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

 

DIVISION 12

BOARD'S OWN MOTION JURISDICTION

438-012-0001

Definitions

(1) "Own Motion Board" and "Board" mean the Workers' Compensation Board acting under its authority pursuant to ORS 656.278 and these rules.

(2) "Own Motion Claim" means:

(a) A written request, including such a request related to an injury occurring before January 1, 1966, by or on behalf of a claimant for temporary disability compensation or claim reopening regarding a worsened condition that has been determined to be compensable and that was initiated after the rights under ORS 656.273 expired (i.e., a "post-aggravation rights" "worsened condition" claim);

(b) A new medical condition or an omitted medical condition, including such a condition related to an injury occurring before January 1, 1966, that is related to an initially accepted claim that has been determined to be compensable and that was initiated after the rights under ORS 656.273 expired (i.e., a "post-aggravation rights" new medical condition or omitted medical condition claim); or

(c) A written request by or on behalf of a claimant for 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.

(3) For a "post-aggravation rights" "worsened condition" claim, "determined to be compensable" means:

(a) The insurer does not dispute compensability of or responsibility for the claim or condition; i.e., the insurer has not issued a denial within the time period prescribed under ORS 656.262 or 656.308(2); or

(b) An order from an Administrative Law Judge, the Board, or the court has found the claim or condition compensable and the responsibility of the insurer.

(4) For a "post-aggravation rights" new medical condition or omitted medical condition claim, "determined to be compensable" means:

(a) The insurer has issued a notice of acceptance under ORS 656.262(7)(a); or

(b) The insurer's denial under ORS 656.262(7) or 656.308(2) or de facto denial has been set aside by an order from an Administrative Law Judge, the Board, or the court.

(5) "Own Motion Insurer," "Insurer" and "Paying Agent" mean a guaranty contract insurer or self-insured employer that is or may be responsible for payment of compensation under the provisions of ORS 656.278.

(6) "Own Motion Order" means an order of the Own Motion Board.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.267(1)(3), 656.278(1) & 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; WCB 3-2005, f. 11-15-05, cert. ef. 1-1-06; WCB 1-2013, f. 2-11-13, cert. ef. 4-1-13

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 or delivered 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) & 656.726(4)
Stats. Implemented: ORS 656.278(1) & 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; WCB 1-2012, f. 8-22-12, cert. ef. 11-1-12

438-012-0017

Written Argument and Other Documents

(1) Timely compliance with Board requests for written argument and/or timely responses to inquiries from the Board is necessary to the Board's decision making process.

(2) Unless otherwise allowed by the Board, extensions of time for the filing of written arguments/responses will be allowed only on written request filed no later than the date the argument/response is due. A statement whether opposing counsel (or a party, if the party is not represented by counsel) objects to, concurs in or has no comment regarding the extension of time requested should be furnished with the extension request.

Stat. Auth.: ORS 656.278 & ORS 656.726(5)
Stats. Implemented: ORS 656.278(1) & ORS 656.726(5)
Hist.: WCB 1-2004, f. 6-23-04 cert. ef. 9-1-04

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 January 1, 2006.

Stat. Auth.: ORS 656.278 & 656.726(5)
Stats. Implemented: ORS 656.278(1) & 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; WCB 1-2004, f. 6-23-04 cert. ef. 9-1-04; WCB 3-2005, f. 11-15-05, cert. ef. 1-1-06

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 "post-aggravation rights" 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 claim reopening regarding a worsened condition that has been determined to be compensable as defined under OAR 438-012-0001(3) and that was initiated after the rights under ORS 656.273 expired; or

(b) Any document submitted to the insurer after the expiration of aggravation rights regarding a worsened condition that has been determined to be compensable as defined under OAR 438-012-0001(3) 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.

(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 and that claim has been determined to be compensable as defined under OAR 438-012-0001(4).

(5) Except as provided in section (7) of this rule, an insurer is deemed to have notice of an Own Motion claim for medical benefits 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; or

(b) Any document that reasonably notifies the insurer that the claimant is seeking medical benefits for the compensable injury.

