EXHIBIT A
DIVISION 12
BOARD’S OWN MOTION JURISDICTION
438-012-0001
Definitions
(1) "Own Motion Board" and "Board" mean the Workers’ Compensation Board
acting under is authority pursuant to ORS 656.278 and these rules.
[(1)] (2) "Own Motion Claim" means [a
written request by or on behalf of a claimant for]:
(a) A written request by or on behalf of a claimant
for [T]temporary disability compensation or
claim reopening regarding a worsened condition claim where claimant’s
aggravation rights have expired;
(b) [Temporary disability compensation and/or permanent
disability compensation or a claim for a new medical condition or an omitted
medical condition where the claim was initiated after the claimant’s aggravation
rights have expired] A request by a claimant
to an Own Motion Insurer that clearly requests formal written acceptance of
a new medical condition or an omitted medical condition that is related to an
initially accepted claim that is initiated after the rights under ORS 656.273
have expired (i.e., a "post-aggravation rights" new medical condition
or omitted medical condition claim); and/or
(c) A written request by or on behalf of a claimant
for [M]medical benefits for a compensable injury
that occurred before January 1, 1966, unless the injury occurred from August 5,
1959 through December 31, 1965 and resulted in an award of permanent total disability.
[(2)] (3) "Own Motion Insurer,"
"Insurer" and "Paying Agent" mean a guaranty contract insurer or self-insured
employer which is or may be responsible for payment of compensation under the
provisions of ORS 656.278.
(4) "Own Motion Order" means an order of the Own Motion Board other than
an order following an appeal pursuant to OAR 438-012-0090.
(a) "Proposed and Final Own Motion Order" means an order of an Administrative
Law Judge issued pursuant to OAR 438-012-0090 on behalf of the Own Motion Board,
subject to timely filing of appeal to the Own Motion Board.
(b) "Final Own Motion Order" means either:
(i) A "Proposed and Final Own Motion Order" issued by an Administrative Law
Judge pursuant to OAR 438-012-0090 on behalf of the Own Motion Board that was
not timely appealed and has become final by operation of law; or
(ii) An order of the Own Motion Board following appeal to the Own Motion
Board of a "Proposed and Final Own Motion Order."
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.267(1), (3), ORS 656.278(1) & ORS 656.726(5)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89;
WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef.
1-1-96; WCB 2-2001, f. 11-14-01, cert. ef. 1-1-02; WCB 2-2003, f. 7-10-03, cert.
ef. 9-1-03
438-012-0016
Communication with Board and Parties in Own
Motion Cases
A copy of any document in an own motion proceeding,
including correspondence, directed to the Board or to a party in the claim shall
be simultaneously mailed to all other parties involved in the claim or, if a
party is currently represented by an attorney, to the party’s attorney.
Stat. Auth.: ORS 656.278(1) & ORS 656.726(4)
Stats. Implemented: ORS 656.278(1) & ORS 656.726(4)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88, cert. ef. 1-1-95; WCB 2-1995, f.
11-13-95, cert. ef. 1-1-96
438-012-0018
Applicability of Rules; Effective
Date
(1) These rules apply
to claims in which a request for compensation under the Board’s own motion jurisdiction
is in existence or arose on or after the effective date of these rules.
(2) These rules in Division 012 are effective September
1, 2003.
Stat. Auth.: ORS 656.278 & ORS 656.726(5)
Stats. Implemented: ORS 656.278(1) & ORS 656.726(5)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 8-1990(Temp), f. 8-23-90, cert.
ef. 9-15-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 1-1994, f. 11-1-94,
cert. ef. 1-1-95, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96;
WCB 2-2003, f. 7-10-03, cert. ef. 9-1-03
438-012-0020
Insurer to Process Own Motion Claim: Notice
and Contents of Claim; Worsened Condition Claim; "Post-aggravation
Rights" New Medical Condition or Omitted Medical Condition Claim; Pre-1966 Injury
Claim
(1) All own motion claims, including "post-aggravation
rights" new medical condition or omitted medical condition claims,
shall first be directed to and processed by the insurer. An own motion claim
shall be legibly date-stamped on the date it is received by the insurer.
(2) An own motion claim shall contain sufficient information
to identify the claimant and the claim.
(3) An insurer is deemed to have notice of an own
motion claim for a worsened condition when one of the following
documents is submitted to the insurer by or on behalf of the claimant:
(a) A written request for temporary disability compensation
or [a] claim reopening regarding a compensable injury for which aggravation
rights have expired; or
(b) [A written request for temporary and/or permanent
disability compensation or a claim regarding a new medical condition and/or
omitted medical condition for which the claim was initiated after expiration
of aggravation rights;
(c)] Any document submitted to the insurer after the
expiration of aggravation rights that reasonably notifies the insurer that the
compensable injury results in the claimant’s 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 the claimant
to return to work[; or
(d) Any document submitted to the insurer regarding a
new medical condition and/or omitted medical condition for which the claim was
initiated after expiration of aggravation rights that reasonably notifies the
insurer that the worker clearly requested formal written acceptance of a new
medical condition or an omitted medical condition from the insurer as required
by SB 485, section 10(1) and (3)].
(4) An insurer is deemed to have notice of a "post-aggravation rights"
new medical condition or omitted medical condition claim when the insurer receives
from the claimant any document that clearly requests formal written acceptance
of a new medical condition or an omitted medical condition initiated after expiration
of aggravation rights under ORS 656.273 as required by ORS 656.267(1) and (3).
