justicedao/ipfs_state_laws huggingface dataset:
436-040-0003 Applicability of Rules (1) These rules are effective July 1, 2008, and apply to all applications for relief submitted prior to May 1, 1990 and all requests for reimbursement from the Workers with Disabilities Program filed with the director on or after July 1, 2008 for injuries occurring on or after November 1, 1981. (2) These rules carry out the provisions of ORS 656.628. Statutory/Other Authority: ORS 656.726 Statutes/Other Implemented: ORS 656.236, §286, ch. 70 & OL 2007 History: WCD 1-2008, f. 6-13-08, cert. ef. 7-1-08 WCD 10-2007, f. 11-1-07, cert. ef. 1-1-08 WCD 22-1990, f. 11-29-90, cert. ef. 12-26-90 WCD 6-1990(Temp), f. 6-18-90, cert. ef. 7-1-90 WCD 3-1989, f. 12-22-89, cert. ef. 1-1-90 WCD 6-1987, f. 12-18-87, cert. ef. 1-1-88, Renumbered from 436-064-0003 WCD 6-1983, f. 12-20-83, cert. ef. 1-1-84 WCD 1-1982, f. 1-20-82, cert. ef. 2-1-82
436-040-0005 Definitions Except where the context requires otherwise, these rules are governed by the following definitions: (1) “Compensation” means all benefits, including medical services and attorney fees, provided for a compensable injury to a subject worker or the worker’s beneficiaries. However, it does not include expenses as defined by the National Council on Compensation Insurance, in its Workers’ Compensation Statistical Plan, Part IV. (2) “Deductible” means the initial $1,000 of cumulative compensation paid on qualifying claim(s) applied once per worker with a disability. (3) “Director” means the director of the Department of Consumer and Business Services or the director’s delegate for the matter. (4) “Division” means the Workers’ Compensation Division of the Department of Consumer and Business Services. (5) “Employer” means an employer who qualifies pursuant to the provisions of ORS 656.017, either as a carrier-insured employer or as a self-insured employer under ORS 656.407. (6) “Worker with a disability” means a worker who is afflicted with, or subject to, any permanent physical or mental impairment, whether congenital or due to an injury or disease, including periodic impairment of consciousness or muscular control of such character that the impairment would prevent the worker from obtaining or retaining employment. (7) “Workers with Disabilities Claim Reserve” means the total anticipated liability (paid plus future reimbursable costs) regardless of any relief granted under the Workers with Disabilities Program. (8) “Workers with Disabilities Program” means the program established under ORS 656.628. (9) “Paying Agency” means the insurer, self-insured employer, or designated representative of the self-insured employer, responsible for paying compensation for a compensable injury. (10) “Settlement” means any agreement produced as a result of the act or process of settling differences between a paying agent and a worker with a disability, or disposition of a claim pursuant to ORS 656.236 or 656.289. Statutory/Other Authority: ORS 656.726 Statutes/Other Implemented: ORS 656.628, §286, ch. 70 & OL 2007 History: WCD 10-2007, f. 11-1-07, cert. ef. 1-1-08 WCD 22-1990, f. 11-29-90, cert. ef. 12-26-90 WCD 6-1990(Temp), f. 6-18-90, cert. ef. 7-1-90 WCD 3-1989, f. 12-22-89, cert. ef. 1-1-90 WCD 6-1987, f. 12-18-87, cert. ef. 1-1-88, Renumbered from 436-064-0005 WCD 6-1983, f. 12-20-83, cert. ef. 1-1-84 WCD 1-1982, f. 1-20-82, cert. ef. 2-1-82
436-040-0006 Administration of Rules For the purpose of administration of the Workers with Disabilities Program, orders of the division are deemed orders of the director. Statutory/Other Authority: ORS 656.726 Statutes/Other Implemented: ORS 656.628, §286, ch. 70 & OL 2007 History: WCD 10-2007, f. 11-1-07, cert. ef. 1-1-08 WCD 3-1989, f. 12-22-89, cert. ef. 1-1-90 WCD 6-1987, f. 12-18-87, cert. ef. 1-1-88 WCD 6-1983, f. 12-20-83, cert. ef. 1-1-84, Renumbered from 436-064-0010 WCD 1-1982, f. 1-20-82, cert. ef. 2-1-82
