The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

QUESTIONS ABOUT THE CONTENT OR MEANING OF THIS AGENCY'S RULES?
CLICK HERE TO ACCESS RULES COORDINATOR CONTACT INFORMATION

 







DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,

WORKERS' COMPENSATION DIVISION










 

DIVISION 75
RETROACTIVE PROGRAM 

436-075-0001
Authority for Rules
These rules are promulgated under the
director’s authority in ORS 656.726 and 656.506.
Stat. Auth.: ORS 656.506 & 656.726
Stats. Implemented: ORS 656.506
Hist.: WCD 4-1989, f. 12-22-89,
cert. ef. 1-1-90; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16
436-075-0002
Purpose
The purpose of these rules is to establish guidelines for administering disbursements made from the Retroactive Program.
Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.506

Hist.: WCD 4-1989, f. 12-22-89, cert. ef. 1-1-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98
436-075-0003
Applicability of Rules
(1) These rules are effective January
1, 2016, and apply to all requests for reimbursement from the Retroactive Program
involving benefits payable under:
(a) ORS 656.204 Death
(b) ORS 656.206 Permanent
Total Disability
(c) ORS 656.208 Death During
Permanent Total Disability
(d) ORS 656.210 Temporary
Total Disability for injuries before April 1, 1974.
(2) The director may waive
procedural rules as justice requires, unless otherwise obligated by statute.
Stat. Auth.: ORS 656.209, 656.206, 656.208,
656.210, 656.236, 656.289 & 656.506
Stats. Implemented: ORS 656.204,
656.206, 656.208, 656.210, 656.276, 656.289 & 656.506
Hist.: WCD 4-1989, f. 12-22-89,
cert. ef. 1-1-90; WCD 10-1990(Temp), f. 6-18-90, cert. ef. 7-1-90; WCD 23-1990,
f. 11-29-90, cert. ef. 12-26-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD
7-2015, f. 10-12-15, cert. ef. 1-1-16
436-075-0005
Definitions
Except where the context requires otherwise,
these rules are governed by the following definitions:
(1) “Beneficiaries”
are those persons as defined in ORS 656.005.
(2) “Child” is
as defined in the laws applicable at the worker’s date of injury.
(3) “Department”
means the Department of Consumer and Business Services.
(4) “Director”
means the director of the Department of Consumer and Business Services or the director’s
designee.
(5) “Disposition”
or “claim disposition” means the written agreement executed by all parties
in which a claimant agrees to release rights, or agrees to release an insurer or
self-insured employer from obligations, under ORS 656.001 to 656.794, except for
medical services, in an accepted claim.
(6) “Insurer”
means the State Accident Insurance Fund Corporation, an insurer authorized under
ORS Chapter 731 to transact workers’ compensation insurance in this state,
or an employer or employer group that has been certified as self-insured under ORS
656.430.
(7) “Performance Section”
means the Performance Section of the Workers’ Compensation Division of the
Department of Consumer and Business Services.
(8) “Retroactive Program
benefit” means that additional benefit paid to eligible claimants or beneficiaries
to bring their benefits to a more current level.
(9) “Social Security
offset” means a reduction of permanent total disability benefits or fatal
benefits based on the amount of federal social security disability benefits received
by a worker or surviving spouse.
(10) “Spouse”
means the spouse of a worker. This definition includes cohabitants under ORS 656.226.
(11) “Statutory benefit”
means any benefit payable to or on behalf of the injured worker under the law in
effect at the time of the worker’s injury, as modified by marital and dependency
status changes.
(12) “Through”
means inclusion of a specific date.
(13) “To” means
until but not including a specific date.
Stat. Auth.: ORS 656.726
Stats. Implemented: ORS 656.726
Hist.: WCD 4-1989, f. 12-22-89,
cert. ef. 1-1-90; WCD 10-1990(Temp), f. 6-18-90, cert. ef. 7-1-90; WCD 23-1990,
f. 11-29-90, cert. ef. 12-26-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD
7-2015, f. 10-12-15, cert. ef. 1-1-16
436-075-0006
Administration of Rules
In administering these rules, orders
of the Performance Section are deemed orders of the director.
Stat. Auth.: ORS 656.726
Stats. Implemented: ORS 656.726
Hist.: WCD 4-1989, f. 12-22-89,
cert. ef. 1-1-90; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16
436-075-0008
Administrative Review
(1) Any party as defined by ORS 656.005
