2015 ORS 656.262¹
Processing of claims and payment of compensation
  • payment by employer
  • acceptance and denial of claim
  • penalties and attorney fees
  • cooperation by worker and attorney in claim investigation
  • rules

(1) Processing of claims and providing compensation for a worker shall be the responsibility of the insurer or self-insured employer. All employers shall assist their insurers in processing claims as required in this chapter.

(2) The compensation due under this chapter shall be paid periodically, promptly and directly to the person entitled thereto upon the employer’s receiving notice or knowledge of a claim, except where the right to compensation is denied by the insurer or self-insured employer.

(3)(a) Employers shall, immediately and not later than five days after notice or knowledge of any claims or accidents which may result in a compensable injury claim, report the same to their insurer. The report shall include:

(A) The date, time, cause and nature of the accident and injuries.

(B) Whether the accident arose out of and in the course of employment.

(C) Whether the employer recommends or opposes acceptance of the claim, and the reasons therefor.

(D) The name and address of any health insurance provider for the injured worker.

(E) Any other details the insurer may require.

(b) Failure to so report subjects the offending employer to a charge for reimbursing the insurer for any penalty the insurer is required to pay under subsection (11) of this section because of such failure. As used in this subsection, "health insurance" has the meaning for that term provided in ORS 731.162 ("Health insurance").

(4)(a) The first installment of temporary disability compensation shall be paid no later than the 14th day after the subject employer has notice or knowledge of the claim and of the worker’s disability, if the attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) authorizes the payment of temporary disability compensation. Thereafter, temporary disability compensation shall be paid at least once each two weeks, except where the Director of the Department of Consumer and Business Services determines that payment in installments should be made at some other interval. The director may by rule convert monthly benefit schedules to weekly or other periodic schedules.

(b) Notwithstanding any other provision of this chapter, if a self-insured employer pays to an injured worker who becomes disabled the same wage at the same pay interval that the worker received at the time of injury, such payment shall be deemed timely payment of temporary disability payments pursuant to ORS 656.210 (Temporary total disability) and 656.212 (Temporary partial disability) during the time the wage payments are made.

(c) Notwithstanding any other provision of this chapter, when the holder of a public office is injured in the course and scope of that public office, full official salary paid to the holder of that public office shall be deemed timely payment of temporary disability payments pursuant to ORS 656.210 (Temporary total disability) and 656.212 (Temporary partial disability) during the time the wage payments are made. As used in this subsection, "public office" has the meaning for that term provided in ORS 260.005 (Definitions).

(d) Temporary disability compensation is not due and payable for any period of time for which the insurer or self-insured employer has requested from the worker’s attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) verification of the worker’s inability to work resulting from the claimed injury or disease and the physician or nurse practitioner cannot verify the worker’s inability to work, unless the worker has been unable to receive treatment for reasons beyond the worker’s control.

(e) If a worker fails to appear at an appointment with the worker’s attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided), the insurer or self-insured employer shall notify the worker by certified mail that temporary disability benefits may be suspended after the worker fails to appear at a rescheduled appointment. If the worker fails to appear at a rescheduled appointment, the insurer or self-insured employer may suspend payment of temporary disability benefits to the worker until the worker appears at a subsequent rescheduled appointment.

(f) If the insurer or self-insured employer has requested and failed to receive from the worker’s attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) verification of the worker’s inability to work resulting from the claimed injury or disease, medical services provided by the attending physician or nurse practitioner are not compensable until the attending physician or nurse practitioner submits such verification.

(g) Temporary disability compensation is not due and payable pursuant to ORS 656.268 (Claim closure) after the worker’s attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) ceases to authorize temporary disability or for any period of time not authorized by the attending physician or nurse practitioner. No authorization of temporary disability compensation by the attending physician or nurse practitioner under ORS 656.268 (Claim closure) shall be effective to retroactively authorize the payment of temporary disability more than 14 days prior to its issuance.

(h) The worker’s disability may be authorized only by a person described in ORS 656.005 (Definitions) (12)(b)(B) or 656.245 (Medical services to be provided) for the period of time permitted by those sections. The insurer or self-insured employer may unilaterally suspend payment of temporary disability benefits to the worker at the expiration of the period until temporary disability is reauthorized by an attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided).

(i) The insurer or self-insured employer may unilaterally suspend payment of all compensation to a worker enrolled in a managed care organization if the worker continues to seek care from an attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) that is not authorized by the managed care organization more than seven days after the mailing of notice by the insurer or self-insured employer.

(5)(a) Payment of compensation under subsection (4) of this section or payment, in amounts per claim not to exceed the maximum amount established annually by the Director of the Department of Consumer and Business Services, for medical services for nondisabling claims, may be made by the subject employer if the employer so chooses. The making of such payments does not constitute a waiver or transfer of the insurer’s duty to determine entitlement to benefits. If the employer chooses to make such payment, the employer shall report the injury to the insurer in the same manner that other injuries are reported. However, an insurer shall not modify an employer’s experience rating or otherwise make charges against the employer for any medical expenses paid by the employer pursuant to this subsection.

(b) To establish the maximum amount an employer may pay for medical services for nondisabling claims under paragraph (a) of this subsection, the director shall use $1,500 as the base compensation amount and shall adjust the base compensation amount annually to reflect changes in the United States City Average Consumer Price Index for All Urban Consumers for Medical Care for July of each year as published by the Bureau of Labor Statistics of the United States Department of Labor. The adjustment shall be rounded to the nearest multiple of $100.

