obligor has a duty to support. [Amended by
1967 c.468 §1; 1989 c.520 §2; 1991 c.758 §3; 1993 c.48 §1; 1993 c.798 §22; 1995
c.272 §2; 2001 c.455 §26; 2003 c.73 §70]
     656.236
Compromise and release of claim matters except for medical benefits; approval
by Administrative Law Judge or board; approval by director for
certain reserve reimbursements; restriction on charging costs to workers;
restriction on joinder as parties for responsibility determinations. (1)(a) The parties to a claim, by agreement,
may make such disposition of any or all matters regarding a claim, except for
medical services, as the parties consider reasonable, subject to such terms and
conditions as the WorkersÂ’ Compensation Board may prescribe. For the purposes
of this section, “matters regarding a claim” includes the disposition of a
beneficiaryÂ’s independent claim for compensation under this chapter. Unless
otherwise specified, a disposition resolves all matters and all rights to
compensation, attorney fees and penalties potentially arising out of claims,
except medical services, regardless of the conditions stated in the agreement.
Each disposition shall be filed with the board for approval by the
Administrative Law Judge who mediated the agreement or by the board. If the
worker is not represented by an attorney, the worker may, at the workerÂ’s
request, personally appear before the board. Submission of a disposition shall
stay all other proceedings and payment obligations, except for medical
services, on that claim. The disposition shall be approved in a final order
unless:
     (A) The Administrative Law Judge who
mediated the agreement or the board finds the proposed disposition is unreasonable
as a matter of law;
     (B) The Administrative Law Judge who
mediated the agreement or the board finds the proposed disposition is the
result of an intentional misrepresentation of material fact; or
     (C) Within 30 days of submitting the
disposition for approval, the worker, the insurer or self-insured employer
requests the Administrative Law Judge who mediated the agreement or the board
to disapprove the disposition.
     (b) Notwithstanding paragraph (a)(C) of
this subsection, a disposition may provide for waiver of the provisions of that
subparagraph if the worker was represented by an attorney at the time the
worker signed the disposition.
     (2) Notwithstanding any other provision of
this chapter, an order approving disposition of a claim pursuant to this
section is not subject to review. However, an order disapproving a disposition
is subject to review pursuant to ORS 656.298. The board shall file with the
Department of Consumer and Business Services a copy of each disposition that
the Administrative Law Judge who mediated the agreement or the board approves.
If the Administrative Law Judge who mediated the agreement or the board does
not approve a disposition, the Administrative Law Judge or the board shall
enter an order setting aside the disposition.
     (3) Unless the terms of the disposition
expressly provide otherwise, no payments, except for medical services, pursuant
to a disposition are payable until the Administrative Law Judge who mediated
the agreement or the board approves the disposition.
     (4) If a worker is represented by an
attorney in the negotiation of a disposition under this section, the insurer or
self-insured employer shall pay to the attorney a fee prescribed by the
Administrative Law Judge who mediated the agreement or the board.
     (5) Except as otherwise provided in this
chapter, none of the cost of workersÂ’ compensation to employers under this
chapter, or in the court review of any claim therefor, shall be charged to a
subject worker.
     (6) Any claim in which the parties enter
into a disposition under this section shall not be eligible for reimbursement
of expenditures authorized by law from the WorkersÂ’ Benefit Fund without the
prior approval of the Director of the Department of Consumer and Business
Services.
     (7) Insurers or self-insured employers who
are parties to an approved claim disposition agreement under this section shall
not be joined as parties in subsequent proceedings under this chapter to
determine responsibility for payment for any matter for which disposition is
made by the agreement. Insurers or self-insured employers may be joined as
parties in subsequent proceedings under this chapter to determine
responsibility for medical services for claim conditions for which disposition
is made by an approved claim disposition agreement, but no order in any
subsequent proceedings may alter the obligations of an insurer or self-insured
employer set forth in an approved claims disposition agreement, except as those
obligations concern medical services.
     (8) No release by a worker or beneficiary
of any rights under this chapter is valid, except pursuant to a claim
disposition agreement under this section or a release pursuant to ORS 656.593.
     (9) Notwithstanding ORS 656.005 (21), as
used in this section, “party” does not include a noncomplying employer. [1965
c.285 §28; 1985 c.212 §5; 1987 c.250 §4; 1990 c.2 §9; 1995 c.332 §24; 1995
c.641 §18; 1997 c.639 §5; 2007 c.17 §2; 2007 c.491 §1]
     656.240
Deduction of benefits from sick leave payments paid to employees. Notwithstanding any other law, an employer,
with the consent of the worker, may deduct from any sick leave payments made to
an individual amounts equal to benefits received by the individual under this
chapter with respect to the same injury that gave rise to the sick leave. However,
the deduction of sick leave shall not exceed an amount determined by taking the
workerÂ’s daily wage for the period less daily time loss benefits received under
this chapter divided by the worker’s daily wage. [1969 c.398 §2; 1983 c.816 §5]
     656.242 [Amended by 1959 c.589 §1; repealed by 1965
c.285 §95]
     656.244 [Amended by 1959 c.378 §1; repealed by 1965
c.285 §95]
     656.245
Medical services to be provided; services by providers not members of managed
care organizations; authorizing temporary disability compensation and making
finding of impairment for disability rating purposes by certain providers;
review of disputed claims for medical services; rules. (1)(a) For every compensable injury, the
insurer or the self-insured employer shall cause to be provided medical
services for conditions caused in material part by the injury for such period
as the nature of the injury or the process of the recovery requires, subject to
the limitations in ORS 656.225, including such medical services as may be
required after a determination of permanent disability. In addition, for
consequential and combined conditions described in ORS 656.005 (7), the insurer
or the self-insured employer shall cause to be provided only those medical
services directed to medical conditions caused in major part by the injury.
     (b) Compensable medical services shall
include medical, surgical, hospital, nursing, ambulances and other related
services, and drugs, medicine, crutches and prosthetic appliances, braces and
supports and where necessary, physical restorative services. A pharmacist or
dispensing physician shall dispense generic drugs to the worker in accordance
with ORS 689.515. The duty to provide such medical services continues for the
life of the worker.
     (c) Notwithstanding any other provision of
this chapter, medical services after the workerÂ’s condition is medically
stationary are not compensable except for the following:
     (A) Services provided to a worker who has
been determined to be permanently and totally disabled.
     (B) Prescription medications.
     (C) Services necessary to administer
prescription medication or monitor the administration of prescription
medication.
     (D) Prosthetic devices, braces and
supports.
     (E) Services necessary to monitor the
status, replacement or repair of prosthetic devices, braces and supports.
     (F) Services provided pursuant to an
accepted claim for aggravation under ORS 656.273.
     (G) Services provided pursuant to an order
issued under ORS 656.278.
     (H) Services that are necessary to
diagnose the workerÂ’s condition.
     (I) Life-preserving modalities similar to
insulin therapy, dialysis and transfusions.
     (J) With the approval of the insurer or
self-insured employer, palliative care that the workerÂ’s attending physician
referred to in ORS 656.005 (12)(b)(A) prescribes and that is necessary to
enable the worker to continue current employment or a vocational training
program. If the insurer or self-insured employer does not approve, the
attending physician or the worker may request approval from the Director of the
Department of Consumer and Business Services for such treatment. The director
may order a medical review by a physician or panel of physicians pursuant to
ORS 656.327 (3) to aid in the review of such treatment. The decision of the
director is subject to review under ORS 656.704.
     (K) With the approval of the director,
curative care arising from a generally recognized, nonexperimental advance in
medical science since the workerÂ’s claim was closed that is highly likely to
improve the workerÂ’s condition and that is otherwise justified by the
circumstances of the claim. The decision of the director is subject to review
under ORS 656.704.
     (L) Curative care provided to a worker to
stabilize a temporary and acute waxing and waning of symptoms of the workerÂ’s
condition.
     (d) When the medically stationary date in
a disabling claim is established by the insurer or self-insured employer and is
not based on the findings of the attending physician, the insurer or
self-insured employer is responsible for reimbursement to affected medical
service providers for otherwise compensable services rendered until the insurer
or self-insured employer provides written notice to the attending physician of
the workerÂ’s medically stationary status.
     (e) Except for services provided under a
managed care contract, out-of-pocket expense reimbursement to receive care from
the attending physician or nurse practitioner authorized to provide compensable
medical services under this section shall not exceed the amount required to
seek care from an appropriate nurse practitioner or attending physician of the
same specialty who is in a medical community geographically closer to the
workerÂ’s home. For the purposes of this paragraph, all physicians and nurse
practitioners within a metropolitan area are considered to be part of the same
medical community.
     (2)(a) The worker may choose an attending
doctor, physician or nurse practitioner within the State of
     (b) A medical service provider who is not
a member of a managed care organization is subject to the following provisions:
     (A) A medical service provider who is not
qualified to be an attending physician may provide compensable medical service
to an injured worker for a period of 30 days from the date of injury or
occupational disease or for 12 visits, whichever first occurs, without the
authorization of an attending physician. Thereafter, medical service provided
to an injured worker without the written authorization of an attending
physician is not compensable.
     (B) A medical service provider who is not
an attending physician cannot authorize the payment of temporary disability
compensation. However, an emergency room physician who is not authorized to
serve as an attending physician under ORS 656.005 (12)(c) may authorize
temporary disability benefits for a maximum of 14 days. A medical service
provider qualified to serve as an attending physician under ORS 656.005
(12)(b)(B) may authorize the payment of temporary disability compensation for a
period not to exceed 30 days from the date of the first visit on the initial
claim.
     (C) Except as otherwise provided in this
chapter, only a physician qualified to serve as an attending physician under
ORS 656.005 (12)(b)(A) who is serving as the attending physician at the time of
claim closure may make findings regarding the workerÂ’s impairment for the
purpose of evaluating the workerÂ’s disability.
     (D) Notwithstanding subparagraphs (A) and
(B) of this paragraph, a nurse practitioner licensed under ORS 678.375 to
678.390:
     (i) May provide compensable medical
services for 90 days from the date of the first visit on the claim;
     (ii) May authorize the payment of
temporary disability benefits for a period not to exceed 60 days from the date
of the first visit on the initial claim; and
     (iii) When an injured worker treating with
a nurse practitioner authorized to provide compensable services under this
section becomes medically stationary within the 90-day period in which the
nurse practitioner is authorized to treat the injured worker, shall refer the
injured worker to a physician qualified to be an attending physician as defined
in ORS 656.005 for the purpose of making findings regarding the workerÂ’s
impairment for the purpose of evaluating the workerÂ’s disability. If a worker
returns to the nurse practitioner after initial claim closure for evaluation of
a possible worsening of the workerÂ’s condition, the nurse practitioner shall
refer the worker to an attending physician and the insurer shall compensate the
nurse practitioner for the examination performed.
     (3) Notwithstanding any other provision of
this chapter, the director, by rule, upon the advice of the committee created
by ORS 656.794 and upon the advice of the professional licensing boards of
practitioners affected by the rule, may exclude from compensability any medical
treatment the director finds to be unscientific, unproven, outmoded or
experimental. The decision of the director is subject to review under ORS
656.704.
     (4) Notwithstanding subsection (2)(a) of
this section, when a self-insured employer or the insurer of an employer
contracts with a managed care organization certified pursuant to ORS 656.260
for medical services required by this chapter to be provided to injured
workers:
     (a) Those workers who are subject to the
contract shall receive medical services in the manner prescribed in the
contract. Workers subject to the contract include those who are receiving
medical treatment for an accepted compensable injury or occupational disease,
regardless of the date of injury or medically stationary status, on or after
the effective date of the contract. If the managed care organization determines
that the change in provider would be medically detrimental to the worker, the
worker shall not become subject to the contract until the worker is found to be
medically stationary, the worker changes physicians or nurse practitioners, or
the managed care organization determines that the change in provider is no
longer medically detrimental, whichever event first occurs. A worker becomes
subject to the contract upon the workerÂ’s receipt of actual notice of the
workerÂ’s enrollment in the managed care organization, or upon the third day
after the notice was sent by regular mail by the insurer or self-insured
employer, whichever event first occurs. A worker shall not be subject to a
contract after it expires or terminates without renewal. A worker may continue
to treat with the attending physician or nurse practitioner authorized to
provide compensable medical services under this section under an expired or
terminated managed care organization contract if the physician or nurse
practitioner agrees to comply with the rules, terms and conditions regarding
services performed under any subsequent managed care organization contract to
which the worker is subject. A worker shall not be subject to a contract if the
workerÂ’s primary residence is more than 100 miles outside the managed care
organizationÂ’s certified geographical area. Each such contract must comply with
the certification standards provided in ORS 656.260. However, a worker may
receive immediate emergency medical treatment that is compensable from a
medical service provider who is not a member of the managed care organization.
Insurers or self-insured employers who contract with a managed care
organization for medical services shall give notice to the workers of eligible
medical service providers and such other information regarding the contract and
manner of receiving medical services as the director may prescribe.
Notwithstanding any provision of law or rule to the contrary, a worker of a
noncomplying employer is considered to be subject to a contract between the
State Accident Insurance Fund Corporation as a processing agent or the assigned
claims agent and a managed care organization.
     (b)(A) For initial or aggravation claims
filed after June 7, 1995, the insurer or self-insured employer may require an
injured worker, on a case-by-case basis, immediately to receive medical
services from the managed care organization.
     (B) If the insurer or self-insured
employer gives notice that the worker is required to receive treatment from the
managed care organization, the insurer or self-insured employer must guarantee
that any reasonable and necessary services so received, that are not otherwise
covered by health insurance, will be paid as provided in ORS 656.248, even if
the claim is denied, until the worker receives actual notice of the denial or
until three days after the denial is mailed, whichever event first occurs. The
worker may elect to receive care from a primary care physician or nurse
practitioner authorized to provide compensable medical services under this
section who agrees to the conditions of ORS 656.260 (4)(g). However, guarantee
of payment is not required by the insurer or self-insured employer if this
election is made.
     (C) If the insurer or self-insured
employer does not give notice that the worker is required to receive treatment
from the managed care organization, the insurer or self-insured employer is
under no obligation to pay for services received by the worker unless the claim
is later accepted.
     (D) If the claim is denied, the worker may
receive medical services after the date of denial from sources other than the
managed care organization until the denial is reversed. Reasonable and
necessary medical services received from sources other than the managed care
organization after the date of claim denial must be paid as provided in ORS
656.248 by the insurer or self-insured employer if the claim is finally
determined to be compensable.
     (5) A nurse practitioner licensed under
ORS 678.375 to 678.390 who is not a member of the managed care organization, is
authorized to provide the same level of services as a primary care physician as
established by ORS 656.260 (4), if at the time the worker is enrolled in the
managed care organization, the nurse practitioner maintains the workerÂ’s
medical records and with whom the worker has a documented history of treatment,
if that nurse practitioner agrees to refer the worker to the managed care
organization for any specialized treatment, including physical therapy, to be
furnished by another provider that the worker may require and if that nurse
practitioner agrees to comply with all the rules, terms and conditions
regarding services performed by the managed care organization.
     (6) Subject to the provisions of ORS
656.704, if a claim for medical services is disapproved, the injured worker,
insurer or self-insured employer may request administrative review by the
director pursuant to ORS 656.260 or 656.327. [1965 c.285 §23; 1979 c.839 §32;
1981 c.535 §31; 1981 c.854 §14; 1985 c.739 §4; 1987 c.884 §24; 1990 c.2 §10;
1995 c.332 §25; amendments by 1995 c.332 §25a repealed by 1999 c.6 §1; 1999 c.6
§10; 1999 c.582 §12; 1999 c.868 §1; 1999 c.926 §1; 2003 c.811 §§3,4; 2005 c.26 §§3,4;
2007 c.252 §§3,4; 2007 c.270 §§2,3; 2007 c.365 §2a; 2007 c.505 §§3,4]
     Note: See notes under 656.202.
     656.246 [Repealed by 1965 c.285 §95]
     656.247
Payment for medical services prior to claim acceptance or denial; review of
disputed services; duty of health benefit plan to pay for certain medical
services in denied claim.
(1) Except for medical services provided to workers subject to ORS 656.245
(4)(b)(B), payment for medical services provided to a subject worker in
response to an initial claim for a work-related injury or occupational disease
from the date of the employerÂ’s notice or knowledge of the claim until the date
the claim is accepted or denied shall be payable in accordance with subsection
(4) of this section if the expenses are for:
     (a) Diagnostic services required to
identify appropriate treatment or to prevent disability;
     (b) Medication required to alleviate pain;
or
     (c) Services required to stabilize the
workerÂ’s claimed condition and to prevent further disability.
     (2) Notwithstanding subsection (1) of this
section, no payment shall be due from the insurer or self-insured employer if
the insurer or self-insured employer denies the claim within 14 days of the
date of the employerÂ’s notice or knowledge of the claim.
     (3)(a) Disputes about whether the medical
services provided to treat the claimed work-related injury or occupational
disease under subsection (1) of this section are excessive, inappropriate or
ineffectual or are consistent with the criteria in subsection (1) of this
section shall be resolved by the Director of the Department of Consumer and
Business Services. The director may order a medical review by a physician or
panel of physicians pursuant to ORS 656.327 (3) to aid in the review of such
services. If a party is dissatisfied with the order of the director, the
dissatisfied party may request review under ORS 656.704 within 60 days of the
date of the directorÂ’s order. The order of the director may be modified only if
it is not supported by substantial evidence in the record or if it reflects an
error of law.
     (b) Disputes about the amount of the fee
or nonpayment of bills for medical treatment and services pursuant to this
section shall be resolved pursuant to ORS 656.248.
     (c) Except as provided in subsection (2)
of this section, when a claim is settled pursuant to ORS 656.289 (4), all
medical services payable under subsection (1) of this section that are provided
on or before the date of denial shall be paid in accordance with subsection (4)
of this section. The insurer or self-insured employer shall notify each
affected service provider of the results of the settlement.
     (4)(a) If the claim in which medical
services are provided under subsection (1) of this section is accepted, the
insurer or self-insured employer shall make payment for such medical services
subject to the limitations and conditions of this chapter.
     (b) If the claim in which medical services
are provided under subsection (1) of this section is denied and a health
benefit plan provides benefits to the worker, the health benefit plan shall be
the first payer of the expenses for medical services according to the terms, conditions
and benefits of the plan. Except as provided by subsection (2) of this section,
after payment by the health benefit plan, the workersÂ’ compensation insurer or
self-insured employer shall pay any balance remaining for such services subject
to the limitations and conditions of this chapter.
     (c) As used in this subsection, “health
benefit plan” has the meaning given that term in ORS 743.730.
     (5) An insurer or self-insured employer
may recover expenses for medical services paid under subsection (1) of this
section as an overpayment as provided by ORS 656.268 (13)(a). [2001 c.865 §14;
2005 c.26 §5]
     Note: See notes under 656.202.
     656.248
Medical service fee schedules; basis of fees; application to service provided
by managed care organization; resolution of fee disputes; rules. (1) The Director of the Department of
Consumer and Business Services, in compliance with ORS 656.794 and ORS chapter
183, shall promulgate rules for developing and publishing fee schedules for
medical services provided under this chapter. These schedules shall represent
the reimbursement generally received for the services provided. Where
applicable, and to the extent the director determines practicable, these fee
schedules shall be based upon any one or all of the following:
     (a) The current procedural codes and
relative value units of the Department of Health and Human Services Medicare
Fee Schedules for all medical service provider services included therein;
     (b) The average rates of fee schedules of
the
     (c) A reasonable rate of markup for the
sale of medical devices or other medical services;
     (d) A commonly used and accepted medical
service fee schedule; or
     (e) The actual cost of providing medical
services.
     (2) Medical fees equal to or less than the
fee schedules published under this section shall be paid when the vendor
submits a billing for medical services. In no event shall that portion of a
medical fee be paid that exceeds the schedules.
     (3) In no event shall a provider charge
more than the provider charges to the general public.
     (4) If no fee has been established for a
given service or procedure the director may, in compliance with ORS 656.794 and
ORS chapter 183, promulgate a reasonable rate, which shall be the same within
any given area for all primary health care providers to be paid for that
service or procedure.
     (5) At the request of the director and in
the method and manner prescribed by rule, all providers of health insurance, as
defined by ORS 731.162, shall cooperate and consult with the director in
providing information reasonably necessary and available to develop the fee
schedules prescribed under subsection (1) of this section. A provider shall not
be required to provide information or data that the provider deems proprietary
or confidential. However, the information provided shall be considered
proprietary and shall not be released by the director. The director shall not
require such information from a health insurance provider more than once per
year and shall reimburse the providerÂ’s costs for providing the required
information.
     (6) Notwithstanding subsection (1) or (2)
of this section, such rates or fees provided in subsections (1) and (2) of this
section shall be adequate to insure at all times to the injured workers the
standard of services and care intended by this chapter.
     (7) The director shall update the schedule
required by subsection (1) of this section annually. As appropriate and
applicable, the update shall be based upon:
     (a) A statistically valid survey by the
director of medical service fees or markups;
     (b) That information provided to the
director by any person or state agency having access to medical service fee
information;
     (c) That information provided to the
director pursuant to subsection (5) of this section; or
     (d) The annual percentage increase or
decrease in the physicianÂ’s services component of the national Consumer Price
Index published by the Bureau of Labor Statistics of the United States
Department of Labor.
     (8) The director is prohibited from
adopting or administering rules which treat manipulation, when performed by an
osteopathic physician, as anything other than a separate therapeutic procedure
which is paid in addition to other services or office visits.
     (9) The director may, by rule, establish a
fee schedule for reimbursement for specific hospital services based upon the
actual cost of providing the services.
     (10) A medical service provider is not
authorized to charge a fee for preparing or submitting a medical report form
required by the director under this chapter.
     (11) Notwithstanding any other provision
of this section, fee schedules for medical services and hospital services shall
apply to those services performed by a managed care organization certified
pursuant to ORS 656.260, unless otherwise provided in the managed care
contract.
     (12) When a dispute exists between an
injured worker, insurer or self-insured employer and a medical service provider
regarding either the amount of the fee or nonpayment of bills for compensable medical
services, notwithstanding any other provision of this chapter, the injured
worker, insurer, self-insured employer or medical service provider shall
request administrative review by the director. The decision of the director is
subject to review under ORS 656.704.
     (13) The director may exclude hospitals
defined in ORS 442.470 from imposition of a fee schedule authorized by this
section upon a determination of economic necessity. [Amended by 1965 c.285 §26;
1969 c.611 §1; 1971 c.329 §1; 1981 c.535 §5; 1983 c.816 §6; 1985 c.107 §1; 1985
c.739 §5; 1987 c.884 §42; 1990 c.2 §14; 1995 c.332 §26; 1999 c.233 §1; 2005
c.26 §6]
     Note: See notes under 656.202.
     656.250
Limitation on compensability of physical therapist services. A physical therapist shall not provide
compensable services to injured workers governed by this chapter except as
allowed by a governing managed care organization contract or as authorized by
the workerÂ’s attending physician or nurse practitioner authorized to provide
compensable medical services under ORS 656.245. [1993 c.211 §6; 2003 c.811 §§5,6;
2007 c.365 §3]
     656.252
Medical report regulation; rules; duties of attending physician or nurse
practitioner; disclosure of information; notice of changing attending physician
or nurse practitioner; copies of medical service billings to be furnished to
worker. (1) In order to
ensure the prompt and correct reporting and payment of compensation in
compensable injuries, the Director of the Department of Consumer and Business
Services shall make rules governing audits of medical service bills and reports
by attending and consulting physicians and other personnel of all medical
information relevant to the determination of a claim to the injured workerÂ’s
representative, the workerÂ’s employer, the employerÂ’s insurer and the
Department of Consumer and Business Services. Such rules shall include, but not
necessarily be limited to:
     (a) Requiring attending physicians and
nurse practitioners authorized to provide compensable medical services under
ORS 656.245 to make the insurer or self-insured employer a first report of
injury within 72 hours after the first service rendered.
