656.308
Responsibility for payment of claims; effect of new injury; denial of
responsibility; procedure for joining employers and insurers; attorney fees;
limitation on filing claims subject to settlement agreement. (1) When a worker sustains a
compensable injury, the responsible employer shall remain responsible for
future compensable medical services and disability relating to the compensable
condition unless the worker sustains a new compensable injury involving the
same condition. If a new compensable injury occurs, all further compensable
medical services and disability involving the same condition shall be processed
as a new injury claim by the subsequent employer. The standards for determining
the compensability of a combined condition under ORS 656.005 (7) shall also be
used to determine the occurrence of a new compensable injury or disease under
this section.
(2)(a) Any
insurer or self-insured employer who disputes responsibility for a claim shall
so indicate in or as part of a denial otherwise meeting the requirements of ORS
656.262 issued in the 60 days allowed for processing of the claim. The denial
shall advise the worker to file separate, timely claims against other
potentially responsible insurers or self-insured employers, including other
insurers for the same employer, in order to protect the right to obtain
benefits on the claim. The denial may list the names and addresses of other
insurers or self-insured employers. Such denials shall be final unless the
worker files a timely request for hearing pursuant to ORS 656.319. All such
requests for hearing shall be consolidated into one proceeding.
(b) No insurer or
self-insured employer, including other insurers for the same employer, shall be
joined to any workers’ compensation hearing unless the worker has first filed a
timely, written claim against that insurer or self-insured employer, or the
insurer or self-insured employer has consented to issuance of an order
designating a paying agent pursuant to ORS 656.307. An insurer or self-insured
employer against whom a claim is filed may contend that responsibility lies
with another insurer or self-insured employer, including another insurer for
the same employer, regardless of whether the worker has filed a claim against
that insurer or self-insured employer.
(c) Upon written
notice by an insurer or self-insured employer filed not more than 28 days or
less than 14 days before the hearing, the Administrative Law Judge shall
dismiss that party from the proceeding if the record does not contain
substantial evidence to support a finding of responsibility against that party.
The Administrative Law Judge shall decide such motions and inform the parties
not less than seven days prior to the hearing, or postpone the hearing.
(d)
Notwithstanding ORS 656.382 (2), 656.386 and 656.388, a reasonable attorney fee
shall be awarded to the attorney for the injured worker for the attorney’s
appearance and active and meaningful participation in finally prevailing
against a responsibility denial. The fee shall not exceed $2,500 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, if any.
(3) A worker who
is a party to an approved disputed claim settlement agreement under ORS 656.289
(4) may not subsequently file a claim against an insurer or a self-insured
employer who is a party to the agreement with regard to claim conditions
settled in the agreement even if other insurers or employers disclaim
responsibility for those claim conditions. A worker who is a party to an
approved claim disposition agreement under ORS 656.236 (1) may not subsequently
file a claim against an insurer or a self-insured employer who is a party to
the agreement with regard to any matter settled in the agreement even if other
insurers or employers disclaim responsibility for those claim conditions,
unless the claim in the subsequent proceeding is limited to a claim for medical
services for claim conditions settled in the agreement. [1990 c.2 §49; 1995
c.332 §37; 2001 c.865 §8; 2009 c.526 §2]
Notes of Decisions
Dean Warren Plumbing & Liberty Northwest Insurance v. Brenner (1997)
orctapp · cites it 66×
“307(5) is illogical because an attorney representing a claimant in a more complex "hybrid" case under ORS 656.308 would have only limited fees available, while the attorney in a simple, "pure" responsibility case has access to unlimited fees, and that could not have been the…”
Multifoods Specialty Distribution v. McAtee (2002)
or · cites it 14×
“” Employer remained responsible for the pre-existing component of claimant’s combined condition, the board reasoned, because responsibility for the pre-existing condition had shifted to employer under ORS 656.308(1) 4 Further, it held that employer could not issue a denial of…”
Multifoods Specialty Distribution v. McAtee (1999)
orctapp · cites it 25×
“We first consider the text of ORS 656.308. The first sentence provides that when a worker sustains a compensable injury, the responsible employer shall remain responsible “for future compensable” medical services and disability unless that worker sustains a “new compensable…”
SAIF Corp. v. Drews (1993)
or · cites it 15×
“The issues are: Which employer is responsible for the second injury? Does a second injury in a case such as this fall within the revised successive responsibility statutes enacted by the legislature in 1990? We answer the second question in the affirmative, which means that the…”
SAIF Corp. v. Yokum (1994)
orctapp · cites it 21×
“It argues that ORS 656.308(1) applies instead of the last injurious exposure rule.”
