FEE SCHEDULE NEWS:

• The state has updated their fee schedule effective January 1, 2018.

REGULATORY ACTIVITY:

• Published revised bulletin 316 regarding claims processing administrative cost factor to become effective January 1, 2018. This revised bulletin notifies insurers and self-insured employers of the 2018 claim processing administrative cost factor. The Workers’ Compensation Division (division) applies this factor to approved reimbursements for supplemental disability benefits and certain claim costs. The factor is calculated under Oregon Administrative Rule (OAR) 436- 050-0180. This bulletin replaces Bulletin 316 issued Dec. 15, 2016.  The claim processing administrative cost factor for calendar year 2018 is 20.35 percent.
• The Workers’ Compensation Division published an industry notice, House Bill 2338 relating to changes to death benefits.
• The Workers’ Compensation Division has posted final rules that are effective Jan. 1, 2018:
  • OAR 436-010, Medical Services http://wcd.oregon.gov/laws/Documents/New_rules/10-17060ub-short.pdf
  • OAR 436-050, Employer/Insurer Coverage Responsibility http://wcd.oregon.gov/laws/Documents/New_rules/50-17061ub-short.pdf
  • OAR 436-060, Claims Administration http://wcd.oregon.gov/laws/Documents/New_rules/60-17062ub-short.pdf
  • OAR 436-075, Retroactive Program http://wcd.oregon.gov/laws/Documents/New_rules/75-17063ub.pdf
    • OAR 436-010, Medical Services Revised rule 0210 implements Enrolled House Bill 3363 (2017). 436-010-0210, Appendix A, “Matrix for health care provider types” now refers to a “doctor of osteopathic medicine” rather than to a “doctor of osteopathy.”
    • OAR 436-050, Employer/Insurer Coverage Responsibility Revised rule 0150 has amended criteria for financial strength rating of public sector self-insured employers, to include more relevant financial ratios and assigned points, and provide that a municipal bond rating of Aa3, AA-, or higher will be considered to be a strong financial strength rating. The revised rule clarifies that the director may take one or more actions (not just a single action) if a self-insured employer’s financial strength rating is found to be weak. Revised rule 0170 now states that a self-insured employer’s excess insurance policy may not contain provisions or endorsements that do not comply with Oregon law. Revised rule 0175 requires that a self-insured employer’s report of losses include the medical reimbursement amounts applied to each claim, if applicable. Revised rule 0180 includes correction of a typographical error – the word “annual” has been deleted from section (1), subsection (e): “Under this section, ‘Incurred but not reported’ (IBNR) will be calculated by applying a loss development factor determined by the director against the employer’s annual incurred losses.” Also, section (4), subsection (c) has been revised so it applies to both self-insured employers and self-insured employer groups. Revised rule 0190 implements House Bill 2336 (2017) by explaining that the director may refer a self-insured employer’s or self-insured employer group’s claims for processing to an assigned claims agent. Revised rule 0195 has a corrected reference to Form 1869, replacing the incorrect reference to Form 1865. Revised rule 0260 implements House Bill 2186 by explaining that a self-insurance program under ORS 30.282(3) meets the organizational requirements to be certified as a self-insured employer group. Revised rule 0280 implements House Bill 2186 by explaining that a self-insurance program under ORS 30.282(3) meets the organizational requirements to be certified as a self-insured employer group. Revised rule 0290 has clearer procedures for cancellation and termination of members of a self-insured employer group and for reporting related information to the director.
    • OAR 436-060, Claims Administration Revised rule 0005 includes a general definition of “dependent,” plus a reference to ORS 656.005(10). Revised rule 0035 includes an amended reference to the definition of insurer in rule 0005. Adopted rule 0075 implements Enrolled House Bill 2338 (2017) and consolidates several current provisions relevant to death benefits. This rule describes appropriate payment of death benefits under ORS 656.204 and 656.208, to include provisions that address: Final disposition of the body and funeral expenses; • Payments to surviving beneficiaries; • Benefit to surviving spouse; • Benefit to surviving child; • Benefit to surviving dependent; • Benefit to child or dependent attending higher education; and • Death during permanent total disability. • Revised rule 0095 includes the requirement, currently in OAR 436-010-0265(10)(b), for an insurer to forward a copy of the signed IME report to the attending physician. • Revised rule 0140 explains that an “Updated Notice of Acceptance at Closure” is not necessary to begin payment of death benefits following a worker’s death during a period of permanent total disability under ORS 656.208. Rule 0140 also has clearer requirements for notices of denial, particularly for any denial based in whole or in part on an independent medical examination. • Revised rule 0147 includes amended criteria for eligibility for a worker-requested medical examination (WRME). The revised rule also specifies that the worker or worker’s attorney must schedule a date for the WRME and inform the director and insurer of that scheduling within 14 days of the director’s notice, but the WRME itself may take place outside of that 14-day window. • Revised rule 0150 has amended requirements for timely payment of death benefits.
    • OAR 436-075, Retroactive Program Repealed rule 0001 described the director’s authority. The director’s authority is established by Oregon statutes, and the rule is unnecessary. • Repealed rule 0002 described the purpose of division 075. The purpose statement did not include information that is not available in the division and rule titles, and the rule is unnecessary. • Amended rule 0003 now excludes the effective date of rules in division 075. Rule 0003 cannot determine the effective date of other rules. The effective date of each rule is set when it is filed with the Secretary of State, and the date is listed below the rule in the “Hist” (history) line. • Amended rule 0005 incorporates the definitions in ORS chapter 656 by reference, unless a term is specifically defined in these rules or the context otherwise requires. Terms that are defined in chapter 656 or that are not used in division 075 have been deleted. • Repealed rule 0006 stated that orders of the Performance Section are deemed orders of the director. The director’s authority is established by Oregon statutes, and the director may delegate that authority within the Department of Consumer and Business Services without establishing administrative rules in each instance. The rule is unnecessary. • Amended rule 0008 clarifies the processes for requesting hearings regarding certain orders or actions of the director. • Amended rule 0010 clarifies the criteria for Retroactive Program eligibility. • Amended rule 0020 clarifies the payment of death benefits under the Retroactive Program, including that statutory benefits will only be offset by a surviving spouse’s Social Security benefits for claims with dates of injury between July 1, 1973, and April 1, 1974. Certain instructions about the calculation and payment of death benefits have been deleted because they are described elsewhere in division 075 or in OAR 436-060. • Amended rule 0030 includes instructions for calculating benefits payable for a partial month. • Amended rule 0040 clarifies payment procedures if a worker dies during a period of permanent total disability, including that statutory benefits will only be offset by a surviving spouse’s Social Security benefits for claims with dates of injury between July 1, 1973, and April 1, 1974. Certain instructions about the calculation and payment of death benefits have been deleted because they are described elsewhere in division 075 or in OAR 436-060. • Amended rule 0065 clarifies the effect of dispositions and settlements on Retroactive Program eligibility, to include that a disposition or claims settlement must be approved by the director before submission to the Workers’ Compensation Board to be eligible for reimbursement from the Retroactive Program. • Amended rule 0070 clarifies reimbursement procedures under the Retroactive Program, to include a reference to Form 3285, “Requests for Reimbursement from the Retroactive Program,” and explanation that an equivalent form may be used to request reimbursement if it includes all of the data elements on Form 3285. • Amended rule 0090 clarifies, through use of plainer wording, the effects of third party recoveries on Retroactive Program benefits.
  • The Workers’ Compensation Division has posted temporary OAR 436-009, “Oregon Medical Fee and Payment Rules,” to its website:http://wcd.oregon.gov/laws/Documents/New_rules/9-17064t-ub-short.pdf.
  • These rules allow health care providers and workers’ compensation insurers to use 2018 medical billing codes on and after Jan. 1, 2018. The division expects to replace these temporary rules with permanent rules effective April 1, 2018.
  • Posted the final permanent rule OAR 436-060-0025 Rate of Temporary Disability Compensation.  The rule becomes effective January 1, 2018.  The attached rule replaces the temporary rule that has been in place since October 1 of this year.  A summary of the changes are below:
    • Restores the method for determining the weekly wage for workers employed through a union hiring hall to the one in place before Jan. 1, 2017; for these workers, insurers must calculate the rate of compensation on the basis of a five-day work week at 40 hours a week, regardless of the number of days actually worked per week;
    • Corrects a typographical error to explain that the insurer may not include any gap in “earnings” (not “employment”) of more than 14 days that was not anticipated in the wage earning agreement, when calculating the average earnings; and
    • Clarifies that when a wage earning agreement has been changed due to reasons other than a pay raise, it is a new wage earning agreement.