     (b) Requiring attending physicians and
nurse practitioners authorized to provide compensable medical services under
ORS 656.245 to submit follow-up reports within specified time limits or upon
the request of an interested party.
     (c) Requiring examining physicians and
nurse practitioners authorized to provide compensable medical services under
ORS 656.245 to submit their reports, and to whom, within a specified time.
     (d) Such other reporting requirements as
the director may deem necessary to insure that payments of compensation be
prompt and that all interested parties be given information necessary to the
prompt determination of claims.
     (e) Requiring insurers and self-insured
employers to audit billings for all medical services, including hospital
services.
     (2) The attending physician or nurse
practitioner authorized to provide compensable medical services under ORS
656.245 shall do the following:
     (a) Cooperate with the insurer or
self-insured employer to expedite diagnostic and treatment procedures and with
efforts to return injured workers to appropriate work.
     (b) Advise the insurer or self-insured
employer of the anticipated date for release of the injured worker to return to
employment, the anticipated date that the worker will be medically stationary,
and the next appointment date. Except when the attending physician or nurse
practitioner authorized to provide compensable medical services under ORS
656.245 has previously indicated that temporary disability will not exceed 14
days, the insurer or self-insured employer may request a medical report every
15 days, and the attending physician or nurse practitioner shall forward such
reports.
     (c) Advise the insurer or self-insured
employer within five days of the date the injured worker is released to return
to work. Under no circumstances shall the physician or nurse practitioner
authorized to provide compensable medical services under ORS 656.245 notify the
insurer or employer of the workerÂ’s release to return to work without notifying
the worker at the same time.
     (d) After a claim has been closed, advise
the insurer or self-insured employer within five days after the treatment is resumed
or the reopening of a claim is recommended. The attending physician under this
paragraph need not be the same attending physician who released the worker when
the claim was closed.
     (3) In promulgating the rules regarding
medical reporting the director may consult and confer with physicians and
members of medical associations and societies.
     (4) No person who reports medical
information to a person referred to in subsection (1) of this section, in
accordance with department rules, shall incur any legal liability for the
disclosure of such information.
     (5) Whenever an injured worker changes
attending physicians or nurse practitioners authorized to provide compensable
medical services under ORS 656.245, the newly selected attending physician or
nurse practitioner shall so notify the responsible insurer or self-insured
employer not later than five days after the date of the change or the date of
first treatment. Every attending physician or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 who refers a worker to a
consulting physician promptly shall notify the responsible insurer or
self-insured employer of the referral.
     (6) A provider of medical services,
including hospital services, that submits a billing to the insurer or
self-insured employer shall also submit a copy of the billing to the worker for
whom the service was performed after receipt from the injured worker of a
written request for such a copy. [1967 c.626 §§2,5; 1979 c.839 §3; 1981 c.535 §6;
1981 c.874 §17; 1987 c.884 §3; 1995 c.332 §26a; 2001 c.865 §14a; 2003 c.811 §§7,8;
2007 c.365 §4]
     656.254
Medical report forms; sanctions; procedure for declaring health care
practitioner ineligible for workersÂ’ compensation reimbursement. (1) The Director of the Department of
Consumer and Business Services shall establish medical report forms, in
duplicate snap-outs where applicable, to be used by insurers, self-insured
employers and physicians, including in such forms information necessary to
establish facts required in the determination of the claim.
     (2) The director shall establish sanctions
for the enforcement of medical reporting requirements. Such sanctions may
include, but are not limited to, forfeiture of fees and penalty not to exceed
$1,000 for each occurrence.
     (3) If the director finds that a health
care practitioner has:
     (a) Been found, pursuant to ORS 656.327,
to have failed to comply with rules adopted pursuant to this chapter regarding
the performance of medical services for injured workers or to have provided
medical treatment that is excessive, inappropriate or ineffectual, the director
may impose a sanction that includes forfeiture of fees and a penalty not to
exceed $1,000 for each occurrence. If the failure to comply or perform is
repeated and willful, the director may declare the health care practitioner
ineligible for reimbursement for treating workersÂ’ compensation claimants for a
period not to exceed three years.
     (b) Had the health care practitioner’s
license revoked or suspended by the practitionerÂ’s professional licensing board
for a violation of that professionÂ’s ethical standards, the director may
declare the health care practitioner ineligible for reimbursement for treating
workersÂ’ compensation claimants for a period not to exceed three years or the
period the practitionerÂ’s license is suspended or revoked, whichever period is
the longer.
     (c) Engaged in any course of conduct
demonstrated to be dangerous to the health or safety of a workersÂ’ compensation
claimant, the director may impose a sanction that includes forfeiture of fees
and a penalty not to exceed $1,000 for each occurrence. If the conduct is
repeated and willful, the director may declare the health care practitioner
ineligible for reimbursement for treating workersÂ’ compensation claimants for a
period not to exceed three years.
     (4) Any declaration that a health care
practitioner is ineligible to receive reimbursement under this chapter shall
not otherwise interfere with or impair treatment of any person by the health
care practitioner.
     (5) ORS 656.735 (4) to (6) and 656.740
also apply to orders and penalties assessed under this section. [1967 c.626 §§3,4;
1975 c.556 §40; 1979 c.839 §30; 1981 c.854 §15; 1987 c.233 §1; 1987 c.884 §27;
1995 c.94 §2; 1997 c.249 §200; 2003 c.170 §12; 2005 c.26 §7]
     656.256
Considerations for rules regarding certain rural hospitals. Whenever the WorkersÂ’ Compensation Division
of the Department of Consumer and Business Services adopts any rule affecting a
type A or B rural hospital, the division shall take into consideration the risk
assessment formula set forth in ORS 442.520 (2). [1991 c.947 §19]
     656.258
Vocational assistance service payments. The insurer or self-insured employer shall pay a vocational assistance
provider for all vocational assistance services, including the cost of an
evaluation to determine whether a worker is eligible for vocational assistance,
that are performed at the request of the insurer or self-insured employer.
Within 60 days after receiving a billing, the insurer or self-insured employer
shall pay for all vocational assistance services performed, including those
services performed in good faith without knowledge that the workerÂ’s
eligibility to receive vocational assistance has been terminated or that the
worker has withdrawn or is otherwise ineligible for vocational assistance. [1985
c.600 §18]
     656.260
Certification procedure for managed health care provider; peer review, quality
assurance, service utilization and contract review; confidentiality of certain
information; immunity from liability; rules; medical service dispute
resolution. (1) Any health
care provider or group of medical service providers may make written
application to the Director of the Department of Consumer and Business Services
to become certified to provide managed care to injured workers for injuries and
diseases compensable under this chapter. However, nothing in this section
authorizes an organization that is formed, owned or operated by an insurer or
employer other than a health care provider to become certified to provide
managed care.
     (2) Each application for certification
shall be accompanied by a reasonable fee prescribed by the director. A
certificate is valid for such period as the director may prescribe unless
sooner revoked or suspended.
     (3) Application for certification shall be
made in such form and manner and shall set forth such information regarding the
proposed plan for providing services as the director may prescribe. The
information shall include, but not be limited to:
     (a) A list of the names of all individuals
who will provide services under the managed care plan, together with
appropriate evidence of compliance with any licensing or certification
requirements for that individual to practice in this state.
     (b) A description of the times, places and
manner of providing services under the plan.
     (c) A description of the times, places and
manner of providing other related optional services the applicants wish to
provide.
     (d) Satisfactory evidence of ability to
comply with any financial requirements to insure delivery of service in
accordance with the plan which the director may prescribe.
     (4) The director shall certify a health
care provider or group of medical service providers to provide managed care
under a plan if the director finds that the plan:
     (a) Proposes to provide medical and health
care services required by this chapter in a manner that:
     (A) Meets quality, continuity and other
treatment standards adopted by the health care provider or group of medical
service providers in accordance with processes approved by the director; and
     (B) Is timely, effective and convenient
for the worker.
     (b) Subject to any other provision of law,
does not discriminate against or exclude from participation in the plan any
category of medical service providers and includes an adequate number of each
category of medical service providers to give workers adequate flexibility to
choose medical service providers from among those individuals who provide
services under the plan. However, nothing in the requirements of this paragraph
shall affect the provisions of ORS 441.055 relating to the granting of medical
staff privileges.
     (c) Provides appropriate financial
incentives to reduce service costs and utilization without sacrificing the
quality of service.
     (d) Provides adequate methods of peer
review, service utilization review, quality assurance, contract review and
dispute resolution to ensure appropriate treatment or to prevent inappropriate
or excessive treatment, to exclude from participation in the plan those
individuals who violate these treatment standards and to provide for the
resolution of such medical disputes as the director considers appropriate. A
majority of the members of each peer review, quality assurance, service
utilization and contract review committee shall be physicians licensed to
practice medicine by the Oregon Medical Board. As used in this paragraph:
     (A) “Peer review” means evaluation or
review of the performance of colleagues by a panel with similar types and
degrees of expertise. Peer review requires participation of at least three
physicians prior to final determination.
     (B) “Service utilization review” means
evaluation and determination of the reasonableness, necessity and
appropriateness of a workerÂ’s use of medical care resources and the provision
of any needed assistance to clinician or member, or both, to ensure appropriate
use of resources. “Service utilization review” includes prior authorization,
concurrent review, retrospective review, discharge planning and case management
activities.
     (C) “Quality assurance” means activities
to safeguard or improve the quality of medical care by assessing the quality of
care or service and taking action to improve it.
     (D) “Dispute resolution” includes the
resolution of disputes arising under peer review, service utilization review
and quality assurance activities between insurers, self-insured employers,
workers and medical and health care service providers, as required under the
certified plan.
     (E) “Contract review” means the methods
and processes whereby the managed care organization monitors and enforces its
contracts with participating providers for matters other than matters
enumerated in subparagraphs (A), (B) and (C) of this paragraph.
     (e) Provides a program involving cooperative
efforts by the workers, the employer and the managed care organizations to
promote workplace health and safety consultative and other services and early
return to work for injured workers.
     (f) Provides a timely and accurate method
of reporting to the director necessary information regarding medical and health
care service cost and utilization to enable the director to determine the
effectiveness of the plan.
     (g) Authorizes workers to receive
compensable medical treatment from a primary care physician who is not a member
of the managed care organization, but who maintains the workerÂ’s medical
records and with whom the worker has a documented history of treatment, if that
primary care physician agrees to refer the worker to the managed care organization
for any specialized treatment, including physical therapy, to be furnished by
another provider that the worker may require and if that primary care physician
agrees to comply with all the rules, terms and conditions regarding services
performed by the managed care organization. Nothing in this paragraph is
intended to limit the workerÂ’s right to change primary care physicians prior to
the filing of a workers’ compensation claim. As used in this paragraph, “primary
care physician” means a physician who is qualified to be an attending physician
referred to in ORS 656.005 (12)(b)(A) and who is a family practitioner, a
general practitioner or an internal medicine practitioner.
     (h) Provides a written explanation for
denial of participation in the managed care organization plan to any licensed
health care provider that has been denied participation in the managed care
organization plan.
     (i) Does not prohibit the injured worker’s
attending physician from advocating for medical services and temporary disability
benefits for the injured worker that are supported by the medical record.
     (j) Complies with any other requirement
the director determines is necessary to provide quality medical services and
health care to injured workers.
     (5) The director shall refuse to certify
or may revoke or suspend the certification of any health care provider or group
of medical service providers to provide managed care if the director finds
that:
     (a) The plan for providing medical or
health care services fails to meet the requirements of this section.
     (b) Service under the plan is not being
provided in accordance with the terms of a certified plan.
     (6) Any issue concerning the provision of
medical services to injured workers subject to a managed care contract and
service utilization review, quality assurance, dispute resolution, contract
review and peer review activities as well as authorization of medical services
to be provided by other than an attending physician pursuant to ORS 656.245
(2)(b) shall be subject to review by the director or the directorÂ’s designated
representatives. The decision of the director is subject to review under ORS
656.704. Data generated by or received in connection with these activities,
including written reports, notes or records of any such activities, or of any
review thereof, shall be confidential, and shall not be disclosed except as
considered necessary by the director in the administration of this chapter. The
director may report professional misconduct to an appropriate licensing board.
     (7) No data generated by service
utilization review, quality assurance, dispute resolution or peer review
activities and no physician profiles or data used to create physician profiles
pursuant to this section or a review thereof shall be used in any action, suit
or proceeding except to the extent considered necessary by the director in the
administration of this chapter. The confidentiality provisions of this section
shall not apply in any action, suit or proceeding arising out of or related to
a contract between a managed care organization and a health care provider whose
confidentiality is protected by this section.
     (8) A person participating in service
utilization review, quality assurance, dispute resolution or peer review
activities pursuant to this section shall not be examined as to any
communication made in the course of such activities or the findings thereof,
nor shall any person be subject to an action for civil damages for affirmative
actions taken or statements made in good faith.
     (9) No person who participates in forming
consortiums, collectively negotiating fees or otherwise solicits or enters into
contracts in a good faith effort to provide medical or health care services
according to the provisions of this section shall be examined or subject to
administrative or civil liability regarding any such participation except
pursuant to the directorÂ’s active supervision of such activities and the
managed care organization. Before engaging in such activities, the person shall
provide notice of intent to the director in a form prescribed by the director.
     (10) The provisions of this section shall
not affect the confidentiality or admission in evidence of a claimantÂ’s medical
treatment records.
     (11) In consultation with the committees
referred to in ORS 656.790 and 656.794, the director shall adopt such rules as
may be necessary to carry out the provisions of this section.
     (12) As used in this section, ORS 656.245,
656.248 and 656.327, “medical service provider” means a person duly licensed to
practice one or more of the healing arts in any country or in any state or
territory or possession of the
     (13) Notwithstanding ORS 656.005 (12) or
subsection (4)(b) of this section, a managed care organization contract may
designate any medical service provider or category of providers as attending
physicians.
     (14) If a worker, insurer, self-insured
employer or the attending physician is dissatisfied with an action of the
managed care organization regarding the provision of medical services pursuant
to this chapter, peer review, service utilization review or quality assurance
activities, that person or entity must first apply to the director for
administrative review of the matter before requesting a hearing. Such
application must be made not later than the 60th day after the date the managed
care organization has completed and issued its final decision.
     (15) Upon a request for administrative
review, the director shall create a documentary record sufficient for judicial
review. The director shall complete administrative review and issue a proposed
order within a reasonable time. The proposed order of the director issued
pursuant to this section shall become final and not subject to further review
unless a written request for a hearing is filed with the director within 30
days of the mailing of the order to all parties.
     (16) At the contested case hearing, the
order may be modified only if it is not supported by substantial evidence in
the record or reflects an error of law. No new medical evidence or issues shall
be admitted. The dispute may also be remanded to the managed care organization
for further evidence taking, correction or other necessary action if the
Administrative Law Judge or director determines the record has been improperly,
incompletely or otherwise insufficiently developed. Decisions by the director
regarding medical disputes are subject to review under ORS 656.704.
     (17) Any person who is dissatisfied with
an action of a managed care organization other than regarding the provision of
medical services pursuant to this chapter, peer review, service utilization
review or quality assurance activities may request review under ORS 656.704.
     (18) Notwithstanding any other provision
of law, original jurisdiction over contract review disputes is with the
director. The director may resolve the matter by issuing an order subject to
review under ORS 656.704, or the director may determine that the matter in
dispute would be best addressed in another forum and so inform the parties.
     (19) The director shall conduct such
investigations, audits and other administrative oversight in regard to managed
care as the director deems necessary to carry out the purposes of this chapter.
[1990 c.2 §12; 1995 c.332 §27; amendments by 1995 c.332 §27a repealed by 1999
c.6 §1; 1997 c.639 §§1,2; 2005 c.26 §8; 2005 c.364 §1; 2007 c.423 §1]
     Note: See notes under 656.202.
PROCEDURE FOR
OBTAINING COMPENSATION
     656.262
Processing of claims and payment of compensation; payment by employer;
acceptance and denial of claim; penalty for unreasonable payment delay;
cooperation by worker and attorney in claim investigation; rules. (1) Processing of claims and providing
compensation for a worker shall be the responsibility of the insurer or
self-insured employer. All employers shall assist their insurers in processing
claims as required in this chapter.
     (2) The compensation due under this
chapter shall be paid periodically, promptly and directly to the person
entitled thereto upon the employerÂ’s receiving notice or knowledge of a claim,
except where the right to compensation is denied by the insurer or self-insured
employer.
     (3)(a) Employers shall, immediately and
not later than five days after notice or knowledge of any claims or accidents
which may result in a compensable injury claim, report the same to their
insurer. The report shall include:
     (A) The date, time, cause and nature of
the accident and injuries.
     (B) Whether the accident arose out of and
in the course of employment.
     (C) Whether the employer recommends or
opposes acceptance of the claim, and the reasons therefor.
     (D) The name and address of any health
insurance provider for the injured worker.
     (E) Any other details the insurer may
require.
     (b) Failure to so report subjects the
offending employer to a charge for reimbursing the insurer for any penalty the
insurer is required to pay under subsection (11) of this section because of
such failure. As used in this subsection, “health insurance” has the meaning
for that term provided in ORS 731.162.
     (4)(a) The first installment of temporary
disability compensation shall be paid no later than the 14th day after the
subject employer has notice or knowledge of the claim, if the attending
physician or nurse practitioner authorized to provide compensable medical
services under ORS 656.245 authorizes the payment of temporary disability
compensation. Thereafter, temporary disability compensation shall be paid at
least once each two weeks, except where the Director of the Department of
Consumer and Business Services determines that payment in installments should
be made at some other interval. The director may by rule convert monthly
benefit schedules to weekly or other periodic schedules.
     (b) Notwithstanding any other provision of
this chapter, if a self-insured employer pays to an injured worker who becomes
disabled the same wage at the same pay interval that the worker received at the
time of injury, such payment shall be deemed timely payment of temporary
disability payments pursuant to ORS 656.210 and 656.212 during the time the
wage payments are made.
     (c) Notwithstanding any other provision of
this chapter, when the holder of a public office is injured in the course and
scope of that public office, full official salary paid to the holder of that
public office shall be deemed timely payment of temporary disability payments
pursuant to ORS 656.210 and 656.212 during the time the wage payments are made.
As used in this subsection, “public office” has the meaning for that term
provided in ORS 260.005.
     (d) Temporary disability compensation is
not due and payable for any period of time for which the insurer or
self-insured employer has requested from the workerÂ’s attending physician or
nurse practitioner authorized to provide compensable medical services under ORS
656.245 verification of the workerÂ’s inability to work resulting from the
claimed injury or disease and the physician or nurse practitioner cannot verify
the workerÂ’s inability to work, unless the worker has been unable to receive
treatment for reasons beyond the workerÂ’s control.
     (e) If a worker fails to appear at an
appointment with the workerÂ’s attending physician or nurse practitioner
authorized to provide compensable medical services under ORS 656.245, the
insurer or self-insured employer shall notify the worker by certified mail that
temporary disability benefits may be suspended after the worker fails to appear
at a rescheduled appointment. If the worker fails to appear at a rescheduled
appointment, the insurer or self-insured employer may suspend payment of temporary
disability benefits to the worker until the worker appears at a subsequent
rescheduled appointment.
     (f) If the insurer or self-insured
employer has requested and failed to receive from the workerÂ’s attending
physician or nurse practitioner authorized to provide compensable medical
services under ORS 656.245 verification of the workerÂ’s inability to work
resulting from the claimed injury or disease, medical services provided by the
attending physician or nurse practitioner are not compensable until the attending
physician or nurse practitioner submits such verification.
     (g) Temporary disability compensation is
not due and payable pursuant to ORS 656.268 after the workerÂ’s attending
physician or nurse practitioner authorized to provide compensable medical
services under ORS 656.245 ceases to authorize temporary disability or for any
period of time not authorized by the attending physician or nurse practitioner.
No authorization of temporary disability compensation by the attending
physician or nurse practitioner under ORS 656.268 shall be effective to
retroactively authorize the payment of temporary disability more than 14 days
prior to its issuance.
     (h) The worker’s disability may be
authorized only by a person described in ORS 656.005 (12)(b)(B) or 656.245 for
the period of time permitted by those sections. The insurer or self-insured
employer may unilaterally suspend payment of temporary disability benefits to
the worker at the expiration of the period until temporary disability is
reauthorized by an attending physician or nurse practitioner authorized to
provide compensable medical services under ORS 656.245.
     (i) The insurer or self-insured employer
may unilaterally suspend payment of all compensation to a worker enrolled in a
managed care organization if the worker continues to seek care from an
attending physician or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 that is not authorized by the managed care
organization more than seven days after the mailing of notice by the insurer or
self-insured employer.
     (5)(a) Payment of compensation under
subsection (4) of this section or payment, in amounts per claim not to exceed
the maximum amount established annually by the Director of the Department of
Consumer and Business Services, for medical services for nondisabling claims,
may be made by the subject employer if the employer so chooses. The making of
such payments does not constitute a waiver or transfer of the insurerÂ’s duty to
determine entitlement to benefits. If the employer chooses to make such
payment, the employer shall report the injury to the insurer in the same manner
that other injuries are reported. However, an insurer shall not modify an
employerÂ’s experience rating or otherwise make charges against the employer for
any medical expenses paid by the employer pursuant to this subsection.
     (b) To establish the maximum amount an
employer may pay for medical services for nondisabling claims under paragraph
(a) of this subsection, the director shall use $1,500 as the base compensation
amount and shall adjust the base compensation amount annually to reflect
changes in the United States City Average Consumer Price Index for All Urban
Consumers for Medical Care for July of each year as published by the Bureau of Labor
Statistics of the United States Department of Labor. The adjustment shall be
rounded to the nearest multiple of $100.
     (c) The adjusted amount established under
paragraph (b) of this subsection shall be effective on January 1 following the
establishment of the amount and shall apply to claims with a date of injury on
or after the effective date of the adjusted amount.
     (6)(a) Written notice of acceptance or
denial of the claim shall be furnished to the claimant by the insurer or
self-insured employer within 60 days after the employer has notice or knowledge
of the claim. Once the claim is accepted, the insurer or self-insured employer
shall not revoke acceptance except as provided in this section. The insurer or
self-insured employer may revoke acceptance and issue a denial at any time when
the denial is for fraud, misrepresentation or other illegal activity by the
worker. If the worker requests a hearing on any revocation of acceptance and
denial alleging fraud, misrepresentation or other illegal activity, the insurer
or self-insured employer has the burden of proving, by a preponderance of the
evidence, such fraud, misrepresentation or other illegal activity. Upon such
proof, the worker then has the burden of proving, by a preponderance of the
evidence, the compensability of the claim. If the insurer or self-insured
employer accepts a claim in good faith, in a case not involving fraud,
misrepresentation or other illegal activity by the worker, and later obtains
evidence that the claim is not compensable or evidence that the insurer or
self-insured employer is not responsible for the claim, the insurer or
self-insured employer may revoke the claim acceptance and issue a formal notice
of claim denial, if such revocation of acceptance and denial is issued no later
than two years after the date of the initial acceptance. If the worker requests
a hearing on such revocation of acceptance and denial, the insurer or
self-insured employer must prove, by a preponderance of the evidence, that the
claim is not compensable or that the insurer or self-insured employer is not
responsible for the claim. Notwithstanding any other provision of this chapter,
if a denial of a previously accepted claim is set aside by an Administrative
Law Judge, the WorkersÂ’ Compensation Board or the court, temporary total
disability benefits are payable from the date any such benefits were terminated
under the denial. Except as provided in ORS 656.247, pending acceptance or
denial of a claim, compensation payable to a claimant does not include the
costs of medical benefits or burial expenses. The insurer shall also furnish
the employer a copy of the notice of acceptance.