[(4)] (5) Except as provided in section [(5)]
(6) of this rule, an insurer is deemed to have notice of an own
motion claim for medical benefits and/or temporary disability compensation relating
to a compensable injury that occurred before January 1, 1966, when one of the
following documents is submitted to the insurer by or on behalf of the claimant:
(a) A written request for medical benefits relating
to the compensable injury;
(b) Any document that reasonably notifies the insurer
that the claimant is seeking medical benefits for the compensable injury;
(c) A written request for temporary disability compensation
or claim reopening; or
(d) Any document that reasonably notifies the insurer
that the compensable injury results in the inability of the claimant to work
and requires surgery or hospitalization or other curative treatment prescribed
in lieu of hospitalization that is necessary to enable the claimant to return
to work.
[(5)] (6) An own motion claim
for medical benefits does not include a claim for medical benefits relating
to a compensable injury that occurred from August 5, 1959 through December 31,
1965 and resulted in an award of permanent total disability. Such claims shall
be processed as a claim for medical services under ORS 656.245.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented.: ORS 656.278(2) & ORS 656.726(5)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 1-1994, f. 11-1-94, cert. ef.
1-1-95, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 2-2001,
f. 11-14-01, cert. ef. 1-1-02; WCB 2-2003, f. 7-10-03, cert. ef. 9-1-03
438-012-0024
"Post-Aggravation Rights" New Medical Condition or Omitted Medical Condition
Claim: Insurer Modified Acceptance; Denial; Notice of Clarification; Notice
of Incomplete Claim
(1) For claims with a date of injury before January 1, 2002, the Own
Motion insurer shall, within 90 days after receiving a "post-aggravation rights"
new medical condition or omitted medical condition claim, either:
(a) Accept the claim by specifying the condition(s) that have been accepted
by issuing a Modified Notice of Acceptance under ORS 656.262(6) and OAR 436-060-0140
to the claimant with a copy to the claimant’s attorney, if any, and the Workers’
Compensation Division;
(b) Deny the claim by specifying the factual and legal reasons for denying
the condition(s) as provided in OAR 438-012-0070 and/or OAR 438-012-0075, including
a notice as prescribed in OAR 438-012-0070, in a letter mailed to the claimant
with a copy to the claimant’s attorney, if any;
(c) Issue a Notice of Clarification, as described in OAR 438-012-0080,
that is mailed to the claimant and the claimant’s attorney, if any, if no acceptance
of the claim is required because the previously issued Notice(s) of Acceptance
reasonably apprises the claimant and the medical providers of the nature of
the compensable conditions; or
(d) Issue a Notice of Incomplete Claim, as described in OAR 438-012-0085,
that is mailed to the claimant and the claimant’s attorney, if any, if no acceptance
or denial of the claim is required because the document received by the insurer
from the claimant does not clearly request formal written acceptance of a new
medical condition or omitted medical condition.
(2) For claims with a date of injury on or after January 1, 2002, the
Own Motion insurer shall, within 60 days after receiving a "post-aggravation
rights" new medical condition or omitted medical condition claim, either:
(a) Accept the claim by specifying the condition(s) that have been accepted
by issuing a Modified Notice of Acceptance under ORS 656.262(6) and OAR 436-060-0140
to the claimant with a copy to the claimant’s attorney, if any, and the Workers’
Compensation Division;
(b) Deny the claim by specifying the factual and legal reasons for denying
the condition(s) as provided in OAR 438-012-0070 and/or OAR 438-012-0075, including
a notice as prescribed in OAR 438-012-0070, in a letter mailed to the claimant
with a copy to the claimant’s attorney, if any;
(c) Issue a Notice of Clarification, as described in OAR 438-012-0080,
that is mailed to the claimant and the claimant’s attorney, if any, if no acceptance
of the claim is required because the previously issued Notice(s) of Acceptance
reasonably apprises the claimant and the medical providers of the nature of
the compensable conditions; or
(d) Issue a Notice of Incomplete Claim, as described in OAR 438-012-0085,
that is mailed to the claimant and the claimant’s attorney, if any, if no acceptance
or denial of the claim is required because the document received by the insurer
from the claimant does not clearly request formal written acceptance of a new
medical condition or omitted medical condition.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented.: ORS 656.267(1), (3), ORS 656.278(1)(b) & ORS 656.726(5)
Hist.: WCB 2-2003, f. 7-10-03, cert. ef. 9-1-03
438-012-0030
Insurer Recommendation [of Reopening or
Denial of] For or Against Reopening Claim; Voluntarily Reopening
(1) For all Own Motion claims,
including "post-aggravation rights" new medical condition or omitted medical
condition claims, with a date of injury before January 1, 2002, except
as provided in section (3) of this rule, the own motion insurer shall, within
90 days after receiving an own motion claim, either:
(a) Voluntarily reopen the Own Motion
claim, including any "post-aggravation rights" new medical condition or
omitted medical condition claim, under ORS 656.278(5) to provide benefits
allowable under ORS 656.278 or to grant additional medical or hospital care
to the claimant; or
(b) Submit to the Board a written recommendation as
to whether the Own Motion claim, including any "post-aggravation
rights" new medical condition or omitted medical condition claim, should
be reopened or [denied] not reopened, on a form prescribed
by the Board, accompanied by the required evidence supporting the recommendation.
The own motion insurer shall supply all information and evidence required by
the form. Copies of the recommendation form and any supporting evidence shall
be mailed to the claimant and the claimant’s attorney, if any.
(2) For all Own Motion claims,
including "post-aggravation rights" new medical condition or omitted medical
condition claims, with a date of injury on or after January 1, 2002,
except as provided in section (3) of this rule, the own motion insurer shall,
within 60 days after receiving an own motion claim, either:
(a) Voluntarily reopen the Own Motion
claim, including any "post-aggravation rights" new medical condition or
omitted medical condition claim, under ORS 656.278(5) to provide benefits
allowable under ORS 656.278 or to grant additional medical or hospital care
to the claimant; or
(b) Submit to the Board a written recommendation as
to whether the Own Motion claim, including any "post-aggravation
rights" new medical condition or omitted medical condition claim, should
be reopened or [denied] not reopened, on a form prescribed
by the Board, accompanied by the required evidence supporting the recommendation.
