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The Oregon Administrative Rules contain OARs filed through September 15, 2014
 
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DEPARTMENT OF ADMINISTRATIVE SERVICES

 

DIVISION 160

ADMINISTRATION AND BENEFITS OF THE INMATE INJURY SYSTEM

 

125-160-0000

Purpose, Applicability, and Effective Date

(1) Section 41, Article 1 of the Oregon Constitution provides that injury or disease from inmate work shall be covered by a corrections system inmate injury fund rather than workers compensation law. These rules set procedures and benefits. They are patterned generally after accidental death and disability insurance.

(2) These rules apply to injuries to inmates in authorized work or training assignments of the Oregon Department of Corrections.

(3) These rules apply to injuries occurring on and after June 30, 1995.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: ORS 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0010

Definitions

As used in chapter 125, division 160, unless the context requires otherwise:

(1) "Awards" or "benefits" include one or more of the following types:

(a) "Death benefit" means the monthly amount of disability award the person deceased from a covered death would have received at a disability rating of 100 percent. Death benefit also includes any payment to the claimant's estate of burial expenses.

(b) "Final benefit or award" means the Department's final notice of all benefits due to claimant. It is normally issued upon claimant's request for reaffirmation or modification of the initial estimate. Benefits do not increase after final award appeal rights are exhausted.

(c) "Initial estimate" means the Department's notice to a claimant that the injury qualifies for permanent disability benefits. It includes the estimate of disability rating and benefits.

(d) "Medical services" means those medications, medical procedures, rehabilitation services, physical aids, and prosthetics that are duly prescribed by the attending physician. Medical Services must be of proven therapeutic value. They must be medically necessary to the process of recovery from the covered injury. They permanently cease when a claimant is medically stationary.

(e) "Permanent disability benefit or award" means the Department's estimated and final calculations of the benefit for a permanent disability from a covered injury.

(f) "Prosthetics benefit" means an amount paid, reserved, or added to permanent disability benefits for the repair or replacement of prosthetics. The cause of repair or replacement must be normal wear and tear or medical need caused by the covered injury and no other cause. The award shall be the Department's estimate of current replacement cost, multiplied by the probability of replacement before age 65, multiplied by the disability rating. Covered prosthetics are only those prescribed by the attending physician and not available over the counter. They must be medically necessary due to the covered injury and no other cause. No prosthetics awards shall be made for pre-existing prosthetics or for glasses, hairpieces, or dentures. Prosthetics benefits shall cease if and when permanent disability award payments cease to be paid or payable for any reason.

(g) "Rehabilitation Services" means physical restorative services prescribed by the attending physician. They must be necessary to recovery from a covered injury. They are part of medical services.

(h) "Temporary disability benefit or award" means the permanent disability award at a disability rating of 100 percent. It is paid only during temporary disability for up to six months after release.

(i) "Training benefit" means any training provided by Corrections during confinement that may improve the chances of employment.

(2) "Authorized work or training assignment" is the duties of, and travel to and from, work or occupational training assigned to the claimant by Corrections. It applies only to assignments during confinement in a facility or institution located within Oregon and operated by Corrections. An assignment begins with the first line movement going to, and ends with the last line movement leaving, the assignment.

(3) "Beneficiary" is a dependent of the claimant who may claim death benefits upon claimant's covered death. Beneficiaries shall meet the following tests:

(a) A beneficiary must, on the date of injury and on the date of covered death, be one of the following, in relationship to the deceased inmate-claimant:

(A) Legal husband or wife of the claimant.

(B) Child of the claimant. Child includes claimant's natural child, born or unborn, claimant's legally adopted child, stepchild, or other child toward whom the claimant stands in loco parentis.

(C) Father, mother, grandfather, grandmother, stepfather, stepmother, grandson, granddaughter, brother, sister, half sister, half brother, niece or nephew of the claimant.

(b) A beneficiary must also meet the following with regard to the deceased inmate-claimant:

(A) A beneficiary shall have relied upon the claimant for the major part of beneficiary's financial support. He or she shall have done so for the twelve months preceding the date of Corrections confinement, date of injury, or date of covered death. The Department shall select from these three dates the one it deems the most reasonable indicator of dependency under the circumstances.

(B) A beneficiary who is the deceased's child shall not have attained 18 years of age or have married. He or she shall not be legally emancipated and not, since claimant's confinement, have filed for emancipation from the claimant's parenting. He or she shall not have had a court terminate the inmate's parental rights. He or she shall not, since the inmate's confinement, have filed for, or had a parent or legal guardian file for, the termination of the claimant's parental rights.

(C) A beneficiary shall not have terminated nor, since claimant's confinement, applied in any way to terminate the familial, legal relationship of the beneficiary to the claimant.

(D) A beneficiary shall not be divorced from, nor have applied for legal separation or divorce from, the claimant during the period between the claimant's Corrections' confinement and covered death. Divorce or separation shall not bar a beneficiary if the beneficiary also applied for, received, or attempted by process of law, to collect funds from the claimant for support or maintenance throughout that period.

(4) "Claim," "request," or "application" means written requests delivered to the Department claiming benefits due the claimant. Claims shall be on the forms or in the formats set from time to time by the Department. They shall be filed within the times set by these rules.

(5) "Claimant" is an inmate who has filed a claim for benefits claimed to be due to him or her under these rules. As applicable, claimant also includes beneficiaries, legal representatives of inmates' estates, and medical providers. Someone other than the inmate may be a claimant only of benefits due directly to him or her, not to benefits which the inmate may claim.

(6) "Confinement" means the claimant, inmate or beneficiary, is held in the legal and physical custody of any government penal, or other agency or institution, under court order. Confinement stops permanent disability and death benefits.

(7) "Corrections" means the State of Oregon Department of Corrections.

(8) "Corrections Medical Staff" means the physicians, nurses, and medical contractors of Corrections. It includes the medical staff of any penal institution where a claimant is confined when designated by Corrections or the Department to provide medical services under these rules.

(9) "Covered Death" means the claimant's death due, in large part, to a covered injury. A death may be a covered death only if it occurs within one year after the date of injury or if a claim for the covered injury was filed within 90 days of the date of injury and was not denied.

(10) "Covered Disease" means a disease or infection that meets all the following tests:

(a) It is caused in major part by the accidental exposure to substances in the course of authorized work or training assignment. Exposure means ingestion, absorption or inhalation of, or accidental contact with, the substance. Substances include dust, fumes, vapors, gases, radiation and the like. Substances shall only be those to which a worker who is not an inmate is not ordinarily exposed.

