74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1055
Senate Bill 405
Sponsored by COMMITTEE ON RULES
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Modifies circumstances requiring evaluation of injured worker
for vocational assistance. Extends period of eligibility for
vocational benefits. Modifies definition of 'suitable employment.
'
A BILL FOR AN ACT
Relating to vocational assistance benefits provided in workers'
compensation claims; amending ORS 656.340.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 656.340 is amended to read:
656.340. (1)(a) The insurer or self-insured employer shall
cause vocational assistance to be provided to an injured worker
who is eligible for assistance in returning to work.
(b) For this purpose the insurer or self-insured employer shall
contact a worker with a claim for a disabling compensable injury
or claim for aggravation for evaluation of the worker's
eligibility for vocational assistance within five days of:
(A) Having knowledge of the worker's likely eligibility for
vocational assistance, from a medical or investigation report,
notification from the worker, or otherwise; { - or - }
{ + (B) The worker having received temporary total disability
benefits for 60 days; or + }
{ - (B) - } { + (C) + } The time the worker is medically
stationary, if the worker has not returned to the worker's
regular employment or other suitable employment with the employer
at the time of injury or aggravation and the worker is not
receiving vocational assistance.
(c) Eligibility may be redetermined by the insurer or
self-insured employer upon receipt of new information that would
change the eligibility determination.
{ + (d) The worker shall receive temporary total disability
benefits from the date the evaluation commences until an order
determining that the worker is not eligible for vocational
assistance becomes final or until the worker's vocational
assistance is completed. + }
(2) Contact under subsection (1) of this section shall include
informing the worker about reemployment rights, the
responsibility of the worker to request reemployment, and wage
subsidy and job site modification assistance and the provisions
of the preferred worker program pursuant to rules adopted by the
Director of the Department of Consumer and Business Services.
(3) Within five days after notification that the attending
physician or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 has released a worker to
return to work, the insurer or self-insured employer shall inform
the worker about the opportunity to seek reemployment or
reinstatement under ORS 659A.043 and 659A.046. The insurer shall
inform the employer of the worker's reemployment rights, wage
subsidy and the job site modification assistance and the
provisions of the preferred worker program.
(4) As soon as possible, and not more than 30 days after the
contact required by subsection (1) of this section, the insurer
or self-insured employer shall cause an individual certified by
the director to provide vocational assistance to determine
whether the worker is eligible for vocational assistance. The
insurer or self-insured employer shall notify the worker of the
decision regarding the worker's eligibility for vocational
assistance. If the insurer or self-insured employer decides that
the worker is not eligible, the worker may apply to the director
for review of the decision as provided in ORS 656.283 (2). A
worker determined ineligible upon evaluation under subsection
{ - (1)(b)(B) - } { + (1)(b)(C) + } of this section, or
because the worker's eligibility has fully and finally expired
under standards prescribed by the director, may not be found
eligible thereafter unless that eligibility determination is
rejected by the director under ORS 656.283 (2) or the worker's
condition worsens so as to constitute an aggravation claim under
ORS 656.273. A worker is not entitled to vocational assistance
benefits when possible eligibility for such benefits arises from
a worsening of the worker's condition that occurs after the
expiration of the worker's aggravation rights under ORS 656.273.
(5) The objectives of vocational assistance are to return the
worker to employment which is as close as possible to the
worker's regular employment at a wage as close as possible to the
weekly wage currently being paid for employment which was the
worker's regular employment { - even though the wage available
following employment may be less than the wage prescribed by
subsection (6) of this section - } . As used in this subsection
{ - and subsection (6) of this section - } , 'regular
employment' means the employment the worker held at the time of
the injury or the claim for aggravation under ORS 656.273,
whichever gave rise to the potential eligibility for vocational
assistance; or, for a worker not employed at the time of the
aggravation, the employment the worker held on the last day of
work prior to the aggravation.
(6)(a) A worker is eligible for vocational assistance if the
worker will not be able to return to the previous employment or
to any other available and suitable employment with the employer
at the time of injury or aggravation, and the worker has a
substantial handicap to employment.
(b) As used in this subsection:
(A) A 'substantial handicap to employment' exists when the
worker, because of the injury or aggravation, lacks the necessary
physical capacities, knowledge, skills and abilities to be
employed in suitable employment.
