Department of Consumer and Business Services
Workers' Compensation Board - Chapter 438
Division 9
COMPROMISE AND SETTLEMENT
438-009-0010
Disputed Claim Settlements
(1) Any document submitted for approval by the Board or the Hearings Division as a settlement of a denied or disputed claim shall be in the form specified by this rule.
(2) A disputed claim settlement shall recite, at a minimum:
(a) The date and nature of the claim;
(b) That the claim has been denied and the date of the denial;
(c) That a bona fide dispute as to the compensability of all or part of the claim exists and that the parties have agreed to compromise and settle all or part of the denied and disputed claim under the provisions of ORS 656.289(4);
(d) The factual allegations and legal positions in support of the claim;
(e) The factual allegations and legal positions in support of the denial of the claim;
(f) That each of the parties has substantial evidence to support the factual allegations of that party;
(g) A list of medical service providers who shall receive reimbursement in accordance with ORS 656.313(4), including the specific amount each provider shall be reimbursed, and the parties' acknowledgment that this reimbursement allocation complies with the reimbursement formula prescribed in 656.313(4)(d); and
(h) The terms of the settlement, including the specific date on which those terms were agreed.
(3) If an accepted claim is later denied entirely at any time based on fraud, misrepresentation or other illegal activity by the worker, the disputed claim settlement shall further recite the specific factual allegations and legal positions of the parties concerning the fraud, misrepresentation or other illegal activity.
(4) If a claim was previously accepted in good faith but later denied, in whole or in part, based on later obtained evidence that the claim is not compensable or evidence that the paying agent is not responsible for the claim, the disputed claim settlement shall further recite:
(a) If the accepted claim is later denied entirely at any time up to two years from the date of claim acceptance, an allegation that the self-insured employer or insurer has obtained later evidence that the claim is not compensable or that the paying agent is not responsible for the claim; or
(b) If the denial is a denial of aggravation, current need for medical services or a partial denial of a medical condition on the ground that the condition is not related to the accepted injury, that the claimant retains all rights that may later arise under ORS 656.245, 656.273, 656.278 and 656.340, insofar as these rights may be related to the original accepted claim.
(5) If the claimant is unrepresented, the denial of the claim which is being settled by any document described in section (1) of this rule shall not be contained within that document, but rather shall be issued separately. In addition, any document described in section (1) of this rule shall recite that the unrepresented claimant has been orally advised of the following matters:
(a) The right to an attorney of the claimant's choice at no cost to the claimant for attorney fees;
(b) The existence of the Ombuds Office for Oregon Workers pursuant to ORS 656.709;
(c) Except with the consent of the worker, reimbursement made to medical service providers from the proceeds of a disputed claim settlement shall not exceed 40 percent of the total present value of the settlement amount; and
(d) Reimbursement from the proceeds of a disputed claim settlement made to medical service providers shall not prevent a medical service provider or health insurance provider from recovering the balance of amounts owing for such services directly from the worker, unless the worker agrees to pay all medical service providers directly from the settlement proceeds the amount provided under ORS 656.248.
(6) Any document described in section (1) of this rule shall also recite that the claimant has been orally advised that:
(a) The claimant has the right to request a hearing concerning the claim, after which an Administrative Law Judge will determine whether the claimant will receive workers' compensation benefits;
(b) If, following the hearing, the claim is finally determined compensable, the claimant would be entitled to workers' compensation benefits, which could include temporary disability, permanent disability, medical treatment, and vocational rehabilitation;
(c) If, following the hearing, the claim is finally determined not compensable, the claimant would not be entitled to workers' compensation benefits;
(d) As a result of this agreement, the claimant's rights to seek workers' compensation benefits concerning this claim would be extinguished;
(e) Both parties agree that the terms of the agreement are reasonable; and
(f) The agreement shall not be binding upon the parties unless and until the agreement is approved by an Administrative Law Judge or the Board, depending upon which forum is considering the dispute.
(7) No document described in section (1) of this rule shall be approved unless the document submitted by the parties establishes that a bona fide dispute as to compensability exists and the proposed disposition of the dispute is reasonable. If an Administrative Law Judge or the Board is not satisfied that a bona fide dispute exists or that disposition of the dispute is reasonable, the Administrative Law Judge or Board may reject the agreement or specify the manner in which objection(s) can be cured.
(8) All disputed claim settlements shall:
(a) Recite whether a claim disposition agreement in the claim has been filed; and
(b) Be in a separate document from a claim disposition agreement.
Statutory/Other Authority: ORS 656.726(5)
Statutes/Other Implemented: ORS 656.236, 656.289(4) & 656.313(4)
History:
WCB 22-2022, amend filed 07/11/2022, effective 10/01/2022
WCB 1-2011, f. 11-2-11, cert. ef. 1-1-12
WCB 2-2007, f. 12-11-07, cert. ef. 1-1-08
WCB 1-2004, f. 6-23-04 cert. ef. 9-1-04
WCB 3-2001, f. 11-14-01, cert. ef. 1-1-02
WCB 2-1995, f. 11-13-96, cert. ef. 1-1-96
WCB 3-1993, f. 10-27-93, cert. ef. 11-4-93
WCB 11-1990, f. 12-13-90, cert. ef. 12-31-90
Reverted to WCB 5-1990, f. 4-19-90, cert. ef. 5-21-90
WCB 7-1990(Temp), f. 6-14-90, cert. ef. 7-1-90
WCB 5-1990, f. 4-19-90, cert. ef. 5-21-90
WCB 5-1987, f. 12-18-87, ef. 1-1-88
WCB 1-1984, f. 4-5-84, ef. 5-1-84