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The Oregon Administrative Rules contain OARs filed through September 15, 2014
 
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DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,
WORKERS' COMPENSATION BOARD

 

DIVISION 5

ADOPTION; DEFINITIONS; CONSTRUCTION; NOTICES REQUIRED

438-005-0005

Statutory Authority

These rules are adopted under the Board's general rulemaking authority of ORS 656.726(5) to provide rules of practice and procedure for hearing and review proceedings under 656.001 to 656.990, for exercising its continuing authority under 656.278 and providing for the payment of attorney fees in cases under the Workers' Compensation Law pursuant to 656.388.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 3-2005, f. 11-15-05, cert. ef. 1-1-06

438-005-0011

Effective Date; Applicability

These rules are effective January 1, 2006 and shall apply to all cases pending before the Hearings Division and the Board under the provisions of ORS Chapter 656 on and after that date. These rules are also applicable to cases pending before the Hearings Division and the Board arising under ORS Chapter 655.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5)
Hist.: WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90; WCB 9-1990(Temp), f. 8-24-90, cert. ef. 8-27-90; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; WCB 1-1993, f. 5-19-93, cert. ef. 6-1-93; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03; WCB 3-2005, f. 11-15-05, cert. ef. 1-1-06

438-005-0015

Unacceptable Conduct

The Board hereby adopts OAR 137-004-0010, as adopted by the Department of Justice effective January 27, 1986.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 183.341(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 1-2003, f. 2-21-03, cert. ef. 5-1-03; WCB 1-2013, f. 2-11-13, cert. ef. 4-1-13

438-005-0030

Safety Rules Reference

Rules pertaining to the Oregon Safe Employment Act, ORS Chapter 654, may be found at OAR Chapter 438, Division 085.

Stat. Auth.: ORS 183 & ORS 656
Stats. Implemented: ORS 183 & ORS 656
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84

438-005-0035

Board Policy

(1) It is the policy of the Board to expedite claim adjudication and amicably dispose of controversies. In accordance with ORS 656.012(3), these rules shall be interpreted in an impartial and balanced manner. The overriding principle is substantial justice.

(2) With respect to postponement or continuance of hearings under OAR 438-006-0081 and 438-006-0091, substantial justice requires consideration of the relative financial hardship of the parties.

(3) The unrepresented party shall not be held strictly accountable for failure to comply with these rules. Any individual who undertakes to represent a party in proceedings under these rules shall be required to comply with these rules.

(4) It is the policy of the Board to promote the full and complete disclosure of a party's specific position concerning the issues raised and relief requested in a specification of issues under OAR 438-006-0031 and in a response under 438-006-0036. However, it is not the intent of this policy to create binding admissions on behalf of any party, but to clarify the scope of the matters to be litigated.

(5) The Board recognizes the complexity of disputed claims and the time limitations concerning the scheduling and litigation process for such claims. Consistent with this recognition, as factual, medical, and legal aspects of disputed issues evolve, the amendment of issues, relief requested, theories, and defenses may be allowed as prescribed in OAR 438-006-0031(2) and 438-006-0036(2).

Stat. Auth.: ORS 656.307, 656.388, 656.593 & 656.726(4)
Stats. Implemented: ORS 656.012(2)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 2-2013, f. 12-10-13, cert. ef. 4-1-14

438-005-0037

Penalty for Failure to Comply with Rules

If failure to comply with these rules by an insurer or self-insured employer results in delay in compensation ultimately ordered paid to a claimant by an Administrative Law Judge, an additional amount may be assessed on such compensation for unreasonable delay under the provisions of ORS 656.262(11).

Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)
Stats. Implemented: ORS 656.262(10)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96

438-005-0040

General Definitions

(1) "Administrative Law Judge" means an individual appointed by the Board to perform the duties, functions and powers provided in ORS 654, 655 and 656, and such other duties, functions and powers as may be prescribed by the Board.

