Tribal Code

Worker’s compensation

WARM SPRINGS TRIBAL CODE

CHAPTER 375

WORKERS’ COMPENSATION

Table of Contents

I. GENERAL PROVISIONS
375.105 Establishment of Plan
375.110 Declaration of Policy
375.115 Compensation As Exclusive Remedy
375.120 Intentional Injuries
375.125 Scope
375.130 Administration
375.135 Definitions

II. COVERAGE
375.200 Persons Covered
375.205 Persons Not Covered
375.210 Workers with Preexisting Medical Conditions
375.215 Specific Medical Conditions
375.220 Workers Injured During Lunch or Scheduled Break
375.225 Workers Awarded Compensation Through Other Compensatory Schemes
375.230 Payment of Awards After Death
375.235 Entitlements for Incarcerated Workers

III. COMPENSATION AND MEDICAL BENEFITS
375.300 Death
375.305 Permanent Total Disability
375.310 Death During Permanent Total Disability
375.315 Offsetting Permanent Total Disability Benefits Against Social Security Benefits
375.320 Temporary Total Disability
375.325 “Average Weekly Wage” Defined
375.330 Temporary Partial Disability
375.335 Permanent Partial Disability
375.340 Permanent Partial Disability, Method of Payment; Effect of Prior Receipt of Temporary Disability Payments
375.345 Continuance of Permanent Partial Disability Payments to Survivors; Effect of Death Prior to Final Disposition; Burial Allowance
375.350 Compensation For Additional Accident
375.355 Cohabitants and Children Entitled To Compensation
375.360 Payments Direction To Beneficiary or Custodian
375.365 Accelerating Award Payments with Approval of the Workers’ Compensation Committee
375.370 Compensation Not Assignable, Nor to Pass By Operation of Law and Is Exempt From Process
375.375 Medical Services and Supplies

IV. CLAIMS PROCEDURES
375.400 Notice of Accident; Notification of Worker’s Rights
375.405 Claims of Injured Workers to be Acted Upon Promptly
375.410 Worker’s Application for Compensation; Physician to Aid With; Procedures-for Medical Treatment
375.415 Occupational Diseases: Compensation and Benefits
375.420 Statutes of Limitation
375.425 Burden of Proof
375.430 Presumptions
375.435 Proof of Dependency
375.440 Compromise and Release
375.445 Claim Closure
375.450 Sending Notice, Orders, Warrants to Injured Workers
375.455 Recovery of Payments Made Due to Error, Mistake, Erroneous Adjudication, Fraud, etc.
375.460 Medical Examination: Refusal to Submit; Travel Expenses
375.465 Medical Evaluations
375.470 Testimony of Physicians Not Privileged
375.475 Claim Files and Records Confidential
375.480 Actions Against Third Persons: Election by the Injured Person, or Beneficiary, Authorized; Lien by Employer

V. PROTESTS AND APPEALS
375.500 Protests
375.505 Appeals
375.510 Attorney’s Fees: When Paid by the Fund; Limitations

VI. FUNDING
375.600 Classification of Tribal Entities for Funding Purposes
375.605 Funding for Group A Tribal Entities
375.610 Funding for Group B Entities
375.615 Annual and Quarterly Reports

WARM SPRINGS TRIBAL CODE

CHAPTER 375

WORKERS’ COMPENSATION

I. GENERAL PROVISIONS

375.105 Establishment of Plan. This chapter establishes a workers’ compensation plan for all employees of The Confederated Tribes of the Warm Springs Reservation of Oregon, including all tribal enterprise employees, Tribal Council members, committee members, and others as set out in WSTC 375.125. In adopting the following Plan, the Tribal Council declares that The Confederated Tribes of the Warm Springs Reservation of Oregon is a sovereign nation for purposes of workers’ compensation, governed solely by the laws enacted by the Warm Springs Tribal Council, and that no state compensation law is applicable to injuries sustained by the covered workers.

375.110 Declaration of Policy. The objectives of this chapter are declared to be as follows:

  1. To provide, regardless of fault, sure, prompt and complete medical treatment for injured workers, and fair, adequate and reasonable income benefits to injured workers and their dependents;
  2. To provide a fair and just administrative system for delivery of medical and financial benefits to injured workers that reduces litigation and eliminates the adversary nature of the compensation proceedings to the greatest extent practicable;
  3. To restore the injured worker physically and economically to a self-sufficient status in an expeditious manner and to the greatest extent practicable; and
  4. To encourage maximum employer implementation of accident study, analysis and prevention programs to reduce the economic loss and human suffering caused by industrial accidents.

375.115 Compensation As Exclusive Remedy. The right to receive compensation pursuant to the provisions of this chapter for injuries sustained by a covered worker shall be the exclusive remedy against the Tribe and employees thereof, except as otherwise provided herein, and to that end, all civil causes of action against the Tribe and its employees for such personal injuries or death, all jurisdictions of the courts, and all claims for contribution or indemnity asserted by third persons from who damages are sought on account of such injuries, are hereby abolished.1

375.120 Intentional Injuries.

  1. If injury or death results to a covered worker from the deliberate intention of the worker to produce such injury or death, neither the worker nor the widow, widower, child or dependent of the worker shall receive any payment whatsoever under this chapter.
  2. If injury or death results to a covered worker from the deliberate intention of a fellow worker or other to produce such injury or death, the worker, the widow, widower, child or dependent of the worker may receive benefits under this chapter and also have cause for action against the fellow worker for damages over the amount payable under this chapter. In such an action against a fellow worker, any award or settlement shall be distributed as provided in WSTC 375.475(3).

375.125 Scope. 2

  1. Except as provided in WSTC 375.125(2) this chapter covers all employees of the tribal government of The Confederated Tribes of the Warm Springs Reservation of Oregon and all employees of all enterprises owned and operated by The Confederated Tribes of the Warm Springs Reservation of Oregon. This chapter does not cover the employees of other governmental entities or the employees of private employers on the Warm Springs Indian Reservation.
  2. All employees of Warm Springs Forest Enterprise (WSFPI) shall be covered by this chapter, provided, that if WSFPI is managed by a non-tribal entity responsible for the cost of workers’ compensation coverage, the non-tribal entity may at its option obtain alternate coverage, acceptable to the WSFPI CEO, for WSFPI employees through a third party.

375.130 Administration.

  1. Workers’ Compensation Committee. (a) Membership.3 There is hereby established a Warm Springs Workers’ Compensation Committee, whose responsibility it shall be to administer the plan and to act as the first level of review in the case of a disputed claim. The Committee shall be composed of seven members, one of which shall serve as chairperson of the Committee. The Committee shall be composed of two representatives from the tribal government, two representatives from Warm Springs Forest Products Industries, one representative from Kah-Nee-Ta Resort, one representative from Warm Springs Composite Products and one representative from Indian Head Casino. The Committee chairperson and members shall be appointed by the Warm Springs Tribal Council. The Tribal Council may remove any member of the Committee for cause. A majority of the Committee members shall constitute a quorum, and a majority of those members present and constituting a quorum must concur in order for any decision of the Committee to be valid. (b) Functions, Duties and Authority. The Workers’ Compensation Committee shall: (i) Contract with a professional claims administration firm to handle the duties of the Claims Administrator, as provided in WSTC 375.130(2). The Committee shall review and approve actions taken by the Claims Administrator to insure compliance with this chapter. (ii) Establish and promulgate rules governing the administration of this chapter. (iii) Determine all matters and perform all functions entrusted herein to the Workers’ Compensation Committee. All orders, rules, findings, decisions and awards of the Workers’ Compensation Committee are presumed reasonable and lawful until modified or set aside. (iv) Purchase stop loss insurance covering all claims arising under this chapter in excess of those covered by the Tribal Fund. (v) Contract with an industrial safety consulting firm to provide safety evaluations and consultations to the tribal government and the tribal enterprises. (vi) Manage the Tribal Fund as provided in WSTC 375.610. (vii) Submit annual reports to the Tribal Council as provided in WSTC 375.615.
  2. Claims Administrator: Functions, Duties and Authority. The Claims Administrator shall: (a) Supervise medical, surgical and hospital treatment for injured workers to insure that it meets the required standards of modern medicine at the lowest possible cost. (b) Open claims, verify time loss and other aspects of disability, handle disbursement of funds for workers and beneficiaries on tribal checks drawn on the Tribal Fund, make claim evaluations and determinations with respect to each claim made. (c) Compile statistics as will afford the Workers’ Compensation Committee reliable information upon which to base its decisions. (d) Make, and from time to time update, a fee chart of maximum charges to be made by any physician, surgeon, hospital, druggist, or other agency or person rendering services to the injured worker. (e) Make a record of the commencement of every disability and termination thereof, and, when bills are rendered for the care and treatment of injured workers, approve and pay those which conform to the promulgated rules, regulations and practices of the Workers’ Compensation Committee and reject any bill or item thereof incurred in violation of the provisions of this chapter or the rules and regulations promulgated under it.