(B) 'Suitable employment' means:
(i) Employment of the kind for which the worker has the
necessary physical capacity, knowledge, skills and
abilities; { + and + }
(ii) Employment that is located where the worker customarily
worked or is within reasonable commuting distance of the worker's
residence { + . + } { - ; and - }
{ - (iii) Employment that produces a weekly wage within 20
percent of that currently being paid for employment that was the
worker's regular employment as defined in subsection (5) of this
section. The director shall adopt rules providing methods of
calculating the weekly wage currently being paid for the worker's
regular employment for use in determining eligibility and for
providing assistance to eligible workers. If the worker's regular
employment was seasonal or temporary, the worker's wage shall be
averaged based on a combination of the worker's earned income and
any unemployment insurance payments. Only earned income evidenced
by verifiable documentation such as federal or state tax returns
shall be used in the calculation. Earned income does not include
fringe benefits or reimbursement of the worker's employment
expenses. - }
(7) Vocational evaluation { - , help in directly obtaining
employment - } and training shall be available under conditions
prescribed by the director. The director may establish other
conditions for providing vocational assistance, including those
relating to the worker's availability for assistance,
participation in previous assistance programs connected with the
same claim and the nature and extent of assistance that may be
provided. { - Such conditions shall give preference to direct
employment assistance over training. - }
(8) An insurer or self-insured employer may utilize its own
staff or may engage any other individual certified by the
director to perform the vocational evaluation required by
subsection (4) of this section.
(9) The director shall adopt rules providing:
(a) Standards for and methods of certifying individuals and
authorizing vocational assistance providers qualified by
education, training, experience and plan of operation to provide
vocational assistance to injured workers;
(b) Conditions and procedures under which the certification of
an individual or the authorization of a vocational assistance
provider to provide vocational assistance services may be
suspended or revoked for failure to maintain compliance with the
certification or authorization standards;
(c) Standards for the nature and extent of services a worker
may receive, for plans for return to work and for determining
when the worker has returned to work; and
(d) Procedures, schedules and conditions relating to the
payment for services performed by a vocational assistance
provider, which shall be based on payment for specific services
performed and not fees for services performed on an hourly basis.
Fee schedules shall reflect a reasonable rate for direct worker
purchases and for all vocational assistance providers and shall
be the same within suitable geographic areas.
(10) Insurers and self-insured employers shall maintain records
and make reports to the director of vocational assistance actions
at such times and in such manner as the director may prescribe.
Such requirements shall be for the purpose of assisting the
Department of Consumer and Business Services in monitoring
compliance with this section to insure that workers receive
timely and appropriate vocational assistance. The director shall
minimize to the greatest extent possible the number, extent and
kinds of reports required. The director shall compile a list of
the organizations or agencies authorized to provide vocational
assistance. A current list shall be distributed by the director
to all insurers and self-insured employers. The insurer shall
send the list to each worker with the notice of eligibility.
(11) When a worker is eligible to receive vocational
assistance, the worker and the insurer or self-insured employer
shall attempt to agree on the choice of a vocational assistance
provider. If the worker agrees, the insurer or self-insured
employer may utilize its own staff to provide vocational
assistance. If they are unable to agree on a vocational
assistance provider, the insurer or self-insured employer shall
notify the director and the director shall select a provider. Any
change in the choice of vocational assistance provider is subject
to the approval of the director.
(12) Notwithstanding ORS 656.268, a worker actively engaged in
training may receive temporary disability compensation for a
maximum of { - 16 - } { + 24 + } months, subject to extension
to { - 21 - } { + 48 + } months by order of the director for
good cause shown. The costs related to vocational assistance
training programs may be paid for periods longer than
{ - 21 - } { + 48 + } months, but in no event may temporary
disability benefits be paid for a period longer than { - 21 - }
{ + 48 + } months.
(13) As used in this section, 'vocational assistance provider'
means a public or private organization or agency which provides
vocational assistance to injured workers.
{ - (14)(a) Determination of eligibility for vocational
assistance does not entitle all workers to the same type or
extent of assistance. - }
{ - (b) Training shall not be provided to an eligible worker
solely because the worker cannot obtain employment, otherwise
suitable, that will produce the wage prescribed in subsection (6)
of this section unless such training will enable the worker to
find employment which will produce a wage significantly closer to
that prescribed in subsection (6) of this section. - }
{ - (c) Nothing in this section shall be interpreted to
expand the availability of training under this section. - }
{ - (15) - } { + (14) + } A physical capacities evaluation
shall be performed in conjunction with vocational assistance or
determination of eligibility for such assistance at the request
of the insurer or self-insured employer or worker. Such request
shall be made to the attending physician or nurse practitioner
authorized to provide compensable medical services under ORS
656.245. The attending physician or nurse practitioner, within 20
days of the request, shall perform a physical capacities
evaluation or refer the worker for such evaluation or advise the
insurer or self-insured employer and the worker in writing that
the injured worker is incapable of participating in a physical
capacities evaluation.
