US Laws, Codes, Statutes & Cases

Chapter 656 — Workers' Compensation

 

2005 EDITION

 

 

WORKERS' COMPENSATION

 

LABOR AND EMPLOYMENT

 

GENERAL PROVISIONS

 

656.001     Short title

 

656.003     Application of definitions to construction of chapter

 

656.005     Definitions

 

656.006     Effect on employers' liability law

 

656.008     Extension of laws relating to workers' compensation to federal lands and projects within state

 

656.010     Treatment by spiritual means

 

656.012     Findings and policy

 

COVERAGE

 

656.017     Employer required to pay compensation and perform other duties; state not authorized to be direct responsibility employer

 

656.018     Effect of providing coverage; exclusive remedy

 

656.019     Civil negligence action for claim denied on basis of failure to meet major contributing cause standard; statute of limitations

 

656.020     Damage actions by workers against noncomplying employers; defenses outlawed

 

656.021     Person performing work under ORS chapter 701 as subject employer

 

656.023     Who are subject employers

 

656.025     Individuals engaged in commuter ridesharing not subject workers; conditions

 

656.027     Who are subject workers

 

656.029     Obligation of person letting contract to provide coverage for workers under contract; exceptions; effect of failure to provide coverage

 

656.031     Coverage for municipal volunteer personnel

 

656.033     Coverage for participants in work experience or school directed professional training programs

 

656.035     Status of workers in separate occupations of employer

 

656.037     Exemption from coverage for persons engaged in certain real estate activities

 

656.039     Employer may elect to provide coverage for workers not subject to law; procedure; cancellation

 

656.041     City or county may elect to provide coverage for jail inmates

 

656.043     Governmental agency paying wages responsible for providing coverage

 

656.044     State Accident Insurance Fund Corporation may insure liability under Longshoremen's and Harbor Workers' Compensation Act; procedure; cancellation

 

656.046     Coverage of persons in college work experience and professional education programs

 

656.052     Prohibition against employment without coverage; proposed order declaring noncomplying employer; effect of failure to comply; joint and several liability of corporation, officers and directors

 

656.054     Claim of injured worker of noncomplying employer; procedure for disputing acceptance of claim; recovery of costs from noncomplying employer; restrictions

 

656.056     Subject employers must post notice of manner of compliance

 

656.070     Definitions for ORS 656.027, 656.070 and 656.075

 

656.075     Exemption from coverage for newspaper carriers; casualty insurance and other requirements

 

656.126     Coverage while temporarily in or out of state; judicial notice of other state's laws; agreements between states relating to conflicts of jurisdiction; limitation on compensation for claims in this state and other jurisdictions

 

656.128     Sole proprietors, limited liability company members, partners, independent contractors may elect coverage by insurer; cancellation

 

656.132     Coverage of minors

 

656.135     Coverage of deaf school, blind school work experience trainees

 

656.138     Coverage of apprentices, trainees participating in related instruction classes

 

656.140     Coverage of persons operating equipment for hire

 

656.154     Injury due to negligence or wrong of a person not in the same employ as injured worker; remedy against such person

 

656.156     Intentional injuries

 

656.160     Effect of incarceration on receipt of compensation

 

656.170     Validity of provisions of certain collective bargaining agreements; alternative dispute resolution systems; exclusive medical service provider lists; authority of director

 

656.172     Applicability of and criteria for establishing program under ORS 656.170

 

656.174     Rules

 

APPLICABILITY PROVISIONS

 

656.202     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

 

COMPENSATION AND MEDICAL BENEFITS

 

656.204     Death

 

656.206     Permanent total disability

 

656.208     Death during permanent total disability

 

656.209     Offsetting permanent total disability benefits against Social Security benefits

 

656.210     Temporary total disability; payment during medical treatment; election; rules

 

656.211     "Average weekly wage" defined

 

656.212     Temporary partial disability

 

656.214     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

 

656.216     Permanent partial disability; method of payment; effect of prior receipt of temporary disability payments

 

656.218     Continuance of permanent partial disability payments to survivors; effect of death prior to final claim disposition; burial allowance

 

656.222     Compensation for additional accident

 

656.225     Compensability of certain preexisting conditions

 

656.226     Cohabitants and children entitled to compensation

 

656.228     Payments directly to beneficiary or custodian

 