(c) The adjusted amount established under paragraph (b) of this subsection shall be effective on January 1 following the establishment of the amount and shall apply to claims with a date of injury on or after the effective date of the adjusted amount.

(6)(a) Written notice of acceptance or denial of the claim shall be furnished to the claimant by the insurer or self-insured employer within 60 days after the employer has notice or knowledge of the claim. Once the claim is accepted, the insurer or self-insured employer shall not revoke acceptance except as provided in this section. The insurer or self-insured employer may revoke acceptance and issue a denial at any time when the denial is for fraud, misrepresentation or other illegal activity by the worker. If the worker requests a hearing on any revocation of acceptance and denial alleging fraud, misrepresentation or other illegal activity, the insurer or self-insured employer has the burden of proving, by a preponderance of the evidence, such fraud, misrepresentation or other illegal activity. Upon such proof, the worker then has the burden of proving, by a preponderance of the evidence, the compensability of the claim. If the insurer or self-insured employer accepts a claim in good faith, in a case not involving fraud, misrepresentation or other illegal activity by the worker, and later obtains evidence that the claim is not compensable or evidence that the insurer or self-insured employer is not responsible for the claim, the insurer or self-insured employer may revoke the claim acceptance and issue a formal notice of claim denial, if such revocation of acceptance and denial is issued no later than two years after the date of the initial acceptance. If the worker requests a hearing on such revocation of acceptance and denial, the insurer or self-insured employer must prove, by a preponderance of the evidence, that the claim is not compensable or that the insurer or self-insured employer is not responsible for the claim. Notwithstanding any other provision of this chapter, if a denial of a previously accepted claim is set aside by an Administrative Law Judge, the Workers’ Compensation Board or the court, temporary total disability benefits are payable from the date any such benefits were terminated under the denial. Except as provided in ORS 656.247 (Payment for medical services prior to claim acceptance or denial), pending acceptance or denial of a claim, compensation payable to a claimant does not include the costs of medical benefits or funeral expenses. The insurer shall also furnish the employer a copy of the notice of acceptance.

(b) The notice of acceptance shall:

(A) Specify what conditions are compensable.

(B) Advise the claimant whether the claim is considered disabling or nondisabling.

(C) Inform the claimant of the Expedited Claim Service and of the hearing and aggravation rights concerning nondisabling injuries, including the right to object to a decision that the injury of the claimant is nondisabling by requesting reclassification pursuant to ORS 656.277 (Request for reclassification of nondisabling claim).

(D) Inform the claimant of employment reinstatement rights and responsibilities under ORS chapter 659A.

(E) Inform the claimant of assistance available to employers and workers from the Reemployment Assistance Program under ORS 656.622 (Reemployment Assistance Program).

(F) Be modified by the insurer or self-insured employer from time to time as medical or other information changes a previously issued notice of acceptance.

(c) An insurer’s or self-insured employer’s acceptance of a combined or consequential condition under ORS 656.005 (Definitions) (7), whether voluntary or as a result of a judgment or order, shall not preclude the insurer or self-insured employer from later denying the combined or consequential condition if the otherwise compensable injury ceases to be the major contributing cause of the combined or consequential condition.

(d) An injured worker who believes that a condition has been incorrectly omitted from a notice of acceptance, or that the notice is otherwise deficient, first must communicate in writing to the insurer or self-insured employer the worker’s objections to the notice pursuant to ORS 656.267 (Claims for new and omitted medical conditions). The insurer or self-insured employer has 60 days from receipt of the communication from the worker to revise the notice or to make other written clarification in response. A worker who fails to comply with the communication requirements of this paragraph or ORS 656.267 (Claims for new and omitted medical conditions) may not allege at any hearing or other proceeding on the claim a de facto denial of a condition based on information in the notice of acceptance from the insurer or self-insured employer. Notwithstanding any other provision of this chapter, the worker may initiate objection to the notice of acceptance at any time.

(7)(a) After claim acceptance, written notice of acceptance or denial of claims for aggravation or new medical or omitted condition claims properly initiated pursuant to ORS 656.267 (Claims for new and omitted medical conditions) shall be furnished to the claimant by the insurer or self-insured employer within 60 days after the insurer or self-insured employer receives written notice of such claims. A worker who fails to comply with the communication requirements of subsection (6) of this section or ORS 656.267 (Claims for new and omitted medical conditions) may not allege at any hearing or other proceeding on the claim a de facto denial of a condition based on information in the notice of acceptance from the insurer or self-insured employer.

(b) Once a worker’s claim has been accepted, the insurer or self-insured employer must issue a written denial to the worker when the accepted injury is no longer the major contributing cause of the worker’s combined condition before the claim may be closed.

(c) When an insurer or self-insured employer determines that the claim qualifies for claim closure, the insurer or self-insured employer shall issue at claim closure an updated notice of acceptance that specifies which conditions are compensable. The procedures specified in subsection (6)(d) of this section apply to this notice. Any objection to the updated notice or appeal of denied conditions shall not delay claim closure pursuant to ORS 656.268 (Claim closure). If a condition is found compensable after claim closure, the insurer or self-insured employer shall reopen the claim for processing regarding that condition.

(8) The assigned claims agent in processing claims under ORS 656.054 (Claim of injured worker of noncomplying employer) shall send notice of acceptance or denial to the noncomplying employer.

(9) If an insurer or any other duly authorized agent of the employer for such purpose, on record with the Director of the Department of Consumer and Business Services denies a claim for compensation, written notice of such denial, stating the reason for the denial, and informing the worker of the Expedited Claim Service and of hearing rights under ORS 656.283 (Hearing rights and procedure), shall be given to the claimant. A copy of the notice of denial shall be mailed to the director and to the employer by the insurer. The worker may request a hearing pursuant to ORS 656.319 (Time within which hearing must be requested).