(2) "Aggravation" means an actual worsening of the compensable condition(s) after the last award or arrangement of compensation, which is established by medical evidence supported by objective findings, and otherwise satisfies the statutory requirements of ORS 656.273.

(3) "Aggravation rights" means the time periods specified in ORS 656.273 during which an injured worker is entitled to additional compensation for worsened conditions as a matter of right.

(4) "Board" means the Workers' Compensation Board.

(5) "Claimant" means an injured worker or any other person entitled to initiate or continue a claim for compensation.

(6) "Director" means the Director of the Department of Consumer & Business Services or his/her designee.

(7) "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation.

(8) "Hearings Division" means the Hearings Division of the Workers' Compensation Board.

(9) "Insurer" means the State Accident Insurance Fund Corporation, an insurer authorized under ORS Chapter 731 to transact workers' compensation insurance in this state, or, except where the context requires otherwise, an assigned claims agent in cases under ORS 656.054.

(10) "Party" means a claimant, an employer, including a noncomplying employer, an assigned claims agent in cases under ORS 656.054, and an insurer.

(11) "Self-insured employer" means an employer or group of employers certified under ORS 656.430 as meeting the qualifications set out in 656.407.

(12) "Workers' Compensation Division" means the Workers' Compensation Division of the Department of Consumer and Business Services.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5) & ORS 656.054
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; 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 3-2001, f. 11-14-01, cert. ef. 1-1-02; WCB 1-2003, f. 2-21-03, cert. ef. 5-1-03; WCB 1-2004, f. 6-23-04 cert. ef. 9-1-04

438-005-0046

Filing and Service of Documents; Correspondence

(1) Filing:

(a) Except as otherwise provided in these rules, "filing" means the physical delivery of a thing to any permanently staffed office of the Board, or the date of mailing;

(b) In addition to the procedures otherwise described in these rules, "filing" may also be accomplished in the manner prescribed in OAR 436, division 9 or 10 for filing a request for administrative review with the Director provided that the request involves a dispute that requires a determination of either the compensability of the medical condition for which medical services are proposed or whether a sufficient causal relationship exists between medical services and an accepted claim to establish compensability;

(c) If filing of a request for hearing or Board review of either an Administrative Law Judge's order or a Director's order finding no bona fide medical services dispute is accomplished by mailing, it shall be presumed that the request was mailed on the date shown on a receipt for registered or certified mail bearing the stamp of the United States Postal Service showing the date of mailing. If the request is not mailed by registered or certified mail and the request is actually received by the Board after the date for filing, it shall be presumed that the mailing was untimely unless the filing party establishes that the mailing was timely;

(d) If a settlement stipulation, disputed claim settlement, or claim disposition agreement results from a mediation, "filing" also includes the physical delivery of the settlement stipulation, disputed claim settlement, or claim disposition agreement to the Administrative Law Judge who mediated the settlement or agreement, regardless of location.

(e) The following things may be filed by electronic mail (e-mail) pursuant to subsection (f) of this section:

(A) Request for hearing;

(B) Request for Board review of an Administrative Law Judge's order;

(C) Request for Board review of a Director's order finding no bona fide medical services dispute;

(D) Request for extension of the briefing schedule under OAR 438-011-0020;

(E) Request for waiver of the Board's rules under OAR 438-011-0030; or

(F) Response to issues under OAR 438-006-0036.

(f) To electronically file the requests listed in subsection (e) of this section by e-mail, a party shall:

(A) Send an e-mail to: request.wcb@state.or.us; and

(B) Attach an electronic copy of a completed Workers' Compensation Board "Request for Hearing Form," or a completed request for Board review, or a completed request for extension of the briefing schedule, or a completed request for waiver of the Board's rules, or a completed Board "Response to Issues Form." These attachments must be in a format of Microsoft Word 2000® (.doc, .txt, .rtf), Adobe Reader® (.pdf), or formats that can be viewed in Internet Explorer® (.tif, .jpg).