REGULATORY ACTIVITY:

• Issued Bulletin Number 1 Revised regarding attorney fees. The bulletin becomes effective on July 1, 2020. This bulletin publishes the annual adjustment to attorney fees awarded under ORS 656.262(11) (a), ORS 656.262(14) (a), and ORS 656.308(2) (d).  See OAR 438-015-0033; OAR 438-015-0038; OAR 438-015-0055(5); OAR 438-015-0110(3).  This bulletin replaces Bulletin No. 1 dated June 3, 2019. Effective January 1, 2016, House Bill 2764 section 2 (2015) raised the maximum attorney fee under ORS 656.262(11) (a) to $4,000 absent a showing of extraordinary circumstances.  ORS 656.262(11) (a) and ORS 656.308(2) (d) provide that the attorney fees awarded under those subsections are adjusted annually on July 1 by the same percentage increase, if any, as made to the state’s average weekly wage (SAWW) under ORS 656.211.  In accordance with these statutes, OAR 438-015-0038, OAR 438-015-0055(5) and OAR 438-015-0110(3) provide that the maximum attorney fee (in the absence of extraordinary circumstances) is subject to an annual adjustment on July 1 by the same percentage increase as made to the SAWW defined in ORS 656.211, if any, as calculated by the Workers’ Compensation Division (on behalf of the Director).   To view this bulletin, go to https://www.oregon.gov/wcb/legal/Pages/bulletins.aspx.
• The Workers’ Compensation Division has published proposed rules: OAR 436-009, Oregon Medical Fee and Payment. Amended rule 0012:
  • Defines “telehealth”;
  • States that all services must be appropriate, and the form of communication must be appropriate for the service provided;
  • Clarifies that medical services that may be provided through telemedicine are not limited to those listed in Appendix P of CPT® 2020; and
  • Explains that when billing for telehealth services other than telemedicine services, a distant-site provider must use the place-of-service code “02,” and may not use modifier 95.
  • Amended rule 0040 and its Appendix B, the physician fee schedule, increase maximum allowable payments for certain telephone and digital evaluation and management services.

