Bill Text: OR HB2991 | 2013 | Regular Session | Introduced

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Bill Title: Relating to payment of temporary disability compensation in workers' compensation claim.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB2991 Detail]

Download: Oregon-2013-HB2991-Introduced.html

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     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 2923

                         House Bill 2991

Sponsored by Representative CLEM

                             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.

  Requires subject employer to pay first installment of temporary
disability compensation in workers' compensation claim within 14
days after employer has notice or knowledge of claim or has
notice or knowledge of employee's disability, whichever is later.

                        A BILL FOR AN ACT
Relating to payment of temporary disability compensation in
  workers' compensation claim; creating new provisions; and
  amending ORS 656.262.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 656.262 is amended to read:
  656.262. (1) Processing of claims and providing compensation
for a worker shall be the responsibility of the insurer or
self-insured employer. All employers shall assist their insurers
in processing claims as required in this chapter.
  (2) The compensation due under this chapter shall be paid
periodically, promptly and directly to the person entitled
thereto upon the employer's receiving notice or knowledge of a
claim, except where the right to compensation is denied by the
insurer or self-insured employer.
  (3)(a) Employers shall, immediately and not later than five
days after notice or knowledge of any claims or accidents which
may result in a compensable injury claim, report the same to
their insurer. The report shall include:
  (A) The date, time, cause and nature of the accident and
injuries.
  (B) Whether the accident arose out of and in the course of
employment.
  (C) Whether the employer recommends or opposes acceptance of
the claim, and the reasons therefor.
  (D) The name and address of any health insurance provider for
the injured worker.
  (E) Any other details the insurer may require.
  (b) Failure to so report subjects the offending employer to a
charge for reimbursing the insurer for any penalty the insurer is
required to pay under subsection (11) of this section because of
such failure. As used in this subsection, 'health insurance' has
the meaning for that term provided in ORS 731.162.
  (4)(a) The first installment of temporary disability
compensation shall be paid no later than the 14th day after the
subject employer has notice or knowledge of the claim { +  or of
the worker's disability, whichever is later + },   { - if - }
 { + and + } the attending physician or nurse practitioner
authorized to provide compensable medical services under ORS
656.245 authorizes the payment of temporary disability
compensation. Thereafter, temporary disability compensation shall
be paid at least once each two weeks, except where the Director
of the Department of Consumer and Business Services determines
that payment in installments should be made at some other
interval. The director may by rule convert monthly benefit
schedules to weekly or other periodic schedules.
  (b) Notwithstanding any other provision of this chapter, if a
self-insured employer pays to an injured worker who becomes
disabled the same wage at the same pay interval that the worker
received at the time of injury, such payment shall be deemed
timely payment of temporary disability payments pursuant to ORS
656.210 and 656.212 during the time the wage payments are made.
  (c) Notwithstanding any other provision of this chapter, when
the holder of a public office is injured in the course and scope
of that public office, full official salary paid to the holder of
that public office shall be deemed timely payment of temporary
disability payments pursuant to ORS 656.210 and 656.212 during
the time the wage payments are made. As used in this subsection,
' public office' has the meaning for that term provided in ORS
260.005.
  (d) Temporary disability compensation is not due and payable
for any period of time for which the insurer or self-insured
employer has requested from the worker's attending physician or
nurse practitioner authorized to provide compensable medical
services under ORS 656.245 verification of the worker's inability
to work resulting from the claimed injury or disease and the
physician or nurse practitioner cannot verify the worker's
inability to work, unless the worker has been unable to receive
treatment for reasons beyond the worker's control.
  (e) If a worker fails to appear at an appointment with the
worker's attending physician or nurse practitioner authorized to
provide compensable medical services under ORS 656.245, the
insurer or self-insured employer shall notify the worker by
certified mail that temporary disability benefits may be
suspended after the worker fails to appear at a rescheduled
appointment. If the worker fails to appear at a rescheduled
appointment, the insurer or self-insured employer may suspend
payment of temporary disability benefits to the worker until the
worker appears at a subsequent rescheduled appointment.
  (f) If the insurer or self-insured employer has requested and
failed to receive from the worker's attending physician or nurse
practitioner authorized to provide compensable medical services
under ORS 656.245 verification of the worker's inability to work