656.230     Lump sum award payments with approval of director

 

656.232     Payments to aliens residing outside of United States

 

656.234     Compensation not assignable nor to pass by operation of law; certain benefits subject to child support obligations

 

656.236     Compromise and release of claim matters except for medical benefits; approval by board; approval by director for certain reserve reimbursements; restriction on charging costs to workers; restriction on joinder as parties for responsibility determinations

 

656.240     Deduction of benefits from sick leave payments paid to employees

 

656.245     Medical services to be provided; limitations; use of generic drugs; 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

 

656.247     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

 

656.248     Medical service fee schedules; basis of fees; application to service provided by managed care organization; resolution of fee disputes; rules

 

656.250     Limitation on compensability of physical therapist services

 

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

 

656.254     Medical report forms; sanctions; procedure for declaring health care practitioner ineligible for workers' compensation reimbursement

 

656.256     Considerations for rules regarding certain rural hospitals

 

656.258     Vocational assistance service payments

 

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

 

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

 

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

 

656.264     Compensable injury, denied claim and other reports

 

656.265     Notice of accident from worker

 

656.266     Burden of proving compensability and nature and extent of disability

 

656.267     Claims for new and omitted medical conditions

 

656.268     Claim closure; termination of temporary total disability benefits; reconsideration of closure; procedure, penalty and attorney fee on reconsideration; medical arbiter to make findings of impairment for reconsideration; credit or offset for fraudulently obtained or overpaid benefits; rules

 

656.270     Contents of notice required on closure

 

656.273     Aggravation for worsened conditions; procedure; limitations; additional compensation

 

656.277     Request for reclassification of nondisabling claim; nondisabling claim procedure

 

656.278     Board has continuing authority to alter earlier action on claim; limitations

 

656.283     Hearing rights and procedure; rules; modification of vocational assistance actions; impeachment evidence; use of standards for evaluation of disability

 

656.285     Protection of witnesses at hearings

 

656.287     Use of vocational reports in determining loss of earning capacity at hearing; rules

 

656.289     Orders of Administrative Law Judge; review; disposition of claim when compensability disputed; approval of director required for reimbursement of certain expenditures

 

656.291     Expedited Claim Service; jurisdiction; procedure; representation; rules

 

656.295     Board review of Administrative Law Judge orders; application of standards for evaluation of disability

 

656.298     Court of Appeals review of board orders

 

656.304     When acceptance of compensation precludes hearing

 

656.307     Determination of issues regarding responsibility for compensation payment; mediation or arbitration procedure; rules

 

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

 

656.310     Presumption concerning notice of injury and self-inflicted injuries; reports as evidence

 

656.313     Stay of compensation pending request for hearing or review; procedure for denial of claim for medical services; reimbursement

 

656.319     Time within which hearing must be requested

 

656.325     Required medical examination; worker-requested examination; qualified physicians; claimant's duty to reduce disability; suspension or reduction of benefits; cessation or reduction of temporary total disability benefits; rules; penalties

 

656.327     Medical review of treatment of worker; findings; review; costs

 

656.328     List of authorized providers of independent medical examinations; exclusion; complaints; rules

 

656.331     Contact, medical examination of worker represented by attorney prohibited without prior written notice; rules

 

656.340     Vocational assistance procedure; eligibility criteria; service providers; rules

 

DISCLOSURE OF WORKER MEDICAL AND VOCATIONAL CLAIM RECORDS

 

656.360     Confidentiality of worker medical and vocational claim records; exceptions where disclosure permitted

 

656.362     Liability for disclosure of worker medical and vocational claim records

 

LEGAL REPRESENTATION

 

656.382     Penalties and attorney fees payable by insurer or employer in processing claim

 

656.385     Attorney fees in cases regarding certain medical service or vocational rehabilitation matters; rules; limitation; penalties

 

656.386     Recovery of attorney fees in appeal on denied claim; attorney fees in other cases

 

656.388     Approval of attorney fees required; fee schedule; report of legal service costs

 

656.390     Frivolous appeals, hearing requests or motions; expenses and attorney fee

 

SELF-INSURED AND CARRIER-INSURED EMPLOYERS; INSURERS AND GUARANTY

CONTRACTS

 

656.403     Obligations of self-insured employer

 

656.407     Qualifications of insured employers; rules

 

656.419     Guaranty contracts

 

