Winter 2010 SBH Work Comp Quarterly
PDF FormatNew Legislation & OAR 436 Rule Changes Effective January 1, 2010
By Ron Pomeroy and Jennifer Roumell
The Legislature and DCBS made changes to the statutes and rules governing Oregon Workers’ Compensation claims. Following is a brief summary of those changes that took effect January 1, 2010.
Attorney Fee Increases
ORS 656.262(11)(a): amended so maximum attorney fee awarded for unreasonable conduct is now $3,000 instead of $2,000. The exception for extraordinary circumstances continues to exist. The $3,000 cap will be adjusted annually on July 1st by the same percentage increase as the State’s average weekly wage increase.
ORS 656.262(12): allows attorney fees if the proceeds of a DCS are paid late. The amount will be determined by a Matrix created by the Director and as a percentage of the amount of the attorney fee that was paid late. The statute requires clear notification in writing to insurers or self-insureds of failure to pay. If payment were made in less than 5 days after notification, then no penalty would attach.
ORS 656.308: the cap for responsibility cases prosecuted without a .307 Order is now $2,500. The extraordinary circumstances exception continues. The $2,500 cap will increase yearly on July 1st by the same percentage as the State’s average weekly wage increase.
ORS 656.382: allows attorney fees when they successfully defend a Request for Hearing contesting an OOR that set aside a NOC regardless of whether there is compensation that is then due.
ORS 656.385: amended to increase fee from $2,000 to $3,000 with the extraordinary circumstances exception and the $3,000 cap will increase yearly on July 1st by the same percentage as the State’s average weekly wage increase.
ORS 656.386(1)(b)(D): allows attorney fees by amending the definition of a denial to include a claim for an initial injury or occupational disease to which the insurer or self-insured does not respond within 60 days.
ORS 656.386(3): allows attorney fees if claim reclassification is requested and does not receive a response in 14 days or if insurer or self-insured requests a hearing, review appeal or cross-appeal to Court of Appeals or Supreme Court review and the case is found disabling, then agency may award an attorney fee.
All attorney fee changes go into effect regardless of date of injury and apply to all claims for which an order is issued after January 1, 2010.
Death Benefits
Scope of benefits paid in death claims have been amended to include all expenses related to the “final disposition of the body and funeral expenses.” Therefore, the changes allow for other dispositions, like cremation, transportation of the body and memorial services to be covered, and not just the cost of burial. Those benefits are paid in an amount not to exceed 20 times the average weekly wage. If any part of that benefit remains unpaid 60 days after acceptance, the insurer or self-insured employer shall pay the remainder to the estate of the worker. Further, the statute was amended to allow payment of compensation that the worker would have received, had the worker survived, not only to statutorily defined beneficiaries but to the worker’s estate if no such beneficiaries exist. See changes to ORS 656.204, 656.218 and 656.262.
Firefighters Presumption
ORS 656.802(5) applies to nonvolunteer firefighters who have completed five or more years of employment and make a presumption that brain cancer, colon cancer, stomach cancer, testicular cancer, prostate cancer, multiple myeloma non-Hodgkin lymphoma, cancer of the throat or mouth, rectal cancer, breast cancer or leukemia are presumed to be caused by employment if diagnosed after July 1, 2009.
OAR 436 Rule
DCBS amended Division 001 attorney fee rules by raising the maximum attorney fee payable by the Director under ORS 656.385 from $2,000 to $3,000. Division 010 rules will now include chiropractors among those health care providers who may make findings of impairment (when serving as the worker’s attending physician) and allow them to treat for 30 days from the first visit (rather than the date of injury) or for 12 visits, whichever occurs first. Additionally, use of the Form 827 for workers to make claims for new and omitted medical conditions was approved.
Division 030 will require additional information to be included in the Notice of Closure regarding rights to legal representation and to request a vocational eligibility evaluation. Clarification of administrative claim closure procedures, changes in language for Refusals to Close and provisions allowing telephone requests for reconsideration of claim closures are part of the new rules.
Changes to Division 60 rules include penalty assessments for payment of DCS attorney fees beyond 30 days after DCS approval, modifications to issuance of claim-related notices to deceased workers, and notice to workers concerning criteria for reimbursement of claim-related expenses.
Work site modification must be related to worker limitations that resulted in EAIP eligibility or to prevent worsening of accepted conditions under amendments to Division 105. Preferred Worker Program rules in Division 110 provide more specific time limits for cost reimbursement and provide for new employment purchase type-placement assistance.
Vocational rules under Division 120 are modified for PWP workers who work at the EAI for one year who would then be considered as engaging in “suitable” work. The 120 rules also eliminated any necessity for a vocational evaluation if the worker returns to regular or “suitable” work with either the EAI or the employer at aggravation. An additional provision allows time loss in an ATP to be extended to 21 months with Director approval.
Please check our website to obtain specific details of the new changes.
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