When Claimants Move Out of State
By Kelsey H. Barrett, Attorney at Law
Although uncommon, we do see claims periodically where claimants relocate out-of-state and leave Oregon. On an accepted claim, this poses its own unique set of considerations. We outlined the key processes below.
Out-of-State Attending Providers
First, claimant should be reminded to establish care with an attending provider in their new state that is willing to accept Oregon workers’ compensation benefits. If it appears as though they are delaying reestablishing care, we may wish to send a “bug letter” to press them to find a new attending provider and updated time loss authorization.
When a new provider is identified by claimant, the insurer/administrator must give claimant written notice of approval or disapproval of the worker’s choice of attending physician within 14 days. Once an attending provider is approved, we then need to send the provider a form letter to confirm their agreement to abide by OAR 426-010 (the medical service rules) and accept fee schedule rates (OAR 436-009). The exact requirements of the out-of-state provider are outlined in OAR 436-010-0210(7). I typically recommend enclosing a copy of the relevant rule in the correspondence to the out-of-state physician to ensure strict compliance with the required notices.
If the out-of-state physician refuses to comply with OAR 436-009 and 436-010, we have the option of forcing the worker to find a different attending physician. The disapproval notice must identify at least two other physicians of the same healing art and specialty in the same area that the insurer would approve. Please note that the disapproval can occur after an earlier approval if the out-of-state physician becomes non-compliant with the relevant rules. The insurer must also notify the provider of the disapproval and detail: (1) the reasons for withdrawing the approval; (2) that any future services provided by that physician will not be paid by the insurer; and (3) that the worker may be liable for payment of services provided after the date of notification.
Time Loss
Second, an out-of-state relocation poses unique time loss considerations. We recommend sending an earnings questionnaire to ensure that new employment was not obtained in the new state. Relocation alone will not cut off time loss entitlement. However, we do still have the option of a modified duty work offer in alignment with any new work restrictions. Please note that the requirement that the modified duty location is within 50 miles of claimant’s resident refers to the residence at the time of injury under OAR 436-060-0030(3). That said, we should always be aware that the claimant could accept the modified duty position and relocate back to Oregon. Therefore, the modified duty offer must be a true offer that we are willing to potentially accommodate the out-of-state claimant in.
Claim Closure
Additionally, at the time of claim closure, we can either obtain closing information from the out-of-state attending provider or via an IME. Both pose their own considerations. If we elect to have the out-of-state provider perform the closing examination, I would recommend sending a cover letter. The Oregon attorneys at Reinisch Wilson are always willing to help with this tricky inquiry. Since the out-of-state providers are unfamiliar with Oregon workers’ compensation law, they are unlikely to provide enough information or use the right terminology for a reasonable closure. To avoid this, we should send narrowly tailored questions that explain the definition of medically stationary and obtain commentary on permanent impairment/restrictions. We often recommend sending a copy of Bulletin 239 to provide further insight into the Oregon Disability Rating Standards and indicate to the WCD that extensive efforts were made to obtain complete closure information.
Alternatively, we could also obtain an IME examination. The advantage to an IME is that a physician well-versed in Oregon workers’ compensation performs the closing examination. However, we are responsible for all travel costs for the out-of-state worker to attend the IME (which can quickly eclipse $10,000.00, when considering flights, hotels, transportation, and meals). This will also apply to travel for an subsequent arbiter examination after claim closure.
Please do not hesitate to reach out to any of our Oregon attorneys if you have questions about a worker’s out-of-state relocation!