A public rulemaking hearing is scheduled for July 22, 2020, 2 p.m. You are invited to listen or testify by telephone, as state offices will not be open on the day of the hearing: 541-465-2805 or local numbers: Eugene, 541-465-2927; Salem, 503-934-3605; Portland, 503-731-8655; Albany, 541-917-8395; Bend, 541-318-7989; Grants Pass, 541-474-3182; Medford, 541-857-2581; Corvallis, 541-757-5147; Roseburg, 458-802-7054. Teleconference PIN: 971151. Send written comments to: Email –  fred.h.bruyns@oregon.gov; USPS mail – Fred Bruyns, rules coordinator; Workers’ Compensation Division; 350 Winter Street NE (for courier or in-person delivery) PO Box 14480, Salem, OR 97309-0405. The closing date for written comments is July 28, 2020. To view this notice, go to https://wcd.oregon.gov/laws/Pages/proposed-rules.aspx

REGULATORY ACTIVITY:

• The department of Insurance the prescribed statistical plan to include the most recent COVID-19 related revisions filed by the National Council on Compensation Insurance (NCCI).  To view this notice, go to https://dfr.oregon.gov/laws-rules/Pages/adopted-rules.aspx.   The updated plan is effective May 1, 2020 through October 24, 2020.
• Published Bulletin No. 111 Revised. This bulletin provides updated benefit rates based on the Oregon average weekly wage for 2020.  This bulletin replaces Bulletin No. 111 dated May 17, 2019.  In conjunction with the bulletin the state also published form 5332," Notice to Beneficiary of Entitlement to Benefits" (not revised): https://wcd.oregon.gov/WCDForms/5332.docx. To view the bulletin and form, go to https://wcd.oregon.gov/forms/Pages/bulletins.aspx.
• Published Bulletin No. 356 Revised.  This bulletin publishes the attorney fee matrix under Oregon Administrative Rule (OAR) 436-001- 0410(1)(d) for attorney fees awarded under Oregon Revised Statute (ORS) 656.385(1). This bulletin replaces Bulletin No. 356 issued May 17, 2019.   To view the bulletin, go to https://wcd.oregon.gov/forms/Pages/bulletins.aspx.
• Published Bulletin No. 124. This bulletin provides forms, examples, checklists, and a chart for insurers and vocational assistance providers to use under Oregon Administrative Rules (OAR) 436-120. This bulletin is revised to provide an updated cost-of-living matrix and fee schedule for vocational assistance expenditures, effective July 1, 2020. This bulletin replaces Bulletin 124 dated May 17, 2019.  To view the bulletin, go to https://wcd.oregon.gov/forms/Pages/bulletins.aspx.
• The Workers’ Compensation Board will hold a meeting at 1:30 p.m. on Tuesday, June 23, 2020 at its Salem Office.  (Some of the Members may be participating by telephone.)  Because the Board meeting will likely be subject to “social distancing” requirements, arrangements will be made to allow parties/practitioners to participate in the meeting by a “phone conference” link. To view the notice and proposed amendments, go to https://www.oregon.gov/wcb/Pages/meetings-minutes.aspx.
• On May 23, 2020, the Department of Consumer and Business Services issued emergency orders for insurance companies providing property and casualty, long-term care, and life and disability insurance. The orders require insurance companies providing these policies to do the following: Provide at least a 60-day grace period to pay any past-due premiums; Pay claims for any covered losses during the first 30 days of the grace period; Extend all deadlines for reporting claims and other communications, and provide members with communication options that meet physical distancing standards. The orders are effective through June 23 but can be extended in 30-day increments as needed to address the COVID-19 outbreak. Finally, the original emergency order that was issued on March 25 has been extended to June 23. That order applies to all lines of insurance other than health, property and casualty, long-term care, and life and disability insurance. This emergency order requires all other lines of insurance companies to postpone policy cancellations, extend grace periods for premium payments, and extend deadlines for reporting claims.
• Published a temporary administrative order regarding COVID-19 Update to Statistical Plan for Workers' Compensation Insurance regulations. ORS 737.225 states that the director shall prescribe by rule the statistical plan for workers’ compensation insurance. Accordingly, OAR 836-042-0045 currently prescribes the Statistical Plan for Workers’ Compensation and Employer Liability Insurance, 2008 Edition, filed by the National Council on Compensation Insurance, with revisions through January 1, 2018. This rulemaking changes the date in the current administrative rule from January 1, 2018 to May 1, 2020, the effective date of revisions reflected in NCCI’s new filing. This order is effective May 1, 2020 through October 24, 2040.  To view the temporary order, go to https://dfr.oregon.gov/laws-rules/Pages/adopted-rules.aspx.
• The Oregon Department of Consumer and Business Services’ Division of Financial Regulation issued emergency orders for property and casualty, long-term care, and life and disability insurance. The orders mean that the most common insurance policies, such as auto, home, term and whole life, and long-term care have specific minimum grace periods to pay premiums and protect consumers by mandating how long claims must be paid. “Grace periods are an important resource for people during this pandemic, and the assurance that claims will be paid provides critical peace of mind,” said Andrew Stolfi, insurance commissioner and acting DCBS director. “It is encouraging to see insurance companies provide grace periods and coverage while Oregonians work to keep their insurance premiums current and the state works to reopen.” These orders transition the most common insurance policies from rolling 30-day grace periods established by the original March 25 emergency order to specific grace periods and specific numbers of days that claims must be paid for each type of insurance. This process provides two important protections for Oregon consumers:  A sustainable way for insurance customers to keep up with premium payments without falling too far behind. Insurance protection for a specific number of days for customers that are in a grace period. In addition to these orders, the department issued a similar order for health insurance earlier this month.  Oregonians are encouraged to visit the division’s COVID-19 consumer page for more information on these orders and several other insurance and financial services topics. If you have questions about your insurance coverage, contact your insurance provider. If you have questions about an insurance company or agent or need to file a complaint, contact the division’s advocacy team at 888-877-4894 (toll-free).
• Published Bulletin Number 383 regarding self-insured base rates and choice of method used for determination of premium assessment. This bulletin notifies self-insured employers of the base rates to be used for calculating the premium assessment for quarters occurring during the period from July 1, 2020, through June 30, 2021. In addition, this bulletin provides reporting instructions and rating plan options.   The forms and rates referenced in this bulletin are not effective until July 1, 2020. Refer to Bulletin 381 in order to complete the second quarter (April, May, June) 2020 Workers’ Compensation Payroll and Assessment Reports. IMPORTANT CHANGES:  When related to the COVID-19 pandemic, administrative leave pay or wage continuation for furloughed employees should be treated as vacation pay and excluded from gross wages.   Class code changes effective with this bulletin include:  8829 is eliminated, replace with 8824; 1860 is merged, replace with 4279; 4282 is merged, replace with 4279; 4360 is merged, replace with 7610; 4670 is merged, replace with 4683; 5508 is merged, replace with 5507; and 5474, Painting NOC & Shop Operations, Drivers has a new class description – Painting Aircraft & Shop Operations, Drivers.   To view a copy of the bulletin and forms, go to https://wcd.oregon.gov/forms/Pages/bulletins.aspx.

