ORS 656.268
Claim closure

  • termination of temporary total disability benefits
  • reconsideration of closure
  • medical arbiter to make findings of impairment for reconsideration
  • credit or offset for fraudulently obtained or overpaid benefits
  • rules

(1)

One purpose of this chapter is to restore the injured worker as soon as possible and as near as possible to a condition of self support and maintenance as an able-bodied worker. The insurer or self-insured employer shall close the worker’s claim, as prescribed by the Director of the Department of Consumer and Business Services, and determine the extent of the worker’s permanent disability, provided the worker is not enrolled and actively engaged in training according to rules adopted by the director pursuant to ORS 656.340 (Vocational assistance procedure) and 656.726 (Duties and powers to carry out workers’ compensation and occupational safety laws), when:

(a)

The worker has become medically stationary and there is sufficient information to determine permanent disability;

(b)

The accepted injury is no longer the major contributing cause of the worker’s combined or consequential condition or conditions pursuant to ORS 656.005 (Definitions) (7). When the claim is closed because the accepted injury is no longer the major contributing cause of the worker’s combined or consequential condition or conditions, and there is sufficient information to determine permanent disability, the likely permanent disability that would have been due to the current accepted condition shall be estimated;

(c)

Without the approval of the attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided), the worker fails to seek medical treatment for a period of 30 days or the worker fails to attend a closing examination, unless the worker affirmatively establishes that such failure is attributable to reasons beyond the worker’s control; or

(d)

An insurer or self-insured employer finds that a worker who has been receiving permanent total disability benefits has materially improved and is capable of regularly performing work at a gainful and suitable occupation.

(2)

If the worker is enrolled and actively engaged in training according to rules adopted pursuant to ORS 656.340 (Vocational assistance procedure) and 656.726 (Duties and powers to carry out workers’ compensation and occupational safety laws), the temporary disability compensation shall be proportionately reduced by any sums earned during the training.

(3)

A copy of all medical reports and reports of vocational rehabilitation agencies or counselors shall be furnished to the worker, if requested by the worker.

(4)

Temporary total disability benefits shall continue until whichever of the following events first occurs:

(a)

The worker returns to regular or modified employment;

(b)

The attending physician or nurse practitioner who has authorized temporary disability benefits for the worker under ORS 656.245 (Medical services to be provided) advises the worker and documents in writing that the worker is released to return to regular employment;

(c)

The attending physician or nurse practitioner who has authorized temporary disability benefits for the worker under ORS 656.245 (Medical services to be provided) advises the worker and documents in writing that the worker is released to return to modified employment, such employment is offered in writing to the worker and the worker fails to begin such employment. However, an offer of modified employment may be refused by the worker without the termination of temporary total disability benefits if the offer:

(A)

Requires a commute that is beyond the physical capacity of the worker according to the worker’s attending physician or the nurse practitioner who may authorize temporary disability under ORS 656.245 (Medical services to be provided);

(B)

Is at a work site more than 50 miles one way from where the worker was injured unless the site is less than 50 miles from the worker’s residence or the intent of the parties at the time of hire or as established by the pattern of employment prior to the injury was that the employer had multiple or mobile work sites and the worker could be assigned to any such site;

(C)

Is not with the employer at injury;

(D)

Is not at a work site of the employer at injury;

(E)

Is not consistent with the existing written shift change policy or is not consistent with common practice of the employer at injury or aggravation; or

(F)

Is not consistent with an existing shift change provision of an applicable collective bargaining agreement;

(d)

Any other event that causes temporary disability benefits to be lawfully suspended, withheld or terminated under ORS 656.262 (Processing of claims and payment of compensation) (4) or other provisions of this chapter; or

(e)

Notwithstanding paragraph (c)(C), (D), (E) and (F) of this subsection, the attending physician or nurse practitioner who has authorized temporary disability benefits under ORS 656.245 (Medical services to be provided) for a home care worker or a personal support worker who has been made a subject worker pursuant to ORS 656.039 (Election of coverage for workers not subject to law) advises the home care worker or personal support worker and documents in writing that the home care worker or personal support worker is released to return to modified employment, appropriate modified employment is offered in writing by the Home Care Commission or a designee of the commission to the home care worker or personal support worker for any client of the Department of Human Services who employs a home care worker or personal support worker and the worker fails to begin the employment.

(5)

Intentionally left blank —Ed.

(a)

Findings by the insurer or self-insured employer regarding the extent of the worker’s disability in closure of the claim shall be pursuant to the standards prescribed by the director.

(b)

The insurer or self-insured employer shall issue a notice of closure of the claim to the worker, to the worker’s attorney if the worker is represented, and to the director. If the worker is deceased at the time the notice of closure is issued, the insurer or self-insured employer shall mail the worker’s copy of the notice of closure, addressed to the estate of the worker, to the worker’s last known address and may mail copies of the notice of closure to any known or potential beneficiaries to the estate of the deceased worker.

(c)

The notice of closure must inform:

(A)

The parties, in boldfaced type, of the proper manner in which to proceed if they are dissatisfied with the terms of the notice of closure;

(B)

The worker of:
(i)
The amount of any further compensation, including permanent disability compensation to be awarded;
(ii)
The duration of temporary total or temporary partial disability compensation;
(iii)
The right of the worker or beneficiaries of the worker who were mailed a copy of the notice of closure under paragraph (b) of this subsection to request reconsideration by the director under this section within 60 days of the date of the notice of closure;
(iv)
The right of beneficiaries who were not mailed a copy of the notice of closure under paragraph (b) of this subsection to request reconsideration by the director under this section within one year of the date the notice of closure was mailed to the estate of the worker under paragraph (b) of this subsection;
(v)
The right of the insurer or self-insured employer to request reconsideration by the director under this section within seven days of the date of the notice of closure;
(vi)
The aggravation rights; and
(vii)
Any other information as the director may require; and

(C)

Any beneficiaries of death benefits to which they may be entitled pursuant to ORS 656.204 (Death) and 656.208 (Death during permanent total disability).

(d)

If the insurer or self-insured employer has not issued a notice of closure, the worker may request closure. Within 10 days of receipt of a written request from the worker, the insurer or self-insured employer shall issue a notice of closure if the requirements of this section have been met or a notice of refusal to close if the requirements of this section have not been met. A notice of refusal to close shall advise the worker of:

(A)

The decision not to close;

(B)

The right of the worker to request a hearing pursuant to ORS 656.283 (Hearing rights and procedure) within 60 days of the date of the notice of refusal to close;

(C)

The right to be represented by an attorney; and

(D)

Any other information as the director may require.

(e)

If a worker, a worker’s beneficiary, an insurer or a self-insured employer objects to the notice of closure, the objecting party first must request reconsideration by the director under this section. A worker’s request for reconsideration must be made within 60 days of the date of the notice of closure. If the worker is deceased at the time the notice of closure is issued, a request for reconsideration by a beneficiary of the worker who was mailed a copy of the notice of closure under paragraph (b) of this subsection must be made within 60 days of the date of the notice of closure. A request for reconsideration by a beneficiary to the estate of a deceased worker who was not mailed a copy of the notice of closure under paragraph (b) of this subsection must be made within one year of the date the notice of closure was mailed to the estate of the worker under paragraph (b) of this subsection. A request for reconsideration by an insurer or self-insured employer may be based only on disagreement with the findings used to rate impairment and must be made within seven days of the date of the notice of closure.

(f)

If an insurer or self-insured employer has closed a claim or refused to close a claim pursuant to this section, if the correctness of that notice of closure or refusal to close is at issue in a hearing on the claim and if a finding is made at the hearing that the notice of closure or refusal to close was not reasonable, a penalty shall be assessed against the insurer or self-insured employer and paid to the worker in an amount equal to 25 percent of all compensation determined to be then due the claimant.

