OAR 459-015-0025: Application Processing — Independent Examinations and Appeals

(1) Following the timely filing of a completed application, PERS may, at its discretion, request an independent medical exam, physical capacity evaluation, or vocational evaluation. If PERS requests one or more of these exams or evaluations, PERS will pay the reasonable associated expenses. (a) PERS is not required or obligated to request any examination or evaluation. The burden of proof for eligibility for a disability retirement allowance is upon the applicant, whether or not PERS requests any examination or evaluation. Situations in which PERS may exercise its discretion to request an examination or evaluation include, but are not limited to: (A) When PERS receives conflicting opinions from two physicians of the same specialty; (B) When an applicant cannot afford to see a physician of the appropriate specialty under OAR 459-015-0010(4) because: (i) The applicant does not have health insurance; (ii) The examination or evaluation will not be covered by the applicant’s health insurance; or (iii) No such physician practices medicine within 50 miles of the applicant’s home and the cost of traveling to such a physician would create a financial hardship for the applicant. (C) When an applicant has been examined by a physician of the appropriate specialty under OAR 459-015-0010(4), but the physician declines to provide an opinion to PERS as to the applicant’s claimed disability. (b) For independent medical exams and physical capacity evaluations, PERS shall inform the applicant in writing and postmarked not less than ten days prior to a scheduled examination or evaluation of the identity of the person or entity selected to examine or evaluate the applicant, together with location, date and time. (c) For vocational evaluations, the vocational consultant or locator service shall inform the applicant of the location, date and time of the scheduled examination. (d) If the applicant fails to meet the scheduled appointment or fails to reschedule the examination within five days of notification, PERS will not reschedule an examination at PERS’ expense unless the applicant can demonstrate good cause for having failed to meet the scheduled appointment or reschedule the appointment as required. (e) Good cause includes, but is not limited to: (A) Physical or mental incapacitation preventing the member from meeting or rescheduling the examination; (B) Failure of PERS or the vocational consultant or locator service to send the member notice as described above; or (C) A death in the member’s immediate family. (f) Good cause does not include: (A) A member’s refusal to attend the scheduled appointment; (B) A member’s failure to meet the appointment with no reason provided; or (C) A member’s failure to make appropriate transportation arrangements. (2) When PERS requires an applicant to travel to be examined by a physician, vocational consultant, or other professional, PERS will reimburse the applicant’s reasonable transportation costs based on the least costly alternative and on availability. Travel by private vehicle shall be compensated at the rate applicable to travel by unrepresented state employees on state business. Transportation by taxi, bus, rail, or other public carrier shall be paid only upon presentation of receipts from the providers. Lodging and subsistence shall be allowed only when an overnight stay is necessary and shall be paid at the rate applicable to unrepresented state employees traveling on state business. Reimbursements will be reduced by the amount of any penalty assessed by PERS because of a member’s failure to meet a scheduled appointment. (3) In the event a member fails to meet a scheduled appointment in accordance with section (1) of this rule, and PERS is assessed a penalty by the service provider for the failure to meet the scheduled appointment, the disability applicant shall bear the cost of the penalty as follows: (a) If the disability application is not approved, by making direct payment to the service provider who assessed the penalty; or (b) If the disability application is approved: (A) By making direct payment to the service provider who assessed the penalty; or (B) By having the amount of the penalty deducted from the monthly disability retirement allowance, as provided for under ORS 238.715, payable to the member until the invoice is satisfied. (4) The Director, or the Director’s designee, is hereby authorized to approve or deny a disability retirement application. Upon receipt and review of all necessary documentation, staff shall present applicant’s claim to the Director, or the Director’s designee, with a recommendation to approve or to deny a disability retirement allowance. The Director, or the Director’s designee, may accept or reject the staff’s recommendation, or refer the application back to staff for further documentation and review. (a) If the Director, or the Director’s designee, approves a disability claim, the staff will notify the applicant and the applicant’s employer of such approval. (b) If the disability claim is denied, the staff shall issue an Intent to Deny letter by regular and certified mail, return receipt requested. The denial letter shall advise the applicant that additional information to substantiate the claim, or a request for an extension of 30 days to present additional information, may be submitted to the staff in writing within 30 days of the date of the Intent to Deny letter. (c) An applicant who is otherwise eligible for a service retirement allowance shall have 30 days from the date of the Intent to Deny letter to apply for a service retirement allowance and be entitled to establish an effective date of service retirement for the first of the month that the application for disability retirement allowance was received by PERS. (d) The application for a service retirement allowance as provided for in subsection (c) of this section shall not preclude a disability applicant from requesting a contested case hearing under OAR 459-015-0030. (5) Following the issuance of an Intent to Deny letter, staff will review any additional information which is submitted within 30 days from the issuance of the Intent to Deny letter. (a) If the additional information results in a recommendation to approve the application, staff shall resubmit the application to the Director, or the Director’s designee, with the recommendation. (b) If the additional information does not result in a recommendation to approve the application, PERS will issue a final denial letter by regular and certified mail, return receipt requested. (c) If no additional information is received, PERS will issue a final denial letter by regular and certified mail, return receipt requested. (6) The final denial letter will provide the applicant with notification of the right to request a contested case hearing as provided for in OAR 459-015-0030 and 459-001-0035. (7) PERS will notify the most recent employer of the approval or the denial of an application for a disability retirement allowance, a request for review of the Director’s determination, and the Director’s final action. Such notification will not contain any confidential information as defined in OAR 459-015-0001(3).