(10) Merely paying or providing compensation shall not be considered acceptance of a claim or an admission of liability, nor shall mere acceptance of such compensation be considered a waiver of the right to question the amount thereof. Payment of permanent disability benefits pursuant to a notice of closure, reconsideration order or litigation order, or the failure to appeal or seek review of such an order or notice of closure, shall not preclude an insurer or self-insured employer from subsequently contesting the compensability of the condition rated therein, unless the condition has been formally accepted.

(11)(a) If the insurer or self-insured employer unreasonably delays or unreasonably refuses to pay compensation, attorney fees or costs, or unreasonably delays acceptance or denial of a claim, the insurer or self-insured employer shall be liable for an additional amount up to 25 percent of the amounts then due plus any attorney fees assessed under this section. The fees assessed by the director, an Administrative Law Judge, the board or the court under this section shall be reasonable attorney fees. In assessing fees, the director, an Administrative Law Judge, the board or the court shall consider the proportionate benefit to the injured worker. The board shall adopt rules for establishing the amount of the attorney fee, giving primary consideration to the results achieved and to the time devoted to the case. An attorney fee awarded pursuant to this subsection may not exceed $4,000 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. Notwithstanding any other provision of this chapter, the director shall have exclusive jurisdiction over proceedings regarding solely the assessment and payment of the additional amount and attorney fees described in this subsection. The action of the director and the review of the action taken by the director shall be subject to review under ORS 656.704 (Actions and orders regarding matters concerning claim and matters other than matters concerning claim).

(b) When the director does not have exclusive jurisdiction over proceedings regarding the assessment and payment of the additional amount and attorney fees described in this subsection, the provisions of this subsection shall apply in the other proceeding.

(12)(a) If payment is due on a disputed claim settlement authorized by ORS 656.289 (Orders of Administrative Law Judge) and the insurer or self-insured employer has failed to make the payment in accordance with the requirements specified in the disputed claim settlement, the claimant or the claimant’s attorney shall clearly notify the insurer or self-insured employer in writing that the payment is past due. If the required payment is not made within five business days after receipt of the notice by the insurer or self-insured employer, the director may assess a penalty and attorney fee in accordance with a matrix adopted by the director by rule.

(b) The director shall adopt by rule a matrix for the assessment of the penalties and attorney fees authorized under this subsection. The matrix shall provide for penalties based on a percentage of the settlement proceeds allocated to the claimant and for attorney fees based on a percentage of the settlement proceeds allocated to the claimant’s attorney as an attorney fee.

(13) The insurer may authorize an employer to pay compensation to injured workers and shall reimburse employers for compensation so paid.

(14)(a) Injured workers have the duty to cooperate and assist the insurer or self-insured employer in the investigation of claims for compensation. Injured workers shall submit to and shall fully cooperate with personal and telephonic interviews and other formal or informal information gathering techniques. Injured workers who are represented by an attorney shall have the right to have the attorney present during any personal or telephonic interview or deposition. If the injured worker is represented by an attorney, the insurer or self-insured employer shall pay the attorney a reasonable attorney fee based upon an hourly rate for actual time spent during the personal or telephonic interview or deposition. After consultation with the Board of Governors of the Oregon State Bar, the Workers’ Compensation Board shall adopt rules for the establishment, assessment and enforcement of an hourly attorney fee rate specified in this subsection.

(b) If the attorney is not willing or available to participate in an interview at a time reasonably chosen by the insurer or self-insured employer within 14 days of the request for interview and the insurer or self-insured employer has cause to believe that the attorney’s unwillingness or unavailability is unreasonable and is preventing the worker from complying within 14 days of the request for interview, the insurer or self-insured employer shall notify the director. If the director determines that the attorney’s unwillingness or unavailability is unreasonable, the director shall assess a civil penalty against the attorney of not more than $1,000.

(15) If the director finds that a worker fails to reasonably cooperate with an investigation involving an initial claim to establish a compensable injury or an aggravation claim to reopen the claim for a worsened condition, the director shall suspend all or part of the payment of compensation after notice to the worker. If the worker does not cooperate for an additional 30 days after the notice, the insurer or self-insured employer may deny the claim because of the worker’s failure to cooperate. The obligation of the insurer or self-insured employer to accept or deny the claim within 60 days is suspended during the time of the worker’s noncooperation. After such a denial, the worker shall not be granted a hearing or other proceeding under this chapter on the merits of the claim unless the worker first requests and establishes at an expedited hearing under ORS 656.291 (Expedited Claim Service) that the worker fully and completely cooperated with the investigation, that the worker failed to cooperate for reasons beyond the worker’s control or that the investigative demands were unreasonable. If the Administrative Law Judge finds that the worker has not fully cooperated, the Administrative Law Judge shall affirm the denial, and the worker’s claim for injury shall remain denied. If the Administrative Law Judge finds that the worker has cooperated, or that the investigative demands were unreasonable, the Administrative Law Judge shall set aside the denial, order the reinstatement of interim compensation if appropriate and remand the claim to the insurer or self-insured employer to accept or deny the claim.

