OAR 436-030-0015: Insurer Responsibility

(1) When an insurer issues a Notice of Closure (Form 1644), the insurer is responsible for: (a) Providing the director, the parties, and the worker’s attorney if the worker is represented, a copy of the Notice of Closure, a copy of the Notice of Closure Worksheet (Form 2807) upon which the Notice is based, a completed Insurer Notice of Closure Summary (Form 1503), and an Updated Notice of Acceptance at Closure that specifies which conditions are compensable, as prescribed in OAR 436-030-0020; (b) Maintaining a copy of the worksheet and records upon which the Notice of Closure is based in its claim file for audit purposes under OAR 436-050; and (c) Issuing the Updated Notice of Acceptance at Closure on the same date as the Notice of Closure. (A) The Updated Notice of Acceptance at Closure must contain the following title, information, and language: (i) Title: "Updated Notice of Acceptance at Closure"; (ii) Information: A list of all compensable conditions, even if a condition was denied, ordered accepted by litigation, and is under appeal. Any conditions under appeal and those which were the basis for this claim opening must be specifically identified; and (iii) Language, in bold print: "Notice to Worker: This notice restates and includes all prior acceptances. The conditions that were the basis of this claim opening were the only conditions considered at the time of claim closure. The insurer or self-insured employer is not required to pay any disability compensation for any condition specifically identified as under appeal, unless and until the condition is found to be compensable after all litigation is complete. Appeal of any denied conditions or objections to this notice will not delay claim closure. Any condition found compensable after the Notice of Closure is issued will require the insurer to reopen the claim for processing of that condition. If you believe a condition has been incorrectly omitted from this notice, or this notice is otherwise deficient, you must communicate the specific objection to the insurer in writing."; (B) In the case of an instant fatality, the Updated Notice of Acceptance may be combined with the Notice of Closure if the following is included: (i) Title: "Updated Notice of Acceptance and Closure"; (ii) Information: A statement that beneficiaries may be entitled to death benefits under ORS 656.204 and 656.208, and the medically stationary date; and (iii) Language, in bold print: "Notice to Worker’s Beneficiary or Estate: This notice restates any prior acceptances. The insurer is required to determine the appropriate benefits to be paid to any beneficiaries and begin those payments within 30 days of the mailing date of this notice. If you disagree with the notice of acceptance, you may appeal the decision to the Workers’ Compensation Board, 2601 25th Street SE, Suite 150, Salem, OR 97302-1280 within 30 days of the mailing date. A beneficiary who was mailed this notice may request reconsideration of the notice by the Workers’ Compensation Division, Appellate Review Unit, 350 Winter Street NE, PO Box 14480 Salem, OR 97309-0405 within 60 days of the mailing date of this notice. Beneficiaries who were not mailed a copy of this notice may request reconsideration of this notice within one year of the date this notice was mailed to the estate of the worker. If you have questions about this notice, you may contact the Ombuds Office for Oregon Workers, the Workers’ Compensation Division, or consult with an attorney." (C) If the "Initial Notice of Acceptance" is issued at the same time as the "Updated Notice of Acceptance at Closure," both titles must appear near the top of the document. (D) When an omission or error requires correcting an Updated Notice of Acceptance at Closure, the document must be clearly titled “Corrected Updated Notice of Acceptance at Closure.” (2) The insurer or self-insured employer is not required to pay any disability compensation for any condition under appeal and specifically identified as such, unless and until the condition is found to be compensable after all litigation is complete. (3) Copies of Notices of Refusal to Close must be mailed to the director and the parties, and to the worker’s attorney, if the worker is represented. (4) In claims with a date of injury on or after January 1, 2005, where the worker has not returned to regular work and ORS 656.726(4)(f) does not apply, or in claims with a date of injury on or after January 1, 2006, when the worker has not been released to regular work and ORS 656.726(4)(f) does not apply, the insurer must consider: (a) The worker’s age at the time the notice is issued; (b) Adaptability to return to employment; (c) The worker’s level of education; and (d) The worker’s work history, including an accurate description of the physical requirements of the worker’s job held at the time of injury, for the period from five years before the date of injury to the mailing date of the Notice of Closure with dates or period of time spent at each position, tasks performed or level of specific vocational preparation (SVP), and physical requirements. If the insurer cannot obtain five years of work history despite all reasonable efforts, the insurer must document its efforts and provide as much work history as it can obtain. (5) In claims where the date of injury is before January 1, 2005, the worker has not returned or been released to regular work, ORS 656.726(4)(f) does not apply, and the claim involves injury to, or disease of, unscheduled body parts, areas, or systems, the insurer must consider: (a) The worker’s age at time the notice is issued; (b) Adaptability to return to employment: (c) The worker’s level of education; and (d) The worker’s work history, including an accurate description of the physical requirements of the worker’s job held at the time of injury, for the period from five years before the date of injury to the mailing date of the Notice of Closure with dates or period of time spent at each position, tasks performed or level of specific vocational preparation (SVP), and physical requirements. (6) The insurer must consider any other records or information pertinent to claim determination prior to issuing a Notice of Closure. (7) The insurer must notify the worker and the worker’s attorney, if the worker is represented, in writing, when the insurer receives information that the worker’s claim qualifies for closure under these rules. (a) The insurer must send the written notice within three working days from the date the insurer receives the information, unless the claim has already been closed. (b) The notice must advise the worker of impending claim closure and that any temporary disability benefits currently being paid will end soon. (8) The insurer must, within 14 days of closing the claim, provide the worker’s attorney the same documents relied upon for claim closure. (9) The insurer may not issue a Notice of Closure on an accepted nondisabling claim. Notices of Closure issued by the insurer in violation of this rule are void and without legal effect. Medically stationary status in nondisabling claims may be documented by the attending physician’s statement of medically stationary status. (10) When a condition is accepted after a closure and the claim has been reopened under ORS 656.262, the insurer must issue a Notice of Closure, considering only the newly accepted condition. (11) Denials issued under ORS 656.262(7)(b), must clearly identify the phrase "major contributing cause" in the text of the denial. (12) When a claim is closed where a designation of paying agent order (ORS 656.307) has been issued and the responsibility issue is not final by operation of law, the insurer processing the claim at the time of closure must send copies of the closure notice to the worker, the worker’s attorney if the worker is represented, the director, and all parties involved in the responsibility issue. (13) Forms 1503, 1644, and 2807 are published with Bulletin 139. (14) The insurer must mail or deliver the notice required under OAR 436-060-0015(8).