Or. Admin. Code § 436-060-0137

Current through Register Vol. 63, No. 11, November 1, 2024

Section 436-060-0137 - Vocational Evaluations for Permanent Total Disability Benefits; and Suspension of Compensation

(1)Requests for vocational evaluations. A worker receiving permanent total disability benefits must attend a vocational evaluation reasonably requested by the insurer or the director.

(2)Allowed number of vocational evaluations. The insurer may request no more than three separate vocational evaluations without authorization from the director. Insurers that fail to obtain authorization from the director for additional vocational evaluations may be assessed a civil penalty.

(a) To request authorization the insurer must:

(A) Submit a written request for authorization that includes:

(i) The reasons for an additional vocational evaluation;

(ii) The conditions to be evaluated;

(iii) The dates, times, places, and purposes of previous evaluations;

(iv) Copies of previous vocational evaluation notification letters to the worker; and

(v) Any other information requested by the director;

(B) Provide a copy of the request to the worker and the worker's attorney, if any.

(b) The director will review the request and determine if additional information is needed.

(A) Upon receipt of a request for additional information from the director, the parties will have 14 days to respond.

(B) If the parties do not provide the requested information, the director will approve or disapprove the request for authorization based on available information.

(c) The director's decision approving or denying more than three vocational evaluations may be appealed to the board within 60 days of the order.

(d) For purposes of determining the number of insurer required vocational evaluations, any evaluations scheduled but not completed are not counted as a statutory vocational evaluation.

(3)Notice to worker. The insurer must notify the worker of the evaluation at least 10 days before the date of evaluation.

(a) The notice sent for each evaluation, including evaluations that have been rescheduled, must contain the following:

(A) The name of the vocational assistance provider or facility;

(B) A statement of the specific purpose for the evaluation;

(C) The date, time and place of the evaluation;

(D) The first and last name of the attending physician or authorized nurse practitioner or a statement that there is no attending physician or authorized nurse practitioner, whichever is appropriate;

(E) If applicable, confirmation that the director has approved the evaluation;

(F) Notice to the worker that the reasonable cost of public transportation or use of a private vehicle will be reimbursed; when necessary, reasonable cost of child care, meals, lodging and other related services will be reimbursed; a request for reimbursement must be accompanied by a sales slip, receipt or other evidence necessary to support the request; should an advance of costs be necessary for attendance, a request for advancement must be made in sufficient time to ensure a timely appearance; and

(G) The following notice:

(i) In prominent or bold text:

"You must attend this vocational evaluation. If there is any reason you cannot attend, you must tell the insurer as soon as possible before the date of the evaluation. If you do not attend or do not cooperate, or do not have a good reason for not attending, your compensation benefits may be suspended in accordance with the workers' compensation law and rules, ORS 656.206 and OAR 436-060. If you have questions about your rights or responsibilities, you may call the Workers' Compensation Division at 1-800-452-0288 or the Ombuds Office for Oregon Workers at 1-800-927-1271."

(ii) Effective no later than Oct. 1, 2024, the text in (G)(i) of this subsection must be replaced with the following language in bold and formatted as follows:

You must attend this evaluation.

If there is any reason you cannot attend, you must tell us as soon as possible before the date of the evaluation.

Your workers' compensation benefits may be suspended under Oregon laws and rules* if you:

- Do not attend the evaluation,

- Do not cooperate with the evaluation, or

- Do not have good reason for not attending.

If you have any questions you may call:

- [Insurer] at [Insurer phone number]

- Workers' Compensation Division at 800-452-0288 (toll-free) or 503-947-7585

- Ombuds Office for Oregon Workers at 800-927-1271 (toll-free).

*Oregon Revised Statute 656.206 and Oregon Administrative Rules Chapter 436, division 60

(b) The insurer may contract with a third party to schedule vocational evaluations. If the third party notifies the worker of a scheduled evaluation on behalf of the insurer, the third party must send the notice on the insurer's stationery and the notice must meet the requirements of this section.

(4)Reimbursements of costs. The insurer must pay the costs of the vocational evaluation and related services necessary to allow the worker to attend the evaluation, including a reasonable cost of public transportation or use of a private vehicle, and when necessary, a reasonable cost of child care, meals, lodging and other related services. Child care costs reimbursed at the rate prescribed by the State of Oregon Department of Human Services, comply with this rule.

