WORKERS

Document Sample
WORKERS Powered By Docstoc
					    Laws Relating to
Workers’ Compensation
 and Safe Employment
     in Oregon
    ❖❖❖❖❖❖❖
     2009-2011
                            Laws Relating to

        Workers’ Compensation
         and Safe Employment
                                 in Oregon

                         2009-2011
                          Workers’ Compensation
                       Chapter 656 Oregon Revised Statutes

                      Occupational Safety and Health
                       Chapter 654 Oregon Revised Statutes

Administrative Procedures Act; Legislative Review of Rules; Civil Penalties
                       Chapter 183 Oregon Revised Statutes

                  Miscellaneous Prohibitions Relating to
                     Employment and Discrimination
                       Chapter 659 Oregon Revised Statutes

                Unlawful Discrimination in Employment,
        Public Accommodations and Real Property Transactions;
                 Administrative and Civil Enforcement
                      Chapter 659A Oregon Revised Statutes

                             Farmworker Camps
                   Chapter 658 (partial) Oregon Revised Statutes

                                  Issued by:
             Oregon Department of Consumer and Business Services
                              350 Winter St. NE
                                P.O. Box 14480
                          Salem, Oregon 97309-0405
                           Ted Kulongoski, Governor
                                State of Oregon
                         John L. Shilts, Administrator
                         Workers’ Compensation Division
                          Michael Wood, Administrator
                                 Oregon OSHA
                                      Table of contents
Prefaces

Department of Consumer and Business Services telephone directory .....................................iii

History of workers’ compensation and safe employment laws .................................................. v

Significant laws passed in 2009 affecting workers’ compensation ............................................ ix

Oregon laws

The following pages contain direct reproductions of officially published Oregon laws
relating to and administered by the Workers’ Compensation and Oregon OSHA divisions
of the Department of Consumer and Business Services.


ORS Chapter 656:          Workers’ Compensation ................................................................................ 1

ORS Chapter 654:          Occupational Safety and Health ...............................................................123

ORS Chapter 183:          Administrative Procedures Act;
                          Legislative Review of Rules; Civil Penalties ............................................147

ORS Chapter 659:          Miscellaneous Prohibitions Relating to
                          Employment and Discrimination..............................................................183

ORS Chapter 659A: Unlawful Discrimination in Employment,
                  Public Accommodations and Real Property Transactions;
                  Administrative and Civil Enforcement ....................................................193

ORS Chapter 658 (Partial): Farmworker Camps .........................................................................241

General Index to Workers’ Compensation ........................................................................ INDEX-1

Applicable rules and regulations are promulgated by the department and filed with the Office
of the Secretary of State.




                                                               i
                                                        Workers’ Compensation Division
                                                               350 Winter St. NE
                                                                 P.O. Box 14480
                                                           Salem, Oregon 97309-0405

                                     DIRECTOR’S OFFICE
                                     Director ..........................................................................503-378-4100
                                     Ombudsman for Injured Workers .............................503-378-3351
                                     Small Business Ombudsman ......................................503-378-4209

BUILDING CODES DIVISION                                                                OCCUPATIONAL SAFETY & HEALTH continued
Administrator ............................................503-378-4133                 Field offices
Information ................................................503-378-4133               Bend:         Enforcement ........................541-388-6066
                                                                                                     Consultation........................541-388-6066
FINANCE AND CORPORATE SECURITIES
                                                                                       Eugene:       Enforcement ........................541-686-7562
Administrator ............................................503-378-4140
                                                                                                     Consultation........................541-686-7913
Finance Section .........................................503-378-4140
                                                                                       Medford:      Enforcement ........................541-776-6030
Securities Section .......................................503-378-4387
                                                                                                     Consultation........................541-776-6016
FISCAL AND BUSINESS SERVICES                                                           Pendleton: Enforcement ........................541-276-9175
Administrator ............................................503-947-7977                               Consultation........................541-276-2353
Accounting .................................................503-947-7977               Portland:     Enforcement ........................503-229-5910
Budget .........................................................503-947-7977                         Consultation........................503-229-6193
Self-insureds & Premium Assessment ...503-947-7941                                     Salem:        Enforcement ........................503-378-3274
Workers’ Compensation Assessment .....503-378-2372                                                   Consultation........................503-373-7819
Mail .............................................................503-947-7928         Occupational Health Lab, Portland .......503-731-8398
INFORMATION MANAGEMENT DIVISION                                                        WORKERS’ COMPENSATION BOARD
Administrator ............................................503-378-8254                 Administrator ............................................503-378-3308
Research & Analysis .................................503-378-8254                      Board Members .........................................503-378-3308
INSURANCE DIVISION                                                                     Eugene Administrative Law Judges ......541-686-7841
Administrator ............................................503-947-7980                 Hearings Support .....................................503-378-3308
Producer Licensing ...................................503-947-7981                     Managing Attorney ...................................503-378-3308
Financial Regulations ...............................503-947-7982                      Medford Administrative Law Judges .....541-776-6217
Market Regulations ...................................503-947-7984                     Portland Administrative Law Judges .....971-673-0900
Rates & Forms............................................503-947-7983                  Presiding Administrative Law Judges ....503-378-3308
Consumer Services....................................503-947-7984                      Salem Administrative Law Judges ..........503-378-3308

OCCUPATIONAL SAFETY & HEALTH                                                           WORKERS’ COMPENSATION DIVISION
(Oregon OSHA)                                                                          Administrator ............................................503-947-7500
Administrator ............................................503-378-3272                 General Information ................................503-947-7810
Administration Section ............................800-922-2689                        Benefits Information .................................503-947-7585
 (Toll-free in Oregon only)                                                            Employer Compliance ..............................503-947-7815
Consultative Services................................503-378-3272                      Medical .......................................................503-934-6049
Education ...................................................503-378-3272              Re-employment .........................................503-947-7588
Enforcement ...............................................503-378-3272
Standards & Technical Services ..............503-378-3272




                                                                                 iii
        History of key workers’ compensation
             and safe employment laws
The 1913 Oregon Legislative Assembly                   The federal Occupational Safety and Health
established Oregon’s first workers’                    Act of 1970 gave rise to the Oregon Safe
compensation law, which became effective               Employment Act in 1973. Its purpose was to
July 1, 1914. This law set up a State Industrial       ensure safe and healthy working conditions
Accident Commission (SIAC), consisting of              for workers in Oregon, to preserve the state’s
three trustees to oversee the Industrial               human resources, and to reduce the
Accident Fund. Employers in hazardous                  substantial burden in terms of lost
occupations had to decide whether to be                production, wage loss, medical expenses,
part of the fund. If the employer contributed          disability compensation payment, and
to the fund, the employer could not be sued            human suffering created by occupational
for worker injuries or illnesses. Instead, suits       injury and disease.
were brought against the commission. On
the other hand, an employer in a hazardous             The legislature reorganized workers’
industry that chose not to participate had no          compensation administration in 1977 to
common-law defenses and was vulnerable                 create the Workers’ Compensation
to unlimited damages for worker injuries or            Department headed by a governor-
illnesses. Employers in nonhazardous                   appointed director. The Workers’
occupations could opt in to the fund and get           Compensation Board, continuing under
the same protections as contributing                   gubernatorial appointment, supervised a
employers.                                             Hearings Division that settled contested
                                                       cases under both workers’ compensation law
Each legislature since 1914 has addressed a            and the Oregon Safe Employment Act.
variety of workers’ compensation issues.
However, in some years it enacted                      The 1987 legislature made significant
significant changes to the system and the              changes to workers’ compensation law,
regulatory agency structure. This brief                including setting standards for the rating of
history summarizes some of the milestone               disability, improving return-to-work
law changes made over the past several                 assistance, and changing a number of things
decades.                                               addressed at cost containment. At that time,
                                                       the Workers’ Compensation Department
In 1965, the legislature overhauled the law            became part of the new Department of
making most employers subject to workers’              Insurance and Finance.
compensation. Two years later, the law was
expanded to cover all employers that                   In 1990, based on recommendations of the
employed subject workers. Employers could              Labor/Management Task Force appointed by
buy the commission’s insurance, self-insure,           the governor, the legislature held a special
or insure with private companies. The SIAC             session to substantially revise the workers’
was renamed to the Workmens’                           compensation law. The changes are some-
Compensation Board. The law transferred                times called the “Mahonia Hall” reforms,
SIAC’s insurance function to the State                 because the negotiations took place in the
Compensation Department, the precursor to              basement of Mahonia Hall, the governor’s
today’s SAIF Corporation.                              residence. The law changes covered many

                                                                                       Continued...
                                                   v
issues important to labor, including work-    The 2001 legislative session saw the passage
place safety, managed care for injured work-  of another complex and comprehensive
ers, increased benefits, improved employ-     workers’ compensation bill. The law changes
ment protections, and programs for early      included those agreed upon by labor and
return to work. The reforms also addressed    management to correct imbalances or
employer issues, such as reduced litigation   problems with the workers’ compensation
costs, more precise definitions of compens-   system. Issues addressed included: tort
ability, and creation of a small business     claims against an injured worker’s employer;
ombudsman to advocate employer issues.        definition of pre-existing conditions and
The new law also formalized the Manage-       their applicability to arthritis or arthritic
ment-Labor Advisory Committee to provide      conditions; increased permanent partial
ongoing review of proposals for changes to    disability rates; contributory negligence as
the system.                                   an employer defense; reduced time during
                                              which claims may be denied or accepted;
In 1995, the most significant changes to the
                                              increased temporary disability benefits;
workers’ compensation system came from
                                              supplemental disability for multiple-job
Senate Bill 369. The bill was designed, in
                                              workers; Workers’ Compensation Board
part, to restate and clarify many of the 1990
                                              own-motion claim-reopening process and
reforms that had been reversed or
                                              reimbursement from Workers’ Benefit Fund
overturned through case law. The new laws
                                              for claim re-openings in own motion. The
addressed a wide variety of issues, including
                                              Management-Labor Advisory Committee
exclusive remedy, multiple employer
                                              was also directed to recommend an
responsibility, pre-existing conditions, and
                                              exclusive, no-fault, expeditious alternative
permanent partial disability benefits. The
                                              process and remedy to the court system that
legislature placed a sunset, or expiration
                                              addressed major-contributing-cause denials.
date, on some of the changes to ensure
future legislatures revisited the policy      In 2003, the legislature made a major change
changes. Separate from the reform bill, the   to how to determine permanent partial
Department of Insurance and Finance was       disability (PPD) benefits. The PPD benefits
reorganized and renamed the Department        changed to rate injuries to body parts in
of Consumer and Business Services.            relation to the “whole person.” Workers
                                                    with permanent disability received an
The 1999 legislative session saw relatively
                                                    “impairment benefit” equal to the
minor changes to the Oregon workers’
                                                    percentage of impairment multiplied by
compensation system. However, the
                                                    100 times the state average weekly wage.
legislature did repeal most of the sunsets
                                                    Workers unable to return to regular work
established in 1995, making many of the law
                                                    also received a work disability benefit based
changes permanent. One exception was the
                                                    on the percentage of impairment, modified
exclusive-remedy provision, which had its
                                                    by age, education, and adaptability factors,
sunset extended five more years. The
                                                    multiplied by 150 times the worker’s weekly
Workers’ Compensation Division was
                                                    wage at the time of injury. The law limited
directed to conduct a study on the effects
                                                    the total amount of permanent partial
of and the costs and savings to the Oregon
                                                    disability benefits to a range of 50 percent
workers’ compensation system of major-
                                                    and 133 percent of the state average weekly
contributing-cause and combined-condition
                                                    wage.
provisions.



                                               vi
The 2005 legislature addressed the process              The legislature also expanded the role of
for insurer-requested independent medical               chiropractic physicians, podiatric physicians,
examinations. The bill required insurers to             naturopathic physicians, and physician
select an independent medical examination               assistants in the workers’ compensation
provider from a department-developed list               system. They allowed these providers to
and set specific criteria in order to be on the         serve as attending physicians for up to 60
list of qualified providers. Workers were               days or 18 visits, whichever comes first. In
allowed to appeal the reasonableness of an              addition, the four provider groups were
exam location and obtain an expedited                   allowed to authorize time loss for up to 30
review by the department. The law also                  days and manage the worker’s return to
provided sanctions against medical service              work during that period.
providers who fail to provide diagnostic
records in a timely manner and also im-                 In 2009, based in part on a legislatively
posed a monetary penalty against a worker               requested report from the Management-
who failed to attend an independent medical             Labor Advisory Committee, the legislature
examination.                                            improved the benefits provided to beneficia-
                                                        ries when a worker is killed on the job or
The legislature also changed the standard               dies while he or she is permanently and
for establishing permanent total disability             totally disabled from a work injury. It
benefits, as well as for terminating or                 increased final disposition of the body and
rescinding those benefits. The law set an               funeral expenses from 10 to 20 times the
earnings threshold to determine what                    state average weekly wage and established
constitutes “gainful” employment linked to              the benefit as a set amount. It also made
the federal poverty guidelines. Workers                 other technical changes to improve the
could appeal the reversal of their permanent            benefit delivery process, clarify benefits
total disability benefits and maintain their            paid when a worker dies before his or her
benefits while the appeal progressed. The               full permanent partial disability award is
law also entitled workers to vocational                 paid, and created a new level of benefits for
assistance if their permanent total disability          children who have no surviving parents.
benefits are terminated.

In 2007, the legislature revisited several
significant policy areas. They repealed the
sunsets on the permanent partial disability
benefits that were changed in 2003 and 2005.
The legislature also made permanent the
expanded role of nurse practitioners in the
workers’ compensation system by allowing
them to provide compensable medical
services to injured workers for up to 90 days,
authorize time loss for up to 60 days, release
the worker to work, and manage the
worker’s return to work in that time period.




                                                  vii
              Significant laws passed in 2009
             affecting workers’ compensation
HB 2045 Restores chiropractors’ ability to                     for filing a claim with a prostate
        make impairment findings if serv-                      cancer presumption.
        ing as the attending physician at                      Effective Jan. 1, 2010.
        the time of claim closure.
                                                     HB 2705 Modifies the circumstances that
        Effective Jan. 1, 2010.
                                                             require insurers and self-insured
HB 2195 Makes three changes to the voca-                     employers to evaluate injured
        tional assistance processes: replaces                workers for vocational assistance
        certification with a registry for                    eligibility. The bill allows insurers
        vocational provider organizations,                   and self-insured employers to
        allows longer voluntary payment of                   forego a vocational evaluation if the
        temporary disability during train-                   worker is released for regular work,
        ing programs, and clarifies the                      but for what-ever reason, has not
        appeal language for vocational                       returned to work.
        disputes.                                            Effective Jan. 1, 2010.
        Effective Jan. 1, 2010.
                                                     HB 2707 Specifies that a worker has 60 days
HB 2197 Eliminates some duplication in the                   from the insurer’s mailing date to
        claim closure law. Clarifies Re-em-                  the worker requesting documenta-
        ployment Assistance Program                          tion of wages in order to correctly
        employer requirements and clari-                     determine the amount of supple-
        fies the duration of premium as-                     mental disability payments. The
        sessment exemption for preferred                     bill also authorizes the director to
        workers. Clarifies that the treat-                   adopt rules about how supplemen-
        ment time frames for “other” health                  tal disability benefits are calculated.
        care providers (such as acupunctur-                  Effective Jan. 1, 2010.
        ists and psychologists) starts from
                                                     HB 3345 Provides attorney fees in five cir-
        the date of the worker’s first visit
                                                             cumstances where workers’ attor-
        and not the date of injury. Allows
                                                             neys currently are not compensated
        parties to resolve medical fee dis-
                                                             for services. The bill increases
        putes informally without request-
                                                             statutory caps on attorney fees and
        ing director review.
                                                             provides a mechanism for increas-
        Effective Jan. 1, 2010.
                                                             ing the caps annually based on
HB 2420 Adds 12 conditions, including a                      changes in the state average weekly
        variety of cancers, to the existing                  wage. The bill also provides a new
        firefighter presumption for employ-                  basis for a penalty, in addition to an
        ment-caused occupational diseases.                   attorney fee, if the workers’ com-
        This bill limits these added condi-                  pensation insurer fails to make
        tions to non-volunteer firefighters,                 payment under a disputed claim
        sets a time limit to file an occupa-                 settlement.
        tional disease claim using the                       Effective Jan. 1, 2010.
        presumption, and sets an age limit



                                                                                      Continued...
                                                ix
SB 110   Improves the benefits provided to
         beneficiaries when a worker is
         killed on the job or dies while he or
         she is permanently and totally
         disabled from a work injury. The
         bill also clarifies that if a worker
         dies before his or her permanent
         partial disability award is fully
         paid, and if the worker has no
         beneficiaries as defined under
         ORS Chapter 656, the insurer must
         pay the full remainder of the
         permanent disability benefit to
         the worker’s estate.
         Effective Jan. 1, 2010.




                                                 x
                                         Chapter 656
                                            2009 EDITION

                               Workers’ Compensation

              GENERAL PROVISIONS                             656.046   Coverage of persons in college work ex-
656.001   Short title                                                  perience and professional education pro-
                                                                       grams
656.003   Application of definitions to construction         656.052   Prohibition against employment without
          of chapter
                                                                       coverage; proposed order declaring non-
656.005   Definitions                                                  complying employer; effect of failure to
656.006   Effect on employers’ liability law                           comply
656.008   Extension of laws relating to workers’             656.054   Claim of injured worker of noncomplying
          compensation to federal lands and proj-                      employer; procedure for disputing accept-
          ects within state                                            ance of claim; recovery of costs from
                                                                       noncomplying employer; restrictions
656.010   Treatment by spiritual means
                                                             656.056   Subject employers must post notice of
656.012   Findings and policy                                          manner of compliance
                                                             656.070   Definitions for ORS 656.027, 656.070 and
                     COVERAGE                                          656.075
656.017   Employer required to pay compensation              656.075   Exemption from coverage for newspaper
          and perform other duties; state not au-                      carriers; casualty insurance and other re-
          thorized to be direct responsibility em-                     quirements
          ployer
                                                             656.126   Coverage while temporarily in or out of
656.018   Effect of providing coverage; exclusive                      state; judicial notice of other state’s laws;
          remedy                                                       agreements between states relating to
656.019   Civil negligence action for claim denied                     conflicts of jurisdiction; limitation on
          on basis of failure to meet major contrib-                   compensation for claims in this state and
          uting cause standard; statute of limita-                     other jurisdictions
          tions                                              656.128   Sole proprietors, limited liability company
656.020   Damage actions by workers against non-                       members, partners, independent contrac-
          complying employers; defenses outlawed                       tors may elect coverage by insurer; can-
                                                                       cellation
656.021   Person performing work under ORS chap-
          ter 701 as subject employer                        656.132   Coverage of minors
656.023   Who are subject employers                          656.135   Coverage of deaf school work experience
                                                                       trainees
656.025   Individuals     engaged     in     commuter        656.138   Coverage of apprentices, trainees partic-
          ridesharing not subject workers; condi-                      ipating in related instruction classes
          tions
                                                             656.140   Coverage of persons operating equipment
656.027   Who are subject workers                                      for hire
656.029   Obligation of person awarding contract to          656.154   Injury due to negligence or wrong of a
          provide coverage for workers under con-                      person not in the same employ as injured
          tract; exceptions; effect of failure to pro-                 worker; remedy against such person
          vide coverage
                                                             656.156   Intentional injuries
656.031   Coverage for municipal volunteer person-
          nel                                                656.160   Effect of incarceration on receipt of com-
                                                                       pensation
656.033   Coverage for participants in work experi-
          ence or school directed professional               656.170   Validity of provisions of certain collective
          training programs                                            bargaining agreements; alternative dis-
                                                                       pute resolution systems; exclusive medical
656.035   Status of workers in separate occupations                    service provider lists; authority of director
          of employer
                                                             656.172   Applicability of and criteria for establish-
656.037   Exemption from coverage for persons en-                      ing program under ORS 656.170
          gaged in certain real estate activities
                                                             656.174   Rules
656.039   Election of coverage for workers not sub-
          ject to law; procedure; cancellation;                         APPLICABILITY PROVISIONS
          election of coverage for home health care
          workers employed by clients of Depart-             656.202   Compensation payable to subject worker
          ment of Human Services                                       in accordance with law in effect at time
                                                                       of injury; exceptions; notice regarding
656.041   City or county may elect to provide cov-                     payment
          erage for jail inmates
                                                             Note      Implementation of 1990 Laws
656.043   Governmental agency paying wages re-
          sponsible for providing coverage                   Note      Implementation of 1995 Laws
656.044   State Accident Insurance Fund Corpo-               Note      Implementation of 1997 Laws
          ration    may     insure   liability  under        Note      Implementation of 2001 Laws
          Longshoremen’s and Harbor Workers’
          Compensation Act; procedure; cancella-             Note      Implementation of 2003 Laws
          tion                                               Note      Implementation of 2005 Laws

                                                         1
                                   LABOR AND EMPLOYMENT

Note      Implementation of 2007 Laws                       656.248   Medical service fee schedules; basis of
Note      Implementation of 2009 Laws                                 fees; application to service provided by
                                                                      managed care organization; resolution of
                                                                      fee disputes; rules
                COMPENSATION AND                            656.250   Limitation on compensability of physical
                 MEDICAL BENEFITS                                     therapist services
656.204   Death                                             656.252   Medical report regulation; rules; duties of
656.206   Permanent total disability                                  attending physician or nurse practitioner;
                                                                      disclosure of information; notice of
656.208   Death during permanent total disability                     changing attending physician or nurse
656.209   Offsetting permanent total disability ben-                  practitioner; copies of medical service
          efits against Social Security benefits                      billings to be furnished to worker
656.210   Temporary total disability; payment dur-          656.254   Medical report forms; sanctions; proce-
          ing medical treatment; election; rules                      dure for declaring health care practitioner
                                                                      ineligible for workers’ compensation re-
656.211   “Average weekly wage” defined                               imbursement
656.212   Temporary partial disability                      656.256   Considerations for rules regarding certain
656.214   Permanent partial disability                                rural hospitals
Note      Benefits, January 1, 1992, to December 31,        656.258   Vocational assistance service payments
          1995                                              656.260   Certification procedure for managed
Note      Benefits, January 1, 1996, to December 31,                  health care provider; peer review, quality
          1997                                                        assurance, service utilization and contract
                                                                      review; confidentiality of certain informa-
Note      Benefits, January 1, 1998, to October 23,                   tion; immunity from liability; rules; med-
          1999                                                        ical service dispute resolution
Note      Benefits, January 1, 2000, to December 31,
          2004                                                                PROCEDURE FOR
                                                                        OBTAINING COMPENSATION
Note      Benefits, January 1, 2002, to December 31,
          2004                                              656.262   Processing of claims and payment of
                                                                      compensation; payment by employer; ac-
656.216   Permanent partial disability; method of                     ceptance and denial of claim; penalties
          payment; effect of prior receipt of tempo-                  and attorney fees; cooperation by worker
          rary disability payments                                    and attorney in claim investigation; rules
656.218   Continuance of permanent partial disabil-         656.263   To whom notices sent under ORS 656.262,
          ity payments to survivors; effect of death                  656.265, 656.268 to 656.289, 656.295 to 656.325
          prior to final claim disposition                            and 656.382 to 656.388
656.222   Compensation for additional accident              656.264   Compensable injury, denied claim and
656.225   Compensability of certain preexisting                       other reports
          conditions                                        656.265   Notice of accident from worker
656.226   Cohabitants and children entitled to com-         656.266   Burden of proving compensability and na-
          pensation                                                   ture and extent of disability
656.228   Payments directly to beneficiary or               656.267   Claims for new and omitted medical con-
          custodian                                                   ditions
656.230   Lump sum award payments                           656.268   Claim closure; termination of temporary
656.232   Payments to aliens residing outside of                      total disability benefits; reconsideration
          United States                                               of closure; medical arbiter to make find-
                                                                      ings of impairment for reconsideration;
656.234   Compensation not assignable nor to pass                     credit or offset for fraudulently obtained
          by operation of law; certain benefits sub-                  or overpaid benefits; rules
          ject to support obligations
                                                            656.273   Aggravation for worsened conditions;
656.236   Compromise and release of claim matters                     procedure; limitations; additional com-
          except for medical benefits; approval by                    pensation
          Administrative Law Judge or board; ap-            656.277   Request for reclassification of nondis-
          proval by director for certain reserve re-                  abling claim; nondisabling claim proce-
          imbursements; restriction on charging                       dure
          costs to workers; restriction on joinder as
          parties for responsibility determinations         656.278   Board has continuing authority to alter
                                                                      earlier action on claim; limitations
656.240   Deduction of benefits from sick leave
          payments paid to employees                        656.283   Hearing rights and procedure; rules; im-
                                                                      peachment evidence; use of standards for
656.245   Medical services to be provided; services                   evaluation of disability
          by providers not members of managed
                                                            656.285   Protection of witnesses at hearings
          care organizations; authorizing temporary
          disability compensation and making find-          656.287   Use of vocational reports in determining
          ing of impairment for disability rating                     loss of earning capacity at hearing; rules
          purposes by certain providers; review of          656.289   Orders of Administrative Law Judge; re-
          disputed claims for medical services; rules                 view; disposition of claim when compen-
656.247   Payment for medical services prior to                       sability disputed; approval of director
          claim acceptance or denial; review of dis-                  required for reimbursement of certain ex-
          puted services; duty of health benefit plan                 penditures
          to pay for certain medical services in de-        656.291   Expedited Claim Service; jurisdiction;
          nied claim                                                  procedure; representation; rules

                                                        2
                                    WORKERS′ COMPENSATION

656.295   Board review of Administrative Law                  656.419   Workers’ compensation insurance con-
          Judge orders; application of standards for                    tracts
          evaluation of disability                            656.423   Cancellation of coverage by employer;
656.298   Judicial review of board orders; settle-                      notice required
          ment during pendency of petition for re-            656.427   Termination of workers’ compensation
          view                                                          insurance contract or surety bond liability
656.304   When acceptance of compensation pre-                          by insurer; rules
          cludes hearing
                                                              656.430   Certification of self-insured employer;
656.307   Determination of issues regarding respon-                     employer groups; insurance policy re-
          sibility for compensation payment; medi-                      quirements; revocation of certification;
          ation or arbitration procedure; rules                         rules
656.308   Responsibility for payment of claims; ef-           656.434   Certification effective until canceled or
          fect of new injury; denial of responsibility;                 revoked; revocation of certificate
          procedure for joining employers and in-
          surers; attorney fees; limitation on filing         656.440   Notice of certificate revocation; appeal;
          claims subject to settlement agreement                        effective date
656.310   Presumption concerning notice of injury             656.443   Procedure upon default by employer
          and self-inflicted injuries; reports as evi-        656.445   Advancement of funds from Workers’
          dence                                                         Benefit Fund for compensation due work-
656.313   Stay of compensation pending request for                      ers insured by insurer in default; limita-
          hearing or review; procedure for denial of                    tions; rules
          claim for medical services; reimbursement           656.447   Sanctions against insurer for failure to
656.319   Time within which hearing must be re-                         comply with contracts, orders or rules
          quested                                             656.455   Self-insured employers required to keep
656.325   Required medical examination; worker-                         records of compensation claims; location
          requested examination; qualified physi-                       and inspection; expenses of audits and in-
          cians; claimant’s duty to reduce disability;                  spections; rules
          suspension or reduction of benefits; ces-
          sation or reduction of temporary total                               CHARGES AGAINST
          disability benefits; rules; penalties                           EMPLOYERS AND WORKERS
656.327   Review of medical treatment of worker;              656.502   “Fiscal year” defined
          findings; review; costs
                                                              656.504   Rates, charges, fees and reports by em-
656.328   List of authorized providers and standards                    ployers insured by State Accident Insur-
          of professional conduct for providers of                      ance Fund Corporation
          independent medical examinations; exclu-
          sion; complaints; rules                             656.505   Estimate of payroll when employer fails
                                                                        to file payroll report; demand for and re-
656.331   Contact, medical examination of worker                        covery of premiums and assessments
          represented by attorney prohibited with-
          out written notice; rules                           656.506   Assessments for programs; setting assess-
                                                                        ment amount; determination by director
656.340   Vocational assistance procedure; eligibil-                    of benefit level
          ity criteria; service providers; resolution
          of vocational assistance disputes; rules            656.508   Authority to fix premium rates for em-
                                                                        ployers
            DISCLOSURE OF WORKER                              656.526   Distribution of dividends from surplus in
           MEDICAL AND VOCATIONAL                                       Industrial Accident Fund
                   CLAIM RECORDS                              656.536   Premium charges for coverage of refor-
656.360   Confidentiality of worker medical and vo-                     estation cooperative workers based on
          cational claim records                                        prevailing wage; manner of determining
656.362   Liability for disclosure of worker medical                    prevailing wage
          and vocational claim records
                                                                         ENFORCEMENT OF PREMIUM
             LEGAL REPRESENTATION                                                  PAYMENTS
656.382   Penalties and attorney fees payable by              656.552   Deposit of cash, bond or letter of credit
          insurer or employer in processing claim                       to secure payment of employer’s premi-
                                                                        ums
656.385   Attorney fees in cases regarding certain
          medical service or vocational rehabili-             656.554   Injunction against employer failing to
          tation matters; rules; limitation; penalties                  comply with deposit requirements
656.386   Recovery of attorney fees, expenses and             656.556   Liability of person letting a contract for
          costs in appeal on denied claim; attorney                     amounts due from contractor
          fees in other cases                                 656.560   Default in payment of premiums, fees,
656.388   Approval of attorney fees required; lien                      assessments or deposit; remedies
          for fees; fee schedule; report of legal ser-
          vice costs                                          656.562   Moneys due Industrial Accident Fund as
                                                                        preferred claims; moneys due department
656.390   Frivolous appeals, hearing requests or                        as taxes due state
          motions; expenses and attorney fee
                                                              656.564   Lien for amounts due from employer on
                                                                        real property, improvements and equip-
     SELF-INSURED AND CARRIER-INSURED                                   ment on or with which labor is performed
            EMPLOYERS; INSURERS                                         by workers of employer
656.403 Obligations of self-insured employer                  656.566   Lien on property of employer for amounts
656.407 Qualifications of insured employers; rules                      due

                                                          3
                                   LABOR AND EMPLOYMENT

      RECOVERY AGAINST THIRD PERSONS                      656.704   Actions and orders regarding matters
        AND NONCOMPLYING EMPLOYERS                                  concerning claim and matters other than
656.576  “Paying agency” defined                                    matters concerning claim; authority of
                                                                    director and board; administrative and
656.578  Workers’ election whether to sue third                     judicial review; rules
         person or noncomplying employer for              656.708   Hearings Division; duties
         damages
                                                          656.709   Ombudsman for injured workers; ombuds-
656.580  Payment of compensation notwithstand-                      man for small business; duties
         ing cause of action for damages; lien on
         cause of action for compensation paid            656.712   Workers’ Compensation Board; members;
                                                                    qualifications; chairperson; confirmation;
656.583  Paying agency may compel election and                      term; vacancies
         prompt action
                                                          656.714   Removal of board member
656.587  Paying agency must join in any compro-
         mise                                             656.716   Board members not to engage in political
                                                                    or business activity that interferes with
656.591  Election not to bring action operates as                   duties as board member; oath and bond
         assignment of cause of action                              required
656.593  Procedure when worker elects to bring            656.718   Chairperson; quorum; panels
         action; release of liability and lien of         656.720   Prosecution and defense of actions by At-
         paying agency in certain cases                             torney General and district attorneys
656.595  Precedence of cause of action; compensa-         656.722   Authority to employ subordinates
         tion paid or payable not to be an issue
                                                          656.724   Administrative Law Judges; appointment;
656.596  Damage recovery as offset against com-                     qualifications; term; performance survey;
         pensation; recovery procedure; notice to                   removal procedure
         paying agent
                                                          656.725   Duties and status of Administrative Law
                                                                    Judges
               FUNDS; SOURCE;
          INVESTMENT; DISBURSEMENT                        656.726   Duties and powers to carry out workers’
                                                                    compensation and occupational safety
                 (General Provisions)                               laws; rules
656.602   Disbursement procedures                         656.727   Rules for administration of benefit offset
656.605   Workers’ Benefit Fund; uses and limita-         656.730   Assigned risk plan
          tions                                           656.732   Power to compel obedience to subpoenas
656.612   Assessments for department activities;                    and punish for misconduct
          amount; collection procedure                    656.735   Civil penalty for noncomplying employers;
656.614   Self-Insured Employer Adjustment Re-                      amount; liability of partners and of cor-
          serve; Self-Insured Employer Group Ad-                    porate and limited liability company offi-
          justment Reserve                                          cers; effect of final order; penalty as
                                                                    preferred claim; disposition of moneys
656.622   Reemployment Assistance Program; claim                    collected
          data not to be used for insurance rating;
          rules                                           656.740   Review of proposed order declaring non-
                                                                    complying employer or nonsubjectivity
656.625   Reopened Claims Program; rules                            determination; review of proposed assess-
656.628   Workers with Disabilities Program; use of                 ment or civil penalty; insurer as party;
          funds; conditions and limitations; rules                  hearing
656.630   Center for Research on Occupational and         656.745   Civil penalty for inducing failure to report
          Environmental Toxicology funding; report                  claims; failure to pay assessments; failure
          of activities                                             to comply with statutes, rules or orders;
                                                                    amount; procedure
                                                          656.750   Civil penalty for failure to maintain re-
     (Industrial Accident Fund and Reserves)                        cords of compensation claims; amount;
656.632   Industrial Accident Fund                                  disposition of funds
656.634   Trust fund status of Industrial Accident
          Fund                                                      (State Accident Insurance Fund
                                                                               Corporation)
656.635   Reserve accounts in Industrial Accident
          Fund                                            656.751   State Accident Insurance Fund Corpo-
                                                                    ration created; board; members’ qualifica-
656.636   Reserves in Industrial Accident Fund for                  tions; terms; compensation; expenses;
          awards for permanent disability or death                  function; report
656.640   Creation of reserves                            656.752   State Accident Insurance Fund Corpo-
                                                                    ration; purpose and functions
                   (Other Funds)                          656.753   State Accident Insurance Fund Corpo-
                                                                    ration exempt from certain financial ad-
656.642   Emergency Fund                                            ministration laws; contracts with state
656.644   Petty cash funds                                          agencies for services
                                                          656.754   Manager; appointment; functions
                ADMINISTRATION                            656.758   Inspection of books, records and payrolls;
                (General Provisions)                                statement of employment data; civil pen-
                                                                    alty for misrepresentation; failure to sub-
656.702   Disclosure of records of corporation, de-                 mit books for inspection and refusal to
          partment and insurers                                     keep correct payroll

                                                      4
                                  WORKERS′ COMPENSATION

656.772   Annual audit of State Accident Insurance              INFORMATIONAL MATERIALS ABOUT
          Fund Corporation by Secretary of State;                 WORKERS’ COMPENSATION SYSTEM
          scope of review; report of audit                656.795   Informational materials for nurse practi-
656.774   Annual report by State Accident Insur-                    tioners
          ance Fund Corporation to Secretary of           656.797   Certification by nurse practitioner of re-
          State; contents                                           view of required materials
656.776   Notice to Secretary of State regarding          656.798   Duty of insurer, self-insured employer and
          action on audit report                                    self-insured employer group to provide in-
                                                                    formation to director
           (Claims Examiner Certification)                656.799   Informational materials for other health
                                                                    care professionals; certification of review
656.780   Certification and training of claims ex-                  of materials
          aminers; records of certification and
          training of examiners; department inspec-                 OCCUPATIONAL DISEASE LAW
          tion of records; penalties; rules               656.802   Occupational disease; mental disorder;
                                                                    proof
             (Reinsurance Program for                     656.804   Occupational disease as an injury under
      Medical Professional Liability Insurance)                     Workers’ Compensation Law
         (Temporary provisions relating to rein-          656.807   Time for filing of claims for occupational
         surance program for medical professional                   disease; procedure
         liability insurance are compiled as notes
         following ORS 656.780)                                     WORKER LEASING COMPANIES
                                                          656.850   License; compliance with workers’ com-
                                                                    pensation and safety laws
                (Advisory Committees)
                                                          656.855   Licensing system for worker leasing com-
656.790   Workers’    Compensation    Management-                   panies; rules; dedication of moneys re-
          Labor Advisory Committee; membership;                     ceived
          duties; expenses
656.794   Advisory committee on medical care;                                   PENALTIES
          rules                                           656.990   Penalties




                                                      5
LABOR AND EMPLOYMENT




         6
                                       WORKERS′ COMPENSATION                                            656.005

         GENERAL PROVISIONS                                       child who is an invalid is considered to be a
                                                                  child under 18 years of age.
    656.001 Short title. This chapter may be
cited as the Workers’ Compensation Law.                                (6) “Claim” means a written request for
[1965 c.285 §1; 1977 c.109 §1]                                    compensation from a subject worker or
     656.002 [Amended by 1957 c.718 §1; 1959 c.448 §1;            someone on the worker’s behalf, or any com-
1965 c.285 §4; 1967 c.341 §2; 1969 c.125 §1; 1969 c.247 §1;       pensable injury of which a subject employer
1973 c.497 §1; 1973 c.620 §1; repealed by 1975 c.556 §1           has notice or knowledge.
(656.003, 656.005 enacted in lieu of 656.002)]
                                                                       (7)(a) A “compensable injury” is an acci-
    656.003 Application of definitions to                         dental injury, or accidental injury to pros-
construction of chapter. Except where the                         thetic appliances, arising out of and in the
context otherwise requires, the definitions                       course of employment requiring medical ser-
given in this chapter govern its construction.                    vices or resulting in disability or death; an
[1975 c.556 §2 (enacted in lieu of 656.002)]                      injury is accidental if the result is an acci-
      656.004 [Repealed by 1981 c.535 §28, (656.012 enacted       dent, whether or not due to accidental
in lieu of 656.004)]                                              means, if it is established by medical evi-
     656.005 Definitions. (1) “Average weekly                     dence supported by objective findings, sub-
wage” means the Oregon average weekly                             ject to the following limitations:
wage in covered employment, as determined                              (A) No injury or disease is compensable
by the Employment Department, for the last                        as a consequence of a compensable injury
quarter of the calendar year preceding the                        unless the compensable injury is the major
fiscal year in which the injury occurred.                         contributing cause of the consequential con-
     (2) “Beneficiary” means an injured                           dition.
worker, and the husband, wife, child or de-                            (B) If an otherwise compensable injury
pendent of a worker, who is entitled to re-                       combines at any time with a preexisting
ceive     payments     under    this   chapter.                   condition to cause or prolong disability or a
“Beneficiary” does not include:                                   need for treatment, the combined condition
     (a) A spouse of an injured worker living                     is compensable only if, so long as and to the
in a state of abandonment for more than one                       extent that the otherwise compensable injury
year at the time of the injury or subse-                          is the major contributing cause of the disa-
quently. A spouse who has lived separate and                      bility of the combined condition or the major
apart from the worker for a period of two                         contributing cause of the need for treatment
years and who has not during that time re-                        of the combined condition.
ceived or attempted by process of law to col-                          (b) “Compensable injury” does not in-
lect funds for support or maintenance is                          clude:
considered living in a state of abandonment.
                                                                       (A) Injury to any active participant in
     (b) A person who intentionally causes the                    assaults or combats which are not connected
compensable injury to or death of an injured                      to the job assignment and which amount to
worker.                                                           a deviation from customary duties;
     (3) “Board” means the Workers’ Compen-                            (B) Injury incurred while engaging in or
sation Board.                                                     performing, or as the result of engaging in
     (4) “Carrier-insured employer” means an                      or performing, any recreational or social ac-
employer who provides workers’ compensa-                          tivities primarily for the worker’s personal
tion coverage with the State Accident Insur-                      pleasure; or
ance Fund Corporation or an insurer                                    (C) Injury the major contributing cause
authorized under ORS chapter 731 to trans-                        of which is demonstrated to be by a prepon-
act workers’ compensation insurance in this                       derance of the evidence the injured worker’s
state.                                                            consumption of alcoholic beverages or the
     (5) “Child” includes a posthumous child,                     unlawful consumption of any controlled sub-
a child legally adopted prior to the injury, a                    stance, unless the employer permitted, en-
child toward whom the worker stands in loco                       couraged or had actual knowledge of such
parentis, a child born out of wedlock and a                       consumption.
stepchild, if such stepchild was, at the time                          (c) A “disabling compensable injury” is
of the injury, a member of the worker’s fam-                      an injury which entitles the worker to com-
ily and substantially dependent upon the                          pensation for disability or death. An injury
worker for support. A dependent child who                         is not disabling if no temporary benefits are
is an invalid is a child, for purposes of bene-                   due and payable, unless there is a reasonable
fits, regardless of age, so long as the child                     expectation that permanent disability will
was an invalid at the time of the accident                        result from the injury.
and thereafter remains an invalid substan-                             (d) A “nondisabling compensable injury”
tially dependent on the worker for support.                       is any injury which requires medical services
For purposes of this chapter, a dependent                         only.

                                                              7
656.005                         LABOR AND EMPLOYMENT

     (8) “Compensation” includes all benefits,          in any state, territory or possession of the
including medical services, provided for a              United States;
compensable injury to a subject worker or                    (iii) Physician assistant licensed by the
the worker’s beneficiaries by an insurer or             Oregon Medical Board in accordance with
self-insured employer pursuant to this chap-            ORS 677.505 to 677.525 or a similarly li-
ter.                                                    censed physician assistant in any country or
     (9) “Department” means the Department              in any state, territory or possession of the
of Consumer and Business Services.                      United States; or
     (10) “Dependent” means any of the                       (iv) Doctor of naturopathy or naturo-
following-named relatives of a worker whose             pathic physician licensed by the Oregon
death results from any injury: Father,                  Board of Naturopathic Medicine under ORS
mother, grandfather, grandmother, stepfa-               chapter 685 or a similarly licensed doctor or
ther, stepmother, grandson, granddaughter,              physician in any country or in any state,
brother, sister, half sister, half brother, niece       territory or possession of the United States.
or nephew, who at the time of the accident,                  (c) Except as otherwise provided for
are dependent in whole or in part for their             workers subject to a managed care contract,
support upon the earnings of the worker.                “attending physician” does not include a
Unless otherwise provided by treaty, aliens             physician who provides care in a hospital
not residing within the United States at the            emergency room and refers the injured
time of the accident other than father,                 worker to a primary care physician for
mother, husband, wife or children are not               follow-up care and treatment.
included within the term “dependent.”                        (d) “Consulting physician” means a doc-
     (11) “Director” means the Director of the          tor or physician who examines a worker or
Department of Consumer and Business Ser-                the worker’s medical record to advise the
vices.                                                  attending physician or nurse practitioner au-
     (12)(a) “Doctor” or “physician” means a            thorized to provide compensable medical ser-
                                                        vices under ORS 656.245 regarding treatment
person duly licensed to practice one or more            of a worker’s compensable injury.
of the healing arts in any country or in any
state, territory or possession of the United                 (13)(a) “Employer” means any person, in-
States within the limits of the license of the          cluding receiver, administrator, executor or
licentiate.                                             trustee, and the state, state agencies, coun-
                                                        ties, municipal corporations, school districts
     (b) Except as otherwise provided for               and other public corporations or political
workers subject to a managed care contract,             subdivisions, who contracts to pay a re-
“attending physician” means a doctor, physi-            muneration for and secures the right to di-
cian or physician assistant who is primarily            rect and control the services of any person.
responsible for the treatment of a worker’s                  (b) Notwithstanding paragraph (a) of this
compensable injury and who is:                          subsection, for purposes of this chapter, the
     (A) A medical doctor or doctor of                  client of a temporary service provider is not
osteopathy licensed under ORS 677.100 to                the employer of temporary workers provided
677.228 by the Oregon Medical Board or an               by the temporary service provider.
oral and maxillofacial surgeon licensed by                   (c) As used in paragraph (b) of this sub-
the Oregon Board of Dentistry or a similarly            section, “temporary service provider” has the
licensed doctor in any country or in any                meaning for that term provided in ORS
state, territory or possession of the United            656.850.
States; or
                                                             (14) “Insurer” means the State Accident
     (B) For a cumulative total of 60 days              Insurance Fund Corporation or an insurer
from the first visit on the initial claim or for        authorized under ORS chapter 731 to trans-
a cumulative total of 18 visits, whichever              act workers’ compensation insurance in this
occurs first, to any of the medical service             state or an assigned claims agent selected by
providers listed in this subparagraph, a:               the director under ORS 656.054.
     (i) Doctor or physician licensed by the                 (15) “Consumer and Business Services
State Board of Chiropractic Examiners for               Fund” means the fund created by ORS
the State of Oregon under ORS chapter 684               705.145.
or a similarly licensed doctor or physician in               (16) “Invalid” means one who is phys-
any country or in any state, territory or               ically or mentally incapacitated from earning
possession of the United States;                        a livelihood.
     (ii) Podiatric physician and surgeon li-                (17) “Medically stationary” means that
censed by the Oregon Medical Board under                no further material improvement would rea-
ORS 677.805 to 677.840 or a similarly li-               sonably be expected from medical treatment,
censed doctor or physician in any country or            or the passage of time.

                                                    8
                               WORKERS′ COMPENSATION                                         656.005

     (18) “Noncomplying employer” means a                 (ii) In claims for a new medical condi-
subject employer who has failed to comply             tion, the diagnosis or treatment precedes the
with ORS 656.017.                                     onset of the new medical condition; or
     (19) “Objective findings” in support of              (iii) In claims for a worsening pursuant
medical evidence are verifiable indications           to ORS 656.273 or 656.278, the diagnosis or
of injury or disease that may include, but are        treatment precedes the onset of the worsened
not limited to, range of motion, atrophy,             condition.
muscle strength and palpable muscle spasm.                (b) “Preexisting condition” means, for all
“Objective findings” does not include phys-           occupational disease claims, any injury, dis-
ical findings or subjective responses to phys-        ease, congenital abnormality, personality dis-
ical examinations that are not reproducible,          order or similar condition that contributes to
measurable or observable.                             disability or need for treatment and that
     (20) “Palliative care” means medical ser-        precedes the onset of the claimed occupa-
vice rendered to reduce or moderate tempo-            tional disease, or precedes a claim for wors-
rarily the intensity of an otherwise stable           ening in such claims pursuant to ORS
medical condition, but does not include those         656.273 or 656.278.
medical services rendered to diagnose, heal               (c) For the purposes of industrial injury
or permanently alleviate or eliminate a med-          claims, a condition does not contribute to
ical condition.                                       disability or need for treatment if the condi-
     (21) “Party” means a claimant for com-           tion merely renders the worker more suscep-
pensation, the employer of the injured                tible to the injury.
worker at the time of injury and the insurer,             (25) “Self-insured employer” means an
if any, of such employer.                             employer or group of employers certified un-
     (22) “Payroll” means a record of wages           der ORS 656.430 as meeting the qualifica-
payable to workers for their services and in-         tions set out by ORS 656.407.
cludes commissions, value of exchange labor               (26) “State Accident Insurance Fund
and the reasonable value of board, rent,              Corporation” and “corporation” mean the
housing, lodging or similar advantage re-             State Accident Insurance Fund Corporation
ceived     from    the   employer.    However,        created under ORS 656.752.
“payroll” does not include overtime pay, va-              (27) “Subject employer” means an em-
cation pay, bonus pay, tips, amounts payable          ployer who is subject to this chapter as pro-
under profit-sharing agreements or bonus              vided by ORS 656.023.
payments to reward workers for safe working
practices. Bonus pay is limited to payments               (28) “Subject worker” means a worker
which are not anticipated under the contract          who is subject to this chapter as provided by
of employment and which are paid at the sole          ORS 656.027.
discretion of the employer. The exclusion                 (29) “Wages” means the money rate at
from payroll of bonus payments to reward              which the service rendered is recompensed
workers for safe working practices is only            under the contract of hiring in force at the
for the purpose of calculations based on pay-         time of the accident, including reasonable
roll to determine premium for workers’ com-           value of board, rent, housing, lodging or
pensation insurance, and does not affect any          similar advantage received from the em-
other calculation or determination based on           ployer, and includes the amount of tips re-
payroll for the purposes of this chapter.             quired to be reported by the employer
     (23) “Person” includes partnership, joint        pursuant to section 6053 of the Internal Re-
venture, association, limited liability com-          venue Code of 1954, as amended, and the
pany and corporation.                                 regulations promulgated pursuant thereto, or
                                                      the amount of actual tips reported, which-
     (24)(a) “Preexisting condition” means, for       ever amount is greater. The State Accident
all industrial injury claims, any injury, dis-        Insurance Fund Corporation may establish
ease, congenital abnormality, personality dis-        assumed minimum and maximum wages, in
order or similar condition that contributes to        conformity with recognized insurance princi-
disability or need for treatment, provided            ples, at which any worker shall be carried
that:                                                 upon the payroll of the employer for the
     (A) Except for claims in which a preex-          purpose of determining the premium of the
isting condition is arthritis or an arthritic         employer.
condition, the worker has been diagnosed                  (30) “Worker” means any person, includ-
with such condition, or has obtained medical          ing a minor whether lawfully or unlawfully
services for the symptoms of the condition            employed, who engages to furnish services
regardless of diagnosis; and                          for a remuneration, subject to the direction
     (B)(i) In claims for an initial injury or        and control of an employer and includes sal-
omitted condition, the diagnosis or treatment         aried, elected and appointed officials of the
precedes the initial injury;                          state, state agencies, counties, cities, school

                                                  9
656.006                                  LABOR AND EMPLOYMENT

districts and other public corporations, but                          treatment by prayer or spiritual means.           [1965
does not include any person whose services                            c.285 §41c]
are performed as an inmate or ward of a                                    656.012 Findings and policy. (1) The
state institution or as part of the eligibility                       Legislative Assembly finds that:
requirements for a general or public assist-
ance grant. For the purpose of determining                                 (a) The performance of various industrial
entitlement to temporary disability benefits                          enterprises necessary to the enrichment and
or permanent total disability benefits under                          economic well-being of all the citizens of this
this chapter, “worker” does not include a                             state will inevitably involve injury to some
person who has withdrawn from the work-                               of the workers employed in those enterprises;
force during the period for which such bene-                               (b) The method provided by the common
fits are sought.                                                      law for compensating injured workers in-
                                                                      volves long and costly litigation, without
     (31) “Independent contractor” has the                            commensurate benefit to either the injured
meaning for that term provided in ORS                                 workers or the employers, and often requires
670.600. [1975 c.556 §§2 to 19 (enacted in lieu of                    the taxpayer to provide expensive care and
656.002); 1977 c.109 §2; 1977 c.804 §1; 1979 c.839 §26; 1981
c.535 §30; 1981 c.723 §3; 1981 c.854 §2; 1983 c.740 §242;             support for the injured workers and their
1985 c.212 §1; 1985 c.507 §1; 1985 c.770 §1; 1987 c.373 §31;          dependents; and
1987 c.457 §1; 1987 c.713 §3; 1987 c.884 §25; 1989 c.762 §3;
1990 c.2 §3; 1993 c.739 §23; 1993 c.744 §18; 1995 c.93 §31;                (c) An exclusive, statutory system of
1995 c.332 §1; 1997 c.491 §5; 2001 c.865 §1; 2003 c.811 §§1,2;        compensation will provide the best societal
2007 c.241 §§6,7; 2007 c.252 §§1,2; 2007 c.365 §1; 2007 c.505         measure of those injuries that bear a suffi-
§§1,2; 2009 c.43 §§6,7]                                               cient relationship to employment to merit
     Note: See notes under 656.202.                                   incorporation of their costs into the stream
                                                                      of commerce.
    656.006 Effect on employers’ liability
law. This chapter does not abrogate the                                    (2) In consequence of these findings, the
rights of the employee under the present                              objectives of the Workers’ Compensation
employers’ liability law, in all cases where                          Law are declared to be as follows:
the employee, under this chapter is given the                              (a) To provide, regardless of fault, sure,
right to bring suit against the employer of                           prompt and complete medical treatment for
the employee for an injury.                                           injured workers and fair, adequate and rea-
                                                                      sonable income benefits to injured workers
    656.008 Extension of laws relating to                             and their dependents;
workers’ compensation to federal lands
and projects within state. Where not in-                                   (b) To provide a fair and just administra-
consistent with the Constitution and laws of                          tive system for delivery of medical and fi-
the United States, the laws of this state re-                         nancial benefits to injured workers that
lating to workers’ compensation and the du-                           reduces litigation and eliminates the adver-
                                                                      sary nature of the compensation proceedings,
ties and powers of the Department of                                  to the greatest extent practicable;
Consumer and Business Services hereby are
extended to all lands and premises owned or                                (c) To restore the injured worker phys-
held by the United States of America by deed                          ically and economically to a self-sufficient
or act of cession, by purchase or otherwise,                          status in an expeditious manner and to the
which are within the exterior boundaries of                           greatest extent practicable;
the State of Oregon and to all projects,                                   (d) To encourage maximum employer im-
buildings, constructions, improvements and                            plementation of accident study, analysis and
all property belonging to the United States                           prevention programs to reduce the economic
within the exterior boundaries of the State                           loss and human suffering caused by indus-
of Oregon in the same way and to the same                             trial accidents; and
extent as if said premises and property were                               (e) To provide the sole and exclusive
under the exclusive jurisdiction of the State                         source and means by which subject workers,
of Oregon. [Amended by 1977 c.804 §2]                                 their beneficiaries and anyone otherwise en-
    656.010 Treatment by spiritual means.                             titled to receive benefits on account of inju-
Nothing in this chapter shall be construed to                         ries or diseases arising out of and in the
                                                                      course of employment shall seek and qualify
require a worker who in good faith relies on                          for remedies for such conditions.
or is treated by prayer or spiritual means by
a duly accredited practitioner of a well-                                  (3) In recognition that the goals and ob-
recognized church to undergo any medical or                           jectives of this Workers’ Compensation Law
surgical treatment nor shall such worker or                           are intended to benefit all citizens, it is de-
the dependents of the worker be deprived of                           clared that the provisions of this law shall
any compensation payments to which the                                be interpreted in an impartial and balanced
worker would have been entitled if medical                            manner. [1981 c.535 §29 (enacted in lieu of 656.004);
                                                                      1995 c.332 §4; amendments by 1995 c.332 §4a repealed by
or surgical treatment were employed, and the                          1999 c.6 §1; amendments by 1999 c.6 §3 repealed by 2001
employer or insurance carrier may pay for                             c.865 §23]

                                                                 10
                                       WORKERS′ COMPENSATION                                               656.018

     Note: See notes under 656.202.                                 ties contrary to the provisions of paragraph
     656.016 [1965 c.285 §5; 1967 c.341 §3; repealed by 1975        (a) of this subsection entered into after July
c.556 §20 (656.017 enacted in lieu of 656.016)]                     19, 1977, are void.
                                                                         (2) The rights given to a subject worker
                 COVERAGE                                           and the beneficiaries of the subject worker
    656.017 Employer required to pay                                under this chapter for injuries, diseases,
compensation and perform other duties;                              symptom complexes or similar conditions
state not authorized to be direct respon-                           arising out of and in the course of employ-
sibility employer. (1) Every employer sub-                          ment are in lieu of any remedies they might
ject to this chapter shall maintain assurance                       otherwise have for such injuries, diseases,
with the Director of the Department of Con-                         symptom complexes or similar conditions
sumer and Business Services that subject                            against the worker’s employer under ORS
workers of the employer and their benefici-                         654.305 to 654.336 or other laws, common law
aries will receive compensation for compen-                         or statute, except to the extent the worker
sable injuries as provided by this chapter and                      is expressly given the right under this chap-
that the employer will perform all duties and                       ter to bring suit against the employer of the
pay other obligations required under this                           worker for an injury, disease, symptom com-
chapter, by qualifying:                                             plex or similar condition.
    (a) As a carrier-insured employer; or                                (3) The exemption from liability given an
                                                                    employer under this section is also extended
    (b) As a self-insured employer as provided                      to the employer’s insurer, the self-insured
by ORS 656.407.                                                     employer’s claims administrator, the Depart-
    (2) Notwithstanding ORS chapter 278,                            ment of Consumer and Business Services,
this state shall provide compensation insur-                        and the contracted agents, employees, offi-
ance for its employees through the State Ac-                        cers and directors of the employer, the
cident Insurance Fund Corporation.                                  employer’s      insurer,    the    self-insured
    (3) Any employer required by the statutes                       employer’s claims administrator and the de-
of this state other than this chapter or by                         partment, except that the exemption from li-
the rules, regulations, contracts or proce-                         ability shall not apply:
dures of any agency of the federal govern-                               (a) Where the injury, disease, symptom
ment, this state or a political subdivision of                      complex or similar condition is proximately
this state to provide or agree to provide                           caused by willful and unprovoked aggression
workers’ compensation coverage, either di-                          by the person otherwise exempt under this
rectly or through bond requirements, may                            subsection;
provide such coverage by any method pro-                                 (b) Where the worker and the person
vided in this section. [1975 c.556 §21 (enacted in                  otherwise exempt under this subsection are
lieu of 656.016); 1977 c.659 §1; 1979 c.815 §1; 1981 c.854
§3; 1985 c.731 §30]                                                 not engaged in the furtherance of a common
                                                                    enterprise or the accomplishment of the
    656.018 Effect of providing coverage;                           same or related objectives; or
exclusive remedy. (1)(a) The liability of ev-
ery employer who satisfies the duty required                             (c) Where the injury, disease, symptom
by ORS 656.017 (1) is exclusive and in place                        complex or similar condition is proximately
of all other liability arising out of injuries,                     caused by failure of the employer to comply
diseases, symptom complexes or similar con-                         with the notice posted pursuant to ORS
ditions arising out of and in the course of                         654.082.
employment that are sustained by subject                                 (4) The exemption from liability given an
workers, the workers’ beneficiaries and any-                        employer under this section applies to a
one otherwise entitled to recover damages                           worker leasing company and the client to
from the employer on account of such condi-                         whom workers are provided when the worker
tions or claims resulting therefrom, specif-                        leasing company and the client comply with
ically including claims for contribution or                         ORS 656.850 (3).
indemnity asserted by third persons from                                 (5)(a) The exemption from liability given
whom damages are sought on account of                               an employer under this section applies to a
such conditions, except as specifically pro-                        temporary service provider, as that term is
vided otherwise in this chapter.                                    used in ORS 656.850, and also extends to the
    (b) This subsection shall not apply to                          client to whom workers are provided when
claims for indemnity or contribution asserted                       the temporary service provider complies with
by a railroad, as defined in ORS 824.020, or                        ORS 656.017.
by a corporation, individual or association of                           (b) The exemption from liability given a
individuals which is subject to regulation                          client under paragraph (a) of this subsection
pursuant to ORS chapter 757 or 759.                                 is also extended to the client’s insurer, the
    (c) Except as provided in paragraph (b)                         self-insured client’s claims administrator, the
of this subsection, all agreements or warran-                       department, and the contracted agents, em-

                                                               11
656.019                                 LABOR AND EMPLOYMENT

ployees, officers and directors of the client,                      because a workers’ compensation claim has
the client’s insurer, the self-insured client’s                     been determined to be not compensable be-
claims administrator and the department, ex-                        cause the worker has failed to establish that
cept that the exemption from liability shall                        a work-related incident was the major con-
not apply:                                                          tributing cause of the worker’s injury must
    (A) When the injury, disease, symptom                           be commenced within the later of two years
complex or similar condition is proximately                         from the date of injury or 180 days from the
caused by willful and unprovoked aggression                         date the order affirming that the claim is not
by the person otherwise exempt under this                           compensable on such grounds becomes final.
subsection;                                                              (b) Notwithstanding paragraph (a) of this
    (B) When the worker and the person                              subsection, a person may not commence a
otherwise exempt under this subsection are                          civil negligence action for a work-related in-
not engaged in the furtherance of a common                          jury that has been determined to be not
enterprise or the accomplishment of the                             compensable because the worker has failed
same or related objectives; or                                      to establish that a work-related incident was
                                                                    the major contributing cause of the worker’s
    (C) When the injury, disease, symptom                           injury, if the period within which such ac-
complex or similar condition is proximately                         tion may be commenced has expired prior to
caused by failure of the client to comply with                      the filing of a timely workers’ compensation
the notice posted pursuant to ORS 654.082.                          claim for the work-related injury. [2001 c.865
    (6) Nothing in this chapter shall prohibit                      §15]
payment, voluntarily or otherwise, to injured                           656.020 Damage actions by workers
workers or their beneficiaries in excess of                         against noncomplying employers; de-
the compensation required to be paid under                          fenses outlawed. Actions for damages may
this chapter.                                                       be brought by an injured worker or the legal
    (7) The exclusive remedy provisions and                         representative of the injured worker against
limitation on liability provisions of this                          any employer who has failed to comply with
chapter apply to all injuries and to diseases,                      ORS 656.017 or is in default under ORS
symptom complexes or similar conditions of                          656.560. Except for the provisions of ORS
subject workers arising out of and in the                           656.578 to 656.593 and this section, such
course of employment whether or not they                            noncomplying employer is liable as the non-
are determined to be compensable under this                         complying employer would have been if this
chapter. [1965 c.285 §6; 1975 c.115 §1; 1977 c.514 §1;              chapter had never been enacted. In such ac-
1977 c.804 §3a; 1987 c.447 §110; 1989 c.600 §1; 1993 c.628          tions, it is no defense for the employer to
§6; 1995 c.332 §5; amendments by 1995 c.332 §5a repealed            show that:
by 1999 c.6 §1; 1995 c.733 §76; 1997 c.275 §§6,7; 1997 c.491
§§1,2; amendments by 1999 c.6 §4 repealed by 2001 c.865                 (1) The injury was caused in whole or in
§23]                                                                part by the negligence of a fellow-servant of
     Note: See notes under 656.202.                                 the injured worker.
    656.019 Civil negligence action for                                 (2) The negligence of the injured worker,
claim denied on basis of failure to meet                            other than a willful act committed for the
major contributing cause standard; stat-                            purpose of sustaining the injury, contributed
ute of limitations. (1)(a) An injured worker                        to the accident.
may pursue a civil negligence action for a                              (3) The injured worker had knowledge of
work-related injury that has been determined                        the danger or assumed the risk that resulted
to be not compensable because the worker                            in the injury. [1965 c.285 §7]
has failed to establish that a work-related
incident was the major contributing cause of                            656.021 Person performing work under
the worker’s injury only after an order de-                         ORS chapter 701 as subject employer.
termining that the claim is not compensable                         Notwithstanding ORS 656.029 (1), a person
has become final. The injured worker may                            who is licensed pursuant to an application
appeal the compensability of the claim as                           under ORS 701.046 and is acting under a
provided in ORS 656.298, but may not pursue                         contract to perform work described by ORS
a civil negligence claim against the employer                       chapter 701 shall be considered the subject
until the order affirming the denial has be-                        employer for all individuals employed by that
come final.                                                         person. [1989 c.870 §13; 1999 c.402 §7; 2007 c.836 §48]
    (b) Nothing in this subsection grants a                                656.022 [Repealed by 1965 c.285 §95]
right for a person to pursue a civil negli-                             656.023 Who are subject employers.
gence action that does not otherwise exist in                       Every employer employing one or more sub-
law.                                                                ject workers in the state is subject to this
    (2)(a) Notwithstanding any other statute                        chapter. [1965 c.285 §8]
of limitation provided in law, a civil negli-                            656.024 [Amended by 1959 c.448 §2; repealed by 1965
gence action against an employer that arises                        c.285 §95]

                                                               12
                                   WORKERS′ COMPENSATION                                               656.027

    656.025    Individuals    engaged      in                 or motor vehicle, and whose employer has no
commuter ridesharing not subject work-                        fixed place of business in this state.
ers; conditions. (1) For the purpose of this                       (6) Firefighter and police employees of
chapter, an individual is not a subject                       any city having a population of more than
worker while commuting in a voluntary                         200,000 that provides a disability and retire-
commuter ridesharing arrangement unless:                      ment system by ordinance or charter.
    (a) The worker is reimbursed for travel                        (7)(a) Sole proprietors, except those de-
expenses incurred therein;                                    scribed in paragraph (b) of this subsection.
    (b) The worker receives payment for                       When labor or services are performed under
commuting time from the employer; or                          contract, the sole proprietor must qualify as
    (c) The employer makes an election to                     an independent contractor.
provide coverage for the worker pursuant to                        (b) Sole proprietors actively licensed un-
ORS 656.039.                                                  der ORS 671.525 or 701.021. When labor or
    (2) As used in this section “voluntary                    services are performed under contract for
commuter ridesharing arrangement” means                       remuneration, notwithstanding ORS 656.005
a carpool or vanpool arrangement in which                     (30), the sole proprietor must qualify as an
participation is not required as a condition                  independent contractor. Any sole proprietor
of employment and in which not more than                      licensed under ORS 671.525 or 701.021 and
15 persons are transported to and from their                  involved in activities subject thereto is con-
places of employment, in a single daily round                 clusively presumed to be an independent
trip where the driver also is on the way to                   contractor.
or from the driver’s place of employment.                          (8) Except as provided in subsection (23)
[1981 c.227 §4]                                               of this section, partners who are not engaged
     656.026 [Amended by 1957 c.440 §1; 1959 c.448 §3;        in work performed in direct connection with
repealed by 1965 c.285 §95]                                   the construction, alteration, repair, improve-
     656.027 Who are subject workers. All                     ment, moving or demolition of an improve-
workers are subject to this chapter except                    ment on real property or appurtenances
those nonsubject workers described in the                     thereto. When labor or services are per-
following subsections:                                        formed under contract, the partnership must
                                                              qualify as an independent contractor.
     (1) A worker employed as a domestic
servant in or about a private home. For the                        (9) Except as provided in subsection (25)
purposes of this subsection “domestic                         of this section, members, including members
servant” means any worker engaged in                          who are managers, of limited liability com-
household domestic service by private em-                     panies, regardless of the nature of the work
ployment contract, including, but not limited                 performed.      However, members, including
to, home health workers.                                      members who are managers, of limited li-
     (2) A worker employed to do gardening,                   ability companies with more than one mem-
maintenance, repair, remodeling or similar                    ber, while engaged in work performed in
work in or about the private home of the                      direct connection with the construction, al-
person employing the worker.                                  teration, repair, improvement, moving or
                                                              demolition of an improvement on real prop-
     (3)(a) A worker whose employment is                      erty or appurtenances thereto, are subject
casual and either:                                            workers. When labor or services are per-
     (A) The employment is not in the course                  formed under contract, the limited liability
of the trade, business or profession of the                   company must qualify as an independent
employer; or                                                  contractor.
     (B) The employment is in the course of                        (10) Except as provided in subsection (24)
the trade, business or profession of a non-                   of this section, corporate officers who are
subject employer.                                             directors of the corporation and who have a
                                                              substantial ownership interest in the corpo-
     (b) For the purpose of this subsection,                  ration, regardless of the nature of the work
“casual” refers only to employments where                     performed by such officers, subject to the
the work in any 30-day period, without re-                    following limitations:
gard to the number of workers employed, in-
volves a total labor cost of less than $500.                       (a) If the activities of the corporation are
                                                              conducted on land that receives farm use tax
     (4) A person for whom a rule of liability                assessment pursuant to ORS chapter 308A,
for injury or death arising out of and in the                 corporate officer includes all individuals
course of employment is provided by the laws                  identified as directors in the corporate by-
of the United States.                                         laws, regardless of ownership interest, and
     (5) A worker engaged in the transporta-                  who are members of the same family,
tion in interstate commerce of goods, persons                 whether related by blood, marriage or adop-
or property for hire by rail, water, aircraft                 tion.

                                                         13
656.027                         LABOR AND EMPLOYMENT

     (b) If the activities of the corporation in-            (c) A motor vehicle used in the transpor-
volve the commercial harvest of timber and               tation of property by a for-hire motor carrier
all officers of the corporation are members              that is required under ORS 825.100 or 825.104
of the same family and are parents, daugh-               to possess a certificate or permit or to be
ters or sons, daughters-in-law or sons-in-law            registered.
or grandchildren, then all such officers may                 (16) A person engaged in the transporta-
elect to be nonsubject workers. For all other            tion of the public for recreational down-river
corporations involving the commercial har-               boating activities on the waters of this state
vest of timber, the maximum number of ex-                pursuant to a federal permit when the person
empt corporate officers for the corporation              furnishes the equipment necessary for the
shall be whichever is the greater of the fol-            activity. As used in this subsection, “recre-
lowing:                                                  ational down-river boating activities” means
     (A) Two corporate officers; or                      those boating activities for the purpose of
     (B) One corporate officer for each 10               recreational fishing, swimming or sightseeing
corporate employees.                                     utilizing a float craft with oars or paddles as
                                                         the primary source of power.
     (c) When labor or services are performed
under contract, the corporation must qualify                 (17) A person who receives no wage other
as an independent contractor.                            than ski passes or other noncash remunera-
                                                         tion for performing volunteer:
     (11) A person performing services prima-
rily for board and lodging received from any                 (a) Ski patrol activities; or
religious, charitable or relief organization.                (b) Ski area program activities sponsored
     (12) A newspaper carrier utilized in com-           by a ski area operator, as defined in ORS
pliance with the provisions of ORS 656.070               30.970, or by a nonprofit corporation or or-
and 656.075.                                             ganization.
     (13) A person who has been declared an                  (18) A person 19 years of age or older
amateur athlete under the rules of the                   who contracts with a newspaper publishing
United States Olympic Committee or the                   company or independent newspaper dealer or
Canadian Olympic Committee and who re-                   contractor to distribute newspapers to the
ceives no remuneration for performance of                general public and perform or undertake any
services as an athlete other than board,                 necessary or attendant functions related
room, rent, housing, lodging or other reason-            thereto.
able incidental subsistence allowance, or any                (19) A person performing foster parent or
amateur sports official who is certified by a            adult foster care duties pursuant to ORS
recognized Oregon or national certifying au-             412.001 to 412.161 and 412.991 or ORS chap-
thority, which requires or provides liability            ter 411, 418, 430 or 443.
and accident insurance for such officials. A                 (20) A person performing services on a
roster of recognized Oregon and national                 volunteer basis for a nonprofit, religious,
certifying authorities will be maintained by             charitable or relief organization, whether or
the Department of Consumer and Business                  not such person receives meals or lodging or
Services, from lists of certifying organiza-             nominal reimbursements or vouchers for
tions submitted by the Oregon School Activ-              meals, lodging or expenses.
ities Association and the Oregon Park and
Recreation Society.                                          (21) A person performing services under
                                                         a property tax work-off program established
     (14) Volunteer personnel participating in           under ORS 310.800.
the ACTION programs, organized under the
Domestic Volunteer Service Act of 1973, P.L.                 (22) A person who performs service as a
93-113, known as the Foster Grandparent                  caddy at a golf course in an established pro-
Program and the Senior Companion Program,                gram for the training and supervision of
whether or not the volunteers receive a                  caddies under the direction of a person who
stipend or nominal reimbursement for time                is an employee of the golf course.
and travel expenses.                                         (23)(a) Partners who are actively licensed
     (15) A person who has an ownership or               under ORS 671.525 or 701.021 and who have
leasehold interest in equipment and who fur-             a substantial ownership interest in a part-
nishes, maintains and operates the equip-                nership. If all partners are members of the
ment.        As used in this subsection                  same family and are parents, spouses, sisters,
“equipment” means:                                       brothers, daughters or sons, daughters-in-law
                                                         or sons-in-law or grandchildren, all such
     (a) A motor vehicle used in the transpor-           partners may elect to be nonsubject workers.
tation of logs, poles or piling.                         For all other partnerships licensed under
     (b) A motor vehicle used in the transpor-           ORS 671.510 to 671.760 or 701.021, the maxi-
tation of rocks, gravel, sand, dirt or asphalt           mum number of exempt partners shall be
concrete.                                                whichever is the greater of the following:

                                                    14
                              WORKERS′ COMPENSATION                                                       656.027

    (A) Two partners; or                              thereto is conclusively presumed to be an
    (B) One partner for each 10 partnership           independent contractor.
employees.                                                (26) A person serving as a referee or as-
    (b) When labor or services are performed          sistant referee in a youth or adult recre-
under contract for remuneration, notwith-             ational soccer match whose services are
standing ORS 656.005 (30), the partnership            retained on a match-by-match basis.
qualifies as an independent contractor. Any               (27) A person performing language trans-
partnership licensed under ORS 671.525 or             lator or interpreter services that are pro-
701.021 and involved in activities subject            vided for others through an agent or broker.
thereto is conclusively presumed to be an                 (28) A person who operates, and who has
independent contractor.                               an ownership or leasehold interest in, a pas-
    (24)(a) Corporate officers who are direc-         senger motor vehicle that is operated as a
tors of a corporation actively licensed under         taxicab or for nonemergency medical trans-
ORS 671.525 or 701.021 and who have a sub-            portation. As used in this subsection:
stantial ownership interest in the corpo-                 (a) “Lease” means a contract under
ration, regardless of the nature of the work          which the lessor provides a vehicle to a
performed. If all officers of the corporation         lessee for consideration.
are members of the same family and are par-
ents, spouses, sisters, brothers, daughters or            (b) “Leasehold” includes, but is not lim-
sons, daughters-in-law or sons-in-law or              ited to, a lease for a shift or a longer period.
grandchildren, all such officers may elect to             (c) “Passenger motor vehicle that is op-
be nonsubject workers. For all other corpo-           erated as a taxicab” means a vehicle that:
rations licensed under ORS 671.510 to                     (A) Has a passenger seating capacity that
671.760 or 701.021, the maximum number of             does not exceed seven persons;
exempt corporate officers shall be whichever
is the greater of the following:                          (B) Is transporting persons, property or
                                                      both on a route that begins or ends in Ore-
    (A) Two corporate officers; or                    gon; and
    (B) One corporate officer for each 10                 (C)(i) Carries passengers for hire when
corporate employees.                                  the destination and route traveled may be
    (b) When labor or services are performed          controlled by a passenger and the fare is
under contract for remuneration, notwith-             calculated on the basis of any combination
standing ORS 656.005 (30), the corporation            of an initial fee, distance traveled or waiting
qualifies as an independent contractor. Any           time; or
corporation licensed under ORS 671.525 or                 (ii) Is in use under a contract to provide
701.021 and involved in activities subject            specific service to a third party to transport
thereto is conclusively presumed to be an             designated passengers or to provide errand
independent contractor.                               services to locations selected by the third
    (25)(a) Limited liability company mem-            party.
bers who are members of a company actively                (d) “Passenger motor vehicle that is op-
licensed under ORS 671.525 or 701.021 and             erated for nonemergency medical transporta-
who have a substantial ownership interest in          tion” means a vehicle that:
the company, regardless of the nature of the
work performed. If all members of the com-                (A) Has a passenger seating capacity that
pany are members of the same family and are           does not exceed seven persons;
parents, spouses, sisters, brothers, daughters            (B) Is transporting persons, property or
or sons, daughters-in-law or sons-in-law or           both on a route that begins or ends in Ore-
grandchildren, all such members may elect             gon; and
to be nonsubject workers. For all other com-              (C) Provides medical transportation ser-
panies licensed under ORS 671.510 to 671.760          vices under contract with or on behalf of a
or 701.021, the maximum number of exempt              mass transit or transportation district. [1965
company members shall be whichever is the             c.285 §9; 1971 c.386 §1; 1977 c.683 §1; 1977 c.817 §2; 1977
greater of the following:                             c.835 §7; 1979 c.821 §1; 1981 c.225 §1; 1981 c.444 §1; 1981
                                                      c.535 §3; 1981 c.839 §1; 1983 c.341 §1; 1983 c.541 §1; 1983
    (A) Two company members; or                       c.579 §3; 1985 c.431 §1; 1985 c.706 §2; 1987 c.94 §168; 1987
    (B) One company member for each 10                c.414 §161; 1987 c.800 §2; 1989 c.762 §4; 1990 c.2 §4; 1991
                                                      c.469 §1; 1991 c.707 §1; 1993 c.18 §138a; 1993 c.494 §2; 1993
company employees.                                    c.777 §10; 1995 c.93 §32; 1995 c.216 §§3,3a; 1995 c.332 §6;
    (b) When labor or services are performed          1997 c.337 §1; 1999 c.314 §91; 1999 c.402 §8; 2001 c.363 §1;
                                                      2001 c.765 §4; 2003 c.677 §1; 2005 c.167 §1; 2007 c.465 §6;
under contract for remuneration, notwith-             2007 c.541 §9; 2007 c.721 §1; 2007 c.836 §49; 2008 c.32 §§2,3]
standing ORS 656.005 (30), the company
                                                           Note: The amendments to 656.027 by section 49,
qualifies as an independent contractor. Any           chapter 836, Oregon Laws 2007, become operative July
company licensed under ORS 671.525 or                 1, 2010. See section 70, chapter 836, Oregon Laws 2007.
701.021 and involved in activities subject            The text that is operative until July 1, 2010, including

                                                 15
656.027                               LABOR AND EMPLOYMENT

amendments by section 2, chapter 32, Oregon Laws 2008,            performed by such officers, subject to the following
is set forth for the user’s convenience.                          limitations:
      656.027. All workers are subject to this chapter ex-              (a) If the activities of the corporation are con-
cept those nonsubject workers described in the following          ducted on land that receives farm use tax assessment
subsections:                                                      pursuant to ORS chapter 308A, corporate officer in-
                                                                  cludes all individuals identified as directors in the cor-
      (1) A worker employed as a domestic servant in or           porate bylaws, regardless of ownership interest, and
about a private home. For the purposes of this subsec-            who are members of the same family, whether related
tion “domestic servant” means any worker engaged in               by blood, marriage or adoption.
household domestic service by private employment con-
tract, including, but not limited to, home health work-                 (b) If the activities of the corporation involve the
ers.                                                              commercial harvest of timber and all officers of the
                                                                  corporation are members of the same family and are
      (2) A worker employed to do gardening, mainte-              parents, daughters or sons, daughters-in-law or sons-in-
nance, repair, remodeling or similar work in or about             law or grandchildren, then all such officers may elect
the private home of the person employing the worker.              to be nonsubject workers. For all other corporations
      (3)(a) A worker whose employment is casual and              involving the commercial harvest of timber, the maxi-
either:                                                           mum number of exempt corporate officers for the cor-
                                                                  poration shall be whichever is the greater of the
      (A) The employment is not in the course of the              following:
trade, business or profession of the employer; or
                                                                        (A) Two corporate officers; or
      (B) The employment is in the course of the trade,
business or profession of a nonsubject employer.                        (B) One corporate officer for each 10 corporate
                                                                  employees.
      (b) For the purpose of this subsection, “casual” re-
fers only to employments where the work in any 30-day                   (c) When labor or services are performed under
period, without regard to the number of workers em-               contract, the corporation must qualify as an independ-
ployed, involves a total labor cost of less than $500.            ent contractor.
      (4) A person for whom a rule of liability for injury              (11) A person performing services primarily for
or death arising out of and in the course of employment           board and lodging received from any religious, charita-
is provided by the laws of the United States.                     ble or relief organization.
      (5) A worker engaged in the transportation in                     (12) A newspaper carrier utilized in compliance
interstate commerce of goods, persons or property for             with the provisions of ORS 656.070 and 656.075.
hire by rail, water, aircraft or motor vehicle, and whose               (13) A person who has been declared an amateur
employer has no fixed place of business in this state.            athlete under the rules of the United States Olympic
      (6) Firefighter and police employees of any city            Committee or the Canadian Olympic Committee and
having a population of more than 200,000 that provides            who receives no remuneration for performance of ser-
a disability and retirement system by ordinance or                vices as an athlete other than board, room, rent, hous-
charter.                                                          ing, lodging or other reasonable incidental subsistence
                                                                  allowance, or any amateur sports official who is certi-
      (7)(a) Sole proprietors, except those described in          fied by a recognized Oregon or national certifying au-
paragraph (b) of this subsection. When labor or services          thority, which requires or provides liability and
are performed under contract, the sole proprietor must            accident insurance for such officials. A roster of recog-
qualify as an independent contractor.                             nized Oregon and national certifying authorities will be
      (b) Sole proprietors actively licensed under ORS            maintained by the Department of Consumer and Busi-
671.525 or 701.035. When labor or services are performed          ness Services, from lists of certifying organizations
under contract for remuneration, notwithstanding ORS              submitted by the Oregon School Activities Association
656.005 (30), the sole proprietor must qualify as an in-          and the Oregon Park and Recreation Society.
dependent contractor. Any sole proprietor licensed un-                  (14) Volunteer personnel participating in the AC-
der ORS 671.525 or 701.035 and involved in activities             TION programs, organized under the Domestic Volun-
subject thereto is conclusively presumed to be an inde-           teer Service Act of 1973, P.L. 93-113, known as the
pendent contractor.                                               Foster Grandparent Program and the Senior Companion
      (8) Except as provided in subsection (23) of this           Program, whether or not the volunteers receive a
section, partners who are not engaged in work per-                stipend or nominal reimbursement for time and travel
formed in direct connection with the construction, al-            expenses.
teration, repair, improvement, moving or demolition of                  (15) A person who has an ownership or leasehold
an improvement on real property or appurtenances                  interest in equipment and who furnishes, maintains and
thereto. When labor or services are performed under               operates the equipment. As used in this subsection
contract, the partnership must qualify as an independ-            “equipment” means:
ent contractor.
                                                                        (a) A motor vehicle used in the transportation of
      (9) Except as provided in subsection (25) of this           logs, poles or piling.
section, members, including members who are managers,
of limited liability companies, regardless of the nature                (b) A motor vehicle used in the transportation of
of the work performed. However, members, including                rocks, gravel, sand, dirt or asphalt concrete.
members who are managers, of limited liability com-                     (c) A motor vehicle used in the transportation of
panies with more than one member, while engaged in                property by a for-hire motor carrier that is required
work performed in direct connection with the construc-            under ORS 825.100 or 825.104 to possess a certificate or
tion, alteration, repair, improvement, moving or demo-            permit or to be registered.
lition of an improvement on real property or                            (16) A person engaged in the transportation of the
appurtenances thereto, are subject workers. When labor            public for recreational down-river boating activities on
or services are performed under contract, the limited             the waters of this state pursuant to a federal permit
liability company must qualify as an independent con-             when the person furnishes the equipment necessary for
tractor.                                                          the activity. As used in this subsection, “recreational
      (10) Except as provided in subsection (24) of this          down-river boating activities” means those boating ac-
section, corporate officers who are directors of the cor-         tivities for the purpose of recreational fishing, swim-
poration and who have a substantial ownership interest            ming or sightseeing utilizing a float craft with oars or
in the corporation, regardless of the nature of the work          paddles as the primary source of power.

