Or. Admin. Code § 436-030-0165 - Medical Arbiter Examination Process
(1) The director will select a medical
arbiter physician or a panel of physicians in accordance with ORS
656.268(8).
(a) For the purpose of this rule, a "panel"
of physicians is defined as two or three medical arbiters.
(b) When a panel medical arbiter examination
is requested, the director will generally appoint three medical arbiters. The
director may consider the following criteria when determining whether to
appoint two medical arbiters instead:
(A) The
location of the worker;
(B) The
specialties of the doctors needed for the medical arbiter examination;
and
(C) The time frame for
completing the reconsideration process.
(c) Any party that objects to a physician on
the basis that the physician is not qualified under ORS
656.005(12)(b)
must notify the director of the specific objection before the examination. If
the director determines that the physician is not qualified to be a medical
arbiter on the specific case, an examination will be scheduled with a different
physician.
(d) When the worker
resides outside the state of Oregon, a medical arbiter examination may be
scheduled out-of-state with a physician who is licensed within that state to
provide medical services in the same manner as required by ORS
656.268(8).
(e) Arbiters or panel members will not
include any health care provider whose examination or treatment is the subject
of the review.
(f) The insurer must
pay all costs related to the completion of the medical arbiter process in this
rule. These costs may include, but are not limited to, costs for child care,
travel, meals, lodging, and an amount equivalent to the worker's net lost wages
for the period during which it is necessary to be absent from work to attend
the medical examination if the worker does not receive benefits under ORS
656.210(4)
during the period of absence.
(2) If the director determines there are
enough appropriate physicians available to create a list of possible arbiters
and it is practicable, each party will be given the opportunity to agree on a
physician and to remove one physician from the list through the process
described below:
(a) The director will send
the list to the parties electronically or by overnight mail.
(b) If the parties agree on a physician,
every party must send a signed, written notice of that choice to the
director.
(c) A party can remove a
physician from the list, even when the parties have agreed on a physician to
conduct the exam, by submitting a signed, written notice of that choice to the
director.
(d) To be effective, the
written notice of agreement on or rejection of a physician must be received by
the director within three working days of the date the director sent the
list.
(3) The worker's
disability benefits will be suspended when the director determines the worker
failed to attend or cooperate with the medical arbiter examination, unless the
worker establishes a "good cause" reason for missing the examination or for not
cooperating with the arbiter. The worker must call the director within 24 hours
of the missed examination to provide any "good cause" reason.
(a) Notice of the examination will be
considered adequate notice if the appointment letter is mailed to the last
known address of the worker and to the worker's attorney, if the worker is
represented.
(b) For the purposes
of this rule, non-cooperation includes, but is not limited to, refusal to
complete any reasonable action necessary to evaluate the worker's impairment.
However, it does not include circumstances such as a worker's inability to
carry out any part of the examination due to excessive pain or when the
physician reports the findings as medically invalid.
(c) Failure of the worker to respond within
the time frames outlined in statute for completion of the reconsideration
proceeding may be considered a failure to establish "good cause."
(4) If a worker misses the medical
arbiter examination, the director will determine whether or not there was a
"good cause" reason for missing the examination.
(5) Upon determination that there was not a
"good cause" reason for missing the examination, or that the worker failed to
cooperate with the arbiter, the worker's disability benefits will be suspended
and the reconsideration proceeding postponed for up to an additional 60
days.
(6) The suspension will be
lifted if any of the following occur during the additional 60-day postponement
period:
(a) The worker establishes a "good
cause" reason for missing or failing to cooperate with the
examination;
(b) The worker
withdraws the request for reconsideration; or
(c) The worker attends and cooperates with a
rescheduled arbiter examination.
(7) If none of the events that end the
suspension under section (6) of this rule occur before the expiration of the
60-day additional postponement, the suspension of benefits will remain in
effect.
(8) The medical arbiter or
panel of medical arbiters must perform a record review or examine the worker as
requested by the director and perform such tests as may be reasonable and
necessary to establish the worker's impairment.
(a) The parties must submit to the director
any issues they wish the medical arbiter or panel of medical arbiters to
address within 14 days of the date of the director's notice of the start of the
reconsideration proceeding. The parties may not submit issues directly to the
medical arbiter or panel of medical arbiters. The medical arbiter or panel of
medical arbiters will only consider issues appropriate to the reconsideration
proceeding.
(b) The report of the
medical arbiter or panel of medical arbiters must address all questions raised
by the director.
(c) The medical
arbiter will provide copies of the arbiter report to the director, the worker
or the worker's attorney, and the insurer within five working days after
completion of the arbiter review. The cost of providing copies of such
additional reports must be reimbursed according to OAR
436-009-0060 and must be paid by
the insurer.
(9) When a
worker's medical condition prevents the worker from fully participating in a
medical arbiter examination that must be conducted to determine findings of
impairment, the director may send a letter to the parties requesting consent to
defer the reconsideration proceeding. The medical condition that prevents the
worker from participating in the medical arbiter examination does not need to
be related to the work injury.
(a) If the
parties agree to the deferral, the reconsideration proceeding will be deferred
until the medical record reflects the worker's condition has stabilized
sufficiently to allow for examination to obtain the impairment findings. The
parties must notify the director when it is appropriate to schedule the medical
arbiter examination and provide the necessary medical records when requested.
Interim medical information that may be helpful to the director and the medical
arbiter in assessing and describing the worker's impairment may be submitted at
the time the parties notify the director that the medical arbiter examination
can be scheduled. The director will determine whether the interim medical
information is consistent with the provisions of ORS
656.268(6) and
(8).
(b) If deferral is not appropriate, at the
director's discretion either a medical arbiter examination or a medical arbiter
record review may be obtained, or the director may issue an Order on
Reconsideration based on the record available at claim closure and other
evidence submitted in accordance with ORS
656.268(6).
(10) All costs related to record
review, examinations, tests, and reports of the medical arbiter must be billed
and paid under OAR 436-009-0010,
436-009-0030,
436-009-0040, and
436-009-0060.
(11) When requested by the board, the
director may schedule a medical arbiter examination for a worker who has
appealed a Notice of Closure rescinding permanent total disability benefits
under ORS 656.206.
Notes
Statutory/Other Authority: ORS 656.726
Statutes/Other Implemented: ORS 656.268 & 656.325
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