REGULATORY ACTIVITY:

• Published revised Bulletin 315 regarding Spanish translations available for correspondence with injured workers.  To view the bulletin, go to https://wcd.oregon.gov/forms/Pages/bulletins.aspx.
• Published revised Bulletin 337 regarding worker request for claim classification review and related forms.  To view the bulletin, go to https://wcd.oregon.gov/forms/Pages/bulletins.aspx.
• Kate Brown has appointed Andrew Stolfi as the DCBS director.  As director of DCBS, Stolfi will continue in his role as the state's insurance commissioner. He will also oversee the Building Codes Division, Division of Financial Regulation, the Oregon Health Insurance Marketplace, Oregon OSHA, the Ombudsman for Injured Workers, Small Business Ombudsman, Workers’ Compensation Division, Workers’ Compensation Board, as well as the Central Services Division.
• Issued bulletin 2020-09 regarding rerating businesses that have changed operations in response to the COCID-19 pandemic and suspense of field audits. To view the bulletin, go to https://dfr.oregon.gov/laws-rules/Pages/bulletins.aspx.
• Issued bulletin 2020-10 regarding payments to employees of business closed due to pandemic to be excluded from workers' compensation premium basis.  To view the bulletin, go to https://dfr.oregon.gov/laws-rules/Pages/bulletins.aspx.

FEE SCHEDULE NEWS:

• The Workers’ Compensation Division has adopted a new Medical and Hospital Fee Schedule effective April 1, 2020. The next expected update is in April 2021.

