Adjusted weekly wage

Question: I am determining the eligibility of a worker who held two jobs at the time of injury. The worker received supplemental disability as well as temporary disability (time loss) payments. The job at injury was permanent and year-round. Should I include the weekly wage upon which the supplemental disability was based to establish the worker's "adjusted weekly wage?"

Answer: Because the worker's job at injury was not temporary or seasonal, the insurer is required, under OAR 436-120-0007(4), to base the worker's adjusted weekly wage on "the average weekly wage upon which temporary disability was based." Because this rule specifically instructs the insurer to use the average weekly wage upon which it based the worker's temporary disability, the insurer cannot include the weekly wage upon which it based the worker's supplemental disability when it determines the worker's adjusted weekly wage.

Under OAR 436-060-0035:

(d) "Temporary disability" means wage loss replacement for the primary job.

(e) "Supplemental disability" means wage loss replacement for the secondary job(s) that exceeds the temporary disability, up to but not exceeding the maximum established by ORS 656.210.

Question: The worker was a seasonal orchard laborer who was working for one employer on the date of injury, but he worked for three different employers during the 52 weeks prior to the injury. Should I include only the wages he earned from the employer-at-injury, or should I add up the wages from all three employers and divide the total by number of weeks he worked?

Answer: Under OAR 436-120-0007(3)(d), you should divide the worker's earned income by the number of weeks he worked during the 52 weeks prior to the date of injury or aggravation. OAR 436-120-0007(1)(c) defines "earned income" as the gross wages, etc., the worker received "from all employers for services performed from all jobs held at the time of injury or aggravation." In other words, earned income refers only to the wages the worker earned from the employer or employers he was working for on the date he was injured. Therefore, in this case, you should include only the wages this worker earned from the employer-at-injury.

Question: The worker held two jobs on the date of injury; both were permanent and year-round. I have studied OAR 436-120-0007 but I can't find a rule that covers this situation. Should I combine the wages from the two jobs?

Answer: The applicable rule is OAR 436-120-0007(4), which states that you should use the weekly wage upon which the worker's temporary disability was based. Unfortunately for the worker, the wages from a second job are not included in establishing the adjusted weekly wage when the job-at-injury was permanent and year-round.

Availability in Oregon

Question: The injured worker was a long-haul truck driver who lived in Idaho when he was injured. He still lives there. His route included Idaho, Washington, Oregon, California and Nevada. His injury occurred at a truck stop when he was driving through Oregon. Does this worker have to be available in Oregon to receive vocational assistance?

Answer: OAR 436-120-0320(10)(b) states that, to become eligible for vocational assistance, a worker must be available in Oregon unless the worker did not work and live in Oregon at the time of the injury. For a worker to qualify for services out of state, both of those conditions must be present. In this case, because the worker was working in Oregon when he was injured, he must be available in Oregon to receive vocational assistance.

Question: The worker was injured in Oregon; however, after the injury, she got married and moved to southern California. She has requested vocational assistance. Unless she moves back to Oregon, she's not eligible, right?

Answer: OAR 436-120-0320(10)(b) states that a worker may be considered "available in Oregon" if the worker states, in writing, that she is willing to relocate "to or within commuting distance of Oregon" within 30 days of being determined eligible for vocational assistance. If the worker complies with this condition, and she meets all the other eligibility criteria, she will be eligible for vocational assistance.

Question: I have an insurer who refuses to pay my invoices on a particular file. There is no good reason for them not to pay as we have provided vocational services to the worker according to the rules. Do I have any recourse with the Workers' Compensation Division to make them pay me?

Answer: You may write a letter to the Investigations and Sanctions Unit describing the services you provided, your efforts to get paid, and asking for sanctions against the insurer if it does not pay you. Make your request to:

Investigations and Sanctions Unit
Compliance Section
Workers' Compensation Division
PO Box 14480
Salem, Oregon 97309-0405

Mileage reimbursements during a training program

Question: I need to establish what commuting distance I should I use to determine how much to reimburse a worker for his private car mileage while he participates in training. On the date of the injury, the worker drove five miles from his home to the job site; however, on other days, the worker drove to other job sites at various distances from his home.