(16) In accordance with ORS 656.283 (Hearing rights and procedure) (3), the Administrative Law Judge assigned a request for hearing for a claim for compensation involving more than one potentially responsible employer or insurer may specify what is required of an injured worker to reasonably cooperate with the investigation of the claim as required by subsection (14) of this section. [1965 c.285 §30; 1969 c.399 §1; 1973 c.620 §2; 1975 c.556 §41; 1981 c.535 §7; 1981 c.854 §16; 1981 c.874 §4; 1983 c.809 §1; 1983 c.816 §7; 1985 c.600 §7; 1987 c.884 §19; 1990 c.2 §15; 1995 c.332 §28; 1995 c.641 §4; 1997 c.605 §1; 1997 c.639 §7; 1999 c.313 §5; 2001 c.621 §83; 2001 c.865 §7; 2003 c.667 §1; 2003 c.756 §1; 2003 c.760 §2; 2003 c.811 §§9,10; 2005 c.26 §§9,10; 2005 c.511 §§1,2; 2005 c.588 §§2,3; 2007 c.252 §5; 2007 c.365 §5; 2007 c.518 §§1,2; 2009 c.35 §3; 2009 c.171 §3; 2009 c.526 §1; 2015 c.211 §1; 2015 c.521 §2]

Note: See notes under 656.202 (Compensation payable to subject worker in accordance with law in effect at time of injury).

Note: See first note under 656.012 (Findings and policy).

Notice; Hearing Requests

Interim Compensa­tion

Unreasonable Employer Behavior

Penalty and Attorney Fee Availability/Limita­tions

Acceptance, Denial and Revoca­tion of Acceptance

Other

Notes of Decisions

Notice; Hearing Requests

See also annota­tions under ORS 656.319 (Time within which hearing must be requested).

Employer's letter was not valid and effective denial of compensable claim in that it did not expressly disclaim responsibility and it failed to state with reasonable certainty what was being denied. Pettit v. Austin Logging Co., 9 Or App 347, 497 P2d 207 (1972)

Telephone conversa­tion that did not inform claimant of reasons for denial of his claim or of his hearing rights was not adequate substitute for notice of denial require­ment. Burkholder v. SAIF, 11 Or App 334, 502 P2d 1394 (1972)

Failure to strictly comply with notice require­ment does not necessarily preclude jurisdic­tion over claim where no prejudice results from failure to give such notice. Murphy v. SAIF, 13 Or App 105, 508 P2d 227 (1973)

"Notifica­tion" of denial occurs on date denial notice is deposited in mail, not date shown on body of denial notice. Madewell v. Salva­tion Army, 49 Or App 713, 620 P2d 953 (1980)

Where notice was properly sent, fact that claimant did not actually receive notice did not toll time limita­tion for requesting hearing. Wright v. Bekins Moving and Storage Co., 97 Or App 45, 775 P2d 857 (1989), Sup Ct review denied

Request for hearing must be referable to particular denial. Guerra v. SAIF, 111 Or App 579, 826 P2d 1034 (1992)

After receiving actual or constructive notice of denial of workers' compensa­tion claim, claimant has 60 days to file request for hearing. SAIF v. Edison, 117 Or App 455, 844 P2d 261 (1992)

Where employer issues denial of coverage for condi­tion, claimant may request hearing on denial notwithstanding that claimant did not comply with pro­ce­dure for requesting acceptance of condi­tion. Sound Elevator v. Zwingraf, 181 Or App 150, 45 P3d 958 (2002), Sup Ct review denied

Where claimant requests hearing of any type re­gard­ing denial of claim for failure to cooperate, duty to ensure that hearing is assigned to Expedited Claim Service rests with Workers' Compensa­tion Board. SAIF v. Dubose, 335 Or 579, 74 P3d 1072 (2003)

Interim Compensa­tion

Worker receiving pay­ment over period of time for award of one class of compensa­tion benefit is not prevented from receiving pay­ment during same period of time for award of different class of compensa­tion benefits. Wingfield v. Nat. Biscuit Co., 8 Or App 408, 494 P2d 905 (1972); Horn v. Tbr. Prods., Inc., 12 Or App 365, 507 P2d 36 (1973)

"Compensa­tion" as used in this sec­tion has special meaning that includes only interim compensa­tion paid for non-compensable injury. Jones v. Emanuel Hospital, 280 Or 147, 570 P2d 70 (1977); Williams v. Burns Interna­tional Security, 36 Or App 769, 585 P2d 734 (1978)

Pay­ment must be made from date of claimant's injury rather than from date injury is reported to claimant's employer. Gilroy v. General Distributors, 35 Or App 361, 582 P2d 428 (1978)

Claimant who was not "worker" within defini­tion of Workers Compensa­tion Law was not entitled to interim compensa­tion pending denial of claim. Bell v. Hartman, 289 Or 447, 615 P2d 314 (1980)

To receive interim compensa­tion, claimant must es­tab­lish absence from work or that earning power was diminished. Bono v. SAIF, 298 Or 405, 692 P2d 606 (1984)

Medical expenses are not interim compensa­tion; there is no duty to pay medical expenses pending determina­tion that claim is compensable. Anderson v. EBI Companies, 79 Or App 345, 719 P2d 1383 (1986), Sup Ct review denied; Wacker Siltronic Corp., v. Satcher, 103 Or App 513, 798 P2d 264 (1990); Meier & Frank Co. v. Smith-Sanders, 115 Or App 159, 836 P2d 1359 (1992), Sup Ct review denied, modified 118 Or App 261, 846 P2d 1194 (1993)

Award of interim compensa­tion is not stayed pending ap­peal. Georgia-Pacific v. Hughes, 305 Or 286, 751 P2d 775 (1988)

