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The Oregon Administrative Rules contain OARs filed through November 15, 2016
 
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DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,
WORKERS' COMPENSATION DIVISION

 

DIVISION 75

RETROACTIVE PROGRAM 

436-075-0001

Authority for Rules

These rules are promulgated under the director’s authority in ORS 656.726 and 656.506.

Stat. Auth.: ORS 656.506 & 656.726
Stats. Implemented: ORS 656.506
Hist.: WCD 4-1989, f. 12-22-89, cert. ef. 1-1-90; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16

436-075-0002

Purpose

The purpose of these rules is to establish guidelines for administering disbursements made from the Retroactive Program.

Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.506
Hist.: WCD 4-1989, f. 12-22-89, cert. ef. 1-1-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98

436-075-0003

Applicability of Rules

(1) These rules are effective January 1, 2016, and apply to all requests for reimbursement from the Retroactive Program involving benefits payable under:

(a) ORS 656.204 Death

(b) ORS 656.206 Permanent Total Disability

(c) ORS 656.208 Death During Permanent Total Disability

(d) ORS 656.210 Temporary Total Disability for injuries before April 1, 1974.

(2) The director may waive procedural rules as justice requires, unless otherwise obligated by statute.

Stat. Auth.: ORS 656.209, 656.206, 656.208, 656.210, 656.236, 656.289 & 656.506
Stats. Implemented: ORS 656.204, 656.206, 656.208, 656.210, 656.276, 656.289 & 656.506
Hist.: WCD 4-1989, f. 12-22-89, cert. ef. 1-1-90; WCD 10-1990(Temp), f. 6-18-90, cert. ef. 7-1-90; WCD 23-1990, f. 11-29-90, cert. ef. 12-26-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16

436-075-0005

Definitions

Except where the context requires otherwise, these rules are governed by the following definitions:

(1) “Beneficiaries” are those persons as defined in ORS 656.005.

(2) “Child” is as defined in the laws applicable at the worker’s date of injury.

(3) “Department” means the Department of Consumer and Business Services.

(4) “Director” means the director of the Department of Consumer and Business Services or the director’s designee.

(5) “Disposition” or “claim disposition” means the written agreement executed by all parties in which a claimant agrees to release rights, or agrees to release an insurer or self-insured employer from obligations, under ORS 656.001 to 656.794, except for medical services, in an accepted claim.

(6) “Insurer” means the State Accident Insurance Fund Corporation, an insurer authorized under ORS Chapter 731 to transact workers’ compensation insurance in this state, or an employer or employer group that has been certified as self-insured under ORS 656.430.

(7) “Performance Section” means the Performance Section of the Workers’ Compensation Division of the Department of Consumer and Business Services.

(8) “Retroactive Program benefit” means that additional benefit paid to eligible claimants or beneficiaries to bring their benefits to a more current level.

(9) “Social Security offset” means a reduction of permanent total disability benefits or fatal benefits based on the amount of federal social security disability benefits received by a worker or surviving spouse.

(10) “Spouse” means the spouse of a worker. This definition includes cohabitants under ORS 656.226.

(11) “Statutory benefit” means any benefit payable to or on behalf of the injured worker under the law in effect at the time of the worker’s injury, as modified by marital and dependency status changes.

(12) “Through” means inclusion of a specific date.

(13) “To” means until but not including a specific date.

Stat. Auth.: ORS 656.726
Stats. Implemented: ORS 656.726
Hist.: WCD 4-1989, f. 12-22-89, cert. ef. 1-1-90; WCD 10-1990(Temp), f. 6-18-90, cert. ef. 7-1-90; WCD 23-1990, f. 11-29-90, cert. ef. 12-26-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16

436-075-0006

Administration of Rules

In administering these rules, orders of the Performance Section are deemed orders of the director.

Stat. Auth.: ORS 656.726
Stats. Implemented: ORS 656.726
Hist.: WCD 4-1989, f. 12-22-89, cert. ef. 1-1-90; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16

436-075-0008

Administrative Review

(1) Any party as defined by ORS 656.005 aggrieved by a proposed order or proposed assessment of civil penalty of the director or division issued under ORS 656.745 or 656.750 may request a hearing by the Hearings Division of the Workers’ Compensation Board under ORS 656.740.

(a) The request for hearing must be sent in writing to the Administrator of the Workers’ Compensation Division. No hearing will be granted unless the request specifies the grounds on which the person requesting the hearing contests the proposed order or assessment.

(b) The request for hearing must be filed with the Administrator of the Workers’ Compensation Division by the aggrieved person within 60 days after the mailing of the proposed order or assessment. No hearing will be granted unless the request is mailed or delivered to the administrator within 60 days after the mailing date of the proposed order or assessment.

(2) Under ORS 656.704(2), any party that disagrees with an action or order of the director under these rules, other than as described in section (1), may request a hearing by filing a request for hearing under OAR 436-001-0019 within 30 days of the mailing date of the order or notice of action. OAR 436-001 applies to the hearing.