REGULATORY ACTIVITY:

• Issued a revised bulletin number 239 regarding claim closing and other impairment-focused examinations and forms for reporting impairments.  This bulletin is designed to assist medical providers to conform to the Oregon Disability Rating Standards (Oregon Administrative Rules 436-035) when conducting impairment-focused examinations for the purpose of determining an injured worker’s disability; describes the clinical techniques and protocols the medical provider is to use and includes detailed impairment sections, to ensure that examination findings are reported consistent with the Oregon Disability Rating Standards and provides impairment reporting forms.  This bulletin replaces Bulletin No. 239 dated April 11, 2017.  The affected forms are Form 2278C; Form 2278T; Form 2278L; Form 2279; Form 2312; Form 4842; and Form 4841. To view the bulletin and forms, go to https://wcd.oregon.gov/forms/Pages/bulletins.aspx.
• The Workers’ Compensation Division has published final rules to its website, to be effective April 1, 2020.  The final rule is OAR 436-009, Oregon Medical Fee and Payment. To view this notice and final rule, go to https://wcd.oregon.gov/laws/Pages/new-rules.aspx.
• Issued revised bulletin 237 regarding Insurer's report. This bulletin provides a revised Form 1502 and describes Form 1502 reporting requirements under Oregon Administrative Rules (OAR) 436-060-0011. The division revised the form to be consistent with rule changes, effective April 1, 2020.  Insurers must use Form 1502 to report claim status and activity to the Workers' Compensation Division.  To view this bulletin and revised form, go to https://wcd.oregon.gov/forms/Pages/bulletins.aspx.
• Posted Final Rules that become effective April 1, 2020.  The finalized rules are OAR 436-001 Procedural Rules, Attorney Fees and General Provisions and OAR 436-060 Claims administration. To view the rules, go to https://wcd.oregon.gov/laws/Pages/proposed-rules.aspx.
• Posted Notice that revised bulletin 359  regarding Insurers and Self-Insured Employers Required to Report Medical Bill Payment Data is now available. To view the bulletin, go to https://wcd.oregon.gov/forms/Pages/bulletins.aspx.
• The Workers’ Compensation Division has published the following industry notice, "Use of modified forms." https://wcd.oregon.gov/IndustryNotices/03-20-20-IN-Mod-Forms.pdfThe Workers’ Compensation Division wants to make sure the workers’ compensation industry is aware of rule changes that will affect the use of modified forms referenced in OAR 436-060. To view this industry notice, go to https://wcd.oregon.gov/Pages/index.aspx.
• Posted an industry notice regarding claims processing during the COVID19 emergency.

REGULATORY ACTIVITY:

• Published revised Bulletin 151 regarding list of registered vocational assistance providers.  To view the undated list of registered vocational assistance providers, go to http://www4.cbs.state.or.us/ex/imd/reports/rpt/index.cfm?ProgID=CE8059.  To view the bulletin, go to https://wcd.oregon.gov/forms/Pages/bulletins.aspx.
• Published revised bulletin 342 regarding determination of gainful occupation for permanent total disability.  This bulletin provides examples of “gainful occupation” to be used to determine eligibility for PTD benefits under ORS 656.206 and updates the annual percentage of change in the federal poverty guidelines for a family of three that apply to Oregon residents.  This bulletin was published February 4, 2020. This bulletin replaces Bulletin No. 342 dated Jan. 24, 2019. To view the bulletin, go to https://wcd.oregon.gov/forms/Pages/bulletins.aspx.
• Oregon Announces A Modernization Program: Creating a world-class workers’ compensation system: It is time to modernize business processes and technology at the Workers’ Compensation Division (WCD). Modernization is important to our regulatory functions and continued innovation. The need: Stakeholders have asked for updated services and processes, such as online self-service options and mobile technology. Our partners want to report data and share documents electronically; get secure access to real-time claims information; and see data reporting statistics using modern and flexible technologies. The process: The Modernization Program will work to create a detailed plan that will bring multiple technologies together for an overall solution. This program has a long-range vision, so you may not see an immediate change in the way the division operates. However, we do expect changes during the next few years that will improve our services, responses, and accessibility to customers.  How you can help: Tell us about your experiences with WCD. How can we improve processes and technology? Fill out this survey and help us serve you better.  Contact: Cecily Warren, 503-947-7595, Fax: 503-947-7725. Modernization@oregon.gov For additional information on the program, go to https://wcd.oregon.gov/Pages/modernization-program.aspx.
• Posted notice of adoption of two amended workers' compensation rules: OAR 436-030, Claim Closure and Reconsideration; and OAR 436-035, Disability Rating Standards. The rules become effective March 1, 2020.  A copy of the adopted rules can be viewed at https://wcd.oregon.gov/laws/Pages/new-rules.aspx.  A copy of the transcript of the hearing regarding these rules can be viewed at https://wcd.oregon.gov/laws/Pages/proposed-rules.aspx.
• Two members of the Oregon Workers' Compensation Board have proposed amendment to proposed rules that will be considered at the April 20, 2020 public meeting of the board.  To view the amendments, go to https://www.oregon.gov/wcb/Pages/meetings-minutes.aspx.