                                                             16
                                      WORKERS′ COMPENSATION                                                       656.029

      (17) A person who receives no wage other than ski           sons-in-law or grandchildren, all such members may
passes or other noncash remuneration for performing               elect to be nonsubject workers. For all other companies
volunteer:                                                        licensed under ORS 671.510 to 671.760 or ORS chapter
      (a) Ski patrol activities; or                               701, the maximum number of exempt company members
                                                                  shall be whichever is the greater of the following:
      (b) Ski area program activities sponsored by a ski
area operator, as defined in ORS 30.970, or by a non-                   (A) Two company members; or
profit corporation or organization.                                     (B) One company member for each 10 company
      (18) A person 19 years of age or older who con-             employees.
tracts with a newspaper publishing company or inde-                     (b) When labor or services are performed under
pendent newspaper dealer or contractor to distribute              contract for remuneration, notwithstanding ORS 656.005
newspapers to the general public and perform or                   (30), the company qualifies as an independent contrac-
undertake any necessary or attendant functions related            tor. Any company licensed under ORS 671.525 or 701.035
thereto.                                                          and involved in activities subject thereto is conclusively
      (19) A person performing foster parent or adult             presumed to be an independent contractor.
foster care duties pursuant to ORS 412.001 to 412.161                   (26) A person serving as a referee or assistant ref-
and 412.991 or ORS chapter 411, 418, 430 or 443.                  eree in a youth or adult recreational soccer match
      (20) A person performing services on a volunteer            whose services are retained on a match-by-match basis.
basis for a nonprofit, religious, charitable or relief or-              (27) A person performing language translator or
ganization, whether or not such person receives meals             interpreter services that are provided for others through
or lodging or nominal reimbursements or vouchers for              an agent or broker.
meals, lodging or expenses.
                                                                        (28) A person who operates, and who has an own-
      (21) A person performing services under a property          ership or leasehold interest in, a passenger motor vehi-
tax work-off program established under ORS 310.800.               cle that is operated as a taxicab or for nonemergency
      (22) A person who performs service as a caddy at            medical transportation. As used in this subsection:
a golf course in an established program for the training                (a) “Lease” means a contract under which the les-
and supervision of caddies under the direction of a               sor provides a vehicle to a lessee for consideration.
person who is an employee of the golf course.
                                                                        (b) “Leasehold” includes, but is not limited to, a
      (23)(a) Partners who are actively licensed under            lease for a shift or a longer period.
ORS 671.525 or 701.035 and who have a substantial
ownership interest in a partnership. If all partners are                (c) “Passenger motor vehicle that is operated as a
members of the same family and are parents, spouses,              taxicab” means a vehicle that:
sisters, brothers, daughters or sons, daughters-in-law or               (A) Has a passenger seating capacity that does not
sons-in-law or grandchildren, all such partners may               exceed seven persons;
elect to be nonsubject workers. For all other partner-
ships licensed under ORS 671.510 to 671.760 or ORS                      (B) Is transporting persons, property or both on a
chapter 701, the maximum number of exempt partners                route that begins or ends in Oregon; and
shall be whichever is the greater of the following:                     (C)(i) Carries passengers for hire when the desti-
      (A) Two partners; or                                        nation and route traveled may be controlled by a pas-
                                                                  senger and the fare is calculated on the basis of any
      (B) One partner for each 10 partnership employees.          combination of an initial fee, distance traveled or wait-
      (b) When labor or services are performed under              ing time; or
contract for remuneration, notwithstanding ORS 656.005                  (ii) Is in use under a contract to provide specific
(30), the partnership qualifies as an independent con-            service to a third party to transport designated passen-
tractor. Any partnership licensed under ORS 671.525 or            gers or to provide errand services to locations selected
701.035 and involved in activities subject thereto is             by the third party.
conclusively presumed to be an independent contractor.
                                                                        (d) “Passenger motor vehicle that is operated for
      (24)(a) Corporate officers who are directors of a           nonemergency medical transportation” means a vehicle
corporation actively licensed under ORS 671.525 or                that:
701.035 and who have a substantial ownership interest
in the corporation, regardless of the nature of the work                (A) Has a passenger seating capacity that does not
performed. If all officers of the corporation are members         exceed seven persons;
of the same family and are parents, spouses, sisters,                   (B) Is transporting persons, property or both on a
brothers, daughters or sons, daughters-in-law or sons-            route that begins or ends in Oregon; and
in-law or grandchildren, all such officers may elect to
be nonsubject workers. For all other corporations li-                   (C) Provides medical transportation services under
censed under ORS 671.510 to 671.760 or ORS chapter 701,           contract with or on behalf of a mass transit or trans-
the maximum number of exempt corporate officers shall             portation district.
be whichever is the greater of the following:                           656.028 [Amended by 1959 c.448 §4; repealed by 1965
      (A) Two corporate officers; or                              c.285 §95]
      (B) One corporate officer for each 10 corporate                 656.029 Obligation of person awarding
employees.                                                        contract to provide coverage for workers
      (b) When labor or services are performed under              under contract; exceptions; effect of fail-
contract for remuneration, notwithstanding ORS 656.005            ure to provide coverage. (1) If a person
(30), the corporation qualifies as an independent con-
tractor. Any corporation licensed under ORS 671.525 or            awards a contract involving the performance
701.035 and involved in activities subject thereto is             of labor where such labor is a normal and
conclusively presumed to be an independent contractor.            customary part or process of the person’s
      (25)(a) Limited liability company members who are           trade or business, the person awarding the
members of a company actively licensed under ORS                  contract is responsible for providing workers’
671.525 or 701.035 and who have a substantial ownership           compensation insurance coverage for all in-
interest in the company, regardless of the nature of the
work performed. If all members of the company are                 dividuals, other than those exempt under
members of the same family and are parents, spouses,              ORS 656.027, who perform labor under the
sisters, brothers, daughters or sons, daughters-in-law or         contract unless the person to whom the con-

                                                             17
656.031                                 LABOR AND EMPLOYMENT

tract is awarded provides such coverage for                         erning body declaring its intent to cover
those individuals before labor under the con-                       volunteer personnel as provided in subsec-
tract commences. If an individual who per-                          tion (1) of this section and a description of
forms labor under the contract incurs a                             the work to be performed by such personnel.
compensable injury, and no workers’ com-                            The application shall also state the estimated
pensation insurance coverage is provided for                        total number of volunteer personnel on a
that individual by the person who is charged                        roster for each separate category for which
with the responsibility for providing such                          coverage is elected. The county, city or other
coverage before labor under the contract                            municipality shall notify the insurer, or in
commences, that person shall be treated as                          the case of self-insurers, the director, of
a noncomplying employer and benefits shall                          changes in the estimated total number of
be paid to the injured worker in the manner                         volunteers.
provided in this chapter for the payment of                             (3) Upon receiving the written applica-
benefits to the worker of a noncomplying                            tion the insurer or self-insured employer may
employer.                                                           fix assumed wage rates for the volunteer
    (2) If a person to whom the contract is                         personnel, which may be used only for pur-
awarded is exempt from coverage under ORS                           poses of computations under this chapter,
656.027, and that person engages individuals                        and shall require the regular payment of
who are not exempt under ORS 656.027 in                             premiums or assessments based upon the es-
the performance of the contract, that person                        timated total numbers of such volunteers
shall provide workers’ compensation insur-                          carried on the roster for each category being
ance coverage for all such individuals. If an                       covered. The self-insured employer shall sub-
individual who performs labor under the                             mit such assumed wage rates to the director.
contract incurs a compensable injury, and no                        If the director finds that the rates are un-
workers’ compensation insurance coverage is                         reasonable, the director may fix appropriate
provided for that individual by the person to                       rates to be used for purposes of this section.
whom the contract is awarded, that person                               (4) The county, city or municipality shall
shall be treated as a noncomplying employer                         maintain separate official membership ros-
and benefits shall be paid to the injured                           ters for each category of volunteers. A certi-
worker in the manner provided in this chap-                         fied copy of the official membership roster
ter for the payment of benefits to the worker                       shall be furnished the insurer or director
of a noncomplying employer.                                         upon request. Persons covered under this
    (3) As used in this section:                                    section are entitled to the benefits of this
    (a) “Person” includes partnerships, joint                       chapter and they are entitled to such bene-
ventures, associations, corporations, limited                       fits if injured as provided in ORS 656.202
liability companies, governmental agencies                          while performing any duties arising out of
and sole proprietorships.                                           and in the course of their employment as
                                                                    volunteer personnel, if the duties being per-
    (b) “Sole proprietorship” means a busi-                         formed are among those:
ness entity or individual who performs labor
without the assistance of others. [1979 c.864                           (a) Described on the application of the
§2; 1981 c.725 §1; 1981 c.854 §4; 1983 c.397 §1; 1983 c.579         county, city or municipality; and
§2a; 1985 c.706 §1; 1989 c.762 §5; 1995 c.93 §34; 1995 c.332            (b) Required of similar full-time paid em-
§6a]
                                                                    ployees.
     656.030 [Repealed by 1959 c.448 §14]
                                                                        (5) The filing of claims for benefits under
     656.031 Coverage for municipal volun-                          this section is the exclusive remedy of a vol-
teer personnel. (1) Except as provided in                           unteer or a beneficiary of the volunteer for
ORS 404.215, all municipal personnel, other                         injuries compensable under this chapter
than those employed full-time, part-time, or                        against the state, its political subdivisions,
substitutes therefor, shall, for the purpose of                     their officers, employees, or any employer,
this chapter, be known as volunteer person-                         regardless of negligence. [Formerly 656.088; 1969
nel and shall not be considered as workers                          c.527 §1; 1977 c.72 §1; 1979 c.815 §2; 1981 c.854 §5; 1981
unless the municipality has filed the election                      c.874 §1; 2009 c.718 §14a]
provided by this section.                                                656.032 [Amended by 1959 c.451 §1; repealed by 1965
                                                                    c.285 §95]
     (2) The county, city or other municipality
utilizing volunteer personnel as specified in                           656.033 Coverage for participants in
subsection (1) of this section may elect to                         work experience or school directed pro-
have such personnel considered as subject                           fessional training programs. (1) All per-
workers for purposes of this chapter. Such                          sons participating as trainees in a work
election shall be made by filing a written                          experience program or school directed pro-
application to the insurer, or in the case of                       fessional education project of a school dis-
a self-insured employer, the Director of the                        trict as defined in ORS 332.002 in which such
Department of Consumer and Business Ser-                            persons are enrolled, including persons with
vices, that includes a resolution of the gov-                       mental retardation in training programs, are

                                                               18
                               WORKERS′ COMPENSATION                                                     656.037

considered as workers of the district subject               (6) The provisions of this section shall be
to this chapter for purposes of this section.          inapplicable to any trainee who has earned
Trainees placed in a work experience pro-              wages for such employment.
gram with their resident school district as                 (7) As used in this section, “school di-
the training employer shall be subject work-           rected professional education project” means
ers under this section when the training and           an on-campus or off-campus project super-
supervision are performed by noninstruc-               vised by school personnel and which is an
tional personnel.                                      assigned activity of a local professional edu-
    (2) A school district conducting a work            cation program approved pursuant to operat-
experience program or school directed pro-             ing procedures of the State Board of
fessional education project shall submit a             Education. A school directed professional ed-
written statement to the insurer, or in the            ucation project must be of a practicum expe-
case of self-insurers, the Director of the De-         rience nature, performed outside of a
partment of Consumer and Business Services,            classroom environment and extending beyond
that includes a description of the work to be          initial instruction or demonstration activ-
performed by such persons and an estimate              ities. Such projects are limited to logging,
of the total number of persons enrolled.               silvicultural thinning, slash burning, fire
                                                       fighting, stream enhancement, woodcutting,
    (3) The premium cost for coverage under            reforestation, tree surgery, construction,
this section shall be based on an assumed              printing and manufacturing involving formed
hourly wage which is approved by the Direc-            metals.
tor of the Department of Consumer and                       (8) Notwithstanding subsection (1) of this
Business Services. Such assumed wage is to             section, a school district may elect to make
be used only for calculation purposes under            trainees subject workers under this chapter
this chapter and without regard to ORS                 for school directed professional education
chapter 652 or ORS 653.010 to 653.545 and              projects not enumerated in subsection (7) of
653.991. A self-insured district shall submit          this section by making written request to the
such assumed wage rates to the director. If            district’s insurer, or in the case of a self-
the director finds that the rates are unrea-           insured district, the director, with coverage
sonable, the director may fix appropriate              to begin no sooner than the date the request
rates to be used for purposes of this section.         is received by the insurer or director. The
    (4) The school district shall furnish the          request for coverage shall include a de-
insurer, or in the case of self-insurers, the          scription of the work to be performed under
director, with an estimate of the total num-           the project and an estimate of the number
ber of persons enrolled in its work experi-            of participating trainees. The insurer or di-
ence program or school directed professional           rector shall accept a request that meets the
education project and shall notify the insurer         criteria of this section. [1967 c.374 §2; 1979 c.814
                                                       §2a; 1979 c.815 §3; 1981 c.874 §2; 1987 c.489 §1; 1989 c.491
or director of any significant changes                 §63; 1991 c.534 §1; 1995 c.343 §52; 2007 c.70 §285]
therein. Persons covered under this section                 656.034 [Amended by 1959 c.441 §1; 1959 c.448 §5;
are entitled to the benefits of this chapter.          repealed by 1965 c.285 §95]
However, such persons are not entitled to
                                                           656.035 Status of workers in separate
benefits under ORS 656.210 or 656.212. They            occupations of employer. If an employer is
are entitled to such benefits if injured as            engaged in an occupation in which the em-
provided in ORS 656.156 and 656.202 while              ployer employs one or more subject workers
performing any duties arising out of and in            and is also engaged in a separate occupation
the course of their participation in the work          in which there are no subject workers, the
experience program or school directed pro-             employer is not subject to this chapter as to
fessional education project, provided the du-          that separate occupation, nor are the work-
ties being performed are among those:                  ers wholly engaged in that occupation sub-
    (a) Described on the application of the            ject to this chapter. [1965 c.285 §10]
school district; and                                        656.036 [Amended by 1957 c.441 §2; 1959 c.448 §6;
                                                       repealed by 1965 c.285 §95]
    (b) Required of similar full-time paid em-
ployees.                                                    656.037 Exemption from coverage for
                                                       persons engaged in certain real estate
    (5) The filing of claims for benefits under        activities. A person contracting to pay re-
this section is the exclusive remedy of a              muneration for professional real estate ac-
trainee or a beneficiary of the trainee for            tivity as defined in ORS chapter 696 to a
injuries compensable under this chapter                qualified real estate broker or qualified prin-
against the state, its political subdivisions,         cipal real estate broker, as defined in ORS
the school district board, its members, offi-          316.209, is not an employer of that qualified
cers and employees, or any employer, re-               broker under the Workers’ Compensation
gardless of negligence.                                Law. A qualified real estate broker or quali-

                                                  19
656.039                                 LABOR AND EMPLOYMENT

fied principal real estate broker is not enti-          make home care workers subject workers if
tled to benefits under the Workers’                     the home care worker is paid by the state on
Compensation Law unless such individual                 behalf of the client.
has obtained coverage for such benefits pur-                (b) As used in this subsection, “home
suant to ORS 656.128. [1983 c.597 §5; 2001 c.300        care worker” has the meaning given that
§71]
                                                        term in ORS 410.600. [1965 c.285 §11; 1975 c.556
       656.038 [Repealed by 1965 c.285 §95]             §22; 1979 c.839 §1; 1981 c.854 §6; 1983 c.816 §1; 1985 c.212
                                                        §2; 2007 c.241 §8; 2007 c.835 §1]
    656.039 Election of coverage for work-
ers not subject to law; procedure; cancel-                   656.040 [Amended by 1959 c.448 §7; repealed by 1965
                                                        c.285 §95]
lation; election of coverage for home
health care workers employed by clients                     656.041 City or county may elect to
of Department of Human Services. (1) An                 provide coverage for jail inmates. (1) As
employer of one or more persons defined as              used in this section, unless the context re-
nonsubject workers or not defined as subject            quires otherwise:
workers may elect to make them subject                      (a) “Authorized employment” means the
workers. If the employer is or becomes a                employment of an inmate on work authorized
carrier-insured employer, the election shall            by the governing body of a city or county.
be made by filing written notice thereof with               (b) “Inmate” means a person sentenced
the insurer with a copy to the Director of              by any court or legal authority, whether in
the Department of Consumer and Business                 default of the payment of a fine or committed
Services. The effective date of coverage is             for a definite number of days, to serve sen-
governed by ORS 656.419 (3). If the employer            tence in a city or county jail or other place
is or becomes a self-insured employer, the              of incarceration except state and federal in-
election shall be made by filing written no-            stitutions. “Inmate” includes a person who
tice thereof with the director, the effective           performs community service pursuant to ORS
date of coverage to be the date specified in            137.128, whether or not the person is incar-
the notice.                                             cerated.
    (2) Any election under subsection (1) of                (2) A city or county may elect to have
this section may be canceled by written no-             inmates performing authorized employment
tice thereof to the insurer or, in the case of          considered as subject workers of the city or
a self-insured employer, by notice thereof to           county for purposes of this chapter. Such
the director. The cancellation is effective at          election shall be made by a written applica-
12 midnight ending the day the notice is re-            tion to the insurer, or in the case of a self-
ceived by the insurer or the director, unless           insured employer, the Director of the
a later date is specified in the notice. The            Department of Consumer and Business Ser-
insurer shall, within 10 days after receipt of          vices, that includes a resolution of the gov-
a notice of cancellation under this section,            erning body declaring its intent to cover
send a copy of the notice to the director.              inmates as provided in this section and a de-
    (3) When necessary the insurer or the               scription of the work to be performed by
director shall fix assumed minimum or maxi-             such inmates. The application shall also state
mum wages for persons made subject work-                the estimated total number of inmates for
ers under this section.                                 which coverage is requested. The county or
    (4) Notwithstanding any other provision             city shall notify the insurer or director of
of this section, a person or employer not               changes in the estimated total number of in-
subject to this chapter who elects to become            mates performing authorized employment.
covered may apply to an insurer for cover-                  (3) Upon receiving the written applica-
age. An insurer other than the State Acci-              tion the insurer or self-insured employer may
dent Insurance Fund Corporation may                     fix assumed wage rates for the inmates,
provide such coverage. However, the State               which may be used only for purposes of
Accident Insurance Fund Corporation shall               computations under this chapter, and shall
accept any written notice filed and provide             require the regular payment of premiums or
coverage as provided in this section if all             assessments based upon the estimated total
subject workers of the employers will be in-            number of such inmates for which coverage
sured with the State Accident Insurance                 is requested. The self-insured employer shall
Fund Corporation and the coverage of those              submit such assumed wage rates to the di-
subject workers is not considered by the                rector. If the director finds that the rates are
State Accident Insurance Fund Corporation               unreasonable, the director may fix appropri-
to be a risk properly assignable to the as-             ate rates to be used for purposes of this sec-
signed risk pool.                                       tion.
    (5)(a) The Home Care Commission cre-                    (4) The city or county shall maintain a
ated by ORS 410.602 shall elect coverage on             separate list of inmates performing author-
behalf of clients of the Department of Human            ized employment. A certified copy of the list
Services who employ home care workers to                shall be furnished the insurer or director

                                                   20
                                         WORKERS′ COMPENSATION                                                656.046

upon request. Inmates covered under this                              made in pursuance thereof.      [Amended by 1965
section are entitled to the benefits of this                          c.285 §13; 1981 c.876 §2]
chapter and they are entitled to such bene-                                656.046 Coverage of persons in college
fits if injured as provided in ORS 656.202                            work experience and professional educa-
while performing any duties arising out of                            tion programs. (1) All persons registered at
and in the course of their participation in                           a college and participating as unpaid trainees
the authorized employment, provided the du-                           in a work experience program who are sub-
ties being performed are among those de-                              ject to the direction of noncollege-employed
scribed on the application of the city or                             supervisors, and those trainees participating
county.                                                               in college directed professional education
    (5) The filing of claims for benefits under                       projects, are considered workers of the col-
this section is the exclusive remedy of an                            lege subject to this chapter for purposes of
inmate or a beneficiary of the inmate for in-                         this section. However, trainees who are cov-
juries compensable under this chapter                                 ered by the Federal Employees Compensation
against a city or county and its officers and                         Act shall not be subject to the provisions of
employees, regardless of negligence. [1967 c.472                      this section.
§§2,3; 1977 c.807 §1; 1979 c.815 §4; 1981 c.854 §7; 1981 c.874
§3; 1983 c.706 §2]                                                         (2) A college conducting a work experi-
                                                                      ence program or college directed professional
     656.042 [Amended by 1959 c.448 §8; repealed by 1965
c.285 §95]                                                            education project shall submit a written
                                                                      statement to the insurer, or in the case of
    656.043 Governmental agency paying                                self-insurers, to the Director of the Depart-
wages responsible for providing coverage.                             ment of Consumer and Business Services,
Except as otherwise provided in ORS 656.029                           that includes a description of the work to be
to 656.033 and 656.041, but notwithstanding                           performed by such persons and an estimate
any other provision of law, the state or any                          of the total number of persons enrolled in
city, county, district, or agency thereof, that                       the program or project.
pays the wages of a subject worker is re-
sponsible for providing workers’ compensa-                                 (3) Persons covered under this section
tion insurance coverage for that worker.                              are entitled to the benefits of this chapter.
[1987 c.414 §183]                                                     However, such persons are not entitled to
                                                                      benefits under ORS 656.210 or 656.212. They
    656.044 State Accident Insurance Fund                             are entitled to such benefits if injured as
Corporation may insure liability under                                provided in ORS 656.156 and 656.202 while
Longshoremen’s and Harbor Workers’                                    performing any duties arising out of and in
Compensation Act; procedure; cancella-                                the course of their participation in the work
tion. (1) The State Accident Insurance Fund                           experience program or college directed pro-
Corporation may insure Oregon employers                               fessional education project, provided the du-
against their liability for compensation under                        ties being performed are among those:
the Longshoremen’s and Harbor Workers’
Compensation Act (33 U.S.C. 901 to 950) or                                 (a) Described on the application of the
any Act amendatory or supplementary                                   college; and
thereto or in lieu thereof, as fully as any                                (b) Required of similar full-time paid em-
private insurance carrier.                                            ployees.
    (2) The State Accident Insurance Fund                                  (4) The filing of claims for benefits under
Corporation may, from time to time, fix rates                         this section is the exclusive remedy of a
of contributions to be paid by such employ-                           trainee or a beneficiary of the trainee for
ers. These rates shall be based upon the                              injuries compensable under this chapter
costs of inspection and other administration,                         against the state, its political subdivisions,
the hazard of the occupation and the acci-                            the college district board, members, officers
dent experience of the employers. The State                           and employees of the board or any employer,
Accident Insurance Fund Corporation may                               regardless of negligence.
require a minimum annual premium, con-                                     (5) A college may elect to make trainees
tributions, assessments and fees from such                            subject to this chapter for college directed
employers.                                                            professional education projects not enumer-
    (3) All claims for compensation and other                         ated in subsection (8) of this section or for
                                                                      work experience programs under the direc-
costs arising from such insurance shall be                            tion of college-employed supervisors by filing
paid from the Industrial Accident Fund.                               a written request with the insurer of the
    (4) The State Accident Insurance Fund                             college, or in the case of self-insured col-
Corporation or any employer may cancel any                            leges, with the director. Coverage under such
insurance coverage issued under this section                          election shall become effective no sooner
by giving notice as required by the                                   than the date of receipt by the insurer. The
Longshoremen’s and Harbor Workers’ Com-                               coverage request shall include a description
pensation Act, or the rules or regulations                            of the work to be performed and an estimate

                                                                 21
656.052                                 LABOR AND EMPLOYMENT

of the number of participating trainees. The                (4) The court may award reasonable at-
insurer or director shall accept a request             torney fees to the director if the director
that meets the criteria of this section.               prevails in an action under subsection (3) of
    (6) The provisions of this section shall be        this section. The court may award reasonable
inapplicable to any trainee who has earned             attorney fees to a defendant who prevails in
wages for such employment.                             an action under subsection (3) of this section
                                                       if the court determines that the director had
    (7) As used in this section, “college”             no objectively reasonable basis for asserting
means any community college district or                the claim or no reasonable basis for appeal-
community college service district as defined          ing an adverse decision of the trial court.
in ORS chapter 341.                                    [Amended by 1957 c.574 §2; 1965 c.285 §14; 1967 c.341 §4;
                                                       1973 c.447 §1; 1987 c.234 §1; 1990 c.2 §5; 1995 c.332 §6b;
    (8) As used in this section, “college di-          1995 c.696 §43]
rected professional education project” means
an assigned on-campus or off-campus project                 656.054 Claim of injured worker of
that is a component of a program approved              noncomplying employer; procedure for
by the college board or the operating proce-           disputing acceptance of claim; recovery
dures of the State Board of Education and              of costs from noncomplying employer;
involves work that provides practical experi-          restrictions. (1) A compensable injury to a
ence beyond the initial instruction and dem-           subject worker while in the employ of a
onstration phases, performed outside of the            noncomplying employer is compensable to
college classroom or laboratory environment            the same extent as if the employer had com-
                                                       plied with this chapter. The Director of the
and requiring substantial hands-on partic-             Department of Consumer and Business Ser-
ipation by trainees. Such projects are further         vices shall refer the claim for such an injury
limited to logging, silvicultural thinning,            to an assigned claims agent within 60 days
slash burning, fire fighting, stream enhance-          of the date the director has notice of the
ment, woodcutting, reforestation, tree sur-            claim. At the time of referral of the claim,
gery,      construction,     printing      and         the director shall notify the employer in
manufacturing involving formed metals. [1991           writing regarding the referral of the claim
c.534 §3; 1993 c.18 §139; 1995 c.343 §53]
                                                       and the employer’s right to object to the
     656.052 Prohibition against employ-               claim. A claim for compensation made by
ment without coverage; proposed order                  such a worker shall be processed by the as-
declaring noncomplying employer; effect                signed claims agent in the same manner as
of failure to comply. (1) No person shall              a claim made by a worker employed by a
engage as a subject employer unless and un-            carrier-insured employer, except that the
til the person has provided coverage pursu-            time within which the first installment of
ant to ORS 656.017 for subject workers the             compensation is to be paid, pursuant to ORS
person employs.                                        656.262 (4), shall not begin to run until the
                                                       director has referred the claim to the as-
     (2) Whenever the Director of the Depart-          signed claims agent. At any time within
ment of Consumer and Business Services has             which the claim may be accepted or denied
reason to believe that any person has vio-             as provided in ORS 656.262, the employer
lated subsection (1) of this section, the di-          may request a hearing to object to the claim.
rector shall serve upon the person a proposed          If an order becomes final holding the claim
order declaring the person to be a noncom-             to be compensable, the employer is liable for
plying employer and containing the amount,             all costs imposed by this chapter, including
if any, of civil penalty to be assessed pursu-         reasonable attorney fees to be paid to the
ant to ORS 656.735 (1).                                worker’s attorney for services rendered in
     (3) If any person fails to comply with            connection with the employer’s objection to
ORS 656.017 after an order declaring the               the claim.
person to be a noncomplying employer has                    (2) In addition to, and not in lieu of, any
become final by operation of law or on ap-             civil penalties assessed pursuant to ORS
peal, the circuit court of the county in which         656.735, all costs to the Workers’ Benefit
the person resides or in which the person              Fund incurred under subsection (1) of this
employs workers shall, upon the commence-              section shall be a liability of the noncomply-
ment of a suit by the director for that pur-           ing employer. Such costs include compensa-
pose, permanently enjoin the person from               tion, disputed claim settlements pursuant to
employing subject workers without comply-              ORS 656.289 and claim disposition agree-
ing with ORS 656.017. Upon the filing of               ments pursuant to ORS 656.236, whether or
such a suit, the court shall set a day for             not the noncomplying employer agrees and
hearing and shall cause notice thereof to be           executes such documents, reasonable admin-
served upon the noncomplying employer. The             istrative costs and claims processing costs
hearing shall be not less than five days from          provided by contract, attorney fees related to
the service of the notice.                             compensability issues and any attorney fees

                                                  22
                               WORKERS′ COMPENSATION                                                    656.070

awarded to the claimant, but do not include                (7) If no qualified entity agrees to be an
assessments for reserves in the Workers’               assigned claims agent, the director may re-
Benefit Fund. The director shall recover               quire one or more of the three highest pre-
such costs from the employer. The director             mium producing insurers to be assigned
periodically shall pay the assigned claims             claims agents. Notwithstanding any other
agent from the Workers’ Benefit Fund for               provision of law, the director’s selection of
any costs the assigned claims agent incurs             assigned claims agents shall be made at the
under this section in accordance with the              sole discretion of the director. Such se-
terms of the contract. When the director               lections shall not be subject to review by any
prevails in any action brought pursuant to             court or other administrative body.
this subsection, the director is entitled to               (8) Any assigned claims agent, except the
recover from the noncomplying employer                 State Accident Insurance Fund Corporation,
court costs and attorney fees incurred by the          may employ legal counsel of its choice for
director.                                              representation under this section.
    (3) Periodically, or upon the request of a             (9) As used in this section, “assigned
noncomplying employer in a particular claim,           claims agent” means an insurer, casualty
the director shall audit the files of the State        adjuster or a third party administrator with
Accident Insurance Fund Corporation and                whom the director contracts to manage
any assigned claims agents to validate the             claims of injured workers of noncomplying
amount reimbursed pursuant to subsection               employers. [Amended by 1959 c.448 §9; 1965 c.285 §15;
(2) of this section. The conditions for grant-         1967 c.341 §5; 1971 c.72 §1; 1973 c.447 §2; 1979 c.839 §2;
ing or denying of reimbursement shall be               1981 c.854 §8; 1983 c.816 §2; 1987 c.234 §2; 1987 c.250 §3;
specified in the contract with the assigned            1991 c.679 §1; 1995 c.332 §7; 1995 c.641 §17; 1999 c.1020
                                                       §1; 2003 c.14 §399; 2003 c.170 §1; 2005 c.26 §1]
claims agent. The contract at least shall
provide for denial of reimbursement if, upon                Note: See notes under 656.202.
such audit, any of the following are found to               Note: Section 9, chapter 332, Oregon Laws 1995,
apply:                                                 provides:
                                                            Sec. 9. The amendments to ORS 656.054 by section
    (a) Compensation has been paid as a re-            7 of this 1995 Act do not remove the authority of the
sult of untimely, inaccurate, or improper              Director of the Department of Consumer and Business
claims processing;                                     Services to audit files of the State Accident Insurance
                                                       Fund Corporation for claims against noncomplying em-
    (b) Compensation has been paid negli-              ployers assigned to the State Accident Insurance Fund
gently for treatment of any condition unre-            Corporation prior to the effective date of this 1995 Act
lated to the compensable condition;                    [June 7, 1995]. [1995 c.332 §9]
    (c) The compensability of an accepted                  656.056 Subject employers must post
claim is questionable and the rationale for            notice of manner of compliance. (1) All
acceptance has not been reasonably docu-               subject employers shall display in a conspic-
mented in accordance with generally ac-                uous manner about their works, and in a
cepted claims management procedures;                   sufficient number of places reasonably to in-
    (d) The separate payments of compensa-             form their workers of the fact, printed no-
tion have not been documented in accor-                tices furnished by the Director of the
dance with generally accepted accounting               Department of Consumer and Business Ser-
procedures; or                                         vices stating that they are subject to this
    (e) The payments were made pursuant to             chapter and the manner of their compliance
a disposition agreement as provided by ORS             with this chapter.
656.236 without the prior approval of the di-              (2) No employer who is not currently a
rector.                                                subject employer shall post or permit to re-
    (4) The State Accident Insurance Fund              main on or about the place of business or
Corporation and any assigned claims agent              premises of the employer any notice that the
may request review under ORS 656.704 of                employer is subject to, and complying with,
any disapproval of reimbursement made by               this chapter. [Amended by 1965 c.285 §16]
the director under this section.                           656.070 Definitions for ORS 656.027,
    (5) Claims of injured workers of noncom-           656.070 and 656.075. As used in ORS 656.027,
plying employers may be assigned and reas-             656.075 and this section:
signed by the director for claims processing               (1) “Newspaper” has the meaning for that
regardless of the date of the worker’s injury.         term provided in ORS 193.010.
    (6) In selecting an assigned claims agent,             (2) “Newspaper carrier” means an indi-
the director must consider the assigned                vidual age 18 years or younger who contracts
claims agent’s ability to deliver timely and           with a newspaper publishing company or in-
appropriate benefits to injured workers, the           dependent newspaper dealer or contractor to
ability to control both claims cost and ad-            distribute newspapers to the general public
ministrative cost and such other factors as            and performs or undertakes any necessary or
the director considers appropriate.                    attendant functions related thereto, but re-

                                                  23
656.075                              LABOR AND EMPLOYMENT

ceives no salary or wages, other than sales                     this chapter temporarily leaves the state in-
incentives or bonuses, for the performance                      cidental to that employment and receives an
of those duties from the newspaper publish-                     accidental injury arising out of and in the
ing company or independent newspaper                            course of employment, the worker, or benefi-
dealer or contractor. “Newspaper carrier”                       ciaries of the worker if the injury results in
includes any individual appointed or utilized                   death, is entitled to the benefits of this
on a temporary basis by a newspaper carrier,                    chapter as though the worker were injured
a newspaper publishing company or inde-                         within this state.
pendent newspaper dealer or contractor to                            (2) Any worker from another state and
perform any or all of the duties of a newspa-                   the employer of the worker in that other
per carrier. [1977 c.835 §3; 1981 c.535 §52]                    state are exempted from the provisions of
    656.075 Exemption from coverage for                         this chapter while that worker is temporarily
newspaper carriers; casualty insurance                          within this state doing work for the em-
and other requirements. An individual                           ployer:
qualifies for the exemption provided in ORS                          (a) If that employer has furnished
656.027 only if the newspaper publishing                        workers’ compensation insurance coverage
company or independent newspaper dealer or                      under the workers’ compensation insurance
contractor utilizing the individual:                            or similar laws of a state other than Oregon
    (1) Encourages any minor so utilized to                     so as to cover that worker’s employment
remain in school and attend classes;                            while in this state;
    (2) Encourages any minor so utilized to                          (b) If the extraterritorial provisions of
not allow newspaper carrier duties to inter-                    this chapter are recognized in that other
fere with any school activities of the indi-                    state; and
vidual; and                                                          (c) If employers and workers who are
    (3) Provides accident insurance coverage                    covered in this state are likewise exempted
for the individual while the individual is en-                  from the application of the workers’ compen-
gaged in newspaper carrier duties that is at                    sation insurance or similar laws of the other
least equal to the following:                                   state.
    (a) $250,000 unallocated hospital and                       The benefits under the workers’ compensa-
medical benefits;                                               tion insurance Act or similar laws of the
    (b) $10 per week lost time benefits for a                   other state, or other remedies under a like
period of 52 weeks; and                                         Act or laws, are the exclusive remedy
                                                                against the employer for any injury, whether
    (c)   $5,000      accidental       death and                resulting in death or not, received by the
dismemberment benefit.                                          worker while working for that employer in
    (4) Provides the individual with a clear,                   this state.
written explanation or description of the                            (3) A certificate from the duly authorized
amount and the terms and conditions of the                      officer of the Department of Consumer and
insurance coverage required by this section,                    Business Services or similar department of
including a specific statement that the in-                     another state certifying that the employer of
surance coverage is in lieu of benefits under                   the other state is insured therein and has
the Workers’ Compensation Law. [1977 c.835                      provided extraterritorial coverage insuring
§4; 1981 c.535 §53]
                                                                workers while working within this state is
     656.082 [Repealed by 1965 c.285 §95]                       prima facie evidence that the employer car-
     656.084 [Amended by 1959 c.448 §10; repealed by            ries that workers’ compensation insurance.
1965 c.285 §95a]
                                                                     (4) Whenever in any appeal or other liti-
     656.086 [Repealed by 1965 c.285 §95]
                                                                gation the construction of the laws of an-
     656.088 [Amended by 1955 c.320 §1; 1965 c.285 §17;         other jurisdiction is required, the courts
renumbered 656.031]
                                                                shall take judicial notice thereof.
     656.090 [Amended by 1953 c.673 §2; 1959 c.448 §11;
repealed by 1965 c.285 §97]                                          (5) The Director of the Department of
     656.120 [1969 c.527 §3; repealed by 1979 c.815 §9]         Consumer and Business Services shall have
                                                                authority to enter into agreements with the
     656.122 [Repealed by 1965 c.285 §95]
                                                                workers’ compensation agencies of other
     656.124 [Amended by 1957 c.554 §1; repealed by 1965        states relating to conflicts of jurisdiction
c.285 §95]
                                                                where the contract of employment is in one
    656.126 Coverage while temporarily in                       state and the injuries are received in the
or out of state; judicial notice of other                       other state, or where there is a dispute as to
state’s laws; agreements between states                         the boundaries or jurisdiction of the states
relating to conflicts of jurisdiction; limi-                    and when such agreements have been exe-
tation on compensation for claims in this                       cuted and made public by the respective
state and other jurisdictions. (1) If a                         state agencies, the rights of workers hired in
worker employed in this state and subject to                    such other state and injured while temporar-

                                                           24
                                       WORKERS′ COMPENSATION                                                          656.135

ily in Oregon, or hired in Oregon and injured                       effective at 12 midnight ending the day of
while temporarily in another state, or where                        filing the notice with the insurer. [Amended
the jurisdiction is otherwise uncertain, shall                      by 1957 c.440 §2; 1959 c.448 §12; 1965 c.285 §18; 1969 c.400
be determined pursuant to such agreements                           §1; 1975 c.556 §23; 1981 c.854 §9; 1981 c.876 §3; 1993 c.777
                                                                    §11; 1995 c.93 §33; 1995 c.332 §11; 2007 c.241 §9]
and confined to the jurisdiction provided in
such agreements.                                                         656.130 [Amended by 1957 c.574 §3; repealed by 1959
                                                                    c.448 §14]
     (6) When a worker has a claim under the
workers’ compensation law of another state,                             656.132 Coverage of minors. (1) A mi-
territory, province or foreign nation for the                       nor working at an age legally permitted un-
same injury or occupational disease as the                          der the laws of this state is considered sui
claim filed in Oregon, the total amount of                          juris for the purpose of this chapter. No
compensation paid or awarded under such                             other person shall have any cause of action
other workers’ compensation law shall be                            or right to compensation for an injury to
credited against the compensation due under                         such minor worker, except as expressly pro-
Oregon workers’ compensation law. The                               vided in this chapter, but in the event of a
worker shall be entitled to the full amount                         lump-sum payment becoming due under this
of compensation due under Oregon law. If                            chapter to such minor worker, the control
Oregon compensation is more than the com-                           and management of any sum so paid shall be
pensation under another law, or compensa-                           within the jurisdiction of the courts as in the
tion paid the worker under another law is                           case of other property of minors.
recovered from the worker, the insurer shall                            (2) If an employer subject to this chapter
pay any unpaid compensation to the worker                           in good faith employed a minor under the age
up to the amount required by the claim un-                          permitted by law, believing the minor to be
der Oregon law. [Amended by 1955 c.723 §1; 1957                     of lawful age, and the minor sustains an in-
c.474 §1; 1977 c.804 §4; 1989 c.684 §1; 1995 c.332 §10; 1997        jury or suffers death in such employment,
c.234 §1]                                                           the minor is conclusively presumed to have
    656.128 Sole proprietors, limited liabil-                       accepted the provisions of this chapter. The
ity company members, partners, inde-                                Director of the Department of Consumer and
pendent contractors may elect coverage                              Business Services may determine conclu-
by insurer; cancellation. (1) Any person                            sively the good faith of such employer unless
who is a sole proprietor, or a member, in-                          the employer possessed at the time of the
cluding a member who is a manager, of a                             accident resulting in such injury or death a
limited liability company, or a member of a                         certificate from some duly constituted au-
partnership, or an independent contractor                           thority of this state authorizing the employ-
pursuant to ORS 670.600, may make written                           ment of the minor in the work in which the
application to an insurer to become entitled                        minor was then engaged. Such certificate is
as a subject worker to compensation benefits.                       conclusive evidence of the good faith of such
Thereupon, the insurer may accept such ap-                          employer.
plication and fix a classification and an as-                           (3) If the employer holds no such certif-
sumed monthly wage at which such person                             icate and the director finds that the em-
shall be carried on the payroll as a worker                         ployer did not employ such minor in good
for purposes of computations under this                             faith, the minor is entitled to the benefits of
chapter.                                                            this chapter, but the employer shall pay to
    (2) When the application is accepted,                           the Consumer and Business Services Fund
such person thereupon is subject to the pro-                        by way of penalty a sum equal to 25 percent
visions and entitled to the benefits of this                        of the amount paid out or set apart under
chapter. The person shall promptly notify the                       such statutes on account of the injury or
insurer whenever the status of the person as                        death of such minor, but such penalty shall
an employer of subject workers changes.                             be not less than $100 nor exceed $500.
                                                                    [Amended by 1959 c.448 §13; 1985 c.212 §3]
Any subject worker employed by such a per-
son after the effective date of the election of                         656.135 Coverage of deaf school work
the person shall, upon being employed, be                           experience trainees. (1) As used in this
considered covered automatically by the                             section “school” means the Oregon School
same workers’ compensation insurance policy                         for the Deaf.
that covers such person.                                                (2) All persons participating as trainees
    (3) No claim shall be allowed or paid un-                       in a work experience program of the school
der this section, except upon corroborative                         are considered as workers of the school sub-
evidence in addition to the evidence of the                         ject to this chapter for purposes of this sec-
claimant.                                                           tion.
    (4) Any person subject to this chapter as                           (3) On behalf of a school conducting a
a worker as provided in this section may                            work experience program, the Department of
cancel such election by giving written notice                       Education shall submit a written statement
to the insurer. The cancellation shall become                       to the State Accident Insurance Fund Cor-

                                                               25
656.138                         LABOR AND EMPLOYMENT

poration that includes a description of the                 (3) Upon receiving the written statement,
work to be performed by such persons.                   the insurer, or in the case of self-insurers,
     (4) Upon receiving the written statement,          the director, may fix assumed wage rates for
the corporation may fix assumed wage rates              those apprentices or trainees participating in
for the persons enrolled in the work experi-            related instruction classes, which may be
ence program, without regard to ORS chap-               used only for the purposes of computations
ter 652 or ORS 653.010 to 653.545 and                   under this chapter.
653.991, which may be used only for purposes                (4) The State Apprenticeship and Train-
of computations under this chapter.                     ing Council shall furnish the insurer, or in
     (5) The Department of Education shall              the case of self-insurers, the director, and the
furnish the corporation with a list of the              school district, community college district or
names of those enrolled in work experience              education service district with an estimate
programs in the school and shall notify the             of the total number of apprentices or train-
corporation of any changes therein. Only                ees approved by it for participation in related
those persons whose names appear on such                instruction classes subject to coverage under
list prior to their personal injury by accident         this section and any significant changes in
are entitled to the benefits of this chapter            the estimated total. Apprentices and trainees
and they are entitled to such benefits if in-           as provided in subsection (1) of this section
jured as provided in ORS 656.156 and 656.202            are entitled to benefits under this chapter.
while performing any duties arising out of                  (5) The filing of claims for benefits under
and in the course of their participation in             the authority of this section is the exclusive
the work experience program, provided the               remedy of apprentices or trainees or their
duties being performed are among those:                 beneficiaries for injuries compensable under
     (a) Described on the application of the            this chapter against the state, its political
department; and                                         subdivisions, the school district, community
                                                        college district or education service district,
     (b) Required of similar full-time paid em-         their members, officers and employees, or
ployees.                                                any employer, regardless of negligence.
     (6) The filing of claims for benefits under            (6) This section does not apply to any
this section is the exclusive remedy of a               apprentice or trainee who has earned wages
trainee or beneficiary of the trainee for inju-         for performing such duties. [1971 c.634 §2; 1975
ries compensable under this chapter against             c.775 §1; 1979 c.815 §5]
the state, the school, the department, its of-
ficers and employees, or any employer, re-                  656.140 Coverage of persons operating
gardless of negligence.                                 equipment for hire. (1) Any person, or per-
                                                        sons operating as partners, who have an
     (7) The provisions of this section shall be        ownership or leasehold interest in equipment
inapplicable to any trainee who is earning              and are engaged in the business of operating
wages for such employment. [1969 c.406 §2; 2007         such equipment for hire, may elect to cover
c.858 §83; 2009 c.562 §35]                              themselves under the Workers’ Compensa-
    656.138 Coverage of apprentices,                    tion Law by filing with an insurer a written
trainees participating in related instruc-              application to become entitled as subject
tion classes. (1) All persons registered as             workers to the benefits of the Workers’
apprentices or trainees and participating in            Compensation Law.
related instruction classes conducted by a                  (2) As used in this section “equipment”
school district, community college district or          means:
education service district in accordance with               (a) A motor vehicle used in the transpor-
the requirements of ORS 660.002 to 660.210              tation of logs, poles or pilings.
or section 50, title 29, United States Code as
of September 13, 1975, are considered as                    (b) A motor vehicle used in the transpor-
workers of the school district, community               tation of rocks, gravel, sand or dirt.
college district or education service district              (c) A backhoe or other similar equipment
subject to this chapter.                                used for digging and filling ditches or
    (2) A school district, community college            trenches.
district or education service district con-                 (d) A tractor.
ducting related instruction classes shall sub-
mit a written statement to the insurer, or in               (e) Any other motor vehicle or heavy
the case of self-insurers, the Director of the          equipment of a kind commonly operated for
Department of Consumer and Business Ser-                hire.
vices, that includes a description of the re-               (3) The insurer may accept such applica-
lated instruction to be given to such                   tion and fix a classification and an assumed
apprentices or trainees and an estimate of              monthly wage at which such person, or per-
the total number of persons enrolled.                   sons operating as partners, shall be carried

                                                   26
                                          WORKERS′ COMPENSATION                                        656.170

on the payroll as workers for purposes of                       periods of time during which the worker is
computations under this chapter.                                incarcerated for the commission of a crime.
     (4) When the application is accepted,                          (2) As used in this section, an individual
such person, or persons operating as part-                      is not “incarcerated” if the individual is on
ners, become subject workers. Thereupon,                        parole or work release status. [1990 c.2 §50]
such person, or persons operating as part-                          656.170 Validity of provisions of cer-
ners, shall be subject to this chapter as a                     tain collective bargaining agreements; al-
subject employer notwithstanding ORS                            ternative dispute resolution systems;
656.023 and shall be entitled to benefits as                    exclusive medical service provider lists;
subject workers.                                                authority of director. (1) In a collective
     (5) No claim shall be allowed or paid un-                  bargaining agreement between a private em-
der this section, except upon corroborative                     ployer or groups of employers engaged in
evidence in addition to the evidence of the                     construction, construction maintenance or
claimant.                                                       activities limited to rock, sand, gravel, ce-
     (6) Any person, or persons operating as                    ment and asphalt operations, heavy duty me-
partners, electing coverage under this sec-                     chanics,     surveying      or    construction
tion, have the same duties and responsibil-                     inspection, and a union that is the recog-
ities of any other subject employer in the                      nized or certified exclusive bargaining repre-
event they hire one or more subject workers.                    sentative, a provision establishing either of
                                                                the following is valid and binding:
     (7) The rights given to a person, or per-
sons operating as partners, and their benefi-                       (a) An alternative dispute resolution sys-
ciaries pursuant to this section for injuries                   tem governing disputes between employees,
compensable under this chapter are in lieu                      employers and their insurers that supple-
of any remedies they might otherwise have                       ments or replaces all or part of the dispute
for such injuries against the person for                        resolution processes of this chapter, includ-
whom services are being performed. [1969 c.463                  ing but not limited to provisions:
§2; 1975 c.556 §24; 1981 c.854 §10; 1981 c.876 §4]                  (A) Establishing any limitations on the
     656.152 [Amended by 1957 c.718 §2; repealed by 1965        liability of the employer while determi-
c.285 §95]                                                      nations regarding the compensability of an
    656.154 Injury due to negligence or                         injury are being made;
wrong of a person not in the same em-                               (B) Describing the method for resolving
ploy as injured worker; remedy against                          disputes involving compensability of injuries
such person. If the injury to a worker is                       under the alternative dispute resolution sys-
due to the negligence or wrong of a third                       tem and the amount of compensation due for
person not in the same employ, the injured                      a compensable injury and for medical and
worker, or if death results from the injury,                    legal services;
the spouse, children or other dependents, as                        (C) Relating to the payment of compen-
the case may be, may elect to seek a remedy                     sation for injuries incurred when the collec-
against such third person. [Amended by 1959                     tive bargaining agreement is terminated or
c.504 §1; 1975 c.152 §1; 1985 c.212 §4]
                                                                when an injured worker is no longer subject
    656.156 Intentional injuries. (1) If in-                    to the agreement; and
jury or death results to a worker from the
deliberate intention of the worker to produce                       (D) Establishing arbitration and medi-
such injury or death, neither the worker nor                    ation procedures; or
the widow, widower, child or dependent of                           (b) The use of a list of medical service
the worker shall receive any payment what-                      providers that the parties may agree is the
soever under this chapter.                                      exclusive source of all medical treatment
    (2) If injury or death results to a worker                  provided under this chapter.
from the deliberate intention of the employer                       (2) Any decision, order or award of com-
of the worker to produce such injury or                         pensation issued under an agreed upon alter-
death, the worker, the widow, widower, child                    native dispute resolution system adopted
or dependent of the worker may take under                       under subsection (1)(a) of this section is sub-
this chapter, and also have cause for action                    ject to review in the same manner as pro-
against the employer, as if such statutes had                   vided for the review of an order of an
not been passed, for damages over the                           Administrative Law Judge pursuant to the
amount payable under those statutes.                            provisions of this chapter.
[Amended by 1965 c.285 §20]
                                                                    (3) Nothing in this section allows a col-
    656.160 Effect of incarceration on re-                      lective bargaining agreement that diminishes
ceipt of compensation. (1) Notwithstanding                      the entitlement of an employee to compensa-
any other provision of this chapter, an in-                     tion as provided in this chapter. The portion
jured worker is not eligible to receive com-                    of an agreement that violates this subsection
pensation under ORS 656.210 or 656.212 for                      is void. Notwithstanding any other provision

                                                           27
656.172                       LABOR AND EMPLOYMENT

of law, original jurisdiction over the compli-            (B) Upon original application and annu-
ance of a proposed collective bargaining              ally thereafter, a valid license when that li-
agreement with this subsection is with the            cense is required as a condition of doing
Director of the Department of Consumer and            business in Oregon;
Business Services. The director shall deter-              (C) Upon original application and annu-
mine the compliance of the agreement with             ally thereafter, a signed, sworn statement
this subsection prior to the agreement be-            that no action has been taken by any admin-
coming operative. The decision of the direc-          istrative agency or court of the United
tor is subject to review as provided under            States to invalidate the collective bargaining
ORS 656.704. [1999 c.841 §2; 2005 c.26 §2]            agreement;
    656.172 Applicability of and criteria                 (D) Upon original application and annu-
for establishing program under ORS                    ally thereafter, the name, address and tele-
656.170. (1) ORS 656.170 applies only to:             phone number of the contact person of the
    (a) An employer incurring or projecting           employer or group of employers; and
an annual workers’ compensation insurance                 (E) A statement from the insurer or self-
premium in Oregon of at least $250,000 or an          insured employer that the insurer or self-
employer that paid an annual workers’ com-            insured employer is willing to insure the risk
pensation insurance premium in Oregon of              under the terms of the collective bargaining
at least $250,000 in one of the three years           agreement; and
prior to the year in which the collective
bargaining agreement takes effect.                        (b) The director has approved the pro-
                                                      posed program.
    (b) An employer who qualifies as a self-
                                                          (3) A collective bargaining representative
insured employer under ORS 656.407 and                may not establish or continue to participate
656.430 that is incurring or projecting annual        in a program established under ORS 656.170
workers’ compensation costs of at least               until:
$250,000 or who has had annual workers’
compensation costs of at least $250,000 in                (a) The collective bargaining represen-
one of the three years prior to the year in           tative has provided the following to the di-
which the collective bargaining agreement             rector:
takes effect.                                             (A) Upon original application and annu-
    (c) A group of employers who combine              ally thereafter, a copy of the most recent
for the purpose of obtaining workers’ com-            LM-2 or LM-3 filing with the United States
pensation insurance as provided by ORS                Department of Labor, and a signed, sworn
                                                      statement that the document is a true and
737.316 and incur or project annual workers’          correct copy; and
compensation premiums of at least $1
million.                                                  (B) Upon original application and annu-
                                                      ally thereafter, the name, address and tele-
    (d) A group of employers who qualify as           phone number of the contact person for the
a self-insured employer group under ORS               collective bargaining representative; and
656.430 and incur or project annual workers’
compensation costs of at least $1 million.                (b) The director has approved the pro-
                                                      posed program.
    (e) Employers covered by a wrap-up in-
surance policy provided by an owner or gen-               (4) When an employer, a group of em-
eral contractor and authorized by ORS                 ployers or a collective bargaining represen-
737.602 and 737.604, and that requires pay-           tative has met the eligibility requirements of
ment of annual workers’ compensation pre-             this section, the director shall issue a letter
                                                      to the employer, group of employers or col-
miums of $1 million or more for coverage of           lective bargaining representative indicating
those employees covered by the wrap-up in-            that such eligibility has been established.
surance policy.                                       [1999 c.841 §3; 2007 c.71 §207]
    (2) An employer or group of employers                 656.174 Rules. The Director of the De-
may not establish or continue a program es-           partment of Consumer and Business Services
tablished under ORS 656.170 until:                    shall adopt rules necessary for the imple-
    (a) The employer has provided the Direc-          mentation of the provisions of ORS 656.170
tor of the Department of Consumer and                 and 656.172. The rules must include, but are
Business Services with the following:                 not limited to procedures for:
    (A) Upon original application and when-               (1) Establishing and operating an alter-
ever the collective bargaining agreement is           native dispute resolution system;
renegotiated, a copy of the collective bar-               (2) Resolution of disputes involving mul-
gaining agreement and an estimate of the              tiple claims when one or more of the claims
number of employees covered by the collec-            are not subject to the collective bargaining
tive bargaining agreement;                            agreement; and

                                                 28
                              WORKERS′ COMPENSATION                                                       656.202

    (3) Providing benefits to injured workers         egon Laws 1999, applies to a surviving
whose compensable claims are covered under            spouse who remarries on or after October 23,
an alternative dispute resolution system after        1999, regardless of the date of injury or death
the expiration of the collective bargaining           of the worker. [Amended by 1953 c.669 §4; 1953 c.670
agreement or termination of any arrange-              §4;   1957 c.718 §3; 1959 c.450 §1; 1965 c.285 §21; 1977 c.430
ment for the provision of benefits under ORS          §6;   1981 c.770 §1; subsection (4) enacted as 1981 c.723
                                                      §8;   1985 c.108 §3; 1985 c.600 §6; 1985 c.706 §6; 1985 c.770
656.170 and 656.172. [1999 c.841 §4]                  §6;   1995 c.332 §12; 1999 c.927 §1]

      APPLICABILITY PROVISIONS                                  (Implementation of 1990 Laws)
    656.202 Compensation payable to sub-                   Note: Section 54, chapter 2, Oregon Laws 1990,
ject worker in accordance with law in ef-             provides:
fect at time of injury; exceptions; notice                 Sec. 54. (1) Except for amendments to ORS 656.027,
regarding payment. (1) If any subject                 656.211, 656.214 (2) and 656.790, this 1990 Act becomes
                                                      operative July 1, 1990, and notwithstanding ORS 656.202,
worker sustains a compensable injury, the             this 1990 Act applies to all claims existing or arising
worker or the beneficiaries of the worker, if         on and after July 1, 1990, regardless of date of injury,
the injury results in death, shall receive            except as specifically provided in this section.
compensation as provided in this chapter,                  (2) Any matter regarding a claim which is in liti-
regardless of whether the worker was em-              gation before the Hearings Division, the board, the
ployed by a complying or noncomplying em-             Court of Appeals or the Supreme Court under this
                                                      chapter, and regarding which matter a request for
ployer.                                               hearing was filed before May 1, 1990, and a hearing was
    (2) Except as otherwise provided by law,          convened before July 1, 1990, shall be determined pur-
payment of benefits for injuries or deaths            suant to the law in effect before July 1, 1990.
under this chapter shall be continued as au-               (3) Amendments by this 1990 Act to ORS 656.214 (5),
thorized, and in the amounts provided for, by         the amendments to ORS 656.268 (4), (5), (6), (7) and (8),
                                                      ORS 656.283 (7), 656.295, 656.319, 656.325, 656.382 and
the law in force at the time the injury giving        656.726 shall apply to all claims which become medically
rise to the right to compensation occurred.           stationary after July 1, 1990. [1990 c.2 §54]
    (3) When compensation is paid to a
claimant or other payment is made to the                        (Implementation of 1995 Laws)
provider of service pursuant to this chapter,               Note: Section 66, chapter 332, Oregon Laws 1995,
the insurer or self-insured employer shall            provides:
notify the payment recipient in writing of the              Sec. 66. (1) Notwithstanding any other provision
specific purpose of the payment. When appli-          of law, chapter 332, Oregon Laws 1995, applies to all
cable, the notice shall indicate the time pe-         claims or causes of action existing or arising on or af-
riod for which the payment is made and the            ter June 7, 1995, regardless of the date of injury or the
                                                      date a claim is presented, and chapter 332, Oregon Laws
reimbursable expenses or other bills and              1995, is intended to be fully retroactive unless a specific
charges covered. If any portion of the claim          exception is stated in chapter 332, Oregon Laws 1995.
is denied, the notice shall identify that por-              (2) The amendments to ORS 656.204 and 656.265 by
tion of the claimed amounts that is not being         sections 13 and 29, chapter 332, Oregon Laws 1995, and
paid.                                                 the amendments to ORS 656.210 (2)(a) by section 15,
                                                      chapter 332, Oregon Laws 1995, apply only to injuries
    (4) Notwithstanding subsections (1) to (3)        occurring on or after June 7, 1995.
of this section, the amendments to ORS                      (3) Sections 8 and 9, chapter 332, Oregon Laws 1995,
656.325 by section 4, chapter 723, Oregon             and the amendments to ORS 656.054, 656.248 and 656.622
Laws 1981, and ORS 656.335 (1993 Edition)             by sections 7, 26 and 49, chapter 332, Oregon Laws 1995,
apply to all workers regardless of the date           become operative January 1, 1996.
of injury.                                                  (4) The amendments to ORS 656.268 (4), (5), (6) and
                                                      (9), 656.319 (4) and 656.726 (3)(f) by sections 30, 39 and
    (5) This section does not apply to voca-          55, chapter 332, Oregon Laws 1995, shall apply only to
tional assistance benefits.                           claims that become medically stationary on or after
                                                      June 7, 1995.
    (6) Notwithstanding subsection (2) of this
section, the increase in benefits to the sur-               (5)(a) The amendments to statutes by chapter 332,
                                                      Oregon Laws 1995, and new sections added to ORS
viving spouse of an injured worker made by            chapter 656 by chapter 332, Oregon Laws 1995, do not
the amendment to ORS 656.204 (2)(c) (1993             apply to any matter for which an order or decision has
Edition) by section 1, chapter 108, Oregon            become final on or before June 7, 1995.
Laws 1985, applies to a surviving spouse who                (b) Notwithstanding paragraph (a) of this subsec-
remarries after September 20, 1985, regard-           tion, the amendments to ORS 656.262 (6) creating new
less of the date of injury or death of the            paragraph (c) and the amendments to the subsection
                                                      designated (10) by section 28, chapter 332, Oregon Laws
worker.                                               1995, apply to all claims without regard to any previous
    (7) Notwithstanding subsection (2) of this        order or closure.
section, the increase in benefits to the sur-               (6) The amendments to statutes by chapter 332, Or-
                                                      egon Laws 1995, and new sections added to ORS chapter
viving spouse of an injured worker made by            656 by chapter 332, Oregon Laws 1995, do not extend or
the amendments to ORS 656.204 (3)(a) and (b)          shorten the procedural time limitations with regard to
(1997 Edition) by section 2, chapter 927, Or-         any action on a claim taken prior to June 7, 1995.

                                                 29
656.202                                LABOR AND EMPLOYMENT

    (7) The amendments to ORS 656.506 by section 63,                      (Implementation of 2005 Laws)
chapter 332, Oregon Laws 1995, first become operative
October 1, 1995. [1995 c.332 §66; 1999 c.6 §2]                           Note: Section 4, chapter 188, Oregon Laws 2005,
                                                                   provides:
                                                                         Sec. 4. (1) The amendments to ORS 656.267, 656.278
       (Implementation of 1997 Laws)                               and 656.298 by sections 1, 2 and 3 of this 2005 Act apply
     Note: Section 2, chapter 605, Oregon Laws 1997,               to all claims existing or arising on or after the effective
provides:                                                          date of this 2005 Act [January 1, 2006].
     Sec. 2. Notwithstanding any other provision of law                  (2) Notwithstanding subsection (1) of this section,
to the contrary, the amendments to ORS 656.262 by sec-             the amendments to ORS 656.267, 656.278 and 656.298 by
tion 1 of this Act apply to all claims or causes of action         sections 1, 2 and 3 of this 2005 Act do not apply to any
existing or arising on or after the effective date of this         matter for which an order has become final prior to the
Act [July 25, 1997], regardless of the date of injury or           effective date of this 2005 Act. [2005 c.188 §4]
the date a claim is presented, and this Act is intended                  Note: Section 5, chapter 221, Oregon Laws 2005,
to be fully retroactive. [1997 c.605 §2]                           provides:
     Note: Section 6, chapter 639, Oregon Laws 1997,                     Sec. 5. The amendments to ORS 656.268 by sections
provides:                                                          1 and 2 of this 2005 Act apply to notices of closure is-
     Sec. 6. Notwithstanding any other provision of                sued on or after January 1, 2006. [2005 c.221 §5]
law, the amendments to ORS 656.593 by section 4 of this                  Note: Section 7, chapter 461, Oregon Laws 2005,
Act apply to all claims or causes of action existing on            provides:
or arising on or after the effective date of this Act [July
25, 1997], regardless of the date of injury or the date a                Sec. 7. The amendments to ORS 656.206, 656.268,
claim is presented, and the amendments to ORS 656.593              656.319 and 656.605 by sections 1 to 6 of this 2005 Act
by section 4 of this Act are intended to be fully retro-           apply to all claims for which a notice of closure is is-
active. [1997 c.639 §6]                                            sued under ORS 656.206 or 656.268 on or after the effec-
                                                                   tive date of this 2005 Act [January 1, 2006]. [2005 c.461
                                                                   §7]
       (Implementation of 2001 Laws)                                     Note: Section 2, chapter 624, Oregon Laws 2005,
     Note: Section 22, chapter 865, Oregon Laws 2001,              provides:
provides:                                                                Sec. 2. The amendments to ORS 656.283 by section
     Sec. 22. (1) Section 14 of this 2001 Act [656.247] and        1 of this 2005 Act apply to requests for hearing made
the amendments to ORS 656.005, 656.210, 656.262, 656.266,          on or after the effective date of this 2005 Act [January
656.308, 656.313, 656.325 (5), 656.386, 656.605 and 656.804        1, 2006]. [2005 c.624 §2]
by sections 1, 2, 3, 4, 5, 7, 8, 9, 13 and 13a of this 2001              Note: Section 5, chapter 653, Oregon Laws 2005,
Act apply to all claims with a date of injury on or after          provides:
January 1, 2002.
                                                                         Sec. 5. The amendments to ORS 656.214 and 656.726
     (2) Section 10 of this 2001 Act [656.267] and the             by sections 1 and 3 of this 2005 Act apply to injuries
amendments to ORS 656.278 and 656.625 by sections 11               occurring on or after January 1, 2006. [2005 c.653 §5]
and 11a of this 2001 Act apply to all claims regardless
of date of injury.                                                       Note: Section 8, chapter 675, Oregon Laws 2005,
                                                                   provides:
     (3) The amendments to ORS 656.268 (6) by section
12 of this 2001 Act apply to any claim with a date of                    Sec. 8. The amendments to ORS 656.325 and 656.780
closure on or after January 1, 2002.                               by sections 1, 2 and 3 of this 2005 Act apply to all
                                                                   claims in which an independent medical examination
     (4) The amendments to ORS 656.325 (1) by section              required under ORS 656.325 is scheduled on or after the
13 of this 2001 Act apply to any claim with a date of              effective date of this 2005 Act [January 1, 2006]. [2005
denial on or after January 1, 2002. [2001 c.865 §22]               c.675 §8]

       (Implementation of 2003 Laws)                                      (Implementation of 2007 Laws)
     Note: Section 2, chapter 429, Oregon Laws 2003,                     Note: Section 3, chapter 17, Oregon Laws 2007,
provides:                                                          provides:
     Sec. 2. The amendments to ORS 656.268 by section                    Sec. 3. (1) The amendments to ORS 656.298 (3) and
1 of this 2003 Act apply to all claims first closed on or          (5) by section 1 of this 2007 Act apply to petitions for
after the effective date of this 2003 Act [January 1,              judicial review filed on or after the effective date of this
2004]. [2003 c.429 §2]                                             2007 Act [January 1, 2008].
     Note: Sections 13 and 15, chapter 657, Oregon Laws                  (2) The provisions of ORS 656.298 (9) apply to pe-
2003, provide:                                                     titions for judicial review pending with the appellate
     Sec. 13. The amendments to ORS 656.206, 656.214,              court on the effective date of this 2007 Act and to pe-
656.268, 656.307, 656.325 and 656.726 by sections 1, 3, 5,         titions for judicial review filed on or after the effective
7, 9 and 11 of this 2003 Act apply to injuries occurring           date of this 2007 Act. [2007 c.17 §3]
on or after January 1, 2005. [2003 c.657 §13]                            Note: Section 2, chapter 908, Oregon Laws 2007,
     Sec. 15. The amendments to ORS 656.206, 656.214,              provides:
656.268, 656.307, 656.325 and 656.726 by sections 2, 4, 6,               Sec. 2. The amendments to ORS 656.386 by section
8, 10 and 12 of this 2003 Act apply to injuries occurring          1 of this 2007 Act apply to workers’ compensation
on or after January 1, 2008. [2003 c.657 §15]                      claims in which the order on the compensability of the
     Note: Section 3, chapter 756, Oregon Laws 2003,               claim denial has not become final on or before the ef-
provides:                                                          fective date of this 2007 Act [January 1, 2008]. [2007
                                                                   c.908 §2]
     Sec. 3. The amendments to ORS 656.262 and 656.385
by sections 1 and 2 of this 2003 Act apply to all claims                 Note: Section 4, chapter 908, Oregon Laws 2007,
for which an order relating to the issue on which at-              provides:
torney fees are sought has not become final on or before                 Sec. 4. The amendments to ORS 656.388 by section
the effective date of this 2003 Act [January 1, 2004], re-         3 of this 2007 Act apply to all claims in which an order
gardless of the date of injury. [2003 c.756 §3]                    that grants attorney fees is issued after the effective

                                                              30
                                      WORKERS′ COMPENSATION                                             656.204

date of this 2007 Act [January 1, 2008], regardless of the             (e) If a child who has become 18 years of
date of injury. [2007 c.908 §4]                                   age is a full-time high school student, bene-
                                                                  fits shall be paid as provided in subsection
       (Implementation of 2009 Laws)                              (8) of this section.
      Note: Section 6, chapter 526, Oregon Laws 2009,                  (f) In no event shall the total monthly
provides:                                                         benefits provided for in this subsection ex-
      Sec. 6. Regardless of the date of injury, the               ceed 4.35 times 133-1/3 percent of the average
amendments to ORS 656.262, 656.308, 656.382, 656.385 and          weekly wage. If the sum of the individual
656.386 by sections 1 to 5 of this 2009 Act apply to all          benefits exceeds this maximum, the benefit
claims for which an order is issued on or after the ef-
fective date of this 2009 Act [January 1, 2010]. [2009            for each child will be reduced proportionally.
c.526 §6]                                                              (3)(a) Upon remarriage, a surviving
                                                                  spouse shall be paid 36 times the monthly
     COMPENSATION AND MEDICAL                                     benefit in a lump sum as final payment of the
                   BENEFITS                                       claim, but the monthly payments for each
                                                                  child shall continue as before.
     656.204 Death. If death results from the
accidental injury, payments shall be made as                           (b) If, after the date of the subject
follows:                                                          worker’s death, the surviving spouse cohabits
                                                                  with another person for an aggregate period
     (1)(a) The cost of final disposition of the                  of more than one year and a child has re-
body and funeral expenses, including but not                      sulted from the relationship, the surviving
limited to transportation of the body, shall                      spouse shall be paid 36 times the monthly
be paid, not to exceed 20 times the average                       benefit in a lump sum as final payment of the
weekly wage in any case.                                          claim, but the monthly payment for any child
     (b) The insurer or self-insured employer                     who is entitled to compensation on account
shall pay bills submitted for disposition and                     of the death of the worker shall continue as
funeral expenses up to the benefit limit es-                      before.
tablished in paragraph (a) of this subsection.                         (4)(a) If the worker leaves neither wife
If any part of the benefit remains unpaid 60                      nor husband, but a child under 18 years of
days after claim acceptance, the insurer or                       age, a monthly benefit equal to 4.35 times 25
self-insured employer shall pay the unpaid                        percent of the average weekly wage shall be
amount to the estate of the worker.                               paid to each such child until the child be-
     (2)(a) If the worker is survived by a                        comes 18 years of age.
spouse, monthly benefits shall be paid in an                           (b) If a child who has become 18 years
amount equal to 4.35 times 66-2/3 percent of                      of age is a full-time high school student,
the average weekly wage to the surviving                          benefits shall be paid as provided in subsec-
spouse until remarriage. The payment shall                        tion (8) of this section.
cease at the end of the month in which the
remarriage occurs.                                                     (c) In no event shall the total benefits
                                                                  provided for in this subsection exceed 4.35
     (b) If the worker is survived by a spouse,                   times 133-1/3 percent of the average weekly
monthly benefits also shall be paid in an                         wage. If the sum of the individual benefits
amount equal to 4.35 times 10 percent of the                      exceeds this maximum, the benefit for each
average weekly wage for each child of the                         child will be reduced proportionally.
deceased who is substantially dependent on
the spouse for support, until such child be-                           (5)(a) If the worker leaves a dependent
comes 18 years of age.                                            other than a surviving spouse or a child, a
     (c) If the worker is survived by a spouse,                   monthly payment shall be made to each de-
monthly benefits also shall be paid in an                         pendent equal to 50 percent of the average
amount equal to 4.35 times 25 percent of the                      monthly support actually received by such
average weekly wage for each child of the                         dependent from the worker during the 12
deceased who is not substantially dependent                       months next preceding the occurrence of the
on the spouse for support, until such child                       accidental injury. If a dependent is under the
becomes 18 years of age.                                          age of 18 years at the time of the accidental
                                                                  injury, the payment to the dependent shall
     (d) If a surviving spouse receiving                          cease when such dependent becomes 18 years
monthly payments dies, leaving a child who                        of age. The payment to any dependent shall
is entitled to compensation on account of the                     cease under the same circumstances that
death of the worker, a monthly benefit equal                      would have terminated the dependency had
to 4.35 times 25 percent of the average                           the injury not happened.
weekly wage shall be paid to each such child
until the child becomes 18 years of age or                             (b) If the dependent who has become 18
the child’s entitlement to benefits under sub-                    years of age is a full-time high school stu-
section (8) of this section ceases, whichever                     dent, benefits shall be paid as provided in
is later.                                                         subsection (8) of this section.

                                                             31
656.206                                 LABOR AND EMPLOYMENT

     (c) In no event shall the total benefits                       §15; 1985 c.108 §1; 1987 c.235 §1; 1991 c.473 §1; 1995 c.332
provided for in this subsection exceed 4.35                         §13; 1999 c.927 §2; 2009 c.171 §1]
times 10 percent of the average weekly wage.                              Note: See notes under 656.202.
If the sum of the individual benefits exceeds                             Note: Section 59, chapter 332, Oregon Laws 1995,
this maximum, the benefit for each depend-                          provides:
ent will be reduced proportionally.                                       Sec. 59. (1) Surviving spouses without children,
                                                                    whose entitlement to benefits under ORS 656.204 is
     (6) If a child is an invalid at the time the                   based on an injury before September 20, 1985, shall have
child otherwise becomes ineligible for bene-                        their benefits supplemented from the Retroactive Re-
fits under this section, the payment to the                         serve. The total benefits payable, comprising the bene-
                                                                    fits in effect on the date of injury plus the Retroactive
child shall continue while the child remains                        Reserve supplement, shall be equal to the total benefits
an invalid. If a person is entitled to payment                      payable under the formula prescribed for surviving
because the person is an invalid, payment                           spouses without children, whose entitlement to benefits
shall terminate when the person ceases to be                        is based on an injury occurring on September 20, 1985.
an invalid.                                                               (2) The provisions of this section apply to benefits
                                                                    for periods beginning on and after the effective date of
     (7) If, at the time of the death of a                          this 1995 Act [June 7, 1995]. [1995 c.332 §59]
worker, the child of the worker or dependent
has become 17 years of age but is under 18                              656.206 Permanent total disability. (1)
years of age, the child or dependent shall re-                      As used in this section:
ceive the payment provided in this section                              (a) “Essential functions” means the pri-
for a period of one year from the date of the                       mary tasks associated with the job.
death. However, if after such period the child                          (b) “Materially improved medically”
is a full-time high school student, benefits                        means an actual change for the better in the
shall be paid as provided in subsection (8) of                      worker’s medical condition that is supported
this section.                                                       by objective findings.
     (8)(a) Benefits under this section which                           (c) “Materially improved vocationally”
are to be paid as provided in this subsection                       means an actual change for the better in the:
shall be paid for the child or dependent until                          (A) Worker’s vocational capability; or
the child or dependent becomes 19 years of
age. If, however, the child or dependent is                             (B) Likelihood that the worker can re-
attending higher education or begins attend-                        turn to work in a gainful and suitable occu-
ing higher education within six months of                           pation.
the date the child or dependent leaves high                             (d) “Permanent total disability” means,
school, benefits shall be paid until the child                      notwithstanding ORS 656.225, the loss, in-
or dependent becomes 23 years of age, ceases                        cluding preexisting disability, of use or func-
attending higher education or graduates from                        tion of any portion of the body which
an approved institute or program, whichever                         permanently incapacitates the worker from
is earlier.                                                         regularly performing work at a gainful and
                                                                    suitable occupation.
     (b) If a child or dependent who is eligible
for benefits under this subsection has no                               (e) “Regularly performing work” means
surviving parent, the child or dependent                            the ability of the worker to discharge the
shall receive 4.35 times 66-2/3 percent of the                      essential functions of the job.
average weekly wage until the child or de-                              (f) “Suitable occupation” means one that
pendent becomes 23 years of age, ceases at-                         the worker has the ability and the training
tending higher education or graduates from                          or experience to perform, or an occupation
an approved institute or program, whichever                         that the worker is able to perform after re-
is earlier.                                                         habilitation.
     (c) As used in this subsection, “attending                         (g) “Wages” means wages as determined
higher education” means regularly attending                         under ORS 656.210.
community college, college or university, or                            (2) When permanent total disability re-
regularly attending a course of vocational or                       sults from the injury, the worker shall re-
technical training designed to prepare the                          ceive during the period of that disability
participant for gainful employment. A child                         compensation benefits equal to 66-2/3 percent
or dependent enrolled in an educational                             of wages not to exceed 100 percent of the
course load of less than one-half of that de-                       average weekly wage nor less than the
termined by the educational facility to con-                        amount of 90 percent of wages a week or the
stitute     “full-time”    enrollment    is   not                   amount of $50, whichever amount is lesser.
“attending higher education.”                                           (3) The worker has the burden of proving
     (9) As used in this section, “average                          permanent total disability status and must
weekly wage” has the meaning for that term                          establish that the worker is willing to seek
provided in ORS 656.211. [Amended by 1957 c.453                     regular gainful employment and that the
§1; 1965 c.285 §22; 1967 c.286 §1; 1969 c.521 §1; 1971 c.415        worker has made reasonable efforts to obtain
§1; 1973 c.497 §2; 1974 c.41 §4; 1981 c.535 §4; 1981 c.874          such employment.

                                                               32
                               WORKERS′ COMPENSATION                                           656.206

     (4) When requested by the Director of the         fit Fund for the amount of permanent total
Department of Consumer and Business Ser-               disability benefits paid after the date of the
vices, a worker who receives permanent total           notice of closure issued under this subsec-
disability benefits shall file on a form pro-          tion.
vided by the director, a sworn statement of                 (b) An insurer or self-insured employer
the worker’s gross annual income for the               must establish that the condition of a worker
preceding year along with such other infor-            who is receiving permanent total disability
mation as the director considers necessary to          benefits has materially improved by a pre-
determine whether the worker regularly per-            ponderance of the evidence presented at
forms work at a gainful and suitable occupa-           hearing.
tion.
                                                            (c) Medical examinations or vocational
     (5) Each insurer shall reexamine period-          evaluations used to support the issuance of
ically each permanent total disability claim           a notice of closure under this subsection
for which the insurer has current payment              must include at least one report in which the
responsibility to determine whether the                author personally observed the worker.
worker has materially improved, either med-
ically or vocationally, and is no longer per-               (d) Notwithstanding section 54 (3), chap-
manently incapacitated from           regularly        ter 2, Oregon Laws 1990, the Hearings Divi-
performing work at a gainful and suitable              sion of the Workers’ Compensation Board
occupation. Reexamination shall be con-                may request the director to order a medical
ducted every two years or at such other                arbiter examination of an injured worker
more frequent interval as the director may             who has requested a hearing under this sub-
prescribe. Reexamination shall include such            section.
medical examinations, vocational evalu-                     (7) A worker who has had permanent
ations, reports and other records as the in-           total disability benefits terminated under this
surer considers necessary or the director              section by an order that has become final is
may require.                                           eligible for vocational assistance pursuant to
                                                       ORS 656.340. Notwithstanding ORS 656.268
     (6)(a) If a worker receiving permanent            (9), if a worker has enrolled in and is ac-
total disability benefits is found to be mate-         tively engaged in a training program, when
rially improved and capable of regularly per-          vocational assistance provided under this
forming work at a gainful and suitable                 section ends or the worker ceases to be en-
occupation, the insurer or self-insured em-            rolled and actively engaged in the training
ployer shall issue a notice of closure pursu-          program, the insurer or the self-insured em-
ant to ORS 656.268. Permanent total                    ployer shall determine the extent of disabil-
disability benefits shall be paid through the          ity pursuant to ORS 656.214.
date of the notice of closure. Notwithstand-
ing ORS 656.268 (5), if a worker objects to a               (8) A worker receiving permanent total
notice of closure issued under this subsec-            disability benefits is required, if requested by
tion, the worker must request a hearing. If            the director, the insurer or the self-insured
the worker requests a hearing on the notice            employer, to submit to a vocational evalu-
of closure before the Hearings Division of             ation at a time reasonably convenient to the
the Workers’ Compensation Board within 30              worker as may be provided by the rules of
days of the date of the notice of closure, the         the director. No more than three evaluations
insurer or self-insured employer shall con-            may be requested except after notification to
tinue payment of permanent total disability            and authorization by the director. If the
benefits until an order of the Hearings Divi-          worker refuses to submit to or obstructs a
sion or a subsequent order affirms the notice          vocational evaluation, the rights of the
of closure or until another order that termi-          worker to compensation shall be suspended
nates the worker’s benefits becomes final. If          with the consent of the director until the
the worker requests a hearing on the notice            evaluation has taken place, and no compen-
of closure more than 30 days from the date             sation shall be payable for the period during
of the notice of closure but before the 60-day         which the worker refused to submit to or
period for requesting a hearing expires, the           obstructed the evaluation. The insurer or
insurer or self-insured employer shall resume          self-insured employer shall pay the costs of
paying permanent total disability benefits             the evaluation and related services that are
from the date the hearing is requested and             reasonably necessary to allow the worker to
shall continue payment of benefits until an            attend the evaluation requested under this
order of the Hearings Division or a subse-             subsection. As used in this subsection, “re-
quent order affirms the notice of closure or           lated services” includes, but is not limited to,
until another order that terminates the                wages, child care, travel, meals and lodging.
worker’s benefits becomes final. If the notice              (9) Notwithstanding any other provisions
of closure is upheld by the Hearings Divi-             of this chapter, if a worker receiving perma-
sion, the insurer or self-insured employer             nent total disability incurs a new compensa-
shall be reimbursed from the Workers’ Bene-            ble injury, the worker’s entitlement to

                                                  33
656.208                       LABOR AND EMPLOYMENT

compensation for the new injury shall be                  (A) Employed continuously for 52 weeks
limited to medical benefits pursuant to ORS           prior to the injury, is an occupation that
656.245 and permanent partial disability ben-         provides weekly wages that are the lesser of
efits for impairment, as determined in the            the most recent federal poverty guidelines
manner set forth in ORS 656.214 (2).                  for a family of three that are applicable to
     (10) When a worker eligible for benefits         Oregon residents and that are published an-
under this section returns to work, if the            nually in the Federal Register by the United
combined total of the worker’s post-injury            States Department of Health and Human
wages plus permanent total disability benefit         Services or 66-2/3 percent of the worker’s
exceeds the worker’s wage at the time of in-          average weekly wages from all employment
jury, the worker’s permanent total disability         for the 52 weeks prior to the date of injury
benefit shall be reduced by the amount the            adjusted by the percentage of change in the
worker’s wages plus statutory permanent               applicable federal poverty guidelines for a
total disability benefit exceeds the worker’s         family of three from the date of injury to the
wage at injury.                                       date of evaluation of the extent of the
                                                      worker’s disability.
     (11) For purposes of this section:
                                                          (B) Not employed continuously for the 52
     (a) A gainful occupation for workers with        weeks prior to the date of injury, but who
a date of injury prior to January 1, 2006, who        were employed for at least four weeks prior
were:                                                 to the date of injury, is an occupation that
     (A) Employed continuously for 52 weeks           provides weekly wages that are the lesser of
prior to the injury, is an occupation that            the most recent federal poverty guidelines
provides weekly wages that are the lesser of          for a family of three that are applicable to
the most recent federal poverty guidelines            Oregon residents and that are published an-
for a family of three that are applicable to          nually in the Federal Register by the United
Oregon residents and that are published an-           States Department of Health and Human
nually in the Federal Register by the United          Services or 66-2/3 percent of the worker’s
States Department of Health and Human                 average weekly wage from all employment
Services or 66-2/3 percent of the worker’s            for the 52 weeks prior to the date of injury
average weekly wages from all employment              based on weeks of actual employment, ex-
for the 52 weeks prior to the date of injury.         cluding any extended periods of unemploy-
                                                      ment and as adjusted by the percentage of
     (B) Not employed continuously for the 52         change in the applicable federal poverty
weeks prior to the date of injury, but who            guidelines for a family of three from the date
were employed for at least four weeks prior           of injury to the date of evaluation of the ex-
to the date of injury, is an occupation that          tent of the worker’s disability.
provides weekly wages that are the lesser of
the most recent federal poverty guidelines                (C) Employed for less than four weeks
for a family of three that are applicable to          prior to the date of injury with no other em-
Oregon residents and that are published an-           ployment during the 52 weeks prior to the
nually in the Federal Register by the United          date of injury, is an occupation that provides
States Department of Health and Human                 weekly wages that are the lesser of the most
Services or 66-2/3 percent of the worker’s            recent federal poverty guidelines for a family
average weekly wage from all employment               of three that are applicable to Oregon resi-
for the 52 weeks prior to the date of injury          dents and that are published annually in the
based on weeks of actual employment, ex-              Federal Register by the United States De-
cluding any extended periods of unemploy-             partment of Health and Human Services or
ment.                                                 66-2/3 percent of the average weekly wages
                                                      intended by the parties at the time of initial
     (C) Employed for less than four weeks            hire adjusted by the percentage of change in
prior to the date of injury with no other em-         the applicable federal poverty guidelines for
ployment during the 52 weeks prior to the             a family of three from the date of injury to
date of injury, is an occupation that provides        the date of evaluation of the extent of the
weekly wages that are the lesser of the most          worker’s disability. [Amended by 1953 c.670 §4; 1955
recent federal poverty guidelines for a family        c.553 §1; 1957 c.452 §1; 1959 c.517 §1; 1965 c.285 §22a; 1969
of three that are applicable to Oregon resi-          c.500 §2; 1973 c.614 §2; 1974 c.41 §5; 1975 c.506 §1; 1977
dents and that are published annually in the          c.430 §1; 1981 c.874 §12; 1983 c.816 §3; 1995 c.332 §14; 1999
Federal Register by the United States De-             c.313 §13; 1999 c.927 §3; 2003 c.657 §§5,6; 2005 c.461 §§1,2;
                                                      2007 c.274 §3]
partment of Health and Human Services or
66-2/3 percent of the average weekly wages                 Note: See notes under 656.202.
intended by the parties at the time of initial             656.207 [1959 c.589 §2; repealed by 1965 c.285 §95]
hire.                                                     656.208 Death during permanent total
     (b) A gainful occupation for workers with        disability. (1) If the injured worker dies
a date of injury on or after January 1, 2006,         during the period of permanent total disabil-
who were:                                             ity, whatever the cause of death, leaving a

                                                 34
                                        WORKERS′ COMPENSATION                                                656.210

spouse or any dependents listed in ORS                               wages, but not more than 133 percent of the
656.204, payment shall be made in the same                           average weekly wage nor less than the
manner and in the same amounts as provided                           amount of 90 percent of wages a week or the
in ORS 656.204.                                                      amount of $50 a week, whichever amount is
    (2) If any surviving spouse to whom the                          less. Notwithstanding the limitation imposed
provisions of this section apply remarries,                          by this subsection, an injured worker who is
the payments on account of a child or chil-                          not otherwise eligible to receive an increase
dren shall continue to be made to the child                          in benefits for the fiscal year in which com-
or children the same as before the remar-                            pensation is paid shall have the benefits in-
riage. [Amended by 1957 c.453 §2; 1959 c.450 §2; 1965                creased each fiscal year by the percentage
c.285 §22b; 1969 c.521 §2; 1971 c.415 §2; 1973 c.497 §3; 1975        which the applicable average weekly wage
c.497 §2; 1985 c.108 §2]                                             has increased since the previous fiscal year.
     656.209 Offsetting permanent total                                   (2)(a) For the purpose of this section, the
disability benefits against Social Security                          weekly wage of workers shall be ascertained:
benefits. (1) With the authorization of the                               (A) For workers employed in one job at
Department of Consumer and Business Ser-                             the time of injury, by multiplying the daily
vices, the amount of any permanent total                             wage the worker was receiving by the num-
disability benefits payable to an injured                            ber of days per week that the worker was
worker shall be reduced by the amount of                             regularly employed; or
any disability benefits the worker receives
from federal Social Security.                                             (B) For workers employed in more than
                                                                     one job at the time of injury, by adding all
     (a) If the benefit amount to which the                          earnings the worker was receiving from all
worker is entitled pursuant to this chapter                          subject employment.
exceeds the worker’s federal disability bene-
fit limitation determined pursuant to 42                                  (b) Notwithstanding paragraph (a)(B) of
U.S.C. 424(a), the reduction in worker’s com-                        this subsection, the weekly wage calculated
pensation benefits authorized by this subsec-                        under paragraph (a)(A) of this subsection
tion shall not be administered in such                               shall be used for workers employed in more
manner as to lower the amount the worker                             than one job at the time of injury unless the
would have received pursuant to this chapter                         insurer, self-insured employer or assigned
had such reduction not been made.                                    claims agent for a noncomplying employer
                                                                     receives:
     (b) If the benefit amount to which the
worker is entitled pursuant to this chapter                               (A) Within 30 days of receipt of the ini-
is less than the worker’s federal disability                         tial claim, notice that the worker was em-
benefit limitation determined pursuant to 42                         ployed in more than one job with a subject
U.S.C. 424(a), the reduction in worker’s                             employer at the time of injury; and
compensation benefits authorized by this                                  (B) Within 60 days of the date of mailing
subsection shall not be administered in such                         a request for verification, verifiable doc-
manner as to lower the amount of combined                            umentation of wages from such additional
benefits the worker receives below the fed-                          employment.
eral benefit limitation.                                                  (c) Notwithstanding ORS 656.005 (7)(c),
     (2) No reduction of permanent total disa-                       an injury to a worker employed in more than
bility benefits shall be made pursuant to this                       one job at the time of injury is not disabling
section unless authorized by the department.                         if no temporary disability benefits are pay-
     (3) No reduction of benefits shall be au-                       able for time lost from the job at injury.
thorized pursuant to this section except upon                        Claim costs incurred as a result of supple-
actual receipt of federal Social Security dis-                       mental temporary disability benefits paid as
ability benefits by the injured worker.                              provided in subsection (5) of this section may
                                                                     not be included in any data used for
     (4) The effective date of the operation of                      ratemaking or individual employer rating or
any offset provided in this section shall be                         dividend calculations by an insurer, a rating
the date established in the authorization                            organization licensed pursuant to ORS chap-
provided in subsection (1) of this section,                          ter 737, the State Accident Insurance Fund
whether the authorization was issued prior                           Corporation or the Department of Consumer
to or subsequent to May 8, 1979. [1977 c.430                         and Business Services if the injured worker
§5; 1979 c.117 §3]                                                   is not eligible for permanent disability bene-
                                                                     fits or temporary disability benefits for time
    656.210 Temporary total disability;                              lost from the job at injury.
payment during medical treatment;
election; rules. (1) When the total disability                            (d) For the purpose of this section:
is only temporary, the worker shall receive                               (A) The benefits of a worker who incurs
during the period of that total disability                           an injury shall be based on the wage of the
compensation equal to 66-2/3 percent of                              worker at the time of injury.