375.135 Definitions. In this chapter, unless the context otherwise requires:

  1. “Accredited School” means a school approved by the Tribe or the State, or a school regulated, licensed or recognized by the Tribe as having approved course content.
  2. “Alcohol Impairment” means blood-alcohol content in excess of .02 percent or conviction of the offense of driving under the influence of intoxicants, or words to that effect, by any lawful jurisdiction.4
  3. “Beneficiary” means an injured worker, and the husband, wife, child or dependent of a worker, who is entitled to receive payments under this chapter. This term includes cohabitants and children as defined in WSTC 375.355. However, if the injured worker and his or her spouse have been living apart and separate for more than one year at the time of the injury or subsequently, with no intent to reunite, such a spouse is not a beneficiary and shall not qualify for compensation benefits as a spouse under this plan.
  4. “Chapter” means Chapter 375 of the Warm Springs Tribal Code (Workers’ Compensation Code), WSTC 375.105 through 375.615.
  5. “Child” includes a posthumous child, a child legally adopted prior to the injury, a child toward whom the worker stands in loco parentis, an illegitimate child, and a stepchild, if such stepchild was, at the time of the injury, a member of the worker’s family and substantially dependent upon the worker for support. An “invalid dependent child” is a child, for purposes of benefits, regardless of age, so long as the child was an invalid at the time of the accident and thereafter remains an invalid substantially dependent on the worker for support. A child does not include any married children unless they are dependents. A person might also qualify as a child according to tribal custom as determined by the Workers’ Compensation Committee.
  6. “Claim” means a written request for compensation from a worker or someone on the worker’s behalf, or any compensable injury of which employer has notice or knowledge.
  7. “Compensable Injury” is an accidental injury arising out of and in the course of employment requiring medical services or resulting in disability or death; an injury is accidental if the result is an accident, whether or not due to accidental means. The term “compensable injury” for purposes of this plan also encompasses the accidental contraction of an occupational disease. Damage to dentures, eyeglasses, prosthetic devices and artificial limbs may be included in this definition only when the damage is shown to be part of, or in conjunction with, an accidental injury to the worker occurring while the device is in use. A “compensable injury” does not include injury to any active participant in assaults or combats which are not connected to the job assignment and which amount to a deviation from customary duties.
  8. “Compensation” means the compensation and benefits provided by this chapter, i.e., “indemnity” means weekly disability payments, and “medical” means medical expense, mileage and other expenses associated with medical treatment.
  9. “Death” is any fatality of the worker from work injury or occupational disease; provided, however, that if the injured worker dies during the period of permanent total disability, whatever the cause of death, leaving a surviving spouse, or child or children, the surviving spouse, child or children shall receive benefits as if death resulted from the injury as provided herein.
  10. “Dependent” means any of the following-named relatives of a worker whose death results from any injury and who leaves surviving no widow, widower or child under the age of 18 years: father, mother, grandfather, grandmother, stepfather, stepmother, grandson, granddaughter, brother, sister, half-sister, half-brother, niece or nephew or any other extended family member as approved by the Workers’ Compensation Committee, who at the time of the injury is actually and necessarily dependent in whole or in part upon the earnings of the worker.
  11. “Disability” means incapacity because of injury to earn wages in the same or any other employment.
  12. “Occupational disease” means such disease or infection as arises naturally and proximately out of employment.
  13. “Pre-Existing Condition” means any injury, disease, congenital abnormality or similar condition that contributes or predisposes a worker to disability or the need for treatment and that precedes the onset of an initial or aggravation claim.5
  14. “Tribe or “employer” means the tribal government of The Confederated Tribes of the Warm springs Reservation of Oregon and all tribal enterprises owned and operated by The Confederated Tribes of the Warm Springs Reservation of Oregon.
  15. “Worker” or “tribal worker” or “covered worker” means every person in the service of The Confederated Tribes of the Warm Springs Reservation of Oregon elected, appointed or hired and carried on the payroll of the Tribe, including all enterprise employees, Council members, and committee members, unless exempted pursuant to WSTC 375.125(2). Not included in the term “worker” are consultants and independent contractors, which include individuals who agree to perform services for the Tribe or its enterprises without supervision or control, and all other persons not considered to be directly employed by the Tribe or its enterprises.
  16. “Worker’s Compensation Committee” means the Warm Springs Tribal Workers’ Compensation Committee established by WSTC 375.130(1).

II. COVERAGE

375.200 Persons Covered.

  1. Injured/Diseased Workers and Beneficiaries. Each worker injured or killed due to an accident or who has suffered an occupational disease in the course of his or her employment, or such worker’s dependents or beneficiaries, shall receive compensation in accordance with this chapter, except as otherwise provided herein. Such payment shall be in lieu of any and all causes of action whatsoever against the Tribe.
  2. Special Rules for Noncustodial Situations. If an injured worker, or the surviving spouse of a deceased worker, does not have the legal custody of a dependent child on account of whom payments are required to be made under this chapter, such payment shall be made to the person having legal custody of such child, but only for the periods of time after the Workers’ Compensation Committee has been notified of the fact of such legal custody. It shall be the duty of any such person receiving payments because of legal custody of any child immediately notify the Workers’ Compensation Committee of any change in such legal custody.

375.205 Persons Not Covered.

  1. Intentional Injuries. If injury or death results to a worker from the deliberate intention of the worker to provide such injury or death, neither the worker nor the widow, widower, child or dependent of the worker hall receive any payment whatsoever under this chapter.
  2. Institutionalized Child. An invalid child, while being supported and cared for in a tribal, state or federal institution, shall not be a dependent or beneficiary or be counted as a beneficiary in fixing the amount of any monies to be received under this chapter.
  3. Double Death Benefits for Children Precluded. A child may receive payments as either the natural child of a deceased worker, or the stepchild of another deceased worker, but shall not receive double payments as both.
  4. Children Who Become 18 Years of Age. Any payments to or on account of a minor dependent or beneficiary of a deceased or temporarily or totally permanently disabled worker shall terminate when any such child reaches the age of 18 years unless such child is a dependent invalid child or is under 23 years of age and permanently enrolled at a full- time course in an accredited school. Payments to students who have attained age 18 shall be made directly to the student. Payments to or on account of any dependent invalid child over the age of 18 years shall continue in the amount previously paid on the account of such invalid child until he or she shall cease to be dependent. When permanently enrolled at a full-time course in an accredited school, payments to children who thereafter reach age 18 shall continue in the amount previously paid on the account of such student until he or she reaches age 23 or ceases to be so permanently enrolled, whichever comes first. Where the worker sustains an injury or dies when any of his or her offspring are over the age of 18 years and is either a dependent invalid child or is permanently enrolled at a full-time course in an accredited school and is under age 23, the payment to or on account of such beneficiary shall be made as herein provided.
  5. Minor Children Not Dependent. Minor children of the worker who are not dependents of the worker as defined in this chapter are not covered by the provisions of this chapter.

375.210 Workers with Preexisting Medical Conditions.6 If it is determined that a worker had, at the time of sustaining an injury and/or occupational disease, a pre-existing medical condition, it shall be considered as follows:

  1. Compensability. If a work-related injury and/or occupational disease combines at any time with a pre-existing condition to cause or prolong disability or the need for treatment, the combined condition is compensable only if the work-related condition is the major cause (51% or more) of the worker’s disability or the need for treatment. If the work- related injury and/or occupational disease is initially the major cause of disability or the need for treatment, but later the pre-existing condition becomes the major cause, a worker’s condition is no longer compensable.
  2. Permanent Partial Disability. In making a claim closing determination, it shall be ascertained, as nearly as possible, the extent of impairment which the injury/disease would have caused were it not for the pre-existing condition. Disability benefits shall be awarded only for the portion of disability related to the work injury or disease.

375.215 Specific Medical Conditions.7

  1. Hernias. (a) In all claims for compensation for hernia resulting from injury by an accident arising out of and in the course of employment, it must be proven that there was injury resulting in hernia and that the hernia appeared suddenly, it was accompanied by pain, it immediately followed an accident, it did not exist prior to the accident for which the compensation is claimed, and that the accident was
    reported within 24 hours.8 (b) All femoral or otherwise) so proved to be the result of an injury by accident arising out of and in the course of the employment shall be treated at the expense of the fund in a surgical manner. Compensation shall be paid for a maximum period of six weeks from the date of the operation. There will be no award of permanent disability for hernias. In case the injured worker refuses to undergo the operation for the cure of said hernia, no compensation shall be allowed during the time of refusal. Those workers who, because of religious belief, do not use surgery for the treatment of hernias shall be limited to a maximum period of six weeks from the time they are unable to work due to hernia in which to receive compensation. Compensation shall be allowed for temporary total disability for hernia disability prior to the operation.
  2. Heart Problems and Strokes. Heart attacks and strokes and all their medical connotations are presumed not to have arisen out of the employment notwithstanding their having occurred during the course of the employment absent substantial evidence of extraordinary physical stresses not normally associated with the performance of the worker’s job in close temporal proximity to the clinical manifestations of the event.
  3. Psychological Problems. Mental, emotional, nervous or stress-related conditions, including but not limited to the creation, acceleration or aggravation of alcoholism or drug abuse, shall be deemed not to be compensable.
  4. Injury or Death by Consumption or Application of Drugs or Chemicals. No benefits of any nature shall be payable to any worker whose injury and/or death is caused or contributed to by the worker’s use of any drug except those drugs prescribed by a physician and used in accordance with the physician’s instructions, including narcotics and hallucinogens, or any gas or fumes taken or inhaled voluntarily, or by voluntary poisoning.
  5. Alcohol Impaired.9 Benefits shall not be payable to any covered person injured or killed while alcohol impaired. As defined in WSTC 375.135 (11), regardless of whether or not the alcohol impaired condition was the proximate cause of the injury or death, i.e., it was necessary only to prove that the covered person was alcohol impaired at the time of the accident to deny benefits under this chapter.