(b) It causes damage to physical body tissues or organs.

(c) It requires medical services.

(d) It results in temporary disability lasting at least seven consecutive days, permanent disability, or covered death.

(e) It is not an injury, illness, disease, or condition already awarded compensation by public or private funds.

(f) The Department has found it eligible for benefits under these rules.

(11) "Covered Injury" means that injury which meets all the following tests:

(a) It is accidental.

(b) It causes sudden damage to physical body tissues or organs, or accidental injury to prosthetic devices.

(c) It occurs in the course of, and is caused in major part by, an authorized work or training assignment.

(d) It requires medical services.

(e) It results in temporary disability lasting at least seven days, permanent disability, or covered death.

(f) It is not an injury, illness, disease, or condition already awarded compensation by public or private funds.

(g) The Department has found it eligible for benefits under these rules.

(h) Unless the context clearly requires otherwise, covered injury also includes covered disease.

(12) "Date of injury" means:

(a) For a covered injury, the day on which the accident occurred.

(b) For a covered disease, the earlier of the date of first medical treatment or date of diagnosis of the covered disease. Date of injury shall not be later than two years after the last exposure to the alleged disease-causing substance in the authorized work or training assignment.

(13) "Department" means Risk Management of the Enterprise Goods and Services Division of the Department of Administrative Services. It also means any contractor or agency designated by the Department to perform the Department's duties under these rules.

(14) "Disability" means the attending physician's determination of one of the following from objective medical findings:

(a) "Temporary Disability," the claimant is medically unable, for seven or more consecutive days, to perform substantially all of the customary duties of any employment. This shall be the direct result of a covered injury. Claimant shall not be medically stationary.

(b) "Permanent Disability," the claimant is medically stationary and has a disability rating from the covered injury that will be permanent.

(15) "Disability rating" means the attending physician's determination from objective medical findings of claimant's percent of permanent disability due solely to the covered injury. The rating shall conform to the following:

(a) If the claimant has no pre-existing disabilities or disability awards, the disability rating shall be the claimant's permanent impairment. It shall be found according to the 3rd Revised, or later, edition of the AMA Guides to the Evaluation of Permanent Impairment. The physician shall identify the edition used. The disability rating shall be expressed as a percentage of a whole person. If more than one organ system is rated, the percentage of impairment of the whole person shall be combined using the combined values chart in the AMA Guides.

(b) If the claimant has pre-existing disabilities or disability awards, the maximum disability from all sources and causes shall not exceed 100 percent. The Department or the physician shall combine the current disability rating for the covered injury with all prior disabilities and disability awards from any source. The combined values chart in the AMA Guides shall be used. If the combined disability rating exceeds 100 percent, the disability rating for the covered injury shall be reduced to lower the total to 100 percent. The Department shall convert a disability award from any other system to an impairment rating of a whole person when necessary.

(16) "Employment" means claimant's ability, after release from confinement, to seek and perform employment. It shall include any lawful employment which pays at least the then statutory minimum wage of the State of Oregon. It shall be immaterial whether employment is obtained or exists.

(17) "Inmate" is a person committed to the physical and legal custody of Corrections.

(18) “Inmate Hourly Wage Rate,” for purposes of calculating benefits under these administrative rules only, means:

(a) For inmates working in PIECP work projects, the Inmate Hourly Wage Rate is the rate established by Oregon Corrections Enterprises in accordance with the annual prevailing hourly wage rate determination completed by the Oregon Department of Employment.

(b) For other inmates, the Inmate Hourly Wage Rate is the state hourly minimum wage established under ORS 653.025.

(19) "Major part" means clearly and substantially more than half of the whole of all causes or contributing factors. Major part does not mean merely disproving factors deemed to be other possible causes.

(20) "Medically Stationary" or "Stationary" means that the attending physician finds that no further material medical improvement would reasonably be expected from medical treatment or the passage of time.

(21) "Physician" means a person licensed, in the state where he or she provides medical services, as a medical doctor, doctor of osteopathy, doctor of optometry, doctor of dentistry or nurse practitioner. All physicians may only provide medical services within the scope of their license. Physician includes one or both of the following:

(a) "Attending physician," Corrections medical staff or other physician authorized in advance by the Department. Attending physicians may diagnose and evaluate injuries and diseases. They may provide or direct medical services to claimants. They may send claimants to medically appropriate specialists for specific treatment, evaluation, advice, or consultation. They determine temporary disabilities, permanent disability ratings, and medically stationary dates.

(b) "Consulting or advisory physician," a physician selected and paid by the Department, Corrections, or the claimant to advise the attending physician. The consulting physician shall review the findings of the attending physician or evaluate the claimant to advise whether the claimant is medically stationary, temporarily or permanently disabled, and the degree of disability rating.

(22) “PIECP” means a Department of Corrections inmate work program certified under the federal Prison Industries Enhancement Certification Program (PIECP) as exempted under 18 USC 1761(c) from the federal prohibition against the transport of inmate-produced goods in interstate commerce.

(23) “PIECP Work Project” means a specific inmate work project that is part of the Prison Industry Enhancement Program.

(24) "Release" means the claimant's release from Corrections' confinement. When the context requires, release also means the date of release from any subsequent confinement.

(25) "Substantial evidence" means that all the discovered evidence, taken together, would lead a reasonable fact finder to believe the facts asserted are more probably true than false. When the weight of the evidence is equal to both sides or only slightly greater to the claimant's side, the fact finder shall find against the claimant.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: ORS 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96; DAS 7-2008(Temp), f. & cert. ef. 10-15-08 thru 4-11-09; DAS 3-2009, f. & cert. ef. 1-23-09

125-160-0020

Calculation of Permanent Disability Awards

A permanent disability award is calculated as two-thirds of the Inmate Hourly Wage Rate multiplied by the disability rating. The weekly amount is calculated in this manner. The Inmate Hourly Wage Rate, in effect on the date of release, is multiplied by 40, multiplied by .667, and multiplied by the disability rating. To convert to a daily benefit, the weekly amount is divided by seven. To convert to a monthly benefit, the weekly amount is multiplied by 4.35. A prosthetics allowance may be added to the permanent disability award. During confinement, permanent disability and training benefits are entirely limited to any training provided by the Oregon Department of Corrections.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: ORS 655.505 - 655.555
Hist.: DAS 7-2008(Temp), f. & cert. ef. 10-15-08 thru 4-11-09; DAS 3-2009, f. & cert. ef. 1-23-09

125-160-0100

Benefit Limits During Temporary Disability

For purposes of temporary disability benefits, the Department shall calculate and limit benefits during temporary disability as follows:

(1) While still in confinement, temporary disability benefits shall be limited to medical services provided by or at the direction of Corrections medical staff.

