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DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,

WORKERS' COMPENSATION DIVISION










 

DIVISION 120
VOCATIONAL ASSISTANCE TO INJURED WORKERS
 436-120-0001

Authority
for Rules
The director has
adopted OAR 436-120 by the director's authority under ORS 656.340 and 656.726(4).
Stat. Auth.: ORS
656.340(9) & 656.726(4)

Stats. Implemented:
ORS 656.262(6), 656.268, 656.283(2), 656.313, 656.331(1)(b), 656.340, 656.447, 656.740,
656.745, 183 & Sec. 15, Ch. 600, OL 1985

Hist.: WCB
6-1973, f. 12-20-73, ef. 1-11-74; WCB 45-1974(Temp), f. & ef. 11-5-74; WCD 4-1975(Admin),
f. 2-6-75, ef. 2-25-75; WCB 1-1976, f. 3-29-76, ef. 4-1-76; WCD 3-1977(Admin)(Temp),
f. 9-29-77, ef. 10-4-77; WCD 1-1978(Admin), f. & ef. 2-1-78; WCD 6-1980(Admin),
f. 5-22-80, ef. 6-1-80; WCD 11-1982(Admin)(Temp), f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin),
f. & ef. 6-30-83; WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; Renumbered from
436-061-0003, 5-1-85; WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; WCD 11-1987, f.
12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95; WCD 4-2001, f.
4-13-01, cert. ef. 5-15-01; WCD 5-2010, f. 9-15-10, cert. ef. 11-15-10; WCD 5-2012,
f. 10-3-12, cert. ef. 11-1-12
436-120-0002
Purpose of
Rules
The purpose of these
rules is to prescribe uniform standards for determining eligibility, delivery and
payment for vocational services to injured workers, procedures for resolving disputes,
and to establish standards for the certification of vocational counselors and providers.
Stat. Auth.: ORS
656.340(9) & 656.726(4)

Stats. Implemented:
ORS 656.012(2)(c), 656.258, 656.268(1), 656.283, 656.340 & Sec. 15, Ch. 600,
OL 1985

Hist.: WCD
11-1982(Admin)(Temp), f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin), f. & ef. 6-30-83;
WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; Renumbered from 436-061-0008, 5-1-85;
WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; WCD 11-1987, f. 12-17-87, ef. 1-1-88;
WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00;
WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-120-0003
Applicability
of Rules
(1) These rules
govern vocational assistance under the workers' compensation law on or after the
effective date of these rules except as OAR 436-120 otherwise provides.
(2) The director's
decisions under OAR 436-120-0008 regarding eligibility will be based on the rules
in effect on the date the insurer issued the notice. The director's decisions regarding
the nature and extent of assistance will be based on the rules in effect at the
time the assistance was provided. If the director orders future assistance, such
assistance must be provided in accordance with the rules in effect at the time assistance
is provided.
(3) Under
these rules a claim for aggravation or reopening a claim to process a newly accepted
condition will be considered a new claim for purposes of vocational assistance eligibility
and vocational assistance, except as otherwise provided in these rules.
(4) Under
ORS 656.206, when a worker receiving permanent total disability incurs a new compensable
injury, the worker is not entitled to vocational assistance.
(5) The requirement
for the director's advance approval of services eligible for claims cost reimbursement
pursuant to OAR 436-120-0720(7) will apply to any actions taken after the effective
date of these rules.
(6) The director
may waive procedural rules as justice requires, unless otherwise obligated by statute.
(7) Timeliness
of any document required by these rules to be filed or submitted to the division
is determined as follows:
(a) If a
document is mailed, it will be considered filed on the date it is postmarked.
(b) If a
document is faxed or e-mailed, it must be received by the division by 11:59 p.m.
Pacific time to be considered filed on that date.
(c) If a
document is delivered, it must be delivered during regular business hours to be
considered filed on that date.
(8) Time
periods allowed for a filing or submission to the division are calculated in calendar
days. The first day is not included. The last day is included unless it is a Saturday,
Sunday, or legal holiday. In that case, the period runs until the end of the next
day that is not a Saturday, Sunday, or legal holiday. Legal holidays are those listed
in ORS 187.010 and 187.020.
Stat. Auth.: ORS
656.340(9) & 656.726(4)

Stats. Implemented:
ORS 656.283(2) & 656.340

Hist.: WCB
1-1976, f. 3-29-76, ef. 4-1-76; WCD 3-1977(Admin)(Temp), f. 9-29-77, ef. 10-4-77;
WCD 1-1978(Admin), f. & ef. 2-1-78; WCD 6-1980(Admin), f. 5-22-80, ef. 6-1-80;
WCD 4-1981(Admin), f. 12-4-81, ef. 1-1-82; WCD 11-1982(Admin)(Temp), f. 12-29-82,
ef. 1-1-83; WCD 2-1983(Admin), f. & ef. 6-30-83; WCD 5-1983(Admin), f. 12-14-83,
ef. 1-1-84; Renumbered from 436-061-0004, 5-1-85; WCD 7-1985(Admin), f. 12-12-85,
ef. 1-1-86; WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94, cert.
ef. 1-1-95; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00, cert.
ef. 6-1-00; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD 7-2002, f. 5-30-02, cert.
ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 8-2005, f. 12-6-05, cert.
ef. 1-1-06; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 5-2012, f. 10-3-12, cert.
ef. 11-1-12
436-120-0005
Definitions
Except where the context requires otherwise,
the construction of these rules is governed by the definitions given in the workers’
compensation law and as follows:
(1) “Administrative
approval” means approval of the director.
(2) “Authorized return
to work plan” means a completed return-to-work plan form (Form 1081 for training
or Form 1083 for direct employment), signed by the worker, the insurer, and the
vocational counselor who developed the plan.
(3) “Cost-of-living
matrix” is a chart issued annually by the director in Bulletin 124 that publishes
the conversion factors, effective July 1 of each year, used to adjust for changes
in the cost-of-living rate from the date of injury to the date of calculation. The
conversion factor is based on the annual percentage increase or decrease in the
average weekly wage, as defined in ORS 656.211.
(4) “Delivered”
means physical delivery to the Workers’ Compensation Division during regular
business hours.
(5) “Director”
means the director of the Department of Consumer and Business Services, or the director’s
delegate for the matter.
(6) “Division”
refers to the Workers’ Compensation Division of the Department of Consumer
and Business Services.
(7) “Employer at injury”
means an employer in whose employ the worker sustained the compensable injury or
occupational disease.
(8) “Filed” means
mailed, faxed, e-mailed, delivered, or otherwise submitted to the division in a
method allowable under these rules.
(9) “Insurer”
means the State Accident Insurance Fund, an insurer authorized under ORS chapter
731 to transact workers’ compensation insurance in Oregon, or a self-insured
employer. A vocational assistance provider acting as the insurer’s delegate
may provide notices and warnings required by OAR 436-120.
(10) “Likely eligible”
means the worker will be unable to return to regular or other suitable work with
the employer-at-injury or aggravation or is unable to perform all of the duties
of the regular or suitable work and it is reasonable to believe that the barriers
are caused by the injury or aggravation.
(11) “Mailed”
means postmarked to the last known address.
(12) “Permanent employment”
is a job with no projected end date or a job that had no projected end date at time
of hire. Permanent employment may be year-round or seasonal.
(13) “Physical demand
characteristics of work” strength rating: The physical demands strength rating
reflects the estimated overall strength requirements of the job, which are considered
to be important for average, successful work performance. The following definitions
are used: “occasionally” is an activity or condition that exists up
to 1/3 of the time; “frequently” is an activity or condition that exists
from 1/3 to 2/3 of the time; “constantly” is an activity or condition
that exists 2/3 or more of the time.
(a) Sedentary work (S): Exerting
up to 10 pounds of force occasionally or a negligible amount of force frequently
to lift, carry, push, pull, or otherwise move objects, including the human body.
Sedentary work involves sitting most of the time, but may involve walking or standing
for brief periods of time. Jobs are sedentary if walking and standing are required
only occasionally and all other sedentary criteria are met.
(b) Light work (L): Exerting
up to 20 pounds of force occasionally, or up to 10 pounds of force frequently, or
a negligible amount of force constantly to move objects. Physical demand requirements
are in excess of those for sedentary work. Even though the weight lifted may be
only a negligible amount, a job should be rated light work:
(A) When it requires walking
or standing to a significant degree;
(B) When it requires sitting
most of the time but entails pushing or pulling of arm or leg controls; or
(C) When the job requires
working at a production rate pace entailing the constant pushing or pulling of materials
even though the weight of those materials is negligible.
NOTE: The constant stress and strain
of maintaining a production rate pace, especially in an industrial setting, can
be and is physically demanding of a worker even though the amount of force exerted
is negligible.
(c) Medium work (M): Exerting 20 to
50 pounds of force occasionally, or 10 to 25 pounds of force frequently, or greater
than negligible up to 10 pounds of force constantly to move objects. Physical demand
requirements are in excess of those for light work.
(d) Heavy work (H): Exerting
50 to 100 pounds of force occasionally, or 25 to 50 pounds of force frequently,
or 10 to 20 pounds of force constantly to move objects. Physical demand requirements
are in excess of those for medium work.
(e) Very heavy (VH): Exerting
in excess of 100 pounds of force occasionally, or in excess of 50 pounds of force
frequently, or in excess of 20 pounds of force constantly to move objects. Physical
demand requirements are in excess of those for heavy work.
(14) “Reasonable cause”
may include, but is not limited to, a medically documented limitation in a worker’s
activities due to illness or medical condition of the worker or the worker’s
family, financial hardship, incarceration for less than six months, or circumstances
beyond the reasonable control of the worker. “Reasonable cause” for
failure to provide information or participate in activities related to vocational
assistance will be determined based upon individual circumstances of the case.
(15) “Reasonable labor
market”: An occupation can be said to have reasonable employment opportunities
if competitively qualified workers can expect to find equivalent jobs in the occupation
within a reasonable period of time. A reasonable period of time, for workers in
the majority of occupations, would be the six months that they could collect regular
unemployment insurance benefits, if they were entitled to them.
(16) “Regular employment”
means the employment the worker held at the time of the injury or at the time of
the claim for aggravation, whichever gave rise to the potential eligibility for
vocational assistance; or, for a worker not employed at the time of aggravation,
the employment the worker held on the last day of work prior to the aggravation
claim. If the basis for potential eligibility is a reopening to process a newly
accepted condition, “regular employment” is the employment the worker
held at the time of the injury; when the condition arose after claim closure, “regular
employment” is determined as if it were an aggravation claim.
(17) “Substantial handicap
to employment,” as determined under OAR 436-120-0340, means the worker, because
of the injury or aggravation, lacks the necessary physical capacities, knowledge,
skills and abilities to be employed in suitable employment. “Knowledge,”
“skills,” and “abilities” have meanings as follows:
(a) “Knowledge”
means an organized body of factual or procedural information derived from the worker’s
education, training, and experience.
(b) “Skills”
means the demonstrated mental and physical proficiency to apply knowledge.
(c) “Abilities”
means the cognitive, psychological, and physical capability to apply the worker’s
knowledge and skills.
(18) “Suitable employment”
or “suitable job” means employment or a job:
(a) For which the worker
has the necessary physical capacities, knowledge, skills and abilities;
(b) Located where the worker
customarily worked, or within reasonable commuting distance of the worker’s
residence. A reasonable commuting distance is no more than 50 miles one-way modified
by other factors including, but not limited to:
(A) Wage of the job. A low
wage may justify a shorter commute;
(B) The pre-injury commute;
(C) The worker’s physical
capacities, if they restrict the worker’s ability to sit or drive for 50 miles;
(D) Commuting practices of
other workers who live in the same geographic area; and
(E) The distance from the
worker’s residence to the nearest cities or towns that offer employment opportunities;
(c) That pays or would average
on a year-round basis a suitable wage as defined in section (19) of this rule;
(d) That is permanent. Temporary
work is suitable if the worker’s job at injury was temporary; and the worker
has transferable skills to earn, on a year-round basis, a suitable wage as defined
in section (19) of this rule;
(e) For which a reasonable
labor market as described under OAR 436-120-0340 is documented to exist; and
(f) That is modified or new
employment resulting from an employer at injury activated use of the Preferred Worker
Program, under OAR 436-110:
(A) Nine months from the
effective date of the premium exemption if there are no worksite modifications,
or
(B) Twelve months from the
date the department determines the worksite modification is complete, or
(C) If the worker is terminated
for cause, or
(D) If the worker voluntarily
resigns for a reason unrelated to the work injury.
(19) “Suitable wage”
means:
(a) For the purpose of determining
eligibility for vocational assistance, a wage at least 80 percent of the adjusted
weekly wage as defined in OAR 436-120-0007.
(b) For the purpose of providing
or ending vocational assistance, a wage as close as possible to 100 percent of the
adjusted weekly wage. This wage may be considered suitable if less than 80 percent
of the adjusted weekly wage, if the wage is as close as possible to the adjusted
weekly wage.
(20) “Training”
means a vocational rehabilitation service provided to a worker who is enrolled and
actively engaged in an approved “Return-to-Work Plan; Training” as documented
on Form 1081.
(21) “Transferable
skills” means the knowledge and skills demonstrated in past training or employment
that make a worker employable in suitable new employment. More general characteristics
such as aptitudes or interests do not, by themselves, constitute transferable skills.
(22) “Vocational assistance”
means any of the services, goods, allowances, and temporary disability compensation
under these rules to assist an eligible worker return to work. This does not include
activities for determining a worker’s eligibility for vocational assistance.
(23) “Vocational assistance
provider” means an insurer or other public or private organization, registered
under these rules to provide vocational assistance to injured workers.
Stat. Auth.: ORS 656.340(9) & 656.726(4)
Stats. Implemented: ORS 656.340
Hist.: WCB 7-1966, f. &
ef. 6-30-66;WCB 6-1973, f. 12-20-73, ef. 1-11-74; WCB 45-1974(Temp), f. & ef.
11-5-74; WCD 4-1975(Admin), f. 2-6-75, ef. 2-25-75; WCB 1-1976, f. 3-29-76, ef.
4-1-76; WCD 3-1977(Admin)(Temp), f. 9-29-77, ef. 10-4-77; WCD 1-1978(Admin), f.
& ef. 2-1-78; WCD 6-1980(Admin), f. 5-22-80, ef. 6-1-80; WCD 4-1981(Admin),
f. 12-4-81, ef. 1-1-82; WCD 11-1982(Admin)(Temp), f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin),
f. & ef. 6-30-83; WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; Renumbered from
436-061-0005, 5-1-85; WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; WCD 11-1987, f.
12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95; WCD 6-1996, f.
2-6-96, cert. ef. 3-1-96; WCD 23-1996, f. 12-13-96, cert. ef. 2-1-97; WCD 6-2000,
f. 4-27-00, cert. ef. 6-1-00; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD 14-2001(Temp),
f. 12-17-01, cert. ef. 1-2-02 thru 6-30-02; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02;
WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10;
WCD 5-2010, f. 9-15-10, cert. ef. 11-15-10; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12;
WCD 1-2015, f. 1-29-15, cert. ef. 3-1-15
436-120-0006
Administration
of Rules
(1) At any time,
the director may order the insurer to determine eligibility or provide specified
vocational assistance to achieve compliance with ORS chapter 656 and these rules.
The order may be appealed as provided by statute.
(2) Orders
issued by the division in carrying out the director's authority to administer and
to enforce ORS chapter 656 and these rules are considered orders of the director.
Stat. Auth.: ORS
656.340(9), 656.726(4)