436-040-0008 Administrative Review (1) If a paying agency or employer is aggrieved by a decision of the division, the director may be petitioned for reconsideration. (2) The director shall examine the application and such further evidence filed, and enter an order. Copies of the order will be sent to the paying agency, the division, and employer, if applicable. Granting or denying reimbursement from the Workers with Disabilities Program is at the sole discretion of the director. Pursuant to ORS 656.628(7), the director’s order is final and not subject to review by any court or other administrative body. (3) In adopting these rules, the director reserves the right to re-examine any liability created against the Workers’ Benefit Fund and to modify or terminate such liability, where such action is justified. Statutory/Other Authority: ORS 656.726 Statutes/Other Implemented: ORS 656.628, §286, ch. 70 & OL 2007 History: WCD 10-2007, f. 11-1-07, cert. ef. 1-1-08 WCD 3-1989, f. 12-22-89, cert. ef. 1-1-90 WCD 6-1987, f. 12-18-87, cert. ef. 1-1-88, Renumbered from 436-064-0998, 5-1-85 WCD 6-1983, f. 12-20-83, cert. ef. 1-1-84 WCD 1-1982, f. 1-20-82, cert. ef. 2-1-82
436-040-0010 Criteria for Eligibility (1) The criteria used to determine eligibility for relief from the Workers with Disabilities Program are: (a) Without regard to employer knowledge, a worker must have a permanent physical or mental impairment, whether congenital or due to an injury or disease which would prevent the worker from obtaining or retaining employment. For the purpose of this section, a worker has a pre-existing permanent impairment if it is equal to or greater than twenty five percent (25%) of the whole person. (b) There must be a subsequent compensable injury or injuries: (A) To the worker with a disability resulting in cumulative claim(s) costs in excess of $1,000; or (B) To other workers employed by the disabled worker’s employer resulting in cumulative claim(s) costs in excess of $1,000. (c) The insurer or employer must demonstrate that the subsequent injury or injuries: (A) Would not have been sustained except for the disabled worker’s impairment; or (B) Would not have occurred, to workers of the same employer, except for the act or omission of a worker with a disability which resulted from the disabled worker’s impairment; or (C) Resulted in disability which is at least one-fourth greater by reason of the worker’s pre-existing impairment, as determined by the division. (2) An employer declared noncomplying in accordance with ORS 656.052 is not eligible for relief from the Workers with Disabilities Program for injuries to subject workers occurring during any period of noncompliance. (3) A paying agency is not eligible for reimbursement from the Workers with Disabilities Program for any claim occurring to a worker during a period for which the employer is receiving premium reimbursement from the Re-employment Assistance Program, for that worker, pursuant to ORS 656.622(3). Statutory/Other Authority: ORS 656.726 Statutes/Other Implemented: ORS 656.628, §286, ch. 70 & OL 2007 History: WCD 10-2007, f. 11-1-07, cert. ef. 1-1-08 WCD 22-1990, f. 11-29-90, cert. ef. 12-26-90 WCD 6-1990(Temp), f. 6-18-90, cert. ef. 7-1-90 WCD 3-1989, f. 12-22-89, cert. ef. 1-1-90 WCD 6-1987, f. 12-18-87, cert. ef. 1-1-88 WCD 6-1983, f. 12-20-83, cert. ef. 1-1-84, Renumbered from 436-064-0100 WCD 1-1982, f. 1-20-82, cert. ef. 2-1-82
436-040-0020 Limitation of Program (1) Reimbursement is limited to the monies available in the Workers’ Benefit Fund . (2) In the event of insufficient reserves in the Workers’ Benefit Fund, the director shall have final authority to determine an equitable distribution which will proportionately distribute the available funds among the claims which have qualified for reimbursement from the Workers with Disabilities Program. Statutory/Other Authority: ORS 656.726 Statutes/Other Implemented: ORS 656.628, §286, ch. 70 & OL 2007 History: WCD 10-2007, f. 11-1-07, cert. ef. 1-1-08 WCD 3-1989, f. 12-22-89, cert. ef. 1-1-90 WCD 6-1987, f. 12-18-87, cert. ef. 1-1-88 WCD 6-1983, f. 12-20-83, cert. ef. 1-1-84, Renumbered from 436-064-0200 WCD 1-1982, f. 1-20-82, cert. ef. 2-1-82
