I am sure that everyone else is as glad as I am that the election is over, and therefore we don’t need to spend all of our TV time watching ads for candidates and causes.
For the workers’ compensation system, the election outcomes were good. We will have the opportunity to influence the workers’ compensation system in a pro-worker way.
I know that I’ve spoken about the Supreme Court’s decision in Brown v. SAIF, but we will be taking aim at that during this legislative session.
To review, the Supreme Court determined in Brown v. SAIF, decided in March of 2017 (https://cdm17027.contentdm.oclc.org/digital/collection/p17027coll3/id/5916/rec/136), that the law required that the worker prove that the accepted condition is the major cause of the need for treatment rather than the injury event. As a practical matter, this means that if the insurance company accepts a lumbar sprain combined with preexisting degenerative arthritis, the worker has to prove that the lumbar sprain is the major cause of a need for surgery. Practically speaking, that is impossible to do. I’ve provided a link to that case above in the event that you want to read it, but I will warn you that it is 43 pages long and not very interesting.
In any event, the Oregon Trial Lawyers Association has been working for the last year or so to get some consensus on ways to fix that problem, and provide reasonable access to diagnostic care for injured workers.
With the election outcomes, we anticipate being able to put a bill together with agreement from the defense side that will allow injured workers to be able to establish that their need for medical care is related to whether the event itself is the major cause of the need for treatment and not let insurance companies limit benefits simply on the basis of what they accept.
This has also set up an effort to try to change some other aspects of Oregon’s workers compensation system that are, if not as bad, very close to, for injured workers.
Although it is unlikely to happen in this session, there will be a push to change the way we are allowed to fight about permanent disability in this state. At the present time, the record is frozen at the reconsideration stage (that is where documents are submitted to the bureaucrats at the Department of Consumer and Business Services), and injured workers are not allowed to testify in their own hearing. Even if they were allowed to testify, their comments would not be considered by the administrative law judge. Neither of those is fair, and we hope following the 2020 election to make a reasonable effort to change the reconsideration process and provide a fairer system of deciding permanent disability in the workers compensation system.
