July 21, 2003

  BULLETIN NO. 1-2003
  Effective: September 1, 2003

TO: Workers’ Compensation Insurers, Self-Insured Employers
SUBJECT: Form and Format for revised Carrier’s Own Motion Recommendation
  Form No. 440-2806. Workers’ Compensation Board; Oregon Administrative Rules 438-012-0020, 438-012-0024, 438-012-0030, 438-012-0070, 438-012-0075, 438-012-0080, 438-012-0085; Effective September 1, 2003

The purpose of this bulletin is to provide a revised Carrier’s Own Motion Recommendation form to conform to the amended administrative rules that apply ORS 656.267(1), (3) (2001), and ORS 656.278 (2001). This bulletin is effective September 1, 2003 and supercedes Bulletin No. 2-1994 dated December 15, 1994, Bulletin No. 2-1994 (addendum) effective January 1, 1996, and Bulletin No. 2-1994 (rev.) effective January 1, 2002.

NOTICE TO CLAIMANT

This section of the Carrier’s Own Motion Recommendation notifies claimant of his/her rights and responsibilities with respect to submission of a written position and/or evidence. It also notifies claimant of potential benefits available after the expiration of aggravation rights under ORS 656.273(4) for claims based on a worsening of the compensable injury and for claims based on a new medical condition or omitted medical condition. It notifies claimant about the requirements he/she must satisfy to be entitled to those benefits.

In addition to advising that claimant may have an attorney of his/her choice, claimant is notified that he/she may contact the Workers’ Compensation Ombudsman in writing at P.O. Box 14480, Salem, OR 97309-0405, or by telephoning (503) 378-3351 or 1-800-927-1271 (V/TTY) (inside Oregon). Claimant is also notified that he/she may contact the Own Motion Coordinator for assistance at (503) 378-3308 or 1-877-311-8061 (inside Oregon). Claimant is also notified that any copy of material submitted to the Board MUST be submitted simultaneously to the carrier.

INSTRUCTIONS TO THE CARRIER

This section notifies the carrier that it must process as a request for Own Motion relief under ORS 656.278 any claim that reasonably notifies it of: (1) medical services, "worsened condition," and/or "post-aggravation rights" new/omitted medical conditions where the date of injury is before January 1, 1966 (OAR 438-012-0020(3), (4), (5); OAR 438-012-0030); (2) worsening of a compensable injury that results in an inability to work which is filed after the expiration of aggravation rights under ORS 656.273(4) (OAR 438-012-0020(3); 438-012-0030); and/or (3) a new or omitted medical condition filed after the expiration of aggravation rights under ORS 656.273(4) (OAR 438-012-0020(4); OAR 438-012-0030). It notifies the carrier that claims for medical services with a date of injury on or after January 1, 1966 must be processed under ORS 656.245.

This section also notifies the carrier that, if it voluntarily reopens the claim under ORS 656.278(5) to provide benefits allowable under ORS 656.278, it is not required to submit a written recommendation. Moreover, pursuant to ORS 656.625, a carrier’s voluntary reopening under ORS 656.278 qualifies the carrier for reimbursement from the Reopened Claims Program. However, if the carrier voluntarily reopens the claim, it must submit a Form 3501 to the Workers’ Compensation Division, with copies to claimant and claimant’s attorney (if any). If the carrier does not voluntarily reopen the claim, it must submit a completed recommendation form, with supporting documentation, to the Board. The carrier also must forward to claimant and claimant’s attorney (if any) a copy of its written recommendation, including attachments, and provide documentary evidence that it did so.

The carrier is also notified of the timelines within which to timely voluntarily reopen the claim or submit a recommendation to the Board. If the date of injury for the original claim is before January 1, 2002, such action must occur within 90 days of receipt of claimant’s written request for own motion relief. If the date of injury for the original claim is on or after January 1, 2002, such action must occur within 60 days of receipt of claimant’s written request for own motion relief.

The carrier is further notified that:

(1) If the carrier answers "NO" to items B-5 – B-7 on page 5 of the form, the carrier MUST issue a separate denial of medical services under ORS 656.262, and/or a denial of responsibility under ORS 656.308(2), and/or a request for Director review of medical treatment under ORS 656.245, ORS 656.260, and/or ORS 656.327.

