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

 

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DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,

WORKERS' COMPENSATION DIVISION










 

DIVISION 30
CLAIM CLOSURE AND RECONSIDERATION

436-030-0001
Authority for Rules
These rules are promulgated under the director's authority contained in ORS 656.726(4) and 656.268.
Stat. Auth.: ORS 656.268, 656.726, 1995 OL Ch. 332 & 1999 OL Ch. 313

Stats. Implemented: ORS 656.268, 656.726, OL Ch. 332 1995 & Ch. 313 1999

Hist.: WCB 5-1975, f. 2-6-75, ef. 2-25-75; WCD 8-1978(Admin), f. 6-30-78, ef. 7-10-78; WCD 4-1980(Admin), f. 3-20-80, ef. 4-1-80; WCD 5-1981(Admin), f. 12-30-81, ef. 1-1-82; Renumbered from 436-065-0000, 5-1-85; WCD 13-1987, f. 12-18-87, ef. 1-1-88; WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01
436-030-0002
Purpose of Rules
The purpose of these rules is to provide standards, conditions, procedures, and reporting requirements for:
(1) Requests for closure by the worker;
(2) Claim closure under ORS 656.268(1);
(3) Determining medically stationary status;
(4) Determining temporary disability benefits;
(5) Awards of permanent partial disability;
(6) Determining permanent total disability awards;
(7) Review for reduction of permanent total disability awards;
(8) Review of prior permanent partial disability awards consistent with OAR 436-030-0003; and
(9) Reconsideration of notices of closure.
Stat. Auth.: ORS 656.268, 656.726

Stats. Implemented: ORS 656.206, 656.210, 656.212, 656.262, 656.268, 656.273, 656.325

Hist.: WCD 4-1980(Admin), f. 3-20-80, ef. 4-1-80; WCD 5-1981(Admin), f. 12-30-81, ef. 1-1-82; Renumbered from 436-065-0002, 5-1-85; WCD 13-1987, f. 12-18-87, ef. 1-1-88; WCD 5-1990(Temp), f. 6-18-90, cert. ef. 7-1-90; WCD 31-1990, f. 12-10-90, cert. ef. 12-26-90; WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95; WCD 8-1996, f. 2-14-96, cert. ef. 2-17-96; WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 9-2004, f. 10-26-04, cert. ef. 1-1-05; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10
436-030-0003
Applicability of Rules
(1) Except as provided in section (3)
of this rule, these rules apply to all accepted claims for workers’ compensation
benefits and all claims closed on or after the effective date of these rules.
(2) All orders the division
issues to carry out the statute and these rules are considered an order of the director.
(3) These rules carry out
ORS 656.005, 656.214, 656.262, 656.268, 656.273, 656.278, and 656.325.
(a) For claims in which the
worker became medically stationary before July 2, 1990, OAR 436-030-0020, 436-030-0030,
and 436-030-0050 as adopted by WCD Administrative Order 13-1987 effective January
1, 1988 will apply.
(b) OAR 436-030-0055(3)(b),
(3)(d), and (4)(a) apply to all claims with dates of injury on or after January
1, 2002.
Stat. Auth.: ORS 656.268 & 656.726
Stats. Implemented: ORS 656.005,
656.206, 656.210, 656.212, 656.214, 656.262, 656.268, 656.273, 656.278, 656.325,
656.726
Hist.: WCD 8-1978(Admin),
f. 6-30-78, ef. 7-10-78; WCD 4-1980(Admin), f. 3-20-80, ef. 4-1-80; WCD 5-1981(Admin),
f. 12-30-81, ef. 1-1-82; Renumbered from 436-065-0003, 5-1-85; WCD 13-1987, f. 12-18-87,
ef. 1-1-88; WCD 5-1990(Temp), f. 6-18-90, cert. ef. 7-1-90; WCD 31-1990, f. 12-10-90,
cert. ef. 12-26-90; WCD 5-1991(Temp), f. 8-20-91, cert. ef. 9-1-91; WCD 5-1992,
f. 1-17-92, cert. ef. 2-20-92; WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95; WCD 8-1996,
f. 2-14-96, cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98; WCD
9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 12-2000(Temp), f. 12-22-00, cert. ef.
1-1-01 thru 6-29-01; Administrative correction 11-20-01; WCD 10-2001, f. 11-16-01,
cert. ef. 1-1-02; WCD 1-2002(Temp), f. & cert. ef. 1-15-02 thru 7-13-02; WCD
4-2002, f. 4-5-02, cert ef. 4-8-02; WCD 14-2003(Temp), f. 12-15-03, cert. ef. 1-1-04
thru 6-28-03; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 9-2004, f. 10-26-04,
cert. ef. 1-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 1-2008, f. 6-13-08,
cert. ef. 7-1-08; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; WCD 5-2011, f. 11-18-11,
cert. ef. 1-1-12; WCD 2-2015, f. 2-12-15, cert. ef. 3-1-15
436-030-0005
Definitions
Except where the context requires otherwise,
the construction of these rules is governed by the definitions given in the Workers’
Compensation Law and as follows:
(1) “Authorized Nurse
Practitioner” means a nurse practitioner authorized to provide compensable
medical services under ORS 656.245 and OAR 436-010.
(2) “Day” means
calendar day unless otherwise specified (e.g., “working day”).
(3) “Direct medical
sequela” means a condition that is clearly established medically and originates
or stems from an accepted condition. For example: The accepted condition is low
back strain with herniated disc at L4-5. The worker develops permanent weakness
in the leg and foot due to the accepted condition. The weakness is considered a
“direct medical sequela.”
(4) “Director”
means the director of the Department of Consumer and Business Services, or the director’s
delegate for the matter.
(5) “Division”
means the Workers’ Compensation Division of the Department of Consumer and
Business Services.
(6) “Instant Fatality”
means a compensable claim for death benefits where the worker dies within 24 hours
of the injury.
(7) “Insurer”
means the State Accident Insurance Fund, an insurer authorized under ORS Chapter
731 to transact workers’ compensation insurance in Oregon, a self-insured
employer, or a self-insured employer group.
(8) “Mailed or Mailing
Date,” for the purposes of determining timeliness under these rules, means
the date a document is postmarked. Requests submitted by electronic transmission
(by facsimile or “fax”) will be considered mailed as of the date printed
on the banner automatically produced by the transmitting fax machine. Hand-delivered
requests will be considered mailed as of the date stamped or punched in by the Workers’
Compensation Division. Phone or in-person requests, where allowed under these rules,
will be considered mailed as of the date of the request.
(9) “Notice of Closure”
means a notice to the worker, estate, or beneficiary issued by the insurer to:
(a) Close an accepted disabling
claim, including fatal claims;
(b) Correct, rescind, or
rescind and reissue a Notice of Closure previously issued; or
(c) Reduce permanent total
disability to permanent partial disability.
(10) “Reconsideration”
means review by the director of an insurer’s Notice of Closure.
(11) “Statutory closure
date” means the date the claim satisfies the criteria for closure under ORS
656.268(1)(b) and (c).
(12) “Statutory appeal
period” means the time frame for appealing a Notice of Closure or Order on
Reconsideration.
(13) “Work disability,”
for purposes of determining permanent disability, means the separate factoring of
impairment as modified by age, education, and adaptability to perform the job at
which the worker was injured.
(14) “Worksheet”
means a summary of facts used to derive the awards stated in the Notice of Closure.
Stat. Auth.: ORS 656.268, 656.726
Stats. Implemented: ORS 656.005,
656.268 (2015 OL Ch. 144), 656.726
Hist.: WCD 8-1978(Admin),
f. 6-30-78, ef. 7-10-78; WCD 4-1980(Admin), f. 3-20-80, ef. 4-1-80; WCD 5-1981(Admin),
12-30-81, ef. 1-1-82; Renumbered from 436-065-0004, 5-1-85; WCD 13-1987, f. 12-18-87,
ef. 1-1-88; WCD 5-1990(Temp), f. 6-18-90, cert. ef. 7-1-90; WCD 31-1990, f. 12-10-90,
cert. ef. 12-26-90; WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95; WCD 8-1996, f. 2-14-96,
cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98; WCD 9-2000, f. 11-13-00,
cert. ef. 1-1-01; WCD 14-2003(Temp), f. 12-15-03, cert. ef. 1-1-04 thru 6-28-03;
WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 9-2004, f. 10-26-04, cert. ef. 1-1-05;
WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10;
WCD 1-2015, f. 1-29-15, cert. ef. 3-1-15; WCD 4-2015(Temp), f. & cert. ef. 5-21-15
thru 11-16-15; WCD 6-2015, f. 10-12-15, cert. ef. 11-17-15
436-030-0007
Administrative Review
(1) Notices of Closure issued by insurers are appealed to the director and processed in accordance with the reconsideration procedures described in OAR 436-030-0115 through OAR 436-030-0185, except Notices of Closure under section (3)(b) of this rule, when:
(a) The worker was determined medically stationary after July 1, 1990; or
(b) The claim qualifies for closure under ORS 656.268(1)(b) or (c).
(2) The director may abate, withdraw, or amend the Order on Reconsideration during the 30-day appeal period for the Order on Reconsideration.
(3) The following matters are brought before the Hearings Division of the Workers’ Compensation Board:
(a) Orders on Reconsideration issued under these rules.
(b) Notices of Closure that rescind permanent total disability under ORS 656.206.
(c) Any other action taken under these rules where a worker’s right to compensation or the amount thereof is directly an issue under ORS chapter 656.
(4) Contested Case Hearings of Sanctions and Civil Penalties: Under ORS 656.740, any party aggrieved by a proposed order or proposed assessment of a civil penalty issued by the director under ORS 656.254, 656.735, 656.745 or 656.750 may request a hearing by the Hearings Division as follows:
(a) The party must send the request for hearing in writing to the director within 60 days after the mailing date of the proposed order or assessment. The request must specify the grounds upon which the proposed order or assessment is contested.
(b) The Workers’ Compensation Division will forward the request and other pertinent information to the Hearings Division.
(c) An Administrative Law Judge from the Hearings Division, acting on behalf of the director, will conduct the hearing in accordance with ORS 656.740 and ORS Chapter 183.
(5) Director’s Administrative Review of other actions: Except as covered under sections (1) through (4) of this rule, any party seeking an action or decision by the director or aggrieved by an action taken by any other party under these rules, may request administrative review by the director as follows:
(a) The party must send the request in writing to the director within 90 days of the disputed action and must specify the grounds upon which the action is disputed.
(b) The director may require and allow such evidence as is deemed appropriate to complete the review.
(c) The director may waive procedural rules as justice requires, unless otherwise obligated by statute.
Stat. Auth.: ORS 656.268, 656.726