                                                                35
656.211                        LABOR AND EMPLOYMENT

    (B) The benefits of a worker who incurs            section (2)(a)(A) of this section had the
an occupational disease shall be based on the          worker been employed in only one job at the
wage of the worker at the time there is                time of injury. Such reimbursement shall in-
medical verification that the worker is una-           clude an administrative fee payable to the
ble to work because of the disability caused           insurer or self-insured employer pursuant to
by the occupational disease. If the worker is          rules adopted by the director.
not working at the time that there is medical              (b) If the insurer or self-insured employer
verification that the worker is unable to              elects not to pay the supplemental temporary
work because of the disability caused by the           disability benefits for a worker employed in
occupational disease, the benefits shall be            more than one job at the time of injury, the
based on the wage of the worker at the                 director shall either administer and pay the
worker’s last regular employment.                      supplemental benefits directly or shall assign
    (e) As used in this subsection, “regularly         responsibility to administer and process the
employed” means actual employment or                   payment to a paying agent selected by the
availability for such employment. For work-            director.
ers not regularly employed and for workers                 (6) The director shall adopt rules for the
with no remuneration or whose remunera-                payment and reimbursement of supplemental
tion is not based solely upon daily or weekly          temporary disability benefits under this sec-
wages, the Director of the Department of               tion. [Amended by 1955 c.713 §1; 1957 c.452 §2; 1959
Consumer and Business Services, by rule,               c.517   §2; 1965 c.285 §22c; 1969 c.183 §1; 1969 c.500 §1;   1971
may prescribe methods for establishing the             c.204    §1; 1973 c.614 §1; 1974 c.41 §6; 1975 c.507 §1;     1975
worker’s weekly wage.                                  c.663   §1; 1985 c.507 §3; 1987 c.521 §1; 1987 c.713 §7;     1995
                                                       c.332   §15; 2001 c.865 §3; 2003 c.760 §1; 2007 c.241 §10;   2009
    (3) No disability payment is recoverable           c.313   §1]
for temporary total or partial disability suf-                 Note: See notes under 656.202.
fered during the first three calendar days af-             656.211 “Average weekly wage” de-
ter the worker leaves work or loses wages              fined. As used in ORS 656.210 (1), “average
as a result of the compensable injury unless           weekly wage” means the average weekly
the worker is totally disabled after the injury        wage of workers in covered employment in
and the total disability continues for a period        Oregon, as determined by the Employment
of 14 consecutive days or unless the worker            Department, for the last quarter of the cal-
is admitted as an inpatient to a hospital              endar year preceding the fiscal year in which
within 14 days of the first onset of total dis-        compensation is paid and as computed by the
ability. If the worker leaves work or loses            Employment Department as of May 15 of
wages on the day of the injury due to the              each year. [1973 c.614 §4; 1990 c.2 §6]
injury, that day shall be considered the first
                                                               Note: See notes under 656.202.
day of the three-day period.
    (4) When an injured worker with an ac-                  656.212 Temporary partial disability.
cepted disabling compensable injury is re-             When the disability is or becomes partial
quired to leave work for a period of four              only and is temporary in character:
hours or more to receive medical consulta-                  (1) No disability payment is recoverable
tion, examination or treatment with regard             for temporary disability suffered during the
to the compensable injury, the worker shall            first three calendar days after the worker
receive temporary disability benefits calcu-           leaves work or loses wages as a result of the
lated pursuant to ORS 656.212 for the period           compensable injury. If the worker leaves
during which the worker is absent, until               work or loses wages on the day of the injury
such time as the worker is determined to be            due to the injury, that day shall be consid-
medically stationary. However, benefits un-            ered the first day of the three-day period.
der this subsection are not payable if wages                (2) The payment of temporary total disa-
are paid for the period of absence by the              bility pursuant to ORS 656.210 shall cease
employer.                                              and the worker shall receive that proportion
    (5)(a) The insurer of the employer at in-          of the payments provided for temporary total
jury or the self-insured employer at injury,           disability which the loss of wages bears to
may elect to be responsible for payment of             the wage used to calculate temporary total
supplemental temporary disability benefits to          disability pursuant to ORS 656.210. [Amended
                                                       by 1953 c.672 §2; 1995 c.332 §16; amendments by 1995
a worker employed in more than one job at              c.332 §16a repealed by 1999 c.6 §1; 1999 c.538 §1]
the time of injury. In accordance with rules                Note: See notes under 656.202.
adopted by the director, if the worker’s
weekly wage is determined under subsection                 656.214 Permanent partial disability.
(2)(a)(B) of this section, the insurer or self-        (1) As used in this section:
insured employer shall be reimbursed from                  (a) “Impairment” means the loss of use
the Workers’ Benefit Fund for the amount               or function of a body part or system due to
of temporary disability benefits paid that ex-         the compensable industrial injury or occupa-
ceeds the amount payable pursuant to sub-              tional disease determined in accordance with

                                                  36
                              WORKERS′ COMPENSATION                                           656.214

the standards provided under ORS 656.726,             pressed as a percentage of the whole person.
expressed as a percentage of the whole per-           Impairment benefits for the following body
son.                                                  parts may not exceed:
     (b) “Loss” includes permanent and com-               (a) For the loss of one arm at or above
plete or partial loss of use.                         the elbow joint, 60 percent.
     (c) “Permanent partial disability” means:            (b) For the loss of one forearm at or
     (A) Permanent impairment resulting from          above the wrist joint, or the loss of one hand,
the compensable industrial injury or occupa-          47 percent.
tional disease; or                                        (c) For the loss of one leg, at or above
     (B) Permanent impairment and work dis-           the knee joint, 47 percent.
ability resulting from the compensable in-                (d) For the loss of one foot, 42 percent.
dustrial injury or occupational disease.
                                                          (e) For the loss of a great toe, six per-
     (d) “Regular work” means the job the             cent; for loss of any other toe, one percent.
worker held at injury.
                                                          (f) For partial or complete loss of hearing
     (e) “Work disability” means impairment           in one ear, that proportion of 19 percent
modified by age, education and adaptability           which the loss bears to normal monaural
to perform a given job.                               hearing.
     (2) When permanent partial disability re-            (g) For partial or complete loss of hear-
sults from a compensable injury or occupa-            ing in both ears, that proportion of 60 per-
tional disease, benefits shall be awarded as          cent which the combined binaural hearing
follows:                                              loss bears to normal combined binaural
     (a) If the worker has been released to           hearing. For the purpose of this paragraph,
regular work by the attending physician or            combined binaural hearing loss shall be cal-
nurse practitioner authorized to provide              culated by taking seven times the hearing
compensable medical services under ORS                loss in the less damaged ear plus the hearing
656.245 or has returned to regular work at            loss in the more damaged ear and dividing
the job held at the time of injury, the award         that amount by eight. In the case of individ-
shall be for impairment only. Impairment              uals with compensable hearing loss involving
shall be determined in accordance with the            both ears, either the method of calculation
standards provided by the Director of the             for monaural hearing loss or that for com-
Department of Consumer and Business Ser-              bined binaural hearing loss shall be used,
vices pursuant to ORS 656.726 (4). Impair-            depending upon which allows the greater
ment benefits are determined by multiplying           award of impairment.
the impairment value times 100 times the                  (h) For partial or complete loss of vision
average weekly wage as defined by ORS                 of one eye, that proportion of 31 percent
656.005.                                              which the loss of monocular vision bears to
     (b) If the worker has not been released          normal monocular vision. For the purposes
to regular work by the attending physician            of this paragraph, the term “normal
or nurse practitioner authorized to provide           monocular vision” shall be considered as
compensable medical services under ORS                Snellen 20/20 for distance and Snellen 14/14
656.245 or has not returned to regular work           for near vision with full sensory field.
at the job held at the time of injury, the                (i) For partial loss of vision in both eyes,
award shall be for impairment and work dis-           that proportion of 94 percent which the
ability. Work disability shall be determined
in accordance with the standards provided by          combined binocular visual loss bears to
the director pursuant to ORS 656.726 (4).             normal combined binocular vision. In all
Impairment shall be determined as provided            cases of partial loss of sight, the percentage
in paragraph (a) of this subsection. Work             of said loss shall be measured with maximum
disability benefits shall be determined by            correction. For the purpose of this para-
multiplying the impairment value, as modi-            graph, combined binocular visual loss shall
fied by the factors of age, education and             be calculated by taking three times the vis-
adaptability to perform a given job, times 150        ual loss in the less damaged eye plus the
times the worker’s weekly wage for the job            visual loss in the more damaged eye and di-
at injury as calculated under ORS 656.210             viding that amount by four. In the case of
(2). The factor for the worker’s weekly wage          individuals with compensable visual loss in-
used for the determination of the work disa-          volving both eyes, either the method of cal-
bility may be no more than 133 percent or             culation for monocular visual loss or that for
no less than 50 percent of the average                combined binocular visual loss shall be used,
weekly wage as defined in ORS 656.005.                depending upon which allows the greater
     (3) Impairment benefits awarded under            award of impairment.
subsection (2)(a) of this section shall be ex-            (j) For the loss of a thumb, 15 percent.

                                                 37
656.214                                 LABOR AND EMPLOYMENT

     (k) For the loss of a first finger, eight                            (A) When the number of degrees stated against the
percent; of a second finger, seven percent; of                       disability as provided in ORS 656.214 (5) is equal to or
                                                                     less than 96, 24 percent of the average weekly wage
a third finger, three percent; of a fourth fin-                      times the number of degrees.
ger, two percent.                                                         (B) When the number of degrees stated against the
     (4) The loss of one phalange of a thumb,                        disability as provided in ORS 656.214 (5) is more than
including the adjacent epiphyseal region of                          96 but equal to or less than 192, 24 percent of the av-
                                                                     erage weekly wage times 96 plus 28 percent of the av-
the proximal phalange, is considered equal to                        erage weekly wage times the number of degrees in
the loss of one-half of a thumb. The loss of                         excess of 96.
one phalange of a finger, including the adja-                             (C) When the number of degrees stated against the
cent epiphyseal region of the middle                                 disability as provided in ORS 656.214 (5) is more than
phalange, is considered equal to the loss of                         192, 24 percent of the average weekly wage times 96 plus
one-half of a finger. The loss of two                                28 percent of the average weekly wage times 96 plus 71
                                                                     percent of the average weekly wage times the number
phalanges of a finger, including the adjacent                        of degrees in excess of 192.
epiphyseal region of the proximal phalange
                                                                          (b) However, as annual changes in the average
of a finger, is considered equal to the loss of                      weekly wage occur, the amount of the average weekly
75 percent of a finger. The loss of more than                        wage used in calculation of the benefit amount pursuant
one phalange of a thumb, excluding the                               to this subsection shall not be more than five percent
epiphyseal region of the proximal phalange,                          larger than the amount used in the previous year.
is considered equal to the loss of an entire                              (3) Benefits referred to in this section shall be paid
thumb. The loss of more than two phalanges                           on the basis of the benefit amount in effect on the date
                                                                     of injury.
of a finger, excluding the epiphyseal region
of the proximal phalange of a finger, is con-                             (4) As used in this section, “average weekly wage”
                                                                     has the meaning for that term provided in ORS 656.211.
sidered equal to the loss of an entire finger.                       [1991 c.745 §2; 1995 c.332 §18]
A proportionate loss of use may be allowed
for an uninjured finger or thumb where there
has been a loss of effective opposition.                                     (Benefits, January 1, 1996, to
                                                                                  December 31, 1997)
     (5) A proportionate loss of the hand may
                                                                          Note: Section 20, chapter 332, Oregon Laws 1995,
be allowed where impairment extends to                               provides:
more than one digit, in lieu of ratings on the
                                                                          Sec. 20. (1) Notwithstanding the method of calcu-
individual digits.                                                   lating permanent partial disability benefit amounts
     (6) All permanent disability contemplates                       provided in ORS 656.214 (2), for injuries occurring dur-
                                                                     ing the period beginning January 1, 1996, and ending
future waxing and waning of symptoms of                              December 31, 1997, the worker shall receive $420 for
the condition. The results of waxing and                             each degree stated against the disability as provided in
waning of symptoms may include, but are not                          ORS 656.214 (2) to (4).
limited to, loss of earning capacity, periods                             (2) Notwithstanding the method of calculating per-
of temporary total or temporary partial disa-                        manent partial disability benefit amounts provided in
bility, or inpatient hospitalization. [Amended                       ORS 656.214 (5), for injuries occurring during the period
by 1953 c.669 §4; 1955 c.716 §1; 1957 c.449 §1; 1965 c.285           beginning January 1, 1996, and ending December 31,
§22d; 1967 c.529 §1; 1971 c.178 §1; 1977 c.557 §1; 1979 c.839        1997, the worker shall receive an amount equal to:
§27; 1981 c.535 §27; 1985 c.506 §3; 1987 c.884 §36; 1990 c.2              (a) When the number of degrees stated against the
§7; 1995 c.332 §17; 1999 c.6 §7; 1999 c.876 §2; 2001 c.865           disability as provided in ORS 656.214 (5) is equal to or
§6; 2003 c.657 §§1,2; 2005 c.653 §§3,4; 2007 c.274 §1]               less than 64, $130 times the number of degrees.
     Note: See notes under 656.202.                                       (b) When the number of degrees stated against the
                                                                     disability as provided in ORS 656.214 (5) is more than
                                                                     64 but equal to or less than 160, $130 times 64 plus $230
         (Benefits, January 1, 1992, to                              times the number of degrees in excess of 64.
              December 31, 1995)                                          (c) When the number of degrees stated against the
     Note: Section 2, chapter 745, Oregon Laws 1991,                 disability as provided in ORS 656.214 (5) is more than
provides:                                                            160, $130 times 64 plus $230 times 96 plus $625 times the
                                                                     number of degrees in excess of 160.
     Sec. 2. (1) Notwithstanding the method of calcu-
lating permanent partial disability benefit amounts                       (3) Benefits referred to in this section shall be paid
provided in ORS 656.214 (2), for injuries occurring dur-             on the basis of the benefit amount in effect on the date
ing the period beginning January 1, 1992, and ending                 of injury. [1995 c.332 §20; 1997 c.380 §1]
December 31, 1995, the worker shall receive an amount
equal to 71 percent of the average weekly wage times
the number of degrees stated against the disability as                       (Benefits, January 1, 1998, to
provided in ORS 656.214 (2) to (4). However, as annual                             October 23, 1999)
changes in the average weekly wage occur, the amount                      Note: Section 3, chapter 380, Oregon Laws 1997,
of the average weekly wage used in calculation of the                provides:
benefit amount pursuant to this subsection shall not be
more than five percent larger than the amount used in                     Sec. 3. (1) Notwithstanding the method of calcu-
the previous year.                                                   lating permanent partial disability benefit amounts
                                                                     provided in ORS 656.214 (2), for injuries occurring dur-
     (2)(a) Notwithstanding the method of calculating                ing the period beginning January 1, 1998, and ending
permanent partial disability benefit amounts provided                on the effective date of this 1999 Act [October 23, 1999],
in ORS 656.214 (5), for injuries occurring during the                the worker shall receive $454 for each degree stated
period beginning January 1, 1992, and ending December                against the disability as provided in ORS 656.214 (2) to
31, 1995, the worker shall receive an amount equal to:               (4).

                                                                38
                                       WORKERS′ COMPENSATION                                                        656.216

     (2) Notwithstanding the method of calculating per-            to any injured worker during the period beginning
manent partial disability benefit amounts provided in              January 1, 2000, and ending on the effective date of this
ORS 656.214 (6), for injuries occurring during the period          2001 Act in such a manner as to reduce the benefits
beginning January 1, 1998, and ending on the effective             awarded to that worker pursuant to section 6b of this
date of this 1999 Act, the worker shall receive an                 2001 Act. [2001 c.865 §6a]
amount equal to:                                                         Sec. 6b. (1) Notwithstanding any other provision
     (a) When the number of degrees stated against the             of this chapter [ORS chapter 656], for injuries occurring
disability as provided in ORS 656.214 (6) is equal to or           in the period beginning January 1, 2000, and ending on
less than 64, $137.80 times the number of degrees.                 the effective date of this 2001 Act [July 30, 2001], and
     (b) When the number of degrees stated against the             for which awards have been made during that period,
disability as provided in ORS 656.214 (6) is more than             the worker shall receive an amount equal to:
64 but equal to or less than 160, $137.80 times 64 plus                  (a) When the number of degrees stated against the
$243.80 times the number of degrees in excess of 64.               disability as provided in ORS 656.214 (6) is equal to or
                                                                   less than 64, $153.00 times the number of degrees.
     (c) When the number of degrees stated against the
disability as provided in ORS 656.214 (6) is more than                   (b) When the number of degrees stated against the
160, $137.80 times 64 plus $243.80 times 96 plus $662.50           disability as provided in ORS 656.214 (6) is more than
times the number of degrees in excess of 160.                      64 but equal to or less than 160, $267.44 times 64 plus
                                                                   $153.00 times the number of degrees in excess of 64.
     (3) Benefits referred to in this section shall be paid
on the basis of the benefit amount in effect on the date                 (c) When the number of degrees stated against the
of injury. [1997 c.380 §3; 1999 c.6 §6]                            disability as provided in ORS 656.214 (6) is more than
                                                                   160, $153.00 times 64 plus $267.44 times 96 plus $709.79
                                                                   times the number of degrees in excess of 160.
        (Benefits, January 1, 2000, to                                   (2) Notwithstanding any other provision of this
             December 31, 2004)                                    chapter, for injuries occurring in the period beginning
     Note: Section 9, chapter 6, Oregon Laws 1999, pro-            January 1, 2000, and ending on the effective date of this
vides:                                                             2001 Act, and for which awards are made after the ef-
                                                                   fective date of this 2001 Act, the worker shall receive
     Sec. 9. (1) Notwithstanding the method of calcu-              payments as provided in ORS 656.214, as amended by
lating permanent partial disability benefit amounts                section 6 of this 2001 Act. [2001 c.865 §6b]
provided in ORS 656.214 (2), for injuries occurring dur-
ing the period beginning January 1, 2000, and ending
December 31, 2004, the worker shall receive $511.29 for                    (Benefits, January 1, 2002, to
each degree stated against the disability as provided in                        December 31, 2004)
ORS 656.214 (2) to (4).
                                                                        Note: Section 6c, chapter 865, Oregon Laws 2001,
     (2) Notwithstanding the method of calculating per-            provides:
manent partial disability benefit amounts provided in
ORS 656.214 (6), for injuries occurring during the period               Sec. 6c. (1) Notwithstanding the method of calcu-
beginning January 1, 2000, and ending December 31,                 lating permanent partial disability benefit amounts
2004, the worker shall receive an amount equal to:                 provided in ORS 656.214 (2), for injuries occurring dur-
                                                                   ing the period beginning January 1, 2002, and ending
     (a) When the number of degrees stated against the             December 31, 2004, the worker shall receive $559.00 for
disability as provided in ORS 656.214 (6) is equal to or           each degree stated against the disability as provided in
less than 64, $153.00 times the number of degrees.                 ORS 656.214 (2) to (4).
     (b) When the number of degrees stated against the                  (2) Notwithstanding the method of calculating per-
disability as provided in ORS 656.214 (6) is more than             manent partial disability benefit amounts provided in
64 but equal to or less than 160, $267.44 times 64 plus            ORS 656.214 (6), for injuries occurring during the period
$153.00 times the number of degrees in excess of 64.               beginning January 1, 2002, and ending December 31,
     (c) When the number of degrees stated against the             2004, the worker shall receive an amount equal to:
disability as provided in ORS 656.214 (6) is more than                  (a) When the number of degrees stated against the
160, $153.00 times 64 plus $267.44 times 96 plus $709.79           disability as provided in ORS 656.214 (6) is equal to or
times the number of degrees in excess of 160.                      less than 64, $184.00 times the number of degrees.
     (3) Benefits referred to in this section shall be paid             (b) When the number of degrees stated against the
on the basis of the benefit amount in effect on the date           disability as provided in ORS 656.214 (6) is more than
of injury. [1999 c.6 §9]                                           64 but equal to or less than 160, $184.00 times 64 plus
     Note: Sections 6a and 6b, chapter 865, Oregon                 $321.00 times the number of degrees in excess of 64.
Laws 2001, modify benefit amounts paid under section                    (c) When the number of degrees stated against the
9, chapter 6, Oregon Laws 1999, for injuries occurring             disability as provided in ORS 656.214 (6) is more than
during the period beginning January 1, 2000, and ending            160, $184.00 times 64 plus $321.00 times 96 plus $748.00
July 30, 2001. For benefit amounts paid for injuries oc-           times the number of degrees in excess of 160.
curring during the period beginning July 31, 2001, and                  (3) Benefits referred to in this section shall be paid
ending December 31, 2001, see 656.214.                             on the basis of the benefit amount in effect on the date
     Note: Sections 6a and 6b, chapter 865, Oregon                 of injury. [2001 c.865 §6c]
Laws 2001, provide:                                                     656.215 [1987 c.884 §36b; 1990 c.2 §8; repealed by
     Sec. 6a. (1) Workers injured between January 1,               1991 c.745 §3]
2000, and the effective date of this 2001 Act [July 30,
2001] who were awarded permanent partial disability                     656.216 Permanent partial disability;
benefits before the effective date of this 2001 Act shall          method of payment; effect of prior re-
be paid by the Director of the Department of Consumer              ceipt of temporary disability payments.
and Business Services from the Workers’ Benefit Fund               (1) Compensation for permanent partial disa-
an amount equal to the amount that benefits calculated
pursuant to section 6b of this 2001 Act are less than the          bility may be paid monthly at 4.35 times the
benefits calculated pursuant to ORS 656.214, as amended            rate per week as provided for compensation
by section 6 of this 2001 Act.                                     for temporary total disability at the time the
     (2) The amendments to ORS 656.214 by section 6 of             determination is made. In no case shall such
this 2001 Act may not be applied to the benefits awarded           payments be less than $108.75 per month.

                                                              39
656.218                                 LABOR AND EMPLOYMENT

    (2) If a worker, who is entitled to com-                             656.224 [Amended by 1953 c.674 §13; repealed by
pensation for a permanent disability, has re-                        1959 c.517 §5]
ceived compensation for a temporary                                      656.225 Compensability of certain pre-
disability by reason of the same injury, com-                        existing conditions. In accepted injury or
pensation for such permanent disability shall                        occupational disease claims, disability solely
be in addition to the payments which the                             caused by or medical services solely directed
worker has received on account of such                               to a worker’s preexisting condition are not
temporary disability. [Amended by 1967 c.529 §2;                     compensable unless:
1973 c.459 §1; 1974 c.41 §7]
                                                                         (1) In occupational disease or injury
    656.218 Continuance of permanent                                 claims other than those involving a preexist-
partial disability payments to survivors;                            ing mental disorder, work conditions or
effect of death prior to final claim dispo-                          events constitute the major contributing
sition. (1) In case of the death of a worker                         cause of a pathological worsening of the
entitled to compensation, whether eligibility                        preexisting condition.
therefor or the amount thereof have been
determined, payments shall be made for the                               (2) In occupational disease or injury
period during which the worker, if surviving,                        claims involving a preexisting mental disor-
would have been entitled thereto.                                    der, work conditions or events constitute the
                                                                     major contributing cause of an actual wors-
    (2) If the worker’s death occurs prior to                        ening of the preexisting condition and not
issuance of a notice of closure under ORS                            just of its symptoms.
656.268, the insurer or the self-insured em-
ployer shall determine compensation for per-                             (3) In medical service claims, the medical
manent partial disability, if any.                                   service is prescribed to treat a change in the
                                                                     preexisting condition as specified in subsec-
    (3) If the worker has filed a request for                        tion (1) or (2) of this section, and not merely
a hearing pursuant to ORS 656.283 and death                          as an incident to the treatment of a compen-
occurs prior to the final disposition of the                         sable injury or occupational disease. [1995
request, the persons described in subsection                         c.332 §3]
(5) of this section shall be entitled to pursue
the matter to final determination of all is-                              656.226 Cohabitants and children enti-
sues presented by the request for hearing.                           tled to compensation. In case an unmarried
                                                                     man and an unmarried woman have
    (4) If the worker dies before filing a re-                       cohabited in this state as husband and wife
quest for hearing, the persons described in                          for over one year prior to the date of an ac-
subsection (5) of this section shall be entitled                     cidental injury received by one or the other
to file a request for hearing and to pursue                          as a subject worker, and children are living
the matter to final determination as to all                          as a result of that relation, the surviving
issues presented by the request for hearing.                         cohabitant and the children are entitled to
    (5) The payments provided in this section                        compensation under this chapter the same as
shall be made to the persons who would have                          if the man and woman had been legally mar-
been entitled to receive death benefits if the                       ried. [Amended by 1983 c.816 §4]
injury causing the disability had been fatal.
In the absence of persons so entitled, the                                656.228 Payments directly to benefici-
unpaid balance of the award shall be paid to                         ary or custodian. (1) If compensation is
the worker’s estate.                                                 payable for the benefit of a beneficiary other
                                                                     than the injured worker, the insurer or the
    (6) This section does not entitle any per-                       self-insured employer may segregate any ad-
son to double payments on account of the                             ditional compensation payable on account of
death of a worker and a continuation of                              that beneficiary and make payment directly
payments for permanent partial disability, or                        to the beneficiary, if sui juris; otherwise, to
to a greater sum in the aggregate than if the                        the guardian or person having custody of the
injury had been fatal. [Amended by 1959 c.450 §3;                    beneficiary.
1973 c.355 §1; 1975 c.497 §3; 1981 c.854 §11; 1987 c.884 §16;
1999 c.313 §4; 2009 c.171 §2]                                             (2) Compensation paid to an injured
     656.220 [Amended by 1957 c.718 §4; 1965 c.285 §24;              worker who is a minor prior to receipt of
repealed by 1975 c.505 §1]                                           notice by the insurer or the self-insured em-
    656.222 Compensation for additional                              ployer from the parent or guardian of the
accident. Should a further accident occur to                         minor that the parent or guardian claims the
a worker who is receiving compensation for                           compensation shall discharge the obligation
a temporary disability, or who has been paid                         to pay compensation to the extent of such
or awarded compensation for a permanent                              payment. [Amended by 1957 c.477 §1; 1965 c.285 §25;
                                                                     1981 c.854 §12]
disability, the award of compensation for
such further accident shall be made with re-                             656.230 Lump sum award payments.
gard to the combined effect of the injuries                          (1) When a worker has been awarded com-
of the worker and past receipt of money for                          pensation for permanent partial disability,
such disabilities.                                                   and the worker requests payment of all or

                                                                40
                                        WORKERS′ COMPENSATION                                                        656.234

part of the award in a lump sum payment,                                  656.234 Compensation not assignable
the insurer shall make the payment re-                               nor to pass by operation of law; certain
quested unless the:                                                  benefits subject to support obligations. (1)
    (a) Worker has not waived the right to                           No moneys payable under this chapter on
appeal the adequacy of the award;                                    account of injuries or death are subject to
    (b) Award has not become final by oper-                          assignment prior to their receipt by the ben-
ation of law;                                                        eficiary entitled thereto, nor shall they pass
                                                                     by operation of law. All such moneys and the
    (c) Payment of compensation has been                             right to receive them are exempt from sei-
stayed pending a request for hearing or re-                          zure on execution, attachment or garnish-
view under ORS 656.313; or                                           ment, or by the process of any court.
    (d) Worker is enrolled and actively en-
gaged in training according to rules adopted                              (2) Notwithstanding any other provision
pursuant to ORS 656.340 and 656.726.                                 of this section:
    (2) Any unpaid balance of the award not                               (a) Moneys payable under ORS 656.210
paid in a lump sum payment shall be paid                             and 656.212 are subject to an order to en-
pursuant to ORS 656.216.                                             force child support obligations, and spousal
    (3) In all cases where the award for per-                        support when there is a current support ob-
manent partial disability does not exceed                            ligation for a joint child of the obligated
$6,000, the insurer or the self-insured em-                          parent and the person to whom spousal sup-
ployer shall pay all of the award to the                             port is owed, under ORS 25.378; and
worker in a lump sum. [Amended by 1957 c.574                              (b) Moneys payable under ORS 656.206,
§4; 1959 c.449 §1; 1965 c.285 §23a; 1973 c.221 §1; 1981 c.854
§13; 1983 c.816 §15; 1995 c.332 §22; 2007 c.270 §1]                  656.214, 656.236 and 656.289 (4) are subject to
                                                                     an order to enforce child support obligations
    656.232 Payments to aliens residing                              under ORS 25.378.
outside of United States. (1) If a benefici-
ary is an alien residing outside of the United                            (3) Notwithstanding the provisions of
States or its dependencies, payment of the                           ORS 25.378 and 25.414, the amount of child
sums due such beneficiary may, in the dis-                           support obligation subject to enforcement
cretion of the Director of the Department of                         may not exceed:
Consumer and Business Services, be made to
the consul general of the country in which                                (a) One-fourth of moneys paid under ORS
such beneficiary resides on behalf of the                            656.210 and 656.212 or the amount of the
beneficiary. The receipt of the consul general                       current support to be paid as continuing
to the director for the amounts thus paid                            support, whichever is less, or, if there is no
shall be a full and sufficient receipt for the                       current support obligation and the withhold-
payment of the funds thus due the benefici-                          ing is for arrearages only, 15 percent of the
ary.                                                                 moneys paid under ORS 656.210 and 656.212
    (2) If a beneficiary is an alien residing                        or the amount previously paid as current
outside of the United States or its dependen-                        support, whichever is less;
cies, the director may, in lieu of awarding                               (b) One-fourth of moneys paid in a lump
such beneficiary compensation in the amount                          sum award under ORS 656.210 and 656.212
provided by this chapter, award such benefi-                         when the award becomes final by operation
ciary such lesser sum by way of compensa-                            of law or waiver of the right to appeal its
tion which, according to the conditions and
costs of living in the place of residence of                         adequacy;
such beneficiary will, in the opinion of the                              (c) One-fourth of moneys paid under ORS
director, maintain the beneficiary in a like                         656.206, 656.214 and 656.236; or
degree of comfort as a beneficiary of the
same class residing in this state and receiv-                             (d) One-fourth of the net proceeds paid to
ing the full compensation authorized by this                         the worker in a disputed claim settlement
chapter. The director shall determine the                            under ORS 656.289 (4).
amount of compensation benefits upon the                                  (4) Notwithstanding any other provision
basis of the rate of exchange between the                            of this section, when withholding is only for
United States and any foreign country as                             arrearages assigned to this or another state,
determined by the Federal Reserve Bank as                            the Department of Justice may set a lesser
of January 1 and July 1 of the year when                             amount to be withheld if the obligor demon-
paid.                                                                strates the withholding is prejudicial to the
    (3) All benefit rights shall be canceled                         obligor’s ability to provide for a child the
upon the commencement of a state of war                              obligor has a duty to support. [Amended by 1967
between the United States and the country                            c.468 §1; 1989 c.520 §2; 1991 c.758 §3; 1993 c.48 §1; 1993
of a beneficiary’s domicile.                                         c.798 §22; 1995 c.272 §2; 2001 c.455 §26; 2003 c.73 §70]




                                                                41
656.236                        LABOR AND EMPLOYMENT

     656.236 Compromise and release of                 with the Department of Consumer and Busi-
claim matters except for medical bene-                 ness Services a copy of each disposition that
fits; approval by Administrative Law                   the Administrative Law Judge who mediated
Judge or board; approval by director for               the agreement or the board approves. If the
certain reserve reimbursements; re-                    Administrative Law Judge who mediated the
striction on charging costs to workers;                agreement or the board does not approve a
restriction on joinder as parties for re-              disposition, the Administrative Law Judge or
sponsibility determinations. (1)(a) The par-           the board shall enter an order setting aside
ties to a claim, by agreement, may make                the disposition.
such disposition of any or all matters re-                  (3) Unless the terms of the disposition
garding a claim, except for medical services,          expressly provide otherwise, no payments,
as the parties consider reasonable, subject to         except for medical services, pursuant to a
such terms and conditions as the Workers’              disposition are payable until the Administra-
Compensation Board may prescribe. For the              tive Law Judge who mediated the agreement
purposes of this section, “matters regarding           or the board approves the disposition.
a claim” includes the disposition of a                      (4) If a worker is represented by an at-
beneficiary’s independent claim for compen-            torney in the negotiation of a disposition
sation under this chapter. Unless otherwise            under this section, the insurer or self-insured
specified, a disposition resolves all matters          employer shall pay to the attorney a fee pre-
and all rights to compensation, attorney fees          scribed by the Administrative Law Judge
and penalties potentially arising out of               who mediated the agreement or the board.
claims, except medical services, regardless of
the conditions stated in the agreement. Each                (5) Except as otherwise provided in this
disposition shall be filed with the board for          chapter, none of the cost of workers’ com-
approval by the Administrative Law Judge               pensation to employers under this chapter,
who mediated the agreement or by the board.            or in the court review of any claim therefor,
If the worker is not represented by an attor-          shall be charged to a subject worker.
ney, the worker may, at the worker’s re-                    (6) Any claim in which the parties enter
quest, personally appear before the board.             into a disposition under this section shall not
Submission of a disposition shall stay all             be eligible for reimbursement of expenditures
other proceedings and payment obligations,             authorized by law from the Workers’ Benefit
except for medical services, on that claim.            Fund without the prior approval of the Di-
The disposition shall be approved in a final           rector of the Department of Consumer and
order unless:                                          Business Services.
     (A) The Administrative Law Judge who                   (7) Insurers or self-insured employers
mediated the agreement or the board finds              who are parties to an approved claim dispo-
the proposed disposition is unreasonable as            sition agreement under this section shall not
a matter of law;                                       be joined as parties in subsequent pro-
     (B) The Administrative Law Judge who              ceedings under this chapter to determine re-
mediated the agreement or the board finds              sponsibility for payment for any matter for
the proposed disposition is the result of an           which disposition is made by the agreement.
intentional misrepresentation of material              Insurers or self-insured employers may be
fact; or                                               joined as parties in subsequent proceedings
                                                       under this chapter to determine responsibil-
     (C) Within 30 days of submitting the dis-         ity for medical services for claim conditions
position for approval, the worker, the insurer         for which disposition is made by an approved
or self-insured employer requests the Admin-           claim disposition agreement, but no order in
istrative Law Judge who mediated the agree-            any subsequent proceedings may alter the
ment or the board to disapprove the                    obligations of an insurer or self-insured em-
disposition.                                           ployer set forth in an approved claims dispo-
     (b) Notwithstanding paragraph (a)(C) of           sition agreement, except as those obligations
this subsection, a disposition may provide for         concern medical services.
waiver of the provisions of that subparagraph               (8) No release by a worker or beneficiary
if the worker was represented by an attorney           of any rights under this chapter is valid, ex-
at the time the worker signed the disposi-             cept pursuant to a claim disposition agree-
tion.                                                  ment under this section or a release
     (2) Notwithstanding any other provision           pursuant to ORS 656.593.
of this chapter, an order approving disposi-                (9) Notwithstanding ORS 656.005 (21), as
tion of a claim pursuant to this section is not        used in this section, “party” does not include
subject to review. However, an order disap-            a noncomplying employer. [1965 c.285 §28; 1985
proving a disposition is subject to review             c.212 §5; 1987 c.250 §4; 1990 c.2 §9; 1995 c.332 §24; 1995
pursuant to ORS 656.298. The board shall file          c.641 §18; 1997 c.639 §5; 2007 c.17 §2; 2007 c.491 §1]

                                                  42
                                     WORKERS′ COMPENSATION                                             656.245

    656.240 Deduction of benefits from                               (C) Services necessary to administer pre-
sick leave payments paid to employees.                          scription medication or monitor the adminis-
Notwithstanding any other law, an employer,                     tration of prescription medication.
with the consent of the worker, may deduct                           (D) Prosthetic devices, braces and sup-
from any sick leave payments made to an                         ports.
individual amounts equal to benefits received
                                                                     (E) Services necessary to monitor the
by the individual under this chapter with re-                   status, replacement or repair of prosthetic
spect to the same injury that gave rise to the                  devices, braces and supports.
sick leave. However, the deduction of sick
leave shall not exceed an amount determined                          (F) Services provided pursuant to an ac-
by taking the worker’s daily wage for the                       cepted claim for aggravation under ORS
period less daily time loss benefits received                   656.273.
under this chapter divided by the worker’s                           (G) Services provided pursuant to an or-
daily wage. [1969 c.398 §2; 1983 c.816 §5]                      der issued under ORS 656.278.
     656.242 [Amended by 1959 c.589 §1; repealed by 1965             (H) Services that are necessary to diag-
c.285 §95]                                                      nose the worker’s condition.
     656.244 [Amended by 1959 c.378 §1; repealed by 1965             (I) Life-preserving modalities similar to
c.285 §95]
                                                                insulin therapy, dialysis and transfusions.
    656.245 Medical services to be pro-                              (J) With the approval of the insurer or
vided; services by providers not members                        self-insured employer, palliative care that the
of managed care organizations; authoriz-                        worker’s attending physician referred to in
ing temporary disability compensation                           ORS 656.005 (12)(b)(A) prescribes and that is
and making finding of impairment for                            necessary to enable the worker to continue
disability rating purposes by certain pro-                      current employment or a vocational training
viders; review of disputed claims for                           program. If the insurer or self-insured em-
medical services; rules. (1)(a) For every                       ployer does not approve, the attending physi-
compensable injury, the insurer or the self-                    cian or the worker may request approval
insured employer shall cause to be provided                     from the Director of the Department of Con-
medical services for conditions caused in                       sumer and Business Services for such treat-
material part by the injury for such period                     ment. The director may order a medical
as the nature of the injury or the process of                   review by a physician or panel of physicians
the recovery requires, subject to the limita-                   pursuant to ORS 656.327 (3) to aid in the re-
tions in ORS 656.225, including such medical                    view of such treatment. The decision of the
services as may be required after a determi-                    director is subject to review under ORS
nation of permanent disability. In addition,                    656.704.
for consequential and combined conditions                            (K) With the approval of the director,
described in ORS 656.005 (7), the insurer or                    curative care arising from a generally recog-
the self-insured employer shall cause to be                     nized, nonexperimental advance in medical
provided only those medical services directed                   science since the worker’s claim was closed
to medical conditions caused in major part                      that is highly likely to improve the worker’s
by the injury.                                                  condition and that is otherwise justified by
                                                                the circumstances of the claim. The decision
    (b) Compensable medical services shall                      of the director is subject to review under
include medical, surgical, hospital, nursing,                   ORS 656.704.
ambulances and other related services, and                           (L) Curative care provided to a worker to
drugs, medicine, crutches and prosthetic ap-                    stabilize a temporary and acute waxing and
pliances, braces and supports and where                         waning of symptoms of the worker’s condi-
necessary, physical restorative services. A                     tion.
pharmacist or dispensing physician shall dis-
                                                                     (d) When the medically stationary date in
pense generic drugs to the worker in accor-                     a disabling claim is established by the in-
dance with ORS 689.515. The duty to provide                     surer or self-insured employer and is not
such medical services continues for the life                    based on the findings of the attending physi-
of the worker.                                                  cian, the insurer or self-insured employer is
    (c) Notwithstanding any other provision                     responsible for reimbursement to affected
of this chapter, medical services after the                     medical service providers for otherwise com-
worker’s condition is medically stationary                      pensable services rendered until the insurer
are not compensable except for the following:                   or self-insured employer provides written no-
                                                                tice to the attending physician of the
    (A) Services provided to a worker who                       worker’s medically stationary status.
has been determined to be permanently and
                                                                     (e) Except for services provided under a
totally disabled.                                               managed care contract, out-of-pocket expense
    (B) Prescription medications.                               reimbursement to receive care from the at-

                                                           43
656.245                         LABOR AND EMPLOYMENT

tending physician or nurse practitioner au-             sure may make findings regarding the
thorized to provide compensable medical                 worker’s impairment for the purpose of eval-
services under this section shall not exceed            uating the worker’s disability.
the amount required to seek care from an                    (D) Notwithstanding subparagraphs (A)
appropriate nurse practitioner or attending             and (B) of this paragraph, a nurse practi-
physician of the same specialty who is in a             tioner licensed under ORS 678.375 to 678.390:
medical community geographically closer to
the worker’s home. For the purposes of this                 (i) May provide compensable medical ser-
paragraph, all physicians and nurse practi-             vices for 90 days from the date of the first
tioners within a metropolitan area are con-             visit on the claim;
sidered to be part of the same medical                      (ii) May authorize the payment of tempo-
community.                                              rary disability benefits for a period not to
     (2)(a) The worker may choose an attend-            exceed 60 days from the date of the first visit
ing doctor, physician or nurse practitioner             on the initial claim; and
within the State of Oregon. The worker may                  (iii) When an injured worker treating
choose the initial attending physician or               with a nurse practitioner authorized to pro-
nurse practitioner and may subsequently                 vide compensable services under this section
change attending physician or nurse practi-             becomes medically stationary within the
tioner two times without approval from the              90-day period in which the nurse practitioner
director. If the worker thereafter selects an-          is authorized to treat the injured worker,
other attending physician or nurse practi-              shall refer the injured worker to a physician
tioner, the insurer or self-insured employer            qualified to be an attending physician as de-
may require the director’s approval of the              fined in ORS 656.005 for the purpose of mak-
selection. The decision of the director is              ing     findings   regarding    the    worker’s
subject to review under ORS 656.704. The                impairment for the purpose of evaluating the
worker also may choose an attending doctor              worker’s disability. If a worker returns to
or physician in another country or in any               the nurse practitioner after initial claim clo-
state or territory or possession of the United          sure for evaluation of a possible worsening
States with the prior approval of the insurer           of the worker’s condition, the nurse practi-
or self-insured employer.                               tioner shall refer the worker to an attending
     (b) A medical service provider who is not          physician and the insurer shall compensate
a member of a managed care organization is              the nurse practitioner for the examination
subject to the following provisions:                    performed.
     (A) A medical service provider who is not              (3) Notwithstanding any other provision
qualified to be an attending physician may              of this chapter, the director, by rule, upon
provide compensable medical service to an               the advice of the committee created by ORS
injured worker for a period of 30 days from             656.794 and upon the advice of the profes-
the date of the first visit on the initial claim        sional licensing boards of practitioners af-
or for 12 visits, whichever first occurs, with-         fected by the rule, may exclude from
out the authorization of an attending physi-            compensability any medical treatment the
cian. Thereafter, medical service provided to           director finds to be unscientific, unproven,
an injured worker without the written au-               outmoded or experimental. The decision of
thorization of an attending physician is not            the director is subject to review under ORS
compensable.                                            656.704.
     (B) A medical service provider who is not              (4) Notwithstanding subsection (2)(a) of
an attending physician cannot authorize the             this section, when a self-insured employer or
payment of temporary disability compensa-               the insurer of an employer contracts with a
tion. However, an emergency room physician              managed care organization certified pursuant
who is not authorized to serve as an attend-            to ORS 656.260 for medical services required
ing physician under ORS 656.005 (12)(c) may             by this chapter to be provided to injured
authorize temporary disability benefits for a           workers:
maximum of 14 days. A medical service pro-                  (a) Those workers who are subject to the
vider qualified to serve as an attending phy-           contract shall receive medical services in the
sician under ORS 656.005 (12)(b)(B) may                 manner prescribed in the contract. Workers
authorize the payment of temporary disabil-             subject to the contract include those who are
ity compensation for a period not to exceed             receiving medical treatment for an accepted
30 days from the date of the first visit on the         compensable injury or occupational disease,
initial claim.                                          regardless of the date of injury or medically
     (C) Except as otherwise provided in this           stationary status, on or after the effective
chapter, only a physician qualified to serve            date of the contract. If the managed care or-
as an attending physician under ORS 656.005             ganization determines that the change in
(12)(b)(A) or (B)(i) who is serving as the at-          provider would be medically detrimental to
tending physician at the time of claim clo-             the worker, the worker shall not become

                                                   44
                               WORKERS′ COMPENSATION                                                     656.245

subject to the contract until the worker is             will be paid as provided in ORS 656.248, even
found to be medically stationary, the worker            if the claim is denied, until the worker re-
changes physicians or nurse practitioners, or           ceives actual notice of the denial or until
the managed care organization determines                three days after the denial is mailed, which-
that the change in provider is no longer                ever event first occurs. The worker may
medically detrimental, whichever event first            elect to receive care from a primary care
occurs. A worker becomes subject to the                 physician or nurse practitioner authorized to
contract upon the worker’s receipt of actual            provide compensable medical services under
notice of the worker’s enrollment in the                this section who agrees to the conditions of
managed care organization, or upon the third            ORS 656.260 (4)(g). However, guarantee of
day after the notice was sent by regular mail           payment is not required by the insurer or
by the insurer or self-insured employer,                self-insured employer if this election is made.
whichever event first occurs. A worker shall                 (C) If the insurer or self-insured employer
not be subject to a contract after it expires           does not give notice that the worker is re-
or terminates without renewal. A worker                 quired to receive treatment from the man-
may continue to treat with the attending                aged care organization, the insurer or
physician or nurse practitioner authorized to           self-insured employer is under no obligation
provide compensable medical services under              to pay for services received by the worker
this section under an expired or terminated             unless the claim is later accepted.
managed care organization contract if the                    (D) If the claim is denied, the worker
physician or nurse practitioner agrees to               may receive medical services after the date
comply with the rules, terms and conditions             of denial from sources other than the man-
regarding services performed under any sub-             aged care organization until the denial is re-
sequent managed care organization contract              versed. Reasonable and necessary medical
to which the worker is subject. A worker                services received from sources other than the
shall not be subject to a contract if the               managed care organization after the date of
worker’s primary residence is more than 100             claim denial must be paid as provided in ORS
miles       outside    the      managed     care        656.248 by the insurer or self-insured em-
organization’s certified geographical area.             ployer if the claim is finally determined to
Each such contract must comply with the                 be compensable.
certification standards provided in ORS                      (5) A nurse practitioner licensed under
656.260. However, a worker may receive im-              ORS 678.375 to 678.390 who is not a member
mediate emergency medical treatment that is             of the managed care organization, is author-
compensable from a medical service provider             ized to provide the same level of services as
who is not a member of the managed care                 a primary care physician as established by
organization. Insurers or self-insured em-              ORS 656.260 (4), if at the time the worker is
ployers who contract with a managed care                enrolled in the managed care organization,
organization for medical services shall give            the nurse practitioner maintains the
notice to the workers of eligible medical ser-          worker’s medical records and with whom the
vice providers and such other information               worker has a documented history of treat-
regarding the contract and manner of re-                ment, if that nurse practitioner agrees to re-
ceiving medical services as the director may            fer the worker to the managed care
prescribe. Notwithstanding any provision of             organization for any specialized treatment,
law or rule to the contrary, a worker of a              including physical therapy, to be furnished
noncomplying employer is considered to be               by another provider that the worker may re-
subject to a contract between the State Ac-             quire and if that nurse practitioner agrees to
cident Insurance Fund Corporation as a pro-             comply with all the rules, terms and condi-
cessing agent or the assigned claims agent              tions regarding services performed by the
and a managed care organization.                        managed care organization.
     (b)(A) For initial or aggravation claims                (6) Subject to the provisions of ORS
filed after June 7, 1995, the insurer or self-          656.704, if a claim for medical services is
insured employer may require an injured                 disapproved, the injured worker, insurer or
worker, on a case-by-case basis, immediately            self-insured employer may request adminis-
to receive medical services from the managed            trative review by the director pursuant to
care organization.                                      ORS 656.260 or 656.327. [1965 c.285 §23; 1979 c.839
     (B) If the insurer or self-insured employer        §32; 1981 c.535 §31; 1981 c.854 §14; 1985 c.739 §4; 1987
                                                        c.884 §24; 1990 c.2 §10; 1995 c.332 §25; amendments by
gives notice that the worker is required to             1995 c.332 §25a repealed by 1999 c.6 §1; 1999 c.6 §10; 1999
receive treatment from the managed care or-             c.582 §12; 1999 c.868 §1; 1999 c.926 §1; 2003 c.811 §§3,4;
ganization, the insurer or self-insured em-             2005 c.26 §§3,4; 2007 c.252 §§3,4; 2007 c.270 §§2,3; 2007
ployer must guarantee that any reasonable               c.365 §2a; 2007 c.505 §§3,4; 2009 c.32 §1; 2009 c.36 §1]
and necessary services so received, that are                Note: See notes under 656.202.
not otherwise covered by health insurance,                  656.246 [Repealed by 1965 c.285 §95]

                                                   45
656.247                        LABOR AND EMPLOYMENT

     656.247 Payment for medical services                  (4)(a) If the claim in which medical ser-
prior to claim acceptance or denial; re-               vices are provided under subsection (1) of
view of disputed services; duty of health              this section is accepted, the insurer or self-
benefit plan to pay for certain medical                insured employer shall make payment for
services in denied claim. (1) Except for               such medical services subject to the limita-
medical services provided to workers subject           tions and conditions of this chapter.
to ORS 656.245 (4)(b)(B), payment for medical              (b) If the claim in which medical services
services provided to a subject worker in re-           are provided under subsection (1) of this sec-
sponse to an initial claim for a work-related          tion is denied and a health benefit plan pro-
injury or occupational disease from the date           vides benefits to the worker, the health
of the employer’s notice or knowledge of the           benefit plan shall be the first payer of the
claim until the date the claim is accepted or          expenses for medical services according to
denied shall be payable in accordance with             the terms, conditions and benefits of the
subsection (4) of this section if the expenses         plan. Except as provided by subsection (2) of
are for:                                               this section, after payment by the health
     (a) Diagnostic services required to iden-         benefit plan, the workers’ compensation in-
tify appropriate treatment or to prevent dis-          surer or self-insured employer shall pay any
ability;                                               balance remaining for such services subject
     (b) Medication required to alleviate pain;        to the limitations and conditions of this
or                                                     chapter.
                                                           (c) As used in this subsection, “health
     (c) Services required to stabilize the            benefit plan” has the meaning given that
worker’s claimed condition and to prevent              term in ORS 743.730.
further disability.
                                                           (5) An insurer or self-insured employer
     (2) Notwithstanding subsection (1) of this        may recover expenses for medical services
section, no payment shall be due from the              paid under subsection (1) of this section as
insurer or self-insured employer if the in-            an overpayment as provided by ORS 656.268
surer or self-insured employer denies the              (13)(a). [2001 c.865 §14; 2005 c.26 §5]
claim within 14 days of the date of the
employer’s notice or knowledge of the claim.              Note: See notes under 656.202.

     (3)(a) Disputes about whether the medical             656.248 Medical service fee schedules;
services provided to treat the claimed work-           basis of fees; application to service pro-
related injury or occupational disease under           vided by managed care organization; res-
subsection (1) of this section are excessive,          olution of fee disputes; rules. (1) The
inappropriate or ineffectual or are consistent         Director of the Department of Consumer and
with the criteria in subsection (1) of this            Business Services, in compliance with ORS
section shall be resolved by the Director of           656.794 and ORS chapter 183, shall promul-
the Department of Consumer and Business                gate rules for developing and publishing fee
Services. The director may order a medical             schedules for medical services provided un-
review by a physician or panel of physicians           der this chapter. These schedules shall rep-
pursuant to ORS 656.327 (3) to aid in the re-          resent the reimbursement generally received
view of such services. If a party is dissatis-         for the services provided. Where applicable,
fied with the order of the director, the               and to the extent the director determines
dissatisfied party may request review under            practicable, these fee schedules shall be
ORS 656.704 within 60 days of the date of the          based upon any one or all of the following:
director’s order. The order of the director                (a) The current procedural codes and rel-
may be modified only if it is not supported            ative value units of the Department of
by substantial evidence in the record or if it         Health and Human Services Medicare Fee
reflects an error of law.                              Schedules for all medical service provider
     (b) Disputes about the amount of the fee          services included therein;
or nonpayment of bills for medical treatment               (b) The average rates of fee schedules of
and services pursuant to this section shall            the Oregon health insurance industry;
be resolved pursuant to ORS 656.248.                       (c) A reasonable rate of markup for the
     (c) Except as provided in subsection (2)          sale of medical devices or other medical ser-
of this section, when a claim is settled pur-          vices;
suant to ORS 656.289 (4), all medical services             (d) A commonly used and accepted med-
payable under subsection (1) of this section           ical service fee schedule; or
that are provided on or before the date of
denial shall be paid in accordance with sub-               (e) The actual cost of providing medical
section (4) of this section. The insurer or            services.
self-insured employer shall notify each af-                (2) Medical fees equal to or less than the
fected service provider of the results of the          fee schedules published under this section
settlement.                                            shall be paid when the vendor submits a

                                                  46
                               WORKERS′ COMPENSATION                                                      656.252

billing for medical services. In no event shall              (9) The director may, by rule, establish a
that portion of a medical fee be paid that              fee schedule for reimbursement for specific
exceeds the schedules.                                  hospital services based upon the actual cost
     (3) In no event shall a provider charge            of providing the services.
more than the provider charges to the gen-                   (10) A medical service provider is not
eral public.                                            authorized to charge a fee for preparing or
     (4) If no fee has been established for a           submitting a medical report form required by
given service or procedure the director may,            the director under this chapter.
in compliance with ORS 656.794 and ORS                       (11) Notwithstanding any other provision
chapter 183, promulgate a reasonable rate,              of this section, fee schedules for medical
which shall be the same within any given                services and hospital services shall apply to
area for all primary health care providers to           those services performed by a managed care
be paid for that service or procedure.                  organization certified pursuant to ORS
     (5) At the request of the director and in          656.260, unless otherwise provided in the
the method and manner prescribed by rule,               managed care contract.
all providers of health insurance, as defined                (12) When a dispute exists between an
by ORS 731.162, shall cooperate and consult             injured worker, insurer or self-insured em-
with the director in providing information              ployer and a medical service provider re-
reasonably necessary and available to de-               garding either the amount of the fee or
velop the fee schedules prescribed under                nonpayment of bills for compensable medical
subsection (1) of this section. A provider              services, notwithstanding any other provision
shall not be required to provide information            of this chapter, the injured worker, insurer,
or data that the provider deems proprietary             self-insured employer or medical service pro-
or confidential. However, the information               vider may request administrative review by
provided shall be considered proprietary and            the director. The decision of the director is
shall not be released by the director. The              subject to review under ORS 656.704.
director shall not require such information                  (13) The director may exclude hospitals
from a health insurance provider more than              defined in ORS 442.470 from imposition of a
once per year and shall reimburse the                   fee schedule authorized by this section upon
provider’s costs for providing the required             a determination of economic necessity.
information.                                            [Amended by 1965 c.285 §26; 1969 c.611 §1; 1971 c.329 §1;
     (6) Notwithstanding subsection (1) or (2)          1981 c.535 §5; 1983 c.816 §6; 1985 c.107 §1; 1985 c.739 §5;
                                                        1987 c.884 §42; 1990 c.2 §14; 1995 c.332 §26; 1999 c.233 §1;
of this section, such rates or fees provided in         2005 c.26 §6; 2009 c.36 §2]
subsections (1) and (2) of this section shall
                                                            Note: See notes under 656.202.
be adequate to insure at all times to the in-
jured workers the standard of services and                  656.250 Limitation on compensability
care intended by this chapter.                          of physical therapist services. A physical
     (7) The director shall update the schedule         therapist shall not provide compensable ser-
required by subsection (1) of this section an-          vices to injured workers governed by this
nually. As appropriate and applicable, the              chapter except as allowed by a governing
update shall be based upon:                             managed care organization contract or as
                                                        authorized by the worker’s attending physi-
     (a) A statistically valid survey by the di-        cian or nurse practitioner authorized to pro-
rector of medical service fees or markups;              vide compensable medical services under
     (b) That information provided to the di-           ORS 656.245. [1993 c.211 §6; 2003 c.811 §§5,6; 2007
rector by any person or state agency having             c.365 §3]
access to medical service fee information;                  656.252 Medical report regulation;
     (c) That information provided to the di-           rules; duties of attending physician or
rector pursuant to subsection (5) of this sec-          nurse practitioner; disclosure of informa-
tion; or                                                tion; notice of changing attending physi-
                                                        cian or nurse practitioner; copies of
     (d) The annual percentage increase or              medical service billings to be furnished to
decrease in the physician’s services compo-             worker. (1) In order to ensure the prompt
nent of the national Consumer Price Index               and correct reporting and payment of com-
published by the Bureau of Labor Statistics             pensation in compensable injuries, the Di-
of the United States Department of Labor.               rector of the Department of Consumer and
     (8) The director is prohibited from adopt-         Business Services shall make rules governing
ing or administering rules which treat ma-              audits of medical service bills and reports by
nipulation,     when      performed    by    an         attending and consulting physicians and
osteopathic physician, as anything other than           other personnel of all medical information
a separate therapeutic procedure which is               relevant to the determination of a claim to
paid in addition to other services or office            the injured worker’s representative, the
visits.                                                 worker’s employer, the employer’s insurer

                                                   47
656.254                       LABOR AND EMPLOYMENT

and the Department of Consumer and Busi-                   (d) After a claim has been closed, advise
ness Services. Such rules shall include, but          the insurer or self-insured employer within
not necessarily be limited to:                        five days after the treatment is resumed or
    (a) Requiring attending physicians and            the reopening of a claim is recommended.
nurse practitioners authorized to provide             The attending physician under this para-
compensable medical services under ORS                graph need not be the same attending physi-
656.245 to make the insurer or self-insured           cian who released the worker when the
employer a first report of injury within 72           claim was closed.
hours after the first service rendered.                    (3) In promulgating the rules regarding
    (b) Requiring attending physicians and            medical reporting the director may consult
nurse practitioners authorized to provide             and confer with physicians and members of
compensable medical services under ORS                medical associations and societies.
656.245 to submit follow-up reports within                 (4) No person who reports medical infor-
specified time limits or upon the request of          mation to a person referred to in subsection
an interested party.                                  (1) of this section, in accordance with de-
    (c) Requiring examining physicians and            partment rules, shall incur any legal liability
nurse practitioners authorized to provide             for the disclosure of such information.
compensable medical services under ORS                     (5) Whenever an injured worker changes
656.245 to submit their reports, and to whom,         attending physicians or nurse practitioners
within a specified time.                              authorized to provide compensable medical
    (d) Such other reporting requirements as          services under ORS 656.245, the newly se-
the director may deem necessary to insure             lected attending physician or nurse practi-
that payments of compensation be prompt               tioner shall so notify the responsible insurer
and that all interested parties be given in-          or self-insured employer not later than five
formation necessary to the prompt determi-            days after the date of the change or the date
nation of claims.                                     of first treatment. Every attending physician
                                                      or nurse practitioner authorized to provide
    (e) Requiring insurers and self-insured           compensable medical services under ORS
employers to audit billings for all medical           656.245 who refers a worker to a consulting
services, including hospital services.                physician promptly shall notify the responsi-
    (2) The attending physician or nurse              ble insurer or self-insured employer of the
practitioner authorized to provide compensa-          referral.
ble medical services under ORS 656.245 shall               (6) A provider of medical services, in-
do the following:                                     cluding hospital services, that submits a bill-
    (a) Cooperate with the insurer or self-           ing to the insurer or self-insured employer
insured employer to expedite diagnostic and           shall also submit a copy of the billing to the
treatment procedures and with efforts to re-          worker for whom the service was performed
turn injured workers to appropriate work.             after receipt from the injured worker of a
    (b) Advise the insurer or self-insured em-        written request for such a copy. [1967 c.626
                                                      §§2,5; 1979 c.839 §3; 1981 c.535 §6; 1981 c.874 §17; 1987
ployer of the anticipated date for release of         c.884 §3; 1995 c.332 §26a; 2001 c.865 §14a; 2003 c.811 §§7,8;
the injured worker to return to employment,           2007 c.365 §4]
the anticipated date that the worker will be
medically stationary, and the next appoint-               656.254 Medical report forms; sanc-
ment date. Except when the attending physi-           tions; procedure for declaring health care
cian or nurse practitioner authorized to              practitioner ineligible for workers’ com-
provide compensable medical services under            pensation reimbursement. (1) The Director
ORS 656.245 has previously indicated that             of the Department of Consumer and Business
temporary disability will not exceed 14 days,         Services shall establish medical report forms,
the insurer or self-insured employer may re-          in duplicate snap-outs where applicable, to
quest a medical report every 15 days, and the         be used by insurers, self-insured employers
attending physician or nurse practitioner             and physicians, including in such forms in-
shall forward such reports.                           formation necessary to establish facts re-
                                                      quired in the determination of the claim.
    (c) Advise the insurer or self-insured em-
ployer within five days of the date the in-               (2) The director shall establish sanctions
jured worker is released to return to work.           for the enforcement of medical reporting re-
Under no circumstances shall the physician            quirements. Such sanctions may include, but
or nurse practitioner authorized to provide           are not limited to, forfeiture of fees and pen-
compensable medical services under ORS                alty not to exceed $1,000 for each occur-
656.245 notify the insurer or employer of the         rence.
worker’s release to return to work without                (3) If the director finds that a health care
notifying the worker at the same time.                practitioner has:

                                                 48
                                       WORKERS′ COMPENSATION                                                 656.260

    (a) Been found, pursuant to ORS 656.327,                        ployer. Within 60 days after receiving a bill-
to have failed to comply with rules adopted                         ing, the insurer or self-insured employer
pursuant to this chapter regarding the per-                         shall pay for all vocational assistance ser-
formance of medical services for injured                            vices performed, including those services
workers or to have provided medical treat-                          performed in good faith without knowledge
ment that is excessive, inappropriate or inef-                      that the worker’s eligibility to receive voca-
fectual, the director may impose a sanction                         tional assistance has been terminated or that
that includes forfeiture of fees and a penalty                      the worker has withdrawn or is otherwise
not to exceed $1,000 for each occurrence. If                        ineligible for vocational assistance. [1985 c.600
the failure to comply or perform is repeated                        §18]
and willful, the director may declare the                               656.260 Certification procedure for
health care practitioner ineligible for re-                         managed health care provider; peer re-
imbursement for treating workers’ compen-                           view, quality assurance, service utiliza-
sation claimants for a period not to exceed                         tion and contract review; confidentiality
three years.                                                        of certain information; immunity from
    (b) Had the health care practitioner’s li-                      liability; rules; medical service dispute
cense revoked or suspended by the                                   resolution. (1) Any health care provider or
practitioner’s professional licensing board for                     group of medical service providers may make
a violation of that profession’s ethical stan-                      written application to the Director of the
dards, the director may declare the health                          Department of Consumer and Business Ser-
care practitioner ineligible for reimburse-                         vices to become certified to provide managed
ment for treating workers’ compensation                             care to injured workers for injuries and dis-
claimants for a period not to exceed three                          eases compensable under this chapter. How-
years or the period the practitioner’s license                      ever, nothing in this section authorizes an
is suspended or revoked, whichever period is                        organization that is formed, owned or oper-
the longer.                                                         ated by an insurer or employer other than a
    (c) Engaged in any course of conduct                            health care provider to become certified to
demonstrated to be dangerous to the health                          provide managed care.
or safety of a workers’ compensation claim-                             (2) Each application for certification
ant, the director may impose a sanction that                        shall be accompanied by a reasonable fee
includes forfeiture of fees and a penalty not                       prescribed by the director. A certificate is
to exceed $1,000 for each occurrence. If the                        valid for such period as the director may
conduct is repeated and willful, the director                       prescribe unless sooner revoked or sus-
may declare the health care practitioner in-                        pended.
eligible for reimbursement for treating                                 (3) Application for certification shall be
workers’ compensation claimants for a period                        made in such form and manner and shall set
not to exceed three years.                                          forth such information regarding the pro-
    (4) Any declaration that a health care                          posed plan for providing services as the di-
practitioner is ineligible to receive re-                           rector may prescribe. The information shall
imbursement under this chapter shall not                            include, but not be limited to:
otherwise interfere with or impair treatment                            (a) A list of the names of all individuals
of any person by the health care practitioner.                      who will provide services under the managed
    (5) ORS 656.735 (4) to (6) and 656.740 also                     care plan, together with appropriate evidence
apply to orders and penalties assessed under                        of compliance with any licensing or certi-
this section. [1967 c.626 §§3,4; 1975 c.556 §40; 1979               fication requirements for that individual to
c.839 §30; 1981 c.854 §15; 1987 c.233 §1; 1987 c.884 §27;           practice in this state.
1995 c.94 §2; 1997 c.249 §200; 2003 c.170 §12; 2005 c.26 §7]
                                                                        (b) A description of the times, places and
    656.256 Considerations for rules re-                            manner of providing services under the plan.
garding certain rural hospitals. Whenever                               (c) A description of the times, places and
the Workers’ Compensation Division of the                           manner of providing other related optional
Department of Consumer and Business Ser-                            services the applicants wish to provide.
vices adopts any rule affecting a type A or
B rural hospital, the division shall take into                          (d) Satisfactory evidence of ability to
consideration the risk assessment formula                           comply with any financial requirements to
set forth in ORS 442.520 (2). [1991 c.947 §19]                      insure delivery of service in accordance with
                                                                    the plan which the director may prescribe.
    656.258 Vocational assistance service
payments. The insurer or self-insured em-                               (4) The director shall certify a health
ployer shall pay a vocational assistance pro-                       care provider or group of medical service
vider for all vocational assistance services,                       providers to provide managed care under a
including the cost of an evaluation to deter-                       plan if the director finds that the plan:
mine whether a worker is eligible for voca-                             (a) Proposes to provide medical and
tional assistance, that are performed at the                        health care services required by this chapter
request of the insurer or self-insured em-                          in a manner that:

                                                               49
656.260                         LABOR AND EMPLOYMENT

     (A) Meets quality, continuity and other            assurance activities between insurers, self-
treatment standards adopted by the health               insured employers, workers and medical and
care provider or group of medical service               health care service providers, as required
providers in accordance with processes ap-              under the certified plan.
proved by the director; and                                 (E) “Contract review” means the methods
     (B) Is timely, effective and convenient for        and processes whereby the managed care or-
the worker.                                             ganization monitors and enforces its con-
     (b) Subject to any other provision of law,         tracts with participating providers for
does not discriminate against or exclude                matters other than matters enumerated in
from participation in the plan any category             subparagraphs (A), (B) and (C) of this para-
of medical service providers and includes an            graph.
adequate number of each category of medical                 (e) Provides a program involving cooper-
service providers to give workers adequate              ative efforts by the workers, the employer
flexibility to choose medical service provid-           and the managed care organizations to pro-
ers from among those individuals who pro-               mote workplace health and safety consulta-
vide services under the plan.         However,          tive and other services and early return to
nothing in the requirements of this para-               work for injured workers.
graph shall affect the provisions of ORS
441.055 relating to the granting of medical                 (f) Provides a timely and accurate method
staff privileges.                                       of reporting to the director necessary infor-
                                                        mation regarding medical and health care
     (c) Provides appropriate financial incen-          service cost and utilization to enable the di-
tives to reduce service costs and utilization           rector to determine the effectiveness of the
without sacrificing the quality of service.             plan.
     (d) Provides adequate methods of peer                  (g) Authorizes workers to receive com-
review, service utilization review, quality as-         pensable medical treatment from a primary
surance, contract review and dispute resolu-            care physician who is not a member of the
tion to ensure appropriate treatment or to              managed care organization, but who main-
prevent inappropriate or excessive treatment,           tains the worker’s medical records and with
to exclude from participation in the plan               whom the worker has a documented history
those individuals who violate these treatment           of treatment, if that primary care physician
standards and to provide for the resolution             agrees to refer the worker to the managed
of such medical disputes as the director con-           care organization for any specialized treat-
siders appropriate. A majority of the mem-              ment, including physical therapy, to be fur-
bers of each peer review, quality assurance,            nished by another provider that the worker
service utilization and contract review com-            may require and if that primary care physi-
mittee shall be physicians licensed to prac-            cian agrees to comply with all the rules,
tice medicine by the Oregon Medical Board.              terms and conditions regarding services per-
As used in this paragraph:                              formed by the managed care organization.
     (A) “Peer review” means evaluation or              Nothing in this paragraph is intended to
review of the performance of colleagues by a            limit the worker’s right to change primary
panel with similar types and degrees of ex-             care physicians prior to the filing of a
pertise. Peer review requires participation of          workers’ compensation claim. As used in this
at least three physicians prior to final deter-         paragraph, “primary care physician” means
mination.                                               a physician who is qualified to be an attend-
                                                        ing physician referred to in ORS 656.005
     (B) “Service utilization review” means             (12)(b)(A) and who is a family practitioner, a
evaluation and determination of the reason-             general practitioner or an internal medicine
ableness, necessity and appropriateness of a            practitioner.
worker’s use of medical care resources and
the provision of any needed assistance to                   (h) Provides a written explanation for
clinician or member, or both, to ensure ap-             denial of participation in the managed care
propriate use of resources. “Service utiliza-           organization plan to any licensed health care
tion review” includes prior authorization,              provider that has been denied participation
concurrent review, retrospective review, dis-           in the managed care organization plan.
charge planning and case management activ-                  (i) Does not prohibit the injured worker’s
ities.                                                  attending physician from advocating for
     (C) “Quality assurance” means activities           medical services and temporary disability
to safeguard or improve the quality of med-             benefits for the injured worker that are sup-
ical care by assessing the quality of care or           ported by the medical record.
service and taking action to improve it.                    (j) Complies with any other requirement
     (D) “Dispute resolution” includes the              the director determines is necessary to pro-
resolution of disputes arising under peer re-           vide quality medical services and health care
view, service utilization review and quality            to injured workers.

                                                   50
                               WORKERS′ COMPENSATION                                           656.260

     (5) The director shall refuse to certify or        garding any such participation except pursu-
may revoke or suspend the certification of              ant to the director’s active supervision of
any health care provider or group of medical            such activities and the managed care organ-
service providers to provide managed care if            ization. Before engaging in such activities,
the director finds that:                                the person shall provide notice of intent to
     (a) The plan for providing medical or              the director in a form prescribed by the di-
health care services fails to meet the re-              rector.
quirements of this section.                                 (10) The provisions of this section shall
     (b) Service under the plan is not being            not affect the confidentiality or admission in
provided in accordance with the terms of a              evidence of a claimant’s medical treatment
certified plan.                                         records.
     (6) Any issue concerning the provision of              (11) In consultation with the committees
medical services to injured workers subject             referred to in ORS 656.790 and 656.794, the
to a managed care contract and service                  director shall adopt such rules as may be
utilization review, quality assurance, dispute          necessary to carry out the provisions of this
resolution, contract review and peer review             section.
activities as well as authorization of medical              (12) As used in this section, ORS 656.245,
services to be provided by other than an at-            656.248 and 656.327, “medical service pro-
tending physician pursuant to ORS 656.245               vider” means a person duly licensed to prac-
(2)(b) shall be subject to review by the direc-         tice one or more of the healing arts in any
tor or the director’s designated represen-              country or in any state or territory or pos-
tatives. The decision of the director is                session of the United States.
subject to review under ORS 656.704. Data
generated by or received in connection with                 (13) Notwithstanding ORS 656.005 (12) or
these activities, including written reports,            subsection (4)(b) of this section, a managed
notes or records of any such activities, or of          care organization contract may designate any
any review thereof, shall be confidential, and          medical service provider or category of pro-
shall not be disclosed except as considered             viders as attending physicians.
necessary by the director in the administra-                (14) If a worker, insurer, self-insured em-
tion of this chapter. The director may report           ployer or the attending physician is dissatis-
professional misconduct to an appropriate li-           fied with an action of the managed care
censing board.                                          organization regarding the provision of med-
     (7) No data generated by service utiliza-          ical services pursuant to this chapter, peer
tion review, quality assurance, dispute reso-           review, service utilization review or quality
lution or peer review activities and no                 assurance activities, that person or entity
physician profiles or data used to create               must first apply to the director for adminis-
physician profiles pursuant to this section or          trative review of the matter before request-
a review thereof shall be used in any action,           ing a hearing. Such application must be
suit or proceeding except to the extent con-            made not later than the 60th day after the
sidered necessary by the director in the ad-            date the managed care organization has
ministration     of   this   chapter.       The         completed and issued its final decision.
confidentiality provisions of this section shall            (15) Upon a request for administrative
not apply in any action, suit or proceeding             review, the director shall create a documen-
arising out of or related to a contract be-             tary record sufficient for judicial review.
tween a managed care organization and a                 The director shall complete administrative
health care provider whose confidentiality is           review and issue a proposed order within a
protected by this section.                              reasonable time. The proposed order of the
     (8) A person participating in service              director issued pursuant to this section shall
utilization review, quality assurance, dispute          become final and not subject to further re-
resolution or peer review activities pursuant           view unless a written request for a hearing
to this section shall not be examined as to             is filed with the director within 30 days of
any communication made in the course of                 the mailing of the order to all parties.
such activities or the findings thereof, nor                (16) At the contested case hearing, the
shall any person be subject to an action for            order may be modified only if it is not sup-
civil damages for affirmative actions taken             ported by substantial evidence in the record
or statements made in good faith.                       or reflects an error of law. No new medical
     (9) No person who participates in forming          evidence or issues shall be admitted. The
consortiums, collectively negotiating fees or           dispute may also be remanded to the man-
otherwise solicits or enters into contracts in          aged care organization for further evidence
a good faith effort to provide medical or               taking, correction or other necessary action
health care services according to the pro-              if the Administrative Law Judge or director
visions of this section shall be examined or            determines the record has been improperly,
subject to administrative or civil liability re-        incompletely or otherwise insufficiently de-

                                                   51
656.262                                 LABOR AND EMPLOYMENT

veloped. Decisions by the director regarding                              (D) The name and address of any health
medical disputes are subject to review under                         insurance provider for the injured worker.
ORS 656.704.                                                              (E) Any other details the insurer may
    (17) Any person who is dissatisfied with                         require.
an action of a managed care organization                                  (b) Failure to so report subjects the of-
other than regarding the provision of medical                        fending employer to a charge for reimbursing
services pursuant to this chapter, peer re-                          the insurer for any penalty the insurer is re-
view, service utilization review or quality                          quired to pay under subsection (11) of this
assurance activities may request review un-                          section because of such failure. As used in
der ORS 656.704.                                                     this subsection, “health insurance” has the
    (18) Notwithstanding any other provision                         meaning for that term provided in ORS
of law, original jurisdiction over contract re-                      731.162.
view disputes is with the director. The di-                               (4)(a) The first installment of temporary
rector may resolve the matter by issuing an                          disability compensation shall be paid no later
order subject to review under ORS 656.704,                           than the 14th day after the subject employer
or the director may determine that the mat-                          has notice or knowledge of the claim, if the
ter in dispute would be best addressed in an-                        attending physician or nurse practitioner au-
other forum and so inform the parties.                               thorized to provide compensable medical ser-
    (19) The director shall conduct such in-                         vices under ORS 656.245 authorizes the
vestigations, audits and other administrative                        payment of temporary disability compensa-
oversight in regard to managed care as the                           tion. Thereafter, temporary disability com-
director deems necessary to carry out the                            pensation shall be paid at least once each
purposes of this chapter. [1990 c.2 §12; 1995 c.332                  two weeks, except where the Director of the
§27; amendments by 1995 c.332 §27a repealed by 1999 c.6              Department of Consumer and Business Ser-
§1; 1997 c.639 §§1,2; 2005 c.26 §8; 2005 c.364 §1; 2007 c.423        vices determines that payment in install-
§1]
                                                                     ments should be made at some other interval.
     Note: See notes under 656.202.                                  The director may by rule convert monthly
                                                                     benefit schedules to weekly or other periodic
             PROCEDURE FOR                                           schedules.
        OBTAINING COMPENSATION                                            (b) Notwithstanding any other provision
     656.262 Processing of claims and pay-                           of this chapter, if a self-insured employer
ment of compensation; payment by em-                                 pays to an injured worker who becomes dis-
ployer; acceptance and denial of claim;                              abled the same wage at the same pay inter-
penalties and attorney fees; cooperation                             val that the worker received at the time of
by worker and attorney in claim investi-                             injury, such payment shall be deemed timely
gation; rules. (1) Processing of claims and                          payment of temporary disability payments
providing compensation for a worker shall be                         pursuant to ORS 656.210 and 656.212 during
the responsibility of the insurer or self-                           the time the wage payments are made.
insured employer. All employers shall assist                              (c) Notwithstanding any other provision
their insurers in processing claims as re-                           of this chapter, when the holder of a public
quired in this chapter.                                              office is injured in the course and scope of
     (2) The compensation due under this                             that public office, full official salary paid to
chapter shall be paid periodically, promptly                         the holder of that public office shall be
and directly to the person entitled thereto                          deemed timely payment of temporary disabil-
upon the employer’s receiving notice or                              ity payments pursuant to ORS 656.210 and
knowledge of a claim, except where the right                         656.212 during the time the wage payments
to compensation is denied by the insurer or                          are made. As used in this subsection, “public
self-insured employer.                                               office” has the meaning for that term pro-
                                                                     vided in ORS 260.005.
     (3)(a) Employers shall, immediately and
not later than five days after notice or                                  (d) Temporary disability compensation is
knowledge of any claims or accidents which                           not due and payable for any period of time
may result in a compensable injury claim,                            for which the insurer or self-insured em-
report the same to their insurer. The report                         ployer has requested from the worker’s at-
shall include:                                                       tending physician or nurse practitioner
     (A) The date, time, cause and nature of                         authorized to provide compensable medical
the accident and injuries.                                           services under ORS 656.245 verification of
                                                                     the worker’s inability to work resulting from
     (B) Whether the accident arose out of                           the claimed injury or disease and the physi-
and in the course of employment.                                     cian or nurse practitioner cannot verify the
     (C) Whether the employer recommends                             worker’s inability to work, unless the worker
or opposes acceptance of the claim, and the                          has been unable to receive treatment for
reasons therefor.                                                    reasons beyond the worker’s control.

                                                                52
                               WORKERS′ COMPENSATION                                           656.262

     (e) If a worker fails to appear at an ap-               (5)(a) Payment of compensation under
pointment with the worker’s attending phy-              subsection (4) of this section or payment, in
sician or nurse practitioner authorized to              amounts per claim not to exceed the maxi-
provide compensable medical services under              mum amount established annually by the Di-
ORS 656.245, the insurer or self-insured em-            rector of the Department of Consumer and
ployer shall notify the worker by certified             Business Services, for medical services for
mail that temporary disability benefits may             nondisabling claims, may be made by the
be suspended after the worker fails to appear           subject employer if the employer so chooses.
at a rescheduled appointment. If the worker             The making of such payments does not con-
fails to appear at a rescheduled appointment,           stitute a waiver or transfer of the insurer’s
the insurer or self-insured employer may                duty to determine entitlement to benefits. If
suspend payment of temporary disability                 the employer chooses to make such payment,
benefits to the worker until the worker ap-             the employer shall report the injury to the
pears at a subsequent rescheduled appoint-              insurer in the same manner that other inju-
ment.                                                   ries are reported. However, an insurer shall
     (f) If the insurer or self-insured employer        not modify an employer’s experience rating
has requested and failed to receive from the            or otherwise make charges against the em-
worker’s attending physician or nurse prac-             ployer for any medical expenses paid by the
titioner authorized to provide compensable              employer pursuant to this subsection.
medical services under ORS 656.245 verifica-                 (b) To establish the maximum amount an
tion of the worker’s inability to work result-          employer may pay for medical services for
ing from the claimed injury or disease,                 nondisabling claims under paragraph (a) of
medical services provided by the attending              this subsection, the director shall use $1,500
physician or nurse practitioner are not com-            as the base compensation amount and shall
pensable until the attending physician or               adjust the base compensation amount annu-
nurse practitioner submits such verification.           ally to reflect changes in the United States
                                                        City Average Consumer Price Index for All
     (g) Temporary disability compensation is           Urban Consumers for Medical Care for July
not due and payable pursuant to ORS 656.268             of each year as published by the Bureau of
after the worker’s attending physician or               Labor Statistics of the United States Depart-
nurse practitioner authorized to provide                ment of Labor. The adjustment shall be
compensable medical services under ORS                  rounded to the nearest multiple of $100.
656.245 ceases to authorize temporary disa-
bility or for any period of time not author-                 (c) The adjusted amount established un-
ized by the attending physician or nurse                der paragraph (b) of this subsection shall be
practitioner. No authorization of temporary             effective on January 1 following the estab-
disability compensation by the attending                lishment of the amount and shall apply to
physician or nurse practitioner under ORS               claims with a date of injury on or after the
                                                        effective date of the adjusted amount.
656.268 shall be effective to retroactively au-
thorize the payment of temporary disability                  (6)(a) Written notice of acceptance or de-
more than 14 days prior to its issuance.                nial of the claim shall be furnished to the
                                                        claimant by the insurer or self-insured em-
     (h) The worker’s disability may be au-             ployer within 60 days after the employer has
thorized only by a person described in ORS              notice or knowledge of the claim. Once the
656.005 (12)(b)(B) or 656.245 for the period of         claim is accepted, the insurer or self-insured
time permitted by those sections. The insurer           employer shall not revoke acceptance except
or self-insured employer may unilaterally               as provided in this section. The insurer or
suspend payment of temporary disability                 self-insured employer may revoke acceptance
benefits to the worker at the expiration of             and issue a denial at any time when the de-
the period until temporary disability is reau-          nial is for fraud, misrepresentation or other
thorized by an attending physician or nurse             illegal activity by the worker. If the worker
practitioner authorized to provide compensa-            requests a hearing on any revocation of ac-
ble medical services under ORS 656.245.                 ceptance and denial alleging fraud, misrepre-
     (i) The insurer or self-insured employer           sentation or other illegal activity, the
may unilaterally suspend payment of all                 insurer or self-insured employer has the bur-
compensation to a worker enrolled in a                  den of proving, by a preponderance of the
managed care organization if the worker                 evidence, such fraud, misrepresentation or
continues to seek care from an attending                other illegal activity. Upon such proof, the
physician or nurse practitioner authorized to           worker then has the burden of proving, by a
provide compensable medical services under              preponderance of the evidence, the compen-
ORS 656.245 that is not authorized by the               sability of the claim. If the insurer or self-
managed care organization more than seven               insured employer accepts a claim in good
days after the mailing of notice by the in-             faith, in a case not involving fraud, misrep-
surer or self-insured employer.                         resentation or other illegal activity by the

                                                   53
656.262                         LABOR AND EMPLOYMENT

worker, and later obtains evidence that the                  (d) An injured worker who believes that
claim is not compensable or evidence that               a condition has been incorrectly omitted
the insurer or self-insured employer is not             from a notice of acceptance, or that the no-
responsible for the claim, the insurer or self-         tice is otherwise deficient, first must com-
insured employer may revoke the claim ac-               municate in writing to the insurer or
ceptance and issue a formal notice of claim             self-insured employer the worker’s objections
denial, if such revocation of acceptance and            to the notice pursuant to ORS 656.267. The
denial is issued no later than two years after          insurer or self-insured employer has 60 days
the date of the initial acceptance. If the              from receipt of the communication from the
worker requests a hearing on such revoca-               worker to revise the notice or to make other
tion of acceptance and denial, the insurer or           written clarification in response. A worker
self-insured employer must prove, by a pre-             who fails to comply with the communication
ponderance of the evidence, that the claim is           requirements of this paragraph or ORS
not compensable or that the insurer or self-            656.267 may not allege at any hearing or
insured employer is not responsible for the             other proceeding on the claim a de facto de-
claim. Notwithstanding any other provision              nial of a condition based on information in
of this chapter, if a denial of a previously            the notice of acceptance from the insurer or
accepted claim is set aside by an Adminis-              self-insured employer. Notwithstanding any
trative Law Judge, the Workers’ Compensa-               other provision of this chapter, the worker
tion Board or the court, temporary total                may initiate objection to the notice of ac-
disability benefits are payable from the date           ceptance at any time.
any such benefits were terminated under the                  (7)(a) After claim acceptance, written no-
denial. Except as provided in ORS 656.247,              tice of acceptance or denial of claims for ag-
pending acceptance or denial of a claim,                gravation or new medical or omitted
compensation payable to a claimant does not             condition claims properly initiated pursuant
include the costs of medical benefits or fu-            to ORS 656.267 shall be furnished to the
neral expenses. The insurer shall also furnish          claimant by the insurer or self-insured em-
the employer a copy of the notice of accept-            ployer within 60 days after the insurer or
ance.                                                   self-insured employer receives written notice
     (b) The notice of acceptance shall:                of such claims. A worker who fails to comply
     (A) Specify what conditions are compen-            with the communication requirements of
sable.                                                  subsection (6) of this section or ORS 656.267
                                                        may not allege at any hearing or other pro-
     (B) Advise the claimant whether the                ceeding on the claim a de facto denial of a
claim is considered disabling or nondisabling.          condition based on information in the notice
     (C) Inform the claimant of the Expedited           of acceptance from the insurer or self-insured
Claim Service and of the hearing and aggra-             employer.
vation rights concerning nondisabling inju-                  (b) Once a worker’s claim has been ac-
ries, including the right to object to a                cepted, the insurer or self-insured employer
decision that the injury of the claimant is             must issue a written denial to the worker
nondisabling by requesting reclassification             when the accepted injury is no longer the
pursuant to ORS 656.277.                                major contributing cause of the worker’s
     (D) Inform the claimant of employment              combined condition before the claim may be
reinstatement rights and responsibilities un-           closed.
der ORS chapter 659A.                                        (c) When an insurer or self-insured em-
     (E) Inform the claimant of assistance              ployer determines that the claim qualifies for
available to employers and workers from the             claim closure, the insurer or self-insured em-
Reemployment Assistance Program under                   ployer shall issue at claim closure an up-
ORS 656.622.                                            dated notice of acceptance that specifies
     (F) Be modified by the insurer or self-            which conditions are compensable. The pro-
insured employer from time to time as med-              cedures specified in subsection (6)(d) of this
ical or other information changes a                     section apply to this notice. Any objection to
previously issued notice of acceptance.                 the updated notice or appeal of denied con-
                                                        ditions shall not delay claim closure pursu-
     (c) An insurer’s or self-insured employer’s        ant to ORS 656.268. If a condition is found
acceptance of a combined or consequential               compensable after claim closure, the insurer
condition under ORS 656.005 (7), whether                or self-insured employer shall reopen the
voluntary or as a result of a judgment or or-           claim for processing regarding that condi-
der, shall not preclude the insurer or self-            tion.
insured employer from later denying the
combined or consequential condition if the                   (8) The assigned claims agent in process-
otherwise compensable injury ceases to be               ing claims under ORS 656.054 shall send no-
the major contributing cause of the combined            tice of acceptance or denial to the
or consequential condition.                             noncomplying employer.