(2) After the release date, any temporary disability award shall be at a disability rating of 100 percent. Temporary disability awards shall be payable for no more than the 6 months immediately following release. Medical services shall be provided only by, or at the direction of, the attending physician and only while the claimant is temporarily disabled and not stationary.

(3) After the release date, medical services shall be limited to $5,000. No more than $1,000 of that limit may be applied to rehabilitation services. The limit does not apply to services provided by and through Corrections medical staff while the claimant is confined.

(4) In response to the attending physician's request, Department may waive the foregoing limit on medical services payments. Waiver shall be in increments of $5,000 not to exceed a total medical services limit of $50,000. Any conditions that Department may deem reasonable may be attached to its waiver. Any waiver shall conform to one of the following:

(a) Corrections medical staff may request a waiver shortly before or after the date of release if these conditions are met:

(A) The initial claim shall have been promptly filed, treatment promptly sought, and Department shall have found claimant eligible for temporary disability benefits.

(B) Claimant's medical condition shall have remained medically unstationary from time of injury through time of waiver request and release.

(C) Claimant shall be reported by Corrections to be actively cooperating toward recovery.

(D) The treating physician shall give Department a written report. It shall state that the medical condition is due to the covered injury and no other cause. It shall

estimate the amount by which essential medical treatment will exceed the foregoing limit on medical services. It shall include a plan of essential treatment.

(b) A post-release attending physician may request a waiver no later than 90 days after release if the foregoing conditions are met. Also, this additional condition shall be met: Due to a covered injury and from no other cause, claimant shall be in dire medical condition that directly threatens death or a permanent disability rating of 70 percent or more.

(5) Further temporary disability medical services limits after release are as follows:

(a) Prior to the first visit to any post-release physician, the claimant shall obtain the Department's written approval for that attending physician. If the Department disapproves the claimant's request, it shall provide the claimant with a list of physicians with whom the claimant may treat. The Department may require a claimant to seek medical treatment through a contract medical service or a Corrections institution's medical staff. A claimant may not change physicians without prior approval of the Department.

(b) The Department may require any physician to provide a written plan for treatment of the covered injury and any other reports, useful under these rules.

(c) Attending physicians, and any medical providers to whom the attending physician or the Department refer claimant under these rules, may bill the Department for reasonable and necessary medical expenses. They shall do so in the same manner and amounts as provided for services under ORS Chapter 656 and related rules, or as provided in any contract with the Department.

(d) The Department shall be required to pay for an examination, investigation, or report only if it is required by the Department or provided or required by the attending physician. This shall include consulting or advisory physicians examination and reports. Department may choose to pay anyone for any actual expense which it considers necessary or useful to determine a claim or to prove a subrogation claim.

(e) The cost of reasonable and necessary medications, prescriptions, physical aids, and prosthetics are medical services. Only those required solely for recovery from the covered injury and duly prescribed by the attending physician qualify. Department may require that these be obtained from the Department, its contract provider, a mail-order service, or any other means determined by the Department to be economical or reasonable.

(f) The Department may require claimants to purchase any prescribed items through a contract pharmacy or mail order supplier. The Department may, from time to time, provide claimants with any terms and conditions for reimbursement of prescription purchases that it deems reasonable. All reimbursement requests shall be submitted in a form required by the Department, with all required documentation, and within 30 days following purchase.

(g) The attending physician shall closely monitor medications. Department shall only pay for a two week supply and one refill of a two week supply. Physician must see the claimant before further refill. The physician may prescribe larger quantities under the terms of a contract with the Department or Corrections or if the medication is known to the physician to be without potential for abuse.

(6) Any and all benefits payable or potentially payable to any claimant during temporary disability may be permanently terminated by Department without notice when any of the following occur:

(a) Attending physician's estimated duration of temporary disability expires without medical findings that claimant continues to be temporarily disabled.

(b) Attending physician reports that claimant is not cooperating in claimant's own recovery.

(c) Claimant fails to appear for any appointment with the attending physician.

(d) Claimant fails to appear for any appointment with any physician designated by the Department or the attending physician for which at least 14 days notice was given to the claimant.

(e) Claimant becomes medically stationary.

(7) Temporary disability benefits may be permanently terminated by Department without notice, upon claimant commencing work or applying for, or receiving, unemployment compensation.

(8) Minor injuries, that require only first aid or that do not result in temporary or permanent disability as defined by these rules, shall qualify only for any medical services that may be provided by Corrections.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0110

Benefit Limits During Permanent Disability

(1) For purposes of initial estimates and final awards, the Department shall calculate and limit benefits for permanent disability as described in this rule:

(2) While still in confinement, all permanent disability and training benefits shall be limited to training provided by Corrections. The need for, and type of, any training shall be decided solely by Corrections. All medical services benefits are permanently terminated.

(3) Upon release all permanent disability benefits shall be limited to the permanent disability payments and prosthetics awards approved under these rules. All medical services benefits except preparation of reports for final award or appeals are permanently terminated. No training benefit shall be provided after release except that the Department, solely upon the request and advice of Corrections, may extend a program commenced in confinement.

(4) Upon release with permanent disability, any prosthetics award may be paid in advance. It may be reserved to pay when actual need is proven. It may be converted to a periodic payment and paid as part of the permanent disability award. Department shall select the payment method it deems reasonable in its final award.

(5) Upon release with permanent disability, the permanent disability award shall be payable for limited periods. The periods start when release and medically stationary dates are both attained. Although no payment shall be made, time spent in later confinement shall count against the period in which benefits would be payable. Disability ratings and periods shall be as follows:

(a) For a rating of 10 percent or less, the permanent disability award shall be zero.

(b) For a rating of more than 10 percent through 20 percent, the permanent disability award shall be payable for a period of 24 months or to age 65, whichever occurs first.

(c) For a rating of more than 20 percent through 30 percent, the permanent disability award shall be payable for a period of 48 months or to age 65, whichever occurs first.

(d) For a rating of more than 30 percent through 40 percent, the permanent disability award shall be payable for a period of 96 months or to age 65, whichever occurs first.