resulting from the claimed injury or disease, medical services
provided by the attending physician or nurse practitioner are not
compensable until the attending physician or nurse practitioner
submits such verification.
  (g) Temporary disability compensation is not due and payable
pursuant to ORS 656.268 after the worker's attending physician or
nurse practitioner authorized to provide compensable medical
services under ORS 656.245 ceases to authorize temporary
disability or for any period of time not authorized by the
attending physician or nurse practitioner. No authorization of
temporary disability compensation by the attending physician or
nurse practitioner under ORS 656.268 shall be effective to
retroactively authorize the payment of temporary disability more
than 14 days prior to its issuance.
  (h) The worker's disability may be authorized only by a person
described in ORS 656.005 (12)(b)(B) or 656.245 for the period of
time permitted by those sections. The insurer or self-insured
employer may unilaterally suspend payment of temporary disability
benefits to the worker at the expiration of the period until
temporary disability is reauthorized by an attending physician or
nurse practitioner authorized to provide compensable medical
services under ORS 656.245.
  (i) The insurer or self-insured employer may unilaterally
suspend payment of all compensation to a worker enrolled in a
managed care organization if the worker continues to seek care
from an attending physician or nurse practitioner authorized to
provide compensable medical services under ORS 656.245 that is
not authorized by the managed care organization more than seven
days after the mailing of notice by the insurer or self-insured
employer.
  (5)(a) Payment of compensation under subsection (4) of this
section or payment, in amounts per claim not to exceed the
maximum amount established annually by the Director of the
Department of Consumer and Business Services, for medical
services for nondisabling claims, may be made by the subject
employer if the employer so chooses. The making of such payments
does not constitute a waiver or transfer of the insurer's duty to
determine entitlement to benefits. If the employer chooses to
make such payment, the employer shall report the injury to the
insurer in the same manner that other injuries are reported.
However, an insurer shall not modify an employer's experience
rating or otherwise make charges against the employer for any
medical expenses paid by the employer pursuant to this
subsection.
  (b) To establish the maximum amount an employer may pay for
medical services for nondisabling claims under paragraph (a) of
this subsection, the director shall use $1,500 as the base
compensation amount and shall adjust the base compensation amount
annually to reflect changes in the United States City Average
Consumer Price Index for All Urban Consumers for Medical Care for
July of each year as published by the Bureau of Labor Statistics
of the United States Department of Labor. The adjustment shall be
rounded to the nearest multiple of $100.
  (c) The adjusted amount established under paragraph (b) of this
subsection shall be effective on January 1 following the
establishment of the amount and shall apply to claims with a date
of injury on or after the effective date of the adjusted amount.
  (6)(a) Written notice of acceptance or denial of the claim
shall be furnished to the claimant by the insurer or self-insured
employer within 60 days after the employer has notice or
knowledge of the claim. Once the claim is accepted, the insurer
or self-insured employer shall not revoke acceptance except as
provided in this section. The insurer or self-insured employer
may revoke acceptance and issue a denial at any time when the
denial is for fraud, misrepresentation or other illegal activity
by the worker. If the worker requests a hearing on any revocation
of acceptance and denial alleging fraud, misrepresentation or
other illegal activity, the insurer or self-insured employer has
the burden of proving, by a preponderance of the evidence, such
fraud, misrepresentation or other illegal activity. Upon such
proof, the worker then has the burden of proving, by a
preponderance of the evidence, the compensability of the claim.
If the insurer or self-insured employer accepts a claim in good
faith, in a case not involving fraud, misrepresentation or other
illegal activity by the worker, and later obtains evidence that
the claim is not compensable or evidence that the insurer or
self-insured employer is not responsible for the claim, the
insurer or self-insured employer may revoke the claim acceptance
and issue a formal notice of claim denial, if such revocation of
acceptance and denial is issued no later than two years after the
date of the initial acceptance. If the worker requests a hearing
on such revocation of acceptance and denial, the insurer or
self-insured employer must prove, by a preponderance of the
evidence, that the claim is not compensable or that the insurer
or self-insured employer is not responsible for the claim.
Notwithstanding any other provision of this chapter, if a denial
of a previously accepted claim is set aside by an Administrative
Law Judge, the Workers' Compensation Board or the court,
temporary total disability benefits are payable from the date any
such benefits were terminated under the denial. Except as
provided in ORS 656.247, pending acceptance or denial of a claim,
compensation payable to a claimant does not include the costs of