436-040-0030 Application for Determination of Relief From the Workers with Disabilities Program (1) The paying agency must provide the director adequate evidence to establish eligibility for determination of relief from the Workers with Disabilities Program. (2) When the deductible has been met and possible eligibility for relief becomes known, the paying agency shall make prompt application to the division requesting determination of relief from the Workers with Disabilities Program in a form prescribed by the director. (3) The application shall be submitted prior to the date of the last valuation affecting an employer’s experience rating, prior to the last valuation for retrospective rating, whichever is the last to occur and prior to the employer ceasing to do business. The application shall be supported by sufficient evidence establishing eligibility for reimbursement under the general provisions herein and in accordance with OAR 436-040-0010. For employers that are not experience rated, application shall be submitted prior to the date there would have been a last valuation, had the employer been so rated, and prior to the employer ceasing to do business. The preceding application time frames do not apply to self-insured employers or their paying agencies. (4) To meet the requirements of OAR 436-040-0030(3), the paying agency shall: (a) Specify the condition which caused permanent impairment and which constituted a handicap; (b) Specify whether this request is based on a causal or contributory relationship pursuant to OAR 436-040-0010(1)(c); (c) Provide documentation describing prior impairment: such as medical reports, direct information from the worker, employer documentation, prior Determination Orders, Opinion and Orders, and Orders on Review; (5) The division will review the application to assure it is complete and the $1,000 deductible has been met. The application, supporting documentation, and claims involved will then be submitted to the division for an eligibility determination. Statutory/Other Authority: ORS 656.726 Statutes/Other Implemented: ORS 656.628, §286, ch. 70 & OL 2007 History: WCD 10-2007, f. 11-1-07, cert. ef. 1-1-08 WCD 3-1989, f. 12-22-89, cert. ef. 1-1-90 WCD 6-1987, f. 12-18-87, cert. ef. 1-1-88, Renumbered from 436-064-0300 WCD 6-1983, f. 12-20-83, cert. ef. 1-1-84 WCD 1-1982, f. 1-20-82, cert. ef. 2-1-82
436-040-0040 Eligibility Determination (1) The division shall determine whether a claim qualifies for reimbursement, and the percentage of the reimbursement. (2) The division shall issue a determination order accepting or denying the application within 30 calendar days after receipt of the application and supporting documentation. (3) The reimbursement percentage shown on the determination order will be: (a) 100% after the $1,000 deductible in those cases qualifying under OAR 436-040-0010(1)(c)(A) and (B); or (b) In direct proportion to the percentage the resulting disability was increased as a result of the pre-existing impairment in those cases qualifying under OAR 436-040-0010(1)(c)(C). Statutory/Other Authority: ORS 656.726 Statutes/Other Implemented: ORS 656.628 History: WCD 10-2007, f. 11-1-07, cert. ef. 1-1-08 WCD 3-1989, f. 12-22-89, cert. ef. 1-1-90 WCD 6-1987, f. 12-18-87, cert. ef. 1-1-88, Renumbered from 436-064-0310 WCD 6-1983, f. 12-20-83, cert. ef. 1-1-84 WCD 1-1982, f. 1-20-82, cert. ef. 2-1-82
436-040-0060 Effects on Rates; Reporting (1) Where an order of acceptance has established the percentage of reimbursement to an insured, the incurred claim cost above $1,000, prior to reimbursement, shall be reduced by that percentage. The net incurred cost after such reduction shall be used in any dividend calculation, retrospective rating evaluation or experience rating computation, retroactively if necessary, and shall be reported at that net incurred cost to the rating organization. Any subsequent re-evaluation of the claims reserve requirements under the rules of the Unit Statistical Plan Manual shall be similarly reduced by the percentage