(e) For a rating of more than 40 percent through 50 percent, the permanent disability award shall be payable for a period of 132 months or to age 65, whichever occurs first.

(f) For a rating more than 50 percent through 60 percent, the permanent disability award shall be payable for a period of 180 months or to age 65, whichever occurs first.

(g) For a rating of more than 60 percent through 70 percent, the permanent disability award shall be payable for a period of 240 months or to age 65, whichever occurs first.

(h) For a rating of more than 70 percent through 80 percent, the permanent disability award shall be payable for a period of 300 months or to age 65, whichever occurs first.

(i) For a rating of more than 80 percent through 90 percent, the permanent disability award shall be payable for a period of 360 months or to age 65, whichever occurs first.

(j) For a rating of more than 90 percent through 100 percent, the permanent disability award shall be payable until age 65.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0120

Death Benefit Limits

(1) Upon a covered death, the death benefit to the claimant's estate shall be limited to $3,000 for actual and reasonable costs of transport and burial.

(2) The death benefit to beneficiaries shall be limited to the deceased's disability award. It shall be distributed in percentage shares of the monthly amount to beneficiaries qualifying under these rules. The total shall not exceed 100 percent of the monthly amount.

(3) The death benefit shall be allocated among three beneficiary groups: spouse, children, and others. If no claim is filed from any of these groups, that group's allocation shall be applied to the remaining groups.

(4) Distribution among and within the three beneficiary groups shall be as follows:

(a) Ten percent shall be divided equally among qualifying, claiming beneficiaries other than claimant's spouse or child.

(b) Forty-five percent shall go to the qualifying, claiming spouse.

(c) Forty-five percent shall be divided equally among qualifying, claiming children. Department shall not be required to do so, but may choose to pay a child's benefit on its behalf to any custodial parent or to an annuity or trust fund in the child's name.

(5) Death benefits may commence upon covered death if it occurs after release. If covered death occurs in confinement, death benefits shall be deferred to what would have been claimant's next likely release date. However, if the deceased provided the major part of the beneficiary's financial support for the 12 months preceding the covered death, the death shall be treated as a post release death. Support shall be counted only from the deceased's authorized work assignments and any pre-confinement work.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0200

Claiming Benefits

(1) Only a person to whom a payment or benefit is directly due under these rules may claim the benefit. A potential beneficiary may not join or intervene in an inmate's claim. Only the claimant's attorney may represent a claimant. No one may intervene in any claim except the legal representative of an incompetent claimant. The Department shall not pay the costs of a claimant's legal representation.

(2) The Department may require that all claims for benefits or payments be or include:

(a) In the form or formats which the Department may from time to time prescribe. The Department may supply a form or format requirement upon request or exclusively through Corrections, as Department and Corrections may deem reasonable.

(b) Any information that Department deems likely to bear on the qualification or disqualification for benefits under these rules and related law. Department may require certified copies of any records.

(c) Claimant's signed request for release to Department of all records by all parties. Claimant shall also sign any additional request for release of records that the Department shall require. Claimant's failure to adequately request and authorize the release of any record, or to provide the record within 30 days, shall be sufficient cause for the Department to permanently deny the claim.

(d) A signed statement by the claimant attesting to the truth of all the information provided.

(3) A claim or request that does not conform to the requirements of these rules shall be invalid and have no effect whatsoever. To be valid and effective, a claim must be:

(a) Received by Department within the time limits set by these rules.

(b) On the forms or in the formats prescribed by the Department.

(c) Completely filled out and accompanied by all required attachments or information.

(d) Signed by the claimant to whom any benefit would be rendered.

(4) The following claims shall be filed within the times and conditions noted:

(a) Inmate's initial claim for a covered injury shall be received within 90 days after the date of injury.

(b) Claimant's request for reaffirmation of initial estimate shall be received between 60 days prior to release and 180 days after release. It shall identify the claim, claimant, and initial estimate. It shall provide the claimant's expected or actual release date, post-release residence and mailing addresses, and all other information requisite to the payment of benefits. Upon verifying the validity of the request, Department shall commence the payments in its initial estimate as provided by these rules. Department shall defer payments for investigation if it has reason to believe claimant is no longer disabled as estimated.

(c) Claimant's request for modification of initial estimate shall be received between 60 days prior to release and 180 days after release. A request for modification of an initial estimate is commenced when claimant notifies Department that claimant intends to seek a re-evaluation of the disability rating by the attending physician. Department shall give its notice of approval for re-evaluation to claimant and attending physician. The physician shall then have 60 days to re-evaluate the claimant, including the review of any advisory or consulting physician's reports. The attending physician shall report to Department the extent and explanation of any change in the disability rating due to the covered injury and no other cause. Department shall treat the attending physician's current report as required by these rules, making appropriate increase or decrease from its initial estimate of permanent disability benefits and commencing payment.

(d) Claimant's request for Department approval of attending physician shall be received shortly before, or not later than two weeks after, release and before the physician's services commence. Only a claimant whom Corrections medical staff finds not to be medically stationary at time of release shall make this request.

(e) Claim for burial benefit shall be received within 90 days after claimant's covered death. It shall be made only by the legal representative of the estate.

(f) Initial claim for death benefit shall be received within 90 days after claimant's covered death. Request to start deferred death benefit payments shall be received between 60 days prior, and 180 days after, the date the benefits may start under these rules.

(g) Claim for payment from a medical provider to be paid under these rules shall be received within 90 days of the qualifying service provided.

(h) Claim for any other approval, right, award, payment, or benefit permitted under these rules shall be received within 30 days after the date that the thing claimed accrues or becomes payable or eligible to request.

(6) To reduce paperwork, the Department may combine any of the claims, responses, or steps for determining any claim, initial estimate, final award, and death benefits.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0300

Evaluating Claims

(1) No benefit shall be awarded or paid except through request and proof of eligibility as required by these rules and related law. A claim shall be approved if the claimant proves to the Department that the claim, injury, disability, and all related issues qualify and conform to these rules and related law.

(2) Department shall investigate any claim for benefits as it deems necessary to determine eligibility under these rules and the extent of any benefits. Department shall notify claimant of its denial or initial estimate of benefits in a reasonable time. When practical, Department shall issue its initial estimate in the period after claimant is stationary and before claimant is released.

(3) The attending physician shall make all medical determinations with regard to the claim. If Department finds the attending physician is not complying with these rules, Department may name a new attending physician to provide all medical services. The attending physician shall:

(a) Determine the existence and nature of the reported injury, its extent and expected duration of temporary disability.