     (b) The notice of acceptance shall:
     (A) Specify what conditions are
compensable.
     (B) Advise the claimant whether the claim is
considered disabling or nondisabling.
     (C) Inform the claimant of the Expedited
Claim Service and of the hearing and aggravation rights concerning nondisabling
injuries, including the right to object to a decision that the injury of the
claimant is nondisabling by requesting reclassification pursuant to ORS
656.277.
     (D) Inform the claimant of employment
reinstatement rights and responsibilities under ORS chapter 659A.
     (E) Inform the claimant of assistance
available to employers and workers from the Reemployment Assistance Program
under ORS 656.622.
     (F) Be modified by the insurer or
self-insured employer from time to time as medical or other information changes
a previously issued notice of acceptance.
     (c) An insurer’s or self-insured employer’s
acceptance of a combined or consequential condition under ORS 656.005 (7),
whether voluntary or as a result of a judgment or order, shall not preclude the
insurer or self-insured employer from later denying the combined or
consequential condition if the otherwise compensable injury ceases to be the
major contributing cause of the combined or consequential condition.
     (d) An injured worker who believes that a
condition has been incorrectly omitted from a notice of acceptance, or that the
notice is otherwise deficient, first must communicate in writing to the insurer
or self-insured employer the workerÂ’s objections to the notice pursuant to ORS
656.267. The insurer or self-insured employer has 60 days from receipt of the
communication from the worker to revise the notice or to make other written
clarification in response. A worker who fails to comply with the communication
requirements of this paragraph or ORS 656.267 may not allege at any hearing or
other proceeding on the claim a de facto denial of a condition based on
information in the notice of acceptance from the insurer or self-insured
employer. Notwithstanding any other provision of this chapter, the worker may
initiate objection to the notice of acceptance at any time.
     (7)(a) After claim acceptance, written notice
of acceptance or denial of claims for aggravation or new medical or omitted
condition claims properly initiated pursuant to ORS 656.267 shall be furnished
to the claimant by the insurer or self-insured employer within 60 days after
the insurer or self-insured employer receives written notice of such claims. A
worker who fails to comply with the communication requirements of subsection
(6) of this section or ORS 656.267 may not allege at any hearing or other
proceeding on the claim a de facto denial of a condition based on information
in the notice of acceptance from the insurer or self-insured employer.
     (b) Once a worker’s claim has been
accepted, the insurer or self-insured employer must issue a written denial to
the worker when the accepted injury is no longer the major contributing cause
of the workerÂ’s combined condition before the claim may be closed.
     (c) When an insurer or self-insured
employer determines that the claim qualifies for claim closure, the insurer or
self-insured employer shall issue at claim closure an updated notice of
acceptance that specifies which conditions are compensable. The procedures
specified in subsection (6)(d) of this section apply to this notice. Any
objection to the updated notice or appeal of denied conditions shall not delay
claim closure pursuant to ORS 656.268. If a condition is found compensable
after claim closure, the insurer or self-insured employer shall reopen the
claim for processing regarding that condition.
     (8) The assigned claims agent in
processing claims under ORS 656.054 shall send notice of acceptance or denial
to the noncomplying employer.
     (9) If an insurer or any other duly
authorized agent of the employer for such purpose, on record with the Director
of the Department of Consumer and Business Services denies a claim for
compensation, written notice of such denial, stating the reason for the denial,
and informing the worker of the Expedited Claim Service and of hearing rights
under ORS 656.283, shall be given to the claimant. A copy of the notice of
denial shall be mailed to the director and to the employer by the insurer. The
worker may request a hearing pursuant to ORS 656.319.
     (10) Merely paying or providing
compensation shall not be considered acceptance of a claim or an admission of
liability, nor shall mere acceptance of such compensation be considered a
waiver of the right to question the amount thereof. Payment of permanent
disability benefits pursuant to a notice of closure, reconsideration order or
litigation order, or the failure to appeal or seek review of such an order or
notice of closure, shall not preclude an insurer or self-insured employer from
subsequently contesting the compensability of the condition rated therein,
unless the condition has been formally accepted.
     (11)(a) If the insurer or self-insured
employer unreasonably delays or unreasonably refuses to pay compensation, or
unreasonably delays acceptance or denial of a claim, the insurer or
self-insured employer shall be liable for an additional amount up to 25 percent
of the amounts then due plus any attorney fees assessed under this section. The
fees assessed by the director, an Administrative Law Judge, the board or the
court under this section shall be proportionate to the benefit to the injured
worker. The board shall adopt rules for establishing the amount of the attorney
fee, giving primary consideration to the results achieved and to the time
devoted to the case. An attorney fee awarded pursuant to this subsection may
not exceed $2,000 absent a showing of extraordinary circumstances.
Notwithstanding any other provision of this chapter, the director shall have
exclusive jurisdiction over proceedings regarding solely the assessment and
payment of the additional amount and attorney fees described in this
subsection. The action of the director and the review of the action taken by
the director shall be subject to review under ORS 656.704.
     (b) When the director does not have
exclusive jurisdiction over proceedings regarding the assessment and payment of
the additional amount and attorney fees described in this subsection, the
provisions of this subsection shall apply in the other proceeding.
     (12) The insurer may authorize an employer
to pay compensation to injured workers and shall reimburse employers for
compensation so paid.
     (13) Injured workers have the duty to
cooperate and assist the insurer or self-insured employer in the investigation
of claims for compensation. Injured workers shall submit to and shall fully
cooperate with personal and telephonic interviews and other formal or informal
information gathering techniques. Injured workers who are represented by an
attorney shall have the right to have the attorney present during any personal
or telephonic interview or deposition. However, if the attorney is not willing
or available to participate in an interview at a time reasonably chosen by the
insurer or self-insured employer within 14 days of the request for interview
and the insurer or self-insured employer has cause to believe that the attorneyÂ’s
unwillingness or unavailability is unreasonable and is preventing the worker
from complying within 14 days of the request for interview, the insurer or
self-insured employer shall notify the director. If the director determines
that the attorneyÂ’s unwillingness or unavailability is unreasonable, the
director shall assess a civil penalty against the attorney of not more than
$1,000.
     (14) If the director finds that a worker
fails to reasonably cooperate with an investigation involving an initial claim
to establish a compensable injury or an aggravation claim to reopen the claim
for a worsened condition, the director shall suspend all or part of the payment
of compensation after notice to the worker. If the worker does not cooperate
for an additional 30 days after the notice, the insurer or self-insured
employer may deny the claim because of the workerÂ’s failure to cooperate. The
obligation of the insurer or self-insured employer to accept or deny the claim
within 60 days is suspended during the time of the workerÂ’s noncooperation.
After such a denial, the worker shall not be granted a hearing or other
proceeding under this chapter on the merits of the claim unless the worker
first requests and establishes at an expedited hearing under ORS 656.291 that
the worker fully and completely cooperated with the investigation, that the
worker failed to cooperate for reasons beyond the workerÂ’s control or that the
investigative demands were unreasonable. If the Administrative Law Judge finds
that the worker has not fully cooperated, the Administrative Law Judge shall
affirm the denial, and the workerÂ’s claim for injury shall remain denied. If
the Administrative Law Judge finds that the worker has cooperated, or that the
investigative demands were unreasonable, the Administrative Law Judge shall set
aside the denial, order the reinstatement of interim compensation if
appropriate and remand the claim to the insurer or self-insured employer to
accept or deny the claim.
     (15) In accordance with ORS 656.283 (4),
the Administrative Law Judge assigned a request for hearing for a claim for
compensation involving more than one potentially responsible employer or
insurer may specify what is required of an injured worker to reasonably
cooperate with the investigation of the claim as required by subsection (13) of
this section. [1965 c.285 §30; 1969 c.399 §1; 1973 c.620 §2; 1975 c.556 §41;
1981 c.535 §7; 1981 c.854 §16; 1981 c.874 §4; 1983 c.809 §1; 1983 c.816 §7;
1985 c.600 §7; 1987 c.884 §19; 1990 c.2 §15; 1995 c.332 §28; 1995 c.641 §4;
1997 c.605 §1; 1997 c.639 §7; 1999 c.313 §5; 2001 c.621 §83; 2001 c.865 §7;
2003 c.667 §1; 2003 c.756 §1; 2003 c.760 §2; 2003 c.811 §§9,10; 2005 c.26 §§9,10;
2005 c.511 §§1,2; 2005 c.588 §§2,3; 2007 c.252 §5; 2007 c.365 §5; 2007 c.518 §§1,2]
     Note: See notes under 656.202.
     656.263
To whom notices sent under ORS 656.262, 656.265, 656.268 to 656.289, 656.295 to
656.325 and 656.382 to 656.388.
All notices of proceedings required to be sent under ORS 656.262, 656.265,
656.268 to 656.289, 656.295 to 656.325, 656.382 to 656.388 and this section
shall be sent to the employer and the insurer, if any. [1967 c.97 §2; 1975
c.556 §42]
     656.264
Compensable injury, denied claim and other reports. (1) Insurers and self-insured employers
shall report to the Director of the Department of Consumer and Business
Services compensable injuries, denied claims, claims disposition and payments
made by them under this chapter.
     (2) The director may require insurers and
self-insured employers to report other information as required to carry out
this chapter.
     (3) The director may prescribe the
interval and the form of such reports and establish sanctions for the
enforcement of reporting requirements. [1975 c.556 §39; 1981 c.854 §17; 2003
c.760 §3]
     656.265
Notice of accident from worker.
(1) Notice of an accident resulting in an injury or death shall be given
immediately by the worker or a dependent of the worker to the employer, but not
later than 90 days after the accident. The employer shall acknowledge forthwith
receipt of such notice.
     (2) The notice need not be in any
particular form. However, it shall be in writing and shall apprise the employer
when and where and how an injury has occurred to a worker. A report or
statement secured from a worker, or from the doctor of the worker and signed by
the worker, concerning an accident which may involve a compensable injury shall
be considered notice from the worker and the employer shall forthwith furnish
the worker a copy of any such report or statement.
     (3) Notice shall be given to the employer
by mail, addressed to the employer at the last-known place of business of the
employer, or by personal delivery to the employer or to a foreman or other
supervisor of the employer. If for any reason it is not possible to so notify
the employer, notice may be given to the Director of the Department of Consumer
and Business Services and referred to the insurer or self-insured employer.
     (4) Failure to give notice as required by
this section bars a claim under this chapter unless the notice is given within
one year after the date of the accident and:
     (a) The employer had knowledge of the
injury or death;
     (b) The worker died within 180 days after
the date of the accident; or
     (c) The worker or beneficiaries of the
worker establish that the worker had good cause for failure to give notice
within 90 days after the accident.
     (5) The issue of failure to give notice
must be raised at the first hearing on a claim for compensation in respect to
the injury or death.
     (6) The director shall promulgate and
prescribe uniform forms to be used by workers in reporting their injuries to
their employers. These forms shall be supplied by all employers to injured
workers upon request of the injured worker or some other person on behalf of
the worker. The failure of the worker to use a specified form shall not, in
itself, defeat the claim of the worker if the worker has complied with the
requirement that the claim be presented in writing. [1965 c.285 §30a; 1971
c.386 §2; 1981 c.854 §18; 1995 c.332 §29; 2003 c.707 §1]
     656.266
Burden of proving compensability and nature and extent of disability. (1) The burden of proving that an injury or
occupational disease is compensable and of proving the nature and extent of any
disability resulting therefrom is upon the worker. The worker cannot carry the
burden of proving that an injury or occupational disease is compensable merely
by disproving other possible explanations of how the injury or disease
occurred.
     (2) Notwithstanding subsection (1) of this
section, for the purpose of combined condition injury claims under ORS 656.005
(7)(a)(B) only:
     (a) Once the worker establishes an
otherwise compensable injury, the employer shall bear the burden of proof to
establish the otherwise compensable injury is not, or is no longer, the major
contributing cause of the disability of the combined condition or the major
contributing cause of the need for treatment of the combined condition.
     (b) Notwithstanding ORS 656.804, paragraph
(a) of this subsection does not apply to any occupational disease claim. [1987
c.713 §2; 2001 c.865 §2]
     Note: See notes under 656.202.
     656.267
Claims for new and omitted medical conditions. (1) To initiate omitted medical condition
claims under ORS 656.262 (6)(d) or new medical condition claims under this
section, the worker must clearly request formal written acceptance of a new
medical condition or an omitted medical condition from the insurer or
self-insured employer. A claim for a new medical condition or an omitted
condition is not made by the receipt of medical billings, nor by requests for
authorization to provide medical services for the new or omitted condition, nor
by actually providing such medical services. The insurer or self-insured
employer is not required to accept each and every diagnosis or medical
condition with particularity, as long as the acceptance tendered reasonably
apprises the claimant and the medical providers of the nature of the
compensable conditions. Notwithstanding any other provision of this chapter,
the worker may initiate a new medical or omitted condition claim at any time.
     (2)(a) Claims properly initiated for new
medical conditions and omitted medical conditions related to an initially
accepted claim shall be processed pursuant to ORS 656.262.
     (b) If an insurer or self-insured employer
denies a claim for a new medical or omitted medical condition, the claimant may
request a hearing on the denial pursuant to ORS 656.283.
     (3) Notwithstanding subsection (2) of this
section, claims for new medical or omitted medical conditions related to an
initially accepted claim that have been determined to be compensable and that
were initiated after the rights under ORS 656.273 expired shall be processed as
requests for relief under the WorkersÂ’ Compensation BoardÂ’s own motion
jurisdiction pursuant to ORS 656.278 (1)(b). [2001 c.865 §10; 2005 c.188 §1]
     Note: See notes under 656.202.
     656.268
Claim closure; termination of temporary total disability benefits;
reconsideration of closure; medical arbiter to make findings of impairment for
reconsideration; credit or offset for fraudulently obtained or overpaid
benefits; rules. (1) One
purpose of this chapter is to restore the injured worker as soon as possible
and as near as possible to a condition of self support and maintenance as an
able-bodied worker. The insurer or self-insured employer shall close the workerÂ’s
claim, as prescribed by the Director of the Department of Consumer and Business
Services, and determine the extent of the workerÂ’s permanent disability,
provided the worker is not enrolled and actively engaged in training according
to rules adopted by the director pursuant to ORS 656.340 and 656.726, when:
     (a) The worker has become medically
stationary and there is sufficient information to determine permanent
disability;
     (b) The accepted injury is no longer the
major contributing cause of the workerÂ’s combined or consequential condition or
conditions pursuant to ORS 656.005 (7). When the claim is closed because the
accepted injury is no longer the major contributing cause of the workerÂ’s
combined or consequential condition or conditions, and there is sufficient
information to determine permanent disability, the likely permanent disability
that would have been due to the current accepted condition shall be estimated;
     (c) Without the approval of the attending
physician or nurse practitioner authorized to provide compensable medical
services under ORS 656.245, the worker fails to seek medical treatment for a
period of 30 days or the worker fails to attend a closing examination, unless
the worker affirmatively establishes that such failure is attributable to
reasons beyond the workerÂ’s control; or
     (d) An insurer or self-insured employer
finds that a worker who has been receiving permanent total disability benefits
has materially improved and is capable of regularly performing work at a
gainful and suitable occupation.
     (2) If the worker is enrolled and actively
engaged in training according to rules adopted pursuant to ORS 656.340 and
656.726, the temporary disability compensation shall be proportionately reduced
by any sums earned during the training.
     (3) A copy of all medical reports and
reports of vocational rehabilitation agencies or counselors shall be furnished
to the worker, if requested by the worker.
     (4) Temporary total disability benefits
shall continue until whichever of the following events first occurs:
     (a) The worker returns to regular or
modified employment;
     (b) The attending physician or nurse
practitioner who has authorized temporary disability benefits for the worker
under ORS 656.245 advises the worker and documents in writing that the worker
is released to return to regular employment;
     (c) The attending physician or nurse
practitioner who has authorized temporary disability benefits for the worker
under ORS 656.245 advises the worker and documents in writing that the worker
is released to return to modified employment, such employment is offered in
writing to the worker and the worker fails to begin such employment. However,
an offer of modified employment may be refused by the worker without the
termination of temporary total disability benefits if the offer:
     (A) Requires a commute that is beyond the
physical capacity of the worker according to the workerÂ’s attending physician
or the nurse practitioner who may authorize temporary disability under ORS
656.245;
     (B) Is at a work site more than 50 miles
one way from where the worker was injured unless the site is less than 50 miles
from the workerÂ’s residence or the intent of the parties at the time of hire or
as established by the pattern of employment prior to the injury was that the
employer had multiple or mobile work sites and the worker could be assigned to
any such site;
     (C) Is not with the employer at injury;
     (D) Is not at a work site of the employer
at injury;
     (E) Is not consistent with the existing
written shift change policy or is not consistent with common practice of the
employer at injury or aggravation; or
     (F) Is not consistent with an existing
shift change provision of an applicable collective bargaining agreement;
     (d) Any other event that causes temporary
disability benefits to be lawfully suspended, withheld or terminated under ORS
656.262 (4) or other provisions of this chapter; or
     (e) Notwithstanding paragraph (c)(C), (D),
(E) and (F) of this subsection, the attending physician or nurse practitioner
who has authorized temporary disability benefits under ORS 656.245 for a home
care worker who has been made a subject worker pursuant to ORS 656.039 advises
the home care worker and documents in writing that the home care worker is
released to return to modified employment, appropriate modified employment is
offered in writing by the Home Care Commission or a designee of the commission
to the home care worker for any client of the Department of Human Services who
employs a home care worker and the home care worker fails to begin the
employment.
     (5)(a) Findings by the insurer or
self-insured employer regarding the extent of the workerÂ’s disability in
closure of the claim shall be pursuant to the standards prescribed by the director.
The insurer or self-insured employer shall issue a notice of closure of such a
claim to the worker, to the workerÂ’s attorney if the worker is represented, and
to the director. The notice must inform:
     (A) The parties, in boldfaced type, of the
proper manner in which to proceed if they are dissatisfied with the terms of
the notice;
     (B) The worker of the amount of any
further compensation, including permanent disability compensation to be
awarded; of the duration of temporary total or temporary partial disability
compensation; of the right of the worker to request reconsideration by the
director under this section within 60 days of the date of the notice of claim
closure; of the right of the insurer or self-insured employer to request
reconsideration by the director under this section within seven days of the
date of the notice of claim closure; of the aggravation rights; and of such
other information as the director may require; and
     (C) Any beneficiaries of death benefits to
which they may be entitled pursuant to ORS 656.204 and 656.208.
     (b) If the insurer or self-insured
employer has not issued a notice of closure, the worker may request closure.
Within 10 days of receipt of a written request from the worker, the insurer or
self-insured employer shall issue a notice of closure if the requirements of
this section have been met or a notice of refusal to close if the requirements
of this section have not been met. A notice of refusal to close shall advise
the worker of the decision not to close; of the right of the worker to request
a hearing pursuant to ORS 656.283 within 60 days of the date of the notice of
refusal to close the claim; of the right to be represented by an attorney; and
of such other information as the director may require.
     (c) If a worker, insurer or self-insured
employer objects to the notice of closure, the objecting party first must
request reconsideration by the director under this section. A workerÂ’s request
for reconsideration must be made within 60 days of the date of the notice of
closure. A request for reconsideration by an insurer or self-insured employer
may be based only on disagreement with the findings used to rate impairment and
must be made within seven days of the date of the notice of closure.
     (d) If an insurer or self-insured employer
has closed a claim or refused to close a claim pursuant to this section, if the
correctness of that notice of closure or refusal to close is at issue in a
hearing on the claim and if a finding is made at the hearing that the notice of
closure or refusal to close was not reasonable, a penalty shall be assessed
against the insurer or self-insured employer and paid to the worker in an
amount equal to 25 percent of all compensation determined to be then due the
claimant.
     (e) If, upon reconsideration of a claim
closed by an insurer or self-insured employer, the director orders an increase
by 25 percent or more of the amount of compensation to be paid to the worker
for permanent disability and the worker is found upon reconsideration to be at least
20 percent permanently disabled, a penalty shall be assessed against the
insurer or self-insured employer and paid to the worker in an amount equal to
25 percent of all compensation determined to be then due the claimant. If the
increase in compensation results from information that the insurer or
self-insured employer demonstrates the insurer or self-insured employer could
not reasonably have known at the time of claim closure, from new information
obtained through a medical arbiter examination or from a determination order
issued by the director that addresses the extent of the workerÂ’s permanent
disability that is not based on the standards adopted pursuant to ORS 656.726
(4)(f), the penalty shall not be assessed.
     (6)(a) Notwithstanding any other provision
of law, only one reconsideration proceeding may be held on each notice of
closure. At the reconsideration proceeding:
     (A) A deposition arranged by the worker,
limited to the testimony and cross-examination of the worker about the workerÂ’s
condition at the time of claim closure, shall become part of the
reconsideration record. The deposition must be conducted subject to the
opportunity for cross-examination by the insurer or self-insured employer and
in accordance with rules adopted by the director. The cost of the court
reporter and one original of the transcript of the deposition for the
Department of Consumer and Business Services and one copy of the transcript of
the deposition for each party shall be paid by the insurer or self-insured
employer. The reconsideration proceeding may not be postponed to receive a
deposition taken under this subparagraph. A deposition taken in accordance with
this subparagraph may be received as evidence at a hearing even if the
deposition is not prepared in time for use in the reconsideration proceeding.
     (B) Pursuant to rules adopted by the
director, the worker or the insurer or self-insured employer may correct
information in the record that is erroneous and may submit any medical evidence
that should have been but was not submitted by the attending physician or nurse
practitioner authorized to provide compensable medical services under ORS
656.245 at the time of claim closure.
     (C) If the director determines that a
claim was not closed in accordance with subsection (1) of this section, the
director may rescind the closure.
     (b) If necessary, the director may require
additional medical or other information with respect to the claims and may
postpone the reconsideration for not more than 60 additional calendar days.
     (c) In any reconsideration proceeding
under this section in which the worker was represented by an attorney, the
director shall order the insurer or self-insured employer to pay to the
attorney, out of the additional compensation awarded, an amount equal to 10
percent of any additional compensation awarded to the worker.
     (d) The reconsideration proceeding shall
be completed within 18 working days from the date the reconsideration
proceeding begins, and shall be performed by a special evaluation appellate unit
within the department. The deadline of 18 working days may be postponed by an
additional 60 calendar days if within the 18 working days the department mails
notice of review by a medical arbiter. If an order on reconsideration has not
been mailed on or before 18 working days from the date the reconsideration
proceeding begins, or within 18 working days plus the additional 60 calendar
days where a notice for medical arbiter review was timely mailed or the
director postponed the reconsideration pursuant to paragraph (b) of this
subsection, or within such additional time as provided in subsection (7) of
this section when reconsideration is postponed further because the worker has
failed to cooperate in the medical arbiter examination, reconsideration shall be
deemed denied and any further proceedings shall occur as though an order on
reconsideration affirming the notice of closure was mailed on the date the
order was due to issue.