(5)Suspension of compensation. When the worker refuses or fails to attend, or otherwise obstructs, a vocational evaluation reasonably requested by the insurer or the director, the director may suspend the worker's compensation by order, under the following conditions:

(a) The insurer must send the request for suspension to the division. A copy of the request, including all attachments, must be sent simultaneously to the worker and the worker's attorney by registered or certified mail or by personal service;

(b) The request must include the following information:

(A) That the insurer requests suspension of benefits under ORS 656.206 and OAR 436-060-0137;

(B) What specific actions of the worker prompted the request;

(C) The dates of any prior vocational evaluations the worker has attended and the names of the vocational assistance provider or facilities, or a statement that there have been no prior evaluations, whichever is appropriate;

(D) A copy of any approvals given by the director for more than three vocational evaluations, or a statement that no approval was necessary, whichever is appropriate;

(E) Any reasons given by the worker for failing to attend, whether or not the insurer considers the reasons invalid, or a statement that the worker has not given any reasons, whichever is appropriate;

(F) The date and with whom failure to comply was verified. Any written verification of the worker's refusal to attend the vocational evaluation received by the insurer from the worker or the worker's attorney will be sufficient documentation with which to request suspension;

(G) A copy of the letter required in section (3) of this rule and a copy of any written verification received under paragraph (F) of this subsection;

(H) Any other information that supports the request; and

(I) The following notice:

(i) In prominent or bold text:

"Notice to worker: If you think this request to suspend your compensation is wrong, you should immediately write to the Workers' Compensation Division, 350 Winter Street NE, PO Box 14480, Salem, Oregon 97309-0405. Your letter must be mailed within 10 days of the date this request was mailed or personally served on you. If the division grants this request, you may lose all or part of your benefits."

(ii) Effective no later than Oct. 1, 2024, the text in (I)(i) of this subsection must be replaced with the following language in bold and formatted as follows:

Notice to worker:

If the Workers' Compensation Division grants this request, you may lose all or part of your benefits.

If you think this request to suspend your compensation is wrong, write to the Workers' Compensation Division immediately.

- Your letter must be mailed within 10 days of the date this request was mailed or personally served on you.

- Address your letter to:

Workers' Compensation Division

350 Winter Street NE

PO Box 14480

Salem OR 97309-0405

If you have any questions, you may call:

- [Insurer] at [Insurer phone number]

- Workers' Compensation Division at 800-452-0288 (toll-free) or 503-947-7585

- Ombuds Office for Oregon Workers at 800-927-1271 (toll-free)

(c) If the director suspends compensation:

(A) The suspension will be effective from the date the worker fails to attend a vocational evaluation or such other date the director determines is appropriate until the date the worker attends the evaluation;

(B) The worker is not entitled to compensation during or for the period of suspension;

(C) The insurer must assist the worker to meet requirements necessary for the resumption of compensation payments. When the worker has attended the vocational evaluation, the insurer must verify the worker's participation and resume compensation effective the date of the worker's compliance;

(D) The director may modify or set aside the suspension order before or after filing of a request for hearing;

(E) The director may order payment of compensation previously suspended where the director finds the suspension to have been made in error; and

(F) The director may re-evaluate the necessity of continuing a suspension;

(d) If the insurer fails to comply with this rule, the director may deny the request for suspension. Any delay in requesting suspension may result in suspension being denied or the date of suspension being modified; and

(e) A suspension order becomes final unless, within 60 days after the date of mailing of the order, a party files a request for hearing on the order with the board.

Or. Admin. Code § 436-060-0137

WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 5-2008, f. 12-15-08, cert. ef. 1-1-09; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; WCD 6-2016, f. 11-28-16, cert. ef. 1/1/2017; WCD 7-2020, amend filed 3/13/2020, effective 4/1/2020; WCD 14-2022, amend filed 12/20/2022, effective 1/1/2024; WCD 14-2024, amend filed 06/07/2024, effective 7/1/2024

Statutory/Other Authority: ORS 656.726(4)

Statutes/Other Implemented: ORS 656.206