(g)

If, upon reconsideration of a claim closed by an insurer or self-insured employer, the director orders an increase by 25 percent or more of the amount of compensation to be paid to the worker for permanent disability and the worker is found upon reconsideration to be at least 20 percent permanently disabled, a penalty shall be assessed against the insurer or self-insured employer and paid to the worker in an amount equal to 25 percent of all compensation determined to be then due the claimant. If the increase in compensation results from information that the insurer or self-insured employer demonstrates the insurer or self-insured employer could not reasonably have known at the time of claim closure, from new information obtained through a medical arbiter examination or from a determination order issued by the director that addresses the extent of the worker’s permanent disability that is not based on the standards adopted pursuant to ORS 656.726 (Duties and powers to carry out workers’ compensation and occupational safety laws) (4)(f), the penalty shall not be assessed.

(6)

Intentionally left blank —Ed.

(a)

Notwithstanding any other provision of law, only one reconsideration proceeding may be held on each notice of closure. At the reconsideration proceeding:

(A)

A deposition arranged by the worker, limited to the testimony and cross-examination of the worker about the worker’s condition at the time of claim closure, shall become part of the reconsideration record. The deposition must be conducted subject to the opportunity for cross-examination by the insurer or self-insured employer and in accordance with rules adopted by the director. The cost of the court reporter, interpreter services, if necessary, and one original of the transcript of the deposition for the Department of Consumer and Business Services and one copy of the transcript of the deposition for each party shall be paid by the insurer or self-insured employer. The reconsideration proceeding may not be postponed to receive a deposition taken under this subparagraph. A deposition taken in accordance with this subparagraph may be received as evidence at a hearing even if the deposition is not prepared in time for use in the reconsideration proceeding.

(B)

Pursuant to rules adopted by the director, the worker or the insurer or self-insured employer may correct information in the record that is erroneous and may submit any medical evidence that should have been but was not submitted by the attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) at the time of claim closure.

(C)

If the director determines that a claim was not closed in accordance with subsection (1) of this section, the director may rescind the closure.

(b)

If necessary, the director may require additional medical or other information with respect to the claims and may postpone the reconsideration for not more than 60 additional calendar days.

(c)

In any reconsideration proceeding under this section in which the worker was represented by an attorney, the director shall order the insurer or self-insured employer to pay to the attorney, out of the additional compensation awarded, an amount equal to 10 percent of any additional compensation awarded to the worker.

(d)

Except as provided in subsection (7) of this section, the reconsideration proceeding shall be completed within 18 working days from the date the reconsideration proceeding begins, and shall be performed by a special evaluation appellate unit within the department. The deadline of 18 working days may be postponed by an additional 60 calendar days if within the 18 working days the department mails notice of review by a medical arbiter. If an order on reconsideration has not been mailed on or before 18 working days from the date the reconsideration proceeding begins, or within 18 working days plus the additional 60 calendar days where a notice for medical arbiter review was timely mailed or the director postponed the reconsideration pursuant to paragraph (b) of this subsection, or within such additional time as provided in subsection (8) of this section when reconsideration is postponed further because the worker has failed to cooperate in the medical arbiter examination, reconsideration shall be deemed denied and any further proceedings shall occur as though an order on reconsideration affirming the notice of closure was mailed on the date the order was due to issue.

(e)

The period for completing the reconsideration proceeding described in paragraph (d) of this subsection begins upon receipt by the director of a worker’s or a beneficiary’s request for reconsideration pursuant to subsection (5)(e) of this section. If the insurer or self-insured employer requests reconsideration, the period for reconsideration begins upon the earlier of the date of the request for reconsideration by the worker or beneficiary, the date of receipt of a waiver from the worker or beneficiary of the right to request reconsideration or the date of expiration of the right of the worker or beneficiary to request reconsideration. If a party elects not to file a separate request for reconsideration, the party does not waive the right to fully participate in the reconsideration proceeding, including the right to proceed with the reconsideration if the initiating party withdraws the request for reconsideration.

(f)

Any medical arbiter report may be received as evidence at a hearing even if the report is not prepared in time for use in the reconsideration proceeding.

(g)

If any party objects to the reconsideration order, the party may request a hearing under ORS 656.283 (Hearing rights and procedure) within 30 days from the date of the reconsideration order.

(7)

Intentionally left blank —Ed.

(a)

The director may delay the reconsideration proceeding and toll the reconsideration timeline established under subsection (6) of this section for up to 45 calendar days if:

(A)

A request for reconsideration of a notice of closure has been made to the director within 60 days of the date of the notice of closure;

(B)

The parties are actively engaged in settlement negotiations that include issues in dispute at reconsideration;

(C)

The parties agree to the delay; and

(D)

Both parties notify the director before the 18th working day after the reconsideration proceeding has begun that they request a delay under this subsection.

(b)

A delay of the reconsideration proceeding granted by the director under this subsection expires:

(A)

If a party requests the director to resume the reconsideration proceeding before the expiration of the delay period;

(B)

If the parties reach a settlement and the director receives a copy of the approved settlement documents before the expiration of the delay period; or

(C)

On the next calendar day following the expiration of the delay period authorized by the director.

(c)

Upon expiration of a delay granted under this subsection, the timeline for the completion of the reconsideration proceeding shall resume as if the delay had never been granted.

(d)

Compensation due the worker shall continue to be paid during the period of delay authorized under this subsection.

(e)

The director may authorize only one delay period for each reconsideration proceeding.

(8)

Intentionally left blank —Ed.

(a)

If the basis for objection to a notice of closure issued under this section is disagreement with the impairment used in rating of the worker’s disability, the director shall refer the claim to a medical arbiter appointed by the director.

(b)

If the director determines that insufficient medical information is available to determine disability, the director may appoint, and refer the claim to, a medical arbiter.

(c)

At the request of either of the parties, the director shall appoint a panel of as many as three medical arbiters in accordance with criteria that the director sets by rule.

(d)

The arbiter, or panel of medical arbiters, must be chosen from among a list of physicians qualified to be attending physicians referred to in ORS 656.005 (Definitions) (12)(b)(A) whom the director selected in consultation with the Oregon Medical Board and the committee referred to in ORS 656.790 (Workers’ Compensation Management-Labor Advisory Committee).

(e)

Intentionally left blank —Ed.

(A)

The medical arbiter or panel of medical arbiters may examine the worker and perform such tests as may be reasonable and necessary to establish the worker’s impairment.

(B)

If the director determines that the worker failed to attend the examination without good cause or failed to cooperate with the medical arbiter, or panel of medical arbiters, the director shall postpone the reconsideration proceedings for up to 60 days from the date of the determination that the worker failed to attend or cooperate, and shall suspend all disability benefits resulting from this or any prior opening of the claim until such time as the worker attends and cooperates with the examination or the request for reconsideration is withdrawn. Any additional evidence regarding good cause must be submitted prior to the conclusion of the 60-day postponement period.

(C)

At the conclusion of the 60-day postponement period, if the worker has not attended and cooperated with a medical arbiter examination or established good cause, the worker may not attend a medical arbiter examination for this claim closure. The reconsideration record must be closed, and the director shall issue an order on reconsideration based upon the existing record.

(D)

All disability benefits suspended under this subsection, including all disability benefits awarded in the order on reconsideration, or by an Administrative Law Judge, the Workers’ Compensation Board or upon court review, are not due and payable to the worker.

(f)

The insurer or self-insured employer shall pay the costs of examination and review by the medical arbiter or panel of medical arbiters.

(g)

The findings of the medical arbiter or panel of medical arbiters must be submitted to the director for reconsideration of the notice of closure.

(h)

After reconsideration, no subsequent medical evidence of the worker’s impairment is admissible before the director, the Workers’ Compensation Board or the courts for purposes of making findings of impairment on the claim closure.
(i)
Intentionally left blank —Ed.

(A)

If the basis for objection to a notice of closure issued under this section is a disagreement with the impairment used in rating the worker’s disability, and the director determines that the worker is not medically stationary at the time of the reconsideration or that the closure was not made pursuant to this section, the director is not required to appoint a medical arbiter before completing the reconsideration proceeding.

(B)

If the worker’s condition has substantially changed since the notice of closure, upon the consent of all the parties to the claim, the director shall postpone the proceeding until the worker’s condition is appropriate for claim closure under subsection (1) of this section.

(9)

No hearing shall be held on any issue that was not raised and preserved before the director at reconsideration. However, issues arising out of the reconsideration order may be addressed and resolved at hearing.