656.423     Cancellation of coverage by employer; notice required

 

656.427     Termination of guaranty contract or surety bond liability by insurer; rules

 

656.430     Certification of self-insured employer; employer groups; insurance policy requirements; revocation of certification; rules

 

656.434     Certification effective until canceled or revoked; revocation of certificate

 

656.440     Notice of certificate revocation; appeal; effective date; termination

 

656.443     Procedure upon default by employer

 

656.445     Advancement of funds from Workers' Benefit Fund for compensation due workers insured by insurer in default; limitations; rules

 

656.447     Sanctions against insurer for failure to comply with contracts, orders or rules

 

656.455     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

 

656.504     Rates, charges, fees and reports by employers insured by State Accident Insurance Fund Corporation

 

656.505     Estimate of payroll when employer fails to file payroll report; demand for and recovery of premiums and assessments

 

656.506     Assessments for programs; setting assessment amount; determination by director of benefit level

 

656.508     Authority to fix premium rates for employers

 

656.526     Distribution of dividends from surplus in Industrial Accident Fund

 

656.536     Premium charges for coverage of reforestation cooperative workers based on prevailing wage; manner of determining prevailing wage

 

ENFORCEMENT OF PREMIUM PAYMENTS

 

656.552     Deposit of cash or bond to secure payment of employer's premiums

 

656.554     Injunction against employer failing to comply with deposit requirements

 

656.556     Liability of person letting a contract for amounts due from contractor

 

656.560     Default in payment of premiums, fees, assessments or deposit; remedies

 

656.562     Moneys due Industrial Accident Fund as preferred claims; moneys due department as taxes due state

 

656.564     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

 

656.578     Workers' election whether to sue third person or noncomplying employer for damages

 

656.580     Payment of compensation notwithstanding cause of action for damages; lien on cause of action for compensation paid

 

656.583     Paying agency may compel election and prompt action

 

656.587     Paying agency must join in any compromise

 

656.591     Election not to bring action operates as assignment of cause of action

 

656.593     Procedure when worker elects to bring action; release of liability and lien of paying agency in certain cases

 

656.595     Precedence of cause of action; compensation paid or payable not to be an issue

 

656.596     Damage recovery as offset against compensation; recovery procedure; notice to paying agent

 

FUNDS; SOURCE; INVESTMENT; DISBURSEMENT

 

(General Provisions)

 

656.602     Disbursement procedures

 

656.605     Workers' Benefit Fund; uses and limitations

 

656.612     Assessments for department activities; amount; collection procedure

 

656.614     Self-Insured Employer Adjustment Reserve; Self-Insured Employer Group Adjustment Reserve

 

656.622     Reemployment Assistance Program; claim data not to be used for insurance rating; rules

 

656.625     Reopened Claims Program; rules

 

656.628     Handicapped Workers Program; use of funds; conditions and limitations; rules

 

656.630     Center for Research on Occupational and Environmental Toxicology funding; report of activities

 

(Industrial Accident Fund and Reserves)

 

656.632     Industrial Accident Fund

 

656.634     Trust fund status of Industrial Accident Fund

 

656.635     Reserve accounts in Industrial Accident Fund

 

656.636     Reserves in Industrial Accident Fund for awards for permanent disability or death

 

656.640     Creation of reserves

 

656.642     Emergency Fund

 

656.644     Petty cash funds

 

ADMINISTRATION

 

(General Provisions)

 

656.702     Records of corporation, department and insurers open to public

 

656.704     Actions and orders regarding matters concerning claim and matters other than matters concerning claim; authority of director and board; administrative and judicial review; rules

 

656.708     Hearings Division; duties

 

656.709     Ombudsman for injured workers; ombudsman for small business; duties

 

656.712     Workers' Compensation Board; members; qualifications; chairperson; confirmation; term; vacancies

 

656.714     Removal of board member

 

656.716     Board members not to engage in political or business activity that interferes with duties as board member; oath and bond required

 

656.718     Chairperson; quorum; panels

 

656.720     Prosecution and defense of actions by Attorney General and district attorneys

 

656.722     Authority to employ subordinates

 

656.724     Administrative Law Judges; appointment; qualifications; term; performance survey; removal procedure

 

656.725     Duties and status of Administrative Law Judges

 

656.726     Duties and powers to carry out workers' compensation and occupational safety laws; rules

 