medical benefits or funeral expenses. The insurer shall also
furnish the employer a copy of the notice of acceptance.
  (b) The notice of acceptance shall:
  (A) Specify what conditions are compensable.
  (B) Advise the claimant whether the claim is considered
disabling or nondisabling.
  (C) Inform the claimant of the Expedited Claim Service and of
the hearing and aggravation rights concerning nondisabling
injuries, including the right to object to a decision that the
injury of the claimant is nondisabling by requesting
reclassification pursuant to ORS 656.277.
  (D) Inform the claimant of employment reinstatement rights and
responsibilities under ORS chapter 659A.
  (E) Inform the claimant of assistance available to employers
and workers from the Reemployment Assistance Program under ORS
656.622.
  (F) Be modified by the insurer or self-insured employer from
time to time as medical or other information changes a previously
issued notice of acceptance.
  (c) An insurer's or self-insured employer's acceptance of a
combined or consequential condition under ORS 656.005 (7),
whether voluntary or as a result of a judgment or order, shall
not preclude the insurer or self-insured employer from later
denying the combined or consequential condition if the otherwise
compensable injury ceases to be the major contributing cause of
the combined or consequential condition.
  (d) An injured worker who believes that a condition has been
incorrectly omitted from a notice of acceptance, or that the
notice is otherwise deficient, first must communicate in writing
to the insurer or self-insured employer the worker's objections
to the notice pursuant to ORS 656.267. The insurer or
self-insured employer has 60 days from receipt of the
communication from the worker to revise the notice or to make
other written clarification in response. A worker who fails to
comply with the communication requirements of this paragraph or
ORS 656.267 may not allege at any hearing or other proceeding on
the claim a de facto denial of a condition based on information
in the notice of acceptance from the insurer or self-insured
employer. Notwithstanding any other provision of this chapter,
the worker may initiate objection to the notice of acceptance at
any time.
  (7)(a) After claim acceptance, written notice of acceptance or
denial of claims for aggravation or new medical or omitted
condition claims properly initiated pursuant to ORS 656.267 shall
be furnished to the claimant by the insurer or self-insured
employer within 60 days after the insurer or self-insured
employer receives written notice of such claims. A worker who
fails to comply with the communication requirements of subsection
(6) of this section or ORS 656.267 may not allege at any hearing
or other proceeding on the claim a de facto denial of a condition
based on information in the notice of acceptance from the insurer
or self-insured employer.
  (b) Once a worker's claim has been accepted, the insurer or
self-insured employer must issue a written denial to the worker
when the accepted injury is no longer the major contributing
cause of the worker's combined condition before the claim may be
closed.
  (c) When an insurer or self-insured employer determines that
the claim qualifies for claim closure, the insurer or
self-insured employer shall issue at claim closure an updated
notice of acceptance that specifies which conditions are
compensable. The procedures specified in subsection (6)(d) of
this section apply to this notice. Any objection to the updated
notice or appeal of denied conditions shall not delay claim
closure pursuant to ORS 656.268. If a condition is found
compensable after claim closure, the insurer or self-insured
employer shall reopen the claim for processing regarding that
condition.
  (8) The assigned claims agent in processing claims under ORS
656.054 shall send notice of acceptance or denial to the
noncomplying employer.
  (9) If an insurer or any other duly authorized agent of the
employer for such purpose, on record with the Director of the
Department of Consumer and Business Services denies a claim for
compensation, written notice of such denial, stating the reason
for the denial, and informing the worker of the Expedited Claim
Service and of hearing rights under ORS 656.283, shall be given
to the claimant. A copy of the notice of denial shall be mailed
to the director and to the employer by the insurer. The worker
may request a hearing pursuant to ORS 656.319.
  (10) Merely paying or providing compensation shall not be
considered acceptance of a claim or an admission of liability,
nor shall mere acceptance of such compensation be considered a
waiver of the right to question the amount thereof. Payment of
permanent disability benefits pursuant to a notice of closure,
reconsideration order or litigation order, or the failure to
appeal or seek review of such an order or notice of closure,
shall not preclude an insurer or self-insured employer from
subsequently contesting the compensability of the condition rated
therein, unless the condition has been formally accepted.
  (11)(a) If the insurer or self-insured employer unreasonably
delays or unreasonably refuses to pay compensation, or
unreasonably delays acceptance or denial of a claim, the insurer
or self-insured employer shall be liable for an additional amount
up to 25 percent of the amounts then due plus any attorney fees
assessed under this section. The fees assessed by the director,
an Administrative Law Judge, the board or the court under this
section shall be proportionate to the benefit to the injured
