OAR 137-076-0037
Payment of Catastrophic Injury Claims
(1)
For the purpose of ORS 147.035 (Compensable losses)(11), a victim has suffered a catastrophic injury if the victim is eligible for an award of compensation under 147.005 (Definitions) to 147.367 (Services to victims of acts of mass destruction) and has sustained a severe and debilitating long term or lifelong personal injury as a direct result of the compensable crime.(2)
In order to be eligible for catastrophic injury compensation, the victim also must satisfy the following criteria:(a)
The victim has suffered significant and sustained reduction of the victim’s previous functioning of mental or physical abilities or both, and that reduction significantly alters the victim’s ability to interact with others or carry on the normal functions of life, or both;(b)
There has been a material reduction in the victim’s ability to work; and(c)
There has been a physical or neuro-physical impairment such that no fundamental or marked improvement in the victim’s crime-related condition reasonably can be expected.(3)
In determining whether the victim has suffered a catastrophic injury, the Department may also consider the following factors:(a)
The severity and debilitating nature of the personal injury. Severe and debilitating personal injury includes, but is not limited to, conditions such as quadriplegia, paraplegia, loss of sight in both eyes, loss of hearing in both ears or amputation of a major portion of any extremity;(b)
Whether the injury is permanent or long term; and(c)
Whether a victim is receiving benefits as a result of being determined permanently disabled pursuant to the provisions of 42 U.S.C. 1381, et. seq. A victim receiving benefits under 42 U.S.C. 1381, et seq. must provide all of the following to the Department:(A)
A copy of the Social Security Administration’s determination of permanent disability;(B)
Documentation of the crime underlying the injury; and(C)
Medical documentation by a licensed physician addressing the criteria set forth in OAR 137-076-0037 (Payment of Catastrophic Injury Claims)(1) and (2).(4)
If the Department determines the victim’s injuries to be catastrophic in nature and that determination does not change upon reevaluation pursuant to OAR 137-076-0037 (Payment of Catastrophic Injury Claims)(5) or 137-076-0037 (Payment of Catastrophic Injury Claims)(6), then compensation payments under this rule will continue until payments reach the full amount of compensation awarded by the Department or the victim requests closure of the claim.(5)
The burden of proof is on the applicant to establish eligibility as a catastrophically injured crime victim for the award of compensation and the continuation of compensation payments under this rule. Speculation and conjecture as to the following are not sufficient to meet the burden of proof:(a)
A potential increase in disability;(b)
Loss of earnings;(c)
Cumulative injuries that are minor in nature; or(d)
Statements of the victim without substantiation of the catastrophic nature of the injury by an objective medical examination and report from a licensed medical practitioner.(6)
At the Department’s discretion, the Department may periodically order a medical examination of the victim and a report concerning the victim’s injury, performed by an impartial Medical Practitioner. The purpose of this discretionary medical examination is to reaffirm or verify the victim’s continued eligibility for benefits and payments under this rule.(a)
The medical examination and report must address the victim’s current medical state, and include information about the criteria set forth in OAR 137-076-0037 (Payment of Catastrophic Injury Claims)(1) and (2);(b)
The Department must reimburse the costs of any medical examination and report ordered by the Department pursuant to this rule.(7)
Once compensation has been granted pursuant to this rule, the Department may at any time, at its discretion, request information from the victim relevant to the victim’s continuing eligibility under this rule.(8)
If the victim ceases to meet the criteria for catastrophic, the victim shall immediately notify the Department.
Source:
Rule 137-076-0037 — Payment of Catastrophic Injury Claims, https://secure.sos.state.or.us/oard/view.action?ruleNumber=137-076-0037.