                                                   54
                               WORKERS′ COMPENSATION                                          656.262

    (9) If an insurer or any other duly au-            scribed in this subsection, the provisions of
thorized agent of the employer for such pur-           this subsection shall apply in the other pro-
pose, on record with the Director of the               ceeding.
Department of Consumer and Business Ser-                    (12)(a) If payment is due on a disputed
vices denies a claim for compensation, writ-           claim settlement authorized by ORS 656.289
ten notice of such denial, stating the reason          and the insurer or self-insured employer has
for the denial, and informing the worker of            failed to make the payment in accordance
the Expedited Claim Service and of hearing             with the requirements specified in the dis-
rights under ORS 656.283, shall be given to            puted claim settlement, the claimant or the
the claimant. A copy of the notice of denial           claimant’s attorney shall clearly notify the
shall be mailed to the director and to the             insurer or self-insured employer in writing
employer by the insurer. The worker may                that the payment is past due. If the required
request a hearing pursuant to ORS 656.319.             payment is not made within five business
    (10) Merely paying or providing compen-            days after receipt of the notice by the in-
sation shall not be considered acceptance of           surer or self-insured employer, the director
a claim or an admission of liability, nor shall        may assess a penalty and attorney fee in ac-
mere acceptance of such compensation be                cordance with a matrix adopted by the di-
considered a waiver of the right to question           rector by rule.
the amount thereof. Payment of permanent                    (b) The director shall adopt by rule a
disability benefits pursuant to a notice of            matrix for the assessment of the penalties
closure, reconsideration order or litigation           and attorney fees authorized under this sub-
order, or the failure to appeal or seek review         section. The matrix shall provide for penal-
of such an order or notice of closure, shall           ties based on a percentage of the settlement
not preclude an insurer or self-insured em-            proceeds allocated to the claimant and for
ployer from subsequently contesting the                attorney fees based on a percentage of the
compensability of the condition rated                  settlement proceeds        allocated   to   the
therein, unless the condition has been                 claimant’s attorney as an attorney fee.
formally accepted.
                                                            (13) The insurer may authorize an em-
    (11)(a) If the insurer or self-insured em-         ployer to pay compensation to injured work-
ployer unreasonably delays or unreasonably             ers and shall reimburse employers for
refuses to pay compensation, or unreasonably           compensation so paid.
delays acceptance or denial of a claim, the
insurer or self-insured employer shall be lia-              (14) Injured workers have the duty to
ble for an additional amount up to 25 percent          cooperate and assist the insurer or self-
of the amounts then due plus any attorney              insured employer in the investigation of
fees assessed under this section. The fees as-         claims for compensation. Injured workers
sessed by the director, an Administrative              shall submit to and shall fully cooperate with
Law Judge, the board or the court under this           personal and telephonic interviews and other
section shall be proportionate to the benefit          formal or informal information gathering
to the injured worker. The board shall adopt           techniques. Injured workers who are repre-
rules for establishing the amount of the at-           sented by an attorney shall have the right to
torney fee, giving primary consideration to            have the attorney present during any per-
the results achieved and to the time devoted           sonal or telephonic interview or deposition.
to the case. An attorney fee awarded pursu-            However, if the attorney is not willing or
ant to this subsection may not exceed $3,000           available to participate in an interview at a
absent a showing of extraordinary circum-              time reasonably chosen by the insurer or
stances. The maximum attorney fee awarded              self-insured employer within 14 days of the
                                                       request for interview and the insurer or self-
under this paragraph shall be adjusted annu-           insured employer has cause to believe that
ally on July 1 by the same percentage in-              the attorney’s unwillingness or unavailability
crease as made to the average weekly wage              is unreasonable and is preventing the worker
defined in ORS 656.211, if any. Notwith-               from complying within 14 days of the request
standing any other provision of this chapter,          for interview, the insurer or self-insured em-
the director shall have exclusive jurisdiction         ployer shall notify the director. If the direc-
over proceedings regarding solely the assess-          tor     determines     that    the   attorney’s
ment and payment of the additional amount              unwillingness or unavailability is unreason-
and attorney fees described in this subsec-            able, the director shall assess a civil penalty
tion. The action of the director and the re-           against the attorney of not more than $1,000.
view of the action taken by the director shall
be subject to review under ORS 656.704.                     (15) If the director finds that a worker
                                                       fails to reasonably cooperate with an inves-
    (b) When the director does not have ex-            tigation involving an initial claim to estab-
clusive jurisdiction over proceedings regard-          lish a compensable injury or an aggravation
ing the assessment and payment of the                  claim to reopen the claim for a worsened
additional amount and attorney fees de-                condition, the director shall suspend all or

                                                  55
656.263                                 LABOR AND EMPLOYMENT

part of the payment of compensation after                            nied claims, claims disposition and payments
notice to the worker. If the worker does not                         made by them under this chapter.
cooperate for an additional 30 days after the                             (2) The director may require insurers and
notice, the insurer or self-insured employer                         self-insured employers to report other infor-
may deny the claim because of the worker’s                           mation as required to carry out this chapter.
failure to cooperate. The obligation of the
insurer or self-insured employer to accept or                             (3) The director may prescribe the inter-
deny the claim within 60 days is suspended                           val and the form of such reports and estab-
during the time of the worker’s noncooper-                           lish sanctions for the enforcement of
ation. After such a denial, the worker shall                         reporting requirements. [1975 c.556 §39; 1981 c.854
                                                                     §17; 2003 c.760 §3]
not be granted a hearing or other proceeding
under this chapter on the merits of the claim                            656.265 Notice of accident from
unless the worker first requests and estab-                          worker. (1) Notice of an accident resulting
lishes at an expedited hearing under ORS                             in an injury or death shall be given imme-
656.291 that the worker fully and completely                         diately by the worker or a dependent of the
cooperated with the investigation, that the                          worker to the employer, but not later than
worker failed to cooperate for reasons be-                           90 days after the accident. The employer
yond the worker’s control or that the inves-                         shall acknowledge forthwith receipt of such
tigative demands were unreasonable. If the                           notice.
Administrative Law Judge finds that the                                  (2) The notice need not be in any partic-
worker has not fully cooperated, the Admin-                          ular form. However, it shall be in writing
istrative Law Judge shall affirm the denial,                         and shall apprise the employer when and
and the worker’s claim for injury shall re-                          where and how an injury has occurred to a
main denied. If the Administrative Law                               worker. A report or statement secured from
Judge finds that the worker has cooperated,                          a worker, or from the doctor of the worker
or that the investigative demands were un-                           and signed by the worker, concerning an ac-
reasonable, the Administrative Law Judge                             cident which may involve a compensable in-
shall set aside the denial, order the rein-                          jury shall be considered notice from the
statement of interim compensation if appro-                          worker and the employer shall forthwith fur-
priate and remand the claim to the insurer                           nish the worker a copy of any such report
or self-insured employer to accept or deny                           or statement.
the claim.
                                                                         (3) Notice shall be given to the employer
    (16) In accordance with ORS 656.283 (3),                         by mail, addressed to the employer at the
the Administrative Law Judge assigned a re-                          last-known place of business of the employer,
quest for hearing for a claim for compensa-                          or by personal delivery to the employer or to
tion involving more than one potentially                             a foreman or other supervisor of the em-
responsible employer or insurer may specify                          ployer. If for any reason it is not possible to
what is required of an injured worker to                             so notify the employer, notice may be given
reasonably cooperate with the investigation                          to the Director of the Department of Con-
of the claim as required by subsection (14)                          sumer and Business Services and referred to
of this section. [1965 c.285 §30; 1969 c.399 §1; 1973                the insurer or self-insured employer.
c.620 §2; 1975 c.556 §41; 1981 c.535 §7; 1981 c.854 §16; 1981
c.874 §4; 1983 c.809 §1; 1983 c.816 §7; 1985 c.600 §7; 1987              (4) Failure to give notice as required by
c.884 §19; 1990 c.2 §15; 1995 c.332 §28; 1995 c.641 §4; 1997         this section bars a claim under this chapter
c.605 §1; 1997 c.639 §7; 1999 c.313 §5; 2001 c.621 §83; 2001         unless the notice is given within one year
c.865 §7; 2003 c.667 §1; 2003 c.756 §1; 2003 c.760 §2; 2003          after the date of the accident and:
c.811 §§9,10; 2005 c.26 §§9,10; 2005 c.511 §§1,2; 2005 c.588
§§2,3; 2007 c.252 §5; 2007 c.365 §5; 2007 c.518 §§1,2; 2009              (a) The employer had knowledge of the
c.35 §3; 2009 c.171 §3; 2009 c.526 §1]                               injury or death;
       Note: See notes under 656.202.                                    (b) The worker died within 180 days after
    656.263 To whom notices sent under                               the date of the accident; or
ORS 656.262, 656.265, 656.268 to 656.289,                                (c) The worker or beneficiaries of the
656.295 to 656.325 and 656.382 to 656.388.                           worker establish that the worker had good
All notices of proceedings required to be sent                       cause for failure to give notice within 90
under ORS 656.262, 656.265, 656.268 to                               days after the accident.
656.289, 656.295 to 656.325, 656.382 to 656.388                          (5) The issue of failure to give notice
and this section shall be sent to the employer                       must be raised at the first hearing on a claim
and the insurer, if any. [1967 c.97 §2; 1975 c.556                   for compensation in respect to the injury or
§42]                                                                 death.
     656.264 Compensable injury, denied                                  (6) The director shall promulgate and
claim and other reports. (1) Insurers and                            prescribe uniform forms to be used by work-
self-insured employers shall report to the Di-                       ers in reporting their injuries to their em-
rector of the Department of Consumer and                             ployers. These forms shall be supplied by all
Business Services compensable injuries, de-                          employers to injured workers upon request

                                                                56
                                      WORKERS′ COMPENSATION                                             656.268

of the injured worker or some other person                            (b) If an insurer or self-insured employer
on behalf of the worker. The failure of the                       denies a claim for a new medical or omitted
worker to use a specified form shall not, in                      medical condition, the claimant may request
itself, defeat the claim of the worker if the                     a hearing on the denial pursuant to ORS
worker has complied with the requirement                          656.283.
that the claim be presented in writing. [1965                         (3) Notwithstanding subsection (2) of this
c.285 §30a; 1971 c.386 §2; 1981 c.854 §18; 1995 c.332 §29;
2003 c.707 §1]                                                    section, claims for new medical or omitted
                                                                  medical conditions related to an initially ac-
     656.266 Burden of proving compensa-                          cepted claim that have been determined to
bility and nature and extent of disability.                       be compensable and that were initiated after
(1) The burden of proving that an injury or                       the rights under ORS 656.273 expired shall
occupational disease is compensable and of                        be processed as requests for relief under the
proving the nature and extent of any disabil-                     Workers’ Compensation Board’s own motion
ity resulting therefrom is upon the worker.                       jurisdiction pursuant to ORS 656.278 (1)(b).
The worker cannot carry the burden of                             [2001 c.865 §10; 2005 c.188 §1]
proving that an injury or occupational dis-                            Note: See notes under 656.202.
ease is compensable merely by disproving
other possible explanations of how the injury                          656.268 Claim closure; termination of
or disease occurred.                                              temporary total disability benefits; re-
     (2) Notwithstanding subsection (1) of this                   consideration of closure; medical arbiter
section, for the purpose of combined condi-                       to make findings of impairment for re-
tion injury claims under ORS 656.005                              consideration; credit or offset for
(7)(a)(B) only:                                                   fraudulently obtained or overpaid bene-
                                                                  fits; rules. (1) One purpose of this chapter
     (a) Once the worker establishes an oth-                      is to restore the injured worker as soon as
erwise compensable injury, the employer                           possible and as near as possible to a condi-
shall bear the burden of proof to establish                       tion of self support and maintenance as an
the otherwise compensable injury is not, or                       able-bodied worker. The insurer or self-
is no longer, the major contributing cause of                     insured employer shall close the worker’s
the disability of the combined condition or                       claim, as prescribed by the Director of the
the major contributing cause of the need for                      Department of Consumer and Business Ser-
treatment of the combined condition.                              vices, and determine the extent of the
     (b) Notwithstanding ORS 656.804, para-                       worker’s permanent disability, provided the
graph (a) of this subsection does not apply to                    worker is not enrolled and actively engaged
any occupational disease claim. [1987 c.713 §2;                   in training according to rules adopted by the
2001 c.865 §2]                                                    director pursuant to ORS 656.340 and
    Note: See notes under 656.202.                                656.726, when:
    656.267 Claims for new and omitted                                 (a) The worker has become medically
medical conditions. (1) To initiate omitted                       stationary and there is sufficient information
medical condition claims under ORS 656.262                        to determine permanent disability;
(6)(d) or new medical condition claims under                           (b) The accepted injury is no longer the
this section, the worker must clearly request                     major contributing cause of the worker’s
formal written acceptance of a new medical                        combined or consequential condition or con-
condition or an omitted medical condition                         ditions pursuant to ORS 656.005 (7). When
from the insurer or self-insured employer. A                      the claim is closed because the accepted in-
claim for a new medical condition or an                           jury is no longer the major contributing
omitted condition is not made by the receipt                      cause of the worker’s combined or conse-
of medical billings, nor by requests for au-                      quential condition or conditions, and there is
thorization to provide medical services for                       sufficient information to determine perma-
the new or omitted condition, nor by actually                     nent disability, the likely permanent disabil-
providing such medical services. The insurer                      ity that would have been due to the current
or self-insured employer is not required to                       accepted condition shall be estimated;
accept each and every diagnosis or medical
condition with particularity, as long as the                           (c) Without the approval of the attending
acceptance tendered reasonably apprises the                       physician or nurse practitioner authorized to
claimant and the medical providers of the                         provide compensable medical services under
nature of the compensable conditions. Not-                        ORS 656.245, the worker fails to seek med-
withstanding any other provision of this                          ical treatment for a period of 30 days or the
chapter, the worker may initiate a new med-                       worker fails to attend a closing examination,
ical or omitted condition claim at any time.                      unless the worker affirmatively establishes
    (2)(a) Claims properly initiated for new                      that such failure is attributable to reasons
medical conditions and omitted medical con-                       beyond the worker’s control; or
ditions related to an initially accepted claim                         (d) An insurer or self-insured employer
shall be processed pursuant to ORS 656.262.                       finds that a worker who has been receiving

                                                             57
656.268                        LABOR AND EMPLOYMENT

permanent total disability benefits has mate-              (d) Any other event that causes tempo-
rially improved and is capable of regularly            rary disability benefits to be lawfully sus-
performing work at a gainful and suitable              pended, withheld or terminated under ORS
occupation.                                            656.262 (4) or other provisions of this chap-
     (2) If the worker is enrolled and actively        ter; or
engaged in training according to rules                     (e) Notwithstanding paragraph (c)(C), (D),
adopted pursuant to ORS 656.340 and 656.726,           (E) and (F) of this subsection, the attending
the temporary disability compensation shall            physician or nurse practitioner who has au-
be proportionately reduced by any sums                 thorized temporary disability benefits under
earned during the training.                            ORS 656.245 for a home care worker who has
     (3) A copy of all medical reports and re-         been made a subject worker pursuant to ORS
ports of vocational rehabilitation agencies or         656.039 advises the home care worker and
counselors shall be furnished to the worker,           documents in writing that the home care
if requested by the worker.                            worker is released to return to modified em-
                                                       ployment, appropriate modified employment
     (4) Temporary total disability benefits           is offered in writing by the Home Care Com-
shall continue until whichever of the follow-          mission or a designee of the commission to
ing events first occurs:                               the home care worker for any client of the
     (a) The worker returns to regular or              Department of Human Services who employs
modified employment;                                   a home care worker and the home care
     (b) The attending physician or nurse              worker fails to begin the employment.
practitioner who has authorized temporary                  (5)(a) Findings by the insurer or self-
disability benefits for the worker under ORS           insured employer regarding the extent of the
656.245 advises the worker and documents in            worker’s disability in closure of the claim
writing that the worker is released to return          shall be pursuant to the standards prescribed
to regular employment;                                 by the director. The insurer or self-insured
     (c) The attending physician or nurse              employer shall issue a notice of closure of
practitioner who has authorized temporary              such a claim to the worker, to the worker’s
disability benefits for the worker under ORS           attorney if the worker is represented, and to
656.245 advises the worker and documents in            the director. The notice must inform:
writing that the worker is released to return              (A) The parties, in boldfaced type, of the
to modified employment, such employment is             proper manner in which to proceed if they
offered in writing to the worker and the               are dissatisfied with the terms of the notice;
worker fails to begin such employment.
However, an offer of modified employment                   (B) The worker of the amount of any
may be refused by the worker without the               further compensation, including permanent
termination of temporary total disability              disability compensation to be awarded; of the
benefits if the offer:                                 duration of temporary total or temporary
                                                       partial disability compensation; of the right
     (A) Requires a commute that is beyond             of the worker to request reconsideration by
the physical capacity of the worker accord-            the director under this section within 60
ing to the worker’s attending physician or             days of the date of the notice of claim clo-
the nurse practitioner who may authorize               sure; of the right of the insurer or self-
temporary disability under ORS 656.245;                insured employer to request reconsideration
     (B) Is at a work site more than 50 miles          by the director under this section within
one way from where the worker was injured              seven days of the date of the notice of claim
unless the site is less than 50 miles from the         closure; of the aggravation rights; and of
worker’s residence or the intent of the par-           such other information as the director may
ties at the time of hire or as established by          require; and
the pattern of employment prior to the injury
was that the employer had multiple or mobile               (C) Any beneficiaries of death benefits to
work sites and the worker could be assigned            which they may be entitled pursuant to ORS
to any such site;                                      656.204 and 656.208.
     (C) Is not with the employer at injury;               (b) If the insurer or self-insured employer
                                                       has not issued a notice of closure, the
     (D) Is not at a work site of the employer         worker may request closure. Within 10 days
at injury;                                             of receipt of a written request from the
     (E) Is not consistent with the existing           worker, the insurer or self-insured employer
written shift change policy or is not consist-         shall issue a notice of closure if the require-
ent with common practice of the employer               ments of this section have been met or a no-
at injury or aggravation; or                           tice of refusal to close if the requirements of
     (F) Is not consistent with an existing            this section have not been met. A notice of
shift change provision of an applicable col-           refusal to close shall advise the worker of
lective bargaining agreement;                          the decision not to close; of the right of the

                                                  58
                               WORKERS′ COMPENSATION                                           656.268

worker to request a hearing pursuant to ORS             ation record. The deposition must be
656.283 within 60 days of the date of the no-           conducted subject to the opportunity for
tice of refusal to close the claim; of the right        cross-examination by the insurer or self-
to be represented by an attorney; and of such           insured employer and in accordance with
other information as the director may re-               rules adopted by the director. The cost of the
quire.                                                  court reporter and one original of the tran-
    (c) If a worker, insurer or self-insured            script of the deposition for the Department
employer objects to the notice of closure, the          of Consumer and Business Services and one
objecting party first must request reconsid-            copy of the transcript of the deposition for
eration by the director under this section. A           each party shall be paid by the insurer or
worker’s request for reconsideration must be            self-insured employer. The reconsideration
made within 60 days of the date of the notice           proceeding may not be postponed to receive
of closure. A request for reconsideration by            a deposition taken under this subparagraph.
an insurer or self-insured employer may be              A deposition taken in accordance with this
based only on disagreement with the findings            subparagraph may be received as evidence at
used to rate impairment and must be made                a hearing even if the deposition is not pre-
within seven days of the date of the notice             pared in time for use in the reconsideration
of closure.                                             proceeding.
    (d) If an insurer or self-insured employer               (B) Pursuant to rules adopted by the di-
has closed a claim or refused to close a claim          rector, the worker or the insurer or self-
pursuant to this section, if the correctness            insured employer may correct information in
of that notice of closure or refusal to close           the record that is erroneous and may submit
is at issue in a hearing on the claim and if            any medical evidence that should have been
a finding is made at the hearing that the               but was not submitted by the attending phy-
notice of closure or refusal to close was not           sician or nurse practitioner authorized to
reasonable, a penalty shall be assessed                 provide compensable medical services under
against the insurer or self-insured employer            ORS 656.245 at the time of claim closure.
and paid to the worker in an amount equal                    (C) If the director determines that a
to 25 percent of all compensation determined            claim was not closed in accordance with
to be then due the claimant.                            subsection (1) of this section, the director
    (e) If, upon reconsideration of a claim             may rescind the closure.
closed by an insurer or self-insured employer,               (b) If necessary, the director may require
the director orders an increase by 25 percent           additional medical or other information with
or more of the amount of compensation to be             respect to the claims and may postpone the
paid to the worker for permanent disability             reconsideration for not more than 60 addi-
and the worker is found upon reconsider-                tional calendar days.
ation to be at least 20 percent permanently                  (c) In any reconsideration proceeding un-
disabled, a penalty shall be assessed against           der this section in which the worker was
the insurer or self-insured employer and paid           represented by an attorney, the director shall
to the worker in an amount equal to 25 per-             order the insurer or self-insured employer to
cent of all compensation determined to be               pay to the attorney, out of the additional
then due the claimant. If the increase in               compensation awarded, an amount equal to
compensation results from information that              10 percent of any additional compensation
the insurer or self-insured employer demon-             awarded to the worker.
strates the insurer or self-insured employer
could not reasonably have known at the time                  (d) The reconsideration proceeding shall
of claim closure, from new information ob-              be completed within 18 working days from
tained through a medical arbiter examination            the date the reconsideration proceeding be-
or from a determination order issued by the             gins, and shall be performed by a special
director that addresses the extent of the               evaluation appellate unit within the depart-
worker’s permanent disability that is not               ment. The deadline of 18 working days may
based on the standards adopted pursuant to              be postponed by an additional 60 calendar
ORS 656.726 (4)(f), the penalty shall not be            days if within the 18 working days the de-
assessed.                                               partment mails notice of review by a medical
                                                        arbiter. If an order on reconsideration has
    (6)(a) Notwithstanding any other pro-               not been mailed on or before 18 working days
vision of law, only one reconsideration pro-            from the date the reconsideration proceeding
ceeding may be held on each notice of                   begins, or within 18 working days plus the
closure. At the reconsideration proceeding:             additional 60 calendar days where a notice
    (A) A deposition arranged by the worker,            for medical arbiter review was timely mailed
limited to the testimony and cross-                     or the director postponed the reconsideration
examination of the worker about the                     pursuant to paragraph (b) of this subsection,
worker’s condition at the time of claim clo-            or within such additional time as provided in
sure, shall become part of the reconsider-              subsection (7) of this section when reconsid-

                                                   59
656.268                         LABOR AND EMPLOYMENT

eration is postponed further because the                 and necessary to establish the worker’s im-
worker has failed to cooperate in the medical            pairment.
arbiter examination, reconsideration shall be                 (B) If the director determines that the
deemed denied and any further proceedings                worker failed to attend the examination
shall occur as though an order on reconsid-              without good cause or failed to cooperate
eration affirming the notice of closure was              with the medical arbiter, or panel of medical
mailed on the date the order was due to is-              arbiters, the director shall postpone the re-
sue.                                                     consideration proceedings for up to 60 days
    (e) The period for completing the recon-             from the date of the determination that the
sideration proceeding described in paragraph             worker failed to attend or cooperate, and
(d) of this subsection begins upon receipt by            shall suspend all disability benefits resulting
the director of a worker’s request for recon-            from this or any prior opening of the claim
sideration pursuant to subsection (5)(c) of              until such time as the worker attends and
this section. If the insurer or self-insured             cooperates with the examination or the re-
employer requests reconsideration, the period            quest for reconsideration is withdrawn. Any
for reconsideration begins upon the earlier              additional evidence regarding good cause
of the date of the request for reconsideration           must be submitted prior to the conclusion of
by the worker, the date of receipt of a waiver           the 60-day postponement period.
from the worker of the right to request re-                   (C) At the conclusion of the 60-day post-
consideration or the date of expiration of the           ponement period, if the worker has not at-
right of the worker to request reconsider-               tended and cooperated with a medical arbiter
ation. If a party elects not to file a separate          examination or established good cause, there
request for reconsideration, the party does              shall be no further opportunity for the
not waive the right to fully participate in the          worker to attend a medical arbiter examina-
reconsideration proceeding, including the                tion for this claim closure. The reconsider-
right to proceed with the reconsideration if             ation record shall be closed, and the director
the initiating party withdraws the request               shall issue an order on reconsideration based
for reconsideration.                                     upon the existing record.
    (f) Any medical arbiter report may be re-                 (D) All disability benefits suspended pur-
ceived as evidence at a hearing even if the              suant to this subsection, including all disa-
report is not prepared in time for use in the            bility benefits awarded in the order on
reconsideration proceeding.                              reconsideration, or by an Administrative Law
    (g) If any party objects to the reconsid-            Judge, the Workers’ Compensation Board or
eration order, the party may request a hear-             upon court review, shall not be due and pay-
ing under ORS 656.283 within 30 days from                able to the worker.
the date of the reconsideration order.                        (f) The costs of examination and review
    (7)(a) If the basis for objection to a notice        by the medical arbiter or panel of medical
of closure issued under this section is dis-             arbiters shall be paid by the insurer or self-
agreement with the impairment used in rat-               insured employer.
ing of the worker’s disability, the director                  (g) The findings of the medical arbiter or
shall refer the claim to a medical arbiter ap-           panel of medical arbiters shall be submitted
pointed by the director.                                 to the director for reconsideration of the no-
    (b) If neither party requests a medical              tice of closure.
arbiter and the director determines that in-                  (h) After reconsideration, no subsequent
sufficient medical information is available to           medical evidence of the worker’s impairment
determine disability, the director may refer             is admissible before the director, the
the claim to a medical arbiter appointed by              Workers’ Compensation Board or the courts
the director.                                            for purposes of making findings of impair-
                                                         ment on the claim closure.
    (c) At the request of either of the parties,
a panel of three medical arbiters shall be                    (i)(A) When the basis for objection to a
appointed.                                               notice of closure issued under this section is
                                                         a disagreement with the impairment used in
    (d) The arbiter, or panel of medical arbi-           rating the worker’s disability, and the direc-
ters, shall be chosen from among a list of               tor determines that the worker is not med-
physicians qualified to be attending physi-              ically stationary at the time of the
cians referred to in ORS 656.005 (12)(b)(A)              reconsideration or that the closure was not
who were selected by the director in consul-             made pursuant to this section, the director
tation with the Oregon Medical Board and                 is not required to appoint a medical arbiter
the committee referred to in ORS 656.790.                prior to the completion of the reconsider-
    (e)(A) The medical arbiter or panel of               ation proceeding.
medical arbiters may examine the worker                       (B) If the worker’s condition has sub-
and perform such tests as may be reasonable              stantially changed since the notice of clo-

                                                    60
                              WORKERS′ COMPENSATION                                                       656.273

sure, upon the consent of all the parties to               (12) An insurer or self-insured employer
the claim, the director shall postpone the            may take a credit or offset of previously paid
proceeding until the worker’s condition is            workers’ compensation benefits or payments
appropriate for claim closure under subsec-           against any further workers’ compensation
tion (1) of this section.                             benefits or payments due a worker from that
    (8) No hearing shall be held on any issue         insurer or self-insured employer when the
that was not raised and preserved before the          worker admits to having obtained the previ-
director at reconsideration. However, issues          ously paid benefits or payments through
arising out of the reconsideration order may          fraud, or a civil judgment or criminal con-
be addressed and resolved at hearing.                 viction is entered against the worker for
                                                      having obtained the previously paid benefits
    (9) If, after the notice of closure issued        through fraud. Benefits or payments obtained
pursuant to this section, the worker becomes          through fraud by a worker shall not be in-
enrolled and actively engaged in training ac-         cluded in any data used for ratemaking or
cording to rules adopted pursuant to ORS              individual employer rating or dividend calcu-
656.340 and 656.726, any permanent disability         lations by an insurer, a rating organization
payments due for work disability under the            licensed pursuant to ORS chapter 737, the
closure shall be suspended, and the worker            State Accident Insurance Fund Corporation
shall receive temporary disability compensa-          or the director.
tion and any permanent disability payments
due for impairment while the worker is en-                 (13)(a) An insurer or self-insured em-
rolled and actively engaged in the training.          ployer may offset any compensation payable
                                                      to the worker to recover an overpayment
When the worker ceases to be enrolled and             from a claim with the same insurer or self-
actively engaged in the training, the insurer         insured employer. When overpayments are
or self-insured employer shall again close the        recovered from temporary disability or per-
claim pursuant to this section if the worker          manent total disability benefits, the amount
is medically stationary or if the worker’s ac-        recovered from each payment shall not ex-
cepted injury is no longer the major contrib-         ceed 25 percent of the payment, without
uting cause of the worker’s combined or               prior authorization from the worker.
consequential condition or conditions pursu-
ant to ORS 656.005 (7). The closure shall in-              (b) An insurer or self-insured employer
clude the duration of temporary total or              may suspend and offset any compensation
                                                      payable to the beneficiary of the worker, and
temporary partial disability compensation.            recover an overpayment of permanent total
Permanent disability compensation shall be            disability benefits caused by the failure of
redetermined for work disability only. If the         the worker’s beneficiaries to notify the in-
worker has returned to work or the worker’s           surer or self-insured employer about the
attending physician has released the worker           death of the worker.
to return to regular or modified employment,
the insurer or self-insured employer shall                 (14) Conditions that are direct medical
again close the claim. This notice of closure         sequelae to the original accepted condition
may be appealed only in the same manner as            shall be included in rating permanent disa-
are other notices of closure under this sec-          bility of the claim unless they have been
                                                      specifically denied. [1965 c.285 §31; 1973 c.620 §3;
tion.                                                 1973 c.634 §2; 1977 c.804 §5; 1977 c.862 §1; 1979 c.839 §4;
    (10) If the attending physician or nurse          1981 c.535 §7a; 1981 c.854 §19; 1981 c.874 §13; 1985 c.425
                                                      §1; 1985 c.600 §8; 1987 c.884 §10; 1990 c.2 §16; 1991 c.502
practitioner authorized to provide compensa-          §1; 1995 c.332 §30; 1997 c.111 §1; 1997 c.382 §1; 1999 c.313
ble medical services under ORS 656.245 has            §1; 1999 c.1020 §3; 2001 c.349 §1; 2001 c.377 §63; 2001 c.865
approved the worker’s return to work and              §12; 2003 c.429 §1; 2003 c.657 §§7,8; 2003 c.811 §§11,12; 2005
there is a labor dispute in progress at the           c.221 §§1,2; 2005 c.461 §§3,4; 2005 c.569 §§1,2; 2007 c.241
                                                      §§11,12; 2007 c.270 §§4,5; 2007 c.274 §4; 2007 c.365 §6; 2007
place of employment, the worker may refuse            c.835 §§2,3]
to return to that employment without loss of               Note: See notes under 656.202.
reemployment rights or any vocational as-                  656.270 [1971 c.155 §2; 1977 c.804 §6; 1979 c.839 §5;
sistance provided by this chapter.                    1990 c.2 §17; 1999 c.313 §6; repealed by 2009 c.36 §5]
    (11) Any notice of closure made under                  656.271 [1965 c.285 §32; 1969 c.171 §1; repealed by
this section may include necessary adjust-            1973 c.620 §4 (656.273 enacted in lieu of 656.271)]
ments in compensation paid or payable prior                656.272 [Repealed by 1965 c.285 §95]
to the notice of closure, including disallow-             656.273 Aggravation for worsened
ance of permanent disability payments pre-            conditions; procedure; limitations; addi-
maturely      made,     crediting   temporary         tional compensation. (1) After the last
disability payments against current or future         award or arrangement of compensation, an
permanent or temporary disability awards or           injured worker is entitled to additional com-
payments and requiring the payment of tem-            pensation for worsened conditions resulting
porary disability payments which were pay-            from the original injury. A worsened condi-
able but not paid.                                    tion resulting from the original injury is es-

                                                 61
656.277                        LABOR AND EMPLOYMENT

tablished by medical evidence of an actual                 (7) A request for hearing on any issue
worsening of the compensable condition sup-            involving a claim for aggravation must be
ported by objective findings. However, if the          made to the Workers’ Compensation Board
major contributing cause of the worsened               in accordance with ORS 656.283.
condition is an injury not occurring within                (8) If the worker submits a claim for ag-
the course and scope of employment, the                gravation of an injury or disease for which
worsening is not compensable. A worsened               permanent disability has been previously
condition is not established by either or both         awarded, the worker must establish that the
of the following:                                      worsening is more than waxing and waning
     (a) The worker’s absence from work for            of symptoms of the condition contemplated
any given amount of time as a result of the            by the previous permanent disability award.
                                                       [1973 c.620 §5 (enacted in lieu of 656.271); 1975 c.497 §1;
worker’s condition from the original injury;           1977 c.804 §7; 1979 c.839 §6; 1981 c.854 §20; 1987 c.884 §23;
or                                                     1989 c.171 §76; 1990 c.2 §18; 1995 c.332 §31; 1999 c.313 §2;
                                                       2001 c.350 §1; 2005 c.50 §1]
     (b) Inpatient treatment of the worker at
a hospital for the worker’s condition from                  656.274 [Repealed by 1965 c.285 §95]
the original injury.                                        656.275 [1963 c.20 §2; repealed by 1965 c.285 §95]
     (2) To obtain additional medical services              656.276 [Repealed by 1965 c.285 §95]
or disability compensation, the injured                    656.277 Request for reclassification of
worker must file a claim for aggravation               nondisabling claim; nondisabling claim
with the insurer or self-insured employer. In          procedure. (1) A request for reclassification
the event the insurer or self-insured em-              by the worker of an accepted nondisabling
ployer cannot be located, is unknown, or has           injury that the worker believes was or has
ceased to exist, the claim shall be filed with         become disabling must be submitted to the
the Director of the Department of Consumer             insurer or self-insured employer. The insurer
and Business Services.                                 or self-insured employer shall classify the
                                                       claim as disabling or nondisabling within 14
     (3) A claim for aggravation must be in            days of the request. A notice of such classi-
writing in a form and format prescribed by             fication shall be mailed to the worker and
the director and signed by the worker or the           the worker’s attorney if the worker is repre-
worker’s representative and the worker’s at-           sented. The worker may ask the Director of
tending physician. When an insurer or self-            the Department of Consumer and Business
insured employer receives a completed                  Services to review the classification by the
aggravation form, the insurer or self-insured          insurer or self-insured employer by submit-
employer shall process the claim.                      ting a request for review within 60 days of
     (4) The claim for aggravation must be             the mailing of the classification notice by the
filed within five years:                               insurer or self-insured employer. If any party
                                                       objects to the classification of the director,
     (a) After the first notice of closure made        the party may request a hearing under ORS
under ORS 656.268 for a disabling claim; or            656.283 within 30 days from the date of the
     (b) After the date of injury, provided the        director’s order.
claim has been classified as nondisabling for              (2) A request by the worker that an ac-
at least one year after the date of accept-            cepted nondisabling injury was or has be-
ance.                                                  come disabling shall be made pursuant to
     (5) The director may order the claimant,          ORS 656.273 as a claim for aggravation, pro-
the insurer or self-insured employer to pay            vided the claim has been classified as non-
for such medical opinion.                              disabling for at least one year after the date
                                                       of acceptance.
     (6) A claim submitted in accordance with
this section shall be processed by the insurer             (3) A claim for a nondisabling injury
or self-insured employer in accordance with            shall not be reported to the director by the
the provisions of ORS 656.262. The first in-           insurer or self-insured employer except:
stallment of compensation due under ORS                    (a) When a notice of claim denial is filed;
656.262 shall be paid no later than the 14th               (b) When the status of the claim is as
day after the subject employer or paying               described in subsection (1) or (2) of this sec-
agent of the subject employer receives a               tion; or
written report that verifies the worker’s ina-
bility to work resulting from a compensable                (c) When otherwise required by the di-
worsening under subsection (1) of this sec-            rector. [1990 c.2 §48; 1995 c.332 §32; 1999 c.313 §3; 2001
                                                       c.350 §2]
tion and that establishes by medical evidence
                                                           Note: 656.277 was added to and made a part of
supported by objective findings that the               ORS chapter 656 by legislative action but was not added
claimant has suffered a worsened condition             to any smaller series therein. See Preface to Oregon
attributable to the compensable injury.                Revised Statutes for further explanation.

                                                  62
                               WORKERS′ COMPENSATION                                                      656.283

    656.278 Board has continuing author-               provided under subsection (1)(c) of this sec-
ity to alter earlier action on claim; limi-            tion; and
tations. (1) Except as provided in subsection              (d) May include permanent disability
(7) of this section, the power and jurisdiction        benefits for additional impairment to an in-
of the Workers’ Compensation Board shall be            jured body part that has previously been the
continuing, and it may, upon its own motion,           basis of a permanent partial disability award,
from time to time modify, change or termi-             but only to the extent that the permanent
nate former findings, orders or awards if in           partial disability rating exceeds the perma-
its opinion such action is justified in those          nent partial disability rated by the prior
cases in which:                                        award or awards.
    (a) There is a worsening of a compensa-                (3) An order or award made by the board
ble injury that results in the inability of the        during the time within which the claimant
worker to work and requires hospitalization            has the right to request a hearing on aggra-
or inpatient or outpatient surgery, or other           vation under ORS 656.273 is not an order or
curative treatment prescribed in lieu of hos-          award, as the case may be, made by the
pitalization that is necessary to enable the           board on its own motion.
injured worker to return to work. In such
cases, the payment of temporary disability                 (4) Pursuant to ORS 656.298, any party
compensation in accordance with ORS                    may appeal an order or award made by the
656.210, 656.212 (2) and 656.262 (4) may be            board on its own motion.
provided from the time the attending physi-                (5) The insurer or self-insured employer
cian authorizes temporary disability compen-           may voluntarily reopen any claim to provide
sation for the hospitalization, surgery or             benefits allowable under this section or to
other curative treatment until the worker’s            grant additional medical or hospital care to
condition becomes medically stationary;                the claimant. The board shall establish pro-
    (b) The worker submits and obtains ac-             cedures for the resolution of disputes arising
ceptance of a claim for a compensable new              out of a voluntary reopening of a claim un-
                                                       der this section.
medical condition or an omitted medical
condition pursuant to ORS 656.267 and the                  (6) Any claim reopened under this section
claim is initiated after the rights under ORS          shall be closed by the insurer or self-insured
656.273 have expired. In such cases, the pay-          employer in a manner prescribed by the
ment of temporary disability compensation in           board, including, when appropriate, an award
accordance with the provisions of ORS                  of permanent disability benefits as deter-
656.210, 656.212 (2) and 656.262 (4) may be            mined under subsections (1)(b) and (2)(d) of
provided from the time the attending physi-            this section. The board shall also prescribe
cian authorizes temporary disability compen-           a process to be followed if the worker objects
sation for the hospitalization, surgery or             to the claim closure.
other curative treatment until the worker’s                (7) The provisions of this section do not
condition becomes medically stationary, and            authorize the board, on its own motion, to
the payment of permanent disability benefits           modify, change or terminate former findings
may be provided after application of the               or orders:
standards for the evaluation and determi-                  (a) That a claimant incurred no injury or
nation of disability as may be adopted by the          incurred a noncompensable injury; or
Director of the Department of Consumer and                 (b) Approving disposition of a claim un-
Business Services pursuant to ORS 656.726;             der ORS 656.236 or 656.289 (4). [Amended by
or                                                     1955 c.718 §1; 1957 c.559 §1; 1965 c.285 §33; 1981 c.535 §32;
                                                       1985 c.212 §6; 1987 c.884 §37; 1990 c.2 §19; 1995 c.332 §33;
    (c) The date of injury is earlier than             2001 c.865 §11; 2005 c.188 §2]
January 1, 1966. In such cases, in addition to
                                                            Note: See notes under 656.202.
the payment of temporary disability compen-
sation, the payment of medical benefits may                 656.280 [Amended by 1965 c.285 §41b; renumbered
                                                       656.325]
be provided.
                                                            656.282 [Amended by 1957 c.455 §1; repealed by 1965
    (2) Benefits provided under subsection (1)         c.285 §95]
of this section:                                           656.283 Hearing rights and procedure;
    (a) Do not include vocational assistance           rules; impeachment evidence; use of
benefits under ORS 656.340;                            standards for evaluation of disability. (1)
    (b) Do not include temporary disability            Subject to ORS 656.319, any party or the Di-
compensation for periods of time during                rector of the Department of Consumer and
                                                       Business Services may at any time request a
which the claimant did not qualify as a                hearing on any matter concerning a claim,
“worker” pursuant to ORS 656.005 (30);                 except matters for which a procedure for re-
    (c) Do not include medical services pro-           solving the dispute is provided in another
vided pursuant to ORS 656.245 except as                statute, including ORS 656.704.

                                                  63
656.283                       LABOR AND EMPLOYMENT

     (2) A request for hearing may be made                (B) The 120-day maximum postponement
by any writing, signed by or on behalf of the         established under paragraph (a) of this sub-
party and including the address of the party,         section for rescheduling a hearing does not
requesting the hearing, stating that a hear-          apply.
ing is desired, and mailed to the Workers’                (4)(a) At least 60 days’ prior notice of the
Compensation Board.                                   time and place of hearing shall be given to
     (3)(a) The board shall refer the request         all parties in interest by mail. Hearings
for hearing to an Administrative Law Judge            shall be held in the county where the worker
for determination as expeditiously as possi-          resided at the time of the injury or such
ble. The hearing shall be scheduled for a date        other place selected by the Administrative
not more than 90 days after receipt by the            Law Judge.
board of the request for hearing. The hearing             (b) The 60-day prior notice required by
may not be postponed:                                 paragraph (a) of this subsection:
     (A) Except in extraordinary circum-                  (A) May be waived by agreement of the
stances beyond the control of the requesting          parties and the board if waiver of the notice
party; and                                            will result in an earlier date for the hearing.
     (B) For more than 120 days after the date            (B) Does not apply to hearings in cases
of the postponed hearing.                             assigned to the Expedited Claim Service un-
     (b) When a hearing set pursuant to para-         der ORS 656.291, cases involving stayed
graph (a) of this subsection is postponed be-         compensation under ORS 656.313 (1)(b) and
cause of the need to join one or more                 requests for hearing that are consolidated
potentially responsible employers or insurers,        with an existing case with an existing hear-
the assigned Administrative Law Judge shall           ing date.
reschedule the hearing as expeditiously as                (5) A record of all proceedings at the
possible after all potentially responsible em-        hearing shall be kept but need not be tran-
ployers and insurers have been joined in the          scribed unless a party requests a review of
proceeding and the medical record has been            the order of the Administrative Law Judge.
fully developed. The board shall adopt rules          Transcription shall be in written form as
for hearings on claims involving one or more          provided by ORS 656.295 (3).
potentially responsible employers and in-                 (6) Except as otherwise provided in this
surers that:                                          section and rules of procedure established by
     (A) Require the parties to participate in        the board, the Administrative Law Judge is
any prehearing conferences required to expe-          not bound by common law or statutory rules
dite the hearing; and                                 of evidence or by technical or formal rules
                                                      of procedure, and may conduct the hearing
     (B) Authorize the Administrative Law             in any manner that will achieve substantial
Judge conducting the hearing to:                      justice. Neither the board nor an Adminis-
     (i) Establish a prehearing schedule for          trative Law Judge may prevent a party from
investigation of the claim, including but not         withholding impeachment evidence until the
limited to the interviewing of the claimant;          opposing party’s case in chief has been pre-
     (ii) Make prehearing rulings necessary to        sented, at which time the impeachment evi-
promote full discovery and completion of the          dence may be used. Impeachment evidence
medical record required for determination of          consisting of medical or vocational reports
the issues arising from the claim; and                not used during the course of a hearing must
                                                      be provided to any opposing party at the
     (iii) Specify what is required of the            conclusion of the presentation of evidence
claimant to meet the obligation to reasonably         and before closing arguments are presented.
cooperate with the investigation of claims.           Impeachment evidence other than medical or
     (c) Nothing in paragraph (b) of this sub-        vocational reports that is not presented as
section alters the obligation of an insurer or        evidence at hearing is not subject to disclo-
self-insured employer to accept or deny a             sure. Evaluation of the worker’s disability by
claim for compensation as required under              the Administrative Law Judge shall be as of
this chapter.                                         the date of issuance of the reconsideration
                                                      order pursuant to ORS 656.268. Any finding
     (d) If a hearing has been postponed in           of fact regarding the worker’s impairment
accordance with paragraph (b) of this sub-            must be established by medical evidence that
section:                                              is supported by objective findings. The Ad-
     (A) The director may not consider the            ministrative Law Judge shall apply to the
timeliness of a denial issued in the claim            hearing of the claim such standards for eval-
that is the subject of the hearing for the            uation of disability as may be adopted by the
purpose of imposing a penalty against an in-          director pursuant to ORS 656.726. Evidence
surer or self-insured employer that is poten-         on an issue regarding a notice of closure that
tially responsible for the claim; and                 was not submitted at the reconsideration re-

                                                 64
                                       WORKERS′ COMPENSATION                                                       656.289

quired by ORS 656.268 is not admissible at                          available     for   testimony    and    cross-
hearing, and issues that were not raised by                         examination.
a party to the reconsideration may not be                                (2) The Workers’ Compensation Board
raised at hearing unless the issue arises out                       shall establish rules to govern the admissi-
of the reconsideration order itself. However,                       bility of reports from vocational experts, in-
nothing in this section shall be construed to                       cluding     guidelines   to   establish    the
prevent or limit the right of a worker, in-                         competency of vocational experts. [1973 c.581
surer or self-insured employer to present the                       §§1,2; 1985 c.600 §10]
reconsideration record at hearing to estab-                              656.288 [Amended by 1957 c.288 §1; repealed by 1965
lish by a preponderance of that evidence that                       c.285 §95]
the standards adopted pursuant to ORS
656.726 for evaluation of the worker’s per-                             656.289 Orders of Administrative Law
manent disability were incorrectly applied in                       Judge; review; disposition of claim when
the reconsideration order pursuant to ORS                           compensability disputed; approval of di-
656.268. If the Administrative Law Judge                            rector required for reimbursement of
finds that the claim has been closed prema-                         certain expenditures. (1) Upon the conclu-
turely, the Administrative Law Judge shall                          sion of any hearing, or prior thereto with
issue an order rescinding the notice of clo-                        concurrence of the parties, the Administra-
sure.                                                               tive Law Judge shall promptly and not later
                                                                    than 30 days after the hearing determine the
    (7) Any party shall be entitled to issu-                        matter and make an order in accordance
ance and service of subpoenas under the                             with the Administrative Law Judge’s deter-
provisions of ORS 656.726 (2)(c). Any party                         mination.
or representative of the party may serve such
subpoenas.                                                              (2) A copy of the order shall be sent
    (8) After a party requests a hearing and                        forthwith by mail to the Director of the De-
before the hearing commences, the board, by                         partment of Consumer and Business Services
rule, may require the requesting party, if                          and to all parties in interest.
represented by an attorney, to notify the Ad-                           (3) The order is final unless, within 30
ministrative Law Judge in writing that the                          days after the date on which a copy of the
attorney has conferred with the other party                         order is mailed to the parties, one of the
and that settlement has been achieved, sub-                         parties requests a review by the Workers’
ject to board approval, or that settlement                          Compensation Board under ORS 656.295.
cannot be achieved. [1965 c.285 §34; 1979 c.839 §7;                 When one party requests a review by the
1981 c.535 §33; 1981 c.860 §§1,5; 1985 c.600 §9; 1987 c.884         board, the other party or parties shall have
§11; 1990 c.2 §20; 1995 c.332 §34; 1999 c.313 §7; 2003 c.667        the remainder of the 30-day period and in no
§2; 2005 c.26 §11; 2005 c.624 §1; 2009 c.35 §2]
                                                                    case less than 10 days in which to request
     Note: See notes under 656.202.                                 board review in the same manner. The 10-day
     656.284 [Amended by 1953 c.671 §2; 1955 c.718 §2;              requirement may carry the period of time al-
1959 c.450 §4; repealed by 1965 c.285 §95]                          lowed for requests for board reviews beyond
    656.285 Protection of witnesses at                              the 30th day. The order shall contain a
hearings. ORCP 36 C shall apply to workers’                         statement explaining the rights of the parties
compensation cases, except that the Admin-                          under this subsection and ORS 656.295.
istrative Law Judge shall make the determi-                             (4)(a) Notwithstanding ORS 656.236, in
nations and orders required of the court in                         any case where there is a bona fide dispute
ORCP 36 C, and in addition attorney fees                            over compensability of a claim, the parties
shall not be declared as a matter of course                         may, with the approval of an Administrative
but only in cases of harassment or hardship.                        Law Judge, the board or the court, by agree-
[1973 c.652 §1; 1977 c.358 §11; 1979 c.284 §187]
                                                                    ment make such disposition of the claim as
    656.287 Use of vocational reports in                            is considered reasonable.
determining loss of earning capacity at
hearing; rules. (1) Where there is an issue                             (b) Insurers or self-insured employers
regarding loss of earning capacity, reports                         who are parties to an approved disputed
from vocational consultants employed by                             claim settlement under this subsection shall
governmental agencies, insurers or self-                            not be joined as parties in subsequent pro-
insured employers, or from private vocational                       ceedings under this chapter to determine re-
consultants, regarding job opportunities, the                       sponsibility for payment for claim conditions
fitness of claimant to perform certain jobs,                        for which settlement has been made.
wage levels, or other information relating to                           (c) Notwithstanding ORS 656.005 (21), as
claimant’s employability shall be admitted                          used in this subsection, “party” does not in-
into evidence at compensation hearings, pro-                        clude a noncomplying employer, except
vided such information is submitted to                              where a noncomplying employer has submit-
claimant 10 days prior to hearing and that                          ted a disputed claim settlement with a
upon demand from the adverse party the                              claimant for approval before the claim has
person preparing such report shall be made                          been referred to an assigned claims agent by

                                                               65
656.291                                LABOR AND EMPLOYMENT

the director. Upon approval of the disputed                        is not an attorney may represent oneself or
claim settlement, the Administrative Law                           other persons who consent to such represen-
Judge, the board or the court shall mail to                        tation at any proceeding before the Expe-
the director a copy of the disputed claim                          dited Claim Service.
settlement.                                                            (6) Any compromises, agreements, admis-
    (5) Any claim in which the parties enter                       sions, stipulations, statements of fact that
into a disposition under subsection (4) of this                    are made or other such action taken by the
section shall not be eligible for reimburse-                       representative is binding on those repre-
ment of expenditures from the Workers’                             sented to the same extent as if done by an
Benefit Fund without the prior approval of                         attorney. A person so represented may not
the director. [1965 c.285 §35; 1969 c.212 §1; 1977 c.804           thereafter claim that any such proceeding or
§9; 1983 c.809 §3; 1990 c.2 §21; 1995 c.332 §35; 1995 c.641        meeting was legally defective because the
§19]                                                               person was not represented by an attorney.
     656.290 [Amended by 1955 c.718 §3; repealed by 1965
c.285 §95]                                                             (7) An individual who is not an attorney
                                                                   may not represent a claimant for a fee at any
    656.291 Expedited Claim Service; ju-                           proceeding under this chapter.
risdiction;    procedure;     representation;
rules. (1) The Workers’ Compensation Board,                            (8) As used in this             subsection,
by rule, shall establish an Expedited Claim                        “attorney” has the meaning for that term
Service to provide for prompt, informal dis-                       provided in ORS 9.005. [1987 c.884 §18]
position of claims.                                                     656.292 [Amended by 1965 c.285 §38; renumbered
                                                                   656.301]
    (2) The board shall assign to the service
                                                                        656.294 [Amended by 1965 c.285 §37; renumbered
those claims:                                                      656.304]
    (a) For which a hearing has been re-                               656.295 Board review of Administra-
quested when the only matters unresolved do                        tive Law Judge orders; application of
not include compensability of the claim and                        standards for evaluation of disability. (1)
the amount in controversy is $1,000 or less;                       The request for review by the Workers’
or                                                                 Compensation Board of an order of an Ad-
    (b) For which the only matters unre-                           ministrative Law Judge need only state that
solved are attorney fees or penalties.                             the party requests a review of the order.
    (3)(a) The amount in controversy shall be                          (2) The requests for review shall be
deemed less than $1,000 if the party request-                      mailed to the board and copies of the request
ing hearing so indicates, the other party does                     shall be mailed to all parties to the proceed-
not disagree and the Administrative Law                            ing before the Administrative Law Judge.
Judge does not conclude, based on the evi-
dence, that the amount in controversy ex-                              (3) When review has been requested, the
ceeds $1,000. In a case assigned pursuant to                       record of such oral proceedings at the hear-
subsection (2)(a) of this section, if the Ad-                      ings before the Administrative Law Judge as
ministrative Law Judge finds that the                              may be necessary for purposes of the review
amount in controversy exceeds $1,000, the                          shall be transcribed at the expense of the
Administrative Law Judge shall refer the                           board. The original transcript shall be certi-
case for disposition under the ordinary hear-                      fied to be true, accurate and complete by the
ing process.                                                       transcriber. A list of all exhibits received by
                                                                   the Administrative Law Judge shall be fur-
    (b) Cases assigned to the Expedited Claim                      nished to the parties in interest along with
Service pursuant to subsection (2)(a) of this                      a copy of the transcribed record.
section shall be heard within 30 days of the
request for hearing, and an order shall be                             (4) Notice of the review shall be given to
issued within 10 days of the close of the                          the parties by mail. The board shall set a
hearing.                                                           date for review as expeditiously as possible.
                                                                   Review shall be scheduled for a date not
    (c) No hearing shall be held in cases as-                      later than 90 days after receipt by the board
signed to the Expedited Claim Service pur-                         of the request for review. Review shall not
suant to subsection (2)(b) of this section                         be postponed except in extraordinary cir-
unless the Administrative Law Judge finds                          cumstances beyond the control of the re-
that the dispute cannot be decided on stipu-                       questing party.
lated facts.
                                                                       (5) The review by the board shall be
    (4) The board, by rule, shall establish the                    based upon the record submitted to it under
procedures for disposition of claims by the                        subsection (3) of this section and such oral
Expedited Claim Service to insure fair and                         or written argument as it may receive. Eval-
just treatment of workers in all such pro-                         uation of the worker’s disability by the board
ceedings.                                                          shall be as of the date of issuance of the re-
    (5) Notwithstanding ORS 9.320 or any                           consideration order pursuant to ORS 656.268.
provision of this chapter, an individual who                       Any finding of fact regarding the worker’s

                                                              66
                                       WORKERS′ COMPENSATION                                                  656.298

impairment must be established by medical                           Appeals the original petition for judicial re-
evidence that is supported by objective find-                       view with proof of service indorsed thereon.
ings. If the board finds that the claim has                         The petition for judicial review shall state:
been closed prematurely, the board shall is-                             (a) The name of the person requesting
sue an order rescinding the notice of closure.                      judicial review and of all other parties.
The board shall apply to the review of the
claim such standards for the evaluation of                               (b) The date of the filing of the order for
disability as may be adopted by the Director                        which judicial review is requested.
of the Department of Consumer and Business                               (c) A statement that the person is re-
Services pursuant to ORS 656.726. Nothing                           questing judicial review by the Court of Ap-
in this section shall be construed to prevent                       peals.
or limit the right of a worker, insurer or                               (d) A brief statement of the relief re-
self-insured employer to present evidence to                        quested and the reasons the relief should be
establish by a preponderance of the evidence                        granted.
that the standards adopted pursuant to ORS
656.726 for evaluation of the worker’s per-                              (4) Within 10 days after service of a pe-
manent disability were incorrectly applied in                       tition for judicial review on a party under
the reconsideration order pursuant to ORS                           subsection (3) of this section, such party may
656.268. However, if the board determines                           also request judicial review in the same
that a case has been improperly, incom-                             manner.
pletely or otherwise insufficiently developed                            (5) The following requirements of subsec-
or heard by the Administrative Law Judge,                           tion (3) of this section are jurisdictional and
it may remand the case to the Administrative                        may not be waived or extended:
Law Judge for further evidence taking, cor-                              (a) Service of the petition for judicial re-
rection or other necessary action.                                  view on all parties identified in the petition
     (6) The board may affirm, reverse, modify                      for judicial review as adverse parties or, if
or supplement the order of the Administra-                          the petition for judicial review does not
tive Law Judge and make such disposition of                         identify adverse parties, on all parties who
the case as it determines to be appropriate.                        have appeared in the proceeding before the
It shall make its decision within 30 days af-                       board, within the time limits imposed by ORS
ter the review.                                                     656.295 (8) and by subsection (4) of this sec-
                                                                    tion.
     (7) The order of the board shall be filed
and a copy thereof sent by mail to the direc-                            (b) Filing of the original petition for ju-
tor and to the parties.                                             dicial review with the Court of Appeals
                                                                    within the time limits imposed by ORS
     (8) An order of the board is final unless                      656.295 (8) and by subsection (4) of this sec-
within 30 days after the date of mailing of                         tion.
copies of such order to the parties, one of the
                                                                         (6) Within 30 days after service of a pe-
parties appeals to the Court of Appeals for                         tition for judicial review on the board, the
judicial review pursuant to ORS 656.298. The                        board shall forward to the clerk of the Court
order shall contain a statement explaining                          of Appeals:
the rights of the parties under this subsec-
tion and ORS 656.298. [1965 c.285 §35a; 1977 c.804                       (a) The original copy of the transcribed
§10; 1987 c.884 §12; 1990 c.2 §22; 1991 c.293 §1; 1999 c.313        record prepared under ORS 656.295.
§8]
                                                                         (b) All exhibits.
    Note: See notes under 656.202.
                                                                         (c) Copies of all decisions and orders en-
    656.298 Judicial review of board or-                            tered during the hearing and review pro-
ders; settlement during pendency of peti-                           ceedings.
tion for review. (1) Within the time limit                               (7) The review by the Court of Appeals
specified in ORS 656.295, any party affected                        shall be on the entire record forwarded by
by an order of the Workers’ Compensation                            the board. Review shall be as provided in
Board, including orders issued pursuant to                          ORS 183.482 (7) and (8).
ORS 656.278, may request judicial review of
the order by the Court of Appeals.                                       (8) Review under this section shall be
                                                                    given precedence on the docket over all
    (2) The name and style of the proceedings                       other cases, except those given equal status
shall be “In the Matter of the Compensation                         by statute.
of (name of the worker).”
                                                                         (9)(a) If the parties to a petition for judi-
    (3) The judicial review shall be com-                           cial review of an order of the board settle all
menced by serving a copy of a petition for                          or part of the matter during the pendency of
judicial review on the board and on the par-                        the petition for judicial review, the board has
ties who appeared in the review proceedings,                        jurisdiction to enter any orders that may be
and by filing with the clerk of the Court of                        necessary to implement the settlement.

                                                               67
656.304                               LABOR AND EMPLOYMENT

    (b) If the settlement disposes of all issues                       (3) When a determination of the respon-
during the pendency of the petition for judi-                     sible paying party has been made, the direc-
cial review, the appellate court may dismiss                      tor shall direct any necessary monetary
the petition for judicial review.                                 adjustment between the parties involved.
    (c) If the settlement disposes of part of                     Any monetary adjustment not reimbursed by
the issues during the pendency of the peti-                       an insurer or self-insured employer shall be
tion for judicial review, the appellate court                     recovered from the Consumer and Business
may limit judicial review to the issues not                       Services Fund. Any stipulation or agreement
disposed of by the settlement. [1965 c.285 §36;                   under subsection (6) of this section shall not
1977 c.804 §11; 1987 c.884 §12a; 1997 c.389 §1; 2005 c.188        obligate the Consumer and Business Services
§3; 2007 c.17 §1]                                                 Fund for reimbursement without prior ap-
     Note: See notes under 656.202.                               proval of the Director of the Department of
     656.301 [Formerly 656.292; repealed by 1977 c.804            Consumer and Business Services.
§55]                                                                   (4) No self-insured employer or an in-
    656.304 When acceptance of compen-                            surer shall be joined in any proceeding under
sation precludes hearing. A claimant may                          this section regarding its responsibility for
accept and cash any check given in payment                        any claim subject to ORS 656.273 unless the
of any award or compensation without af-                          issue is entitled to hearing on application of
fecting the right to a hearing, except that                       the worker.
the right of hearing on any award shall be                             (5) The claimant shall be joined in any
waived by acceptance of a lump sum award                          proceeding under this section as a necessary
by a claimant where such lump sum award                           party, but may elect to be treated as a nom-
was granted as a result of the claimant’s own                     inal party. If the claimant appears at any
request under ORS 656.230. This section                           such proceeding and actively and meaning-
shall not be construed as a waiver of the                         fully participates through an attorney, the
necessity of complying with ORS 656.283 to                        Administrative Law Judge may require that
656.298. [Formerly 656.294; 2007 c.270 §6]                        a reasonable fee for the claimant’s attorney
    656.307 Determination of issues re-                           be paid by the employer or insurer deter-
garding responsibility for compensation                           mined by the Administrative Law Judge to
payment; mediation or arbitration proce-                          be the party responsible for paying the claim.
dure; rules. (1)(a) Where there is an issue                            (6)(a) Notwithstanding subsection (2) of
regarding:                                                        this section, parties to a responsibility pro-
    (A) Which of several subject employers                        ceeding under this section may agree to res-
is the true employer of a claimant worker;                        olution of the dispute by mediation or
    (B) Which of more than one insurer of a                       arbitration by a private party. Any settle-
certain employer is responsible for payment                       ment stipulation, arbitration decision or
of compensation to a worker;                                      other resolution of matters in dispute result-
                                                                  ing from mediation or arbitration pro-
    (C) Responsibility between two or more
employers or their insurers involving pay-                        ceedings shall be filed with the Hearings
ment of compensation for one or more acci-                        Division and shall be given the same force
dental injuries; or                                               and effect as an order of an Administrative
                                                                  Law Judge made pursuant to subsection (2)
    (D) Joint employment by two or more                           of this section. However, any such settlement
employers,                                                        stipulation, arbitration decision or other res-
the Director of the Department of Consumer                        olution is binding on the parties and is not
and Business Services shall, by order, desig-                     subject to review by the director, an Admin-
nate who shall pay the claim, if the employ-                      istrative Law Judge, the board or any court
ers and insurers admit that the claim is                          or other administrative body, unless required
otherwise compensable. Payments shall begin                       pursuant to paragraph (d) of this subsection
in any event as provided in ORS 656.262 (4).                      or subsection (3) of this section.
    (b) At the time of claim closure, all par-                         (b) For purposes of this subsection, medi-
ties to an order issued pursuant to paragraph                     ation is a process of discussion and negoti-
(a) of this subsection shall have reconsider-                     ation, with the mediator playing a central
ation and appeal rights.                                          role in seeking a consensus among the par-
    (2) The director then shall request the                       ties. Such consensus may be reflected in a
Workers’ Compensation Board chairperson to                        final mediation settlement stipulation, signed
appoint an Administrative Law Judge to de-                        by all the parties and fully binding upon the
termine the responsible paying party. The                         parties with the same effect as a final order
proceedings shall be conducted in the same                        of an Administrative Law Judge, when the
manner as any other hearing and any further                       signed mediation settlement stipulation is
appeal shall be conducted pursuant to ORS                         filed with the Hearings Division of the
656.295 and 656.298.                                              Workers’ Compensation Board.

                                                             68
                               WORKERS′ COMPENSATION                                                    656.307

     (c) For purposes of this subsection, arbi-        sedes any legal ethics restrictions otherwise
tration is an agreement to submit the matter           provided for in law or regulation.
to a binding decision by an arbitrator,                     (h) If the claimant is represented by an
through a process mutually agreed upon in              attorney, the other parties must arrange for
advance. Once all the parties have agreed in           payment of a reasonable attorney fee for the
writing to proceed with arbitration, no party          claimant’s attorney’s services during the me-
may withdraw from the arbitration process              diation or arbitration. Any mediation or ar-
except as provided in the written arbitration          bitration agreement shall specify the terms
agreement.                                             of the fee arrangement.
     (d) A mediation settlement stipulation                 (i) If the claimant is not represented by
may include matters beyond the responsibil-            an attorney, the mediation process cannot
ity issues. If other matters are included, the         include any issue other than responsibility.
settlement agreement shall be submitted to             A nonrepresented claimant must be advised
the Hearings Division of the Workers’ Com-             in writing of the following before the medi-
pensation Board for review and approval,               ation or arbitration proceeds:
under this chapter, as to such additional
matters beyond the responsibility issues.                   (A) The claimant’s right to refuse to par-
                                                       ticipate in mediation or arbitration pro-
     (e) Any arbitration decision shall be lim-        ceedings and to, instead, proceed to a
ited to a decision as to responsibility and,           hearing before an Administrative Law Judge;
where appropriate, the payment of associated
costs and attorney fees. The arbitrator’s de-               (B) The present rate of temporary total
cision shall have the same effect as a final           disability benefits for each alleged date of
                                                       injury;
order of an Administrative Law Judge when
the signed decision is filed with the Hearings              (C) The present rate of permanent partial
Division.                                              disability benefits for each alleged date of
                                                       injury;
     (f) When the parties have reported to the
Hearings Division that they have agreed                     (D) The estimated date of expiration of
upon a mediation or arbitration process, the           aggravation rights for each alleged date of
hearing shall be deferred for 90 days to allow         injury; and
the mediation or arbitration process to oc-                 (E) The claimant’s right to be repre-
cur. Once 90 days have passed, the matter              sented by counsel of the claimant’s choice at
shall again be docketed for hearing unless             no expense to the claimant.
the parties advise the Hearings Division in                 (j) Notwithstanding any other provision
writing that progress has been made and re-            of law, any insurer or self-insured employer
quest an extension of time of up to 90 days,           may be represented by a certified claims ex-
which extension of time shall be granted as            aminer rather than by an attorney in any
a matter of right. Once the second 90 days             mediation or arbitration hereunder. Any sep-
have passed, the matter shall again be dock-           arate insured for the same insurer shall be
eted for hearing, and the hearing shall pro-           represented by a separate claims examiner,
ceed before an Administrative Law Judge as             if the insured has a continuing financial ex-
though there had been no mediation or arbi-            posure as to the claim; where no continuing
tration process, unless the parties present a          financial exposure exists, a single certified
mediation settlement stipulation or signed             claims examiner may represent more than
arbitration decision before the hearing be-            one insured for the same insurer in the me-
gins.                                                  diation or arbitration proceeding.
     (g) All parties must agree in writing to               (k) Any other procedures as to mediation
pursue mediation or arbitration and must               or arbitration shall be subject to agreement
agree upon the selection of the mediator or            among the parties. The Workers’ Compensa-
arbitrator. The mediator or arbitrator shall           tion Board may adopt rules as to the process
not be an employee of any insurer or self-             for deferral and docketing of hearings where
insured employer that is a party to the pro-           mediation or arbitration occurs, the filing of
                                                       arbitration decisions as orders of the Hear-
ceedings. The mediator or arbitrator must be           ings Division, the filing of mediation settle-
an attorney admitted to practice law in the            ment stipulations regarding responsibility as
State of Oregon. The mediator or arbitrator            orders of the Hearings Division, and review
may serve as a mediator or arbitrator, even            and approval of mediation settlement stipu-
if the mediator or arbitrator separately re-           lations that extend beyond the issues of re-
presents any insurer or self-insured employer          sponsibility and associated attorney fees and
in other proceedings, provided that all par-           costs. The Workers’ Compensation Board
ties are advised of such representation and            shall not enact rules that restrict the medi-
consent in writing that the mediator or                ation or arbitration process except to the
arbitrator may so serve despite such other             extent provided within this section. [1965 c.285
representation. Such written consent super-            §39; 1971 c.70 §1; 1979 c.839 §8; 1987 c.713 §5; 1995 c.332

                                                  69
656.308                                LABOR AND EMPLOYMENT

§36; 1997 c.43 §1; 1999 c.313 §9; 1999 c.876 §3; 2003 c.657        does not contain substantial evidence to sup-
§§9,10; 2007 c.274 §5]                                             port a finding of responsibility against that
     656.308 Responsibility for payment of                         party. The Administrative Law Judge shall
claims; effect of new injury; denial of re-                        decide such motions and inform the parties
sponsibility; procedure for joining em-                            not less than seven days prior to the hearing,
ployers and insurers; attorney fees;                               or postpone the hearing.
limitation on filing claims subject to                                 (d) Notwithstanding ORS 656.382 (2),
settlement agreement. (1) When a worker                            656.386 and 656.388, a reasonable attorney
sustains a compensable injury, the responsi-                       fee shall be awarded to the attorney for the
ble employer shall remain responsible for fu-                      injured worker for the attorney’s appearance
ture compensable medical services and                              and active and meaningful participation in
disability relating to the compensable condi-                      finally prevailing against a responsibility de-
tion unless the worker sustains a new com-                         nial. The fee shall not exceed $2,500 absent
pensable injury involving the same condition.                      a showing of extraordinary circumstances.
If a new compensable injury occurs, all fur-                       The maximum attorney fee awarded under
ther compensable medical services and disa-                        this paragraph shall be adjusted annually on
bility involving the same condition shall be                       July 1 by the same percentage increase as
processed as a new injury claim by the sub-                        made to the average weekly wage defined in
sequent employer. The standards for deter-                         ORS 656.211, if any.
mining the compensability of a combined
condition under ORS 656.005 (7) shall also be                          (3) A worker who is a party to an ap-
used to determine the occurrence of a new                          proved disputed claim settlement agreement
compensable injury or disease under this                           under ORS 656.289 (4) may not subsequently
section.                                                           file a claim against an insurer or a self-
                                                                   insured employer who is a party to the
     (2)(a) Any insurer or self-insured em-                        agreement with regard to claim conditions
ployer who disputes responsibility for a claim                     settled in the agreement even if other in-
shall so indicate in or as part of a denial                        surers or employers disclaim responsibility
otherwise meeting the requirements of ORS                          for those claim conditions. A worker who is
656.262 issued in the 60 days allowed for                          a party to an approved claim disposition
processing of the claim. The denial shall ad-                      agreement under ORS 656.236 (1) may not
vise the worker to file separate, timely                           subsequently file a claim against an insurer
claims against other potentially responsible                       or a self-insured employer who is a party to
insurers or self-insured employers, including                      the agreement with regard to any matter
other insurers for the same employer, in or-                       settled in the agreement even if other in-
der to protect the right to obtain benefits on                     surers or employers disclaim responsibility
the claim. The denial may list the names and                       for those claim conditions, unless the claim
addresses of other insurers or self-insured                        in the subsequent proceeding is limited to a
employers. Such denials shall be final unless                      claim for medical services for claim condi-
the worker files a timely request for hearing                      tions settled in the agreement. [1990 c.2 §49;
pursuant to ORS 656.319. All such requests                         1995 c.332 §37; 2001 c.865 §8; 2009 c.526 §2]
for hearing shall be consolidated into one                             Note: See notes under 656.202.
proceeding.
                                                                       656.310 Presumption concerning notice
     (b) No insurer or self-insured employer,                      of injury and self-inflicted injuries; re-
including other insurers for the same em-                          ports as evidence. (1) In any proceeding for
ployer, shall be joined to any workers’ com-                       the enforcement of a claim for compensation
pensation hearing unless the worker has first                      under this chapter, there is a rebuttable pre-
filed a timely, written claim against that in-                     sumption that:
surer or self-insured employer, or the insurer
or self-insured employer has consented to is-                          (a) Sufficient notice of injury was given
suance of an order designating a paying                            and timely filed; and
agent pursuant to ORS 656.307. An insurer                              (b) The injury was not occasioned by the
or self-insured employer against whom a                            willful intention of the injured worker to
claim is filed may contend that responsibility                     commit self-injury or suicide.
lies with another insurer or self-insured em-                          (2) The contents of medical, surgical and
ployer, including another insurer for the                          hospital reports presented by claimants for
same employer, regardless of whether the                           compensation shall constitute prima facie
worker has filed a claim against that insurer                      evidence as to the matter contained therein;
or self-insured employer.                                          so, also, shall such reports presented by the
     (c) Upon written notice by an insurer or                      insurer or self-insured employer, provided
self-insured employer filed not more than 28                       that the doctor rendering medical and surgi-
days or less than 14 days before the hearing,                      cal reports consents to submit to cross-
the Administrative Law Judge shall dismiss                         examination. This subsection shall also apply
that party from the proceeding if the record                       to medical or surgical reports from any

                                                              70
                                    WORKERS′ COMPENSATION                                              656.313

treating or examining doctor who is not a                      to repay any such compensation which was
resident of Oregon, provided that the claim-                   paid pending the review or appeal.
ant, self-insured employer or the insurer                           (3) If an insurer or self-insured employer
shall have a reasonable time, but no less                      denies the compensability of all or any por-
than 30 days after receipt of notice that the                  tion of a claim submitted for medical ser-
report will be offered in evidence at a hear-                  vices, the insurer or self-insured employer
ing, to cross-examine such doctor by deposi-                   shall send notice of the denial to each pro-
tion or by written interrogatories to be                       vider of such medical services and to any
settled by the Administrative Law Judge.                       provider of health insurance for the injured
[1965 c.285 §40; 1969 c.447 §1; 1981 c.854 §21]
                                                               worker. Except for medical services payable
     656.312 [Amended by 1953 c.428 §2; 1965 c.285 §44;        in accordance with ORS 656.247, after re-
renumbered 656.578]
                                                               ceiving notice of the denial, a medical ser-
     656.313 Stay of compensation pending                      vice provider may submit medical reports
request for hearing or review; procedure                       and bills for the disputed medical services to
for denial of claim for medical services;                      the provider of health insurance for the in-
reimbursement. (1)(a) Filing by an employer                    jured worker. The health insurance provider
or the insurer of a request for hearing on a                   shall pay all such bills in accordance with
reconsideration order before the Hearings                      the limits, terms and conditions of the policy.
Division, a request for Workers’ Compensa-                     If the injured worker has no health insur-
tion Board review or court appeal or request                   ance, such bills may be submitted to the in-
for review of an order of the Director of the                  jured worker. A provider of disputed medical
Department of Consumer and Business Ser-                       services shall make no further effort to col-
vices regarding vocational assistance stays                    lect disputed medical service bills from the
payment of the compensation appealed, ex-                      injured worker until the issue of compensa-
cept for:                                                      bility of the medical services has been finally
     (A) Temporary disability benefits that                    determined.
accrue from the date of the order appealed                          (4) Except for medical services payable in
from until closure under ORS 656.268, or un-                   accordance with ORS 656.247:
til the order appealed from is itself reversed,                     (a) When the compensability issue has
whichever event first occurs;                                  been finally determined or when disposition
     (B) Permanent total disability benefits                   or settlement of the claim has been made
that accrue from the date of the order ap-                     pursuant to ORS 656.236 or 656.289 (4), the
pealed from until the order appealed from is                   insurer or self-insured employer shall notify
                                                               each affected service provider and health in-
reversed;                                                      surance provider of the results of the dispo-
     (C) Death benefits payable to a surviving                 sition or settlement.
spouse prior to remarriage, to children or                          (b) If the services are determined to be
dependents that accrue from the date of the                    compensable, the insurer or self-insured em-
order appealed from until the order appealed                   ployer shall reimburse each health insurance
from is reversed; and                                          provider for the amount of claims paid by the
     (D) Vocational benefits ordered by the                    health insurance provider pursuant to this
director pursuant to ORS 656.340 (16). If a                    section. Such reimbursement shall be in ad-
denial of vocational benefits is upheld by a                   dition to compensation or medical benefits
final order, the insurer or self-insured em-                   the worker receives. Medical service re-
ployer shall be reimbursed from the Workers’                   imbursement shall be paid directly to the
Benefit Fund pursuant to ORS 656.605 for all                   health insurance provider.
costs incurred in providing vocational bene-                        (c) If the services are settled pursuant to
fits as a result of the order that was ap-                     ORS 656.289 (4), the insurer or self-insured
pealed.                                                        employer shall reimburse, out of the settle-
                                                               ment proceeds, each medical service provider
     (b) If ultimately found payable under a                   for billings received by the insurer or self-
final order, benefits withheld under this sub-                 insured employer on and before the date on
section shall accrue interest at the rate pro-                 which the terms of settlement are agreed as
vided in ORS 82.010 from the date of the                       specified in the settlement document that are
order appealed from through the date of pay-                   not otherwise partially or fully reimbursed.
ment. The board shall expedite review of ap-
peals in which payment of compensation has                          (d) Reimbursement under this section
been stayed under this section.                                shall be made only for medical services re-
                                                               lated to the claim that would be compensable
     (2) If the board or court subsequently or-                under this chapter if the claim were com-
ders that compensation to the claimant                         pensable and shall be made at one-half the
should not have been allowed or should have                    amount provided under ORS 656.248. In no
been awarded in a lesser amount than                           event shall reimbursement made to medical
awarded, the claimant shall not be obligated                   service providers exceed 40 percent of the

                                                          71
656.319                                 LABOR AND EMPLOYMENT

total present value of the settlement amount,                       ing on such objections shall not be granted
except with the consent of the worker. If the                       unless a request for hearing is filed within
settlement proceeds are insufficient to allow                       30 days after the copies of the reconsider-
each medical service provider the reimburse-                        ation order were mailed to the parties.
ment amount authorized under this subsec-                                (5) With respect to objection by a claim-
tion, the insurer or self-insured employer                          ant to a notice of refusal to close a claim
shall reduce each provider’s reimbursement                          under ORS 656.268, a hearing on the ob-
by the same proportional amount. Re-                                jection shall not be granted unless the re-
imbursement under this section shall not                            quest for hearing is filed within 60 days after
prevent a medical service provider or health                        copies of the notice of refusal to close were
insurance provider from recovering the bal-                         mailed to the parties.
ance of amounts owing for such services di-
rectly from the worker.                                                  (6) A hearing for failure to process or an
                                                                    allegation that the claim was processed in-
    (5) As used in this section, “health in-                        correctly shall not be granted unless the re-
surance” has the meaning for that term pro-                         quest for hearing is filed within two years
vided in ORS 731.162. [1965 c.285 §41; 1979 c.673                   after the alleged action or inaction occurred.
§1; 1981 c.535 §8; 1981 c.854 §22; 1983 c.809 §2; 1990 c.2
§23; 1993 c.521 §1; 1995 c.332 §38; amendments by 1995                   (7) With respect to objection by a claim-
c.332 §38a repealed by 1999 c.6 §1; 1999 c.6 §11; 2001 c.865        ant to a notice of closure issued under ORS
§13a; 2005 c.588 §4; 2009 c.35 §4]
                                                                    656.206, a hearing on the objection shall not
     Note: See notes under 656.202.
                                                                    be granted unless the request for hearing is
     656.314 [Amended by 1965 c.285 §45; renumbered                 filed within 60 days after the notice of clo-
656.580]
                                                                    sure was mailed to the claimant. [1965 c.285
     656.316 [Amended by 1953 c.428 §2; 1965 c.285 §46;             §41a; 1969 c.206 §1; 1975 c.497 §4; 1983 c.819 §1; 1987 c.884
renumbered 656.583]                                                 §14; 1990 c.2 §24; 1995 c.332 §39; 2005 c.461 §6; 2009 c.595
     656.318 [Amended by 1965 c.285 §47; renumbered                 §1041]
656.587]                                                                 Note: See notes under 656.202.
    656.319 Time within which hearing                                    656.320 [Amended by 1953 c.428 §2; 1965 c.285 §48;
must be requested. (1) With respect to ob-                          renumbered 656.591]
jection by a claimant to denial of a claim for                           656.322 [Amended by 1953 c.428 §2; 1955 c.656 §1;
compensation under ORS 656.262, a hearing                           1959 c.644 §1; 1965 c.285 §49; renumbered 656.593]
thereon shall not be granted and the claim                               656.324 [Amended by 1965 c.285 §50; renumbered
shall not be enforceable unless:                                    656.595]
    (a) A request for hearing is filed not later                         656.325 Required medical examination;
than the 60th day after the mailing of the                          worker-requested examination; qualified
denial to the claimant; or                                          physicians; claimant’s duty to reduce
    (b) The request is filed not later than the                     disability; suspension or reduction of
180th day after mailing of the denial and the                       benefits; cessation or reduction of tem-
claimant establishes at a hearing that there                        porary total disability benefits; rules;
was good cause for failure to file the request                      penalties. (1)(a) Any worker entitled to re-
by the 60th day after mailing of the denial.                        ceive compensation under this chapter is re-
                                                                    quired, if requested by the Director of the
    (2) Notwithstanding subsection (1) of this                      Department of Consumer and Business Ser-
section, a hearing shall be granted even if a                       vices, the insurer or self-insured employer, to
request therefor is filed after the time speci-                     submit to a medical examination at a time
fied in subsection (1) of this section if the                       reasonably convenient for the worker as may
claimant can show lack of mental compe-                             be provided by the rules of the director. No
tency to file the request within that time.                         more than three independent medical exam-
The period for filing under this subsection                         inations may be requested except after no-
shall not be extended more than five years                          tification to and authorization by the
by lack of mental competency, nor shall it                          director. If the worker refuses to submit to
extend in any case longer than one year after                       any such examination, or obstructs the same,
the claimant regains mental competency.                             the rights of the worker to compensation
    (3) With respect to subsection (2) of this                      shall be suspended with the consent of the
section, lack of mental competency shall ap-                        director until the examination has taken
ply only to an individual suffering from such                       place, and no compensation shall be payable
mental disorder, mental illness or nervous                          during or for account of such period. The
disorder as is required for commitment or                           provisions of this paragraph are subject to
voluntary admission to a treatment facility                         the limitations on medical examinations pro-
pursuant to ORS 426.005 to 426.223 and                              vided in ORS 656.268.
426.241 to 426.380 and the rules of the Ore-                             (b) When a worker is requested by the
gon Health Authority.                                               director, the insurer or self-insured employer
    (4) With respect to objections to a recon-                      to attend an independent medical examina-
sideration order under ORS 656.268, a hear-                         tion, the examination must be conducted by

