Current through Register Vol. 63, No. 3, March 1, 2024
(1) Rate of temporary partial disability. The
amount of temporary partial disability compensation due a worker must be
determined by multiplying the worker's rate of compensation for temporary total
disability by the percentage of wages lost by the worker post injury.
(a) To calculate the rate of temporary
disability, the insurer must:
(A) Subtract
the worker's post-injury wages from any kind of work from the worker's wages at
the time of injury under OAR 436-060-0025;
(B) Divide the difference under paragraph (A)
by the worker's wages at the time of injury under OAR 436-060-0025 to arrive at
the percentage of loss of wages; and
(C) Multiply the worker's current rate of
compensation for temporary total disability by the percentage of loss of wages
in paragraph (B).
(b)
As used in this rule "post-injury wages" means the sum of:
(A) The wages the worker could have earned by
accepting a job offer, or actual wages earned, whichever is greater;
(B) Any unemployment benefits received; and
(C) Any wages received for paid
leave, except wages paid in addition to temporary disability compensation with
the worker's consent under OAR436-060-0025(1);
(c) Wages from a secondary employer must only
be included in post-injury wages to the extent that the wages from the
secondary employer post-injury exceed the wages from the secondary employer at
the time of injury.
(d) If the
worker's rate of temporary total disability compensation is based on an assumed
wage, the rate of temporary partial disability must be calculated by
multiplying the rate of temporary total disability by the percentage of hours
lost by the worker post injury.
(2) If the worker returns to employment. The
insurer must stop paying temporary total disability compensation and start
paying temporary partial disability compensation from the date an injured
worker returns to regular or modified employment, prior to claim closure.
(a) If the worker is with a new employer, and
the insurer asks the worker to provide wage information, the worker is
responsible for providing documented evidence of the amount of any wages being
earned; and
(b) If the worker
fails to provide documentation, the insurer may assume that post-injury wages
are the same as or higher than the worker's wages at time of injury.
(3) If the worker fails to begin
employment. Except when the worker refuses modified work under ORS
656.268(4)(c),
the insurer must stop paying temporary total disability compensation and start
paying temporary partial disability compensation as if the worker had begun the
employment from the date a worker fails to begin regular or modified
employment, and the following conditions have been met:
(a) The employer or insurer:
(A) Notifies the attending physician or
authorized nurse practitioner of the physical tasks to be performed by the
injured worker;
(B) Notifies the
attending physician or authorized nurse practitioner of the location of the
modified work offer; and
(C) Asks
the attending physician or authorized nurse practitioner if the worker can, as
a result of the compensable injury, physically commute to and perform the job.
(b) The attending
physician or authorized nurse practitioner has agreed the employment appears to
be within the worker's capabilities, and considering the compensable injury the
worker is physically able to commute the lesser of:
(A) The distance from the worker's residence
at the time of injury to the work site; or
(B) The distance from a worker's residence at
the time of the modified work offer to the work site; and
(c) The employer or insurer has confirmed the
offer of employment in writing to the worker stating:
(A) The beginning time, date and place;
(B) The duration of the job, if
known;
(C) The wages;
(D) An accurate description of the physical
requirements of the job;
(E) That
the attending physician or authorized nurse practitioner has found the job to
be within the worker's capabilities and the commute to be within the worker's
physical capacity;
(F) The
worker's right to refuse the offer of employment without termination of
temporary total disability if any of the following conditions apply:
(i) The offer is at a site more than 50 miles
from the location where the worker was injured or where the worker customarily
reported for work, unless the work site is less than 50 miles from the worker's
residence, or the job at the time of injury involved multiple or mobile work
sites as established by the intent of the employer and worker at the time of
hire or the employment pattern before the injury;
(ii) The offer is not with the employer at
injury;
(iii) The offer is not at
a work site of the employer at injury;
(iv) The offer is not consistent with
existing written shift change policy or common practice of the employer at
injury or aggravation; or
(v) The
offer is not consistent with an existing shift change provision of an
applicable union contract; and
(G) The following notice, in prominent or
bold face type:
"If you refuse this offer of work for any of the reasons listed
in this notice, you should write to the insurer or employer and tell them your
reasons for refusing the job. If the insurer reduces or stops your temporary
total disability and you disagree with that action, you have the right to
request a hearing. To request a hearing you must send a letter objecting to the
insurer's actions to the Worker's Compensation Board, 2601 25th Street SE,
Suite 150, Salem, Oregon 97302-1282."