375.220 Workers Injured During Lunch or Scheduled Break. No compensation shall be paid to any worker receiving an injury during the worker’s lunch period or scheduled break unless the injury occurred while the worker was undertaking activities within the scope of the worker’s employment.

375.225 Workers Awarded Compensation Through Other Compensatory Schemes. The payment or award of compensation under the workers’ compensation law of another political entity, territory, province or foreign nation to a worker or his or her beneficiaries otherwise entitled on account of such injury to compensation under this chapter shall not be a bar to a claim for compensation under this chapter. However, the claim under this chapter must be timely filed, and if compensation is paid or awarded under this chapter, the total amount of compensation paid or awarded to the worker or his or her beneficiary under the other workers’ compensation law shall be credited against the compensation due the worker or his or her beneficiary under this chapter.

375.230 Payment of Awards After Death.

  1. When any worker suffers a permanent, partially disabling injury and dies from some cause other than the accident which produced such injury, the amount of such permanent partial disability benefits shall be paid to the worker’s surviving spouse, or to the child or children of the worker if there is no surviving spouse.
  2. When any worker suffers an injury and dies therefrom before he or she has received payment of any installment covering time loss for any period of time prior to his or her death, the amount of such monthly payment shall be paid to the surviving spouse, or to the child or children of the worker if there is no surviving spouse.
  3. When a worker dies during the period of permanent total disability, whatever the cause of death, leaving a surviving spouse, or child, or children, the surviving spouse or child or children shall receive benefits as if death resulted from the injury as provided in WSTC 375.300(2) and WSTC 375.300(3). Upon remarriage or death of such surviving spouse, the payments to such child or children shall be made as provided in WSTC 375.300(2)(c) when the surviving spouse of a deceased worker remarries.
  4. Application for compensation under the foregoing provisions of this section shall be filed with the employer within one year of the date of death, or they shall be barred.

375.235 Entitlements for Incarcerated Workers. Any worker receiving benefits under this chapter who is subsequently confined in, or who subsequently becomes eligible therefor while confined in, any penal institution, under conviction and sentence, shall have all payments of temporary total or temporary partial disability compensation canceled during the period of confinement, but after discharge from the institution, payment of benefits henceforth due shall be paid.

III. COMPENSATION AND MEDICAL BENEFITS

375.300 Death. If death results from the accidental injury, payment shall be made as follows:

  1. The cost of burial, including transportation of the body, shall be paid, not to exceed an amount comparable to the amount allowed for burial expenses under the Oregon State Workers’ Compensation Code in any case.10
  2. If the worker is survived by a spouse with children of the deceased, monthly benefits shall be paid in an amount equal to 4.35 times 50 percent of the average weekly wage to the surviving spouse until remarriage. If the worker is survived by a spouse with no children of the deceased, monthly benefits shall be paid in an amount equal to 4.35 times 66-2/3 percent of the average weekly wage to the surviving spouse until remarriage. The payment shall cease at the end of the month in which the remarriage occurs. The surviving spouse also shall be paid $150 per month for each child of the deceased until such child becomes 18 years of age. However: (a) If there are more than two such children, the surviving spouse shall be paid $50 per month for each child in excess of two. (b) In no event shall the total monthly benefits provided for in this subsection exceed 4.35 times 133-1/3 percent of the average weekly wage. (c) Upon remarriage, a surviving spouse shall be paid forty-eight times the monthly benefit in a lump sum as final payment of the claim, but the monthly payments for each child shall continue as before. (d) If a child who has become 18 years of age is a full-time high school student, benefits shall be paid for such child until the child becomes nineteen years of age or graduates from high school, whichever is earlier. If, however, a child is enrolled, or enrolls within six months of the date the child leaves high school, as a full-time student in an accredited school or an approved on-the-job training or apprenticeship program, benefits shall be paid until the child becomes 23 years of age or graduates from such school or program, whichever is earlier.
  3. If a worker leaves a child under the age of 18 years by a divorced husband or wife, and the child is in the custody of the divorced husband or wife, $150 per month shall be paid for each such child until the child becomes 18 years of age. However (a) If there are more than two such children, the surviving spouse shall be paid $50 per month for each child in excess of two. (b) In no event shall the total benefits provided for this subsection exceed 4.35 times 66-2/3 percent of the average weekly wage. (c) If a child who has become 18 years of age is a full-time high school student, benefits shall be paid for such child until the child becomes 19 years of age or graduates from high school, whichever is earlier. If, however, a child is enrolled, or enrolls within six months of the date the child leaves high school, as a full-time student in an accredited school or an approved on-the-job training or apprenticeship program, benefits shall be paid until the child becomes 23 years of age or graduates from such a school or program, whichever is earlier.
  4. If the worker leaves neither wife nor husband, but a child under the age of 18 years other than one described in subsection (c) of this section, $150 per month shall be paid to each such child until the child becomes 18 years of age. However, if a child who has become 18 years of age is a full-time high school student, benefits shall be paid for such child until the child becomes nineteen years of age or graduates from high school, whichever is earlier. If, however, a child is enrolled, or enrolls within six months of the date the child leaves high school, as a full-time student in an accredited school or an approved on-the- job training or apprenticeship program, benefits shall be paid until the child becomes 23 years of age or graduates from such a school or program, whichever is earlier.
  5. If the worker leaves neither widow, widower nor child for whom compensation may be paid, but leaves a dependent, a monthly payment shall be made to each dependent equal to 50 percent of the average monthly support actually received by such dependent from the worker during the 12 months next preceding the occurrence of the accidental injury, but the total payments to all dependents in any case shall not exceed $150 per month. If a dependent is under the age of 18 years at the time of the accidental injury, the payment to the dependent shall cease when such dependent becomes 18 years of age. However, if the dependent who has become 18 years of age is a full-time high school student, benefits shall be paid to such dependent until the dependent becomes nineteen years of age. If, however, a child is enrolled, or enrolls within six months of the date the child leaves high school, as a full-time student in an accredited school or an approved on-the-job training or apprenticeship program, benefits shall be paid until the child becomes 23 years of age or graduates from such a school or program, whichever is earlier. The payment to any dependent shall cease under the same circumstances that would have terminated the dependency had the injury not happened.
  6. If the worker is under the age of 21 years at the time of death, and leaves neither widow, widower nor child, the parents of the worker shall be paid $75 per month from the death of the worker until the time at which the worker would have become 21 years of age. The parents, if dependents at the time of the accidental injury, are entitled thereafter to compensation as dependents under subsection 5 of this section.
  7. If a surviving spouse receiving monthly payments dies, leaving a child under the age of 18 years who is entitled to compensation on account of the death of the worker, a monthly payment of $150 shall be made to each such child until the child becomes 18 years of age. However, if a child who has become 18 years of age is a full-time high school student, benefits shall be paid to such child until the child becomes nineteen years of age. If, however, a child is enrolled, or enrolls within six months of the date the child leaves high school, as a full-time student in an accredited school or an approved on-the- job training or apprenticeship program, benefits shall be paid until the child becomes 23 years of age or graduates from such a school or program, whichever is earlier.
  8. If a child is an invalid at the time the child otherwise becomes ineligible for benefits under this section, the payment to the child shall continue while the child remains an invalid. If a person is entitled to payment because the person is an invalid, payment shall terminate when the person ceases to be an invalid. (a) If, at the time of the death of a worker, the child of the worker or dependent has become 17 years of age but is under 18 years of age, the child or dependent shall receive the payment provided in this section for a period of one year from the date of such death. However, if after such period the child is a full-time high school student, benefits shall be paid for such child until the child becomes nineteen years of age. If, however, a child is enrolled, or enrolls within six months of the date the child leaves high school, as a full-time student in an accredited school or an approved on-the-job training or apprenticeship program, benefits shall be paid until the child becomes 23 years of age or graduates from such a school or program, whichever is earlier.