                                                               72
                               WORKERS′ COMPENSATION                                          656.325

a physician selected from a list of qualified          physician or nurse practitioner authorized to
physicians established by the director under           provide compensable medical services under
ORS 656.328.                                           ORS 656.245 does not concur with the report
     (c) The director shall adopt rules appli-         or reports, the worker may request an exam-
cable to independent medical examinations              ination to be conducted by a physician se-
conducted pursuant to paragraph (a) of this            lected by the director from the list described
subsection that:                                       in ORS 656.328. The cost of the examination
                                                       and the examination report shall be paid by
     (A) Provide a worker the opportunity to           the insurer or self-insured employer.
request review by the director of the reason-
ableness of the location selected for an inde-             (f) The insurer or self-insured employer
pendent medical examination. Upon receipt              shall pay the costs of the medical examina-
of the request for review, the director shall          tion and related services which are reason-
conduct an expedited review of the location            ably necessary to allow the worker to submit
selected for the independent medical exam-             to any examination requested under this sec-
ination and issue an order on the reason-              tion. As used in this paragraph, “related ser-
ableness of the location of the examination.           vices” includes, but is not limited to, child
The director shall determine if there is sub-          care, travel, meals, lodging and an amount
stantial evidence for the objection to the lo-         equivalent to the worker’s net lost wages for
cation     for   the    independent     medical        the period during which the worker is absent
examination based on a conclusion that the             if the worker does not receive benefits pur-
required travel is medically contraindicated           suant to ORS 656.210 (4) during the period
or other good cause establishing that the re-          of absence. A claim for “related services”
quired travel is unreasonable. The determi-            described in this paragraph shall be made in
nations of the director about the location of          the manner prescribed by the director.
independent medical examinations are not                   (g) A worker who objects to the location
subject to review.                                     of an independent medical examination must
     (B) Impose a monetary penalty against a           request review by the director under para-
worker who fails to attend an independent              graph (c)(A) of this subsection within six
medical examination without prior notifica-            business days of the date the notice of the
tion or without justification for not attending        independent medical examination was mailed.
the examination. A penalty imposed under                   (2) For any period of time during which
this subparagraph may be imposed only on a             any worker commits insanitary or injurious
worker who is not receiving temporary disa-            practices which tend to either imperil or re-
bility benefits under ORS 656.210 or 656.212.          tard recovery of the worker, or refuses to
An insurer or self-insured employer may off-           submit to such medical or surgical treatment
set any future compensation payable to the             as is reasonably essential to promote recov-
worker to recover any penalty imposed under            ery, or fails to participate in a program of
this subparagraph from a claim with the                physical rehabilitation, the right of the
same insurer or self-insured employer. When            worker to compensation shall be suspended
a penalty is recovered from temporary disa-            with the consent of the director and no pay-
bility or permanent total disability benefits,         ment shall be made for such period. The pe-
the amount recovered from each payment                 riod during which such worker would
may not exceed 25 percent of the benefit               otherwise be entitled to compensation may
payment without prior authorization from               be reduced with the consent of the director
the worker.                                            to such an extent as the disability has been
     (C) Impose a sanction against a medical           increased by such refusal.
service provider that unreasonably fails to                (3) A worker who has received an award
provide in a timely manner diagnostic re-              for permanent total or permanent partial
cords required for an independent medical              disability should be encouraged to make a
examination.                                           reasonable effort to reduce the disability; and
     (d) Notwithstanding ORS 656.262 (6), if           the award shall be subject to periodic exam-
the director determines that the location se-          ination and adjustment in conformity with
lected for an independent medical examina-             ORS 656.268.
tion is unreasonable, the insurer or                       (4) When the employer of an injured
self-insured employer shall accept or deny             worker, or the employer’s insurer determines
the claim within 90 days after the employer            that the injured worker has failed to follow
has notice or knowledge of the claim.                  medical advice from the attending physician
     (e) If the worker has made a timely re-           or nurse practitioner authorized to provide
quest for a hearing on a denial of compensa-           compensable medical services under ORS
bility as required by ORS 656.319 (1)(a) that          656.245 or has failed to participate in or
is based on one or more reports of examina-            complete physical restoration or vocational
tions conducted pursuant to paragraph (a) of           rehabilitation programs prescribed for the
this subsection and the worker’s attending             worker pursuant to this chapter, the em-

                                                  73
656.327                                 LABOR AND EMPLOYMENT

ployer or insurer may petition the director                          of Consumer and Business Services believes
for reduction of any benefits awarded the                            that the medical treatment, not subject to
worker. Notwithstanding any other provision                          ORS 656.260, that the injured worker has re-
of this chapter, if the director finds that the                      ceived, is receiving, will receive or is pro-
worker has failed to accept treatment as                             posed to receive is excessive, inappropriate,
provided in this subsection, the director may                        ineffectual or in violation of rules regarding
reduce any benefits awarded the worker by                            the performance of medical services, the in-
such amount as the director considers ap-                            jured worker, insurer or self-insured em-
propriate.                                                           ployer must request administrative review of
     (5)(a) Except as provided by ORS 656.268                        the treatment by the director prior to re-
(4)(c) and (10), an insurer or self-insured em-                      questing a hearing on the issue and so notify
ployer shall cease making payments pursuant                          the parties.
to ORS 656.210 and shall commence making                                  (b) Unless the director issues an order
payment of such amounts as are due pursu-                            finding that no bona fide medical services
ant to ORS 656.212 when an injured worker                            dispute exists, the director shall review the
refuses wage earning employment prior to                             matter as provided in this section. Appeal of
claim determination and the worker’s at-                             an order finding that no bona fide medical
tending physician or nurse practitioner au-                          services dispute exists shall be made directly
thorized to provide compensable medical                              to the Workers’ Compensation Board within
services under ORS 656.245, after being noti-                        30 days after issuance of the order. The
fied by the employer of the specific duties to                       board shall set aside or remand the order
be performed by the injured worker, agrees                           only if the board finds that the order is not
that the injured worker is capable of per-                           supported by substantial evidence in the re-
forming the employment offered.                                      cord. Substantial evidence exists to support
     (b) If the worker has been terminated for                       a finding in the order when the record, re-
violation of work rules or other disciplinary                        viewed as a whole, would permit a reason-
reasons, the insurer or self-insured employer                        able person to make that finding. The
shall cease payments pursuant to ORS                                 decision of the board is not subject to review
656.210 and commence payments pursuant to                            by any other court or administrative agency.
ORS 656.212 when the attending physician                                  (c) The insurer or self-insured employer
or nurse practitioner authorized to provide                          shall not deny the claim for medical services
compensable medical services under ORS                               nor shall the worker request a hearing on
656.245 approves employment in a modified                            any issue under this section until the direc-
job that would have been offered to the                              tor issues an order under subsection (2) of
worker if the worker had remained employed,                          this section.
provided that the employer has a written
policy of offering modified work to injured                               (2) The director shall review medical in-
workers.                                                             formation and records regarding the treat-
                                                                     ment. The director may cause an appropriate
     (c) If the worker is a person present in                        medical service provider to perform reason-
the United States in violation of federal im-                        able and appropriate tests, other than
migration laws, the insurer or self-insured                          invasive tests, upon the worker and may ex-
employer shall cease payments pursuant to                            amine the worker. Notwithstanding ORS
ORS 656.210 and commence payments pursu-                             656.325 (1), the worker may refuse a test
ant to ORS 656.212 when the attending phy-                           without sanction. Review of the medical
sician or nurse practitioner authorized to                           treatment shall be completed and the direc-
provide compensable medical services under                           tor shall issue an order within 60 days of the
ORS 656.245 approves employment in a mod-                            request for review. The director shall create
ified job whether or not such a job is avail-                        a documentary record sufficient for purposes
able.                                                                of judicial review. If the worker, insurer,
     (6) Any party may request a hearing on                          self-insured employer or medical service pro-
any dispute under this section pursuant to                           vider is dissatisfied with that order, the dis-
ORS 656.283. [Formerly 656.280; 1977 c.804 §12; 1977                 satisfied party may request review under
c.868 §4; 1979 c.839 §29; 1981 c.535 §10; 1981 c.723 §4; 1981        ORS 656.704. The administrative order may
c.854 §23; 1983 c.816 §8; 1985 c.770 §7; 1987 c.884 §43; 1989        be modified at hearing only if it is not sup-
c.598 §1; 1990 c.2 §25; 1995 c.332 §40; 2001 c.865 §13; 2003
c.657 §§11,12; 2003 c.811 §§13,14; 2005 c.675 §§1,2; 2007            ported by substantial evidence in the record
c.274 §6; 2007 c.365 §7]                                             or if it reflects an error of law. No new
     Note: See notes under 656.202.                                  medical evidence or issues shall be admitted.
     656.326 [Amended by 1965 c.285 §51; renumbered                  The worker is not obligated to pay for med-
656.597]                                                             ical treatment determined not to be compen-
    656.327 Review of medical treatment                              sable under this subsection.
of worker; findings; review; costs. (1)(a) If                             (3) Upon request of either party, the di-
an injured worker, an insurer or self-insured                        rector may delegate to a physician or a panel
employer or the Director of the Department                           of physicians the review of medical treat-

                                                                74
                                       WORKERS′ COMPENSATION                                                        656.331

ment under this section. At least one mem-                         medical examinations. The rules adopted by
ber of any such panel shall be a practitioner                      the director under this subsection may be
of the healing art of the medical service                          consistent with the guidelines of conduct
provider whose treatment is being reviewed.                        published by the Independent Medical Exam-
No member of any such panel shall be a                             ination Association in effect on June 4, 2007.
physician whose treatment is the subject of                        The decision of the director to exclude a
review. The panel shall be chosen in such                          provider from the list maintained under sub-
manner as the director may prescribe, in                           section (1) of this section is subject to review
consultation with the committee referred to                        under ORS 656.704.
in ORS 656.790. The physician or panel shall                           (3) The director, in consultation with the
submit findings to the director within the                         advisory committee on medical care of the
time limits as prescribed by the director.                         Workers’ Compensation Division of the De-
     (4) The physician or the panel of physi-                      partment of Consumer and Business Services,
cians and the medical arbiter or panel of                          the Workers’ Compensation Management-
medical arbiters appointed pursuant to ORS                         Labor Advisory Committee and affected in-
656.268 acting pursuant to the authority of                        terest groups shall develop, and the director
the director are agents of the Department of                       shall adopt by rule:
Consumer and Business Services and are                                 (a) Professional licensing training re-
subject to the provisions of ORS 30.260 to                         quirements and educational materials for
30.300. The findings of the physician or panel                     physicians participating in the workers’
of physicians, the medical arbiter or panel of                     compensation system and conducting inde-
medical arbiters, all of the records and all                       pendent medical examinations required under
communications to or before a panel or arbi-                       ORS 656.325 (1); and
ter are privileged and are not discoverable
or admissible in any proceeding other than                             (b) A process for investigating and re-
those proceedings under this chapter. No                           viewing complaints about independent med-
member of a panel or a medical arbiter shall                       ical examinations conducted under the
be examined or subject to administrative or                        requirements of ORS 656.325 (1) that in-
civil liability regarding participation in or                      cludes, but is not limited to, standards for
the findings of the panel or medical arbiter                       referring complaints to the appropriate
or any matter before the panel or medical                          health professional regulatory board and an
arbiter other than in proceedings under this                       appeals process for a physician who disagrees
chapter.                                                           with an action taken by the director under
                                                                   subsection (2) of this section. [2005 c.675 §5; 2007
     (5) The costs of review of medical treat-                     c.300 §1]
ment by the physician or panel of physicians                            656.329 [1987 c.884 §33; repealed by 1995 c.94 §1]
pursuant to this section and costs incurred
                                                                        656.330 [1977 c.868 §2; repealed by 1985 c.660 §2 and
by the worker in attending any examination                         1985 c.770 §5]
required under this section, including child
care, transportation, lodging and meals, shall                         656.331 Contact, medical examination
be paid by the insurer or self-insured em-                         of worker represented by attorney pro-
ployer. [1987 c.884 §29; 1990 c.2 §26; 1995 c.332 §41; 2005        hibited without written notice; rules. (1)
c.26 §12]                                                          Notwithstanding any other provision of this
                                                                   chapter, if an injured worker is represented
    656.328 List of authorized providers                           by an attorney and the attorney has given
and standards of professional conduct for                          written notice of such representation:
providers of independent medical exam-
inations; exclusion; complaints; rules. (1)                            (a) The Director of the Department of
The Director of the Department of Consumer                         Consumer and Business Services, the insurer
and Business Services shall maintain a list                        or self-insured employer shall not request the
of providers that are authorized to perform                        worker to submit to an independent medical
independent medical examinations.                                  examination without giving prior or simul-
                                                                   taneous written notice to the worker’s attor-
    (2) A provider on the list maintained by                       ney.
the director under subsection (1) of this sec-
tion may be excluded from the list by the di-                          (b) An insurer or self-insured employer
rector after a finding of a violation of                           shall not contact the worker without giving
standards of professional conduct for con-                         prior or simultaneous written notice to the
ducting independent medical examinations                           worker’s attorney if the contact affects the
adopted by the appropriate health profes-                          denial, reduction or termination of the
sional regulatory board. The director shall                        worker’s benefits.
adopt by rule standards of professional con-                           (2) The director shall adopt rules neces-
duct for providers performing independent                          sary to carry out the provisions of subsection
medical examinations if the appropriate                            (1)(b) of this section. [1985 c.706 §8]
health professional regulatory board has not                            656.335 [1981 c.723 §7; 1985 c.600 §3; 1985 c.770 §7a;
adopted standards pertaining to independent                        repealed by 1995 c.332 §68]

                                                              75
656.340                        LABOR AND EMPLOYMENT

     656.340 Vocational assistance proce-              ance. If the insurer or self-insured employer
dure; eligibility criteria; service provid-            decides that the worker is not eligible, the
ers; resolution of vocational assistance               worker may apply to the director for review
disputes; rules. (1)(a) The insurer or self-           of the decision as provided in subsection (16)
insured employer shall cause vocational as-            of this section. A worker determined ineligi-
sistance to be provided to an injured worker           ble upon evaluation under subsection
who is eligible for assistance in returning to         (1)(b)(B) of this section, or because the
work.                                                  worker’s eligibility has fully and finally ex-
     (b) For this purpose the insurer or self-         pired under standards prescribed by the di-
insured employer shall contact a worker with           rector, may not be found eligible thereafter
a claim for a disabling compensable injury             unless that eligibility determination is re-
or claim for aggravation for evaluation of the         jected by the director under subsection (16)
worker’s eligibility for vocational assistance         of this section or the worker’s condition
within five days of:                                   worsens so as to constitute an aggravation
                                                       claim under ORS 656.273. A worker is not
     (A) Having knowledge of the worker’s              entitled to vocational assistance benefits
likely eligibility for vocational assistance,          when possible eligibility for such benefits
from a medical or investigation report, no-            arises from a worsening of the worker’s con-
tification from the worker, or otherwise; or           dition that occurs after the expiration of the
     (B) The time the worker is medically              worker’s aggravation rights under ORS
stationary, if the worker has not returned to          656.273.
or been released for the worker’s regular                  (5) The objectives of vocational assist-
employment or has not returned to other                ance are to return the worker to employment
suitable employment with the employer at               which is as close as possible to the worker’s
the time of injury or aggravation and the              regular employment at a wage as close as
worker is not receiving vocational assist-             possible to the weekly wage currently being
ance.                                                  paid for employment which was the worker’s
     (c) Eligibility may be redetermined by the        regular employment even though the wage
insurer or self-insured employer upon receipt          available following employment may be less
of new information that would change the               than the wage prescribed by subsection (6)
eligibility determination.                             of this section. As used in this subsection
                                                       and subsection (6) of this section, “regular
     (2) Contact under subsection (1) of this          employment” means the employment the
section shall include informing the worker             worker held at the time of the injury or the
about reemployment rights, the responsibility          claim for aggravation under ORS 656.273,
of the worker to request reemployment, and             whichever gave rise to the potential eligibil-
wage subsidy and job site modification as-             ity for vocational assistance; or, for a worker
sistance and the provisions of the preferred           not employed at the time of the aggravation,
worker program pursuant to rules adopted by            the employment the worker held on the last
the Director of the Department of Consumer             day of work prior to the aggravation.
and Business Services.
                                                           (6)(a) A worker is eligible for vocational
     (3) Within five days after notification           assistance if the worker will not be able to
that the attending physician or nurse practi-          return to the previous employment or to any
tioner authorized to provide compensable               other available and suitable employment with
medical services under ORS 656.245 has re-             the employer at the time of injury or aggra-
leased a worker to return to work, the in-             vation, and the worker has a substantial
surer or self-insured employer shall inform            handicap to employment.
the worker about the opportunity to seek re-
employment or reinstatement under ORS                      (b) As used in this subsection:
659A.043 and 659A.046. The insurer shall in-               (A) A “substantial handicap to employ-
form the employer of the worker’s reemploy-            ment” exists when the worker, because of
ment rights, wage subsidy and the job site             the injury or aggravation, lacks the neces-
modification assistance and the provisions of          sary physical capacities, knowledge, skills
the preferred worker program.                          and abilities to be employed in suitable em-
     (4) As soon as possible, and not more             ployment.
than 30 days after the contact required by                 (B) “Suitable employment” means:
subsection (1) of this section, the insurer or
self-insured employer shall cause an individ-              (i) Employment of the kind for which the
ual certified by the director to provide voca-         worker has the necessary physical capacity,
tional assistance to determine whether the             knowledge, skills and abilities;
worker is eligible for vocational assistance.              (ii) Employment that is located where the
The insurer or self-insured employer shall             worker customarily worked or is within rea-
notify the worker of the decision regarding            sonable commuting distance of the worker’s
the worker’s eligibility for vocational assist-        residence; and

                                                  76
                               WORKERS′ COMPENSATION                                           656.340

     (iii) Employment that produces a weekly            performed on an hourly basis. Fee schedules
wage within 20 percent of that currently be-            shall reflect a reasonable rate for direct
ing paid for employment that was the                    worker purchases and for all vocational as-
worker’s regular employment as defined in               sistance providers and shall be the same
subsection (5) of this section. The director            within suitable geographic areas.
shall adopt rules providing methods of calcu-                (10) Insurers and self-insured employers
lating the weekly wage currently being paid             shall maintain records and make reports to
for the worker’s regular employment for use             the director of vocational assistance actions
in determining eligibility and for providing            at times and in the manner as the director
assistance to eligible workers. If the worker’s         may prescribe. The requirements prescribed
regular employment was seasonal or tempo-               shall be for the purpose of assisting the De-
rary, the worker’s wage shall be averaged               partment of Consumer and Business Services
based on a combination of the worker’s                  in monitoring compliance with this section
earned income and any unemployment insur-               to insure that workers receive timely and
ance payments. Only earned income evi-                  appropriate vocational assistance. The direc-
denced by verifiable documentation such as              tor shall minimize to the greatest extent
federal or state tax returns shall be used in           possible the number, extent and kinds of re-
the calculation. Earned income does not in-             ports required. The director shall compile a
clude fringe benefits or reimbursement of the           list of organizations or agencies registered to
worker’s employment expenses.                           provide vocational assistance. A current list
     (7) Vocational evaluation, help in directly        shall be distributed by the director to all in-
obtaining employment and training shall be              surers and self-insured employers. The in-
available under conditions prescribed by the            surer shall send the list to each worker with
director. The director may establish other              the notice of eligibility.
conditions for providing vocational assist-                  (11) When a worker is eligible to receive
ance, including those relating to the                   vocational assistance, the worker and the
worker’s availability for assistance, partic-           insurer or self-insured employer shall at-
ipation in previous assistance programs con-            tempt to agree on the choice of a vocational
nected with the same claim and the nature               assistance provider. If the worker agrees, the
and extent of assistance that may be pro-               insurer or self-insured employer may utilize
vided. Such conditions shall give preference            its own staff to provide vocational assistance.
to direct employment assistance over train-             If they are unable to agree on a vocational
ing.                                                    assistance provider, the insurer or self-
     (8) An insurer or self-insured employer            insured employer shall notify the director
may utilize its own staff or may engage any             and the director shall select a provider. Any
other individual certified by the director to           change in the choice of vocational assistance
perform the vocational evaluation required              provider is subject to the approval of the di-
by subsection (4) of this section.                      rector.
     (9) The director shall adopt rules provid-              (12) Notwithstanding ORS 656.268, a
ing:                                                    worker actively engaged in training may re-
     (a) Standards for and methods of certify-          ceive temporary disability compensation for
ing individuals qualified by education, train-          a maximum of 16 months. The insurer or
ing and experience to provide vocational                self-insured employer may voluntarily extend
assistance to injured workers;                          the payment of temporary disability compen-
                                                        sation to a maximum of 21 months. The costs
     (b) Standards for registration of voca-            related to vocational assistance training pro-
tional assistance providers;                            grams may be paid for periods longer than
     (c) Conditions and procedures under                21 months, but in no event may temporary
which the certification of an individual to             disability benefits be paid for a period longer
provide vocational assistance services or the           than 21 months.
registration of a vocational assistance pro-                 (13) As used in this section, “vocational
vider may be suspended or revoked for fail-             assistance provider” means a public or pri-
ure to maintain compliance with the                     vate organization or agency that provides
certification or registration standards;                vocational assistance to injured workers.
     (d) Standards for the nature and extent                 (14)(a) Determination of eligibility for
of services a worker may receive, for plans             vocational assistance does not entitle all
for return to work and for determining when             workers to the same type or extent of assist-
the worker has returned to work; and                    ance.
     (e) Procedures, schedules and conditions                (b) Training shall not be provided to an
relating to the payment for services per-               eligible worker solely because the worker
formed by a vocational assistance provider,             cannot obtain employment, otherwise suit-
that are based on payment for specific ser-             able, that will produce the wage prescribed
vices performed and not fees for services               in subsection (6) of this section unless such

                                                   77
656.360                        LABOR AND EMPLOYMENT

training will enable the worker to find em-            was issued. At the hearing, the order of the
ployment which will produce a wage signif-             director shall be modified only if it:
icantly closer to that prescribed in                       (A) Violates a statute or rule;
subsection (6) of this section.
                                                           (B) Exceeds the statutory authority of
    (c) Nothing in this section shall be in-           the agency;
terpreted to expand the availability of train-
ing under this section.                                    (C) Was made upon unlawful procedure;
                                                       or
    (15) A physical capacities evaluation                  (D) Was characterized by abuse of dis-
shall be performed in conjunction with voca-           cretion or clearly unwarranted exercise of
tional assistance or determination of eligibil-        discretion.
ity for such assistance at the request of the
insurer or self-insured employer or worker.                (e) For purposes of this subsection, the
The request shall be made to the attending             term “parties” does not include a noncom-
physician or nurse practitioner authorized to          plying employer. [1981 c.535 §2; 1985 c.600 §11; 1987
                                                       c.884 §15; 1990 c.2 §27; 1995 c.332 §42; amendments by
provide compensable medical services under             1995 c.332 §42a repealed by 1999 c.6 §1; 2003 c.811 §§15,16;
ORS 656.245. The attending physician or                2007 c.365 §8; 2009 c.35 §1; 2009 c.312 §1]
nurse practitioner, within 20 days of the re-               Note: See notes under 656.202.
quest, shall perform a physical capacities
evaluation or refer the worker for such eval-
uation or advise the insurer or self-insured                   DISCLOSURE OF WORKER
employer and the worker in writing that the                   MEDICAL AND VOCATIONAL
injured worker is incapable of participating                          CLAIM RECORDS
in a physical capacities evaluation.                       656.360 Confidentiality of worker
    (16)(a) The Legislative Assembly finds             medical and vocational claim records. In-
that vocational rehabilitation of injured              surers and their assigned claims agents shall
workers requires a high degree of cooper-              maintain the confidentiality of worker med-
ation between all of the participants in the           ical and vocational claim records. Worker
vocational assistance process. Based on this           medical and vocational claim records may
finding, the Legislative Assembly concludes            not be disclosed to persons other than the
that disputes regarding eligibility for and ex-        worker unless the disclosure is:
tent of vocational assistance services should              (1) Made with the consent of the worker
be resolved through nonadversarial proce-              or the worker’s beneficiary;
dures to the greatest extent possible consist-             (2) Reasonably necessary for the insurer
ent with constitutional principles. The                or its assigned claims agent to manage, de-
director shall adopt by rule a procedure for           fend or adjust claims, suits or actions or to
resolving vocational assistance disputes in            perform any other function required by or
the manner provided in this subsection.                arising out of ORS chapter 654, 655 or 656
    (b) If a worker is dissatisfied with an ac-        or the insurance contract;
tion of the insurer or self-insured employer               (3) To detect or prevent criminal activity,
regarding vocational assistance, the worker            fraud, material misrepresentation or nondis-
must apply to the director for administrative          closure;
review of the matter. Application for review               (4) Pursuant to a written agreement that
must be made not later than the 60th day               requires the receiving party to maintain the
after the date the worker was notified of the          confidentiality of the records; or
action. The director shall complete the re-
view within a reasonable time.                             (5) Otherwise required or permitted by
                                                       law. [2001 c.377 §61]
    (c) If the worker’s dissatisfaction is re-
solved by agreement of the parties, the                    656.362 Liability for disclosure of
agreement shall be reduced to writing, and             worker medical and vocational claim re-
the director and the parties shall review the          cords. (1) A cause of action in the nature of
agreement and either approve or disapprove             defamation, invasion of privacy or negligence
it. The agreement is subject to reconsider-            may not arise against:
ation by the director under limitations pre-               (a) Any insurer or assigned claims agent
scribed by the director, but is not subject to         for disclosing worker medical and vocational
review by any other forum.                             claim records in accordance with ORS
    (d) If the worker’s dissatisfaction is not         656.360; or
resolved by agreement of the parties, the di-              (b) Any person for furnishing worker
rector shall resolve the matter in a written           medical and vocational claim records to an
order based on a record sufficient to permit           insurer or assigned claims agent in accor-
review. The order is subject to review under           dance with ORS 656.360.
ORS 656.704. The request for a hearing must                (2) Subsection (1) of this section does not
be filed within 60 days of the date the order          apply to the disclosure or furnishing of false

                                                  78
                                     WORKERS′ COMPENSATION                                              656.385

information with malice or willful intent to                     Services or the Administrative Law Judge
injure any person. [2001 c.377 §62]                              shall require the insurer or self-insured em-
                                                                 ployer to pay a reasonable attorney fee to
        LEGAL REPRESENTATION                                     the claimant’s attorney. In such cases, where
                                                                 an attorney is instrumental in obtaining a
    656.382 Penalties and attorney fees                          settlement of the dispute prior to a decision
payable by insurer or employer in pro-                           by the director or an Administrative Law
cessing claim. (1) If an insurer or self-                        Judge, the director or Administrative Law
insured     employer     refuses    to    pay                    Judge shall require the insurer or self-
compensation due under an order of an Ad-                        insured employer to pay a reasonable attor-
ministrative Law Judge, board or court, or                       ney fee to the claimant’s attorney. The
otherwise unreasonably resists the payment                       attorney fee must be based on all work the
of compensation, except as provided in ORS                       claimant’s attorney has done relative to the
656.385, the employer or insurer shall pay to                    proceeding at all levels before the depart-
the attorney of the claimant a reasonable at-                    ment. The attorney fee assessed under this
torney fee as provided in subsection (2) of                      section must be proportionate to the benefit
this section. To the extent an employer has                      to the injured worker. The director shall
caused the insurer to be charged such fees,                      adopt rules for establishing the amount of
such employer may be charged with those                          the attorney fee, giving primary consider-
fees.                                                            ation to the results achieved and to the time
    (2) If a request for hearing, request for                    devoted to the case. An attorney fee awarded
review, appeal or cross-appeal to the Court                      pursuant to this subsection may not exceed
of Appeals or petition for review to the Su-                     $3,000 absent a showing of extraordinary cir-
preme Court is initiated by an employer or                       cumstances.      The maximum attorney fee
insurer, and the Administrative Law Judge,                       awarded under this subsection shall be ad-
board or court finds that the compensation                       justed annually on July 1 by the same per-
awarded to a claimant should not be disal-                       centage increase as made to the average
lowed or reduced, or, through the assistance                     weekly wage defined in ORS 656.211, if any.
of an attorney, that an order rescinding a                            (2) If an insurer or self-insured employer
notice of closure should not be reversed or                      refuses to pay compensation due under ORS
the compensation awarded by a reconsider-                        656.245, 656.247, 656.260, 656.327 or 656.340
ation order issued under ORS 656.268 should                      pursuant to an order of the director, an Ad-
not be reduced or disallowed, the employer                       ministrative Law Judge or the court or oth-
or insurer shall be required to pay to the at-                   erwise unreasonably resists the payment of
torney of the claimant a reasonable attorney                     such compensation, the insurer or self-
fee in an amount set by the Administrative                       insured employer shall pay to the attorney
Law Judge, board or the court for legal rep-                     of the claimant a reasonable attorney fee as
resentation by an attorney for the claimant                      provided in subsection (3) of this section. To
at and prior to the hearing, review on appeal                    the extent an employer has caused the in-
or cross-appeal.                                                 surer to be charged such fees, such employer
    (3) If upon reaching a decision on a re-                     may be charged with those fees.
quest for hearing initiated by an employer it                         (3) If a request for a contested case
is found by the Administrative Law Judge                         hearing, review on appeal or cross-appeal to
that the employer initiated the hearing for                      the Court of Appeals or petition for review
the purpose of delay or other vexatious rea-                     to the Supreme Court is initiated by an in-
son or without reasonable ground, the Ad-                        surer or self-insured employer, and the di-
ministrative Law Judge may order the                             rector, Administrative Law Judge or court
employer to pay to the claimant such penalty                     finds that the compensation awarded under
not exceeding $750 and not less than $100 as                     ORS 656.245, 656.247, 656.260, 656.327 or
may be reasonable in the circumstances. [1965
c.285 §42; 1981 c.854 §24; 1983 c.568 §1; 1987 c.884 §34;        656.340 to a claimant should not be disal-
1990 c.2 §28; 1995 c.332 §42b; 2009 c.526 §3]                    lowed or reduced, the insurer or self-insured
     Note: See notes under 656.202.                              employer shall be required to pay to the at-
     656.384 [Formerly 656.582; 1977 c.290 §4; 1977 c.804        torney of the claimant a reasonable attorney
§13; repealed by 1987 c.250 §1]                                  fee in an amount set by the director, the
                                                                 Administrative Law Judge or the court for
    656.385 Attorney fees in cases regard-                       legal representation by an attorney for the
ing certain medical service or vocational                        claimant at the contested case hearing, re-
rehabilitation matters; rules; limitation;                       view on appeal or cross-appeal.
penalties. (1) In all cases involving a dispute
over compensation benefits pursuant to ORS                            (4) If upon reaching a final contested
656.245, 656.247, 656.260, 656.327 or 656.340,                   case decision where such contested case was
where a claimant finally prevails after a                        initiated by an insurer or self-insured em-
proceeding has commenced, the Director of                        ployer it is found that the insurer or self-
the Department of Consumer and Business                          insured employer initiated the contested case

                                                            79
656.386                               LABOR AND EMPLOYMENT

hearing for the purpose of delay or other                        previously accepted injury or condition in
vexatious reason or without reasonable                           timely fashion. Attorney fees provided for in
ground, the director or Administrative Law                       this subsection shall be paid by the insurer
Judge may order the insurer or self-insured                      or self-insured employer.
employer to pay to the claimant such penalty                         (2)(a) If a claimant finally prevails
not exceeding $750 and not less than $100 as                     against a denial as provided in subsection (1)
may be reasonable in the circumstances.                          of this section, the court, board or Adminis-
    (5) Penalties and attorney fees awarded                      trative Law Judge may order payment of the
pursuant to this section by the director, an                     claimant’s reasonable expenses and costs for
Administrative Law Judge or the courts shall                     records, expert opinions and witness fees.
be paid for by the employer or insurer in ad-                        (b) The court, board or Administrative
dition to compensation found to be due to the                    Law Judge shall determine the reasonable-
claimant. [1995 c.332 §42d; 2003 c.756 §2; 2005 c.26 §13;        ness of witness fees, expenses and costs for
2009 c.526 §4]
                                                                 the purpose of paragraph (a) of this subsec-
    Note: See notes under 656.202.                               tion.
    656.386 Recovery of attorney fees, ex-                           (c) Payments for witness fees, expenses
penses and costs in appeal on denied                             and costs ordered under this subsection shall
claim; attorney fees in other cases. (1)(a)                      be made by the insurer or self-insured em-
In all cases involving denied claims where a                     ployer and are in addition to compensation
claimant finally prevails against the denial                     payable to the claimant.
in an appeal to the Court of Appeals or peti-                        (d) Payments for witness fees, expenses
tion for review to the Supreme Court, the                        and costs ordered under this subsection may
court shall allow a reasonable attorney fee                      not exceed $1,500 unless the claimant dem-
to the claimant’s attorney. In such cases in-                    onstrates extraordinary circumstances justi-
volving denied claims where the claimant                         fying payment of a greater amount.
prevails finally in a hearing before an Ad-
ministrative Law Judge or in a review by the                         (3) If a claimant requests claim reclassi-
Workers’ Compensation Board, then the Ad-                        fication as provided in ORS 656.277 and the
ministrative Law Judge or board shall allow                      insurer or self-insured employer does not re-
a reasonable attorney fee. In such cases in-                     spond within 14 days of the request, or if the
volving denied claims where an attorney is                       insurer or self-insured employer requests a
instrumental in obtaining a rescission of the                    hearing, review, appeal or cross-appeal to the
denial prior to a decision by the Administra-                    Court of Appeals or petition for review to
tive Law Judge, a reasonable attorney fee                        the Supreme Court and the Director of the
shall be allowed.                                                Department of Consumer and Business Ser-
                                                                 vices, Administrative Law Judge, board or
    (b) For purposes of this section, a “denied                  the court finally determines that the claim
claim” is:                                                       should be classified as disabling, the director,
    (A) A claim for compensation which an                        Administrative Law Judge, board or the
insurer or self-insured employer refuses to                      court may assess a reasonable attorney fee.
pay on the express ground that the injury or                         (4) In all other cases, attorney fees shall
condition for which compensation is claimed                      be paid from the increase in the claimant’s
is not compensable or otherwise does not                         compensation, if any, except as otherwise
give rise to an entitlement to any compensa-                     expressly provided in this chapter. [Formerly
tion;                                                            656.588; 1977 c.804 §14; 1981 c.854 §25; 1983 c.568 §2; 1990
    (B) A claim for compensation for a con-                      c.2 §29; 1991 c.312 §1; 1995 c.332 §43; 1997 c.605 §3; 2001
                                                                 c.865 §9; 2007 c.908 §1; 2009 c.526 §5]
dition omitted from a notice of acceptance,
made pursuant to ORS 656.262 (6)(d), which                            Note: See notes under 656.202.
the insurer or self-insured employer does not                        656.388 Approval of attorney fees re-
respond to within 60 days;                                       quired; lien for fees; fee schedule; report
    (C) A claim for an aggravation made                          of legal service costs. (1) No claim or pay-
pursuant to ORS 656.273 (2) or for a new                         ment for legal services by an attorney re-
medical condition made pursuant to ORS                           presenting the worker or for any other
656.267, which the insurer or self-insured                       services rendered before an Administrative
employer does not respond to within 60 days;                     Law Judge or the Workers’ Compensation
or                                                               Board, as the case may be, in respect to any
                                                                 claim or award for compensation to or on
    (D) A claim for an initial injury or occu-                   account of any person, shall be valid unless
pational disease to which the insurer or self-                   approved by the Administrative Law Judge
insured employer does not respond within 60                      or board, or if proceedings on appeal from
days.                                                            the order of the board with respect to such
    (c) A denied claim shall not be presumed                     claim or award are had before any court,
or implied from an insurer’s or self-insured                     unless approved by such court. In cases in
employer’s failure to pay compensation for a                     which a claimant finally prevails after re-

                                                            80
                                       WORKERS′ COMPENSATION                                                        656.403

mand from the Supreme Court, Court of Ap-                           Workers’ Compensation Board, appeals for
peals or board, then the Administrative Law                         review of the claim to the Court of Appeals
Judge, board or appellate court shall approve                       or to the Supreme Court, or files a motion
or allow a reasonable attorney fee for ser-                         for reconsideration of the decision of the
vices before every prior forum as authorized                        Court of Appeals or the Supreme Court, and
under ORS 656.307 (5), 656.308 (2), 656.382 or                      the Administrative Law Judge, board or
656.386. No attorney fees shall be approved                         court finds that the appeal or motion for re-
or allowed for representation of the claimant                       consideration was frivolous or was filed in
before the managed care organization or Di-                         bad faith or for the purpose of harassment,
rector of the Department of Consumer and                            the Administrative Law Judge, board or
Business Services except for representation                         court may impose an appropriate sanction
at the contested case hearing.                                      upon the attorney who filed the request for
    (2) Any claim for payment to a claimant’s                       hearing, request for review, appeal or mo-
attorney by the claimant so approved shall,                         tion. The sanction may include an order to
in the manner and to the extent fixed by the                        pay to the other party the amount of the
Administrative Law Judge, board or such                             reasonable expenses incurred by reason of
court, be a lien upon compensation.                                 the request for hearing, request for review,
                                                                    appeal or motion, including a reasonable at-
    (3) If an injured worker signs an attorney                      torney fee.
fee agreement with an attorney for represen-
tation on a claim made pursuant to this                                 (2) As used in this section, “frivolous”
chapter and additional compensation is                              means the matter is not supported by sub-
awarded to the worker or a settlement                               stantial evidence or the matter is initiated
agreement is consummated on the claim after                         without reasonable prospect of prevailing.
                                                                    [1987 c.884 §31; 1995 c.332 §45]
the fee agreement is signed and it is shown
that the attorney with whom the fee agree-                               656.401 [1965 c.285 §74; 1967 c.359 §699; repealed by
                                                                    1975 c.556 §25 (656.403 enacted in lieu of 656.401)]
ment was signed was instrumental in obtain-
ing the additional compensation or settling                              656.402 [Renumbered 656.712]
the claim, the Administrative Law Judge or
the board shall grant the attorney a lien for                                   SELF-INSURED AND
attorney fees out of the additional compen-                             CARRIER-INSURED EMPLOYERS;
sation awarded or proceeds of the settlement                                         INSURERS
in accordance with rules adopted by the                                 656.403 Obligations of self-insured em-
board governing the payment of attorney                             ployer. (1) A self-insured employer directly
fees.                                                               assumes the responsibility for providing
    (4) The board shall, after consultation                         compensation due subject workers and their
with the Board of Governors of the Oregon                           beneficiaries under this chapter.
State Bar, establish a schedule of fees for                             (2) The claims of subject workers and
attorneys representing a worker and repres-                         their beneficiaries resulting from injuries
enting an insurer or self-insured employer,                         while employed by a self-insured employer
under this chapter.                                                 shall be handled in the manner provided by
    (5) The board shall approve no claim for                        this chapter. A self-insured employer is sub-
legal services by an attorney representing a                        ject to the rules of the Director of the De-
claimant to be paid by the claimant if fees                         partment of Consumer and Business Services
have been awarded to the claimant or the                            with respect to such claims.
attorney of the claimant in connection with                             (3) Security deposited by a self-insured
the same proceeding under ORS 656.268.                              employer shall not relieve any such employer
    (6) Insurers and self-insured employers                         from full and primary responsibility for
shall make an annual report to the Director                         claims administration and payment of com-
of the Department of Consumer and Business                          pensation under this chapter. This subsection
Services reporting attorney salaries and                            applies to a self-insured employer even
other costs of legal services incurred pursu-                       though the self-insured employer insures or
ant to this chapter. The report shall be in                         reinsures all or any portion of risks under
such form and shall contain such information                        this chapter with an insurance company au-
as the director prescribes. [Formerly 656.590; 1983                 thorized to do business in this state or with
c.568 §3; 1987 c.884 §35; 1990 c.2 §30; 1995 c.332 §44; 2007        any other insurer with whom insurance can
c.908 §3]                                                           be placed or secured pursuant to ORS
     Note: See notes under 656.202.                                 744.305 to 744.405 (1985 Replacement Part).
    656.390 Frivolous appeals, hearing re-                              (4) When a self-insured employer is a
quests or motions; expenses and attorney                            worker leasing company required to be li-
fee. (1) Notwithstanding ORS 656.236, if ei-                        censed pursuant to ORS 656.850 and 656.855,
ther party requests a hearing before the                            the company also shall comply with the
Hearings Division, requests review of an Ad-                        worker leasing company regulatory pro-
ministrative Law Judge’s decision before the                        visions of ORS chapters 656 and 737 and with

                                                               81
656.407                                LABOR AND EMPLOYMENT

such rules as may be adopted pursuant to                           injured workers and such other information
ORS 656.726 and 731.244 for the supervision                        as the director may require. The director
and regulation of worker leasing companies.                        shall approve the application and the city or
[1975 c.556 §26 (enacted in lieu of 656.401); 1981 c.854           county shall be exempt from subsection (2)
§26; 1993 c.628 §7]                                                of this section if the director finds that:
     656.404 [Repealed by 1959 c.449 §5]
                                                                        (A) The city or county has been a self-
     656.405 [1965 c.285 §75 (1); 1967 c.359 §700; repealed        insured employer in compliance with subsec-
by 1975 c.556 §54]
                                                                   tion (2) of this section for more than three
     656.406 [Renumbered 656.714]
                                                                   consecutive years prior to making the appli-
     656.407 Qualifications of insured em-                         cation referred to in this subsection as an
ployers; rules. (1) An employer shall estab-                       independently self-insured employer and not
lish proof with the Director of the                                as part of a self-insured group.
Department of Consumer and Business Ser-                                (B) The city or county has in effect a loss
vices that the employer is qualified either:                       reserve account:
     (a) As a carrier-insured employer by                               (i) That is actuarially sound and that is
causing proof of coverage provided by an in-                       adequately funded as determined by an an-
surer to be filed with the director; or                            nual audit under ORS 297.405 to 297.740 to
     (b) As a self-insured employer by estab-                      pay all compensation to injured workers and
lishing proof that the employer has an ade-                        amounts due the director pursuant to this
quate staff qualified to process claims                            chapter. A copy of the annual audit shall be
promptly and has the financial ability to                          filed with the director. Upon a finding that
make certain the prompt payment of all                             there is probable cause to believe that the
compensation and other payments that may                           loss reserve account is not actuarially sound,
become due to the director under this chap-                        the director may require a city or county to
ter.                                                               obtain an independent actuarial audit of the
     (2) Except as provided in subsection (3)                      loss reserve account. The requirements of
of this section, a self-insured employer shall                     this subsection are in addition to and not in
establish proof of financial ability by provid-                    lieu of any other audit or reporting require-
ing security that the director determines ac-                      ment otherwise prescribed by or pursuant to
ceptable by rule. The security must be in an                       law.
amount reasonably sufficient to insure pay-                             (ii) That is dedicated to and may be ex-
ment of compensation and other payments                            pended only for the payment of compensation
that may become due to the director but not                        and amounts due the director by the city or
less than the employer’s normal expected                           county under this chapter.
annual claim liabilities and in no event less                           (b) The director shall have the first lien
than $100,000. In arriving at the amount of                        and priority right to the full amount of the
security required under this subsection, the                       loss reserve account required to pay the
director may take into consideration the fi-                       present discounted value of all present and
nancial ability of the employer to pay com-                        future claims under this chapter.
pensation and other payments and probable
continuity of operation. The security shall be                          (c) The city or county shall notify the
held by the director to secure the payment                         director no later than 60 days prior to any
of compensation for injuries to subject work-                      action to discontinue the loss reserve ac-
ers of the employer and to secure other pay-                       count. The city or county shall advise the
ments that may become due from the                                 director of the city’s or county’s plans to
employer to the director under this chapter.                       submit the security deposits required in sub-
Moneys received as security under this sub-                        section (2) of this section, or obtain coverage
section shall be deposited with the State                          as a carrier-insured employer prior to the
Treasurer in an account separate and dis-                          date the loss reserve account ceases to exist.
tinct from the General Fund. Interest earned                       If the city or county elects to discontinue
by the account shall be credited to the ac-                        self-insurance, it shall submit such security
count. The amount of security may be in-                           as the director may require to insure pay-
creased or decreased from time to time by                          ment of all compensation and amounts due
the director.                                                      the director for the period the city or county
                                                                   was self-insured.
     (3)(a) A city or county that wishes to be
exempt from subsection (2) of this section                              (d) In order to requalify as a self-insured
may make written application therefor to the                       employer, the city or county must deposit
director. The application shall include a copy                     prior to discontinuance of the loss reserve
of the city’s or county’s most recent annual                       account such security as is required by the
audit as filed with the Secretary of State                         director pursuant to subsection (2) of this
under ORS 297.405 to 297.740, information                          section.
regarding the establishment of a loss reserve                           (e) Notwithstanding ORS 656.440, if prior
account for the payment of compensation to                         to the date of discontinuance of the loss re-

                                                              82
                                         WORKERS′ COMPENSATION                                                           656.427

serve account the director has not received                               (b) The coverage is canceled prior to the
the security deposits required in subsection                          expiration date of the policy as provided by
(2) of this section, the city’s or county’s cer-                      ORS 656.423 or 656.427;
tificate of self-insurance is automatically re-                           (c) Another insurer files proof of cover-
voked as of that date. [1975 c.556 §27; 1979 c.839                    age on behalf of the employer; or
§28; 1981 c.854 §27; 1985 c.212 §7; 1989 c.966 §67; 1991
c.648 §1; 1993 c.18 §140; 2003 c.170 §2; 2007 c.241 §13]                  (d) The employer becomes self-insured
       656.408 [Renumbered 656.716]                                   under ORS 656.430. [1975 c.556 §29; 1977 c.405 §7;
                                                                      1981 c.854 §28; 1987 c.237 §1; 1995 c.93 §35; 1995 c.332 §46;
       656.409 [1965 c.285 §75(2), (3); repealed by 1975 c.556        2003 c.170 §3; 2007 c.241 §1]
§54]
                                                                           656.420 [Renumbered 656.758]
     656.410 [Amended by 1965 c.285 §54; renumbered
656.726]                                                                   656.421 [1965 c.285 §76(4), (5), (6), (7); repealed by
                                                                      1975 c.556 §54]
    656.411 [1975 c.556 §28; 1979 c.348 §1; repealed by                    656.422 [Amended by 1959 c.450 §5; repealed by 1965
1981 c.854 §1]                                                        c.285 §95]
     656.412 [Amended by 1965 c.285 §52; renumbered
656.732]                                                                  656.423 Cancellation of coverage by
                                                                      employer; notice required. (1) An insured
       656.413 [1965 c.285 §76(1), (2); repealed by 1975 c.556
§54]                                                                  employer may cancel coverage with the in-
                                                                      surer by giving the insurer at least 30 days’
       656.414 [Renumbered 656.718]                                   written notice, unless a shorter period is
       656.415 [1975 c.556 §30; repealed by 1981 c.854 §1]            permitted by subsection (3) of this section.
     656.416 [Amended by 1965 c.285 §53; renumbered                       (2) Cancellation of coverage is effective
656.722]
                                                                      at 12 midnight 30 days after the date the
     656.417 [1965 c.285 §76 (3), (8); 1967 c.341 §6; repealed        cancellation notice is received by an author-
by 1975 c.556 §54]                                                    ized representative of the insurer, unless a
       656.418 [Repealed by 1965 c.285 §95]                           later date is specified.
     656.419 Workers’ compensation insur-                                 (3) An employer may cancel coverage ef-
ance contracts. (1) A workers’ compensa-                              fective less than 30 days after written notice
tion insurance policy issued by an insurer                            is received by an authorized representative
under this section shall provide that the in-                         of the insurer by providing other coverage,
surer agrees to assume, without monetary                              by becoming a self-insured employer or by
limit, the liability of the employer, arising                         agreement of the employer and the insurer.
during the period the policy is in effect, for                        A cancellation under this subsection is ef-
prompt payment of all compensation for                                fective immediately upon the effective date
compensable injuries that may become due                              of the other coverage, on the effective date
under this chapter to subject workers and                             of certification as a self-insured employer or
their beneficiaries.                                                  on a date agreed upon in writing by the em-
                                                                      ployer and insurer.
     (2)(a) The insurer issuing the workers’
compensation insurance policy shall file                                  (4) The insurer shall file a notice of can-
                                                                      cellation with the Director of the Depart-
proof of coverage with the Director of the                            ment of Consumer and Business Services
Department of Consumer and Business Ser-                              within 10 calendar days after the effective
vices within 30 days after workers’ compen-                           date of the cancellation or the date on which
sation coverage of the employer is effective.                         the insurer receives the notice required un-
The filing shall be in the form and manner                            der subsection (1) of this section, whichever
and shall include any information that the                            is later. The notice required under this sub-
director may prescribe by rule.                                       section shall be in the form and manner and
     (b) An insurer shall file the proof of cov-                      shall contain any information that the direc-
erage required under this section for each                            tor may prescribe by rule. [1975 c.556 §31; 1981
new or renewed policy issued by the insurer.                          c.854 §29; 2003 c.170 §4; 2007 c.241 §2]
                                                                           656.424 [Renumbered 656.734]
     (3) Workers’ compensation coverage is
                                                                           656.425 [1965 c.285 §76a; repealed by 1975 c.556 §54]
effective when the application of the subject
employer for coverage together with any re-                                656.426 [Amended by 1965 c.285 §68b; renumbered
                                                                      656.702]
quired fees or premium are received and ac-
cepted by an authorized representative of an                              656.427 Termination of workers’ com-
insurer or on the date specified in writing by                        pensation insurance contract or surety
the employer and the insurer.                                         bond liability by insurer; rules. (1) An in-
     (4) Coverage of an employer under a                              surer that issues a workers’ compensation
                                                                      insurance policy or surety bond to an em-
workers’ compensation insurance policy con-                           ployer under this chapter may cancel the
tinues until:                                                         policy or surety bond prior to the expiration
     (a) The expiration of the term of the pol-                       date of the policy or surety bond by giving
icy;                                                                  the employer and the Director of the De-

                                                                 83
656.430                        LABOR AND EMPLOYMENT

partment of Consumer and Business Services             plan without further application by the em-
notice of cancellation in accordance with              ployer, transferring the risk to the plan as
rules adopted by the director. Notice re-              of the effective date of cancellation. If the
quired under this section must be provided             insurer is a servicing carrier under the plan,
to the director within 10 calendar days after          it shall continue to provide coverage for the
the effective date of the cancellation pro-            employer as a servicing carrier, at least until
vided in the notice given to the employer.             another servicing carrier is provided for the
    (2) An insurer may cancel a workers’               employer in the normal course of adminis-
compensation insurance policy or surety                tering the plan. If the insurer is not a ser-
bond under this section as follows:                    vicing carrier, it shall apply to the plan for
                                                       coverage on the employer’s behalf. Nothing
    (a) If the cancellation of a workers’ com-         in this section is intended to limit the au-
pensation insurance policy is for reasons              thority of administrators of the plan to re-
other than those set forth in paragraphs (b)           quire the employer to provide deposits or to
and (c) of this subsection, it is effective at         make payments consistent with plan require-
12 midnight not less than 45 days after the            ments. However, the rules of the plan shall
date the notice is mailed to the employer.             allow any deposit requirements imposed by
    (b) If the cancellation of a workers’ com-         the plan to be deferred for as long as one
pensation insurance policy is based on the             year.
insurer’s decision not to offer insurance to                (7) The cancellation of a workers’ com-
employers within a specific premium cate-              pensation insurance policy under this section
gory, it is effective not sooner than 90 days          is effective on the earliest of:
after the date the notice is mailed to the
employer.                                                   (a) The expiration of the term of the pol-
                                                       icy;
    (c) If the cancellation of a workers’ com-
pensation insurance policy is based on non-                 (b) The effective date of a cancellation
payment of premium, the cancellation is                under subsection (2) of this section; or
effective not sooner than 10 days after the                 (c) The effective date of a policy for
date the notice is mailed to the employer.             which another insurer makes a proof of cov-
    (d) The cancellation of a surety bond is           erage filing on behalf of the employer. [1975
                                                       c.556 §32; 1981 c.854 §30; 1981 c.874 §5; 1981 c.876 §6; 1985
effective at 12 midnight not less than 30 days         c.212 §8; 1990 c.1 §1; 1995 c.93 §36; 1995 c.332 §46a; 2003
after the date the notice is received by the           c.170 §5; 2007 c.241 §3; 2007 c.656 §§1,2,3]
director.                                                   656.428 [Amended by 1957 c.440 §3; repealed by 1965
    (3) An insurer may nonrenew a workers’             c.285 §95]
compensation insurance policy by providing                  656.429 [1965 c.285 §77; repealed by 1975 c.556 §54]
notice in the manner provided for in subsec-                656.430 Certification of self-insured
tion (2) of this section.                              employer; employer groups; insurance
    (4) Notice to the employer under this              policy requirements; revocation of certi-
section shall be given by mail, addressed to           fication; rules. (1) Upon determining that
the employer at the last-known address of              an employer has qualified as a self-insured
the employer. If the employer is a partner-            employer under ORS 656.407, the Director of
ship, notice may be given to any of the part-          the Department of Consumer and Business
ners. If the employer is a limited liability           Services shall issue a certificate to that ef-
company, notice may be given to any man-               fect to the employer.
ager, or in a member managed limited liabil-                (2) Coverage of a self-insured employer is
ity company, to any of the members. If the             effective on the date of certification unless
employer is a corporation, notice may be               a later date is specified in the certificate.
given to any agent or officer of the corpo-
ration under whom legal process may be                      (3) Two or more entities shall not be in-
served.                                                cluded in the certification of one employer
                                                       unless in each entity the same person, or
    (5) Cancellation of a workers’ compensa-           group of persons, or corporation owns a ma-
tion insurance policy or surety bond shall in          jority interest. If an entity owns a majority
no way limit liability that was incurred un-           interest in another entity which in turn
der the policy or surety bond prior to the ef-         owns the majority interest in another entity,
fective date of the cancellation.                      all entities so related may be combined re-
    (6) If, before the effective date of a can-        gardless of the number of entities in suc-
cellation under this section, the employer             cession. If more than one entity is included
gives notice to the insurer that it has not            in the certification of one employer, each
obtained coverage from another insurer and             entity included is jointly and severally liable
intends to become insured under the assigned           for any compensation and other amounts due
risk plan established under ORS 656.730, the           the Department of Consumer and Business
insurer shall ensure that continuing cover-            Services under this chapter by any entity in-
age is provided to the employer under the              cluded in the certification.

                                                  84
                                WORKERS′ COMPENSATION                                           656.430

     (4) In the term “majority interest,” as             council of governments created under ORS
used in this section, “majority” means more              chapter 190, agrees to be individually liable
than 50 percent.                                         for the payment of any compensation and
     (5) If an entity other than a partnership:          other amounts due to the department under
                                                         this chapter incurred by the employer during
     (a) Has issued voting stock, “majority in-          the period of group self-insurance;
terest” means a majority of the issued voting
stock;                                                        (e) The director finds that the employer
                                                         group is organized as a corporation or coop-
     (b) Has not issued voting stock, “majority          erative pursuant to ORS chapter 60, 62 or 65,
interest” means a majority of the members;               is an intergovernmental entity created under
or                                                       ORS 190.003 to 190.130 and the bylaws re-
     (c) Has not issued voting stock and has             quire the governing group to obtain fidelity
no members, “majority interest” means a                  bonds;
majority of the board of directors or compa-                  (f) The director finds that the employer
rable governing body.                                    group has designated an entity within or for
     (6) If the entity is a partnership, majority        the group responsible for centralized claims
interest shall be determined in accordance               processing, payroll records, safety require-
with the participation of each general part-             ments, recording and submitting assessments
ner in the profits of the partnership.                   and contributions and making such other re-
                                                         ports as the director may require; and
     (7) Notwithstanding any other provision
of this section, the director may certify five                (g) The employer has presented a method
or more subject employers as a self-insured              approved by the director to notify the de-
employer group, which shall be considered                partment of:
an employer for purposes of this chapter, if:                 (A) The commencement or termination
     (a) The director finds that the employers           of membership by employers in the group,
as a group meet the requirements of ORS                  and the effect thereof on the net worth of the
656.407 (1)(b) and (2);                                  employers in the group; and
     (b) The director determines that:                        (B) Whether an employer who terminates
                                                         membership in the group continues to be a
     (A) If the employers as a group have in-            subject employer.
surance coverage with a retention of
$100,000 or more, the employers have a com-                   (8) A self-insured employer must have
bined net worth of $1 million or more; or                excess insurance coverage appropriate for
                                                         the employer’s potential liability under this
     (B) If the employers as a group have in-            chapter with an insurer authorized to do
surance coverage with a retention of less                business in this state. A self-insured em-
than $100,000, the employers have a com-                 ployer certified prior to November 1, 1981,
bined net worth at least equal to the propor-            must have excess insurance coverage appro-
tion of $1 million that the retention bears to           priate for the employer’s potential liability
$100,000;                                                under this chapter either with an insurer
     (c) The director finds that the grouping            authorized to do business in this state or
is likely to improve accident prevention and             with any other insurer from whom such in-
claims handling for the employer;                        surance can be obtained pursuant to ORS
     (d) Each employer executes and files with           744.305 to 744.405 (1985 Replacement Part).
the designated entity a written agreement, in            Evidence of such coverage must be submitted
such form as the director may prescribe, in              at the time application is made for self-
which:                                                   insured certification in the form of an insur-
                                                         ance binder providing the appropriate
     (A) The employer agrees to be jointly and           coverage effective the date of certification.
severally liable for the payment of any com-             The policy providing such coverage must be
pensation and other amounts due to the De-               filed with the director not later than 30 days
partment of Consumer and Business Services               after the date the coverage is effective. Any
under this chapter incurred by a member of               changes in the insurer or the coverage must
the group; or                                            be filed with the department not later than
     (B) The employer, if a city, county, spe-           30 days after the effective date of the change.
cial district described and listed in ORS                With respect to such coverage:
198.010 or 198.180, translator district formed                (a) The policy must include a provision,
under ORS 354.605 to 354.715, weed control               approved by the director, for reimbursement
district organized under ORS 569.350 to                  to the department of all expenses paid by the
569.450, intergovernmental agency created                department on behalf of the employer pursu-
under ORS 225.050, school district as defined            ant to ORS 656.614 (1) and 656.443 in the
in ORS 255.005 (8), public housing authority             same manner as if the department were the
created under ORS chapter 456 or regional                insured employer, subject to the policy limi-

                                                    85
656.434                                LABOR AND EMPLOYMENT

tations on amounts and limits of liability to                           656.432 [1977 c.659 §2; 1979 c.815 §8; repealed by 1981
the insured employer; and                                          c.854 §1]

     (b) The period of coverage must be con-                           656.434 Certification effective until
tinuous and remain in effect until the certi-                      canceled or revoked; revocation of certif-
fication is revoked or canceled.                                   icate. (1) A certification issued under ORS
                                                                   656.430 remains in effect until:
     (9) Notwithstanding ORS 656.440, the di-
rector may revoke the certification of any                             (a) Revoked by the Director of the De-
self-insured employer after giving 30 days’                        partment of Consumer and Business Services
written notice if the employer:                                    as provided by this section and ORS 656.440;
                                                                   or
     (a) Fails to comply with subsection (8) of
this section; or                                                       (b) Canceled by the employer with the
                                                                   approval of the director.
     (b) In the case of an employer described
in subsection (7) of this section, fails to                            (2) The director may revoke the certi-
comply with that subsection.                                       fication of a self-insured employer if:
     (10) A self-insured employer must have                            (a) The employer fails to comply with
an occupational safety and health loss con-                        ORS 656.407 or 656.430; or
trol program as required by ORS 654.097.                               (b) The employer commits any violation
     (11) The director, by rule shall:                             for which a civil penalty could be assessed
                                                                   under ORS 656.745.
     (a) Prescribe methods for determining
and approving net worth.                                               (3) When the certification of a self-
                                                                   insured employer is revoked, or when an
     (b) Prescribe the types and approve the                       employer terminates in a self-insured em-
retention and limitation levels of excess in-                      ployer group, that employer must imme-
surance policies.                                                  diately comply with ORS 656.017 (1). If the
     (c) Establish reporting requirements.                         employer fails to so comply, notwithstanding
     (d) Prescribe information to be submitted                     ORS 656.052 (3), the director immediately
in applications for self-insured employer cer-                     may file suit in the circuit court of the
tifications.                                                       county in which the employer resides or em-
                                                                   ploys workers. Upon filing of such a suit,
     (e) Prescribe the form and manner of re-                      the court shall set a date for hearing and
porting commencement or termination in a                           shall cause notice thereof to be served on the
self-insured employer group.                                       employer. The hearing shall be not less than
     (f) Prescribe the form, amount and man-                       five nor more than 15 days from the date of
ner for establishing and operating a common                        service of the notice. Upon commencement
claims fund.                                                       of the suit, the circuit court shall enjoin the
     (g) Prescribe such other requirements as                      employer from further employing workers
the director considers necessary so that em-                       until the employer complies with ORS
ployers certified as self-insured employers                        656.017 (1). [1975 c.556 §34; 1979 c.845 §2; 1981 c.535
                                                                   §39]
will meet the financial responsibilities under
this chapter.                                                           656.440 Notice of certificate revoca-
                                                                   tion; appeal; effective date. (1) Before re-
     (12) For the purpose of certification as a                    vocation of certification under ORS 656.434
self-insured employer group, cities, counties,                     becomes effective, the Director of the De-
special districts created under ORS 198.010,                       partment of Consumer and Business Services
intergovernmental agencies created under                           shall give the employer notice that the cer-
ORS 225.050, school districts as defined in                        tification will be revoked stating the grounds
ORS 255.005 (8), public housing authorities                        for the revocation. The notice shall be served
created under ORS chapter 456 and regional                         on the employer in the manner provided by
councils of governments created under ORS                          ORS 656.427 (4). The revocation shall become
chapter 190 shall be considered by the direc-                      effective within 10 days after receipt of such
tor to be of the same industry.                                    notice by the employer unless within such
     (13) Notwithstanding subsection (8) of                        period of time the employer corrects the
this section, a public utility with assets of                      grounds for the revocation or appeals in
more than $500 million may obtain excess                           writing to the director. The director shall
insurance coverage from an eligible surplus                        refer the request for hearing to the Workers’
lines insurer. As used in this subsection,                         Compensation Board for a hearing before an
“public utility” has the meaning given that                        Administrative Law Judge.
term in ORS 757.005. [1975 c.556 §33; 1979 c.845                        (2) If the employer appeals, the Hearings
§1; 1981 c.535 §38; 1983 c.816 §9; 1985 c.739 §6; 1987 c.94
§107; 1987 c.800 §1; 1987 c.884 §58; 1989 c.602 §1; 1993           Division of the Workers’ Compensation
c.817 §2; 1999 c.280 §1; 2003 c.170 §6; 2005 c.189 §1]             Board under ORS 656.283 shall set a date for
     656.431 [1965 c.285 §78; 1973 c.620 §6; repealed by           a hearing, which date shall be within 30 days
1975 c.556 §54]                                                    after receiving the appeal request, and shall

                                                              86
                                      WORKERS′ COMPENSATION                                                        656.447

give the employer at least five days’ notice                     consider proper, the director may accept in
of the time and place of the hearing. A re-                      lieu of the security deposited with the direc-
cord of the hearing shall be kept but it need                    tor a policy of paid-up insurance in a form
not be transcribed unless requested by the                       approved by the director. [1975 c.556 §36; 1981
employer. The cost of transcription shall be                     c.854 §31; 1987 c.373 §32; 2007 c.241 §14]
charged to the employer. Within 10 days af-                           656.444 [1967 c.341 §9; repealed by 1975 c.556 §54]
ter the hearing, the Administrative Law
Judge shall either affirm or disaffirm the re-                       656.445 Advancement of funds from
vocation and give the employer written no-                       Workers’ Benefit Fund for compensation
tice thereof by registered or certified mail.                    due workers insured by insurer in de-
                                                                 fault; limitations; rules. (1) If an insurer
     (3) If revocation is affirmed on review by                  defaults in payment of compensation due an
the Administrative Law Judge, the revoca-                        injured worker, the Director of the Depart-
tion is effective five days after the employer                   ment of Consumer and Business Services
receives notice of the affirmance unless                         may advance funds from the Workers’ Bene-
within such period of time the employer cor-                     fit Fund to injured workers who have not
rects the grounds for the revocation or pe-                      received payment of compensation due from
titions for judicial review of the affirmance                    the insurer in default.
pursuant to ORS 183.480 to 183.497.
                                                                     (2) The maximum expenditures that may
     (4) If the revocation is affirmed following                 be made under this section may not exceed
judicial review, the revocation is effective                     the amount of securities on deposit for the
five days after entry of the final judgment of                   insurer pursuant to ORS 731.628.
affirmance, unless within such period the
employer corrects the grounds for the revo-                          (3) The director shall adopt rules to reg-
cation. [1975 c.556 §35; 1977 c.804 §15; 2003 c.576 §530;        ulate, manage and disburse moneys in the
2005 c.26 §14; 2007 c.241 §30]                                   Workers’ Benefit Fund for the purposes of
    656.442 [1967 c.341 §7; repealed by 1975 c.556 §54]
                                                                 subsection (1) of this section. The rules shall
                                                                 include but not be limited to eligibility cri-
     656.443 Procedure upon default by                           teria, procedures for distributing funds, ac-
employer. (1) If an employer defaults in                         counting procedures and a maximum
payment of compensation or other payments                        expenditure limitation on payments made
due to the Director of the Department of                         under subsection (1) of this section from the
Consumer and Business Services under this                        fund. [2001 c.974 §6]
chapter, the director may, on notice to the                           656.446 [1967 c.341 §10; repealed by 1975 c.556 §54]
employer and any insurer providing workers’
compensation insurance coverage or a surety                          656.447 Sanctions against insurer for
bond to such employer, use money or interest                     failure to comply with contracts, orders
and dividends on securities, sell securities or                  or rules. (1) The Director of the Department
institute legal proceedings on any surety                        of Consumer and Business Services may sus-
bond or insurance policy for which a notice                      pend or revoke the authorization of an in-
of coverage has been filed with the director                     surer to issue workers’ compensation
to the extent necessary to make such pay-                        insurance policies if the director, after notice
ments.                                                           to the company and giving the company an
                                                                 opportunity to be heard and present evi-
     (2) Prior to any default by the employer,                   dence, finds that:
the employer is entitled to all interest and
dividends on securities on deposit and to ex-                        (a) The company has failed to comply
ercise all voting rights, stock options and                      with its obligations under any such policy;
other similar incidents of ownership of the                      or
securities.                                                          (b) The company has failed to comply
     (3) If for any reason the certification of                  with the orders of the director or the pro-
a self-insured employer is canceled or termi-                    visions of this chapter or any rule promul-
nated, the security deposited with the direc-                    gated pursuant thereto.
tor shall remain on deposit or in effect, as                         (2) A suspension or revocation shall not
the case may be, for a period of at least 62                     affect the liability of any such company on
months after the employer ceases to be a                         any workers’ compensation insurance policy
self-insured employer. The security shall be                     in force prior to the suspension or revoca-
maintained in an amount necessary to secure                      tion. [1975 c.556 §37; 1977 c.430 §2; 1987 c.373 §33; 2007
the outstanding and contingent liability aris-                   c.241 §15]
ing from the accidental injuries secured by                           656.451 [1975 c.585 §6; 1981 c.854 §32; 1987 c.373 §34;
the security, and to assure the payment of                       1987 c.884 §59; 1989 c.654 §1; 1991 c.640 §1; renumbered
claims for aggravation and claims arising                        654.097]
under ORS 656.278 based on those accidental                           656.452 [Amended by 1965 c.285 §54a; renumbered
injuries. At the expiration of the 62-month                      656.632]
period, or of another period the director may                         656.454 [Renumbered 656.634]

                                                            87
656.455                               LABOR AND EMPLOYMENT

     656.455 Self-insured employers re-                                      CHARGES AGAINST
quired to keep records of compensation                                    EMPLOYERS AND WORKERS
claims; location and inspection; expenses
of audits and inspections; rules. (1) Every                           656.502 “Fiscal year” defined. As used
self-insured employer shall maintain a place                      in ORS 656.502 to 656.526, “fiscal year”
of business in this state where the employer                      means the period of time commencing on
shall keep complete records of all claims for                     July 1 and ending on the succeeding June 30.
compensation made to the employer under                               656.504 Rates, charges, fees and re-
this chapter or a self-insured employer may,                      ports by employers insured by State Ac-
under the conditions prescribed by ORS                            cident Insurance Fund Corporation. (1)
731.475 (3), keep such records in this state                      Every employer insured by the State Acci-
at places operated by service companies. The                      dent Insurance Fund Corporation shall pay
records shall be retained in, and may be re-                      to the State Accident Insurance Fund Cor-
moved from, this state or disposed of, in ac-                     poration on or before the 15th day of each
cordance with the rules of the Director of                        month, for insurance coverage, a percentage
the Department of Consumer and Business                           of the employer’s total payroll for the pre-
Services adopted pursuant to ORS 731.475.                         ceding calendar month of subject workers
Such records shall be available to the direc-                     according to and at the rates promulgated by
tor for examination and audit at all reason-
                                                                  the State Accident Insurance Fund Corpo-
able times upon notice by the director to the
employer.                                                         ration under ORS 656.508 and shall forward
                                                                  to the State Accident Insurance Fund Cor-
     (2) With the permission of the director,                     poration on or before the 15th day of each
a self-insured employer may keep all claims                       month a signed statement showing the
records and process claims from a location                        employer’s total payroll for the preceding
outside of the state. The director shall by                       calendar month, the kind of work performed,
rule prescribe the conditions and procedure                       the number of workers and the number of
for obtaining permission of the director. The                     days worked. The State Accident Insurance
director may revoke permission for failure of                     Fund Corporation may establish other re-
the employer to comply with the rules. If the                     porting periods and payment-due dates and in
permission of an employer is revoked by the                       lieu of payment based upon a percentage of
director, the employer shall be allowed 60                        total payroll may promulgate rates to be paid
days after the order of revocation becomes
                                                                  by employers insured with the State Acci-
final to comply with subsection (1) of this
section. The expenses of the director to ex-                      dent Insurance Fund Corporation utilizing a
amine and audit the records of a self-insured                     certain number of cents for each work-hour
employer outside of this state shall be paid                      worked by workers in such employer’s em-
by the employer.                                                  ploy. Each such employer shall also pay an
                                                                  annual fee, deposit and minimum premium in
     (3) Notwithstanding subsection (1) of this                   such amount and at such time as the State
section, a self-insured employer may not have                     Accident Insurance Fund Corporation shall
at any one time more than three locations                         prescribe, to the Industrial Accident Fund
where claims are processed or records are                         for each calendar year. Each such employer
maintained. [1975 c.585 §8; 1989 c.630 §2]                        may be required to pay a registration fee in
     656.456 [Amended by 1955 c.323 §2; 1957 c.63 §1; 1959        such amount and at such time as the State
c.178 §1; 1961 c.697 §1; 1965 c.285 §62; renumbered               Accident Insurance Fund Corporation shall
656.636]
                                                                  prescribe. The State Accident Insurance
    656.458 [Repealed by 1965 c.285 §95]                          Fund Corporation may vary the amount of
    656.460 [Amended by 1953 c.674 §13; 1959 c.517 §3;            these fees and minimum premium by em-
1963 c.323 §1; 1965 c.285 §64; renumbered 656.638]                ployer groupings, accept them in lieu of the
    656.462 [Amended by 1953 c.674 §13; repealed by               other premiums which are based on the
1965 c.285 §95]                                                   employer’s payroll, and may adjust the period
    656.464 [Amended by 1953 c.674 §13; 1957 c.574 §5;            of application from a calendar year to a fis-
1959 c.449 §2; 1965 c.285 §66b; renumbered 656.642]               cal year.
    656.466 [Amended by 1953 c.674 §13; 1959 c.449 §3;                (2) The State Accident Insurance Fund
1965 c.285 §67g; renumbered 656.644]
                                                                  Corporation may provide for a short rate
    656.468 [Amended by 1953 c.674 §13; 1965 c.285 §66;           premium applicable to employers who cancel
renumbered 656.640]
                                                                  their coverage with the State Accident In-
    656.470 [Repealed by 1953 c.674 §13]                          surance Fund Corporation prior to the expi-
    656.472 [Amended by 1953 c.674 §13; 1957 c.574 §6;            ration of the coverage period using a
1959 c.449 §4; 1965 c.285 §68a; renumbered 656.602]               standard short rate table. [Amended by 1957 c.441
    656.474 [Amended by 1953 c.674 §13; 1965 c.285 §68c;          §3; 1959 c.450 §6; 1965 c.285 §69; 1967 c.341 §8; 1979 c.348
renumbered 656.604]                                               §2; 1981 c.535 §11; 1981 c.854 §33]

                                                             88
                               WORKERS′ COMPENSATION                                           656.506

    656.505 Estimate of payroll when em-                ments shall include, but not be limited to,
ployer fails to file payroll report; demand             the cash balance as determined by the direc-
for and recovery of premiums and as-                    tor and estimated expenditures and revenues
sessments. (1) In every case where an em-               of the Workers’ Benefit Fund.
ployer fails or refuses to file any report of               (5) It is the intent of the Legislative As-
payroll required by ORS 656.504 and fails or            sembly that the department set rates for the
refuses to pay the premiums and assessments             collection of assessments pursuant to sub-
due on such unreported payroll the State                sections (2) and (3) of this section in a man-
Accident Insurance Fund Corporation shall               ner so that at the end of the period for which
have authority to estimate such payroll and             the rates shall be effective, the cash balance
make a demand for premiums and assess-                  shall be an amount approximating 12 months
ments due thereon.                                      of projected expenditures from the Workers’
    (2) If the report required and the premi-           Benefit Fund in regard to its functions and
ums and assessments due thereon are not                 duties under subsection (7) of this section
made within 30 days from the mailing of                 and ORS 656.445, 656.622, 656.625, 656.628
such demand the employer shall be in default            and 656.630, in a manner that minimizes the
as provided in ORS 656.560, and the corpo-              volatility of the rates assessed. The depart-
ration may have and recover judgment or file            ment may set the assessment rate at a higher
liens for such estimated premiums and as-               level if the department determines that a
sessments or the actual premium and assess-             higher rate is necessary to avoid uninten-
ment, whichever is greater. [1953 c.679 §2; 1979        tional program or benefit reductions in the
c.348 §3; 1981 c.854 §34]                               time period immediately following the period
    656.506 Assessments for programs;                   for which the rate is being set.
setting assessment amount; determi-                         (6) Every employer required to pay the
nation by director of benefit level. (1) As             assessments referred to in this section shall
used in this section:                                   make and file a report of employee hours
    (a) “Employee” means a subject worker               worked and amounts due under this section
as defined in ORS 656.005 (28).                         upon a combined report form prescribed by
                                                        the Department of Revenue. The report shall
    (b) “Employer” means a subject employer             be filed with the Department of Revenue:
as defined in ORS 656.005 (27).
                                                            (a) At the times and in the manner pre-
    (2) Every employer shall retain from the            scribed in ORS 316.168 and 316.171; or
moneys earned by all employees an amount
determined by the Director of the Depart-                   (b) Annually as required or allowed pur-
ment of Consumer and Business Services for              suant to ORS 316.197 or 657.571.
each hour or part of an hour the employee                   (7) There is established a Retroactive
is employed and pay the money retained in               Program for the purpose of providing in-
the manner and at such intervals as the Di-             creased benefits to claimants or beneficiaries
rector of the Department of Consumer and                eligible to receive compensation under the
Business Services shall direct.                         benefit schedules of ORS 656.204, 656.206,
    (3) In addition to all moneys retained              656.208 and 656.210 which are lower than
under subsection (2) of this section, the di-           currently being paid for like injuries. How-
rector shall assess each employer an amount             ever, benefits payable under ORS 656.210
equal to that assessed pursuant to subsection           shall not be increased by the Retroactive
(2) of this section. The assessment shall be            Program for claimants whose injury occurred
paid in such manner and at such intervals               on or after April 1, 1974. Notwithstanding
as the director may direct.                             the formulas for computing benefits provided
                                                        in ORS 656.204, 656.206, 656.208 and 656.210,
    (4) Moneys collected pursuant to subsec-            the increased benefits payable under this
tions (2) and (3) of this section, and any ac-          subsection shall be in such amount as the
crued cash balances, shall be deposited by              director considers appropriate. The director
the Department of Consumer and Business                 annually shall compute the amount which
Services into the Workers’ Benefit Fund.                may be available during the succeeding year
Subject to the limitations in subsections (2)           for payment of such increased benefits and
and (3) of this section, the amount of the              determine the level of benefits to be paid
hourly assessments provided in subsections              during such year. If, during such year, it is
(2) and (3) of this section annually may be             determined by the director that there are in-
adjusted to meet the needs of the Workers’              sufficient funds to increase benefits to the
Benefit Fund for the expenditures of the de-            level fixed by the director, the director may
partment in carrying out its functions and              reduce the level of benefits payable under
duties pursuant to subsection (7) of this sec-          this subsection. The increase in benefits to
tion and ORS 656.445, 656.622, 656.625,                 workers shall be payable in the first instance
656.628 and 656.630. Factors to be considered           by the insurer or self-insured employer sub-
in making such adjustment of the assess-                ject to reimbursement from the Workers’

                                                   89
656.508                                 LABOR AND EMPLOYMENT

Benefit Fund by the director. If the insurer                              656.522 [Amended by 1965 c.285 §71a; repealed by
is a member of the Oregon Insurance Guar-                             1981 c.854 §1 and 1981 c.876 §1]
anty Association and becomes insolvent and                                656.524 [Amended by 1979 c.562 §29; repealed by
                                                                      1981 c.854 §1 and 1981 c.876 §1]
the Oregon Insurance Guaranty Association
assumes the insurer’s obligations to pay cov-                             656.526 Distribution of dividends from
ered claims of subject workers, including                             surplus in Industrial Accident Fund. (1)
Retroactive Program benefits, such benefits                           Periodically, the State Accident Insurance
shall be payable in the first instance by the                         Fund Corporation shall determine the total
Oregon Insurance Guaranty Association,                                liability existing against the Industrial Acci-
subject to reimbursement from the Workers’                            dent Fund.
Benefit Fund by the director. [Amended by 1955                            (2) If, after the determination required by
c.323 §1; 1965 c.285 §70; 1971 c.768 §1; 1973 c.55 §1;    1974
c.41 §8; 1977 c.143 §2; 1979 c.845 §5; 1983 c.391 §1;     1985        subsection (1) of this section, the State Acci-
c.739 §1; 1990 c.2 §31; 1993 c.760 §1; 1995 c.332 §63;    1995        dent Insurance Fund Corporation finds the
c.527 §1; 1995 c.641 §20; 1999 c.118 §1; 2001 c.591 §1;   2001        Industrial Accident Fund, aside from the re-
c.974 §7]                                                             serves deemed actuarially necessary accord-
     Note: See notes under 656.202.                                   ing to recognized insurance principles,
     656.507 [1953 c.679 §1; 1959 c.450 §7; repealed by   1965        contains a surplus, the State Accident Insur-
c.285 §95]                                                            ance Fund Corporation in its discretion may,
    656.508 Authority to fix premium                                  after providing for any payments to the state,
rates for employers. (1) The State Accident                           taxes or other dispositions of surplus pro-
Insurance Fund Corporation shall classify                             vided by law, declare a dividend to be paid
occupations or industries with respect to                             to, or credited to the accounts of, employers
their degree of hazard and fix premium rates                          who were insured by the State Accident In-
upon each of the occupations or industries                            surance Fund Corporation during all or part
sufficient to provide adequate funds to carry                         of the period for which the dividend is de-
out the purposes of this chapter and the du-                          clared. Any dividend so declared shall give
ties of the State Accident Insurance Fund                             due consideration to the solvency of the In-
Corporation.                                                          dustrial Accident Fund, not be unfairly dis-
                                                                      criminatory and not be promised in advance
    (2) The State Accident Insurance Fund                             of such declaration.
Corporation may annually, and at such other                               (3) An employer in default when the div-
times as it deems necessary, readjust, in-                            idend is declared shall not be eligible to re-
crease or decrease the premium rates of em-                           ceive payment or the credit provided by
ployers insured with the State Accident                               subsection (2) of this section. [Amended by 1953
Insurance Fund Corporation. Any such read-                            c.674 §13; 1955 c.323 §3; 1957 c.574 §8; 1965 c.285 §72; 1967
justment, increase or decrease shall be made                          c.252 §1; 1969 c.589 §1; 1971 c.385 §3; 1971 c.725 §1; 1981
and become effective on such dates as the                             c.854 §36; 1982 s.s.3 c.2 §3; 1999 c.424 §1]
State Accident Insurance Fund Corporation                                  656.530 [1969 c.536 §2; 1971 c.768 §2; 1975 c.556 §43;
may determine. The State Accident Insur-                              1981 c.535 §23; 1990 c.2 §32; 1991 c.93 §10; 1995 c.641 §7;
ance Fund Corporation shall notify the em-                            repealed by 1999 c.273 §1]
ployer of the rate.                                                        656.532 [1987 c.884 §40; repealed by 1993 c.760 §4]
    (3) The State Accident Insurance Fund                                  656.535 [1973 c.669 §2; repealed by 1973 c.669 §4]
Corporation may establish a uniform system                                656.536 Premium charges for coverage
of rate modification conforming to recognized                         of reforestation cooperative workers
insurance principles including schedule rat-                          based on prevailing wage; manner of de-
ing and experience rating, premium discount                           termining prevailing wage. (1) The premi-
and retrospective rating. [Amended by 1957 c.41                       ums charged by an insurer for coverage
§1; 1957 c.386 §1; 1963 c.587 §1; 1965 c.285 §71; 1977 c.405          under this chapter for members of a workers’
§8; 1981 c.854 §35]                                                   cooperative engaged primarily in reforesta-
     656.509 [1973 c.614 §6; 1974 c.41 §9; repealed by 1974           tion work and all computations for benefits
c.41 §9]                                                              payable to such individuals under this chap-
     656.510 [Amended by 1957 c.440 §4; 1963 c.214 §1;                ter shall be based on the prevailing rate of
1965 c.546 §1; repealed by 1965 c.285 §95 and 1965 c.546              wage paid to individuals performing the same
§4]
                                                                      work in the same locality as members of the
     656.512 [Amended by 1957 c.440 §5; repealed by 1965              workers’ cooperative.
c.285 §95]
     656.514 [Amended by 1965 c.546 §2; repealed by 1965                  (2) Each time a cooperative contracts for
c.285 §95 and 1965 c.546 §4]                                          services, the cooperative shall determine the
     656.516 [Amended by 1953 c.674 §13; 1957 c.453 §3;               prevailing rate of wage of each job category
1959 c.517 §4; 1963 c.323 §2; 1965 c.546 §3; repealed by              involved in performance of the contract. The
1965 c.285 §95 and 1965 c.546 §4]                                     determination of the prevailing rate of wage
     656.518 [Amended by 1957 c.440 §6; repealed by 1965              shall be filed with the insurer and used dur-
c.285 §95]                                                            ing the term of the contract. If a dispute
     656.520 [Amended by 1957 c.574 §7; repealed by 1965              arises between the workers’ cooperative and
c.285 §95]                                                            the insurer concerning the propriety of the

                                                                 90
                               WORKERS′ COMPENSATION                                                         656.554

prevailing rate of wage determination by the            tion work and related activity, including but
workers’ cooperative, the Director of the               not limited to tree planting, brush clearing,
Department of Consumer and Business Ser-                precommercial thinning, trail building, trail
vices shall determine the appropriate pre-              maintenance, fire fighting, timber stand ex-
vailing rate of wage.                                   aminations, cone picking, tubing, conifer re-
    (3) The determination of the prevailing             lease and roadside brush clearing. [1981 c.279
                                                        §2]
rate of wage shall be based on the best evi-
dence available concerning wages paid to                     656.538 [1983 c.816 §11; 1987 c.373 §§35,35a; 1987 c.884
                                                        §21; 1990 c.2 §33; repealed by 1993 c.760 §4]
employees who do not have an ownership in-
terest in the contracting enterprise perform-
ing the same work under similar conditions                          ENFORCEMENT OF
in the same locality as the cooperative. If no                     PREMIUM PAYMENTS
such work is being performed in the same                    656.552 Deposit of cash, bond or letter
locality at the time the workers’ cooperative           of credit to secure payment of employer’s
engages in a contract for services, the best            premiums. (1) If the State Accident Insur-
evidence available from the latest such con-            ance Fund Corporation finds it necessary for
tract for services for the same work under              the protection of the Industrial Accident
similar conditions in the nearest locality              Fund, it may require any employer insured
shall be used by the workers’ cooperative to            with the State Accident Insurance Fund
determine the prevailing rate of wage.                  Corporation, except political subdivisions of
    (4) Notwithstanding any other provision             the state, to deposit and keep on deposit with
of this section, in no case shall the prevail-          the State Accident Insurance Fund Corpo-
ing rate of wage used for the purpose of this           ration a sum equal to the premiums due the
section be less than the rate of wage speci-            State Accident Insurance Fund Corporation
fied in the contract for services as the mini-          upon the estimated payroll of the employer
mum wage to be paid for services performed              for a period of not to exceed six months.
under the contract. If no such minimum                      (2) The State Accident Insurance Fund
wage requirement is specified in the contract           Corporation may, in its discretion and in lieu
for services, the most recent such contract             of such deposit, accept a bond, letter of
for services for the same work under similar            credit or similar instrument to secure pay-
conditions in the nearest locality which                ment of premiums to become due the Indus-
specifies minimum wages shall be used to                trial Accident Fund. The deposit or posting
determine the prevailing rate of wage.                  of the bond, letter of credit or similar in-
    (5) As used in this section:                        strument shall not relieve the employer from
                                                        making premium payments to the Industrial
    (a) “Prevailing rate of wage” means the             Accident Fund based on the actual payroll
average wage paid to employees who do not               of the employer, as provided by ORS 656.504.
have an ownership interest in the contract-
ing enterprise performing the same work un-                 (3) If an employer ceases to be insured
der similar conditions in the same locality             by the State Accident Insurance Fund Cor-
as the cooperative.                                     poration, the State Accident Insurance Fund
    (b) “Workers’ cooperative” means an en-             Corporation shall, upon receipt of all pay-
terprise:                                               ments due the Industrial Accident Fund, re-
                                                        fund to the employer all deposits remaining
    (A) Formed pursuant to ORS chapter 62.              to the employer’s credit and shall cancel any
    (B) The membership of which is limited              bond, letter of credit or similar instrument
to individuals who maintain and operate the             given under this section. [Amended by 1959 c.450
enterprise.                                             §8; 1965 c.285 §81; 1981 c.854 §37; 2009 c.145 §1]