(b) Determine the claimant's medically stationary date and any permanent disability rating.

(c) Estimate likelihood or frequency of necessary repair and replacement of prosthetics.

(d) Report to the Department. Reports shall be in sufficient detail to show that all determinations are based on medical evidence supported by objective findings as provided in ORS 655.510(2). The reports shall show due consideration of any input from advisory or consulting physicians. Reported pain or alleged limited range of motion, without objective findings, shall not meet this requirement.

(4) Department may require a claimant to be examined by any physician or physicians if Department considers such examination necessary to determine a claim.

(5) If there is a dispute among physicians as to any medical fact or issue, the attending physician shall determine the dispute. He or she shall give due consideration to the reports of consulting or advisory physicians.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0310

Evidence and Construction

(1) The following rules of evidence and construction shall apply to all issues bearing on a claim:

(a) It shall be the claimant's burden to prove, by a preponderance of the evidence, all facts necessary to sustain a claim. Should a claimant make false statements or supply false information in the claim, in prior claims, or in letters, testimony or materials submitted to Department or hearings officer, Department or hearings officer may direct that the claimant's standard of proof shall increase to clear and convincing evidence. Department may also provide its evidence of falsehood to Corrections and the District Attorney for further action. Clear and convincing evidence shall also be required to overcome any evidence which these rules say shall be presumed true or a rebuttable presumption.

(b) These rules shall be interpreted according to their plain meaning and not construed in favor of the claimant.

(c) The attending physician's reports written and delivered to Department and containing the items required by these rules, shall be presumed true and shall suffice to prove the medical findings reported therein.

(d) The records, computer and others, of any agency shall be presumed true and shall suffice to prove the facts reported therein, as they bear on questions of fact necessary to sustain or deny a claim for benefits.

(e) Department's records shall be presumed true and shall suffice to prove all timing and procedural matters noted therein.

(f) Corrections records shall be presumed true and shall suffice to prove all dates, assignments, medical services, discipline, violations, release dates, and any other matters occurring during confinement and subject to Corrections legal control.

(g) Claimant's failure to report any covered injury to the work or training supervisor before leaving the alleged injury scene or the work or training site, shall create the rebuttable presumption that the injury was not a covered injury.

(h) Claimant's failure to apply for Corrections' medical treatment as soon as the medical need is, or should be known, shall create the rebuttable presumption that the injury is not a covered injury.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0400

Claims Denials

(1) The Department shall deny benefits for any claim upon substantial evidence that the injury was caused by or arose, in whole or in any part, out of any of the following:

(a) The claimant's intentionally self-inflicted injury, whether or not the full extent of actual injury was clearly expected. If an injury results from any act that would cause a reasonable person to conclude the actor intended or should have expected some self-injury, the whole injury shall be considered self-inflicted;

(b) The claimant's willful violation of work rules or rules regulating inmate conduct or premises security. No issues relating to the legality or nature of any Corrections work, conduct, or premises rules, shall be considered in connection with a claim;

(c) The claimant's active participation in an assault or combat. Combat shall not bar a claim if Corrections assigned the combat in writing to the inmate as an official duty he or she was required to perform. Any finding by Corrections that assault or combat occurred, shall stand unless reversed by Corrections through its appeal processes;

(d) The circumstances of the claimant being compelled to participate in any employment or training. No issues relating to the legality or nature of confinement, compulsory participation, or restrictions on inmate activities, shall be considered in connection with a claim;

(e) Disciplinary action taken by Corrections against the claimant. Correction's disciplinary records, alone, shall be dispositive of this issue. Any dispute related to disciplinary action shall be resolved under the laws and rules relating to inmate discipline, control, or confinement. No issues relating to the legality or appropriateness of any disciplinary rule or action shall be considered in connection with a claim;

(f) Any action taken by Corrections to protect the safety of anyone or to maintain order. No issues relating to the legality or appropriateness of any action taken by Corrections to protect or maintain order shall be considered in connection with a claim; or

(g) Actions of other inmates. This phrase means any injurious actions of inmates except unintentional, negligent actions done in good faith as a direct part of the duties assigned to those inmates in their authorized work or training.

(2) In any case, the Department shall deny benefits for any claim, if:

(a) The claimant has a pending application for, or claimant's medical condition or disability has been accepted or approved by, any other source of compensation for the injury. Within 60 days after the pending application for other compensation is finally rejected, claimant may request in writing that Department reconsider its claim denial under this paragraph.

(b) The only substantial evidence of when and where the claimant was injured is the report of the claimant or the report of the claimant and the testimony of one other inmate.

(c) The attending physician reasonably concludes that claimant's present or prior participation in weightlifting, other athletics, abuse of drugs or alcohol or tobacco, or manufacture of drugs or drug components could have produced the medical findings of the purported injury.

(d) The attending physician concludes that the work or training assignment cannot reasonably account for claimant's injury.

(e) The attending physician concludes that the injury or the disability would not have resulted from the event but for claimant's pre-existing injuries, diseases, medical conditions, diseases of ordinary life, natural aging processes, hypersensitivity's, mental or emotional health, or psychological reactions.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0500

Delivery of Claims, Notices, Responses

(1) The Department shall send any and all notices, letters, responses, and benefits payments by regular mail or other reasonable means to the claimant's last known residential address or to claimant's parole or probation officer's address. Department records of mailings shall be proof of mailing and shall constitute delivery.

(2) Department may refuse to mail to a post office box when it deems reasonable to do so. Department shall not mail to General Delivery, message services, drop boxes, or third party addresses. Payments and notices mailed by Department to claimant shall say "do not forward" or similar wording required by the delivery carrier to prevent forwarding of mail.

(3) Claimant shall file all claims, requests, and appeals in writing by mail. Claimant may file by electronic facsimile to department's Fax number if claimant mails the original to Department on the same day. No claim or information necessary to a claim may be delivered by claimant by means of electronic computer mail or orally in person or by telephone. Only physical receipt by Department shall constitute delivery.

(4) Department and Corrections shall have no duty to give advice or notify, warn, or remind any claimants or potential claimants of their rights or duties under these rules. This includes the deadlines for filing requests or claims. Should Department give incorrect information, that shall not relieve the recipient of his or her duty to conform to these rules nor shall it alter any benefit to which the person may be entitled under these rules.