(10)

If, after the notice of closure issued pursuant to this section, the worker becomes enrolled and actively engaged in training according to rules adopted pursuant to ORS 656.340 (Vocational assistance procedure) and 656.726 (Duties and powers to carry out workers’ compensation and occupational safety laws), any permanent disability payments due for work disability under the closure shall be suspended, and the worker shall receive temporary disability compensation and any permanent disability payments due for impairment while the worker is enrolled and actively engaged in the training. When the worker ceases to be enrolled and actively engaged in the training, the insurer or self-insured employer shall again close the claim pursuant to this section if the worker is medically stationary or if the worker’s accepted injury is no longer the major contributing cause of the worker’s combined or consequential condition or conditions pursuant to ORS 656.005 (Definitions) (7). The closure shall include the duration of temporary total or temporary partial disability compensation. Permanent disability compensation shall be redetermined for work disability only. If the worker has returned to work or the worker’s attending physician has released the worker to return to regular or modified employment, the insurer or self-insured employer shall again close the claim. This notice of closure may be appealed only in the same manner as are other notices of closure under this section.

(11)

If the attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) has approved the worker’s return to work and there is a labor dispute in progress at the place of employment, the worker may refuse to return to that employment without loss of reemployment rights or any vocational assistance provided by this chapter.

(12)

Any notice of closure made under this section may include necessary adjustments in compensation paid or payable prior to the notice of closure, including disallowance of permanent disability payments prematurely made, crediting temporary disability payments against current or future permanent or temporary disability awards or payments and requiring the payment of temporary disability payments which were payable but not paid.

(13)

An insurer or self-insured employer may take a credit or offset of previously paid workers’ compensation benefits or payments against any further workers’ compensation benefits or payments due a worker from that insurer or self-insured employer when the worker admits to having obtained the previously paid benefits or payments through fraud, or a civil judgment or criminal conviction is entered against the worker for having obtained the previously paid benefits through fraud. Benefits or payments obtained through fraud by a worker may not be included in any data used for ratemaking or individual employer rating or dividend calculations by an insurer, a rating organization licensed pursuant to ORS chapter 737, the State Accident Insurance Fund Corporation or the director.

(14)

Intentionally left blank —Ed.

(a)

An insurer or self-insured employer may offset any compensation payable to the worker to recover an overpayment from a claim with the same insurer or self-insured employer. When overpayments are recovered from temporary disability or permanent total disability benefits, the amount recovered from each payment shall not exceed 25 percent of the payment, without prior authorization from the worker.

(b)

An insurer or self-insured employer may suspend and offset any compensation payable to the beneficiary of the worker, and recover an overpayment of permanent total disability benefits caused by the failure of the worker’s beneficiaries to notify the insurer or self-insured employer about the death of the worker.

(15)

Conditions that are direct medical sequelae to the original accepted condition shall be included in rating permanent disability of the claim unless they have been specifically denied. [1965 c.285 §31; 1973 c.620 §3; 1973 c.634 §2; 1977 c.804 §5; 1977 c.862 §1; 1979 c.839 §4; 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 §1; 1995 c.332 §30; 1997 c.111 §1; 1997 c.382 §1; 1999 c.313 §1; 1999 c.1020 §3; 2001 c.349 §1; 2001 c.377 §63; 2001 c.865 §12; 2003 c.429 §1; 2003 c.657 §§7,8; 2003 c.811 §§11,12; 2005 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 c.835 §§2,3; 2011 c.99 §1; 2015 c.144 §1; 2017 c.68 §1; 2018 c.75 §29]
Note: The amendments to 656.268 (Claim closure) by section 2, chapter 47, Oregon Laws 2021, become operative July 1, 2023. See section 4, chapter 47, Oregon Laws 2021. The text that is operative on and after July 1, 2023, is set forth for the user’s convenience.
656.268 (Claim closure). (1) One purpose of this chapter is to restore the injured worker as soon as possible and as near as possible to a condition of self support and maintenance as an able-bodied worker. The insurer or self-insured employer shall close the worker’s claim, as prescribed by the Director of the Department of Consumer and Business Services, and determine the extent of the worker’s permanent disability, provided the worker is not enrolled and actively engaged in training according to rules adopted by the director pursuant to ORS 656.340 (Vocational assistance procedure) and 656.726 (Duties and powers to carry out workers’ compensation and occupational safety laws), when:

(a)

The worker has become medically stationary and there is sufficient information to determine permanent disability;

(b)

The accepted injury is no longer the major contributing cause of the worker’s combined or consequential condition or conditions pursuant to ORS 656.005 (Definitions) (7). When the claim is closed because the accepted injury is no longer the major contributing cause of the worker’s combined or consequential condition or conditions, and there is sufficient information to determine permanent disability, the likely permanent disability that would have been due to the current accepted condition shall be estimated;

(c)

Without the approval of the attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided), the worker fails to seek medical treatment for a period of 30 days or the worker fails to attend a closing examination, unless the worker affirmatively establishes that such failure is attributable to reasons beyond the worker’s control; or

(d)

An insurer or self-insured employer finds that a worker who has been receiving permanent total disability benefits has materially improved and is capable of regularly performing work at a gainful and suitable occupation.

(2)

If the worker is enrolled and actively engaged in training according to rules adopted pursuant to ORS 656.340 (Vocational assistance procedure) and 656.726 (Duties and powers to carry out workers’ compensation and occupational safety laws), the temporary disability compensation shall be proportionately reduced by any sums earned during the training.

(3)

A copy of all medical reports and reports of vocational rehabilitation agencies or counselors shall be furnished to the worker, if requested by the worker.

(4)

Temporary total disability benefits shall continue until whichever of the following events first occurs:

(a)

The worker returns to regular or modified employment;

(b)

The attending physician or nurse practitioner who has authorized temporary disability benefits for the worker under ORS 656.245 (Medical services to be provided) advises the worker and documents in writing that the worker is released to return to regular employment;

(c)

The attending physician or nurse practitioner who has authorized temporary disability benefits for the worker under ORS 656.245 (Medical services to be provided) advises the worker and documents in writing that the worker is released to return to modified employment, such employment is offered in writing to the worker and the worker fails to begin such employment. However, an offer of modified employment may be refused by the worker without the termination of temporary total disability benefits if the offer:

(A)

Requires a commute that is beyond the physical capacity of the worker according to the worker’s attending physician or the nurse practitioner who may authorize temporary disability under ORS 656.245 (Medical services to be provided);

(B)

Is at a work site more than 50 miles one way from where the worker was injured unless the site is less than 50 miles from the worker’s residence or the intent of the parties at the time of hire or as established by the pattern of employment prior to the injury was that the employer had multiple or mobile work sites and the worker could be assigned to any such site;

(C)

Is not with the employer at injury;

(D)

Is not at a work site of the employer at injury;

(E)

Is not consistent with the existing written shift change policy or is not consistent with common practice of the employer at injury or aggravation; or

(F)

Is not consistent with an existing shift change provision of an applicable collective bargaining agreement;

(d)

Any other event that causes temporary disability benefits to be lawfully suspended, withheld or terminated under ORS 656.262 (Processing of claims and payment of compensation) (4) or other provisions of this chapter; or

(e)

Notwithstanding paragraph (c)(C), (D), (E) and (F) of this subsection, the attending physician or nurse practitioner who has authorized temporary disability benefits under ORS 656.245 (Medical services to be provided) for a home care worker or a personal support worker who has been made a subject worker pursuant to ORS 656.039 (Election of coverage for workers not subject to law) advises the home care worker or personal support worker and documents in writing that the home care worker or personal support worker is released to return to modified employment, appropriate modified employment is offered in writing by the Home Care Commission or a designee of the commission to the home care worker or personal support worker for any client of the Department of Human Services who employs a home care worker or personal support worker and the worker fails to begin the employment.

(5)

Intentionally left blank —Ed.

(a)

Findings by the insurer or self-insured employer regarding the extent of the worker’s disability in closure of the claim shall be pursuant to the standards prescribed by the director.

