ORS 656.308
Responsibility for payment of claims; effect of new injury; denial of responsibility; procedure for joining employers and insurers; attorney fees; limitation on filing claims subject to settlement agreement


(1)

When a worker sustains a compensable injury, the responsible employer shall remain responsible for future compensable medical services and disability relating to the compensable condition unless the worker sustains a new compensable injury involving the same condition. If a new compensable injury occurs, all further compensable medical services and disability involving the same condition shall be processed as a new injury claim by the subsequent employer. The standards for determining the compensability of a combined condition under ORS 656.005 (Definitions) (7) shall also be used to determine the occurrence of a new compensable injury or disease under this section.

(2)

(a) Any insurer or self-insured employer who disputes responsibility for a claim shall so indicate in or as part of a denial otherwise meeting the requirements of ORS 656.262 (Processing of claims and payment of compensation) issued in the 60 days allowed for processing of the claim. The denial shall advise the worker to file separate, timely claims against other potentially responsible insurers or self-insured employers, including other insurers for the same employer, in order to protect the right to obtain benefits on the claim. The denial may list the names and addresses of other insurers or self-insured employers. Such denials shall be final unless the worker files a timely request for hearing pursuant to ORS 656.319 (Time within which hearing must be requested). All such requests for hearing shall be consolidated into one proceeding.

(b)

No insurer or self-insured employer, including other insurers for the same employer, shall be joined to any workers’ compensation hearing unless the worker has first filed a timely, written claim against that insurer or self-insured employer, or the insurer or self-insured employer has consented to issuance of an order designating a paying agent pursuant to ORS 656.307 (Determination of issues regarding responsibility for compensation payment). An insurer or self-insured employer against whom a claim is filed may contend that responsibility lies with another insurer or self-insured employer, including another insurer for the same employer, regardless of whether the worker has filed a claim against that insurer or self-insured employer.

(c)

Upon written notice by an insurer or self-insured employer filed not more than 28 days or less than 14 days before the hearing, the Administrative Law Judge shall dismiss that party from the proceeding if the record does not contain substantial evidence to support a finding of responsibility against that party. The Administrative Law Judge shall decide such motions and inform the parties not less than seven days prior to the hearing, or postpone the hearing.

(d)

Notwithstanding ORS 656.382 (Penalties and attorney fees payable by insurer or employer in processing claim) (2), 656.386 (Recovery of attorney fees, expenses and costs in appeal on denied claim) and 656.388 (Approval of attorney fees required), a reasonable attorney fee shall be awarded to the attorney for the injured worker for the attorney’s appearance and active and meaningful participation in finally prevailing against a responsibility denial. The fee shall not exceed $2,500 absent a showing of extraordinary circumstances. The maximum attorney fee awarded under this paragraph shall be adjusted annually on July 1 by the same percentage increase as made to the average weekly wage defined in ORS 656.211 (“Average weekly wage” defined), if any.

(3)

A worker who is a party to an approved disputed claim settlement agreement under ORS 656.289 (Orders of Administrative Law Judge) (4) may not subsequently file a claim against an insurer or a self-insured employer who is a party to the agreement with regard to claim conditions settled in the agreement even if other insurers or employers disclaim responsibility for those claim conditions. A worker who is a party to an approved claim disposition agreement under ORS 656.236 (Compromise and release of claim matters except for medical benefits) (1) may not subsequently file a claim against an insurer or a self-insured employer who is a party to the agreement with regard to any matter settled in the agreement even if other insurers or employers disclaim responsibility for those claim conditions, unless the claim in the subsequent proceeding is limited to a claim for medical services for claim conditions settled in the agreement. [1990 c.2 §49; 1995 c.332 §37; 2001 c.865 §8; 2009 c.526 §2]

Notes of Decisions

If second accidental injury described under ORS 656.005 is not major contributing cause of disability or need for treatment, employer during first compensable injury remains responsible. SAIF v. Drews, 318 Or 1, 860 P2d 254 (1993)

If second accidental injury described under ORS 656.005 is major contributing cause of disability or need for treatment, responsibility for combined condition shifts to employer during second injury. SAIF v. Drews, 318 Or 1, 860 P2d 254 (1993)

Last injurious exposure rule is not affected by this section where initial claim rather than accepted claim is in issue. Bennett v. Liberty Northwest Ins. Corp., 128 Or App 71, 875 P2d 1176 (1994); SAIF v. Yokum, 132 Or App 18, 887 P2d 380 (1994)

Within context of shifting employer responsibility, “compensable injury” refers to injury that resulted in accepted claim. SAIF v. Yokum, 132 Or App 18, 887 P2d 380 (1994)