Stats. Impemented:
ORS 656.313, 636.340

Hist.: WCB
6-1973, f. 12-20-73, ef. 1-11-74; WCB 45-1974(Temp), f. & ef. 11-5-74; WCD 4-1975(Admin),
f. 2-6-75, ef. 2-25-75; WCB 1-1976, f. 3-29-76, ef. 4-1-76; WCD 3-1977(Admin)(Temp),
f. 9-29-77, ef. 10-4-77; WCD 1-1978(Admin), f. & ef. 2-1-78; WCD 6-1980(Admin),
f. 5-22-80, ef. 6-1-80; WCD 11-1982(Admin)(Temp), f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin),
f. & ef. 6-30-83; WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; Renumbered from
436-061-0003, 5-1-85; Renumbered from 436-061-0191, 5-1-85; WCD 7-1985(Admin), f.
12-12-85, ef. 1-1-86; WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94,
cert. ef. 1-1-95; WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94,
cert. ef. 1-1-95, Renumbered from 436-120-0001 & 436-120-0210; WCD 6-1996, f.
2-6-96, cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 7-2002,
f. 5-30-02, cert. ef. 7-1-02; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-120-0007
Establishing
the Adjusted Weekly Wage to Determine Suitable Wage
To determine a suitable
wage as defined in OAR 436-120-0005 the insurer must first establish the adjusted
weekly wage as described in this rule. The insurer must calculate the "adjusted
weekly wage" whenever determining or redetermining a worker's eligibility.
(1) For the
purposes of this rule, the following definitions apply:
(a) "Adjusted
weekly wage" is the wage currently paid as calculated under this rule.
(b) "Cost-of-living
adjustments" or "collective bargaining adjustments" are increases or decreases in
the wages of all workers performing the same or similar jobs for a specific employer.
These adjustments are not variations in wages based on skills, merit, seniority,
length of employment, or number of hours worked.
(c) "Earned
income" means gross wages, salary, tips, commissions, incentive pay, bonuses, and
the reasonable value of other consideration (housing, utilities, food, etc.) received
from all employers for services performed from all jobs held at the time of injury
or aggravation. Earned income also means gross earnings from self- employment after
deductions of business expenses excluding depreciation. Earned income does not include
fringe benefits such as medical, life or disability insurance, employer contributions
to pension plans, or reimbursement of the worker's employment expenses such as mileage
or equipment rental.
(d) "Job
at aggravation" means the job or jobs the worker held on the date of the aggravation
claim; or, for a worker not employed at time of aggravation, the last job or concurrent
jobs held prior to the aggravation. Volunteer work does not constitute a job for
purposes of this subsection.
(e) "Job
at injury" is the job on which the worker originally sustained the compensable injury.
For an occupational disease, the job at injury is the job the worker held at the
time there is medical verification that the worker is unable to work because of
the disability caused by the occupational disease.
(f) "Permanent,
year-round employment" is permanent employment in which the worker worked or was
scheduled or projected to work in 48 or more calendar weeks a year. Paid leave is
counted as work time. Permanent year-round employment includes trial service. It
does not include employment with an annual salary set by contract or self-employment.
(g) “Temporary
disability” means wage loss replacement for the job at injury.
(h) "Trial
service" is employment designed to lead automatically to permanent, year-round employment
subject only to the employee's satisfactory performance during the trial service
period.
(2) The insurer
must determine the nature of the job at injury or the job or jobs at aggravation
by contacting the employer or employers to verify the worker's employment status.
All figures used in determining a weekly wage by this method must be supported by
verifiable documentation such as the worker's state or federal tax returns, payroll
records, or reports of earnings or unemployment insurance payments from the Employment
Department. The insurer must calculate the worker's adjusted weekly wage as described
by this rule.
(3) When
the job at injury or the job at aggravation was temporary or seasonal, calculate
the worker's average weekly wage as follows, then convert to the adjusted weekly
wage as described in section (6) of this rule:
(a) When
the worker's regular employment is the job at injury and the worker did not hold
more than one job at the time of injury, and did not receive unemployment insurance
benefits during the 52 weeks prior to the injury, the worker’s average weekly
wage is the same as the wage upon which temporary disability is based.
(b) When
the worker's regular employment is the job at aggravation and the worker did not
hold more than one job at the time of aggravation, and did not receive unemployment
insurance benefits during the 52 weeks prior to the aggravation, the worker’s
average weekly wage is calculated using the same methods used to calculate temporary
disability as described in OAR 436-060-0025.
(c) If the
worker held more than one job at the time of the injury or aggravation, and did
not receive unemployment insurance payments during the 52 weeks prior to the date
of the injury or aggravation, divide the worker's earned income by the number of
weeks the worker worked during the 52 weeks prior to the date of injury or aggravation.
(d) If the
worker held one or more jobs at the time of the injury or aggravation, and received
unemployment insurance payments during the 52 weeks prior to the date of the injury
or aggravation, combine the earned income with the unemployment insurance payments
and divide the total by the number of weeks the worker worked and received unemployment
insurance payments during the 52 weeks prior to the date of the injury or aggravation.
(4) When
the job at injury was other than as described in section (3) of this rule, use the
weekly wage upon which temporary disability was based, and then convert the weekly
wage to the adjusted weekly wage as described in section (6) of this rule.
(5) When
the job at aggravation was other than as described in section (3) of this rule,
the worker's average weekly wage is calculated using the same methods used to calculate
temporary disability as described in OAR 436-060-0025, and then converting to the
adjusted weekly wage as described in section (6) of this rule.
(6) Adjusted
weekly wage: After arriving at the weekly wage under this rule, establish the adjusted
weekly wage by determining the percentage increase or decrease from the date of
injury or aggravation, or last day worked prior to aggravation, to the date of calculation,
as follows:
(a) Contact
the employer at injury regarding any cost-of-living or collective bargaining adjustments
for workers performing the same job. Adjust the worker's weekly wage by any percentage
increase or decrease;
(b) If the
employer at injury is no longer in business and the worker's job was covered by
a union contract, contact the applicable union for any cost-of-living or collective
bargaining adjustments. Adjust the worker's weekly wage by the percentage increase
or decrease;
(c) If the
employer at injury is no longer in business or does not currently employ workers
in the same job category, adjust the worker’s weekly wage by the appropriate
factor from the cost-of-living matrix; or
(d) If the
worker’s regular employment was the employment the worker held at the time
of aggravation, adjust the worker's weekly wage by the appropriate factor from the
cost-of-living matrix.
Stat. Auth.: ORS
656.340(9) & 656.726(4)

Stats. Implemented:
ORS 656.340(5) & (6)

Hist.: WCD
11-1987, f. 12-17-87, ef. 1-1-88, 436-120-0030 Renumbered to 436-120-0075; WCD 10-1994,
f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0025; WCD 6-1996, f. 2-6-96,
cert. ef. 3-1-96; Renumbered from 436-120-0310, WCD 6-2000, f. 4-27-00, cert. ef.
6-1-00; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD 14-2001(Temp), f. 12-17-01,
cert. ef. 1-2-02 thru 6-30-02; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 6-2005,
f. 6-9-05, cert. ef. 7-1-05; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009,
f. 12-1-09, cert. ef. 1-1-10; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-120-0008
Administrative Review and Contested Cases
(1) Administrative review of vocational assistance matters: Under ORS 656.340(16), a worker wanting review of any vocational assistance matter must apply to the director for administrative review. Also, under ORS 656.340(11) and OAR 436-120-0185(1) when the worker and insurer are unable to agree on a vocational assistance provider, the insurer must apply to the director for administrative review. Because effective vocational assistance is best realized in a nonadversarial environment, the first objective of the administrative review is to bring the parties to resolution through alternative dispute resolution procedures, including mediation conferences, whenever possible and appropriate. When a dispute is not resolved through mutual agreement or dismissal, the director will close the record and issue a Director's Review and Order as described in subsections (f) and (g) of this section. A worker need not be represented to request or to participate in the administrative review process, which is as follows:
(a) The worker's request for review must be mailed or otherwise communicated to the department no later than the 60th day after the date the worker received written notice of the insurer's action; or, if the worker was represented at the time of the notice, within 60 days of the date the worker's representative received actual notice. Issues raised by the worker where written notice was not provided may be reviewed at the director's discretion.
(b) The worker, insurer, employer at injury, and vocational assistance provider must supply needed information, attend conferences and meetings, and participate in the administrative review process as required by the director. Upon the director's request, any party to the dispute must provide available information within 14 days of the request. The insurer must promptly schedule, pay for, and submit to the director any medical or vocational tests, consultations, or reports required by the director. The worker, insurer, employer at injury, or vocational assistance provider must simultaneously send copies to the other parties to the dispute when sending material to the director. If necessary, the director will assist an unrepresented worker in sending copies to the appropriate parties. Failure to comply with this subsection may result in the following:
(A) If the worker fails to comply without reasonable cause, the director may dismiss the administrative review as described in subsection (d); or, the director may decide the issue on the basis of available information.
(B) If the insurer, vocational assistance provider, or employer at injury fails to comply without reasonable cause, the director may decide the issue on the basis of available information.
(c) At the director's discretion, the director may issue an order of deferral to temporarily suspend administrative review. The order of deferral will specify the conditions under which the review will be resumed.
(d) The director may issue an order of dismissal under appropriate conditions.
(e) The director will issue a letter of agreement when the parties resolve a dispute within the scope of these rules. Any agreement may include an agreement on attorney fees, if any, to be paid to the worker’s attorney. The agreement will become effective on the 10th day after the letter of agreement is issued unless the agreement specifies otherwise. Once the agreement becomes final, the director may reconsider approval of the agreement upon the director's own motion or upon a motion by a party. The director may revise the agreement or reinstate the review only under one or more of the following conditions:
(A) One or both parties fail to honor the agreement;
(B) The agreement was based on misrepresentation;
(C) Implementation of the agreement is not feasible because of unforeseen circumstances; or
(D) All parties request revision or reinstatement of the review.
(f) After the parties have had the opportunity to present evidence, and any meetings or conferences deemed necessary by the director have been held, the director will issue a final order. The parties have 60 days from the date the order is issued to request a hearing. An order is issued on the date it is mailed.
(g) The director may on the director's own motion reconsider or withdraw any order that has not become final by operation of law. A party also may request reconsideration of an administrative order upon an allegation of error, omission, misapplication of law, incomplete record, or the discovery of new material evidence that could not reasonably have been discovered and produced during the review. The director may grant or deny a request for reconsideration at the director's sole discretion. A request for reconsideration must be mailed before the administrative order becomes final, or if appealed, before the proposed and final order is issued.
(h) During any reconsideration of the administrative review order, the parties may submit new material evidence consistent with this rule and may respond to such evidence submitted by others.
(i) Any party requesting reconsideration or responding to a reconsideration request must simultaneously notify all other interested parties of their contentions and provide them with copies of all additional information presented.
(j) A request for reconsideration does not stay the 60-day time period within which the parties may request a hearing.
(2) Attorney fees will be awarded as provided in ORS 656.385(1) and OAR 436-001-0400 to 436-001-0440.
(3) Hearings before an administrative law judge:
(a) Under ORS 656.340(16) and 656.704(2), any party that disagrees with an order issued under subsection (1)(f) of this rule or a dismissal issued under subsection (1)(d) of this rule may request a hearing by filing a request for hearing as provided in OAR 436-001-0019 within 60 days of the mailing date of the order.
(b) Under ORS 656.704(2), any party that disagrees with an order of dismissal based on lack of jurisdiction under subsection (1)(d) of this rule or department denial of reimbursement for vocational assistance costs may request a hearing by filing a request for hearing as provided in OAR 436-001-0019 within 30 days after the party received the dismissal or written denial.
(c) Under ORS 656.704(2), an insurer sanctioned under OAR 436-120-0900, a vocational assistance provider or certified individual sanctioned under ORS 656.340(9) and OAR 436-120-0915, a vocational assistance provider denied registration under ORS 656.340(9)(a) and OAR 436-120-0800, or an individual denied certification under ORS 656.340(9)(a) and OAR 436-120-0810 may request a hearing by filing a request for hearing as provided in OAR 436-001-0019 no later than 60 days after the party received notification of the action.
(d) OAR 436-001 applies to the hearing.
(4) Contested case hearings of civil penalties: Under ORS 656.740 an insurer or an employer may appeal a proposed order or proposed assessment of civil penalty under ORS 656.745 and OAR 436-120-0900 as follows:
(a) The insurer or employer must send the request for hearing in writing to the administrator of the Workers' Compensation Division. The request must specify the grounds upon which the proposed order or assessment is contested.
(b) The party must file the request with the division within 60 days after the mailing date of the notice of the proposed order or assessment.
(c) The division will forward the request and other pertinent information to the Hearings Division of the Workers' Compensation Board.
(d) The Hearings Division will conduct the hearing in accordance with ORS 656.740 and ORS chapter 183.
[ED. NOTE: Matrix referenced are available from the agency.]
Stat. Auth.: ORS 656.704(2) & 656.726(4)

