- The 71st Oregon Legislature has passed a bill that makes several changes to the Workers Compensation Act. Most do not go into effect until January 1, 2002. Among the more important changes are these:
Accidental Injuries and Pre-Existing Conditions: Under the current Workers' Compensation Law, when an accidental injury has combined with a pre-existing condition, an injured worker has to prove that the accidental injury is the major contributing cause (over 50%) of disability or need for treatment. The new law changes this situation by reversing the burden of proof: The insured will have to prove that the pre-existing condition is the major cause of disability or the need for treatment to sustain a claim denial. The insurer also will have to prove that the pre-existing condition was diagnosed before the injury. However, the law includes a loophole: The new burden of proof will not apply to claims involving "arthritis or arthritic conditions". A large number of pre existing condition claims involve such conditions. Further, the new law does not apply to occupational diseases, which, are conditions like carpal tunnel syndrome, that arise over time.
Time Loss for Workers with Multiple Jobs: Under current law, a worker with more than one job who suffers injury on one of those jobs receives time loss payments based only on earnings from that job. The new law bases time loss payments on the earnings from all of a workers' jobs.
Time to Accept or Deny Claims: Insurers currently have 90 days to accept or deny claims. The new law changes that time limit to 60 days.
New Procedure for Appeal of Notices of Closure: An insurer closes a claim by issuing a "Notice of Closure". This notice sets out the amount of time loss the claimant can recover and tells the claimant whether she or she will receive a permanent disability award. Workers have the right to appeal Notices of Closure. The current law does not permit a claimant to testify in the course of such an appeal. The new law allows claimants to give testimony on appeal through written depositions. The costs of those depositions must be paid by insurers.
Independent Medical Examinations in Denied Claims: Under the new law when insurers deny claims based on so-called "independent medical examinations" or "IMEs", a worker will have the right to request an IME by a doctor on the State's list of "medical arbiters". The insurer will have to pay the cost of the examinations.
These changes improve Oregon workers' compensation system, but there is still some obvious unfairness. In particular, workers' with pre-existing arthritis must meet proof hurdles no other injured worker will face. This adverse treatment especially targets older employees, as those employees are more likely to have pre-existing arthritis. We anticipate forceful legal challenges to the new law.