375.305 Permanent Total Disability.

  1. As used in this section: (a) “Permanent total disability” means the loss of use or function of any scheduled or unscheduled portion of the body which permanently incapacitates the worker from regularly performing work at a gainful and suitable occupation. As used in this section, a suitable occupation is one which the worker has the ability and the training or experience to perform, or an occupation which the worker is able to perform after rehabilitation. (b) “Wages” means wages as determined under WSTC 375.320.
  2. (a) When permanent total disability results from the injury, the worker shall receive during the period of that disability compensation benefits equal to 66-2/3 percent of wages, not to exceed 75 percent of the average weekly wage nor less than the amount of 90 percent of wages a week or the amount of $50, whichever amount is lesser. (b) In addition, the worker shall receive $5 per week for each additional beneficiary not to exceed five. However: (i) If the beneficiary is a child under the age of 18 years at the time of the compensable injury, the benefits for such child shall cease when the child becomes 18 years of age. (ii) If the beneficiary is a child who has become 18 years of age and who is a full-time high school student, benefits shall be paid for such child until the child becomes 19 years of age or graduates from high school, whichever is earlier. (iii) If the beneficiary is a child who is enrolled, or enrolls within six months of the date the child leaves high school, as a full-time student in an accredited school or an approved on-the-job training or apprenticeship program, benefits shall be paid until the child becomes 23 years of age or graduates from such a school or program, whichever is earlier.
  3. The worker has the burden of proving permanent total disability status and must establish that the worker is willing to seek regular gainful employment and that the worker has made reasonable efforts to obtain such employment.
  4. When requested by the Claims Administrator, a worker who receives permanent total disability benefits shall file, on a form provided by the Claims Administrator, a sworn statement of the worker’s gross annual income for the preceding year along with such other information as the Claims Administrator considers necessary to determine whether the worker regularly performs work at a gainful and suitable occupation.
  5. The Claims Administrator shall reexamine periodically each permanent total disability claim for which the Claims Administrator has current payment responsibility to determine whether the worker is currently permanently incapacitated from regularly performing work at a gainful and suitable occupation. Reexamination shall be conducted every two years or at such other more frequent interval as the Workers’ Compensation Committee may prescribe. Reexamination shall include such medical examinations, reports and other records as the Claims Administrator considers necessary or the Workers’ Compensation Committee may require. The Claims Administrator shall forward to the Workers’ Compensation Committee the results of each reexamination.

375.310 Death During Permanent Total Disability.

  1. If the injured worker dies during the period of permanent total disability, whatever the cause of death, leaving a spouse or any dependents, payment shall be made in the same manner and in the same amounts as provided in Section (1).
  2. If any surviving spouse to whom the provisions of WSTC 375.310(l) above apply remarries, the payments on account of a child or children shall continue to be made to the child or children the same as before the remarriage.

375.315 Offsetting Permanent Total Disability Benefits Against Social Security Benefits

  1. With the authorization of the Workers’ Compensation Committee, the amount of any permanent total disability benefits payable to an injured worker shall be reduced by the amount of any disability benefits the worker receives from federal social security. (a) If the benefit amount to which the worker is entitled pursuant to this chapter exceeds the worker’s federal disability benefit limitation determined pursuant to 42 U.S.C. 424(a), the reduction in worker’s compensation benefits authorized by this subsection shall not be administered in such a manner as to lower the amount the worker would have received pursuant to this chapter had such reduction not been made. (b) If the benefit amount to which the worker is entitled pursuant to this chapter is less than the worker’s federal disability benefit limitation determined pursuant to 42 U.S.C. 424(a), the reduction in worker’s compensation benefits authorized by this subsection shall not be administered in such manner as to lower the amount of combined benefits the worker received below the federal benefit limitation.
  2. No reduction of permanent total disability benefits shall be made pursuant to this section unless authorized by the Workers’ Compensation Committee.
  3. No reduction of benefits shall be authorized pursuant to this section except upon actual receipt of federal social security disability benefits by the injured worker.
  4. The effective date of the operation of any offset provided in this section shall be the date established in the authorization provided in subsection (a) of this section.

375.320 Temporary Total Disability.11

  1. When the total disability is only temporary, the worker shall receive, during the period of that total disability, compensation equal to 66-2/3 percent of wages, but not more than 75 percent of the average weekly wage nor less than the amount of 90 percent of wages a week, or the amount of $50 a week, whichever amount is lesser. Notwithstanding the limitation imposed by this subsection, an injured worker who is not otherwise eligible to receive an increase in benefits for the fiscal year in which compensation is paid shall have the benefits increased each fiscal year by the percentage which the applicable average weekly wage has increased since the previous fiscal year.
  2. For the purpose of this section, the weekly wage of workers shall be ascertained by multiplying the daily wage the worker was receiving at the time of injury: (a) By 3, if the worker was regularly employed not more than three days a week. (b) By 4, if the worker was regularly employed four days a week. (c) By 5, if the worker was regularly employed five days a week. (d) By 6, if the worker was regularly employed six days a week. (e) By 7, if the worker was regularly employed seven days a week.

As used in this subsection, “regularly employed” means actual employment or availability for such employment. For workers not regularly employed and for workers with no remuneration or whose remuneration is not based solely upon daily or weekly wages, the Workers’ Compensation Committee, by rule, may prescribe methods for establishing the worker’s weekly wage.

375.325 “Average Weekly Wage” Defined. As used in this chapter, “average weekly wage” means the average weekly wage of workers in covered employment in the state of Oregon, as determined by the Employment Division of the Department of Human Resources for the last quarter of the calendar year preceding the fiscal year in which compensation is paid.

375.330 Temporary Partial Disability. When the disability is or becomes partial only and is temporary in character, the worker shall receive for a period not exceeding two years that proportion of the payments provided for temporary total disability which the loss of earning power at any kind of work bears to the earning power existing at the time of the occurrence of the injury.

375.335 Permanent Partial Disability.

  1. (1) As used in this section: (a) “Loss” includes permanent and complete or partial loss of use. (b) “Permanent partial disability” means the loss of either one arm, one hand, one leg, one foot, loss of hearing in one or both ears, loss of one eye, one or more fingers, or any other injury known in surgery to be permanent partial disability.
  2. (2) When permanent partial disability results from an injury, the criteria for the rating of disability shall be the permanent loss of use or function of the injured member due to the industrial injury. The worker shall receive an amount comparable to 75% of the dollar amount for each degree of permanent partial disability as provided for in the Oregon State Workers’ Compensation Code for each degree stated against such disability in subsections (2) and (4) of this section as follows:12 (a) For the loss of one arm at or above the elbow joint, 192 degrees, or a proportion thereof for losses less than a complete loss. (b) For the loss of one forearm at or above the wrist joint, or the loss of one hand, 150 degrees, or a proportion thereof for losses less than a complete loss. (c) For the loss of one leg, at or above the knee joint, 150 degrees, or a proportion thereof for losses less than a complete loss. (d) For the loss of one foot, 135 degrees, or a proportion thereof for losses less than a complete loss. (e) For the loss of a great toe, 18 degrees, or a proportion thereof for losses less than a complete loss; of any other toe, four degrees, or a proportion thereof for losses less than a complete loss. (f) For partial or complete loss of hearing in one ear, that percentage of 60 degrees which the loss bears to normal monaural hearing. (g) For partial or complete loss of hearing in both ears, that proportion of 128 degrees which the combined binaural hearing loss bears to normal combined binaural hearing. For the purpose of this paragraph, combined binaural hearing loss shall be calculated by taking seven times the hearing loss in the less-damaged ear plus the hearing loss in the more-damaged ear and dividing that amount by eight. In the case of individuals with compensable hearing loss involving both ears, either the method of calculation for monaural hearing loss or that for combined binaural hearing loss shall be used, depending upon which allows the greater award of disability. (h) For partial or complete loss of vision of one eye, that proportion of 100 degrees which the loss of monocular vision bears to normal monocular vision. For the purposes of this paragraph, the term “normal monocular vision” shall be considered as Snellen 20/20 for distance and Snellen 14/14 for near vision with full sensory field. (i) For partial loss of vision in both eyes, that proportion of 300 degrees which the combined binocular visual loss bears to normal combined binocular vision. In all cases of partial loss of sight, the percentage of said loss shall be measured with maximum correction. For the purposes of this paragraph, combined binocular visual loss shall be calculated by taking three times the visual loss in the less-damaged eye plus the visual loss in the more-damaged eye and dividing that amount by four. In the case of individuals with compensable visual loss involving both eyes, either the method of calculation for monocular visual loss or that for combined binocular visual loss shall be used, depending upon which allows the greater award of disability. (j) For the loss of a thumb, 48 degrees, or a proportion thereof for losses less than a complete loss. (k) For the loss of a first finger, 24 degrees, or a proportion thereof for losses less than a complete loss; of a second finger, 22 degrees, or a proportion thereof for losses less than a complete loss; of a third finger, 10 degrees, or a proportion thereof for losses less than a complete loss; of a fourth finger, 6 degrees, or a proportion thereof for losses less than a complete loss.
  3. The loss of one phalange of a thumb, including the adjacent epiphyseal region of the proximal phalange, is considered equal to the loss of one-half of a thumb. The loss of one phalange of a finger, including the adjacent epiphyseal region of the middle phalange, is considered equal to the loss of one-half of a finger. The loss of two phalanges of a finger, including the adjacent epiphyseal region of the proximal phalange of a finger, is considered equal to the loss of 75 percent of a finger. The loss of more than one phalange of a thumb, excluding the epiphyseal region of the proximal phalange, is considered equal to the loss of an entire thumb. The loss of more than two phalanges of a finger, excluding the epiphyseal region of the proximal phalange of a finger, is considered equal to the loss of an entire finger. A proportionate loss of use may be allowed for an uninjured finger or thumb where there has been a loss of effective opposition.
  4. A proportionate loss of the hand may be allowed where disability extends to more than one digit, in lieu of ratings on the individual digits.
  5. In all cases of injury resulting in permanent partial disability, other than those described in subsections (2) to (4) of this section, the sole basis for rating of disability shall be the permanent physical impairment of the worker as determined by reference to the American Medical Association (AMA) Guidelines to Physical Impairment. The number of degrees of disability shall be a maximum of 320 degrees determined by the extent of the disability compared to the worker before such injury and without such disability. For the purpose of this subsection, the value of each degree of disability is $150.