of reimbursement. (2) The paying agency “eligible for” or receiving reimbursement from the Workers with Disabilities Program, shall report the subject claims in such method and manner as the insurance commissioner shall require. Notwithstanding the reporting requirements of the Insurance Commissioner and an authorized rating organization, the paying agency must be able to document that such reimbursed costs are not and will not be included in data reported that will affect the rates and/or dividend eligibility. (3) If compensation reported to the appropriate rating organization subsequently becomes eligible for reimbursement from the Workers with Disabilities Program, the insured paying agency shall immediately file a “re-evaluation of losses” report, pursuant to the Insurance Commissioner’s rules, with a rating organization licensed by the Insurance Commissioner. (4) If compensation used by the division for experience rating purposes becomes eligible for reimbursement from the Workers with Disabilities Program, the self-insured paying agency may file a request for re-evaluation of experience rating modification(s) with the division. Any necessary calculation(s) will be made, retroactively if necessary, when the annual experience rating modification is calculated. [Publications: Publications referenced are available from the agency.] Statutory/Other Authority: ORS 656.726 Statutes/Other Implemented: ORS 656.628, §286, ch. 70 & OL 2007 History: WCD 10-2007, f. 11-1-07, cert. ef. 1-1-08 WCD 3-1989, f. 12-22-89, cert. ef. 1-1-90 WCD 6-1987, f. 12-18-87, cert. ef. 1-1-88, Renumbered from 436-064-0320 WCD 6-1983, f. 12-20-83, cert. ef. 1-1-84 WCD 1-1982, f. 1-20-82, cert. ef. 2-1-82
436-040-0070 Settlements (1) Any settlement of the claim by the parties is not eligible for reimbursement from the Workers with Disabilities Program unless made with the prior written approval of the division. (2) Requests for written approval of proposed settlements should include: (a) A copy of the proposed settlement; (b) Correspondence between the paying agency and the claimant or claimant’s representative which establishes the basis for settlement or a statement from the paying agency of how the amount of the settlement was calculated; (c) Additional medical reports not available at the time of the determination; and (d) Other material which would support the proposed settlement as an appropriate manner to handle the claim. (3) The paying agency shall submit settlements to the division in the format prescribed by the director. Statutory/Other Authority: ORS 656.726 Statutes/Other Implemented: ORS 656.628, §286, ch. 70 & OL 2007 History: WCD 10-2007, f. 11-1-07, cert. ef. 1-1-08 WCD 22-1990, f. 11-29-90, cert. ef. 12-26-90 WCD 6-1990(Temp), f. 6-18-90, cert. ef. 7-1-90 WCD 3-1989, f. 12-22-89, cert. ef. 1-1-90 WCD 6-1987, f. 12-18-87, cert. ef. 1-1-88, Renumbered from 436-064-0325 WCD 6-1983, f. 12-20-83, cert. ef. 1-1-84 WCD 1-1982, f. 1-20-82, cert. ef. 2-1-82
436-040-0080 Third Party Recoveries (1) If a third party recovery is made prior to a claim qualifying for Workers with Disabilities Program relief, compensation recovered shall be credited against the compensation of the claim prior to any request for reimbursement. (2) The Workers with Disabilities Program shall be a party to any third party recovery on a claim if payment from the program has been made prior to the third party recovery as provided in ORS 656.591 and 656.593(1)(c). Statutory/Other Authority: ORS 656.726 Statutes/Other Implemented: ORS 656.628, §286, ch. 70 & OL 2007 History: WCD 10-2007, f. 11-1-07, cert. ef. 1-1-08 WCD 3-1989, f. 12-22-89, cert. ef. 1-1-90, Renumbered from 436-064-0330 WCD 6-1983, f. 12-20-83, cert. ef. 1-1-84 WCD 1-1982, f. 1-20-82, cert. ef. 2-1-82
436-040-0090 Assessment of Civil Penalties The director, through the division and pursuant to ORS 656.745, may assess a civil penalty against an insurer. When the division imposes a penalty under this section, the order shall be issued in accordance with ORS 656.447, 656.704 and the contested case provisions of the Administrative Procedures Act (ORS chapter 183). Statutory/Other Authority: ORS 656.726 Statutes/Other Implemented: ORS 656.628 History: WCD 10-2007, f. 11-1-07, cert. ef. 1-1-08 WCD 3-1989, f. 12-22-89, cert. ef. 1-1-90