Stats. Implemented: ORS 656.268, 656.726, 656.740

Hist.: WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98; WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 10-2001, f. 11-16-01, cert. ef. 1-1-02; WCD 14-2003(Temp), f. 12-15-03, cert. ef. 1-1-04 thru 6-28-03; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 9-2004, f. 10-26-04, cert. ef. 1-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10
436-030-0015
Insurer Responsibility
(1) When an insurer issues a Notice
of Closure (Form 1644, 1644c, 1644r), the insurer is responsible for:
(a) Providing the director,
the parties, and the worker’s attorney if the worker is represented, a copy
of the Notice of Closure, a copy of the worksheet (Form 2807) upon which the Notice
is based, a completed “Insurer Notice of Closure Summary” (Form 1503)
and an Updated Notice of Acceptance at Closure that specifies which conditions are
compensable, as prescribed in OAR 436-030-0020;
(b) Maintaining a copy of
the worksheet and records upon which the Notice of Closure is based in its claim
file for audit purposes under OAR 436-050; and
(c) Issuing the Updated Notice
of Acceptance at Closure on the same date as the Notice of Closure.
(A) The Updated Notice of
Acceptance at Closure must contain the following title, information, and language:
(i) Title: “Updated
Notice of Acceptance at Closure”;
(ii) Information: A list
of all compensable conditions, even if a condition was denied, ordered accepted
by litigation, and is under appeal. Any conditions under appeal and those which
were the basis for this claim opening must be specifically identified;
(iii) Language, in bold print:
“Notice to Worker: This notice
restates and includes all prior acceptances. The conditions that were the basis
of this claim opening were the only conditions considered at the time of claim closure.
The insurer or self-insured employer is not required to pay any disability compensation
for any condition specifically identified as under appeal, unless and until the
condition is found to be compensable after all litigation is complete. Appeal of
any denied conditions or objections to this notice will not delay claim closure.
Any condition found compensable after the Notice of Closure is issued will require
the insurer to reopen the claim for processing of that condition. If you believe
a condition has been incorrectly omitted from this notice, or this notice is otherwise
deficient, you must communicate the specific objection to the insurer in writing.”
(B) In the case of an instant fatality,
the Updated Notice of Acceptance may be combined with the Notice of Closure if the
following is included:
(i) Title: “Updated
Notice of Acceptance and Closure”;
(ii) Information: A statement
that beneficiaries may be entitled to death benefits under ORS 656.204 and 656.208,
and the medically stationary date.
(iii) Language, in bold print:
“Notice to Worker’s Beneficiary
or Estate: This notice restates any prior acceptances. The insurer is required
to determine the appropriate benefits to be paid to any beneficiaries and begin
those payments within 30 days of the mailing date of this notice.
If you disagree with the notice
of acceptance, you may appeal the decision to the Workers’ Compensation Board,
(insert current address for Workers’ Compensation Board) within 30 days of
the mailing date.
A beneficiary who was mailed this
notice may request reconsideration of the notice by the Workers’ Compensation
Division, Appellate Review Unit, (insert current address for Workers’ Compensation
Division) within 60 days of the mailing date of this notice.
Beneficiaries who were not mailed
a copy of this notice may request reconsideration of this notice within one year
of the date this notice was mailed to the estate of the worker.
If you have questions about this
notice, you may contact the Ombudsman for Injured Workers, the Workers’ Compensation
Division, or consult with an attorney.”
(C) If the “Initial Notice of
Acceptance” is issued at the same time as the “Updated Notice of Acceptance
at Closure,” both titles must appear near the top of the document.
(D) When an omission or error
requires a corrected Updated Notice of Acceptance at Closure, the word “CORRECTED”
must appear in capital letters adjacent to the word “Updated”.
(2) The insurer or self-insured
employer is not required to pay any disability compensation for any condition under
appeal and specifically identified as such, unless and until the condition is found
to be compensable after all litigation is complete.
(3) Copies of Notices of
Refusal to Close must be mailed to the director and the parties, and to the worker’s
attorney, if the worker is represented.
(4) In claims with a date
of injury on or after January 1, 2005, where the worker has not returned to regular
work and ORS 656.726(4)(f) does not apply, or in claims with a date of injury on
or after January 1, 2006, when the worker has not been released to regular work
and ORS 656.726(4)(f) does not apply, the insurer must consider:
(a) The worker’s age
at the time the notice is issued;
(b) Adaptability to return
to employment;
(c) The worker’s level
of education; and
(d) The worker’s work
history, including an accurate description of the physical requirements of the worker’s
job held at the time of injury, for the period from five years before the date of
injury to the mailing date of the notice of closure with dates or period of time
spent at each position, tasks performed or level of specific vocational preparation
(SVP), and physical requirements. If the insurer cannot obtain five years of work
history despite all reasonable efforts, the insurer must document its efforts and
provide as much work history as it can obtain.
(5) In claims where the date
of injury is before January 1, 2005, the worker has not returned or been released
to regular work, ORS 656.726(4)(f) does not apply, and the claim involves injury
to, or disease of, unscheduled body parts, areas, or systems, the insurer must consider:
(a) The worker’s age
at time the notice is issued;
(b) Adaptability to return
to employment:
(c) The worker’s level
of education; and
(d) The worker’s work
history, including an accurate description of the physical requirements of the worker’s
job held at the time of injury, for the period from five years before the date of
injury to the mailing date of the notice of closure with dates or period of time
spent at each position, tasks performed or level of specific vocational preparation
(SVP), and physical requirements.
(6) The insurer must consider
any other records or information pertinent to claim determination prior to issuing
a notice of closure.
(7) The insurer must notify
the worker and the worker’s attorney, if the worker is represented, in writing,
when the insurer receives information that the worker’s claim qualifies for
closure under these rules.
(a) The insurer must send
the written notice within three working days from the date the insurer receives
the information, unless the claim has already been closed.
(b) The notice must advise
the worker of his or her impending claim closure and that any time loss disability
payments will end soon.
(8) The insurer must, within
14 days of closing the claim, provide the worker’s attorney the same documents
relied upon for claim closure.
(9) The insurer must not
issue a Notice of Closure on an accepted nondisabling claim. Notices of Closure
issued by the insurer in violation of this rule are void and without legal effect.
Medically stationary status in nondisabling claims may be documented by the attending
physician’s statement of medically stationary status.
(10) When a condition is
accepted after a closure and the claim has been reopened under ORS 656.262, the
insurer must issue a Notice of Closure, considering only the newly accepted condition.
(11) Denials issued under
ORS 656.262(7)(b), must clearly identify the phrase “major contributing cause”
in the text of the denial.
(12) When a claim is closed
where a designation of paying agent order (ORS 656.307) has been issued and the
responsibility issue is not final by operation of law, the insurer processing the
claim at the time of closure must send copies of the closure notice to the worker,
the worker’s attorney if the worker is represented, the director, and all
parties involved in the responsibility issue.
Stat. Auth.: ORS 656.268, 656.726
Stats. Implemented: ORS 656.268
(2015 OL Ch. 144), 656.331, 656.726
Hist.: WCD 12-1994, f. 11-18-94,
cert. ef. 1-1-95; WCD 8-1996, f. 2-14-96, cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97,
cert. ef. 1-15-98; WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 10-2001, f. 11-16-01,
cert. ef. 1-1-02; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 3-2009, f. 12-1-09,
cert. ef. 1-1-10; WCD 4-2015(Temp), f. & cert. ef. 5-21-15 thru 11-16-15; WCD
6-2015, f. 10-12-15, cert. ef. 11-17-15
436-030-0017
Requests for Claim Closure by the Worker
(1) A worker may request closure from the insurer. The insurer must issue a Notice of Closure or Notice of Refusal to Close within 10 days of receipt of a written request.
(2) If an insurer issues a notice of refusal to close the claim, the notice must be identified in capital letters as a “NOTICE OF REFUSAL TO CLOSE” and must include the following information and appeal language:
(a) Name of the worker;
(b) Date of injury;
(c) Insurer’s claim number;
(d) Mailing date of the notice;
(e) The accepted and denied conditions;
(f) Rationale for the insurer’s decision; and
(g) The following language, in bold print:
“If you disagree with this Notice of Refusal to Close your claim, you must file a letter of disagreement with the Workers’ Compensation Board within sixty (60) days from the date of this notice. Your letter must state that you want a hearing, note your address, and include the date of your accident if known. You must mail your letter of disagreement to the Workers’ Compensation Board, [INSURER: Insert current address of Workers’ Compensation Board here]. If your claim qualifies and you request it, you may receive an expedited hearing (within 30 days). Your request cannot, by law, affect your employment. If you do not file your letter of disagreement within sixty (60) days from the date of this notice, your hearing will be denied as the appeal time has passed. You may be represented by an attorney if you choose.”
(3) If the worker disagrees with the Notice of Refusal to Close, the worker may request a hearing from the Workers’ Compensation Board.
Stat. Auth.: ORS 656.268, 656.726

