Current through Register Vol. 63, No. 3, March 1, 2024
(1)
Claim investigations. The
insurer is required to conduct a "reasonable" investigation based on all
available information in determining whether to deny a claim.
(a) A reasonable investigation is whatever
steps a reasonably prudent person with knowledge of the legal standards for
determining compensability would take in a good faith effort to ascertain the
facts underlying a claim, giving due consideration to the cost of the
investigation and the likely value of the claim.
(b) In determining whether an investigation
is reasonable, the director will only look at information contained in the
insurer's claim record at the time of denial. The insurer may not rely on any
fact not documented in the claim record at the time of denial to establish that
an investigation was reasonable.
(2)
Notice to worker. The
insurer must give the worker written notice of acceptance or denial of a claim
within the following time frames:
(a) For
claims with a date of injury before January 1, 2002, within 90 days of:
(A) The employer's notice or knowledge of an
initial claim;
(B) The insurer's
receipt of a Form 827 signed by the worker or the worker's attorney, and the
worker's attending physician indicating an aggravation claim; or
(C) Written notice of a new medical condition
claim;
(b) For claims
with a date of injury on or after January 1, 2002, within 60 days after:
(A) The employer's notice or knowledge of an
initial claim;
(B) The insurer's
receipt of a Form 827 signed by the worker or the worker's attorney and the
worker's attending physician indicating an aggravation claim; or
(C) Written notice of a new medical or
omitted condition claim; or
(c) For claims with any date of injury, if
the worker challenges the location of an independent medical examination under
OAR 436-010-0265 and the challenge is upheld, within 90 days after the
employer's notice or knowledge of the claim.
(3)
Penalty for untimely acceptance and
denials.The director may assess a penalty under OAR 436-060-0200 against
any insurer delinquent in accepting or denying a claim beyond the time frame
required under section (2) of this rule.
(4)
Notice of acceptance. A
notice of acceptance must comply with ORS
656.262(6)(b)
and OAR chapter 438. It must include a current mailing date, be addressed to
the worker, be copied to the worker's attorney, if any, and the worker's
attending physician, and describe to the worker:
(a) What conditions are
compensable;
(b) Whether the claim
is disabling or nondisabling;
(c)
The Expedited Claim Service, of hearing and aggravation rights concerning
nondisabling injuries including the right to object to a decision that the
injury is nondisabling by requesting the insurer review the status;
(d) The employment reinstatement rights and
responsibilities under ORS chapter 659A;
(e) Assistance available to employers from
the Re-employment Assistance Program under ORS
656.622;
(f) That claim related expenses paid by the
worker must be reimbursed by the insurer when requested in writing and
accompanied by sales slips, receipts, or other reasonable written support, for
meals, lodging, transportation, prescriptions and other related expenses. The
worker must be advised of the two year time limitation to request reimbursement
as provided in OAR 436-009-0025 and that reimbursement of expenses may be
subject to a maximum established rate;
(g) That if the worker believes a condition
has been incorrectly omitted from the notice of acceptance, or the notice is
otherwise deficient, the worker must first communicate the objection to the
insurer in writing specifying either that the worker believes the condition has
been incorrectly omitted or why the worker feels the notice is otherwise
deficient; and
(h) That if the
worker wants the insurer to accept a claim for a new medical condition, the
worker must put the request in writing, clearly identify the condition as a new
medical condition, and request formal written acceptance of the
condition.
(5)
Notice of acceptance, fatal claims. In the case of a fatal claim, the
notice must be addressed "to the estate of" the worker and the requirements of
subsection (4)(a) through (h) of this rule must not be included.
(6)
Initial, updated, and modified
notices of acceptance.
(a) The first
acceptance issued on the claim must contain the title "Initial Notice of
Acceptance" near the top of the notice. Any notice of acceptance must contain
all accepted conditions at the time of the notice.
(b) When an insurer closes a claim, it must
issue an "Updated Notice of Acceptance at Closure" under OAR 436-030-0015.
(A) To correct an omission or error in an
"Updated Notice of Acceptance at Closure," the insurer must add the word
"Corrected" to the notice.
(B) An
"Updated Notice of Acceptance at Closure" is not required to begin payment of
benefits following a worker's death during a period of permanent total
disability under OAR 436-060-0075(7).
(c) An insurer must issue a "Modified Notice
of Acceptance" (MNOA) when the insurer:
(A)
Accepts a new or omitted condition on a nondisabling claim, while a disabling
claim is open or after claim closure;
(B) Accepts an aggravation claim;
(C) Changes the disabling status of the
claim; or
(D) Amends a notice of
acceptance, including correcting a clerical error, except for an error or
omission on an "Updated Notice of Acceptance at Closure."
(7)
Acceptance of new or
omitted conditions. When an insurer accepts a new or omitted condition
on a closed claim, the insurer must reopen the claim and process it to closure
under ORS
656.262
and
656.267.
When a claim is reopened, the notice of acceptance must specify the conditions
for which the claim is being reopened.
(8)
Notice of denial to worker.
A notice of denial must comply with OAR chapter 438 and the following:
(a) The notice must specify the factual and
legal reasons for the denial, including a specific statement indicating if the
denial was based in whole or part on an independent medical examination under
ORS
656.325;
(b) If the denial was based in whole or part
on an independent medical examination under ORS
656.325:
(A) The notice must include one of the
following statements, as appropriate:
(i)
"Your attending physician agreed with the independent medical examination
report";
(ii) "Your attending
physician did not agree with the independent medical examination report";
or
(iii) "Your attending physician
has not commented on the independent medical examination report"; and
(B) If subparagraph (8)(b)(A)(ii)
or (iii) of this rule apply, the notice must include the division's website
address and toll-free phone number for the worker's use in obtaining a brochure
about the worker requested medical examination.
(c) The notice must inform the worker of the
Expedited Claim Service and of the worker's right to a hearing under ORS
656.283;
and
(d) If the denial is under ORS
656.262(15),
the notice must inform the worker that a hearing may occur sooner if the worker
requests an expedited hearing under ORS
656.291.
(9)
Notice of denial to
provider of medical services and health insurance. The insurer must
send notice of the denial to each medical service provider and provider of
health insurance as defined under ORS
731.162
when compensability of any portion of a claim for medical services is denied.
The notice must be sent:
(a) At the same time
the denial is sent to the worker;
(b) Within 14 days of receipt of any billings
from medical providers not previously notified of the denial. The notice must
advise the medical provider of the status of the denial; or
(c) Within 60 days of the date when
compensability of the claim has been finally determined or when disposition of
the claim has been made. The notification must include the results of the
proceedings under ORS
656.236
or
656.289(4)
and the amount of any settlement.
(10)
Payment of compensation.
The insurer must pay compensation due under ORS
656.262
and
656.273
until the claim is denied, except where there is an issue concerning the timely
filing of a notice of accident as provided in ORS
656.265(4).
The employer may elect to pay compensation under this section in lieu of the
insurer doing so. The insurer must report to the division payments of
compensation made by the employer as if the insurer had made the
payment.
(11)
Medical
benefits and funeral expenses. Compensation payable to a worker or the
worker's beneficiaries while a claim is pending acceptance or denial does not
include:
(a) The costs of medical benefits;
or
(b) The cost of final
disposition of the body or funeral expenses.
Statutory/Other Authority: ORS
656.726(4)
Statutes/Other Implemented: ORS
656.262,
ORS
656.325
& ORS
656.726(4)