     (e) The period for completing the
reconsideration proceeding described in paragraph (d) of this subsection begins
upon receipt by the director of a workerÂ’s request for reconsideration pursuant
to subsection (5)(c) of this section. If the insurer or self-insured employer
requests reconsideration, the period for reconsideration begins upon the
earlier of the date of the request for reconsideration by the worker, the date
of receipt of a waiver from the worker of the right to request reconsideration
or the date of expiration of the right of the worker to request
reconsideration. If a party elects not to file a separate request for
reconsideration, the party does not waive the right to fully participate in the
reconsideration proceeding, including the right to proceed with the
reconsideration if the initiating party withdraws the request for
reconsideration.
     (f) Any medical arbiter report may be
received as evidence at a hearing even if the report is not prepared in time
for use in the reconsideration proceeding.
     (g) If any party objects to the
reconsideration order, the party may request a hearing under ORS 656.283 within
30 days from the date of the reconsideration order.
     (7)(a) If the basis for objection to a
notice of closure issued under this section is disagreement with the impairment
used in rating of the workerÂ’s disability, the director shall refer the claim
to a medical arbiter appointed by the director.
     (b) If neither party requests a medical
arbiter and the director determines that insufficient medical information is
available to determine disability, the director may refer the claim to a
medical arbiter appointed by the director.
     (c) At the request of either of the
parties, a panel of three medical arbiters shall be appointed.
     (d) The arbiter, or panel of medical
arbiters, shall be chosen from among a list of physicians qualified to be
attending physicians referred to in ORS 656.005 (12)(b)(A) who were selected by
the director in consultation with the Oregon Medical Board and the committee
referred to in ORS 656.790.
     (e)(A) The medical arbiter or panel of
medical arbiters may examine the worker and perform such tests as may be
reasonable and necessary to establish the workerÂ’s impairment.
     (B) If the director determines that the
worker failed to attend the examination without good cause or failed to
cooperate with the medical arbiter, or panel of medical arbiters, the director
shall postpone the reconsideration proceedings for up to 60 days from the date
of the determination that the worker failed to attend or cooperate, and shall
suspend all disability benefits resulting from this or any prior opening of the
claim until such time as the worker attends and cooperates with the examination
or the request for reconsideration is withdrawn. Any additional evidence
regarding good cause must be submitted prior to the conclusion of the 60-day
postponement period.
     (C) At the conclusion of the 60-day
postponement period, if the worker has not attended and cooperated with a
medical arbiter examination or established good cause, there shall be no
further opportunity for the worker to attend a medical arbiter examination for
this claim closure. The reconsideration record shall be closed, and the
director shall issue an order on reconsideration based upon the existing
record.
     (D) All disability benefits suspended
pursuant to this subsection, including all disability benefits awarded in the
order on reconsideration, or by an Administrative Law Judge, the WorkersÂ’
Compensation Board or upon court review, shall not be due and payable to the
worker.
     (f) The costs of examination and review by
the medical arbiter or panel of medical arbiters shall be paid by the insurer
or self-insured employer.
     (g) The findings of the medical arbiter or
panel of medical arbiters shall be submitted to the director for
reconsideration of the notice of closure.
     (h) After reconsideration, no subsequent
medical evidence of the workerÂ’s impairment is admissible before the director,
the WorkersÂ’ Compensation Board or the courts for purposes of making findings
of impairment on the claim closure.
     (i)(A) When the basis for objection to a
notice of closure issued under this section is a disagreement with the
impairment used in rating the workerÂ’s disability, and the director determines
that the worker is not medically stationary at the time of the reconsideration
or that the closure was not made pursuant to this section, the director is not
required to appoint a medical arbiter prior to the completion of the
reconsideration proceeding.
     (B) If the worker’s condition has
substantially changed since the notice of closure, upon the consent of all the
parties to the claim, the director shall postpone the proceeding until the
workerÂ’s condition is appropriate for claim closure under subsection (1) of
this section.
     (8) No hearing shall be held on any issue
that was not raised and preserved before the director at reconsideration.
However, issues arising out of the reconsideration order may be addressed and
resolved at hearing.
     (9) If, after the notice of closure issued
pursuant to this section, the worker becomes enrolled and actively engaged in
training according to rules adopted pursuant to ORS 656.340 and 656.726, any
permanent disability payments due for work disability under the closure shall
be suspended, and the worker shall receive temporary disability compensation
and any permanent disability payments due for impairment while the worker is
enrolled and actively engaged in the training. When the worker ceases to be
enrolled and actively engaged in the training, the insurer or self-insured
employer shall again close the claim pursuant to this section if the worker is
medically stationary or if the workerÂ’s accepted injury is no longer the major
contributing cause of the workerÂ’s combined or consequential condition or
conditions pursuant to ORS 656.005 (7). The closure shall include the duration
of temporary total or temporary partial disability compensation. Permanent
disability compensation shall be redetermined for work disability only. If the
worker has returned to work or the workerÂ’s attending physician has released
the worker to return to regular or modified employment, the insurer or
self-insured employer shall again close the claim. This notice of closure may
be appealed only in the same manner as are other notices of closure under this
section.
     (10) If the attending physician or nurse
practitioner authorized to provide compensable medical services under ORS
656.245 has approved the workerÂ’s return to work and there is a labor dispute
in progress at the place of employment, the worker may refuse to return to that
employment without loss of reemployment rights or any vocational assistance
provided by this chapter.
     (11) Any notice of closure made under this
section may include necessary adjustments in compensation paid or payable prior
to the notice of closure, including disallowance of permanent disability
payments prematurely made, crediting temporary disability payments against
current or future permanent or temporary disability awards or payments and
requiring the payment of temporary disability payments which were payable but
not paid.
     (12) An insurer or self-insured employer
may take a credit or offset of previously paid workersÂ’ compensation benefits
or payments against any further workersÂ’ compensation benefits or payments due
a worker from that insurer or self-insured employer when the worker admits to
having obtained the previously paid benefits or payments through fraud, or a
civil judgment or criminal conviction is entered against the worker for having
obtained the previously paid benefits through fraud. Benefits or payments
obtained through fraud by a worker shall not be included in any data used for
ratemaking or individual employer rating or dividend calculations by a guaranty
contract insurer, a rating organization licensed pursuant to ORS chapter 737,
the State Accident Insurance Fund Corporation or the director.
     (13)(a) An insurer or self-insured
employer may offset any compensation payable to the worker to recover an
overpayment from a claim with the same insurer or self-insured employer. When
overpayments are recovered from temporary disability or permanent total
disability benefits, the amount recovered from each payment shall not exceed 25
percent of the payment, without prior authorization from the worker.
     (b) An insurer or self-insured employer
may suspend and offset any compensation payable to the beneficiary of the
worker, and recover an overpayment of permanent total disability benefits
caused by the failure of the workerÂ’s beneficiaries to notify the insurer or
self-insured employer about the death of the worker.
     (14) Conditions that are direct medical
sequelae to the original accepted condition shall be included in rating
permanent disability of the claim unless they have been specifically denied. [1965
c.285 §31; 1973 c.620 §3; 1973 c.634 §2; 1977 c.804 §5; 1977 c.862 §1; 1979
c.839 §4; 1981 c.535 §7a; 1981 c.854 §19; 1981 c.874 §13; 1985 c.425 §1; 1985
c.600 §8; 1987 c.884 §10; 1990 c.2 §16; 1991 c.502 §1; 1995 c.332 §30; 1997
c.111 §1; 1997 c.382 §1; 1999 c.313 §1; 1999 c.1020 §3; 2001 c.349 §1; 2001
c.377 §63; 2001 c.865 §12; 2003 c.429 §1; 2003 c.657 §§7,8; 2003 c.811 §§11,12;
2005 c.221 §§1,2; 2005 c.461 §§3,4; 2005 c.569 §§1,2; 2007 c.270 §§4,5; 2007
c.274 §4; 2007 c.365 §6; 2007 c.835 §§2,3]
     Note: The amendments to 656.268 by sections 11 and
12, chapter 241, Oregon Laws 2007, become operative July 1, 2009. See section
31, chapter 241, Oregon Laws 2007. The text that is operative on and after July
1, 2009, is set forth for the userÂ’s convenience.
     656.268. (1) One purpose of this chapter is to
restore the injured worker as soon as possible and as near as possible to a
condition of self support and maintenance as an able-bodied worker. The insurer
or self-insured employer shall close the workerÂ’s claim, as prescribed by the
Director of the Department of Consumer and Business Services, and determine the
extent of the workerÂ’s permanent disability, provided the worker is not
enrolled and actively engaged in training according to rules adopted by the
director pursuant to ORS 656.340 and 656.726, when:
     (a) The worker has become medically
stationary and there is sufficient information to determine permanent
disability;
     (b) The accepted injury is no longer the
major contributing cause of the workerÂ’s combined or consequential condition or
conditions pursuant to ORS 656.005 (7). When the claim is closed because the
accepted injury is no longer the major contributing cause of the workerÂ’s
combined or consequential condition or conditions, and there is sufficient
information to determine permanent disability, the likely permanent disability
that would have been due to the current accepted condition shall be estimated;
     (c) Without the approval of the attending
physician or nurse practitioner authorized to provide compensable medical
services under ORS 656.245, the worker fails to seek medical treatment for a
period of 30 days or the worker fails to attend a closing examination, unless
the worker affirmatively establishes that such failure is attributable to
reasons beyond the workerÂ’s control; or
     (d) An insurer or self-insured employer
finds that a worker who has been receiving permanent total disability benefits
has materially improved and is capable of regularly performing work at a
gainful and suitable occupation.
     (2) If the worker is enrolled and actively
engaged in training according to rules adopted pursuant to ORS 656.340 and
656.726, the temporary disability compensation shall be proportionately reduced
by any sums earned during the training.
     (3) A copy of all medical reports and
reports of vocational rehabilitation agencies or counselors shall be furnished
to the worker, if requested by the worker.
     (4) Temporary total disability benefits
shall continue until whichever of the following events first occurs:
     (a) The worker returns to regular or modified
employment;
     (b) The attending physician or nurse
practitioner who has authorized temporary disability benefits for the worker
under ORS 656.245 advises the worker and documents in writing that the worker
is released to return to regular employment;
     (c) The attending physician or nurse
practitioner who has authorized temporary disability benefits for the worker
under ORS 656.245 advises the worker and documents in writing that the worker
is released to return to modified employment, such employment is offered in
writing to the worker and the worker fails to begin such employment. However,
an offer of modified employment may be refused by the worker without the
termination of temporary total disability benefits if the offer:
     (A) Requires a commute that is beyond the
physical capacity of the worker according to the workerÂ’s attending physician
or the nurse practitioner who may authorize temporary disability under ORS
656.245;
     (B) Is at a work site more than 50 miles
one way from where the worker was injured unless the site is less than 50 miles
from the workerÂ’s residence or the intent of the parties at the time of hire or
as established by the pattern of employment prior to the injury was that the
employer had multiple or mobile work sites and the worker could be assigned to
any such site;
     (C) Is not with the employer at injury;
     (D) Is not at a work site of the employer
at injury;
     (E) Is not consistent with the existing
written shift change policy or is not consistent with common practice of the
employer at injury or aggravation; or
     (F) Is not consistent with an existing
shift change provision of an applicable collective bargaining agreement;
     (d) Any other event that causes temporary
disability benefits to be lawfully suspended, withheld or terminated under ORS
656.262 (4) or other provisions of this chapter; or
     (e) Notwithstanding paragraph (c)(C), (D),
(E) and (F) of this subsection, the attending physician or nurse practitioner
who has authorized temporary disability benefits under ORS 656.245 for a home
care worker who has been made a subject worker pursuant to ORS 656.039 advises
the home care worker and documents in writing that the home care worker is
released to return to modified employment, appropriate modified employment is
offered in writing by the Home Care Commission or a designee of the commission
to the home care worker for any client of the Department of Human Services who
employs a home care worker and the home care worker fails to begin the
employment.
     (5)(a) Findings by the insurer or
self-insured employer regarding the extent of the workerÂ’s disability in
closure of the claim shall be pursuant to the standards prescribed by the
director. The insurer or self-insured employer shall issue a notice of closure
of such a claim to the worker, to the workerÂ’s attorney if the worker is
represented, and to the director. The notice must inform:
     (A) The parties, in boldfaced type, of the
proper manner in which to proceed if they are dissatisfied with the terms of
the notice;
     (B) The worker of the amount of any
further compensation, including permanent disability compensation to be
awarded; of the duration of temporary total or temporary partial disability
compensation; of the right of the worker to request reconsideration by the
director under this section within 60 days of the date of the notice of claim
closure; of the right of the insurer or self-insured employer to request
reconsideration by the director under this section within seven days of the
date of the notice of claim closure; of the aggravation rights; and of such
other information as the director may require; and
     (C) Any beneficiaries of death benefits to
which they may be entitled pursuant to ORS 656.204 and 656.208.
     (b) If the insurer or self-insured
employer has not issued a notice of closure, the worker may request closure.
Within 10 days of receipt of a written request from the worker, the insurer or
self-insured employer shall issue a notice of closure if the requirements of
this section have been met or a notice of refusal to close if the requirements
of this section have not been met. A notice of refusal to close shall advise
the worker of the decision not to close; of the right of the worker to request
a hearing pursuant to ORS 656.283 within 60 days of the date of the notice of
refusal to close the claim; of the right to be represented by an attorney; and
of such other information as the director may require.
     (c) If a worker, insurer or self-insured
employer objects to the notice of closure, the objecting party first must
request reconsideration by the director under this section. A workerÂ’s request
for reconsideration must be made within 60 days of the date of the notice of
closure. A request for reconsideration by an insurer or self-insured employer
may be based only on disagreement with the findings used to rate impairment and
must be made within seven days of the date of the notice of closure.
     (d) If an insurer or self-insured employer
has closed a claim or refused to close a claim pursuant to this section, if the
correctness of that notice of closure or refusal to close is at issue in a
hearing on the claim and if a finding is made at the hearing that the notice of
closure or refusal to close was not reasonable, a penalty shall be assessed
against the insurer or self-insured employer and paid to the worker in an
amount equal to 25 percent of all compensation determined to be then due the
claimant.
     (e) If, upon reconsideration of a claim
closed by an insurer or self-insured employer, the director orders an increase
by 25 percent or more of the amount of compensation to be paid to the worker
for permanent disability and the worker is found upon reconsideration to be at
least 20 percent permanently disabled, a penalty shall be assessed against the
insurer or self-insured employer and paid to the worker in an amount equal to
25 percent of all compensation determined to be then due the claimant. If the
increase in compensation results from information that the insurer or
self-insured employer demonstrates the insurer or self-insured employer could
not reasonably have known at the time of claim closure, from new information
obtained through a medical arbiter examination or from a determination order
issued by the director that addresses the extent of the workerÂ’s permanent disability
that is not based on the standards adopted pursuant to ORS 656.726 (4)(f), the
penalty shall not be assessed.
     (6)(a) Notwithstanding any other provision
of law, only one reconsideration proceeding may be held on each notice of
closure. At the reconsideration proceeding:
     (A) A deposition arranged by the worker,
limited to the testimony and cross-examination of the worker about the workerÂ’s
condition at the time of claim closure, shall become part of the
reconsideration record. The deposition must be conducted subject to the
opportunity for cross-examination by the insurer or self-insured employer and
in accordance with rules adopted by the director. The cost of the court
reporter and one original of the transcript of the deposition for the Department
of Consumer and Business Services and one copy of the transcript of the
deposition for each party shall be paid by the insurer or self-insured
employer. The reconsideration proceeding may not be postponed to receive a
deposition taken under this subparagraph. A deposition taken in accordance with
this subparagraph may be received as evidence at a hearing even if the
deposition is not prepared in time for use in the reconsideration proceeding.
     (B) Pursuant to rules adopted by the
director, the worker or the insurer or self-insured employer may correct
information in the record that is erroneous and may submit any medical evidence
that should have been but was not submitted by the attending physician or nurse
practitioner authorized to provide compensable medical services under ORS
656.245 at the time of claim closure.
     (C) If the director determines that a
claim was not closed in accordance with subsection (1) of this section, the
director may rescind the closure.
     (b) If necessary, the director may require
additional medical or other information with respect to the claims and may
postpone the reconsideration for not more than 60 additional calendar days.
     (c) In any reconsideration proceeding
under this section in which the worker was represented by an attorney, the
director shall order the insurer or self-insured employer to pay to the
attorney, out of the additional compensation awarded, an amount equal to 10
percent of any additional compensation awarded to the worker.
     (d) The reconsideration proceeding shall
be completed within 18 working days from the date the reconsideration
proceeding begins, and shall be performed by a special evaluation appellate
unit within the department. The deadline of 18 working days may be postponed by
an additional 60 calendar days if within the 18 working days the department
mails notice of review by a medical arbiter. If an order on reconsideration has
not been mailed on or before 18 working days from the date the reconsideration
proceeding begins, or within 18 working days plus the additional 60 calendar
days where a notice for medical arbiter review was timely mailed or the
director postponed the reconsideration pursuant to paragraph (b) of this
subsection, or within such additional time as provided in subsection (7) of this
section when reconsideration is postponed further because the worker has failed
to cooperate in the medical arbiter examination, reconsideration shall be
deemed denied and any further proceedings shall occur as though an order on
reconsideration affirming the notice of closure was mailed on the date the
order was due to issue.
     (e) The period for completing the
reconsideration proceeding described in paragraph (d) of this subsection begins
upon receipt by the director of a workerÂ’s request for reconsideration pursuant
to subsection (5)(c) of this section. If the insurer or self-insured employer
requests reconsideration, the period for reconsideration begins upon the
earlier of the date of the request for reconsideration by the worker, the date
of receipt of a waiver from the worker of the right to request reconsideration
or the date of expiration of the right of the worker to request
reconsideration. If a party elects not to file a separate request for
reconsideration, the party does not waive the right to fully participate in the
reconsideration proceeding, including the right to proceed with the
reconsideration if the initiating party withdraws the request for
reconsideration.
     (f) Any medical arbiter report may be
received as evidence at a hearing even if the report is not prepared in time
for use in the reconsideration proceeding.
     (g) If any party objects to the
reconsideration order, the party may request a hearing under ORS 656.283 within
30 days from the date of the reconsideration order.
     (7)(a) If the basis for objection to a
notice of closure issued under this section is disagreement with the impairment
used in rating of the workerÂ’s disability, the director shall refer the claim
to a medical arbiter appointed by the director.
     (b) If neither party requests a medical
arbiter and the director determines that insufficient medical information is
available to determine disability, the director may refer the claim to a
medical arbiter appointed by the director.
     (c) At the request of either of the
parties, a panel of three medical arbiters shall be appointed.
     (d) The arbiter, or panel of medical
arbiters, shall be chosen from among a list of physicians qualified to be
attending physicians referred to in ORS 656.005 (12)(b)(A) who were selected by
the director in consultation with the Oregon Medical Board and the committee
referred to in ORS 656.790.
     (e)(A) The medical arbiter or panel of
medical arbiters may examine the worker and perform such tests as may be
reasonable and necessary to establish the workerÂ’s impairment.
     (B) If the director determines that the
worker failed to attend the examination without good cause or failed to
cooperate with the medical arbiter, or panel of medical arbiters, the director
shall postpone the reconsideration proceedings for up to 60 days from the date
of the determination that the worker failed to attend or cooperate, and shall
suspend all disability benefits resulting from this or any prior opening of the
claim until such time as the worker attends and cooperates with the examination
or the request for reconsideration is withdrawn. Any additional evidence
regarding good cause must be submitted prior to the conclusion of the 60-day
postponement period.
     (C) At the conclusion of the 60-day
postponement period, if the worker has not attended and cooperated with a
medical arbiter examination or established good cause, there shall be no
further opportunity for the worker to attend a medical arbiter examination for
this claim closure. The reconsideration record shall be closed, and the
director shall issue an order on reconsideration based upon the existing
record.
     (D) All disability benefits suspended
pursuant to this subsection, including all disability benefits awarded in the
order on reconsideration, or by an Administrative Law Judge, the WorkersÂ’
Compensation Board or upon court review, shall not be due and payable to the
worker.
     (f) The costs of examination and review by
the medical arbiter or panel of medical arbiters shall be paid by the insurer
or self-insured employer.
     (g) The findings of the medical arbiter or
panel of medical arbiters shall be submitted to the director for
reconsideration of the notice of closure.
     (h) After reconsideration, no subsequent
medical evidence of the workerÂ’s impairment is admissible before the director,
the WorkersÂ’ Compensation Board or the courts for purposes of making findings
of impairment on the claim closure.
     (i)(A) When the basis for objection to a
notice of closure issued under this section is a disagreement with the
impairment used in rating the workerÂ’s disability, and the director determines
that the worker is not medically stationary at the time of the reconsideration
or that the closure was not made pursuant to this section, the director is not
required to appoint a medical arbiter prior to the completion of the
reconsideration proceeding.
     (B) If the worker’s condition has
substantially changed since the notice of closure, upon the consent of all the
parties to the claim, the director shall postpone the proceeding until the workerÂ’s
condition is appropriate for claim closure under subsection (1) of this
section.
     (8) No hearing shall be held on any issue
that was not raised and preserved before the director at reconsideration.
However, issues arising out of the reconsideration order may be addressed and
resolved at hearing.
     (9) If, after the notice of closure issued
pursuant to this section, the worker becomes enrolled and actively engaged in
training according to rules adopted pursuant to ORS 656.340 and 656.726, any
permanent disability payments due for work disability under the closure shall
be suspended, and the worker shall receive temporary disability compensation
and any permanent disability payments due for impairment while the worker is
enrolled and actively engaged in the training. When the worker ceases to be
enrolled and actively engaged in the training, the insurer or self-insured
employer shall again close the claim pursuant to this section if the worker is
medically stationary or if the workerÂ’s accepted injury is no longer the major
contributing cause of the workerÂ’s combined or consequential condition or
conditions pursuant to ORS 656.005 (7). The closure shall include the duration
of temporary total or temporary partial disability compensation. Permanent
disability compensation shall be redetermined for work disability only. If the
worker has returned to work or the workerÂ’s attending physician has released
the worker to return to regular or modified employment, the insurer or
self-insured employer shall again close the claim. This notice of closure may
be appealed only in the same manner as are other notices of closure under this
section.
     (10) If the attending physician or nurse
practitioner authorized to provide compensable medical services under ORS
656.245 has approved the workerÂ’s return to work and there is a labor dispute
in progress at the place of employment, the worker may refuse to return to that
employment without loss of reemployment rights or any vocational assistance
provided by this chapter.
     (11) Any notice of closure made under this
section may include necessary adjustments in compensation paid or payable prior
to the notice of closure, including disallowance of permanent disability
payments prematurely made, crediting temporary disability payments against
current or future permanent or temporary disability awards or payments and
requiring the payment of temporary disability payments which were payable but
not paid.
     (12) An insurer or self-insured employer
may take a credit or offset of previously paid workersÂ’ compensation benefits
or payments against any further workersÂ’ compensation benefits or payments due
a worker from that insurer or self-insured employer when the worker admits to
having obtained the previously paid benefits or payments through fraud, or a
civil judgment or criminal conviction is entered against the worker for having
obtained the previously paid benefits through fraud. Benefits or payments
obtained through fraud by a worker shall not be included in any data used for
ratemaking or individual employer rating or dividend calculations by an
insurer, a rating organization licensed pursuant to ORS chapter 737, the State
Accident Insurance Fund Corporation or the director.