REGULATORY ACTIVITY:

• Published the December Issue of WCB Case News and Notes.  To view the publication, go to https://www.oregon.gov/wcb/Pages/news-notes.aspx.
• The Workers’ Compensation Division issues civil penalties for violations of statutes, rules, and orders of the director, such as claims processing and coverage reporting violations. Currently, depending on the seriousness and frequency of a violation, a civil penalty may range from $100 or less to $2,000 per violation.  Effective Jan. 1, 2020, House Bill 2087 (2019) amends the civil penalty law, ORS 656.7451, to:
  • Establish separate penalty caps for employers and insurers that induce workers not to report their injuries – $2,000 per violation and $40,000 in aggregate per calendar year.
  • Increase the per-violation penalty cap for insurers, self-insured employers, and service companies that fail to pay assessments or comply with the law from $2,000 to $4,000 and increase the total (aggregated) penalty cap from $10,000 per three-month period to $180,000 per calendar year.
  • Revise the total (aggregated) penalty cap for employers (except self-insured employers) and managed care organizations that fail to pay assessments or comply with the law from $10,000 per three-month period to $40,000 per calendar year. The per violation cap remains $2,000. The law change will allow per-violation civil penalties up to $4,000, but the division will continue to use established penalty rates in 2020.  The division will document patterns of noncompliance to determine appropriate penalty amounts after 2020. Although per-violation penalty rates will not increase in 2020, aggregate penalties issued under ORS 656.745 may sum to the revised total penalty caps of $40,000 or $180,000 during the calendar year.
• The Workers’ Compensation Division has published proposed rules to its website regarding OAR 436-009, Oregon Medical Fee and Payment.  A public rulemaking hearing (for oral testimony) has been scheduled: Feb. 18, 2020, 9 a.m.; Labor & Industries Building; 350 Winter Street NE, Room B Salem, Oregon 97301. Written testimony may be sent to: Email – fred.h.bruyns@oregon.gov. USPS mail or courier or hand delivery: Fred Bruyns, rules coordinator, Workers’ Compensation Division, 350 Winter Street NE, PO Box 14480, Salem, OR 97309-0405. Fax – 503-947-7514. The closing date for written comments is Feb. 21, 2020. You may also listen to the hearing or testify by telephone: Dial-in number is 1-213-787-0529; Access code is 9221262#.  To view this notice, go to https://wcd.oregon.gov/laws/Pages/proposed-rules.aspx.
• The Oregon Workers’ Compensation Division has posted proposed amendments to: OAR 436-001, Procedural Rules, Attorney Fees, and General Provisions and OAR 436-060, Claims Administration.  A hearing will be held on February 18, 2020 at 9:00 a.m. in room B in the Labor and Industries Building at 350 Winter Street NE, in Salem Oregon. Come to the hearing and speak, send written comments, or do both. Send written comments to: Email – h.bruyns@oregon.gov; Fred Bruyns, rules coordinator Workers’ Compensation Division; 350 Winter Street NE (for courier or in-person delivery); PO Box 14480, Salem, OR 97309-0405 (for USPS); Fax – 503-947-7514.  You may listen to the hearing or testify by telephone: Dial-in number is 1-213-787-0529; Access code is 9221262#.  The closing date for comments is February 21, 2020.  To view this notice and rules, go to https://wcd.oregon.gov/laws/Pages/proposed-rules.aspx.

FEE SCHEDULE NEWS:

• The state has adopted the new 2020 CPT and HCPCS codes for their medical fee schedule with an effective date of January 1, 2020. The next expected update to the medical fee schedule is in April 2020.

REGULATORY ACTIVITY:

