2015 ORS 656.325¹
Required medical examination
  • worker-requested examination
  • qualified physicians
  • claimant’s duty to reduce disability
  • suspension or reduction of benefits
  • cessation or reduction of temporary total disability benefits
  • rules
  • penalties

(1)(a) Any worker entitled to receive compensation under this chapter is required, if requested by the Director of the Department of Consumer and Business Services, the insurer or self-insured employer, to submit to a medical examination at a time reasonably convenient for the worker as may be provided by the rules of the director. No more than three independent medical examinations may be requested except after notification to and authorization by the director. If the worker refuses to submit to any such examination, or obstructs the same, the rights of the worker to compensation shall be suspended with the consent of the director until the examination has taken place, and no compensation shall be payable during or for account of such period. The provisions of this paragraph are subject to the limitations on medical examinations provided in ORS 656.268 (Claim closure).

(b) When a worker is requested by the director, the insurer or self-insured employer to attend an independent medical examination, the examination must be conducted by a physician selected from a list of qualified physicians established by the director under ORS 656.328 (List of authorized providers and standards of professional conduct for providers of independent medical examinations).

(c) The director shall adopt rules applicable to independent medical examinations conducted pursuant to paragraph (a) of this subsection that:

(A) Provide a worker the opportunity to request review by the director of the reasonableness of the location selected for an independent medical examination. Upon receipt of the request for review, the director shall conduct an expedited review of the location selected for the independent medical examination and issue an order on the reasonableness of the location of the examination. The director shall determine if there is substantial evidence for the objection to the location for the independent medical examination based on a conclusion that the required travel is medically contraindicated or other good cause establishing that the required travel is unreasonable. The determinations of the director about the location of independent medical examinations are not subject to review.

(B) Impose a monetary penalty against a worker who fails to attend an independent medical examination without prior notification or without justification for not attending the examination. A penalty imposed under this subparagraph may be imposed only on a worker who is not receiving temporary disability benefits under ORS 656.210 (Temporary total disability) or 656.212 (Temporary partial disability). An insurer or self-insured employer may offset any future compensation payable to the worker to recover any penalty imposed under this subparagraph from a claim with the same insurer or self-insured employer. When a penalty is recovered from temporary disability or permanent total disability benefits, the amount recovered from each payment may not exceed 25 percent of the benefit payment without prior authorization from the worker.

(C) Impose a sanction against a medical service provider that unreasonably fails to provide in a timely manner diagnostic records required for an independent medical examination.

(d) Notwithstanding ORS 656.262 (Processing of claims and payment of compensation) (6), if the director determines that the location selected for an independent medical examination is unreasonable, the insurer or self-insured employer shall accept or deny the claim within 90 days after the employer has notice or knowledge of the claim.

(e) If the worker has made a timely request for a hearing on a denial of compensability as required by ORS 656.319 (Time within which hearing must be requested) (1)(a) that is based on one or more reports of examinations conducted pursuant to paragraph (a) of this subsection and the worker’s attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) does not concur with the report or reports, the worker may request an examination to be conducted by a physician selected by the director from the list described in ORS 656.328 (List of authorized providers and standards of professional conduct for providers of independent medical examinations). The cost of the examination and the examination report shall be paid by the insurer or self-insured employer.

(f) The insurer or self-insured employer shall pay the costs of the medical examination and related services which are reasonably necessary to allow the worker to submit to any examination requested under this section. As used in this paragraph, "related services" includes, but is not limited to, child care, travel, meals, lodging and an amount equivalent to the worker’s net lost wages for the period during which the worker is absent if the worker does not receive benefits pursuant to ORS 656.210 (Temporary total disability) (4) during the period of absence. A claim for "related services" described in this paragraph shall be made in the manner prescribed by the director.

(g) A worker who objects to the location of an independent medical examination must request review by the director under paragraph (c)(A) of this subsection within six business days of the date the notice of the independent medical examination was mailed.

(2) For any period of time during which any worker commits insanitary or injurious practices which tend to either imperil or retard recovery of the worker, or refuses to submit to such medical or surgical treatment as is reasonably essential to promote recovery, or fails to participate in a program of physical rehabilitation, the right of the worker to compensation shall be suspended with the consent of the director and no payment shall be made for such period. The period during which such worker would otherwise be entitled to compensation may be reduced with the consent of the director to such an extent as the disability has been increased by such refusal.

(3) A worker who has received an award for permanent total or permanent partial disability should be encouraged to make a reasonable effort to reduce the disability; and the award shall be subject to periodic examination and adjustment in conformity with ORS 656.268 (Claim closure).

(4) When the employer of an injured worker, or the employer’s insurer determines that the injured worker has failed to follow medical advice from the attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) or has failed to participate in or complete physical restoration or vocational rehabilitation programs prescribed for the worker pursuant to this chapter, the employer or insurer may petition the director for reduction of any benefits awarded the worker. Notwithstanding any other provision of this chapter, if the director finds that the worker has failed to accept treatment as provided in this subsection, the director may reduce any benefits awarded the worker by such amount as the director considers appropriate.

(5)(a) Except as provided by ORS 656.268 (Claim closure) (4)(c) and (11), an insurer or self-insured employer shall cease making payments pursuant to ORS 656.210 (Temporary total disability) and shall commence making payment of such amounts as are due pursuant to ORS 656.212 (Temporary partial disability) when an injured worker refuses wage earning employment prior to claim determination and the worker’s attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided), after being notified by the employer of the specific duties to be performed by the injured worker, agrees that the injured worker is capable of performing the employment offered.