Stats. Implemented: ORS 656.268, 656.319, 656.726, 656.745

Hist.: WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95; WCD 8-1996, f. 2-14-96, cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98; WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 10-2001, f. 11-16-01, cert. ef. 1-1-02; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10
436-030-0020
Requirements for Claim Closure
(1) Issuance of a Notice of Closure.
Unless the worker is enrolled and actively engaged in training, the insurer must
issue a Notice of Closure on an accepted disabling claim within 14 days when:
(a) Medical information establishes
that there is sufficient information to determine the extent of permanent disability
and indicates that the worker is medically stationary;
(b) The compensable injury
is no longer the major contributing cause of the worker’s combined or consequential
condition(s), a major contributing cause denial has been issued, and there is sufficient
information to determine the extent of permanent disability;
(c) The worker fails to seek
medical treatment for 30 days for reasons within the worker’s control and
the worker has been notified of pending actions in accordance with these rules;
(d) The worker fails to attend
a mandatory closing examination for reasons within the worker’s control and
the worker has been notified of pending actions in accordance with these rules;
or
(e) A worker receiving permanent
total disability benefits has materially improved and is capable of regularly performing
work at a gainful and suitable occupation.
(2) Sufficient Information.
For purposes of determining the extent of permanent disability, except as provided
in section (14) of this rule for closure after training, “sufficient information”
requires: a qualifying statement of no permanent disability under subsection (a)
of this section or a qualifying closing report under subsection (b) of this section.
Additional documentation is required under subsection (c) of this section unless
there is clear and convincing evidence that an attending physician or authorized
nurse practitioner has released the worker to the job held at the time of injury
or that the worker has returned to the job held at the time of injury.
(a) Qualifying statements
of no permanent disability. A statement indicating that there is no permanent disability
is sufficient if it meets all of the following requirements:
(A) Qualified providers.
An authorized nurse practitioner or attending physician must provide or concur with
the statement.
(B) Support by the medical
record. The statement must be supported by the medical record. If the medical record
reveals otherwise, a closing examination and report specified under subsection (b)
of this section are required.
(C) In initial injury claims.
In an initial injury claim, the statement must clearly indicate the following:
(i) There is no reasonable
expectation of any permanent impairment caused in any part by an accepted condition,
a direct medical sequela of an accepted condition, or a condition directly resulting
from the work injury; and
(ii) There is no reasonable
expectation of any permanent work restriction that:
(I) Prevents the worker from
returning to the job held at the time of injury; and
(II) Is caused in any part
by an accepted condition, a direct medical sequela of an accepted condition, or
a condition directly resulting from the work injury.
(D) In new or omitted condition
claims. In a new or omitted condition claim, the statement must clearly indicate
the following:
(i) There is no reasonable
expectation of any permanent impairment caused in any part by an accepted new or
omitted condition or a direct medical sequela of an accepted new or omitted condition;
and
(ii) There is no reasonable
expectation of any permanent work restriction that:
(I) Prevents the worker from
returning to the job held at the time of injury; and
(II) Is caused in any part
by an accepted new or omitted condition or a direct medical sequela of an accepted
new or omitted condition.
(E) In aggravation claims.
In an aggravation claim, the statement must clearly indicate the following:
(i) There is no reasonable
expectation of any permanent impairment caused in any part by an accepted worsened
condition or a direct medical sequela of an accepted worsened condition; and
(ii) There is no reasonable
expectation of any permanent work restriction that:
(I) Prevents the worker from
returning to the job held at the time of injury; and
(II) Is caused in any part
by an accepted worsened condition or a direct medical sequela of an accepted worsened
condition.
(F) In occupational disease
claims. In an occupational disease claim, the statement must clearly indicate the
following:
(i) There is no reasonable
expectation of any permanent impairment caused in any part by an accepted occupational
disease or a direct medical sequela of an accepted occupational disease; and
(ii) There is no reasonable
expectation of any permanent work restriction that:
(I) Prevents the worker from
returning to the job held at the time of injury; and
(II) Is caused in any part
by an accepted occupational disease or a direct medical sequela of an accepted occupational
disease.
(b) Qualifying closing reports.
A closing medical examination and report are required if there is a reasonable expectation
of permanent disability. A closing report is sufficient if it meets all of the following
requirements:
(A) Qualified providers.
A type A attending physician or a chiropractic physician serving as the attending
physician must provide or concur with the closing report.
(B) Release to regular work.
If the worker has no permanent work restriction, the closing report must include
a statement indicating that:
(i) The worker has no permanent
work restriction; or
(ii) The worker is released,
without restriction, to the job held at the time of injury.
(C) In initial injury claims.
In an initial injury claim, the closing report must include detailed documentation
of all measurements, findings, and limitations regarding:
(i) Any permanent impairment
caused in any part by an accepted condition, a direct medical sequela of an accepted
condition, or a condition directly resulting from the work injury; and
(ii) Any permanent work restriction
that:
(I) Prevents the worker from
returning to the job held at the time of injury; and
(II) Is caused in any part
by an accepted condition, a direct medical sequela of an accepted condition, or
a condition directly resulting from the work injury.
(D) In new or omitted condition
claims. In a new or omitted condition claim, the closing report must include detailed
documentation of all measurements, findings, and limitations regarding:
(i) Any permanent impairment
caused in any part by an accepted new or omitted condition or a direct medical sequela
of an accepted new or omitted condition; and
(ii) Any permanent work restriction
that:
(I) Prevents the worker from
returning to the job held at the time of injury; and
(II) Is caused in any part
by an accepted new or omitted condition or a direct medical sequela of an accepted
new or omitted condition.
(E) In aggravation claims.
In an aggravation claim, the closing report must include detailed documentation
of all measurements, findings, and limitations regarding:
(i) Any permanent impairment
caused in any part by an accepted worsened condition or a direct medical sequela
of an accepted worsened condition; and
(ii) Any permanent work restriction
that:
(I) Prevents the worker from
returning to the job held at the time of injury; and
(II) Is caused in any part
by an accepted worsened condition or a direct medical sequela of an accepted worsened
condition.
(F) In occupational disease
claims. In an occupational disease claim, the closing report must include detailed
documentation of all measurements, findings, and limitations regarding:
(i) Any permanent impairment
caused in any part by an accepted occupational disease or a direct medical sequela
of an accepted occupational disease; and
(ii) Any permanent work restriction
that:
(I) Prevents the worker from
returning to the job held at the time of injury; and
(II) Is caused in any part
by an accepted occupational disease or a direct medical sequela of an accepted occupational
disease.
(c) Additional documentation.
Unless there is clear and convincing evidence that an attending physician or authorized
nurse practitioner has released the worker to the job held at the time of injury
(for dates of injury on or after January 1, 2006) or that the worker has returned
to the job held at the time of injury, all of the following is required:
(A) An accurate description
of the physical requirements of the worker’s job held at the time of injury,
which has been provided by certified mail to the worker and the worker’s legal
representative, if any, either before closing the claim or at the time the claim
is closed;
(B) The worker’s wage
established consistent with OAR 436-060;
(C) The worker’s date
of birth;
(D) Except as provided in
OAR 436-030-0015(4)(d), the worker’s work history for the period beginning
five years before the date of injury to the mailing date of the Notice of Closure,
including tasks performed or level of SVP, and physical demands; and
(E) The worker’s level
of formal education.
(3) When determining disability
and issuing the Notice of Closure, the insurer must apply all statutes and rules
consistent with their provisions, particularly as they relate to major contributing
cause denials, worker’s failure to seek treatment, worker’s failure
to attend a mandatory examination, medically stationary status, temporary disability,
permanent partial and total disability, review of permanent partial and total disability.
(4) When issuing a Notice
of Closure, the insurer must prepare and attach a summary worksheet, “Notice
of Closure Worksheet,” Form 2807, as described by bulletin of the director.
(5) The “Notice of
Closure,” Form 1644, is effective the date it is mailed to the worker and
to the worker’s attorney if the worker is represented, or to the worker’s
estate if the worker is deceased, regardless of the date on the Notice itself.
(6) The notice must be in
the form and format prescribed by the director in these rules and include only the
following:
(a) The worker’s name,
address, and claim identification information;
(b) The appropriate dollar
value of any individual scheduled or unscheduled permanent disability based on the
value per degree for injuries occurring before January 1, 2005 or, for injuries
occurring on or after January 1, 2005, the appropriate dollar value of any “whole
person” permanent disability, including impairment and work disability as
determined appropriate under OAR 436-035;
(c) The body part(s) awarded
disability, coded to the table of body part codes as prescribed by the director;
(d) The percentage of loss
of the specific body part(s), including either the number of degrees that loss represents
as appropriate for injuries occurring before January 1, 2005, or the percentage
of the whole person the worker’s loss represents as appropriate for injuries
occurring on or after January 1, 2005;
(e) If there is no permanent
disability award for this Notice of Closure, a statement to that effect;
(f) The duration of temporary
total and temporary partial disability compensation;
(g) The date the Notice of
Closure was mailed;
(h) The medically stationary
date or the date the claim statutorily qualifies for closure under OAR 436-030-0035
or 436-030-0034;
(i) The date the worker’s
aggravation rights end;
(j) The appeal rights of
the worker and any beneficiaries;
(k) A statement that the
worker has the right to consult with the Ombudsman for Injured Workers;
(l) For claims with dates
of injury before January 1, 2005, the rate in dollars per degree at which permanent
disability, if any, will be paid based on date of injury as identified in Bulletin
111;
(m) For claims with dates
of injury on or after January 1, 2005, the state’s average weekly wage applicable
to the worker’s date of injury;
(n) The worker’s return
to work status;
(o) A general statement that
the insurer has the authority to recover an overpayment;
(p) A statement that the
worker has the right to be represented by an attorney; and
(q) A statement that the
worker has the right to request a vocational eligibility evaluation under ORS 656.340.
(7) The Notice of Closure
(Form 1644) must be accompanied by the following:
(a) The brochure “Understanding
Claim Closure and Your Rights”;
(b) A copy of summary worksheet
Form 2807 containing information and findings which result in the data appearing
on the Notice of Closure;
(c) An accurate description
of the physical requirements of the worker’s job held at the time of injury
unless it is not required under section (2)(a) of this rule or it was previously
provided under section (2)(b)(A) of this rule;
(d) The Updated Notice of
Acceptance at Closure which clearly identifies all accepted conditions in the claim
and specifies those which have been denied and are on appeal or which were the basis
for this opening of the claim; and
(e) A cover letter that:
(A) Specifically explains
why the claim has been closed (e.g., expiration of a period of suspension without
the worker resolving the problems identified, an attending physician stating the
worker is medically stationary, worker failure to treat without attending physician
authorization or establishing good cause for not treating, etc.);
(B) Lists and describes enclosed
documents; and
(C) Notifies the worker about
the end of temporary disability benefits, if any, and the anticipated start of permanent
disability benefits, if any.
(8) A copy of the Notice
of Closure must be mailed to each of the following persons at the same time, with
each copy clearly identifying the intended recipient:
(a) The worker;
(b) The employer;
(c) The director; and
(d) The worker’s attorney,
if the worker is represented.
(9) If the worker is deceased
at the time the Notice of Closure is issued:
(a) The worker’s copy
of the notice must be addressed to the estate of the worker and mailed to the worker’s
last known address.
(b) Copies of the notice
may be mailed to any known or potential beneficiaries to the worker’s estate.
If a copy of the notice is mailed to a beneficiary, it must be mailed by both regular
mail and certified mail return receipt requested.
(10) The worker’s copy
of the Notice of Closure must be mailed by both regular mail and certified mail
return receipt requested.
(11) An insurer may use electronically
produced Notice of Closure forms if consistent with the form and format prescribed
by the director.
(12) Insurers may allow adjustments
of benefits awarded to the worker under the documentation requirements of OAR 436-060-0170
for the following purposes:
(a) To recover payments for
permanent disability which were made prematurely;
(b) To recover overpayments
for temporary disability; and
(c) To recover overpayments
for other than temporary disability such as prepaid travel expenses where travel
was not completed, prescription reimbursements, or other benefits payable under
ORS 656.001 to 656.794.
(13) The insurer may allow
overpayments made on a claim with the same insurer to be deducted from compensation
to which the worker is entitled but has not yet been paid.
(14) Under ORS 656.268(10),
if, after claim closure, the worker becomes enrolled and actively engaged in an
approved training program under OAR 436-120, the insurer must again close the claim
consistent with the following:
(a) The claim must be closed
when the worker ceases to be enrolled and actively engaged in the training and:
(A) The worker is medically
stationary;
(B) The worker’s accepted
injury is no longer the major contributing cause of the worker’s combined
or consequential condition or conditions; or
(C) The claim otherwise qualifies
for closure under OAR 436-030-0034.
(b) If the worker is medically
stationary, there must be a current (within three months before closure) determination
of medically stationary status.
(c) For claims with dates
of injury on or after January 1, 2005, permanent disability must be redetermined
for work disability only. For claims with dates of injury before January 1, 2005,
permanent disability must be redetermined for unscheduled disability only.
(d) Except for claims closed
under ORS 656.268(1)(c), the insurer must have sufficient information to redetermine
work disability or unscheduled disability. The requirements in section (2) of this
rule regarding sufficient information apply only as necessary for the redetermination,
as follows:
(A) For claims with dates
of injury on or after January 1, 2005, the insurer must have sufficient information
to determine work disability under OAR 436-035-0012. An evaluation of the adaptability
factor of work disability under OAR 436-035-0012(7) through (13) must be based on
a current (within three months before closure) medical determination of the worker’s
residual functional capacity.
(B) For claims with dates
of injury before January 1, 2005, the insurer must have sufficient information to
determine unscheduled disability under OAR 436-035-0008(2). An evaluation of unscheduled
disability must be based on a current (within three months before closure) medical
determination.
(15) When, after a claim
is closed, the insurer changes or is ordered to change the worker’s weekly
wage upon which calculation of the work disability portion of a permanent disability
award may be based, the insurer must notify the parties and the division of the
