ORS 656.327
Review of medical treatment of worker; findings; review; costs

(1)

(a) If an injured worker, an insurer or self-insured employer or the Director of the Department of Consumer and Business Services believes that the medical treatment, not subject to ORS 656.260 (Certification procedure for managed health care provider), that the injured worker has received, is receiving, will receive or is proposed to receive is excessive, inappropriate, ineffectual or in violation of rules regarding the performance of medical services, the injured worker, insurer or self-insured employer must request administrative review of the treatment by the director prior to requesting a hearing on the issue and so notify the parties.

(b)

Unless the director issues an order finding that no bona fide medical services dispute exists, the director shall review the matter as provided in this section. Appeal of an order finding that no bona fide medical services dispute exists shall be made directly to the Workers’ Compensation Board within 30 days after issuance of the order. The board shall set aside or remand the order only if the board finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding in the order when the record, reviewed as a whole, would permit a reasonable person to make that finding. The decision of the board is not subject to review by any other court or administrative agency.

(c)

The insurer or self-insured employer shall not deny the claim for medical services nor shall the worker request a hearing on any issue under this section until the director issues an order under subsection (2) of this section.

(2)

The director shall review medical information and records regarding the treatment. The director may cause an appropriate medical service provider to perform reasonable and appropriate tests, other than invasive tests, upon the worker and may examine the worker. Notwithstanding ORS 656.325 (Required medical examination) (1), the worker may refuse a test without sanction. Review of the medical treatment shall be completed and the director shall issue an order within 60 days of the request for review. The director shall create a documentary record sufficient for purposes of judicial review. If the worker, insurer, self-insured employer or medical service provider is dissatisfied with that order, the dissatisfied party may request review under ORS 656.704 (Actions and orders regarding matters concerning claim and matters other than matters concerning claim). The administrative order may be modified at hearing only if it is not supported by substantial evidence in the record or if it reflects an error of law. No new medical evidence or issues shall be admitted. The worker is not obligated to pay for medical treatment determined not to be compensable under this subsection.

(3)

Upon request of either party, the director may delegate to a physician or a panel of physicians the review of medical treatment under this section. At least one member of any such panel shall be a practitioner of the healing art of the medical service provider whose treatment is being reviewed. No member of any such panel shall be a physician whose treatment is the subject of review. The panel shall be chosen in such manner as the director may prescribe, in consultation with the committee referred to in ORS 656.790 (Workers’ Compensation Management-Labor Advisory Committee). The physician or panel shall submit findings to the director within the time limits as prescribed by the director.

(4)

The physician or the panel of physicians and the medical arbiter or panel of medical arbiters appointed pursuant to ORS 656.268 (Claim closure) acting pursuant to the authority of the director are agents of the Department of Consumer and Business Services and are subject to the provisions of ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive). The findings of the physician or panel of physicians, the medical arbiter or panel of medical arbiters, all of the records and all communications to or before a panel or arbiter are privileged and are not discoverable or admissible in any proceeding other than those proceedings under this chapter. No member of a panel or a medical arbiter shall be examined or subject to administrative or civil liability regarding participation in or the findings of the panel or medical arbiter or any matter before the panel or medical arbiter other than in proceedings under this chapter.

(5)

The costs of review of medical treatment by the physician or panel of physicians pursuant to this section and costs incurred by the worker in attending any examination required under this section, including child care, transportation, lodging and meals, shall be paid by the insurer or self-insured employer. [1987 c.884 §29; 1990 c.2 §26; 1995 c.332 §41; 2005 c.26 §12]

Notes of Decisions

Director has exclusive power to review appropriateness of ongoing or proposed medical treatment. Liberty Northwest Ins. Corp. v. Yon, 137 Or App 413, 904 P2d 645 (1995)

Contested case hearing is not prerequisite to appellate review of director’s decision. Quaker State Oil Co. v. Taskinen, 147 Or App 245, 935 P2d 1229 (1997), Sup Ct review denied

Requirement for contested case hearing before Director of Department of Consumer and Business Services pursuant to [former] ORS 183.310 to 183.550 is modified by other restrictions on hearing, therefore full contested case hearing is not required. O’Neil v. National Union Fire, 152 Or App 497, 954 P2d 847 (1998), Sup Ct review denied

Director of Department of Consumer and Business Services may limit time available for employer to request administrative review of proposed treatment. Roseburg Forest Products v. Humbert, 212 Or App 285, 158 P3d 21 (2007), Sup Ct review denied

Law Review Citations

32 WLR 217 (1996)

§§ 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)

Source
OR Legislature
Last accessed
May. 15, 2020
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