SECTION 2. ORS 656.340, as amended by section 16, chapter 811,
Oregon Laws 2003, is amended to read:
656.340. (1)(a) The insurer or self-insured employer shall
cause vocational assistance to be provided to an injured worker
who is eligible for assistance in returning to work.
(b) For this purpose the insurer or self-insured employer shall
contact a worker with a claim for a disabling compensable injury
or claim for aggravation for evaluation of the worker's
eligibility for vocational assistance within five days of:
(A) Having knowledge of the worker's likely eligibility for
vocational assistance, from a medical or investigation report,
notification from the worker, or otherwise; { - or - }
{ + (B) The worker having received temporary total disability
benefits for 60 days; or + }
{ - (B) - } { + (C) + } The time the worker is medically
stationary, if the worker has not returned to the worker's
regular employment or other suitable employment with the employer
at the time of injury or aggravation and the worker is not
receiving vocational assistance.
(c) Eligibility may be redetermined by the insurer or
self-insured employer upon receipt of new information that would
change the eligibility determination.
{ + (d) The worker shall receive temporary total disability
benefits from the date the evaluation commences until an order
determining that the worker is not eligible for vocational
assistance becomes final or until the worker's vocational
assistance is completed. + }
(2) Contact under subsection (1) of this section shall include
informing the worker about reemployment rights, the
responsibility of the worker to request reemployment, and wage
subsidy and job site modification assistance and the provisions
of the preferred worker program pursuant to rules adopted by the
Director of the Department of Consumer and Business Services.
(3) Within five days after notification that the attending
physician has released a worker to return to work, the insurer or
self-insured employer shall inform the worker about the
opportunity to seek reemployment or reinstatement under ORS
659A.043 and 659A.046. The insurer shall inform the employer of
the worker's reemployment rights, wage subsidy and the job site
modification assistance and the provisions of the preferred
worker program.
(4) As soon as possible, and not more than 30 days after the
contact required by subsection (1) of this section, the insurer
or self-insured employer shall cause an individual certified by
the director to provide vocational assistance to determine
whether the worker is eligible for vocational assistance. The
insurer or self-insured employer shall notify the worker of the
decision regarding the worker's eligibility for vocational
assistance. If the insurer or self-insured employer decides that
the worker is not eligible, the worker may apply to the director
for review of the decision as provided in ORS 656.283 (2). A
worker determined ineligible upon evaluation under subsection
{ - (1)(b)(B) - } { + (1)(b)(C) + } of this section, or
because the worker's eligibility has fully and finally expired
under standards prescribed by the director, may not be found
eligible thereafter unless that eligibility determination is
rejected by the director under ORS 656.283 (2) or the worker's
condition worsens so as to constitute an aggravation claim under
ORS 656.273. A worker is not entitled to vocational assistance
benefits when possible eligibility for such benefits arises from
a worsening of the worker's condition that occurs after the
expiration of the worker's aggravation rights under ORS 656.273.
(5) The objectives of vocational assistance are to return the
worker to employment which is as close as possible to the
worker's regular employment at a wage as close as possible to the
weekly wage currently being paid for employment which was the
worker's regular employment { - even though the wage available
following employment may be less than the wage prescribed by
subsection (6) of this section - } . As used in this subsection
and subsection (6) of this section, 'regular employment' means
the employment the worker held at the time of the injury or the
claim for aggravation under ORS 656.273, whichever gave rise to
the potential eligibility for vocational assistance; or, for a
worker not employed at the time of the aggravation, the
employment the worker held on the last day of work prior to the
aggravation.
(6)(a) A worker is eligible for vocational assistance if the
worker will not be able to return to the previous employment or
to any other available and suitable employment with the employer
at the time of injury or aggravation, and the worker has a
substantial handicap to employment.
(b) As used in this subsection:
(A) A 'substantial handicap to employment' exists when the
worker, because of the injury or aggravation, lacks the necessary
physical capacities, knowledge, skills and abilities to be
employed in suitable employment.