(b)

The insurer or self-insured employer shall issue a notice of closure of the claim to the worker and to the worker’s attorney if the worker is represented. The insurer or self-insured employer shall notify the director of the closure in the manner the director prescribes by rule. If the worker is deceased at the time the notice of closure is issued, the insurer or self-insured employer shall mail the worker’s copy of the notice of closure, addressed to the estate of the worker, to the worker’s last known address and may mail copies of the notice of closure to any known or potential beneficiaries to the estate of the deceased worker.

(c)

The notice of closure must inform:

(A)

The parties, in boldfaced type, of the proper manner in which to proceed if they are dissatisfied with the terms of the notice of closure;

(B)

The worker of:
(i)
The amount of any further compensation, including permanent disability compensation to be awarded;
(ii)
The duration of temporary total or temporary partial disability compensation;
(iii)
The right of the worker or beneficiaries of the worker who were mailed a copy of the notice of closure under paragraph (b) of this subsection to request reconsideration by the director under this section within 60 days of the date of the notice of closure;
(iv)
The right of beneficiaries who were not mailed a copy of the notice of closure under paragraph (b) of this subsection to request reconsideration by the director under this section within one year of the date the notice of closure was mailed to the estate of the worker under paragraph (b) of this subsection;
(v)
The right of the insurer or self-insured employer to request reconsideration by the director under this section within seven days of the date of the notice of closure;
(vi)
The aggravation rights; and
(vii)
Any other information as the director may require; and

(C)

Any beneficiaries of death benefits to which they may be entitled pursuant to ORS 656.204 (Death) and 656.208 (Death during permanent total disability).

(d)

If the insurer or self-insured employer has not issued a notice of closure, the worker may request closure. Within 10 days of receipt of a written request from the worker, the insurer or self-insured employer shall issue a notice of closure if the requirements of this section have been met or a notice of refusal to close if the requirements of this section have not been met. A notice of refusal to close shall advise the worker of:

(A)

The decision not to close;

(B)

The right of the worker to request a hearing pursuant to ORS 656.283 (Hearing rights and procedure) within 60 days of the date of the notice of refusal to close;

(C)

The right to be represented by an attorney; and

(D)

Any other information as the director may require.

(e)

If a worker, a worker’s beneficiary, an insurer or a self-insured employer objects to the notice of closure, the objecting party first must request reconsideration by the director under this section. A worker’s request for reconsideration must be made within 60 days of the date of the notice of closure. If the worker is deceased at the time the notice of closure is issued, a request for reconsideration by a beneficiary of the worker who was mailed a copy of the notice of closure under paragraph (b) of this subsection must be made within 60 days of the date of the notice of closure. A request for reconsideration by a beneficiary to the estate of a deceased worker who was not mailed a copy of the notice of closure under paragraph (b) of this subsection must be made within one year of the date the notice of closure was mailed to the estate of the worker under paragraph (b) of this subsection. A request for reconsideration by an insurer or self-insured employer may be based only on disagreement with the findings used to rate impairment and must be made within seven days of the date of the notice of closure.

(f)

If an insurer or self-insured employer has closed a claim or refused to close a claim pursuant to this section, if the correctness of that notice of closure or refusal to close is at issue in a hearing on the claim and if a finding is made at the hearing that the notice of closure or refusal to close was not reasonable, a penalty shall be assessed against the insurer or self-insured employer and paid to the worker in an amount equal to 25 percent of all compensation determined to be then due the claimant.

(g)

If, upon reconsideration of a claim closed by an insurer or self-insured employer, the director orders an increase by 25 percent or more of the amount of compensation to be paid to the worker for permanent disability and the worker is found upon reconsideration to be at least 20 percent permanently disabled, a penalty shall be assessed against the insurer or self-insured employer and paid to the worker in an amount equal to 25 percent of all compensation determined to be then due the claimant. If the increase in compensation results from information that the insurer or self-insured employer demonstrates the insurer or self-insured employer could not reasonably have known at the time of claim closure, from new information obtained through a medical arbiter examination or from a determination order issued by the director that addresses the extent of the worker’s permanent disability that is not based on the standards adopted pursuant to ORS 656.726 (Duties and powers to carry out workers’ compensation and occupational safety laws) (4)(f), the penalty shall not be assessed.

(6)

Intentionally left blank —Ed.

(a)

Notwithstanding any other provision of law, only one reconsideration proceeding may be held on each notice of closure. At the reconsideration proceeding:

(A)

A deposition arranged by the worker, limited to the testimony and cross-examination of the worker about the worker’s condition at the time of claim closure, shall become part of the reconsideration record. The deposition must be conducted subject to the opportunity for cross-examination by the insurer or self-insured employer and in accordance with rules adopted by the director. The cost of the court reporter, interpreter services, if necessary, and one original of the transcript of the deposition for the Department of Consumer and Business Services and one copy of the transcript of the deposition for each party shall be paid by the insurer or self-insured employer. The reconsideration proceeding may not be postponed to receive a deposition taken under this subparagraph. A deposition taken in accordance with this subparagraph may be received as evidence at a hearing even if the deposition is not prepared in time for use in the reconsideration proceeding.

(B)

Pursuant to rules adopted by the director, the worker or the insurer or self-insured employer may correct information in the record that is erroneous and may submit any medical evidence that should have been but was not submitted by the attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) at the time of claim closure.

(C)

If the director determines that a claim was not closed in accordance with subsection (1) of this section, the director may rescind the closure.

(b)

If necessary, the director may require additional medical or other information with respect to the claims and may postpone the reconsideration for not more than 60 additional calendar days.

(c)

In any reconsideration proceeding under this section in which the worker was represented by an attorney, the director shall order the insurer or self-insured employer to pay to the attorney, out of the additional compensation awarded, an amount equal to 10 percent of any additional compensation awarded to the worker.

(d)

Except as provided in subsection (7) of this section, the reconsideration proceeding shall be completed within 18 working days from the date the reconsideration proceeding begins, and shall be performed by a special evaluation appellate unit within the department. The deadline of 18 working days may be postponed by an additional 60 calendar days if within the 18 working days the department mails notice of review by a medical arbiter. If an order on reconsideration has not been mailed on or before 18 working days from the date the reconsideration proceeding begins, or within 18 working days plus the additional 60 calendar days where a notice for medical arbiter review was timely mailed or the director postponed the reconsideration pursuant to paragraph (b) of this subsection, or within such additional time as provided in subsection (8) of this section when reconsideration is postponed further because the worker has failed to cooperate in the medical arbiter examination, reconsideration shall be deemed denied and any further proceedings shall occur as though an order on reconsideration affirming the notice of closure was mailed on the date the order was due to issue.

(e)

The period for completing the reconsideration proceeding described in paragraph (d) of this subsection begins upon receipt by the director of a worker’s or a beneficiary’s request for reconsideration pursuant to subsection (5)(e) of this section. If the insurer or self-insured employer requests reconsideration, the period for reconsideration begins upon the earlier of the date of the request for reconsideration by the worker or beneficiary, the date of receipt of a waiver from the worker or beneficiary of the right to request reconsideration or the date of expiration of the right of the worker or beneficiary to request reconsideration. If a party elects not to file a separate request for reconsideration, the party does not waive the right to fully participate in the reconsideration proceeding, including the right to proceed with the reconsideration if the initiating party withdraws the request for reconsideration.

(f)

Any medical arbiter report may be received as evidence at a hearing even if the report is not prepared in time for use in the reconsideration proceeding.

(g)

If any party objects to the reconsideration order, the party may request a hearing under ORS 656.283 (Hearing rights and procedure) within 30 days from the date of the reconsideration order.

(7)

Intentionally left blank —Ed.

(a)

The director may delay the reconsideration proceeding and toll the reconsideration timeline established under subsection (6) of this section for up to 45 calendar days if:

(A)

A request for reconsideration of a notice of closure has been made to the director within 60 days of the date of the notice of closure;

(B)

The parties are actively engaged in settlement negotiations that include issues in dispute at reconsideration;

(C)

The parties agree to the delay; and

(D)

Both parties notify the director before the 18th working day after the reconsideration proceeding has begun that they request a delay under this subsection.