Stats. Implemented: ORS 656.704, 656.340, 656.447, 656.740, 656.745

Hist.: WCD 9-1982(Admin), f. 5-28-82, ef. 6-1-82; WCD 2-1983(Admin), f. & ef. 6-30-83; Renumbered from 436-061-0970, 5-1-85; WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; Renumbered from 436-061-0191, 5-1-85; WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0210 & 436-120-0260; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 23-1996, f. 12-13-96, cert. ef. 2-1-97; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD 14-2001(Temp), f. 12-17-01, cert. ef. 1-2-02 thru 6-30-02; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 14-2003(Temp), f. 12-15-03, cert. ef. 1-1-04 thru 6-28-03; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; WCD 5-2010, f. 9-15-10, cert. ef. 11-15-10
436-120-0012
General Requirements For Notices and Warnings
(1) All notices
and warnings to the worker issued under OAR 436-120 must:
(a) Be in
writing, signed, and dated.
(b) State
the basis for the decision.
(c) Include
the effective date of each action in the heading.
(d) Cite
the relevant rule(s).
(e) Include
the worker's appeal rights. All notices and warnings except those notifying a worker
of entitlement to training or deferral of vocational assistance eligibility must
contain the worker's appeal rights in bold type, as follows:
“If you disagree
with this decision, you should contact (insert the person's name and the insurer
name) within five days of receiving this letter to discuss your concerns. If you
are still dissatisfied, you must contact the Workers' Compensation Division within
60 days of receiving this letter or you will lose your right to appeal this decision.
A consultant with the division can talk with you about the disagreement and, if
necessary, will review your appeal. The address and telephone number of the division
are: Employment Services Team, Workers’ Compensation Division, P.O. Box 14480,
Salem, Oregon 97309-0405; 503-947-7816 or 1-800-452-0288 ext. 1719.”
(f) Include the
telephone number of the Ombudsman for Injured Workers: 1-800-927-1271; and
(g) Be mailed
to the worker by both regular and certified mail.
(2) All copies
of notices must be mailed to the worker's legal representative. Failure to send
a copy to the worker's legal representative stays the appeal period until the worker's
legal representative receives a copy of the notice.
(3) Unless
otherwise indicated under OAR 436-120-0017, copies of all notices must be mailed
to the division at the same time they are mailed to the worker.
Stat. Auth.: ORS
656.340(9), 656.726(4)

Stats. Implemented:
ORS 656.340

Hist.: WCD
6-2000, f. 4-27-00, cert. ef. 6-1-00, Renumbered from 436-120-0600, 436-120-0610
& 436-120-0620 [WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94,
cert. ef. 1-1-95; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 7-2002, f. 5-30-02,
cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 6-2005, f. 6-9-05,
cert. ef. 7-1-05; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09,
cert. ef. 1-1-10; Renumbered from 436-120-0004, WCD 5-2010, f. 9-15-10, cert. ef.
11-15-10; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-120-0014
Notification of Employment and Reinstatement Rights and Responsibilities
(1) The insurer must inform a worker with a compensable injury of the employment reinstatement rights and responsibilities under ORS chapter 659A and this rule:
(a) When the claim is accepted under ORS 656.262(6);
(b) When the insurer contacts the worker under OAR 436-120-0115 about the need for vocational assistance under ORS 656.340(2); and
(c) Within five days of receiving notification that the attending physician has released the worker to go back to work, under ORS 656.340(3).
(2) The insurer must inform the employer about the worker’s reemployment rights within five days of receiving notification of the attending physician’s release of the worker to return to work, under ORS 656.340(3).
Stat. Auth.: ORS 656.340(9), 656.726(4)

Stats. Implemented.: ORS 656.340

Hist.: WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00, Renumbered from 436-120-0600, 436-120-0610 & 436-120-0620 [WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; Renumbered from 436-120-0004, WCD 5-2010, f. 9-15-10, cert. ef. 11-15-10
436-120-0016
Warning Letters
(1) A warning letter
can be issued at any time during the vocational eligibility evaluation or vocational
assistance process.
(2) Warning
letters do not require specific language in the headings but must include a heading
clearly indicating the purpose of the warning.
(3) A warning
letter must state what the worker must do, and by when, to avoid ineligibility or
the ending of eligibility or training.
(4) A warning
letter must include the worker’s appeal rights under OAR 436-120-0012(1)(e).
Stat. Auth.: ORS
656.340(9), 656.726(4)

Stats. Implemented:
ORS 656.340

Hist.: WCD
6-2000, f. 4-27-00, cert. ef. 6-1-00, Renumbered from 436-120-0600, 436-120-0610
& 436-120-0620 [WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94,
cert. ef. 1-1-95; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 7-2002, f. 5-30-02,
cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 6-2005, f. 6-9-05,
cert. ef. 7-1-05; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09,
cert. ef. 1-1-10; Renumbered from 436-120-0004, WCD 5-2010, f. 9-15-10, cert. ef.
11-15-10; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-120-0017
Types of
Notices
When the insurer
takes any of the actions listed below, it must issue the corresponding notices,
using the headings listed in this rule. If a notice is used for more than one purpose,
it must include all the headings that apply:
(1) The NOTICE
OF ELIGIBILITY must:
(a) Include
the date the worker became eligible.
(b) Inform
the worker which category of vocational assistance the insurer will provide:
(A) NOTICE
OF ELIGIBILITY FOR VOCATIONAL ASSISTANCE and NOTICE OF ENTITLEMENT TO TRAINING,
or
(B) NOTICE
OF ELIGIBILITY FOR VOCATIONAL ASSISTANCE and NOTICE OF ENTITLEMENT TO DIRECT EMPLOYMENT
SERVICES.
(c) Include
the worker's rights and responsibilities;
(d) Include
the following statement in bold type:
“You have
the right to request a return-to-work plan conference if the insurer does not approve
a return-to-work plan within 90 days of determining you entitled to a training plan,
or within 45 days of determining you entitled to a direct employment plan. The purpose
of the conference will be to identify and remove all obstacles to return-to-work
plan completion and approval. The insurer, the worker, the plan developer, and any
other parties involved in the return-to-work process must attend the conference.
The insurer or the worker may request a conference with the division if other delays
in the vocational rehabilitation process occur. Your request for this conference
should be directed to the Employment Services Team of the Workers’ Compensation
Division. The address and telephone number of the division are: Employment Services
Team, Workers’ Compensation Division, P.O. Box 14480, Salem, Oregon 97309-0405;
503-947-7816 or 1-800-452-0288 ext. 1719.”
(e) Include the
current list of vocational assistance providers (published with Bulletin 151), and
explain that the worker and the insurer must agree on the selection of a vocational
assistance provider.
(f) Include
the following language in bold type:
“If you
have questions about the vocational counselor selection process, contact (use appropriate
reference to the insurer). If you still have questions, call the Workers' Compensation
Division at 1-800-452-0288 ext. 1719.”
(g) Include information
about the Preferred Worker Program.
(h) Explain
what the worker can do if he or she disagrees with something the insurer does.
(i) Explain
direct employment services and state the worker is not entitled to training, if
the worker is entitled to direct employment services but not training.
(2) The NOTICE
OF INELIGIBILITY FOR VOCATIONAL ASSISTANCE must:
(a) Include
information about services which may be available at no cost from the Employment
Department or the Office of Vocational Rehabilitation Services.
(b) Include
a brief description of the Preferred Worker Program benefits, and contact information.
The information can be part of the notice, or a separate document attached to the
notice.
(c) Include
a list of suitable occupations the worker can perform without being retrained, if
the notice is based on a finding of “no substantial handicap.”
(3) The NOTICE
OF DEFERRAL OF VOCATIONAL ASSISTANCE ELIGIBILITY DETERMINATION must:
(a) Inform
the worker the insurer deferred the vocational eligibility process because the employer
at injury has activated preferred worker benefits.
(b) Inform
the worker that, if the job with the employer at injury does not begin on the hire
date listed in the job offer letter, the worker can ask the insurer, within 30 days,
to determine vocational eligibility.
(c) Include
the following language in bold type:
“If
you have questions about the deferral of the vocational eligibility process, contact
(use appropriate reference to the insurer). If you still have questions contact
the Workers' Compensation Division's toll free number 1-800-452-0288 ext. 1719.”
(4) The NOTICE
OF DENIAL OF VOCATIONAL ASSISTANCE BENEFITS must:
(a) Identify
what vocational assistance benefits the insurer denies and explain why. This notice
is not to be used for finding a worker ineligible or ending a worker’s eligibility
for vocational assistance.
(b) Explain
why the insurer denies the proposed return-to-work plan, if the notice is used for
that purpose.
(5) The NOTICE
OF END OF TRAINING:
(a) Must
include the date the training plan ended. The effective date is the worker’s
last date of attendance.
(b) Must
state whether the worker is entitled to further training.
(c) Does
not have to be submitted to the division.
(6) The NOTICE
OF END OF ELIGIBILITY FOR VOCATIONAL ASSISTANCE:
(a) Must
include the date when eligibility ended. The effective date is the worker’s
last date of eligibility.
(b) Must
include the reason the worker’s eligibility for vocational assistance is ending.
However, this notice is not required if the insurer is ending the worker’s
eligibility because the worker has given up his or her vocational assistance rights
through a claims disposition agreement.
(c) Does
not have to be submitted to the division.
(7) The NOTICE
OF SELECTION OF VOCATIONAL ASSISTANCE PROVIDER, must be issued when a vocational
assistance provider is agreed upon by the worker and the insurer.
(8) The NOTICE
OF CHANGE OF VOCATIONAL ASSISTANCE PROVIDER, must be issued anytime there is a change
in vocational assistance provider.
(9) The return-to-work
plan and amendments must:
(a) Be reported
using Form 1081, Return-to-Work Plan, Training, or Form 1083 Return-to-Work Plan,
Direct Employment.
(b) Indicate
what the changes are and why they are necessary, if the insurer amends the proposed
plan.
(10) The
Vocational Closure Report (Form 2800) must:
(a) Include
the effective date for the end of eligibility.
(b) Include
the reason for the end of eligibility.
(c) Include
return-to-work and vocational assistance provider information.
(d) Be issued
for each eligible worker within 30 days after eligibility ends.
Stat. Auth.: ORS
656.340(9), 656.726(4)