Answer: OAR 435-120-0710(3)(a) states: "For workers receiving temporary total disability or equivalent income, private car mileage shall be paid only for mileage in excess of the miles the worker traveled to and from work at the time of injury." Since the worker traveled 10 miles to and from work on the date of the injury, you should reimburse him for the distance he travels from his home to the training facility, minus 10 miles.

Modified work

Question: An employer provided "modified" work to an injured HVAC worker. The modification consisted of the worker asking co-workers for assistance to do those parts of the job that were beyond his physical restrictions. Does WCD consider that a suitable job modification?

Answer: When the job duties remain the same, but it is up to the worker to ask for assistance, the job is not considered "modified." For WCD to consider a job "modified," the employer must change some intrinsic part of the job, i.e., there must be changes either in the explicit job duties or in the tools of the job. In other words, the job itself must be changed so the worker is not exposed to job tasks that have been ruled out for medical reasons. In the case of the HVAC worker, WCD would consider the job modified if the employer provided a hoist or some other worksite modification that would allow the injured worker to do his job without depending on other workers for assistance.

Newly accepted condition

Question: OAR 436-120-0003(3) requires that I determine vocational assistance eligibility for an injured worker whose claim was reopened to process a newly accepted condition. Which job should I consider the worker's "regular employment" when I establish the "adjusted weekly wage" - the job at injury or the job the worker held when the new condition arose?

Answer: The applicable rule is OAR 436-120-0005(10), the definition of "regular employment." The answer to your question depends on whether the new condition arose before or after claim closure. If the new condition arose before claim closure, the worker's "regular employment" is the employment the worker held at the time of the injury. If the new condition arose after claim closure, you should determine the worker's regular employment as though it were an aggravation claim. For example, if a worker was required to use crutches because of a disabling knee injury, and using the crutches caused an accepted shoulder condition to arise after claim closure, the new shoulder condition should be treated as an aggravation claim for vocational assistance purposes.

Question: While I was conducting an eligibility evaluation, the insurer told me to put the evaluation on "hold" because the employer-at-injury was in the process of identifying a suitable job for the worker. Do I need to send the worker a Notice of Deferral?

Answer: If one or more of the conditions provided in OAR 436-120-0320(1) requires the insurer to determine the worker's eligibility, you may not defer the eligibility determination while the employer tries to identify a suitable job. You need to complete the eligibility evaluation, and the insurer needs to determine the worker's eligibility, within 35 days of the initial contact. If the worker is determined eligible, and the employer comes up with a suitable job before the worker starts a training plan, the insurer may end the worker's eligibility under OAR 436-120-0350(1) or (4).

Question: I was in the process of developing a training plan when the claims adjuster told me the insurer was going to offer the worker a claims disposition agreement (CDA). The adjuster said I should stop working on the training plan and told me to have no further contact with the worker. Do I need to send the worker a Notice of Deferral?

Answer: The rules do not allow insurers to defer vocational services during CDA negotiations; however, under OAR 436-120-0350(15), the parties may agree in writing to "suspend" vocational services after they have reached an agreement and are awaiting CDA approval by the Workers' Compensation Board. Until that happens, the insurer is required to continue providing services.

Preferred Worker Program

Question: While I was conducting an eligibility evaluation, the employer-at-injury activated preferred worker benefits and offered the worker a job, in writing, which the worker accepted. The insurer will be using a wage subsidy and a premium exemption, but there will be no worksite modification. The attending physician approved a job analysis, and the wage is suitable, so it looks like the worker has returned to suitable employment. Does the insurer still have to determine the worker's eligibility?

Answer: Under OAR 436-120-0320(3)(b), the insurer is required to defer the eligibility determination, and to send the worker a Notice of Deferral of Vocational Assistance Eligibility Determination within 14 days of the worker's written acceptance of the job offer. If the worker is still employed nine months after the effective date of the premium exemption, the insurer will have to determine the worker's eligibility. The insurer is required to determine eligibility to make sure the job is suitable, and to provide an opportunity for the worker to let the insurer know that he or she feels the job is not suitable. If all goes well, the insurer will determine the worker ineligible after the nine-month deferral period ends, and the Notice of Ineligibility will formalize and document the worker's successful return to work with the employer-at-injury.

