Widespread changes were made to the workers’ compensation system by the 1995 Legislature. The largest impact came through Senate Bill (SB) 369. The main intention of this legislation was to clarify the 1990 reforms and to reverse legal rulings deemed contrary to those reforms. During the Session, the bill went through many drafts and rewrites, emerging as an 80-page document impacting the entire workers’ compensation system. The following summarizes key components of the legislation. It is not meant to be an exhaustive list.

Exclusive remedy: SB 369 reinforced a central tenet that workers’ compensation provides the exclusive remedy for all work-related conditions or injuries “arising out of and in the course of employment” whether or not these conditions or injuries are determined to be compensable.

Multiple employers: The insurer is no longer required to “disclaim” responsibility within 30 days. If responsibility is denied within 90 days, the insurer shall advise the worker in the denial letter to file separate claims with other potentially responsible employers.

Drug and alcohol abuse related to work injuries: In determining compensability, preponderance of evidence will be used to determine whether the major contributing cause of the injury was due to drug and/or alcohol abuse.

Pre-existing conditions: The employer is not liable for benefits due to a pre-existing condition when the work injury is no longer the major contributing cause of the disability or need for treatment.

Objective findings in support of medical evidence: Clarifies the definition of “objective findings” for the purpose of rating permanent disability.

Managed care organizations (MCO): Injured workers may be required to receive medical services from an MCO immediately after the injury. If an injured worker does not receive notice from an insurer, but voluntarily seeks medical treatment from an MCO and the claim is subsequently determined noncompensable (denied), the insurer is under no obligation to pay for the medical services provided. However, if the worker receives a notice from the insurer requiring medical treatment be received from an MCO, the insurer must guarantee payment (as provided in ORS 656.248) of any reasonable and necessary services so received, that are not otherwise covered by health insurance, even if the claim is denied.

Permanent partial disability benefits: Increased dollar value for scheduled disability and established a tiered structure for unscheduled disability. Also created a five-year sunset clause that restructured permanent partial disability benefits to be based on flat rates instead of basing the rates on the Oregon average weekly wage.

Temporary partial disability compensation: Restored calculation of temporary partial disability benefits to be based on the wage used to calculate temporary total disability, not “earning power.”

Permanent partial disability compensation: Impairment is the only factor in determining a permanent partial disability award when the worker is released to or returns to regular work.

Eligibility for vocational rehabilitation: An injured worker is not eligible for vocational assistance if the worker can earn 80 percent of the weekly wage currently paid for the job-at-injury or aggravation. The weekly wage for seasonal or temporary workers must be calculated by averaging the worker’s documented earned income and any unemployment insurance payments.

Dispute resolution: Changed and clarified jurisdictional lines between the Workers’ Compensation Division and the Workers’ Compensation Board; standards of review; and other matters affecting the accurate and timely resolution of disputes.

Stay of benefits: An insurer or self-insured employer may appeal an order by the DCBS director on vocational assistance and stay those benefits during the appeal.

Reinstatement and reemployment: Reinstatement of an injured worker to the job at injury or to a new job with the employer at injury is allowed for up to three years.

In addition, SB 369 addressed other areas of the system. The legislation’s preamble provides that the workers’ compensation law must be construed impartially, favoring neither workers nor employers; that the DCBS director must set fee schedules for medical services; and health insurance companies shall cooperate to provide information necessary to develop the fee schedules. Workers are required to meet a stronger standard of proof about the compensability of a claim when an insurer alleges fraud or other illegal activity by the worker. The DCBS director also may select any insurer, casualty adjuster, or third party administrator to process non-complying employer claims.

Some changes directly affected worker benefits. Monthly death benefits increased for surviving spouses and children. These death benefits cannot be stayed during appeals of matters regarding the claim. Lifetime medical benefits are compensable if the attending physician determines they will prevent significant deterioration of the compensable condition. Workers now may choose an attending physician in another state with the approval of the insurer.