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 claimant is injured on job, but leaves job for reasons unrelated to injury, interim compensa­tion may be available for loss of earnings resulting from injury. RSG Forest Products v. Jensen, 127 Or App 247, 873 P2d 324 (1994)

1995 amend­ment limiting retroactive authoriza­tion of temporary disability benefits applies retroactively to claim existing at time of amend­ment. Jensen v. Conagra, Inc., 152 Or App 449, 954 P2d 822 (1998)

Employer must pay interim compensa­tion pending processing of claim for new medical condi­tion. Labor Ready, Inc. v. Mann, 158 Or App 666, 976 P2d 89 (1999), modified 160 Or App 576, 987 P2d 524 (1999), Sup Ct review denied; Johansen v. SAIF, 158 Or App 672, 976 P2d 84 (1999), on reconsidera­tion 160 Or App 579, 987 P2d 524 (1999), Sup Ct review denied

Limita­tion on retroactive es­tab­lish­ment of disability period applies both to procedural obliga­tion to pay benefits while claim is open and to substantive entitle­ment to benefits at claim closure. Fred Meyer, Inc. v. Bundy, 159 Or App 44, 978 P2d 385 (1999); Menasha Corp. v. Crawford, 332 Or 404, 29 P3d 1129 (2001)

Claimant's actual notice of claim denial cannot substitute for written denial so as to terminate interim compensa­tion obliga­tion. Bishop v. OBEC Consulting Engineers, 160 Or App 548, 982 P2d 25 (1999)

Where attending physician contemporaneously signifies approval for claimant to be off work, whether or not ex­plic­itly authorizing pay­ment of temporary disability benefits, insurer or self-insured employer is obligated to pay benefits. Lederer v. Viking Freight, Inc., 193 Or App 226, 89 P3d 1199 (2004), modified195 Or App 94, 96 P3d 882 (2004)

Withdrawal or replace­ment of attending physician does not cause open-ended authoriza­tion of temporary disability to cease. Dedera v. Raytheon Engineers & Constrs, 200 Or App 1, 112 P3d 1198 (2005), Sup Ct review denied

Unreasonable Employer Behavior

Refusal to pay temporary total disability benefits was not unreasonable where order to pay compensa­tion due did not specify period for which benefits must be paid. Reed v. Del Chem. Corp., 16 Or App 366, 518 P2d 679 (1974), Sup Ct review denied

Where insurer has legitimate doubt from legal standpoint of its liability, refusal to pay medical expenses is not unreasonable. Norgard v. Rawlinsons, 30 Or App 999, 569 P2d 49 (1977); Price v. SAIF, 73 Or App 123, 698 P2d 54 (1985); Brown v. Argonaut Insurance Company, 93 Or App 588, 763 P2d 408 (1988); Atlas Cylinder v. Epstein, 114 Or App 117, 833 P2d 1374 (1992)

Delay in pay­ment of interim compensa­tion is unreasonable resistance to pay­ment because require­ment is that pay­ment be made "promptly." Williams v. SAIF, 31 Or App 1301, 572 P2d 658 (1977)

Claimant was entitled to award of penalties where employer's unreasonable con­duct was contributing cause of denial of compensa­tion. Anfilofieff v. SAIF, 52 Or App 127, 627 P2d 1274 (1981)

Compensa­tion duty of noncomplying employers assumed by SAIF includes any penalties for unreasonable behavior by noncomplying employer. Anfilofieff v. SAIF, 52 Or App 127, 627 P2d 1274 (1981)

Self-insured employer's delay of six months in responding to Evalua­tion Division's request for medical in­for­ma­­tion necessary to close claim constituted "unreasonable delay" in pay­ment of claim. Lester v. Weyerhaeuser, 70 Or App 307, 689 P2d 342 (1984), Sup Ct review denied

Where plaintiff was awarded permanent partial disability compensa­tion and claim was reopened to offer evidence of permanent total disability, carrier should not have suspended pay­ment on partial disability award. Allen v. Fireman's Fund Ins. Co., 71 Or App 40, 691 P2d 137 (1984)

Insurer that timely and properly denies claim has duty to re-evaluate denial upon receipt of later medical report. Brown v. Argonaut Insurance Company, 93 Or App 588, 763 P2d 408 (1988)

Where claim was not result of compensable injury, insurer did not unreasonably resist pay­ment of compensa­tion or attorney fees. Ellis v. McCall Insula­tion, 308 Or 74, 775 P2d 316 (1989); Randall v. Liberty Northwest Ins. Corp., 107 Or App 599, 813 P2d 1120 (1991)

Order reciting incorrect award amount does not create substantive entitle­ment of claimant to erroneous extra compensa­tion. Vega v. Express Services, 144 Or App 602, 927 P2d 1106 (1996), Sup Ct review denied

For purposes of determining whether insurer unreasonably refused to pay compensa­tion, legitimate doubt concerning liability requires more than argu­ment passing frivolousness test of ORS 656.390 (Frivolous appeals, hearing requests or motions). SAIF v. Azorr, 182 Or App 90, 47 P3d 542 (2002), Sup Ct review denied

Penalty and Attorney Fee Availability/Limita­tions

Award of attorney fees is not limited to cases where employer or insurer requests hearing or review or files ap­peal. Wingfield v. Nat. Biscuit Co., 8 Or App 408, 494 P2d 905 (1972)

Penalty for unreasonable refusal need not be paid pending appellate review of claim. Reed v. Del Chemical, 26 Or App 733, 554 P2d 586 (1976), Sup Ct review denied