• The Workers' Compensation Division (WCD) published the following industry notice to clarify WCD's interpretation of when a worker is "significantly limited in the repetitive use" of a body part under OAR 436-035-0019(1), following Broeke v. SAIF, 300 Or App 91 (2019). This industry notice clarifies the Workers’ Compensation Division’s (WCD) interpretation of when a worker is “significantly limited in the repetitive use” of a body part under OAR 436-035-0019(1), following Broeke v. SAIF, 300 Or App 91 (2019).
• Issued revised Bulletin 316 regarding claims processing administrative cost factor. This revised bulletin notifies insurers and self-insured employers of the 2020 claim processing administrative cost factor. The Workers’ Compensation Division (division) applies this factor to approved reimbursements for supplemental disability benefits and certain claim costs. The factor is calculated under Oregon Administrative Rule (OAR) 436- 050-0180. This bulletin replaces Bulletin 316 issued Dec. 10, 2018. The claim processing administrative cost factor for calendar year 2020 is 24.31 percent. To view the revised bulletin, go to https://wcd.oregon.gov/forms/Pages/bulletins.aspx . The revised bulletin is effective January 1, 2020. 
• Posted notice of final rules, revised bulletin and form all taking effect on January 1, 2020. The rules adopted are:
  •  OAR 436 general revisions to implement legislation enacted and to align rules and statutes to view these rules go to https://wcd.oregon.gov/laws/Documents/New_rules/436-19060-68-marked.pdf ;
  •  OAR 436-009 Oregon Medical Fee and Payment Temporary Rules to view this rule, go to https://wcd.oregon.gov/laws/Documents/New_rules/9-19056t-new.pdf ;
  •  OAR 436-050 Employer/Insurer Coverage Responsibility to view this rule, go to https://wcd.oregon.gov/laws/Documents/New_rules/50-85-19057-8-marked.pdf ; 
  • OAR 436-085 Premium Assessment to view this rule, go to https://wcd.oregon.gov/laws/Documents/New_rules/50-85-19057-8-marked.pdf ; and
  •  OAR 436-105 Employer-at-Injury Program to view this rule, go to https://wcd.oregon.gov/laws/Documents/New_rules/105-19059-marked.pdf 
  • In relation to the last rule Bulletin 260 and form 2360 have be revised. To view the bulletin, go to https://wcd.oregon.gov/Bulletins/bul_260.pdf . To view the revised form, go to https://wcd.oregon.gov/WCDForms/2360.doc  
• The Workers’ Compensation Division issues civil penalties for violations of statutes, rules, and orders of the director, such as claims processing and coverage reporting violations. Currently, depending on the seriousness and frequency of a violation, a civil penalty may range from $100 or less to $2,000 per violation. Effective Jan. 1, 2020, House Bill 2087 (2019) amends the civil penalty law, ORS 656.7451, to: o Establish separate penalty caps for employers and insurers that induce workers not to report their injuries – $2,000 per violation and $40,000 in aggregate per calendar year. o Increase the per-violation penalty cap for insurers, self-insured employers, and service companies that fail to pay assessments or comply with the law from $2,000 to $4,000 and increase the total (aggregated) penalty cap from $10,000 per three-month period to $180,000 per calendar year. o Revise the total (aggregated) penalty cap for employers (except self-insured employers) and managed care organizations that fail to pay assessments or comply with the law from $10,000 per three-month period to $40,000 per calendar year. The per violation cap remains $2,000. 
• Issued revised Bulletin 232 regarding notice of claim acceptance according to ORS 656.262(6). Form 3058 Notice to Worker has also been revised. The revise form should be used no later than February 1, 2020. To view the bulletin and form, go to https://wcd.oregon.gov/forms/Pages/bulletins.aspx
• Posted proposed rules for rule OAR 436-030 Claim Closure and Reconsideration and rule OAR 436-035 Disability Rating Standards. A hearing regarding the proposed rules will be held on January 16, 2020 at 10:00 a.m. in the OSHA large training room, 1st Floor 16760 SW Upper Boones Ferry Road, Portland Oregon. To view the proposed rule, go to https://wcd.oregon.gov/laws/Pages/proposed-rules.aspx 

REGULATORY ACTIVITY:

• The Workers' Compensation Division has posted information about possible changes to the rules governing claims administration, OAR 436-060:  https://wcd.oregon.gov/laws/Documents/rule-meetings/2019/SRAC-2019-10-14/SRAC-agenda-2019-10-14.pdf.
• The Department of Consumer and Business Services announced an 8.4 percent average reduction in pure premium rates for employers in 2020. For more information: https://www.oregon.gov/dcbs/cost/Pages/index.aspx
• Each year, the Department of Consumer and Business Services adopts by rule the workers' compensation premium assessment rate that is paid by all employers to fund workers' compensation and workplace safety and health programs. In the “Permanent Administrative Order,” filed with the Secretary of State on Oct. 1, 2019, the department explained that the 2020 premium assessment rate will go into effect on Jan. 1, 2020. Based on economic forecasts, department analysts recommended a premium assessment rate of 8.4 percent. The proposed increase from 7.8 percent to 8.4 percent will allow the department to maintain current service levels throughout 2020. Please refer to Exhibit 1. Additional assessments to fund the Self-Insured Employer Adjustment Reserve and Self-Insured Employer Group Adjustment Reserve are expected to decline by 50 percent from 2019 levels. For additional information, go to https://www.oregon.gov/dcbs/cost/Pages/index.aspx.
• The Workers’ Compensation Division has posted final rules, effective Jan. 1, 2020, to its website: OAR 436-070, Workers’ Benefit Fund Assessment | https://wcd.oregon.gov/laws/Documents/New_rules/70-19055-new.pdf.  The assessment rate for 2020 will be 2.2 cents per hour worked, reduced from 2.4 cents in 2019.  To view the final rule, go to https://wcd.oregon.gov/laws/Pages/new-rules.aspx.
• In 2018, the Department of Consumer and Business Services received notification of 21,008 accepted disabling claims for occupational injuries and illnesses. The 2018 Workers’ Compensation Claims Characteristics brochure with summary statistics on counts, fatalities, industry, and other facts is now available.  To view the document, go to https://www.oregon.gov/dcbs/reports/compensation/Pages/wc-claims.aspx.
• Posted the latest edition of WCB Case News & Notes.  To view the latest edition, go to https://www.oregon.gov/wcb/Pages/news-notes.aspx.
• Posted notice of a hearing being held on November 21, 2019 at 10:00 a.m. in the Labor and Industries Building 350 Winter Street NE, in Room F in Salem, Oregon.  The hearing is to receive comments on proposed rule amendments for OAR 436-009-0008; OAR 436-009-0060; OAR 436-010-0008; OAR 436-010-0340; OAR 436-015-0120; OAR 436-055-0110; OAR 436-060-0025; OAR 436-060-0200; OAR 436-070-0050; OAR 436-085-0060; OAR 436-110-0310; and OAR 436-140-0120. To view the proposed rules, go to https://wcd.oregon.gov/laws/Pages/proposed-rules.aspx.
• The workers’ compensation average claim costs tables are now available with updated information for claims resolved during 2018. They include cost tables by insurer, industry, and accepted disabling claims characteristics. To view the tables, go to http://www.cbs.state.or.us/external/imd/rasums/4863/18web/18-4863.html.