    (C) The members of which each have                      656.554 Injunction against employer
equal voting power in the control of the en-            failing to comply with deposit require-
terprise.                                               ments. (1) If an employer fails to comply
                                                        with ORS 656.552, the circuit court of the
    (D) The profits of which are distributed            county in which the employer resides or in
to each member on the basis of the quantity             which the employer employs workers shall,
or value of the services performed by that              upon the commencement of a suit by the
individual as a member of the cooperative.              State Accident Insurance Fund Corporation
    (E) Which makes no dividend or financial            for that purpose, enjoin the employer from
or monetary return or any other payment                 further employing workers under this chap-
based on capital investment except as pro-              ter until the employer has complied with
vided in subparagraph (D) of this paragraph             ORS 656.552.
or at a strictly limited rate of interest agreed            (2) Upon filing of a suit for such purpose
upon at the time the capital is invested.               by the State Accident Insurance Fund Cor-
    (F) Receives not less than 80 percent of            poration, the court shall set a day for hear-
its gross income from engaging in reforesta-            ing and shall cause notice thereof to be

                                                   91
656.556                           LABOR AND EMPLOYMENT

served upon the employer. The hearing shall                 §73a; 1969 c.248 §1; 1971 c.73 §1; 1975 c.556 §44; 1981 c.854
be not less than five nor more than 15 days                 §39]
from the service of the notice.                                 656.562 Moneys due Industrial Acci-
    656.556 Liability of person letting a                   dent Fund as preferred claims; moneys
contract for amounts due from contrac-                      due department as taxes due state. (1) All
tor. If any person lets a contract and the                  premiums,     fees,   assessments,   interest
person to whom the contract was let, while                  charges, penalties or amounts due the Indus-
performing the contract, engages as an em-                  trial Accident Fund from any employer under
ployer subject to this chapter at the plant of              this chapter and all judgments recovered by
the person letting the contract, upon prem-                 the State Accident Insurance Fund Corpo-
ises owned, leased or controlled by such per-               ration against any employer under this
son or upon premises where such person is                   chapter shall be deemed preferred to all gen-
conducting business, the person letting the                 eral claims in all bankruptcy proceedings,
contract shall be liable to the Industrial Ac-              trustee proceedings, proceedings for the ad-
cident Fund for the payment of all premiums,                ministration of estates and receiverships in-
fees and assessments which may be due such                  volving the employer liable therefor or the
fund on account of the performance of the                   property of such employer.
contract or any subcontract thereunder.                         (2) All assessments, interest charges,
[Amended by 1965 c.285 §73; 1981 c.854 §38]                 penalties or amounts due the Department of
     656.558 [Amended by 1965 c.285 §66a; renumbered        Consumer and Business Services shall be
656.646]                                                    considered taxes due the State of Oregon.
                                                            [Amended by 1979 c.839 §11; 1981 c.854 §40]
     656.560 Default in payment of premi-
ums, fees, assessments or deposit; reme-                         656.564 Lien for amounts due from
dies. (1) When any payment of premiums,                     employer on real property, improvements
fees and assessments required by this chapter               and equipment on or with which labor is
to be made by an employer insured with the                  performed by workers of employer. (1) A
State Accident Insurance Fund Corporation                   lien hereby is created in favor of the insurer
on the account of the employer or on ac-                    upon all real property within this state and
count of workers employed by that employer                  any structure or improvement thereon and
becomes due, interest at the rate of one per-               upon any mine, lode, deposit, mining claim,
cent per month or fraction thereof shall be                 or any road, tramway, trail, flume, ditch,
added to the amount of such payment com-                    pipeline, building, or other structure or
mencing with the first day of the month fol-                equipment on or pertaining thereto, upon
lowing the date upon which such payment                     which labor is performed by the workers of
became due.                                                 any employer subject to this chapter in a
     (2) If any employer insured with the                   sum equal to the amount at any time due
State Accident Insurance Fund Corporation                   from such employer to the insurer on ac-
fails to make and maintain the deposit pro-                 count of labor performed thereon by the
vided in ORS 656.552 or fails to make pay-                  workers of such employer, together with in-
ment of premiums, fees and assessments                      terest and penalty.
required within 30 days after a written de-                      (2) The insurer shall also have a lien on
mand by the State Accident Insurance Fund                   all lumber, sawlogs, spars, piles, ties or other
Corporation, such employer is in default and                timber, and upon all other manufactured ar-
is also subject to a penalty of 10 percent of               ticles of whatsoever kind or nature, and upon
the amount then due. The written demand                     all machinery, tools and equipment of the
shall be mailed to the employer at the last-                employer used in connection with the em-
known address of the employer by registered                 ployment on which contributions, premiums
or certified mail. A copy of the demand shall               or assessments are due, in a sum equal to the
at the same time be sent to the Director of                 amount at any time due from any employer
the Department of Consumer and Business                     subject to this chapter on account of labor
Services.                                                   performed by the workers of such employer,
                                                            together with interest and penalty.
     (3) The amount at any time due, together
with interest thereon, and penalty for non-                      (3) In order to avail itself of the lien
                                                            created by this section, the insurer shall,
payment thereof, may be collected by the                    within 60 days after the employer is in de-
State Accident Insurance Fund Corporation                   fault, as provided in ORS 656.560, file with
in the same action.                                         the county clerk of the county within which
     (4) Every employer in default, as provided             such property is then situated a statement in
in this section, upon receipt of notice                     writing describing the property upon which
thereof, shall display such notice of default               a lien is claimed and stating the amount of
by posting it in a place accessible to the                  the lien claimed by the insurer. If a lien is
workers in such manner as to inform the                     claimed on real property not then owned by
workers of such default. [Amended by 1965 c.285             the employer, the statement must be filed

                                                       92
                                     WORKERS′ COMPENSATION                                                  656.583

within 60 days from the completion of the                     (4) The lien created by this section may
work.                                                     be foreclosed by a suit in the circuit court in
    (4) The insurer shall, within six months              the manner provided by law for the foreclo-
from the filing of the statement, commence                sure of other liens on real or personal prop-
a suit to cause such lien to be foreclosed in             erty. Unless a suit is instituted by the State
the manner provided by law for the foreclo-               Accident Insurance Fund Corporation to
sure of other liens on real or personal prop-             foreclose such lien within two years from the
erty.                                                     date of filing, the lien shall expire.
    (5) The lien created by this section shall                (5) The lien created by this section is
be prior to all other liens and encumbrances,             prior to all liens and encumbrances recorded
except labor liens and liens for taxes and                subsequent to the filing of notice of claim of
other amounts due the State of Oregon.                    lien, except taxes and labor liens. [Amended by
                                                          1981 c.854 §41; 2001 c.577 §5; 2003 c.576 §531]
[Amended by 1979 c.815 §6; 1981 c.535 §40]
     656.566 Lien on property of employer                 RECOVERY AGAINST THIRD PERSONS
for amounts due. (1) If any employer liable                 AND NONCOMPLYING EMPLOYERS
for the payment of premiums, fees and as-
sessments to the Industrial Accident Fund is                   656.576 “Paying agency” defined. As
placed in default as provided by ORS 656.560,             used in ORS 656.578 to 656.595, “paying
the amount due the fund, including interest               agency” means the self-insured employer or
and penalty, is a lien in favor of the State              insurer paying benefits to the worker or
Accident Insurance Fund Corporation upon                  beneficiaries. [1965 c.285 §44a; 1981 c.854 §42]
all property, whether real or personal, be-                    656.578 Workers’ election whether to
longing to such employer.                                 sue third person or noncomplying em-
     (2) The lien attaches upon the filing of a           ployer for damages. If a worker of a non-
notice of claim of lien with the county clerk             complying employer receives a compensable
of the county in which the property is lo-                injury in the course of employment, or if a
cated. The notice of lien claim shall contain             worker receives a compensable injury due to
a true statement of the demand, after de-                 the negligence or wrong of a third person
ducting all just credits and offsets, and the             (other than those exempt from liability under
default of such employer. The county clerk                ORS 656.018), entitling the worker under
shall record the claim of lien in the County              ORS 656.154 to seek a remedy against such
Clerk Lien Record and shall receive the fee               third person, such worker or, if death results
provided in ORS 205.320.                                  from the injury, the other beneficiaries shall
                                                          elect whether to recover damages from such
     (3) The employer against whose property              employer or third person. If a worker leaves
the lien has been filed may cause the prop-               beneficiaries who are minors, the right of
erty to be released by filing with the county             election shall be exercised by their surviving
clerk of the county wherein the lien is re-               parent, if any; otherwise, such election shall
corded a bond in a sum double the amount                  be exercised by the guardian. [Formerly 656.312]
claimed in the lien, executed by a surety
company licensed to do business in Oregon                      656.580 Payment of compensation not-
or by two freeholders of this state, having               withstanding cause of action for dam-
the qualifications of bail upon arrest, to be             ages; lien on cause of action for
approved by the circuit judge of the district             compensation paid. (1) The worker or ben-
in which the lien is filed, or in the event of            eficiaries of the worker, as the case may be,
                                                          shall be paid the benefits provided by this
absence from the county in which the lien is              chapter in the same manner and to the same
filed, then by the county judge of said                   extent as if no right of action existed against
county, running to the State Accident Insur-              the employer or third party, until damages
ance Fund Corporation and conditioned for                 are recovered from such employer or third
the payment of all damages, costs, charges                party.
and disbursements that may be recovered by
the State Accident Insurance Fund Corpo-                       (2) The paying agency has a lien against
ration against the employer or that may be                the cause of action as provided by ORS
found to be a lien upon or against the prop-              656.591 or 656.593, which lien shall be pre-
erty of such employer. The clerk shall record             ferred to all claims except the cost of recov-
evidence that the bond is substituted in lieu             ering such damages. [Formerly 656.314]
of the property of the employer and that the                  656.582 [Renumbered 656.384]
lien on the property is forever released and                  656.583 Paying agency may compel
discharged. If the State Accident Insurance               election and prompt action. (1) The paying
Fund Corporation establishes the validity of              agency may require the worker or other
its lien by a suit to foreclose the lien, it shall        beneficiaries or the legal representative of a
be entitled to judgment against the sureties              deceased worker to exercise the right of
upon the bond.                                            election provided in ORS 656.578 by serving

                                                     93
656.587                              LABOR AND EMPLOYMENT

a written demand by registered or certified                     shall be paid such worker or other benefici-
mail or by personal service upon such                           aries. [Formerly 656.320]
worker, beneficiaries or legal representative.
                                                                    656.593 Procedure when worker elects
    (2) Unless such election is made within                     to bring action; release of liability and
60 days from the receipt or service of such                     lien of paying agency in certain cases. (1)
demand and unless, after making such                            If the worker or the beneficiaries of the
election, an action against such third person                   worker elect to recover damages from the
is instituted within such time as is granted                    employer or third person, notice of such
by the paying agency, the worker, benefici-                     election shall be given the paying agency by
aries or legal representative is deemed to                      personal service or by registered or certified
have assigned the cause of action to the                        mail. The paying agency likewise shall be
paying agency. The paying agency shall al-                      given notice of the name of the court in
low the worker, the beneficiaries or legal                      which such action is brought, and a return
representative of the worker at least 90 days                   showing service of such notice on the paying
from the making of such election to institute                   agency shall be filed with the clerk of the
such action. In any case where an insurer of                    court but shall not be a part of the record
a third person is also the insurer of the em-                   except to give notice to the defendant of the
ployer, notice of this fact must be given in                    lien of the paying agency, as provided in this
writing by the insurer to the injured worker                    section. The proceeds of any damages recov-
and to the Director of the Department of                        ered from an employer or third person by the
Consumer and Business Services within 10                        worker or beneficiaries shall be subject to a
days after the occurrence of any accident                       lien of the paying agency for its share of the
which may result in the assertion of the                        proceeds as set forth in this section. When
claim against the third person by the injured                   the proceeds are paid in a series of payments,
worker. [Formerly 656.316; 1981 c.854 §43]                      each payment shall be distributed propor-
     656.584 [Amended by 1965 c.285 §68d; renumbered            tionately to each recipient according to the
656.624]                                                        formula provided in this section, unless oth-
     656.586 [Renumbered 656.720]                               erwise agreed by the parties. The total pro-
                                                                ceeds shall be distributed as follows:
    656.587 Paying agency must join in
any compromise. Any compromise by the                               (a) Costs and attorney fees incurred shall
worker or other beneficiaries or the legal                      be paid, such attorney fees in no event to
representative of the deceased worker of any                    exceed the advisory schedule of fees estab-
right of action against an employer or third                    lished by the Workers’ Compensation Board
party is void unless made with the written                      for such actions.
approval of the paying agency or, in the                            (b) The worker or the beneficiaries of the
event of a dispute between the parties, by                      worker shall receive at least 33-1/3 percent
order of the Workers’ Compensation Board.                       of the balance of such recovery.
[Formerly 656.318; 1990 c.2 §34]
     656.588 [Amended by 1957 c.558 §1; 1965 c.285 §42a;            (c) The paying agency shall be paid and
renumbered 656.386]                                             retain the balance of the recovery, but only
     656.590 [Amended by 1965 c.285 §42b; renumbered            to the extent that it is compensated for its
656.388]                                                        expenditures for compensation, first aid or
                                                                other medical, surgical or hospital service,
    656.591 Election not to bring action                        and for the present value of its reasonably to
operates as assignment of cause of ac-                          be expected future expenditures for compen-
tion. (1) An election made pursuant to ORS                      sation and other costs of the worker’s claim
656.578 not to proceed against the employer
or third person operates as an assignment to                    under this chapter. Such other costs include
the paying agency of the cause of action, if                    expenditures of the Department of Consumer
any, of the worker, the beneficiaries or legal                  and Business Services from the Consumer
representative of the deceased worker,                          and Business Services Fund, the Self-Insured
against the employer or third person, and the                   Employer Adjustment Reserve and the
paying agency may bring action against such                     Workers’ Benefit Fund in reimbursement of
employer or third person in the name of the                     the costs of the paying agency. Such other
injured worker or other beneficiaries.                          costs also include assessments for the
                                                                Workers’ Benefit Fund, and include any
    (2) Any sum recovered by the paying                         compensation which may become payable
agency in excess of the expenses incurred in                    under ORS 656.273 or 656.278.
making such recovery and the amount ex-
pended by the paying agency for compensa-                           (d) The balance of the recovery shall be
tion, first aid or other medical, surgical or                   paid to the worker or the beneficiaries of the
hospital service, together with the present                     worker forthwith. Any conflict as to the
worth of the monthly payments of compensa-                      amount of the balance which may be re-
tion to which such worker or other benefici-                    tained by the paying agency shall be resolved
aries may be entitled under this chapter,                       by the board.

                                                           94
                              WORKERS′ COMPENSATION                                          656.593

    (2) The amount retained by the worker             understand that the claim release means that
or the beneficiaries of the worker shall be in        no further benefits of any nature whatsoever
addition to the compensation or other bene-           shall be paid to the worker or the benefici-
fits to which such worker or beneficiaries            aries of the worker.
are entitled under this chapter.                           (d) The release of the claim is accompa-
    (3) A claimant may settle any third party         nied by a settlement stipulation with the
case with the approval of the paying agency,          paying agency, outlining terms of reimburse-
in which event the paying agency is author-           ment to the paying agency, covering its in-
ized to accept such a share of the proceeds           curred expenditures for compensation, first
as may be just and proper and the worker or           aid or other medical, surgical or hospital
the beneficiaries of the worker shall receive         service and for expenditures from the
the amount to which the worker would be               Workers’ Benefit Fund, the Consumer and
entitled for a recovery under subsections (1)         Business Services Fund and the Self-Insured
and (2) of this section. Any conflict as to           Employer Adjustment Reserve, to the date
what may be a just and proper distribution            the release becomes final or the order of the
shall be resolved by the board.                       board becomes final. If the payment of such
    (4) As used in this section, “paying              incurred expenditures is in dispute, the re-
agency” includes the Department of Con-               lease of the claim shall be accompanied by a
sumer and Business Services with respect to           written submission of the dispute by the
its expenditures from the Workers’ Benefit            worker or the beneficiaries of the worker to
Fund in reimbursement of the costs of an-             the board for resolution of the dispute by or-
other paying agency for vocational assistance         der of the board under procedures allowing
and the costs of claims of noncomplying em-           for board resolution under ORS 656.587, in
ployers.                                              which case the release of the claim shall not
                                                      be final until such time as the order of the
    (5) The department shall be repaid for its        board becomes final. In such a case, the only
expenditures from the proceeds recovered by           issue to be decided by the board is the
the paying agency in an amount proportional           amount of incurred expenses by the paying
to the amount of the department’s re-                 agent.
imbursement of the paying agency’s costs.
All moneys received by the department under                (e) If a service, item or benefit has been
this section shall be deposited in the same           provided but a bill for that service, item or
fund from which the paying agency’s costs             benefit has not been received by the paying
originally had been reimbursed.                       agency before the release or order becomes
                                                      final, the reimbursement payment shall cover
    (6) Prior to and instead of the distrib-          the bill pursuant to the following process:
ution of proceeds as described in subsection
(1) of this section, when the worker or the                (A) The paying agency may maintain a
beneficiaries of the worker are entitled to           contingency fund in an amount reasonably
receive payment pursuant to a judgment or             sufficient to cover reimbursement for the
a settlement in the third party action in the         billing.
amount of $1 million or more, the worker or                (B) If a dispute arises as to reimburse-
the beneficiaries of the worker may elect to          ment for any bill first received by the paying
release the paying agency from all further            agency not later than 180 days after the date
liability on the workers’ compensation claim,
thereby canceling the lien of the paying              the release or order became final, the dispute
agency as to the present value of its reason-         shall be resolved by order of the board.
ably expected future expenditures for                      (C) Any amount remaining in the contin-
workers’ compensation and other costs of the          gency fund after the 180-day period shall be
worker’s claim, if all of the following condi-        paid to the worker or the beneficiaries of the
tions are met as part of the claim release:           worker.
    (a) The worker or the beneficiaries of the             (D) Any billing for a service, item or
worker are represented by an attorney.                benefit that is first received by the paying
    (b) The release of the claim is presented         agency more than 180 days after the date the
in writing and is filed with the Workers’             release or order became final is unenforce-
Compensation Board, with a copy served on             able by the person who issued the bill.
the paying agency, including the Department                (f) The settlement or judgment proceeds
of Consumer and Business Services with re-            are available for payment or actually have
spect to its expenditures from the Workers’           been paid out and are available in a trust
Benefit Fund, the Consumer and Business               fund or similar account, or are available
Services Fund and the Self-Insured Employer           through a legally enforceable structured
Adjustment Reserve.                                   settlement agreement if sufficient funds are
    (c) The claim release specifies that the          available to make payment to the paying
worker or the beneficiaries of the worker             agency.

                                                 95
656.595                               LABOR AND EMPLOYMENT

    (g) The agreed-upon payment to the pay-                      aries or the worker’s attorney until the offset
ing agency, or the payment to the paying                         has been fully recovered.
agency ordered by the board, is made within                          (3) The worker or the beneficiaries of the
30 days of the filing of the withdrawal of the                   worker shall notify the paying agency or po-
claim with the board or within 30 days after                     tential paying agency of the amount of any
the board has entered a final order resolving                    damages recovered from a third person or
any dispute with the paying agency.                              noncomplying employer at the time of recov-
    (7) When a release of further liability on                   ery or when the worker or the beneficiaries
a claim, as provided in subsection (6) of this                   of a worker file a workers’ compensation
section, has been filed, and when payment to                     claim that is subject to ORS 656.576 to
the paying agency has been made, the effect                      656.596. [1993 c.644 §2; 1995 c.332 §48]
of the release is that the worker or benefici-                       656.597 [Formerly 656.326; repealed by 1971 c.70 §2]
aries of the worker shall have no further
right to seek benefits pursuant to the ori-                                  FUNDS; SOURCE;
ginal claim, or any independent workers’                              INVESTMENT; DISBURSEMENT
compensation claim regarding the same cir-
cumstances, and the claim shall not be reas-                                (General Provisions)
serted, refiled or reestablished through any                         656.602 Disbursement procedures. All
legal proceeding. [Formerly 656.322; 1977 c.804 §16;             disbursements for administrative expenses
1979 c.839 §12; 1981 c.540 §1; 1985 c.600 §12; 1987 c.373        from the Industrial Accident Fund, except as
§35b; 1993 c.445 §1; 1995 c.332 §47; 1995 c.641 §8; 1997
c.639 §4]                                                        provided by ORS 656.642, shall be made only
                                                                 upon warrants drawn by the Oregon Depart-
     Note: See notes under 656.202.
                                                                 ment of Administrative Services upon vouch-
    656.595 Precedence of cause of action;                       ers duly approved by the State Accident
compensation paid or payable not to be                           Insurance Fund Corporation. [Formerly 656.472;
an issue. (1) Any action brought against a                       1977 c.804 §17; 1983 c.740 §243; 1985 c.212 §9; 1987 c.373
                                                                 §36]
third party or employer, as provided in this
chapter, shall have precedence over all other                         656.604 [Formerly 656.474; repealed by 1987 c.373
                                                                 §85]
civil cases.
    (2) In any third party action brought                            656.605 Workers’ Benefit Fund; uses
pursuant to this chapter, the fact that the                      and limitations. (1) The Workers’ Benefit
injured worker or the beneficiaries of the                       Fund is created in the State Treasury, sepa-
injured worker are entitled to or have re-                       rate and distinct from the General Fund.
ceived benefits under this chapter shall not                     Moneys in the fund shall be invested in the
be pleaded or admissible in evidence.                            same manner as other state moneys and in-
                                                                 vestment earnings shall be credited to the
    (3) A challenge of the right to bring such                   fund. The fund shall consist of the following:
third party action shall be made by supple-
mental pleadings only and such challenge                             (a) Moneys received pursuant to ORS
shall be determined by the court as a matter                     656.506.
of law. [Formerly 656.324]                                           (b) Moneys recovered under ORS 656.054.
    656.596 Damage recovery as offset                                (c) Fines and penalties recovered under
against compensation; recovery proce-                            ORS 656.735.
dure; notice to paying agent. (1) If no                              (d) All moneys received by the Director
workers’ compensation claim has been filed                       of the Department of Consumer and Business
or accepted at the time a worker or the ben-                     Services pursuant to law or from any other
eficiaries of a worker recover damages from                      source for purposes for which the fund may
a third person or noncomplying employer                          be expended.
pursuant to ORS 656.576 to 656.596, the                              (2) Moneys in the Workers’ Benefit Fund
amount of the damages shall constitute an                        may be expended for the following purposes:
offset against compensation due the worker
or beneficiaries of the worker for the injuries                      (a) Expenses of programs under ORS
for which the recovery is made to the extent                     656.445, 656.506, 656.622, 656.625, 656.628 and
of any lien that would have been authorized                      656.630.
by ORS 656.576 to 656.596 if a workers’ com-                         (b) Proceedings against noncomplying
pensation claim had been filed and accepted                      employers pursuant to ORS 656.054 and
at the time of recovery of damages.                              656.735.
    (2) The offset created by subsection (1)                         (c) Expenses of vocational assistance on
of this section shall be recoverable from                        claims, the cost of which was imposed pur-
compensation payable to the worker, the                          suant to section 15, chapter 600, Oregon
worker’s beneficiaries and the worker’s at-                      Laws 1985.
torney. No compensation payments shall be                            (d) Payment of supplemental temporary
made to the worker, the worker’s benefici-                       disability benefits for workers employed in

                                                            96
                                        WORKERS′ COMPENSATION                                                     656.614

more than one job at the time of injury and                            656.612 Assessments for department
reimbursement of the costs of administering                       activities; amount; collection procedure.
payments resulting from elections by in-                          (1) The Director of the Department of Con-
surers and self-insured employers as provided                     sumer and Business Services shall impose
by ORS 656.210 (5).                                               and collect assessments from all insurers,
    (e) Payments made to injured workers                          self-insured employers and self-insured em-
pursuant to section 6a, chapter 865, Oregon                       ployer groups in an amount sufficient to pay
Laws 2001.                                                        the expenses of the Department of Consumer
                                                                  and Business Services under this chapter and
    (f) Expenses of the Bureau of Labor and                       ORS chapter 654 and under the Insurance
Industries for enforcing ORS 659A.040,                            Code. The assessments shall be paid in such
659A.043, 659A.046, 659A.049 and 659A.052,                        manner and at such intervals as the director
subject to an agreement between the Direc-                        may direct and when collected shall be de-
tor of the Department of Consumer and                             posited in the Consumer and Business Ser-
Business Services and the Commissioner of                         vices Fund. Such receipts in the account are
the Bureau of Labor and Industries. The                           continuously appropriated to the department
agreement must include, but is not limited                        for the purpose described in this subsection.
to, the amount of funds to be transferred to
the bureau for enforcing ORS 659A.040,                                 (2) The assessments shall be levied
659A.043, 659A.046, 659A.049 and 659A.052                         against the insurers’ direct earned premium
and the information relating to the enforce-                      and the direct earned premium self-insured
ment of ORS 659A.040, 659A.043, 659A.046,                         employers and self-insured employer groups
659A.049 and 659A.052 that the bureau must                        would have paid had they been insured em-
report to the director.                                           ployers.
    (g) Reimbursement to the insurer or self-                          (3) The director may impose and collect
insured employer for the amount of perma-                         an additional assessment from self-insured
nent total disability benefits paid after the                     employer groups in an amount sufficient to
date of the notice of closure that was upheld                     pay the additional expenses involved in ad-
pursuant to ORS 656.206.                                          ministering the group self-insured program.
    (h) Reimbursement of vocational benefit                            (4) The director may establish a minimum
expenses as provided in ORS 656.313.                              assessment applicable to all insurers, self-
                                                                  insured employers and self-insured employer
    (3) Subject to the following provisions, all                  groups and shall establish the time, manner
moneys in the fund are appropriated contin-                       and method of imposing and collecting as-
uously to the Director of the Department of                       sessments subject to applicable budgeting
Consumer and Business Services to carry out                       and fiscal laws.
the activities for which the fund may be ex-
pended:                                                                (5) The assessments required under this
                                                                  section shall be developed pursuant to ORS
    (a) Moneys received pursuant to ORS                           183.310 to 183.410 and in such a manner that
656.054 and 656.735 and transfers made pur-                       will reasonably and substantially accomplish
suant to ORS 705.148 may be expended only                         the objective of subsection (2) of this section
to carry out the provisions of ORS 656.054                        at the least possible administrative cost to
and 656.735 and section 15, chapter 600, Ore-                     everyone.
gon Laws 1985.
                                                                       (6) Assessments developed by the depart-
    (b) Moneys received pursuant to ORS                           ment under this section shall be reported to
656.506 and the transfers of unexpended and                       the Joint Legislative Committee on Ways and
unobligated moneys in the Retroactive Re-                         Means or, during the interim between ses-
serve, Reemployment Assistance Reserve,                           sions of the Legislative Assembly, to the
Reopened Claims Reserve and Handicapped                           Emergency Board. [1965 c.285 §69a; 1973 c.353 §2;
Workers Reserve referred to in ORS 656.506,                       1975 c.556 §45; 1977 c.804 §18; 1979 c.839 §13; 1981 c.535
656.622, 656.625 and 656.628 (All 1993 Edi-                       §41; 1981 c.854 §44; 1985 c.506 §1; 1987 c.373 §37; 1987
tion) may be expended only to carry out the                       c.884 §22; 1989 c.413 §21; 1990 c.2 §35; 1999 c.409 §1]
programs referred to in ORS 656.506, 656.622,                         656.614 Self-Insured Employer Adjust-
656.625, 656.628 and 656.630.                                     ment Reserve; Self-Insured Employer
    (4) Notwithstanding any other provision                       Group Adjustment Reserve. (1) The Self-
of this chapter, if the director determines at                    Insured Employer Adjustment Reserve and
any time that there are insufficient moneys                       the Self-Insured Employer Group Adjustment
in the Workers’ Benefit Fund to pay the ex-                       Reserve shall be established within the Con-
penses of programs for which expenditure of                       sumer and Business Services Fund. These
the fund is authorized, the director may re-                      reserves shall be used to pay the claims of
duce the level of benefits payable accord-                        workers of self-insured employers when the
ingly. [1995 c.641 §15; 1999 c.273 §3; 2001 c.865 §5; 2001        Director of the Department of Consumer and
c.974 §8; 2002 s.s.2 c.4 §4; 2005 c.461 §5; 2005 c.588 §5]        Business Services finds that the worker can-
     Note: See notes under 656.202.                               not obtain payment from the employer re-

                                                             97
656.622                                LABOR AND EMPLOYMENT

sponsible for payment of the claim because                              (2) In order to preclude or reduce non-
of insolvency of such employer or the excess                       disabling claims from becoming disabling
insurer of the employer, and exhaustion of                         claims, preclude on-the-job injuries from re-
the excess insurance and security deposited                        curring, reduce disability by returning in-
to secure such payment.                                            jured workers to work sooner and to help
    (2) If at any time the director finds that                     injured workers remain employed, the Direc-
the amount of moneys in the reserves is not                        tor of the Department of Consumer and
sufficient to carry out the purposes stated in                     Business Services may provide assistance to
subsection (1) of this section, the director                       employers from the Reemployment Assist-
may impose and collect from self-insured em-                       ance Program in such manner and amount
ployers assessments sufficient to raise the                        as the director considers appropriate. As-
amount of moneys in the reserves to the                            sistance may include, but need not be limited
point where it can carry out such purposes.                        to, modification of work sites. For purposes
If at any time the director finds that there                       of this subsection, work site modification
is a surplus in the reserves beyond an                             may include engineering design work and
amount that can reasonably be anticipated                          occupational health consulting services. Fac-
as sufficient to carry out the purposes stated                     tors to be considered by the director in de-
in subsection (1) of this section, the director                    termining the extent of assistance must
may transfer the surplus to the Consumer                           include but need not be limited to the
and Business Services Fund and reduce the                          employer’s record of returning injured work-
total amount of self-insured employer assess-                      ers to the workplace and the cost-
ment by the amount so transferred.                                 effectiveness of modifications. Assistance
                                                                   may be provided in the form of grants and
    (3) Notwithstanding the provisions of this                     matching contributions from employers for
section, the director may impose a differen-                       funds.
tial assessment between the two employers                               (3) In order to encourage the employment
adjustment reserves in order to collect suffi-                     of individuals who have incurred compensa-
cient moneys in the reserves as provided in                        ble injuries that result in disability which
subsection (2) of this section.                                    may be a substantial obstacle to employment,
    (4) Assessments imposed under this sec-                        the director may provide, to eligible injured
tion shall be paid to the director in the                          workers and to employers who employ them,
manner and at such times as the director                           assistance from the Workers’ Benefit Fund in
may direct.                                                        such manner and amount as the director
                                                                   considers appropriate.
    (5) Notwithstanding subsection (1) of this
section, the director may use the reserves to                           (4)(a) In addition to such assistance as
assure timely payment of compensation                              the director may provide under this section,
pending payment from the excess insurance                          the director shall provide reimbursement to
or security deposit. The director shall re-                        self-insured employers or to the insurers of
cover these costs from the excess insurance                        employers who hire preferred workers for the
or the security deposit, up to their limits.                       claim costs incurred for injuries to those
[1965 c.285 §67a; 1975 c.556 §46; 1979 c.845 §3; 1981 c.535        workers during the first three years from the
§42; 1983 c.816 §12]                                               date of hire, as follows:
       656.616 [Formerly 344.810; repealed by 1985 c.600                (A) The claim costs of injuries incurred
§15]                                                               by those workers.
    656.618 [1965 c.285 §67e; 1977 c.804 §19; repealed by
1987 c.373 §85]
                                                                        (B) Reasonable claims administration
                                                                   costs.
     656.620 [1965 c.285 §67f; 1977 c.804 §20; 1979 c.839
§14; repealed by 1987 c.373 §85]                                        (b) A worker may not waive eligibility for
                                                                   preferred worker status in the claim by
    656.622    Reemployment        Assistance                      agreement pursuant to ORS 656.236.
Program; claim data not to be used for
insurance rating; rules. (1) There is estab-                            (5)(a) In addition to such assistance as
lished a Reemployment Assistance Program                           the Director of the Department of Consumer
for the benefit of employers and workers and                       and Business Services may provide under
for the purpose of:                                                subsection (3) of this section, the director
                                                                   shall provide to participating self-insured
    (a) Giving employers and workers the                           employers and the insurers of participating
benefits provided in this section.                                 employers reimbursement of reasonable pro-
    (b) Providing reimbursement of reason-                         gram administration costs.
able program administration costs of self-                              (b) As used in this subsection, “partic-
insured employers and of insurers of                               ipating employer” or “participating self-
employers who participate in any program                           insured employer” means an employer
funded through the Reemployment Assist-                            participating in any program funded through
ance Program.                                                      the Reemployment Assistance Program.

                                                              98
                                        WORKERS′ COMPENSATION                                                        656.628

     (6) Notwithstanding any other provision                              Note: See notes under 656.202.
of law, determinations by the director re-                                656.624 [Formerly 656.584; 1983 c.740 §244; repealed
garding assistance pursuant to this section                          by 1987 c.250 §1]
are not subject to review by any court or                                656.625 Reopened Claims Program;
other administrative body.                                           rules. (1) There is established a Reopened
     (7) The Reemployment Assistance Pro-                            Claims Program for the purpose of reimburs-
gram shall be funded with moneys collected                           ing the additional amounts of compensation
as provided in ORS 656.506.                                          payable to injured workers that results from
     (8) Any assistance from the Reemploy-                           any award made by the Workers’ Compensa-
ment Assistance Program shall be to the ex-                          tion Board or voluntary claim reopening
tent of the moneys available in the Workers’                         pursuant to ORS 656.278 after January 1,
Benefit Fund, for the purpose of the program                         1988.
as determined by the director.                                           (2) Notwithstanding any other provision
     (9) The director may make such rules as                         of law, any reimbursement from the Workers’
may be required to establish, regulate, man-                         Benefit Fund for the purposes of the Reo-
age and disburse moneys in the Workers’                              pened Claims Program shall be in such
Benefit Fund in accordance with the intent                           amounts payable to an injured worker pur-
of this section. Such rules shall include, but                       suant to ORS 656.278 and only to the extent
are not limited to, the eligibility criteria to                      that moneys are available in the fund as de-
receive assistance under this section and the                        termined by the Director of the Department
issuance of identity cards to preferred work-                        of Consumer and Business Services.
ers to assist employers in the administration                            (3) The director, by rule, shall prescribe
of the program.                                                      the form and manner of requesting re-
     (10) If claim cost reimbursement is re-                         imbursement under this section, the amount
quested under subsection (4) of this section,                        payable and such other matters as may be
claims costs incurred as a result of an injury                       necessary for the administration of this sec-
sustained by a preferred worker during the                           tion. [1987 c.884 §39; 1995 c.332 §49a; 1995 c.641 §22;
                                                                     2001 c.865 §11a]
three years after that worker is hired shall
not be included in any data used for                                     Note: See notes under 656.202.
ratemaking or individual employer rating or                              656.628 Workers with Disabilities Pro-
dividend calculations by an insurer, a rating                        gram; use of funds; conditions and limi-
organization licensed pursuant to ORS chap-                          tations; rules. (1) There is established a
ter 737, the State Accident Insurance Fund                           Workers with Disabilities Program for the
Corporation or the Department of Consumer                            benefit of complying employers and their
and Business Services. Neither insurance                             workers. The purpose of the program is to
premiums nor premium assessments under                               encourage the employment or reemployment
this chapter are payable for preferred work-                         of workers with disabilities.
ers during the first three years from the date
of hire.                                                                 (2) As used in this section, “worker with
                                                                     a disability” means a worker who has or is
     (11) Any moneys from the Workers’ Ben-                          subject to any permanent physical or mental
efit Fund reimbursed to an agency for costs                          impairment, whether congenital or due to an
incurred in reemploying injured state work-                          injury or disease, including periodic impair-
ers in the manner described in ORS 659A.052                          ment of consciousness or muscular control
or in providing wage subsidies for the reem-                         of such character that the impairment would
ployment of injured state workers shall be                           prevent the worker from obtaining or retain-
outside the biennial expenditure limitation                          ing employment.
imposed on the agency by the Legislative
Assembly and shall be available for expendi-                             (3) Any employer of a worker who claims
ture by the agency as a continuous appropri-                         or has received compensation under this
ation.                                                               chapter, or whose dependents have claimed
                                                                     or received such compensation, may file an
     (12) As used in this section, “preferred                        application with the Director of the Depart-
worker” means a worker who, because of a                             ment of Consumer and Business Services re-
permanent disability resulting from a com-                           questing    the    director   to  make     the
pensable injury or occupational disease, is                          determinations referred to in subsection (4)
unable to return to the worker’s regular em-                         of this section.
ployment, whether or not an order has been
issued awarding permanent disability. [1965                              (4) When the director receives a request
c.285 §68; 1969 c.536 §3; 1971 c.768 §3; 1977 c.557 §2; 1981         referred to in subsection (3) of this section,
c.854 §60; 1983 c.391 §4; 1983 c.816 §13; 1985 c.600 §13;            the director shall determine:
1985 c.770 §2; 1987 c.884 §20; 1990 c.2 §36; 1991 c.93 §11;
1991 c.496 §1; 1991 c.694 §1; 1993 c.760 §3; 1995 c.332 §49;             (a) Whether the injured worker was a
1995 c.641 §21; 1999 c.273 §4; 2005 c.588 §1; 2007 c.241 §16;        worker with a disability and whether the in-
2009 c.36 §§3,4]                                                     jury, disease or death sustained by the

                                                                99
656.630                        LABOR AND EMPLOYMENT

worker would not have been sustained except       of this section. [1981 c.535 §14; 1995 c.332 §49b; 1995
for the disability; or                            c.641 §23; 2007 c.70 §286; 2007 c.241 §17]
     (b) Whether the injured worker was a             656.630 Center for Research on Occu-
worker with a disability and whether the in-      pational and Environmental Toxicology
jury, disease or death sustained by the           funding; report of activities. (1) There is
worker would have been sustained without          transferred to and continuously appropriated
regard to the disability but that:                to the Center for Research on Occupational
                                                  and Environmental Toxicology of the Oregon
     (A) Any resulting disability was substan-    Health and Science University, the following
tially greater by reason of the disability; or    amounts from the following sources:
     (B) The disability contributed substan-          (a) The amount of revenue equivalent to
tially to the worker’s death; and                 one-sixteenth of one cent of the money de-
     (C) Whether the injury, disease or death     ductible from workers’ wages pursuant to
of the worker would not have occurred ex-         ORS 656.506 (2).
cept for the act or omission of a worker with         (b) An amount equal to the amount
a disability employed by the same employer        raised by paragraph (a) of this subsection
and that the act or omission of the worker        from those assessments made pursuant to
with a disability would not have occurred         ORS 656.612 (2).
except for the impairment of the worker with
a disability.                                         (2) The moneys referred to in subsection
                                                  (1) of this section may only be used for pay-
     (5) If the director determines that any of   ing the expenses of the Center for Research
the conditions described in subsection (4) of     on Occupational and Environmental Toxicol-
this section exist, the director may reimburse    ogy. If the Director of the Department of
the paying agency for compensation amounts        Consumer and Business Services determines
in excess of $1,000 per claimant for all sub-     adequate funds are available and the director
sequent injuries throughout the claimant’s        reduces or suspends for a period of time the
working career, paid as the result of the         assessments made pursuant to ORS 656.506
condition.                                        (2) and 656.612 (2), the reduction or suspen-
     (6) The reimbursement paid from the          sion of the assessments does not terminate
Workers’ Benefit Fund may not be included         the transfers to the Center for Research on
in any data used for rate making or individ-      Occupational and Environmental Toxicology
ual employer rating or dividend calculations      authorized in subsection (1) of this section.
by an insurer, a rating organization licensed         (3) Annually, the Center for Research on
pursuant to ORS chapter 737, the State Ac-        Occupational and Environmental Toxicology
cident Insurance Fund Corporation or the          shall file a report with the Oregon Health
Department of Consumer and Business Ser-          and Science University, with a copy to the
vices.                                            Director of the Department of Consumer and
     (7) Notwithstanding any other provision      Business Services, describing the activities
of law:                                           in sufficient detail for which moneys re-
     (a) Any reimbursement to employers un-       ceived under this section during the year
der the Workers with Disabilities Program         have been obligated or expended. [1993 c.760
                                                  §6; 1995 c.162 §85; 1995 c.641 §11a]
shall be in such amounts as the director
prescribes and only to the extent of moneys
available in the Workers’ Benefit Fund as          (Industrial Accident Fund and Reserves)
determined by the director.                           656.632 Industrial Accident Fund. (1)
     (b) Determinations made by the director      The Industrial Accident Fund is continued.
regarding reimbursement from the Workers’         This fund shall be held by the State Treas-
Benefit Fund for the purposes of this section     urer and by the State Treasurer deposited in
are not subject to review by any court or         such banks as are authorized to receive de-
administrative body.                              posits of general funds of the state.
     (c) After a determination has been made          (2) All moneys received by the State Ac-
by the director that an employer will receive     cident Insurance Fund Corporation for
reimbursement from the Workers’ Benefit           workers’ compensation purposes under this
Fund, any settlement of the claim by the          chapter, shall be paid forthwith to the State
parties is void unless made with the written      Treasurer and shall become a part of the In-
approval of the director.                         dustrial Accident Fund. However, any as-
                                                  sessments collected for the Director of the
     (8) The director by rule shall prescribe     Department of Consumer and Business Ser-
the form and manner of requesting determi-        vices under this chapter and deposited in the
nations under this section, the amount of re-     Industrial Accident Fund may thereafter be
imbursement payable and such other matters        transferred to the director and deposited in
as may be necessary for the administration        the Consumer and Business Services Fund.

                                              100
                                       WORKERS′ COMPENSATION                                                  656.642

    (3) All payments authorized to be made                  accounts shall be maintained and used by the
by the State Accident Insurance Fund Cor-                   State Accident Insurance Fund Corporation
poration for workers’ compensation purposes                 to offset gains and losses of invested capital.
by this chapter, including all salaries, clerk                  (2) The State Accident Insurance Fund
hire and all other expenses, shall be made                  Corporation may provide for amortizing gains
from the Industrial Accident Fund. [Formerly                and losses of invested capital in such in-
656.452; 1975 c.556 §47; 2003 c.781 §9]
                                                            stances as the State Accident Insurance
     Note: The amendments to 656.632 by section 13,         Fund Corporation determines that amorti-
chapter 781, Oregon Laws 2003, become operative Janu-
ary 2, 2014. See section 14, chapter 781, Oregon Laws       zation is preferable to a reserve account
2003. The text that is operative on and after January       provided for in subsection (1) of this section.
2, 2014, is set forth for the user’s convenience.           [1967 c.335 §57]
     656.632. (1) The Industrial Accident Fund is con-          656.636 Reserves in Industrial Acci-
tinued. This fund shall be held by the State Treasurer      dent Fund for awards for permanent dis-
and by the State Treasurer deposited in such banks as
are authorized to receive deposits of general funds of      ability or death. For every case where the
the state.                                                  State Accident Insurance Fund Corporation
     (2) All moneys received by the State Accident In-
                                                            must pay an award or benefits for death or
surance Fund Corporation under this chapter, shall be       permanent total disability or permanent par-
paid forthwith to the State Treasurer and shall become      tial disability, the State Accident Insurance
a part of the Industrial Accident Fund. However, any        Fund Corporation forthwith shall set aside in
assessments collected for the Director of the Department    the Industrial Accident Fund in a reserve
of Consumer and Business Services under this chapter
and deposited in the Industrial Accident Fund may           account the amount required to equal, to-
thereafter be transferred to the director and deposited     gether with the anticipated interest incre-
in the Consumer and Business Services Fund.                 ment, the present worth of the installments
     (3) All payments authorized to be made by the          payable on account of that injury. The num-
State Accident Insurance Fund Corporation by this           ber of installments shall be computed in case
chapter, including all salaries, clerk hire and all other   of permanent total disability or death ac-
expenses, shall be made from the Industrial Accident        cording to the ages of the beneficiaries, and
Fund.
                                                            according to the actuarial practices in the
    656.634 Trust fund status of Industrial                 insurance field as recommended by the Di-
Accident Fund. (1) The Industrial Accident                  rector of the Department of Consumer and
Fund is a trust fund exclusively for the uses               Business Services and, in the case of perma-
and purposes declared in this chapter, except               nent partial disability, according to the
that this provision shall not be deemed to                  schedule in ORS 656.214 and 656.216.
amend or impair the force or effect of any                  [Formerly 656.456; 1971 c.768 §4; 1973 c.614 §7; 1974 c.41
law of this state specifically authorizing the              §10; 1977 c.200 §1; 1977 c.804 §21; 1979 c.839 §15; 1979
                                                            c.845 §4; 1981 c.854 §45; 1983 c.391 §2; 1985 c.739 §2]
investment of moneys from the fund.
                                                                 656.637 [1979 c.334 §2; 1983 c.391 §3; repealed by 1985
    (2) Subject to the right of the State of                c.739 §3]
Oregon to direct legislatively the disposition                   656.638 [Formerly 656.460; 1969 c.536 §4; 1971 c.768
of any surplus in excess of reserves and sur-               §5; 1977 c.804 §22; repealed by 1981 c.854 §1]
plus deemed actuarially necessary according
to recognized insurance principles, and nec-                    656.640 Creation of reserves. The State
essary in addition thereto to assure contin-                Accident Insurance Fund Corporation may
ued fiscal soundness of the State Accident                  set aside such other reserves within the In-
Insurance Fund Corporation both for current                 dustrial Accident Fund as are deemed neces-
operations and for future capital needs, the                sary. [Formerly 656.468; 1981 c.854 §46]
State of Oregon declares that it has no pro-
prietary interest in the Industrial Accident                                (Other Funds)
Fund or in the contributions made to the                        656.642 Emergency Fund. (1) There is
fund by the state prior to June 4, 1929. The                created a revolving fund known as the
state disclaims any right to reclaim those                  Emergency Fund, which shall be deposited
contributions and waives any right of recla-                and maintained with the State Treasurer in
mation it may have had in that fund.                        the sum of $200,000.
[Formerly 656.454; 1967 c.335 §55; 1982 s.s.3 c.2 §4]
                                                                (2) The Emergency Fund shall be dis-
    656.635 Reserve accounts in Industrial                  bursed by checks or orders issued by the
Accident Fund. (1) The State Accident In-                   State Accident Insurance Fund Corporation
surance Fund Corporation may set aside, out                 and drawn upon the State Treasurer:
of interest and other income received                           (a) To pay compensation benefits.
through investment of the Industrial Acci-
dent Fund, such part of the income as the                       (b) To refund to employers amounts paid
State Accident Insurance Fund Corporation                   to the Industrial Accident Fund in excess of
considers necessary, which moneys so segre-                 the amounts required by this chapter.
gated shall remain in the fund and constitute                   (c) To distribute any surplus to employers
one or more reserve accounts. Such reserve                  as required by ORS 656.526.

                                                        101
656.644                                LABOR AND EMPLOYMENT

    (d) To distribute any moneys recovered                  matter concerning a claim under this chapter
from an employer or third party in which the                may request a hearing on the matter in
State Accident Insurance Fund Corporation                   writing to the director. The director shall
has no equity.                                              refer the request for hearing to the Workers’
    (e) To pay administrative expenses.                     Compensation Board for a hearing before an
[Formerly 656.464; 1971 c.357 §1; 1983 c.740 §245]          Administrative Law Judge. Review of an or-
                                                            der issued by the Administrative Law Judge
    656.644 Petty cash funds. The State                     shall be by the director and the director
Accident Insurance Fund Corporation may,                    shall issue a final order that is subject to
at its discretion, establish and maintain petty             judicial review as provided by ORS 183.480
cash funds, not exceeding a total of $20,000                to 183.497.
for the purpose of making change, refunding
fees and premiums and assessments paid in                        (b) The director shall prescribe the
error, the advance of traveling expense to                  classes of orders issued under this subsection
employees and claimants, and paying miscel-                 by Administrative Law Judges and other
laneous legal fees and other petty incidental               personnel that are final, appealable orders
expenses in the administration of the                       and those orders that are preliminary orders
Workers’ Compensation Law. [Formerly 656.466;               subject to revision by the director.
1981 c.854 §47]                                                  (3)(a) For the purpose of determining the
    656.646 [Formerly 656.558; repealed by 1981 c.876       respective authority of the director and the
§1]                                                         board to conduct hearings, investigations and
    656.648 [1974 c.41 §12; repealed by 1981 c.854 §1 and   other proceedings under this chapter, and for
1981 c.876 §1]                                              determining the procedure for the conduct
                                                            and review thereof, matters concerning a
             ADMINISTRATION                                 claim under this chapter are those matters
            (General Provisions)                            in which a worker’s right to receive com-
                                                            pensation, or the amount thereof, are di-
    656.702 Disclosure of records of cor-                   rectly in issue. However, subject to
poration, department and insurers. (1)(a)                   paragraph (b) of this subsection, such mat-
The records of the State Accident Insurance                 ters do not include any disputes arising un-
Fund Corporation are subject to ORS 192.410                 der ORS 656.245, 656.247, 656.248, 656.260 or
to 192.505.                                                 656.327, any other provisions directly relat-
    (b) Notwithstanding ORS 192.502, the                    ing to the provision of medical services to
State Accident Insurance Fund Corporation                   workers or any disputes arising under ORS
shall make the accident experience records                  656.340 except as those provisions may oth-
of the corporation available to a bona fide                 erwise provide.
rating organization to assist in making                          (b) The respective authority of the board
workers’ compensation rates. Costs involved                 and the director to resolve medical service
in making the records available shall be                    disputes shall be determined according to the
borne by the rating organization. Accident                  following principles:
experience records of carrier-insured employ-
ers shall also be available on the same terms                    (A) Any dispute that requires a determi-
to assist in making such rates.                             nation of the compensability of the medical
                                                            condition for which medical services are
    (2) Disclosure of workers’ compensation                 proposed is a matter concerning a claim.
claim records of the Department of Con-
sumer and Business Services is governed by                       (B) Any dispute that requires a determi-
ORS 192.502 (20). [Formerly 656.426; 1973 c.794 §33a;       nation of whether medical services are ex-
1975 c.556 §48; 1987 c.884 §47; 1993 c.817 §3; 1997 c.825   cessive, inappropriate, ineffectual or in
§3; 2007 c.152 §5; 2009 c.57 §1]                            violation of the rules regarding the perform-
    656.704 Actions and orders regarding                    ance of medical services, or a determination
matters concerning claim and matters                        of whether medical services for an accepted
other than matters concerning claim;                        condition qualify as compensable medical
authority of director and board; adminis-                   services among those listed in ORS 656.245
trative and judicial review; rules. (1) Ac-                 (1)(c), is not a matter concerning a claim.
tions and orders of the Director of the                          (C) Any dispute that requires a determi-
Department of Consumer and Business Ser-                    nation of whether a sufficient causal re-
vices regarding matters concerning a claim                  lationship exists between medical services
under this chapter, and administrative and                  and an accepted claim to establish compen-
judicial review of those matters, are subject               sability is a matter concerning a claim.
to the procedural provisions of this chapter                     (c) Notwithstanding ORS 656.283 (3), if
and such procedural rules as the Workers’                   parties to a hearing scheduled before an Ad-
Compensation Board may prescribe.                           ministrative Law Judge are involved in a
    (2)(a) A party dissatisfied with an action              dispute regarding both matters concerning a
or order regarding a matter other than a                    claim and matters not concerning a claim,

                                                        102
                                        WORKERS′ COMPENSATION                                                 656.712

the Administrative Law Judge may defer any                          (C) Report to the Governor in writing at
action on the matter concerning a claim un-                     least once each quarter. A report shall in-
til the director has completed an administra-                   clude a summary of the services that the
tive review of the matters other than those                     ombudsman provided during the quarter and
concerning a claim. The director shall mail                     the ombudsman’s recommendations for im-
a copy of the administrative order to the                       proving ombudsman services and for protect-
parties and to the Administrative Law Judge.                    ing workers’ rights in the workers’
A party may request a hearing on the order                      compensation system.
of the director. At the request of a party or                       (2)(a) The Director of the Department of
by the own motion of the Administrative                         Consumer and Business Services, with the
Law Judge, the hearings on the separate                         concurrence of the Governor, shall appoint
matters may be consolidated. The Adminis-                       an ombudsman for small business. The om-
trative Law Judge shall issue an order for                      budsman is under the supervision and con-
those matters concerning a claim and a sep-                     trol of the director and, with the
arate order for matters other than those                        concurrence of the Governor, the director
concerning a claim.                                             may terminate the ombudsman.
     (4) Hearings under ORS 656.740 shall be                        (b) The ombudsman for small business
conducted by an Administrative Law Judge                        shall:
from the board’s Hearings Division.
                                                                    (A) Provide information and assistance to
     (5) If a request for hearing or adminis-                   small businesses with regard to workers’
trative review is filed with either the direc-                  compensation insurance and claims process-
tor or the board and it is determined that the                  ing matters; and
request should have been filed with the
other, the dispute shall be transferred. Filing                     (B) Report to the Governor in writing at
a request will be timely filed if the original                  least once each quarter. A report shall in-
filing was completed within the prescribed                      clude a summary of the services that the
time. [1965 c.285 §54b; 1977 c.804 §23; 1979 c.839 §16;         ombudsman provided during the quarter and
1981 c.874 §11; 1985 c.770 §8; 1987 c.373 §38a; 1990 c.2 §37;   the ombudsman’s recommendations for im-
1995 c.332 §50; 1999 c.849 §§121a,121c,121e; 1999 c.876 §4;     proving ombudsman services and for provid-
1999 c.926 §2; 2003 c.75 §48; 2005 c.26 §15; 2009 c.35 §5]      ing information and assistance to small
    656.708 Hearings Division; duties. The                      businesses with regard to workers’ compen-
Hearings Division is continued within the                       sation insurance and claims processing mat-
Workers’ Compensation Board. The division                       ters. [1987 c.884 §60b; 1990 c.2 §38; 2003 c.591 §16]
has the responsibility for providing an im-                         656.710 [1977 c.699 §2; 1979 c.839 §18; repealed by
partial forum for deciding all cases, disputes                  1981 c.535 §26]
and controversies arising under ORS 654.001                         656.712     Workers’      Compensation
to 654.295, 654.412 to 654.423 and 654.750 to                   Board; members; qualifications; chair-
654.780, all cases, disputes and controversies                  person; confirmation; term; vacancies. (1)
regarding matters concerning a claim under                      The Workers’ Compensation Board, composed
this chapter, and for conducting such other                     of five members appointed by the Governor,
hearings and proceedings as may be pre-                         is created within the Department of Con-
scribed by law. [1977 c.804 §25; 1979 c.839 §17; 1987           sumer and Business Services. Not more than
c.373 §39]
                                                                three members shall belong to one political
    656.709 Ombudsman for injured work-                         party and inasmuch as the duties to be per-
ers; ombudsman for small business; du-                          formed by the members vitally concern the
ties. (1)(a) The Director of the Department                     employers, the employees, as well as the
of Consumer and Business Services, with the                     whole people, of the state, persons shall be
concurrence of the Governor, shall appoint                      appointed as members who fairly represent
an ombudsman for injured workers. The om-                       the interests of all concerned. All board
budsman is under the supervision and con-                       members shall impartially apply the law in
trol of the director and, with the                              each case and shall not represent any special
concurrence of the Governor, the director                       interest. However, at least two members
may terminate the ombudsman.                                    shall be selected from among persons with
                                                                background and understanding as to the
    (b) The ombudsman for injured workers                       concerns of employers and at least two
shall:                                                          members of the board shall be selected from
    (A) Act as an advocate for injured work-                    among persons with background and under-
ers by accepting, investigating and attempt-                    standing as to the concerns of employees.
ing to resolve complaints concerning matters                    One member shall represent the interests of
related to workers’ compensation;                               the public and shall serve as the board
    (B) Provide information to injured work-                    chairperson.
ers to enable them to protect their rights in                       (2) A member of the board shall be ap-
the workers’ compensation system; and                           pointed for a term of four years from the

                                                            103
656.714                                 LABOR AND EMPLOYMENT

date of appointment and qualification. Each                         (d) That the member does not hold and
member shall hold office until a successor is                  while a member will not hold a position un-
appointed and qualified. However, all board                    der any political party.
members serve at the pleasure of the Gover-                         (3) The oath or affirmation shall be filed
nor and may be removed in accordance with                      in the office of the Secretary of State.
the provisions of ORS 656.714.
                                                                    (4) Each of the members of the board
     (3) Any vacancy on the board shall be                     shall also, before entering upon the duties of
filled by appointment by the Governor.                         office, execute a bond payable to the State
     (4) All appointments of members of the                    of Oregon, in the penal sum of $10,000, with
board by the Governor are subject to confir-                   sureties to be approved by the Governor,
mation by the Senate pursuant to section 4,                    conditioned for the faithful discharge of the
Article III of the Oregon Constitution.                        duties of office. The bond, when so executed
[Formerly 656.402; 1973 c.792 §28; 1977 c.109 §3; 1977 c.804   and approved, shall be filed in the office of
§26; 1981 c.535 §43; 1987 c.373 §40; 1993 c.462 §1; 1995       the Secretary of State. [Formerly 656.408; 1977
c.332 §64; 1999 c.876 §5]                                      c.804 §27; 1987 c.373 §41; 1999 c.1020 §4]
     656.714 Removal of board member. (1)                           656.718 Chairperson; quorum; panels.
The Governor may at any time remove any                        (1) The board chairperson shall supervise and
member of the Workers’ Compensation Board                      manage the Workers’ Compensation Board
for inefficiency, neglect of duty or malfea-                   and the Hearings Division. The chairperson
sance in office. Before such removal the                       serves at the pleasure of the Governor and
Governor shall give the member a copy of                       may be removed in accordance with the pro-
the charges against the member and shall fix                   visions of ORS 656.714.
the time when the member can be heard in
defense, which shall not be less than 10 days                       (2) A majority of the board’s members
thereafter. Such hearing shall be open to the                  shall constitute a quorum to transact the
public.                                                        board’s business. No vacancy shall impair
                                                               the right of the remaining members to exer-
     (2) If the member is removed, the Gover-                  cise all the powers of the board.
nor shall file in the office of the Secretary
of State a complete statement of all charges                        (3)(a) In exercise of authority to decide
made against such member and the findings                      individual cases, members of the board may
thereon, with a record of the proceedings.                     sit together or in panels.
     (3) The power of removal is absolute and                       (b) When sitting en banc, the concur-
there is no right of review in any court                       rence of a majority of the members partic-
whatsoever. [Formerly 656.406; 1989 c.1094 §3]                 ipating is necessary for a decision.
     656.716 Board members not to engage                            (c) A panel must consist of two members
in political or business activity that in-                     with different backgrounds and understand-
terferes with duties as board member;                          ing. One of the members of a panel may be
oath and bond required. (1) No member of                       the board member that represents the inter-
the Workers’ Compensation Board shall hold                     ests of the public if either a member with
any other office or position of profit or pur-                 background and understanding as to the
sue any other business or vocation or serve                    concerns of employers or a member with
on or under any committee of any political                     background and understanding as to the
party, but shall devote the entire time to the                 concerns of employees is unavailable. If the
duties of the office of the member.                            members of a panel cannot agree on a deci-
     (2) Before entering on the duties of of-                  sion in an individual case, the case shall be
fice, each member shall take and subscribe                     decided by a panel of three members, two of
to an oath or affirmation:                                     whom have different backgrounds and under-
                                                               standing and one who represents the inter-
     (a) That the member will support the                      ests of the public.
Constitutions of the United States and of
this state and faithfully and honestly dis-                         (d) A board member may not review any
charge the duties of the office.                               case in which the member acted as an Ad-
                                                               ministrative Law Judge in the case. [Formerly
     (b) That the member does not hold any                     656.414; 1967 c.2 §4; 1993 c.462 §2; 1999 c.876 §6; 2003 c.365
other office or position of profit that will in-               §1]
terfere with the ability of the member to                          656.720 Prosecution and defense of ac-
fully perform the duties of the member’s po-                   tions by Attorney General and district
sition with the board.                                         attorneys. Upon request of the Director of
     (c) That the member is not pursuing and                   the Department of Consumer and Business
will not pursue, while a member, any other                     Services the Attorney General or, under di-
calling or vocation that will interfere with                   rection of the Attorney General, the district
the ability of the member to fully perform                     attorney of any county, shall institute or
the duties of the member’s position with the                   prosecute actions or proceedings for the en-
board.                                                         forcement of this chapter, when such actions

                                                           104
                                      WORKERS′ COMPENSATION                                                    656.725

or proceedings are within the county in                     plaints and other records filed with the board
which such district attorney was elected, and               chairperson regarding the official conduct,
shall defend in like manner all suits, actions              competence or fitness of an Administrative
and proceedings brought against the Depart-                 Law Judge shall be reviewed by the board.
ment of Consumer and Business Services or                   The board chairperson shall conduct an an-
its employees in their official capacity.                   nual survey of all attorneys regularly partic-
[Formerly 656.586; 1971 c.418 §18; 1977 c.804 §28]          ipating in workers’ compensation cases, in
    656.722 Authority to employ subordi-                    such manner as to allow the attorneys to re-
nates. The Workers’ Compensation Board                      main anonymous while rating the Adminis-
chairperson may employ and terminate the                    trative Law Judges as to knowledge of
employment of such assistants, experts, field               workers’ compensation law, judicial temper-
personnel and clerks as may be required in                  ament, capability to handle hearings, dili-
the administration of ORS chapter 654 and                   gence, efficiency and other similar factors.
this chapter and other duties assigned to the               The results of the survey shall be published
board or the board chairperson by statute.                  by the board chairperson, listing each Ad-
[Formerly 656.416; 1977 c.804 §29; 1981 c.860 §§2,6; 1987   ministrative Law Judge by name.
c.373 §42; 1999 c.876 §7]
                                                                (c) Notwithstanding ORS 240.240 and in
     656.724 Administrative Law Judges;                     accordance with ORS 240.555 and 240.560, an
appointment; qualifications; term; per-                     Administrative Law Judge may be removed
formance survey; removal procedure. (1)                     at any time, for official misconduct, incom-
The Workers’ Compensation Board chairper-                   petence, inefficiency, indolence, malfeasance
son, after consultation with the board, shall               or other unfitness to render effective service.
employ Administrative Law Judges to hold                        (4) Administrative Law Judges have the
such hearings as may be prescribed by law.                  same powers granted to board members or
An Administrative Law Judge must be a                       assistants under ORS 656.726 (2)(a), (b), (c)
member in good standing of the Oregon State                 and (d).
Bar, or the bar of the highest court of record
in any other state or currently admitted to                     (5) A presiding Administrative Law Judge
practice before the federal courts in the Dis-              shall be appointed by the board chairperson
trict of Columbia. Administrative Law                       and shall serve as presiding Administrative
Judges shall qualify in the same manner as                  Law Judge at the pleasure of the board
members of the board under ORS 656.716 (2).                 chairperson. The presiding Administrative
The board chairperson, after consultation                   Law Judge shall perform such administrative
with the board, may appoint Administrative                  duties as the board chairperson may dele-
Law Judges to serve for a probationary pe-                  gate. The board chairperson may designate
riod of 18 months or less prior to regular                  another Administrative Law Judge to serve
employment.                                                 as acting presiding Administrative Law
                                                            Judge during any period when the presiding
     (2) Administrative Law Judges are in the               Administrative Law Judge is absent or disa-
unclassified service under ORS chapter 240,                 bled.
and the board shall fix their salaries in ac-
cordance with ORS 240.245.                                      (6) Notwithstanding subsections (1) to (5)
                                                            of this section, the board chairperson, after
     (3)(a) The board chairperson, after con-               consultation with the board, may employ any
sultation with the board, shall establish cri-              member of the Oregon State Bar to serve as
teria whereby each Administrative Law                       an Administrative Law Judge on a temporary
Judge shall receive an annual performance                   basis, not to exceed one year, when the board
evaluation. Such criteria shall include, but                chairperson determines that such employ-
not be limited to, work quality and produc-                 ment is necessary in the conduct of the
tivity.                                                     business of the Hearings Division. Criteria
     (b) The employment of each Administra-                 and procedures for selecting and employing
tive Law Judge shall be subject to formal                   such Administrative Law Judges shall be
review by the board chairperson every four                  identical to those established for regularly
years. Complaints and comments filed with                   employed Administrative Law Judges.
the board chairperson regarding the official                    (7) It is the declared purpose of this sec-
conduct, competence or fitness of an Admin-                 tion to foster and protect the Administrative
istrative Law Judge, as well as the board’s                 Law Judges’ ability to provide full, fair and
records, shall be reviewed by the board                     speedy hearings and decisions. [1965 c.285 §53a;
chairperson. Not less than 90 days prior to                 1965 c.564 §6; 1967 c.180 §1; 1971 c.695 §9; 1973 c.774 §1;
the expiration of the probationary period, or               1979 c.677 §1; 1979 c.839 §19; 1981 c.535 §44; 1985 c.212
within 180 days but not less than 90 days                   §11; 1987 c.884 §13; 1989 c.1094 §4; 1990 c.2 §39; 1995 c.332
                                                            §51; 1999 c.876 §8]
prior to each four-year review, the board
chairperson shall solicit comments from at-                     656.725 Duties and status of Adminis-
torneys practicing in the field of workers’                 trative Law Judges. (1) Individuals holding
compensation. These comments and all com-                   the position of Administrative Law Judge

                                                        105
656.726                         LABOR AND EMPLOYMENT

created by the amendments to ORS 656.724           required by law. Notwithstanding any other
by section 51, chapter 332, Oregon Laws            provision of this chapter, the director may
1995, have the authority to perform only           adopt rules to allow for the electronic trans-
those duties, functions and powers provided        mission and filing of reports, claims or other
in ORS chapters 654, 655 and 656, and such         documents required to be filed under this
other duties, functions and powers as may be       chapter and to require the electronic trans-
prescribed by the Workers’ Compensation            mission and filing of proof of coverage re-
Board pursuant to ORS 656.726.                     quired under ORS 656.419, 656.423 and
    (2) Administrative Law Judges are not          656.427. Notwithstanding ORS 183.310 to
judges for the purposes of any provision of        183.410, if a matter comes before the director
the Oregon Constitution and are not judges         that is not addressed by rule and the director
for the purposes of judges’ retirement under       finds that adoption of a rule to accommodate
ORS chapters 238 and 238A. [1995 c.332 §53; 2003   the matter would be inefficient, unreasonable
c.733 §80]                                         or unnecessarily burdensome to the public,
                                                   the director may resolve the matter by issu-
    656.726 Duties and powers to carry             ing an order, subject to review under ORS
out workers’ compensation and occupa-              656.704. Such order shall not have
tional safety laws; rules. (1) The Workers’        precedential effect as to any other situation.
Compensation Board in its name and the Di-
rector of the Department of Consumer and                (b) Hold sessions at any place within the
Business Services in the director’s name as        state.
director may sue and be sued, and each shall            (c) Administer oaths.
have a seal.                                            (d) Issue and serve by representatives of
    (2) The board hereby is charged with re-       the director, or by any sheriff, subpoenas for
viewing appealed orders of Administrative          the attendance of witnesses and the produc-
Law Judges in controversies concerning a           tion of papers, contracts, books, accounts,
claim arising under this chapter, exercising       documents and testimony in any inquiry, in-
own motion jurisdiction under this chapter         vestigation, proceeding or rulemaking hear-
and providing such policy advice as the di-        ing conducted by the director or the
rector may request, and providing such other       director’s representatives. The director may
review functions as may be prescribed by           require the attendance and testimony of em-
law. To that end any of its members or as-         ployers, their officers and representatives in
sistants authorized thereto by the members         any inquiry under this chapter, and the pro-
shall have power to:                               duction by employers of books, records, pa-
                                                   pers and documents without the payment or
    (a) Hold sessions at any place within the      tender of witness fees on account of such at-
state.                                             tendance.
    (b) Administer oaths.                               (e) Generally provide for the taking of
    (c) Issue and serve by the board’s repre-      testimony and for the recording of such pro-
sentatives, or by any sheriff, subpoenas for       ceedings.
the attendance of witnesses and the produc-             (f) Provide standards for the evaluation
tion of papers, contracts, books, accounts,        of disabilities. The following provisions apply
documents and testimony before any hearing         to the standards:
under ORS 654.001 to 654.295, 654.412 to
654.423, 654.750 to 654.780 and this chapter.           (A) The criterion for evaluation of per-
                                                   manent impairment under ORS 656.214 is the
    (d) Generally provide for the taking of        loss of use or function of a body part or sys-
testimony and for the recording of pro-            tem due to the compensable industrial injury
ceedings.                                          or occupational disease. Permanent impair-
    (3) The board chairperson is hereby            ment is expressed as a percentage of the
charged with the administration of and re-         whole person. The impairment value may not
sponsibility for the Hearings Division.            exceed 100 percent of the whole person.
    (4) The director hereby is charged with             (B) Impairment is established by a pre-
duties of administration, regulation and en-       ponderance of medical evidence based upon
forcement of ORS 654.001 to 654.295, 654.412       objective findings.
to 654.423, 654.750 to 654.780 and this chap-           (C) The criterion for evaluation of work
ter. To that end the director may:                 disability under ORS 656.214 is permanent
    (a) Make and declare all rules and issue       impairment as modified by the factors of age,
orders which are reasonably required in the        education and adaptability to perform a given
performance of the director’s duties. Unless       job.
otherwise specified by law, all reports, claims         (D) When, upon reconsideration of a no-
or other documents shall be deemed timely          tice of closure pursuant to ORS 656.268, it is
provided to the director or board if mailed        found that the worker’s disability is not ad-
by regular mail or delivered within the time       dressed by the standards adopted pursuant to

                                               106
                               WORKERS′ COMPENSATION                                                 656.727

this paragraph, notwithstanding ORS 656.268,      manner and to the same extent as is provided
the director shall, in the order on reconsid-     for lien and enforcement of collection of pre-
eration, determine the extent of permanent        miums and assessments by the corporation
disability that addresses the worker’s im-        under ORS 656.552 to 656.566.
pairment.                                             (9) The director shall have the same
    (E) Notwithstanding any other provision       powers regarding inspection of books, re-
of this section, only impairment benefits         cords and payrolls of employers as are
shall be awarded under ORS 656.214 if the         granted the corporation under ORS 656.758.
worker has been released to regular work by       The director may disclose information ob-
the attending physician or nurse practitioner     tained from such inspections to the Director
authorized to provide compensable medical         of the Department of Revenue to the extent
services under ORS 656.245 or has returned        the Director of the Department of Revenue
to regular work at the job held at the time       requires such information to determine that
of injury.                                        a person complies with the revenue and tax
    (g) Prescribe procedural rules for and        laws of this state and to the Director of the
conduct hearings, investigations and other        Employment Department to the extent the
proceedings pursuant to ORS 654.001 to            Director of the Employment Department re-
654.295, 654.412 to 654.423, 654.750 to 654.780   quires such information to determine that a
and this chapter regarding all matters other      person complies with ORS chapter 657.
than those specifically allocated to the board        (10) The director shall collect hours-
or the Hearings Division.                         worked data information in addition to total
    (h) Participate fully in any proceeding       payroll for workers engaged in various jobs
before the Hearings Division, board or Court      in the construction industry classifications
of Appeals in which the director determines       described in the job classification portion of
that the proceeding involves a matter that        the Workers’ Compensation and Employers
affects or could affect the discharge of the      Liability Manual and the Oregon Special
director’s duties of administration, regulation   Rules Section published by the National
and enforcement of ORS 654.001 to 654.295,        Council on Compensation Insurance. The in-
654.412 to 654.423, 654.750 to 654.780 and this   formation shall be collected in the form and
chapter.                                          format necessary for the National Council on
                                                  Compensation Insurance to analyze premium
    (5) The board may make and declare all        equity. [Formerly 656.410; 1977 c.804 §30; 1979 c.677
rules which are reasonably required in the        §2; 1979 c.839 §20; 1981 c.535 §45; 1981 c.723 §5; 1981 c.854
performance of its duties, including but not      §49a; 1981 c.876 §9; 1985 c.600 §16; 1985 c.706 §4; 1985
                                                  c.770 §4; 1987 c.884 §2; 1990 c.2 §40; 1995 c.332 §55;
limited to rules of practice and procedure in     amendments by 1995 c.332 §55a repealed by 1999 c.6 §1;
connection with hearing and review pro-           1999 c.313 §10; 1999 c.876 §9; 2003 c.170 §7; 2003 c.171 §1;
ceedings and exercising its authority under       2003 c.657 §§3,4; 2003 c.811 §§17,18; 2005 c.26 §§16,17; 2005
ORS 656.278. The board shall adopt standards      c.653 §§1,2a; 2007 c.241 §§4,5; 2007 c.270 §§7,8; 2007 c.274
governing the format and timing of the evi-       §2]
dence. The standards shall be uniformly fol-           Note: See notes under 656.202.
lowed by all Administrative Law Judges and             656.727 Rules for administration of
practitioners. The rules may provide for in-      benefit offset. In carrying out the pro-
formal prehearing conferences in order to         visions of ORS 656.209, the Department of
expedite claim adjudication, amicably dispose     Consumer and Business Services shall pro-
of controversies, if possible, narrow issues      mulgate rules that include, but are not lim-
and simplify the method of proof at hearings.     ited to:
The rules shall specify who may appear with
parties at prehearing conferences and hear-            (1) Requiring injured workers to make
ings.                                             application for federal Social Security disa-
                                                  bility benefits.
    (6) The director and the board chairper-
son may incur such expenses as they respec-            (2) Requiring injured workers to file with
tively determine are reasonably necessary to      the appropriate agency that administers the
perform their authorized functions.               federal Social Security program a release
                                                  authorizing the federal agency to make dis-
    (7) The director, the board chairperson       closure to the department of such informa-
and the State Accident Insurance Fund Cor-        tion regarding the injured worker as will
poration shall have the right, not subject to     enable the department to carry out the pro-
review, to contract for the exchange of, or       visions of ORS 656.209.
payment for, such services between them as
will reduce the overall cost of administering          (3) A procedure for ordering reduction of
this chapter.                                     benefits or such other sanctions as the de-
                                                  partment considers appropriate to insure that
    (8) The director shall have lien and en-      injured workers comply with rules promul-
forcement powers regarding assessments to         gated pursuant to this section. [1977 c.430 §7;
be paid by subject employers in the same          1979 c.117 §4]

                                              107
656.730                                 LABOR AND EMPLOYMENT

     656.728 [Subsection (1) formerly 344.820; subsection       vices shall assess any person who violates
(2) formerly 344.830; 1973 c.634 §3; 1977 c.862 §2; 1981        ORS 656.052 (1) a civil penalty of not more
c.854 §50; 1981 c.874 §6; 1981 c.535 §12; repealed by 1985
c.600 §2]                                                       than $1,000 or twice the premium that would
     656.729 [1981 c.723 §2; repealed by 1985 c.770 §5]
                                                                have been due for the period of noncompli-
                                                                ance, whichever is the greater.
    656.730 Assigned risk plan. (1) The Di-                          (2) The director shall assess any person
rector of the Department of Consumer and                        who continues to violate ORS 656.052 (1), af-
Business Services shall promulgate a plan for                   ter an order issued pursuant to ORS 656.052
the equitable apportionment among the State                     (2) has become final, a civil penalty, in addi-
Accident Insurance Fund Corporation and all                     tion to any penalty assessed under subsection
members of workers’ compensation rating                         (1) of this section, of not more than $250 for
organizations in the state coverage required                    each day such violation continues.
by ORS 656.017 for subject employers whose
coverage the fund, or any members of such                            (3)(a) When a noncomplying employer is
rating organizations, object to providing. The                  a corporation, such corporation and the offi-
plan shall include provisions authorized pur-                   cers and directors thereof shall be jointly
suant to ORS 737.265 (2), except that:                          and severally liable for any civil penalties
                                                                assessed under this section and any claim
    (a) Regardless of the rating plans adopted                  costs incurred under ORS 656.054.
by any rating organization, the plan shall
provide a rating structure with differing rate                       (b) When a noncomplying employer is a
tiers for insureds too small to qualify for ex-                 limited liability company, the company and
perience rating and for insureds large                          its members and managers shall be jointly
enough to be experience rated; and                              and severally liable for any civil penalties
                                                                assessed by the director under this section
    (b) The plan shall seek and be entitled to                  and any claim costs incurred under ORS
receive approval for all classification excep-                  656.054. As used in this paragraph, “limited
tions approved by the director for any in-                      liability     company,”      “manager”      and
surer.                                                          “member” have the meanings for those terms
    (2) If any insurer issuing workers’ com-                    provided in ORS 63.001.
pensation insurance policies under this                              (c) When a noncomplying employer is a
chapter refuses to accept its equitable ap-                     limited liability partnership or foreign lim-
portionment under such plan, the director                       ited liability partnership, the partnership and
shall revoke the insurer’s authority to issue                   its limited liability partners shall be jointly
workers’ compensation insurance policies.                       and severally liable for any civil penalties
[1965 c.285 §94a; 1979 c.673 §2; 1990 c.1 §2; 2007 c.241 §18]
                                                                assessed by the director under this section
    656.732 Power to compel obedience to                        and any claim costs incurred under ORS
subpoenas and punish for misconduct.                            656.054. As used in this paragraph, “limited
The circuit court for any county, or the                        liability partnership” and “foreign limited li-
judge of such court, on application of the                      ability partnership” have the meanings for
Director of the Department of Consumer and                      those terms provided in ORS 67.005.
Business Services, the Workers’ Compensa-
tion Board, or any of the board members,                             (d) When a noncomplying employer is a
their Administrative Law Judges or assis-                       partnership, the partnership and its partners
tants, shall compel obedience to subpoenas                      shall be jointly and severally liable for any
issued and served pursuant to ORS 656.726                       civil penalties assessed by the director under
and shall punish disobedience of any such                       this section and any claim costs incurred
subpoena or any refusal to testify at any au-                   under ORS 656.054. As used in this para-
thorized session or hearing or to answer any                    graph, “partnership” has the meaning for
lawful inquiry of the director or any of the                    that term provided in ORS 67.005.
board members, Administrative Law Judges                             (4) When an order assessing a civil pen-
or assistants, in the same manner as a re-                      alty becomes final by operation of law or on
fusal to testify in the circuit court or the                    appeal, unless the amount of penalty is paid
disobedience of the requirements of a sub-                      within 10 days after the order becomes final,
poena issued from the court is punished.                        it constitutes a judgment and may be re-
[Formerly 656.412; 1979 c.839 §21]                              corded with the county clerk in any county
     656.734 [Formerly 656.424; repealed by 1973 c.833          of this state. The clerk shall thereupon re-
§48]                                                            cord the name of the person incurring the
   656.735 Civil penalty for noncomplying                       penalty and the amount of the penalty in the
employers; amount; liability of partners                        County Clerk Lien Record. The penalty pro-
and of corporate and limited liability                          vided in the order so recorded shall become
company officers; effect of final order;                        a lien upon the title to any interest in prop-
penalty as preferred claim; disposition of                      erty owned by the person against whom the
moneys collected. (1) The Director of the                       order is entered, and execution may be is-
Department of Consumer and Business Ser-                        sued upon the order in the same manner as

                                                            108
                                      WORKERS′ COMPENSATION                                                 656.745

execution upon a judgment of a court of re-                  request for hearing is not so filed, the non-
cord.                                                        subjectivity determination, order or penalty,
    (5) Civil penalties, and judgments entered               as proposed, shall be a final order of the de-
thereon, due to the director under this sec-                 partment and shall not be subject to review
tion from any person shall be deemed pre-                    by any agency or court.
ferred to all general claims in all bankruptcy                    (5) Notwithstanding ORS 183.315 (1), the
proceedings, trustee proceedings, and pro-                   issuance of nonsubjectivity determinations,
ceedings for the administration of estates                   orders declaring a person to be a noncom-
and receiverships involving the person liable                plying employer or the assessment of civil
therefor or the property of such person.                     penalties pursuant to this chapter, the con-
    (6) All moneys collected under this sec-                 duct of hearings and the judicial review
tion shall be paid into the Workers’ Benefit                 thereof shall be as provided in ORS chapter
Fund. [1973 c.447 §4; 1977 c.73 §1; 1983 c.696 §23; 1995     183, except that:
c.332 §65; 1995 c.641 §12; 1995 c.689 §37; 1997 c.775 §91;        (a) The order of an Administrative Law
2003 c.170 §8]
                                                             Judge in a contested case shall be deemed to
     656.740 Review of proposed order de-                    be a final order of the director.
claring noncomplying employer or non-                             (b) The director shall have the same right
subjectivity determination; review of                        to judicial review of the order of an Admin-
proposed assessment or civil penalty; in-                    istrative Law Judge as any person who is
surer as party; hearing. (1) A person may                    adversely affected or aggrieved by such final
contest a proposed order of the Director of                  order.
the Department of Consumer and Business
Services declaring that person to be a non-                       (c) When a nonsubjectivity determination
complying employer, or a proposed assess-                    or an order declaring a person to be a non-
ment of civil penalty, by filing with the                    complying employer is contested at the same
Department of Consumer and Business Ser-                     hearing as a matter concerning a claim pur-
vices, within 60 days after the mailing of the               suant to ORS 656.283 and 656.704, the review
order, a written request for a hearing. Such                 thereof shall be as provided for a matter
a request need not be in any particular form,                concerning a claim.
but shall specify the grounds upon which the                      (6)(a) If a person against whom an order
person contests the proposed order or as-                    is issued pursuant to this section prevails at
sessment. An order by the director under                     hearing or on appeal, the person is entitled
this subsection is prima facie correct and the               to reasonable attorney fees to be paid by the
burden is upon the employer to prove that                    director from the Workers’ Benefit Fund.
the order is incorrect.
                                                                  (b) If a person against whom an order is
     (2) A person may contest a nonsubjectiv-                issued is found to be a noncomplying em-
ity determination of the director by filing a                ployer by the director, but the person proves
written request for hearing with the depart-                 coverage pursuant to subsection (3) of this
ment within 60 days after the mailing of the                 section and the insurer failed to file timely
determination.                                               proof of coverage as required by ORS 656.419
     (3) When any insurance carrier, includ-                 or improperly canceled the person’s cover-
ing the State Accident Insurance Fund Cor-                   age, the employer is entitled to reasonable
poration, is alleged by an employer to have                  attorney fees paid by the insurer.
contracted to provide the employer with                           (c) If a worker prevails at hearing or on
workers’ compensation coverage for the pe-                   appeal from a nonsubjectivity determination,
riod in question, the Workers’ Compensation                  the worker is entitled to reasonable attorney
Board shall join such insurance carrier as a                 fees to be paid by the director from the
necessary party to any hearing relating to                   Workers’ Benefit Fund and reimbursed by
such employer’s alleged noncompliance or to                  the employer. [1973 c.447 §5; 1975 c.341 §1; 1975 c.759
any hearing relating to a nonsubjectivity de-                §19; 1977 c.804 §31; 1979 c.839 §22; 1983 c.816 §14; 1987
termination and shall serve the carrier, at                  c.234 §3; 1995 c.332 §65a; 1995 c.641 §13; 1999 c.246 §1;
least 30 days prior to such hearing, with no-                1999 c.1020 §2; 2003 c.170 §9; 2007 c.241 §19]
tice thereof.                                                    656.745 Civil penalty for inducing fail-
     (4) A hearing relating to a nonsubjectiv-               ure to report claims; failure to pay as-
ity determination, to a proposed order de-                   sessments; failure to comply with
claring a person to be a noncomplying                        statutes, rules or orders; amount; proce-
employer, or to a proposed assessment of                     dure. (1) The Director of the Department of
civil penalty under ORS 656.735, shall be                    Consumer and Business Services shall assess
held by an Administrative Law Judge of the                   a civil penalty against an employer or in-
board’s Hearings Division. However, a hear-                  surer who intentionally or repeatedly induces
ing shall not be granted unless a request for                claimants for compensation to fail to report
hearing is filed within the period specified in              accidental injuries, causes employees to col-
subsection (1) or (2) of this section, and if a              lect accidental injury claims as off-the-job