     (13)(a) An insurer or self-insured
employer may offset any compensation payable to the worker to recover an
overpayment from a claim with the same insurer or self-insured employer. When
overpayments are recovered from temporary disability or permanent total
disability benefits, the amount recovered from each payment shall not exceed 25
percent of the payment, without prior authorization from the worker.
     (b) An insurer or self-insured employer
may suspend and offset any compensation payable to the beneficiary of the
worker, and recover an overpayment of permanent total disability benefits
caused by the failure of the workerÂ’s beneficiaries to notify the insurer or
self-insured employer about the death of the worker.
     (14) Conditions that are direct medical
sequelae to the original accepted condition shall be included in rating
permanent disability of the claim unless they have been specifically denied.
     Note: See notes under 656.202.
     656.270
Contents of notice required on closure. Each closure made pursuant to ORS 656.268 shall contain a notice in
capital letters and boldfaced type that informs the parties of the proper
manner in which to proceed if they are dissatisfied with the closure. The
notice shall include information on the rights and duties of the parties to
obtain reconsideration and hearing on the closure, the right of the worker to
consult with the ombudsman for injured workers and of the right of the worker
to be represented by an attorney. The notice also may include such other
relevant information as the Director of the Department of Consumer and Business
Services prescribes. [1971 c.155 §2; 1977 c.804 §6; 1979 c.839 §5; 1990 c.2 §17;
1999 c.313 §6]
     656.271 [1965 c.285 §32; 1969 c.171 §1; repealed by
1973 c.620 §4 (656.273 enacted in lieu of 656.271)]
     656.272 [Repealed by 1965 c.285 §95]
     656.273
Aggravation for worsened conditions; procedure; limitations; additional
compensation. (1) After the
last award or arrangement of compensation, an injured worker is entitled to
additional compensation for worsened conditions resulting from the original
injury. A worsened condition resulting from the original injury is established
by medical evidence of an actual worsening of the compensable condition
supported by objective findings. However, if the major contributing cause of
the worsened condition is an injury not occurring within the course and scope
of employment, the worsening is not compensable. A worsened condition is not
established by either or both of the following:
     (a) The worker’s absence from work for any
given amount of time as a result of the workerÂ’s condition from the original
injury; or
     (b) Inpatient treatment of the worker at a
hospital for the workerÂ’s condition from the original injury.
     (2) To obtain additional medical services
or disability compensation, the injured worker must file a claim for
aggravation with the insurer or self-insured employer. In the event the insurer
or self-insured employer cannot be located, is unknown, or has ceased to exist,
the claim shall be filed with the Director of the Department of Consumer and
Business Services.
     (3) A claim for aggravation must be in
writing in a form and format prescribed by the director and signed by the
worker or the workerÂ’s representative and the workerÂ’s attending physician.
When an insurer or self-insured employer receives a completed aggravation form,
the insurer or self-insured employer shall process the claim.
     (4) The claim for aggravation must be
filed within five years:
     (a) After the first notice of closure made
under ORS 656.268 for a disabling claim; or
     (b) After the date of injury, provided the
claim has been classified as nondisabling for at least one year after the date
of acceptance.
     (5) The director may order the claimant,
the insurer or self-insured employer to pay for such medical opinion.
     (6) A claim submitted in accordance with
this section shall be processed by the insurer or self-insured employer in
accordance with the provisions of ORS 656.262. The first installment of
compensation due under ORS 656.262 shall be paid no later than the 14th day
after the subject employer or paying agent of the subject employer receives a
written report that verifies the workerÂ’s inability to work resulting from a
compensable worsening under subsection (1) of this section and that establishes
by medical evidence supported by objective findings that the claimant has
suffered a worsened condition attributable to the compensable injury.
     (7) A request for hearing on any issue
involving a claim for aggravation must be made to the WorkersÂ’ Compensation
Board in accordance with ORS 656.283.
     (8) If the worker submits a claim for
aggravation of an injury or disease for which permanent disability has been
previously awarded, the worker must establish that the worsening is more than
waxing and waning of symptoms of the condition contemplated by the previous
permanent disability award. [1973 c.620 §5 (enacted in lieu of 656.271); 1975
c.497 §1; 1977 c.804 §7; 1979 c.839 §6; 1981 c.854 §20; 1987 c.884 §23; 1989
c.171 §76; 1990 c.2 §18; 1995 c.332 §31; 1999 c.313 §2; 2001 c.350 §1; 2005
c.50 §1]
     656.274 [Repealed by 1965 c.285 §95]
     656.275 [1963 c.20 §2; repealed by 1965 c.285 §95]
     656.276 [Repealed by 1965 c.285 §95]
     656.277
Request for reclassification of nondisabling claim; nondisabling claim
procedure. (1) A request for
reclassification by the worker of an accepted nondisabling injury that the
worker believes was or has become disabling must be submitted to the insurer or
self-insured employer. The insurer or self-insured employer shall classify the
claim as disabling or nondisabling within 14 days of the request. A notice of
such classification shall be mailed to the worker and the workerÂ’s attorney if
the worker is represented. The worker may ask the Director of the Department of
Consumer and Business Services to review the classification by the insurer or
self-insured employer by submitting a request for review within 60 days of the
mailing of the classification notice by the insurer or self-insured employer.
If any party objects to the classification of the director, the party may request
a hearing under ORS 656.283 within 30 days from the date of the directorÂ’s
order.
     (2) A request by the worker that an
accepted nondisabling injury was or has become disabling shall be made pursuant
to ORS 656.273 as a claim for aggravation, provided the claim has been
classified as nondisabling for at least one year after the date of acceptance.
     (3) A claim for a nondisabling injury
shall not be reported to the director by the insurer or self-insured employer
except:
     (a) When a notice of claim denial is
filed;
     (b) When the status of the claim is as
described in subsection (1) or (2) of this section; or
     (c) When otherwise required by the
director. [1990 c.2 §48; 1995 c.332 §32; 1999 c.313 §3; 2001 c.350 §2]
     Note: 656.277 was added to and made a part of ORS
chapter 656 by legislative action but was not added to any smaller series
therein. See Preface to Oregon Revised Statutes for further explanation.
     656.278
Board has continuing authority to alter earlier action on claim; limitations. (1) Except as provided in subsection (7) of
this section, the power and jurisdiction of the WorkersÂ’ Compensation Board
shall be continuing, and it may, upon its own motion, from time to time modify,
change or terminate former findings, orders or awards if in its opinion such
action is justified in those cases in which:
     (a) There is a worsening of a compensable
injury that results in the inability of the worker to work and requires
hospitalization or inpatient or outpatient surgery, or other curative treatment
prescribed in lieu of hospitalization that is necessary to enable the injured
worker to return to work. In such cases, the payment of temporary disability
compensation in accordance with ORS 656.210, 656.212 (2) and 656.262 (4) may be
provided from the time the attending physician authorizes temporary disability
compensation for the hospitalization, surgery or other curative treatment until
the workerÂ’s condition becomes medically stationary;
     (b) The worker submits and obtains
acceptance of a claim for a compensable new medical condition or an omitted
medical condition pursuant to ORS 656.267 and the claim is initiated after the
rights under ORS 656.273 have expired. In such cases, the payment of temporary
disability compensation in accordance with the provisions of ORS 656.210,
656.212 (2) and 656.262 (4) may be provided from the time the attending
physician authorizes temporary disability compensation for the hospitalization,
surgery or other curative treatment until the workerÂ’s condition becomes
medically stationary, and the payment of permanent disability benefits may be
provided after application of the standards for the evaluation and
determination of disability as may be adopted by the Director of the Department
of Consumer and Business Services pursuant to ORS 656.726; or
     (c) The date of injury is earlier than
January 1, 1966. In such cases, in addition to the payment of temporary
disability compensation, the payment of medical benefits may be provided.
     (2) Benefits provided under subsection (1)
of this section:
     (a) Do not include vocational assistance
benefits under ORS 656.340;
     (b) Do not include temporary disability
compensation for periods of time during which the claimant did not qualify as a
“worker” pursuant to ORS 656.005 (30);
     (c) Do not include medical services
provided pursuant to ORS 656.245 except as provided under subsection (1)(c) of
this section; and
     (d) May include permanent disability
benefits for additional impairment to an injured body part that has previously
been the basis of a permanent partial disability award, but only to the extent
that the permanent partial disability rating exceeds the permanent partial
disability rated by the prior award or awards.
     (3) An order or award made by the board
during the time within which the claimant has the right to request a hearing on
aggravation under ORS 656.273 is not an order or award, as the case may be,
made by the board on its own motion.
     (4) Pursuant to ORS 656.298, any party may
appeal an order or award made by the board on its own motion.
     (5) The insurer or self-insured employer
may voluntarily reopen any claim to provide benefits allowable under this
section or to grant additional medical or hospital care to the claimant. The
board shall establish procedures for the resolution of disputes arising out of
a voluntary reopening of a claim under this section.
     (6) Any claim reopened under this section
shall be closed by the insurer or self-insured employer in a manner prescribed
by the board, including, when appropriate, an award of permanent disability
benefits as determined under subsections (1)(b) and (2)(d) of this section. The
board shall also prescribe a process to be followed if the worker objects to
the claim closure.
     (7) The provisions of this section do not
authorize the board, on its own motion, to modify, change or terminate former
findings or orders:
     (a) That a claimant incurred no injury or
incurred a noncompensable injury; or
     (b) Approving disposition of a claim under
ORS 656.236 or 656.289 (4). [Amended by 1955 c.718 §1; 1957 c.559 §1; 1965
c.285 §33; 1981 c.535 §32; 1985 c.212 §6; 1987 c.884 §37; 1990 c.2 §19; 1995
c.332 §33; 2001 c.865 §11; 2005 c.188 §2]
     Note: See notes under 656.202.
     656.280 [Amended by 1965 c.285 §41b; renumbered
656.325]
     656.282 [Amended by 1957 c.455 §1; repealed by 1965
c.285 §95]
     656.283
Hearing rights and procedure; rules; modification of vocational assistance
actions; impeachment evidence; use of standards for evaluation of disability. (1) Subject to ORS 656.319, any party or the
Director of the Department of Consumer and Business Services may at any time
request a hearing on any matter concerning a claim, except matters for which a
procedure for resolving the dispute is provided in another statute, including
ORS 656.704.
     (2)(a) The Legislative Assembly finds that
vocational rehabilitation of injured workers requires a high degree of
cooperation between all of the participants in the vocational assistance
process. Based on this finding, the Legislative Assembly concludes that
disputes regarding eligibility for and extent of vocational assistance services
should be resolved through nonadversarial procedures to the greatest extent
possible consistent with constitutional principles. The director is hereby
charged with the duty of creating a procedure for resolving vocational
assistance disputes in the manner provided in this subsection.
     (b) If a worker is dissatisfied with an
action of the insurer or self-insured employer regarding vocational assistance,
the worker must apply to the director for administrative review of the matter.
Such application must be made not later than the 60th day after the date the
worker was notified of the action. The director shall complete the review
within a reasonable time. If the workerÂ’s dissatisfaction is resolved by
agreement of the parties, the agreement shall be reduced to writing, and the
director and the parties shall review the agreement and either approve or
disapprove it. If the workerÂ’s dissatisfaction is not resolved by agreement of
the parties, the director shall resolve the matter in a written order
containing findings of fact and conclusions of law. The order shall be based on
a record sufficient to permit review under paragraph (c) of this subsection.
For purposes of this subsection, the term “parties” does not include a
noncomplying employer.
     (c) Director approval of an agreement
resolving a vocational assistance matter shall be subject to reconsideration by
the director under limitations prescribed by the director, but shall not be
subject to review by any other forum. When the director issues an order after
review under paragraph (b) of this subsection, the order shall be subject to
review under ORS 656.704. At the contested case hearing, the decision of the
directorÂ’s administrative review shall be modified only if it:
     (A) Violates a statute or rule;
     (B) Exceeds the statutory authority of the
agency;
     (C) Was made upon unlawful procedure; or
     (D) Was characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
     (d) An appeal of the director’s
administrative review under paragraph (b) of this subsection must be made
within 60 days of the review issue date.
     (3) A request for hearing may be made by
any writing, signed by or on behalf of the party and including the address of
the party, requesting the hearing, stating that a hearing is desired, and
mailed to the WorkersÂ’ Compensation Board.
     (4)(a) The board shall refer the request
for hearing to an Administrative Law Judge for determination as expeditiously
as possible. The hearing shall be scheduled for a date not more than 90 days
after receipt by the board of the request for hearing. The hearing may not be
postponed:
     (A) Except in extraordinary circumstances
beyond the control of the requesting party; and
     (B) For more than 120 days after the date
of the postponed hearing.
     (b) When a hearing set pursuant to
paragraph (a) of this subsection is postponed because of the need to join one
or more potentially responsible employers or insurers, the assigned
Administrative Law Judge shall reschedule the hearing as expeditiously as
possible after all potentially responsible employers and insurers have been
joined in the proceeding and the medical record has been fully developed. The
board shall adopt rules for hearings on claims involving one or more
potentially responsible employers and insurers that:
     (A) Require the parties to participate in
any prehearing conferences required to expedite the hearing; and
     (B) Authorize the Administrative Law Judge
conducting the hearing to:
     (i) Establish a prehearing schedule for
investigation of the claim, including but not limited to the interviewing of
the claimant;
     (ii) Make prehearing rulings necessary to
promote full discovery and completion of the medical record required for
determination of the issues arising from the claim; and
     (iii) Specify what is required of the
claimant to meet the obligation to reasonably cooperate with the investigation
of claims.
     (c) Nothing in paragraph (b) of this
subsection alters the obligation of an insurer or self-insured employer to
accept or deny a claim for compensation as required under this chapter.
     (d) If a hearing has been postponed in
accordance with paragraph (b) of this subsection:
     (A) The director may not consider the
timeliness of a denial issued in the claim that is the subject of the hearing
for the purpose of imposing a penalty against an insurer or self-insured
employer that is potentially responsible for the claim; and
     (B) The 120-day maximum postponement
established under paragraph (a) of this subsection for rescheduling a hearing
does not apply.
     (5)(a) At least 60 days’ prior notice of
the time and place of hearing shall be given to all parties in interest by
mail. Hearings shall be held in the county where the worker resided at the time
of the injury or such other place selected by the Administrative Law Judge.
     (b) The 60-day prior notice required by
paragraph (a) of this subsection:
     (A) May be waived by agreement of the
parties and the board if waiver of the notice will result in an earlier date
for the hearing.
     (B) Does not apply to hearings in cases
assigned to the Expedited Claim Service under ORS 656.291, cases involving
stayed compensation under ORS 656.313 (1)(b) and requests for hearing that are
consolidated with an existing case with an existing hearing date.
     (6) A record of all proceedings at the
hearing shall be kept but need not be transcribed unless a party requests a
review of the order of the Administrative Law Judge. Transcription shall be in
written form as provided by ORS 656.295 (3).
     (7) Except as otherwise provided in this
section and rules of procedure established by the board, the Administrative Law
Judge is not bound by common law or statutory rules of evidence or by technical
or formal rules of procedure, and may conduct the hearing in any manner that
will achieve substantial justice. Neither the board nor an Administrative Law
Judge may prevent a party from withholding impeachment evidence until the
opposing partyÂ’s case in chief has been presented, at which time the
impeachment evidence may be used. Impeachment evidence consisting of medical or
vocational reports not used during the course of a hearing must be provided to
any opposing party at the conclusion of the presentation of evidence and before
closing arguments are presented. Impeachment evidence other than medical or
vocational reports that is not presented as evidence at hearing is not subject
to disclosure. Evaluation of the workerÂ’s disability by the Administrative Law
Judge shall be as of the date of issuance of the reconsideration order pursuant
to ORS 656.268. Any finding of fact regarding the workerÂ’s impairment must be
established by medical evidence that is supported by objective findings. The
Administrative Law Judge shall apply to the hearing of the claim such standards
for evaluation of disability as may be adopted by the director pursuant to ORS
656.726. Evidence on an issue regarding a notice of closure that was not
submitted at the reconsideration required by ORS 656.268 is not admissible at
hearing, and issues that were not raised by a party to the reconsideration may
not be raised at hearing unless the issue arises out of the reconsideration
order itself. However, nothing in this section shall be construed to prevent or
limit the right of a worker, insurer or self-insured employer to present the
reconsideration record at hearing to establish by a preponderance of that
evidence that the standards adopted pursuant to ORS 656.726 for evaluation of
the workerÂ’s permanent disability were incorrectly applied in the
reconsideration order pursuant to ORS 656.268. If the Administrative Law Judge
finds that the claim has been closed prematurely, the Administrative Law Judge
shall issue an order rescinding the notice of closure.
     (8) Any party shall be entitled to
issuance and service of subpoenas under the provisions of ORS 656.726 (2)(c).
Any party or representative of the party may serve such subpoenas.
     (9) After a party requests a hearing and
before the hearing commences, the board, by rule, may require the requesting
party, if represented by an attorney, to notify the Administrative Law Judge in
writing that the attorney has conferred with the other party and that
settlement has been achieved, subject to board approval, or that settlement
cannot be achieved. [1965 c.285 §34; 1979 c.839 §7; 1981 c.535 §33; 1981 c.860 §§1,5;
1985 c.600 §9; 1987 c.884 §11; 1990 c.2 §20; 1995 c.332 §34; 1999 c.313 §7;
2003 c.667 §2; 2005 c.26 §11; 2005 c.624 §1]
     Note: See notes under 656.202.
     656.284 [Amended by 1953 c.671 §2; 1955 c.718 §2;
1959 c.450 §4; repealed by 1965 c.285 §95]
     656.285
Protection of witnesses at hearings. ORCP 36 C shall apply to workersÂ’ compensation cases, except that the
Administrative Law Judge shall make the determinations and orders required of
the court in ORCP 36 C, and in addition attorney fees shall not be declared as
a matter of course but only in cases of harassment or hardship. [1973 c.652 §1;
1977 c.358 §11; 1979 c.284 §187]
     656.287
Use of vocational reports in determining loss of earning capacity at hearing;
rules. (1) Where there is an
issue regarding loss of earning capacity, reports from vocational consultants
employed by governmental agencies, insurers or self-insured employers, or from
private vocational consultants, regarding job opportunities, the fitness of
claimant to perform certain jobs, wage levels, or other information relating to
claimantÂ’s employability shall be admitted into evidence at compensation
hearings, provided such information is submitted to claimant 10 days prior to
hearing and that upon demand from the adverse party the person preparing such
report shall be made available for testimony and cross-examination.
     (2) The Workers’ Compensation Board shall
establish rules to govern the admissibility of reports from vocational experts,
including guidelines to establish the competency of vocational experts. [1973
c.581 §§1,2; 1985 c.600 §10]
     656.288 [Amended by 1957 c.288 §1; repealed by 1965
c.285 §95]
     656.289
Orders of Administrative Law Judge; review; disposition of claim when
compensability disputed; approval of director required for reimbursement of
certain expenditures. (1)
Upon the conclusion of any hearing, or prior thereto with concurrence of the
parties, the Administrative Law Judge shall promptly and not later than 30 days
after the hearing determine the matter and make an order in accordance with the
Administrative Law JudgeÂ’s determination.
     (2) A copy of the order shall be sent
forthwith by mail to the Director of the Department of Consumer and Business
Services and to all parties in interest.
     (3) The order is final unless, within 30
days after the date on which a copy of the order is mailed to the parties, one
of the parties requests a review by the WorkersÂ’ Compensation Board under ORS
656.295. When one party requests a review by the board, the other party or
parties shall have the remainder of the 30-day period and in no case less than
10 days in which to request board review in the same manner. The 10-day
requirement may carry the period of time allowed for requests for board reviews
beyond the 30th day. The order shall contain a statement explaining the rights
of the parties under this subsection and ORS 656.295.
     (4)(a) Notwithstanding ORS 656.236, in any
case where there is a bona fide dispute over compensability of a claim, the
parties may, with the approval of an Administrative Law Judge, the board or the
court, by agreement make such disposition of the claim as is considered
reasonable.
     (b) Insurers or self-insured employers who
are parties to an approved disputed claim settlement under this subsection
shall not be joined as parties in subsequent proceedings under this chapter to
determine responsibility for payment for claim conditions for which settlement
has been made.
     (c) Notwithstanding ORS 656.005 (21), as
used in this subsection, “party” does not include a noncomplying employer,
except where a noncomplying employer has submitted a disputed claim settlement
with a claimant for approval before the claim has been referred to an assigned
claims agent by the director. Upon approval of the disputed claim settlement,
the Administrative Law Judge, the board or the court shall mail to the director
a copy of the disputed claim settlement.
     (5) Any claim in which the parties enter
into a disposition under subsection (4) of this section shall not be eligible
for reimbursement of expenditures from the WorkersÂ’ Benefit Fund without the
prior approval of the director. [1965 c.285 §35; 1969 c.212 §1; 1977 c.804 §9;
1983 c.809 §3; 1990 c.2 §21; 1995 c.332 §35; 1995 c.641 §19]
     656.290 [Amended by 1955 c.718 §3; repealed by 1965
c.285 §95]
     656.291
Expedited Claim Service; jurisdiction; procedure; representation; rules. (1) The WorkersÂ’ Compensation Board, by
rule, shall establish an Expedited Claim Service to provide for prompt,
informal disposition of claims.
     (2) The board shall assign to the service
those claims:
     (a) For which a hearing has been requested
when the only matters unresolved do not include compensability of the claim and
the amount in controversy is $1,000 or less; or
     (b) For which the only matters unresolved
are attorney fees or penalties.
     (3)(a) The amount in controversy shall be
deemed less than $1,000 if the party requesting hearing so indicates, the other
party does not disagree and the Administrative Law Judge does not conclude,
based on the evidence, that the amount in controversy exceeds $1,000. In a case
assigned pursuant to subsection (2)(a) of this section, if the Administrative
Law Judge finds that the amount in controversy exceeds $1,000, the
Administrative Law Judge shall refer the case for disposition under the
ordinary hearing process.
     (b) Cases assigned to the Expedited Claim
Service pursuant to subsection (2)(a) of this section shall be heard within 30
days of the request for hearing, and an order shall be issued within 10 days of
the close of the hearing.
     (c) No hearing shall be held in cases
assigned to the Expedited Claim Service pursuant to subsection (2)(b) of this
section unless the Administrative Law Judge finds that the dispute cannot be
decided on stipulated facts.
     (4) The board, by rule, shall establish
the procedures for disposition of claims by the Expedited Claim Service to
insure fair and just treatment of workers in all such proceedings.
     (5) Notwithstanding ORS 9.320 or any
provision of this chapter, an individual who is not an attorney may represent
oneself or other persons who consent to such representation at any proceeding
before the Expedited Claim Service.
     (6) Any compromises, agreements, admissions,
stipulations, statements of fact that are made or other such action taken by
the representative is binding on those represented to the same extent as if
done by an attorney. A person so represented may not thereafter claim that any
such proceeding or meeting was legally defective because the person was not
represented by an attorney.
     (7) An individual who is not an attorney
may not represent a claimant for a fee at any proceeding under this chapter.
     (8) As used in this subsection, “attorney”
has the meaning for that term provided in ORS 9.005. [1987 c.884 §18]
     656.292 [Amended by 1965 c.285 §38; renumbered
656.301]
     656.294 [Amended by 1965 c.285 §37; renumbered
656.304]
     656.295
Board review of Administrative Law Judge orders; application of standards for
evaluation of disability.
