Posted by Robert on November 08, 1999 at 09:54:47:
Jerry Keene, a lawyer (Reinisch, Mackenzie, et al) has written, mostly behind the scenes, many of the "deforms" enacted this decade. He appears to be an unofficial member of MLAC who makes his living as an insurance company lobbyist. This guy is a serious menace to all Oregon workers. I want to know more about him. Anyone out there with info.
I know he lost a bid to the State Legislature in 1994 and has been the Log Cabin President for Oregon.
I also found this at the site below:
Jerry Keene, a workers' compensation insurance defense attorney and drafter of some of Senate Bill 369's text, testified as follows regarding ORS 656.262(7)(b):
"[t]his just specifies that if the insurer is going
to take advantage of the provision under [ORS 656.]005(7)(a)(B) concerning preexisting conditions and resultant conditions that before they close that claim they have got to issue a denial of what they are denying so the Department knows what is still accepted and can rate it." Tape Recording, Senate Labor and
Government Operations Committee, February 17, 1995, Tape 48B. (Emphasis supplied)
Regarding amended ORS 656.268(1), Jerry Keene testified:
"this in part conforms the criteria for claim closure to the definitions of a compensable injury that we
talked about at the beginning with regard to situations where the preexisting condition becomes the major contributing cause of the condition. At that point[,] the condition is no longer compensable. There must be a denial pursuant to that issued --
we talked about that earlier -- so that the worker can contest it, then the Department can go ahead and close the claim and rate what is accepted and everything moves on in a logical order." Tape Recording, Senate Labor and Government Operations Committee, February 17, 1995, Tape 48B. (Emphasis supplied).
In addition, regarding amendments to ORS 656.262, Jerry Keene testified:
"[s]ubsection 6c overturns Sheridan v. Johnson Creek
[Market, 127 Or App 259 (1994),] and United Airlines[, Inc.] v. Brown[, 127 Or App 253 (1994),] and allows for an insurer to issue a denial on open claims involving resultant conditions where the work injury component of the claim is no longer the major contributing cause of the resultant condition. And I
would note that the proposed provisions of [ORS] 656.268(1) also give the insurer another option to close the claim at that point. Either way it gets postured for a decision so the worker can challenge it and that compensability decision can be determined." Tape Recording, Senate Labor and Government Operations Committee, February 1, 1995, Tape 19A.
Finally, Representative Mannix, one of the sponsors of Senate Bill 369, testified as follows regarding Section 28, the section containing the amendments to ORS 656.262:
"[w]e have the acceptance of a resultant or consequential condition. It doesn't preclude you from later on denying a resultant or consequential condition if the otherwise compensable injury ceases to be the major contributing cause of the resultant or consequential condition. That is the same discussion we have had before, but over time the resultant or
consequential condition may resolve or may reduce and you can later say, all right, I was accepting this as a resultant condition, but now, say a year later, it's no longer, it doesn't meet the standards any longer to be covered as a resultant condition, so now I'm going to deny it." Tape Recording, House Labor Committee, March 6, 1995, Tape 46A. (Emphasis supplied)
This legislative history supports our interpretation of the legislature's intent in enacting ORS 656.262(7)(b) to require the carrier to issue a denial if the accepted injury no longer is the major contributing cause of the combined condition, in order for the carrier to take advantage of statutory provisions
regarding combined and consequential conditions. The first quoted statement above from Jerry Keene is especially illustrative -- if the carrier intends to take advantage of the provisions of ORS 656.005(7), which define compensable combined and consequential conditions, the carrier must issue a denial before closing the claim and if it does so, the "accepted"
condition(s) will be rated and "everything moves on in a logical order." Consequently, it is clear that before ORS 656.262(7)(b) applies, a condition must have been accepted under ORS 656.005(7) as a combined condition.5 To interpret the statute in any other manner effectively requires compensability litigation within the "extent" rating process.6 Given the evidentiary restrictions of ORS 656.283(7) applicable in "extent" hearings, the record could be extremely limited. Also, this "compensability" litigation could
end up being conducted even if claimant has not objected to the carrier's "Notice of Acceptance" or if no claim for a new medical condition as been filed.