change and the effect of the change on any permanent disability award. For purposes
of this rule, the insurer must complete Form 1502 consistent with the instructions
of the director and distribute it within 14 days of the change.
Stat. Auth.: ORS 656.268, 656.726
Stats. Implemented: ORS 656.210,
656.212, 656.214, 656.268 (2015 OL Ch. 144), 656.726, 656.745
Hist.: WCD 4-1980(Admin),
f. 3-20-80, ef. 4-1-80; WCD 5-1981(Admin), f. 12-30-81, ef. 1-1-82; Renumbered from
436-065-0006, 5-1-85; WCD 13-1987, f. 12-18-87, ef. 1-1-88; WCD 5-1990(Temp), f.
6-18-90, cert. ef. 7-1-90; WCD 31-1990, f. 12-10-90, cert. ef. 12-26-90; WCD 5-1992,
f. 1-17-92, cert. ef. 2-20-92; WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95; WCD 8-1996,
f. 2-14-96, cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98; WCD
9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04;
WCD 9-2004, f. 10-26-04, cert. ef. 1-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06;
WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-100;
WCD 1-2015, f. 1-29-15, cert. ef. 3-1-15; WCD 4-2015(Temp), f. & cert. ef. 5-21-15
thru 11-16-15; WCD 6-2015, f. 10-12-15, cert. ef. 11-17-15
436-030-0023
Correcting and Rescinding Notices of Closure
(1) An insurer may rescind or correct
its Notice of Closure prior to the expiration of the appeal period for that Notice
and prior to or on the same day that the director receives a request for reconsideration
of the Notice of Closure.
(2) The form, format, and
completion of the Correcting and Rescinding Notices of Closure are the same as those
of the Notice of Closure except that, to correct a Notice of Closure, a Form 1644c
must be used and, to rescind a Notice of Closure, a Form 1644r must be used. An
insurer may rescind and reissue a Notice of Closure by using a Form 1644 when such
actions can be accomplished at the same time, the claim remains closed, and other
provisions of these rules are met.
(3) The “Date of closure
(mailing date)” on the Correcting or Rescinding Notice of Closure must be
the date the correction or rescission is mailed. The mailing date of the Notice
of Closure being rescinded or corrected must be identified within the body of the
Correcting or Rescinding Notice of Closure.
(4) The worker’s copy
of the Correcting and Rescinding Notices of Closure must be mailed by both regular
mail and certified mail return receipt requested, consistent with OAR 436-030-0020(8)
and (10).
(5) Rescinding Notices of
Closure, Form 1644r, are used to rescind the Notice of Closure and return the claim
to open status. Examples of appropriate uses of Rescinding Notices of Closure include,
but are not limited to:
(a) The worker was not medically
stationary at the time the Notice of Closure was issued;
(b) The closure was otherwise
premature;
(c) To grant PPD when the
Notice of Closure being rescinded granted TTD only.
(6) The Rescinding Notice
of Closure must:
(a) Advise the worker that
the claim remains open and no aggravation rights end date has been established,
if it is rescinding the first closure of the claim;
(b) Initiate an appeal period
as provided in OAR 436-030-0145(1) during which any request for reconsideration
must be received by the director;
(c) Explain the reason for
the action being taken; and
(d) Be distributed and mailed
to the parties consistent with these rules.
(7) When a Notice of Closure
granting only time loss has been issued, if the insurer determines the worker’s
medically stationary status is unchanged and the worker is entitled to an award
of permanent disability, the insurer must use a Notice of Closure, Form 1644, to
rescind and reissue the closure. In such cases, the Notice of Closure must:
(a) Contain all required
information consistent with these rules;
(b) Bear the heading “Rescind
and Reissue;
(c) Explain the reason the
action is being taken;
(d) Identify the permanent
disability award being granted consistent with OAR 436-030 and 436-035;
(e) Establish a new appeal
period as provided in OAR 436-030-0145(1);
(f) Set a new aggravation
rights end date if the Notice of Closure being rescinded is the first closure of
the claim; and
(g) Be distributed and mailed
to the parties consistent with these rules.
(8) Correcting Notices of
Closure, Form 1644c, are used to correct errors or omissions and do not change the
closure status or the action taken by the Notice of Closure being corrected. Correcting
Notices of Closure must not be used to grant permanent disability in claims where
the Notice of Closure being corrected did not include an award of permanent disability.
Examples of appropriate uses of Correcting Notices of Closure include, but are not
limited to:
(a) Permanent disability
award computation errors (dollars, degrees, percentages);
(b) An incorrect “mailing
date”;
(c) Return-to-work status
errors or omissions;
(d) Incorrect or incomplete
statement of temporary disability.
(9) A Correcting Notice of
Closure must:
(a) Be issued when the director
has instructed the insurer to do so because the Notice of Closure did not contain
the information required by OAR 436-030-0020(4);
(b) Not be used to add a
new condition to the claim closure, rate a new condition not considered in the Notice
of Closure being corrected, or rescind a Notice of Closure;
(c) State in the body of
the correcting notice only the information being corrected on the Notice of Closure
and the basis for the correction;
(d) Not change the appeal
period for the Notice of Closure being corrected; and
(e) Initiate a new appeal
period as provided in OAR 436-030-0145(1) during which any request for reconsideration
must be received, but only for those items being corrected.
[Forms: Forms referenced are available
from the agency.]
Stat. Auth.: ORS 656.268,
ORS 656.726
Stats. Implemented: ORS 656.210,
656.212, 656.214, 656.268 (2015 OL Ch. 144), 656.270, 656.726, 656.745
Hist.: WCD 2-2004, f. 2-19-04
cert. ef. 2-29-04; WCD 9-2004, f. 10-26-04, cert. ef. 1-1-05; WCD 8-2005, f. 12-6-05,
cert. ef. 1-1-06; WCD 4-2015(Temp), f. & cert. ef. 5-21-15 thru 11-16-15; WCD
6-2015, f. 10-12-15, cert. ef. 11-17-15
436-030-0034
Administrative Claim Closure
(1) The insurer must close a claim when
the worker is not medically stationary and the worker fails to seek treatment for
more than 30 days without the instruction or approval of the attending physician
or authorized nurse practitioner and for reasons within the worker’s control.
In order to close a claim under this section, the insurer must:
(a) Wait for the 30-day lack
of treatment period to expire or any additional time period recommended by the attending
physician or authorized nurse practitioner before sending the worker written notification
by certified mail informing the worker of the following:
(A) The worker’s responsibility
to seek medical treatment in a timely manner;
(B) The consequences for
failing to seek treatment in a timely manner which include, but are not limited
to, claim closure and possible loss or reduction of a disability award; and
(C) The claim will be closed
unless the worker establishes within 14 days that:
(i) Treatment has resumed
by attending an existing appointment or scheduling a new appointment; or
(ii) The reasons for not
treating were outside the worker’s control.
(b) Wait the 14 day period
given in the notification letter to allow the worker to provide evidence that the
lack of treatment was either authorized by the attending physician or authorized
nurse practitioner or beyond the worker’s control.
(c) Determine whether claim
closure is appropriate based on the information received.
(d) Rate all permanent disability
apparent in the record (e.g., irreversible findings) at the time of claim closure.
(e) Use 30 days from the
last treatment provided or any additional time period authorized by the attending
physician or authorized nurse practitioner as the date the claim qualifies for closure
on the Notice of Closure.
(2) Regardless of whether
the worker is medically stationary, the insurer must close a claim when a worker
has not sought treatment for more than 30 days with a health care provider authorized
under ORS 656.005 and 656.245 (e.g., a worker enrolled in a managed care organization
(MCO) who treats with a physician outside the MCO is not treating with an authorized
health care provider). To close a claim under this section, the insurer must follow
the requirements in section (1) of this rule and inform the worker that the reason
for the impending closure is because the worker failed to treat with an authorized
health care provider.
(3) A claim must be closed
when the worker fails to attend a mandatory closing examination for reasons within
the worker’s control. To close a claim under this section, the insurer must:
(a) Inform the worker in
writing sent by certified mail, at least 10 days prior to the mandatory closing
examination of:
(A) The date, time, and place
of the examination;
(B) The worker’s responsibility
to attend the examination;
(C) The consequences for
failing to attend, which include, but are not limited to, claim closure and the
possible loss or reduction of a disability award; and
(D) The worker’s responsibility
to provide information to the insurer regarding why the examination was not attended,
if the reason was beyond the worker’s control.
(b) Wait 7 days from the
date of the missed exam to allow the worker to demonstrate good cause for failing
to attend before closing the claim.
(c) Use the date of the failed
mandatory closing examination as the date the claim qualifies for closure on the
Notice of Closure.
(4) The insurer may close
the claim under section (1) of this rule, regardless of whether the worker is medically
stationary, when a closing exam has been scheduled between a worker and attending
physician directly and the worker fails to attend the examination.
(5) A claim may be closed
when the worker is not medically stationary and a major contributing cause denial
has been issued on an accepted combined condition.
(a) The major contributing
cause denial must inform the worker that claim closure may result from the issuance
of the denial and provide all other information required by these rules.
(b) When a major contributing
cause denial has been issued following the acceptance of a combined condition, the
date the claim qualifies for closure is the date the insurer receives sufficient
information to determine the extent of any permanent disability under OAR 436-030-0020(2)
or the date of the denial, whichever is later.
(6) When two or more of the
above events occur concurrently, the earliest date the claim qualifies for closure
is used to close the claim.
(7) The attending physician
or authorized nurse practitioner must be copied on all notification and denial letters
applicable to this rule.
(8) When the director has
issued a suspension order under OAR 436-060-0095 or 436-060-0105, the date the claim
qualifies for closure is the date of the suspension order.
Stat. Auth.: ORS 656.262, 656.268, 656.726
Stats. Implemented: ORS 656.268,
656.726
Hist.: WCD 5-1990(Temp),
f. 6-18-90, cert. ef. 7-1-90; WCD 31-1990, f. 12-10-90, cert. ef. 12-26-90; WCD
5-1992, f. 1-17-92, cert. ef. 2-20-92; WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95;
WCD 8-1996, f. 2-14-96, cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98;
WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 14-2003(Temp), f. 12-15-03, cert.
ef. 1-1-04 thru 6-28-03; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 9-2004, f.
10-26-04, cert. ef. 1-1-05; WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08; WCD 3-2009,
f. 12-1-09, cert. ef. 1-1-10; WCD 1-2015, f. 1-29-15, cert. ef. 3-1-15
436-030-0035
Determining Medically Stationary Status
(1) A worker is medically stationary
in the following circumstances:
(a) In initial injury claims.
In an initial injury claim, a worker is medically stationary when the attending
physician, authorized nurse practitioner, or a preponderance of medical opinion
declares that all accepted conditions, direct medical sequela of accepted conditions,
and conditions directly resulting from the work injury are either “medically
stationary” or “medically stable” or when the provider uses other
language meaning the same thing.
(b) In new or omitted condition
claims. In a new or omitted condition claim, a worker is medically stationary when
the attending physician, authorized nurse practitioner, or a preponderance of medical
opinion declares that all accepted new or omitted conditions and direct medical
sequela of accepted new or omitted conditions are either “medically stationary”
or “medically stable” or when the provider uses other language meaning
the same thing.
(c) In aggravation claims.
In an aggravation claim, a worker is medically stationary when the attending physician,
authorized nurse practitioner, or a preponderance of medical opinion declares that
all accepted worsened conditions and direct medical sequela of accepted worsened
conditions are either “medically stationary” or “medically stable”
or when the provider uses other language meaning the same thing.
(d) In occupational disease
claims. In an occupational disease claim, a worker is medically stationary when
the attending physician, authorized nurse practitioner, or a preponderance of medical
opinion declares that all accepted occupational diseases and direct medical sequela
of accepted occupational diseases are either “medically stationary”
or “medically stable” or when the provider uses other language meaning
the same thing.
(2) When there is a conflict
in the medical opinions as to whether a worker is medically stationary, more weight
is given to medical opinions that are based on the most accurate history, on the
most objective findings, on sound medical principles, and clear and concise reasoning.
(3) Where there is not a
preponderance of medical opinion stating a worker is or is not medically stationary,
deference will generally be given to the opinion of the attending physician. However,
in cases where expert analysis is important, deference is given to the opinion of
the physician with the greatest expertise in, and understanding of, the worker’s
medical condition.
(4) When there is a conflict
as to the date upon which a worker became medically stationary, the following conditions
govern the determination of the medically stationary date. The date a worker is
medically stationary is the earliest date that a preponderance is established under
sections (1) and (2) of this rule. The date of the examination, not the date of
the report, controls the medically stationary date.
(5) The insurer must request
the attending physician, as defined in ORS 656.005(12)(b)(A), to concur or comment
when the attending physician arranges or refers the worker for a closing examination
with another physician to determine the extent of impairment or when the insurer
refers a worker for an independent medical examination. A concurrence with another
physician’s report is an agreement in every particular, including the medically
stationary impression and date, unless the physician expressly states to the contrary
and explains the reasons for disagreement. Concurrence cannot be presumed in the
absence of the attending physician’s response.
(6) A worker is medically
stationary on the date of the examination when so specified by a physician. When
a specific date is not indicated, a worker is presumed medically stationary on the
date of the last examination, prior to the date of the medically stationary opinion.
Physician projected medically stationary dates cannot be used to establish a medically
stationary date.
(7) If the worker is incarcerated
or confined in some other manner and unable to freely seek medical treatment, the
insurer must arrange for medical examinations to be completed at the facility where
the worker is located or at some other location accessible to the worker.
(8) If a worker dies and
the attending physician has not established a medically stationary date, for purposes
of claim closure, the medically stationary date is the date of death.
Stat. Auth.: ORS 656.268, 656.726
Stats. Implemented: ORS 656.268
Hist.: WCD 5-1990(Temp),
f. 6-18-90, cert. ef. 7-1-90; WCD 31-1990, f. 12-10-90, cert. ef. 12-26-90; WCD
5-1992, f. 1-17-92, cert. ef. 2-20-92; WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95;
WCD 8-1996, f. 2-14-96, cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98;
WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 14-2003(Temp), f. 12-15-03, cert.
ef. 1-1-04 thru 6-28-03; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 9-2004, f.
10-26-04, cert. ef. 1-1-05; WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08; WCD 3-2009,
f. 12-1-09, cert. ef. 1-1-10; WCD 1-2015, f. 1-29-15, cert. ef. 3-1-15
436-030-0036
Determining Temporary Disability
(1) Temporary disability must
be determined under ORS chapter 656, OAR 436-060, and this rule, less time worked.
Beginning and ending dates of each authorized period of temporary total disability
and temporary partial disability must be noted on the Notice of Closure, as well
as the statements “Less time worked” and “Temporary disability
was determined in accordance with the law.”
(2) Except as provided in section
(3) of this rule and ORS 656.268(10), a worker is not entitled to any award of temporary
disability for any period of time in which the worker is medically stationary.
(3) Awards of temporary disability
must include the day the worker is medically stationary or the date the claim otherwise
qualifies for closure, unless temporary disability is not authorized for another
reason at that time.
Stat. Auth.: ORS 656.268, 656.726