(1) The request for review by the WorkersÂ’ Compensation Board of an order of an
Administrative Law Judge need only state that the party requests a review of
the order.
     (2) The requests for review shall be
mailed to the board and copies of the request shall be mailed to all parties to
the proceeding before the Administrative Law Judge.
     (3) When review has been requested, the
record of such oral proceedings at the hearings before the Administrative Law
Judge as may be necessary for purposes of the review shall be transcribed at
the expense of the board. The original transcript shall be certified to be
true, accurate and complete by the transcriber. A list of all exhibits received
by the Administrative Law Judge shall be furnished to the parties in interest
along with a copy of the transcribed record.
     (4) Notice of the review shall be given to
the parties by mail. The board shall set a date for review as expeditiously as
possible. Review shall be scheduled for a date not later than 90 days after
receipt by the board of the request for review. Review shall not be postponed
except in extraordinary circumstances beyond the control of the requesting
party.
     (5) The review by the board shall be based
upon the record submitted to it under subsection (3) of this section and such
oral or written argument as it may receive. Evaluation of the workerÂ’s
disability by the board shall be as of the date of issuance of the
reconsideration order pursuant to ORS 656.268. Any finding of fact regarding
the workerÂ’s impairment must be established by medical evidence that is
supported by objective findings. If the board finds that the claim has been
closed prematurely, the board shall issue an order rescinding the notice of
closure. The board shall apply to the review of the claim such standards for
the evaluation of disability as may be adopted by the Director of the
Department of Consumer and Business Services pursuant to ORS 656.726. Nothing
in this section shall be construed to prevent or limit the right of a worker,
insurer or self-insured employer to present evidence to establish by a
preponderance of the evidence that the standards adopted pursuant to ORS
656.726 for evaluation of the workerÂ’s permanent disability were incorrectly
applied in the reconsideration order pursuant to ORS 656.268. However, if the
board determines that a case has been improperly, incompletely or otherwise
insufficiently developed or heard by the Administrative Law Judge, it may
remand the case to the Administrative Law Judge for further evidence taking,
correction or other necessary action.
     (6) The board may affirm, reverse, modify
or supplement the order of the Administrative Law Judge and make such
disposition of the case as it determines to be appropriate. It shall make its
decision within 30 days after the review.
     (7) The order of the board shall be filed
and a copy thereof sent by mail to the director and to the parties.
     (8) An order of the board is final unless
within 30 days after the date of mailing of copies of such order to the
parties, one of the parties appeals to the Court of Appeals for judicial review
pursuant to ORS 656.298. The order shall contain a statement explaining the
rights of the parties under this subsection and ORS 656.298. [1965 c.285 §35a;
1977 c.804 §10; 1987 c.884 §12; 1990 c.2 §22; 1991 c.293 §1; 1999 c.313 §8]
     Note: See notes under 656.202.
     656.298
Judicial review of board orders; settlement during pendency of petition for
review. (1) Within the time
limit specified in ORS 656.295, any party affected by an order of the WorkersÂ’
Compensation Board, including orders issued pursuant to ORS 656.278, may
request judicial review of the order by the Court of Appeals.
     (2) The name and style of the proceedings
shall be “In the Matter of the Compensation of (name of the worker).”
     (3) The judicial review shall be commenced
by serving a copy of a petition for judicial review on the board and on the
parties who appeared in the review proceedings, and by filing with the clerk of
the Court of Appeals the original petition for judicial review with proof of
service indorsed thereon. The petition for judicial review shall state:
     (a) The name of the person requesting
judicial review and of all other parties.
     (b) The date of the filing of the order for
which judicial review is requested.
     (c) A statement that the person is
requesting judicial review by the Court of Appeals.
     (d) A brief statement of the relief
requested and the reasons the relief should be granted.
     (4) Within 10 days after service of a
petition for judicial review on a party under subsection (3) of this section,
such party may also request judicial review in the same manner.
     (5) The following requirements of
subsection (3) of this section are jurisdictional and may not be waived or extended:
     (a) Service of the petition for judicial
review on all parties identified in the petition for judicial review as adverse
parties or, if the petition for judicial review does not identify adverse
parties, on all parties who have appeared in the proceeding before the board,
within the time limits imposed by ORS 656.295 (8) and by subsection (4) of this
section.
     (b) Filing of the original petition for
judicial review with the Court of Appeals within the time limits imposed by ORS
656.295 (8) and by subsection (4) of this section.
     (6) Within 30 days after service of a
petition for judicial review on the board, the board shall forward to the clerk
of the Court of Appeals:
     (a) The original copy of the transcribed
record prepared under ORS 656.295.
     (b) All exhibits.
     (c) Copies of all decisions and orders
entered during the hearing and review proceedings.
     (7) The review by the Court of Appeals
shall be on the entire record forwarded by the board. Review shall be as
provided in ORS 183.482 (7) and (8).
     (8) Review under this section shall be
given precedence on the docket over all other cases, except those given equal
status by statute.
     (9)(a) If the parties to a petition for
judicial review of an order of the board settle all or part of the matter during
the pendency of the petition for judicial review, the board has jurisdiction to
enter any orders that may be necessary to implement the settlement.
     (b) If the settlement disposes of all
issues during the pendency of the petition for judicial review, the appellate
court may dismiss the petition for judicial review.
     (c) If the settlement disposes of part of
the issues during the pendency of the petition for judicial review, the
appellate court may limit judicial review to the issues not disposed of by the
settlement. [1965 c.285 §36; 1977 c.804 §11; 1987 c.884 §12a; 1997 c.389 §1;
2005 c.188 §3; 2007 c.17 §1]
     Note: See notes under 656.202.
     656.301 [Formerly 656.292; repealed by 1977 c.804 §55]
     656.304
When acceptance of compensation precludes hearing. A claimant may accept and cash any check
given in payment of any award or compensation without affecting the right to a
hearing, except that the right of hearing on any award shall be waived by
acceptance of a lump sum award by a claimant where such lump sum award was
granted as a result of the claimantÂ’s own request under ORS 656.230. This
section shall not be construed as a waiver of the necessity of complying with
ORS 656.283 to 656.298. [Formerly 656.294; 2007 c.270 §6]
     656.307
Determination of issues regarding responsibility for compensation payment;
mediation or arbitration procedure; rules. (1)(a) Where there is an issue regarding:
     (A) Which of several subject employers is
the true employer of a claimant worker;
     (B) Which of more than one insurer of a
certain employer is responsible for payment of compensation to a worker;
     (C) Responsibility between two or more
employers or their insurers involving payment of compensation for one or more
accidental injuries; or
     (D) Joint employment by two or more
employers,
the Director
of the Department of Consumer and Business Services shall, by order, designate
who shall pay the claim, if the employers and insurers admit that the claim is
otherwise compensable. Payments shall begin in any event as provided in ORS
656.262 (4).
     (b) At the time of claim closure, all
parties to an order issued pursuant to paragraph (a) of this subsection shall
have reconsideration and appeal rights.
     (2) The director then shall request the
WorkersÂ’ Compensation Board chairperson to appoint an Administrative Law Judge
to determine the responsible paying party. The proceedings shall be conducted
in the same manner as any other hearing and any further appeal shall be
conducted pursuant to ORS 656.295 and 656.298.
     (3) When a determination of the
responsible paying party has been made, the director shall direct any necessary
monetary adjustment between the parties involved. Any monetary adjustment not
reimbursed by an insurer or self-insured employer shall be recovered from the
Consumer and Business Services Fund. Any stipulation or agreement under
subsection (6) of this section shall not obligate the Consumer and Business
Services Fund for reimbursement without prior approval of the Director of the
Department of Consumer and Business Services.
     (4) No self-insured employer or an insurer
shall be joined in any proceeding under this section regarding its
responsibility for any claim subject to ORS 656.273 unless the issue is
entitled to hearing on application of the worker.
     (5) The claimant shall be joined in any
proceeding under this section as a necessary party, but may elect to be treated
as a nominal party. If the claimant appears at any such proceeding and actively
and meaningfully participates through an attorney, the Administrative Law Judge
may require that a reasonable fee for the claimantÂ’s attorney be paid by the
employer or insurer determined by the Administrative Law Judge to be the party
responsible for paying the claim.
     (6)(a) Notwithstanding subsection (2) of
this section, parties to a responsibility proceeding under this section may
agree to resolution of the dispute by mediation or arbitration by a private
party. Any settlement stipulation, arbitration decision or other resolution of
matters in dispute resulting from mediation or arbitration proceedings shall be
filed with the Hearings Division and shall be given the same force and effect
as an order of an Administrative Law Judge made pursuant to subsection (2) of
this section. However, any such settlement stipulation, arbitration decision or
other resolution is binding on the parties and is not subject to review by the
director, an Administrative Law Judge, the board or any court or other
administrative body, unless required pursuant to paragraph (d) of this
subsection or subsection (3) of this section.
     (b) For purposes of this subsection,
mediation is a process of discussion and negotiation, with the mediator playing
a central role in seeking a consensus among the parties. Such consensus may be
reflected in a final mediation settlement stipulation, signed by all the
parties and fully binding upon the parties with the same effect as a final
order of an Administrative Law Judge, when the signed mediation settlement
stipulation is filed with the Hearings Division of the WorkersÂ’ Compensation
Board.
     (c) For purposes of this subsection,
arbitration is an agreement to submit the matter to a binding decision by an
arbitrator, through a process mutually agreed upon in advance. Once all the
parties have agreed in writing to proceed with arbitration, no party may
withdraw from the arbitration process except as provided in the written
arbitration agreement.
     (d) A mediation settlement stipulation may
include matters beyond the responsibility issues. If other matters are
included, the settlement agreement shall be submitted to the Hearings Division
of the WorkersÂ’ Compensation Board for review and approval, under this chapter,
as to such additional matters beyond the responsibility issues.
     (e) Any arbitration decision shall be
limited to a decision as to responsibility and, where appropriate, the payment
of associated costs and attorney fees. The arbitratorÂ’s decision shall have the
same effect as a final order of an Administrative Law Judge when the signed
decision is filed with the Hearings Division.
     (f) When the parties have reported to the
Hearings Division that they have agreed upon a mediation or arbitration
process, the hearing shall be deferred for 90 days to allow the mediation or
arbitration process to occur. Once 90 days have passed, the matter shall again
be docketed for hearing unless the parties advise the Hearings Division in
writing that progress has been made and request an extension of time of up to
90 days, which extension of time shall be granted as a matter of right. Once
the second 90 days have passed, the matter shall again be docketed for hearing,
and the hearing shall proceed before an Administrative Law Judge as though
there had been no mediation or arbitration process, unless the parties present
a mediation settlement stipulation or signed arbitration decision before the
hearing begins.
     (g) All parties must agree in writing to
pursue mediation or arbitration and must agree upon the selection of the
mediator or arbitrator. The mediator or arbitrator shall not be an employee of
any insurer or self-insured employer that is a party to the proceedings. The
mediator or arbitrator must be an attorney admitted to practice law in the
State of
     (h) If the claimant is represented by an
attorney, the other parties must arrange for payment of a reasonable attorney
fee for the claimantÂ’s attorneyÂ’s services during the mediation or arbitration.
Any mediation or arbitration agreement shall specify the terms of the fee
arrangement.
     (i) If the claimant is not represented by
an attorney, the mediation process cannot include any issue other than
responsibility. A nonrepresented claimant must be advised in writing of the
following before the mediation or arbitration proceeds:
     (A) The claimant’s right to refuse to
participate in mediation or arbitration proceedings and to, instead, proceed to
a hearing before an Administrative Law Judge;
     (B) The present rate of temporary total
disability benefits for each alleged date of injury;
     (C) The present rate of permanent partial
disability benefits for each alleged date of injury;
     (D) The estimated date of expiration of
aggravation rights for each alleged date of injury; and
     (E) The claimant’s right to be represented
by counsel of the claimantÂ’s choice at no expense to the claimant.
     (j) Notwithstanding any other provision of
law, any insurer or self-insured employer may be represented by a certified
claims examiner rather than by an attorney in any mediation or arbitration
hereunder. Any separate insured for the same insurer shall be represented by a
separate claims examiner, if the insured has a continuing financial exposure as
to the claim; where no continuing financial exposure exists, a single certified
claims examiner may represent more than one insured for the same insurer in the
mediation or arbitration proceeding.
     (k) Any other procedures as to mediation
or arbitration shall be subject to agreement among the parties. The WorkersÂ’
Compensation Board may adopt rules as to the process for deferral and docketing
of hearings where mediation or arbitration occurs, the filing of arbitration
decisions as orders of the Hearings Division, the filing of mediation
settlement stipulations regarding responsibility as orders of the Hearings
Division, and review and approval of mediation settlement stipulations that
extend beyond the issues of responsibility and associated attorney fees and
costs. The WorkersÂ’ Compensation Board shall not enact rules that restrict the
mediation or arbitration process except to the extent provided within this
section. [1965 c.285 §39; 1971 c.70 §1; 1979 c.839 §8; 1987 c.713 §5; 1995
c.332 §36; 1997 c.43 §1; 1999 c.313 §9; 1999 c.876 §3; 2003 c.657 §§9,10; 2007
c.274 §5]
     656.308
Responsibility for payment of claims; effect of new injury; denial of
responsibility; procedure for joining employers and insurers; attorney fees;
limitation on filing claims subject to settlement agreement. (1) When a worker sustains a compensable
injury, the responsible employer shall remain responsible for future
compensable medical services and disability relating to the compensable condition
unless the worker sustains a new compensable injury involving the same
condition. If a new compensable injury occurs, all further compensable medical
services and disability involving the same condition shall be processed as a
new injury claim by the subsequent employer. The standards for determining the
compensability of a combined condition under ORS 656.005 (7) shall also be used
to determine the occurrence of a new compensable injury or disease under this
section.
     (2)(a) Any insurer or self-insured
employer who disputes responsibility for a claim shall so indicate in or as
part of a denial otherwise meeting the requirements of ORS 656.262 issued in
the 60 days allowed for processing of the claim. The denial shall advise the
worker to file separate, timely claims against other potentially responsible
insurers or self-insured employers, including other insurers for the same
employer, in order to protect the right to obtain benefits on the claim. The
denial may list the names and addresses of other insurers or self-insured
employers. Such denials shall be final unless the worker files a timely request
for hearing pursuant to ORS 656.319. All such requests for hearing shall be
consolidated into one proceeding.
     (b) No insurer or self-insured employer,
including other insurers for the same employer, shall be joined to any workersÂ’
compensation hearing unless the worker has first filed a timely, written claim
against that insurer or self-insured employer, or the insurer or self-insured
employer has consented to issuance of an order designating a paying agent
pursuant to ORS 656.307. An insurer or self-insured employer against whom a
claim is filed may contend that responsibility lies with another insurer or
self-insured employer, including another insurer for the same employer,
regardless of whether the worker has filed a claim against that insurer or
self-insured employer.
     (c) Upon written notice by an insurer or
self-insured employer filed not more than 28 days or less than 14 days before
the hearing, the Administrative Law Judge shall dismiss that party from the
proceeding if the record does not contain substantial evidence to support a
finding of responsibility against that party. The Administrative Law Judge
shall decide such motions and inform the parties not less than seven days prior
to the hearing, or postpone the hearing.
     (d) Notwithstanding ORS 656.382 (2),
656.386 and 656.388, a reasonable attorney fee shall be awarded to the injured
worker for the appearance and active and meaningful participation by an
attorney in finally prevailing against a responsibility denial. Such a fee
shall not exceed $1,000 absent a showing of extraordinary circumstances.
     (3) A worker who is a party to an approved
disputed claim settlement agreement under ORS 656.289 (4) may not subsequently
file a claim against an insurer or a self-insured employer who is a party to
the agreement with regard to claim conditions settled in the agreement even if
other insurers or employers disclaim responsibility for those claim conditions.
A worker who is a party to an approved claim disposition agreement under ORS
656.236 (1) may not subsequently file a claim against an insurer or a
self-insured employer who is a party to the agreement with regard to any matter
settled in the agreement even if other insurers or employers disclaim
responsibility for those claim conditions, unless the claim in the subsequent
proceeding is limited to a claim for medical services for claim conditions
settled in the agreement. [1990 c.2 §49; 1995 c.332 §37; 2001 c.865 §8]
     Note: See notes under 656.202.
     656.310
Presumption concerning notice of injury and self-inflicted injuries; reports as
evidence. (1) In any
proceeding for the enforcement of a claim for compensation under this chapter,
there is a rebuttable presumption that:
     (a) Sufficient notice of injury was given
and timely filed; and
     (b) The injury was not occasioned by the
willful intention of the injured worker to commit self-injury or suicide.
     (2) The contents of medical, surgical and
hospital reports presented by claimants for compensation shall constitute prima
facie evidence as to the matter contained therein; so, also, shall such reports
presented by the insurer or self-insured employer, provided that the doctor
rendering medical and surgical reports consents to submit to cross-examination.
This subsection shall also apply to medical or surgical reports from any
treating or examining doctor who is not a resident of Oregon, provided that the
claimant, self-insured employer or the insurer shall have a reasonable time,
but no less than 30 days after receipt of notice that the report will be
offered in evidence at a hearing, to cross-examine such doctor by deposition or
by written interrogatories to be settled by the Administrative Law Judge. [1965
c.285 §40; 1969 c.447 §1; 1981 c.854 §21]
     656.312 [Amended by 1953 c.428 §2; 1965 c.285 §44;
renumbered 656.578]
     656.313
Stay of compensation pending request for hearing or review; procedure for
denial of claim for medical services; reimbursement. (1)(a) Filing by an employer or the insurer
of a request for hearing on a reconsideration order before the Hearings
Division, a request for WorkersÂ’ Compensation Board review or court appeal or
request for review of an order of the Director of the Department of Consumer
and Business Services regarding vocational assistance stays payment of the
compensation appealed, except for:
     (A) Temporary disability benefits that
accrue from the date of the order appealed from until closure under ORS
656.268, or until the order appealed from is itself reversed, whichever event
first occurs;
     (B) Permanent total disability benefits
that accrue from the date of the order appealed from until the order appealed
from is reversed;
     (C) Death benefits payable to a surviving
spouse prior to remarriage, to children or dependents that accrue from the date
of the order appealed from until the order appealed from is reversed; and
     (D) Vocational benefits ordered by the
director pursuant to ORS 656.283 (2). If a denial of vocational benefits is
upheld by a final order, the insurer or self-insured employer shall be
reimbursed from the WorkersÂ’ Benefit Fund pursuant to ORS 656.605 for all costs
incurred in providing vocational benefits as a result of the order that was
appealed.
     (b) If ultimately found payable under a
final order, benefits withheld under this subsection shall accrue interest at
the rate provided in ORS 82.010 from the date of the order appealed from
through the date of payment. The board shall expedite review of appeals in which
payment of compensation has been stayed under this section.
     (2) If the board or court subsequently
orders that compensation to the claimant should not have been allowed or should
have been awarded in a lesser amount than awarded, the claimant shall not be
obligated to repay any such compensation which was paid pending the review or
appeal.
     (3) If an insurer or self-insured employer
denies the compensability of all or any portion of a claim submitted for
medical services, the insurer or self-insured employer shall send notice of the
denial to each provider of such medical services and to any provider of health
insurance for the injured worker. Except for medical services payable in
accordance with ORS 656.247, after receiving notice of the denial, a medical
service provider may submit medical reports and bills for the disputed medical
services to the provider of health insurance for the injured worker. The health
insurance provider shall pay all such bills in accordance with the limits,
terms and conditions of the policy. If the injured worker has no health
insurance, such bills may be submitted to the injured worker. A provider of
disputed medical services shall make no further effort to collect disputed
medical service bills from the injured worker until the issue of compensability
of the medical services has been finally determined.
     (4) Except for medical services payable in
accordance with ORS 656.247:
     (a) When the compensability issue has been
finally determined or when disposition or settlement of the claim has been made
pursuant to ORS 656.236 or 656.289 (4), the insurer or self-insured employer
shall notify each affected service provider and health insurance provider of
the results of the disposition or settlement.
     (b) If the services are determined to be
compensable, the insurer or self-insured employer shall reimburse each health
insurance provider for the amount of claims paid by the health insurance
provider pursuant to this section. Such reimbursement shall be in addition to
compensation or medical benefits the worker receives. Medical service
reimbursement shall be paid directly to the health insurance provider.
     (c) If the services are settled pursuant
to ORS 656.289 (4), the insurer or self-insured employer shall reimburse, out
of the settlement proceeds, each medical service provider for billings received
by the insurer or self-insured employer on and before the date on which the
terms of settlement are agreed as specified in the settlement document that are
not otherwise partially or fully reimbursed.
     (d) Reimbursement under this section shall
be made only for medical services related to the claim that would be
compensable under this chapter if the claim were compensable and shall be made
at one-half the amount provided under ORS 656.248. In no event shall
reimbursement made to medical service providers exceed 40 percent of the total
present value of the settlement amount, except with the consent of the worker.
If the settlement proceeds are insufficient to allow each medical service provider
the reimbursement amount authorized under this subsection, the insurer or
self-insured employer shall reduce each providerÂ’s reimbursement by the same
proportional amount. Reimbursement under this section shall not prevent a
medical service provider or health insurance provider from recovering the
balance of amounts owing for such services directly from the worker.
     (5) As used in this section, “health
insurance” has the meaning for that term provided in ORS 731.162. [1965 c.285 §41;
1979 c.673 §1; 1981 c.535 §8; 1981 c.854 §22; 1983 c.809 §2; 1990 c.2 §23; 1993
c.521 §1; 1995 c.332 §38; amendments by 1995 c.332 §38a repealed by 1999 c.6 §1;
1999 c.6 §11; 2001 c.865 §13a; 2005 c.588 §4]
     Note: See notes under 656.202.
     656.314 [Amended by 1965 c.285 §45; renumbered
656.580]
     656.316 [Amended by 1953 c.428 §2; 1965 c.285 §46;
renumbered 656.583]
     656.318 [Amended by 1965 c.285 §47; renumbered
656.587]
     656.319
Time within which hearing must be requested. (1) With respect to objection by a claimant to denial of a claim for
compensation under ORS 656.262, a hearing thereon shall not be granted and the
claim shall not be enforceable unless:
     (a) A request for hearing is filed not
later than the 60th day after the mailing of the denial to the claimant; or
     (b) The request is filed not later than
the 180th day after mailing of the denial and the claimant establishes at a
hearing that there was good cause for failure to file the request by the 60th
day after mailing of the denial.
     (2) Notwithstanding subsection (1) of this
section, a hearing shall be granted even if a request therefor is filed after
the time specified in subsection (1) of this section if the claimant can show
lack of mental competency to file the request within that time. The period for
filing under this subsection shall not be extended more than five years by lack
of mental competency, nor shall it extend in any case longer than one year
after the claimant regains mental competency.
     (3) With respect to subsection (2) of this
section, lack of mental competency shall apply only to an individual suffering
from such mental disorder, mental illness or nervous disorder as is required
for commitment or voluntary admission to a treatment facility pursuant to ORS
426.005 to 426.223 and 426.241 to 426.380 and the rules of the Department of
Human Services.
     (4) With respect to objections to a
reconsideration order under ORS 656.268, a hearing on such objections shall not
be granted unless a request for hearing is filed within 30 days after the
copies of the reconsideration order were mailed to the parties.
     (5) With respect to objection by a
claimant to a notice of refusal to close a claim under ORS 656.268, a hearing
on the objection shall not be granted unless the request for hearing is filed
within 60 days after copies of the notice of refusal to close were mailed to
the parties.