(4) If the worker has been terminated from
employment. The insurer must stop paying temporary total disability
compensation and start paying temporary partial disability compensation as if
the worker had begun the employment from the date the worker's attending
physician or authorized nurse practitioner approves employment in a modified
job that would have been offered to the worker if the worker had not been
terminated from employment for violation of work rules or other disciplinary
reasons, under the following conditions:
(a)
The employer has a written policy of offering modified work to injured workers;
(b) The insurer has written
documentation of the hours available to work and the wages that would have been
paid if the worker had returned to work in order to determine the amount of
temporary partial disability compensation under section (1) of this rule;
(c) The attending physician or
authorized nurse practitioner has been notified by the employer or insurer of
the physical tasks to be performed by the injured worker; and
(d) The attending physician or authorized
nurse practitioner agrees the employment appears to be within the worker's
capabilities.
(5) If
the worker is in violation of federal immigration law. The insurer must stop
paying temporary total disability compensation and start paying temporary
partial disability compensation as if the worker had begun the employment when
the attending physician or authorized nurse practitioner approves employment in
a modified job whether or not such a job is available if the worker is a person
present in the United States in violation of federal immigration laws, under
the following conditions:
(a) The insurer has
written documentation of the hours available to work and the wages that would
have been paid if the worker had returned to work in order to determine the
amount of temporary partial disability compensation under section (1) of this
rule;
(b) The attending physician
or authorized nurse practitioner has been notified by the employer or insurer
of the physical tasks that would have been performed by the injured worker; and
(c) The attending physician or
authorized nurse practitioner agrees the employment appears to be within the
worker's capabilities.
(6) If the modified job no longer exists or
offer is withdrawn. Temporary partial disability must be paid at the full
temporary total disability rate as of the date a modified job no longer exists
or the job offer is withdrawn by the employer.
(a) This section applies to situations
including, but not limited to, termination of temporary employment, layoff, or
plant closure.
(b) A worker who
has been released to and doing modified work at the same wage as at the time of
injury from the onset of the claim is subject to this section.
(c) For the purpose of this rule, when a
worker who has been doing modified work quits the job, or the employer
terminates the worker for violation of work rules or other disciplinary
reasons, it is not a withdrawal of a job offer by the employer, but must be
considered the same as the worker refusing wage earning employment under ORS
656.325(5)(a).
(d) This section does not apply to
those situations described in sections (3), (4), and (5) of this rule.
(7) Termination of
temporary partial disability. When the worker's disability is partial only and
temporary in character, temporary partial disability compensation under ORS
656.212 must continue until:
(a) The attending physician or authorized
nurse practitioner verifies that the worker can no longer perform the modified
job and is again temporarily totally disabled;
(b) The compensation is terminated by order
of the director or by claim closure under ORS
656.268; or
(c) The compensation is lawfully suspended,
withheld or terminated for any other reason.
(8) Verbal release to work. If temporary
disability benefits end because the insurer or employer negotiates a verbal
release of the worker to return to any type of work with the worker's attending
physician or authorized nurse practitioner, and the worker has not already been
informed of the release by the attending physician or authorized nurse
practitioner or returned to work, the insurer must:
(a) Document the facts;
(b) Communicate the release to the worker by
mail within seven days; the communication to the worker of the negotiated
return to work release may be contained in an offer of modified employment; and
(c) Advise the worker of their
reinstatement rights under ORS chapter 659A.
(9) Changes in the rate of compensation. When
the insurer stops paying temporary total disability compensation and starts
paying temporary partial disability compensation, or otherwise changes the
compensation rate or the method of computation of benefits under this rule, the
insurer must send written notice to the worker and worker's attorney under OAR
436-060-0015.
Stat. Auth.: ORS
656.212,
656.704 & 656.726(4)
Stats. Implemented: ORS
656.212,
656.268,
656.325(5),
656.704,
656.726(4)