Where finding of unreasonable denial is overturned on ap­peal, penalties or attorney fees based solely on unreasonable denial are canceled. Duggan v. SAIF, 31 Or App 1059, 572 P2d 329 (1977)

Claimant was entitled to recover reasonable attorneys fees upon employer's refusal to either deny claim or make total disability pay­ments, notwithstanding that injury complained of was sub­se­quently determined noncompensable. Jones v. Emanuel Hospital, 280 Or 147, 570 P2d 70 (1977); Likens v. SAIF, 56 Or App 498, 642 P2d 342 (1982)

There is no statutory authority for award of interest on unpaid temporary disability benefits, and only penalties available are those specified in this sec­tion. Button v. SAIF, 45 Or App 295, 608 P2d 206 (1980), Sup Ct review denied

Where claimant failed to raise issue of unreasonable denial of claim, referee improperly awarded penalty. Mavis v. SAIF, 45 Or App 1059, 609 P2d 1318 (1980)

Board could not award penalty for insurer's unreasonable delay in requesting appoint­ment of designated paying agent. EBI Companies v. Thomas, 66 Or App 105, 672 P2d 1241 (1983)

Since there was no duty to pay interim compensa­tion for medical services pending acceptance or denial of claim, there were no "amounts then due" and no penalty could be assessed. Poole v. SAIF, 69 Or App 503, 686 P2d 1063 (1984); Anderson v. EBI Companies, 79 Or App 345, 719 P2d 1383 (1986), Sup Ct review denied; Wacker Siltronic Corp., v. Satcher, 103 Or App 513, 798 P2d 264 (1990); Meier & Frank Co. v. Smith-Sanders, 115 Or App 159, 836 P2d 1359 (1992), Sup Ct review denied, modified 118 Or App 261, 846 P2d 1194 (1993)

Prejudice and inten­tional delay are not necessary predicates to imposi­tion of penalty and attorney fees. Lester v. Weyerhaeuser, 70 Or App 307, 689 P2d 342 (1984), Sup Ct review denied

For purpose of imposing penalty, language excepting pay­ment of medical benefits or burial expenses from defini­tion of "compensa­tion" pending acceptance or denial of claim refers only to period for timely acceptance or denial of claim. Whitman v. Industrial Indemnity Co., 73 Or App 73, 697 P2d 999 (1985)

Claimant was entitled to penalty and attorney fees because of delay in pay­ment of interim compensa­tion on aggrava­tion claim notwithstanding later determina­tion that original claim was prematurely closed. O'Dell v. SAIF, 79 Or App 294, 719 P2d 52 (1986)

Where penalty is assessed for delay in issuing denial, amount "then due" is calculated as of denial date. Wacker Siltronic Corp. v. Satcher, 91 Or App 654, 756 P2d 679 (1988); Weyerhaeuser v. Knapp, 100 Or App 615, 788 P2d 462 (1990)

Board may assess penalty for unreasonable delay based on interim compensa­tion due but not on medical services. Eastmoreland Hospital v. Reeves, 94 Or App 698, 767 P2d 97 (1989)

Where compensa­tion has been timely paid, failure to seek claim closure does not permit penalty. SAIF v. Wilson, 95 Or App 748, 770 P2d 972 (1989)

Award of attorney fee in addi­tion to pay­ment of penalty award is not permitted. Martinez v. Dallas Nursing Home, 114 Or App 453, 836 P2d 147 (1992), Sup Ct review denied; Corona v. Pacific Resource Recycling, 125 Or App 47, 865 P2d 407 (1993)

Where claim is unreasonably denied, penalty applies to amount due at time denial is withdrawn. Conagra, Inc. v. Jeffries, 118 Or App 373, 847 P2d 878 (1993)

Where more than one insurer unreasonably denies claim, separate 25 percent penalty may be assessed against each insurer. SAIF v. Whitney, 130 Or App 429, 882 P2d 614 (1994)

Once dispute is properly before Hearings Division, sub­se­quent narrowing of issues to involve only penalty issue does not divest division of jurisdic­tion over dispute. Icenhower v. SAIF, 180 Or App 297, 43 P3d 431 (2002)

Liability for addi­tional amount and attorney fee may be imposed on insurer or self-insured employer multiple times during processing of single claim if claimant satisfies predicates for imposing liability and fee in each instance. Cayton v. Safelite Glass Corpora­tion, 232 Or App 454, 222 P3d 1134 (2009)

Claimant's success in obtaining penalty and attorney fees under this pro­vi­sion for employer's delay in pay­ment of compensa­tion does not mandate award of attorney fees under ORS 656.382 (Penalties and attorney fees payable by insurer or employer in processing claim). Cayton v. Safelite Glass Corpora­tion, 257 Or App 188, 306 P3d 726 (2013)

Where insurer unreasonably delays denial of claimant's claim, including claim for compensa­tion for what is determined to be only symptom of other condi­tion, insurer is liable to claimant for attorney fees even if no penalty is assessed against insurer because attorney fees are not contingent upon compensa­tion. SAIF v. Traner, 270 Or App 67, 346 P3d 1248 (2015)

Where claimant did not receive award of compensa­tion and insurer unreasonably delayed response to claim, claimant may still recover attorney fees independently authorized by this sec­tion. SAIF v. Traner, 273 Or App 310, 365 P3d 1078 (2015)

Acceptance, Denial and Revoca­tion of Acceptance

Failure to issue denial in written form tolls time for filing request for hearing. Bebout v. SAIF, 22 Or App 1, 537 P2d 563 (1975), aff'd 273 Or 487, 541 P2d 1293 (1975)