(2) If the carrier answers "NO" to items B-4 or D-10 (on pages 5 and 7, respectively, of the form), the carrier must send page 9 of this form to claimant.

(3) If the carrier answers "YES" to items C-3 and/or D-17 (on pages 6 and 8, respectively, of the form), the carrier must submit a copy of the "Modified Notice of Acceptance" (OAR 438-012-0024(1)(a), (2)(a)).

(4) If the carrier answers "NO" to any of items C-3 – C-4 and/or D-17 – D-18 (on pages 6 and 8, respectively, of the form), the carrier must submit the appropriate "notice" regarding each negative response: (a) Notice of Denial of "Post-Aggravation Rights" New Medical Condition or Omitted Medical Condition Claim (OAR 438-012-0024(1)(b), (2)(b); OAR 438-012-0070)); and/or (b) Notice of Denial of Responsibility for "Post-Aggravation Rights" New Medical Condition or Omitted Medical Condition Claim (OAR 438-012-0024(1)(b), (2)(b); OAR 438-012-0075)).

(5) If the carrier answers "YES" to items C-5 and/or D-19 (on pages 6 and 8, respectively, of the form), the carrier must submit a Notice of Clarification in Response to "Post-Aggravation Rights" New Medical Condition or Omitted Medical Condition Claim (OAR 438-012-0024(1)(c), (2)(c); OAR 438-012-0080)).

(6) If the carrier answers "YES" to items C-6 – C-7 and/or D-20 – D-21 (on pages 6 and 8, respectively, of this form), the carrier must submit a Notice of Incomplete Claim in Response to "Post-Aggravation Rights" New Medical Condition or Omitted Medical Condition Claim (OAR 438-012-0024(1)(d), (2)(d); OAR 438-012-0085)).

The carrier is also notified that it may reproduce the "Carrier’s Own Motion Recommendation" form as a word-processing document, provided that the product exactly reproduces all of the data fields and text on the Board’s Form 440-2806, eff. 09/01/03.

Finally, the carrier is notified to submit legible copies of all documents relevant and material to the matters in dispute, including an index. The carrier is advised as to the manner that the documents and index shall be presented. These documents shall include copies of all relevant medical reports concerning hospitalization, surgery, or other curative treatment prescribed in lieu of hospitalization that is necessary to enable claimant to return to work.

RECOMMENDATION TO THE BOARD BY THE CARRIER

The carrier must provide the information requested in Sections A-D.

SECTION A: Claim Information

Item Nos. A-1 through A-4 provide for the carrier’s name, mailing address and telephone number, the claims examiner’s name, and the date the recommendation form is mailed.

Item Nos. A-5 through A-7 provide for claimant’s name, complete current address, and social security number.

Item Nos. A-8 through A-9 (if claimant is represented) provide for claimant’s attorney’s name and address. It also requires that, if the claimant is represented, the carrier must submit a copy of claimant’s counsel’s retainer agreement.

Item Nos. A-10 through A-13 provide for the claim number, date of injury, employer-at-injury name and address, date the current claim was received by the carrier and requires that the carrier submit a date-stamped copy of claimant’s written claim/request.

Item Nos. A-14 through A-16 provide for the date of the first claim closure, the date claimant’s aggravation rights expired, and the date of the last claim closure issued pursuant to ORS 656.268. It requires that the carrier submit a copy of the FIRST Determination Order or Notice of Closure. (If initially accepted as a "nondisabling" claim, the carrier must submit a copy of the Notice of Acceptance). In addition, the carrier also must submit a copy of the last Determination Order or Notice of Closure issued pursuant to ORS 656.268.

Item No. A-17 (a-b) provides for a listing of the condition(s) accepted prior to the current request for Own Motion relief, and the date each condition was accepted.

Item No. A-18 provides for a listing of condition(s) currently claimed. These are condition(s) other than the accepted condition(s) for which claimant is has made a claim under this current request for Own Motion relief.

Item No. A-19 provides for a listing of condition(s) other than the accepted condition(s) for which claimant is currently treating but has not made a claim.