The own motion insurer shall supply all information and evidence required by
the form. Copies of the recommendation form and any supporting evidence shall
be mailed to the claimant and the claimant’s attorney, if any.
(3) In extraordinary circumstances, the Board may
grant the insurer an extension for submission of its recommendation.
(4) In all cases when the own motion insurer voluntarily
reopens the claim under ORS 656.278(5), the insurer shall issue a 3501 Form
to the claimant with copies to the claimant’s attorney, if any, and the Workers’
Compensation Division, Benefits and Policy Services Section. The form shall
be as prescribed by the Director.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.278(1), ORS 656.278(5) & ORS 656.726(5)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 7-1990(Temp), f. 6-14-90, cert.
ef. 7-1-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 1-1994, f. 11-1-94,
cert. ef. 1-1-95, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96;
WCB 2-2001, f. 11-14-01, cert. ef. 1-1-02; WCB 2-2003, f. 7-10-03, cert. ef.
9-1-03
438-012-0031
Notification of Pending Proceedings
Parties to an own motion proceeding shall notify
the Board of any pending proceeding involving a contested case under ORS 656.283
to 656.295, ORS 656.307, or ORS 656.308, an arbitration or mediation proceeding
under ORS 656.307, or a Director’s medical review under ORS 656.245, 656.260,
or 656.327. The parties shall also specify the issues raised in that proceeding.
Stat. Auth.: ORS 654.025(2) & ORS 656.726(4)
Stats. Implemented: ORS 656.278(1) & ORS 656.726(4)
Hist.: WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95, cert. ef. 1-1-95; WCB 2-1995,
f. 11-13-95, cert. ef. 1-1-96
438-012-0032
Consent to Designation of Paying Agent
(1) Except as provided in section (2) of this
rule, when the Benefits Section notifies the Board that it is prepared to issue
an order designating a paying agent under ORS 656.307 and OAR 436-060-0180 if
the Board consents to the order where one or more insurers involved in the proceeding
is subject to ORS 656.278, the Board shall notify the Benefits Section within
ten days whether it consents to the order.
(2) If the Board is unable to determine from the available
evidence whether the claimant would be entitled to own motion relief if the
own motion insurer was determined to be the responsible insurer, the Board may
require the parties to state their positions in writing and submit any supporting
evidence to the Board within ten days. The time for the Board’s response to
the Benefits Section is suspended during this process.
Stat. Auth.: ORS 654.025(2) & ORS 656.726(4)
Stats. Implemented: ORS 656.278(1) & ORS 656.307
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 1-1994, f. 11-1-94, cert. ef.
1-1-95, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96
438-012-0035
Temporary Disability Compensation
(1) The insurer may pay temporary disability compensation
in accordance with the provisions of ORS 656.210, 656.212(2) and 656.262(4)
from the time the attending physician authorizes temporary disability compensation
for the hospitalization, surgery, or other curative treatment until the claimant’s
condition becomes medically stationary in those cases where:
(a) The own motion claim for temporary disability
compensation is filed after the aggravation rights have expired;
(b) There is a worsening of a compensable injury that
results in the inability of the worker to work and requires hospitalization
or inpatient or outpatient surgery, or other curative treatment prescribed in
lieu of hospitalization that is necessary to enable the claimant to return to
work; and
(c) The claimant qualifies as a "worker" pursuant
to ORS 656.005(30). "Worker" does not include a person who has withdrawn from
the work force during the period for which such benefits are sought.
(2) The insurer may pay temporary disability compensation
in accordance with the provisions of ORS 656.210, 656.212(2) and 656.262(4)
from the time the attending physician authorizes temporary disability compensation
for the hospitalization, surgery, or other curative treatment until the claimant’s
condition becomes medically stationary in those cases where:
(a) The claimant submits and obtains acceptance of
a claim for a compensable new medical condition or an omitted medical condition
and the claim is initiated after the aggravation rights under ORS 656.273 have
expired; and
(b) The claimant qualifies as a "worker" pursuant
to ORS 656.005(30). "Worker" does not include a person who has withdrawn from
the work force during the period for which such benefits are sought.
(3) The claimant is deemed to be in the work force
if:
(a) The claimant is engaged in regular employment;
(b) The claimant, although not employed, is willing
to work and is making reasonable efforts to obtain employment; or
(c) The claimant is willing to work, but the claimant
is not employed, and the claimant is not making reasonable efforts to obtain
employment because such efforts would be futile as a result of the effects of
the compensable injury.
(4) The insurer shall make the first payment of temporary
disability compensation in accordance with ORS 656.210, 656.212(2) and
656.262(4) within 14 days from:
(a) the date of an order of the Board reopening the
claim; or
(b) the date the insurer voluntarily reopened the
claim.
(5) Temporary disability compensation shall be paid
until one of the following events first occurs:
(a) The claim is closed pursuant to OAR 438-012-0055;
(b) A claim disposition agreement is submitted to
the Board pursuant to ORS 656.236(1), unless the claim disposition agreement
provides for the continued payment of temporary disability compensation; or
(c) Termination of such benefits is authorized by
the terms of ORS 656.268(4)(a) through (d).
(6) (a) An Own Motion insurer may unilaterally
suspend compensation under the circumstances provided in ORS 656.262(4)(e),
(4)(h), and (4)(i). If the own motion insurer believes that temporary
disability compensation should be suspended for any reason other than
those provided in ORS 656.262(4)(e), (4)(h), and (4)(i), the insurer
may make a written request to the Board for such suspension. [Copies
of the request shall] This request shall:
(i) State the reasons the insurer is requesting that
the Board suspend the claimant’s temporary disability compensation;
(ii) Include copies of supporting documentation; and
(iii) [b]Be mailed to
the claimant and the claimant’s attorney, if any, by certified or registered
mail.