375.340 Permanent Partial Disability, Method of Payment; Effect of Prior Receipt of Temporary Disability Payments.

  1. Compensation for permanent partial disability may be paid monthly at 4.35 times the rate per week as provided for compensation for temporary total disability at the time the determination is made. In no case shall such payments be less than $108.75 per month.
  2. If a worker who is entitled to compensation for a permanent disability has received compensation for a temporary disability by reason of the same injury, compensation for such permanent disability shall be in addition to the payments which the worker has received on account of such temporary disability.

375.345 Continuance of Permanent Partial Disability Payments to Survivors; Effect of Death Prior to Final Disposition; Burial Allowance.

  1. In case of the death of a worker entitled to compensation, whether eligibility therefor or the amount thereof have been determined, payments shall be made for the period during which the worker, if surviving, would have been entitled thereto.
  2. If the worker’s death occurs prior to a determination having been made under Part IV of this chapter, the employer shall so notify the Claims Administrator and request the claim be examined and compensation for permanent partial disability, if any, be determined.
  3. If the worker has filed a protest or an appeal pursuant to Part IV of this chapter and death occurs prior to the final disposition of the request, the persons described in subsection (5) of this section shall be entitled to pursue the matter to final determination of all issues presented by the request for hearing.
  4. If the worker dies before filing a request for hearing, the persons described in subsection (5) of this section shall be entitled to file a request for hearing and to pursue the matter to final determination as to all issues presented by the request for hearing.
  5. The payments provided in subsections (1), (2), (3) and (4) of this section shall be made to the persons who would have been entitled to receive death benefits if the injury causing the disability had been fatal. In the absence of persons so entitled, a burial allowance may be paid not to exceed the lesser of either the unpaid award or the amount payable by WSTC 375.300(l).
  6. This section does not entitle any person to double payments on account of the death of a worker and a continuation of payments for permanent partial disability, or to a greater sum in the aggregate than if the injury had been fatal.

375.350 Compensation For Additional Accident. Should a further accident occur to a worker who is receiving compensation for a temporary disability, or who has been paid or awarded compensation for a permanent disability, the award of compensation for such further accident shall be made with regard to the combined effect of the injuries of the worker and past receipt of money for such disabilities.

375.355 Cohabitants and Children Entitled To Compensation. In case an unmarried man and an unmarried woman have cohabited as husband and wife for over one year prior to the date of an accidental injury received by one or the other as a covered worker, and children are living as a result of that relation, the surviving cohabitant and the children are entitled to compensation under this chapter the same as if the man and woman had been legally married.

375.360 Payments Direction To Beneficiary or Custodian.

  1. If compensation is payable for the benefit of a beneficiary other than the injured worker, the Claims Administrator may segregate any additional compensation payable on account of that beneficiary and make payment directly to the beneficiary, if sui juris; otherwise, to the guardian or person having custody of the beneficiary.
  2. Compensation paid to an injured worker who is a minor prior to receipt of notice by the employer from the parent or guardian of the minor that the parent or guardian claims the compensation shall discharge the obligation to pay compensation to the extent of such payment.

375.365 Accelerating Award Payments with Approval of the Workers’ Compensation Committee.

  1. Where a worker has been awarded compensation for permanent partial disability, and the award has become final by operation of law or waiver of the right to appeal its adequacy, the Workers’ Compensation Committee may, in its discretion, upon the worker’s application, order all or any part of the remaining unpaid award to be paid to the worker in a lump sum. Any remaining balance shall be paid pursuant to WSTC 375.340.
  2. In all cases where the award for permanent partial disability does not exceed 20 degrees, the Claims Administrator shall pay all of the award to the worker in a lump SUM.

375.370 Compensation Not Assignable, Nor to Pass By Operation of Law and Is Exempt From Process. No monies payable under this chapter on account of injuries or death are subject to assignment prior to their receipt by the beneficiary entitled thereto, nor shall they pass by operation of law. All such monies and the right to receive then are exempt from seizure on execution, attachment, or garnishment, or by the process of any court.

375.375 Medical Services and Supplies.

  1. Upon the occurrence of any injury to a worker entitled to compensation under the provisions of this chapter, the worker shall receive proper and necessary medical and surgical services at the hands of a physician of the worker’s own choice, if conveniently located, and proper and necessary hospital care and services during the period of disability from such injury, as limited herein: (a) In the case of permanent partial and temporary total disability, not to extend beyond the date of claim closure. However, after claim closure, medical and surgical treatment may be continued if, and so long as, such continuation is deemed necessary to reach maximum medical improvement.13 (b) In the case of a permanent total disability, after claim closure, continued medical and surgical treatment for conditions previously accepted by the employer when such medical and surgical treatment is deemed necessary may be authorized. (c) Although the worker shall have the right to choose the initial attending physician to provide medical care under this chapter, if due to the nature of the injury the worker is unable to select his or her physician and the nature of the injury requires immediate medical treatment and care, the employer shall select a physician for the worker. Change of physicians at the request of workers shall be approved or disapproved by the Claims Administrator. A physician-to-physician referral does not require the approval or disapproval of the Claims Administrator. (d) The physician chosen by the worker must be a medical doctor licensed to practice medicine in the state of Oregon. Payment for treatment of the worker by chiropractors, naturopaths, physical therapists, nurse practitioners, spiritual or religious healers, traditional Native American healers, acupuncturists and medical doctors licensed to practice medicine in a state other than Oregon must be
    approved by the Claims Administrator.14
  2. When the injury to any worker is so serious as to require transportation from the place of injury to a place of treatment, the employer shall furnish transportation to the nearest place of proper treatment.
  3. (a) Every worker whose injury results in the loss of one or more limbs or eyes shall be provided with proper artificial substitutes, and every worker who suffers an injury to an eye producing an error of refraction shall be once provided proper and properly equipped lenses to correct such error of refraction, and such worker’s disability rating shall be based upon the loss of sight before correction. Every worker whose accident results in damage to or destruction of an artificial limb, eye or tooth shall have same repaired or replaced. (b) Every worker whose hearing aid or eyeglasses or lenses are damaged, destroyed or lost as a result of an industrial accident shall have the same restored or replaced. Liability shall be only for the cost of restoring damaged hearing aids or eyeglasses to their condition at the time of the accident. (c) All mechanical appliances necessary in the treatment of an injured worker, such as braces, belts, casts and crutches, shall be provided, and all mechanical appliances required as permanent equipment after treatment has been completed shall continue to be provided or replaced without regard to the date of injury or date treatment was completed. (d) Whenever, in the sole discretion of the Workers’ Compensation Committee, it is reasonable and necessary to provide residence modifications necessary to meet the needs and requirements of the worker who has sustained catastrophic injury, the employer may be ordered to pay an amount not to exceed 52 times the average weekly wage, as determined under WSTC 375.325, toward the cost of such modifications or construction. Such payment shall only be made for the construction or modification of a residence in which the injured worker resides. only one residence of any worker may be modified or constructed under this subsection, although the Workers’ Compensation Committee may order more than one payment for any one home, up to a maximum amount permitted herein. (e) Whenever, in the discretion of the Workers’ Compensation Committee, it is reasonable and necessary to modify a motor vehicle owned by a worker who has become an amputee or becomes paralyzed because of an injury, the Workers’ Compensation Committee may order up to 26 times the average weekly wage, as determined under WSTC 375.325, to be paid by the worker toward the costs thereof. (f) The liability of the employer for medical treatment as herein provided shall not be affected by the fact that the worker was injured through the fault or negligence of a third party not in the same employ, or that suit has been brought against such third party. The employer shall, however, have a cause of action against the third party to recover any amounts paid by the employer pursuant to the provisions of this chapter.