aggrieved by a proposed order or proposed assessment of civil penalty of the director
or division issued under ORS 656.745 or 656.750 may request a hearing by the Hearings
Division of the Workers’ Compensation Board under ORS 656.740.
(a) The request for hearing
must be sent in writing to the Administrator of the Workers’ Compensation
Division. No hearing will be granted unless the request specifies the grounds on
which the person requesting the hearing contests the proposed order or assessment.
(b) The request for hearing
must be filed with the Administrator of the Workers’ Compensation Division
by the aggrieved person within 60 days after the mailing of the proposed order or
assessment. No hearing will be granted unless the request is mailed or delivered
to the administrator within 60 days after the mailing date of the proposed order
or assessment.
(2) Under ORS 656.704(2),
any party that disagrees with an action or order of the director under these rules,
other than as described in section (1), may request a hearing by filing a request
for hearing under OAR 436-001-0019 within 30 days of the mailing date of the order
or notice of action. OAR 436-001 applies to the hearing.
Stat. Auth.: ORS 656.740, 656.745 &
656.750
Stats. Implemented: ORS 656.704,
656.740, 656.745, 656.750 & 2005 OL Ch. 26
Hist.: WCD 4-1989, f. 12-22-89,
cert. ef. 1-1-90; WCD 10-1990(Temp), f. 6-18-90, cert. ef. 7-1-90; WCD 23-1990,
f. 11-29-90, cert. ef. 12-26-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD
12-2003, f. 12-4-03, cert. ef. 1-1-04; WCD 7-2005, f. 10-20-05, cert. ef. 1-2-06;
WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16
436-075-0010
Criteria for Eligibility
(1) The department will issue a bulletin
to notify all insurers of changes in the Retroactive Program benefit levels whenever
the director determines a change is necessary under ORS 656.506(7).
(2) Eligibility for Retroactive
Program benefits is based on the worker’s injury date as follows:
(a) Workers or beneficiaries
eligible to receive either death or permanent total disability benefits become eligible
for Retroactive Program benefit increases when the benefits granted under the Retroactive
Program bulletin exceed the benefits provided by the statute in effect at the time
of the injury.
(b) For workers receiving
temporary total disability benefits, the injury must have occurred before July 1,
l973. Workers with injuries occurring between July 1, 1973 and April 1, 1974 may
qualify for benefits according to the limits defined in the Retroactive Program
bulletin. Workers injured on or after April 1, 1974 are not entitled to receive
Retroactive Program increases to their temporary total disability benefit.
(3) A claim is not eligible
for Retroactive Program benefits if all issues except compensable medical services
are disposed of under ORS 656.236 or settled under ORS 656.289 before becoming eligible
under section (2) of this rule.
(4) Costs for claims of subject
workers of a noncomplying employer under ORS 656.052 are not eligible for reimbursement
from the program, but remain a cost recoverable from the employer under ORS 656.054(3).
Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.236,
656.289 & 656.506
Hist.: WCD 4-1989, f. 12-22-89,
cert. ef. 1-1-90; WCD 23-1990, f. 11-29-90, cert. ef. 12-26-90; WCD 14-1997, f.
12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16
436-075-0020
Death Benefit
(1) Death benefits must be paid to eligible
beneficiaries under ORS 656.204 and the Retroactive Program benefit schedules.
(2) Burial benefits must
be paid under ORS 656.204(1) and the Retroactive Program benefit schedules.
(3) The statutory death benefit
for injuries occurring from July 1, 1973 to April 1, 1974 will be reduced by the
Social Security benefit received, up to the July 1, 1973 statutory benefit level.
The amount of reduction to the statutory benefit is a Retroactive Program benefit.
The insurer may request reimbursement only for the adjusted Retroactive Program
benefit.
(4) Benefits payable for
a partial month must be calculated by dividing the monthly benefit by the actual
number of days in the month and multiplying that result by the number of days payable.
(5) Benefits for beneficiaries
must be paid to the date of any status change.
(6) Remarriage allowance
must be paid under ORS 656.204 and the Retroactive Program benefit schedules.
(7) At least once every two