Stats. Implemented:
ORS 656.340

Hist.: WCD
6-2000, f. 4-27-00, cert. ef. 6-1-00, Renumbered from 436-120-0600, 436-120-0610
& 436-120-0620 [WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94,
cert. ef. 1-1-95; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 7-2002, f. 5-30-02,
cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 6-2005, f. 6-9-05,
cert. ef. 7-1-05; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09,
cert. ef. 1-1-10; Renumbered from 436-120-0004, WCD 5-2010, f. 9-15-10, cert. ef.
11-15-10; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-120-0018
Postponement Notices
A letter informing the worker that the eligibility evaluation has been postponed does not require specific language in the headings but must include a heading clearly indicating the purpose of the letter and must:
(1) Explain the reason the worker’s eligibility evaluation is postponed.
(2) Explain to the worker in writing what information is necessary if the insurer cannot complete the vocational eligibility process because it needs more information. In that case, the insurer must state when it expects to determine eligibility or make a decision.
(3) Explain, if the worker has accepted a job offer from the employer at injury, that if the job does not begin on the hire date listed in the job offer letter, the worker can ask the insurer within 30 days to determine vocational eligibility.
(4) Be mailed to the worker within 14 days of the insurer receiving notification that the worker is likely eligible for vocational assistance.
(5) Include the following language in bold type:
“If you have questions about the postponement of the vocational eligibility process, contact (use appropriate reference to the insurer). If you still have questions contact the Workers' Compensation Division's toll free number 1-800-452-0288 ext. 1719.”
Stat. Auth.: ORS 656.340(9), 656.726(4)

Stats. Implemented: ORS 656.340

Hist.: WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00, Renumbered from 436-120-0600, 436-120-0610 & 436-120-0620 [WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; Renumbered from 436-120-0004, WCD 5-2010, f. 9-15-10, cert. ef. 11-15-10
436-120-0115
Conditions
Requiring Completion of a Vocational Eligibility Evaluation
(1) If the worker
has an accepted disabling claim, the insurer is required to begin an eligibility
evaluation within five days of any of the following conditions:
(a) The insurer
receives information that indicates the worker is likely eligible for vocational
assistance;
(b) The worker
is medically stationary, is not currently receiving vocational assistance, and:
(A) Has not
returned to or been released to regular employment; or
(B) Has not
returned to other suitable employment with the employer at the time of injury or
aggravation.
(c) The worker
enters into a claim disposition agreement, retains vocational assistance rights,
and is likely eligible for vocational assistance; or
(d) Eligibility
was previously determined under the current opening of the claim and the insurer
has accepted new condition(s).
(2) Even
if conditions in (1) are met, the insurer is not required to do an eligibility evaluation
if the worker is deceased, the worker has a permanent total disability award, or
the worker’s claim is reopened under a board’s own motion.
(3) Nothing
in these rules prevents an insurer from finding a worker eligible and providing
vocational assistance at any time.
(4) If the
insurer receives a request for vocational assistance from the worker and the insurer
is not required to determine eligibility, the insurer must notify the worker in
writing, within 14 days of the request. The notice must include at least:
(a) The reason(s)
an eligibility determination is not required;
(b) The circumstances
that, if present, would trigger a requirement to determine eligibility; and
(c) Instructions
to contact the division at 503-947-7816 or 1-800-452-0288 ext. 1719 with questions
about vocational assistance eligibility requirements and procedures.
(5) The insurer
must determine eligibility if the worker’s claim was initially denied and
is later accepted as disabling and all appeals of the denial have been exhausted.
Stat. Auth.: ORS
656.340, 656.726(4)

Stats. Implemented.:
ORS 656.340

Hist.: WCD
11-1982(Admin)(Temp), f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin), f. & ef. 6-30-83;
WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; Renumbered from 436-061-0111, 5-1-85;
WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; WCD 11-1987, f. 12-17-87, ef. 1-1-88,
Renumbered from 436-120-0060; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered
from 436-120-0035; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00,
cert. ef. 6-1-00, Renumbered from 436-120-0330 & 436-120-0370; WCD 4-2001, f.
4-13-01, cert. ef. 5-15-01; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 3-2004,
f. 3-5-04 cert. ef. 4-1-04; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2005,
f. 12-6-05, cert. ef. 1-1-06; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; Renumbered
from 436-120-0320 by WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; WCD 5-2010, f. 9-15-10,
cert. ef. 11-15-10; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-120-0125
Conditions for Postponement of the Vocational Eligibility Evaluation
(1) If the worker requested an eligibility evaluation but the insurer does not know the worker’s permanent limitations, the insurer may postpone the evaluation until the worker’s permanent restrictions are known or can be projected. In that case, within 14 days of receiving the worker’s request the insurer must contact the attending physician to ask if permanent limitations are known or can be projected. The insurer must also notify the worker in writing that the determination will be postponed until permanent restrictions are known or can be projected.
(2) If the claim qualifies for closure under ORS 656.268(1)(b) or (c), the insurer may postpone the determination until the worker is medically stationary or until permanent restrictions are known or can be projected, whichever occurs first.
(3) If the insurer is unable to determine eligibility or make a decision regarding a particular vocational service because of insufficient data, the insurer must explain to the worker in writing what information is necessary and when it expects to determine eligibility or make a decision. This explanation must be mailed to the worker within 14 days of the insurer receiving notification that the worker is likely eligible for vocational assistance.
Stat. Auth.: ORS 656.340, ORS 656.726(4)

Stats. Implemented.: ORS 656.340

Hist.: WCD 11-1982(Admin)(Temp), f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin), f. & ef. 6-30-83; WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; Renumbered from 436-061-0111, 5-1-85; WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; WCD 11-1987, f. 12-17-87, ef. 1-1-88, Renumbered from 436-120-0060; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0035; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00, Renumbered from 436-120-0330 & 436-120-0370; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; Renumbered from 436-120-0320 by WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10
436-120-0135
General Requirements and Timeframes for Vocational Eligibility Evaluations
(1) When an eligibility evaluation is required, the insurer must contact the worker to start the eligibility determination process within 5 days of the date the insurer received knowledge of likely eligibility.
(2) A certified vocational counselor must determine vocational eligibility and the insurer must provide the vocational counselor with all existing relevant medical information.
(3) At the insurer’s request, the worker must provide vocationally relevant information needed to determine eligibility within a reasonable time set by the insurer.
(4) The insurer must complete the eligibility determination within 30 days of the date the insurer initiated contact with the worker under subsection (1) of this rule, unless postponed under OAR 436-120-0125.
(5) If the eligibility determination is postponed, the eligibility evaluation must be completed within 30 days of the insurer’s receipt of requested relevant information.
(6) Either the insurer or certified vocational counselor may issue the notice with the results of the eligibility evaluation to the worker.
(7) Vocational assistance will only be provided for one claim at a time, unless the parties agree otherwise. If the worker is eligible for vocational assistance under two or more claims, the claim for the injury with the most severe vocational impact is the claim that gave rise to the need for vocational assistance. The parties may agree to provide services for more than one claim at a time, and extend time and fee limits beyond those allowable in these rules.
Stat. Auth.: ORS 656.340, 656.726(4)

Stats. Implemented: ORS 656.340

Hist.: WCD 11-1982(Admin)(Temp), f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin), f. & ef. 6-30-83; WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; Renumbered from 436-061-0111, 5-1-85; WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; WCD 11-1987, f. 12-17-87, ef. 1-1-88, Renumbered from 436-120-0060; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0035; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00, Renumbered from 436-120-0330 & 436-120-0370; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; Renumbered from 436-120-0320 by WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10
436-120-0145
Vocational
Assistance Eligibility Criteria
(1) A worker whose
permanent total disability benefits have been terminated by a final order is eligible
for vocational assistance.
(2) A worker
is eligible for vocational assistance if all the following conditions are met:
(a) The worker
is authorized to work in the United States.
(b) The worker
is available for vocational assistance in Oregon or within commuting distance of
Oregon.
(A) If the
worker is not available in Oregon or within commuting distance of Oregon, the insurer
must consider the worker available in Oregon if the worker states in writing that
within 30 days of being determined eligible for vocational assistance the worker
will move back to Oregon, or to within commuting distance of Oregon, at the worker’s
own expense.
(B) The requirement
that the worker be available in Oregon or within commuting distance of Oregon for
vocational assistance does not apply if the Oregon subject worker did not work and
live in Oregon at the time of the injury.
(c) As a
result of the limitations caused by the injury or aggravation, the worker:
(A) Is not
able to return to regular employment;
(B) Is not
able to return to suitable and available work with the employer at injury or aggravation;
and
(C) Has a
substantial handicap to employment and requires assistance to overcome that handicap.
(d) The worker
was not employed in suitable employment for at least 60 days after the injury or
aggravation.
(e) The worker
did not refuse or fail to make a reasonable effort in available light-duty work
intended to result in suitable employment. Prior to finding the worker ineligible,
the insurer must document the existence of one or more suitable jobs that would
be available for the worker after completion of the light-duty work. If the employer-at-injury
offers such employment to a non-medically stationary worker, the offer must be made
in accordance with OAR 436-060.
(f) The worker
is available for vocational assistance. If the worker is not available, the insurer
must determine if the reasons are for reasonable or unreasonable cause prior to
ending the worker’s eligibility. If the reason was for incarceration, this
reason must be cited in the notice to the worker. Declining vocational assistance
to accept modified or new employment that results from an employer-at-injury activated
use of the Preferred Worker Program, under OAR 436-110, is reasonable cause.
(g) The worker
did not refuse or otherwise relinquish his or her rights to vocational assistance
in writing.
(3) The worker
must participate in the vocational assistance process and must provide relevant
information. If the worker does not participate, or fails to provide relevant information,
the insurer must issue a written warning before finding the worker ineligible under
this rule.
(4) The worker
must not misrepresent a matter material to evaluating eligibility.
Stat. Auth.: ORS
656.340, 656.726(4)

Stats. Implemented:
ORS 656.206, 656.340

Hist.: WCD
11-1982(Admin)(Temp), f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin), f. & ef. 6-30-83;
WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; Renumbered from 436-061-0126, 5-1-85;
WCD 7-1985, 12-12-85, eff. 1/1/86; Renumbered from 436-120-0090, WCD 11-1987, 12-17-87,
eff. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0045;
Renumbered from 436-061-0111, 5-1-85; WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86;
WCD 11-1987, f. 12-17-87, ef. 1-1-88, Renumbered from 436-120-0060; WCD 10-1994,
f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0035; WCD 6-1996, f. 2-6-96,
cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00, Renumbered from 436-120-0330
& 436-120-0370; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD 7-2002, f. 5-30-02,
cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 6-2005, f. 6-9-05,
cert. ef. 7-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 8-2007, f. 11-1-07,
cert. ef. 12-1-07; Renumbered from 436-120-0320 & 436-120-0350 by WCD 3-2009,
f. 12-1-09, cert. ef. 1-1-10; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-120-0155
Deferral and Completion of an Eligibility Evaluation When the Employer Activates Preferred Worker Program Benefits:
(1) The insurer must defer the determination of vocational assistance eligibility when the employer at injury activates preferred worker benefits under OAR 436-110 and the worker agrees in writing to accept the new or modified regular job. All of the following conditions must exist:
(a) The employer must make a written job offer to the worker that includes the following information:
(A) The start date;
(B) Wage and hours;
(C) Job site location;
(D) Description of job duties; and
(E) A statement that the job does not begin until the modifications are in place.
(b) The insurer must send the worker a Notice of Deferral of Vocational Assistance Eligibility Determination within 14 days of the date the worker signed the job offer letter indicating acceptance of the job.
(2) The insurer must complete the eligibility evaluation within 30 days of a determination that preferred worker benefits will not be provided or if the agreement is terminated.
Stat. Auth.: ORS 656.340, 656.726(4)