Under version in effect prior to 1995 amendment, failure of claimant to file claim against other potentially liable insurer within 60 days did not bar claim as untimely. Motel 6 v. McMasters, 135 Or App 583, 899 P2d 1212 (1995); Norstadt v. Murphy Plywood, 148 Or App 484, 941 P2d 1030 (1997), modified 150 Or App 245, 945 P2d 654 (1997), Sup Ct review denied

Where initial employer is determined to be not responsible for subsequent injury, application of last injurious exposure rule to assess liability is permissible. Barrett Business Services v. Williams, 148 Or App 1, 939 P2d 50 (1997)

1995 amendments eliminating obligation to issue disclaimer and changing time limit for issuing denial are not retroactively applicable to claims filed before amendment date. Norstadt v. Murphy Plywood, 148 Or App 484, 941 P2d 1030 (1997), modified 150 Or App 245, 945 P2d 654 (1997), Sup Ct review denied

Under pre-1995 version of statute, employer obligation to disclaim responsibility is not dependent upon compensability of injury. Garibay v. Barrett Business Services, 148 Or App 496, 941 P2d 1036 (1997)

Maximum limit on attorney fees for finally prevailing against responsibility denial is limit on total fees awarded at all stages of case. Liberty Northwest Ins. Corp. v. Gordineer, 150 Or App 136, 945 P2d 107 (1997)

Attorney fee limitation in responsibility denial cases is not applicable to attorney fees awarded under ORS 656.307. Dean Warren Plumbing v. Brenner, 150 Or App 422, 946 P2d 356 (1997)

Attorney fee limitation is applicable to responsibility portion of case regardless of whether responsibility is sole issue in case. Foster-Wheeler Constructors, Inc. v. Smith, 151 Or App 155, 947 P2d 1144 (1997)

Where Claimant Has Compensable Claim Caused By Conditions At Single Employer, Most Recent Insurer Is Responsible Unless Insurer Proves

1) workplace conditions at time it insured employer could not have caused claimant’s disease; or 2) disease was caused solely by conditions at time coverage was under previous insurer. Roseburg Forest Products v. Long, 325 Or 305, 937 P2d 517 (1997)

Evidence that previous employment was major cause, but not sole cause, of injury does not shift responsibility for injury to previous employer. Safeco Insurance Co. v. Victoria, 154 Or App 574, 963 P2d 83 (1998), Sup Ct review denied

Where factual findings establish compensability under last injurious exposure rule, rule must be followed regardless of whether claimant has invoked it. Gosda v. J. B. Hunt Transportation, 155 Or App 120, 962 P2d 777 (1998)

Where employer accepts combined condition involving new injury and preexisting compensable injury, employer may deny combined condition under ORS 656.262 if new injury ceases to be major contributing cause, but will remain subject to shifted responsibility for preexisting injury. Barrett Business Services v. Morrow, 164 Or App 628, 993 P2d 179 (1999)

Where Claimant Has Compensable Claim Caused By Conditions At Multiple Employers, Most Recent Employer Is Responsible Unless Employer Proves

1) workplace conditions at time it employed claimant could not have caused claimant’s disease; or 2) disease was caused solely by conditions at time coverage was under previous employer. Liberty Northwest Insurance Corp. v. Kaleta, 173 Or App 82, 20 P3d 256 (2001)

Where employer responsible for initial occupational disease claim is not subject to Oregon law, treatment of claim filed against Oregon employer for worsening of disease is same as for claim against Oregon employer for initial injury. SAIF v. Henwood, 176 Or App 431, 31 P3d 1096 (2001), Sup Ct review denied

New compensable injury involves same condition as preexisting condition only if preexisting condition is within or part of new injury or is directly affected by new injury. Multifoods Specialty Distribution v. McAtee, 333 Or 629, 43 P3d 1101 (2002)

§§ 656.001 to 656.794

Law Review Citations

55 OLR 432-445 (1976); 16 WLR 519 (1979); 22 WLR 559 (1986)

Chapter 656

Notes of Decisions

Party having affirmative of any issue must prove it by preponderance of evidence unless legislature fixes some different quantum of proof. Hutcheson v. Weyerhaeuser Co., 288 Or 51, 602 P2d 268 (1979)

Amendments to existing statutes and enactment of additional statutes by 1995 legislation generally apply to pending cases and to orders still appealable on June 7, 1995, effective date. Volk v. America West Airlines, 135 Or App 565, 899 P2d 746 (1995), Sup Ct review denied

Amendments to existing statutes and enactment of additional statutes by 1995 legislation do not extend or shorten procedural time limitations with regard to actions taken prior to June 7, 1995, effective date. Motel 6 v. McMasters, 135 Or App 583, 899 P2d 1212 (1995)

Atty. Gen. Opinions

Benefit unavailability for inmates engaged in prison work programs, (1996) Vol 48, p 134

Law Review Citations

24 WLR 321, 341 (1988); 32 WLR 217 (1996)


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Last accessed
May. 15, 2020