656.727     Rules for administration of benefit offset

 

656.730     Assigned risk plan

 

656.732     Power to compel obedience to subpoenas and punish for misconduct

 

656.735     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

 

656.740     Review of proposed order declaring noncomplying employer or nonsubjectivity determination; review of proposed assessment or civil penalty; insurer as party; hearing

 

656.745     Civil penalty for inducing failure to report claims; failure to pay assessments; failure to comply with statutes, rules or orders; amount; procedure

 

656.750     Civil penalty for failure to maintain records of compensation claims; amount; disposition of funds

 

(State Accident Insurance Fund Corporation)

 

656.751     State Accident Insurance Fund Corporation created; board; members' qualifications; terms; compensation; expenses; function; report

 

656.752     State Accident Insurance Fund Corporation; purpose and functions

 

656.753     State Accident Insurance Fund Corporation exempt from certain financial administration laws; contracts with state agencies for services

 

656.754     Manager; appointment; functions

 

656.758     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

 

656.772     Annual audit of State Accident Insurance Fund Corporation by Secretary of State; scope of review; report of audit

 

656.774     Annual report by State Accident Insurance Fund Corporation to Secretary of State; contents

 

656.776     Notice to Secretary of State regarding action on audit report

 

(Claims Examiner Certification)

 

656.780     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)

 

656.790     Workers' Compensation Management-Labor Advisory Committee; membership; duties; expenses

 

656.794     Advisory committee on medical care; rules

 

OCCUPATIONAL DISEASE LAW

 

656.802     Occupational disease; mental disorder; proof

 

656.804     Occupational disease as an injury under Workers' Compensation Law

 

656.807     Time for filing of claims for occupational disease; procedure

 

WORKER LEASING COMPANIES

 

656.850     License; compliance with workers' compensation and safety laws

 

656.855     Licensing system for worker leasing companies; rules; dedication of moneys received

 

PENALTIES

 

656.990     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 workers' 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 worker'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 worker'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 worker's personal pleasure; or

      (C) Injury the major contributing cause of which is demonstrated to be by a preponderance of the evidence the injured worker'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 worker'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 United States at the time of the accident other than father, mother, husband, wife or children are not included within the term "dependent."

      (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 United States within the limits of the license of the licentiate.

      (b) Except as otherwise provided for workers subject to a managed care contract, "attending physician" means a doctor or physician who is primarily responsible for the treatment of a worker's compensable injury and who is:

      (A) A medical doctor or doctor of osteopathy licensed under ORS 677.100 to 677.228 by the Board of Medical Examiners for the State of Oregon 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 period of 30 days from the date of first visit on the initial claim or for 12 visits, whichever first occurs, a doctor or physician licensed by the State Board of Chiropractic Examiners for the State of Oregon or a similarly licensed doctor or physician in any country or in any state, territory or possession of the United States.

      (c) "Consulting physician" means a doctor or physician who examines a worker or the worker'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 worker'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 workers' 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 workers' 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]

 

      Note: The amendments to 656.005 by section 2, chapter 811, Oregon Laws 2003, become operative January 2, 2008. See section 32, chapter 811, Oregon Laws 2003. The text that is operative on and after January 2, 2008, is set forth for the user'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 workers' 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 worker'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 worker'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 worker's personal pleasure; or

      (C) Injury the major contributing cause of which is demonstrated to be by a preponderance of the evidence the injured worker'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 worker'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 United States at the time of the accident other than father, mother, husband, wife or children are not included within the term "dependent."

      (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 United States within the limits of the license of the licentiate.

      (b) Except as otherwise provided for workers subject to a managed care contract, "attending physician" means a doctor or physician who is primarily responsible for the treatment of a worker's compensable injury and who is:

      (A) A medical doctor or doctor of osteopathy licensed under ORS 677.100 to 677.228 by the Board of Medical Examiners for the State of Oregon 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 period of 30 days from the date of first visit on the initial claim or for 12 visits, whichever first occurs, a doctor or physician licensed by the State Board of Chiropractic Examiners for the State of Oregon or a similarly licensed doctor or physician in any country or in any state, territory or possession of the United States.

      (c) "Consulting physician" means a doctor or physician who examines a worker or the worker's medical record to advise the attending physician regarding treatment of a worker'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 workers' 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 workers' 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 disabi