Stat. Auth.: ORS 656.740, 656.745 & 656.750
Stats. Implemented: ORS 656.704, 656.740, 656.745, 656.750 & 2005 OL Ch. 26
Hist.: WCD 4-1989, f. 12-22-89, cert. ef. 1-1-90; WCD 10-1990(Temp), f. 6-18-90, cert. ef. 7-1-90; WCD 23-1990, f. 11-29-90, cert. ef. 12-26-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 12-2003, f. 12-4-03, cert. ef. 1-1-04; WCD 7-2005, f. 10-20-05, cert. ef. 1-2-06; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16

436-075-0010

Criteria for Eligibility

(1) The department will issue a bulletin to notify all insurers of changes in the Retroactive Program benefit levels whenever the director determines a change is necessary under ORS 656.506(7).

(2) Eligibility for Retroactive Program benefits is based on the worker’s injury date as follows:

(a) Workers or beneficiaries eligible to receive either death or permanent total disability benefits become eligible for Retroactive Program benefit increases when the benefits granted under the Retroactive Program bulletin exceed the benefits provided by the statute in effect at the time of the injury.

(b) For workers receiving temporary total disability benefits, the injury must have occurred before July 1, l973. Workers with injuries occurring between July 1, 1973 and April 1, 1974 may qualify for benefits according to the limits defined in the Retroactive Program bulletin. Workers injured on or after April 1, 1974 are not entitled to receive Retroactive Program increases to their temporary total disability benefit.

(3) A claim is not eligible for Retroactive Program benefits if all issues except compensable medical services are disposed of under ORS 656.236 or settled under ORS 656.289 before becoming eligible under section (2) of this rule.

(4) Costs for claims of subject workers of a noncomplying employer under ORS 656.052 are not eligible for reimbursement from the program, but remain a cost recoverable from the employer under ORS 656.054(3).

Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.236, 656.289 & 656.506
Hist.: WCD 4-1989, f. 12-22-89, cert. ef. 1-1-90; WCD 23-1990, f. 11-29-90, cert. ef. 12-26-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16

436-075-0020

Death Benefit

(1) Death benefits must be paid to eligible beneficiaries under ORS 656.204 and the Retroactive Program benefit schedules.

(2) Burial benefits must be paid under ORS 656.204(1) and the Retroactive Program benefit schedules.

(3) The statutory death benefit for injuries occurring from July 1, 1973 to April 1, 1974 will be reduced by the Social Security benefit received, up to the July 1, 1973 statutory benefit level. The amount of reduction to the statutory benefit is a Retroactive Program benefit. The insurer may request reimbursement only for the adjusted Retroactive Program benefit.

(4) Benefits payable for a partial month must be calculated by dividing the monthly benefit by the actual number of days in the month and multiplying that result by the number of days payable.

(5) Benefits for beneficiaries must be paid to the date of any status change.

(6) Remarriage allowance must be paid under ORS 656.204 and the Retroactive Program benefit schedules.

(7) At least once every two years, the insurer must verify that all beneficiaries receiving death benefits for which the insurer may request reimbursement from the Retroactive Program are alive and remain eligible for those benefits. Insurers’ questions regarding beneficiaries’ status must be reasonably pertinent to the continuing eligibility of those persons for benefits.

Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.204
Hist.: WCD 4-1989, f. 12-22-89, cert. ef. 1-1-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16

436-075-0030

Permanent Total Disability Benefit

(1) Permanent total disability benefits must be paid under ORS 656.206 and the benefit schedules in the Retroactive Program bulletin.

(2) Benefit amounts payable for a partial month must be calculated under 436-075-0020(4).

(3) Benefits for beneficiaries must be paid to the date of any status change.

(4) Any Social Security offset determined under ORS 656.209 must first be applied against the statutory portion of the permanent total disability benefit. Any amount of the Social Security offset that exceeds the statutory benefit must be applied against the Retroactive Program benefit. The insurer may request reimbursement only for that portion of the Retroactive Program benefit that has not been offset.

(5) At least once every two years, the insurer must verify that all beneficiaries receiving benefits for which the insurer may request reimbursement from the Retroactive Program are alive and remain eligible for those benefits. Such “status checks” of beneficiaries may occur at the same time the insurer reexamines the permanent total disability claim under OAR 436-030-0065(1). Insurers’ questions regarding beneficiaries’ status must be reasonably pertinent to the continuing eligibility of those persons for benefits.

Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.206 & 656.209
Hist.: WCD 4-1989, f. 12-22-89, cert. ef. 1-1-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16

436-075-0040

Death During Permanent Total Disability

(1) If the injured worker dies during the period of permanent total disability, death benefits must be paid to eligible beneficiaries under ORS 656.208, 656.204, and the Retroactive Program benefit schedules.

(2) Permanent total disability benefits must be paid to the date of death, at which time death benefits will begin. Where death benefits are not due, permanent total disability benefits must be paid through the date of death.

