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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.
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