(b) Unless an extension is granted by
the Board, claimant or claimant’s attorney shall have 14 days to respond to
the Board in writing to the request.
(c) Unless an extension is granted by
the Board, the insurer shall have 14 days to reply in writing to claimant’s
response.
(d) The insurer shall not suspend compensation
under this section without prior written authorization by the Board, except
as provided in ORS 656.262(4)(e), (4)(h), and (4)(i).
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.005(30), ORS 656.262(4), ORS 656.268(4), ORS 656.278(1),
ORS 656.278(2) & ORS 656.726(5)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 8-1990(Temp), f. 8-23-90, cert.
ef. 9-15-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 1-1994, f. 11-1-94,
cert. ef. 1-1-95, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96;
WCB 1-1997, f. 3-20-97, cert. ef. 7-1-97; WCB 2-2001, f. 11-14-01, cert. ef.
1-1-02; WCB 2-2003, f. 7-10-03, cert. ef. 9-1-03
438-012-0036
Permanent Disability Compensation
(1) Where the claimant has submitted and obtained
acceptance of a claim for a compensable new medical condition or an omitted
medical condition and the claim was initiated after the aggravation rights under
ORS 656.273 have expired, the insurer may provide any permanent disability benefits
to which the claimant is entitled under application of the Standards adopted
by the Director under ORS 656.726 when the insurer closes the claim pursuant
to OAR 438-012-0055.
(2) Pursuant to ORS 656.278(2)(d), an insurer may
include permanent disability benefits for additional impairment to an injured
body part that has previously been the basis of a permanent partial disability
award, but only to the extent that the permanent partial disability rating exceeds
the permanent partial disability rated by the prior award or awards.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.278(1), ORS 656.278(2) & ORS 656.726(5)
Hist.: WCB 2-2001, f. 11-14-01, cert. ef. 1-1-02
438-012-0037
Payment of Medical Benefits
Except as otherwise provided in OAR 438-012-0020(5),
for every condition resulting from a compensable injury occurring before January
1, 1966, the own motion insurer may pay for reasonable and necessary medical
services when:
(1) Undertaken for curative purposes;
(2) Provided to a claimant who has been determined
to have permanent total disability;
(3) Provided in the form of prescription medications;
(4) Necessary to administer prescription medication
or to monitor administration of prescription medication;
(5) Provided in the form of prosthetic devices, braces
and supports;
(6) Necessary to maintain and monitor the status,
replacement or repair of a prosthetic device, brace or support;
(7) Necessary to diagnose the claimant’s condition;
(8) Necessary to enable the claimant to continue current
employment;
(9) Provided in the form of life-preserving modalities
similar to insulin therapy, dialysis and transfusions; or
(10) The Board determines that special circumstances
justify the provision of further medical services.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.278(1)(c), ORS 656.278(2)(c) & ORS 656.726(5)
Hist.: WCB 8-1990(Temp), f. 8-23-90, cert. ef. 9-15-90; WCB 11-1990, f. 12-13-90,
cert. ef. 12-31-90; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95, cert. ef. 1-1-95;
WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 2-2001, f. 11-14-01, cert. ef.
1-1-02
438-012-0040
Action by Board after Insurer Recommendation
Except as provided in OAR 438-012-0050, within
a reasonable time after receipt of the insurer’s recommendation and supporting
evidence and any additional evidence and argument from the claimant the Board
may:
(1) Issue its order based upon the evidence and argument
submitted by the parties;
(2) Request additional evidence from one or more of
the parties; or
(3) Refer the matter to the Hearings Division for
an evidentiary hearing and recommended findings of fact and conclusions.
Stat. Auth.: ORS 654.025(2) & ORS 656.726(4)
Stats. Implemented: ORS 656.278(1) & ORS 656.726(4)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 1-1994, f. 11-1-94, cert. ef.
1-1-95, cert. ef. 1-1-95;
WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96
438-012-0050
Board Will Act Unless Claimant Has Not Exhausted
Other Available Remedies
(1) The Board will act promptly upon a request
for relief under the provisions of ORS 656.278 and these rules unless:
(a) The claimant has available administrative remedies
under the provisions of ORS 656.273;
(b) The claimant’s condition is the subject of a contested
case under ORS 656.283 to 656.298, ORS 656.307 or ORS 656.308, or an arbitration
or mediation proceeding under ORS 656.307; or
(c) The claimant’s request for payment of temporary
disability compensation is based on surgery or hospitalization or other curative
treatment prescribed in lieu of hospitalization that is necessary to enable
the claimant to return to work that is the subject of either a managed care
dispute resolution review process or a Director’s medical review under ORS 656.245,
656.260 or 656.327;
(d) The claimant’s condition is the subject of litigation
under OAR 438-012-0090 or OAR 438-012-0095.
(2) The Board may postpone its review of the merits
of the claimant’s request for relief if the available remedies set forth in
section (1) of this rule could affect the Board’s authority to award compensation
under the provisions of ORS 656.278.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.278(1) & ORS 656.726(5)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 1-1994, f. 11-1-94, cert. ef.