(b)

A delay of the reconsideration proceeding granted by the director under this subsection expires:

(A)

If a party requests the director to resume the reconsideration proceeding before the expiration of the delay period;

(B)

If the parties reach a settlement and the director receives a copy of the approved settlement documents before the expiration of the delay period; or

(C)

On the next calendar day following the expiration of the delay period authorized by the director.

(c)

Upon expiration of a delay granted under this subsection, the timeline for the completion of the reconsideration proceeding shall resume as if the delay had never been granted.

(d)

Compensation due the worker shall continue to be paid during the period of delay authorized under this subsection.

(e)

The director may authorize only one delay period for each reconsideration proceeding.

(8)

Intentionally left blank —Ed.

(a)

If the basis for objection to a notice of closure issued under this section is disagreement with the impairment used in rating of the worker’s disability, the director shall refer the claim to a medical arbiter appointed by the director.

(b)

If the director determines that insufficient medical information is available to determine disability, the director may appoint, and refer the claim to, a medical arbiter.

(c)

At the request of either of the parties, the director shall appoint a panel of as many as three medical arbiters in accordance with criteria that the director sets by rule.

(d)

The arbiter, or panel of medical arbiters, must be chosen from among a list of physicians qualified to be attending physicians referred to in ORS 656.005 (Definitions) (12)(b)(A) whom the director selected in consultation with the Oregon Medical Board and the committee referred to in ORS 656.790 (Workers’ Compensation Management-Labor Advisory Committee).

(e)

Intentionally left blank —Ed.

(A)

The medical arbiter or panel of medical arbiters may examine the worker and perform such tests as may be reasonable and necessary to establish the worker’s impairment.

(B)

If the director determines that the worker failed to attend the examination without good cause or failed to cooperate with the medical arbiter, or panel of medical arbiters, the director shall postpone the reconsideration proceedings for up to 60 days from the date of the determination that the worker failed to attend or cooperate, and shall suspend all disability benefits resulting from this or any prior opening of the claim until such time as the worker attends and cooperates with the examination or the request for reconsideration is withdrawn. Any additional evidence regarding good cause must be submitted prior to the conclusion of the 60-day postponement period.

(C)

At the conclusion of the 60-day postponement period, if the worker has not attended and cooperated with a medical arbiter examination or established good cause, the worker may not attend a medical arbiter examination for this claim closure. The reconsideration record must be closed, and the director shall issue an order on reconsideration based upon the existing record.

(D)

All disability benefits suspended under this subsection, including all disability benefits awarded in the order on reconsideration, or by an Administrative Law Judge, the Workers’ Compensation Board or upon court review, are not due and payable to the worker.

(f)

The insurer or self-insured employer shall pay the costs of examination and review by the medical arbiter or panel of medical arbiters.

(g)

The findings of the medical arbiter or panel of medical arbiters must be submitted to the director for reconsideration of the notice of closure.

(h)

After reconsideration, no subsequent medical evidence of the worker’s impairment is admissible before the director, the Workers’ Compensation Board or the courts for purposes of making findings of impairment on the claim closure.
(i)
Intentionally left blank —Ed.

(A)

If the basis for objection to a notice of closure issued under this section is a disagreement with the impairment used in rating the worker’s disability, and the director determines that the worker is not medically stationary at the time of the reconsideration or that the closure was not made pursuant to this section, the director is not required to appoint a medical arbiter before completing the reconsideration proceeding.

(B)

If the worker’s condition has substantially changed since the notice of closure, upon the consent of all the parties to the claim, the director shall postpone the proceeding until the worker’s condition is appropriate for claim closure under subsection (1) of this section.

(9)

No hearing shall be held on any issue that was not raised and preserved before the director at reconsideration. However, issues arising out of the reconsideration order may be addressed and resolved at hearing.

(10)

If, after the notice of closure issued pursuant to this section, the worker becomes enrolled and actively engaged in training according to rules adopted pursuant to ORS 656.340 (Vocational assistance procedure) and 656.726 (Duties and powers to carry out workers’ compensation and occupational safety laws), any permanent disability payments due for work disability under the closure shall be suspended, and the worker shall receive temporary disability compensation and any permanent disability payments due for impairment while the worker is enrolled and actively engaged in the training. When the worker ceases to be enrolled and actively engaged in the training, the insurer or self-insured employer shall again close the claim pursuant to this section if the worker is medically stationary or if the worker’s accepted injury is no longer the major contributing cause of the worker’s combined or consequential condition or conditions pursuant to ORS 656.005 (Definitions) (7). The closure shall include the duration of temporary total or temporary partial disability compensation. Permanent disability compensation shall be redetermined for work disability only. If the worker has returned to work or the worker’s attending physician has released the worker to return to regular or modified employment, the insurer or self-insured employer shall again close the claim. This notice of closure may be appealed only in the same manner as are other notices of closure under this section.

(11)

If the attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) has approved the worker’s return to work and there is a labor dispute in progress at the place of employment, the worker may refuse to return to that employment without loss of reemployment rights or any vocational assistance provided by this chapter.

(12)

Any notice of closure made under this section may include necessary adjustments in compensation paid or payable prior to the notice of closure, including disallowance of permanent disability payments prematurely made, crediting temporary disability payments against current or future permanent or temporary disability awards or payments and requiring the payment of temporary disability payments which were payable but not paid.

(13)

An insurer or self-insured employer may take a credit or offset of previously paid workers’ compensation benefits or payments against any further workers’ compensation benefits or payments due a worker from that insurer or self-insured employer when the worker admits to having obtained the previously paid benefits or payments through fraud, or a civil judgment or criminal conviction is entered against the worker for having obtained the previously paid benefits through fraud. Benefits or payments obtained through fraud by a worker may not be included in any data used for ratemaking or individual employer rating or dividend calculations by an insurer, a rating organization licensed pursuant to ORS chapter 737, the State Accident Insurance Fund Corporation or the director.

(14)

Intentionally left blank —Ed.

(a)

An insurer or self-insured employer may offset any compensation payable to the worker to recover an overpayment from a claim with the same insurer or self-insured employer. When overpayments are recovered from temporary disability or permanent total disability benefits, the amount recovered from each payment shall not exceed 25 percent of the payment, without prior authorization from the worker.

(b)

An insurer or self-insured employer may suspend and offset any compensation payable to the beneficiary of the worker, and recover an overpayment of permanent total disability benefits caused by the failure of the worker’s beneficiaries to notify the insurer or self-insured employer about the death of the worker.

(15)

Conditions that are direct medical sequelae to the original accepted condition shall be included in rating permanent disability of the claim unless they have been specifically denied.
Note: See second note under 656.262 (Processing of claims and payment of compensation).

Source: Section 656.268 — Claim closure; termination of temporary total disability benefits; reconsideration of closure; medical arbiter to make findings of impairment for reconsideration; credit or offset for fraudulently obtained or overpaid benefits; rules, https://www.­oregonlegislature.­gov/bills_laws/ors/ors656.­html.