(b) If the worker has been terminated for violation of work rules or other disciplinary reasons, the insurer or self-insured employer shall cease payments pursuant to ORS 656.210 (Temporary total disability) and commence payments pursuant to ORS 656.212 (Temporary partial disability) when the attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) approves employment in a modified job that would have been offered to the worker if the worker had remained employed, provided that the employer has a written policy of offering modified work to injured workers.

(c) If the worker is a person present in the United States in violation of federal immigration laws, the insurer or self-insured employer shall cease payments pursuant to ORS 656.210 (Temporary total disability) and commence payments pursuant to ORS 656.212 (Temporary partial disability) when the attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) approves employment in a modified job whether or not such a job is available.

(6) Any party may request a hearing on any dispute under this section pursuant to ORS 656.283 (Hearing rights and procedure). [Formerly 656.280; 1977 c.804 §12; 1977 c.868 §4; 1979 c.839 §29; 1981 c.535 §10; 1981 c.723 §4; 1981 c.854 §23; 1983 c.816 §8; 1985 c.770 §7; 1987 c.884 §43; 1989 c.598 §1; 1990 c.2 §25; 1995 c.332 §40; 2001 c.865 §13; 2003 c.657 §§11,12; 2003 c.811 §§13,14; 2005 c.675 §§1,2; 2007 c.274 §6; 2007 c.365 §7; 2011 c.99 §4]

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

Notes of Decisions

Since licensed clinical psychologist is not doctor or physician, claimant had no duty to submit to psychological examina­tion to determine whether or not his disease was occupa­tional and compensable. Frey v. Willamette Ind., Inc., 13 Or App 449, 509 P2d 861 (1973), Sup Ct review denied

Where, on original claim, court held that employee's refusal to undergo myelogram and possible resulting surgery was reasonable, employee's refusal to submit to myelography did not bar recovery for aggrava­tion of initial injury. Waldroup v. J. C. Penney Company, 30 Or App 443, 567 P2d 576 (1977)

Refusal to submit to medical treat­ment is not absolute bar to recovery, but is factor considered in determining what treat­ment is "reasonably essential" Waldroup v. J. C. Penney Company, 30 Or App 443, 567 P2d 576 (1977)

Where ap­peal period has run, insurer may seek redetermina­tion of award where there is available medical or other evidence that injured worker's condi­tion has improved. Bentley v. SAIF, 38 Or App 473, 590 P2d 746 (1979)

Injured party has duty to mitigate damages and therefore downrating of claimant's disability to reflect failure to lose excess weight was proper. Nelson v. EBI Companies, 64 Or App 16, 666 P2d 1360 (1983), aff'd 296 Or 246, 674 P2d 596 (1984)

Claimant may not be denied benefits for reasonable refusal of treat­ment essential to promote recovery. Reef v. Willamette Industries, 65 Or App 366, 671 P2d 1197 (1983), Sup Ct review denied

Because temporary benefits are compensa­tion for loss of wages, worker suffering aggrava­tion after retire­ment does not qualify. Cutright v. Weyerhaeuser, 299 Or 290, 702 P2d 403 (1985)

Where claimant suffers aggrava­tion while in workforce, claimant is entitled to temporary total disability benefits until medically sta­tionary and released for work even though claimant voluntarily withdraws from workforce prior to closure of claim. Weyerhaeuser Co. v. Kepford, 100 Or App 410, 786 P2d 745 (1990), Sup Ct review denied

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

Injury incurred during compelled medical examina­tion requested by employer is analyzed as independent work-related injury, not consequence of original compensable injury. Robinson v. Nabisco, Inc., 331 Or 178, 11 P3d 1286 (2000)

Worker "entitled to receive compensa­tion" includes worker whose claim has been denied and who is pursuing challenge to denial. Darling v. Johnson Controls Battery Group, Inc., 188 Or App 190, 70 P3d 894 (2003), Sup Ct review denied

Whether employer has written policy of offering modified work to injured workers is determined as of time physician approves modified job that would have been offered to worker, not time of worker injury. Morales v. SAIF, 196 Or App 693, 103 P3d 654 (2004), aff'd 339 Or 574, 124 P3d 1233 (2005)

Require­ment that employer cease pay­ment of temporary total disability benefits under specified circumstances applies to both initial and aggrava­tion claims. Morales v. SAIF, 196 Or App 693, 103 P3d 654 (2004), aff'd 339 Or 574, 124 P3d 1233 (2005)

Suspension sanc­tion for claimant failure to cooperate with insurer medical examina­tion prevents using failure as basis for denying claim under ORS 656.262 (Processing of claims and payment of compensation). Lewis v. CIGNA Insurance Co., 339 Or 342, 121 P3d 1128 (2005)

Where worker is terminated following return to modified employ­ment, require­ment to pay temporary total disability benefits until attending physician approves modified employ­ment does not apply. SAIF v. Vivanco, 216 Or App 210, 173 P3d 160 (2007)

Atty. Gen. Opinions

Workers' Compensa­tion Board's authority to order pay­ment of claimant's attorney fees, (1978) Vol 38, p 2069

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.