worker. The board shall adopt rules for establishing the amount
of the attorney fee, giving primary consideration to the results
achieved and to the time devoted to the case. An attorney fee
awarded pursuant to this subsection may not exceed $3,000 absent
a showing of extraordinary circumstances. The maximum attorney
fee awarded under this paragraph shall be adjusted annually on
July 1 by the same percentage increase as made to the average
weekly wage defined in ORS 656.211, if any. Notwithstanding any
other provision of this chapter, the director shall have
exclusive jurisdiction over proceedings regarding solely the
assessment and payment of the additional amount and attorney fees
described in this subsection. The action of the director and the
review of the action taken by the director shall be subject to
review under ORS 656.704.
  (b) When the director does not have exclusive jurisdiction over
proceedings regarding the assessment and payment of the
additional amount and attorney fees described in this subsection,
the provisions of this subsection shall apply in the other
proceeding.
  (12)(a) If payment is due on a disputed claim settlement
authorized by ORS 656.289 and the insurer or self-insured
employer has failed to make the payment in accordance with the
requirements specified in the disputed claim settlement, the
claimant or the claimant's attorney shall clearly notify the
insurer or self-insured employer in writing that the payment is
past due. If the required payment is not made within five
business days after receipt of the notice by the insurer or
self-insured employer, the director may assess a penalty and
attorney fee in accordance with a matrix adopted by the director
by rule.
  (b) The director shall adopt by rule a matrix for the
assessment of the penalties and attorney fees authorized under
this subsection. The matrix shall provide for penalties based on
a percentage of the settlement proceeds allocated to the claimant
and for attorney fees based on a percentage of the settlement
proceeds allocated to the claimant's attorney as an attorney fee.
  (13) The insurer may authorize an employer to pay compensation
to injured workers and shall reimburse employers for compensation
so paid.
  (14) Injured workers have the duty to cooperate and assist the
insurer or self-insured employer in the investigation of claims
for compensation. Injured workers shall submit to and shall fully
cooperate with personal and telephonic interviews and other
formal or informal information gathering techniques. Injured
workers who are represented by an attorney shall have the right
to have the attorney present during any personal or telephonic
interview or deposition. However, if the attorney is not willing
or available to participate in an interview at a time reasonably
chosen by the insurer or self-insured employer within 14 days of
the request for interview and the insurer or self-insured
employer has cause to believe that the attorney's unwillingness
or unavailability is unreasonable and is preventing the worker
from complying within 14 days of the request for interview, the
insurer or self-insured employer shall notify the director. If
the director determines that the attorney's unwillingness or
unavailability is unreasonable, the director shall assess a civil
penalty against the attorney of not more than $1,000.
  (15) If the director finds that a worker fails to reasonably
cooperate with an investigation involving an initial claim to
establish a compensable injury or an aggravation claim to reopen
the claim for a worsened condition, the director shall suspend
all or part of the payment of compensation after notice to the
worker.  If the worker does not cooperate for an additional 30
days after the notice, the insurer or self-insured employer may
deny the claim because of the worker's failure to cooperate. The
obligation of the insurer or self-insured employer to accept or
deny the claim within 60 days is suspended during the time of the
worker's noncooperation. After such a denial, the worker shall
not be granted a hearing or other proceeding under this chapter
on the merits of the claim unless the worker first requests and
establishes at an expedited hearing under ORS 656.291 that the
worker fully and completely cooperated with the investigation,
that the worker failed to cooperate for reasons beyond the
worker's control or that the investigative demands were
unreasonable. If the Administrative Law Judge finds that the
worker has not fully cooperated, the Administrative Law Judge
shall affirm the denial, and the worker's claim for injury shall
remain denied. If the Administrative Law Judge finds that the
worker has cooperated, or that the investigative demands were
unreasonable, the Administrative Law Judge shall set aside the
denial, order the reinstatement of interim compensation if
appropriate and remand the claim to the insurer or self-insured
employer to accept or deny the claim.
  (16) In accordance with ORS 656.283 (3), the Administrative Law
Judge assigned a request for hearing for a claim for compensation
involving more than one potentially responsible employer or
insurer may specify what is required of an injured worker to
reasonably cooperate with the investigation of the claim as
required by subsection (14) of this section.
  SECTION 2.  { + The amendments to ORS 656.262 by section 1 of
this 2013 Act apply to claims filed on or after the effective
date of this 2013 Act. + }
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