(5) Department may make available to Corrections and to any requesting law enforcement agency or publicly funded benefit program, any information provided to it under these rules. The requesting entity shall make its request in writing and state therein that the records are sought in connection with a valid investigation of a crime, or of a request for benefits.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0600

Delivery of Benefits

(1) Except as these rules specify otherwise, benefits shall be paid as follows:

(a) No one may claim or place a voluntary or involuntary lien on any claimant's benefits or payments due under these rules. The Department shall not accept or pay any assignment of any part of any benefit or payment.

(b) Benefits become payable at the end of any period in which they accrue. The Department may make no advance payments.

(c) Payment of any periodic, continuing benefit shall begin on the first day of the month following the month in which these rules permit the benefit to start or resume.

(d) Benefits shall be mailed in form of a check, warrant, or draft or made by electronic transfer and deposit. No payment shall be made by messenger or over-the-counter to any party.

(e) Benefits shall be paid monthly, quarterly, semi-annually, or annually and shall be subject to change. The Department will notify the claimant if payments will be other than monthly.

(f) The Department shall try to issue all payments during the first two weeks of any month in which they are due and payable.

(2) Except as these rules specify otherwise, benefits shall be paid retroactively from the later of the following:

(a) The earliest date the benefit could have been paid under these rules; or

(b) The date the Department received the correct and complete claim for the benefit.

(3) During appeal, Department shall pay the benefit, if any, that it has found to be payable. During an appeal for modification of initial estimate, disability benefits shall be paid in accord with the initial estimate. Any increased benefits from appeal shall commence on the first of the month following the end of claimant's and department's appeal options.

(4) Any benefits, other than suspended and restored benefits, may be paid in lump sum only as follows:

(a) Department may at any time convert any permanent disability award into a single lump sum payment or a purchased annuity payable to a claimant. The lump sum shall be the present value of remaining payments using, as discount rate, the average rate that the state Treasury Department advises the Department it is then earning on Inmate Injury funds. The annuity contract shall be purchased by Department to provide an unchanged or nearly unchanged benefit level.

(b) After Department has made 48 consecutive payments of a final award, claimant shall be allowed once to request that the Department offer a lump sum settlement of the remaining value of the benefit. Whether, and in what amount such settlement will be offered, is at the sole discretion of the Department.

(5) It is intended that all claims shall be determined and paid within these rules in the manner these rules provide. The Department shall not be required to consider or respond to any offer of compromise or settlement. Settlements in compromise of a disputed claim or for settlement of any issue regarding any claim shall not be offered to claimants or approved without the review and consent of the Director of the Department of Administrative Services or the Director's designee after consultation with Corrections.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0700

Suspension and Forfeiture of Benefits

(1) Claimants shall keep the Department informed of their current status and circumstances in all respects as they may bear on the requirements of these rules. Status, as used here, may include employment, medical condition, mailing and physical residence addresses, confinement, or any disqualifier for benefits. The Department may also require a claimant to complete and sign a written status report at any time before releasing any benefit or payment.

(2) The Department may temporarily suspend any or all payments to any claimant of any kind. Temporary suspension and the method of restoration shall not be subject to appeal. Suspension may be made for the following:

(a) As necessary due to inadequate funding for the Inmate Injury component of the state Insurance Fund.

(b) When claimant is believed by Department to be confined, to have moved without notifying Department, to have recovered from the disability that was expected to be permanent, or to have abandoned the claim.

(c) As requested by Corrections or parole or probation officers seeking claimant.

(d) When claimant does not respond to an inquiry from Department or fails to complete and return any status report requested by the Department or attending physician.

(e) When Department is notified in writing by any corrections or law enforcement agency that a warrant is outstanding for the claimant's arrest or that claimant is sought in connection with escape or a crime.

(f) When Department's inquiry or request for information is unanswered by claimant or is answered with an unsigned response or one that does not appear to be the claimant's.

(g) When it appears to Department that benefit checks or warrants are being negotiated by someone other than the payee.

(h) When an overpayment is discovered.

(i) As otherwise provided in these rules.

(3) After claimant provides satisfactory evidence that there existed and exists no cause for forfeiture or termination, Department shall restore and resume payments. Department, shall restore by lump sum, temporary increase in award, or extending the period of award as it may deem reasonable. No interest shall be paid.

(4) Though the months suspended shall count against the period for benefits, suspended payments shall be forfeited if:

(a) Claimant was confined, was not cooperating in his recovery, had recovered from the disability, or in any way ceased to be eligible for benefits under these rules.

(b) Claim was declared abandoned after final award.

(c) Claimant was in unlawful flight to avoid prosecution, was an escapee from any confinement, or was under order to appear for an outstanding felony warrant.

(d) Any payments were overpayments or were negotiated by someone other than the payee without payee immediately notifying Department.

(5) If for any reason, Department learns it has paid claimant more than is due under these rules or Department is billed for a medical service claimant did not use or attend, Department may offset the payment by benefit reductions. It may temporarily suspend and not restore payments, reduce the award, or shorten the period of payments as it may deem reasonable to recover the overpayment. Department may also exercise any other recovery right allowed it by law.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0710

Termination of Benefits

(1) Any and all benefits payable or potentially payable to a claimant shall be terminated fully and finally, without prior notice, upon the occurrence of any of the following:

(a) Claimant gives Department or Corrections any kind of false report or supplies any false information in connection with a claim.

(b) Inmate dies due, in large part, to any cause or causes other than the covered injury.

(c) Claimant, receiving permanent benefits or death benefits, attains age 65.

(d) The date is reached at which an inmate deceased from a covered death would have attained age 65.

(e) A beneficiary dies, ceases to be a beneficiary under these rules or, if a child, attains 18 years of age.

(2) Anyone who receives benefits shall return at once to Department any payment that he or she is not entitled to under these rules due to termination of benefits or any other cause.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0720

Abandonment of Benefits

(1) If benefits are abandoned, claimant forfeits all rights under these rules, except the right to give Department clear and convincing evidence that abandonment did not occur. Claimant shall provide such evidence in writing to Department within 30 days of Department's declaration of abandonment. If Department refuses to reinstate benefits after receipt of clear and convincing evidence that abandonment did not occur, claimant may appeal as provided in these rules.

(2) Benefits shall be deemed abandoned if both of the following occur:

(a) The Department sends three consecutive mailings by regular or certified mail on different dates at least one week apart and all are returned, or the Department's requests for response contained in each and all of the mailings elicit no response, or Department's checks or warrants included in each of the mailings are not negotiated.

(b) In the 90 days following the date of the last mailing, the Department receives no signed, written communication from the claimant with a valid residential mailing address.