Stats. Implemented: ORS 656.005,
656.160, 656.210, 656.212, 656.236, 656.245, 656.262, 656.268, 656.726,

Hist.: WCD 5-1990(Temp), f. 6-18-90,
cert. ef. 7-1-90; WCD 31-1990, f. 12-10-90, cert. ef. 12-26-90; WCD 5-1992, f. 1-17-92,
cert. ef. 2-20-92; WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95; WCD 8-1996, f. 2-14-96,
cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98; WCD 9-2000, f. 11-13-00,
cert. ef. 1-1-01; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 9-2004, f. 10-26-04,
cert. ef. 1-1-05; WCD 5-2011, f. 11-18-11, cert. ef. 1-1-12
436-030-0038
Permanent Partial Disability
The standards developed under ORS 656.726(4) and contained in OAR 436-035 must be applied when evaluating a worker's permanent partial disability.
Stat. Auth.: ORS 656.268, 656.726, OL Ch. 332 1995 & Ch. 313 1999

Stats. Implemented: ORS 656.214, 656.268, 656.726, OL Ch. 332 1995 & Ch. 313 1999

Hist.: WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98; WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04
436-030-0045 [Renumbered to 436-060-0018]
436-030-0055
Determining Permanent Total Disability
(1) A worker is permanently and totally disabled if permanently incapacitated from regularly performing work in a suitable and gainful occupation. For the purpose of this rule and OAR 436-030-0065:
(a) "Incapacitated from regularly performing work" means that the worker does not have the necessary physical and mental capacity and the work skills to perform the essential functions of the job. Employment in a sheltered workshop is not considered regular employment unless this was the worker's job at the time of injury.
(b) "Suitable occupation" means those occupations that exist in a theoretically normal labor market, within a reasonable geographic distance, for which a worker has the training or experience, and abilities to realistically perform the job duties, with or without rehabilitation.
(c) "Gainful occupation" means those types of general occupations that provide wages that:
(A) Meet the requirements in ORS 656.206(11)(a) for workers with a date of injury prior to January 1, 2006; or
(B) Meet the requirements in ORS 656.206(11)(b) for workers with a date of injury on or after January 1, 2006.
(d) "Work skills" means those skills acquired through experience or training that are necessary to gain and adequately perform skilled, semi-skilled or unskilled occupations. Unskilled types of general occupations require no specific skills that would be acquired through experience or training to be able to gain and adequately perform the unskilled occupation. Every worker has the necessary work skills to gain and adequately perform unskilled types of general occupations with a reasonable period of orientation.
(e) A "reasonable geographic distance" means either of the following unless the worker is medically precluded from commuting:
(A) The area within a 50-mile radius of the worker's place of residence at the time of:
(i) The original injury;
(ii) The worker's last gainful employment;
(iii) Insurer's determination; or
(iv) Reconsideration by the director.
(B) The area in which a reasonable and prudent uninjured and unemployed person, possessing the same physical capacities, mental capacities, work skills, and financial obligations as the worker does at the time of his rating of disability, would go to seek work.
(f) "Types of general occupations" means groups of jobs which actually exist in a normal labor market, and share similar vocational purpose, skills, duties, physical circumstances, goals, and mental aptitudes. It does not refer to any specific job or place of employment for which a job or job opening may exist in the future.
(g) "Normal labor market" means a labor market that is undistorted by such factors as local business booms and slumps or extremes of the normal cycle of economic activity, or technology trends in the long-term labor market.
(h) "Withdrawn from the workforce" means a worker who is not employed, is not willing to be employed, or although willing to be employed is not making reasonable efforts to find employment, unless such efforts would be futile. The receipt of retirement benefits does not establish a worker has withdrawn from the workforce.
(2) All disability which existed before the injury must be included in determining permanent total disability.
(3) In order for a worker to be determined permanently and totally disabled, a worker must:
(a) Prove permanent and total disability;
(b) Be willing to seek regular and gainful employment;
(c) Make reasonable effort to find work at a suitable and gainful occupation or actively participate in a vocational assistance program, unless medical or vocational findings, including the residuals of the compensable injury, make such efforts futile; and
(d) Not have withdrawn from the workforce during the period for which benefits are being sought.
(4) A worker retaining some residual functional capacity and not medically permanently and totally disabled must prove:
(a) The worker has not withdrawn from the workforce for the period for which benefits are being sought;
(b) Inability to regularly perform work at a gainful and suitable occupation; and
(c) The futility of seeking work if the worker has not made reasonable work search efforts by competent written vocational testimony. Competent written vocational testimony is that which is available at the time of closure or reconsideration and comes from the opinions of persons fully certified by the State of Oregon to render vocational services.
(5) Notices of Closure and Orders on Reconsideration which grant permanent total disability must notify the worker that:
(a) The claim must be reexamined by the insurer at least once every two years, and may be reviewed more often if the insurer chooses.
(b) The insurer may require the worker to provide a sworn statement of the worker's gross annual income for the preceding year. The worker must make the statement on a form provided by the insurer in accordance with the requirements under section (6) of this rule.
(6) If asked to provide a statement under subsection (5)(b) of this rule, the worker is allowed 30 days to respond. Such statements are subject to the following:
(a) If the worker fails to provide the requested statement, the director may suspend the worker's permanent total disability benefits. Benefits must be resumed when the statement is provided. Benefits not paid for the period the statement was withheld must be recoverable for no more than one year from the date of suspension.
(b) If the worker provides a report which is false, incomplete, or inaccurate, the insurer must investigate. The investigation may result in suspension of permanent total disability benefits.
Stat. Auth.: ORS 656.268, 656.726, OL Ch. 332 1995 & Ch. 313 1999

