OAR 436-030-0065: Review of Permanent Total Disability Awards

(1) The insurer must reexamine each permanent total disability claim at least once every two years or when requested to do so by the director to determine if the worker has materially improved, either medically or vocationally, and is capable of regularly performing work at a suitable and gainful occupation. The insurer must notify the worker and the worker’s attorney if the worker is represented whenever the insurer intends to reexamine the worker’s permanent total disability status. Workers who fail to cooperate with the reexamination may have benefits suspended under OAR 436-060-0095. (2) A worker receiving permanent total disability benefits must submit to a vocational evaluation, if requested by the director, insurer, or self-insured employer under ORS 656.206(8). (3) Any decision by the insurer to reduce permanent total disability must be communicated in writing to the worker, and to the worker’s attorney if the worker is represented, and accompanied by documentation supporting the insurer’s decision. That documentation must include: medical reports, including sufficient information necessary to determine the extent of permanent partial disability, vocational and investigation reports (including visual records, if available) that demonstrate the worker’s ability to regularly perform a suitable and gainful occupation, and all other applicable evidence. (4) An award of permanent total disability for scheduled injuries before July 1, 1975, may be considered for reduction only when the insurer has evidence that the medical condition has improved. (5) Except for section (4) of this rule, an award of permanent total disability may be reduced only when the insurer has a preponderance of evidence that the worker has materially improved, either medically or vocationally, and is regularly performing work at a suitable and gainful occupation or is currently capable of doing so. Preexisting disability must be included in redetermination of the worker’s permanent total disability status. (6) When the insurer reduces a permanent total disability claim, the insurer must, based upon sufficient information to determine the extent of permanent partial disability, issue a Notice of Closure, Permanent Total Disability Reduction (Form 1644p) that reduces the permanent total disability and awards permanent partial disability, if any. (7) Notices of Closure reducing permanent total disability are appealable to the board. (8) If a worker is receiving permanent total disability benefits and sustains a new compensable injury, the worker is eligible for additional benefits for the new compensable injury, except that the worker’s eligibility for compensation for the new compensable injury is limited to medical benefits under ORS 656.245 and permanent partial disability benefits for impairment, as determined in the manner set forth in ORS 656.214(2).