     (6) A hearing for failure to process or an
allegation that the claim was processed incorrectly shall not be granted unless
the request for hearing is filed within two years after the alleged action or
inaction occurred.
     (7) With respect to objection by a
claimant to a notice of closure issued under ORS 656.206, a hearing on the
objection shall not be granted unless the request for hearing is filed within
60 days after the notice of closure was mailed to the claimant. [1965 c.285 §41a;
1969 c.206 §1; 1975 c.497 §4; 1983 c.819 §1; 1987 c.884 §14; 1990 c.2 §24; 1995
c.332 §39; 2005 c.461 §6]
Note: See notes under 656.202.
     656.320 [Amended by 1953 c.428 §2; 1965 c.285 §48;
renumbered 656.591]
     656.322 [Amended by 1953 c.428 §2; 1955 c.656 §1;
1959 c.644 §1; 1965 c.285 §49; renumbered 656.593]
     656.324 [Amended by 1965 c.285 §50; renumbered
656.595]
     656.325
Required medical examination; worker-requested examination; qualified physicians;
claimantÂ’s duty to reduce disability; suspension or reduction of benefits;
cessation or reduction of temporary total disability benefits; rules;
penalties. (1)(a) Any worker
entitled to receive compensation under this chapter is required, if requested
by the Director of the Department of Consumer and Business Services, the
insurer or self-insured employer, to submit to a medical examination at a time
reasonably convenient for the worker as may be provided by the rules of the
director. No more than three independent medical examinations may be requested
except after notification to and authorization by the director. If the worker
refuses to submit to any such examination, or obstructs the same, the rights of
the worker to compensation shall be suspended with the consent of the director
until the examination has taken place, and no compensation shall be payable
during or for account of such period. The provisions of this paragraph are
subject to the limitations on medical examinations provided in ORS 656.268.
     (b) When a worker is requested by the
director, the insurer or self-insured employer to attend an independent medical
examination, the examination must be conducted by a physician selected from a
list of qualified physicians established by the director under ORS 656.328.
     (c) The director shall adopt rules
applicable to independent medical examinations conducted pursuant to paragraph
(a) of this subsection that:
     (A) Provide a worker the opportunity to
request review by the director of the reasonableness of the location selected
for an independent medical examination. Upon receipt of the request for review,
the director shall conduct an expedited review of the location selected for the
independent medical examination and issue an order on the reasonableness of the
location of the examination. The director shall determine if there is
substantial evidence for the objection to the location for the independent
medical examination based on a conclusion that the required travel is medically
contraindicated or other good cause establishing that the required travel is
unreasonable. The determinations of the director about the location of
independent medical examinations are not subject to review.
     (B) Impose a monetary penalty against a
worker who fails to attend an independent medical examination without prior
notification or without justification for not attending the examination. A
penalty imposed under this subparagraph may be imposed only on a worker who is
not receiving temporary disability benefits under ORS 656.210 or 656.212. An
insurer or self-insured employer may offset any future compensation payable to
the worker to recover any penalty imposed under this subparagraph from a claim
with the same insurer or self-insured employer. When a penalty is recovered
from temporary disability or permanent total disability benefits, the amount
recovered from each payment may not exceed 25 percent of the benefit payment
without prior authorization from the worker.
     (C) Impose a sanction against a medical
service provider that unreasonably fails to provide in a timely manner
diagnostic records required for an independent medical examination.
     (d) Notwithstanding ORS 656.262 (6), if
the director determines that the location selected for an independent medical
examination is unreasonable, the insurer or self-insured employer shall accept
or deny the claim within 90 days after the employer has notice or knowledge of
the claim.
     (e) If the worker has made a timely
request for a hearing on a denial of compensability as required by ORS 656.319
(1)(a) that is based on one or more reports of examinations conducted pursuant
to paragraph (a) of this subsection and the workerÂ’s attending physician or
nurse practitioner authorized to provide compensable medical services under ORS
656.245 does not concur with the report or reports, the worker may request an
examination to be conducted by a physician selected by the director from the
list described in ORS 656.328. The cost of the examination and the examination
report shall be paid by the insurer or self-insured employer.
     (f) The insurer or self-insured employer
shall pay the costs of the medical examination and related services which are
reasonably necessary to allow the worker to submit to any examination requested
under this section. As used in this paragraph, “related services” includes, but
is not limited to, child care, travel, meals, lodging and an amount equivalent
to the workerÂ’s net lost wages for the period during which the worker is absent
if the worker does not receive benefits pursuant to ORS 656.210 (4) during the
period of absence. A claim for “related services” described in this paragraph
shall be made in the manner prescribed by the director.
     (g) A worker who objects to the location
of an independent medical examination must request review by the director under
paragraph (c)(A) of this subsection within six business days of the date the
notice of the independent medical examination was mailed.
     (2) For any period of time during which
any worker commits insanitary or injurious practices which tend to either
imperil or retard recovery of the worker, or refuses to submit to such medical
or surgical treatment as is reasonably essential to promote recovery, or fails
to participate in a program of physical rehabilitation, the right of the worker
to compensation shall be suspended with the consent of the director and no
payment shall be made for such period. The period during which such worker
would otherwise be entitled to compensation may be reduced with the consent of
the director to such an extent as the disability has been increased by such
refusal.
     (3) A worker who has received an award for
permanent total or permanent partial disability should be encouraged to make a
reasonable effort to reduce the disability; and the award shall be subject to
periodic examination and adjustment in conformity with ORS 656.268.
     (4) When the employer of an injured
worker, or the employerÂ’s insurer determines that the injured worker has failed
to follow medical advice from the attending physician or nurse practitioner
authorized to provide compensable medical services under ORS 656.245 or has
failed to participate in or complete physical restoration or vocational
rehabilitation programs prescribed for the worker pursuant to this chapter, the
employer or insurer may petition the director for reduction of any benefits
awarded the worker. Notwithstanding any other provision of this chapter, if the
director finds that the worker has failed to accept treatment as provided in
this subsection, the director may reduce any benefits awarded the worker by
such amount as the director considers appropriate.
     (5)(a) Except as provided by ORS 656.268
(4)(c) and (10), an insurer or self-insured employer shall cease making
payments pursuant to ORS 656.210 and shall commence making payment of such
amounts as are due pursuant to ORS 656.212 when an injured worker refuses wage
earning employment prior to claim determination and the workerÂ’s attending
physician or nurse practitioner authorized to provide compensable medical
services under ORS 656.245, after being notified by the employer of the
specific duties to be performed by the injured worker, agrees that the injured
worker is capable of performing the employment offered.
     (b) If the worker has been terminated for
violation of work rules or other disciplinary reasons, the insurer or
self-insured employer shall cease payments pursuant to ORS 656.210 and commence
payments pursuant to ORS 656.212 when the attending physician or nurse
practitioner authorized to provide compensable medical services under ORS
656.245 approves employment in a modified job that would have been offered to
the worker if the worker had remained employed, provided that the employer has
a written policy of offering modified work to injured workers.
     (c) If the worker is a person present in
the United States in violation of federal immigration laws, the insurer or
self-insured employer shall cease payments pursuant to ORS 656.210 and commence
payments pursuant to ORS 656.212 when the attending physician or nurse
practitioner authorized to provide compensable medical services under ORS
656.245 approves employment in a modified job whether or not such a job is
available.
     (6) Any party may request a hearing on any
dispute under this section pursuant to ORS 656.283. [Formerly 656.280; 1977
c.804 §12; 1977 c.868 §4; 1979 c.839 §29; 1981 c.535 §10; 1981 c.723 §4; 1981
c.854 §23; 1983 c.816 §8; 1985 c.770 §7; 1987 c.884 §43; 1989 c.598 §1; 1990
c.2 §25; 1995 c.332 §40; 2001 c.865 §13; 2003 c.657 §§11,12; 2003 c.811 §§13,14;
2005 c.675 §§1,2; 2007 c.274 §6; 2007 c.365 §7]
     Note: See notes under 656.202.
     656.326 [Amended by 1965 c.285 §51; renumbered
656.597]
     656.327
Review of medical treatment of worker; findings; review; costs. (1)(a) If an injured worker, an insurer or
self-insured employer or the Director of the Department of Consumer and
Business Services believes that the medical treatment, not subject to ORS
656.260, that the injured worker has received, is receiving, will receive or is
proposed to receive is excessive, inappropriate, ineffectual or in violation of
rules regarding the performance of medical services, the injured worker,
insurer or self-insured employer must request administrative review of the
treatment by the director prior to requesting a hearing on the issue and so
notify the parties.
     (b) Unless the director issues an order
finding that no bona fide medical services dispute exists, the director shall
review the matter as provided in this section. Appeal of an order finding that
no bona fide medical services dispute exists shall be made directly to the
WorkersÂ’ Compensation Board within 30 days after issuance of the order. The
board shall set aside or remand the order only if the board finds that the
order is not supported by substantial evidence in the record. Substantial
evidence exists to support a finding in the order when the record, reviewed as
a whole, would permit a reasonable person to make that finding. The decision of
the board is not subject to review by any other court or administrative agency.
     (c) The insurer or self-insured employer
shall not deny the claim for medical services nor shall the worker request a
hearing on any issue under this section until the director issues an order
under subsection (2) of this section.
     (2) The director shall review medical
information and records regarding the treatment. The director may cause an
appropriate medical service provider to perform reasonable and appropriate
tests, other than invasive tests, upon the worker and may examine the worker.
Notwithstanding ORS 656.325 (1), the worker may refuse a test without sanction.
Review of the medical treatment shall be completed and the director shall issue
an order within 60 days of the request for review. The director shall create a
documentary record sufficient for purposes of judicial review. If the worker,
insurer, self-insured employer or medical service provider is dissatisfied with
that order, the dissatisfied party may request review under ORS 656.704. The
administrative order may be modified at hearing only if it is not supported by
substantial evidence in the record or if it reflects an error of law. No new
medical evidence or issues shall be admitted. The worker is not obligated to
pay for medical treatment determined not to be compensable under this
subsection.
     (3) Upon request of either party, the
director may delegate to a physician or a panel of physicians the review of
medical treatment under this section. At least one member of any such panel
shall be a practitioner of the healing art of the medical service provider
whose treatment is being reviewed. No member of any such panel shall be a
physician whose treatment is the subject of review. The panel shall be chosen
in such manner as the director may prescribe, in consultation with the
committee referred to in ORS 656.790. The physician or panel shall submit
findings to the director within the time limits as prescribed by the director.
     (4) The physician or the panel of
physicians and the medical arbiter or panel of medical arbiters appointed
pursuant to ORS 656.268 acting pursuant to the authority of the director are
agents of the Department of Consumer and Business Services and are subject to
the provisions of ORS 30.260 to 30.300. The findings of the physician or panel
of physicians, the medical arbiter or panel of medical arbiters, all of the
records and all communications to or before a panel or arbiter are privileged
and are not discoverable or admissible in any proceeding other than those
proceedings under this chapter. No member of a panel or a medical arbiter shall
be examined or subject to administrative or civil liability regarding
participation in or the findings of the panel or medical arbiter or any matter
before the panel or medical arbiter other than in proceedings under this
chapter.
     (5) The costs of review of medical
treatment by the physician or panel of physicians pursuant to this section and
costs incurred by the worker in attending any examination required under this
section, including child care, transportation, lodging and meals, shall be paid
by the insurer or self-insured employer. [1987 c.884 §29; 1990 c.2 §26; 1995
c.332 §41; 2005 c.26 §12]
     656.328
List of authorized providers and standards of professional conduct for
providers of independent medical examinations; exclusion; complaints; rules. (1) The Director of the Department of
Consumer and Business Services shall maintain a list of providers that are
authorized to perform independent medical examinations.
     (2) A provider on the list maintained by
the director under subsection (1) of this section may be excluded from the list
by the director after a finding of a violation of standards of professional
conduct for conducting independent medical examinations adopted by the
appropriate health professional regulatory board. The director shall adopt by
rule standards of professional conduct for providers performing independent
medical examinations if the appropriate health professional regulatory board
has not adopted standards pertaining to independent medical examinations. The
rules adopted by the director under this subsection may be consistent with the
guidelines of conduct published by the Independent Medical Examination
Association in effect on June 4, 2007. The decision of the director to exclude
a provider from the list maintained under subsection (1) of this section is
subject to review under ORS 656.704.
     (3) The director, in consultation with the
advisory committee on medical care of the WorkersÂ’ Compensation Division of the
Department of Consumer and Business Services, the WorkersÂ’ Compensation
Management-Labor Advisory Committee and affected interest groups shall develop,
and the director shall adopt by rule:
     (a) Professional licensing training
requirements and educational materials for physicians participating in the
workersÂ’ compensation system and conducting independent medical examinations
required under ORS 656.325 (1); and
     (b) A process for investigating and
reviewing complaints about independent medical examinations conducted under the
requirements of ORS 656.325 (1) that includes, but is not limited to, standards
for referring complaints to the appropriate health professional regulatory
board and an appeals process for a physician who disagrees with an action taken
by the director under subsection (2) of this section. [2005 c.675 §5; 2007
c.300 §1]
     656.329 [1987 c.884 §33; repealed by 1995 c.94 §1]
     656.330 [1977 c.868 §2; repealed by 1985 c.660 §2
and 1985 c.770 §5]
     656.331
Contact, medical examination of worker represented by attorney prohibited without
written notice; rules. (1)
Notwithstanding any other provision of this chapter, if an injured worker is
represented by an attorney and the attorney has given written notice of such
representation:
     (a) The Director of the Department of
Consumer and Business Services, the insurer or self-insured employer shall not
request the worker to submit to an independent medical examination without
giving prior or simultaneous written notice to the workerÂ’s attorney.
     (b) An insurer or self-insured employer
shall not contact the worker without giving prior or simultaneous written
notice to the workerÂ’s attorney if the contact affects the denial, reduction or
termination of the workerÂ’s benefits.
     (2) The director shall adopt rules
necessary to carry out the provisions of subsection (1)(b) of this section. [1985
c.706 §8]
     656.335 [1981 c.723 §7; 1985 c.600 §3; 1985 c.770 §7a;
repealed by 1995 c.332 §68]
     656.340
Vocational assistance procedure; eligibility criteria; service providers;
rules. (1)(a) The insurer or
self-insured employer shall cause vocational assistance to be provided to an
injured worker who is eligible for assistance in returning to work.
     (b) For this purpose the insurer or
self-insured employer shall contact a worker with a claim for a disabling
compensable injury or claim for aggravation for evaluation of the workerÂ’s
eligibility for vocational assistance within five days of:
     (A) Having knowledge of the worker’s
likely eligibility for vocational assistance, from a medical or investigation
report, notification from the worker, or otherwise; or
     (B) The time the worker is medically
stationary, if the worker has not returned to the workerÂ’s regular employment
or other suitable employment with the employer at the time of injury or
aggravation and the worker is not receiving vocational assistance.
     (c) Eligibility may be redetermined by the
insurer or self-insured employer upon receipt of new information that would
change the eligibility determination.
     (2) Contact under subsection (1) of this
section shall include informing the worker about reemployment rights, the
responsibility of the worker to request reemployment, and wage subsidy and job
site modification assistance and the provisions of the preferred worker program
pursuant to rules adopted by the Director of the Department of Consumer and
Business Services.
     (3) Within five days after notification
that the attending physician or nurse practitioner authorized to provide
compensable medical services under ORS 656.245 has released a worker to return
to work, the insurer or self-insured employer shall inform the worker about the
opportunity to seek reemployment or reinstatement under ORS 659A.043 and
659A.046. The insurer shall inform the employer of the workerÂ’s reemployment rights,
wage subsidy and the job site modification assistance and the provisions of the
preferred worker program.
     (4) As soon as possible, and not more than
30 days after the contact required by subsection (1) of this section, the
insurer or self-insured employer shall cause an individual certified by the
director to provide vocational assistance to determine whether the worker is
eligible for vocational assistance. The insurer or self-insured employer shall
notify the worker of the decision regarding the workerÂ’s eligibility for
vocational assistance. If the insurer or self-insured employer decides that the
worker is not eligible, the worker may apply to the director for review of the
decision as provided in ORS 656.283 (2). A worker determined ineligible upon
evaluation under subsection (1)(b)(B) of this section, or because the workerÂ’s
eligibility has fully and finally expired under standards prescribed by the
director, may not be found eligible thereafter unless that eligibility
determination is rejected by the director under ORS 656.283 (2) or the workerÂ’s
condition worsens so as to constitute an aggravation claim under ORS 656.273. A
worker is not entitled to vocational assistance benefits when possible
eligibility for such benefits arises from a worsening of the workerÂ’s condition
that occurs after the expiration of the workerÂ’s aggravation rights under ORS
656.273.
     (5) The objectives of vocational
assistance are to return the worker to employment which is as close as possible
to the workerÂ’s regular employment at a wage as close as possible to the weekly
wage currently being paid for employment which was the workerÂ’s regular
employment even though the wage available following employment may be less than
the wage prescribed by subsection (6) of this section. As used in this
subsection and subsection (6) of this section, “regular employment” means the
employment the worker held at the time of the injury or the claim for
aggravation under ORS 656.273, whichever gave rise to the potential eligibility
for vocational assistance; or, for a worker not employed at the time of the
aggravation, the employment the worker held on the last day of work prior to
the aggravation.
     (6)(a) A worker is eligible for vocational
assistance if the worker will not be able to return to the previous employment
or to any other available and suitable employment with the employer at the time
of injury or aggravation, and the worker has a substantial handicap to
employment.
     (b) As used in this subsection:
     (A) A “substantial handicap to employment”
exists when the worker, because of the injury or aggravation, lacks the
necessary physical capacities, knowledge, skills and abilities to be employed
in suitable employment.
     (B) “Suitable employment” means:
     (i) Employment of the kind for which the
worker has the necessary physical capacity, knowledge, skills and abilities;
     (ii) Employment that is located where the
worker customarily worked or is within reasonable commuting distance of the
workerÂ’s residence; and
     (iii) Employment that produces a weekly
wage within 20 percent of that currently being paid for employment that was the
workerÂ’s regular employment as defined in subsection (5) of this section. The
director shall adopt rules providing methods of calculating the weekly wage
currently being paid for the workerÂ’s regular employment for use in determining
eligibility and for providing assistance to eligible workers. If the workerÂ’s
regular employment was seasonal or temporary, the workerÂ’s wage shall be
averaged based on a combination of the workerÂ’s earned income and any
unemployment insurance payments. Only earned income evidenced by verifiable
documentation such as federal or state tax returns shall be used in the
calculation. Earned income does not include fringe benefits or reimbursement of
the workerÂ’s employment expenses.
     (7) Vocational evaluation, help in
directly obtaining employment and training shall be available under conditions
prescribed by the director. The director may establish other conditions for
providing vocational assistance, including those relating to the workerÂ’s
availability for assistance, participation in previous assistance programs
connected with the same claim and the nature and extent of assistance that may
be provided. Such conditions shall give preference to direct employment
assistance over training.
     (8) An insurer or self-insured employer
may utilize its own staff or may engage any other individual certified by the
director to perform the vocational evaluation required by subsection (4) of
this section.
     (9) The director shall adopt rules
providing:
     (a) Standards for and methods of
certifying individuals and authorizing vocational assistance providers
qualified by education, training, experience and plan of operation to provide
vocational assistance to injured workers;
     (b) Conditions and procedures under which
the certification of an individual or the authorization of a vocational
assistance provider to provide vocational assistance services may be suspended
or revoked for failure to maintain compliance with the certification or
authorization standards;
     (c) Standards for the nature and extent of
services a worker may receive, for plans for return to work and for determining
when the worker has returned to work; and
     (d) Procedures, schedules and conditions
relating to the payment for services performed by a vocational assistance
provider, which shall be based on payment for specific services performed and
not fees for services performed on an hourly basis. Fee schedules shall reflect
a reasonable rate for direct worker purchases and for all vocational assistance
providers and shall be the same within suitable geographic areas.
     (10) Insurers and self-insured employers
shall maintain records and make reports to the director of vocational
assistance actions at such times and in such manner as the director may
prescribe. Such requirements shall be for the purpose of assisting the
Department of Consumer and Business Services in monitoring compliance with this
section to insure that workers receive timely and appropriate vocational
assistance. The director shall minimize to the greatest extent possible the
number, extent and kinds of reports required. The director shall compile a list
of the organizations or agencies authorized to provide vocational assistance. A
current list shall be distributed by the director to all insurers and
self-insured employers. The insurer shall send the list to each worker with the
notice of eligibility.
     (11) When a worker is eligible to receive
vocational assistance, the worker and the insurer or self-insured employer
shall attempt to agree on the choice of a vocational assistance provider. If
the worker agrees, the insurer or self-insured employer may utilize its own
staff to provide vocational assistance. If they are unable to agree on a
vocational assistance provider, the insurer or self-insured employer shall
notify the director and the director shall select a provider. Any change in the
choice of vocational assistance provider is subject to the approval of the
director.
     (12) Notwithstanding ORS 656.268, a worker
actively engaged in training may receive temporary disability compensation for
a maximum of 16 months, subject to extension to 21 months by order of the
director for good cause shown. The costs related to vocational assistance
training programs may be paid for periods longer than 21 months, but in no
event may temporary disability benefits be paid for a period longer than 21
months.
     (13) As used in this section, “vocational
assistance provider” means a public or private organization or agency which
provides vocational assistance to injured workers.
     (14)(a) Determination of eligibility for
vocational assistance does not entitle all workers to the same type or extent
of assistance.
     (b) Training shall not be provided to an
eligible worker solely because the worker cannot obtain employment, otherwise
suitable, that will produce the wage prescribed in subsection (6) of this
section unless such training will enable the worker to find employment which
will produce a wage significantly closer to that prescribed in subsection (6)
of this section.
     (c) Nothing in this section shall be
interpreted to expand the availability of training under this section.
     (15) A physical capacities evaluation
shall be performed in conjunction with vocational assistance or determination
of eligibility for such assistance at the request of the insurer or
self-insured employer or worker. Such request shall be made to the attending
physician or nurse practitioner authorized to provide compensable medical services
under ORS 656.245. The attending physician or nurse practitioner, within 20
days of the request, shall perform a physical capacities evaluation or refer
the worker for such evaluation or advise the insurer or self-insured employer
and the worker in writing that the injured worker is incapable of participating
in a physical capacities evaluation. [1981 c.535 §2; 1985 c.600 §11; 1987 c.884
§15; 1990 c.2 §27; 1995 c.332 §42; amendments by 1995 c.332 §42a repealed by
1999 c.6 §1; 2003 c.811 §§15,16; 2007 c.365 §8]
     Note: See notes under 656.202.
DISCLOSURE OF
WORKER MEDICAL AND VOCATIONAL CLAIM RECORDS
     656.360
Confidentiality of worker medical and vocational claim records; exceptions where
disclosure permitted.
Insurers and their assigned claims agents shall maintain the confidentiality of
worker medical and vocational claim records. Worker medical and vocational
claim records may not be disclosed to persons other than the worker unless the
disclosure is:
     (1) Made with the consent of the worker or
the workerÂ’s beneficiary;
     (2) Reasonably necessary for the insurer
or its assigned claims agent to manage, defend or adjust claims, suits or
actions or to perform any other function required by or arising out of ORS
chapter 654, 655 or 656 or the insurance contract;
     (3) To detect or prevent criminal
activity, fraud, material misrepresentation or nondisclosure;
     (4) Pursuant to a written agreement that
requires the receiving party to maintain the confidentiality of the records; or
     (5) Otherwise required or permitted by
law. [2001 c.377 §61]
     656.362
Liability for disclosure of worker medical and vocational claim records. (1) A cause of action in the nature of
defamation, invasion of privacy or negligence may not arise against:
     (a) Any insurer or assigned claims agent
for disclosing worker medical and vocational claim records in accordance with
ORS 656.360; or
     (b) Any person for furnishing worker
medical and vocational claim records to an insurer or assigned claims agent in
accordance with ORS 656.360.