SECTION B: "WORSENED CONDITION" CLAIM SUBMITTED AFTER EXPIRATION OF AGGRAVATION RIGHTS:

Item Nos. B-1 through B-3 pertain to a "worsened condition" claim related to an injury that occurred on or after 1/1/1966 that was submitted after expiration of aggravation rights and ask whether claimant’s worsened condition results in a partial or total inability of claimant to work and requires hospitalization or inpatient or outpatient surgery or other curative treatment prescribed in lieu of hospitalization that is necessary to enable claimant to return to work.

The Board requires information relative to the hospitalization, or inpatient or outpatient surgery, or other curative treatment prescribed in lieu of hospitalization that is necessary to enable claimant to return to work, notwithstanding the carrier’s position(s) regarding whether the "worsened" condition is compensable, the carrier is responsible, or the treatment is authorized or is reasonable and necessary. (In other words, item B-3 does not ask the carrier to determine compensability, responsibility or reasonableness and necessity of that medical treatment.) The Board requires all relevant medical reports concerning medical treatment be forwarded to the Board.

WORK FORCE CRITERIA AND LETTER TO CLAIMANT

Item No. B-4 provides for the carrier’s position regarding whether claimant was in the work force at the time of disability. If the carrier answers "no" to this question, it must submit an explanation for that position, submit supporting material, and send page 9 of the form to claimant.

Page 9 provides that claimant must prove that he/she was in the work force at the time of disability and provides that he/she may meet this burden of proof by any of these means:

(1) If claimant was engaged in employment, requires submission of evidence establishing that he/she was working during the relevant time period;

(2) If claimant was not working, but was willing to work and looking for work, requires submission of evidence of work search and a willingness to work; and

(3) If claimant was not working or looking for work because of the compensable injury, but was willing to work, requires submission of evidence of futility and willingness to work.

Item No. B-5 through B-6 provide for the carrier’s agreement or disagreement regarding the compensability of and responsibility for claimant’s "worsened" condition.

Item No. B-7 provides for the carrier’s agreement or disagreement regarding the reasonableness and/or necessity of the recommended medical treatment.

A "NO" answer to B-5, B-6, or B-7, must be accompanied by: B-5 – any denial issued pursuant to ORS 656.262; B-6 – any denial issued pursuant to ORS 656.308(2); and/or B-7 – any request for Director’s review of medical treatment pursuant to ORS 656.245, ORS 656.260 and/or ORS 656.327.

Item No. B-8 provides the carrier’s recommendation for or against the reopening of the post-aggravation rights "worsened condition" claim.

SECTION C: "POST-AGGRAVTION RIGHTS" NEW AND/OR OMITTED MEDICAL CONDITION:

Item Nos. C-1 through C-5 pertain to a "post-aggravation rights" new/omitted medical condition(s) claim related to an injury that occurred on or after 1/1/1966. Item C-1 asks whether claimant submitted a claim for a "post-aggravation rights" new/omitted medical condition. If the carrier responds "yes," it is acknowledging that claimant has made such a claim. Item C-1 itself does not address the merits of that claim, it only asks whether such a claim has been initiated. If the carrier responds "yes," it is directed to complete items C-2 through C-5, and C-8. Items C-2 through C-5 provide for: (a) a listing of the claimed "post-aggravation rights" new/omitted medical condition(s); (b) the carrier’s agreement or disagreement as to the compensability of and responsibility for the "post-aggravation rights" new/omitted medical condition(s) claim; and (c) its agreement or disagreement as to whether it contends that a prior Notice of Acceptance reasonably apprised claimant and the medical providers of the nature of the compensable condition(s).

The carrier is informed that:

(1) If it answers "YES" to item C-3, it must submit a copy of the "Modified Notice of Acceptance" (OAR 438-012-0024(1)(a), (2)(a)).

(2) If it answers "NO" to any of items C-3 – C-4, it must submit the appropriate "notice" regarding each negative response: (a) Notice of Denial of "Post-Aggravation Rights" New Medical Condition or Omitted Medical Condition Claim (OAR 438-012-0024(1)(b), (2)(b); OAR 438-012-0070)); and/or (b) Notice of Denial of Responsibility for "Post-Aggravation Rights" New Medical Condition or Omitted Medical Condition Claim (OAR 438-012-0024(1)(b), (2)(b); OAR 438-012-0075)).

(3) If it answers "YES" to item C-5, it must submit a Notice of Clarification in Response to "Post-Aggravation Rights" New Medical Condition or Omitted Medical Condition Claim (OAR 438-012-0024(1)(c), (2)(c); OAR 438-012-0080)).