Stats. Implemented: ORS 656.340

Hist.: WCD 11-1982(Admin)(Temp), f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin), f. & ef. 6-30-83; WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; Renumbered from 436-061-0111, 5-1-85; WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; WCD 11-1987, f. 12-17-87, ef. 1-1-88, Renumbered from 436-120-0060; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0035; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00, Renumbered from 436-120-0330 & 436-120-0370; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; Renumbered from 436-120-0320 by WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10
436-120-0165
End of Eligibility
for Vocational Assistance
A worker’s
eligibility ends when any of the following conditions apply:
(1) Based
on new information that did not exist or that could not have been obtained with
reasonable effort at the time the insurer determined eligibility, the worker no
longer meets the eligibility requirements.
(2) The worker
has been employed in suitable employment as described in OAR 436-120-0005(18) for
at least 60 days after the date of injury or date of aggravation, and any necessary
worksite modification is in place.
(3) The worker,
prior to beginning an authorized return-to-work plan, refused an offer of suitable
employment. If the employer-at-injury offers employment to a non-medically stationary
worker, the offer must be made in accordance with OAR 436-060.
(4) The worker,
prior to beginning an authorized return-to-work plan, left suitable employment after
the injury or aggravation for a reason unrelated to the limitations caused by the
injury.
(5) The worker,
prior to beginning an authorized return-to-work plan, refused or failed to make
a reasonable effort in available light-duty work intended to result in suitable
employment. Prior to ending eligibility, the insurer must document the existence
of one or more suitable jobs that would be available for the worker after completion
of the light-duty work. If the employer-at-injury offers such employment to a non-medically
stationary worker, the offer must be made in accordance with OAR 436-060.
(6) The worker,
after completing an authorized training plan, refused an offer of suitable employment.
(7) The worker
declined or became unavailable for vocational assistance. The insurer must determine
if the reasons are for reasonable or unreasonable cause prior to ending the worker’s
eligibility. If the reason was for incarceration, this reason must be cited in the
notice to the worker. Declining vocational assistance to accept modified or new
employment that results from an employer-at-injury activated use of the Preferred
Worker Program, under OAR 436-110, is reasonable cause.
(8) The worker
refused a suitable training site after the vocational counselor and worker have
agreed in writing upon a return-to-work goal.
(9) The worker
failed after written warning to participate in the development or implementation
of a return-to-work plan. No written warning is required if the worker fails to
attend two consecutive training days and fails, without reasonable cause, to notify
the vocational counselor or the insurer by the close of next business day.
(10) The
worker's lack of suitable employment cannot be resolved by providing vocational
assistance. This includes circumstances in which the worker cannot benefit from,
or participate in, vocational assistance because of medical conditions unrelated
to the injury.
(11) The
worker misrepresented information relevant to providing vocational assistance.
(12) The
worker refused after written warning to return property provided by the insurer
or reimburse the insurer as required. No vocational assistance will be provided
under subsequent openings of the claim until the worker returns the property or
reimburses the funds.
(13) The
worker misused funds provided for the purchase of property or services. No vocational
assistance will be provided under subsequent openings of the claim until the worker
reimburses the insurer for the misused funds.
(14) After
written warning the worker continues to harass any participant to the vocational
process. This section does not apply if such behavior is the result of a documented
medical or mental condition.
(15) The
worker entered into a claim disposition agreement and disposed of vocational rights.
The parties may agree in writing to suspend vocational services pending approval
by the Workers' Compensation Board. The insurer must end eligibility when the Worker’s
Compensation Board approves the claims disposition agreement that disposes of vocational
assistance rights. No notice regarding the end of eligibility is required.
(16) The
worker received maximum direct employment services and is not entitled to other
categories of vocational assistance.
Stat. Auth.: ORS
656.340, 656.726(4)

Stats. Implemented:
ORS 656.340

Hist.: WCD
11-1982(Temp), f. 12-29-82 eff. 1/1/83; WCD 2-1983, 6-30-83, eff. 6-30-83; WCD 5-1983,
12-14-83, eff. 1-1-84; Renumbered from 436-061-0126, 5-1-85; WCD 7-1985, 12-12-85,
eff. 1/1/86; Renumbered from 436-120-0090, WCD 11-1987, 12-17-87, eff. 1-1-88; WCD
10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0045; WCD 6-1996,
f. 2-6-96, cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 4-2001,
f. 4-13-01, cert. ef. 5-15-01; WCD 14-2001(Temp), f. 12-17-01, cert. ef. 1-2-02
thru 6-30-02; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04, cert.
ef. 4-1-04; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2007, f. 11-1-07, cert.
ef. 12-1-07; Renumbered from 436-120-0350 by WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10;
WCD 5-2010, f. 9-15-10, cert. ef. 11-15-10; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-120-0175
Redetermining
Eligibility for Vocational Assistance
If a worker was
previously determined ineligible or the worker’s eligibility ended, the insurer
must redetermine eligibility within 35 days of notification of a change of these
circumstances:
(1) The worker,
for reasonable cause, was unavailable for vocational assistance and is now available.
(2) The worker's
lack of suitable employment could not be resolved by providing vocational assistance.
The insurer may require the worker to provide evidence that circumstances have changed.
(3) The worker
declined vocational assistance to accept modified or new employment that resulted
from an employer-at-injury-activated use of preferred worker benefits under OAR
436-110. If the job was not suitable, the worker must request redetermination within
30 days of termination of the employment for which preferred worker benefits were
provided.
(4) The worker
was not available for vocational assistance in Oregon or within commuting distance
of Oregon. The worker must request redetermination within six months of receiving
the insurer’s notice that he or she was not eligible for this reason.
(5) The worker,
who was not authorized to work in the United States, is now authorized to work in
the United States. Within six months of the date of the worker's receipt of the
insurer's notice of ineligibility or end of eligibility, the worker must:
(a) Request
redetermination; and
(b) Submit
evidence to the insurer that the worker has applied for authorization to work in
the United States and is awaiting a decision by the U.S. Citizenship and Immigration
Services (USCIS). The worker must provide the insurer with a copy of any decision
by the USCIS within 30 days of receipt. The insurer must redetermine eligibility
upon receipt of documentation of the worker's authorization to work in the United
States.
(6) The worker,
who returned to work prior to becoming medically stationary, informs the insurer
that he or she is likely eligible for vocational assistance and requests a determination
within 60 days of the mailing date of the Notice of Closure.
(7) Prior
to claim closure, a worker's limitations due to the injury became more restrictive.
(8) Prior
to claim closure, the insurer accepts a new condition that was not considered in
the original determination of the worker's eligibility.
(9) The worker’s
average weekly wage is redetermined and increased.
Stat. Auth.: ORS
656.340, 656.726(4)

Stats. Implemented:
ORS 656.340

Hist.: WCD
7-1985(Admin), f. 12-12-85, ef. 1-1-86; WCD 11-1987, f. 12-17-87, ef. 1-1-88, Renumbered
from 436-120-0095; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0055;
WCD 23-1996; f. 12-13-96, cert. ef. 2-1-97; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00;
WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD 14-2001(Temp), f. 12-17-01, cert.
ef. 1-2-02 thru 6-30-02; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 3-2004, f.
3-5-04 cert. ef. 4-1-04; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2007, f.
11-1-07, cert. ef. 12-1-07; Renumbered from 436-120-0360 by WCD 3-2009, f. 12-1-09,
cert. ef. 1-1-10; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-120-0185
Choosing a Vocational Assistance Provider
(1) Once the worker is found eligible, the insurer and worker must agree on a vocational assistance provider. Within 20 days of an eligibility finding, the insurer must notify the worker of the selection of vocational assistance provider. If they are unable to agree on a vocational assistance provider, the insurer or self-insured employer must notify the director and the director will select a provider.
(2) If the worker or insurer requests a change in vocational assistance provider, the insurer and worker must agree on a vocational assistance provider. If they are unable to agree, the insurer must refer the dispute to the director.
Stat. Auth.: ORS 656.340, 656.726(4)

Stats. Implemented: ORS 656.340

Hist.: WCD 11-1982(Admin)(Temp), f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin), f. & ef. 6-30-83; WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; Renumbered from 436-061-0111, 5-1-85; WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; WCD 11-1987, f. 12-17-87, ef. 1-1-88, Renumbered from 436-120-0060; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0035; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00, Renumbered from 436-120-0330 & 436-120-0370; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; Renumbered from 436-120-0320 by WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10
436-120-0340
Determining
Substantial Handicap
(1) A certified
vocational counselor must perform a substantial handicap evaluation as part of the
eligibility determination when applicable.
(2) To complete
the substantial handicap evaluation the vocational counselor must submit a report
documenting the following information:
(a) Relevant
work history for at least the preceding five years;
(b) Level
of education, proficiency in spoken and written English or other languages, where
relevant, and achievement or aptitude test data if it exists;
(c) Adjusted
weekly wage as determined under OAR 436-120-0007 and suitable wage as defined by
OAR 436-120-0005;
(d) Permanent
limitations due to the injury;
(e) An analysis
of the worker's transferable skills, if any;
(f) A list
of physically suitable jobs for which the worker has the knowledge, skills and abilities,
that pay a suitable wage, and for which a reasonable labor market is documented
to exist as described in subsection (g) below;
(g) An analysis
of the worker's labor market using standard labor market reference materials, including
but not limited to information provided by the Employment Department’s Oregon
Labor Market Information System (OLMIS) and Oregon Wage Information (OWI). When
using OWI data, the presumed standard will be the 10th percentile unless there is
sufficient evidence that a higher or lower wage is more appropriate; and
(h) Consideration
of the vocational impact of any limitations that existed prior to the injury.
(3) When
determining the worker's eligibility for vocational assistance, the insurer may
include any knowledge, skills, and abilities the worker gained after the date of
injury or aggravation that resulted from training provided by the employer; however,
the insurer may not include any knowledge, skills, or abilities the worker gained
at his or her own expense after the date of injury or aggravation.
Stat. Auth.: ORS
656.726(4)

Stats. Implemented:
ORS 656.340(5) & (6)

Hist.: WCD
10-1994, f. 11-1-94, cert. ef. 1-1-95; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96;
WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01;
WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04;
WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07;
WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-120-0400
Selection of Category of Vocational Assistance
(1) The insurer must select one of the following categories of vocational assistance before referring a worker to a vocational assistance provider:
(a) Direct employment services, if the worker has the necessary transferable skills to obtain suitable new employment.
(b) Training, if the worker needs training in order to return to employment which pays a wage significantly closer to 100 percent of the adjusted weekly wage. "Significantly closer" may vary depending on several factors, including, but not limited to, the worker's wage at injury, adaptability, skills, geographic location, limitations and the potential for the worker's income to increase with time as the result of training.
(2) The insurer must notify the worker of the category selection and the reason for the selection.
(3) The insurer must reconsider the category of vocational assistance within 30 days of the insurer's knowledge of a change in circumstances including, but not limited to:
(a) A change in the worker's permanent limitations;
(b) A change in the labor market; or
(c) The category of vocational assistance proves to be inappropriate.
(4) The insurer must notify the worker immediately if the reconsideration in section (3) results in a change in the vocational assistance category.
Stat. Auth.: ORS 656.340(9) & 656.726(4)

Stats. Implemented: ORS 656.340(7)

Hist.: WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0083 & 0085; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 5-2010, f. 9-15-10, cert. ef. 11-15-10
436-120-0410
Vocational Evaluation
A certified vocational counselor must complete the vocational evaluation. Vocational evaluation may include one or more of the following:
(1) Vocational testing must be administered by an individual certified to administer the test.
(2) A work evaluation must be performed by a Certified Vocational Evaluation Specialist (CVE), certified by the Commission on Certification of Work Adjustment and Vocational Evaluation Specialists.
(3) On-the-job evaluations must evaluate a worker's work traits, aptitudes, limitations, potentials and habits in an actual job environment.
(a) First, the vocational counselor must perform a job analysis to determine if the job is within the worker's capacities. The insurer must submit the job analysis to the attending physician if there is any question about the appropriateness of the job.
(b) The evaluation should normally be no less than five hours daily for four consecutive days and should normally last no longer than 30 days.
(c) The evaluation does not establish any employer-employee relationship.
(d) A written report must evaluate the worker's performance in the areas originally identified for assessment.
(4) Situational assessment is a procedure that evaluates a worker's aptitude or work behavior in a particular learning or work setting. It may focus on a worker's overall vocational functioning or answer specific questions about certain types of work behaviors.
(a) The situational assessment requires these steps: planning and scheduling observations; observing, describing and recording work behaviors; organizing, analyzing and interpreting data; and synthesizing data including behavioral data from other pertinent sources.
(b) The assessment should normally be no less than five hours daily for four consecutive days and should normally last no longer than 30 days.
(5) Work adjustment is work-related activities that assist workers in understanding the meaning, value, and demands of work. It may include the assistance of a job coach.
(6) Job analysis is a detailed description of the physical and other demands of a job based on direct observation of the job.
(7) Labor market search is obtained from direct contact with employers, other actual labor market information, or from other surveys completed within 90 days of the report date.
(a) A labor market search is needed when standard labor market reference materials do not have adequate information upon which to base a decision, or there are questions about a worker's specific limitations, training and skills, that must be addressed with employers to determine if a reasonable labor market exists.
(b) The person giving the information must have hiring responsibility or direct knowledge of the job's requirements; and the job must exist at the firm contacted.
(c) The labor market search report must include, but is not limited to, the date of contact; firm name, address and telephone number; name and title of person contacted; the qualifications of persons recently hired; physical requirements; wages paid; condition of hire (full-time, part-time, seasonal, temporary); date and number of last hire(s); and available and anticipated openings.
(d) Specific openings found in the course of a labor market search are not, in themselves, proof a reasonable labor market exists.
Stat. Auth.: ORS 656.340(9) & 656.726(4)

Stats. Implemented: ORS 656.340(7)