Stats. Implemented: ORS 656.206, 656.268, 656.726, OL Ch. 332 1995, Ch. 313 1999

Hist.: WCD 13-1987, f. 12-18-87, ef. 1-1-88; WCD 31-1990, f. 12-10-90, cert. ef. 12-26-90; WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95; WCD 8-1996, f. 2-14-96, cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98; WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 10-2001, f. 11-16-01, cert. ef. 1-1-02; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 9-2004, f. 10-26-04, cert. ef. 1-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06
436-030-0065
Review of Permanent Total Disability Awards
(1) The insurer must reexamine each
permanent total disability claim at least once every two years or when requested
to do so by the director to determine if the worker has materially improved, either
medically or vocationally, and is capable of regularly performing work at a suitable
and gainful occupation. The insurer must notify the worker and the worker’s
attorney if the worker is represented whenever the insurer intends to reexamine
the worker’s permanent total disability status. Workers who fail to cooperate
with the reexamination may have benefits suspended under OAR 436-060-0095.
(2) A worker receiving permanent
total disability benefits must submit to a vocational evaluation, if requested by
the director, insurer, or self-insured employer under ORS 656.206(8).
(3) Any decision by the insurer
to reduce permanent total disability must be communicated in writing to the worker,
and to the worker’s attorney if the worker is represented, and accompanied
by documentation supporting the insurer’s decision. That documentation must
include: medical reports, including sufficient information necessary to determine
the extent of permanent partial disability, vocational and investigation reports
(including visual records, if available) that demonstrate the worker’s ability
to regularly perform a suitable and gainful occupation, and all other applicable
evidence.
(4) An award of permanent
total disability for scheduled injuries before July 1, 1975, may be considered for
reduction only when the insurer has evidence that the medical condition has improved.
(5) Except for section (4)
of this rule, an award of permanent total disability may be reduced only when the
insurer has a preponderance of evidence that the worker has materially improved,
either medically or vocationally, and is regularly performing work at a suitable
and gainful occupation or is currently capable of doing so. Preexisting disability
must be included in redetermination of the worker’s permanent total disability
status.
(6) When the insurer reduces
a permanent total disability claim, the insurer must, based upon sufficient information
to determine the extent of permanent partial disability, issue a Notice of Closure
that reduces the permanent total disability and awards permanent partial disability,
if any.
(7) Notices of Closure reducing
permanent total disability are appealable to the Hearings Division.
(8) If a worker is receiving
permanent total disability benefits and sustains a new compensable injury, the worker
is eligible for additional benefits for the new compensable injury, except that
the worker’s eligibility for compensation for the new compensable injury is
limited to medical benefits under ORS 656.245 and permanent partial disability benefits
for impairment, as determined in the manner set forth in ORS 656.214(2).
Stat. Auth.: ORS 656.268, 656.726
Stats. Implemented: ORS 656.206,
656.214, 656.268, 656.283, 656.319, 656.325, 656.331, 656.726
Hist.: WCD 13-1987, f. 12-18-87,
ef. 1-1-88; WCD 31-1990, f. 12-10-90, cert. ef. 12-26-90; WCD 5-1992, f. 1-17-92,
cert. ef. 2-20-92; WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95; WCD 8-1996, f. 2-14-96,
cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98; WCD 9-2000, f. 11-13-00,
cert. ef. 1-1-01; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 8-2005, f. 12-6-05,
cert. ef. 1-1-06; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; WCD 1-2015, f. 1-29-15,
cert. ef. 3-1-15
436-030-0066
Review of Prior Permanent Partial Disability Awards
For claims having a date of injury prior to January 1, 2005 which involve unscheduled body parts, areas, or systems as defined by OAR 436-035-0005, and all claims with dates of injury on or after January 1, 2005, an award of permanent partial disability is subject to periodic examination and adjustment under ORS 656.268 and 656.325 and in accordance with the following conditions:
(1) Requests for review and adjustment must be made in writing to the Workers' Compensation Division.
(2) The party requesting review of permanent disability must send a copy of the request to all involved parties at the time the request is made. The worker may submit any information in rebuttal.
(3) All pertinent medical, vocational, and other applicable evidence must be submitted with the request, including sufficient information to determine the extent of permanent partial disability. The request must state the basis for the request and provide supporting evidence. If the director finds that the worker has failed to accept treatment as provided in this rule, the director will make any necessary adjustments allowed under OAR 436-035.
(4) The basis for the request for adjustment in the permanent disability award must be asserted to be failure of the worker to make a reasonable effort to reduce the disability.
Stat. Auth.: ORS 656.268, 656.726, OL Ch. 332 1995 & Ch. 313 1999

Stats. Implemented: ORS 656.325, 656.331, 656.268, 656.726, OL Ch. 332 1995 & Ch. 313 1999

Hist.: WCD 5-1990(Temp), f. 6-18-90, cert. ef. 7-1-90; WCD 31-1990, f. 12-10-90, cert. ef. 12-26-90; WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95; WCD 8-1996, f. 2-14-96, cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98; WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 9-2004, f. 10-26-04, cert. ef. 1-1-05
436-030-0115
Reconsideration of Notices of Closure
(1) A worker, insurer, or beneficiary
may request reconsideration of a Notice of Closure as provided in ORS 656.268.
(2) Under ORS 656.218(4),
a worker’s estate may request reconsideration of a Notice of Closure if the
worker dies before filing a request and there are no persons entitled to receive
death benefits under ORS 656.204.
(3) A request for reconsideration
may be made by mailing, phoning, or delivering the request to the director within
the statutory appeal period as defined in OAR 436-030-0005 and 436-030-0145(1).
The reconsideration proceeding begins as described in OAR 436-030-0145(2).
(4) For the purpose of these
rules, “reconsideration proceeding” means the procedure established
to reconsider a Notice of Closure and does not include personal appearances by any
of the parties to the claim or their representatives, unless requested by the director.
All information to correct or clarify the record and any medical evidence regarding
the worker’s condition as of the time of claim closure that should have been
but was not submitted by the attending physician or authorized nurse practitioner
at the time of claim closure and all supporting documentation must be presented
during the reconsideration proceeding. When the reconsideration proceeding is postponed
because the worker’s condition is not medically stationary under OAR 436-030-0165(10),
medical evidence submitted may address the worker’s condition after claim
closure as long as the evidence satisfies the conditions of OAR 436-030-0145(3).
(5) All parties have an opportunity
to submit documents to the record regarding the worker’s status at the time
of claim closure. Other factual information and written argument may be submitted
for incorporation into the record under ORS 656.268(6) within the time frames outlined
in OAR 436-030-0145. Such information may include, but is not limited to, responses
to the documentation and written arguments, written statements, and sworn affidavits
from the parties.
(6) The worker may submit
a deposition to the reconsideration record subject to ORS 656.268(6) and the following:
(a) The deposition must be
limited to the testimony and cross-examination of a worker about the worker’s
condition at the time of claim closure.
(b) The deposition must be
arranged by the worker and held during the reconsideration proceeding time frame
unless a good cause reason is established. If a good cause reason is established,
the time frame for holding the deposition may be extended but must not extend beyond
30 days from the date of the Order on Reconsideration. The deposition must be held
at a time and place that permits the insurer or self-insured employer the opportunity
to cross-examine the worker.
(c) The insurer or self-insured
employer must, within 30 days of receiving a bill for the deposition, pay the fee
of the court reporter, the costs for the original transcript and one copy for each
party, and the cost of necessary interpreter services. An original transcript of
the deposition must be sent to the department and each party must be sent a copy
of the transcript.
(d) If the transcript is
not completed and presented to the department prior to the deadline for issuing
an Order on Reconsideration, the Order on Reconsideration may not be postponed to
receive a deposition under this rule and the order will be issued based on the evidence
in the record. However, the transcript may be received as evidence at a hearing
for an appeal of the Order on Reconsideration.
(7) Only one reconsideration
proceeding may be completed on each Notice of Closure and the director will review
those issues raised by the parties and the requirements under ORS 656.268(1). Once
the reconsideration proceeding is initiated, issues must be raised and further evidence
submitted within the time frames allowed for processing the reconsideration request.
When the director requires additional information to complete the record, the reconsideration
proceeding may be postponed under ORS 656.268(6).
Stat. Auth.: ORS 656.726
Stats. Implemented: ORS 656.268
(2015 OL Ch. 144)
Hist.: WCD 12-1994, f. 11-18-94,
cert. ef. 1-1-95; WCD 11-1995(Temp), f. & cert. ef. 8-23-95; WCD 8-1996, f.
2-14-96, cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98; WCD 9-2000,
f. 11-13-00, cert. ef. 1-1-01; WCD 10-2001, f. 11-16-01, cert. ef. 1-1-02; WCD 14-2003(Temp),
f. 12-15-03, cert. ef. 1-1-04 thru 6-28-03; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04;
WCD 9-2004, f. 10-26-04, cert. ef. 1-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06;
WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10;
WCD 4-2015(Temp), f. & cert. ef. 5-21-15 thru 11-16-15; WCD 6-2015, f. 10-12-15,
cert. ef. 11-17-15
436-030-0125
Reconsideration Form and Format
A request for reconsideration may be
in the form and format the director provides by bulletin. A reconsideration request
should include at least the following:
(1) Worker’s name;
(2) Date of injury;
(3) Date of the closure being
appealed;
(4) Any specific issues regarding
the Notice of Closure;
(5) The name of the worker’s
attorney;
(6) The name of the insurer’s
attorney;
(7) If the request is made
by a beneficiary of the worker or the worker’s estate, the identity and name
of the requester, the name of the requester’s attorney, if any, and contact
information;
(8) Any special language
needs;
(9) Whether there is disagreement
with the specific impairment findings used to determine permanent disability at
the time of claim closure;
(10) Any information and
documentation deemed necessary to correct or clarify any part of the claim record
believed to be erroneous; and
(11) Any medical evidence
that should have been but was not submitted at the time of the claim closure including
clarification or correction of the medical record based on the examination(s) at,
before, or pertaining to claim closure.
Stat. Auth.: ORS 656.726
Stats. Implemented: ORS 656.268
(2015 OL Ch. 144)
Hist.: WCD 12-1994, f. 11-18-94,
