Third Party Election Letters: Administrative Rule Changes Effective April 1, 2014

lance johnsonOAR 438-011-0055, effective April 1, 2014, mandates a new procedure for notifying claimants of third party election rights. Paying agencies must serve a written election demand by registered or certified mail or by personal service upon the claimant. The demand must include an informational disclosure complying with Board Bulletin #2. Additionally, the paying agency must ensure the claimant understands the meaning of the letter if he/she is unable to read or comprehend English or otherwise unable to understand written language. This is similar to CDA requirements, but does cause concern for compliance with illiterate or less illiterate claimants.

Below is the complete text of the rule along with a link to the enclosure.

438-011-0055 Third Party Election Letter

(1) If a self-insured employer or insurer (hereafter “paying agency”) intends to require the claimant or other beneficiaries or the legal representative of a deceased worker (hereafter “the claimant”) to exercise the right of election provided in ORS 656.578 to recover damages from a noncomplying employer or third person (hereafter “third party”), the paying agency shall serve a written demand by registered or certified mail or by personal service upon the claimant or, if represented, the claimant’s attorney.

(2) The paying agency shall include with its “third party election” letter described in section (1) of this rule, in a separate enclosure, information explaining the “third party election/assignment” process. The Board shall prescribe by bulletin the specific form and format for the enclosure. If the claimant does not read or comprehend English, or is otherwise unable to understand written language, the paying agency shall provide this information in a language or other manner that ensures that the claimant understands the meaning of the letter.

(3) The “third party election” letter, as described in section (1) of this rule shall:

(a) Contain the information prescribed by ORS 656.583; and

(b) Include a statement that the claimant has also been provided the informational enclosure prescribed by bulletin pursuant to section (2) of this rule.

Here are the referenced links for Bulletin #2 and the informational enclosure:

http://www.cbs.state.or.us/external/wcb/wcbbulletin/bulletin2-2013.pdf

http://www.cbs.state.or.us/external/wcb/wcbbulletin/tpenclosure2-2013.pdf