TIME TO REVIEW YOUR PTD CASES?  IF IT HAS BEEN TWO YEARS, THE ANSWER IS YES.

By Amy C. Osenar, Attorney at Law

When a claim closes with a finding that a worker is PTD, does that mean the worker is PTD forever? Not always! Instead you must reexamine your PTD claims to assess continued eligibility at least *every* two years. ORS 656.206(5) provides:

Each insurer shall reexamine periodically each permanent total disability claim for which the insurer has current payment responsibility to determine whether the worker has materially improved, either medically or vocationally, and is no longer permanently incapacitated from regularly performing work at a gainful and suitable occupation. Reexamination must be conducted every two years or at such other more frequent interval as the director may prescribe. Reexamination must include such medical examinations, vocational evaluations, reports and other records as the insurer considers necessary or the director may require.

OAR 436-030-0065 outlines the process for such review and directs, in most relevant parts, for awards issued after July 1, 1975:

1. The insurer must reexamine each permanent total disability claim at least once every two years or when requested to do so by the director to determine if the worker has materially improved, either medically or vocationally, and is capable of regularly performing work at a suitable and gainful occupation. The insurer must notify the worker and the worker’s attorney if the worker is represented whenever the insurer intends to reexamine the worker’s permanent total disability status. Workers who fail to cooperate with the reexamination may have benefits suspended under OAR 436-060-0095. OAR 436-030-0065(1).
2. A worker receiving permanent total disability benefits must submit to a vocational evaluation, if requested by the director, insurer, or self-insured employer. OAR 436-030-0065(2).
3. Any decision by the insurer to reduce permanent total disability must be communicated in writing to the worker, and to the worker’s attorney if the worker is represented, and accompanied by documentation supporting the insurer’s decision. That documentation must include: medical reports, including sufficient information necessary to determine the extent of permanent partial disability, vocational and investigation reports (including visual records, if available) that demonstrate the worker’s ability to regularly perform a suitable and gainful occupation, and all other applicable evidence. OAR 436-030-0065(3).
4. An award of permanent total disability may be reduced only when the insurer has a preponderance of evidence that the worker has materially improved, either medically or vocationally, and is regularly performing work at a suitable and gainful occupation or is currently capable of doing so. Preexisting disability must be included in redetermination of the worker’s permanent total disability status. OAR 436-030-0065(5).
5. When the insurer reduces a permanent total disability claim, the insurer must, based upon sufficient information to determine the extent of permanent partial disability, issue a Notice of Closure, Permanent Total Disability Reduction (Form 1644p) that reduces the permanent total disability and awards permanent partial disability, if any. Notices of Closure reducing permanent total disability are appealable to the board. OAR 436-030-0065(6)&(7).

We all know that physical conditions, and relevant motivations, can change over time. We are here to help strategize on the best approach for your PTD cases, whether it be avoiding the award in the first place, or reducing the award once issued. Please reach out to me at amyo@rwlaw.com with any questions.