OAR 436-060-0018: Nondisabling and Disabling Claim Reclassification

(1) General. If the insurer changes the classification of an accepted claim, the insurer must: (a) Notify the director under OAR 436-060-0011; (b) Send the worker and the worker’s attorney, if any, a "Modified Notice of Acceptance" explaining the change in status; and (c) Close the claim under ORS 656.268(5), if the claim qualifies for closure. (2) Reclassification of a nondisabling claim. The insurer must reclassify a nondisabling claim to disabling: (a) Within 14 days of receiving information that: (A) Temporary disability is due and payable; (B) The worker is medically stationary within one year of the date of injury and the worker will be entitled to an award of permanent disability; or (C) The worker is not medically stationary, but there is a reasonable expectation that the worker will be entitled to an award of permanent disability when the worker does become medically stationary; or (b) Upon acceptance of a new or omitted condition that meets the disabling criteria in this section. (3) Worker request for reclassification. A worker may request the insurer review the classification of a nondisabling claim under ORS 656.277 if the claim has been classified as nondisabling for one year or less after the date of acceptance and the worker believes the claim was or has become disabling. (a) The request for classification status review must be first made to the insurer in writing. (b) Within 14 days of receipt of the worker’s request, the insurer must review the claim and: (A) If the classification is changed to disabling, provide notice under this rule; or (B) If the insurer believes evidence supports denying the worker’s request to reclassify the claim, the insurer must mail a "Notice of Refusal to Reclassify" to the worker and the worker’s attorney, if any. The notice must include the following language in bold and formatted as follows: If you disagree with this Notice of Refusal to Reclassify, you may appeal by contacting the Workers’ Compensation Division. To appeal: - Contact the division within 60 days of the mailing date of this notice. - You may use Form 2943, "Worker Request for Claim Classification Review," available on the division’s website at wcd.oregon.gov. - Request review in writing or by phone. Send, hand deliver, or fax written requests to: Workers’ Compensation Division Appellate Review Unit 350 Winter Street NE, 2nd Floor PO Box 14480 Salem OR 97309-0405 Fax: 503-947-7794 Or, call the Workers’ Compensation Division at 503-947-7816. The division will complete and sign Form 2943 on your behalf, and will send copies of the completed form to you, the insurer, and any attorneys involved in the claim. If you do not appeal to the Workers’ Compensation Division within 60 days of the mailing date of this notice, you will lose all rights to appeal this decision. For help, call: - Workers’ Compensation Division at 503-947-7816 - Ombuds Office for Oregon Workers at 503-378-3351 or 800-927-1271 (toll-free) (c) If the worker disagrees with the insurer’s decision in the Notice of Refusal to Reclassify, the worker may submit a request for review to the director under section (7) of this rule: (A) The request for review must be made no later than the 60th day after the mailing date of the Notice of Refusal to Reclassify; and (B) A copy of the insurer’s Notice of Refusal to Reclassify must be provided to the director. (d) If the insurer does not respond to the worker’s request for reclassification within 14 days of receipt of the worker’s request: (A) The worker may request review by the director under section (7) of this rule as if the insurer issued a Notice of Refusal to Reclassify; (B) The director may assess civil penalties under OAR 436-060-0200; and (C) The director may assess an attorney fee under ORS 656.386(3). (e) If the worker is represented by an attorney, and the attorney is instrumental in obtaining an order from the director that reclassifies the claim from nondisabling to disabling, the director may order a reasonable assessed attorney fee under ORS 656.277 and OAR 436-001-0435. (4) Time frame for aggravation rights. A claim for aggravation under ORS 656.273 must be filed within five years after: (a) The first valid closure of a claim that is reclassified from nondisabling to disabling within one year from the date of acceptance; or (b) The date of injury of a claim that is not reclassified from nondisabling to disabling within one year from the date of acceptance. (5) Claims for aggravation on nondisabling claims. When a claim has been classified as nondisabling for at least one year after the date of acceptance, a worker who believes the claim was or has become disabling may submit a claim for aggravation under ORS 656.273. (6) Reclassification of a disabling claim. If a claim has been accepted and classified as disabling: (a) All aspects of the claim are classified as disabling and may not be reclassified, unless: (A) The claim has been classified as disabling for less than one year from date of acceptance; (B) The insurer determines the criteria for a disabling claim were never satisfied; and (C) The insurer has notified the worker and the worker’s attorney, if any, by issuing a Modified Notice of Acceptance. The Modified Notice of Acceptance must include the following language in bold and formatted as follows: Notice to worker: We have changed your claim to nondisabling. Generally, this means no disability payments are due and all of the following are true: - You were able to return to work with full wages by the fourth calendar day after leaving work or losing wages because of your injury. - You did not lose time or wages from work because of your injury on or after that fourth calendar day. - It appears you will not have any permanent disability because of your injury. If you disagree that your claim is nondisabling, you may request that we change your claim to disabling. - You must send us your request in writing within one year of the date we first accepted your claim. - We must review and send you our decision within 14 days of receiving your request. If you disagree with our decision, or we do not respond to your request, you have the right to appeal to the Workers’ Compensation Division. To appeal: - You must ask the division to review your claim within 60 days of the date we mailed you our decision. - If we did not respond within 14 days of receiving your request, ask the division to review your claim as if we refused to change your claim. For help, call: - Workers’ Compensation Division at 503-947-7816 - Ombuds Office for Oregon Workers at 503-378-3351 or 800-927-1271 (toll-free) (b) Any subsequently accepted conditions or aggravations must be processed as disabling claims; and (c) Claim closure must be processed under ORS 656.268. (7) Appeal of insurer’s classification decision. If a worker disagrees with an insurer’s decision to not reclassify the worker’s claim from nondisabling to disabling, the worker may appeal the decision by requesting review by the director: (a) The request must be submitted to the division by mail, hand-delivery, fax, or phone within 60 days from the date of the insurer’s notice; (b) The worker may use Form 2943 , "Worker Request for Claim Classification Review," for requesting review of the insurer’s claim classification decision; and (c) The worker does not need to be represented by an attorney to request review of the insurer’s reclassification decision under section (3) or (6) of this rule. If a worker requests review an insurer’s reclassification decision: (A) The worker’s request for review must be copied to the insurer; (B) The director will acknowledge receipt of the request for review in writing to the worker, the worker’s attorney, if any, and the insurer, and initiate the review; (C) Within 14 days of the director’s acknowledgement: (i) The insurer must provide the director and all other parties with the complete medical record and all official actions and notices on the claim. The director may impose penalties against an insurer under OAR 436-060-0200 if the insurer fails to provide claim documents in a timely manner; and (ii) The worker may submit any additional evidence for the director to consider. Copies must be provided to all other parties at the same time; and (D) After receipt and review of the required documents, the director will issue an order: (i) The worker and the insurer have 30 days from the mailing date of the director's order to request a hearing by the board; and (ii) The director may reconsider, abate, or withdraw any order before the order becomes final by operation of law.