Misrepresenta­tion by claimant is ma­te­ri­al if decision of insurer could reasonably have been affected by knowledge of true facts. Ebbtide Enterprises v. Tucker, 303 Or 459, 738 P2d 194 (1987)

Acceptance of claim for condi­tion includes acceptance of compensability of underlying causes of condi­tion. Georgia-Pacific v. Piwowar, 305 Or 494, 753 P2d 948 (1988); Freight­liner Corp. v. Christensen, 163 Or App 191, 986 P2d 1263 (1999)

Claim status report filed with Workers' Compensa­tion Division was not notice to claimant of claim determina­tion. EBI Ins. Co. v. CNA Insurance, 95 Or App 448, 769 P2d 789 (1989)

Acceptance of claim for one condi­tion did not require acceptance of claim for sec­ond condi­tion in same loca­tion, but did estop employer from denying that work-related injury had occurred. Boise Cascade Corp. v. Katzenbach, 104 Or App 732, 802 P2d 709 (1990), Sup Ct review denied

Where employer gave oral authoriza­tion for surgery to claimant and claimant's doctors, employer was estopped from denying responsibility for claimant's medical expenses associated with surgery. Meier & Frank Co. v. Smith-Sanders, 115 Or App 159, 836 P2d 1359 (1992), Sup Ct review denied, modified 118 Or App 261, 846 P2d 1194 (1993)

Employer may reclassify claim from disabling to nondisabling only if done within sufficient time for claimant to challenge reclassifica­tion within one year from date of injury. DeGrauw v. Columbia Knit, Inc., 118 Or App 277, 846 P2d 1214 (1993), Sup Ct review denied

Later obtained evidence allowing insurer to revoke claim acceptance means evidence other than evidence insurer had at time of initial acceptance. CNA Ins. Co. v. Magnuson, 119 Or App 282, 850 P2d 396 (1993); Curry Educa­tional Service Dist. v. Bengtson, 175 Or App 252, 27 P3d 526 (2001)

Change in legal significance of existing evidence does not make it "later obtained evidence." CNA Ins. Co. v. Magnuson, 119 Or App 282, 850 P2d 396 (1993)

Settle­ment agree­ment between parties is not claim acceptance and is not subject to later revoca­tion for noncompensability. Fimbres v. Gibbons Supply Co., 122 Or App 467, 857 P2d 904 (1993)

Litiga­tion of aggrava­tion claim precludes later denial of compensability of original injury. SAIF v. Hansen, 126 Or App 662, 870 P2d 247 (1994)

Insurer acquiescence to designa­tion of paying agent does not constitute acceptance of claim. Taylor v. Masonry Builders, Inc., 127 Or App 230, 872 P2d 442 (1994), Sup Ct review denied

Denial based on lack of coverage is subject to limita­tion of two years from date of claim acceptance. SAIF v. Shaffer, 129 Or App 289, 878 P2d 1114 (1994)

Acceptance of claim is not re­quired to process claim while compensability is litigated. SAIF v. Mize, 129 Or App 636, 879 P2d 907 (1994)

Two-year rescission period begins at date of claim acceptance, not at end of 90-day period for accepting or denying claim. SAIF v. Andrews, 130 Or App 620, 883 P2d 248 (1994)

Acceptance of particular condi­tion, rather than acceptance of symptom, does not necessarily include acceptance of cause for condi­tion. Granner v. Fairview Center, 147 Or App 406, 935 P2d 1252 (1997); Cloud v. Klamath County School District, 191 Or App 610, 83 P3d 918 (2004)

Employer is not estopped from amending denial of claim at hearing. SAIF v. Ledin, 149 Or App 94, 941 P2d 1093 (1997)

Retroactive 1997 amend­ment allowing employer or insurer to deny compensability of pre­vi­ously accepted claim does not violate privileges and immunities pro­vi­sion of Oregon Constitu­tion (sec­tion 20, Article I). Kmart Corp. v. Lloyd, 155 Or App 270, 963 P2d 734 (1998)

1995 amend­ment, which requires insurer to send written denial before claim closure if asserting that accepted condi­tion is no longer compensable, applies retroactively. SAIF v. Belden, 155 Or App 568, 964 P2d 300 (1998), Sup Ct review denied

Employer "notice or knowledge of claim" for possible compensable injury arises at time employer becomes aware of allegedly compensable injury. Allied Systems Co. v. Nelson, 158 Or App 639, 975 P2d 923 (1999)

Employer may not deny combined condi­tion after acceptance unless condi­tion was combined condi­tion at time of acceptance. Croman Corp. v. Serrano, 163 Or App 136, 986 P2d 1253 (1999)

All causes underlying accepted condi­tion are compensable in their own right and cannot be viewed as preexisting condi­tions for purposes of finding combined condi­tion. Freight­liner Corp. v. Christensen, 163 Or App 191, 986 P2d 1263 (1999)

Where employer accepts combined condi­tion involving new injury and preexisting compensable injury, employer may deny combined condi­tion if new injury ceases to be major contributing cause, but will remain subject to shifted responsibility for preexisting injury under ORS 656.308 (Responsibility for payment of claims). Barrett Business Services v. Morrow, 164 Or App 628, 993 P2d 179 (1999)

Notice of claim acceptance that adequately identifies accepted combined condi­tion is not rendered insufficient by failure to expressly identify accepted claim as claim for combined condi­tion. Columbia Forest Products v. Woolner, 177 Or App 639, 34 P3d 1203 (2001)