436-045-0001 Authority for Rules These rules are promulgated under the Director’s authority contained in ORS 656.726 and 656.625. Statutory/Other Authority: ORS 656 Statutes/Other Implemented: ORS 656.625 & 656.726 History: WCD 8-1987, f. 12-18-87, ef. 1-1-88
436-045-0002 Purpose The purpose of these rules is to establish guidelines for administering disbursements made from the Reopened Claims Program established to reimburse compensation paid as a result of awards made by the Board or voluntary claim reopenings pursuant to ORS 656.278. Statutory/Other Authority: ORS 656.625 & 656.726 Statutes/Other Implemented: ORS 656.625 & 656.726 History: WCD 12-2001, f. 12-7-01, cert. ef. 1-1-02 WCD 13-1997, f. 12-4-97, cert. ef. 1-1-98 WCD 8-1987, f. 12-18-87, ef. 1-1-88
436-045-0003 Applicability of Rules (1) These rules are effective July 1, 2008, and apply to all requests for reimbursement from the Reopened Claims Program. (2) These rules apply to all awards ordered on claims opened by the Board under ORS 656.278 on or after January 1, 1988 and all voluntary claim reopenings on or after January 1, 2002. (3) These rules carry out the provisions of ORS 656.625. (4) Applicable to this chapter, the director may, unless otherwise obligated by statute, in the director’s discretion waive any procedural rules as justice so requires. Statutory/Other Authority: ORS 656.625 Statutes/Other Implemented: ORS 656.236, 656.289 & 656.625 History: WCD 1-2008, f. 6-13-08, cert. ef. 7-1-08 WCD 12-2001, f. 12-7-01, cert. ef. 1-1-02 WCD 13-1997, f. 12-4-97, cert. ef. 1-1-98 WCD 9-1991, f. 12-13-91, cert. ef. 1-1-92 WCD 27-1990, f. 11-30-90, cert. ef. 12-26-90 WCD 7-1990(Temp), f. 6-18-90, cert. ef. 7-1-90 WCD 8-1987, f. 12-18-87, ef. 1-1-88
436-045-0005 Definitions As used in OAR 436-045-0001 through 436-045-0030 unless the context requires otherwise: (1) "Board" means the Workers’ Compensation Board of the Department of Consumer and Business Services. (2) "Compensation" includes all benefits payable as a result of any order or award made by the Board or voluntary claim reopening pursuant to ORS 656.278. (3) "Compliance" means the Compliance Section of the Workers’ Compensation Division of the Department of Consumer and Business Services. (4) "Department" means the Department of Consumer and Business Services. (5) "Director" means the director of Department of Consumer and Business Services or the director’s delegate for the matter. (6) "Disposition" or "claim disposition" means the written agreement executed by all parties in which a claimant agrees to release rights, or agrees to release an insurer or self-insured employer from obligations, under ORS 656.001 to 656.794, except for medical services, in an accepted claim. (7) "Hearings Division" means the Hearings Division of the Workers’ Compensation Board. (8) "Paying Agency" means the insurer, self-insured employer, self-insured employer group or designated representative of the self-insured employer/group, responsible for paying compensation for a compensable injury. (9) "Reopened Claims Program" and "Program" means the program established pursuant to ORS 656.625. (10) "Voluntary Claim Reopening" means any claim reopened by the insurer or self-insured employer to provide benefits or to grant additional medical or hospital care to the claimant pursuant to ORS 656.278. Statutory/Other Authority: ORS 656.726 Statutes/Other Implemented: ORS 656.726 History: WCD 12-2001, f. 12-7-01, cert. ef. 1-1-02 WCD 13-1997, f. 12-4-97, cert. ef. 1-1-98 WCD 27-1990, f. 11-30-90, cert. ef. 12-26-90 WCD 7-1990(Temp), f. 6-18-90, cert. ef. 7-1-90 WCD 8-1987, f. 12-18-87, ef. 1-1-88