Notes of Decisions

Employer has burden of proof at redetermination stage to show improvement in claimant’s condition. Bentley v. SAIF, 38 Or App 473, 590 P2d 746 (1979)

Legislature did not intend claimant’s appeal rights should prematurely terminate when aggravation rights expire, and where claim is opened during time claimant still has appeal rights, closure of claim carries with it right of appeal whenever issued. Coombs v. SAIF, 39 Or App 293, 592 P2d 242 (1979)

Requirement for disclosure of medical reports to claimant is not intended as limitation on power of board to order discovery. Morgan v. Stimson Lumber Co., 288 Or 595, 607 P2d 150 (1980)

Because claim was reopened during time claimant had right to appeal, closing order was not on board’s own motion and was therefore appealable. Carter v. SAIF, 52 Or App 1027, 630 P2d 397 (1981)

After vocational rehabilitation, claimant’s disability may be determined to be more or less than previously supposed even absent change in medical condition. Hanna v. SAIF, 65 Or App 649, 672 P2d 67 (1983)

District court had no jurisdiction over case regarding overpayment of workers’ compensation benefits. SAIF v. Harris, 66 Or App 165, 672 P2d 1384 (1983)

Where insurer’s notice to claimant contained all information to be provided in notice of closure except for fact it was notice of closure, claim remained in open status. Davison v. SAIF, 80 Or App 541, 723 P2d 331 (1986), modified 82 Or App 546, 728 P2d 582 (1986)

Requirement that party seek hearing within one year of issuance of determination order is not tolled pending claimant’s appeal from board order finding claim non-compensable, because extent of disability is independent determination. Weyerhaeuser Co. v. Roller, 85 Or App 500, 737 P2d 625 (1987)

Subsequent determination by Court of Appeals that claim was not compensable did not alter employer’s processing obligations during period prior to determination order. Weyerhaeuser Co. v. McCullough, 92 Or App 204, 757 P2d 871 (1988)

Where claimant is initially injured or becomes disabled as result of occupational disease while in work force, claimant is entitled to temporary total disability benefits until medically stationary and released for work, even though claimant voluntarily withdrew from work force prior to closure of claim. Weyerhaeuser Co. v. Kepford, 100 Or App 410, 786 P2d 745 (1990), Sup Ct review denied; Forshee & Langley Logging v. Peckham, 100 Or App 717, 788 P2d 487 (1990)

Where determination order was pending review and had not become final, worker could request hearing on benefit calculation error. Drews v. EBI Companies, 310 Or 134, 795 P2d 531 (1990); Hammon Stage Line v. Stinson, 123 Or App 418, 859 P2d 1180 (1993)

Employer must continue to pay temporary disability benefits for period after date claimant would otherwise have been laid off. International Paper Co. v. Huntley, 106 Or App 107, 806 P2d 188 (1991)

SAIF may seek review of order re-examining award of permanent total disability. Lehman v. SAIF, 107 Or App 207, 811 P2d 924 (1991)

Claimant who fails to report for physician approved modified work in order to participate in labor dispute has refused wage earning employment and is not entitled to continued temporary total disability benefits. Roseburg Forest Products v. Wilson, 110 Or App 72, 821 P2d 426 (1991)

Referee has subject matter jurisdiction over case even if request for hearing is subject to denial as untimely. SAIF v. Roles, 111 Or App 597, 826 P2d 1039 (1992), Sup Ct review denied

Claimant is not entitled to overpayment of temporary disability benefits for period between medically stationary date and claim closure. Lebanon Plywood v. Seiber, 113 Or App 651, 833 P2d 1367 (1992); Santos v. Caryall Transport, 152 Or App 322, 954 P2d 187 (1998)

Where claimant’s attending physician was unable to verify claimant’s inability to work, insurer or self-insured employer may suspend payment of temporary total disability, but claimant’s entitlement to temporary total disability does not terminate. Sandoval v. Crystal Pine, 118 Or App 640, 848 P2d 1224 (1993), Sup Ct review denied; Cameron v. Norco Contract Service, 128 Or App 422, 875 P2d 1196 (1994), Sup Ct review denied

Where redetermination order reducing disability is issued before payment under original award becomes due, redetermination effectively reduces award and excuses employer duty to pay original award. SAIF v. Sweeney, 121 Or App 142, 854 P2d 487 (1993)

Where payment under original award becomes due prior to issuance of redetermination order, original award obligation must be paid prior to redetermination date. SAIF v. Sweeney, 121 Or App 142, 854 P2d 487 (1993)

Workers’ compensation insurance carrier can offset amount of temporary disability overpaid to claimant by deducting amount from permanent disability award. Cravens v. SAIF Corp., 121 Or App 443, 855 P2d 1129 (1993)

Order to pay penalty for late payment to temporary total disability (TTD) is not final determination of TTD rate for purposes of claim preclusion analysis of res judicata. Cravens v. SAIF Corp., 121 Or App 443, 855 P2d 1129 (1993)

Where claimant had accepted employer’s offer of modified work, employer lockout of claimant during labor dispute effectively withdrew offer of modified work and claimant was entitled to temporary disability payments for period of lockout. Safeway Stores, Inc. v. Hanks, 122 Or App 582, 857 P2d 911 (1993), Sup Ct review denied

“No subsequent medical evidence” means medical evidence subsequent to medical arbiter’s report, not medical arbiter’s report. Pacheco-Gonzalez v. SAIF, 123 Or App 312, 860 P2d 822 (1993); Wickstrom v. Norpac Foods, Inc., 125 Or App 520, 865 P2d 491 (1993)

Where no medical arbiter was appointed, medical report prepared after issuance of reconsideration order was admissible at hearing before referee. Scheller v. Holly House, 125 Or App 454, 865 P2d 475 (1993), Sup Ct review denied

Whether worker is “20 percent disabled” is based on combined effect of all scheduled and unscheduled disability arising out of claim. Nero v. City of Tualatin, 127 Or App 458, 873 P2d 390 (1994), Sup Ct review denied. But see SAIF v. Cline, 135 Or App 155, 897 P2d 1172 (1995), Sup Ct review denied

Appointment of medical arbiter does not make prior impairment evaluations by other than attending physician admissible. Roseburg Forest Products v. Owen, 129 Or App 442, 879 P2d 1317 (1994)

Challenge to zero impairment rating was disagreement with impairment used. Sedgwick James of Oregon v. Hendrix, 130 Or App 564, 883 P2d 226 (1994)

Penalty awarded at reconsideration for disability above threshold level should not be sustained if disability is later reduced to be below threshold level. Mast v. Cardinal Services, Inc., 132 Or App 108, 887 P2d 814 (1994)

Where claimant refused examination by appointed medical arbitrator, submission of findings by medical arbitrator were not prerequisite to preclusion of subsequent medical evidence of impairment. Jackson v. Tuality Community Hospital, 132 Or App 182, 888 P2d 35 (1994), Sup Ct review denied

Where party fails to request reconsideration of determination order, issue of determination order propriety may not be raised at subsequent hearing. Duncan v. Liberty Northwest Ins. Corp., 133 Or App 605, 894 P2d 477 (1995)

Where determination order not challenged by party is changed by reconsideration order, at subsequent hearing where either party challenges propriety of change, determination order defines minimum or maximum award allowable. Duncan v. Liberty Northwest Ins. Corp., 133 Or App 605, 894 P2d 477 (1995)

Determination whether claimant is 20 percent disabled for purposes of award of attorney fees requires that impairment of body part be translated into measurement of total worker disability. SAIF v. Cline, 135 Or App 155, 897 P2d 1172 (1995), Sup Ct review denied

Reconsideration hearing held upon request of one party did not prevent later timely request by other party for additional reconsideration. Guardado v. J. R. Simplot Co., 137 Or App 95, 902 P2d 1225 (1995)

Reports “not prepared in time” for reconsideration proceeding do not include supplemental or clarifying medical arbiter reports. Tinh Xuan Pham Auto v. Bourgo, 143 Or App 73, 922 P2d 1255 (1996)

Notice of closure sets forth claimant’s award of benefits and precludes subsequent challenge to erroneous benefits awarded. Bowman v. Esam, Inc., 145 Or App 46, 928 P2d 359 (1996)

Medical evidence provided before claimant has become medically stationary may be considered for purpose of determining extent of disability. Liberty Mutual Insurance v. Englestadter, 145 Or App 330, 930 P2d 264 (1996)

Education factor used in determining disability must be rated as of reconsideration date. Baggett v. The Boeing Co., 150 Or App 269, 945 P2d 663 (1997)

Order denying reconsideration is reconsideration order for which party may request hearing before Workers’ Compensation Board under ORS 656.283. Jordan v. Brazier Forest Products, 152 Or App 15, 952 P2d 560 (1998)

1997 amendment imposing limit of one reconsideration proceeding did not apply retroactively. Franzen v. Liberty Mutual Fire Ins. Co., 154 Or App 503, 962 P2d 729 (1998)

For mandatory reconsideration to preclude further review under ORS 656.283, matter that claimant objects to must be manifest in notice of closure. Venetucci v. Metro, 155 Or App 559, 964 P2d 1090 (1998)

Cases where benefits have been paid in full are subject to requirement that disability be redetermined following training. SAIF v. Coburn, 159 Or App 413, 977 P2d 412 (1999), Sup Ct review denied