cert. ef. 1-1-95; WCD 8-1996, f. 2-14-96, cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97,
cert. ef. 1-15-98; WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 14-2003(Temp),
f. 12-15-03, cert. ef. 1-1-04 thru 6-28-03; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04;
WCD 4-2015(Temp), f. & cert. ef. 5-21-15 thru 11-16-15; WCD 6-2015, f. 10-12-15,
cert. ef. 11-17-15
436-030-0135
Reconsideration Procedure
(1) Within 14 days from the date of
the director’s notice of the start of the reconsideration proceeding, the
insurer must provide, in chronological order by document date, all documents pertaining
to the claim including, but not limited to, the complete medical record and all
official action and notices on the claim, to:
(a) The director;
(b) The worker or the worker’s
attorney;
(c) The beneficiary or beneficiary’s
attorney, if the request was made by the beneficiary; and
(d) The estate or estate’s
attorney, if the request was made by the worker’s estate.
(2) The request for reconsideration
and all other information submitted to the director by any party during the reconsideration
process must be copied to all interested parties. Failure to comply with this requirement
may result in the information not being included as part of the record on reconsideration.
(3) The director may issue
an order rescinding a Notice of Closure if any of the following apply:
(a) The claim was not closed
as prescribed by rule.
(b) In a claim closed under
ORS 656.268(1)(a), the worker was not medically stationary at the time of claim
closure.
(c) In a claim closed under
ORS 656.268(1)(a) or 656.268(1)(b), the claim was closed without sufficient information
to determine the extent of permanent disability under OAR 436-030-0020(2).
(d) In a claim closed under
ORS 656.268(1)(c), the claim was not closed in strict compliance with OAR 436-030-0034.
(4) When a worker has requested
and cashed a lump sum payment, under ORS 656.230, of an award granted by a Notice
of Closure, the director will not consider the adequacy of that award in a reconsideration
proceeding.
(5) When a new condition
is accepted after a prior claim closure, and the newly accepted condition is subsequently
closed, the director and the parties may mutually agree to consolidate requests
for review of the closures into one reconsideration proceeding, provided the director
has jurisdiction and neither of the closures have become final by operation of law.
(6) The reconsideration order
may affirm, reduce, or increase the compensation awarded by the Notice of Closure.
(7) After the reconsideration
order has been issued and before the end of the 30-day appeal period for the order
on reconsideration, if a party discovers that additional documents were not provided
by the opposing party in accordance with this rule, the Order on Reconsideration
may be abated and withdrawn to give the party an opportunity to respond to the new
information.
Stat. Auth.: ORS 656.726
Stats. Implemented: ORS 656.268
(2015 OL Ch. 144)
Hist.: WCD 12-1994, f. 11-18-94,
cert. ef. 1-1-95; WCD 8-1996, f. 2-14-96, cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97,
cert. ef. 1-15-98; WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 14-2003(Temp),
f. 12-15-03, cert. ef. 1-1-04 thru 6-28-03; WCD 14-2003(Temp), f. 12-15-03, cert.
ef. 1-1-04 thru 6-28-03; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 9-2004, f.
10-26-04, cert. ef. 1-1-05; WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08; WCD 3-2009,
f. 12-1-09, cert. ef. 1-1-10; WCD 1-2015, f. 1-29-15, cert. ef. 3-1-15; WCD 4-2015(Temp),
f. & cert. ef. 5-21-15 thru 11-16-15; WCD 6-2015, f. 10-12-15, cert. ef. 11-17-15
436-030-0145
Reconsideration Time Frames and
Postponements
(1) When appealing a Notice of Closure
for claims that are medically stationary or that statutorily qualified for closure
on or after June 7, 1995, a request for reconsideration must be mailed within:
(a) Sixty (60) days of the
mailing date of the Notice of Closure for a worker’s request.
(b) Seven (7) days of the
mailing date of the Notice of Closure for an insurer’s request. An insurer’s
request for reconsideration is limited to the findings used to rate impairment.
(c) Sixty (60) days of the
mailing date of the Notice of Closure for a beneficiary’s request if the Notice
of Closure was mailed to the beneficiary under ORS 656.268(5)(b).
(d) One year of the date
the Notice of Closure was mailed to the estate of the worker if the Notice of Closure
was not mailed to the beneficiary under ORS 656.268(5)(b).
(2) The reconsideration proceeding
begins upon:
(a) The director’s
receipt of the worker’s, estate’s, or beneficiary’s request for
reconsideration, if the insurer has not previously requested reconsideration consistent
with subsection (1)(b) of this rule; or
(b) The 61st day after the
closure of the claim, if the insurer has requested reconsideration consistent with
subsection (1)(b) of this rule, unless the director receives, within the appeal
time frames in section (1) of this rule, a request for reconsideration or a statement
by the worker, estate, beneficiary, or representative instructing the director to
start the reconsideration proceeding.
(3) Fourteen days from the
date of the director’s notice of the start of the reconsideration proceeding,
the reconsideration request and all other appropriate information submitted by the
parties will become part of the record used in the reconsideration proceeding. Requests
for a medical arbiter panel must be submitted within this time frame.
(a) Evidence received or
issues raised subsequent to the 14-day deadline will be considered in the reconsideration
proceeding to the extent practicable.
(b) Upon review of the record
the director may request, under ORS 656.268(6), any additional information deemed
necessary for the reconsideration and set appropriate time frames for response.
(c) Except as provided in
sections (4), (5), and (6) of this rule, the director will either mail an Order
on Reconsideration within 18 working days from the date the reconsideration proceeding
begins or notify the parties that the reconsideration proceeding is postponed for
not more than 60 additional days as provided under ORS 656.268(6).
(4) The director may delay
the reconsideration proceeding and toll the reconsideration timeline for up to 45
days when both parties provide written notice to the director requesting the delay
for settlement negotiations. The notice is only effective if the director receives
it before the 18th working day after the reconsideration proceeding begins.
(a) This delay of the reconsideration
proceeding expires:
(A) When the director receives
a written request from either party to resume the reconsideration proceeding;
(B) When the director receives
a copy of the approved settlement resolving some or all of the issues raised at
the reconsideration proceeding; or
(C) On the next calendar
day following the authorized delay period.
(b) The director may authorize
only one delay period for each reconsideration proceeding.
(5) When the director provides
notice the worker failed to attend the medical arbiter examination without good
cause or failed to cooperate with the arbiter examination and suspends benefits
under ORS 656.268(8), the reconsideration proceeding will be postponed for up to
60 additional days from the date the director determines and provides notice, to
allow completion of the arbiter process.
(6) The reconsideration proceeding
may be stayed for one of the following reasons:
(a) The parties consent to
deferring the reconsideration proceeding, under ORS 656.268(8)(i)(B), when the medical
arbiter examination is not medically appropriate because the worker’s medical
condition is not stationary; or
(b) When a claim disposition
agreement (CDA) is filed, the reconsideration proceeding is stayed until the CDA
is either approved or set aside.
(7) If the director fails
to mail an Order on Reconsideration or a Notice of Postponement under the time frames
specified in ORS 656.268, the reconsideration request is automatically deemed denied.
The parties may immediately thereafter proceed as though the director had issued
an Order on Reconsideration affirming the Notice of Closure.
(8) Notwithstanding any other
provision regarding the reconsideration proceeding, the director may extend nonstatutory
time frames to allow the parties sufficient time to present evidence and address
their issues and concerns.
Stat. Auth.: ORS 656.726
Stats. Implemented: ORS 656.268
(2015 OL Ch. 144)
Hist.: WCD 12-1994, f. 11-18-94,
cert. ef. 1-1-95; WCD 8-1996, f. 2-14-96, cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97,
cert. ef. 1-15-98; WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 14-2003(Temp),
f. 12-15-03, cert. ef. 1-1-04 thru 6-28-03; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04;
WCD 9-2004, f. 10-26-04, cert. ef. 1-1-05; WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08;
WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; WCD 5-2011, f. 11-18-11, cert. ef. 1-1-12;
WCD 4-2015(Temp), f. & cert. ef. 5-21-15 thru 11-16-15; WCD 6-2015, f. 10-12-15,
cert. ef. 11-17-15
436-030-0155
Reconsideration Record
(1) The record for the reconsideration proceeding includes all documents and other material relied upon in issuing the Order on Reconsideration as well as any additional material submitted by the parties, but not considered in the reconsideration proceeding.
(a) The record is maintained in the Workers’ Compensation Division’s claim file and consists of all documents and material received and date stamped by the director prior to the issuance of the Order on Reconsideration, unless the document is an exact duplicate of what is in the file then the director is not required to retain the duplicate document.
(b) The insurer or self-insured employer must not send billing information and duplicate documents to the department, unless specifically requested by the director.
(c) Evidence stored by the parties on audio media and submitted as part of the reconsideration record may only be submitted in transcribed form.
(2) Except as noted in this section, the medical record submitted by the director for arbiter review will consist of all medical documents and medical material produced by the claim under reconsideration, provided the information is allowable under ORS 656.268.
(3) The director will send non-medical information, nursing notes, or physical therapy treatment notes to the arbiter if:
(a) A party requests the director to submit those specific materials;
(b) The party identifies and provides the director with specific dates of those materials requested to be submitted; and
(c) The materials otherwise meet the requirements of this rule.
(4) When any surveillance video obtained prior to closure has been submitted to a physician involved in the evaluation or treatment of the worker, it must be provided for arbiter review.
(a) Surveillance video provided for arbiter review must have been reviewed prior to claim closure by a physician involved in the evaluation or treatment of the worker.
(b) All written materials previously forwarded to a physician along with the surveillance video, such as investigator field notes, summary or narrative reports, and cover letters, must also be submitted.
(c) Surveillance video must be labeled according to the date and total time of the recording.
(5) When reconsideration is requested, the insurer is required to provide the director and the other parties with a copy of all documents contained in the record at claim closure. For cases involving a health care provider who must meet criteria other than those of an attending physician or who practices under contract with a managed care organization, the insurer must provide documentation of the health care provider’s authority to act as an attending physician. Responses of the parties to the medical arbiter report will be included in the record if received prior to completion of the reconsideration proceeding.
Stat. Auth.: ORS 656.726