(C) For purposes of this rule, the date of an electronic filing is determined by the date the Board receives the appropriate completed electronic form which must be in a format of Microsoft Word 2000® (.doc, .txt, .rtf), Adobe Reader® (.pdf), or formats that can be viewed in Internet Explorer® (.tif, .jpg). An electronic filing under subsections (e) and (f) of this section received by the Board by 11:59 p.m. of a non-holiday, weekday is filed on that date.

(g) The following things may be filed by website portal pursuant to subsection (h) of this section:

(A) All actions described in subsection (e) of this section; and

(B) Filing of any other thing that the Board makes available for filing by website portal.

(h) To electronically file the things listed in subsection (g) of this section by website portal, a party shall:

(A) Register as a "user" of the portal at: https://portal.wcb.oregon.gov; and

(B) For subparagraph (g)(A) of this section, as appropriate, complete the electronic version of the Workers' Compensation Board "Request for Hearing Form," or complete a request for Board review, or complete a request for extension of a briefing schedule, or complete a request for waiver of the Board's rules, or complete a Board "Response to Issues Form"; or

(C) For subparagraph (g)(B) of this section, complete the appropriate items on the website portal.

(D) For the purposes of this rule, the date of a portal filing is determined by the date the Board receives the appropriate portal version of the form.

(E) A portal filing under subsections (g) and (h) of this section received by the Board by 11:59 p.m. of a non-holiday, weekday is filed as of that date.

(i) "Filing" includes the submission of any document (other than the exchange of exhibits and indexes under OAR 438-007-0018) to any permanently staffed office of the Board by means of a telephone facsimile communication device (FAX) provided that:

(A) The document transmitted indicates at the top that it has been delivered by FAX;

(B) The Board's facsimile transmission number is used; and

(C) The Board receives the complete FAX-transmitted document by 11:59 p.m. of a non-holiday, weekday.

(j) Except for the documents specified in subsections (c), (e), or (g) of this section, filing of any other thing required to be filed within a prescribed time may be accomplished by mailing by first class mail, postage prepaid. An attorney's certificate that a thing was deposited in the mail on a stated date is proof of mailing on that date. If the thing is not received within the prescribed time and no certificate of mailing is furnished, it shall be presumed that the filing was untimely unless the filing party establishes that the filing was timely.

(2) Service:

(a) A true copy of any thing delivered for filing under these rules shall be simultaneously served personally, by means of a facsimile transmission, by means of e-mail or website portal regarding requests, responses, or any other thing filed under OAR 438-005-0046(1)(e), (f), (g), or (h), or by mailing by first-class mail, postage prepaid, through the United States Postal Service, to each other party, or to their attorneys. Service by mail is complete upon mailing, service by facsimile transmission is complete upon disconnection following an error-free transmission, and service by e-mail or website portal regarding requests, responses, or any other thing filed under 438-005-0046(1)(e), (f), (g), or (h), is complete upon successful transmission, provided that the copy is sent in a format readable by the recipient;

(b) Any thing delivered for filing under these rules shall include or have attached thereto either an acknowledgment of service by the person served or proof of service in the form of a certificate executed by the person who made service showing personal delivery, service by means of a facsimile transmission, service by means of e-mail or website portal regarding requests, responses, or any other thing filed under OAR 438-005-0046(1)(e), (f), (g), or (h), or deposit in the mails together with the names and addresses of the persons served.

(3) Correspondence. All correspondence to the Board shall be captioned with the name of the claimant, the WCB Case number and the insurer or self-insured employer claim number. Correspondence to the Hearings Division shall also be captioned with the date of the hearing and name of the assigned Administrative Law Judge, if any.

(4) Signatures.

(a) Any thing delivered for filing under these rules shall include the signature of the party or the party's attorney, which may be provided in writing, by facsimile transmission, by electronic scanning, by the website portal, or by other electronic means.