Cases where original determination order or notice of closure has become final are subject to requirement that disability be redetermined following training. SAIF v. Coburn, 159 Or App 413, 977 P2d 412 (1999), Sup Ct review denied

Where redetermination of disability following training results in reduced disability rating, amounts correctly paid according to earlier rating do not result in “overpayment.” SAIF v. Coburn, 159 Or App 413, 977 P2d 412 (1999), Sup Ct review denied

Deadline for issuance of reconsideration order does not prevent withdrawal of timely order and post-deadline issuance of amended order. Liberty Northwest Insurance Corp. v. Allenby, 166 Or App 331, 999 P2d 503 (2000), Sup Ct review denied; Boydston v. Liberty Northwest Insurance Corp., 166 Or App 336, 999 P2d 503 (2000), Sup Ct review denied

Under 1997 version of statute, closing examination by attending physician was not prerequisite to insurer closing of claim. Ball v. The Halton Company, 167 Or App 468, 6 P3d 1106 (2000), Sup Ct review denied

Under 1997 version of statute, insurer may not deny consequential claim without closing underlying accepted claim. Roy v. McCormack Pacific Co., 171 Or App 526, 17 P3d 550 (2000), modified 172 Or App 663, 19 P3d 999 (2001)

Claimant seeking permanent total disability benefits is entitled to opportunity for oral evidentiary hearing at some meaningful stage in appeal process because limiting record on reconsideration to written evidence denies claimant due process by preventing meaningful opportunity to meet burden of proof and persuasion. Koskela v. Willamette Industries, Inc., 331 Or 362, 15 P3d 548 (2000)

Unless direct medical sequela to original accepted condition has been specifically denied, both condition and its sequelae must be medically stationary at time of claim closure. Manley v. SAIF, 181 Or App 431, 45 P3d 1027 (2002)

Where continuing compensability of combined condition is denied because otherwise compensable injury is no longer major contributing cause of combined condition, underlying accepted injury remains compensable and must be properly closed. South Lane County School District #45-J3 v. Arms, 186 Or App 361, 62 P3d 882 (2003), Sup Ct review denied

Permanent partial disability award that has become final remains substantive entitlement during period following completion of training and prior to redetermination of permanent disability compensation. Holdren v. SAIF, 186 Or App 443, 63 P3d 1238 (2003)

Worker who accepts offer of modified employment may not subsequently claim right to refuse accepted employment because it is not with employer at injury or not at work site of employer at injury. Hammock v. SAIF, 198 Or App 480, 108 P3d 1185 (2005)

Penalty is not available where employer fails to issue either notice of claim closure or notice of refusal to close. Red Robin International v. Dombrosky, 207 Or App 476, 142 P3d 493 (2006)

For purposes of calculating penalty for failure to close claim, compensation “due” claimant is amount awarded in notice of closure, reduced by allowable offset for overpayment. Johnson v. SAIF Corp., 219 Or App 82, 180 P3d 1237 (2008)

Penalties may be assessed against insurer or self-insured employer multiple times during processing of single claim if claimant satisfies predicates for assessment of penalty in each instance. Cayton v. Safelite Glass Corporation, 232 Or App 454, 222 P3d 1134 (2009)

Insurer or self-insured employer who is penalized for refusing to close claim cannot be liable under other similar statute for same act of refusal. Cayton v. Safelite Glass Corporation, 232 Or App 454, 222 P3d 1134 (2009)

Additional information submitted during reconsideration proceeding is not relevant to whether sufficient information existed for insurer to close claim in first instance. Sanchez v. SAIF, 242 Or App 339, 255 P3d 592 (2011), Sup Ct review denied

To preserve issue that Director of the Department of Consumer and Business Services prematurely closed claim for hearing, claimant must raise issue on reconsideration. Pressing Matters v. Carr, 248 Or App 41, 273 P3d 170 (2012)

Although statutory scheme provides separate review tracks for claim denials and notice of closure, statutes allow for duration of temporary total disability benefits to be subject to review on reconsideration of notice of closure. SAIF v. Otwell, 251 Or App 704, 284 P3d 581 (2012)

Read with ORS 656.340, worker may receive training-related temporary disability compensation for indefinite period of time as long as worker remains enrolled and actively engaged in training. Intel Corp. v. Batchler, 267 Or App 782, 341 P3d 837 (2014)

For purposes of calculating penalty for unreasonable notice of closure under this section, penalty to be awarded shall be based on total amount of compensation due claimant at time of unreasonable notice of closure and not merely on increased amount of impairment award that was determined to be owed to claimant. Williams v. SAIF Corp., 291 Or App 328, 420 P3d 26 (2018)

Employers obtain benefit of exception to general rule:B1.that employer pays compensation for full measure of workers’ permanent impairment if impairment “as a whole” is caused in material part by compensable injury:B1.only by issuing denial of “combined condition” and following process that legislature has specifically provided for reducing worker’s permanent partial disability. Caren v. Providence Health Sys. Or. (In re Caren), 365 Or 466, 446 P3d 67 (2019); Johnson v. SAIF, 307 Or App 1, 475 P3d 465 (2020), Sup Ct review allowed

Where factual ambiguities existed in record about extent of claimant’s impairment and workers’ compensation insurer closed claimant’s claim, insurer was subject to statutory penalty because insurer had obligation to seek clarification and additional information prior to claim closure and in doing so could reasonably have known extent of claimant’s impairment. Alvarado-Depineda v. SAIF, 306 Or App 423, 474 P3d 430 (2020)

COMPLETED CITATIONS: Bivens v. Weyerhaeuser Co., 6 Or App 100, 487 P2d 119 (1971)

Attorney General Opinions

Applicability of “medically stationary” provision to workers injured before effective date of amendment, (1978) Vol 39, p 124