Hist.: WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef 1-1-95, Renumbered from 436-120-0081; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00, Renumbered from 436-120-0420; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10
436-120-0430
Direct Employment
(1) If the insurer determines the worker is entitled to direct employment services, the insurer must provide an eligible worker with at least four months of direct employment services.
(2) Direct employment services must be provided by a certified vocational counselor.
(3) Direct employment services must begin on the date the insurer approves a direct employment plan, or on the completion date of an authorized training plan.
(4) Direct employment services may include, but are not limited to:
(a) Employment counseling.
(b) Job search skills instruction, which teaches workers how to write resumes, research the job market, locate suitable new employment, complete employment applications, interview for employment, and develop other skills related to obtaining suitable new employment.
(c) Job development with related return-to-work activities, which helps the worker contact appropriate prospective employers.
(d) Job analysis.
(5) The insurer must provide return-to-work follow-up for at least 60 days after the worker becomes employed to ensure the work is suitable and to provide any necessary assistance that enables the worker to continue the employment.
Stat. Auth.: ORS 656.340(9) & 656.726(4)

Stats. Implemented: ORS 656.340(7)

Hist.: WCD 11-1982(Admin)(Temp), f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin), f. & ef. 6-30-83; WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; Renumbered from 436-061-0060, 5-1-85; WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; WCD 11-1987, f. 12-17-87, ef. 1-1-88, Renumbered from 436-120-0030; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00, Renumbered from 436-120-0075 & 436-120-0083; WCD 14-2001(Temp), f. 12-17-01, cert. ef. 1-2-02 thru 6-30-02; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 5-2010, f. 9-15-10, cert. ef. 11-15-10
436-120-0443
Training
(1) Training services include but are
not limited to plan development, training, monthly monitoring of training progress,
and job placement services.
(2) The training plan must
be developed and monitored by a certified vocational counselor.
(3) The selection of plan
objectives and the kind of training must attempt to minimize the length and cost
of training necessary to prepare the worker for suitable employment.
(4) If there are any changes
made to the original training plan, an addendum to Form 1081 – Return to Work
Plan must be completed, signed by all parties, and submitted to the director.
(5) Basic education may be
offered, with or without other training components, to raise the worker's education
to a level to enable the worker to obtain suitable employment.
(6) On-the-job training prepares
the worker for permanent, suitable employment with the training employer and for
employment in the labor market at large. On-the-job training must be considered
first in developing a training plan.
(7) Occupational skills training
is offered through a community college, based on a predetermined curriculum, at
the training employer's location.
(8) Formal training may be
offered through a vocational school licensed by an appropriate licensing body, community
college, or other post-secondary educational facility that is part of a state system
of higher education.
(9) Rehabilitation facilities
training provides evaluation, training, and employment for severely disabled individuals.
(10) Notwithstanding OAR
436-120-0145(2), the director may order the insurer, or the insurer may elect, to
provide training outside Oregon if such training would be more timely, appropriate,
or cost effective than other alternatives.
(11) Training status continues
during the following breaks:
(a) A regularly scheduled
break of not more than six weeks between fixed school terms;
(b) A break of not more than
two weeks between the end of one kind of training and the start of another for which
the starting date is flexible; or
(c) A period of illness or
recuperation that does not prevent completion of the training by the planned date.
(12) A worker actively engaged
in training must receive temporary disability compensation under ORS 656.268 and
ORS 656.340.
(13) Temporary disability
compensation is limited to 16 months unless extended to 21 months by the insurer
or ordered by the director when the injured worker provides good cause. Good cause
may include but is not limited to the reasons given under section (14) of this rule.
In no event will temporary disability compensation during training be paid for more
than 21 months.
(14) Training costs may be
paid for periods longer than 21 months. Reasons for extending training may include
but are not limited to:
(a) Reasons beyond the worker’s
control.
(b) An “exceptional
disability,” defined as a disability equal to or greater than the complete
loss, or loss of use, of both legs. Exceptional disability also includes brain injury
that results in impairment equal or greater than Class III as defined in OAR 436-035.
(c) An “exceptional
loss of earning capacity” exists when no suitable training plan of 16 months
or less is likely to eliminate the worker’s substantial handicap to employment.
The extension must allow the worker to obtain a wage as close as possible to the
worker’s adjusted weekly wage and at least 10 percent greater than could be
expected with a shorter training program.
(15) An eligible worker is
entitled to four months of job placement assistance after completion of training.
(16) When the worker returns
to work following training, the insurer must monitor the worker’s progress
for at least 60 days to assure the suitability of the employment before ending eligibility.
(17) If the worker chooses
a training plan period of longer than he or she is entitled to receive under these
rules, the worker may supplement training provided by the insurer by completing
"self-sponsored" training or studies. For the purpose of this rule, “self-sponsored”
means the worker is obligated to pay for the training.
(a) The first day of training
provided by the insurer will be considered the "training start date" and the last
day of training provided by the insurer will be the "training end date."
(b) All self-sponsored training
must be completed before the training start date unless the parties otherwise agree.
(c) During self-sponsored
training, the insurer may provide optional services under OAR 436-120-0455, including
but not limited to payment of expenses for tuition, fees, books, and supplies.
(d) The return-to-work plan
support document must describe how the worker-sponsored training and the training
provided by the insurer will combine to prepare the worker for suitable employment.
Stat. Auth.: ORS 656.340(9), 656.726(4)
Stats. Implemented: ORS 656.340
Hist.: WCD 11-1982(Admin)(Temp),
f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin), f. & ef. 6-30-83; Renumbered from
436-061-0060, WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; 5-1-85; WCD 7-1985(Admin),
f. 12-12-85, ef. 1-1-86; Renumbered from 436-120-0030, WCD 11-1987, f. 12-17-87,
ef. 1-1-88; Renumbered from 436-120-0075 & 436-120-0085, WCD 10-1994, f. 11-1-94,
cert. ef. 1-1-95; Renumbered from 436-120-0450 & 436-120-0460,WCD 6-2000, f.
4-27-00, cert. ef. 6-1-00; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD 7-2002,
f. 5-30-02, cert. ef. 7-1-02; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2007,
f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; Renumbered
from 436-120-0440, WCD 5-2010, f. 9-15-10, cert. ef. 11-15-10; WCD 5-2012, f. 10-3-12,
cert. ef. 11-1-12; WCD 9-2013, f. 11-12-13, cert. ef. 1-1-14
436-120-0445
Training
Requirements
(1) Basic education
is limited to six months unless extended by the insurer.
(2) On-the-job
training
(a) Training
time is limited to 12 months unless extended by the insurer.
(b) The insurer
must reimburse the training employer for a portion of the worker’s wages.
(c) The on-the-job
training contract between the training employer, the insurer, and the worker must
include, but is not limited to:
(A) The worker's
name;
(B) The employer's
legal business name;
(C) The employer’s
current workers’ compensation insurance policy number;
(D) The name
of the individual providing the training;
(E) The training
plan start and end dates;
(F) The job
title and duties;
(G) The skills
to be taught;
(H) The base
wage and the terms of wage reimbursement;
(I) An agreement
that the employer will pay all taxes normally paid on the entire wage and will maintain
workers' compensation insurance for the trainee; and
(J) An acknowledgement
that the training may not prepare the worker for jobs elsewhere, if the training
prepares a worker for a job unique to the training site.
(d) The insurer
must pay temporary disability compensation as provided in ORS 656.268.
(e) Absent
a need to accommodate the worker’s documented medical condition or class schedule,
the worker’s schedule must be the same as for a regular full-time employee.
(3) Occupational
skills training
(a) Training
is limited to 12 months unless extended by the insurer.
(b) The training
is primarily for the worker’s benefit. The worker does not receive wages.
(c) Training
does not establish any employer-employee relationship with the training employer.
The training employer makes no guarantee of employing the worker when the training
is completed.
(d) The training
employer has a sufficient number of employees to accomplish its regular work and
the training of the worker, and the worker does not displace an employee.
(e) Absent
a need to accommodate the worker’s documented medical condition or class schedule,
the worker’s schedule must be the same as for a regular full-time employee.
(4) Formal
training
(a) Training
time is limited to 16 months unless extended by the insurer.
(b) Course
load must be consistent with the worker's abilities, limitations, and length of
time since the worker last attended school.
(c) Courses
must relate to the vocational goal.
(5) If the
worker begins or completes training between the date of injury and the date of the
eligibility determination, and then the insurer finds the worker eligible for vocational
assistance and finds the worker’s training suitable, the insurer must reimburse
the worker for costs required by that training and verified by the insurer or the
director, including temporary disability as required under ORS 656.268 and ORS 656.340.
Stat. Auth.: ORS
656.340(9), 656.726(4)

Stats. Implemented:
ORS 656.340

Hist.: WCD
11-1982(Admin)(Temp), f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin), f. & ef. 6-30-83;
Renumbered from 436-061-0060, WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; 5-1-85;
WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; Renumbered from 436-120-0030, WCD 11-1987,
f. 12-17-87, ef. 1-1-88; Renumbered from 436-120-0075 & 436-120-0085, WCD 10-1994,
f. 11-1-94, cert. ef. 1-1-95; Renumbered from 436-120-0450 & 436-120-0460,WCD
6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01;
WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05;
WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10;
Renumbered from 436-120-0440, WCD 5-2010, f. 9-15-10, cert. ef. 11-15-10; WCD 5-2012,
f. 10-3-12, cert. ef. 11-1-12
[436-120-0447 Renumbered to 436-120-0448, 436-120-0449, 436-120-0451]
436-120-0448
Reevaluating
a Training Plan
(1) A training plan
must be re-evaluated when:
(a) A change
occurs in the worker's limitations that may render the training inappropriate.
(b) In an
academic program:
(A) The worker
fails to maintain at least a 2.00 grade point average for two grading periods, or
(B) The worker
fails to complete the minimum credit hours required under the training plan.
(2) In an
academic program, the vocational counselor must notify the insurer, and the insurer
must give the worker a written warning of the possible end of training, at the first
indication that the worker may:
(a) Fail
to maintain a 2.00 grade point average for two consecutive grading periods, or
(b) Fail
to complete the minimum credit hours in the training plan curriculum.
(3) In a
non-academic program, the vocational counselor must notify the insurer, and the
insurer must give the worker a written warning of the possible end of training,
at the first indication that the worker's performance in training is unsatisfactory
and may not result in employment in that field.
Stat. Auth.: ORS
656.340(9), 656.726(4)

Stats. Implemented:
ORS 656.340

Hist.: WCD
11-1982(Admin)(Temp), f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin), f. & ef. 6-30-83;
Renumbered from 436-061-0060, WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; 5-1-85;
WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; Renumbered from 436-120-0030, WCD 11-1987,
f. 12-17-87, ef. 1-1-88; Renumbered from 436-120-0075 & 436-120-0085, WCD 10-1994,
f. 11-1-94, cert. ef. 1-1-95; Renumbered from 436-120-0450 & 436-120-0460,WCD
6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01;
WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05;
WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10;
Renumbered from 436-120-0440, WCD 5-2010, f. 9-15-10, cert. ef. 11-15-10; Renumbered
from 436-120-0447; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-120-0449
Ending and
Reevaluating a Training Plan
(1) Training ends
and must be re-evaluated when:
(a) In an
academic program:
(A) The worker
fails, after written warning, to maintain at least a 2.00 grade point average for
two consecutive grading periods, or
(B) The worker
fails, after written warning, to complete the minimum credit hours in the training
plan curriculum for two consecutive grading periods.
(b) In a
non-academic program, the worker's performance in training is unsatisfactory and
further training is not likely to result in employment in that field. The insurer
must give the worker a written warning prior to ending the worker's training under
this rule.
(2) A training
plan re-evaluation may include a conference with the division, under OAR 436-120-0500(2).
Stat. Auth.: ORS
656.340(9), 656.726(4)

Stats. Implemented:
ORS 656.340

Hist.: WCD
11-1982(Admin)(Temp), f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin), f. & ef. 6-30-83;
Renumbered from 436-061-0060, WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; 5-1-85;
WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; Renumbered from 436-120-0030, WCD 11-1987,
f. 12-17-87, ef. 1-1-88; Renumbered from 436-120-0075 & 436-120-0085, WCD 10-1994,
f. 11-1-94, cert. ef. 1-1-95; Renumbered from 436-120-0450 & 436-120-0460,WCD
6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01;
WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05;
WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10;
Renumbered from 436-120-0440, WCD 5-2010, f. 9-15-10, cert. ef. 11-15-10; Renumbered
from 436-120-0447; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-120-0451
Ending a
Training Plan
Training ends when:
(1) The worker
has successfully completed training;
(2) The worker’s
eligibility has ended under OAR 436-120-0165; or
(3) The worker
is not enrolled and actively engaged in the training; however, none of the reasons
for ending training described in OAR 436-120-0443(11) will cause the worker's training
status to end.
Stat. Auth.: ORS
656.340(9), 656.726(4)