Item No. C-8 provides the carrier’s recommendation for or against the reopening of the "post-aggravation rights" new/omitted medical condition(s) claim.

Item Nos. C-1, C-6, and C-7 pertain to a carrier’s position that claimant did not submit or attempt to submit a "post-aggravation rights" new/omitted medical condition(s) claim. Item C-1 asks whether claimant submitted a "post-aggravation rights" new or omitted medical condition claim. If the carrier answers "NO" to item C-1, it is directed to proceed to question C-6, which asks if claimant purported to make a claim for such a condition. If the carrier answers "NO" to item C-6, it has taken the position that claimant has neither submitted nor attempted to submit such a claim. Given this position, there is no "post-aggravation rights" new or omitted medical condition claim to respond to; therefore, the carrier has completed Section C and is directed to "proceed to Section D."

If the carrier answers "YES" to item C-6; i.e., claimant purported to make a claim for "post-aggravation rights" new or omitted medical condition claim, it is directed to complete item C-7, which asks whether the carrier contends that it is not required to accept or deny the purported claim because the document it received from claimant did not clearly request formal written acceptance of a new or omitted medical condition. If the carrier answers "YES" to item C-7, it must submit a Notice of Incomplete Claim in Response to "Post-Aggravation Rights" New Medical Condition or Omitted Medical Condition Claim (OAR 438-012-0024(1)(d), (2)(d); OAR 438-012-0085)). Given its position that claimant’s attempt to submit a "post-aggravation rights" new or omitted medical condition claim was inadequate, there is no such claim to respond to; therefore, the carrier has completed Section C and is directed to proceed to Section D.

SECTION D: PRE-1966 INJURY CLAIMS:

Item Nos. D-1 through D-5 pertain to a "medical services" claim made in a pre-1966 injury claim and provide for a listing of the medical services, the carrier’s agreement or disagreement as to the compensability of, responsibility for, and appropriateness of the claimed medical services.

Item No. D-6 provides the carrier’s recommendation for or against the reopening of the pre-1966 "medical services" claim.

Item Nos. D-7 through D-9 pertain to a "worsened condition" claim made in a pre-1966 injury claim. These items ask whether claimant’s "worsened condition" results in a partial or total inability to work and requires hospitalization or inpatient or outpatient surgery or other curative treatment prescribed in lieu of hospitalization that is necessary to enable claimant to return to work.

The Board requires information relative to the hospitalization, or inpatient or outpatient surgery, or other curative treatment prescribed in lieu of hospitalization that is necessary to enable claimant to return to work, notwithstanding the carrier’s position(s) regarding whether the "worsened" condition is compensable, the carrier is responsible, or the treatment is authorized or is reasonable and necessary. (In other words, item D-9 does not ask the carrier to determine compensability, responsibility or reasonableness and necessity of that medical treatment.) The Board requires all relevant medical reports concerning medical treatment be forwarded to the Board.

WORK FORCE CRITERIA AND LETTER TO CLAIMANT

Item No. D-10 provides for the carrier’s position regarding whether claimant was in the work force at the time of disability. If the carrier answers "no" to this question, it must submit an explanation for that position, submit supporting material, and send page 9 of the form to claimant.

Page 9 provides that claimant must prove that he/she was in the work force at the time of disability and provides that he/she may meet this burden of proof by any of these means:

(1) If claimant was engaged in employment, requires submission of evidence establishing that he/she was working during the relevant time period;

(2) If claimant was not working, but was willing to work and looking for work, requires submission of evidence of work search and a willingness to work; and

(3) If claimant was not working or looking for work because of the compensable injury, but was willing to work, requires submission of evidence of futility and willingness to work.

Item No. D-11 through D-12 provide for the carrier’s agreement or disagreement regarding the compensability of and responsibility for claimant’s "worsened condition."

Item No. D-13 provides for the carrier’s agreement or disagreement regarding the reasonableness and/or necessity of the recommended medical treatment.

Item No. D-14 provides the carrier’s recommendation for or against the reopening of the pre-1966 "worsened" condition claim.