1-1-95, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 2-2001,
f. 11-14-01, cert. ef. 1-1-02; WCB 2-2003, f. 7-10-03, cert. ef. 9-1-03
438-012-0055
Closure of Claims Reopened Under ORS 656.278
When a claim has been voluntarily reopened or
ordered reopened by the Board and the medical reports indicate to the insurer
that the claimant’s condition has become medically stationary, the claim shall
be closed by the insurer without the issuance of a Board order. In all such
cases the insurer shall issue a Notice of Closure (Form 2066) to the claimant
with copies to the claimant’s attorney, if any, and Benefits Section. The notice
shall be on the form prescribed by the Director and shall inform the claimant
of the amount and duration of temporary disability compensation, the amount
of any permanent disability award determined under ORS 656.278(1)(b) and (2)(d),
and the medically stationary date, and shall include the following notice in
prominent or bold face type:
"IF YOU THINK THIS CLAIM CLOSURE IS WRONG, YOU
MAY ASK THE WORKERS’ COMPENSATION BOARD TO REVIEW IT AND DECIDE WHETHER YOU
ARE ENTITLED TO MORE COMPENSATION. IF YOU DO NOT ASK FOR REVIEW WITHIN 60 DAYS
OF THE DATE OF THIS NOTICE YOU WILL LOSE ANY RIGHT YOU MAY HAVE TO CONTEST THIS
NOTICE UNLESS YOU CAN SHOW GOOD CAUSE FOR DELAY BEYOND 60 DAYS. AFTER 180 DAYS
ALL RIGHTS WILL BE LOST. YOU MAY ASK FOR A REVIEW BY WRITING TO THE BOARD AT
2601 25TH STREET SE, SUITE 150, SALEM, OREGON 97302-1282. YOU MAY HAVE AN ATTORNEY
OF YOUR CHOICE, WHOSE FEE WILL BE LIMITED TO A PERCENTAGE OF ANY MORE COMPENSATION
YOU MAY BE AWARDED."
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.278(1), ORS 656.278(2), ORS 656.278(6) & ORS
656.726(5)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 3-1988(Temp), f. 10-20-88, ef.
11-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 8-1990(Temp), f. 8-23-90, cert.
ef. 9-15-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 1-1994, f. 11-1-94,
cert. ef. 1-1-95, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96;
WCB 1-1999, f. 8-24-99, cert. ef. 11-1-99; WCB 2-2001, f. 11-14-01, cert. ef.
1-1-02
438-012-0060
Board Review of Insurer Closure
(1) The request for Board review of the insurer’s
claim closure pursuant to OAR 438-012-0055(1) shall be in writing, signed by
the claimant or the claimant’s attorney, and shall include, but is not limited
to, the following information:
(a) The claimant’s name and mailing address;
(b) A statement that Board review is requested, and
the reason(s) for the request for review; reasons for requesting
review may include, but are not limited to:
(i) Disagreement with the medically stationary determination;
(ii) Disagreement with the temporary disability compensation awarded, including
rate of payment and/or dates awarded; and/or
(iii) Disagreement with permanent disability compensation awarded, if the
claim was reopened for a "post-aggravation rights" new medical condition claim
and/or omitted medical condition claim. If the claimant disagrees with the impairment
used in rating of the claimant’s permanent disability for such a claim, the
claimant may request appointment of a medical arbiter;
(c) The name of the insurer; and
(d) A copy of the Notice of Closure (Form 2066).
(2) To be considered, the request must be filed with
the Board within 60 days after the mailing date of the notice of closure, or
within 180 days after the mailing date if the claimant establishes good cause
for the failure to file the request within 60 days after the mailing date. The
Board shall notify all parties that review has been requested.
(3) Within [15] 14 days after
notification from the Board that a review has been requested, the insurer shall
submit to the Board and to the claimant and the claimant’s attorney, if any,
legible copies of all evidence which pertains to the claimant’s compensable
condition at the time of closure, including any evidence relating to permanent
disability. The insurer may also submit written arguments at this time, with
copies to the claimant or the claimant’s attorney, if any.
(4) The claimant may submit additional evidence and
written argument to the Board, with copies to the insurer or its attorney, if
any. To be considered, such evidence and argument must be submitted within [15]
21 days from the date the insurer mails the evidence pursuant
to section (3) of this rule.
(5) No additional written argument may be submitted
unless authorized by the Board.
(6) The Board may[, prior to issuing its order,]
refer a matter to the Hearings Division for an evidentiary hearing and recommended
findings of fact and conclusions.
(7) The Board shall issue its order within a reasonable
time after receipt of all evidence and argument from the parties and any recommendations
from the Hearings Division.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.278(1), ORS 656.278(6) & ORS 656.726(5)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89;
WCB 2-1990, f. 1-24-90, cert. ef. 2-28-90; WCB 1-1994, f. 11-1-94, cert. ef.
1-1-95, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 1-1997,
f. 3-20-97, cert. ef. 7-1-97; WCB 2-2001, f. 11-14-01, cert. ef. 1-1-02; WCB
2-2003, f. 7-10-03, cert. ef. 9-1-03
438-012-0061
Board Review of Voluntary Reopening of an Own
Motion Claim
(1) If a dispute arises out of a voluntary reopening
of a claim under ORS 656.278(5), a party may file a written request for Board
review, with copies to the other party.
(2) Within 14 days after notification from the Board
that a review has been requested, the insurer shall submit to the Board and
to the claimant or the claimant’s attorney, if any, legible copies of all evidence
which pertains to the claimant’s compensable condition at the time of the voluntary
reopening. The insurer may also submit written arguments at this time, with
copies to the claimant or the claimant’s attorney, if any.
(3) The claimant may submit additional evidence and
written argument to the Board, with copies to the insurer or its attorney, if
any. To be considered, such evidence and argument must be submitted within 21
days from the date the insurer mails the evidence and argument pursuant to section
(2) of this rule.
(4) The Board may[, prior to issuing its order,]
refer a matter to the Hearings Division for an evidentiary hearing and recommended
findings of fact and conclusions.