(3) The Social Security benefit for injuries occurring between July 1, 1973 and April 1, 1974 must be applied under OAR 436-075-0020(3).

(4) Benefit amounts payable for a partial month must be calculated under OAR 436-075-0020(4).

(5) Burial benefits must be paid under ORS 656.208(1), 656.204(1), and the Retroactive Program benefit schedules. However, if the injury date is before July 1, 1973, burial benefits are due only if death results from the accidental injury causing the permanent total disability.

(6) At least once every two years, the insurer must verify that all beneficiaries receiving death benefits for which the insurer may request reimbursement from the Retroactive Program are alive and remain eligible for those benefits. Insurers’ questions regarding beneficiaries’ status must be reasonably pertinent to the continuing eligibility of those persons for benefits.

Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.204 & 656.208
Hist.: WCD 4-1989, f. 12-22-89, cert. ef. 1-1-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16

436-075-0050

Temporary Total Disability

(1) Temporary total disability benefits must be paid under ORS 656.210, OAR 436-060-0150, and the benefit schedules in the Retroactive Program bulletin.

(2) The computation of benefits under these rules and the Retroactive Program bulletin may not reduce temporary total disability benefits currently being paid.

Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.210
Hist.: WCD 4-1989, f. 12-22-89, cert. ef. 1-1-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16

436-075-0065

Dispositions

(1) Disposition of the claim by the parties under ORS 656.236, or settlement of the claim under ORS 656.289, is not eligible for reimbursement from the Retroactive Program unless made with the director’s prior written approval.

(2) Requests for written approval of proposed dispositions must include:

(a) A copy of the proposed disposition that specifies the amount of the proposed contribution to be made from the Retroactive Program;

(b) A statement from the insurer indicating how the amount of the contribution was calculated; and

(c) Any other information required by the director.

(3) The director will not approve the disposition for reimbursement if:

(a) The ratio of the amount requested from the program to the total amount of the disposition exceeds the percentage of current benefits due the worker from the program; or

(b) The settlement exceeds a reasonable projection of future liability.

(4) The insurer must submit dispositions to the division in the format prescribed by the director.

Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.236 & 656.289
Hist.: WCD 10-1990(Temp), f. 6-18-90, cert. ef. 7-1-90; WCD 23-1990, f. 11-29-90, cert. ef. 12-26-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16

436-075-0070

Reimbursement

(1) Reimbursement from the Retroactive Program will be authorized by the Performance Section on a quarterly basis.

(2) Requests for reimbursement must be mailed or delivered to the Performance Section within 30 days after the end of each quarter to be processed in that quarterly disbursement.

(3) Requests for reimbursement mailed or delivered to the Performance Section more than 30 days after the end of the quarter will be processed with the next quarterly disbursement.

(4) A separate request for reimbursement must be submitted for each insurer and include a signed certification that the payments reported on the request have been made in the amounts reported.

(5) Requests for reimbursement must be submitted in the format prescribed by the director. Each request must accurately reflect the marital and dependency status in effect and eligible for reimbursement in the period requested.

(6) The Performance Section will not process any request that does not meet the requirements of section (4) or (5) of this rule until such requirements are met.

(7) The department will recover any overpayment made to an insurer as a result of an insurer error in reporting, or incorrect information submitted, on a quarterly request form.

(8) If a denied claim is found to be compensable by an administrative law judge, the Workers’ Compensation Board, or the Court of Appeals, and that decision is reversed by a higher level of appeal, the insurer will receive reimbursement for Retroactive Program benefit payments required to be made while the claim was in an accepted status.

Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.506
Hist.: WCD 4-1989, f. 12-22-89, cert. ef. 1-1-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16

436-075-0090

Third Party Recovery

(1) In a third party recovery, previously reimbursed Retroactive Program benefits are a portion of the paying agency’s lien.

(2) Under ORS 656.593, when the insurer learns of third party settlement negotiations on any claim for which it has received reimbursement from the Retroactive Program, the insurer must notify the Performance Section.

(3) Remittance on recovered Retroactive Program benefits must be made to the department in the quarter following the recovery in amounts determined under ORS 656.591 and 656.593.

Stat. Auth.: ORS 656.506
Stats. Implemented: ORS 656.591 & 656.593
Hist.: WCD 4-1989, f. 12-22-89, cert. ef. 1-1-90; WCD 14-1997, f. 12-4-97, cert. ef. 1-1-98; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16

436-075-0100

Assessment of Civil Penalties

Under ORS 656.745 the director may assess a civil penalty against an insurer for failure to comply with these rules. Penalty orders will be issued under ORS 656.447 and 656.704 and are subject to review under OAR 436-075-0008.

Stat. Auth.: ORS 656.745
Stats. Implemented: ORS 656.204, 656.726, 656.745 & 656.447
Hist.: WCD 4-1989, f. 12-22-89, cert. ef. 1-1-90; WCD 10-1990(Temp), f. 6-18-90, cert. ef. 7-1-90; WCD 23-1990, f. 11-29-90, cert. ef. 12-26-90; WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16

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