Changes to OAR 436-060 effective as of January 1, 2017

vaniman-megan-colorIn 2016, the Workers’ Compensation Division drafted changes to OAR 436-060. These changes went into effect on January 1, 2017. Below, I have outlined several changes that claim’s administrators should be aware of. Please note that the below list and recommendations is not a complete list of changes to Division 060. I encourage you to review the new rules.

OAR 436-060-0010(6): The worker may choose a medical service provider, attending physician or authorized nurse practitioner under ORS 656.245, 656.260, OAR 436-010 and 436-015. Except as provided under ORS 656.260 and OAR 436-015, if an employer restricts the worker’s choice of medical service provider the director may impose a civil penalty of up to $2,000.

  • What this means for you: This rule is directed at employers. It is a means to discourage employers from requiring injured workers to treat with certain physicians.

OAR 436-060-0147(1): The director will determine the worker’s eligibility for a worker requested medical examination under ORS 656.325(1). The worker is eligible for an exam if: (a) The worker has made a timely request for a Workers’ Compensation Board hearing on a denial of compensability as required by ORS 656.319(1)(a); (b) The denial was based on one or more independent medical examination reports; and (c) The attending physician or authorized nurse practitioner did not concur with the report or reports.

  • What this means for you: Claimants no longer have to produce a non-concurrence with an IME report to be granted an WRME. Claimants only have to show that their attending physician did not comment on the report. This may mean an increase in WRMEs.

OAR 436-060-0147(4): Penalty for failure to provide documentation. Failure to provide the required documentation described in section (3) of this rule in a timely manner may subject the insurer to civil penalties under OAR 436-060-0200.

  • What this means for you: The old rule required civil penalties be assessed if insurers did not provide the Division a list of names and addresses of all physicians who provided treatment or a records review. The new rule makes a penalty discretionary. Records should be supplied within the 14 days of the insurer’s receipt of the request for the WRME.

OAR 436-060-0025(4): Rate of compensation, irregular wages. If a worker receives irregular wages, or receives earnings that are not based on wages alone, the insurer must calculate the worker’s rate of compensation under section (3) of this rule based on the weekly average of the worker’s total earnings for the period up to 52 weeks before the date of injury or verification of disability caused by occupational disease. (a) “Total earnings” means all wages, salary, commission and other remuneration.

  • What this means for you: Calculate the worker’s wages based on a weekly average of the worker’s total earnings for the period up to 52 weeks before the date of injury. If the worker is employed for more than four weeks, then do not include gaps in employment of more than 14 days unless anticipated in verbal/written wage earning agreement (i.e. plant shut down). If, prior to the injury, there is a change in the wage agreement, due to change in hours/job duties and there is in increase or decrease in wages, then insurer must average earnings only for the weeks worked under the most recent wage agreement.

OAR 436-060-025(5): Rate of Compensation, Regular wages. If a worker receives regular wages, the insurer must calculate the worker’s rate of compensation as outlined in ORS 656.210.

  • What this means for you: To determine the worker’s weekly wage, daily wages must be multiplied by the number of days per week the worker was regularly employed; Monthly wages must be divided by 4.35; or wages for other pay intervals must be calculated on an equivalent basis.

If you have any questions regarding changes to Division 060 please contact me at mvaniman@sbhlegal.com