(5) The Board shall issue its order within a reasonable
time after receipt of all evidence and argument from the parties and any recommendations
from the Hearings Division.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.278(1), ORS 656.278(5) & ORS 656.726(5)
Hist.: WCB 2-2001, f. 11-14-01, cert. ef. 1-1-02; WCB 2-2003, f. 7-10-03, cert.
ef. 9-1-03
438-012-0062
Referral of Request for Enforcement of Board’s
Own Motion Order and Request for Suspension of Temporary Disability Compensation
to Hearings Division
(1) The Board may refer a request to enforce an
own motion order to the Hearings Division for an evidentiary hearing and recommended
findings of fact and conclusions.
(2) The Board may refer a request for suspension of temporary disability
compensation under OAR 438-012-0035(6) to the Hearings Division
for an evidentiary hearing and recommended findings of fact and conclusions.
[(2)](3) The Board shall issue its order
within a reasonable time after receipt of all evidence and argument from the
parties and any recommendations from the Hearings Division.
Stat. Auth.: ORS 654.025(2) & ORS 656.726(5)
Stats. Implemented: ORS 656.278(1) & ORS 656.726(5)
Hist.: WCB 2-1989, f. 3-3-89, ef. 4-1-89; WCB 1-1994, f. 11-1-94, cert. ef.
1-1-95, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 2-2003,
f. 7-10-03, cert. ef. 9-1-03
438-012-0065
Reconsideration of Own Motion Orders
(1) All final orders issued by the Board under
the provisions of ORS 656.278 shall set forth the parties, the request for relief,
the Board’s decision and shall advise all parties of appeal rights.
(2) A motion for reconsideration of a final order
issued by the Board under the provisions of ORS 656.278 shall be filed within
30 days after the date of mailing of the order, or within 60 days after the
mailing date if the party requesting reconsideration establishes good cause
for the failure to file the request within 30 days after the mailing date.
(3) Notwithstanding section (2) of this rule, in extraordinary
circumstances the Board may, on its own motion, reconsider any prior Board order.
Stat. Auth.: ORS 654.025(2) & ORS 656.726(4)
Stats. Implemented: ORS 656.278(1), ORS 656.278(3) & ORS 656.726(4)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89;
WCB 2-1990, f. 1-24-90, cert. ef. 2-28-90; WCB 1-1994, f. 11-1-94, cert. ef.
1-1-95, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96
438-012-0070
Notice of Denial of "Post-Aggravation Rights" New Medical Condition or
Omitted Medical Condition Claim
When an Own Motion insurer denies a "post-aggravation rights" new medical
condition or omitted medical condition claim, the notice of denial shall:
(1) Specify the factual and legal reasons for denial;
(2) Be mailed to the claimant and the claimant’s attorney, if any; and
(3) Contain a notice, in prominent or bold face type, as follows:
"IF YOU THINK THIS DENIAL IS NOT RIGHT, WITHIN 60 DAYS AFTER THE MAILING
OF THIS DENIAL, YOU MUST FILE A LETTER WITH THE WORKERS’ COMPENSATION BOARD,
2601 25TH STREET SE, SUITE 150, SALEM OREGON 97302-1282. YOUR LETTER
MUST STATE THAT YOU WANT A HEARING, YOUR ADDRESS AND THE DATE OF YOUR ACCIDENT
IF YOU KNOW THE DATE. YOUR REQUEST CANNOT, BY LAW, AFFECT YOUR EMPLOYMENT. IF
YOU DO NOT FILE A REQUEST WITHIN 60 DAYS, YOU WILL LOSE ANY RIGHT YOU MAY HAVE
TO COMPENSATION FOR THE DENIED CLAIM UNLESS YOU CAN SHOW GOOD CAUSE FOR DELAY
BEYOND 60 DAYS. AFTER 180 DAYS ALL YOUR RIGHTS WILL BE LOST. YOU MAY BE REPRESENTED
BY AN ATTORNEY OF YOUR CHOICE AT NO COST TO YOU FOR ATTORNEY FEES. IF YOU HAVE
QUESTIONS YOU MAY CALL THE WORKERS’ COMPENSATION DIVISION TOLL FREE IN OREGON
1-800-452-0288 OR IN SALEM OR FROM OUTSIDE OREGON AT (503)947-7585."
Stat. Auth.: ORS 656.726(5)
Stats. Implemented.: ORS 656.267(1), (3), ORS 656.278(1)(b) & ORS 656.726(5)
Hist.: WCB 2-2003, f. 7-10-03, cert. ef. 9-1-03
438-012-0075
Notice of Denial of Responsibility for "Post-Aggravation Rights" New
Medical Condition or Omitted Medical Condition Claim
(1) If an Own Motion insurer intends to deny responsibility for a "post-aggravation
rights" new medical condition or omitted medical condition claim, the insurer
shall, within the time prescribed in OAR 438-012-0024 for processing the claim,
so indicate in or as part of a denial otherwise meeting the requirements of
OAR 438-012-0070.
(2) The notice shall:
(a) Identify the condition(s) for which responsibility is being denied;
(b) State the factual and legal reasons for the denial; and
(c) Advise the claimant to file separate, timely claims against other
potentially responsible insurers or self-insured employers, including other
insurers for the same employer, in order to protect the claimant’s rights to
obtain benefits on the claim.