(3) Upon the occurrence of the preceding, the Department shall declare the claim abandoned and take the following steps:

(a) Department shall record in its records that the claim is declared abandoned. Department shall not be required to make further attempt to find claimant or notify claimant or any other party.

(b) If final award has not been made, Department shall permanently terminate the claim and all prospective benefits as fully and finally abandoned.

(c) If final award has been made, Department shall suspend all benefits until the earlier of six months or claimant's proof to Department's satisfaction that claimant remains eligible for benefits. The benefits suspended shall be forfeited. Upon satisfactory proof of eligibility, suspended benefits may be resumed subject to any conditions Department may deem reasonable. Otherwise, Department shall permanently terminate all benefits as fully and finally abandoned.

(4) Any benefit check or warrant that is returned from the last known mailing address or is not negotiated within 90 days of mailing, may be canceled or voided by Department. A payment so canceled may be deemed paid. Its month shall count against any benefit period. Department shall not be required to replace it.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0800

Subrogation

Applying for and accepting benefits under these rules shall transfer to the Department all the acceptors' rights, claims, and causes of action against any third party for the covered injury or death to the extent of benefits paid or payable hereunder. Department shall be entitled to the net recovery against the third party to the extent of benefits paid or payable hereunder. Except as provided by ORS 655.510(4), if the Department does not choose to claim damages from a third party, all these rights shall revert to claimant and Department shall waive any interest it has in any recovery.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0900

Appealing Claims Decisions and Actions

(1) These shall be the rules of procedure for appeals and contested case hearings for actions under these rules. Except as noted, the administrative procedures act shall not apply.

(2) When these rules permit an action of the Department to be contested by the claimant, the Department shall give the notice required by ORS 183.415(2). The following three levels of appeal shall then apply.

(a) Claimant shall first appeal through request for review by Department:

(A) One request for review of an action by Department may be made by the affected claimant. It shall be received by the Department within 60 days after the date of Department's contested decision unless the decision includes the grant of a longer period.

(B) Claimant's written request for review shall list and explain all contested matters of fact and law in writing. It shall state the action the claimant is requesting. New supporting documents, if consistent with these rules, may be enclosed. Any revised attending physician's response or report shall be enclosed as part of the request for review. A timely request for review that conforms to these rules is a prerequisite to further appeal or hearing.

(C) Requests for review may contest allegations of omitted fact, factual error, lack of required evidence for the Department's pertinent findings and conclusions, or legal error by Department. Any medical evidence shall be submitted to the attending physician, whose report shall be provided with the request for review. Only issues subject to the jurisdiction of these rules may be raised or contested.

(D) When the Department receives a request for review, it shall consider the record it relied upon and any information contained in or attached to the request for review. If the Department finds that its action is not correct under these rules or is not supported by substantial evidence, the Department shall modify its decision. The Department shall respond to claimant's request for review by affirming, rescinding, or modifying its decision.

(b) Upon completion of the review level of appeal, claimant may request a contested case hearing as follows:

(A) Claimant may request a hearing if the Department does not acknowledge a valid and complete request for review or does not grant the relief requested.

(B) Written request for hearing shall be received by the Department no later than 30 days after the request for review is received by Department or after Department's final response to request for review, whichever is later.

(C) A request for contested case hearing shall list and explain each contested matter of fact or law. It shall state the action the claimant is requesting. A request for a contested case hearing shall raise no issues nor make any request that was not in the request for review. A timely request for contested case hearing that conforms to these rules is a prerequisite to any hearing.

(D) Hearings officers may only consider legal error by Department and the sufficiency of evidence for the Department's decision or action, as modified by any response to the request for review. Only issues raised in claimant's request for review may be considered. A claimant may not contest any issues of timeliness, inclusion or omission, or other procedural requirements, unless claimant submitted to Department, with or before request for review, clear and convincing evidence that met the procedural requirement.

(c) Upon exhausting the review and hearings levels of appeal, claimant may appeal the final decision of the director to the Court of Appeals as provided by ORS 183.480 to 482.

(3) Only the following actions of the Department may be appealed:

(a) Partial or full claim denial based on Department's findings and conclusions.

(b) Partial or full denial of request for reaffirmation or modification of initial estimate.

(c) Refusal to pay any requested payment or benefit due to claimant under these rules.

(d) Termination, reduction, forfeiture, or denial of retroactive restoration of any benefit already awarded to claimant under these rules.

(e) Death benefit determination or denial.

(f) Denial of a provider's billing or a claimant's reimbursement request for medical services.

(4) The following actions of Department may not be appealed under these rules:

(a) Initial estimate by Department.

(b) Temporary suspension of payments.

(c) The form or procedure of benefit payment chosen by the Department, including the amount of discount in any lump sum payment, annuity, or settlement.

(d) Any medical service the attending physician orders or refuses to order.

(e) Department's decision to require that the claim must be proven by clear and convincing evidence.

(f) Denial of any request for increased or additional benefit in a claim on which claimant did not appeal final award, or exhausted appeals.

(g) Any action taken by anyone other than Department or not solely within Department's authority under these rules.

(h) Any action of Department for which these rules do not expressly provide for appeal.

(5) A claimant may appeal a Department action once. After appeal under these rules is exhausted, that issue may not be raised again.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0910

Hearings Process

(1) The Department shall designate as hearings officer any person trained in the hearings process. The hearings officer shall not have been a witness or had personal knowledge of any material, disputed fact of the case. He or she shall not have had another role in the case.

(2) The hearing shall be conducted at a time and place designated by the hearings officer and acceptable to Corrections. The hearing may be conducted by telephone or other means of communication.

(3) The hearings officer shall conduct the hearing as prescribed in ORS 183.415 except as otherwise required in these rules.

(4) Prior to commencement of hearing, the Department or hearings officer shall:

(a) Inform party(s) to the hearing of the matters specified in ORS 183.413(2).

(b) Explain issues involved in the hearing and matters parties must prove or disprove under these rules.

(5) Making the reasons a part of the record, a hearing may be postponed by the hearings officer for good cause and for reasonable periods of time, consistent with these rules. Good cause includes, but is not limited to:

(a) Preparation or scheduling needs of the Department;

(b) Illness of the claimant;

(c) Unavailability of the claimant. Upon unavailability for 90 days, the hearings officer shall cancel the hearing and issue a recommendation to the Department that its decision should stand or the claim should be permanently terminated as abandoned.

