(2) If upon reconsideration of a Notice of
Closure there is an increase of 25 percent or more in the amount of permanent
disability compensation from that awarded by the Notice of Closure, and the
worker is found to be at least 20 percent permanently disabled, the insurer
will be ordered to pay the worker a penalty equal to 25 percent of the
increased amount of permanent disability compensation. Penalties will not be
assessed if an increase in compensation results from one of the following:
(a) An order issued by the director that
addresses the extent of the worker's permanent disability that is not based on
the standards adopted under ORS
656.726(4)(f);
(b) New information is obtained through a
medical arbiter examination, for claims with medically stationary dates or
statutory closure dates on or after June 7, 1995; or
(c) Information that the insurer or
self-insured employer demonstrates they could not reasonably have known at the
time of claim closure.
(3) For the purpose of section (2) of this
rule, a worker who receives a total sum of 64 degrees of scheduled or
unscheduled disability or a combination thereof, will be found to be at least
20 percent disabled.
For example: A worker who receives 20 percent disability of a
great toe (3.6 degrees) is not considered 20 percent permanently disabled
because the great toe is only a portion of the whole person. A worker who is
100 percent permanently disabled is entitled to 320 degrees of disability. A
worker who receives 64 degrees (20 percent of 320 degrees), whether scheduled,
unscheduled or a combination thereof, will be considered the equivalent of at
least 20 percent permanently disabled for the purposes of this rule.
(4) Attorney fees may only be
authorized when a Request for Reconsideration is submitted by an attorney
representing a worker or the attorney provides documentation of representation,
and a valid signed retainer agreement has been filed with the director. The
insurer must pay the attorney 10 percent out of any additional compensation
awarded. "Additional compensation" includes an increase in a permanent or
temporary disability award.
Notes
Or. Admin. Code §
436-030-0175
WCD 12-1994, f. 11-18-94,
cert. ef. 1-1-95; WCD 11-1995(Temp), f. & cert. ef. 8-23-95; WCD 8-1996, f.
2-14-96, cert. ef. 2-17-96; WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98; WCD
2-1999(Temp), f. 1-14-99, cert. ef. 2-1-99 thru 7-30-99; WCD 8-1999, f. &
cert. ef. 4-28-99; WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01; WCD 2-2004, f.
2-19-04 cert. ef. 2-29-04; WCD 9-2004, f. 10-26-04, cert. ef. 1-1-05; WCD
8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 11-2007, f. 11-1-07, cert. ef.
1-2-08;
WCD
6-2022, amend filed 07/05/2022, effective
9/1/2022
Statutory/Other Authority: ORS
656.726
Statutes/Other Implemented: ORS
656.268, §7, ch. 252 &
OL 2007
