An employer’s processing decisions can, paradoxically, be made more difficult when a worker abandons the claim shortly after filing Form 801 or 827. Without the worker’s assistance, investigation of a claim can more resemble speculation than informed decision making. OAR 436-060-0135 is an important tool under these circumstances, providing the framework whereby these claims can be initially delayed and ultimately denied.
The rule provides “[w]hen the worker refuses or fails to cooperate in an investigation of an initial claim for compensation, a claim for a new medical condition, a claim for an omitted medical condition, or an aggravation claim as required by ORS 656.262(14), the division will suspend compensation under ORS 656.262(15) by order under conditions set forth in this rule.” Once compensation is suspended, the obligation to accept or deny the claim is also suspended. If claimant takes no action for 30 days after the suspension, the claim can be denied for failure to cooperate.
The process for handling claims involving non-cooperative workers requires strict compliance with the requirements of OAR 436-060-0135 and ORS 656.262(15). For specific assistance, please contact any member of the Reinisch Wilson Weier Oregon Practice Group. The following are some of the requirements to keep in mind when posturing a claim for a non-cooperation denial.
- The OAR 436-060-0135 process is only available where no acceptance or denial has issued.
- The insurer/processing agent must notify the worker in writing that an interview or deposition has been scheduled, or of other investigation requirements, and must give the worker at least 14 days to cooperate.
- The notice must be sent (by registered or certified mail or by personal service) to the worker and copied to the worker’s attorney, if represented, and must advise the worker of the date, time and place of the interview and/or any other reasonable investigation requirements.
- If the insurer/processing agent contracts with a third party, such as an investigation firm, to investigate the claim, the notice shall be on the insurer’s/processing agent’s stationery.
- The notice must inform the worker that the interview, deposition, or any other investigation requirements are related to the worker’s compensation claim.
- The notice must also contain the following statement in prominent or bold face type:
“The workers’ compensation law requires injured workers to cooperate and assist the insurer or self-insured employer in the investigation of claims for compensation. Injured workers are required to submit to and fully cooperate with personal and telephonic interviews and other formal or informal information gathering techniques. If you fail to reasonably cooperate with the investigation of this claim, payment of your compensation benefits may be suspended and your claim may be denied in accordance with ORS 656.262 and OAR 436-060.”
- After 14 days, if claimant fails to cooperate, a Request for Suspension of Benefits must be sent to the division.
- Any delay in requesting suspension may result in authorization being denied.
- 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.
- The Request must include the following information sufficient to show the worker’s failure to cooperate:
- That the insurer/processing agent requests suspension of benefits under ORS 656.262(15) and OAR 436-060-0135;
- Documentation of the specific actions of the worker or worker’s representative that prompted the request;
- Any reasons given by the worker for failure to comply, or a statement that the worker has not given any reasons, whichever is appropriate;
- A copy of the notice required in section (4) of OAR 436-060-0135; and
- All other pertinent information, including, but not limited to, a copy of the claim for a new or omitted condition when that is what the insurer/processing agent is investigating.
- Claimant will then be required to cooperate or contact the division. Failure to do so will result in a Notice of Suspension from the division. This serves to suspend the obligation to accept or deny the claim (and payment of interim compensation).
- If claimant cooperates, the insurer/processing agent has an obligation to notify the division immediately.
- If the worker makes no effort to reinstate compensation within 30 days of the date of the Notice of Suspension, the insurer/processing agent may deny the claim under ORS 656.262(15) and OAR 436-060-0140(10).