(6) An insurer is deemed to have notice of a "post-aggravation rights" new medical condition or omitted medical condition claim related to a compensable injury that occurred before January 1, 1966, 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 and that claim has been determined to be compensable as defined under OAR 438-012-0001(4).

(7) 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) & 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; 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 3-2005, f. 11-15-05, cert. ef. 1-1-06; WCB 1-2013, f. 2-11-13, cert. ef. 4-1-13

438-012-0030

Insurer Recommendation of Reopening or Denial of Claim Voluntarily Reopening

(1) Except as provided in section (3) of this rule, for "worsened condition" claims that have been determined to be compensable as defined under OAR 438-012-0001(3) and "post-aggravation rights" new medical condition or omitted medical condition claims that have been determined to be compensable as defined under OAR 438-012-0001(4), the Own Motion insurer shall, within 30 days after the claimed condition has been determined to be compensable as defined under OAR 438-012-0001(3) or 438-012-0001(4), 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

(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 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, which should be marked as exhibits, arranged in chronological order, and accompanied by an exhibit list. Copies of the recommendation form and any supporting evidence shall be mailed to the claimant and the claimant's attorney, if any.

(2) Except as provided in section (3) of this rule, for medical benefit claims under OAR 438-012-0001(2)(c), the Own Motion insurer shall, within 60 days after receiving the Own Motion claim, either:

(a) Voluntarily reopen the Own Motion 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 should be reopened or 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, which should be marked as exhibits, arranged in chronological order, and accompanied by an exhibit list. 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. The form shall be as prescribed by the Director.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.278(1), 656.278(5) & 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; WCB 1-2004, f. 6-23-04 cert. ef. 9-1-04; WCB 3-2005, f. 11-15-05, cert. ef. 1-1-06

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 through 656.298, 656.307, or 656.308, an arbitration or mediation proceeding under ORS 656.307, a managed care dispute resolution review process, 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) & 656.726(5)
Stats. Implemented: ORS 656.278(1) & 656.726(5)
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; WCB 1-2013, f. 2-11-13, cert. ef. 4-1-13

438-012-0032

Consent to Designation of Paying Agent

(1) Except as provided in section (2) of this rule, when the Workers' Compensation Division 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 Workers' Compensation Division 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; WCB 1-2004, f. 6-23-04 cert. ef. 9-1-04

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 under ORS 656.273 expired;

(b) There is a worsened condition that has been determined to be compensable as defined under OAR 438-012-0001(3) and 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) A new medical condition or an omitted medical condition claim has been determined to be compensable as defined under OAR 438-012-0001(4) and was initiated after the aggravation rights under ORS 656.273 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;

(b) The date the insurer voluntarily reopened the claim;

(c) The date of an Own Motion Notice of Closure that finds the worker entitled to temporary disability; or

(d) The date any litigation order authorizing retroactive temporary disability becomes final. Temporary disability accruing from the date of the order must begin no later than the 14th day after the date of the order.

(5) Temporary disability compensation shall be paid until one of the following events first occurs:

(a) The claimant is medically stationary pursuant to ORS 656.005(17);

(b) The claim is closed pursuant to OAR 438-012-0055;

(c) 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

(d) Termination of such benefits is authorized by the terms of ORS 656.268(4)(a) through (d).

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.005(30), 656.262(4), 656.268(4), 656.278(1) & (2) & 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; 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 1-2013, f. 2-11-13, cert. ef. 4-1-13

438-012-0036

Permanent Disability Compensation

(1) Where a new medical condition or an omitted medical condition claim has been determined to be compensable as defined under OAR 438-012-0001(4) and the claim was initiated after the aggravation rights under ORS 656.273 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 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.