Later obtained evidence of compensability or responsibility for claim does not include evidence employer had, or with reasonable diligence should have had, at time of acceptance nor does it include restate­ment, reevalua­tion, analysis or confirma­tion of such evidence. Barrett Business Services, Inc. v. Stewart, 178 Or App 145, 35 P3d 1055 (2001)

Where employer denial is limited to specific medical condi­tion, denial does not place at issue other existing medical condi­tions unknown to employer. Longview Inspec­tion v. Snyder, 182 Or App 530, 50 P3d 1201 (2002)

"Other written clarifica­tion" made in response to claimant communica­tion re­gard­ing omitted condi­tion must clarify notice of acceptance. Rasmussen v. SAIF, 182 Or App 642, 50 P3d 248 (2002)

Employer or insurer may issue acceptance and denial of combined condi­tion in single letter, provided effective date of denial is later than effective date of acceptance. Stockdale v. SAIF, 192 Or App 289, 84 P3d 1120 (2004)

Suspension sanc­tion provided under ORS 656.325 (Required medical examination) for claimant failure to cooperate with insurer medical examina­tion prevents using failure as basis for denying claim. Lewis v. CIGNA Insurance Co., 339 Or 342, 121 P3d 1128 (2005)

Effective date for modified acceptance of combined condi­tion need not coincide with date of original injury. Oregon Drywall Systems, Inc. v. Bacon, 208 Or App 205, 144 P3d 987 (2006)

Updated notice of acceptance issued at time of claim closure is subject to restric­tions on revoca­tion of acceptance. City of Grants Pass v. Hamelin, 212 Or App 414, 157 P3d 1206 (2007)

Where claimant had no prior accepted claim and denial was di­rected at claimant's only pending claim for new injury, misstating date of claim did not nullify denial. Mills v. The Boeing Co., 212 Or App 678, 159 P3d 375 (2007)

When Director of the Depart­ment of Consumer and Business Services modifies date of injury, director does not affect insurer's or self-insured employer's acceptance of claim. Martin v. SAIF, 247 Or App 377, 270 P3d 296 (2011)

Sec­tion requires insurers and self-insured employers to reopen claim for processing upon any finding that omitted claim is compensable, regardless of pendency of ap­peal or review of that compensability finding. Providence Health System v. Walker, 252 Or App 489, 289 P3d 256 (2012), Sup Ct review denied

Other

Insurer acceptance of claim does not prevent noncomplying employer from denying claim and demanding hearing on compensability. Clark v. Linn, 98 Or App 393, 779 P2d 203 (1989)

Failure of party to raise issue at hearing did not constitute waiver where no relinquish­ment of right was intended. Drews v. EBI Companies, 310 Or 134, 795 P2d 531 (1990); V. W. Johnson & Sons v. Johnson, 103 Or App 355, 797 P2d 396 (1990), Sup Ct review denied

SAIF and Depart­ment of Insurance and Finance had standing to seek review of disputed claim settle­ment between claimant and noncomplying employer. Trojan Concrete v. Tallant, 107 Or App 429, 812 P2d 433 (1991), Sup Ct review denied

Where out-of-state employer accepts claim for sub­se­quent injury, inadequacy of compensa­tion for sub­se­quent injury does not bar release of Oregon employer from responsibility for combined condi­tion. Wootton v. Stadeli Pump & Construc­tion, 108 Or App 548, 816 P2d 689 (1991)

Where claimant was employee, stockholder and manager of corporate employer, claimant satisfied injury notice require­ment by notifying employer, and claim was not barred notwithstanding failure of employer to notify insurer of claim. Barney's Karts, Inc. v. Vance, 110 Or App 62, 821 P2d 422 (1991)

Claimant is not entitled to overpay­ment of temporary disability benefits for period between medically sta­tionary date and claim closure. Santos v. Caryall Transport, 152 Or App 322, 954 P2d 187 (1998)

"New medical condi­tion" is one that: 1) arises after acceptance of initial claim; 2) is related to initial claim; and 3) involves condi­tion other than condi­tion initially accepted. Johansen v. SAIF, 158 Or App 672, 976 P2d 84 (1999), on reconsidera­tion 160 Or App 579, 987 P2d 524 (1999), Sup Ct review denied

Unless direct medical sequela to accepted compensable 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)

New medical condi­tion is subject to 1995 and 1997 amend­ments if, on July 25, 1997, claim was perfected and not yet processed or was pending in litiga­tion. Hiner v. Crawford Health & Rehabilita­tion, 183 Or App 640, 54 P3d 633 (2002)

Duty of injured worker to cooperate in investiga­tion of claim for compensa­tion is not breached by failure to explain alleged lack of coopera­tion. SAIF v. Dubose, 193 Or App 62, 88 P3d 933 (2004)

Administrative system for issuing backup denial does not divest circuit court of jurisdic­tion over unjust enrich­ment ac­tion arising out of pay­ment on mis­takenly accepted claim. Specialty Risk Services v. Royal Indemnity Co., 213 Or App 620, 164 P3d 300 (2007)

If claimant requests hearing on employer's denial of combined condi­tion injury claim, employer bears burden of proving that, as of date of denial, claimant's condi­tion had ceased to be major contributing cause of claimant's combined condi­tion unless claim involves occupa­tional disease. Washington County v. Jansen, 248 Or App 335, 273 P3d 278 (2012)

Law Review Cita­tions

27 WLR 81 (1991); 32 WLR 217 (1996)

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)


1 Legislative Counsel Committee, CHAPTER 656—Workers' Compensation, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors656.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 656, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano656.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.