(b) The user name and password required to file a document with the Board by means of the website portal shall constitute the signature of the filer and for any other purpose for which a signature is required.

(c) Except for documents filed under subsection (b) of this section, any document filed by electronic means must include a signature block that includes the printed name of the filer, preceded by an electronic symbol intended to substitute for a signature (such as a scan of the filer's handwritten signature or "s/") in the space where the signature would otherwise appear.

(d) Any order, notice, or any other document issued by an Administrative Law Judge or a Board Member may include his/her signature in writing, by facsimile transmission, by electronic scanning, by the website portal, or by other electronic means permitted under the Board's rules.

(e) Any electronically transmitted signature shall have the same force and effect as an original signature, provided that the electronically transmitted signature is executed or adopted by a person with the intent to sign the document as prescribed in ORS Chapter 84 (Uniform Electronic Transactions Act).

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.726(5)
Hist.: WCB 5-1987, f. 12-18-87, cert. 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 3-1991(Temp), f. 5-24-91, cert. ef. 5-28-91; WCB 8-1991, f. 11-6-91, cert. ef. 11-7-91; WCB 1-1999, f. 8-24-99, cert. ef. 11-1-99; WCB 2-1999(Temp), f. 9-24-99, cert. ef. 10-23-99 thru 4-14-00; WCB 1-2000, f. 3-29-00, cert. ef. 4-3-00; WCB 1-2007, f. 1-19-07, cert. ef. 3-1-07; WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08; WCB 1-2012, f. 8-22-12, cert. ef. 11-1-12; WCB 2-2013, f. 12-10-13, cert. ef. 4-1-14; WCB 1-2014, f. 6-20-14, cert. ef. 9-1-14

438-005-0050

Notice of Claim Acceptance and Hearing Rights under ORS 656.262(6)(d)

(1) Every notice of claim acceptance shall include all of the information prescribed by ORS 656.262(6)(b) and OAR 436.

(2) In the event that the insurer or self-insured employer disagrees with all or any portion of a worker's objections to a notice of claim acceptance under ORS 656.262(6)(d), the insurer's or self-insured employer's written response shall specify the reasons for the disagreement, and shall contain a notice, in prominent or bold-face type, as follows:

"IF YOU DISAGREE WITH THIS DECISION, YOU MAY FILE A REQUEST FOR HEARING BY ANY OF THE FOLLOWING MEANS: (1) MAIL A LETTER TO THE WORKERS' COMPENSATION BOARD, 2601 25TH STREET SE, SUITE 150, SALEM, OREGON 97302-1280; (2) SEND AN E-MAIL TO: request.wcb@state.or.us; (3) SEND A FAX TO: 503-373-1600; OR (4) PHYSICAL DELIVERY OF A LETTER TO A WORKERS’ COMPENSATION BOARD OFFICE (IN SALEM, PORTLAND, EUGENE, OR MEDFORD). YOUR LETTER, E-MAIL, OR FAX SHOULD STATE THAT YOU WANT A HEARING, YOUR ADDRESS, THE DATE OF YOUR INJURY, AND YOUR CLAIM NUMBER.

"IF YOUR CLAIM QUALIFIES, YOU MAY RECEIVE AN EXPEDITED HEARING WITHIN 30 DAYS. YOUR REQUEST CANNOT, BY LAW, AFFECT YOUR EMPLOYMENT. 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 AT 1-800-452-0288 OR THE OMBUDSMAN FOR INJURED WORKERS TOLL FREE AT 1-800-927-1271."