(B) 'Suitable employment' means:
(i) Employment of the kind for which the worker has the
necessary physical capacity, knowledge, skills and
abilities; { + and + }
(ii) Employment that is located where the worker customarily
worked or is within reasonable commuting distance of the worker's
residence { + . + } { - ; and - }
{ - (iii) Employment that produces a weekly wage within 20
percent of that currently being paid for employment that was the
worker's regular employment as defined in subsection (5) of this
section. The director shall adopt rules providing methods of
calculating the weekly wage currently being paid for the worker's
regular employment for use in determining eligibility and for
providing assistance to eligible workers. If the worker's regular
employment was seasonal or temporary, the worker's wage shall be
averaged based on a combination of the worker's earned income and
any unemployment insurance payments. Only earned income evidenced
by verifiable documentation such as federal or state tax returns
shall be used in the calculation. Earned income does not include
fringe benefits or reimbursement of the worker's employment
expenses. - }
(7) Vocational evaluation { - , help in directly obtaining
employment - } and training shall be available under conditions
prescribed by the director. The director may establish other
conditions for providing vocational assistance, including those
relating to the worker's availability for assistance,
participation in previous assistance programs connected with the
same claim and the nature and extent of assistance that may be
provided. { - Such conditions shall give preference to direct
employment assistance over training. - }
(8) An insurer or self-insured employer may utilize its own
staff or may engage any other individual certified by the
director to perform the vocational evaluation required by
subsection (4) of this section.
(9) The director shall adopt rules providing:
(a) Standards for and methods of certifying individuals and
authorizing vocational assistance providers qualified by
education, training, experience and plan of operation to provide
vocational assistance to injured workers;
(b) Conditions and procedures under which the certification of
an individual or the authorization of a vocational assistance
provider to provide vocational assistance services may be
suspended or revoked for failure to maintain compliance with the
certification or authorization standards;
(c) Standards for the nature and extent of services a worker
may receive, for plans for return to work and for determining
when the worker has returned to work; and
(d) Procedures, schedules and conditions relating to the
payment for services performed by a vocational assistance
provider, which shall be based on payment for specific services
performed and not fees for services performed on an hourly basis.
Fee schedules shall reflect a reasonable rate for direct worker
purchases and for all vocational assistance providers and shall
be the same within suitable geographic areas.
(10) Insurers and self-insured employers shall maintain records
and make reports to the director of vocational assistance actions
at such times and in such manner as the director may prescribe.
Such requirements shall be for the purpose of assisting the
Department of Consumer and Business Services in monitoring
compliance with this section to insure that workers receive
timely and appropriate vocational assistance. The director shall
minimize to the greatest extent possible the number, extent and
kinds of reports required. The director shall compile a list of
the organizations or agencies authorized to provide vocational
assistance. A current list shall be distributed by the director
to all insurers and self-insured employers. The insurer shall
send the list to each worker with the notice of eligibility.
(11) When a worker is eligible to receive vocational
assistance, the worker and the insurer or self-insured employer
shall attempt to agree on the choice of a vocational assistance
provider. If the worker agrees, the insurer or self-insured
employer may utilize its own staff to provide vocational
assistance. If they are unable to agree on a vocational
assistance provider, the insurer or self-insured employer shall
notify the director and the director shall select a provider. Any
change in the choice of vocational assistance provider is subject
to the approval of the director.
(12) Notwithstanding ORS 656.268, a worker actively engaged in
training may receive temporary disability compensation for a
maximum of { - 16 - } { + 24 + } months, subject to extension
to { - 21 - } { + 48 + } months by order of the director for
good cause shown. The costs related to vocational assistance
training programs may be paid for periods longer than
{ - 21 - } { + 48 + } months, but in no event may temporary
disability benefits be paid for a period longer than { - 21 - }
{ + 48 + } months.
(13) As used in this section, 'vocational assistance provider'
means a public or private organization or agency which provides
vocational assistance to injured workers.
{ - (14)(a) Determination of eligibility for vocational
assistance does not entitle all workers to the same type or
extent of assistance. - }
{ - (b) Training shall not be provided to an eligible worker
solely because the worker cannot obtain employment, otherwise
suitable, that will produce the wage prescribed in subsection (6)
of this section unless such training will enable the worker to
find employment which will produce a wage significantly closer to
that prescribed in subsection (6) of this section. - }
{ - (c) Nothing in this section shall be interpreted to
expand the availability of training under this section. - }
{ - (15) - } { + (14) + } A physical capacities evaluation
shall be performed in conjunction with vocational assistance or
determination of eligibility for such assistance at the request
of the insurer or self-insured employer or worker. Such request
shall be made to the attending physician. The attending
physician, within 20 days of the request, shall perform a
physical capacities evaluation or refer the worker for such
evaluation or advise the insurer or self-insured employer and the
worker in writing that the injured worker is incapable of
participating in a physical capacities evaluation.
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