436-045-0006 Administration of Rules Any orders issued by the divisions in carrying out the director’s authority to enforce ORS Chapter 656 and these rules are considered orders of the director. Statutory/Other Authority: ORS 656.704 & 656.726 Statutes/Other Implemented: ORS 656.704 & 656.726 History: WCD 13-1997, f. 12-4-97, cert. ef. 1-1-98 WCD 8-1987, f. 12-18-87, ef. 1-1-88
436-045-0008 Administrative Review (1) Any party as defined by ORS 656.005 aggrieved by a proposed order or proposed assessment of civil penalty of the director or division issued pursuant to ORS 656.745 may request a hearing by the Hearings Division of the Workers’ Compensation Board in accordance with ORS 656.740. (a) The request for hearing must be sent in writing to the Administrator of the Workers’ Compensation Division. No hearing shall be granted unless the request specifies the grounds upon which the person requesting the hearing contests the proposed order or assessment. (b) The request for hearing must be filed with the Administrator of the Workers’ Compensation Division by the aggrieved person within 60 days after the mailing of the proposed order or assessment. No hearing shall be granted unless the request is mailed or delivered to the administrator within 60 days after the mailing of the proposed order or assessment. (2) Under ORS 656.704(2), any party that disagrees with an action or order of the director under these rules, other than as described in section (1), may request a hearing by filing a request for hearing as provided in OAR 436-001-0019 within 30 days of the mailing date of the order or notice of action. OAR 436-001 applies to the hearing. Statutory/Other Authority: ORS 656.704, 656.726(4) & 656.745 Statutes/Other Implemented: ORS 656.236, 656.289, 656.625, 656.704, 656.726(8), 656.740 & 656.745 History: WCD 21-2024, minor correction filed 06/18/2024, effective 06/18/2024 WCD 10-2007, f. 11-1-07, cert. ef. 1-1-08 WCD 7-2005, f. 10-20-05, cert. ef. 1-2-06 WCD 12-2003, f. 12-4-03, cert. ef. 1-1-04 WCD 13-1997, f. 12-4-97, cert. ef. 1-1-98 WCD 27-1990, f. 11-30-90, cert. ef. 12-26-90 WCD 7-1990(Temp), f. 6-18-90, cert. ef. 7-1-90 WCD 8-1987, f. 12-18-87, cert. ef. 1-1-88
436-045-0010 Criteria for Eligibility (1) In order to qualify for reimbursement from the Reopened Claims Program there must be: (a) An order or award issued by the Board upon its own motion pursuant to ORS 656.278 and as provided by OAR chapter 438, division 12 or a voluntary claim reopening; and (b) Verifiable compensation paid in accordance with the order or award issued by the Board or voluntary claim reopening, including permanent disability awarded as a result of a reopening due to a new or omitted medical condition pursuant to ORS 656.278(1)(b). (2) Notwithstanding paragraph (1)(b) of this rule, reimbursement may be made from the Program for reasonable overpayments of temporary disability. Reasonable overpayments are those made from the date a worker becomes medically stationary, returns to work or is released to work until the insurer is notified or should have known of the status change. (3) Costs for claims to subject workers of an employer who is in a noncomplying status as defined in ORS 656.052 are not eligible for reimbursement from the Program but remains a cost recoverable from the employer as provided by ORS 656.054(2). Statutory/Other Authority: ORS 656.625 Statutes/Other Implemented: ORS 656.625, ORS 656.236 & ORS 656.289 History: WCD 10-2021, minor correction filed 10/08/2021, effective 10/08/2021 WCD 12-2001, f. 12-7-01, cert. ef. 1-1-02 WCD 13-1997, f. 12-4-97, cert. ef. 1-1-98 WCD 8-1987, f. 12-18-87, ef. 1-1-88
436-045-0020 Limitation of Program (1) Reimbursement shall be limited to the monies available in the Workers’ Benefit Fund. (2) In the event of insufficient funds in the Workers’ Benefit Fund, the director shall have final authority to determine an equitable distribution which will proportionately distribute the available funds among the claims having qualified for reimbursement under the Program. Statutory/Other Authority: ORS 656.625 Statutes/Other Implemented: ORS 656.625 History: WCD 13-1997, f. 12-4-97, cert. ef. 1-1-98 WCD 8-1987, f. 12-18-87, ef. 1-1-88