                                                         109
656.750                                 LABOR AND EMPLOYMENT

injury claims, persuades claimants to accept                    made a matter of public record at the time
less than the compensation due or makes it                      of appointment to the board, in any corpo-
necessary for claimants to resort to pro-                       ration or other business entity doing busi-
ceedings against the employer to secure                         ness in the workers’ compensation insurance
compensation due.                                               industry.
    (2) The director may assess a civil pen-                        (3) The term of office of a member is four
alty against an employer, insurer or managed                    years, but a member serves at the pleasure
care organization that:                                         of the Governor. Before the expiration of the
    (a) Fails to pay assessments or other                       term of a member, the Governor shall ap-
payments due to the director under this                         point a successor. A member is eligible for
chapter and is in default; or                                   reappointment. If there is a vacancy for any
                                                                cause, the Governor shall make an appoint-
    (b) Fails to comply with statutes, rules                    ment to become immediately effective for the
or orders of the director regarding reports or                  unexpired term.
other requirements necessary to carry out
the purposes of this chapter.                                       (4) A member of the board of directors is
    (3) A civil penalty shall be not more than                  entitled to compensation and expenses as
$2,000 for each violation or $10,000 in the                     provided in ORS 292.495.
aggregate for all violations within any                             (5) The board of directors shall select one
three-month period. Each violation, or each                     of its members as chairperson and another
day a violation continues, shall be considered                  as vice chairperson, for such terms and with
a separate violation.                                           such duties and powers as the board of di-
    (4) ORS 656.735 (4) to (6) and 656.740 also                 rectors considers necessary for performance
apply to orders and penalties assessed under                    of the functions of those offices. A majority
this section. [1975 c.556 §38; 1979 c.839 §31; 1987 c.233       of the members of the board of directors
§2; 1987 c.884 §46; 2003 c.170 §13; 2005 c.221 §3; 2007 c.270   constitutes a quorum for the transaction of
§9]                                                             business.
    656.750 Civil penalty for failure to                            (6) The board of directors shall meet at
maintain records of compensation claims;                        least once every three months at a time and
amount; disposition of funds. (1) The Di-                       place determined by the board of directors.
rector of the Department of Consumer and                        The board of directors shall meet at such
Business Services shall assess against a self-                  other times and places specified by the call
insured employer who fails to comply with                       of the chairperson or of a majority of the
ORS 656.455, a civil penalty of $250 a day for                  members of the board of directors.
each day such failure continues.                                    (7) It is the function of the board of di-
    (2) ORS 656.735 (4) to (6) and 656.740 also                 rectors to establish the policies for the oper-
apply to orders and penalties assessed under                    ation of the State Accident Insurance Fund
this section. [1975 c.585 §9; 1983 c.696 §24; 1987 c.233        Corporation, consistent with all applicable
§3; 1987 c.884 §60; 1991 c.640 §3; 2003 c.170 §14]              provisions of law.
                                                                    (8) The board shall file with the Legisla-
      (State Accident Insurance Fund                            tive Assembly and the Governor, not later
                 Corporation)                                   than April 15 of each year, a report covering
    656.751 State Accident Insurance Fund                       the activities and operations of the State
Corporation created; board; members’                            Accident Insurance Fund Corporation for the
qualifications; terms; compensation; ex-                        preceding year. [1979 c.829 §2; 1981 c.854 §51]
penses; function; report. (1) The State Ac-                         656.752 State Accident Insurance Fund
cident Insurance Fund Corporation is created                    Corporation; purpose and functions. (1)
as an independent public corporation. The                       The State Accident Insurance Fund Corpo-
corporation shall be governed by a board of                     ration is created for the purpose of transact-
five directors appointed by the Governor.                       ing workers’ compensation insurance and
Two members shall be chosen to represent                        reinsurance business. The State Accident In-
the public. Of the remaining three members,                     surance Fund Corporation also may insure
a board member must be insured by the State                     an Oregon employer against any liability
Accident Insurance Fund Corporation at the                      such employer may have on account of bodily
time of appointment and for one year prior                      injury to a worker of the employer arising
to appointment, or an employee of such an                       out of and in the course of employment as
employer. Members of the board are subject                      fully as any private insurance carrier.
to confirmation by the Senate pursuant to
section 4, Article III of the Oregon Constitu-                      (2) The functions of the State Accident
tion.                                                           Insurance Fund Corporation shall be:
    (2) No member of the board of directors                         (a) To confer with and solicit employers
shall have any pecuniary interest, other than                   and to determine, handle, audit and enforce
an incidental interest which is disclosed and                   collection of premiums, assessments and fees

                                                            110
                             WORKERS′ COMPENSATION                                                656.754

of insured employers insured with the State     claims filed under ORS 655.505 to 655.555 by
Accident Insurance Fund Corporation;            inmates of institutions of the Department of
    (b) To make insurance available to as       Corrections. [1965 c.285 §55; 1965 c.564 §7; 1967 c.253
                                                §1; 1969 c.247 §2; 1971 c.262 §1; 1977 c.659 §3; 1979 c.815
many Oregon employers as inexpensively as       §10; 1979 c.829 §5a; 1981 c.854 §52; 1981 c.876 §7; 1990 c.1
may be consistent with the overall integrity    §3; 2007 c.326 §1]
of the Industrial Accident Fund, in accor-
dance with ORS 656.634 and sound principles         656.753 State Accident Insurance Fund
of insurance;                                   Corporation exempt from certain finan-
                                                cial administration laws; contracts with
    (c) To receive and handle and process the   state agencies for services. (1) Except as
claims of workers and beneficiaries of work-    otherwise provided by law, the provisions of
ers injured in the employ of insured employ-    ORS 279.835 to 279.855 and ORS chapters
ers insured with the State Accident             240, 276, 279A, 279B, 279C, 282, 283, 291, 292
Insurance Fund Corporation; and                 and 293 do not apply to the State Accident
    (d) To perform all other functions which    Insurance Fund Corporation.
the laws of this state specifically authorize       (2) In carrying out the duties, functions
or which are necessary or appropriate to        and powers imposed by law upon the State
carry out the functions expressly authorized.   Accident Insurance Fund Corporation, the
    (3) The State Accident Insurance Fund       board of directors or the manager of the
Corporation in its name may sue and be          State Accident Insurance Fund Corporation
sued.                                           may contract with any state agency for the
    (4) The State Accident Insurance Fund       performance of such duties, functions and
Corporation may authorize self-insured em-      powers as the corporation considers appro-
ployers or other insurers to use any physical   priate.
rehabilitation center operated by the State         (3) Notwithstanding subsection (1) or (2)
Accident Insurance Fund Corporation on          of this section, ORS 293.240 except for ap-
such terms as the State Accident Insurance      peals pursuant to ORS 737.318, ORS 293.260,
Fund Corporation deems reasonable.              293.262 and 293.505 (2) shall apply to the di-
    (5) The State Accident Insurance Fund       rectors, manager, assistants and accounts of
Corporation in its own name, may acquire,       the State Accident Insurance Fund Corpo-
lease, rent, own and manage real property.      ration and any subsidiary corporation formed
It may construct, equip and furnish buildings   or acquired by the State Accident Insurance
or other structures as are necessary to ac-     Fund Corporation.
commodate its needs. It may purchase, rent,         (4) Notwithstanding subsection (1) or (2)
lease or otherwise acquire for its use all      of this section, ORS 243.305, 279A.100 and
supplies, materials, equipment and services     659A.012 apply to the directors, manager and
necessary to carry out its functions. It may    employees of the State Accident Insurance
sell or otherwise dispose of any property ac-   Fund Corporation. [1979 c.829 §4; 1981 c.876 §8;
quired under this subsection.                   subsection (3) enacted as 1983 c.412 §2; subsection (4)
                                                enacted as 1983 c.808 §4; 1987 c.884 §5; 2003 c.794 §310]
    (6) Any real property acquired and owned
by the State Accident Insurance Fund Cor-           656.754 Manager; appointment; func-
poration under this section shall be subject    tions. (1) The State Accident Insurance
to ad valorem taxation.                         Fund Corporation is under the direct super-
                                                vision of a manager appointed by the board
    (7) The State Accident Insurance Fund       of directors of the State Accident Insurance
Corporation may furnish advice, services and    Fund Corporation. The manager serves at the
excess workers’ compensation and employer
liability insurance to any employer qualified   pleasure of the board of directors. The man-
as a self-insured employer under the pro-       ager shall qualify in the manner provided for
visions of ORS 656.407, on such terms and       board members in ORS 656.716 except that
conditions as the State Accident Insurance      no bond shall be required.
Fund Corporation deems reasonable.                  (2) The manager has such powers as are
    (8) With the approval of the Director of    necessary to carry out the functions of the
the Department of Consumer and Business         State Accident Insurance Fund Corporation,
Services, the State Accident Insurance Fund     subject to policy direction by the board of
Corporation may provide reinsurance cover-      directors.
age to Oregon employers on such terms and           (3) The manager may employ, terminate
conditions as the State Accident Insurance      and supervise the employment of such assis-
Fund Corporation deems reasonable.              tants, experts, field personnel and clerks as
    (9) The State Accident Insurance Fund       may be required in the administration of the
Corporation may contract with the Oregon        State Accident Insurance Fund Corporation.
Department of Administrative Services to        [1965 c.285 §56; 1973 c.792 §29; 1979 c.829 §6]
provide claim management services for                656.756 [1965 c.285 §56a; repealed by 1967 c.7 §40]

                                            111
656.758                              LABOR AND EMPLOYMENT

    656.758 Inspection of books, records                    Accident Fund pursuant to ORS 297.210. As
and payrolls; statement of employment                       part of this audit, the Secretary of State
data; civil penalty for misrepresentation;                  shall contract with a firm qualified to per-
failure to submit books for inspection                      form an independent actuarial review.
and refusal to keep correct payroll. (1)                        (b) The firm conducting the review re-
The books, records and payrolls of any em-                  quired by paragraph (a) of this subsection
ployer pertinent to the administration of this              shall be familiar with the accounting stan-
chapter shall always be open to inspection                  dards applicable to the reserves under re-
by the State Accident Insurance Fund Cor-                   view, shall meet all appropriate standards of
poration or its agent for the purpose of as-                practice    established    by the Casualty
certaining the correctness of the payroll, the              Actuarial Society, shall employ a staff that
persons employed, and such other informa-                   includes no fewer than three people who
tion as may be necessary in the administra-                 have attained fellowship in the Casualty
tion of said statutes.                                      Actuarial Society and shall maintain limits
    (2) Every employer subject to this chap-                of errors and omission insurance as pre-
ter shall keep a true and accurate record of                scribed by the Secretary of State.
the number of workers and the wages paid                        (c) The Secretary of State shall deter-
by the employer, the occupations at which                   mine the scope of the review required by
and the number of days or parts of days any                 paragraph (a) of this subsection, which shall
of the workers are employed, and shall fur-                 include, but is not limited to:
nish to the State Accident Insurance Fund
Corporation, upon request, a sworn state-                       (A) A review of the sources and uses of
ment of the same.                                           the moneys in the Industrial Accident Fund;
    (3) Any employer who willfully misrepre-                    (B) A reconciliation of changes in
sents to the State Accident Insurance Fund                  actuarial assumptions and reserve values
Corporation the amount of the payroll upon                  from the prior year;
which the amount of premium is based shall                      (C) An examination of the development
be liable to the State Accident Insurance                   of claim reserve inadequacies or redundan-
Fund Corporation in a sum equal to 10 times                 cies over time;
the amount of the difference between the                        (D) An assessment of the future financial
amount of such premium computed according                   viability of the Industrial Accident Fund; and
to the representation thereof by such em-
ployer and the amount for which the em-                         (E) An evaluation of losses and loss ad-
ployer is liable under this chapter according               justment expense reserves discounted by a
to a correct computation of the payroll. Such               rate determined by the Director of the De-
liability shall be enforced in a civil action in            partment of Consumer and Business Services
the name of the State Accident Insurance                    that is consistent with discount rates gener-
Fund Corporation and any amount so col-                     ally applied by insurers authorized to under-
lected shall become a part of the Industrial                write workers’ compensation insurance in
Accident Fund.                                              Oregon.
    (4) Failure on the part of the employer to                  (d) The State Accident Insurance Fund
submit such books, records and payrolls for                 Corporation shall cooperate with the
inspection to any member of the State Acci-                 actuarial firm in all respects and shall per-
dent Insurance Fund Corporation or any of                   mit the firm full access to all information the
its representatives presenting written au-                  firm deems necessary for a true and complete
thority from the State Accident Insurance                   review. Information provided to the actuarial
Fund Corporation, or a refusal on the part                  firm conducting the annual review is subject
of an employer to keep a payroll in accor-                  to the same limitations on public inspections
dance with this section, when demanded by                   as required for the records of the State Ac-
the State Accident Insurance Fund Corpo-                    cident Insurance Fund Corporation.
ration, subjects the offending employer to a                    (e) The audit required by paragraph (a)
penalty of $100 for each offense, to be col-                of this subsection shall be conducted using
lected by a civil action in the name of the                 both generally accepted accounting princi-
State Accident Insurance Fund Corporation                   ples and the statutory accounting principles
and paid into the Industrial Accident Fund.                 published by the National Association of In-
[Amended by 1981 c.854 §53]                                 surance Commissioners.
    656.760 [1983 c.412 §3; renumbered 656.776 in 2001]         (f) The cost of the audit required by par-
    656.772 Annual audit of State Accident                  agraph (a) of this subsection shall be paid by
Insurance Fund Corporation by Secretary                     the State Accident Insurance Fund Corpo-
of State; scope of review; report of audit.                 ration.
(1)(a) The Secretary of State shall conduct                     (2) The Secretary of State shall issue an
an annual audit of the State Accident Insur-                annual report to the Governor, the President
ance Fund Corporation and the Industrial                    of the Senate and the Speaker of the House

                                                          112
                                     WORKERS′ COMPENSATION                                                   656.780

of Representatives on the results of the audit             compensation insurers, self-insured employ-
and review. The audit and the report of the                ers and third party administrators; and
review performed by the independent                            (b) Develop or approve any training cur-
actuarial firm shall be available for public               riculum used by insurers, self-insured em-
inspection, in accordance with the Secretary               ployers and third party administrators that
of State’s established rules and procedures                is related to interactions with independent
governing public disclosure of audit docu-                 medical examination providers required un-
ments. [2001 c.724 §1]                                     der ORS 656.325.
      Note: 656.772 and 656.774 were enacted into law by       (2)(a) Each insurer, self-insured employer
the Legislative Assembly but were not added to or made
a part of ORS chapter 656 or any series therein by leg-    and third party administrator shall maintain
islative action. See Preface to Oregon Revised Statutes    records of the certification and training of
for further explanation.                                   their workers’ compensation claims examin-
    656.774 Annual report by State Acci-                   ers. These records are subject to inspection
dent Insurance Fund Corporation to Sec-                    and review by the director.
retary of State; contents. The board of                        (b) The director may impose a civil pen-
directors of the State Accident Insurance                  alty against any insurer, self-insured em-
Fund Corporation shall report to the Secre-                ployer or third party administrator that fails
tary of State by March 15 of each year:                    to:
    (1) The total amount of assets in the In-                  (A) Maintain or produce certification and
dustrial Accident Fund as of December 31 of                training records as required by the rules of
the prior year;                                            the director; or
    (2) The reserves and surplus that are                      (B) Provide training based on a curric-
actuarially necessary according to recognized              ulum approved by the director related to
insurance principles as described in ORS                   interactions with independent medical exam-
656.634 (2) and statutory accounting princi-               ination providers required under ORS
ples published by the National Association                 656.325.
of Insurance Commissioners, excluding any                      (3) Insurers, self-insured employers and
allowance for undeclared dividends;                        third party administrators may employ only
    (3) Any funds in addition to those de-                 certified workers’ compensation claims ex-
scribed in subsection (2) of this section; and             aminers to process workers’ compensation
                                                           claims. The director may impose a civil pen-
    (4) The total amount of investment gain                alty against any insurer, self-insured em-
generated by the Industrial Accident Fund                  ployer or third party administrator that
during the prior year ending on December                   violates this subsection. [1990 c.2 §52; 1999 c.418
31. [2001 c.724 §2]                                        §1; 2005 c.675 §3]
    Note: See note under 656.772.                               Note: See notes under 656.202.
    656.776 Notice to Secretary of State
regarding action on audit report. Not                           (Reinsurance Program for Medical
later than the 90th day after the Secretary                      Professional Liability Insurance)
of State completes and delivers to the appro-                    Note: Sections 1 to 8, 10, 11, 14 and 15, chapter 781,
                                                           Oregon Laws 2003, provide:
priate authority an audit under ORS 297.210,
the State Accident Insurance Fund Corpo-                         Sec. 1. (1) The State Accident Insurance Fund
                                                           Corporation shall establish a reinsurance program for
ration or any subsidiary corporation formed                medical professional liability insurance policies issued
or acquired by the State Accident Insurance                by authorized insurers in the calendar years 2004, 2005,
Fund Corporation shall notify the Secretary                2006, 2007, 2008, 2009, 2010 and 2011 to doctors of medi-
of State in writing of the measures taken and              cine and doctors of osteopathy licensed under ORS
                                                           chapter 677 and nurse practitioners certified by the Or-
proposed to be taken, if any, to respond to                egon State Board of Nursing who:
the recommendations of the audit report. The                     (a) Have a rural practice that meets the criteria
Secretary of State may extend the 90-day pe-               established by the Office of Rural Health that applied
riod for good cause. [Formerly 656.760]                    as of January 1, 2004, for purposes of ORS 315.613, ex-
                                                           cluding urbanized areas, as defined by the United States
                                                           Census Bureau according to the most recent federal
      (Claims Examiner Certification)                      decennial census, pursuant to the authority of the
                                                           United States Department of Commerce under 13 U.S.C.
    656.780 Certification and training of                  141;
claims examiners; records of certification                       (b) Hold an active, unrestricted license to practice
and training of examiners; department                      medicine or are currently certified as a nurse practi-
inspection of records; penalties; rules. (1)               tioner;
The Director of the Department of Consumer                       (c) Have an in-force policy of medical professional
and Business Services shall:                               liability insurance with an authorized insurer with
                                                           minimum limits of coverage of $1 million per occurrence
    (a) Adopt by rule standards for certifica-             and $1 million aggregate; and
tion of workers’ compensation claims exam-                       (d) Are willing to serve patients with Medicare
iners that shall be administered by workers’               coverage and patients receiving medical assistance pro-

                                                       113
656.780                                 LABOR AND EMPLOYMENT

vided under Medicaid in at least the same proportion           and reasonable to the participating primary insurers
to their total number of patients as the Medicare and          and their insureds.
Medicaid populations represent to the total number of               (f) Establishes appropriate underwriting and rating
patients in need of care in the rural areas of the coun-       standards.
ties in which the doctors or nurse practitioners practice,
as determined by the Office of Rural Health. The Office             (g) Minimizes transactional and claim costs for the
of Rural Health shall establish by rule criteria for and       State Accident Insurance Fund Corporation and for
procedures for the annual attestation of compliance by         primary users.
participating doctors and nurse practitioners with the              (h) Is appropriate in relation to the insurance
requirements of this paragraph. The requirements of            market in this state.
this paragraph do not apply to nurse practitioners par-             (i) Effectively reduces premiums for medical pro-
ticipating in the program who are employed by licensed         fessional liability insurance for doctors and nurse
physicians.                                                    practitioners eligible for coverage under the plan.
      (2) The reinsurance program established in accor-
dance with this section must be carried out in accor-               (2)(a) The plan approved under this section must
dance with the plan approved under section 2, chapter          provide, to the extent funds are available from the
781, Oregon Laws 2003.                                         credit provided in section 7, chapter 781, Oregon Laws
                                                               2003, for the annual assessment owed by the State Ac-
      (3) The coverage provided under the reinsurance          cident Insurance Fund Corporation under ORS 656.612,
program shall be priced by the State Accident Insurance        for a reduction in premiums as provided in this subsec-
Fund Corporation, in accordance with rate standards            tion for medical professional liability insurance for eli-
or percentage reductions determined by the Director of         gible doctors and nurse practitioners. The reduction of
the Department of Consumer and Business Services af-           premium shall be:
ter consultation with the Office of Rural Health, at
rates that will significantly reduce premiums for doctors           (A) 80 percent for doctors specializing in obstetrics
and nurse practitioners to whom this section applies so        and nurse practitioners certified for obstetric care;
as to make the medical professional liability insurance             (B) 60 percent for doctors specializing in family or
reasonably affordable.                                         general practice who provide obstetrical services;
      (4)(a) The State Accident Insurance Fund Corpo-               (C) Up to 40 percent for doctors and nurse practi-
ration may provide coverage as authorized in this sec-         tioners engaging in one or more of the following prac-
tion on such terms and conditions as the State Accident        tices:
Insurance Fund Corporation determines to be reason-                 (i) Family practice without obstetrics.
able, subject to the requirements and other terms of the
plan approved under section 2, chapter 781, Oregon                  (ii) General practice.
Laws 2003.                                                          (iii) Internal medicine.
      (b) Notwithstanding paragraph (a) of this subsec-             (iv) Geriatrics.
tion, the State Accident Insurance Fund Corporation
must make all reasonable efforts consistent with the                (v) Pulmonary medicine.
goals of sections 1 to 7, 10 to 12 and 14, chapter 781,             (vi) Pediatrics.
Oregon Laws 2003, to transfer any assumed reinsurance               (vii) General surgery.
liability.
      (5) The State Accident Insurance Fund Corporation             (viii) Anesthesiology; and
is not required to provide coverage for risks under this            (D) Up to the following percentages for doctors and
section that exceeds the amount the director is author-        nurse practitioners other than those included in sub-
ized to credit against assessments in section 7, chapter       paragraph (A), (B) or (C) of this paragraph:
781, Oregon Laws 2003, but the State Accident Insurance             (i) 35 percent, for calendar year 2008.
Fund Corporation is liable for all risks that it covers
under this section.                                                 (ii) 25 percent, for calendar year 2009.
      (6) As used in this section:                                  (iii) 15 percent, for calendar year 2010.
      (a) “Medicaid” means medical assistance provided              (iv) 15 percent, for calendar year 2011.
under 42 U.S.C. 1396a, section 1902 of the Social Secu-             (b) Notwithstanding section 1 (1)(a), chapter 781,
rity Act.                                                      Oregon Laws 2003, a doctor who meets all the criteria
      (b) “Medicare” means the “Health Insurance for the       for eligibility for a reduction in premiums established
Aged Act,” Title XVIII of the Social Security Amend-           in section 1 (1)(b), (c) and (d), chapter 781, Oregon Laws
ments of 1965. [2003 c.781 §1; 2007 c.574 §1]                  2003, who has a rural practice that meets the criteria
                                                               established by the Office of Rural Health that applied
      Sec. 2. (1) The State Accident Insurance Fund            as of January 1, 2004, for the purposes of ORS 315.613,
Corporation shall submit to the Director of the Depart-        and is located in an urbanized area of Jackson County,
ment of Consumer and Business Services and to the              as defined by the United States Census Bureau accord-
Office of Rural Health a plan for carrying out the pro-        ing to the most recent federal decennial census taken
visions of section 1, chapter 781, Oregon Laws 2003. The       pursuant to the authority of the United States Depart-
director and the office shall approve the plan following       ment of Commerce under 13 U.S.C. 141(a), and who
a determination that the plan:                                 specializes in obstetrics is eligible for a reduction in
      (a) Satisfies the purposes of sections 1 to 7, chapter   premiums as provided in paragraph (a)(A) of this sub-
781, Oregon Laws 2003.                                         section, and a doctor who specializes in family practice
      (b) Obligates the State Accident Insurance Fund          and provides obstetrical services, or in general practice
Corporation to carry out the reinsurance program es-           and provides obstetrical services, or a nurse practi-
tablished under section 1, chapter 781, Oregon Laws            tioner who is certified in obstetrical care, is eligible for
2003, by any appropriate coverage, which may consist           a reduction in premiums as provided in paragraph
of financial reinsurance, on an insurer-to-insurer basis.      (a)(B) of this subsection.
      (c) Provides administrative management for the re-            (c) If the funds available to provide premium re-
insurance program.                                             ductions are insufficient to provide the maximum re-
                                                               duction, the plan shall provide for lowering or
      (d) Is financially sound.                                eliminating the amount provided for premium re-
      (e) Facilitates payments from the Rural Medical          ductions for the doctors and nurse practitioners eligible
Liability Reinsurance Fund established by section 5,           for a reduction in premiums under paragraph (a)(D) of
chapter 781, Oregon Laws 2003, and is otherwise fair           this subsection. If, after eliminating all premium re-

                                                           114
                                        WORKERS′ COMPENSATION                                                       656.780

ductions for the doctors and nurse practitioners eligible             (3) All moneys received by the State Accident In-
for a reduction in premiums under paragraph (a)(D) of            surance Fund Corporation for payment to the Rural
this subsection, the remaining funds are insufficient to         Medical Liability Reinsurance Fund shall be deposited
provide the maximum reductions provided under the                to and shall become part of the Rural Medical Liability
plan, the amounts provided for a reduction in premiums           Reinsurance Fund.
for doctors and nurse practitioners eligible under para-              (4) All payments authorized to be made by the
graph (a)(C) of this subsection shall be lowered or              State Accident Insurance Fund Corporation for cover-
eliminated.                                                      age under the reinsurance program established under
     (d) Premium reductions shall be a percentage of the         section 1 of this 2003 Act shall be made from the Rural
actual premium charged for medical professional liabil-          Medical Liability Reinsurance Fund.
ity insurance in the market of authorized insurers for                (5) Any excess or residual moneys remaining in the
limits purchased of up to $1 million per occurrence and          Rural Medical Liability Reinsurance Fund after the
$3 million annual aggregate. However, the premium re-            State Accident Insurance Fund Corporation has made
duction for a doctor or nurse practitioner referred to in        all payments for which the corporation is obligated un-
paragraph (a)(C) or (D) of this subsection shall be the          der section 1 of this 2003 Act, other than moneys that
lesser of the percentage of the actual premium or the            are owed to the State Accident Insurance Fund Corpo-
premium paid by the doctor or nurse practitioner for             ration, shall be transferred to the Consumer and Busi-
calendar year 2007. For a doctor or nurse practitioner           ness Services Fund. [2003 c.781 §5]
who first becomes eligible for the program on or after
January 1, 2008, the premium reduction shall be the                   Sec. 6. (1) If an insurer obtains coverage with the
lesser of the percentage of either the actual premium            State Accident Insurance Fund Corporation for medical
or the premium for the first eligibility year determined         professional liability insurance issued by the insurer to
according to 2007-based rates. When determining the              a doctor or nurse practitioner to whom section 1, chap-
lesser amount under this paragraph, any step increases           ter 781, Oregon Laws 2003, applies, the insurer shall
in the premium owing to the claims-made nature of the            reduce the premium charged to the doctor or nurse
policy may not be considered.                                    practitioner in a manner that fully recognizes savings
                                                                 made available by coverage offered under section 1,
     (e) Premium reductions shall be effective beginning         chapter 781, Oregon Laws 2003.
with the first premium payment in each calendar year
under the reinsurance program.                                        (2) An insurer to which subsection (1) of this sec-
                                                                 tion applies shall demonstrate the difference in its rates
     (3) The plan adopted under this section may not             for medical professional liability insurance for purposes
obligate the State Accident Insurance Fund Corporation           of subsection (1) of this section in its filing of rates with
to provide coverage under section 1, chapter 781, Ore-           the Director of the Department of Consumer and Busi-
gon Laws 2003, at a cost to the State Accident Insurance         ness Services. [2003 c.781 §6; 2007 c.574 §2a]
Fund Corporation that exceeds an average of $5 million
for each policy year for which the coverage is provided.              Sec. 7. (1) When the State Accident Insurance
The cost to the State Accident Insurance Fund Corpo-             Fund Corporation provides coverage through the rein-
ration shall be the actuarially determined costs of the          surance program established under section 1, chapter
reinsurance program. [2003 c.781 §2; 2007 c.574 §2]              781, Oregon Laws 2003, the Director of the Department
                                                                 of Consumer and Business Services shall credit the
     Sec. 3. (1) For the purposes of the reinsurance             purchase price or the amount of the payment, net of any
program for medical professional liability insurance es-         income, to the annual assessment owing by the State
tablished under section 1 of this 2003 Act, the State            Accident Insurance Fund Corporation to the Department
Accident Insurance Fund Corporation is subject as a              of Consumer and Business Services under ORS 656.612.
domestic insurer to ORS 731.248, 731.252, 731.256, 731.258,      The amount the director credits under this subsection
731.260, 731.296 to 731.316, 731.488, 731.574, 731.592,          may not exceed an average of $5 million for each policy
731.594, 731.730, 731.731, 731.735, 731.737, 731.988, 731.992,   year for which coverage is provided under section 1,
733.010 to 733.060, 733.140 to 733.170 and 733.210. The          chapter 781, Oregon Laws 2003.
requirements of the Director of the Department of Con-
sumer and Business Services under ORS 733.010 to                      (2) The director shall establish by rule the ac-
733.060, 733.140 to 733.170 and 733.210 govern in the case       counting procedures and requirements by which the
of a conflict between those requirements and the re-             credit is determined for the assessment under ORS
quirements of any accounting system prescribed by the            656.612. [2003 c.781 §7; 2007 c.574 §3]
Oregon Department of Administrative Services.                         Sec. 8. Notwithstanding ORS 656.632 and 656.634,
     (2) The State Accident Insurance Fund Corporation           the State Accident Insurance Fund Corporation may
is an authorized assuming insurer with respect to rein-          transfer funds from the Industrial Accident Fund to the
surance for medical professional liability insurance for         Rural Medical Liability Reinsurance Fund for the pur-
the purposes of ORS 731.509. [2003 c.781 §3]                     poses of sections 1 to 7 and 10 to 12 of this 2003 Act
                                                                 and the amendments to ORS 656.632 by section 9 of this
     Sec. 4. In addition to the purposes and functions           2003 Act. [2003 c.781 §8]
for which the State Accident Insurance Fund Corpo-
ration is created under ORS 656.752, the State Accident               Sec. 10. (1) There is created the Professional Panel
Insurance Fund Corporation is also created for the               for Analysis of Medical Professional Liability Insurance
purpose of carrying out the reinsurance program for              consisting of six members appointed as follows:
medical professional liability insurance established un-              (a) The President of the Senate shall appoint two
der section 1 of this 2003 Act. [2003 c.781 §4]                  members, one of whom must have professional expertise
     Sec. 5. (1) The Rural Medical Liability Reinsur-            in gathering, evaluating or applying research data.
ance Fund is established separate and distinct from the               (b) The Speaker of the House of Representatives
General Fund and shall be held by the State Treasurer.           shall appoint two members, one of whom must have
The Rural Medical Liability Reinsurance Fund is es-              professional expertise in gathering, evaluating or ap-
tablished for the purpose of providing coverage under            plying research data.
the reinsurance program established under section 1 of
this 2003 Act. Interest earned by the Rural Medical Li-               (c) The Governor shall appoint two members, one
ability Reinsurance Fund shall be credited to the fund.          of whom must have professional expertise in gathering,
                                                                 evaluating or applying research data.
     (2) The State Accident Insurance Fund Corporation
shall provide the resources necessary to support and                  (2) Members of the panel may not have a financial
fund coverage provided by the corporation as author-             or professional affiliation with:
ized under section 1 of this 2003 Act.                                (a) Medical care providers;

                                                             115
656.780                               LABOR AND EMPLOYMENT

     (b) Insurers providing professional liability insur-   average amount that may be credited to the State Ac-
ance; or                                                    cident Insurance Fund Corporation for one year under
     (c) Personal injury litigation.                        section 7 of this 2003 Act. [2003 c.781 §11]
     (3) The panel shall:                                         Sec. 14. (1) The State Accident Insurance Fund
                                                            Corporation shall continue paying reinsurance claims
     (a) Advise the State Accident Insurance Fund Cor-      incurred or made prior to January 1, 2012, from the
poration in its selection of the consulting firm required   Rural Medical Liability Reinsurance Fund until the
under section 11 of this 2003 Act;                          State Accident Insurance Fund Corporation has extin-
     (b) Establish a work plan to be carried out by the     guished its liabilities for reinsurance issued under sec-
consulting firm;                                            tion 1, chapter 781, Oregon Laws 2003, by payment of
                                                            claims or by purchase of reinsurance. Purchase of rein-
     (c) Review and approve the work product of the         surance under this subsection shall be subject to ap-
consulting firm; and                                        proval by the Director of the Department of Consumer
     (d) Evaluate the data reported by the consulting       and Business Services.
firm and make findings incorporating the data. The                (2) Sections 1 to 8 and 10 to 12, chapter 781, Oregon
findings shall be included in the report required under     Laws 2003, are repealed January 2, 2014.
subsection (10) of this section.
                                                                  (3) The amendments to ORS 656.632 by section 13,
     (4) The panel is subject to the provisions of ORS      chapter 781, Oregon Laws 2003, become operative Janu-
171.605 to 171.635.                                         ary 2, 2014. [2003 c.781 §14; 2007 c.574 §4]
     (5) The panel shall use the services of permanent            Sec. 15. (1) The Director of the Department of
legislative staff to the greatest extent practicable.       Consumer and Business Services shall report in the
     (6) All agencies of state government, as defined in    manner provided by ORS 192.245 to the Seventy-fourth
ORS 174.111, are directed to assist the panel in the per-   and Seventy-fifth Legislative Assemblies on the per-
formance of its duties and, to the extent permitted by      formance of the program established under section 1,
laws relating to confidentiality, to furnish such infor-    chapter 781, Oregon Laws 2003.
mation and advice as the members of the panel consider            (2) The State Accident Insurance Fund Corporation
necessary to perform their duties.                          shall provide all data and other information required
     (7) A majority of the members of the panel consti-     by the director to prepare the reports required under
tutes a quorum for the transaction of business.             this section. [2003 c.781 §15; 2007 c.574 §5]
     (8) Official action by the panel requires the ap-            Note: Sections 6 and 7, chapter 574, Oregon Laws
proval of a majority of the members of the panel.           2007, provide:
     (9) The panel shall elect one of its members to              Sec. 6. (1)(a) The State Accident Insurance Fund
serve as chairperson.                                       Corporation shall submit any proposed modifications to
     (10) The panel shall submit a report to the Gover-     the plan required under section 2, chapter 781, Oregon
nor and to the Legislative Assembly in the manner           Laws 2003, to the Director of the Department of Con-
provided by ORS 192.245, no later than December 15,         sumer and Business Services and to the Office of Rural
2004.                                                       Health not later than September 30, 2007.
     (11) Members of the panel who are not members of             (b) The director and the office shall approve, dis-
the Legislative Assembly are not entitled to compensa-      approve or require changes to the plan or to the pro-
tion, but may be reimbursed for actual and necessary        posed modifications to the plan as promptly as
travel and other expenses incurred by them in the per-      reasonably possible in order to enable the State Acci-
formance of their official duties, in the manner and        dent Insurance Fund Corporation to have the modified
amounts provided for in ORS 292.495. Claims for ex-         plan operational by January 1, 2008. The modified plan
penses shall be paid out of funds in the Rural Medical      may be implemented only after the joint approval by the
Liability Reinsurance Fund established under section 5      director and the office.
of this 2003 Act.                                                 (2) The plan modified under subsection (1) of this
     (12) The panel may seek public and private funds       section must provide that a doctor or nurse practitioner
to assist in the work of the panel. [2003 c.781 §10]        whose coverage is provided through a health care fa-
                                                            cility as defined in ORS 442.400, and who otherwise
     Sec. 11. (1) The State Accident Insurance Fund         meets the requirements of section 1 (1), chapter 781,
Corporation shall select a consulting firm to perform       Oregon Laws 2003, is eligible to participate in the pro-
services required under this section. The firm selected     gram beginning January 1, 2008, if the office determines
must be a regional or national consulting firm with at      that the doctor or nurse practitioner, as of the later of
least 10 accredited casualty actuaries on staff and must    January 1, 2007, or the date on which the doctor or
possess demonstrated accounting, financial and research     nurse practitioner first commences a rural practice:
capabilities. The firm must also have experience in the
casualty insurance industry and particularly in the field         (a) Is not an employee of the health care facility;
of medical professional liability insurance.                      (b) Is covered by a medical professional liability
     (2) Under the direction of the Professional Panel      insurance policy that names the doctor or nurse practi-
for Analysis of Medical Professional Liability Insurance    tioner and separately calculates the premium for the
created under section 10 of this 2003 Act, the consulting   doctor or nurse practitioner; and
firm shall gather, analyze and evaluate data on the               (c) Fully reimburses the health care facility for the
availability, costs and transaction of medical profes-      premium calculated for the doctor or nurse practitioner.
sional liability insurance that consider Oregon market      [2007 c.574 §6]
trends on premiums and losses, other factors affecting            Sec. 7. Notwithstanding section 1 (1)(a), chapter
the competitiveness of the Oregon market and regula-        781, Oregon Laws 2003, for the purpose of establishing
tory options for minimizing cyclical trends.                eligibility of doctors of medicine and doctors of
     (3) The costs of the services of the consulting firm   osteopathy for participation in the reinsurance program
selected under subsection (1) of this section shall be      for medical professional liability insurance policies es-
paid by the State Accident Insurance Fund Corporation       tablished by section 1, chapter 781, Oregon Laws 2003,
from the amount available for credit to the annual as-      for calendar year 2007, a rural practice is defined as a
sessment owing by the State Accident Insurance Fund         practice that meets the criteria established by the Office
Corporation under section 7 of this 2003 Act. The cost      of Rural Health that applied as of January 1, 2004. [2007
of services may not exceed two percent of the maximum       c.574 §7]

                                                        116
                                 WORKERS′ COMPENSATION                                                656.797

           (Advisory Committees)                      1977 c.804 §32; 1990 c.2 §41; 1995 c.332 §55b; 1995 c.641
                                                      §25; 2007 c.274 §7]
    656.790      Workers’      Compensation                Note: See notes under 656.202.
Management-Labor Advisory Committee;                       656.792 [1965 c.285 §29; 1969 c.314 §69; repealed by
membership; duties; expenses. (1) The                 1969 c.448 §3]
Governor shall appoint a Workers’ Compen-
sation Management-Labor Advisory Commit-                  656.794 Advisory committee on med-
tee composed of 10 appointed members. Five            ical care; rules. There shall be created an
members from organized labor shall repre-             advisory committee on medical care. This
sent subject workers and five members shall           committee shall consist of members ap-
represent subject employers. In addition to           pointed by and serving at the pleasure of the
the appointed members, the Director of the            Director of the Department of Consumer and
Department of Consumer and Business Ser-              Business Services to advise the director on
vices shall serve ex officio as a member of           matters relating to the provision of medical
the committee. The appointment of members             care to workers. The director by rule shall
of the committee is subject to confirmation           determine the composition of the committee.
by the Senate in the manner prescribed in             Membership of the committee shall include
ORS 171.562 and 171.565.                              representatives of the types of health care
                                                      providers that are most representative of
    (2) The director may recommend areas of           health care providers providing medical care
the law which the director desires to have            services to injured workers. The committee
studied or the committee may study such as-           shall also include one representative of in-
pects of the law as the committee shall de-           surers, one representative of employers, one
termine require their consideration. The              representative of workers, one representative
committee shall biennially review the stan-           of managed care organizations and other
dards for evaluation of permanent disability          persons as the director may determine are
adopted under ORS 656.726 and shall recom-            necessary to carry out the purpose of the
mend to the director factors to be included           committee. Members of the committee shall
or such other modification of application of          be paid travel and other necessary expenses
the standards as the committee considers ap-          for service as a member. Such payments shall
propriate. The committee shall biennially re-         be made from the Consumer and Business
view and make recommendations about                   Services Fund. [1965 c.285 §27; 1981 c.535 §46; 1981
permanent partial disability benefits. The            c.854 §54; 1987 c.884 §26; 1999 c.879 §1]
committee shall advise the director regarding
any proposed changes in the operation of              INFORMATIONAL MATERIALS ABOUT
programs funded by the Workers’ Benefit                 WORKERS’ COMPENSATION SYSTEM
Fund. The committee shall report its findings
to the director for such action as the direc-             656.795 Informational materials for
tor deems appropriate.                                nurse practitioners. The Director of the
    (3) The committee shall report to the             Department of Consumer and Business Ser-
Legislative Assembly such findings and rec-           vices shall develop and make available to
ommendations as the committee considers               nurse practitioners informational materials
appropriate, including a report on the fol-           about the workers’ compensation system, in-
lowing matters:                                       cluding, but not limited to, the management
                                                      of indemnity claims, standards for authori-
    (a) Decisions of the Supreme Court and            zation of temporary disability benefits, return
Court of Appeals that have significant im-            to work responsibilities and programs, and
pact on the workers’ compensation system.             general workers’ compensation rules and
    (b) Adequacy of workers’ compensation             procedures for medical service providers.
benefits.                                             [2003 c.811 §29]
                                                            Note: 656.795 to 656.798 were enacted into law by
    (c) Medical and legal system costs.               the Legislative Assembly but were not added to or made
    (d) Adequacy of assessments for reserve           a part of ORS chapter 656 or any series therein by leg-
                                                      islative action. See Preface to Oregon Revised Statutes
programs and administrative costs.                    for further explanation.
    (e) The operation of programs funded by                 656.796 [1981 c.535 §50; repealed by 1997 c.82 §11]
the Workers’ Benefit Fund.
                                                          656.797 Certification by nurse practi-
    (4) The members of the committee shall            tioner of review of required materials. On
be appointed for a term of two years and              or after October 1, 2004, a nurse practitioner
shall serve without compensation, but shall           licensed under ORS 678.375 to 678.390, prior
be entitled to travel expenses. The committee         to providing compensable medical services or
may hire, subject to approval of the director,        authorizing temporary disability benefits un-
such experts as it may require to discharge           der ORS 656.245, must certify in a form ac-
its duties. All expenses of the committee             ceptable to the Director of the Department
shall be paid out of the Consumer and Busi-           of Consumer and Business Services that the
ness Services Fund. [1969 c.448 §2; 1975 c.556 §49;   nurse practitioner has reviewed the materi-

                                                  117
656.798                                LABOR AND EMPLOYMENT

als developed under ORS 656.795.          [2003 c.811       (d) Doctor of naturopathy or naturo-
§30]                                                    pathic physician licensed by the Oregon
       Note: See note under 656.795.                    Board of Naturopathic Medicine under ORS
                                                        chapter 685 or a similarly licensed doctor or
    656.798 Duty of insurer, self-insured               physician in any country or in any state,
employer and self-insured employer                      territory or possession of the United States.
group to provide information to director.               [2007 c.252 §7; 2009 c.43 §8]
Every workers’ compensation insurer, self-
insured employer and self-insured employer
group shall provide to the Director of the                    OCCUPATIONAL DISEASE LAW
Department of Consumer and Business Ser-                     656.802 Occupational disease; mental
vices all information requested by the direc-           disorder; proof. (1)(a) As used in this chap-
tor for the purpose of assessing the impact             ter, “occupational disease” means any dis-
of ORS 656.795 and 656.797 and the amend-               ease or infection arising out of and in the
ments to ORS 656.005, 656.245, 656.250,                 course of employment caused by substances
656.252, 656.262, 656.268, 656.325, 656.340,            or activities to which an employee is not or-
656.726, 657.170, 659A.043, 659A.046, 659A.049          dinarily subjected or exposed other than
and 659A.063 by sections 1, 3, 5, 7, 9, 11, 13,         during a period of regular actual employment
15, 17, 19, 21, 23, 25 and 27, chapter 811, Or-         therein, and which requires medical services
egon Laws 2003. [2003 c.811 §31]                        or results in disability or death, including:
       Note: See note under 656.795.                         (A) Any disease or infection caused by
     656.799 Informational materials for                ingestion of, absorption of, inhalation of or
other health care professionals; certifica-             contact with dust, fumes, vapors, gases, radi-
tion of review of materials. (1) The Direc-             ation or other substances.
tor of the Department of Consumer and                        (B) Any mental disorder, whether sudden
Business Services shall develop and make                or gradual in onset, which requires medical
available to medical service providers infor-           services or results in physical or mental dis-
mational materials about the workers’ com-              ability or death.
pensation system including, but not limited                  (C) Any series of traumatic events or oc-
to, the management of indemnity claims,                 currences which requires medical services or
standards for the authorization of temporary            results in physical disability or death.
disability benefits, return to work responsi-
bilities and programs, and workers’ compen-                  (b) As used in this chapter, “mental dis-
sation rules and procedures for medical                 order” includes any physical disorder caused
service providers.                                      or worsened by mental stress.
     (2) Prior to providing compensable med-                 (2)(a) The worker must prove that em-
ical services or authorizing temporary disa-            ployment conditions were the major contrib-
bility benefits under ORS 656.245, a medical            uting cause of the disease.
service provider must certify, in a form ac-                 (b) If the occupational disease claim is
ceptable to the director, that the medical              based on the worsening of a preexisting dis-
service provider has reviewed the materials             ease or condition pursuant to ORS 656.005
developed under this section.                           (7), the worker must prove that employment
     (3) As used in this section, “medical ser-         conditions were the major contributing cause
vice provider” means a:                                 of the combined condition and pathological
                                                        worsening of the disease.
     (a) Doctor or physician licensed by the
State Board of Chiropractic Examiners for                    (c) Occupational diseases shall be subject
the State of Oregon under ORS chapter 684               to all of the same limitations and exclusions
or a similarly licensed doctor or physician in          as accidental injuries under ORS 656.005 (7).
any country or in any state, territory or                    (d) Existence of an occupational disease
possession of the United States;                        or worsening of a preexisting disease must
     (b) Podiatric physician and surgeon li-            be established by medical evidence supported
censed by the Oregon Medical Board under                by objective findings.
ORS 677.805 to 677.840 or a similarly li-                    (e) Preexisting conditions shall be
censed doctor or physician in any country or            deemed causes in determining major contrib-
in any state, territory or possession of the            uting cause under this section.
United States;                                               (3) Notwithstanding any other provision
     (c) Physician assistant licensed by the            of this chapter, a mental disorder is not
Oregon Medical Board in accordance with                 compensable under this chapter unless the
ORS 677.505 to 677.525 or a similarly li-               worker establishes all of the following:
censed physician assistant in any country or                 (a) The employment conditions producing
in any state, territory or possession of the            the mental disorder exist in a real and ob-
United States; or                                       jective sense.

                                                    118
                               WORKERS′ COMPENSATION                                                656.804

    (b) The employment conditions producing        tributed to in material part by the
the mental disorder are conditions other           firefighter’s employment.
than conditions generally inherent in every             (c) Notwithstanding paragraph (b) of this
working situation or reasonable disciplinary,      subsection, the presumption established un-
corrective or job performance evaluation ac-       der paragraph (b) of this subsection may be
tions by the employer, or cessation of em-         rebutted by clear and convincing evidence
ployment or employment decisions attendant         that the use of tobacco by the nonvolunteer
upon ordinary business or financial cycles.        firefighter is the major contributing cause of
    (c) There is a diagnosis of a mental or        the cancer.
emotional disorder which is generally recog-            (d) The presumption established under
nized in the medical or psychological com-         paragraph (b) of this subsection does not ap-
munity.                                            ply to prostate cancer if the cancer is first
    (d) There is clear and convincing evi-         diagnosed by a physician after the firefighter
dence that the mental disorder arose out of        has reached the age of 55. However, nothing
and in the course of employment.                   in this paragraph affects the right of a fire-
    (4) Death, disability or impairment of         fighter to establish the compensability of
health of firefighters of any political division   prostate cancer without benefit of the pre-
who have completed five or more years of           sumption.
employment as firefighters, caused by any               (e) The presumption established under
disease of the lungs or respiratory tract,         paragraph (b) of this subsection does not ap-
hypertension or cardiovascular-renal disease,      ply to claims filed more than 84 months fol-
and resulting from their employment as fire-       lowing the termination of the nonvolunteer
fighters is an “occupational disease.” Any         firefighter’s employment as a nonvolunteer
condition or impairment of health arising          firefighter. However, nothing in this para-
under this subsection shall be presumed to         graph affects the right of a firefighter to es-
result from a firefighter’s employment. How-       tablish the compensability of the cancer
ever, any such firefighter must have taken a       without benefit of the presumption.
physical examination upon becoming a fire-              (f) The presumption established under
fighter, or subsequently thereto, which failed     paragraph (b) of this subsection does not ap-
to reveal any evidence of such condition or        ply to volunteer firefighters.
impairment of health which preexisted em-
ployment. Denial of a claim for any condi-              (g) Nothing in this subsection affects the
tion or impairment of health arising under         provisions of subsection (4) of this section.
this subsection must be on the basis of clear           (h) For purposes of this subsection,
and convincing medical evidence that the           “nonvolunteer firefighter” means a fire-
cause of the condition or impairment is un-        fighter who performs firefighting services
related to the firefighter’s employment.           and receives salary, hourly wages equal to
    (5)(a) Death, disability or impairment of      or greater than the state minimum wage, or
health of a nonvolunteer firefighter employed      other compensation except for room, board,
by a political division or subdivision who has     lodging, housing, meals, stipends, reimburse-
completed five or more years of employment         ment for expenses or nominal payments for
as a nonvolunteer firefighter is an occupa-        time and travel, regardless of whether any
tional disease if the death, disability or im-     such compensation is subject to federal, state
pairment of health:                                or local taxation. “Nominal payments for
    (A) Is caused by brain cancer, colon can-      time and travel” includes, but is not limited
cer, stomach cancer, testicular cancer, pro-       to, payments for on-call time or time spent
state      cancer,      multiple      myeloma,     responding to a call or similar noncash ben-
non-Hodgkin’s lymphoma, cancer of the              efits.
throat or mouth, rectal cancer, breast cancer           (6) Notwithstanding ORS 656.027 (6), any
or leukemia;                                       city providing a disability and retirement
    (B) Results from the firefighter’s employ-     system by ordinance or charter for firefight-
ment as a nonvolunteer firefighter; and            ers and police officers not subject to this
                                                   chapter shall apply the presumptions estab-
    (C) Is first diagnosed by a physician after    lished under subsection (5) of this section
July 1, 2009.                                      when processing claims for firefighters cov-
    (b) Any condition or impairment of             ered by the system. [Amended by 1959 c.351 §1;
health arising under this subsection is pre-       1961 c.583 §1; 1973 c.543 §1; 1977 c.734 §1; 1983 c.236 §1;
                                                   1987 c.713 §4; 1990 c.2 §43; 1995 c.332 §56; 2009 c.24 §1]
sumed to result from the firefighter’s em-
ployment. Denial of a claim for any condition          656.804 Occupational disease as an in-
or impairment of health arising under this         jury under Workers’ Compensation Law.
subsection must be on the basis of clear and       Subject to ORS 656.005 (24) and 656.266 (2),
convincing medical evidence that the condi-        an occupational disease, as defined in ORS
tion or impairment was not caused or con-          656.802, is considered an injury for employees

                                               119
656.807                               LABOR AND EMPLOYMENT

of employers who have come under this                        such as to cover employee absences, em-
chapter, except as otherwise provided in ORS                 ployee leaves, professional skill shortages,
656.802 to 656.807. [Amended by 1965 c.285 §87; 1973         seasonal workloads and special assignments
c.543 §2; 2001 c.865 §4]                                     and projects with the expectation that the
     Note: See notes under 656.202.                          position or positions will be terminated upon
     656.806 [Repealed by 2005 c.221 §4]                     completion of the special situation. Workers
     656.807 Time for filing of claims for                   also are provided on a temporary basis if
occupational disease; procedure. (1) All                     they are provided as probationary new hires
occupational disease claims shall be void un-                with a reasonable expectation of transition-
less a claim is filed with the insurer or self-              ing to permanent employment with the client
insured employer by whichever is the later                   and the client uses a preestablished proba-
of the following dates:                                      tionary period in its overall employment se-
                                                             lection program.
     (a) One year from the date the worker
first discovered, or in the exercise of reason-                   (c) “Temporary service provider” means
able care should have discovered, the occu-                  a person who provides workers, by contract
pational disease; or                                         and for a fee, to a client on a temporary ba-
                                                             sis.
     (b) One year from the date the claimant
becomes disabled or is informed by a physi-                       (2) No person shall perform services as a
cian that the claimant is suffering from an                  worker leasing company in this state without
occupational disease.                                        first having obtained a license therefor from
                                                             the Director of the Department of Consumer
     (2) If the occupational disease results in              and Business Services. No person required
death, a claim may be filed within one year                  by this section to obtain a license shall fail
from the date that the worker’s beneficiary                  to comply with this section or ORS 656.855,
first discovered, or in the exercise of reason-              or any rule adopted pursuant thereto.
able care should have discovered, that the
cause of the worker’s death was due to an                         (3) When a worker leasing company pro-
occupational disease.                                        vides workers to a client, the worker leasing
                                                             company shall satisfy the requirements of
     (3) The procedure for processing occupa-                ORS 656.017 and 656.407 and provide
tional disease claims shall be the same as                   workers’ compensation coverage for those
provided for accidental injuries under this                  workers and any subject workers employed
chapter. [Amended by 1953 c.440 §2; 1959 c.351 §2; 1965      by the client unless during the term of the
c.285 §87a; 1973 c.543 §3; 1981 c.535 §47; 1981 c.854 §55;
1985 c.212 §10; 1987 c.713 §6]                               lease arrangement the client has proof of
     656.808 [Amended by 1957 c.559 §2; 1965 c.285 §88;
                                                             coverage on file with the director that ex-
repealed by 1973 c.543 §4]                                   tends coverage to subject workers employed
     656.810 [Amended by 1959 c.351 §3; 1965 c.285 §89;
                                                             by the client and any workers leased by the
repealed by 1973 c.543 §4]                                   client. If the client allows the coverage to
     656.812 [Amended by 1959 c.351 §4; repealed by 1973     expire and continues to employ subject
c.543 §4]                                                    workers or has leased workers, the client
     656.814 [Amended by 1965 c.285 §90; repealed by         shall be considered a noncomplying employer
1973 c.543 §4]                                               unless the worker leasing company has com-
     656.816 [Amended by 1959 c.351 §5; 1965 c.285 §91;      plied with subsection (5) of this section.
repealed by 1973 c.543 §4]                                        (4) When a worker leasing company pro-
     656.818 [Amended by 1959 c.351 §6; 1965 c.285 §92;      vides workers for a client, the worker leasing
repealed by 1973 c.543 §4]                                   company shall assure that the client provides
     656.820 [Repealed by 1973 c.543 §4]                     adequate training, supervision and instruc-
     656.822 [Amended by 1965 c.285 §92a; repealed by        tion for those workers to meet the require-
1973 c.543 §4]                                               ments of ORS chapter 654.
     656.824 [Repealed by 1981 c.854 §1]                          (5) When a worker leasing company pro-
                                                             vides subject workers to work for a client
    WORKER LEASING COMPANIES                                 and also provides workers’ compensation
    656.850 License; compliance with                         coverage for those workers, the worker leas-
workers’ compensation and safety laws.                       ing company shall notify the director in
(1) As used in this section and ORS 656.018,                 writing. The notification shall be given in
656.403, 656.855 and 737.270:                                such manner as the director may prescribe.
                                                             A worker leasing company may terminate its
    (a) “Worker leasing company” means a                     obligation to provide workers’ compensation
person who provides workers, by contract                     coverage for workers provided to a client by
and for a fee, to work for a client but does                 giving to the client and the director written
not include a person who provides workers                    notice of the termination. A notice of termi-
to a client on a temporary basis.                            nation shall state the effective date and hour
    (b) “Temporary basis” means providing                    of the termination, but the termination shall
workers to a client for special situations                   be effective not less than 30 days after the

                                                         120
                                 WORKERS′ COMPENSATION                                              656.990

notice is received by the director. Notice to        resentation to the Workers’ Compensation
the client under this section shall be given         Board or its employees, the Workers’ Com-
by mail, addressed to the client at the              pensation Board chairperson, the Director of
client’s last-known address. If the client is a      the Department of Consumer and Business
partnership, notice may be given to any of           Services or employees of the director, the
the partners. If the client is a corporation,        insurer or self-insured employer for the pur-
notice may be given to any agent or officer          pose of obtaining any benefit or payment un-
of the corporation upon whom legal process           der this chapter, either for self or any other
may be served. [1993 c.628 §2; 1997 c.491 §4; 2007   person, or who knowingly misrepresents to
c.241 §20]
                                                     the board, the board chairperson, the direc-
    656.855 Licensing system for worker              tor or the corporation or any of their repre-
leasing companies; rules; dedication of              sentatives the amount of a payroll, or who
moneys received. (1) In accordance with              knowingly submits a false payroll report to
any applicable provision of ORS chapter 183,         the board, the board chairperson, the direc-
the Director of the Department of Consumer           tor or the corporation, is punishable, upon
and Business Services, by rule, shall estab-         conviction, by imprisonment for a term of
lish a licensing system for worker leasing           not more than one year or by a fine of not
companies. Such system shall include, but            more than $1,000, or by both.
not be limited to:
                                                         (2) Violation of ORS 656.052 is a Class D
    (a) Prescribing the form and content of          violation. Each day during which an em-
and the times and procedures for submitting          ployer engages in any subject occupation in
applications for license issuance or renewal.        violation of ORS 656.052 constitutes a sepa-
    (b) Prescribing the term of the license          rate offense.
and the fee for original issuance and renewal
of the license. The fees shall be set in an              (3) Violation of ORS 656.056 is a Class D
amount necessary to support the administra-          violation.
tion of this section and ORS 656.850.                    (4) The individual refusing to keep the
    (c) Prescribing those violations of this         payroll in accordance with ORS 656.726 or
section or of ORS 656.850 for which the di-          656.758 when demanded by the director or
rector may refuse to issue or renew or may           corporation, is punishable, upon conviction,
suspend or revoke a license.                         by a fine of not more than $100 or by im-
                                                     prisonment in the county jail for not more
    (d) Prescribing the form and contents of         than 90 days, or by both. Circuit courts and
records a licensee is required to maintain           justice courts shall have concurrent jurisdic-
and specifying the times, places and manner          tion of this offense.
of audit by the director of those records.
                                                         (5) Failure on the part of an employer to
    (2) All moneys received by the director          send the signed payroll statement required
pursuant to this section shall be credited to
the Consumer and Business Services Fund              by ORS 656.504 within 30 days after receipt
and are appropriated continuously to the di-         of notice by the director or corporation is a
rector to carry out the provisions of this           misdemeanor.
section and ORS 656.850. [1993 c.628 §3]                 (6) Violation of ORS 656.560 (4) is a Class
                                                     D violation. [Amended by 1959 c.450 §9; 1965 c.285
              PENALTIES                              §93; 1977 c.804 §33; 1981 c.535 §48; 1981 c.854 §56; 1985
                                                     c.770 §9; 1990 c.2 §44; 1999 c.876 §10; 1999 c.1051 §216]
   656.990 Penalties. (1) Any person who
knowingly makes any false statement or rep-




                                                 121
LABOR AND EMPLOYMENT




        122
                                           Chapter 654
                                              2009 EDITION

                          Occupational Safety and Health

        SAFETY AND HEALTH CONDITIONS                     654.170   Stairway railings and guards not required
            IN PLACES OF EMPLOYMENT                                for certain public and historic buildings
654.001   Short title                                    654.172   Exemption from inspection or investi-
                                                                   gation for certain agricultural activities
654.003   Purpose
                                                         654.174   Sanitation facilities for workers harvest-
654.005   Definitions                                              ing food crops; employer to post notice;
654.010   Employers to furnish safe place of em-                   rules
          ployment
654.015   Unsafe or unhealthy place of employment                WORKPLACE SAFETY COMMITTEES
          prohibited                                     654.176   Safety committee or safety meeting re-
654.020   Interference with safety devices or meth-                quired
          ods prohibited; civil penalty                  654.182   Rules for ORS 654.176; contents
654.022   Duty to comply with safety and health          654.189   Safe Employment Education and Training
          orders, decisions and rules                              Advisory Committee; members; terms; ex-
                                                                   penses; duties; meetings
654.025   Jurisdiction and supervision of Workers’
          Compensation Board, director and other         654.191   Occupational Safety and Health Grant
          state agencies over employment and                       program; rules
          places of employment; rules                    654.192   Labor organization not liable for injury
654.031   Citation and order to correct unsafe or                  resulting from absence of safety or health
          unhealthy conditions                                     provision
654.035   Scope of rules and orders                                  HAZARD COMMUNICATION
654.056   Variance from safety or health standards;                AND HAZARDOUS SUBSTANCES
          effect of variance on citations                654.196   Rules on contents of piping systems;
654.062   Notice of violation to employer by worker;               posting notice on right to be informed of
          complaint by worker to director; inspec-                 hazardous substances; withholding of in-
          tion; protection of complaining employees                formation under certain circumstances
654.067   Inspection of places of employment; de-
          nial of access; warrants; safety and health                    INJURED WORKERS’
          consultation with employees                                 MEMORIAL SCHOLARSHIP
                                                         654.200   Scholarship account; use; standards for
654.071   Citation for safety or health standard vi-               eligibility
          olations; effect of failure to correct vio-
          lation; posting of citations and notices by
          employer                                                           HEALTH AND
                                                                      SANITATION INSPECTIONS
654.078   Contesting violations; hearing; admissibil-    654.202   Issuance of warrants for safety and health
          ity in criminal or civil proceedings of                  inspections
          stipulations involving violations
                                                         654.206   Grounds for issuance of inspection war-
654.082   Prohibiting use of equipment involved in                 rants; requirements of affidavit
          violation; red warning notice
                                                         654.212   Procedure for issuance of inspection war-
654.086   Civil penalty for violations; classification             rant by magistrate
          of violations; payment and disposition of
          penalty moneys                                 654.216   Execution of inspection warrants
654.090   Occupational safety and health activities;     654.251   Assistance to director from other state
          voluntary compliance; rules; consultative                agencies; inspection of farm labor camps
          services                                                 and facilities
654.097   Consultative services required; program        654.285   Admissibility of rules and orders of de-
          standards; rules                                         partment in evidence in proceedings un-
                                                                   der ORS 654.001 to 654.295, 654.412 to 654.423
654.101   Voluntary safety and health consultation;                and 654.750 to 654.780
          refusal to disclose report
                                                         654.290   Applicability of Administrative Procedures
654.120   Records of proceedings; confidentiality of               Act; Administrative Law Judge qualifica-
          certain information; federal reporting re-               tions
          quirements; rules
                                                         654.293   Representation of employer by attorney
654.130   Proceedings against unwilling witnesses                  permitted
654.150   Sanitary facilities at construction proj-      654.295   Application of Oregon Safe Employment
          ects; standards; exemptions                              Act
654.160   Applicability of ORS 654.150 to be included
          in construction contracts; liability for                  EMPLOYER LIABILITY LAW
          cost of compliance                             654.305   Protection and safety of persons in haz-
654.165   Employees not required to work bare-                     ardous employment generally
          handed or rubber-gloved on high voltage        654.310   Places of employment; compliance with
          lines                                                    applicable orders, rules

                                                     123
                                  LABOR AND EMPLOYMENT

654.315   Persons in charge of work to see that        654.421   Refusal to treat certain patients by home
          ORS 654.305 to 654.336 are complied with               health care employee
654.320   Who considered agent of owner                654.423   Use of physical force by home health care
654.325   Who may prosecute damage action for                    employee in self-defense against assault
          death; damages unlimited
                                                                   REPORTS OF ACCIDENTS
654.330   Fellow servant negligence as defense                 TO PUBLIC UTILITY COMMISSION
654.336   Comparative negligence
                                                       654.715  Report of accidents to Public Utility
                                                                Commission; investigation; supplemental
     SAFETY AND HEALTH PROFESSIONALS                            reports; rules
654.400  Use of title of industrial hygienist, occu-   654.720  Public inspection or use of reports as evi-
         pational health and safety technologist,               dence prohibited
         construction health and safety technician
         or safety professional; cause of action
                                                                 HAZARDOUS CHEMICALS USED
654.402  Activities permitted under other desig-                         IN AGRICULTURE
         nation, certification or license
                                                       654.750   Definitions for ORS 654.750 to 654.780
     SAFETY OF HEALTH CARE EMPLOYEES                   654.760   Rules on hazardous chemicals, safety
654.412  Definitions for ORS 654.412 to 654.423                  equipment and training
654.414  Duties of health care employer; security      654.770   Basic information available to agricultural
         and safety assessment; assault prevention               employers for employees; content; lan-
         program; requirements                                   guage
654.416  Required records of assaults against em-      654.780   Providing basic information to employees
         ployees; contents; rules
654.418  Protection of employee of health care                               PENALTIES
         employer after assault by patient             654.991   Penalties




                                                   124
                             OCCUPATIONAL SAFETY AND HEALTH                              654.005

 SAFETY AND HEALTH CONDITIONS                          654.005 Definitions. As used in this
   IN PLACES OF EMPLOYMENT                        chapter, unless the context requires other-
                                                  wise:
    654.001 Short title. ORS 654.001 to
654.295, 654.412 to 654.423, 654.750 to 654.780        (1) “Board” means the Workers’ Compen-
and 654.991 may be cited as the Oregon Safe       sation Board created by ORS 656.712.
Employment Act. [1973 c.833 §2]                        (2) “Department” means the Department
    654.003 Purpose. The purpose of the Or-       of Consumer and Business Services.
egon Safe Employment Act is to assure as far           (3) “Director” means the Director of the
as possible safe and healthful working condi-     Department of Consumer and Business Ser-
tions for every working man and woman in          vices.
Oregon, to preserve our human resources                (4) “Employee” includes:
and to reduce the substantial burden, in               (a) Any individual, including a minor
terms of lost production, wage loss, medical      whether lawfully or unlawfully employed,
expenses, disability compensation payments        who engages to furnish services for a re-
and human suffering, that is created by oc-       muneration, financial or otherwise, subject
cupational injury and disease. To accomplish      to the direction and control of an employer.
this purpose the Legislative Assembly in-
tends to provide a procedure that will:                (b) Salaried, elected and appointed offi-
                                                  cials of the state, state agencies, counties,
    (1) Encourage employers and employees         cities, school districts and other public cor-
to reduce the number of occupational safety       porations.
and health hazards and to institute new pro-
                                                       (c) Any individual who is provided with
grams and improve existing programs for           workers’ compensation coverage as a subject
providing safe and healthful working condi-       worker pursuant to ORS chapter 656,
tions.                                            whether by operation of law or by election.
    (2) Establish a coordinated program of             (5) “Employer” includes:
worker and employer education, health and
safety consultative services, demonstration            (a) Any person who has one or more em-
projects and research to assist workers and       ployees.
their employers in preventing occupational             (b) Any sole proprietor or member of a
injury and disease, whatever the cause.           partnership who elects workers’ compensa-
    (3) Authorize the Director of the Depart-     tion coverage as a subject worker pursuant
                                                  to ORS 656.128.
ment of Consumer and Business Services and
the designees of the director to set reason-           (c) Any successor or assignee of an em-
able, mandatory, occupational safety and          ployer.     As    used in this paragraph,
health standards for all employments and          “successor” means a business or enterprise
places of employment.                             that is substantially the same entity as the
                                                  predecessor employer according to criteria
    (4) Provide an effective program, under       adopted by the department by rule.
the director, to enforce all laws, regulations,        (6) “Owner” means every person having
rules and standards adopted for the pro-          ownership, control or custody of any place
tection of the life, safety and health of em-     of employment or of the construction, repair
ployees, and in so doing, predominantly           or maintenance of any place of employment.
prioritize inspections of places of employ-
                                                       (7) “Person” means one or more individ-
ment to first focus enforcement activities        uals, legal representatives, partnerships,
upon places of employment that the director       joint ventures, associations, corporations
reasonably believes to be the most unsafe.        (whether or not organized for profit), busi-
    (5) Establish appropriate reporting and       ness trusts, any organized group of persons,
research procedures that will help achieve        the state, state agencies, counties, municipal
the objectives of the Oregon Safe Employ-         corporations, school districts and other pub-
ment Act, identify occupational hazards and       lic corporations or subdivisions.
unsafe and unhealthy working conditions,               (8)(a) “Place of employment” includes:
and describe the nature of the occupational            (A) Every place, whether fixed or mova-
safety and health problem.                        ble or moving, whether indoors or out or
    (6) Assure that Oregon assumes fullest        underground, and the premises and struc-
responsibility, in accord with the federal Oc-    tures appurtenant thereto, where either tem-
cupational Safety and Health Act of 1970          porarily or permanently an employee works
(Public Law 91-596), for the development, ad-     or is intended to work; and
ministration and enforcement of safety and             (B) Every place where there is carried on
health laws and standards. [1973 c.833 §3; 1987   any process, operation or activity related, ei-
c.884 §55; 1999 c.1017 §1]                        ther directly or indirectly, to an employer’s

                                              125
654.010                               LABOR AND EMPLOYMENT

industry, trade, business or occupation, in-                    654.022 Duty to comply with safety
cluding a labor camp, wherever located, pro-                and health orders, decisions and rules.
vided by an employer for employees or by                    Every employer, owner, employee and other
another person engaged in providing living                  person shall obey and comply with every re-
quarters or shelters for employees.                         quirement of every order, decision, direction,
                                                            standard, rule or regulation made or pre-
    (b) “Place of employment” does not in-                  scribed by the Department of Consumer and
clude:                                                      Business Services in connection with the
    (A) Any place where the only employ-                    matters specified in ORS 654.001 to 654.295,
ment involves nonsubject workers employed                   654.412 to 654.423 and 654.750 to 654.780, or
in or about a private home; and                             in any way relating to or affecting safety and
    (B) Any corporate farm where the only                   health in employments or places of employ-
                                                            ment, or to protect the life, safety and health
employment involves the farm’s family mem-                  of employees in such employments or places
bers, including parents, spouses, sisters,                  of employment, and shall do everything nec-
brothers, daughters, sons, daughters-in-law,                essary or proper in order to secure compli-
sons-in-law, nieces, nephews or grandchil-                  ance with and observance of every such
dren. [Amended by 1973 c.833 §4; 1975 c.102 §2; 1977        order, decision, direction, standard, rule or
c.804 §34; 1987 c.373 §30; 1993 c.744 §17; 1999 c.433 §1;
2007 c.612 §1]                                              regulation. [Formerly 654.060; 1977 c.804 §35]
    654.010 Employers to furnish safe                           654.025 Jurisdiction and supervision
place of employment. Every employer shall                   of Workers’ Compensation Board, direc-
furnish employment and a place of employ-                   tor and other state agencies over em-
ment which are safe and healthful for em-                   ployment and places of employment;
ployees therein, and shall furnish and use                  rules. (1) The Director of the Department of
                                                            Consumer and Business Services is vested
such devices and safeguards, and shall adopt                with full power and jurisdiction over, and
and use such practices, means, methods, op-                 shall have such supervision of, every em-
erations and processes as are reasonably                    ployment and place of employment in this
necessary to render such employment and                     state as may be necessary to enforce and ad-
place of employment safe and healthful, and                 minister all laws, regulations, rules, stan-
shall do every other thing reasonably neces-                dards and lawful orders requiring such
sary to protect the life, safety and health of              employment and place of employment to be
such employees. [Amended by 1973 c.833 §5]                  safe and healthful, and requiring the pro-
    654.015 Unsafe or unhealthy place of                    tection of the life, safety and health of every
employment prohibited. No employer or                       employee in such employment or place of
owner shall construct or cause to be con-                   employment.
structed or maintained any place of employ-                     (2) The director and the Workers’ Com-
ment that is unsafe or detrimental to health.               pensation Board may make, establish, pro-
[Amended by 1973 c.833 §6]                                  mulgate and enforce all necessary and
    654.020 Interference with safety de-                    reasonable regulations, rules, standards, or-
vices or methods prohibited; civil penalty.                 ders and other provisions for the purpose of
(1) No person shall remove, displace, damage,               carrying out their respective functions under
destroy or carry off any safety device or                   ORS 654.001 to 654.295, 654.412 to 654.423
                                                            and 654.750 to 654.780, notwithstanding any
safeguard furnished and provided for use in                 other statutory provisions which may be to
any employment or place of employment, or                   the contrary. Nothing in ORS 654.001 to
interfere in any way with the use thereof by                654.295, 654.412 to 654.423 and 654.750 to
any other person, or interfere with the use                 654.780, however, shall authorize or require
of any method or process adopted for the                    medical examination, immunization or treat-
protection of any employee in such employ-                  ment for those who object thereto on reli-
ment or place of employment.                                gious grounds, except where such is
    (2) If an employee is injured as a result               necessary to protect the health or safety of
of an employer’s violation of the provisions                others.
of subsection (1) of this section, the employer                 (3)(a) The director may enforce all regu-
shall be assessed a civil penalty under ORS                 lations, rules and standards duly adopted by
654.086 (1)(c).                                             any other state agency for the safety and
    (3) If removal or the rendering inopera-                health of employees.
tive of a safety device or safeguard is neces-                  (b) This grant of concurrent jurisdiction
sary for repair or maintenance work, injuries               and authority to the director shall not be
sustained while the repair or maintenance                   construed, however, as repealing or amend-
work is being performed are exempted from                   ing, or as derogating in any respect from, the
this section. [Amended by 1973 c.833 §7; 1977 c.869         statutory jurisdiction and authority of any
§1]                                                         other state agency to promulgate and enforce

                                                        126
                        OCCUPATIONAL SAFETY AND HEALTH                                           654.035

regulations, rules and standards and to con-           (b) Instituting any legal or equitable pro-
duct inspections and investigations, except       ceeding which would assist in the enforce-
that no other state agency shall issue the        ment of any state occupational safety or
citations or assess the civil penalties pro-      health law or any regulation, rule, standard
vided in ORS 654.001 to 654.295, 654.412 to       or order promulgated thereunder, including
654.423 and 654.750 to 654.780.                   but not limited to seeking injunctive relief to
    (c) In the event a state of facts or condi-   enjoin an employer from operating the place
tion constitutes a violation of more than one     of employment until the employer has com-
rule, regulation, standard or order of the di-    plied with the provisions of such law, regu-
rector or any other agency pertaining to oc-      lation, rule, standard or order. Upon the
cupational safety or health, the state of facts   filing of a suit for an injunction by the di-
or condition shall be the basis for the issu-     rector, the court shall set a day for hearing
ance of only one citation and proceeding or       and shall cause notice thereof to be served
the assessment of only one penalty unless         upon the employer. The hearing shall be not
the statute specifically provides that a con-     less than five nor more than 15 days from
tinuation of a state of facts or a condition      the service of such notice. [Amended by 1973
                                                  c.833 §9; 1977 c.804 §36; 1979 c.839 §23; 1985 c.423 §6]
constitutes a new violation.
                                                       654.030 [Amended by 1973 c.833 §24; renumbered
    (d) Where another state agency, pursuant      654.130]
to its statutory authority, proposes to adopt
a regulation, rule or standard relating to oc-        654.031 Citation and order to correct
cupational safety or health, such agency          unsafe or unhealthy conditions. Whenever
shall accord the director an opportunity to       the Director of the Department of Consumer
review such regulation, rule or standard          and Business Services has reason to believe,
prior to its adoption for the purpose of as-      after an inspection or investigation, that any
suring that employers will not be asked to        employment or place of employment is unsafe
comply with contradictory or inconsistent         or detrimental to health or that the prac-
requirements or be burdened with an unnec-        tices, means, methods, operations or proc-
essary duplication of occupational safety and     esses employed or used in connection
health codes, inspections or reports.             therewith are unsafe or detrimental to
                                                  health, or do not afford adequate protection
    (4) The board and the director may sub-       to the life, safety and health of the em-
poena witnesses, administer oaths, take de-       ployees therein, the director shall issue such
positions and fix the fees and mileage of         citation and order relative thereto as may be
witnesses and compel the attendance of wit-       necessary to render such employment or
nesses and the production of papers, books,       place of employment safe and protect the life,
accounts, documents and testimony in any          safety and health of employees therein. The
inquiry, investigation, hearing or proceeding     director may in the order direct that such
in any part of the state, and the board and       additions, repairs, improvements or changes
the director shall provide for defraying the      be made, and such devices and safeguards be
expenses thereof.                                 furnished, provided and used, as are reason-
    (5) The director and the board may do         ably required to render such employment or
and perform all things, whether specifically      place of employment safe and healthful, in
designated in ORS 654.001 to 654.295, 654.412     the manner and within the time specified in
to 654.423 and 654.750 to 654.780 or in addi-     the order. [Formerly 654.045]
tion thereto, which are necessary or conven-          654.035 Scope of rules and orders. (1)
ient in the exercise of any power, authority      The Director of the Department of Consumer
or jurisdiction conferred upon them by ORS        and Business Services may, by general or
654.001 to 654.295, 654.412 to 654.423 and        special orders, or by regulations, rules, codes
654.750 to 654.780. The director’s authority      or otherwise:
under this section shall include but is not           (a) Declare and prescribe what devices,
limited to:                                       safeguards or other means of protection and
    (a) Designating by order or rule any          what methods, processes or work practices
named state employee or category of state         are well adapted to render every employment
employees who shall have authority to exer-       and place of employment safe and healthful.
cise any of the duties and powers imposed             (b) Fix reasonable standards and pre-
upon the director by law and whose act as         scribe and enforce reasonable orders for the
authorized by the order or rule shall be con-     adoption, installation, use and maintenance
sidered to be an official act of the director.    of devices, safeguards and other means of
The director may designate local government       protection, and of methods, processes and
employees with public health administration       work practices, including, but not limited to,
or enforcement duties to exercise duties and      work practices qualifications for equipment,
powers imposed upon the director with re-         materials and activities requiring special
spect to ORS 654.174 (1) and (2).                 competence, to be as nearly uniform as pos-

                                              127
654.056                                LABOR AND EMPLOYMENT

sible, as may be necessary to carry out all                   1973 c.833 §19 (654.082 and 654.086 enacted in lieu of
laws relative to the protection of the life,                  654.050)]
safety and health of employees.                                    654.055 [Repealed by 1973 c.833 §12 (654.056 and
                                                              654.078 enacted in lieu of 654.055)]
    (c) Fix and order reasonable standards
for the construction, repair and maintenance                      654.056 Variance from safety or health
of places of employment and equipment that                    standards; effect of variance on citations.
will render them safe and healthful.                          (1) Any employer may apply to the Director
                                                              of the Department of Consumer and Business
    (d) Fix standards for routine, periodic or                Services, pursuant to regulations and proce-
area inspections of places of employment                      dures adopted by the director, for an order
that are reasonably necessary in order to                     granting the employer a variance from a
determine compliance with all occupational                    particular safety or health regulation, rule
safety and health laws and the regulations,                   or standard.
rules and standards adopted under occupa-
tional safety and health laws. Except for                         (2) The director may grant a temporary
complaint inspections, follow-up inspections,                 variance only if the employer demonstrates
imminent danger inspections, referral inspec-                 by a preponderance of the evidence that:
tions and inspections to determine the cause                      (a) The employer is unable to comply
of an occupational death, injury or illness,                  with a new regulation, rule or standard by
all inspections shall be based on written                     its effective date;
neutral administrative standards. The stan-                       (b) The employer has an effective pro-
dards shall include a prioritized scheduling                  gram for complying with the law as quickly
system for inspections that predominantly                     as practicable; and
focuses enforcement activities upon places of
employment that the director reasonably be-                       (c) The employer is taking all available
lieves to be the most unsafe. The standards                   steps in the interim to safeguard the em-
shall be accessible to employers under ORS                    ployees of the employer against the hazards
192.410 to 192.505 for at least 36 months from                covered by the regulation, rule or standard.
the last date the standards are in effect. The                    (3) The director may grant a permanent
director shall notify in writing each em-                     variance only if the employer demonstrates
ployer whose place of employment is rated                     by a preponderance of the evidence that the
by the director as one of the most unsafe                     conditions, practices, means, methods, oper-
places of employment in the state of the in-                  ations or processes used or proposed to be
creased likelihood of inspection of the                       used by the employer will provide employ-
employer’s place of employment and of the                     ment and a place of employment which are
availability of consultative services. The di-                as safe and healthful as those which would
rector may by rule offer incentives to em-                    prevail if the employer complied with the
ployers that elect consultative services                      regulation, rule or standard.
before an inspection is conducted. Nothing in                     (4) Where the director proposes to deny
this paragraph prevents the director from                     a request for a variance, the employer shall
conducting a random inspection of a place of                  be given an opportunity for a hearing before
employment as long as the inspection is                       the Workers’ Compensation Board in which
scheduled and conducted pursuant to written                   the employer may contest the proposed de-
neutral administrative standards.                             nial.
    (e) Require the performance of any other                      (5) Where the director proposes to grant
act that the protection of the life, safety and               a variance, the affected employees shall be
health of employees in employments and                        given an opportunity for a hearing before the
places of employment may demand.                              board in which they may contest the pro-
    (2) The director may not require the use                  posed variance.
of fall protection by workers engaged in steel                    (6) A request for a variance which is filed
erection at heights lower than the heights at                 after an inspection or investigation by the
which fall protection relating to steel                       director will not act to stay or dismiss any
erection is required by federal regulation.                   citation which may result from such inspec-
[Amended by 1973 c.833 §11; 1987 c.884 §9; 1999 c.1017        tion or investigation, and an order granting
§2; 2003 c.595 §§1,2; 2005 c.27 §§1,2; 2007 c.686 §1]         the requested variance shall have no retro-
      654.040 [Repealed by 1973 c.833 §34 (654.290 enacted    active effect.
in lieu of 654.040, 654.065, 654.070, 654.075 and 654.080)]       (7) An order granting a variance may be
     654.045 [Amended by 1973 c.833 §10; renumbered           modified or revoked by the director upon the
654.031]                                                      director’s own motion or upon the applica-
     654.047 [Formerly 654.225; 1965 c.285 §82; repealed      tion of the employer or an affected employee
by 1973 c.833 §15 (654.067 enacted in lieu of 654.047,        or representative of the employee, in the
654.222 and 654.232)]                                         manner prescribed for its issuance at any
    654.050 [Amended by 1953 c.387 §2; 1957 c.436 §1;         time after six months from its issuance. [1973
1965 c.285 §69d; 1969 c.534 §1; 1971 c.251 §1; repealed by    c.833 §13 (enacted in lieu of 654.055); 1977 c.804 §37]

                                                          128
                         OCCUPATIONAL SAFETY AND HEALTH                                               654.067

     654.060 [Amended by 1973 c.833 §8; renumbered   discriminated against in compensation, or in
654.022]                                             terms, conditions or privileges of employ-
     654.062 Notice of violation to employer         ment, in violation of subsection (5) of this
by worker; complaint by worker to di-                section may, within 90 days after the em-
rector; inspection; protection of com-               ployee or prospective employee has reason-
plaining employees. (1) Every employee               able cause to believe that the violation has
should notify the employer of any violation          occurred, file a complaint with the Commis-
of law, regulation or standard pertaining to         sioner of the Bureau of Labor and Industries
safety and health in the place of employment         alleging discrimination under the provisions
when the violation comes to the knowledge            of ORS 659A.820. Upon receipt of the com-
of the employee.                                     plaint the commissioner shall process the
     (2) However, any employee or represen-          complaint under the procedures, policies and
tative of the employee may complain to the           remedies established by ORS chapter 659A
Director of the Department of Consumer and           and the policies established by ORS 654.001
Business Services or any authorized repre-           to 654.295, 654.412 to 654.423 and 654.750 to
sentatives of the director of any violation of       654.780 in the same way and to the same ex-
law, regulation or standard pertaining to            tent that the complaint would be processed
safety and health in the place of employment,        if the complaint involved allegations of un-
whether or not the employee also notifies the        lawful employment practices under ORS
employer.                                            659A.030 (1)(f).
     (3) Upon receiving any employee com-                 (b) Within 90 days after receipt of a
plaint, the director shall make inquiries, in-       complaint filed under this subsection, the
spections and investigations that the director       commissioner shall notify the complainant of
considers reasonable and appropriate. When           the commissioner’s determination.
an employee or representative of the em-                  (c) The affected employee or prospective
ployee has complained in writing of an al-           employee may bring a civil action in any
leged violation and no resulting citation is         circuit court of the State of Oregon against
issued to the employer, the director shall           any person alleged to have violated subsec-
furnish to the employee or representative of         tion (5) of this section. The civil action must
the employee, upon written request, a state-         be commenced within one year after the em-
ment of reasons for the decision.                    ployee or prospective employee has reason-
     (4) The director shall establish proce-         able cause to believe a violation has
dures for keeping confidential the identity of       occurred, unless a complaint has been timely
any employee who requests protection in              filed under ORS 659A.820.
writing. When a request has been made, nei-               (d) The commissioner or the circuit court
ther a written complaint from an employee,           may order all appropriate relief including re-
or representative of the employee, nor a             hiring or reinstatement to the employee’s
memorandum containing the identity of a              former position with back pay. [Formerly
complainant may be disclosed under ORS               654.235; 1973 c.833 §14; 1983 c.275 §1; 1999 c.55 §3; 2001
                                                     c.621 §82; 2005 c.198 §1; 2007 c.279 §1]
192.410 to 192.505.
                                                           654.065 [Repealed by 1973 c.833 §34 (654.290 enacted
     (5) It is an unlawful employment practice       in lieu of 654.040, 654.065, 654.070, 654.075 and 654.080)]
for any person to bar or discharge from em-
ployment or otherwise discriminate against               654.067 Inspection of places of em-
any employee or prospective employee be-             ployment; denial of access; warrants;
cause the employee or prospective employee           safety and health consultation with em-
has:                                                 ployees. (1) In order to carry out the pur-
                                                     poses of ORS 654.001 to 654.295, 654.412 to
     (a) Opposed any practice forbidden by           654.423 and 654.750 to 654.780, the Director
ORS 654.001 to 654.295, 654.412 to 654.423           of the Department of Consumer and Business
and 654.750 to 654.780;                              Services, upon presenting appropriate cre-
     (b) Made any complaint or instituted or         dentials to the owner, employer or agent in
caused to be instituted any proceeding under         charge, is authorized:
or related to ORS 654.001 to 654.295, 654.412            (a) To enter without delay and at rea-
to 654.423 and 654.750 to 654.780, or has tes-       sonable times any place of employment; and
tified or is about to testify in any such pro-
ceeding; or                                              (b) To inspect and investigate during
                                                     regular working hours and at other reason-
     (c) Exercised on behalf of the employee,        able times, and within reasonable limits and
prospective employee or others any right af-         in a reasonable manner, any such place of
forded by ORS 654.001 to 654.295, 654.412 to         employment and all pertinent conditions,
654.423 and 654.750 to 654.780.                      structures, machines, apparatus, devices,
     (6)(a) Any employee or prospective em-          equipment and materials therein, and to
ployee alleging to have been barred or dis-          question privately the owner, employer,
charged from employment or otherwise                 agents or employees.