years, the insurer must verify that all beneficiaries receiving death benefits for
which the insurer may request reimbursement from the Retroactive Program are alive
and remain eligible for those benefits. Insurers’ questions regarding beneficiaries’
status must be reasonably pertinent to the continuing eligibility of those persons
for benefits.
Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.204
Hist.: WCD 4-1989, f. 12-22-89,
cert. ef. 1-1-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15,
cert. ef. 1-1-16
436-075-0030
Permanent Total Disability Benefit
(1) Permanent total disability benefits
must be paid under ORS 656.206 and the benefit schedules in the Retroactive Program
bulletin.
(2) Benefit amounts payable
for a partial month must be calculated under 436-075-0020(4).
(3) Benefits for beneficiaries
must be paid to the date of any status change.
(4) Any Social Security offset
determined under ORS 656.209 must first be applied against the statutory portion
of the permanent total disability benefit. Any amount of the Social Security offset
that exceeds the statutory benefit must be applied against the Retroactive Program
benefit. The insurer may request reimbursement only for that portion of the Retroactive
Program benefit that has not been offset.
(5) At least once every two
years, the insurer must verify that all beneficiaries receiving benefits for which
the insurer may request reimbursement from the Retroactive Program are alive and
remain eligible for those benefits. Such “status checks” of beneficiaries
may occur at the same time the insurer reexamines the permanent total disability
claim under OAR 436-030-0065(1). Insurers’ questions regarding beneficiaries’
status must be reasonably pertinent to the continuing eligibility of those persons
for benefits.
Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.206
& 656.209
Hist.: WCD 4-1989, f. 12-22-89,
cert. ef. 1-1-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15,
cert. ef. 1-1-16
436-075-0040
Death During Permanent Total Disability
(1) If the injured worker dies during
the period of permanent total disability, death benefits must be paid to eligible
beneficiaries under ORS 656.208, 656.204, and the Retroactive Program benefit schedules.
(2) Permanent total disability
benefits must be paid to the date of death, at which time death benefits will begin.
Where death benefits are not due, permanent total disability benefits must be paid
through the date of death.
(3) The Social Security benefit
for injuries occurring between July 1, 1973 and April 1, 1974 must be applied under
OAR 436-075-0020(3).
(4) Benefit amounts payable
for a partial month must be calculated under OAR 436-075-0020(4).
(5) Burial benefits must
be paid under ORS 656.208(1), 656.204(1), and the Retroactive Program benefit schedules.
However, if the injury date is before July 1, 1973, burial benefits are due only
if death results from the accidental injury causing the permanent total disability.
(6) At least once every two
years, the insurer must verify that all beneficiaries receiving death benefits for
which the insurer may request reimbursement from the Retroactive Program are alive
and remain eligible for those benefits. Insurers’ questions regarding beneficiaries’
status must be reasonably pertinent to the continuing eligibility of those persons
for benefits.
Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.204
& 656.208
Hist.: WCD 4-1989, f. 12-22-89,
cert. ef. 1-1-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15,
cert. ef. 1-1-16
436-075-0050
Temporary Total Disability
(1) Temporary total disability benefits
must be paid under ORS 656.210, OAR 436-060-0150, and the benefit schedules in the
Retroactive Program bulletin.
(2) The computation of benefits
under these rules and the Retroactive Program bulletin may not reduce temporary
total disability benefits currently being paid.
Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.210
Hist.: WCD 4-1989, f. 12-22-89,
cert. ef. 1-1-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15,
cert. ef. 1-1-16
436-075-0065
Dispositions
(1) Disposition of the claim by the
parties under ORS 656.236, or settlement of the claim under ORS 656.289, is not
eligible for reimbursement from the Retroactive Program unless made with the director’s
prior written approval.
(2) Requests for written
approval of proposed dispositions must include:
(a) A copy of the proposed
disposition that specifies the amount of the proposed contribution to be made from
the Retroactive Program;
(b) A statement from the
insurer indicating how the amount of the contribution was calculated; and
(c) Any other information
required by the director.
(3) The director will not
approve the disposition for reimbursement if:
(a) The ratio of the amount
requested from the program to the total amount of the disposition exceeds the percentage
of current benefits due the worker from the program; or
(b) The settlement exceeds
a reasonable projection of future liability.
(4) The insurer must submit
dispositions to the division in the format prescribed by the director.
Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.236
& 656.289
Hist.: WCD 10-1990(Temp),
f. 6-18-90, cert. ef. 7-1-90; WCD 23-1990, f. 11-29-90, cert. ef. 12-26-90; WCD
14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16
436-075-0070
Reimbursement
(1) Reimbursement from the Retroactive
Program will be authorized by the Performance Section on a quarterly basis.
(2) Requests for reimbursement
must be mailed or delivered to the Performance Section within 30 days after the
end of each quarter to be processed in that quarterly disbursement.
(3) Requests for reimbursement
mailed or delivered to the Performance Section more than 30 days after the end of
the quarter will be processed with the next quarterly disbursement.
(4) A separate request for
reimbursement must be submitted for each insurer and include a signed certification
that the payments reported on the request have been made in the amounts reported.
(5) Requests for reimbursement
must be submitted in the format prescribed by the director. Each request must accurately
reflect the marital and dependency status in effect and eligible for reimbursement
in the period requested.
(6) The Performance Section
will not process any request that does not meet the requirements of section (4)
or (5) of this rule until such requirements are met.
(7) The department will recover
any overpayment made to an insurer as a result of an insurer error in reporting,
or incorrect information submitted, on a quarterly request form.
(8) If a denied claim is
found to be compensable by an administrative law judge, the Workers’ Compensation
Board, or the Court of Appeals, and that decision is reversed by a higher level
of appeal, the insurer will receive reimbursement for Retroactive Program benefit
payments required to be made while the claim was in an accepted status.
Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.506
Hist.: WCD 4-1989, f. 12-22-89,
cert. ef. 1-1-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15,
cert. ef. 1-1-16
436-075-0090
Third Party Recovery
(1) In a third party recovery, previously
reimbursed Retroactive Program benefits are a portion of the paying agency’s
lien.
(2) Under ORS 656.593, when
the insurer learns of third party settlement negotiations on any claim for which
it has received reimbursement from the Retroactive Program, the insurer must notify
the Performance Section.
(3) Remittance on recovered
Retroactive Program benefits must be made to the department in the quarter following
the recovery in amounts determined under ORS 656.591 and 656.593.
Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.591
& 656.593
Hist.: WCD 4-1989, f. 12-22-89,
cert. ef. 1-1-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15,
cert. ef. 1-1-16
436-075-0100
Assessment of Civil Penalties
Under ORS 656.745 the director may assess
a civil penalty against an insurer for failure to comply with these rules. Penalty
orders will be issued under ORS 656.447 and 656.704 and are subject to review under
OAR 436-075-0008.
Stat. Auth.: ORS 656.745
Stats. Implemented: ORS 656.204,
656.726, 656.745 & 656.447
Hist.: WCD 4-1989, f. 12-22-89,
cert. ef. 1-1-90; WCD 10-1990(Temp), f. 6-18-90, cert. ef. 7-1-90; WCD 23-1990,
f. 11-29-90, cert. ef. 12-26-90; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16

The official copy of an Oregon Administrative Rule is
contained in the Administrative Order filed at the Archives Division,
800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the
published version are satisfied in favor of the Administrative Order.
The Oregon Administrative Rules and the Oregon Bulletin are
copyrighted by the Oregon Secretary of State. Terms
and Conditions of Use