(3) Permanent disability pursuant to section (1) of this rule must be paid no later than the 30th day after:

(a) The date of an Own Motion notice of claim closure;

(b) The date of any litigation order which orders payment of permanent total disability. Permanent total benefits accruing from the date of the order must begin no later than the 30th day after the date of the order;

(c) The date any litigation order authorizing permanent disability becomes final; or

(d) The date a claim disposition is disapproved by the Board or Administrative Law Judge, if permanent disability benefits are otherwise due.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.278(1), 656.278(2) & 656.726(5)
Hist.: WCB 2-2001, f. 11-14-01, cert. ef. 1-1-02; WCB 3-2005, f. 11-15-05, cert. ef. 1-1-06; WCB 1-2013, f. 2-11-13, cert. ef. 4-1-13

438-012-0037

Payment of Medical Benefits

Except as otherwise provided in OAR 438-012-0020(7), 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), 656.278(2)(c) & 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; WCB 3-2005, f. 11-15-05, cert. ef. 1-1-06

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 through 656.298, 656.307 or 656.308, or an arbitration or mediation proceeding under 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.

(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) & 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; WCB 3-2005, f. 11-15-05, cert. ef. 1-1-06; WCB 1-2013, f. 2-11-13, cert. ef. 4-1-13

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 the Workers' Compensation Division. 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 97302-1280. 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), (2) & (6) & 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; WCB 1-2004, f. 6-23-04 cert. ef. 9-1-04; WCB 3-2005, f. 11-15-05, cert. ef. 1-1-06

438-012-0060

Board Review of Insurer Closure; Referral for Medical Arbiter Evaluation

(1) The request for Board review of the insurer's claim closure pursuant to OAR 438-012-0055 shall be in writing, signed by the claimant or the claimant's attorney, and should 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:

(A) Disagreement with the medically stationary determination;

(B) Disagreement with the temporary disability compensation awarded, including rate of payment and/or dates awarded; and/or

(C) 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 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, if represented, to the claimant’s attorney legible copies of all evidence that pertains to the claimant's compensable condition at the time of closure, including any evidence relating to permanent disability. Such evidence should be marked as exhibits, arranged in chronological order, and accompanied by an exhibit list. 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 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) After the claimant requests Board review of a Notice of Closure of a “post-aggravation rights” new medical condition(s) or omitted medical condition(s) claim issued under OAR 438-012-0055, the Board may refer the claim to the Director for appointment of a medical arbiter to evaluate permanent disability attributable to the claimant’s “post-aggravation rights” new medical condition(s) or omitted medical condition(s) if:

(a) The claimant objects to the impairment findings used to rate impairment regarding the “post-aggravation rights” new medical condition(s) or omitted medical condition(s) and requests appointment of a medical arbiter;

(b) The issue of permanent disability rating regarding the “post-aggravation rights” new medical condition(s) or omitted medical condition(s) is raised and the Board determines that insufficient medical information is available to determine disability; or

(c) The insurer objects to the impairment findings used to rate impairment regarding the “post-aggravation rights” new medical condition(s) or omitted medical condition(s) and requests appointment of a medical arbiter.

(7) The Board may refer a matter to the Hearings Division for an evidentiary hearing and recommended findings of fact and conclusions.

(8) The Board may refer a disagreement regarding the rating of the claimant's permanent disability for a "post-aggravation rights" new or omitted medical condition to the Workers' Compensation Division for an evaluation and recommendation based on the record presented to the Board.

(9) 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 or the Workers' Compensation Division.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented: ORS 656.278(1) & (6) & 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; 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 1-2013, f. 2-11-13, cert. ef. 4-1-13

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 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 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 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) & 656.726(5)
Stats. Implemented:ORS 656.278(1) & 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; WCB 1-2013, f. 2-11-13, cert. ef. 4-1-13

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

438-012-0110

Penalty for Unreasonable Failure to Comply or Untimely Compliance with Board Own Motion Rules

(1) Failure to comply with the Board's Own Motion rules by the insurer, if found unreasonable or unjustified, may result in the imposition of penalties and attorney fees pursuant to ORS 656.262(11) and OAR 438-015-0110, exclusion of evidence, and/or referral for a fact-finding hearing.

(2) Failure to comply with the Board's Own Motion rules by the claimant, if found unreasonable or unjustified, may result in the exclusion of evidence, referral for a fact-finding hearing, and/or dismissal of the request for benefits.

Stat. Auth.: ORS 656.726(5)
Stats. Implemented.: ORS 656.267(1)(3), 656.278(1)(b) & 656.726(5)
Hist.: WCB 1-2004, f. 6-23-04 cert. ef. 9-1-04

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