                                                 129
654.071                                 LABOR AND EMPLOYMENT

    (2) No person shall give an owner, em-                         (a) The date and place of the alleged vio-
ployer, agent or employee advance notice of                   lation;
any inspection to be conducted under ORS                           (b) A plain statement of the facts upon
654.001 to 654.295, 654.412 to 654.423 and                    which the citation is based;
654.750 to 654.780 of any place of employment
without authority from the director.                               (c) A reference to the law, regulation,
                                                              rule, standard or order relied upon;
    (3) Except in the case of an emergency,
or of a place of employment open to the                            (d) The amount, if any, of the proposed
public, if the director is denied access to any               civil penalty;
place of employment for the purpose of an                          (e) The time, if any, fixed for the cor-
inspection or investigation, such inspection                  rection of the alleged violation;
or investigation shall not be conducted with-                      (f) Notice of the employer’s right to con-
out an inspection warrant obtained pursuant                   test the citation, the proposed civil penalty
to ORS 654.202 to 654.216, or without such                    and the period of time fixed for correction of
other authority as a court may grant in an                    the alleged violation; and
appropriate civil proceeding. Nothing con-
                                                                   (g) Notice of any affected employee’s
tained herein, however, is intended to affect                 right to contest the period of time fixed for
the validity of a constitutionally authorized                 correction of the alleged violation.
inspection conducted without an inspection
warrant.                                                           (3) No citation or notice of proposed civil
                                                              penalty may be issued under this section af-
    (4) A representative of the employer and                  ter the expiration of 180 days following the
a representative authorized by the employees                  start of the inspection or investigation, but
of the employer shall be given an opportunity                 this shall not prevent the issuance, at any
to accompany the director during the inspec-                  time, of an order to correct that violation or
tion of any place of employment for the pur-                  the issuance of a citation for a subsequent
pose of aiding such inspection. When there                    violation.
is no employee representative, or the em-                          (4) If the director has reason to believe
ployee representative is not an employee of                   that an employer has failed to correct a vio-
the employer, the director should consult                     lation within the period of time fixed for
with a reasonable number of employees con-                    correction, or within the time fixed in a
cerning matters of safety and health in the                   subsequent order granting an extension of
place of employment.                                          time to correct the violation, the director
    (5) The representative of the employer                    shall consider such failure as a separate and
may, at the employer’s option, be an attorney                 continuing violation and shall issue a cita-
retained by the employer. [1973 c.833 §16 (enacted            tion and notice of proposed civil penalty, if
in lieu of 654.047, 654.222 and 654.232); 1999 c.1017 §3]     any, to be assessed pursuant to ORS 654.086
                                                              (1)(d).
      654.070 [Repealed by 1973 c.833 §34 (654.290 enacted
in lieu of 654.040, 654.065, 654.070, 654.075 and 654.080)]        (5) The director may prescribe procedures
                                                              for the issuance of a notice in lieu of citation
    654.071 Citation for safety or health                     to inform an employer and employees of a
standard violations; effect of failure to                     minimal violation that has no direct or im-
correct violation; posting of citations and                   mediate relationship to occupational safety
notices by employer. (1) If the Director of                   or health.
the Department of Consumer and Business
                                                                   (6) Each citation and notice, or copies
Services or an authorized representative of                   thereof, issued under ORS 654.001 to 654.295,
the director has reason to believe, after in-                 654.412 to 654.423 and 654.750 to 654.780
spection or investigation of a place of em-                   shall be posted by the employer, immediately
ployment, that an employer has violated any                   upon receipt, in a conspicuous manner in a
state occupational safety or health law, reg-                 sufficient number of locations in the place
ulation, standard, rule or order, the director                or places of employment to reasonably inform
or the authorized representative shall with                   employees of such citation and notice.
reasonable promptness issue to such em-
ployer a citation, and notice of proposed civil                    (7) Notwithstanding any other provision
penalty, if any, to be assessed under this                    of this section, the director or authorized
                                                              representative of the director shall deliver to
chapter, and fix a reasonable time for cor-
                                                              the operator of a farm labor camp a copy of
rection of the alleged violation.                             any notice, evaluation report or citation re-
    (2) Each citation and notice required by                  sulting from the inspection. [1973 c.833 §17; 1981
subsection (1) of this section shall be in                    c.696 §4; 1999 c.72 §1; 1999 c.1017 §4]
writing, shall be mailed to or served upon                         654.074 [1973 c.833 §17a; repealed by 1977 c.804 §55]
the employer or a registered agent of the                           654.075 [Repealed by 1973 c.833 §34 (654.290 enacted
employer, and shall contain:                                  in lieu of 654.040, 654.065, 654.070, 654.075 and 654.080)]

                                                            130
                        OCCUPATIONAL SAFETY AND HEALTH                                              654.082

     654.078 Contesting violations; hearing;       and shall take precedence over other hear-
admissibility in criminal or civil pro-            ings conducted by the board under the pro-
ceedings of stipulations involving vio-            visions of ORS 654.001 to 654.295, 654.412 to
lations. (1) An employer may contest a             654.423 and 654.750 to 654.780.
citation, a proposed assessment of civil pen-          (7) Where informal disposition of a con-
alty and the period of time fixed for cor-         tested case is made by stipulation, agreed
rection of a violation, or any of these, by        settlement or a consent order, such stipu-
filing with the Department of Consumer and         lation, settlement or order shall not be
Business Services, within 30 days after re-        pleaded or admissible in evidence as an ad-
ceipt of the citation, notice or order, a writ-    mission or confession in any criminal prose-
ten request for a hearing before the Workers’      cution or in any other civil proceeding that
Compensation Board. Such a request need            may be instituted against the employer, ex-
not be in any particular form, but shall           cept in the case of a civil proceeding brought
specify the alleged violation that is contested    to enforce such stipulation, settlement or or-
and the grounds upon which the employer            der. [1973 c.833 §18 (enacted in lieu of 654.055); 1977
considers the citation or proposed penalty or      c.804 §38; 2007 c.432 §1]
correction period unjust or unlawful.                    654.080 [Repealed by 1973 c.833 §34 (654.290 enacted
     (2) An affected employee or represen-         in lieu of 654.040, 654.065, 654.070, 654.075 and 654.080)]
tative of such employees may contest the               654.082 Prohibiting use of equipment
time fixed for correction of a violation by        involved in violation; red warning notice.
filing with the department, within 30 days         (1) The Director of the Department of Con-
after the receipt by the employer of the cita-     sumer and Business Services, or an author-
tion, notice or order which fixes such time        ized representative of the director with the
for correction, a written request for a hear-      approval of the director or, pursuant to such
ing before the board. Such a request need          rules and procedures as the director may
not be in any particular form, but shall           prescribe, with the approval of the director,
specify the violation in question and the          to preclude exposure to a condition which, if
grounds upon which the employee considers          such exposure occurred would constitute a
the correction period to be unreasonable.          violation of any statute, or of any lawful
     (3) A hearing on any question relating to     regulation, rule, standard or order affecting
the validity of a citation or the proposed civil   employee safety or health at a place of em-
penalty to be assessed therefor shall not be       ployment, may preclude exposure by prohib-
granted unless a request for hearing is filed      iting use of the machine, equipment,
by the employer within the period specified        apparatus or place of employment constitut-
in subsection (1) of this section. If a request    ing such condition. When use is prohibited a
for hearing is not so filed, the citation and      red warning notice shall be posted in plain
the assessment of penalty as proposed shall        view of any person likely to use the same,
be a final order of the department and shall       calling attention to the condition, defect,
not be subject to review by any agency or          lack of safeguard or unsafe or unhealthful
court.                                             place of employment and the fact that fur-
                                                   ther use is prohibited.
     (4) A hearing relating to the reasonable-
ness of the time prescribed for the correction         (2) No person shall use or operate any
of a violation shall not be granted, except for    place of employment, machine, device, appa-
good cause shown, unless a request for hear-       ratus or equipment, after the red warning
ing is filed within the period specified in        notice required by this section is posted, be-
subsections (1) and (2) of this section. If a      fore such place of employment, machine, de-
request for hearing is not so filed the time       vice, apparatus or equipment is made safe
fixed for correction of the violation shall be     and healthful, and the required safeguards or
a final order of the department and shall not      safety appliances or devices are provided,
                                                   and authorization for the removal of such red
be subject to review by any agency or court.       warning notice has been obtained from the
     (5) Where an employer contests, in good       director. However, nothing in this subsection
faith and not solely for delay or avoidance        prohibits an employer from directing em-
of penalties, the period of time fixed for cor-    ployees to use or operate any such place of
rection of a nonserious violation, such period     employment, machine, device, apparatus or
of time shall not run between the date the         equipment exclusively for the purpose of
request for hearing is filed and the date the      remedying the violation as specifically desig-
order of the department becomes final by op-       nated by the director in the red warning no-
eration of law or on appeal.                       tice.
     (6) Where an employer or employee con-            (3) No person shall deface, destroy or re-
tests the period of time fixed for correction      move any red warning notice posted pursu-
of a serious violation, any hearing on that        ant to this section until authorization for the
issue shall be conducted as soon as possible       removal of such notice has been obtained

                                               131
654.086                                LABOR AND EMPLOYMENT

from the director.         [1973 c.833 §20 (enacted in lieu       (i) Any insurer or self-insured employer
of 654.050); 1975 c.102 §3; 1977 c.804 §39; 1977 c.869 §2a]   who violates any provision of ORS 654.097,
     654.085 [Amended by 1973 c.833 §33; renumbered           or any rule or order carrying out ORS
654.285]                                                      654.097, shall be assessed a civil penalty of
     654.086 Civil penalty for violations;                    not more than $2,000 for each violation or
classification of violations; payment and                     $10,000 in the aggregate for all violations
disposition of penalty moneys. (1) The Di-                    within any three-month period. Each vio-
rector of the Department of Consumer and                      lation, or each day a violation continues,
Business Services or the authorized repre-                    shall be considered a separate offense.
sentative of the director is hereby granted                       (2) For the purposes of ORS 654.001 to
the authority to assess civil penalties as                    654.295, 654.412 to 654.423 and 654.750 to
provided by this section for violation of the                 654.780 a serious violation exists in a place
requirements of any state occupational safety                 of employment if there is a substantial prob-
or health statute or the lawful rules, stan-                  ability that death or serious physical harm
dards or orders adopted thereunder as fol-                    could result from a condition which exists,
lows:                                                         or from one or more practices, means, meth-
     (a) Any employer who receives a citation                 ods, operations or processes which have been
for a serious violation of such requirements                  adopted or are in use, in such place of em-
shall be assessed a civil penalty of not less                 ployment unless the employer did not, and
than $50 and not more than $7,000 for each                    could not with the exercise of reasonable
such violation.                                               diligence, know of the presence of the vio-
                                                              lation.
     (b) Any employer who receives a citation                     (3) When an order assessing a civil pen-
for a violation of such requirements, and                     alty becomes final by operation of law or on
such violation is specifically determined not                 appeal, unless the amount of penalty is paid
to be of a serious nature, may be assessed a                  within 20 days after the order becomes final,
civil penalty of not more than $7,000 for each                it constitutes a judgment and may be re-
such violation.                                               corded with the county clerk in any county
     (c) Any employer who willfully or re-                    of this state. The clerk shall thereupon re-
peatedly violates such requirements may be                    cord the name of the person incurring the
assessed a civil penalty of not more than                     penalty and the amount of the penalty in the
$70,000 for each violation, but not less than                 County Clerk Lien Record. The penalty pro-
$5,000 for a willful violation.                               vided in the order so recorded shall become
                                                              a lien upon the title to any interest in prop-
     (d) Any employer who receives a citation,                erty owned by the person against whom the
as provided in ORS 654.071 (4), for failure to                order is entered, and execution may be is-
correct a violation may be assessed a civil                   sued upon the order in the same manner as
penalty of not more than $7,000 for each day                  execution upon a judgment of a court of re-
during which such failure or violation con-                   cord.
tinues.
                                                                  (4) Except as provided in subsection (5)
     (e) Any employer who knowingly makes                     of this section, civil penalties collected under
any false statement, representation or certi-                 ORS 654.001 to 654.295, 654.412 to 654.423
fication regarding the correction of a vio-                   and 654.750 to 654.780 shall be paid into the
lation shall be assessed a civil penalty of not               Consumer and Business Services Fund.
less than $100 and not more than $2,500.                          (5) Civil penalties assessed under this
     (f) Any employer who violates any of the                 section for a violation of ORS 658.750 shall
posting requirements, as prescribed under                     be credited to the Farmworker Housing De-
the provisions of ORS 654.001 to 654.295,                     velopment Account of the Oregon Housing
654.412 to 654.423 and 654.750 to 654.780, may                Fund. [1973 c.833 §21 (enacted in lieu of 654.050); 1981
be assessed a civil penalty of not more than                  c.696 §5; 1983 c.696 §22; 1985 c.423 §4; 1987 c.884 §56; 1989
                                                              c.962 §20; 1991 c.67 §159; 1991 c.570 §1; 1991 c.640 §2; 1995
$1,000 for each violation.                                    c.640 §1; 2001 c.310 §4; 2007 c.432 §2]
     (g) Any person who violates the pro-                         654.090 Occupational safety and health
visions of ORS 654.082 (2) or (3) shall be as-                activities; voluntary compliance; rules;
sessed a civil penalty of not less than $100                  consultative services. In order to carry out
and not more than $5,000 for each such vio-                   the purposes of ORS 654.001 to 654.295,
lation.                                                       654.412 to 654.423 and 654.750 to 654.780 and
     (h) Notwithstanding paragraph (b) of this                encourage voluntary compliance with occu-
subsection, an employer who substantially                     pational safety and health laws, regulations
fails to comply with ORS 654.174 (1) shall be                 and standards and to promote more effective
assessed a civil penalty of not less than $250                workplace health and safety programs, the
and not more than $2,500 for each such vio-                   Director of the Department of Consumer and
lation.                                                       Business Services shall:

                                                          132
                             OCCUPATIONAL SAFETY AND HEALTH                                                 654.101

    (1) Develop greater knowledge and inter-                     (2) An insurer or self-insured employer
est in the causes and prevention of industrial              may furnish any of the services required by
accidents, occupational diseases and related                this section through an independent contrac-
subjects through:                                           tor.
    (a) Research, conferences, lectures and                      (3) The program of an insurer for fur-
the use of public communications media;                     nishing loss control consultative services as
    (b) The collection and dissemination of                 required by this section shall be adequate to
accident statistics; and                                    meet the minimum standards prescribed by
                                                            the director by rule from time to time. Such
    (c) The publication and distribution of                 services shall include the conduct of work-
training and accident prevention materials,                 place surveys to identify health and safety
including audio and visual aids.                            problems, review of employer injury records
    (2) Appoint advisers who shall, without                 with appropriate persons and development of
compensation, assist the director in estab-                 plans for improvement of employer health
lishing standards of safety and health. The                 and safety loss records. At the time a
director may adopt and incorporate in its                   workers’ compensation insurance policy is
regulations, rules and standards such safety                issued and on an annual basis thereafter, the
and health recommendations as it may re-                    insurer shall notify its insured employers of
ceive from such advisers.                                   the loss control consultative services that
    (3) Provide consultative services for em-               the insurer is required by rule to offer,
ployers on safety and health matters and                    without additional charge as provided in this
prescribe procedures which will permit any                  section, and shall provide a written de-
employer to request a special inspection or                 scription of the services that the insurer
investigation, focused on specific problems or              does offer.
hazards in the place of employment of the                        (4) The insurer shall not charge any fee
employer or to request assistance in devel-                 in addition to the insurance premium for
oping a plan to correct such problems or                    safety and health loss control consultative
hazards, which will not directly result in a                services.
citation and civil penalty.                                      (5) Each insurer shall make available, at
    (4) Place emphasis, in the research, edu-               the request of the director and in the form
cation and consultation program, on develop-                prescribed by the director, its annual ex-
ment of a model for providing services to                   penditures for safety and health loss control
groups of small employers in particular in-                 activities for the prior year and its budget
dustries and their employees.                               for safety and health loss control activities
    (5) Separately administer the voluntary                 for the following year.
compliance and research, education and con-                      (6) As used in this section, “employer,”
sultation activities described in this section              “insurer” and “self-insured employer” have
and the enforcement activities described in                 the meaning for those terms provided in ORS
ORS 654.025 to 654.086. [Amended by 1965 c.285              656.005. [Formerly 656.451; 2007 c.241 §21]
§69h; 1973 c.833 §22; 1987 c.884 §57; 1997 c.249 §198]
                                                                  Note: 654.097 was added to and made a part of
     654.092 [Formerly 654.255; repealed by 1965 c.285      654.001 to 654.295 by legislative action but was not
§95]                                                        added to any smaller series therein. See Preface to Or-
     654.093 [Formerly 654.265; repealed by 1973 c.833      egon Revised Statutes for further explanation.
§48]                                                              654.100 [Repealed by 1973 c.833 §31 (654.251 enacted
     654.094 [Formerly 654.270; repealed by 1965 c.285      in lieu of 654.100)]
§95]
                                                                654.101 Voluntary safety and health
     654.095 [Amended by 1965 c.285 §69e; repealed by       consultation; refusal to disclose report.
1973 c.833 §48]
                                                            (1) As used in this section, unless the context
     654.096 [Formerly 654.275; repealed by 1967 c.92 §5]   requires otherwise:
    654.097 Consultative services required;                     (a) “Safety and health consultation”
program standards; rules. (1)(a) An insurer                 means a voluntary review or inspection of a
that provides workers’ compensation cover-                  facility or equipment to improve workplace
age to employers pursuant to ORS chapter                    safety. “Safety and health consultation” does
656 shall furnish occupational safety and                   not include:
health loss control consultative services to
its insured employers in accordance with                        (A) An investigation of an occupational
standards established by the Director of the                accident, illness or disease; or
Department of Consumer and Business Ser-                        (B) A discussion between employees of an
vices.                                                      employer or between employees of several
    (b) A self-insured employer shall establish             employers in a multiemployer work setting.
and implement an occupational safety and                        (b) “Safety and health consultation
health loss control program in accordance                   report” means documentation of a safety and
with standards established by the director.                 health consultation, including recommen-

                                                        133
654.120                                 LABOR AND EMPLOYMENT

dations and supporting documents created by                    agency, the Administrative Law Judge, the
a consultant.                                                  Workers’ Compensation Board or the court
    (2) In any inspection, investigation or                    shall issue such orders as may be appropriate
administrative proceeding under ORS 654.001                    to protect the confidentiality of trade secrets.
to 654.295, 654.412 to 654.423 and 654.750 to                       (4) The director will make reports to the
654.780, an employer for which a safety and                    Secretary of Labor of the United States in
health consultation has occurred may refuse                    such form and containing such information
to disclose and may prevent any other person                   as the Secretary of Labor shall from time to
from disclosing a safety and health consulta-                  time require pursuant to the Occupational
tion report that results from the safety and                   Safety and Health Act of 1970 (Public Law
health consultation. [1999 c.584 §2]                           91-596).
     Note: 654.101 was added to and made a part of                  (5) Nothing contained in ORS 654.001 to
654.001 to 654.295 and 654.750 to 654.780 by legislative       654.295, 654.412 to 654.423 and 654.750 to
action but was not added to any smaller series therein.
See Preface to Oregon Revised Statutes for further ex-         654.780 shall relieve an employer from mak-
planation.                                                     ing such reports to the Secretary of Labor
     654.105 [1957 c.156 §1; 1959 c.684 §1; repealed by 1973   of the United States as may be required by
c.833 §29 (654.241 enacted in lieu of 654.105 and 654.226)]    federal law. [1973 c.833 §23; 1977 c.804 §40]
     654.110 [1957 c.156 §2; 1959 c.684 §3; repealed by 1971        654.130 Proceedings against unwilling
c.251 §2]                                                      witnesses. (1) The Director of the Depart-
    654.120 Records of proceedings; confi-                     ment of Consumer and Business Services or
dentiality of certain information; federal                     the Workers’ Compensation Board, or the
reporting requirements; rules. (1) The De-                     authorized representative or designee of the
partment of Consumer and Business Services                     director or the board before whom testimony
shall maintain, for a reasonable time, records                 is to be given or produced, in case of the re-
of all inspections, investigations, employee                   fusal of any witness to attend or testify or
complaints, employer reports, citations, hear-                 produce any papers as required by subpoena,
ings, proceedings and any other matters nec-                   may report to the circuit court in the county
essary for achieving the purposes of ORS                       in which the inquiry, investigation, hearing
654.001 to 654.295, 654.412 to 654.423 and                     or other proceeding is pending, by petition
654.750 to 654.780.                                            setting forth that due notice has been given
                                                               of the time and place of attendance of the
    (2) Each employer shall keep records, in                   witness, or the production of the papers, and
the manner prescribed by the Director of the                   that the witness has been subpoenaed in the
Department of Consumer and Business Ser-                       manner prescribed and that the witness has
vices, of work-related deaths and serious in-                  failed and refused to attend or produce the
juries and illnesses, and of such other                        papers required by the subpoena or has re-
relevant occupational safety and health mat-                   fused to answer questions propounded to the
ters as are reasonably necessary for achiev-                   witness in the course of such proceeding, and
ing the purposes of ORS 654.001 to 654.295,                    ask an order of the court to compel the wit-
654.412 to 654.423 and 654.750 to 654.780.                     ness to attend and testify or produce said
Each employer shall notify the director                        papers.
forthwith of the work-related death of any
employee of the employer, and shall make                            (2) The court, upon receiving the peti-
such other reports as the director may rea-                    tion, shall enter an order directing the wit-
sonably prescribe by rule or order.                            ness to appear before the court at a time and
                                                               place to be fixed in such order, the time to
    (3) All information reported to or other-                  be not more than 10 days from the date of
wise obtained by the department in con-                        the order, and then and there show cause
nection with any matter or proceeding under                    why the witness has not attended and testi-
ORS 654.001 to 654.295, 654.412 to 654.423                     fied or produced the papers.
and 654.750 to 654.780 which contains or
which might reveal a trade secret referred to                       (3) A copy of the order shall be served
in section 1905, title 18, United States Code,                 upon the witness.
shall be considered confidential for the pur-                       (4) If it is apparent to the court that the
poses of that section, except that such infor-                 subpoena was regularly issued, the court
mation may be disclosed to other officers or                   shall thereupon enter an order that the wit-
employees of the department or other agen-                     ness appear before the director or the board
cies concerned with carrying out their duties                  or the authorized representative or designee
under ORS 654.001 to 654.295, 654.412 to                       of the director or the board at a time and
654.423 and 654.750 to 654.780 or when rele-                   place to be fixed in such order, and testify
vant in any proceeding under ORS 654.001 to                    and produce the required papers and upon
654.295, 654.412 to 654.423 and 654.750 to                     failure to obey the order the witness shall be
654.780 or under 654.991. In any such matter                   dealt with as for contempt of court. [Formerly
or proceeding the department, the other state                  654.030; 1979 c.839 §24]

                                                           134
                            OCCUPATIONAL SAFETY AND HEALTH                                                654.172

    654.150 Sanitary facilities at construc-                date such contractor makes demand upon the
tion projects; standards; exemptions. (1)                   owner to reimburse the contractor for such
At the site of every construction project es-               costs until the contractor is paid. [1977 c.129
timated to cost $1 million or more the em-                  §2]
ployer or owner of such place of employment                     654.165 Employees not required to
shall provide toilet facilities and facilities for          work bare-handed or rubber-gloved on
maintaining personal cleanliness for the use                high voltage lines. No employer shall re-
of employees on the construction project.                   quire an employee to perform bare-handed or
Flush toilets shall be provided and the                     rubber-gloved work on a live electrical line
washing facilities shall consist of warm wa-                with a voltage of 5,000 volts or greater. [1991
ter, wash basins and soap. A building or a                  c.549 §2]
mobile, self-contained unit may be provided                      Note: 654.165 was added to and made a part of
for such facilities. The number, types and                  654.001 to 654.295 by legislative action but was not
maintenance of facilities shall conform to                  added to any smaller series therein. See Preface to Or-
minimum standards set by the Director of                    egon Revised Statutes for further explanation.
the Department of Consumer and Business                          654.170 Stairway railings and guards
Services.                                                   not required for certain public and his-
    (2) Subsection (1) of this section does not             toric buildings. Nothing in ORS 654.001 to
apply to highway construction or mainte-                    654.295, 654.412 to 654.423 and 654.750 to
nance projects or to electricity, water, sewer              654.780 requires the installation of railings
or gas transmission facility construction or                or guards on exterior stairways providing
maintenance projects.                                       access to and egress from the State Capitol
                                                            Building or the grand staircases to the
    (3) The director may, by order, exempt or               chambers of the Senate and House of Repre-
partially exempt, individual or classes of                  sentatives in the rotunda of the State Capitol
construction projects from the requirements                 Building or any staircase in any public mon-
of subsection (1) of this section when condi-               ument or memorial or building of historic
tions are such that compliance is impractical               significance. [1977 c.780 §2]
or impossible. [1975 c.751 §2; 1993 c.450 §1]
    654.154 [1995 c.163 §2; renumbered 654.172 in 2005]          654.172 Exemption from inspection or
    654.155 [Repealed by 1973 c.833 §48]
                                                            investigation for certain agricultural ac-
                                                            tivities. (1) Notwithstanding any other pro-
    654.160 Applicability of ORS 654.150 to                 vision of the Oregon Safe Employment Act,
be included in construction contracts; li-                  an employer engaged in agricultural activ-
ability for cost of compliance. (1) A state-                ities with 10 or fewer agricultural employees
ment as to whether or not ORS 654.150                       is exempt from inspection or investigation
applies at the construction site shall be in-               under ORS 654.067 under the following con-
cluded in the contract for a construction                   ditions:
project. If the contract states that ORS                         (a) There has not been a complaint filed
654.150 applies, the owner shall also include               pursuant to ORS 654.062 or, within the pre-
in the contract documents a provision desig-                ceding two-year period, an accident at the
nating which party to the contract is re-                   employer’s agricultural place of employment
sponsible for any costs that may be incurred                resulting in death or serious disabling injury
in complying with ORS 654.150 and the rules                 from violation of the Oregon Safe Employ-
adopted pursuant thereto.                                   ment Act or rules adopted pursuant thereto.
    (2) The owner of a construction site is                      (b) The employer and principal supervi-
liable to any contractor who is an employer                 sors of the agricultural employees annually
at the site for costs incurred by the contrac-              attend four hours of instruction on agricul-
tor if:                                                     tural safety rules and procedures at a course
    (a) Representatives of the Director of the              conducted or approved by the Director of the
Department of Consumer and Business Ser-                    Department of Consumer and Business Ser-
vices decide that ORS 654.150 applies to the                vices.
construction project, and the contract docu-                     (c) The agricultural activities are in-
ments did not designate which party to the                  spected once every four years by an individ-
contract for the project was responsible for                ual acting in a safety consultant capacity,
complying with ORS 654.150 and the rules                    and all violations found upon inspection are
adopted pursuant thereto; and                               remedied within 90 days of the date of in-
    (b) The contractor incurs additional costs              spection.
in complying with ORS 654.150.                                   (2) In order to promote communication
    (3) In addition to being liable for the                 and understanding between the director and
amount of the additional costs incurred, as                 agricultural interests, the director shall ap-
provided by subsection (2) of this section, the             point an agricultural advisory committee of
owner is liable for interest on the amount at               seven agricultural employers, each with 10
the rate of one percent per month from the                  or fewer agricultural employees, to review

                                                          135
654.174                                 LABOR AND EMPLOYMENT

and consult with the director on the admin-                   ployees, who are volunteers or are elected by
istration of the Oregon Safe Employment Act                   their peers, and employer representatives and
with regard to agricultural activities.                       specifying the frequency of meetings.
[Formerly 654.154]
                                                                   (b) Requiring employers to make ade-
    654.174 Sanitation facilities for work-                   quate written records of each meeting and to
ers harvesting food crops; employer to                        file and maintain the records subject to in-
post notice; rules. (1) Employers of workers                  spection by the director.
who are engaged in field activities for the
growing and harvesting of food crops in-                           (c) Requiring employers to compensate
tended for human consumption shall provide                    employee representatives on safety commit-
for such workers at convenient locations,                     tees at the regular hourly wage while the
and in accordance with such rules as the                      employees are engaged in safety committee
Director of the Department of Consumer and                    training or are attending safety committee
Business Services may prescribe:                              meetings.
    (a) Toilet facilities that are maintained in                   (d) Prescribing the duties and functions
clean and sanitary condition, of such design                  of safety committees, which include, but are
and construction as to provide privacy and                    not limited to:
to prevent crop contamination and, where                           (A) Establishing procedures for work-
practicable, one toilet for each sex.                         place safety inspections by the committee.
    (b) Handwashing facilities that provide                        (B) Establishing procedures for investi-
clean water, soap or other suitable cleansing                 gating all safety incidents, accidents, ill-
agent, paper towels and a method for dis-                     nesses and deaths.
posal of used towels and wash water to avoid                       (C) Evaluating accident and illness pre-
crop contamination.                                           vention programs.
    (c) Clean, potable drinking water served                       (e) Prescribing guidelines for the training
in a sanitary manner, which may include but                   of safety committee members.
is not limited to containers with spigots and
tight fitting lids and disposable cups suffi-                      (f) Prescribing alternate forms of safety
cient in number for each worker.                              committees and safety meetings to meet the
    (2) Every employer required to comply                     special needs of small employers, agricultural
with subsection (1) of this section shall keep                employers and employers with mobile
conspicuously posted a notice describing the                  worksites.
requirements of that subsection and advising                       (2) An employer that is a member of a
where complaints may be filed. The notice                     multiemployer group operating under a col-
must be in the English language and in the                    lective bargaining agreement that contains
language spoken by the majority of the em-                    provisions regulating the formation and op-
ployees.                                                      eration of a safety committee that meets or
    (3) The director shall promulgate rules to                exceeds the minimum requirements of this
implement subsections (1) and (2) of this sec-                section and ORS 654.176 shall be considered
tion which shall not be less protective than                  to have met the requirements of this section
the rules on those subjects that are operative                and ORS 654.176. [1981 c.488 §3; 1990 c.2 §2; 1991
                                                              c.746 §2; 2007 c.448 §2]
on July 9, 1985. [1985 c.423 §§2,3,5]
                                                                   654.187 [1981 c.488 §4; repealed by 1991 c.746 §1]
     654.175 [Repealed by 1969 c.534 §2]
                                                                  654.189 Safe Employment Education
 WORKPLACE SAFETY COMMITTEES                                  and Training Advisory Committee; mem-
                                                              bers; terms; expenses; duties; meetings.
    654.176 Safety committee or safety                        (1) The Director of the Department of Con-
meeting required. To promote health and                       sumer and Business Services may appoint a
safety in places of employment in this state,                 Safe Employment Education and Training
every public or private employer shall, in                    Advisory Committee composed of seven
accordance with rules adopted pursuant to                     members: Three representing employees,
ORS 654.182, establish and administer a                       three representing employers and one re-
safety committee or hold safety meetings.                     presenting the Department of Consumer and
[1981 c.488 §2; 1990 c.2 §1; 1995 c.83 §1; 2007 c.448 §1]     Business Services. The committee shall elect
     654.180 [Repealed by 1969 c.534 §2]                      its chairperson.
    654.182 Rules for ORS 654.176; con-                           (2) The members of the committee shall
tents. (1) In carrying out ORS 654.176, the                   be appointed for a term of three years and
Director of the Department of Consumer and                    shall serve at the pleasure of the director.
Business Services shall adopt rules that in-                  Before the expiration of the term of a mem-
clude, but are not limited to, provisions:                    ber, the director shall appoint a successor.
    (a) Prescribing the membership of the                     A member is eligible for reappointment. If
committees to ensure equal numbers of em-                     there is a vacancy for any cause, the director

                                                            136
                        OCCUPATIONAL SAFETY AND HEALTH                                             654.196

shall make an appointment to become imme-             (5) The grants awarded under this section
diately effective.                                shall be funded only from the civil penalties
     (3) The members shall serve without          paid into the Consumer and Business Ser-
compensation, but shall be entitled to travel     vices Fund under ORS 654.086. [1989 c.857 §2]
expenses pursuant to ORS 292.495.                     654.192 Labor organization not liable
     (4) The duties of the committee shall be     for injury resulting from absence of
determined by the director and shall include,     safety or health provision. When an em-
but not be limited to:                            ployee incurs an injury compensable under
     (a) Recommending to the director:            ORS chapter 656, the discussion or furnish-
                                                  ing, or failure to discuss or furnish, or fail-
     (A) Occupational Safety and Health           ure to enforce any safety or health provision
Grant application procedures and criteria for     to protect employees against work injuries,
grant approval;                                   in any collective bargaining agreement or
     (B) Occupational Safety and Health           negotiations thereon, shall not subject a la-
Grant recipients; and                             bor organization representing the injured
     (C) Revocation of grants to recipients       employee to any civil liability for the injury.
                                                  [1981 c.488 §5]
failing to comply with grant criteria estab-
lished by the director pursuant to ORS
654.191.                                                HAZARD COMMUNICATION
     (b) Receiving and processing Occupa-              AND HAZARDOUS SUBSTANCES
tional Safety and Health Grant applications.           654.194 [1985 c.683 §2; repealed by 1999 c.232 §1]
     (5) The committee shall meet at least            654.196 Rules on contents of piping
once every three months at a place, day and       systems; posting notice on right to be
hour determined by the committee. The com-        informed of hazardous substances; with-
mittee shall also meet at other times and         holding of information under certain cir-
places specified by a majority of the members     cumstances. (1) The Director of the
of the committee or the chairperson of the        Department of Consumer and Business Ser-
committee. A majority of the members of the       vices may by rule require employers to pro-
committee constitutes a quorum for the            vide information to employees relating to the
transaction of business. [1989 c.857 §3]          contents of piping systems. The rules shall
                                                  include, but need not be limited to require-
     654.191 Occupational         Safety   and    ments for:
Health Grant program; rules. (1) The Di-
rector of the Department of Consumer and              (a) Labeling piping systems to provide
Business Services, in consultation with the       notice about hazardous chemicals contained
Safe Employment Education and Training            in the system; and
Advisory Committee, shall establish an Oc-            (b) Labeling a piping system that uses
cupational Safety and Health Grant program        asbestos as a pipe insulation material.
to fund the education and training of em-
ployees in safe employment practices and              (2) Every employer shall post a sign in
conduct and to promote the development of         the location where notices to employees are
employer-sponsored health and safety pro-         normally posted to inform employees that
grams.                                            they have a right under this section and ORS
                                                  453.317 (6) to information from the employer
     (2) The director shall adopt rules estab-    regarding hazardous substances found in the
lishing:                                          place of employment.
     (a) Grant application procedures and cri-        (3) The sign required under subsection (2)
teria for grant approval; and                     of this section shall include, but need not be
     (b) Procedures for revocation of grants to   limited to, the following information and
recipients failing to comply with grant crite-    shall be substantially in the following form:
ria established by the director pursuant to       __________________________________________
this section.
     (3) The director, after reviewing the rec-            NOTICE TO EMPLOYEES
ommendation of the Safe Employment Edu-
cation and Training Advisory Committee,               You have a right under state law to in-
shall approve or deny an application for an       formation about hazardous substances found
Occupational Safety and Health Grant. If the      in your place of employment. For this infor-
director approves a grant under this section,     mation, contact your employer.
the director shall set the amount of the grant    __________________________________________
awarded to the grant recipient.
     (4) The director shall monitor grant re-         (4) Notwithstanding any other provision
cipients for compliance with grant criteria       of this chapter or ORS 192.410 to 192.505, an
and procedures established by the director.       employer may withhold the precise chemical

                                              137
654.200                              LABOR AND EMPLOYMENT

name of a chemical only if the employer can                duties, issue an inspection warrant whenever
substantiate that:                                         an inspection or investigation of any place
    (a) The chemical name is a trade secret                of employment is required or authorized by
with commercial value that can be protected                any state or local statute, ordinance or reg-
only by limiting disclosure; and                           ulation relating to occupational safety or
                                                           health. The inspection warrant is an order
    (b) The commercial value of the product                authorizing the safety or health inspection
cannot be preserved by withholding the                     or investigation to be conducted at a desig-
processes, mixture percentages or other as-                nated place of employment. [1971 c.405 §1; 1973
pects of the production of the product in-                 c.833 §25; 1977 c.804 §41]
stead of its chemical constituents.                             654.205 [Repealed by 1959 c.516 §6]
    (5) A trade secret designation claimed
under subsection (4) of this section may be                    654.206 Grounds for issuance of in-
subject to yearly review.                                  spection warrants; requirements of affi-
                                                           davit. (1) An inspection warrant shall be
    (6) Notwithstanding any other provision                issued only upon cause, supported by affida-
of this chapter or ORS 192.410 to 192.505, if              vit, particularly describing the applicant’s
a treating physician or health professional                status in applying for the warrant hereunder,
concludes that the chemical identity of a                  the statute, ordinance or regulation requir-
hazardous chemical used in an employer’s                   ing or authorizing the inspection or investi-
place of employment is necessary to pre-                   gation, the place of employment to be
scribe necessary treatment for a patient, the              inspected or investigated and the purpose for
employer may not require the physician or                  which the inspection or investigation is to
health professional to sign a confidentiality              be made including the basis upon which
agreement as a condition to the release of                 cause exists to inspect. In addition, the affi-
the information by the employer, manufac-                  davit shall contain either a statement that
turer or importer. [1985 c.683 §§3,4,5; 1999 c.232 §2;     entry has been sought and refused or facts
2005 c.825 §18]                                            or circumstances reasonably showing that
                                                           the purposes of the inspection or investi-
           INJURED WORKERS’                                gation might be frustrated if entry were
        MEMORIAL SCHOLARSHIP                               sought without an inspection warrant.
    654.200 Scholarship account; use;                          (2) Cause shall be deemed to exist if rea-
standards for eligibility. (1) There is estab-             sonable legislative or administrative stan-
lished in the Consumer and Business Ser-                   dards for conducting a routine, periodic or
vices    Fund       the     Workers’        Memorial       area inspection are satisfied with respect to
Scholarship Account.            Only the interest          the particular place of employment, or there
earned on moneys in the account shall be                   is probable cause to believe that a condition
used by the Director of the Department of                  of nonconformity with a safety or health
Consumer and Business Services for the es-                 statute, ordinance, regulation, rule, standard
tablishment and administration of a scholar-               or order exists with respect to the particular
ship program to pay education related                      place of employment, or an investigation is
expenses of the spouses and children of                    reasonably believed to be necessary in order
workers who are killed or who have received                to determine or verify the cause of an
a permanent total disability award from in-                employee’s death, injury or illness. [1971 c.405
jury on the job. A maximum of $250,000 to                  §2; 1973 c.833 §26]
carry out the provisions of this section shall                  654.210 [Repealed by 1959 c.516 §6]
be credited to the account from civil penal-
ties recovered pursuant to ORS 654.086.                        654.212 Procedure for issuance of in-
                                                           spection warrant by magistrate. (1) Before
    (2) The director shall consult with the                issuing an inspection warrant, the magistrate
Safe Employment Education and Training                     may examine under oath the applicant and
Advisory Committee established pursuant to                 any other witness and shall be satisfied of
ORS 654.189 in determining the appropriate                 the existence of grounds for granting such
scholarship standard and in selecting the re-              application.
cipients. [1991 c.395 §2; 1993 c.597 §1; 1999 c.1058 §1]
                                                               (2) If the magistrate is satisfied that
                                                           cause for the inspection or investigation ex-
      HEALTH AND SANITATION                                ists and that the other requirements for
              INSPECTIONS                                  granting the application are satisfied, the
    654.202 Issuance of warrants for                       magistrate shall issue the warrant, partic-
safety and health inspections. Magistrates                 ularly describing the name and title of the
authorized to issue search warrants may,                   person or persons authorized to execute the
upon application of the Director of the De-                warrant, the place of employment to be en-
partment of Consumer and Business Services,                tered and the purpose of the inspection or
or any public officer, agent or employee of                investigation. The warrant shall contain a
the director acting in the course of official              direction that it be executed on any day of

                                                       138
                             OCCUPATIONAL SAFETY AND HEALTH                                                 654.290

the week between the hours of 8:00 a.m. and                  ute with the authority to make inspections
6:00 p.m., or where the magistrate has spe-                  of places of employment, or to promulgate
cially determined upon a showing that it                     regulations, rules or standards relating to
cannot be effectively executed between those                 particular areas of occupational safety and
hours, that it be executed at any additional                 health, shall render such advice and assist-
or other time of the day or night. [1971 c.405               ance to the Director of the Department of
§3; 1973 c.833 §27; 1987 c.158 §126]                         Consumer and Business Services as the di-
     654.215 [Repealed by 1959 c.516 §6]                     rector may reasonably request or prescribe
    654.216 Execution of inspection war-                     in order to carry out the purposes of ORS
rants. (1) Except as provided in subsection                  654.001 to 654.295, 654.412 to 654.423 and
(2) of this section, in executing an inspection              654.750 to 654.780. When any state agency
warrant, the person authorized to execute                    completes an inspection of a place of em-
the warrant shall, before entry, make a rea-                 ployment, it shall promptly notify the direc-
sonable effort to present the person’s cre-                  tor and the affected employer of any
dentials, authority and purpose to an                        condition that may violate any occupational
occupant or person in possession of the place                safety or health law, regulation, rule or
of employment designated in the warrant and                  standard.
show the occupant or person in possession                         (2) In addition to the inspection authority
of the place of employment the warrant or a                  granted to the director and the represen-
copy thereof upon request.                                   tatives and designees of the director by ORS
    (2) In executing an inspection warrant,                  654.001 to 654.295, 654.412 to 654.423 and
the person authorized to execute the warrant                 654.750 to 654.780, the Bureau of Labor and
need not inform anyone of the person’s au-                   Industries may inspect farm labor camps,
thority and purpose, as prescribed in subsec-                fields and facilities prior to occupancy and
tion (1) of this section, but may promptly                   as reasonably necessary or appropriate
enter the designated place of employment if                  thereafter, and shall report any violation of
it is at the time unoccupied or not in the                   occupational safety or health laws, regu-
possession of any person or at the time rea-                 lations, rules or standards to the director or
sonably believed to be in such condition.                    the designees of the director. [1973 c.833 §32
                                                             (enacted in lieu of 654.100); 1987 c.414 §160]
    (3) A peace officer may be requested to                       654.255 [Amended by 1955 c.643 §1; 1957 c.492 §1;
assist in the execution of the inspection                    1959 c.516 §3; renumbered 654.092]
warrant.                                                          654.260 [Amended by 1955 c.643 §2; repealed by 1959
    (4) An inspection warrant must be exe-                   c.516 §6]
cuted and returned to the magistrate by                           654.265 [Amended by 1955 c.644 §1; renumbered
whom it was issued within 10 days from its                   654.093]
date, unless such magistrate before the expi-                     654.270 [Renumbered 654.094]
ration of such time, by indorsement thereon,                      654.275 [Amended by 1959 c.516 §4; renumbered
extends the time for five days. After the ex-                654.096]
piration of the time prescribed by this sub-                     654.285 Admissibility of rules and or-
section, the warrant unless executed is void.                ders of department in evidence in pro-
[1971 c.405 §4; 1973 c.833 §28]
                                                             ceedings under ORS 654.001 to 654.295,
     654.220 [Repealed by 1959 c.516 §6]                     654.412 to 654.423 and 654.750 to 654.780.
     654.222 [1971 c.405 §5; repealed by 1973 c.833 §15      Except as provided in ORS 654.078 (7), every
(654.067 enacted in lieu of 654.047, 654.222 and 654.232)]
                                                             regulation, rule, standard, finding, decision
     654.225 [Amended by 1959 c.516 §1; renumbered           and order of the Department of Consumer
654.047]
                                                             and Business Services, general or special,
     654.226 [1971 c.405 §6; repealed by 1973 c.833 §29      made and entered under the provisions of
(654.241 enacted in lieu of 654.105 and 654.226)]
                                                             ORS 654.001 to 654.295, 654.412 to 654.423
     654.230 [Repealed by 1959 c.516 §6]
                                                             and 654.750 to 654.780 and which has become
     654.232 [1971 c.405 §7; repealed by 1973 c.833 §15      final by operation of law or on appeal, shall
(654.067 enacted in lieu of 654.047, 654.222 and 654.232)]
                                                             be admissible as evidence in any hearing,
     654.235 [Amended by 1959 c.516 §2; renumbered           civil proceeding or criminal prosecution con-
654.062]
                                                             ducted under the provisions of this chapter
     654.240 [Repealed by 1959 c.516 §6]
                                                             and shall, in every such hearing, proceeding
     654.241 [1973 c.833 §30 (enacted in lieu of 654.105     or prosecution, be conclusively presumed to
and 654.226); repealed by 1975 c.102 §4]
                                                             be reasonable and lawful and to fix a rea-
     654.245 [Repealed by 1959 c.516 §6]                     sonable and proper standard and requirement
     654.250 [Repealed by 1959 c.516 §6]                     of safety and health. [Formerly 654.085; 1977 c.804
                                                             §42]
    654.251 Assistance to director from
other state agencies; inspection of farm                         654.290 Applicability of Administrative
labor camps and facilities. (1) The Bureau                   Procedures Act; Administrative Law
of Labor and Industries and any other state                  Judge qualifications. (1) Promulgation by
agency which is vested under separate stat-                  the Director of the Department of Consumer

                                                         139
654.293                               LABOR AND EMPLOYMENT

and Business Services or by the Workers’                    standard or order remain in effect as fully as
Compensation Board of regulations, rules                    if the invalid part had not been adopted. [1973
and standards authorized by ORS 654.001 to                  c.833 §36]
654.295, 654.412 to 654.423 and 654.750 to
654.780, and any judicial review thereof, shall                    EMPLOYER LIABILITY LAW
be as provided in ORS chapter 183.                              654.305 Protection and safety of per-
    (2) Notwithstanding ORS 183.315 (1), the                sons in hazardous employment generally.
issuance of orders pursuant to ORS 654.001                  Generally, all owners, contractors or sub-
to 654.295, 654.412 to 654.423 and 654.750 to               contractors and other persons having charge
654.780, the conduct of hearings in contested               of, or responsibility for, any work involving
cases and the judicial review thereof shall be              a risk or danger to the employees or the
as provided in ORS chapter 183, except that:                public shall use every device, care and pre-
    (a) The chairperson of the Workers’                     caution that is practicable to use for the
Compensation Board or the designee of the                   protection and safety of life and limb, limited
chairperson shall employ Administrative Law                 only by the necessity for preserving the effi-
Judges to hold hearings in contested cases.                 ciency of the structure, machine or other
                                                            apparatus or device, and without regard to
    (b) The order of an Administrative Law                  the additional cost of suitable material or
Judge in a contested case shall be deemed to                safety appliance and devices. [Amended by 1997
be a final order of the board.                              c.249 §199]
    (c) The director shall have the same right                  654.310 Places of employment; compli-
to judicial review of the order of an Admin-                ance with applicable orders, rules. All
istrative Law Judge as any person who is                    owners, contractors, subcontractors, or per-
adversely affected or aggrieved by such final               sons whatsoever, engaged in the construc-
order.                                                      tion, repairing, alteration, removal or
    (d) Affected employees or their author-                 painting of any building, bridge, viaduct or
ized representative shall be accorded an op-                other structure, or in the erection or opera-
portunity to participate as parties in                      tion of any machinery, or in the manufac-
hearings.                                                   ture, transmission and use of electricity, or
                                                            in the manufacture or use of any dangerous
    (3) Administrative Law Judges shall be                  appliance or substance, shall see that all
members in good standing of the Oregon                      places of employment are in compliance with
State Bar and possess such other qualifica-                 every applicable order, decision, direction,
tions as the board may prescribe, and shall                 standard, rule or regulation made or pre-
be employed in accordance with ORS 656.724.                 scribed by the Department of Consumer and
[1973 c.833 §35 (enacted in lieu of 654.040, 654.065,
654.070, 654.075 and 654.080); 1975 c.759 §18; 1977 c.804   Business Services pursuant to ORS 654.001
§43; 1999 c.876 §1]                                         to 654.295, 654.412 to 654.423 and 654.750 to
                                                            654.780. [Amended by 1975 c.148 §1; 1977 c.804 §44]
    654.293 Representation of employer by
attorney permitted. Neither ORS 9.320 nor                       654.315 Persons in charge of work to
any provision in the Oregon Safe Employ-                    see that ORS 654.305 to 654.336 are com-
ment Act shall be construed to deny an em-                  plied with. The owners, contractors, sub-
ployer the right to be represented by an                    contractors, foremen, architects or other
attorney or any other authorized represen-                  persons having charge of the particular
tative designated by the employer in any                    work, shall see that the requirements of ORS
proceedings under ORS 654.001 to 654.295,                   654.305 to 654.336 are complied with.
654.412 to 654.423 and 654.750 to 654.780.                      654.320 Who considered agent of
[1975 c.370 §2]
                                                            owner. The manager, superintendent, fore-
    654.295 Application of Oregon Safe                      man or other person in charge or control of
Employment Act. (1) Nothing contained in                    all or part of the construction, works or op-
ORS 654.001 to 654.295, 654.412 to 654.423                  eration shall be held to be the agent of the
and 654.750 to 654.780 shall invalidate any                 employer in all suits for damages for death
existing occupational safety or health regu-                or injury suffered by an employee.
lation, rule, standard or order which is not                    654.325 Who may prosecute damage
clearly inconsistent with the purposes and                  action for death; damages unlimited. If
provisions of ORS 654.001 to 654.295, 654.412               there is any loss of life by reason of vio-
to 654.423 and 654.750 to 654.780.                          lations of ORS 654.305 to 654.336 by any
    (2) Where any part of a law, regulation,                owner, contractor or subcontractor or any
rule, standard or order is found to be clearly              person liable under ORS 654.305 to 654.336,
inconsistent with ORS 654.001 to 654.295,                   the surviving spouse and children and
654.412 to 654.423 and 654.750 to 654.780 and               adopted children of the person so killed and,
declared to be invalid, it is the intent of the             if none, then the lineal heirs of that person
Legislative Assembly that the remaining                     and, if none, then the mother or father, as
provisions of such law, regulation, rule,                   the case may be, shall have a right of action

                                                        140
                             OCCUPATIONAL SAFETY AND HEALTH                                       654.412

without any limit as to the amount of dam-             (c) A certified occupational health and
ages which may be awarded. If none of the          safety technologist or use the initials OHST
persons entitled to maintain such action re-       unless the person holds a current certifica-
side within the state, the executor or admin-      tion as an occupational health and safety
istrator of the deceased person may maintain       technologist from the American Board of In-
such action for their respective benefits and      dustrial Hygiene or the Board of Certified
in the order above named.                          Safety Professionals.
     654.330 Fellow servant negligence as              (d) A certified construction health and
defense. In all actions brought to recover         safety technician or use the initials CHST
from an employer for injuries suffered by an       unless the person holds a current certifica-
employee, the negligence of a fellow servant       tion as a construction health and safety
shall not be a defense where the injury was        technician from the American Board of In-
caused or contributed to by any of the fol-        dustrial Hygiene or the Board of Certified
lowing causes:                                     Safety Professionals.
     (1) Any defect in the structure, materials,       (e) A certified safety professional or use
works, plant or machinery of which the em-         the initials CSP unless the person holds a
ployer or the agent of the employer could          current designation as a certified safety pro-
have had knowledge by the exercise of ordi-        fessional from the Board of Certified Safety
nary care.                                         Professionals.
     (2) The neglect of any person engaged as          (f) An associate safety professional or use
superintendent, manager, foreman or other          the initials ASP unless the person holds a
person in charge or control of the works,          current designation as an associate safety
plant, machinery or appliances.                    professional from the Board of Certified
     (3) The incompetence or negligence of         Safety Professionals.
any person in charge of, or directing the              (2) The American Board of Industrial
particular work in which the employee was          Hygiene, the Board of Certified Safety Pro-
engaged at the time of the injury or death.        fessionals or a person lawfully practicing a
     (4) The incompetence or negligence of         profession listed in subsection (1) of this
any person to whose orders the employee            section may bring a private cause of action
was bound to conform and did conform and           in the appropriate court to recover damages
by reason of having conformed thereto the          up to $1,000 against any person who violates
injury or death resulted.                          subsection (1) of this section. The court may
                                                   provide such equitable relief as it deems
     (5) The act of any fellow servant done in     necessary or proper. The court may award
obedience to the rules, instructions or orders     reasonable attorney fees to the prevailing
given by the employer or any other person          party in an action under this section. [1999
who has authority to direct the doing of said      c.478 §1]
act.                                                     Note: 654.400 and 654.402 were enacted into law by
     654.335 [Repealed by 2001 c.865 §19]          the Legislative Assembly but were not added to or made
                                                   a part of ORS chapter 654 or any series therein by leg-
    654.336 Comparative negligence. The            islative action. See Preface to Oregon Revised Statutes
provisions of ORS 31.600 to 31.620 apply to        for further explanation.
an action under ORS 654.305 to 654.336. [2001
c.865 §17]                                             654.402 Activities permitted under
                                                   other designation, certification or license.
                                                   ORS 654.400 does not prevent a person le-
          SAFETY AND HEALTH                        gally regulated in this state under any other
             PROFESSIONALS                         licensing provisions, rules or regulations
    654.400 Use of title of industrial hy-         from engaging in the activities permitted un-
gienist, occupational health and safety            der that designation, certification or license
technologist, construction health and              provided that the person does not use the ti-
safety technician or safety professional;          tles or initials specified in ORS 654.400. [1999
cause of action. (1) No person may purport         c.478 §2]
to be:                                                  Note: See note under 654.400.
    (a) A certified industrial hygienist or use         654.405 [Repealed by 1973 c.833 §48]
the initials CIH unless the person holds a              654.410 [Repealed by 1973 c.833 §48]
current certification as an industrial hygien-
ist from the American Board of Industrial                 SAFETY OF HEALTH CARE
Hygiene.                                                           EMPLOYEES
    (b) An industrial hygienist in training or
use the initials IHIT unless the person holds          654.412 Definitions for ORS 654.412 to
a current designation as an industrial hy-         654.423. As used in ORS 654.412 to 654.423:
gienist in training from the American Board            (1) “Assault” means intentionally, know-
of Industrial Hygiene.                             ingly or recklessly causing physical injury.

                                               141
654.414                        LABOR AND EMPLOYMENT

     (2) “Health care employer” means:                 (B) Escalation cycles for assaultive be-
     (a) An ambulatory surgical center as de-     haviors;
fined in ORS 442.015.                                  (C) Factors that predict assaultive be-
     (b) A hospital as defined in ORS 442.015.    haviors;
     (3) “Home health care services” means             (D) Techniques for obtaining medical
items or services furnished to a patient by       history from a patient with assaultive behav-
an employee of a health care employer in a        ior;
place of temporary or permanent residence              (E) Verbal and physical techniques to
used as the patient’s home. [2007 c.397 §2]       de-escalate and minimize assaultive behav-
     654.414 Duties of health care em-            iors;
ployer; security and safety assessment;                (F) Strategies for avoiding physical harm
assault prevention program; require-              and minimizing use of restraints;
ments. (1) A health care employer shall:
                                                       (G) Restraint techniques consistent with
     (a) Conduct periodic security and safety     regulatory requirements;
assessments to identify existing or potential
hazards for assaults committed against em-             (H) Self-defense, including:
ployees;                                               (i) The amount of physical force that is
     (b) Develop and implement an assault         reasonably necessary to protect the employee
prevention and protection program for em-         or a third person from assault; and
ployees based on assessments conducted un-             (ii) The use of least restrictive proce-
der paragraph (a) of this subsection; and         dures necessary under the circumstances, in
     (c) Provide assault prevention and pro-      accordance with an approved behavior man-
tection training on a regular and ongoing         agement plan, and any other methods of re-
basis for employees.                              sponse approved by the health care employer;
     (2) An assessment conducted under sub-            (I) Procedures for documenting and re-
section (1)(a) of this section shall include,     porting incidents involving assaultive behav-
but need not be limited to:                       iors;
     (a) A measure of the frequency of as-             (J) Programs for post-incident counseling
saults committed against employees that oc-       and follow-up;
cur on the premises of a health care                   (K) Resources available to employees for
employer or in the home of a patient receiv-      coping with assaults; and
ing home health care services during the
preceding five years or for the years that re-         (L) The health care employer’s workplace
cords are available if fewer than five years      assault prevention and protection program.
of records are available; and                          (b) A health care employer shall provide
     (b) An identification of the causes and      assault prevention and protection training to
consequences of assaults against employees.       a new employee within 90 days of the
                                                  employee’s initial hiring date.
     (3) An assault prevention and protection
program developed and implemented by a                 (c) A health care employer may use
health care employer under subsection (1)(b)      classes, video recordings, brochures, verbal
of this section shall be based on an assess-      or written training or other training that the
ment conducted under subsection (1)(a) of         employer determines to be appropriate, based
this section and shall address security con-      on an employee’s job duties, under the as-
siderations related to the following:             sault prevention and protection program de-
     (a) Physical attributes of the health care   veloped by the employer. [2007 c.397 §3]
setting;                                             654.415 [Repealed by 1973 c.833 §48]
     (b) Staffing plans, including security            654.416 Required records of assaults
staffing;                                         against employees; contents; rules. (1) A
     (c) Personnel policies;                      health care employer shall maintain a record
                                                  of assaults committed against employees that
     (d) First aid and emergency procedures;      occur on the premises of the health care
     (e) Procedures for reporting assaults; and   employer or in the home of a patient receiv-
     (f) Education and training for employees.    ing home health care services. The record
                                                  shall include, but need not be limited to, the
     (4)(a) Assault prevention and protection     following:
training required under subsection (1)(c) of
this section shall address the following top-          (a) The name and address of the premises
ics:                                              on which each assault occurred;
     (A) General safety and personal safety            (b) The date, time and specific location
procedures;                                       where the assault occurred;

                                              142
                           OCCUPATIONAL SAFETY AND HEALTH                                          654.715

    (c) The name, job title and department or    sages indicating that the employee is being
ward assignment of the employee who was          assaulted. [2007 c.397 §6]
assaulted;                                           654.423 Use of physical force by home
    (d) A description of the person who com-     health care employee in self-defense
mitted the assault as a patient, visitor, em-    against assault. (1) A health care employer
ployee or other category;                        may not impose sanctions against an em-
    (e) A description of the assaultive behav-   ployee who used physical force in self-defense
ior as:                                          against an assault if the health care em-
                                                 ployer finds that the employee:
    (A) An assault with mild soreness, sur-
face abrasions, scratches or small bruises;          (a) Was acting in self-defense in response
                                                 to the use or imminent use of physical force;
    (B) An assault with major soreness, cuts         (b) Used an amount of physical force that
or large bruises;                                was reasonably necessary to protect the em-
    (C) An assault with severe lacerations, a    ployee or a third person from assault; and
bone fracture or a head injury; or                   (c) Used the least restrictive procedures
    (D) An assault with loss of limb or death;   necessary under the circumstances, in accor-
    (f) An identification of the physical in-    dance with an approved behavior manage-
jury;                                            ment plan, or other methods of response
                                                 approved by the health care employer.
    (g) A description of any weapon used;            (2) As used in this section, “self-defense”
    (h) The number of employees in the im-       means the use of physical force upon another
mediate area of the assault when it occurred;    person in self-defense or to defend a third
and                                              person. [2007 c.397 §7]
    (i) A description of actions taken by the         654.425 [Repealed by 1973 c.833 §48]
employees and the health care employer in             654.430 [Repealed by 1973 c.833 §48]
response to the assault.                              654.505 [Repealed by 1961 c.485 §29]
    (2) A health care employer shall maintain         654.510 [Amended by 1953 c.514 §5; 1957 c.201 §1;
                                                 1959 c.515 §1; repealed by 1961 c.485 §29]
the record of assaults described in subsection
(1) of this section for no fewer than five            654.515 [Repealed by 1961 c.485 §29]
years following a reported assault.                   654.520 [Amended by 1953 c.514 §5; repealed by 1961
                                                 c.485 §29]
    (3) The Director of the Department of             654.525 [Amended by 1959 c.657 §1; repealed by 1961
Consumer and Business Services shall adopt       c.485 §29]
by rule a common recording form for the               654.530 [Amended by 1953 c.514 §5; 1957 c.201 §2;
purposes of this section. [2007 c.397 §4]        repealed by 1961 c.485 §29]
    654.418 Protection of employee of                 654.532 [1953 c.514 §5; 1957 c.201 §3; repealed by 1961
                                                 c.485 §29]
health care employer after assault by pa-
tient. If a health care employer directs an           654.535 [Amended by 1953 c.514 §5; 1957 c.201 §4;
                                                 repealed by 1961 c.485 §29]
employee who has been assaulted by a pa-
tient on the premises of the health care em-          654.540 [Amended by 1957 c.465 §11; repealed by
                                                 1961 c.485 §29]
ployer to provide further treatment to the
                                                      654.545 [Amended by 1953 c.514 §5; repealed by 1961
patient, the employee may request that a         c.485 §29]
second employee accompany the employee
                                                      654.550 [Amended by 1953 c.514 §5; 1957 c.201 §5;
when treating the patient. If the health care    repealed by 1961 c.485 §29]
employer declines the employee’s request, the
                                                      654.605 [Repealed by 1973 c.833 §48]
health care employer may not require the
employee to treat the patient. [2007 c.397 §5]        654.610 [Repealed by 1973 c.833 §48]
                                                      654.705 [Repealed by 1967 c.150 §2]
   654.420 [Repealed by 1973 c.833 §48]
                                                      654.710 [Repealed by 1967 c.150 §2]
    654.421 Refusal to treat certain pa-
tients by home health care employee. (1)                 REPORTS OF ACCIDENTS
An employee who provides home health care           TO PUBLIC UTILITY COMMISSION
services may refuse to treat a patient unless
accompanied by a second employee if, based           654.715 Report of accidents to Public
on the patient’s past behavior or physical or    Utility Commission; investigation; sup-
mental condition, the employee believes that     plemental reports; rules. (1) Every public
the patient may assault the employee.            utility and telecommunications utility shall
                                                 give immediate notice by telegraph, tele-
    (2) An employee who provides home            phone or personally, to the Public Utility
health care services may refuse to treat a       Commission whenever any accident occurs
patient unless the employee is equipped with     within this state upon its premises, or di-
a communication device that allows the em-       rectly or indirectly arises from or is con-
ployee to transmit one-way or two-way mes-       nected with its maintenance or operation, if

                                             143
654.720                                 LABOR AND EMPLOYMENT

the accident is attended by loss of human life        (5) “Physical hazard” means a chemical
or limb or serious injury to person or prop-      for which there is scientifically valid evi-
erty.                                             dence that it is a combustible liquid, a com-
    (2) The Public Utility Commission may,        pressed gas, explosive, flammable, an organic
if the commission deems the public interest       peroxide, an oxidizer, pyrophoric, unstable or
requires it, investigate each such accident       water-reactive compound. [1987 c.832 §2]
forthwith, after giving the public utility or         654.760 Rules on hazardous chemicals,
telecommunications utility involved reason-       safety equipment and training. The De-
able notice of the time and place of such in-     partment of Consumer and Business Services
vestigation.                                      shall adopt rules that require employers in
    (3) The Public Utility Commission may         agriculture to:
adopt and amend rules and regulations gov-            (1) Provide adequate information to all
erning the form and content of reports to the     of their employees about hazardous chemi-
commission to enable the commission to as-        cals in use in the workplace and to which
certain relevant facts and circumstances at-      employees may reasonably be expected to be
tending such accident and the causes thereof.     exposed;
Whenever the original report is insufficient,         (2) Provide protective safety equipment
in the opinion of the commission, the com-        determined by rule to be adequate; and
mission may require the public utility or
telecommunications utility to file supple-            (3) Provide adequate training for em-
mental reports of accidents. [Amended by 1965     ployees mixing, loading, applying or other-
c.462 §2; 1987 c.447 §137; 1995 c.733 §48]        wise handling hazardous chemicals. [1987 c.832
                                                  §3; 1999 c.232 §3]
    654.720 Public inspection or use of re-
ports as evidence prohibited. No report, or           654.770 Basic information available to
any part thereof, required by ORS 654.715,        agricultural employers for employees;
shall be open to public inspection or be used     content; language. The Department of Con-
as evidence in any action for damages in any      sumer and Business Services shall develop
suit or action arising out of any matter          and make available basic information for ag-
mentioned in the report.                          riculture employers to use in informing and
                                                  training employees. The information shall
                                                  include, but need not be limited to, proper
     HAZARDOUS CHEMICALS USED                     personal hygiene, protective safety equip-
              IN AGRICULTURE                      ment, general safety rules, proper work
    654.750 Definitions for ORS 654.750 to        clothing, employee rights with respect to this
654.780. As used in this section and ORS          chapter and common symptoms of hazardous
654.760, 654.770 and 654.780, unless the con-     chemical exposure. The basic information
text requires otherwise:                          shall be developed in a variety of languages
                                                  including but not limited to English, Spanish,
    (1) “Employee” means any individual,          Russian, Thai, Japanese, Chinese, Laotian,
whether lawfully or unlawfully employed,          Vietnamese, Korean and Cambodian. [1987
who engages to furnish services for a re-         c.832 §4; 2005 c.22 §460]
muneration, financial or otherwise, subject
to the direction and control of an employer.          654.780 Providing basic information to
                                                  employees. Agriculture employers shall give
    (2) “Employer” means any person en-           all employees a copy of the basic information
gaged in agriculture who engages one or           developed by the Department of Consumer
more employees.                                   and Business Services for the purpose of in-
    (3) “Hazardous chemical” means any            forming employees pursuant to ORS 654.770.
chemical which is a physical or health haz-       The information shall be provided in the
ard.                                              employee’s own language if the department
                                                  has produced it in that language. The infor-
    (4) “Health hazard” means a chemical for      mation shall be provided to persons at the
which there is statistically significant evi-     time of hire. [1987 c.832 §5; 2005 c.22 §461]
dence, based on at least one study conducted
in accordance with established scientific
principles, that acute or chronic health ef-                           PENALTIES
fects may occur in exposed employees. The               654.990 [Amended by 1959 c.516 §5; 1961 c.485 §28;
term “health hazard” includes chemicals           1967 c.150 §1; repealed by 1973 c.833 §37 (654.991 enacted
which are carcinogenic, toxic or highly toxic     in lieu of 654.990)]
agents, reproductive toxins, irritants, corro-        654.991 Penalties. (1) Subject to ORS
sives, sensitizers, hepatotoxins, nephrotoxins,   153.022, any employer who willfully violates
neurotoxins, agents which act on the              any provision of, or any regulation, rule,
hematopoietic system, and agents which            standard or order promulgated pursuant to,
damage the lungs, skin, eyes or mucous            ORS 654.001 to 654.295, 654.412 to 654.423
membranes.                                        and 654.750 to 654.780, and that violation is

                                                144
                        OCCUPATIONAL SAFETY AND HEALTH                                          654.991

found to have caused or materially contrib-       654.750 to 654.780, without authority from
uted to the death of any employee, shall,         the Director of the Department of Consumer
upon conviction, be punished by a fine of not     and Business Services or the designees of the
more than $10,000 or by imprisonment for          director, shall, upon conviction, be punished
not more than six months, or by both; except      by a fine of not more than $1,000 or by im-
that if the conviction is for a violation com-    prisonment for not more than six months, or
mitted after a first conviction of such person,   by both.
punishment shall be by a fine of not more             (3) Whoever knowingly makes a false
than $20,000 or by imprisonment for not           statement, representation, or certification in
more than one year, or by both. For the           any application, record, report, plan, or other
purposes of this subsection, a violation is       document filed or required to be maintained
willful if it is committed knowingly by an        pursuant to ORS 654.001 to 654.295, 654.412
employer or supervisory employee who, hav-        to 654.423 and 654.750 to 654.780 shall, upon
ing a free will or choice, intentionally or       conviction, be punished by a fine of not more
knowingly disobeys or recklessly disregards       than $10,000 or by imprisonment for not
the requirements of a regulation, rule, stan-     more than six months, or by both.
dard or order. ORS 161.085 shall apply to             (4) Punishment under this section does
terms used in this section.                       not affect or lessen the civil liability of the
    (2) Any person who gives advance notice       offender. [1973 c.833 §38 (enacted in lieu of 654.990);
                                                  1977 c.455 §1; 1999 c.1051 §321]
of any inspection to be conducted under ORS
654.001 to 654.295, 654.412 to 654.423 and




                                              145
LABOR AND EMPLOYMENT




        146
                                           Chapter 183
                                              2009 EDITION

               Administrative Procedures Act; Legislative
                    Review of Rules; Civil Penalties

       ADMINISTRATIVE PROCEDURES ACT                     183.440    Subpoenas in contested cases
                (General Provisions)                     183.445    Subpoena by agency or attorney of record
183.310  Definitions for chapter                                    of party when agency not subject to ORS
                                                                    183.440
183.315  Application of provisions of chapter to
         certain agencies                                183.450    Evidence in contested cases
                                                         183.452    Representation of agencies at contested
                  (Adoption of Rules)                               case hearings
183.325   Delegation of rulemaking authority to          183.457    Representation of persons other than
          named officer or employee                                 agencies participating in contested case
183.330   Description of organization; service of or-               hearings
          der; rules coordinator; effect of not put-     183.458    Nonattorney representation of parties in
          ting order in writing                                     certain contested case hearings
183.332   Policy statement; conformity of state          183.459    Representation of home care worker by
          rules with equivalent federal laws and                    labor union representative
          rules
                                                         183.460    Examination of evidence by agency
183.333   Policy statement; public involvement in
          development of policy and drafting of          183.462    Agency statement of ex parte commu-
          rules; advisory committees                                nications; notice
183.335   Notice; content; public comment; tempo-        183.464    Proposed order by hearing officer;
          rary rule adoption, amendment or sus-                     amendment by agency; exemptions
          pension; substantial compliance required       183.470    Orders in contested cases
183.336   Cost of compliance effect on small busi-
          nesses                                                            (Judicial Review)
183.337   Procedure for agency adoption of federal       183.480    Judicial review of agency orders
          rules                                          183.482    Jurisdiction for review of contested cases;
183.341   Model rules of procedure; establishment;                  procedure; scope of court authority
          compilation; publication; agencies re-         183.484    Jurisdiction for review of orders other
          quired to adopt procedural rules                          than contested cases; procedure; scope of
183.355   Filing and taking effect of rules; filing of              court authority
          executive orders; copies; fees
                                                         183.485    Decision of court on review of contested
183.360   Publication of rules and orders; excep-                   case
          tions; requirements; bulletin; judicial no-
          tice; citation                                 183.486    Form and scope of decision of reviewing
                                                                    court
183.362   Program for biennial publication of Ore-
          gon Administrative Rules                       183.490    Agency may be compelled to act
183.365   Publication of administrative rules in         183.497    Awarding costs and attorney fees when
          electronic form                                           finding for petitioner
183.370   Distribution of published rules
                                                                     (Appeals From Circuit Courts)
183.390   Petitions requesting adoption of rules
                                                         183.500    Appeals
183.400   Judicial determination of validity of rule
183.405   Agency review of rules                                    (Alternative Dispute Resolution)
183.410   Agency determination of applicability of       183.502    Authority of agencies to use alternative
          rule or statute to petitioner; effect; judi-              means of dispute resolution; model rules;
          cial review                                               amendment of agreements and forms;
                                                                    agency alternative dispute resolution pro-
                  (Contested Cases)                                 grams
183.411   Delegation of final order authority
183.413   Notice to parties before hearing of rights                (Housing Cost Impact Statement)
          and procedure; failure to provide notice       183.530    Housing cost impact statement required
183.415   Notice of right to hearing                                for certain proposed rules
183.417   Procedure in contested case hearing            183.534    Housing cost impact statement described;
183.425   Depositions or subpoena of material wit-                  rules
          ness; discovery                                183.538    Effect of failure to prepare housing cost
183.430   Hearing on refusal to renew license; ex-                  impact statement; judicial review
          ceptions
183.435   Period allowed to request hearing for li-                (Effects of Rules on Small Business)
          cense refusal on grounds other than test       183.540     Reduction of economic impact on small
          or inspection results                                      business



                                                     147
                             EXECUTIVE BRANCH; ORGANIZATION

          (Office of Administrative Hearings)                           PERMITS AND LICENSES
183.605    Office of Administrative Hearings             183.700    Permits subject to ORS 183.702
183.610    Chief administrative law judge                183.702    Statement of criteria and procedures for
183.615    Administrative law judges; duties; quali-                evaluating permit application; documen-
           fications; rules                                         tation of decision on application; required
                                                                    signature
183.620    Contract administrative law judges
                                                         183.705    Extended term for renewed licenses; fees;
183.625    Assignment of administrative law judges;                 continuing education; rules
           conduct of hearings
183.630    Model rules of procedure; exemptions; de-               LEGISLATIVE REVIEW OF RULES
           positions                                     183.710    Definitions for ORS 183.710 to 183.725
183.635    Agencies required to use administrative       183.715    Submission of adopted rule to Legislative
           law judges from Office of Administrative                 Counsel required; exception
           Hearings; exceptions
                                                         183.720    Procedure for review of agency rule; re-
183.640    Use of Office of Administrative Hearings                 ports on rules claimed to be duplicative
           by exempt agencies and by political sub-                 or conflicting
           divisions
                                                         183.722    Required agency response to Legislative
183.645    Request for change of administrative law                 Counsel determination; consideration of
           judge; rules                                             determination by interim committee
183.650    Form of order; modification of form of        183.724    Designation of interim committees for
           order by agency; finding of historical fact              purposes of considering rule reports
183.655    Fees                                          183.725    Other authorized rule review by Legisla-
183.660    Office of Administrative Hearings Operat-                tive Counsel Committee
           ing Account
183.665    Estimates of office expenses                                    CIVIL PENALTIES
183.670    Rules                                         183.745    Civil penalty procedures; notice; hearing;
183.675    Alternative dispute resolution                           judicial review; exemptions; recording;
                                                                    enforcement
183.680    Standards and training program
183.685    Ex parte communications                              READABILITY OF PUBLIC WRITINGS
183.690    Office of Administrative Hearings Over-       183.750  State agency required to prepare public
           sight Committee                                        writings in readable form




                                                     148
                               ADMINISTRATIVE PROCEDURES ACT                                         183.310

     183.010 [Repealed by 1971 c.734 §21]                     “Order” includes any agency determination
     183.020 [Repealed by 1971 c.734 §21]                     or decision issued in connection with a con-
     183.025 [Formerly 182.065; 1993 c.729 §4; 2003 c.749     tested case proceeding. “Order” includes:
§8; renumbered 183.750 in 2003]
                                                                   (A) Agency action under ORS chapter
     183.030 [Repealed by 1971 c.734 §21]                     657 making determination for purposes of
     183.040 [Repealed by 1971 c.734 §21]                     unemployment compensation of employees of
     183.050 [Repealed by 1971 c.734 §21]                     the state;
     183.060 [1957 c.147 §1; repealed by 1969 c.292 §3]            (B) Agency action under ORS chapter 240
     183.090 [1991 c.734 §2; 1997 c.387 §3; 2001 c.621 §71;   which grants, denies, modifies, suspends or
renumbered 183.745 in 2003]                                   revokes any right or privilege of an employee
                                                              of the state; and
 ADMINISTRATIVE PROCEDURES ACT                                     (C) Agency action under ORS 468B.050 to
             (General Provisions)                             issue a permit.
     183.310 Definitions for chapter. As                           (b) “Final order” means final agency ac-
used in this chapter:                                         tion expressed in writing. “Final order” does
                                                              not include any tentative or preliminary
     (1) “Agency” means any state board,                      agency declaration or statement that:
commission, department, or division thereof,
or officer authorized by law to make rules or                      (A) Precedes final agency action; or
to issue orders, except those in the legisla-                      (B) Does not preclude further agency
tive and judicial branches.                                   consideration of the subject matter of the
     (2)(a) “Contested case” means a proceed-                 statement or declaration.
ing before an agency:                                              (7) “Party” means:
     (A) In which the individual legal rights,                     (a) Each person or agency entitled as of
duties or privileges of specific parties are re-              right to a hearing before the agency;
quired by statute or Constitution to be de-                        (b) Each person or agency named by the
termined only after an agency hearing at                      agency to be a party; or
which such specific parties are entitled to
appear and be heard;                                               (c) Any person requesting to participate
                                                              before the agency as a party or in a limited
     (B) Where the agency has discretion to                   party status which the agency determines ei-
suspend or revoke a right or privilege of a                   ther has an interest in the outcome of the
person;                                                       agency’s proceeding or represents a public
     (C) For the suspension, revocation or re-                interest in such result. The agency’s deter-
fusal to renew or issue a license where the                   mination is subject to judicial review in the
licensee or applicant for a license demands                   manner provided by ORS 183.482 after the
such hearing; or                                              agency has issued its final order in the pro-
     (D) Where the agency by rule or order                    ceedings.
provides for hearings substantially of the                         (8) “Person” means any individual, part-
character required by ORS 183.415, 183.417,                   nership, corporation, association, govern-
183.425, 183.450, 183.460 and 183.470.                        mental subdivision or public or private
     (b) “Contested case” does not include                    organization of any character other than an
proceedings in which an agency decision                       agency.
rests solely on the result of a test.                              (9) “Rule” means any agency directive,
     (3) “Economic effect” means the eco-                     standard, regulation or statement of general
nomic impact on affected businesses by and                    applicability that implements, interprets or
the costs of compliance, if any, with a rule                  prescribes law or policy, or describes the
for businesses, including but not limited to                  procedure or practice requirements of any
the costs of equipment, supplies, labor and                   agency. The term includes the amendment or
administration.                                               repeal of a prior rule, but does not include:
     (4) “Hearing officer” includes an admin-                      (a) Unless a hearing is required by stat-
istrative law judge.                                          ute, internal management directives, regu-
                                                              lations or statements which do not
     (5) “License” includes the whole or part                 substantially affect the interests of the pub-
of any agency permit, certificate, approval,                  lic:
registration or similar form of permission re-
quired by law to pursue any commercial ac-                         (A) Between agencies, or their officers or
tivity, trade, occupation or profession.                      their employees; or
     (6)(a) “Order” means any agency action                        (B) Within an agency, between its offi-
expressed orally or in writing directed to a                  cers or between employees.
named person or named persons, other than                          (b) Action by agencies directed to other
employees, officers or members of an agency.                  agencies or other units of government which

                                                          149
183.315                         EXECUTIVE BRANCH; ORGANIZATION

do not substantially affect the interests of                    and 183.490 to 183.500 do not apply to orders
the public.                                                     issued to persons who:
    (c) Declaratory rulings issued pursuant                         (a) Have been committed pursuant to
to ORS 183.410 or 305.105.                                      ORS 137.124 to the custody of the Depart-
    (d) Intra-agency memoranda.                                 ment of Corrections or are otherwise con-
                                                                fined in a Department of Corrections facility;
    (e) Executive orders of the Governor.                       or
    (f) Rules of conduct for persons commit-                        (b) Seek to visit an inmate confined in a
ted to the physical and legal custody of the                    Department of Corrections facility.
Department of Corrections, the violation of
which will not result in:                                           (6) ORS 183.410, 183.415, 183.417, 183.425,
                                                                183.440, 183.450, 183.460, 183.470 and 183.482
    (A) Placement in segregation or isolation                   (3) do not apply to the Public Utility Com-
status in excess of seven days.                                 mission. Notwithstanding ORS 183.480 and
    (B) Institutional transfer or other trans-                  except as provided in ORS 757.495 and
fer to secure confinement status for discipli-                  759.390, only a party to a hearing before the
nary reasons.                                                   Public Utility Commission is entitled to seek
    (C) Disciplinary procedures adopted pur-                    judicial review of an order of the commis-
suant to ORS 421.180.                                           sion.
    (10) “Small business” means a corpo-                            (7) The provisions of this chapter do not
ration, partnership, sole proprietorship or                     apply to the suspension, cancellation or ter-
other legal entity formed for the purpose of                    mination of an apprenticeship or training
making a profit, which is independently                         agreement under ORS 660.060.
owned and operated from all other businesses                        (8) The provisions of ORS 183.413 to
and which has 50 or fewer employees. [1957                      183.497 do not apply to administrative pro-
c.717 §1; 1965 c.285 §78a; 1967 c.419 §32; 1969 c.80 §37a;      ceedings conducted under rules adopted by
1971 c.734 §1; 1973 c.386 §4; 1973 c.621 §1a; 1977 c.374 §1;
1977 c.798 §1; 1979 c.593 §6; 1981 c.755 §1; 1987 c.320 §141;   the Secretary of State under ORS 246.190.
1987 c.861 §1; 2003 c.75 §71; 2005 c.523 §8; 2007 c.288 §9]     [1971 c.734 §19; 1973 c.612 §3; 1973 c.621 §2; 1973 c.694
                                                                §1; 1975 c.759 §1; 1977 c.804 §45; 1979 c.593 §7; 1981 c.711
    183.315 Application of provisions of                        §16; 1987 c.320 §142; 1987 c.373 §21; 1989 c.90 §1; 1997 c.26
chapter to certain agencies. (1) The pro-                       §1; 1999 c.448 §6; 1999 c.679 §1; 2003 c.64 §8; 2005 c.512
                                                                §30; 2005 c.638 §1; 2007 c.239 §8; 2007 c.288 §10]
visions of ORS 183.410, 183.415, 183.417,
183.425, 183.440, 183.450, 183.452, 183.458,                         183.317 [1971 c.734 §187; repealed by 1979 c.593 §34]
183.460, 183.470 and 183.480 do not apply to                         183.320 [1957 c.717 §15; repealed by 1971 c.734 §21]
local government boundary commissions cre-
ated pursuant to ORS 199.430, the Depart-                                    (Adoption of Rules)
ment of Revenue, State Accident Insurance
Fund Corporation, Department of Consumer                             183.325 Delegation of rulemaking au-
and Business Services with respect to its                       thority to named officer or employee.
functions under ORS chapters 654 and 656,                       Unless otherwise provided by law, an agency
Psychiatric Security Review Board or State                      may delegate its rulemaking authority to an
Board of Parole and Post-Prison Supervision.                    officer or employee within the agency. A de-
    (2) This chapter does not apply with re-                    legation of authority under this section must
spect to actions of the Governor authorized                     be made in writing and filed with the Secre-
under ORS chapter 240 and ORS 396.125 or                        tary of State before the filing of any rule
actions of the Adjutant General authorized                      adopted pursuant to the delegation. A deleg-
under ORS 396.160 (14).                                         ation under this section may be made only
                                                                to one or more named individuals. The de-
    (3) The provisions of ORS 183.410,                          legation of authority shall reflect the name
183.415, 183.417, 183.425, 183.440, 183.450,                    of the authorized individual or individuals,
183.452, 183.458 and 183.460 do not apply to                    and be signed in acknowledgment by the
the Employment Appeals Board or the Em-                         named individuals. Any officer or employee
ployment Department.                                            to whom rulemaking authority is delegated
    (4) The Employment Department shall be                      under this section is an “agency” for the
exempt from the provisions of this chapter to                   purposes of the rulemaking requirements of
the extent that a formal finding of the                         this chapter. [1979 c.593 §10; 1993 c.729 §1]
United States Secretary of Labor is made                             183.330 Description of organization;
that such provision conflicts with the terms                    service of order; rules coordinator; effect
of the federal law, acceptance of which by                      of not putting order in writing. (1) In ad-
the state is a condition precedent to contin-                   dition to other rulemaking requirements im-
ued certification by the United States Secre-                   posed by law, each agency shall publish a
tary of Labor of the state’s law.                               description of its organization and the meth-
    (5) The provisions of ORS 183.415 to                        ods whereby the public may obtain informa-
183.430, 183.440 to 183.460, 183.470 to 183.485                 tion or make submissions or requests.

                                                            150
                                ADMINISTRATIVE PROCEDURES ACT                                        183.335

     (2) Each state agency that adopts rules               giving notice of intent to adopt a rule. The
shall appoint a rules coordinator and file a               agency may appoint an advisory committee
copy of that appointment with the Secretary                that will represent the interests of persons
of State. The rules coordinator shall:                     likely to be affected by the rule, or use any
     (a) Maintain copies of all rules adopted              other means of obtaining public views that
by the agency and be able to provide infor-                will assist the agency in drafting the rule.
mation to the public about the status of                       (2) Any agency in its discretion may de-
those rules;                                               velop a list of interested parties and inform
     (b) Provide information to the public on              those parties of any issue that may be the
all rulemaking proceedings of the agency;                  subject of rulemaking and invite the parties
and                                                        to make comments on the issue.
     (c) Keep and make available the mailing                   (3) If an agency appoints an advisory
list required by ORS 183.335 (8).                          committee for consideration of a rule under
                                                           subsection (1) of this section, the agency
     (3) An order shall not be effective as to             shall seek the committee’s recommendations
any person or party unless it is served upon