     (2) Subsection (1) of this section does
not apply to the disclosure or furnishing of false information with malice or
willful intent to injure any person. [2001 c.377 §62]
LEGAL
REPRESENTATION
     656.382
Penalties and attorney fees payable by insurer or employer in processing claim. (1) If an insurer or self-insured employer
refuses to pay compensation due under an order of an Administrative Law Judge,
board or court, or otherwise unreasonably resists the payment of compensation,
except as provided in ORS 656.385, the employer or insurer shall pay to the
claimant or the attorney of the claimant a reasonable attorney fee as provided
in subsection (2) of this section. To the extent an employer has caused the
insurer to be charged such fees, such employer may be charged with those fees.
     (2) If a request for hearing, request for
review, appeal or cross-appeal to the Court of Appeals or petition for review
to the Supreme Court is initiated by an employer or insurer, and the
Administrative Law Judge, board or court finds that the compensation awarded to
a claimant should not be disallowed or reduced, the employer or insurer shall
be required to pay to the claimant or the attorney of the claimant a reasonable
attorney fee in an amount set by the Administrative Law Judge, board or the
court for legal representation by an attorney for the claimant at and prior to
the hearing, review on appeal or cross-appeal.
     (3) If upon reaching a decision on a
request for hearing initiated by an employer it is found by the Administrative
Law Judge that the employer initiated the hearing for the purpose of delay or
other vexatious reason or without reasonable ground, the Administrative Law
Judge may order the employer to pay to the claimant such penalty not exceeding
$750 and not less than $100 as may be reasonable in the circumstances. [1965
c.285 §42; 1981 c.854 §24; 1983 c.568 §1; 1987 c.884 §34; 1990 c.2 §28; 1995
c.332 §42b]
     Note: See notes under 656.202.
     656.384 [Formerly 656.582; 1977 c.290 §4; 1977 c.804
§13; repealed by 1987 c.250 §1]
     656.385
Attorney fees in cases regarding certain medical service or vocational
rehabilitation matters; rules; limitation; penalties. (1) In all cases involving a dispute over
compensation benefits pursuant to ORS 656.245, 656.247, 656.260, 656.327 or
656.340, where a claimant finally prevails after a proceeding has commenced,
the Director of the Department of Consumer and Business Services or the
Administrative Law Judge shall require the insurer or self-insured employer to
pay a reasonable attorney fee to the claimantÂ’s attorney. In such cases, where
an attorney is instrumental in obtaining a settlement of the dispute prior to a
decision by the director or an Administrative Law Judge, the director or
Administrative Law Judge shall require the insurer or self-insured employer to
pay a reasonable attorney fee to the claimant or claimantÂ’s attorney. The
attorney fee must be based on all work the claimantÂ’s attorney has done
relative to the proceeding at all levels before the department. The attorney
fee assessed under this section must be proportionate to the benefit to the
injured worker. The director shall adopt rules for establishing the amount of
the attorney fee, giving primary consideration to the results achieved and to
the time devoted to the case. An attorney fee awarded pursuant to this
subsection may not exceed $2,000 absent a showing of extraordinary
circumstances.
     (2) If an insurer or self-insured employer
refuses to pay compensation due under ORS 656.245, 656.247, 656.260, 656.327 or
656.340 pursuant to an order of the director, an Administrative Law Judge or
the court or otherwise unreasonably resists the payment of such compensation,
the insurer or self-insured employer shall pay to the claimant or the attorney
of the claimant a reasonable attorney fee as provided in subsection (3) of this
section. To the extent an employer has caused the insurer to be charged such
fees, such employer may be charged with those fees.
     (3) If a request for a contested case
hearing, review on appeal or cross-appeal to the Court of Appeals or petition
for review to the Supreme Court is initiated by an insurer or self-insured
employer, and the director, Administrative Law Judge or court finds that the
compensation awarded under ORS 656.245, 656.247, 656.260, 656.327 or 656.340 to
a claimant should not be disallowed or reduced, the insurer or self-insured
employer shall be required to pay to the claimant or the attorney of the
claimant a reasonable attorney fee in an amount set by the director, the
Administrative Law Judge or the court for legal representation by an attorney
for the claimant at the contested case hearing, review on appeal or
cross-appeal.
     (4) If upon reaching a final contested
case decision where such contested case was initiated by an insurer or
self-insured employer it is found that the insurer or self-insured employer
initiated the contested case hearing for the purpose of delay or other
vexatious reason or without reasonable ground, the director or Administrative
Law Judge may order the insurer or self-insured employer to pay to the claimant
such penalty not exceeding $750 and not less than $100 as may be reasonable in
the circumstances.
     (5) Penalties and attorney fees awarded
pursuant to this section by the director, an Administrative Law Judge or the
courts shall be paid for by the employer or insurer in addition to compensation
found to be due to the claimant. [1995 c.332 §42d; 2003 c.756 §2; 2005 c.26 §13]
     Note: See notes under 656.202.
     656.386
Recovery of attorney fees, expenses and costs in appeal on denied claim;
attorney fees in other cases.
(1)(a) In all cases involving denied claims where a claimant finally prevails
against the denial in an appeal to the Court of Appeals or petition for review
to the Supreme Court, the court shall allow a reasonable attorney fee to the
claimantÂ’s attorney. In such cases involving denied claims where the claimant
prevails finally in a hearing before an Administrative Law Judge or in a review
by the WorkersÂ’ Compensation Board, then the Administrative Law Judge or board
shall allow a reasonable attorney fee. In such cases involving denied claims
where an attorney is instrumental in obtaining a rescission of the denial prior
to a decision by the Administrative Law Judge, a reasonable attorney fee shall
be allowed.
     (b) For purposes of this section, a “denied
claim” is:
     (A) A claim for compensation which an
insurer or self-insured employer refuses to pay on the express ground that the
injury or condition for which compensation is claimed is not compensable or
otherwise does not give rise to an entitlement to any compensation;
     (B) A claim for compensation for a
condition omitted from a notice of acceptance, made pursuant to ORS 656.262
(6)(d), which the insurer or self-insured employer does not respond to within
60 days; or
     (C) A claim for an aggravation made
pursuant to ORS 656.273 (2) or for a new medical condition made pursuant to ORS
656.267, which the insurer or self-insured employer does not respond to within
60 days.
     (c) A denied claim shall not be presumed
or implied from an insurerÂ’s or self-insured employerÂ’s failure to pay
compensation for a previously accepted injury or condition in timely fashion.
Attorney fees provided for in this subsection shall be paid by the insurer or
self-insured employer.
     (2)(a) If a claimant finally prevails
against a denial as provided in subsection (1) of this section, the court,
board or Administrative Law Judge may order payment of the claimantÂ’s
reasonable expenses and costs for records, expert opinions and witness fees.
     (b) The court, board or Administrative Law
Judge shall determine the reasonableness of witness fees, expenses and costs
for the purpose of paragraph (a) of this subsection.
     (c) Payments for witness fees, expenses
and costs ordered under this subsection shall be made by the insurer or
self-insured employer and are in addition to compensation payable to the
claimant.
     (d) Payments for witness fees, expenses
and costs ordered under this subsection may not exceed $1,500 unless the
claimant demonstrates extraordinary circumstances justifying payment of a
greater amount.
     (3) In all other cases, attorney fees
shall be paid from the increase in the claimantÂ’s compensation, if any, except
as otherwise expressly provided in this chapter. [Formerly 656.588; 1977 c.804 §14;
1981 c.854 §25; 1983 c.568 §2; 1990 c.2 §29; 1991 c.312 §1; 1995 c.332 §43;
1997 c.605 §3; 2001 c.865 §9; 2007 c.908 §1]
     Note: See notes under 656.202.
     656.388
Approval of attorney fees required; lien for fees; fee schedule; report of
legal service costs. (1) No
claim or payment for legal services by an attorney representing the worker or
for any other services rendered before an Administrative Law Judge or the
WorkersÂ’ Compensation Board, as the case may be, in respect to any claim or
award for compensation to or on account of any person, shall be valid unless
approved by the Administrative Law Judge or board, or if proceedings on appeal
from the order of the board with respect to such claim or award are had before
any court, unless approved by such court. In cases in which a claimant finally
prevails after remand from the Supreme Court, Court of Appeals or board, then
the Administrative Law Judge, board or appellate court shall approve or allow a
reasonable attorney fee for services before every prior forum as authorized
under ORS 656.307 (5), 656.308 (2), 656.382 or 656.386. No attorney fees shall
be approved or allowed for representation of the claimant before the managed
care organization or Director of the Department of Consumer and Business
Services except for representation at the contested case hearing.
     (2) Any claim for payment to a claimant’s
attorney by the claimant so approved shall, in the manner and to the extent
fixed by the Administrative Law Judge, board or such court, be a lien upon
compensation.
     (3) If an injured worker signs an attorney
fee agreement with an attorney for representation on a claim made pursuant to
this chapter and additional compensation is awarded to the worker or a
settlement agreement is consummated on the claim after the fee agreement is
signed and it is shown that the attorney with whom the fee agreement was signed
was instrumental in obtaining the additional compensation or settling the
claim, the Administrative Law Judge or the board shall grant the attorney a
lien for attorney fees out of the additional compensation awarded or proceeds
of the settlement in accordance with rules adopted by the board governing the
payment of attorney fees.
     (4) The board shall, after consultation
with the Board of Governors of the Oregon State Bar, establish a schedule of
fees for attorneys representing a worker and representing an insurer or
self-insured employer, under this chapter.
     (5) The board shall approve no claim for
legal services by an attorney representing a claimant to be paid by the
claimant if fees have been awarded to the claimant or the attorney of the
claimant in connection with the same proceeding under ORS 656.268.
     (6) Insurers and self-insured employers
shall make an annual report to the Director of the Department of Consumer and
Business Services reporting attorney salaries and other costs of legal services
incurred pursuant to this chapter. The report shall be in such form and shall
contain such information as the director prescribes. [Formerly 656.590; 1983
c.568 §3; 1987 c.884 §35; 1990 c.2 §30; 1995 c.332 §44; 2007 c.908 §3]
     Note: See notes under 656.202.
     656.390
Frivolous appeals, hearing requests or motions; expenses and attorney fee. (1) Notwithstanding ORS 656.236, if either
party requests a hearing before the Hearings Division, requests review of an
Administrative Law JudgeÂ’s decision before the WorkersÂ’ Compensation Board,
appeals for review of the claim to the Court of Appeals or to the Supreme
Court, or files a motion for reconsideration of the decision of the Court of
Appeals or the Supreme Court, and the Administrative Law Judge, board or court
finds that the appeal or motion for reconsideration was frivolous or was filed
in bad faith or for the purpose of harassment, the Administrative Law Judge,
board or court may impose an appropriate sanction upon the attorney who filed
the request for hearing, request for review, appeal or motion. The sanction may
include an order to pay to the other party the amount of the reasonable expenses
incurred by reason of the request for hearing, request for review, appeal or
motion, including a reasonable attorney fee.
     (2) As used in this section, “frivolous”
means the matter is not supported by substantial evidence or the matter is
initiated without reasonable prospect of prevailing. [1987 c.884 §31; 1995
c.332 §45]
     656.401 [1965 c.285 §74; 1967 c.359 §699; repealed
by 1975 c.556 §25 (656.403 enacted in lieu of 656.401)]
     656.402 [Renumbered 656.712]
SELF-INSURED
AND CARRIER-INSURED EMPLOYERS; INSURERS AND GUARANTY CONTRACTS
     656.403
Obligations of self-insured employer. (1) A self-insured employer directly assumes the responsibility for
providing compensation due subject workers and their beneficiaries under this
chapter.
     (2) The claims of subject workers and
their beneficiaries resulting from injuries while employed by a self-insured
employer shall be handled in the manner provided by this chapter. A
self-insured employer is subject to the rules of the Director of the Department
of Consumer and Business Services with respect to such claims.
     (3) Security deposited by a self-insured
employer shall not relieve any such employer from full and primary
responsibility for claims administration and payment of compensation under this
chapter. This subsection applies to a self-insured employer even though the
self-insured employer insures or reinsures all or any portion of risks under
this chapter with an insurance company authorized to do business in this state
or with any other insurer with whom insurance can be placed or secured pursuant
to ORS 744.305 to 744.405 (1985 Replacement Part).
     (4) When a self-insured employer is a
worker leasing company required to be licensed pursuant to ORS 656.850 and
656.855, the company also shall comply with the worker leasing company
regulatory provisions of ORS chapters 656 and 737 and with such rules as may be
adopted pursuant to ORS 656.726 and 731.244 for the supervision and regulation
of worker leasing companies. [1975 c.556 §26 (enacted in lieu of 656.401); 1981
c.854 §26; 1993 c.628 §7]
     656.404 [Repealed by 1959 c.449 §5]
     656.405 [1965 c.285 §75 (1); 1967 c.359 §700;
repealed by 1975 c.556 §54]
     656.406 [Renumbered 656.714]
     656.407
Qualifications of insured employers; rules. (1) An employer shall establish proof with the Director of the
Department of Consumer and Business Services that the employer is qualified
either:
     (a) As a carrier-insured employer by
causing a guaranty contract issued by a guaranty contract insurer to be filed
with the director; or
     (b) As a self-insured employer by
establishing proof that the employer has an adequate staff qualified to process
claims promptly and has the financial ability to make certain the prompt
payment of all compensation and other payments that may become due to the
director under this chapter.
     (2) Except as provided in subsection (3)
of this section, a self-insured employer shall establish proof of financial
ability by providing security that the director determines acceptable by rule.
The security must be in an amount reasonably sufficient to insure payment of
compensation and other payments that may become due to the director but not
less than the employerÂ’s normal expected annual claim liabilities and in no
event less than $100,000. In arriving at the amount of security required under
this subsection, the director may take into consideration the financial ability
of the employer to pay compensation and other payments and probable continuity
of operation. The security shall be held by the director to secure the payment
of compensation for injuries to subject workers of the employer and to secure
other payments that may become due from the employer to the director under this
chapter. Moneys received as security under this subsection shall be deposited
with the State Treasurer in an account separate and distinct from the General
Fund. Interest earned by the account shall be credited to the account. The
amount of security may be increased or decreased from time to time by the
director.
     (3)(a) A city or county that wishes to be
exempt from subsection (2) of this section may make written application
therefor to the director. The application shall include a copy of the cityÂ’s or
countyÂ’s most recent annual audit as filed with the Secretary of State under
ORS 297.405 to 297.740, information regarding the establishment of a loss
reserve account for the payment of compensation to injured workers and such
other information as the director may require. The director shall approve the
application and the city or county shall be exempt from subsection (2) of this
section if the director finds that:
     (A) The city or county has been a
self-insured employer in compliance with subsection (2) of this section for
more than three consecutive years prior to making the application referred to
in this subsection as an independently self-insured employer and not as part of
a self-insured group.
     (B) The city or county has in effect a
loss reserve account:
     (i) That is actuarially sound and that is
adequately funded as determined by an annual audit under ORS 297.405 to 297.740
to pay all compensation to injured workers and amounts due the director
pursuant to this chapter. A copy of the annual audit shall be filed with the
director. Upon a finding that there is probable cause to believe that the loss
reserve account is not actuarially sound, the director may require a city or
county to obtain an independent actuarial audit of the loss reserve account.
The requirements of this subsection are in addition to and not in lieu of any
other audit or reporting requirement otherwise prescribed by or pursuant to
law.
     (ii) That is dedicated to and may be
expended only for the payment of compensation and amounts due the director by
the city or county under this chapter.
     (b) The director shall have the first lien
and priority right to the full amount of the loss reserve account required to
pay the present discounted value of all present and future claims under this
chapter.
     (c) The city or county shall notify the
director no later than 60 days prior to any action to discontinue the loss
reserve account. The city or county shall advise the director of the cityÂ’s or
countyÂ’s plans to submit the security deposits required in subsection (2) of
this section, or obtain coverage as a carrier-insured employer prior to the
date the loss reserve account ceases to exist. If the city or county elects to
discontinue self-insurance, it shall submit such security as the director may
require to insure payment of all compensation and amounts due the director for
the period the city or county was self-insured.
     (d) In order to requalify as a
self-insured employer, the city or county must deposit prior to discontinuance
of the loss reserve account such security as is required by the director
pursuant to subsection (2) of this section.
     (e) Notwithstanding ORS 656.440, if prior
to the date of discontinuance of the loss reserve account the director has not
received the security deposits required in subsection (2) of this section, the
cityÂ’s or countyÂ’s certificate of self-insurance is automatically revoked as of
that date. [1975 c.556 §27; 1979 c.839 §28; 1981 c.854 §27; 1985 c.212 §7; 1989
c.966 §67; 1991 c.648 §1; 1993 c.18 §140; 2003 c.170 §2]
     Note: The amendments to 656.407 by section 13,
chapter 241, Oregon Laws 2007, become operative July 1, 2009. See section 31,
chapter 241, Oregon Laws 2007. The text that is operative on and after July 1,
2009, is set forth for the userÂ’s convenience.
     656.407. (1) An employer shall establish proof with
the Director of the Department of Consumer and Business Services that the
employer is qualified either:
     (a) As a carrier-insured employer by
causing proof of coverage provided by an insurer to be filed with the director;
or
     (b) As a self-insured employer by
establishing proof that the employer has an adequate staff qualified to process
claims promptly and has the financial ability to make certain the prompt
payment of all compensation and other payments that may become due to the
director under this chapter.
     (2) Except as provided in subsection (3)
of this section, a self-insured employer shall establish proof of financial
ability by providing security that the director determines acceptable by rule.
The security must be in an amount reasonably sufficient to insure payment of
compensation and other payments that may become due to the director but not
less than the employerÂ’s normal expected annual claim liabilities and in no
event less than $100,000. In arriving at the amount of security required under
this subsection, the director may take into consideration the financial ability
of the employer to pay compensation and other payments and probable continuity
of operation. The security shall be held by the director to secure the payment
of compensation for injuries to subject workers of the employer and to secure
other payments that may become due from the employer to the director under this
chapter. Moneys received as security under this subsection shall be deposited
with the State Treasurer in an account separate and distinct from the General
Fund. Interest earned by the account shall be credited to the account. The
amount of security may be increased or decreased from time to time by the
director.
     (3)(a) A city or county that wishes to be
exempt from subsection (2) of this section may make written application
therefor to the director. The application shall include a copy of the cityÂ’s or
countyÂ’s most recent annual audit as filed with the Secretary of State under
ORS 297.405 to 297.740, information regarding the establishment of a loss reserve
account for the payment of compensation to injured workers and such other
information as the director may require. The director shall approve the
application and the city or county shall be exempt from subsection (2) of this
section if the director finds that:
     (A) The city or county has been a
self-insured employer in compliance with subsection (2) of this section for
more than three consecutive years prior to making the application referred to
in this subsection as an independently self-insured employer and not as part of
a self-insured group.
     (B) The city or county has in effect a
loss reserve account:
     (i) That is actuarially sound and that is
adequately funded as determined by an annual audit under ORS 297.405 to 297.740
to pay all compensation to injured workers and amounts due the director
pursuant to this chapter. A copy of the annual audit shall be filed with the
director. Upon a finding that there is probable cause to believe that the loss
reserve account is not actuarially sound, the director may require a city or
county to obtain an independent actuarial audit of the loss reserve account.
The requirements of this subsection are in addition to and not in lieu of any
other audit or reporting requirement otherwise prescribed by or pursuant to law.
     (ii) That is dedicated to and may be
expended only for the payment of compensation and amounts due the director by
the city or county under this chapter.
     (b) The director shall have the first lien
and priority right to the full amount of the loss reserve account required to
pay the present discounted value of all present and future claims under this
chapter.
     (c) The city or county shall notify the
director no later than 60 days prior to any action to discontinue the loss
reserve account. The city or county shall advise the director of the cityÂ’s or
countyÂ’s plans to submit the security deposits required in subsection (2) of
this section, or obtain coverage as a carrier-insured employer prior to the
date the loss reserve account ceases to exist. If the city or county elects to
discontinue self-insurance, it shall submit such security as the director may
require to insure payment of all compensation and amounts due the director for
the period the city or county was self-insured.
     (d) In order to requalify as a
self-insured employer, the city or county must deposit prior to discontinuance
of the loss reserve account such security as is required by the director
pursuant to subsection (2) of this section.
     (e) Notwithstanding ORS 656.440, if prior
to the date of discontinuance of the loss reserve account the director has not
received the security deposits required in subsection (2) of this section, the
cityÂ’s or countyÂ’s certificate of self-insurance is automatically revoked as of
that date.
     656.408 [Renumbered 656.716]
     656.409 [1965 c.285 §75(2), (3); repealed by 1975
c.556 §54]
     656.410 [Amended by 1965 c.285 §54; renumbered
656.726]
     656.411 [1975 c.556 §28; 1979 c.348 §1; repealed by
1981 c.854 §1]
     656.412 [Amended by 1965 c.285 §52; renumbered 656.732]
     656.413 [1965 c.285 §76(1), (2); repealed by 1975
c.556 §54]
     656.414 [Renumbered 656.718]
     656.415 [1975 c.556 §30; repealed by 1981 c.854 §1]
     656.416 [Amended by 1965 c.285 §53; renumbered
656.722]
     656.417 [1965 c.285 §76 (3), (8); 1967 c.341 §6;
repealed by 1975 c.556 §54]
     656.418 [Repealed by 1965 c.285 §95]
     656.419
Guaranty contracts. (1) A
guaranty contract issued by an insurer shall provide that the insurer agrees to
assume, without monetary limit, the liability of the employer, arising during
the period the guaranty contract is in effect, for prompt payment of all
compensation for compensable injuries that may become due under this chapter to
subject workers and their beneficiaries.
     (2) A guaranty contract issued by a
guaranty contract insurer shall be filed with the Director of the Department of
Consumer and Business Services by the insurer within 30 days after workersÂ’
compensation coverage of the employer is effective. The filing shall be in such
form and manner as the director may prescribe. A guaranty contract shall
contain:
     (a) The name and address of the employer;
     (b) A description of the occupation in
which the employer is engaged or proposes to engage;
     (c) The effective date of the workers’
compensation coverage;
     (d) Notice that an employer has elected to
provide coverage pursuant to ORS 656.039; and
     (e) Such other information as the director
may from time to time require.
     (3) Workers’ compensation coverage is
effective when the application of the subject employer for coverage together
with any required fees or premium are received and accepted by an authorized
representative of an insurer.
     (4) If the name or address of an insured
employer is changed, the insurer shall, within 30 days after the date the
change is received by the insurer, file a change-of-name or change-of-address
notice with the director setting forth the correct name and address of the
employer.
     (5) Coverage of an employer under a
guaranty contract continues until canceled or terminated as provided by ORS
656.423 or 656.427. [1975 c.556 §29; 1977 c.405 §7; 1981 c.854 §28; 1987 c.237 §1;
1995 c.93 §35; 1995 c.332 §46; 2003 c.170 §3]
     Note: The amendments to 656.419 by section 1,
chapter 241,