Current through Register Vol. 63, No. 3, March 1, 2024
(1)
Worker's responsibility to assist
in investigation. A worker must submit to and fully cooperate with in
person or telephone interviews and other formal or informal information
gathering techniques reasonably requested by the insurer. Interviews may be
recorded on audio or video by one or more of the parties if prior written
notice is given of the intent to record an interview.
(2)
Request to suspend
compensation. The insurer may request for the director to suspend
compensation by order when the worker refuses or fails to cooperate in an
investigation of an initial claim for compensation, a claim for a new medical
condition, a claim for an omitted medical condition, or an aggravation claim as
required by ORS 656.262(14),
under the following conditions:
(a) The
insurer must notify the worker in writing that an interview or deposition has
been scheduled, or of other investigation requirements:
(A) The notice must be sent to the worker and
copied to the worker's attorney, if any, and must contain the following:
(i) The date, time, and place of the
interview or deposition, if scheduled;
(ii) Any other reasonable investigation
requirements;
(iii) That the
interview, deposition, or any other investigation requirements are related to
the worker's compensation claim; and
(iv) The following statement in prominent or
bold face type:
"The workers' compensation law requires injured workers
to cooperate and assist the insurer or self-insured employer in the
investigation of claims for compensation. Injured workers are required to
submit to and fully cooperate with personal and telephonic interviews and other
formal or informal information gathering techniques. If you do not reasonably
cooperate with the investigation of this claim, payment of your compensation
benefits may be suspended and your claim may be denied in accordance with ORS
656.262 and OAR
436-060."
(B) If the insurer contracts with a third
party to investigate the claim, the notice must be on the insurer's stationery
and must meet the requirements of this section; and
(C) The worker must be given 14 days to
cooperate with the notice.
(b) The director will consider requests to
authorize suspension of benefits only after the worker has been given at least
14 days to cooperate with the notice under subsection (a) of this rule; and
under the following conditions:
(A) The
director will only consider requests in claims on which no acceptance or denial
has been issued;
(B) The worker
must have the opportunity to submit information disputing the insurer's request
for suspension of compensation before the director will issue an
order;
(C) The director may
determine whether special circumstances exist that would not warrant suspension
of compensation for failure to cooperate with an investigation;
(D) The insurer must make the request to
suspend benefits to the director in writing, and must send a copy of the
request, including all attachments, simultaneously to the worker and the
worker's attorney, if any by registered or certified mail or by personal
service;
(E) The insurer's request
must include the following information sufficient to show the worker's failure
to cooperate:
(i) That the insurer requests
suspension of benefits under ORS
656.262(15) and
this rule;
(ii) Documentation of
the specific actions of the worker or worker's attorney that prompted the
request;
(iii) Any reasons given by
the worker for failure to comply, or a statement that the worker has not given
any reasons;
(iv) A copy of the
notice required in (2)(a) of this rule; and
(v) All other pertinent information,
including, but not limited to, a copy of the claim for a new or omitted
condition when that is what the insurer is investigating;
(c) After receiving the insurer's
request to suspend benefits, the director will notify all parties that:
(A) The worker's benefits will be suspended
in five business days unless:
(i) The worker
or the worker's attorney contacts the division by telephone or mails a letter
documenting that the failure to cooperate was reasonable; or
(ii) The insurer notifies the division that
the worker is now cooperating;
(B) The insurer's obligation to accept or
deny the claim within 60 days is suspended unless the insurer's request is
filed with the division after the 60 days to accept or deny the claim has
expired;
(d) If the
worker cooperates within five business days of the director's notice under
subsection (c), the insurer must notify the director immediately to withdraw
the suspension request. Upon receiving the insurer's notification:
(A) The director will notify all the parties
of the withdrawal; and
(B) The
director may issue an order identifying the dates during which the insurer's
obligation to accept or deny the claim was suspended;
(e) If the worker contacts the division and
documents the failure to cooperate was reasonable within five business days of
the director's notice under subsection (c), the director will not suspend
payment of compensation. However, an order may be issued identifying the dates
during which the insurer's obligation to accept or deny the claim was
suspended; and
(f) If the worker
has not cooperated with the investigation, or has not documented that the
failure to cooperate was reasonable within five business days of the director's
notice under subsection (c), the director will issue an order suspending all or
part of the payment of compensation to the worker:
(A) The suspension of compensation will be
effective from the fifth business day after the date of the director's notice
under subsection (c), and will remain in effect until the worker reasonably
cooperates with the investigation;
(B) If the worker reasonably cooperates with
the investigation, the insurer must reinstate the worker's benefits
immediately; or
(C) If the worker
makes no effort to cooperate within 30 days of the date of the notice, the
insurer may deny the claim under ORS
656.262(15) and
OAR 436-060-0140(8).
(3)
Request for penalty against
worker's attorney. An insurer that believes that a worker's attorney's
unwillingness or unavailability to participate in an interview is unreasonable
may notify the director in writing and the director will consider assessment of
a civil penalty against the attorney of not more than $1,000.
(a) The worker's attorney must have the
opportunity to dispute the allegation before a penalty is assessed.
(b) A copy of the notice must be sent
simultaneously to the worker and the worker's attorney. Notice to the division
by the insurer must contain the following information:
(A) What specific actions of the attorney
prompted the request;
(B) Any
reasons given by the attorney for failing to participate in the interview;
and
(C) A copy of the request for
interview sent to the attorney.
(4)
Failure to comply with this
rule. Failure to comply with the requirements of this rule will be
grounds for denial of the insurer's request. Any delay in requesting suspension
under section (2) of this rule may result in authorization being
denied.
Statutes/Other Implemented: ORS
656.704, ORS
656.726(4)
& ORS 656.262