IV. CLAIMS PROCEDURES

375.400 Notice of Accident; Notification of Worker’s Rights. Whenever any accident occurs to any worker and where the worker has received treatment from a physician, has been hospitalized, disabled from work, or has died as the apparent result of such accident and injury, it shall be the duty of the worker or someone on the worker’s behalf to immediately report such accident or death to the employer or supervisor in charge of the worker, and that person shall at once report such accident and the injuries resulting therefrom to the Claims Administrator. Upon receipt of such notice of accident, the Claims Administrator shall immediately forward to the worker or the worker’s beneficiaries or dependents notification, in nontechnical language, of their rights under this chapter.

375.405 Claims of Injured Workers to be Acted Upon Promptly. Claims of injured workers shall be promptly acted upon by the Claims Administrator. Where temporary disability compensation is payable, the first payment thereof shall be mailed within fourteen days after receipt of the claim and shall continue at regular bi-weekly intervals. The payment of these or any other benefits under this plan prior to the entry of an order by the Claims Administrator shall not be considered a binding determination of the obligations of the employer under this plan. The acceptance of compensation by the worker or the worker’s beneficiaries prior to such order shall likewise not be considered a binding determination of their rights under this chapter.

375.410 Worker’s Application for Compensation; Physician to Aid With; Procedures- for Medical Treatment.

  1. Where a worker is entitled to compensation under this chapter, such worker shall file with the Claims Administrator an application for benefits and shall identify his or her treating physician. It shall be the duty of the treating physician to lend all necessary assistance in making this application for compensation and such proof of other matters required by the rules of the Workers’ Compensation Committee without charge to the worker.
  2. A worker shall not be entitled to recover any amount expended by the worker for medical or other treatment or services unless he or she shall have requested the employer to furnish such treatment or services, or unless the nature of the injury required treatment and services and the employer, having knowledge of such injury, neglected to provide or authorize same; nor shall any claim for medical or surgical treatment be valid and enforceable, as against any employer, unless within ten days following the first treatment the worker furnishes to the Claims Administrator a report of the injury on a form prescribed by the Claims Administrator. No medical service covered in this plan shall be paid for at rates exceeding those promulgated by the Workers’ Compensation Committee. The Workers’ Compensation Committee may, however, excuse the failure to furnish this report within ten days when they find it to be in the interest of justice to do so.

375.415 Occupational Diseases: Compensation and Benefits. The compensation and benefits provided for occupational diseases shall be paid in the same manner as compensation and benefits for other injuries under this chapter.

375.420 Statutes of Limitation.

  1. Except as otherwise provided herein, the right to compensation for disability or death under this chapter shall be barred unless a claim therefore is filed within one year after the injury or death. The time for filing a claim shall not begin to run until the worker or beneficiary is aware, or by the exercise of reasonable diligence should have been aware, of the relationship between the injury or death and the employment.
  2. If compensation has been paid under the provisions of this chapter, a claim may be reopened within one year after the date of the first claim closure based on an objective material worsening of the underlying condition. However, a claim may be reopened during the period from one year to five years after the first claim closure if a pathological worsening of the underlying condition is established by clear and convincing medical
    evidence.15
  3. If a person who is entitled to compensation under this chapter is mentally incompetent or a minor, the provisions herein shall not be applicable so long as such person has no guardian or other authorized representative, but shall be applicable in the case of a person who is mentally incompetent or a minor from the date of appointment of such guardian or other representative, or in the case of a minor, if no guardian is appointed before the minor becomes of age, from the date such minor becomes of age.
  4. Claims for occupational disease or infection to be valid and compensable must be filed within one year following the date the worker or beneficiary had notice from a physician of the existence of the worker’s occupational disease without reference to its date of origin, or until the worker or beneficiary is aware, or by the exercise of reasonable diligence should have been aware, of the relationship between the disease or death and the employment, but in no event longer than three years from the date the worker terminates his or her employment with the Tribe or one of its enterprises.

375.425 Burden of Proof. The burden of proof to establish entitlement benefits under this chapter, except as set forth in WSTC 375.430, shall rest upon the covered person, or his or her dependents in the case of death.

375.430 Presumptions. When a covered person is found dead by accident under circumstances indicating that the accident took place within time and place limits of employment and no conclusive evidence is present to exclude coverage as provided herein, it shall be the presumption that death arose out of employment, and benefits shall be paid.

375.435 Proof of Dependency. A dependent shall at any time upon request furnish the Claims Administrator with proof satisfactory to the Claims Administrator of the nature, amount and extent of the contribution by the worker for such dependent’s support.

375.440 Compromise and Release. Nothing in this chapter shall impair the rights of the parties to compromise, subject to the provisions herein, any liability which is claimed to exist under this chapter on account of injury, disease or death. After reaching a compromise, a copy of the release or compromise agreement signed by both the claimant and the Claims Administrator shall be presented to the Workers’ Compensation Committee for approval. if approved, the Claims Administrator shall enter an award based on the release or compromise agreement.

375.445 Claim Closure. A worker’s claim shall be closed when the Claims Administrator determines that the injured worker has reached the point where no further material
improvement would reasonably be expected from medical treatment, or the passage of time.

375.450 Sending Notice, Orders, Warrants to Injured Workers. For all claims under this chapter, the claimant’s written notices, orders or warrants shall not be forwarded to, or sent in care of, any representative of the claimant, but shall be forwarded to the claimant unless proof has been made to the Workers’ Compensation Committee that the worker’s condition prevents the worker from being able to personally conduct his or her affairs.

375.455 Recovery of Payments Made Due to Error, Mistake, Erroneous Adjudication, Fraud, etc.

  1. Whenever any payment of benefits under this chapter is made because of clerical error, mistaken identity, innocent misrepresentation by or on behalf of the recipient thereof mistakenly acted upon, or any other circumstances of a similar nature not induced by fraud, the recipient thereof shall repay it. Recoupment may be made from any future payments due the recipient on any claim against the Tribal Fund. The Claims Administrator must make a claim for such repayment or recoupment within one year of the making of any such payment or it will be deemed that any claim therefore has been waived. The Claims Administrator may exercise his or her discretion to waive, in whole or in part, the amount of any such timely claim where the recovery would be against equity and good conscience.
  2. Whenever any payment of benefits under this chapter has been made pursuant to a determination by the Claims Administrator and timely protest or appeal therefrom has been made, where the final decision is that any such payment was made pursuant to an erroneous adjudication, the recipient thereof shall repay it, and recoupment may be made from any future payments due the recipient on any claim being paid from the Tribal Fund. The Claims Administrator may exercise his or her discretion to waive, in whole or in part, the amount of any such payments where the recovery would be against equity and good conscience.
  3. Whenever any payment of benefits under this chapter has been induced by fraud, the recipient thereof shall repay any such payment together with a penalty of 50 percent of the total of any such payments, and the amount of such total sum may be recouped from any future payments due the recipient on any claim against the Tribal Fund. Such repayment or recoupment must be demanded within one year of the discovery of fraud.

375.460 Medical Examination: Refusal to Submit; Travel Expenses.

  1. When medical questions arise, a worker entitled to or claiming compensation under this chapter shall, if requested by the Claims Administrator, submit to medical examination at a time, and from time to time, at a place reasonably convenient for the worker, by a physician selected by the Claims Administrator.
  2. If the worker refuses to submit to a medical examination or obstructs the same, or if any injured worker shall persist in unsanitary or injurious practices which tend to imperil or retard such worker’s recovery, or shall refuse to submit to such medical or surgical treatment as is reasonably essential to the worker’s recovery, the Claims Administrator, with notice to the worker, may reduce or suspend the worker’s compensation so long as such refusal or practice continues.
  3. If the worker necessarily incurs traveling expenses in attending an examination pursuant to the request of the Claims Administrator, such traveling expenses shall be repaid to the worker by the Tribal Fund upon proper voucher and audit.

375.465 Medical Evaluations.

  1. Medical evaluations for purposes of determining permanent disability under WSTC 375.305 and WSTC 375.335, claim reopening under WSTC 375.420(2), and claim closure under WSTC 375.445, shall not be made by the worker’s treating physician. Such evaluations shall be made by an evaluating physician selected by the Secretary/Treasurer or his or her designee.16
  2. When medical questions arise, a worker entitled to or claiming compensation under this chapter shall, if requested by the Claims Administrator, submit to medical examination at a time, and from time to time, at a place reasonably convenient for the worker, by a physician selected by the Claims Administrator.
  3. If the worker refuses to submit to a medical examination or obstructs the same, or if any injured worker shall persist in unsanitary or injurious practices which tend to imperil or retard such worker’s recovery, or shall refuse to submit to such medical or surgical treatment as is reasonably essential to the worker’s recovery, the Claims Administrator, with notice to the worker, may reduce or suspend the worker’s compensation so long as such refusal or practice continues.

375.470 Testimony of Physicians Not Privileged.

Information obtained by the attending physician or surgeon while in attendance of the injured worker shall not be a privileged communication if such information is required by the Claims Administrator for a proper understanding of the case and a determination of the rights involved.