Item Nos. D-15 through D-19 pertain to a "post-aggravation rights" new/omitted medical condition(s) claim made in a pre-1966 injury claim. Item D-15 asks whether claimant submitted a claim for a pre-1966 "post-aggravation rights" new/omitted medical condition. If the carrier responds "yes," it is acknowledging that claimant has made such a claim. Item D-15 itself does not address the merits of that claim, it only asks whether such a claim has been initiated. If the carrier responds "yes," it is directed to complete items D-16 through D-19, and D-22. Items D-16 through D-19 provide for: (a) a listing of the claimed "post-aggravation rights" new/omitted medical condition(s); (b) the carrier’s agreement or disagreement as to the compensability of and responsibility for the "post-aggravation rights" new/omitted medical condition(s) claim; and (c) its agreement or disagreement as to whether it contends that a prior Notice of Acceptance reasonably apprised claimant and the medical providers of the nature of the compensable condition(s).

The carrier is informed that:
(1) If it answers "YES" to item D-17, it must submit a copy of the "Modified Notice of Acceptance" (OAR 438-012-0024(1)(a), (2)(a)).
(2) If it answers "NO" to any of items D-17 – D-18, it must submit the appropriate "notice" regarding each negative response: (a) Notice of Denial of "Post-Aggravation Rights" New Medical Condition or Omitted Medical Condition Claim (OAR 438-012-0024(1)(b), (2)(b); OAR 438-012-0070)); and/or (b) Notice of Denial of Responsibility for "Post-Aggravation Rights" New Medical Condition or Omitted Medical Condition Claim (OAR 438-012-0024(1)(b), (2)(b); OAR 438-012-0075)).
(3) If it answers "YES" to item D-19, it must submit a Notice of Clarification in Response to "Post-Aggravation Rights" New Medical Condition or Omitted Medical Condition Claim (OAR 438-012-0024(1)(c), (2)(c); OAR 438-012-0080)).

Item No. D-22 provides the carrier’s recommendation for or against the reopening of the pre-1966 "post-aggravation rights" new/omitted medical condition(s) claim.

Item Nos. D-15, D-20, and D-21 pertain to a carrier’s position that claimant did not submit or attempt to submit a "post-aggravation rights" new/omitted medical condition(s) claim made in a pre-1966 injury claim. Item D-15 asks whether claimant submitted a pre-1966 "post-aggravation rights" new or omitted medical condition claim. If the carrier answers "NO" to item D-15, it is directed to proceed to question D-20, which asks if claimant purported to make a claim for such a condition. If the carrier answers "NO" to item D-20, it has taken the position that claimant has neither submitted nor attempted to submit such a claim. Given this position, there is no pre-1966 "post-aggravation rights" new or omitted medical condition claim to respond to; therefore, the carrier has completed the "Carrier’s Own Motion Recommendation" form and is directed to "stop here."

If the carrier answers "YES" to item D-20; i.e., claimant purported to make a claim for a pre-1966 "post-aggravation rights" new or omitted medical condition claim, it is directed to complete item D-21, which asks whether the carrier contends that it is not required to accept or deny the purported claim because the document it received from claimant did not clearly request formal written acceptance of a new or omitted medical condition. If the carrier answers "YES" to item D-21, it must submit a Notice of Incomplete Claim in Response to "Post-Aggravation Rights" New Medical Condition or Omitted Medical Condition Claim (OAR 438-012-0024(1)(d), (2)(d); OAR 438-012-0085)). Given its position that claimant’s attempt to submit a pre-1966 "post-aggravation rights" new or omitted medical condition claim was inadequate, there is no such claim to respond to; therefore, the carrier has completed the "Carrier’s Own Motion Recommendation" form and is directed to "stop here."

THE BOARD’S MAILING ADDRESS

The parties are advised that the Board’s mailing address is: Own Motion Unit, Workers’ Compensation Board, 2601 25th St. SE Ste. 150, Salem, OR 97302-1282.

QUESTIONS

Any questions about the Carrier’s Own Motion Recommendation Form or about procedures and requirements for processing Own Motion claims under ORS 656.278 should be directed in writing to the Own Motion Unit, Workers’ Compensation Board, 2601 25th St. SE Ste. 150, Salem, Oregon 97302-1282, or by calling the Own Motion Coordinator at (503) 378-3308 or 1-877-311-8061 (inside Oregon).

Attachment
Distribution: A through V, plus X and AA