(3) The denial may:
(a) List the names and addresses of other insurers or self-insured employers
who may be responsible for the claimant’s condition; and
(b) State whether the Own Motion insurer has requested the appointment
of a paying agent pursuant to ORS 656.307.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented.: ORS 656.267(1), (3), ORS 656.278(1)(b) & ORS 656.726(5)
Hist.: WCB 2-2003, f. 7-10-03, cert. ef. 9-1-03
438-012-0080
Notice of Clarification in Response to "Post-Aggravation Rights" New
Medical Condition or Omitted Medical Condition Claim
A Notice of Clarification under OAR 438-012-0024(1)(c) and (2)(c) shall:
(1) Specify the factual and legal reasons for the Own Motion insurer’s
decision that no acceptance of a "post-aggravation rights" new medical condition
or omitted medical condition claim is required;
(2) Be mailed to the claimant and the claimant’s attorney, if any; and
(3) Contain a notice, in prominent or bold face type, as follows:
"IF YOU THINK THIS NOTICE OF CLARIFICATION IS NOT RIGHT, WITHIN 60 DAYS
AFTER THE MAILING OF THIS NOTICE, YOU MUST FILE A LETTER WITH THE WORKERS’ COMPENSATION
BOARD, 2601 25TH STREET SE, SUITE 150, SALEM OREGON 97302-1282. YOUR
LETTER MUST STATE THAT YOU WANT A HEARING, YOUR ADDRESS AND THE DATE OF YOUR
ACCIDENT IF YOU KNOW THE DATE. YOUR REQUEST CANNOT, BY LAW, AFFECT YOUR EMPLOYMENT.
IF YOU DO NOT FILE A REQUEST WITHIN 60 DAYS, YOU WILL LOSE ANY RIGHT YOU MAY
HAVE TO APPEAL THE NOTICE UNLESS YOU CAN SHOW GOOD CAUSE FOR DELAY BEYOND 60
DAYS. AFTER 180 DAYS ALL YOUR RIGHTS WILL BE LOST. IF YOU HAVE QUESTIONS YOU
MAY CALL THE WORKERS’ COMPENSATION DIVISION TOLL FREE IN OREGON 1-800-452-0288
OR IN SALEM OR FROM OUTSIDE OREGON AT (503)947-7585."
Stat. Auth.: ORS 656.726(5)
Stats. Implemented.: ORS 656.267(1), (3), ORS 656.278(1)(b) & ORS 656.726(5)
Hist.: WCB 2-2003, f. 7-10-03, cert. ef. 9-1-03
438-012-0085
Notice of Incomplete Claim in Response to "Post-Aggravation Rights" New Medical
Condition or Omitted Medical Condition Claim
A Notice of Incomplete Claim under OAR 438-012-0024(1)(d) and
(2)(d) shall:
(1) Specify the factual and legal reasons for the Own Motion insurer’s decision
that no acceptance or denial of a "post-aggravation rights" new medical condition
or omitted medical condition claim is required;
(2) Be mailed to the claimant and the claimant’s attorney, if any; and
(3) Contain a notice, in prominent or bold face type, as follows:
"IF YOU THINK THIS NOTICE OF INCOMPLETE CLAIM IS NOT RIGHT, WITHIN 60 DAYS
AFTER THE MAILING OF THIS NOTICE, YOU MAY FILE A LETTER WITH THE WORKERS’ COMPENSATION
BOARD (ATTENTION: OWN MOTION SECTION), 2601 25TH STREET SE, SUITE
150, SALEM OREGON 97302-1282. YOUR LETTER MUST STATE THAT YOU WANT BOARD REVIEW,
YOUR ADDRESS AND THE DATE OF YOUR ACCIDENT IF YOU KNOW THE DATE. YOUR REQUEST
CANNOT, BY LAW, AFFECT YOUR EMPLOYMENT. IF YOU HAVE QUESTIONS YOU MAY CALL THE
WORKERS’ COMPENSATION DIVISION TOLL FREE IN OREGON 1-800-452-0288 OR IN SALEM
OR FROM OUTSIDE OREGON AT (503)947-7585."
Stat. Auth.: ORS 656.726(5)
Stats. Implemented.: ORS 656.267(1), (3), ORS 656.278(1)(b) & ORS 656.726(5)
Hist.: WCB 2-2003, f. 7-10-03, cert. ef. 9-1-03
438-012-0090
Hearing Procedures Regarding Denial and/or Clarification Notice of "Post-Aggravation
Rights" New Medical Condition or Omitted Medical Condition Claims; Proposed
and Final Own Motion Order; Notice of Appeal Rights
(1) Requests for hearing regarding a denial under OAR 438-012-0070 and/or
OAR 438-012-0075 or a Notice of Clarification under OAR 438-012-0080 of a "post-aggravation
rights" new medical condition or omitted medical condition claim shall be processed
by the Hearings Division pursuant to the procedures for ordinary cases prescribed
in Divisions 006 and 007.
(2) Within 30 days of closure of the hearing record, the Administrative
Law Judge shall decide the issues arising from the hearing request(s) from a
denial and/or clarification notice of a "post-aggravation rights" new medical
condition or omitted medical condition claim(s) by issuing a "Proposed and Final
Own Motion Order," including the following written statement, in prominent or
bold face type, concerning the parties’ rights of appeal:
NOTICE TO ALL PARTIES: If you are dissatisfied with this Proposed and
Final Own Motion Order, you may, within thirty (30) days after the mailing date
on this Order, request review by the Workers’ Compensation Board (Own Motion
Section), 2601 25th St. SE, Suite 150, Salem, OR 97302-1282. Any
such request shall either be delivered or mailed to the Board at the above address.
Copies of the request should also be mailed to all other parties to this proceeding.
Failure to deliver or mail the request for review to the Board within
the time allowed will result in the loss of your right to appeal this Own Motion
Order and the Board will be unable to review the Administrative Law Judge’s
decision, which shall, as a matter of law, constitute a Final Own Motion Order
of the Board.
