44 Trial Lawyer • Spring 2024 Comp Corner tation clause for ORS 656.262 is Section 3, and for ORS 656.268, Section 6. They both state, “The amendments … apply to all claims that exist on, or arise on or after, January 1, 2024, regardless of the date of injury or the date on which the claim is filed.” However, the amendments “do not apply to disputes in which a final determination is made prior to January 1, 2024.” Changes The retroactivity clause was patterned after the 1995 legislation, Or Laws 1995, c. 332 (SB 369). The Board found the 1995 legislation applied retroactively. Diane S. Hill, 48 Van Natta 2351, 2352 (1996) (en banc). HB 4138 is intended to apply to all existing and future claims, and it is intended to apply to all actions currently in litigation where the case has not yet become final. The first, important change is to extend the worker’s ability to obtain temporary disability authorization: • For at least 45 days prior. • For any period of denial of a claim. • For any period where there is a dispute over attending physician or medical treatment that affects a worker’s ability to get a script to be off work. • Very importantly, when the insurer has failed to give notice that temporary disability will be ended. The purpose of these changes is to avoid cutting off time loss when a worker is unable to work, but has administrative problems in getting a written authorization. The changes to the law are fully retroactive. The law took two years to become effective to allow insurers to implement the changes. The second change is to prevent an By Julene Quinn OTLA Guardian Let us welcome the relief promised by House Bill 4138. The legislation requires insurers to give written notice to an injured worker before suspending time loss payments and gives injured workers the ability to work with their medical provider to authorize time loss payments back to the date the workers’ eligibility ended. It also limits how far back a medical provider can retroactively declare a worker is medically stationary. Lastly, the measure limits overpayment recovery to no more than 50 percent of the worker’s total award and establishes a two-year window for an insurer to declare an overpayment. Proceed with caution OTLA/OWCA fought hard for this bill. It is now up to attorneys representing workers to enforce the full extent of this bill. Here are some basic guidelines with a word of caution. Until the Oregon Supreme Court has spoken on an interpretation, please, please do not concede bad law in any forum. Think creatively and cooperatively. What it means First, this bill is fully retroactive for any legal issue not finalized through litigation. HB 4138 amends ORS 656.262 and 656.268. The implemenWelcomed Relief Issues & Topics for the Workers’ Compensation Attorney Julene Quinn insurer from closing a claim when the insurer attempts to get a doctor to declare the worker medically stationary more than 60 days prior. ORS 656.268(1)(a). Because the changes are included in the limitations of when a claim may be closed under ORS 656.268(1), the legislation has indicated an intent that the claim may not be closed when the insurer violates the 60 day requirement. The remedy is rescission of the closure, with the insurer having to re-do the process correctly. The third change is to limit the amount of overpayment that may be recovered from PPD. Remember, taking an overpayment is not an issue within the reconsideration. It is a payment issue after issuance of the recon order. While the order might allow the taking of an overpayment, it does not set the amount that may be taken. This is a later, payment issue. Any orders that award permanent disability where the insurer captured an overpayment more than 50% of the PPD may still be challenged. The challenge may (or may not) be subject to ORS 656.319(6). See French-Davis v. Grand Central Bowl, 186 Or App 280 (2003), which suggests the two-year limit begins when there is an initial request for payment or corrective action. Julene Quinn is an appellate attorney who focuses on workers’ compensation. She contributes to OTLA Guardians at the Sustaining Member level. Her firm is Quinn & Heus LLC, 4504 S. Corbett, Portland, OR 97239. She can be reached at julene.m.quinn@gmail.com or 503575-1253.
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