Question: While I was conducting an eligibility evaluation, the employer-at-injury activated preferred worker benefits and offered the worker a job, in writing; however, the worker refused the job offer. What should I do now? The worker refused a suitable job with the employer-at-injury, so do I have to complete the eligibility evaluation?

Answer: Basically, you are now back where you were before the employer offered the worker a job, and you need to complete the eligibility evaluation. An employer can only activate preferred worker benefits if the worker accepts the job offer, but that was not the case; therefore, you need to determine whether the job the employer offered the worker would have been suitable in the absence of preferred worker benefits.

Question: I am developing an on-the-job training program. Can the employer/trainer receive Preferred Worker Program benefits?

Answer: The employer/trainer can receive a premium exemption and a worksite modification benefit that costs up to $2,500. The employer cannot, however, receive a wage subsidy while also receiving wage reimbursements from the insurer under an on-the-job training agreement.

Question: When does the 12-month period required before a job is considered "suitable," under OAR 436-120-0005(12)(e)(B), begin after an employer has used the Preferred Worker Program to pay for a worksite modification?

Answer: The 12-month time period starts on the date the Preferred Worker Program representative signs the worksite modification agreement.

Question: When do I have to send the worker the Notice of Deferral that is required under OAR 436-120-0320(3)(b)?

Answer: The insurer is required to send the worker a deferral letter within 14 days of the date the worker signs the employer's written job offer.

Question: What information should the Notice of Deferral include?

Answer: The Notice of Deferral should state that the insurer will complete an eligibility evaluation either nine months from the effective date of the premium exemption agreement or 12 months from the date the Preferred Worker Program approves the worksite modification agreement. The letter should include whichever date applies.

Question: What happens if the worker refuses to accept the employer's job offer?

Answer: If the worker turns down the employer's job offer, the insurer is required to determine the worker's eligibility.

Retired worker

Question: After his injury, the worker told his employer he had decided to retire. He received a permanent disability award and did not return to work. Do I have to determine his eligibility for vocational assistance?

Answer: If the worker meets the conditions that require the insurer to determine eligibility under OAR 436-120-0320, you are required to do so. However, if the worker tells you he wants to stay "retired" and does not want vocational assistance, you may determine him ineligible under OAR 436-120-0350(8). If you do that, you will have to inform the worker that you do not consider retirement to be "reasonable cause" for declining vocational assistance.

Question: The worker has been employed for more than 60 days. I am considering ending his eligibility for vocational assistance. In order for him to be considered "suitably employed," does this employment need to be for at least 60 consecutive days?

Answer: OAR 436-120-0350 provides the conditions under which a worker's eligibility ends, and includes: "(4) The worker has been employed at least for 60 days in suitable employment after the injury or aggravation and any necessary work site modification is in place." WCD interprets ". . . at least for 60 days . . ." to mean at least 60 consecutive days.

Question: How do I determine whether the worker's job at injury was temporary/ seasonal, or permanent, year-round employment?

Answer: If the employer and the worker agree as to the nature of the work you can accept what they tell you. However, if one says "permanent" and the other says "seasonal," you will have to make the call. Factors to consider in resolving this issue:

1. The employer's hiring and employment patterns, e.g., does the employer typically hire people in the spring and lay them off in the fall?

2. The nature of the work, e.g., fruit-harvesting work is typically seasonal; flagging jobs are usually temporary, and manufacturing jobs are mostly year-round.

3. Whether or not the employer gave the worker a projected job end-date when the worker was hired. If the employer did not provide a projected job end date, and the nature of the work was year-round, the worker could reasonably expect the job to be permanent.

Question: OAR 436-120-0350(15) indicates that a worker is ineligible for vocational assistance if the worker enters into a claim disposition agreement (CDA) that disposes of vocational assistance rights, and no notice regarding the end of eligibility is required. Is the insurer required to send WCD a Vocational Closure Report (Form 2800) under these circumstances?

Answer: As provided in Bulletin No. 124, the insurer is required to submit a vocational closure report to the department whenever it ends a worker's eligibility for vocational assistance.