Stats. Implemented:
ORS 656.340

Hist.: WCD
11-1982(Admin)(Temp), f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin), f. & ef. 6-30-83;
Renumbered from 436-061-0060, WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; 5-1-85;
WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; Renumbered from 436-120-0030, WCD 11-1987,
f. 12-17-87, ef. 1-1-88; Renumbered from 436-120-0075 & 436-120-0085, WCD 10-1994,
f. 11-1-94, cert. ef. 1-1-95; Renumbered from 436-120-0450 & 436-120-0460,WCD
6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01;
WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05;
WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10;
Renumbered from 436-120-0440, WCD 5-2010, f. 9-15-10, cert. ef. 11-15-10; Renumbered
from 436-120-0447; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-120-0455
Optional Services
(1) Optional services are services provided to an ineligible worker or services provided to an eligible worker in excess of those described in these rules. Such services are at the discretion of an insurer.
(2) The insurer must not use optional services to circumvent the intent of these rules.
Stat. Auth.: ORS 656.283, 656.340, 656.704 & 656.726

Stats. Implemented: ORS 656

Hist.: WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95; Renumbered from 436-120-0910, WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07
436-120-0500
Return-to-Work Plans: Development and Implementation
(1) A return-to-work plan should be a collaborative effort between the vocational counselor and the injured worker, and should include all the rights and responsibilities of the worker, the insurer, and the vocational counselor. Prior to submitting the plan to the insurer, the vocational counselor must review the plan and plan support with the worker. Certain information may be excluded, as allowed by OAR 436-010. The injured worker must be given the opportunity to review the plan with the worker's representative prior to signing it. The vocational assistance provider must confirm the worker's understanding of and agreement with the plan by obtaining the worker's signature. The counselor must submit copies signed by the vocational counselor and the worker to all parties. If the insurer lacks sufficient information to make a decision, the insurer must advise the parties what information is needed and when it expects to make a decision.
(2) If the insurer does not approve a return-to-work plan within 90 days of determining the worker is entitled to a training plan, or within 45 days of determining the worker is entitled to a direct employment plan, the insurer must contact the division within five days to schedule a conference. The purpose of the conference will be to identify and remove all obstacles to return-to-work plan completion and approval. The insurer, the worker, the plan developer, and any other parties involved in the return-to-work process must attend the conference. The conference may be postponed for a period of time agreeable to the parties. The insurer or the worker may request a conference with the division if other delays in the vocational rehabilitation process occur.
(3) If, during development of a return-to-work plan, an employer offers the worker a job, the insurer must perform a job analysis, obtain approval from the attending physician, verify the suitability of the wage, and confirm the offer is for a bona fide, suitable job as defined in OAR 436-120-0005. If the job is suitable, the insurer must help the worker return to work with the employer. The insurer must provide return-to-work follow-up during the first 60 days after the worker returns to work. If return to work with the employer is unfeasible or, during the 60-day follow-up the job proves unsuitable, the insurer must immediately resume development of the return-to-work plan.
(4) If the vocational goal or category of assistance is later changed, the insurer must amend the plan. All amendments to the plan must be initialed by the insurer, vocational assistance provider, and the worker.
Stat. Auth.: ORS 656.340(9) & 656.726(4)

Stats. Implemented: ORS 656.340(9)

Hist.: WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; Renumbered from 436-061-0172, 5-1-85; WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from OAR 436-120-0105 & 436-120-0170; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 23-1996, f. 12-13-96, cert. ef. 2-1-97; Renumbered from 436-120-0600, WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; WCD 5-2010, f. 9-15-10, cert. ef. 11-15-10
436-120-0510
Return-to-Work Plan Support
(1) The worker and
vocational counselor must work together to develop a return-to-work plan that includes
consideration of the following:
(a) The worker's
transferable skills;
(b) The worker's
physical and mental capacities and limitations;
(c) The worker's
vocational interests;
(d) The worker's
educational background and academic skill level;
(e) The worker's
pre-injury wage; and
(f) The i
worker's place of residence and that labor market.
(2) Return-to-work
plan support must contain, but is not limited to, the following:
(a) Specific
vocational goal(s) and projected return-to-work wage(s).
(b) A description
of the worker’s current medical condition, relating the worker’s permanent
limitations to the vocational goals.
(c) A description
of the worker’s education and work history, including job durations, wages,
Standard Occupational Classification (SOC) codes or other standardized job titles
and codes, and specific job duties. The SOC codes can be found on the Oregon Employment
Department OLMIS website.
(d) If a
direct employment plan, a description of the worker’s transferable skills
that relate to the vocational goals and a discussion of why training will not bring
the worker a wage significantly closer to 100 percent of the adjusted weekly wage
at the time of injury.
(e) If a
training plan, a discussion of why direct employment services will not return the
worker to suitable employment.
(f) A summary
of the results of any evaluations or testing. If the results do not support the
goals, the vocational assistance provider must explain why the goals are appropriate.
(g) A summary
of current labor market information that shows the labor market supports the vocational
goals and documents that the worker has been informed of the condition of the labor
market.
(h) A labor
market search as prescribed in 436-120-0410(7), if needed.
(i) If the
labor market information does not support the goals, the vocational assistance provider
must explain why the goals are appropriate. The worker and worker’s representative,
if any, must acknowledge in writing an awareness of the poor labor market conditions
and a willingness to proceed with the plan in spite of these conditions. In the
case of a training plan, this acknowledgment must include an understanding the insurer
will provide no additional training should the worker be unable to find suitable
employment because of the labor market.
(j) A job
analysis prepared by the vocational assistance provider, signed by the worker and
by the attending physician or a qualified facility designated by the attending physician,
and based on a visit to a worksite comparable to what the worker could expect after
completing training. If the attending physician is unable or unwilling to address
the job analysis and does not designate a facility as described above, the insurer
may submit the job analysis to a qualified facility of its choice. The insurer must
submit the resulting information to the attending physician for concurrence. If
the attending physician has not responded within 30 days of the date of request
for concurrence, the plan may proceed.
(k) A signed
on-the-job training contract, if applicable.
(l) A description
of the curriculum, which must be term by term if the curriculum is for formal training.
(m) If material
pertinent to a return-to-work plan is contained in a previous eligibility the insurer
may attach a copy of the evaluation to the plan.
Stat. Auth.: ORS
656.340(9) & 656.726(4)

Stats. Implemented:
ORS 656.340

Hist.: WCD
11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94,cert. ef. 1-1-95; WCD
6-2000, f. 4-27-00, cert. ef. 6-1-00, Renumbered from 436-120-0105; WCD 4-2001,
f. 4-13-01, cert. ef. 5-15-01; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 6-2005,
f. 6-9-05, cert. ef. 7-1-05; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009,
f. 12-1-09, cert. ef. 1-1-10; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-120-0520
Return-to-Work Plan: Responsibilities of the Eligible Worker and the Vocational Assistance Provider
(1) The worker must participate and maintain contact with the vocational counselor throughout plan development and as required in the plan, and must inform the vocational counselor of anything which might affect the worker's participation in or successful completion of the plan. If the worker stops attending training for any reason, the worker must notify the vocational counselor by the close of the next working day.
(2) Vocational counselors are responsible for the following:
(a) During plan development, the vocational counselor must provide resource materials about jobs, training programs (if appropriate), labor markets and other pertinent information to help the worker select a vocational goal; direct information gathering; and otherwise help the worker analyze and evaluate options.
(b) The vocational counselor must help the worker plan the curriculum and help the worker enroll. The vocational assistance provider must contact the worker, trainers and training facility counselors to the extent necessary to assure the worker's participation and progress.
Stat. Auth.: ORS 656.340(9) & 656.726(4)

Stats. Implemented: ORS 656.340

Hist.: WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0115; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07
436-120-0530
Return-to-Work Plan Review
The director may review return-to-work plans and supporting information. If the director finds a return-to-work plan or its supporting information does not conform to these rules:
(1) The director must notify the insurer and vocational assistance provider in writing of the preliminary finding of nonconformance. The notification must inform the insurer of changes or information required to bring the plan into conformance.
(2) The insurer must, within 30 days of notification, make appropriate changes, supply additional information requested by the division, or explain why no change(s) should be made.
(3) If the insurer does not respond timely or is unable to bring the plan into conformance, the director will return the plan to the parties with notification that the plan does not conform to OAR 436-120 and may order the insurer to develop a plan that conforms to the rules.
Stat. Auth.: ORS 656.340(9) & 656.726(4)

Stats. Implemented: ORS 656.340

Hist.: WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; Renumbered from 436-061-0172, 5-1-85; WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0170 & 436-120-0215; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07
436-120-0700
Direct Worker Purchases
(1) The insurer must provide direct worker purchases as necessary for an eligible worker's participation in vocational assistance and to meet the requirements of a suitable job. A worker is no longer eligible for these purchases once eligibility ends unless the purchases are necessary to complete a plan. Direct worker purchases include partial purchase, lease, rental and payment.
(2) Direct worker purchases will not include purchases of real property; payment of fines or other penalties; or payment of additional driver's license costs, increased insurance costs or any other costs attributable to problems with the worker's driving record.
(3) In making its decision regarding a direct worker purchase, the insurer may choose the least expensive, adequate alternative. If the worker wants a direct worker purchase which is more expensive than that authorized by the insurer, the worker may select that alternative, and the worker shall pay the difference in cost.
(4) Within 14 days of its receipt of a request for a direct worker purchase, the insurer must approve the purchase or notify the worker of its denial.
(5) The insurer must pay for approved direct worker purchases in time to prevent delay in the provision of services.
(6) The worker may pay for mileage, child or senior care, or for purchases such as clothing, books and supplies or the worker may request an advance of any of these costs based on documentation of need.
(a) The insurer must reimburse costs within 28 days of receiving the written request from the worker and any required supporting documentation.
(b) The insurer must return denied requests for reimbursement to the worker within 28 days of the insurer's receipt with an explanation of the reason for nonpayment.
(7) The insurer must assign to the worker right and title to the nonexpendable direct worker purchases paid by the insurer as follows:
(a) The insurer must make such assignment no later than the 60th day of continuous employment unless the worker remains eligible and the suitability of the employment is in question.
(b) The insurer may repossess nonexpendable property if the worker no longer requires the property for training or employment.
(c) The insurer may require repayment of advancements or reimbursements if the worker misrepresented information material to the purchase decision or if the worker used the funds for something other than the approved purchase.
Stat. Auth.: ORS 656.340(9) & 656.726(3)