(d) Avoiding interference with ongoing police investigation or pending prosecution.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0920

Conduct of Hearings

(1) The findings of the hearings officer must be on the merits. Technical or clerical errors in the writing or processing of a contested decision shall not be grounds for modification or rescission unless there is substantial prejudice to the claimant.

(2) The standards of proof shall be those provided in these rules.

(3) Making the reasons part of the record, the hearings officer shall raise the claimant's burden of proof to clear and convincing evidence upon the occurrence of the following:

(a) The hearings officer finds the claimant provided or has a history of providing unreliable or false evidence;

(b) The contested issue is timeliness, inclusion or omission of evidence, or other procedural requirements; or

(c) As otherwise provided in these rules.

(4) The hearings officer shall consider such evidence as would be considered by reasonable persons in the conduct of their serious affairs.

(5) At hearings, claimants shall be allowed to speak in their behalf, submit evidence, and exercise rights allowed by these rules.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0930

Testimony of Witnesses

(1) The hearings officer shall direct all scheduling and taking of testimony of witnesses at the hearing. Witnesses shall be limited to people with direct personal knowledge of the essential elements of the matters on appeal. Witnesses and testimony shall only be received from those who, and whose evidence, were made known to the Department in or between the filing of the claim and the request for review. Testimony may be taken in person, by telephone or by written report or statement. Testimony shall not be required in support or explanation of any evidence that these rules say shall be presumed true or constitute a rebuttable presumption. Reports of expert witnesses shall be sufficient evidence instead of testimony.

(2) The claimant may request that the hearings officer schedule witnesses to present testimony at the hearing. The request shall:

(a) Be delivered in writing to the hearings officer not less than 7 days before the scheduled hearing,

(b) List the name and address of each witness whose testimony is desired,

(c) Show the materiality of each witness,

(d) Request that the hearings officer schedule the testimony; and

(e) If claimant is not represented by attorney, provide a list of questions the claimant wishes to be posed to each witness.

(3) The hearings officer shall arrange to receive testimony from the claimant's requested witnesses subject to the provisions of these rules.

(4) Making the reasons part of the record, the hearings officer may:

(a) Limit testimony or exclude any question that is cumulative, repetitive, or immaterial. It shall be a rebuttable presumption that all questions pertaining to the attending physician's or to the Department's procedures, practices, or actions on the subject case or other cases are immaterial.

(b) Exclude any evidence or witness or refuse to ask or permit any question upon finding that the testimony or evidence, if taken in the light most favorable to the claimant, together with the reasonable inferences to be drawn therefrom, would not substantially affect the Department's decision;

(c) Exclude any witnesses upon finding that their appearance at the hearing would present an immediate undue risk to the safe, secure, or orderly operation of corrections, specifically including the safety and security of corrections or Department employees and inmates. No Corrections or Department employee shall be required to release personal residence addresses or phone numbers nor other identifying information except name, official title and post and length of service when hearings officer finds such information pertinent.

(d) Exclude any witness upon finding that the witness' testimony would not assist the hearings officer in the resolution of the case before him or her.

(5) The hearings officer may call witnesses to testify that were not requested by the parties and may pose any pertinent questions during the hearing.

(6) Any witness may substitute a written report in place of actual testimony. If any witness resides in this state and is unwilling to appear or provide a written report in lieu of appearing, the Department may issue a subpoena as provided by ORS 183.440.

(7) The identity of any confidential informant and the verbatim statement of the informant shall be submitted to the hearings officer in writing, but shall remain confidential. The hearings officer shall only rely on the testimony of a confidential informant if accompanied by information from which the hearings officer can find that the informant is a person who can be believed or the information provided by the informant is truthful.

(8) With the permission of the Department of Justice, Department and Corrections may authorize agency representatives at any hearing.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0940

Documents & Physical Evidence

(1) The claimant may present any documents or physical evidence permitted by these rules before or during the hearing.

(2) Only the attending physician may make medical findings and submit medical reports to the hearing. Any other medical report or medical evidence from any other physician shall only be submitted to the attending physician as the opinion of an advisory or consulting physician. Reports of the attending physician shall suffice as evidence in place of testimony.

(3) The Department shall provide a copy of the records upon which it based its decision. The Department may add summaries or explanations. Department reports shall suffice as evidence in place of testimony.

(4) Making the reasons part of the record, the hearings officer may exclude evidence upon finding that it would:

(a) Not assist him or her in finding whether substantial evidence existed to support Department's decision; or

(b) Present an undue risk to the safe, secure, or orderly operation of Corrections, specifically including the safety and security of Corrections or Department employees and inmates.

(5) The hearings officer may classify documents or physical evidence as confidential upon finding that disclosure would present an undue risk to the safe, secure, or orderly operation of Corrections, specifically including the safety and security of Corrections or Department employees and inmates. The reasons for classifying documents or physical evidence as confidential shall be made a part of the record. Confidential evidence shall not be disclosed to the claimant.

(6) Claimant shall have right to examine all evidence that Department relied upon at the time of its review or submitted to the hearings officer for consideration. Department shall provide the evidence to claimant or claimant's legal representative when it submits evidence to the hearings officer. Department may submit to the hearings officer, without copy to the claimant or legal representative, any evidence it considers confidential. Any documents the hearings officer finds to be confidential shall be furnished to claimant or legal representative upon request with any information which could identify the confidential source masked or removed.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

125-160-0950

Hearings Conclusions and Record

(1) The hearing shall be held, and the hearings officer shall seek, to determine whether the Department had substantial evidence for its decision and whether its decision substantially complied with these rules. The hearings officer shall then issue a recommendation to the Department that it affirm, rescind, or modify its decision.

(2) The hearings officer shall deliver a hearing record to Department within 30 days after the hearing. The record shall include:

(a) A copy of the Department's decision;

(b) The request for administrative review or appeal;

(c) The notice of hearing and rights;

(d) The tape recording or transcribed record of the hearing;

(e) Documents and other evidence relied upon; and

(f) The hearings officer shall prepare a proposed order which includes findings of fact, conclusions of law, summary of evidence and exceptions, and the hearings officer's recommendation.

(3) A hearings officer's proposed order shall take effect 60 days after issue unless the Department's Director issues an amended decision within that period.

Stat. Auth.: ORS 184.340, 278.405, 655.520 & 655.555
Stats. Implemented: 655.505 - 655.555
Hist.: DASII 2-1995(Temp) f. & cert. ef. 9-28-95; DASII 2-1996, f. & cert. ef. 3-26-96

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