Law Review Citations

27 WLR 105 (1991); 32 WLR 217 (1996)

656.001
Short title 656.003
Application of definitions to construction of chapter 656.005
Definitions 656.006
Effect on employers’ liability law 656.008
Extension of laws relating to workers’ compensation to federal lands and projects within state 656.010
Treatment by spiritual means 656.012
Findings and policy 656.017
Employer required to pay compensation and perform other duties 656.018
Effect of providing coverage 656.019
Civil negligence action for claim denied on basis of failure to meet major contributing cause standard 656.020
Damage actions by workers against noncomplying employers 656.021
Coverage exception for laborers under contracts with construction and landscape contractor licensees 656.023
Who are subject employers 656.025
Individuals engaged in commuter ridesharing not subject workers 656.027
Who are subject workers 656.029
Obligation of person awarding contract to provide coverage for workers under contract 656.031
Coverage for municipal volunteer personnel 656.033
Coverage for participants in work experience or school directed professional training programs 656.035
Status of workers in separate occupations of employer 656.037
Exemption from coverage for persons engaged in certain real estate activities 656.039
Election of coverage for workers not subject to law 656.041
City or county may elect to provide coverage for adults in custody 656.043
Governmental agency paying wages responsible for providing coverage 656.044
State Accident Insurance Fund Corporation may insure liability under Longshoremen’s and Harbor Workers’ Compensation Act 656.046
Coverage of persons in college work experience and professional education programs 656.052
Prohibition against employment without coverage 656.054
Claim of injured worker of noncomplying employer 656.056
Subject employers must post notice of manner of compliance 656.070
Definitions for ORS 656.027, 656.070 and 656.075 656.075
Exemption from coverage for newspaper carriers 656.126
Coverage while temporarily in or out of state 656.128
Sole proprietors, limited liability company members, partners, independent contractors may elect coverage by insurer 656.132
Coverage of minors 656.135
Coverage of deaf school work experience trainees 656.138
Coverage of apprentices, trainees participating in related instruction classes 656.140
Coverage of persons operating equipment for hire 656.154
Injury due to negligence or wrong of a person not in the same employ as injured worker 656.156
Intentional injuries 656.160
Effect of incarceration on receipt of compensation 656.170
Validity of provisions of certain collective bargaining agreements 656.172
Applicability of and criteria for establishing program under ORS 656.170 656.174
Rules 656.202
Compensation payable to subject worker in accordance with law in effect at time of injury 656.204
Death 656.206
Permanent total disability 656.208
Death during permanent total disability 656.209
Offsetting permanent total disability benefits against Social Security benefits 656.210
Temporary total disability 656.211
“Average weekly wage” defined 656.212
Temporary partial disability 656.214
Permanent partial disability 656.216
Permanent partial disability 656.218
Continuance of permanent partial disability payments to survivors 656.222
Compensation for additional accident 656.225
Compensability of certain preexisting conditions 656.226
Cohabitants and children entitled to compensation 656.228
Payments directly to beneficiary or custodian 656.230
Lump sum award payments 656.232
Payments to aliens residing outside of United States 656.234
Compensation not assignable nor to pass by operation of law 656.236
Compromise and release of claim matters except for medical benefits 656.240
Deduction of benefits from sick leave payments paid to employees 656.245
Medical services to be provided 656.247
Payment for medical services prior to claim acceptance or denial 656.248
Medical service fee schedules 656.250
Limitation on compensability of physical therapist services 656.252
Medical report regulation 656.254
Medical report forms 656.256
Considerations for rules regarding certain rural hospitals 656.258
Vocational assistance service payments 656.260
Certification procedure for managed health care provider 656.262
Processing of claims and payment of compensation 656.263
To whom notices sent under ORS 656.262, 656.265, 656.268 to 656.289, 656.295 to 656.325 and 656.382 to 656.388 656.264
Compensable injury, denied claim and other reports 656.265
Notice of accident from worker 656.266
Burden of proving compensability and nature and extent of disability 656.267
Claims for new and omitted medical conditions 656.268
Claim closure 656.273
Aggravation for worsened conditions 656.277
Request for reclassification of nondisabling claim 656.278
Board has continuing authority to alter earlier action on claim 656.283
Hearing rights and procedure 656.285
Protection of witnesses at hearings 656.287
Use of vocational reports in determining loss of earning capacity at hearing 656.289
Orders of Administrative Law Judge 656.291
Expedited Claim Service 656.295
Board review of Administrative Law Judge orders 656.298
Judicial review of board orders 656.304
When acceptance of compensation precludes hearing 656.307
Determination of issues regarding responsibility for compensation payment 656.308
Responsibility for payment of claims 656.310
Presumption concerning notice of injury and self-inflicted injuries 656.313
Stay of compensation pending request for hearing or review 656.319
Time within which hearing must be requested 656.325
Required medical examination 656.327
Review of medical treatment of worker 656.328
List of authorized providers and standards of professional conduct for providers of independent medical examinations 656.331
Contact, medical examination of worker represented by attorney prohibited without written notice 656.340
Vocational assistance procedure 656.360
Confidentiality of worker medical and vocational claim records 656.362
Liability for disclosure of worker medical and vocational claim records 656.382
Penalties and attorney fees payable by insurer or employer in processing claim 656.383
Attorney fees in cases prior to decision or after request for hearing 656.385
Attorney fees in cases regarding certain medical service or vocational rehabilitation matters 656.386
Recovery of attorney fees, expenses and costs in appeal on denied claim 656.388
Approval of attorney fees required 656.390
Frivolous appeals, hearing requests or motions 656.403
Obligations of self-insured employer 656.407
Qualifications of insured employers 656.419
Workers’ compensation insurance contracts 656.423
Cancellation of coverage by employer 656.427
Termination of workers’ compensation insurance contract or surety bond liability by insurer 656.430
Certification of self-insured employer 656.434
Certification effective until canceled or revoked 656.440
Notice of certificate revocation 656.441
Advancement of funds from Workers’ Benefit Fund for compensation due workers insured by certain decertified self-insured employer groups 656.443
Procedure upon default by employer or self-insured employer group 656.445
Advancement of funds from Workers’ Benefit Fund for compensation due workers insured by insurer in default 656.447
Sanctions against insurer for failure to comply with contracts, orders or rules 656.455
Self-insured employers to process claims and make records available at authorized locations 656.502
“Fiscal year” defined 656.504
Rates, charges, fees and reports by employers insured by State Accident Insurance Fund Corporation 656.505
Estimate of payroll when employer fails to file payroll report 656.506
Assessments for programs 656.508
Authority to fix premium rates for employers 656.526
Distribution of dividends from surplus in Industrial Accident Fund 656.536
Premium charges for coverage of reforestation cooperative workers based on prevailing wage 656.552
Deposit of cash, bond or letter of credit to secure payment of employer’s premiums 656.554
Injunction against employer failing to comply with deposit requirements 656.556
Liability of person letting a contract for amounts due from contractor 656.560
Default in payment of premiums, fees, assessments or deposit 656.562
Moneys due Industrial Accident Fund as preferred claims 656.564
Lien for amounts due from employer on real property, improvements and equipment on or with which labor is performed by workers of employer 656.566
Lien on property of employer for amounts due 656.576
“Paying agency” defined 656.578
Workers’ election whether to sue third person or noncomplying employer for damages 656.580
Payment of compensation notwithstanding cause of action for damages 656.583
Paying agency may compel election and prompt action 656.587
Paying agency must join in any compromise 656.591
Election not to bring action operates as assignment of cause of action 656.593
Procedure when worker or beneficiary elects to bring action 656.595
Precedence of cause of action 656.596
Damage recovery as offset against compensation 656.602
Disbursement procedures 656.605
Workers’ Benefit Fund 656.612
Assessments for department activities 656.614
Self-Insured Employer Adjustment Reserve 656.622
Reemployment Assistance Program 656.625
Reopened Claims Program 656.628
Workers with Disabilities Program 656.630
Oregon Institute of Occupational Health Sciences funding 656.632
Industrial Accident Fund 656.634
Trust fund status of Industrial Accident Fund 656.635
Reserve accounts in Industrial Accident Fund 656.636
Reserves in Industrial Accident Fund for awards for permanent disability or death 656.640
Creation of reserves 656.642
Emergency Fund 656.644
Petty cash funds 656.702
Disclosure of records of corporation, department and insurers 656.704
Actions and orders regarding matters concerning claim and matters other than matters concerning claim 656.708
Hearings Division 656.709
Ombudsman for injured workers 656.712
Workers’ Compensation Board 656.714
Removal of board member 656.716
Board members not to engage in political or business activity that interferes with duties as board member 656.718
Chairperson 656.720
Prosecution and defense of actions by Attorney General and district attorneys 656.722
Authority to employ subordinates 656.724
Administrative Law Judges 656.725
Duties and status of Administrative Law Judges 656.726
Duties and powers to carry out workers’ compensation and occupational safety laws 656.727
Rules for administration of benefit offset 656.730
Assigned risk plan 656.732
Power to compel obedience to subpoenas and punish for misconduct 656.735
Civil penalty for noncomplying employers 656.740
Review of proposed order declaring noncomplying employer or nonsubjectivity determination 656.745
Civil penalty for inducing failure to report claims 656.751
State Accident Insurance Fund Corporation created 656.752
State Accident Insurance Fund Corporation 656.753
State Accident Insurance Fund Corporation exempt from certain financial administration laws 656.754
Manager 656.758
Inspection of books, records and payrolls 656.772
Annual audit of State Accident Insurance Fund Corporation by Secretary of State 656.774
Annual report by State Accident Insurance Fund Corporation to Secretary of State 656.776
Notice to Secretary of State regarding action on audit report 656.780
Certification and training of claims examiners 656.790
Workers’ Compensation Management-Labor Advisory Committee 656.794
Advisory committee on medical care 656.795
Informational materials for nurse practitioners 656.797
Certification by nurse practitioner of review of required materials 656.798
Duty of insurer, self-insured employer and self-insured employer group to provide information to director 656.799
Informational materials for other health care professionals 656.802
Occupational disease 656.804
Occupational disease as an injury under Workers’ Compensation Law 656.807
Time for filing of claims for occupational disease 656.850
License 656.855
Licensing system for worker leasing companies 656.990
Penalties
Green check means up to date. Up to date

Current through early 2024

§ 656.268’s source at oregon​.gov