Stat. Auth: ORS 656.307, 656.388, 656.593 & 656.726(5)
Stats. Implemented: ORS 656.262(6)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88; 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 1-2004, f. 6-23-04 cert. ef. 9-1-04; WCB 3-2005, f. 11-15-05, cert. ef. 1-1-06; WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08; WCB 1-2012, f. 8-22-12, cert. ef. 11-1-12

438-005-0053

Notice of Denial of Responsibility

(1) If a self-insured employer or insurer intends to deny responsibility for a claim on the basis of injury or exposure with another employer, the self-insured employer or insurer shall, within the period allowed under ORS 656.262 for processing the claim, so indicate in or as part of a denial otherwise meeting the requirements of 656.262 and OAR 438-005-0055.

(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 self-insured employer or insurer has requested the appointment of a paying agent pursuant to ORS 656.307.

Stat. Auth.: ORS 656.726(4) & 654.025(2)
Stats. Implemented: ORS 656.308(2) & 656.262(6)
Hist.: 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; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96; WCB 3-2005, f. 11-15-05, cert. ef. 1-1-06

438-005-0055

Notice of Claim Denial and Hearing Rights

(1) Except for a denial issued under ORS 656.262(15), in addition to the requirements of 656.262, the notice of denial shall specify the factual and legal reasons for denial; and shall 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 REQUEST FOR HEARING BY ANY OF THE FOLLOWING MEANS: (1) MAIL A LETTER TO THE WORKERS' COMPENSATION BOARD, 2601 25TH STREET SE, SUITE 150, SALEM OREGON 97302-1280; (2) SEND AN E-MAIL TO: request.wcb@state.or.us; (3) SEND A FAX TO: 503-373-1600; OR (4) PHYSICAL DELIVERY OF A LETTER TO A WORKERS’ COMPENSATION BOARD OFFICE (IN SALEM, PORTLAND, EUGENE, OR MEDFORD). YOUR LETTER, E-MAIL, OR FAX MUST STATE THAT YOU WANT A HEARING, YOUR ADDRESS AND THE DATE OF YOUR ACCIDENT IF YOU KNOW THE DATE. “IF YOUR CLAIM QUALIFIES, YOU MAY RECEIVE AN EXPEDITED HEARING WITHIN 30 DAYS. 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 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 MAKE A TIMELY REQUEST FOR HEARING ON A DENIAL OF COMPENSABILITY OF YOUR CLAIM AS REQUIRED BY ORS 656.319(1)(a) THAT IS BASED ON ONE OR MORE REPORTS OF EXAMINATIONS CONDUCTED AT THE REQUEST OF THE INSURER OR SELF-INSURED EMPLOYER UNDER ORS 656.325(1)(a) AND YOUR ATTENDING PHYSICIAN DOES NOT CONCUR WITH THE REPORT OR REPORTS, YOU MAY REQUEST AN EXAMINATION TO BE CONDUCTED BY A PHYSICIAN SELECTED BY THE DIRECTOR. THE COST OF THE EXAMINATION AND THE EXAMINATION REPORT SHALL BE PAID BY THE INSURER OR SELF-INSURED EMPLOYER. “IF YOU HAVE QUESTIONS YOU MAY CALL THE WORKERS' COMPENSATION DIVISION TOLL FREE AT 1-800-452-0288 OR THE OMBUDSMAN FOR INJURED WORKERS TOLL FREE AT 1-800-927-1271."

(2) If an insurer or self-insured employer intends to deny a claim under ORS 656.262(15) because of a worker's failure to cooperate in the investigation of the claim, in addition to the requirements of 656.262, the notice of denial shall specify the factual and legal reasons for denial, and shall 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 REQUEST FOR HEARING BY ANY OF THE FOLLOWING MEANS: (1) MAIL A LETTER TO THE WORKERS' COMPENSATION BOARD, 2601 25TH STREET SE, SUITE 150, SALEM OREGON 97302-1280; (2) SEND AN E-MAIL TO: request.wcb@state.or.us; (3) SEND A FAX TO: 503-373-1600; OR (4) PHYSICAL DELIVERY OF A LETTER TO A WORKERS’ COMPENSATION BOARD OFFICE (IN SALEM, PORTLAND, EUGENE, OR MEDFORD).YOUR LETTER, E-MAIL, OR FAX MUST STATE THAT YOU WANT AN EXPEDITED HEARING, YOUR ADDRESS AND THE DATE OF YOUR ACCIDENT IF YOU KNOW THE DATE.