SAIF Corp. v. Henwood (2001)
orctapp · cites it 11×
“” Employer further argued that, if the claim was compensable, responsibility never shifted from the California employer under ORS 656.308(1), which provides: “When a worker sustains a compensable injury, the responsible employer shall remain responsible for future *434…”
Brown v. SAIF Corp. (2014)
orctapp · cites it 5×
“He explained that requiring the insurer or employer to accept a specific condition was a function of establishing “responsibility” under ORS 656.308. Tape Recording, House Committee on Labor, SB 369, Mar 6, 1995, Tape 46, Side A (statements of Rep Kevin Mannix).”
Brown v. SAIF Corp. (2017)
or · cites it 2×
“” Even more ambiguous is ORS 656.308(1), which provides that, when a worker sustains a “compensable injury,” the responsible employer remains obligated to pay benefits relating to “the compensable condition,” unless the worker sustains a new “compensable injury” involving the…”
SAIF Corp. v. Wart (2004)
orctapp · cites it 6×
“307 and ORS 656.308 for which "a worker may not be entitled to compensation from a particular employer even though the injury or condition is determined to be compensable.”
Errand v. Cascade Steel Rolling Mills, Inc. (1995)
or · cites it 4×
“In setting forth the test for applying the definition of "compensable injury" in the context of ORS 656.308, this court in Drews described the injury discussed in the first part of ORS 656.”
Estate of Strametz v. Spectrum Motorwerks, Inc. (1995)
orctapp · cites it 10×
“Nonetheless, our holding remains the law. [2] Even if the language in the case law means that the law of averages is spread among all employers whose workplaces have conditions that could cause other claimants to become diseased rather than among those employers of a particular…”
Bennett v. Liberty Northwest Ins. Corp. (1994)
orctapp · cites it 8×
“The evidence does not support a proposition that claimant's employment at Siltec was even a material contributing cause of any worsening of the condition, and certainly does not rise to the level of establishing that the Siltec employment was the major contributing cause.”
— Or. Rev. Stat. § 656.308(1) — 43 cases
Multifoods Specialty Distribution v. McAtee (2002)
or
“” Employer remained responsible for the pre-existing component of claimant’s combined condition, the board reasoned, because responsibility for the pre-existing condition had shifted to employer under ORS 656.308(1) 4 Further, it held that employer could not issue a denial of…”
SAIF Corp. v. Drews (1993)
or
“The issues are: Which employer is responsible for the second injury? Does a second injury in a case such as this fall within the revised successive responsibility statutes enacted by the legislature in 1990? We answer the second question in the affirmative, which means that the…”
Multifoods Specialty Distribution v. McAtee (1999)
orctapp
“We first consider the text of ORS 656.308. The first sentence provides that when a worker sustains a compensable injury, the responsible employer shall remain responsible “for future compensable” medical services and disability unless that worker sustains a “new compensable…”
SAIF Corp. v. Yokum (1994)
orctapp
“It argues that ORS 656.308(1) applies instead of the last injurious exposure rule.”
SAIF Corp. v. Henwood (2001)
orctapp
“” Employer further argued that, if the claim was compensable, responsibility never shifted from the California employer under ORS 656.308(1), which provides: “When a worker sustains a compensable injury, the responsible employer shall remain responsible for future *434…”
— Or. Rev. Stat. § 656.308(2) — 18 cases
Dean Warren Plumbing & Liberty Northwest Insurance v. Brenner (1997)
orctapp
“307(5) is illogical because an attorney representing a claimant in a more complex "hybrid" case under ORS 656.308 would have only limited fees available, while the attorney in a simple, "pure" responsibility case has access to unlimited fees, and that could not have been the…”
— Or. Rev. Stat. § 656.308(2)(a) — 2 cases
— Or. Rev. Stat. § 656.308(2)(b) — 1 case
— Or. Rev. Stat. § 656.308(2)(d) — 8 cases
Dean Warren Plumbing & Liberty Northwest Insurance v. Brenner (1997)
orctapp
“307(5) is illogical because an attorney representing a claimant in a more complex "hybrid" case under ORS 656.308 would have only limited fees available, while the attorney in a simple, "pure" responsibility case has access to unlimited fees, and that could not have been the…”
— Or. Rev. Stat. § 656.308(l)(d) — 1 case
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