Current through Register Vol. 63, No. 9, September 1, 2024
(1) Any document
submitted for approval by the Board or the Hearings Division as a settlement of
a denied or disputed claim shall be in the form specified by this
rule.
(2) A disputed claim
settlement shall recite, at a minimum:
(a) The
date and nature of the claim;
(b)
That the claim has been denied and the date of the denial;
(c) That a bona fide dispute as to the
compensability of all or part of the claim exists and that the parties have
agreed to compromise and settle all or part of the denied and disputed claim
under the provisions of ORS
656.289(4);
(d) The factual allegations and legal
positions in support of the claim;
(e) The factual allegations and legal
positions in support of the denial of the claim;
(f) That each of the parties has substantial
evidence to support the factual allegations of that party;
(g) A list of medical service providers who
shall receive reimbursement in accordance with ORS
656.313(4),
including the specific amount each provider shall be reimbursed, and the
parties' acknowledgment that this reimbursement allocation complies with the
reimbursement formula prescribed in 656.313(4)(d); and
(h) The terms of the settlement, including
the specific date on which those terms were agreed.
(3) If an accepted claim is later denied
entirely at any time based on fraud, misrepresentation or other illegal
activity by the worker, the disputed claim settlement shall further recite the
specific factual allegations and legal positions of the parties concerning the
fraud, misrepresentation or other illegal activity.
(4) If a claim was previously accepted in
good faith but later denied, in whole or in part, based on later obtained
evidence that the claim is not compensable or evidence that the paying agent is
not responsible for the claim, the disputed claim settlement shall further
recite:
(a) If the accepted claim is later
denied entirely at any time up to two years from the date of claim acceptance,
an allegation that the self-insured employer or insurer has obtained later
evidence that the claim is not compensable or that the paying agent is not
responsible for the claim; or
(b)
If the denial is a denial of aggravation, current need for medical services or
a partial denial of a medical condition on the ground that the condition is not
related to the accepted injury, that the claimant retains all rights that may
later arise under ORS
656.245,
656.273,
656.278 and
656.340, insofar as these rights
may be related to the original accepted claim.
(5) If the claimant is unrepresented, the
denial of the claim which is being settled by any document described in section
(1) of this rule shall not be contained within that document, but rather shall
be issued separately. In addition, any document described in section (1) of
this rule shall recite that the unrepresented claimant has been orally advised
of the following matters:
(a) The right to an
attorney of the claimant's choice at no cost to the claimant for attorney
fees;
(b) The existence of the
office of the Ombudsman pursuant to ORS
656.709;
(c) Except with the consent of the worker,
reimbursement made to medical service providers from the proceeds of a disputed
claim settlement shall not exceed 40 percent of the total present value of the
settlement amount; and
(d)
Reimbursement from the proceeds of a disputed claim settlement made to medical
service providers shall not prevent a medical service provider or health
insurance provider from recovering the balance of amounts owing for such
services directly from the worker, unless the worker agrees to pay all medical
service providers directly from the settlement proceeds the amount provided
under ORS 656.248.
(6) Any document described in section (1) of
this rule shall also recite that the claimant has been orally advised that:
(a) The claimant has the right to request a
hearing concerning the claim, after which an Administrative Law Judge will
determine whether the claimant will receive workers' compensation
benefits;
(b) If, following the
hearing, the claim is finally determined compensable, the claimant would be
entitled to workers' compensation benefits, which could include temporary
disability, permanent disability, medical treatment, and vocational
rehabilitation;
(c) If, following
the hearing, the claim is finally determined not compensable, the claimant
would not be entitled to workers' compensation benefits;
(d) As a result of this agreement, the
claimant's rights to seek workers' compensation benefits concerning this claim
would be extinguished;
(e) Both
parties agree that the terms of the agreement are reasonable; and
(f) The agreement shall not be binding upon
the parties unless and until the agreement is approved by an Administrative Law
Judge or the Board, depending upon which forum is considering the
dispute.
(7) No document
described in section (1) of this rule shall be approved unless the document
submitted by the parties establishes that a bona fide dispute as to
compensability exists and the proposed disposition of the dispute is
reasonable. If an Administrative Law Judge or the Board is not satisfied that a
bona fide dispute exists or that disposition of the dispute is reasonable, the
Administrative Law Judge or Board may reject the agreement or specify the
manner in which objection(s) can be cured.
(8) All disputed claim settlements shall:
(a) Recite whether a claim disposition
agreement in the claim has been filed; and
(b) Be in a separate document from a claim
disposition agreement.
Statutory/Other Authority: ORS
656.726(5)
Statutes/Other Implemented: ORS
656.236,
656.289(4)
& 656.313(4)