(3) If a request for review of an Administrative Law Judge’s "Proposed
and Final Own Motion Order" is not filed with the Board within 30 days of the
mailing of the order, the order shall, as a matter of law, constitute a Final
Own Motion Order of the Board.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented.: ORS 656.267(1), (3), ORS 656.278(1)(b) & ORS 656.726(5)
Hist.: WCB 2-2003, f. 7-10-03, cert. ef. 9-1-03
438-012-0095
Board Review of Administrative Law Judge’s Proposed and Final Own Motion
Order
(1) Within a reasonable time after receiving a timely-filed request for
review of an Administrative Law Judge’s "Proposed and Final Own Motion Order,"
the Board will, by mail, acknowledge the request(s) for review, provide copies
of the hearing transcript to the parties or their attorneys, and announce a
briefing schedule.
(2) The briefing schedule will provide that the requesting party’s appellant’s
brief will be due within 21 days from the date of the Board’s letter. The respondent’s
/ cross-appellant’s brief will be due within 21 days from the date of mailing
of the appellant’s brief. The appellant’s / cross-respondent’s brief will be
due within 14 days from the date of mailing of the respondent’s / cross-appellant’s
brief. The cross-appellant’s reply brief will be due within 14 days from the
date of mailing of the cross-respondent’s brief. Unless otherwise authorized
by the Board, no other briefs will be considered. Extensions to the briefing
schedule may be granted by the Board in the manner described in OAR 438-011-0020(3).
The Board may waive its briefing schedule rules on a finding that extraordinary
circumstances justify such an action.
(3) Review by the Board of the Administrative Law Judge’s "Proposed and
Final Own Motion Order" is de novo based on the entire record developed
at the Hearings Division. If the record is improperly, incompletely, or otherwise
insufficiently developed, the Board may:
(a) Admit additional documentary evidence into the record; or
(b) Remand the case to the Administrative Law Judge to take additional
evidence and issue a "Proposed and Final Own Motion Order on Remand."
Stat. Auth.: ORS 656.726(5)
Stats. Implemented.: ORS 656.267(1), (3), ORS 656.278(1)(b) & ORS 656.726(5)
Hist.: WCB 2-2003, f. 7-10-03, cert. ef. 9-1-03
438-012-0100
Board Review of Request for Review of Notice of Incomplete Claim
(1) Within a reasonable time after receiving a request for review of
an Own Motion insurer’s Notice of Incomplete Claim under OAR 438-012-0085, the
Board will, by mail, acknowledge the request.
(2) Within 14 days after notification from the Board that a review has
been requested, the Own Motion insurer shall submit to the Board and to the
claimant or the claimant’s attorney, if any, legible copies of all evidence
which pertains to the claimant’s compensable condition at the time of the insurer’s
Notice of Incomplete Claim. The insurer’s submission may also include its written
position regarding the request for review, with copies to the claimant or the
claimant’s attorney, if any.
(3) The claimant or the claimant’s attorney may submit additional evidence
and written argument to the Board, with copies to the Own Motion insurer or
its attorney, if any. To be considered, such evidence and argument must be submitted
within 21 days from the date the Own Motion insurer mails the evidence and its
written position to the Board pursuant to section (2).
(4) The Board may refer a matter to the Hearings Division for an evidentiary
hearing and recommended findings of fact and conclusions.
(5) The Board shall issue its order within a reasonable time after receipt
of all evidence and argument from the parties and any recommendations from the
Hearings Division.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented.: ORS 656.267(1), (3), ORS 656.278(1)(b) & ORS 656.726(5)
Hist.: WCB 2-2003, f. 7-10-03, cert. ef. 9-1-03
438-015-0080
Attorney Fees In Own Motion Cases
(1) If an attorney is instrumental in obtaining increased
temporary disability compensation, the Board shall approve a reasonable attorney
fee, not to exceed $1,500, payable out of the increased compensation.
(2) If an attorney is instrumental in obtaining a voluntary
reopening of an Own Motion claim that results in increased temporary disability
compensation, the Board shall approve a reasonable attorney fee, not to exceed
$1,500, payable out of any increased temporary disability compensation resulting
from the voluntary reopening.
[(2)](3) If the Board awards additional
compensation for permanent disability, the Board shall approve a reasonable
attorney fee in the amounts prescribed in OAR 438-015-0040, payable out of the
increased compensation.
[(3)](4) The Board may allow a fee in
excess of the amounts prescribed in sections (1) through (3) of
this [section] rule upon a finding that extraordinary services
have been rendered.
(5) If an Own Motion insurer denies a "post-aggravation rights" new medical
condition or omitted medical condition claim pursuant to OAR 438-012-0070 and/or
OAR 438-012-0075 and an attorney is instrumental in obtaining a rescission of
the denial prior to a decision by the Administrative Law Judge, the Administrative
Law Judge or the Board shall award a reasonable assessed fee.
(6) If the Administrative Law Judge orders the acceptance of a previously
denied "post-aggravation rights" new medical condition or omitted medical condition
claim, the Administrative Law Judge shall award a reasonable assessed fee.
(7) If an Own Motion insurer requests or cross-requests review of an Administrative
Law Judge’s Own Motion Order regarding a denied "post-aggravation rights" new
medical condition or omitted medical condition claim and the Board affirms that
order, the Board shall award a reasonable assessed fee.
(8) If a claimant requests review or cross-requests review of an Administrative
Law Judge’s Own Motion Order that upheld a denial of a "post-aggravation rights"
new medical condition or omitted medical condition claim and the Board orders
the claim accepted, the Board shall award a reasonable assessed fee for the
claimant’s attorney’s services at hearing and on Board review.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.267(3), ORS 656.278(1), ORS 656.386(1), (2) &
ORS 656.388(3)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89;
WCB 2-1990, f. 1-24-90, cert. ef. 2-28-90; WCB 7-1990(Temp), f. 6-14-90, cert.
ef. 7-1-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 1-1998, f. 11-20-98,
cert. ef. 2-1-99; WCB 2-2001, f. 11-14-01, cert. ef. 1-1-02; WCB 2-2003, f.
7-10-03, cert. ef. 9-1-03