Stats. Implemented: ORS 656.268

Hist.: WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95; WCD 8-1996, f. 2-14-96, cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98; WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 9-2004, f. 10-26-04, cert. ef. 1-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10
436-030-0165
Medical Arbiter Examination Process
(1) The director will select a medical
arbiter physician or a panel of physicians in accordance with ORS 656.268(8)(d).
(a) Any party that objects
to a physician on the basis that the physician is not qualified under ORS 656.005(12)(b)
must notify the director of the specific objection before the examination. If the
director determines that the physician is not qualified to be a medical arbiter
on the specific case, an examination will be scheduled with a different physician.
(b) When the worker resides
outside the state of Oregon, a medical arbiter examination may be scheduled out-of-state
with a physician who is licensed within that state to provide medical services in
the same manner as required by ORS 656.268(8).
(c) Arbiters or panel members
will not include any health care provider whose examination or treatment is the
subject of the review.
(d) The insurer must pay
all costs related to the completion of the medical arbiter process in this rule.
(2) If the director determines
there are enough appropriate physicians available to create a list of possible arbiters
and it is practicable, each party will be given the opportunity to agree on a physician
and to remove one physician from the list through the process described below:
(a) The director will send
the list to the parties electronically or by overnight mail.
(b) If the parties agree
on a physician, every party must send a signed, written notice of that choice to
the director.
(c) A party can remove a
physician from the list, even when the parties have agreed on a physician to conduct
the exam, by submitting a signed, written notice of that choice to the director.
(d) To be effective, the
written notice of agreement on or rejection of a physician must be received by the
director within three working days of the date the director sent the list.
(3) The worker’s disability
benefits will be suspended when the director determines the worker failed to attend
or cooperate with the medical arbiter examination, unless the worker establishes
a “good cause” reason for missing the examination or for not cooperating
with the arbiter. The worker must call the director within 24 hours of the missed
examination to provide any “good cause” reason.
(a) Notice of the examination
will be considered adequate notice if the appointment letter is mailed to the last
known address of the worker and to the worker’s attorney, if the worker is
represented.
(b) For the purposes of this
rule, non-cooperation includes, but is not limited to, refusal to complete any reasonable
action necessary to evaluate the worker’s impairment. However, it does not
include circumstances such as a worker’s inability to carry out any part of
the examination due to excessive pain or when the physician reports the findings
as medically invalid.
(c) Failure of the worker
to respond within the time frames outlined in statute for completion of the reconsideration
proceeding may be considered a failure to establish “good cause.”
(4) If a worker misses the
medical arbiter examination, the director will determine whether or not there was
a “good cause” reason for missing the examination.
(5) Upon determination that
there was not a “good cause” reason for missing the examination, or
that the worker failed to cooperate with the arbiter, the worker’s disability
benefits will be suspended and the reconsideration proceeding postponed for up to
an additional 60 days.
(6) The suspension will be
lifted if any of the following occur during the additional 60-day postponement period:
(a) The worker establishes
a “good cause” reason for missing or failing to cooperate with the examination;
(b) The worker withdraws
the request for reconsideration; or
(c) The worker attends and
cooperates with a rescheduled arbiter examination.
(7) If none of the events
that end the suspension under section (6) of this rule occur before the expiration
of the 60-day additional postponement, the suspension of benefits will remain in
effect.
(8) The medical arbiter or
panel of medical arbiters must perform a record review or examine the worker as
requested by the director and perform such tests as may be reasonable and necessary
to establish the worker’s impairment.
(a) The parties must submit
to the director any issues they wish the medical arbiter or panel of medical arbiters
to address within 14 days of the date of the director’s notice of the start
of the reconsideration proceeding. The parties must not submit issues directly to
the medical arbiter or panel of medical arbiters. The medical arbiter or panel of
medical arbiters will only consider issues appropriate to the reconsideration proceeding.
(b) The report of the medical
arbiter or panel of medical arbiters must address all questions raised by the director.
(c) The medical arbiter will
provide copies of the arbiter report to the director, the worker or the worker’s
attorney, and the insurer within five working days after completion of the arbiter
review. The cost of providing copies of such additional reports must be reimbursed
according to OAR 436-009-0060 and must be paid by the insurer.
(9) When a worker’s
medical condition prevents the worker from fully participating in a medical arbiter
examination that must be conducted to determine findings of impairment, the director
may send a letter to the parties requesting consent to defer the reconsideration
proceeding. The medical condition that prevents the worker from participating in
the medical arbiter examination does not need to be related to the work injury.
(a) If the parties agree
to the deferral, the reconsideration proceeding will be deferred until the medical
record reflects the worker’s condition has stabilized sufficiently to allow
for examination to obtain the impairment findings. The parties must notify the director
when it is appropriate to schedule the medical arbiter examination and provide the
necessary medical records when requested. Interim medical information that may be
helpful to the director and the medical arbiter in assessing and describing the
worker’s impairment may be submitted at the time the parties notify the director
that the medical arbiter examination can be scheduled. The director will determine
whether the interim medical information is consistent with the provisions of ORS
656.268(6) and (8).
(b) If deferral is not appropriate,
at the director’s discretion either a medical arbiter examination or a medical
arbiter record review may be obtained, or the director may issue an Order on Reconsideration
based on the record available at claim closure and other evidence submitted in accordance
with ORS 656.268(6).
(10) All costs related to
record review, examinations, tests, and reports of the medical arbiter must be billed
and paid under OAR 436-009-0010, 436-009-0030, 436-009-0040, and 436-009-0060.
(11) When requested by the
Hearings Division, the director may schedule a medical arbiter examination for a
worker who has appealed a Notice of Closure rescinding permanent total disability
benefits under ORS 656.206.
Stat. Auth.: ORS 656.726
Stats. Implemented: ORS 656.268
Hist.: WCD 12-1994, f. 11-18-94,
cert. ef. 1-1-95; WCD 11-1995(Temp), f. & cert. ef. 8-23-95; WCD 8-1996, f.
2-14-96, cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98; WCD 9-2000,
f. 11-13-00, cert. ef. 1-1-01; WCD 10-2001, f. 11-16-01, cert. ef. 1-1-02; WCD 14-2003(Temp),
f. 12-15-03, cert. ef. 1-1-04 thru 6-28-03; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04;
WCD 9-2004, f. 10-26-04, cert. ef. 1-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06;
WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10;
WCD 5-2011, f. 11-18-11, cert. ef. 1-1-12; WCD 1-2015, f. 1-29-15, cert. ef. 3-1-15;
WCD 6-2015, f. 10-12-15, cert. ef. 11-17-15
436-030-0175
Fees and Penalties Within the Reconsideration Proceeding
(1) An insurer failing to provide information or documentation as set forth in OAR 436-030-0135, 436-030-0145, 436-030-0155 and 436-030-0165 may be assessed civil penalties under OAR 436-030-0580. Failure to comply with the requirements set forth in OAR 436-030-0135, 436-030-0145, 436-030-0155, and 436-030-0165 may also be grounds for extending the reconsideration proceeding under ORS 656.268(6).
(2) If upon reconsideration of a Notice of Closure there is an increase of 25 percent or more in the amount of permanent disability compensation from that awarded by the Notice of Closure, and the worker is found to be at least 20 percent permanently disabled, the insurer will be ordered to pay the worker a penalty equal to 25 percent of the increased amount of permanent disability compensation. Penalties will not be assessed if an increase in compensation results from one of the following:
(a) An order issued by the director that addresses the extent of the worker's permanent disability that is not based on the standards adopted under ORS 656.726(4)(f);
(b) New information is obtained through a medical arbiter examination, for claims with medically stationary dates or statutory closure dates on or after June 7, 1995; or
(c) Information that the insurer or self-insured employer demonstrates they could not reasonably have known at the time of claim closure.
(3) For the purpose of section (2) of this rule, a worker who receives a total sum of 64 degrees of scheduled or unscheduled disability or a combination thereof, will be found to be at least 20 percent disabled.
For example: A worker who receives 20 percent disability of a great toe (3.6 degrees) is not considered 20 percent permanently disabled because the great toe is only a portion of the whole person. A worker who is 100 percent permanently disabled is entitled to 320 degrees of disability. A worker who receives 64 degrees (20 percent of 320 degrees), whether scheduled, unscheduled or a combination thereof, will be considered the equivalent of at least 20 percent permanently disabled for the purposes of this rule.
(4) Attorney fees may only be authorized when a Request for Reconsideration is submitted by an attorney representing a worker or the attorney provides documentation of representation, and a valid signed retainer agreement has been filed with the director. The insurer must pay the attorney 10 percent out of any additional compensation awarded. "Additional compensation" includes an increase in a permanent or temporary disability award.
Stat. Auth.: ORS 656.726

Stats. Implemented: ORS 656.268, §7, ch. 252, OL 2007

Hist.: WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95; WCD 11-1995(Temp), f. & cert. ef. 8-23-95; WCD 8-1996, f. 2-14-96, cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98; WCD 2-1999(Temp), f. 1-14-99, cert. ef. 2-1-99 thru 7-30-99; WCD 8-1999, f. & cert. ef. 4-28-99; WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 9-2004, f. 10-26-04, cert. ef. 1-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08
436-030-0185
Reconsideration: Settlements and Withdrawals
(1) Contested matters arising out of a claim closure may be resolved by mutual agreement of the parties at any time after the claim has been closed under ORS 656.268 but before that claim closure has become final by operation of law. If the parties have reached such an agreement prior to the completion of the reconsideration proceeding, the parties must submit the stipulation agreement to the director for approval as part of the reconsideration proceeding. The stipulation submitted for review at the reconsideration proceeding must:
(a) Address only issues that pertain to a claim closure and cannot include any issues of compensability;
(b) List the body part for which any award is made and recite all disability awarded in both degrees and percent of loss as appropriate based on date of injury when permanent partial disability is part of the stipulated agreement. In the event there is any inconsistency between the stated degrees and percent of loss awarded in any stipulated agreement for claims with dates of injury prior to January 1, 2005, the stated percent of loss will control.
(2) The director will review the stipulation and issue an order approving or denying the stipulation. Stipulations approved by the director can not be appealed.
(3) When the stipulated agreement does not expressly resolve all issues relating to the claim closure, the Order on Reconsideration will include the stipulation, as well as a substantive determination of all remaining issues. In these claims, the 18 working day time frame may be postponed in the same manner as any reconsideration proceeding.
(4) If the stipulation is not approved, the reconsideration proceeding will be postponed to allow the parties to:
(a) Address the disapproval, or
(b) Request that the director issue an Order on Reconsideration addressing the substantive issues.
(5) When the parties desire to enter into a stipulated agreement to resolve disputed issues relating to the claim closure but are unable to reach an agreement, the parties may request the assistance of the director to mediate an agreement.
(6) When the parties desire to enter into a stipulated agreement that addresses all matters being reconsidered as well as issues not before the reconsideration proceeding, and the parties do not want a reconsideration on the merits of the claim closure, they may advise the director of their resolution and request the director enter an Order on Reconsideration affirming the Notice of Closure. The request for an affirming order must be made prior to the date an Order on Reconsideration is issued and in accordance with the following procedure.
(a) A written request for an affirming reconsideration order must:
(A) Be made by certified mail;
(B) Be signed by both parties or their representatives;
(C) State that the parties waive their right to an arbiter review and that all matters subject to the mandatory reconsideration process have been resolved; and
(D) Be accompanied by a copy of the proposed stipulated agreement.
(b) After the affirming Order on Reconsideration has been issued, the parties will submit their stipulation to a referee of the Hearings Division, Workers’ Compensation Board, for approval in accordance with the provisions of ORS 656.289 and the Board’s rules of practice and procedure.
(c) An Order on Reconsideration issued under this rule is final and is subject to review under ORS 656.283.
(d) This provision does not apply to Claims Disposition Agreements filed under ORS 656.236.
(7) A worker requesting a reconsideration may withdraw the request for reconsideration without agreement of the other parties only if:
(a) No additional information has been submitted by the other parties;
(b) No medical arbiter exam has occurred, and
(c) The insurer has not requested reconsideration under OAR 436-030-0145.
(8) Notwithstanding (7) above, if additional information has been submitted by the other party(ies), a medical arbiter exam has occurred or the insurer has requested reconsideration, the reconsideration request will not be dismissed unless all parties agree to the withdrawal.
(9) If the insurer has requested reconsideration, either the worker or the insurer may initiate the withdrawal request but both must agree to the withdrawal.
Stat. Auth.: ORS 656.726

Stats. Implemented: ORS 656.268

Hist.: WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98; WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 14-2003(Temp), f. 12-15-03, cert. ef. 1-1-04 thru 6-28-03; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 9-2004, f. 10-26-04, cert. ef. 1-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 11-2007, f. 11-1-07, cert. ef. 1-2-08; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10
436-030-0575
Audits
(1) Notices of Closure issued by insurers and supporting documentation including, but not limited to, the worksheet upon which the Notice of Closure is based, will be subject to periodic audit by the director. Supporting documentation and records must be maintained in accordance with OAR 436-050.
(2) The director reserves the right to visit the worksite to determine compliance with these rules.
(3) The insurer or self-insured employer is required to provide the director, within seven days of the director's request, any data the director identifies as necessary to determine the impact of legislative changes on permanent partial disability awards.
Stat. Auth.: ORS 656.268, 656.726 & 1999 OL Ch. 313

Stats. Implemented: ORS 656.268, 656.455, 656.726, 656.750 & 1999 OL Ch. 313

Hist.: WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95; WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06
436-030-0580
Penalties and Sanctions
(1) Under ORS 656.745, the director or designee may assess a civil penalty against an employer or insurer who fails to comply with the statutes, rules, or orders of the director regarding reports or other requirements necessary to carry out the purposes of the Workers’ Compensation Law.
(2) An insurer or health care provider failing to meet the requirements set forth in these rules may be assessed a civil penalty.
(3) Under OAR 436-010-0340, the director may impose sanctions for any health care provider where the insurer can provide sufficient documentation to substantiate lack of cooperation. The medical service provider will be sent a warning letter about the reporting requirements and possible penalties. Failure by the health care provider to submit the requested information within the specified period may result in civil penalties.
(4) Sufficient documentation to substantiate lack of cooperation by the health care provider includes:
(a) Copies of letters to the health care provider;
(b) Memos to the claim file of follow-up phone calls or the lack of response;
(c) Letters from the health care provider indicating a lack of cooperation; or
(d) Medical reports received by the insurer, after adequate instruction by the insurer or the director, which do not supply the requested information or which supply information that is not consistent with the Disability Rating Standards in OAR 436-035.
Stat. Auth.: ORS 656.268, 656.726

Stats. Implemented: ORS 656.268, 656.726, 656.745

Hist.: WCD 13-1987, f. 12-17-87, ef. 1-1-88; WCD 31-1990, f. 12-10-90, cert. ef. 12-26-90; WCD 5-1992, f. 1-17-92, cert. ef. 2-20-92; WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95; WCD 8-1996, f. 2-14-96, cert.ef. 2-17-96; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98; WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04; WCD 9-2004, f. 10-26-04, cert. ef. 1-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10


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