Oregon Bulletin
Rule
Caption: Disputed Claim Settlements
— implements amendments to ORS 656.313(4)(d) made by SB 173.
Adm.
Order No.: WCB 1-2011
Filed with Sec. of
State: 11-2-2011
Certified to be
Effective: 1-1-12
Notice Publication
Date: 9-1-2011
Rules Amended: 438-009-0010
Subject: Amends OAR 438-009-0010 to implement Senate Bill 173
(SB 173) that amends ORS 656.313(4)(d), which concerns reimbursement to medical
service/health insurance providers from
Disputed Claim Settlements and the ability of a provider to recover the balance
of amounts owing for such services directly from the worker.
Rules Coordinator: Vicky Scott—(503) 378-3308
438-009-0010
Disputed Claim Settlements
(1) Any document submitted for approval by the Board or
the Hearings Division as a settlement of a denied or disputed claim shall be in
the form specified by this rule.
(2) A disputed claim settlement shall recite, at a
minimum:
(a) The date and nature of the claim;
(b) That the claim has been denied and the date of the
denial;
(c) That a bona fide dispute as to the compensability
of all or part of the claim exists and that the parties have agreed to
compromise and settle all or part of the denied and disputed claim under the
provisions of ORS 656.289(4);
(d) The factual allegations and legal positions in
support of the claim;
(e) The factual allegations and legal positions in
support of the denial of the claim;
(f) That each of the parties has substantial evidence
to support the factual allegations of that party;
(g) A list of medical service providers who shall
receive reimbursement in accordance with ORS 656.313(4), including the specific
amount each provider shall be reimbursed, and the parties’ acknowledgment that
this reimbursement allocation complies with the reimbursement formula
prescribed in 656.313(4)(d); and
(h) The terms of the settlement, including the specific
date on which those terms were agreed.
(3) If an accepted claim is later denied entirely at
any time based on fraud, misrepresentation or other illegal activity by the
worker, the disputed claim settlement shall further recite the specific factual
allegations and legal positions of the parties concerning the fraud,
misrepresentation or other illegal activity.
(4) If a claim was previously accepted in good faith
but later denied, in whole or in part, based on later obtained evidence that
the claim is not compensable or evidence that the paying agent is not
responsible for the claim, the disputed claim settlement shall further recite:
(a) If the accepted claim is later denied entirely at
any time up to two years from the date of claim acceptance, an allegation that
the self-insured employer or insurer has obtained later evidence that the claim
is not compensable or that the paying agent is not responsible for the claim;
or
(b) If the denial is a denial of aggravation, current
need for medical services or a partial denial of a medical condition on the
ground that the condition is not related to the accepted injury, that the
claimant retains all rights that may later arise under ORS 656.245, 656.273,
656.278 and 656.340, insofar as these rights may be related to the original
accepted claim.
(5) If the claimant is unrepresented, the denial of the
claim which is being settled by any document described in section (1) of this
rule shall not be contained within that document, but rather shall be issued
separately. In addition, any document described in section (1) of this rule
shall recite that the unrepresented claimant has been orally advised of the
following matters:
(a) The right to an attorney of the claimant’s choice
at no cost to the claimant for attorney fees;
(b) The existence of the office of the Ombudsman
pursuant to ORS 656.709;
(c) Except with the consent of the worker,
reimbursement made to medical service providers from the proceeds of a disputed
claim settlement shall not exceed 40 percent of the total present value of the
settlement amount; and
(d) Reimbursement from the proceeds of a disputed claim
settlement made to medical service providers shall not prevent a medical
service provider or health insurance provider from recovering the balance of
amounts owing for such services directly from the worker, unless the worker
agrees to pay all medical service providers directly from the settlement
proceeds the amount provided under ORS 656.248.
(6) Any document described in section (1) of this rule
shall also recite that the claimant has been orally advised that:
(a) The claimant has the right to request a hearing concerning
the claim, after which an Administrative Law Judge will determine whether the
claimant will receive workers’ compensation benefits;
(b) If, following the hearing, the claim is finally
determined compensable, the claimant would be entitled to workers’ compensation
benefits, which could include temporary disability, permanent disability,
medical treatment, and vocational rehabilitation;
(c) If, following the hearing, the claim is finally
determined not compensable, the claimant would not be entitled to workers’
compensation benefits;
(d) As a result of this agreement, the claimant’s
rights to seek workers’ compensation benefits concerning this claim would be
extinguished;
(e) Both parties agree that the terms of the agreement
are reasonable; and
(f) The agreement shall not be binding upon the parties
unless and until the agreement is approved by an Administrative Law Judge or
the Board, depending upon which forum is considering the dispute.
(7) No document described in section (1) of this rule shall
be approved unless the document submitted by the parties establishes that a
bona fide dispute as to compensability exists and the proposed disposition of
the dispute is reasonable. If an Administrative Law Judge or the Board
is not satisfied that a bona fide dispute exists or
that disposition of the dispute is reasonable, the Administrative Law Judge or
Board may reject the agreement or specify the manner in which objection(s) can
be cured.
(8) All disputed claim settlements shall:
(a) Recite whether a claim disposition agreement in the
claim has been filed; and
(b) Be in a separate document from a claim disposition
agreement.
Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.236,
656.289(4) & 656.313(4)
Hist.: WCB 1-1984, f. 4-5-84, ef.
5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 5-1990, f. 4-19-90, cert. ef.
5-21-90; 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 3-1993, f. 10-27-93, cert. ef. 11-4-93; WCB
2-1995, f. 11-13-96, cert. ef. 1-1-96; WCB 3-2001, f. 11-14-01, cert. ef.
1-1-02; WCB 1-2004, f. 6-23-04 cert. ef. 9-1-04; WCB 2-2007, f. 12-11-07, cert.
ef. 1-1-08; WCB 1-2011, f. 11-2-11, cert. ef. 1-1-12
Notes
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