The Claims Administrator shall have the right to request a full and complete report from the physician or surgeon at times and in the form and detail deemed necessary, and to present specific questions required to evaluate the claim.

375.475 Claim Files and Records Confidential. Information contained in the claims files and records of injured workers under the provisions of this plan shall be deemed confidential and shall not be open to public inspection. Representatives of the claimant, be it an individual or an organization, may review a claim file or receive specific information therefrom upon the presentation of the signed authorization of the claimant. The employer or its duly authorized representatives may review any files of their own injured workers in connection with any pending claims. Physicians treating or examining workers claiming benefits under this plan, or physicians giving medical advice to the Claims Administrator regarding any claim may, at the discretion of the Claims Administrator, inspect the claims files and records of the injured worker; and other persons may make such inspection, at the Claim Administrator’s discretion, when such persons are rendering assistance to the Claims Administrator at any stage of the proceedings on any matter pertaining to the plan’s administration.

375.480 Actions Against Third Persons: Election by the Injured Person, or Beneficiary, Authorized; Lien by Employer.

  1. If the injury to a worker is due to the negligence or wrong of a third party who is not a tribal employee, the injured worker, or beneficiary, may also elect to seek damages from, the third party. The injured worker, or beneficiary, shall be entitled to the full compensation and benefits provided by this plan regardless of any such third-party action.
  2. An election not to proceed against the third party operates as an assignment of the cause of action to the Workers’ Compensation Committee, which may prosecute or compromise the action in its discretion in the name of the injured worker, beneficiary or legal representative. if such an election is made, the injured worker, or beneficiary, shall be entitled to the remaining balance of any award or settlement recovered by the Workers’ Compensation Committee after deduction of the expenses incurred in making the recovery, including reasonable costs of legal services and the compensation and benefits already paid and those anticipated to be paid in the future on behalf of the injured worker, or beneficiary, by the Workers’ Compensation Committee.
  3. In an action by the injured worker, or beneficiary, against the third party, any award or settlement shall be distributed as follows: (a) The costs and reasonable attorneys’ fees shall be paid. (b) The injured worker, or beneficiary, shall be paid 25 percent of the balance of the award; provided, that in the event of a compromise and settlement by the parties, the injured worker, or beneficiary, may agree to a sum less than 25 percent. (c) The balance of the award shall be deposited with the appropriate Group A or Group B fund, but only to the extent necessary to reimburse the fund for compensation or benefits already paid and those anticipated to be paid in the future. (d) Any remaining balance shall be paid to the injured worker, or beneficiary. (e) The award or settlement shall be subject to a lien in favor of the appropriate Group A or Group B fund for its share under this section.
  4. The Workers’ Compensation Committee may require the injured worker, or beneficiary, to exercise the right of election herein by serving a written demand sent by mail or by making personal service on the worker or beneficiary. (a) Unless an election is made within thirty days of the receipt of the demand, the injured worker, or beneficiary, is deemed to have assigned the action to the Workers’ Compensation Committee. (b) If the injured worker, or beneficiary, elects to seek damages from the third party, notice of the election must be given to the Workers’ Compensation Committee, and the injured worker, or beneficiary, shall be allowed ninety days from this election to institute the action, or that right to proceed is deemed assigned to the Workers’ Compensation Committee. The notice shall be by mail or personal service. When an action is filed by the injured worker, or beneficiary, a copy of the complaint shall be sent to the Workers’ Compensation Committee. A return showing service of the notice on the Workers’ Compensation Committee may be filed with the court to give notice to the defendant of the lien imposed as authorized herein.

V. PROTESTS AND APPEALS

375.500 Protests.

  1. What Can Be Protested. Any order, decision or award made by the Claims Administrator can be protested. Whenever such an order, decision or award is made, the worker, beneficiary, the employer, and any other person affected by the decision shall be sent a copy of the decision by mail.
  2. Protest of Decisions Initially Made by the Claim Administrator: Time Limits; Procedure. (a) Any worker, beneficiary, the employer or other person aggrieved by an order, decision or award as initially made by the Claims Administrator must file a notice of protest with the Workers’ Compensation Committee within forty-five days from the receipt of the Claims Administrator’s decision. Such notice of protest need be in no particular form but must be in writing. Any additional evidence, proofs or claim shall be submitted along with the notice of protest by the protestor. A notice of protest is barred if it is not timely filed. (b) The protest shall be considered and a decision rendered by the Workers’ Compensation Committee within 45 of the receipt of the notice of protest and additional evidence. The Workers’ Compensation Committee shall hold no hearing, but shall review the matter on the basis of the files and the records, and then shall consider any supplementary materials submitted by the protestor. A written report of the Workers’ Compensation Committee decision shall be mailed to the protestor as soon as it is rendered. (c) The Workers’ Compensation Committee has the power to approve, deny, or to modify any order, decision or award of the Claims Administrator upon protest.

375.505 Appeals.

  1. Workers’ Compensation Appeals Judge. Appeals from the final decision of the Workers’ Compensation Committee concerning protests shall be heard by the Workers’ Compensation Appeals Judge. The Tribal Council shall appoint the Workers’ Compensation Appeals Judge and shall contract for his or her services. Payment for the services of the Workers’ Compensation Appeals Judge shall be from the Tribal Fund. The Workers’ Compensation Committee shall nominate the Workers’ Compensation Appeals Judge and shall negotiate the terms of the contract. The Workers’ Compensation Appeals Judge shall be a person with experience and training in handling workers’ compensation claims under the workers’ compensation law of Oregon or any other jurisdiction.
  2. Procedures. (a) Any worker, beneficiary, the employer, or other person aggrieved by the protest decision of the Workers’ Compensation Committee shall have a right to appeal that determination to the Workers’ Compensation Appeals Judge. A notice of appeal must be filed within sixty days from the receipt of notification of the Workers’ Compensation Committee’s decision. Such appeal shall be perfected by filing with the Tribal Insurance Department a notice of appeal and by serving a copy thereof by mail, or personally, on the opposing party (i.e., employer, worker, beneficiary, or other person whose position was upheld by the decision of the Workers’ Compensation Committee). Filing of a notice of appeal with the Tribal Insurance Department shall be done by certified mail, return receipt requested, or personally, with the appellant receiving a file-stamped copy of the notice of appeal. The opposing party, within forty-five days of receipt of such notice of appeal, shall serve and file their notice of appearance, and such appeal shall thereupon be deemed at issue.17 (b) The notice of appeal to the Workers’ Compensation Appeals Judge shall set forth in full detail the grounds upon which the person appealing considers the decision of the Workers’ Compensation Committee unjust or unlawful and shall include every issue to be considered by the Workers’ Compensation Appeals Judge. It must contain a detailed statement of the facts upon which the worker, beneficiary, the employer or other person relies in support thereof. The worker, beneficiary, the employer or other person shall be deemed to have waived all objections or irregularities concerning the matter on which such appeal is taken other than those specifically set forth in the notice of appeal or appearing in the accompanying records of the Workers’ Compensation Committee. The Workers’ Compensation Committee shall promptly transmit the Committee’s original records, or legible copies thereof produced by mechanical, photographic or electronic means, in such matter to the Workers’ Compensation Appeals Judge and certify their accuracy.
  3. Hearings (a) The worker and the employer shall have the right to be represented by an attorney or other spokesperson in all matters presented to the Workers’ Compensation Appeals Judge, to cross examine all witnesses and review all evidence of any nature, as may relate to the matter under consideration. (b) The Workers’ Compensation Appeals Judge shall have the right to cross-examine the worker claimant and all witnesses and to perform such discovery activity as may be deemed necessary to fully explore all aspects surrounding the occurrence and injury. (c) The Workers’ Compensation Appeals Judge shall not be bound by the rules of evidence or by technical or formal rules of procedure and may conduct investigations in such a manner as in his or her judgment is best calculated to ascertain the substantial rights of the parties and to carry out the spirit of this chapter. (d) A full and complete record shall be kept of all proceedings before the Workers’ Compensation Appeals Judge by means of a recording device or by a stenographer. (e) The Workers’ Compensation Appeals Judge shall hold a hearing within 90 days from the date of notice to the Tribal Insurance Department of the worker’s request for a hearing before the Workers’ Compensation Appeals Judge;18 provided: (i) That the issue is to determine whether the claim is compensable or noncompensable; (ii) That the worker’s condition is stationary for rating and award purposes, i.e., the worker is not under treatment, and the necessary factual information has been obtained, making a decision of the Judge possible; and (iii) That the issue relates to the permanent and stationary condition of the claimant. (f) The Workers’ Compensation Appeals Judge shall have the right to continue the hearing, at the request of any party or on his own motion, after it is first convened for the purpose of further developing evidence. (g) In all proceedings before the Workers’ Compensation Appeals Judge, the findings and decisions of the Workers’ Compensation Committee shall be prima facia correct, and the burden of proof shall be upon the appellant. If the Workers’ Compensation Appeals Judge determines that the Workers’ Compensation Committee has acted within its power and has correctly construed the law and found the facts, the decision of the Workers’ Compensation Committee shall be confirmed; otherwise, it shall be reversed or modified. In the case of a modification or reversal, the Workers’ Compensation Appeals Judge shall refer the same to the Workers’ Compensation Committee with an order directing the Committee to proceed in accordance with the Judge’s findings. An award made by the Workers’ Compensation Appeals Judge shall be in accordance with the Schedule of Compensation set forth in this chapter.
  4. Decision Final. The decision of the Workers’ Compensation Appeals Judge shall be final and there shall be no further appeal.

