Or. Admin. Code § 436-060-0017 - Release of Claim Documents
(1) For
the purpose of this rule:
(a)
"Documents" means the written records making up, or relating to,
the worker's claim, including but not limited to:
(A) Medical records, including any
correspondence to and from medical experts who provide reports to the
insurer ;
(B) Vocational records,
including any correspondence to and from vocational experts who provide reports
to the insurer ;
(C) Records of all
compensation paid;
(D) Payroll
records;
(E) Recorded
statements;
(F) Insurer generated
records, excluding a claims examiner's generated file notes, such as
documentation or justification concerning setting or adjusting reserves, claims
management strategy, or any privileged communications;
(G) All forms and notices on the claim
required by ORS chapter 656 or OAR chapter 436;
(H) Notices of closure; and
(I) Electronic transmissions and
correspondence between the insurer , service providers, worker, director , or
board .
(b) Any documents
generated or received by the insurer five or more business days before the
mailing date of a request for copies of claims documents are considered to be
in the insurer 's or service company 's possession, even if the documents have
not reached the insurer 's or service company 's claim file.
(2)
Date of receipt. The insurer
or service company must date stamp each document in its possession on the date
received.
(3)
Requests for
claims documents. The insurer or service company must provide, without
charge, legible copies of documents in its possession relating to a claim, upon
request of the worker, worker's attorney, worker's beneficiary, or
beneficiary's attorney at times other than those provided for under ORS
656.268 and OAR chapter 438, as
provided in this rule.
(a) A request for
copies of claim documents must be submitted to the insurer or service company ,
and copied simultaneously to the insurer 's defense counsel, if known.
(b) Except as provided in OAR
436-060-0180, an initial request
by anyone other than the worker or worker's beneficiary must be accompanied by
an attorney retainer agreement or a medical release that has been signed by the
worker.
(A) The signed medical release must be
provided using Form 2476, "Request for Release of Medical Records for Oregon
Workers' Compensation Claim," or an equivalent form.
(B) Information not otherwise available
through this release, but relevant to the claim, may only be obtained in
compliance with applicable state or federal laws.
(c) If the worker or beneficiary is
represented by an attorney:
(A) The documents
must be mailed directly to the worker's or beneficiary's attorney;
(B) The insurer is not required to provide
copies to both the worker or beneficiary and the attorney; however, the insurer
must inform the worker or beneficiary that the documents were mailed to the
attorney if the documents were requested by the worker or beneficiary;
and
(C) If the worker or
beneficiary changes attorneys, the insurer must provide the new attorney with
copies upon request.
(d)
If the worker's or beneficiary's attorney makes an ongoing request for
documents:
(A) The insurer must provide all
new documents received and generated by the insurer for 180 days after the
initial mailing date under section (5) of this rule, or until a hearing is
requested before the board ; and
(B)
The insurer must provide new documents to the worker's or beneficiary's
attorney every 30 days. If the attorney requests that specific documents be
sent sooner, those documents must be provided within the time frame specified
in section (5) of this rule.
(e) The insurer must provide to the worker or
the worker's attorney the entire health information record in its possession,
except the following may be withheld:
(A)
Information obtained from someone other than a health care provider under a
promise of confidentiality and access to the information would likely reveal
the source of the information;
(B)
Psychotherapy notes;
(C)
Information compiled for use in a civil, criminal, or administration action or
proceeding; or
(D) Information that
must be withheld under federal regulation.
(f) If a hearing is requested before the
board , the release of documents is controlled by OAR chapter 438 until the
hearing request is withdrawn or the hearing record is closed, provided a
request for documents is renewed.
(4)
Format of documents. The
insurer may provide electronic or paper copies of documents requested under
this rule, except that the insurer must provide paper copies if the worker,
worker's attorney, worker's beneficiary, or beneficiary's attorney specifically
requests paper copies.
(5)
Time frame to provide documents. The insurer must provide copies
of documents requested under this rule within the following time frames:
(a) For files that are not archived,
documents must be mailed within 14 days of receipt of a request;
(b) For files that are archived, documents
must be mailed within 30 days of receipt of a request;
(c) If a claim is lost or has been destroyed,
the insurer must notify the requester and the director in writing within 14
days of receiving the request for claim documents. The insurer must reconstruct
and mail the file within 30 days from the date of the lost or destroyed file
notice; and
(d) If the insurer does
not possess any documents at the time the request is received:
(A) The insurer must mail any documents
relating to the claim it receives to the requestor within 14 days of receipt of
the documents; and
(B) The request
will be considered ongoing for 90 days.
(6)
Complaints of violation.
Complaints about a violation of the rules regarding release of requested claims
documents must be made in writing and mailed or delivered to the division
within 180 days of the request for documents, and must include a copy of the
request submitted under section (3) of this rule.
(a) When notified by the director that a
complaint has been filed, the insurer must mail or deliver a written response
to the director within 14 days of the mailing date of the director 's inquiry
letter. A copy of the response, including any attachments, must be
simultaneously mailed to the requester of claim documents.
(b) If the director does not receive a timely
response or the insurer provides an inadequate response (e.g., failing to
answer specific questions or provide requested documents), the director may
assess a civil penalty against the insurer under OAR
436-060-0200. Assessment of a
penalty does not relieve the insurer of its obligation to provide a
response.
(7)
Failure to provide documents. The director may assess a civil
penalty against an insurer that fails to provide documents as required under
this rule. The matrix attached to these rules in Appendix "A" will be used in
assessing penalties. [See attached table.]
Notes
To view attachments referenced in rule text, click here to view rule.
Statutory/Other Authority: ORS 656.726(4), ORS 656.745
Statutes/Other Implemented: ORS 656.745, ORS 656.360, ORS 656.362
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