“YOU WILL RECEIVE AN EXPEDITED HEARING WITHIN 30 DAYS. 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 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 AT 1-800-452-0288 OR THE OMBUDSMAN FOR INJURED WORKERS TOLL FREE AT 1-800-927-1271."

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.262(6), 656.262(15)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90; 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 1-1999, f. 8-24-99, cert. ef. 11-1-99; WCB 2-2001, f. 11-14-01, cert. ef. 1-1-02; WCB 1-2004, f. 6-23-04 cert. ef. 9-1-04; WCB 3-2005, f. 11-15-05, cert. ef. 1-1-06; WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08; WCB 1-2009, f. 10-7-09, cert. ef. 1-1-10; WCB 1-2012, f. 8-22-12, cert. ef. 11-1-12

438-005-0060

Notice of Partial Denial and Hearing Rights

Every notice of partial denial shall set forth with particularity the injury, condition, benefit or service for which liability is denied and the factual and legal reasons therefor. The notice shall be in the form specified by OAR 438-005-0055.

Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)
Stats. Implemented: ORS 656.262(6)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 2-1989, f. 3-3-89, ef. 4-1-89

438-005-0065

Manner of Giving Notice

Notice of denial or other notice from which statutory time runs against a claimant shall be in writing and shall be delivered by registered or certified mail with return receipt requested or by personal service meeting the requirements for service of a summons.

Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.543 & ORS 656.726(4)
Stats. Implemented: ORS 656.262(6)
Hist.: WCB 1-1984, f. 4-5-84, ef. 5-1-84; WCB 5-1987, f. 12-18-87, ef. 1-1-88

438-005-0070

Request for Hearing

Proceedings before the Hearings Division are begun by filing a request for hearing meeting the requirements of ORS 656.283 and OAR 438-005-0046. The request for hearing should be on a form prescribed by the Board. A request by an insurer or self-insured employer should also recite whether payment of compensation has been or will be stayed under 656.313. In addition to the information required by 656.283(2), the person requesting a hearing should include the person's full name, the name of the injured worker if different from that of the person requesting the hearing, the date of the injury or exposure, the name of the employer and its insurer, if any, and the claim number. A copy of the request should be served on the insurer, self-insured employer, claimant, or if represented, claimant's counsel.

Stat. Auth.: ORS 656.726(4) & 654.025(2)
Stats. Implemented: ORS 656.283(1)
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95; WCB 1-2012, f. 8-22-12, cert. ef. 11-1-12

438-005-0072

Expedited Hearing/Compensation Stayed Under ORS 656.313

For purposes of OAR 438 divisions 005-006, compensation is deemed stayed under ORS 656.313 if the employer/insurer has filed a request for hearing on or after July 1, 1990 on a reconsideration order and compensation is due and unpaid under the order for temporary disability benefits, permanent total disability benefits, or death benefits payable to a surviving spouse prior to remarriage, to children or dependents that accrued before the date of the order, or permanent disability benefits.

Stat. Auth.: ORS 656.726(4) & ORS 654.025(2)
Stats. Implemented: ORS 656.313
Hist.: WCB 5-1987, f. 12-18-87, ef. 1-1-88; WCB 1-1994, f. 11-1-94, cert. ef. 1-1-95; WCB 2-1995, f. 11-13-95, cert. ef. 1-1-96

438-005-0075

Duty to Forward Misdirected Request

If a claimant sends a request for hearing or Board review to the employer or insurer, the employer or insurer shall promptly forward the request to the Board.

Stat. Auth.: ORS 656.307, ORS 656.388, ORS 656.593 & ORS 656.726(4)
Stats. Implemented: 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

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