375.510 Attorney’s Fees: When Paid by the Fund; Limitations19

  1. If, upon protest or appeal, additional relief is granted to the worker or beneficiary; or in cases where a party other than the worker or beneficiary is the protesting or appealing party and the worker’s or beneficiary’s right to relief is sustained, a reasonable fee for the services of the worker’s or beneficiary’s attorney shall be fixed by the Workers’ Compensation Committee or the Workers’ Compensation Appeals Judge as limited herein.
  2. In connection with either a protest or an appeal of permanent disability, any attorney engaged in the representation of a worker or beneficiary shall not charge for services any fee in excess of a reasonable fee, which in the case of a protest or an appeal lodged by the worker or beneficiary shall not be more than 25 percent of the increase in the award secured by the attorney’s services. However, in cases involving permanent disability, the attorney’s fees paid from the increase in the award secured by the attorney’s services shall not exceed $5,000.
  3. In all cases except those involving permanent disability, when a worker or a beneficiary prevails in an appeal by the employer or when the worker or beneficiary is the appellant and additional relief is granted, then the appropriate Group A or Group B fund shall pay the worker or beneficiary for reasonable attorney’s fees as set forth by the Workers’ Compensation Committee or the Workers’ Compensation Appeals Judge shall not exceed $2,500. Provided, however, upon a showing of unusual and extraordinary circumstances, the Committee or Worker’s Compensation Appeals Judge shall have the discretion to award a greater fee up to, but not exceeding, $5,000.

VI. FUNDING

375.600 Classification of Tribal Entities for Funding Purposes. The Secretary- Treasurer shall classify the tribal administration, the tribal enterprises, and all other tribal entities into two categories for purposes of funding under this chapter. Those tribal enterprises and other tribal entities which the Secretary-Treasurer determines have sufficient cash flow to pay all claims and other obligations of such entities provided for under this chapter on an ongoing basis shall be classified as “Group A” tribal entities. All tribal entities which are not classified in Group A shall be required to contribute to the “tribal fund” provided herein, and shall be classified as “Group B” tribal entities.

375.605 Funding for Group A Tribal Entities. Group A tribal entities shall pay all benefits and compensation due covered workers under this chapter as claims occur and benefits and medical expenses are due and payable. Additionally, Group A entities shall pay a pro rata share of the administrative expenses incurred by the Workers’ Compensation Committee in administering this chapter. The Workers’ Compensation Committee shall determine each Group A entity’s pro rata share of such expenses and shall bill each entity for its share of the expenses.

375.610 Funding for Group B Entities. All Group B entities shall be required to contribute and participate in the tribal fund provided herein.

  1. Purpose and Administration of Tribal Fund. (a) There shall be established a “Tribal Fund” maintained for the purposes of payment of compensation claims and associated expenses incurred by Group B tribal entities. (b) The tribal fund shall be maintained on the records of the Tribal Accounting Department as the Workers’ Compensation Self-Insurance Fund, and shall be managed by the Workers’ Compensation Committee. (c) The Tribal Fund shall have three components which shall be maintained as separate accounts: (i) The Compensation and Medical Benefits Account, which shall be maintained for paying to the covered workers of Group B entities the benefits provided under this chapter. The account shall be funded annually by Group B tribal entities through their appropriations and budgeting processes. (ii) The Plan Administration Account, which shall be funded annually by the Group B tribal entities through their appropriations and budgeting processes. The Plan Administration Account shall be drawn on to pay for the Claims Administrator’s contract, stop loss and/or aggregate insurance coverage, safety programs, the fees and expenses of the Workers’ Compensation Appeals Judge, and other expenses necessarily incurred in the administration of this chapter. (iii) The Reserve Account balance at the beginning of each fiscal year shall be $250,000. The Reserve Account will be available to pay the claims of covered workers of Group B tribal entities which exceed the annual contribution paid by such Group B tribal entities to the Compensation and Medical Benefits Account. Any funds drawn on the Reserve Account must be replenished on a dollar-for-dollar basis during the next fiscal year by the Group B tribal entity or entities which have drawn on the Reserve Account. (d) Each year the Workers’ Compensation Committee shall recommend to the Tribal Council for appropriation and to Group B tribal entities which are not under the tribal government’s budgeting authority, the sum that each Group B entity should contribute to the Compensation and Medical Benefits Account, the Plan Administration Account, and, if required by WSTC 375.610(l)(c)(iii), the Reserve Account. In determining the contribution of Group B entities to each account in the tribal fund, the Committee shall consider the risk classification and the loss experience of each Group B tribal entity.

375.615 Annual and Quarterly Reports.

  1. The Workers’ Compensation Committee shall annually, on or before September 30, make a report to the Warm Springs Tribal Council for the preceding fiscal year. The report shall include: (a) A statement of the number of awards made; (b) A general statement of the causes of accidents for which the awards were made; (c) A detailed statement of disbursements from the Tribal Fund; and (d) Other matters which the Committee deems proper to call to the attention of the Tribal Council, including recommendations.
  2. The Claims Administrator, upon review and approval by the Workers’ Compensation Committee, shall provide the tribal government and each tribal enterprise a quarterly “Experience Report” providing information as to workers injured and amounts paid for indemnity and medical. Additionally, the workers’ Compensation Committee shall provide the Tribal government and each tribal enterprise with an annual explanation of the contribution required from each tribal entity to the Tribal Fund’s Compensation and Medical Benefits Account, Plan Administration Account, and, if required by WSTC 375.610(l)(c)(iii), the Reserve Account.

1 WSTC 375.115 was amended by Resolution No. 9105 adopted by Tribal Council on August 7, 1995.
2 WSTC 375.125 was amended by Tribal Council Resolution 10,926 adopted on September 8, 2008.
3 WSTC 375.130(1)(a) was amended by Tribal Council Resolution No. 9374 adopted on May 27, 1997.
4 WSTC 375.135(11) was amended by Tribal Council Resolution No. 9992 adopted March 20, 2001. WSTC 375.135(11) was moved to WSTC 375.135(2) to allow for proper order.
5 WSTC 375.135(16) was amended on March 20, 2001, by Tribal Council Resolution No. 9992. WSTC 375.135(16) was moved to WSTC 375.135(13) to allow for proper order.
6 WSTC 375.210, WSTC 375.215, and WSTC 375.215(1)(a) were amended by Resolution No. 9105 adopted by the Tribal Council on August 7, 1995. WSTC 375.210 was further amended by Resolution No. 9992 adopted by Tribal Council on March 20, 2001.
7 WSTC 375.215 was further amended and restated in its entirety by Tribal Council Resolution 10926 adopted on September 8, 2008.
8 WSTC 375.215(1)(a) was amended by Tribal Council Resolution No. 9105 adopted on August 7, 1995.
9 WSTC 375.215(5) was amended by Resolution No. 9992 adopted by the Tribal Council on March 20, 2001. WSTC 375.135(11) referenced in WSTC 375.215(5) was moved to WSTC 375.135(2) to allow for proper order.
10 WSTC 375.300(1) was amended by Resolution No. 9992 adopted by the Tribal Council on March 20, 2001.
11 WSTC 375.320(3) was revoked by Resolution No. 9105 adopted by the Tribal Council on August 7, 1995.
12 WSTC 375.335(2) was amended by Resolution No. 9105 adopted by the Tribal Council on August 7, 1995. WSTC 375.335(2) was amended again by Resolution No. 9992 adopted by the Tribal Council on March 20, 2001. The amendment applies only to new claims arising after the date of the adoption of the Code amendment, not to pending claims.
13 WSTC 375.375(1)(a) and (b) were amended by Resolution No. 9105 adopted by the Tribal Council on August 7, 1995.
14 WSTC 375.375(1)(d) was amended by Resolution No. 9992 adopted by the Tribal Council on March 20, 2001.
15 WSTC 375.420(2) was amended by Resolution No. 9105 adopted by the Tribal Council on August 7, 1995. WSTC 375.420(2) was further amended by Resolution No. 9992 adopted by Tribal Council on March 20, 2001.
16 WSTC 375.465(1) was amended by Resolution No. 9992 adopted by the Tribal Council on March 20, 2001.
17 WSTC 375.505(2)(a) was amended by Resolution No. 9992 adopted by the Tribal Council on March 20, 2001.
18 WSTC 375.505(e) was amended by Resolution No. 9992 adopted by the Tribal Council on March 20,
2001.
19 WSTC 375.510 was amended by Resolution No. 9105 adopted by the Tribal Council on August 7, 1995.

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