436-060-0017 Release of Claim Documents (1) For the purpose of this rule: (a) "Documents" means the written records making up, or relating to, the worker’s claim, including but not limited to: (A) Medical records, including any correspondence to and from medical experts who provide reports to the insurer; (B) Vocational records, including any correspondence to and from vocational experts who provide reports to the insurer; (C) Records of all compensation paid; (D) Payroll records; (E) Recorded statements; (F) Insurer generated records, excluding a claims examiner’s generated file notes, such as documentation or justification concerning setting or adjusting reserves, claims management strategy, or any privileged communications; (G) All forms and notices on the claim required by ORS chapter 656 or OAR chapter 436; (H) Notices of closure; and (I) Electronic transmissions and correspondence between the insurer, service providers, worker, director, or board. (b) Any documents generated or received by the insurer five or more business days before the mailing date of a request for copies of claims documents are considered to be in the insurer’s or service company’s possession, even if the documents have not reached the insurer’s or service company’s claim file. (2) Date of receipt. The insurer or service company must date stamp each document in its possession on the date received. (3) Requests for claims documents. The insurer or service company must provide, without charge, legible copies of documents in its possession relating to a claim, upon request of the worker, worker’s attorney, worker’s beneficiary, or beneficiary’s attorney at times other than those provided for under ORS 656.268 and OAR chapter 438, as provided in this rule. (a) A request for copies of claim documents must be submitted to the insurer or service company, and copied simultaneously to the insurer’s defense counsel, if known. (b) Except as provided in OAR 436-060-0180, an initial request by anyone other than the worker or worker’s beneficiary must be accompanied by an attorney retainer agreement or a medical release that has been signed by the worker. (A) The signed medical release must be provided using Form 2476, "Request for Release of Medical Records for Oregon Workers’ Compensation Claim," or an equivalent form. (B) Information not otherwise available through this release, but relevant to the claim, may only be obtained in compliance with applicable state or federal laws. (c) If the worker or beneficiary is represented by an attorney: (A) The documents must be mailed directly to the worker’s or beneficiary’s attorney; (B) The insurer is not required to provide copies to both the worker or beneficiary and the attorney; however, the insurer must inform the worker or beneficiary that the documents were mailed to the attorney if the documents were requested by the worker or beneficiary; and (C) If the worker or beneficiary changes attorneys, the insurer must provide the new attorney with copies upon request. (d) If the worker’s or beneficiary’s attorney makes an ongoing request for documents: (A) The insurer must provide all new documents received and generated by the insurer for 180 days after the initial mailing date under section (5) of this rule, or until a hearing is requested before the board; and (B) The insurer must provide new documents to the worker’s or beneficiary’s attorney every 30 days. If the attorney requests that specific documents be sent sooner, those documents must be provided within the time frame specified in section (5) of this rule. (e) The insurer must provide to the worker or the worker’s attorney the entire health information record in its possession, except the following may be withheld: (A) Information obtained from someone other than a health care provider under a promise of confidentiality and access to the information would likely reveal the source of the information; (B) Psychotherapy notes; (C) Information compiled for use in a civil, criminal, or administration action or proceeding; or (D) Information that must be withheld under federal regulation. (f) If a hearing is requested before the board, the release of documents is controlled by OAR chapter 438 until the hearing request is withdrawn or the hearing record is closed, provided a request for documents is renewed. (4) Format of documents. The insurer may provide electronic or paper copies of documents requested under this rule, except that the insurer must provide paper copies if the worker, worker’s attorney, worker’s beneficiary, or beneficiary’s attorney specifically requests paper copies. (5) Time frame to provide documents. The insurer must provide copies of documents requested under this rule within the following time frames: (a) For files that are not archived, documents must be mailed within 14 days of receipt of a request; (b) For files that are archived, documents must be mailed within 30 days of receipt of a request; (c) If a claim is lost or has been destroyed, the insurer must notify the requester and the director in writing within 14 days of receiving the request for claim documents. The insurer must reconstruct and mail the file within 30 days from the date of the lost or destroyed file notice; and (d) If the insurer does not possess any documents at the time the request is received: (A) The insurer must mail any documents relating to the claim it receives to the requestor within 14 days of receipt of the documents; and (B) The request will be considered ongoing for 90 days. (6) Complaints of violation. Complaints about a violation of the rules regarding release of requested claims documents must be made in writing and mailed or delivered to the division within 180 days of the request for documents, and must include a copy of the request submitted under section (3) of this rule. (a) When notified by the director that a complaint has been filed, the insurer must mail or deliver a written response to the director within 14 days of the mailing date of the director’s inquiry letter. A copy of the response, including any attachments, must be simultaneously mailed to the requester of claim documents. (b) If the director does not receive a timely response or the insurer provides an inadequate response (e.g., failing to answer specific questions or provide requested documents), the director may assess a civil penalty against the insurer under OAR 436-060-0200. Assessment of a penalty does not relieve the insurer of its obligation to provide a response. (7) Failure to provide documents. The director may assess a civil penalty against an insurer that fails to provide documents as required under this rule. The matrix attached to these rules in Appendix "A" will be used in assessing penalties. [See attached table.] [ED. NOTE: To view attachments referenced in rule text, click here to view rule.] Statutory/Other Authority: ORS 656.726(4) & ORS 656.745 Statutes/Other Implemented: ORS 656.745, ORS 656.360 & ORS 656.362 History: WCD 1-2022, minor correction filed 01/03/2022, effective 01/03/2022 WCD 18-2021, amend filed 12/13/2021, effective 01/01/2022 WCD 7-2020, amend filed 03/13/2020, effective 04/01/2020 WCD 6-2016, f. 11-28-16, cert. ef. 1-1-17 WCD 7-2015, f. 10-12-15, cert. ef. 1-1-16 WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10 WCD 5-2008, f. 12-15-08, cert. ef. 1-1-09 WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06 WCD 9-2004, f. 10-26-04, cert. ef. 1-1-05 WCD 2-2004, f. 2-19-04, cert. ef. 2-29-04 WCD 10-2002, f. 10-2-02, cert. ef. 11-1-02 WCD 11-2001, f. 11-30-01, cert. ef. 1-1-02 WCD 5-1996, f. 2-6-96, cert. ef. 2-12-96 WCD 7-1994, f. 8-11-94, cert. ef. 8-28-94 WCD 1-1992, f. 1-3-92, cert. ef. 2-1-92 WCD 3-1991, f. 4-18-91, cert. ef. 6-1-91