Bill Text: OR HB2844 | 2013 | Regular Session | Introduced
Bill Title: Relating to temporary disability benefits in workers' compensation claims.
Spectrum: Committee Bill
Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB2844 Detail]
Download: Oregon-2013-HB2844-Introduced.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 758
House Bill 2844
Sponsored by COMMITTEE ON BUSINESS AND LABOR (at the request of
Oregon Trial Lawyers Association)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Limits retroactivity of release of injured worker to regular
employment or declaration of medically stationary status for
termination of payment of temporary disability benefits and
creation of overpayment of benefits. Prohibits insurer or
self-insured employer from recovering overpayment during period
in which insurer or self-insured employer did not unilaterally
suspend payment of compensation when authorized to do so.
Modifies circumstances under which insurer or self-insured
employer may cease paying temporary total disability benefits and
commence payment of temporary partial disability benefits. Limits
termination of payment of benefits for misconduct to period of
claim opening in which termination occurs. Requires written
explanation of misconduct that is basis for termination of
payment of benefits and of appeal rights.
A BILL FOR AN ACT
Relating to temporary disability benefits in workers'
compensation claims; creating new provisions; and amending ORS
656.268 and 656.325.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 656.268 is amended to read:
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
worker's claim, as prescribed by the Director of the Department
of Consumer and Business Services, and determine the extent of
the worker'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 worker'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 worker'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 worker'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 { + . A
release to regular employment is effective to retroactively
terminate, or to create an overpayment of, temporary disability
benefits for no more than 14 days prior to the date of issuance
of the release + };
(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 worker'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
worker'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 worker'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 worker'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 worker'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 worker'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 worker'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) Except as provided in subsection (7) of this section, 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 (8) 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 worker'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) The director may delay the reconsideration proceeding
and toll the reconsideration timeline established under
subsection (6) of this section for up to 45 calendar days if:
(A) A request for reconsideration of a notice of closure has
been made to the director within 60 days of the date of the
notice of closure;
(B) The parties are actively engaged in settlement negotiations
that include issues in dispute at reconsideration;
(C) The parties agree to the delay; and
(D) Both parties notify the director before the 18th working
day after the reconsideration proceeding has begun that they
request a delay under this subsection.
(b) A delay of the reconsideration proceeding granted by the
director under this subsection expires:
(A) If a party requests the director to resume the
reconsideration proceeding before the expiration of the delay
period;
(B) If the parties reach a settlement and the director receives
a copy of the approved settlement documents before the expiration
of the delay period; or
(C) On the next calendar day following the expiration of the
delay period authorized by the director.
(c) Upon expiration of a delay granted under this subsection,
the timeline for the completion of the reconsideration proceeding
shall resume as if the delay had never been granted.
(d) Compensation due the worker shall continue to be paid
during the period of delay authorized under this subsection.
(e) The director may authorize only one delay period for each
reconsideration proceeding.
(8)(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 worker'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 worker'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
Workers' 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 worker's impairment is admissible before the director, the
Workers' 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 worker'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
worker's condition is appropriate for claim closure under
subsection (1) of this section.
(9) 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.
(10) 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 worker's accepted injury is no longer the major
contributing cause of the worker'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 worker'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.
(11) If the attending physician or nurse practitioner
authorized to provide compensable medical services under ORS
656.245 has approved the worker'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.
(12) 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.
(13) An insurer or self-insured employer may take a credit or
offset of previously paid workers' compensation benefits or
payments against any further workers' 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.
(14)(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 worker's beneficiaries to notify the
insurer or self-insured employer about the death of the worker.
{ + (c) An insurer or self-insured employer may not recover
an overpayment of compensation paid during any period for which
the insurer or self-insured employer is authorized to
unilaterally suspend the payment of compensation but does not do
so.
(d) When an overpayment is established for compensation paid
after the worker's medically stationary date, the insurer or
self-insured employer may only recover up to 14 days of overpaid
compensation from the date of the medical opinion relied upon to
determine the medically stationary date. + }
(15) 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.
SECTION 2. ORS 656.325 is amended to read:
656.325. (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 worker'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 worker'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 employer'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 (11), 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 worker'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 { + misconduct + }
{ - violation of work rules or other disciplinary reasons - }
{ + and the employer has a written policy offering modified
work to injured workers and had such a policy in effect at the
time the worker was injured + }, 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 - } . { + A cessation of the payment of benefits under
ORS 656.210 as provided by this subsection is valid only for the
open claim period during which the cessation of the payment of
benefits under ORS 656.210 occurs.
(c) If the worker is terminated for any reason other than
misconduct after having accepted a modified job, the insurer or
self-insured employer shall commence payments pursuant to ORS
656.210.
(d) Fourteen days prior to the cessation of the payment of
benefits under this subsection, the insurer or self-insured
employer shall provide the worker with a written explanation of
the specific misconduct that is the basis for the termination of
employment and of the worker's rights to appeal the cessation of
the payment of benefits.
(e) As used in this subsection, 'misconduct' means the willful
or wantonly negligent violation of the standards of behavior that
an employer has the right to expect of an employee, or an act or
a series of actions that amount to a willful or wantonly
negligent disregard of an employer's interests. ' Misconduct'
does not include an isolated instance of poor judgment. + }
{ - (c) - } { + (f) + } 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.
SECTION 3. { + The amendments to ORS 656.268 and 656.325 by
sections 1 and 2 of this 2013 Act apply to all claims in which
temporary disability benefits are being paid on or after the
effective date of this 2013 Act. + }
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