REGULATORY ACTIVITY:

• Each year, the Department of Consumer and Business Services adopts by rule the workers’ compensation premium assessment rate that is paid by employers to fund workers’ compensation and workplace safety and health programs. The rule also adopts the rate for an additional amount that is collected from all self-insured employers and self-insured employer groups to fund the Self-Insured Employers Adjustment Reserve and the Self-Insured Employer Group Adjustment Reserve. These funds ensure worker benefits are available in the event of a financial failure of a self-insured employer or self-insured employer group. Before recommending the 2020 rate, the department must analyze financial data and review and authorize a proposed workers' compensation pure premium rate filing by the National Council on Compensation Insurance. The proposed premium assessment rate for 2020 is expected to be announced by mid-September. Additional assessments to fund the Self-Insured Employer Adjustment Reserve and Self-Insured Employer Group Adjustment Reserve are also expected to remain unchanged. These are preliminary rates and are subject to change during the rulemaking process. This rulemaking will adopt the assessment rates that will be in effect from Jan. 1, 2020, to Dec. 31, 2020.
• The Oregon Workers’ Compensation Division has posted proposed OAR 436-070, Workers’ Benefit Fund (WBF) Assessment, to: https://wcd.oregon.gov/laws/Pages/proposed-rules.aspx. Rule 0003 includes the effective date for OAR 436-070, and this date will be revised from Jan. 1, 2019 to Jan. 1, 2020. Rule 0010 will set the 2020 Workers’ Benefit Fund assessment rate. Analysis to determine the rate is ongoing.
• The Oregon Workers’ Compensation Division has published temporary rules, OAR 436-035, effective Sept. 3, 2019. The revised rules reflect the decision of the Oregon Supreme Court in Caren v. Providence Health System Oregon, 365 Or 466 (2019). The court concluded that, before impairment can be apportioned based on a preexisting condition, there must be an accepted and denied combined condition. Some provisions in the rules were not consistent with this requirement. Summary of changes:
  • Amended rule 0007 explains when pre-existing conditions can and cannot be apportioned in determining awards for permanent impairment and that the loss must be caused in material part by the injury.
  • Amended rule 0012 explains how preexisting conditions affect the determination of work capacity (residual functional capacity).
  • Amended rule 0014 explains when a combined condition can and cannot be considered in determining permanent impairment.

Temporary rules are effective for a maximum of 180 days. Standard (permanent) rulemaking will be almost immediately to develop replacement rules.

• Issued Bulletin Number 382 regarding retroactive program benefits effective October 1, 2019. This bulletin notifies insurers of: The annual increase in Retroactive Program benefits; and the methods used to calculate these benefits and determine the amount of Retroactive Program reimbursement. The Retroactive Program benefit, established by ORS 656.506(7) and administered under OAR chapter 436 division 075, is an additional amount paid to eligible workers or their beneficiaries when benefit levels are lower than what is currently being paid for like injuries. Program recipients are primarily workers previously determined to have a permanent total disability and beneficiaries of workers who suffered fatal injuries.   To view the bulletin, go to https://wcd.oregon.gov/forms/Pages/bulletins.aspx.
• Issued a revised Bulletin Number 112 regarding reimbursement of injured workers' travel, food, and lodging costs.  The state has also issued a revised form 3921.  To view additional information, go to https://wcd.oregon.gov/forms/Pages/bulletins.aspx.
• The Oregon Workers' Compensation Board published the August edition of Board News and Case Notes.  To view the August edition, go to https://www.oregon.gov/wcb/Pages/index.aspx.
• Each year, the Department of Consumer and Business Services adopts by rule the workers' compensation premium assessment rate that is paid by all employers to fund workers' compensation and workplace safety and health programs. In the “Notice of Proposed Rulemaking Hearing,” filed with the Secretary of State on Aug. 29, 2019, the department explained that a proposed premium assessment rate would be announced by the middle of September. Based on economic forecasts, department analysts recommend a premium assessment rate of 8.4 percent. The proposed increase from 7.8 percent to 8.4 percent will allow the department to maintain current service levels throughout 2020.  Additional assessments to fund the Self-Insured Employer Adjustment Reserve and Self-Insured Employer Group Adjustment Reserve are expected to decline by 50 percent from 2019 levels. However, these too are proposed rates and are subject to change during the rulemaking process. To view the documents regarding these rules, go to https://www.oregon.gov/dcbs/cost/Pages/rulemaking.aspx.  The notice of the rule and additional information regarding the rule is attached.