Stats. Implemented: ORS 656.340

Hist.: WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0087; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07
436-120-0710
Direct Worker Purchases: Kinds
The insurer must
provide the direct worker purchases described in sections (1) through (12) of this
rule without regard to the worker's pre- or post-injury income. The insurer may
not require the worker to submit a financial statement in order to qualify for direct
worker purchases listed in sections (1) through (12). In determining the necessity
of direct worker purchases described in sections (13) through (18), the insurer
must consider, among all factors, the worker's pre-injury net income as compared
with the worker's post-injury net income. Permanent partial disability award payments
will not be considered as income. For the insurer to find the purchase necessary,
the worker's pre-injury net income, as adjusted by the cost-of-living matrix, must
be greater than the worker's post-injury net income, unless the worker can establish
financial hardship. The insurer may require the worker to provide information about
expenditures or family income when the worker claims a financial hardship.
(1) Tuition,
fees, books, and supplies for training or studies. Payment is limited to those items
identified as mandatory by the instructional facility, trainer, or employer. The
insurer must pay the cost in full, and will not require the worker to apply for
grants to pay for tuition, books or other expenses associated with training.
(2) Wage
reimbursement for on-the-job training. The amount must be stipulated in a contract
between the training employer and the insurer.
(3) Travel
expenses for transportation, meals, and lodging required for participation in vocational
assistance. For the purposes of this section, "participation in vocational assistance"
includes, but is not limited to job search, required meetings with the vocational
assistance provider, and meetings with employers or at training sites as required
by the plan or plan development. The conditions and rates for payment of travel
expenses are as follows:
(a) Transportation.
Costs will be paid at public transportation rates when public transportation is
available; otherwise, mileage will be paid at the rate published in Bulletin 112.
Costs incidental to mileage, such as parking fees, also will be paid. For workers
receiving temporary total disability or equivalent income, private car mileage will
be paid only for mileage in excess of the miles the worker traveled to and from
work at the time of injury. Mileage payment in conjunction with moving expenses
will be allowed only for one vehicle and for a single one-way trip. To receive reimbursement
for private car mileage, the worker must provide the insurer with a copy of the
driver's valid driver's license and proof of insurance coverage.
(b) Meals
and lodging, overnight travel. For overnight travel, meal and lodging expense will
be reimbursed at the rate published in Bulletin 112.
(c) Special
travel costs. Payment will be made in excess of the amounts specified in this section
when special transportation or lodging is necessary because of the physical needs
of the worker, or when the insurer finds prevailing costs in the travel area are
substantially higher than average.
(4) Tools
and equipment for training or employment. Payment is limited to items identified
as mandatory for the training or initial employment, such as starter sets. Purchases
will not include what the trainer or employer ordinarily would provide to all employees
or trainees in the training or employment, or what the worker possesses.
(5) Moving
expenses. Payment is limited to workers with employment or training outside reasonable
commuting distance. In determining the necessity of paying moving expenses, the
insurer may consider the availability of employment or training which does not require
moving, or which requires less than the proposed moving distance. Payment is limited
to moving household goods weighing not more than 10,000 pounds. If necessary, payment
includes reasonable costs of meals and lodging for the worker's family and mileage
pursuant to subsection (3)(a) of this rule.
(6) Second
residence allowance. The purpose of the second residence is to enable the worker
to participate in training outside reasonable commuting distance. The allowance
must equal the rental expense reasonably necessary, plus not more than $200 a month
toward all other expenses of the second residence, excluding refundable deposits.
In order to qualify for second residence allowance, the worker must maintain a permanent
residence.
(7) Primary
residence allowance. This allowance is applicable when the worker must change residence
for training or employment. Payment includes the first month's rent and the last
month's rent only if required prior to moving in.
(8) Medical
examinations and psychological examinations for conditions not related to the compensable
injury when necessary for determining the worker's ability to participate in vocational
assistance.
(9) Physical
or work capacities evaluations.
(10) Living
expense allowance during vocational evaluation. Payment is limited to workers involved
in a vocational evaluation at least five hours daily for four or more consecutive
days, and not receiving temporary disability payments. The worker will not be barred
from receiving a living expense allowance if the worker is unable to participate
five hours daily because of limitations caused by the injury. Payment must be based
on the worker's temporary total disability rate if the worker's claim were reopened.
(11) Work
adjustment, on-the-job evaluation, or situational assessment cost(s).
(12) Membership
fees and occupational certifications, licenses, and related testing costs. Payment
under this category is limited to $500.
(13) Clothing
required for participation in vocational assistance or for employment. Allowable
purchases do not include items the trainer or employer would provide or the worker
possesses.
(14) Child
or disabled adult care services. These services are payable when required to enable
the worker to participate in vocational assistance at rates prescribed by the State
of Oregon's Department of Human Services. For workers receiving temporary total
disability compensation or equivalent income, these costs will be paid only when
in excess of what the worker paid for such services at the time of injury, adjusted
using the cost-of-living matrix.
(15) Dental
work, eyeglasses, hearing aids, and prosthetic devices. These are not related to
the compensable injury and enable the worker to obtain suitable employment or participate
in training.
(16) Dues
and fees of a labor union. Payment will be limited to initiation fees, or back dues
and one month's current dues.
(17) Vehicle
rental or lease. There is no reasonable alternative enabling the worker to participate
in vocational assistance or accept an available job. The worker must provide the
insurer with proof of a valid driver's license and insurance coverage. Payment under
this category is limited to $1,000.
(18) Any
other direct worker purchase the insurer considers necessary for the worker's participation
as described in the introductory paragraph of this rule. Payment under this category
is limited to $1,000.
Stat. Auth.: ORS
656.340(9) & 656.726(4)

Stats. Implemented:
ORS 656.340

Hist.: WCD
11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered
from 436-120-0087; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00,
cert. ef. 6-1-00; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD 7-2002, f. 5-30-02,
cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 8-2007, f. 11-1-07,
cert. ef. 12-1-07; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-120-0720
Fee Schedule and Conditions for Payment of Vocational Assistance Costs
(1) The director has established the following fee schedule for professional costs and direct worker purchases. The schedule sets maximum spending limits per claim opening for each category; however, the insurer may spend more than the maximum limit if the insurer determines the individual case so warrants. Spending limits are to be adjusted annually, effective July 1. The annual adjustment is based on the conversion factor described in OAR 436-120-0005 and published with the cost-of-living matrix.
(2) For workers found to have an exceptional disability or exceptional loss of earning capacity as defined in OAR 436-120-0443 the fee schedule spending limits for the Training category and DE/Training Combined category listed below must be increased by 30%.
(3) Amounts include professional costs, travel/wait, and other travel expenses: [Table not included. See ED. NOTE.]
(4) Wage reimbursement for on-the-job training contracts are not covered by the fee schedule.
(5) Services and direct worker purchases provided after eligibility ends to complete a plan or employment is subject to the maximum amounts in effect at the time of closure.
(6) The insurer must pay, within 60 days of receipt, the vocational assistance provider's billing for services provided under the insurer-vocational assistance provider agreement. The insurer must not deny payment on the grounds the worker was not eligible for the assistance if the vocational assistance provider performed the services in good faith without knowledge of the ineligibility.
(7) An insurer entitled to claims cost reimbursement under OAR 436-110 for services provided under OAR 436-120 is subject to the following limitations:
(a) Optional services are not reimbursable.
(b) The insurer must obtain the director's approval in advance for any waiver of the provisions of OAR 436-120.
[ED. NOTE: Tables referenced are not included in rule text. Click here for PDF copy of table(s).]
Stat. Auth.: ORS 656.340(9) & 656.726(4)

Stats. Implemented: ORS 656.340 & 656.258

Hist.: WCD 6-1980(Admin), f. 5-22-80, ef. 6-1-80; WCD 4-1981(Admin), f. 12-4-81, ef. 1-1-82; WCD 11-1982(Admin)(Temp), f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin), f. & ef. 6-30-83; WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; Renumbered from 436-061-0120, 5-1-85; WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; WCD 11-1987, f. 12-17-87, ef. 1-1-88 ; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0070 & 436-120-0215; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; WCD 5-2010, f. 9-15-10, cert. ef. 11-15-10
436-120-0755
Reimbursement of Vocational Assistance Costs from the Workers' Benefit Fund
(1) The director will reimburse the insurer or self-insured employer for costs associated with providing vocational benefits when:
(a) The director issues an order overturning the insurer's or self-insured employer's denial of vocational benefits; and
(b) The insurer's or self-insured employer's denial is later upheld by a final order.
(2) To receive reimbursement from the Workers' Benefit Fund, the insurer or self-insured employer must provide the division with the following documentation, within one year from the date of the final order:
(a) Injured worker's name and Workers' Compensation Division's claim file number;
(b) Date and order number of the director's order appealed;
(c) Itemized listing with dates of service for all costs incurred after the date of the director's order that was reversed. All costs, in order to be reimbursed, must meet all conditions set forth in OAR 436-120, and reimbursement requests must:
(A) Use terms, "direct employment" or "training" to show the category of vocational assistance provided;
(B) List vocational provider costs by category of "professional services";
(C) List direct worker purchases by the categories in OAR 436-120-0710, to include purchase dates and costs;
(D) Show temporary total disability paid between the start and end dates of the return to work plan; and
(E) List any other costs incurred in providing vocational benefits as a result of the order that was appealed.
(d) Signed certified statement that the requested reimbursement amount was actually paid; and
(e) The insurer's or self-insured employer's name and address where reimbursement is to be sent.
(3) The director may require additional information to clarify and process a reimbursement request.
(4) No reimbursement is allowed for the insurer's administrative costs.
Stat. Auth.: 656.726(4)

Stats. Implemented: ORS 656.313, 656.605, OL 2005, Ch. 588, sec. 4 & 5

Hist.: WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06
436-120-0800
Registration of Vocational Assistance Providers
(1) A vocational assistance provider may not provide vocational assistance services unless they are first registered by the director under this rule.
(2) A vocational assistance provider must submit an application that includes: a description of the specific vocational services to be provided and verification of staff certifications under these rules;
(3) The director may approve or deny registration based on the completed application and the department's registration and counselor certification records.
(a) The registration will specify the scope of authorized vocational services as determined by the vocational assistance provider's staff certifications.
(b) Vocational assistance providers whose registration is denied under this rule may appeal as described in OAR 436-120-0008.
(4) A registered vocational assistance provider must:
(a) Notify the division within 30 days of any changes in office address, telephone number, contact person or staff.
(b) Maintain the worker’s vocational assistance files for four years after the end of vocational assistance with that vocational assistance provider, or in a pre-1986 case, for five years after the end of vocational assistance with that provider.
Stat. Auth.: ORS 656.340(9) & 656.726(4)

Stats. Implemented: ORS 656.340

Hist.: WCD 4-1981(Admin), f. 12-4-81, ef. 1-1-82; WCD 8-1981(Admin) (Temp), f. 12-31-81, ef. 1-1-82; WCD 9-1982(Admin), f. 5-28-82, ef. 6-1-82; WCD 2-1983(Admin), f. & ef. 6-30-83; WCD 5-1983(Admin), f. 12-14-83, ef. 1-1-84; Renumbered from 436-061-0180, 5-1-85; WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86; WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-061-0200 & 436-120-0203; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10
436-120-0810
Certification of Individuals
Individuals determining workers' eligibility and providing vocational assistance must be certified by the director and on the staff of a registered vocational assistance provider, insurer, or self-insured employer.
(1) An applicant for certification must submit an application, as prescribed by the director, demonstrating the qualifications for the specific classification of certification as described in OAR 436-120-0830.
(2) Department certification is not required to perform work evaluations, but the work evaluator must be certified by the professional organizations described in OAR 436-120-0410(2).
(3) The director may approve or disapprove an application for certification based on the individual's application.
(a) Certification will be granted for five years. A vocational counselor who is nationally certified as described in OAR 436-120-0830(1)(a) will be granted an initial certification period to coincide with their national certification.
(b) Certified individuals must notify the division within 30 days of any changes in address and telephone number.
(c) Individuals whose certification is denied under this rule may appeal as described in OAR 436-120-0008.
Stat. Auth.: ORS 656.340(9) & 656.726(4)

Stats. Implemented: ORS 656.340

Hist.: WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0205; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10
436-120-0820
Renewal of Certification
(1) A certified individual must renew their certification every five years by submitting the following documentation to the director no later than 30 days prior to the end of their certification period:
(a) Current certification by the Commission on Rehabilitation Counselor Certification (CRCC) or the Commission for Case Managers Certification (CCMC) or the Certification of Disability Management Specialists Commission (CDMSC) and six hours of training on the Oregon vocational assistance and reemployment assistance rules; or
(b) Verification of a minimum of 60 hours of continuing education units under this rule within the five years prior to renewal.
(A) At least eight hours must be for training in ethical practices in rehabilitation counseling.
(B) At least six hours of training must be on the Oregon vocational assistance and reemployment assistance rules. Individuals already certified on the effective date of these rules will have no less than one year to complete this requirement.
(2) The department will accept continuing education units for training approved by the CRCC, CCMC or the CDMSC; courses in or related to psychology, sociology, counseling, and vocational rehabilitation, if given by an accredited institution of higher learning; training presented by the department pertaining to OAR 436-120, 436-105, and 436-110; and any continuing education program certified by the department for vocational rehabilitation providers. Sixty minutes of continuing education will count as one unit, except as noted in section (3) of this rule.
(3) In the case of college course work, the department will grant credit only for grades of C or above and will multiply the number of credit hours by six to establish the number of continuing education units.
(4) Failure to meet the requirements of this section will cause an individual's certification to expire. Such an individual may reapply for certification upon completion of the required 60 hours of continuing education.
Stat. Auth.: ORS 656.340(9) & 656.726(4)

Stats. Implemented: ORS 656.340

Hist.: WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; WCD 5-2010, f. 9-15-10, cert. ef. 11-15-10
436-120-0830
Classification of Vocational Assistance Staff
Individuals providing vocational assistance will be classified as follows:
(1) Vocational Rehabilitation Counselor certification allows the individual to determine eligibility and provide vocational assistance services. Vocational Rehabilitation Counselor certification requires:
(a) Certification by the following national certifying organizations: Commission on Rehabilitation Counselor Certification (CRCC), the Commission for Case Managers Certification (CCMC), or the Certification of Disability Management Specialists Commission (CDMSC);
(b) A master's degree in vocational rehabilitation counseling and at least six months of direct experience;
(c) A master's degree in psychology, counseling, or a field related to vocational rehabilitation, and 12 months of direct experience; or
(d) A bachelor's or higher degree and 24 months of direct experience. Thirty-six months of direct experience may substitute for a bachelor's degree.
(2) Vocational Rehabilitation Intern certification allows an individual who does not meet the requirements for certification as a Vocational Rehabilitation Counselor the opportunity to gain direct experience. Vocational Rehabilitation Intern certification requires a master’s degree in psychology, counseling, or a field related to vocational rehabilitation; or a bachelor's degree and at least six hours of training on the Oregon vocational assistance and reemployment assistance rules. Thirty-six months of direct experience may substitute for a bachelor's degree. The Vocational Rehabilitation Intern certification is subject to the following conditions:
(a) The intern must be supervised by a certified Vocational Rehabilitation Counselor who must co-sign and assume responsibility for all the intern's eligibility determinations, return-to-work plans, vocational and billing reports.
(b) When the intern has met the experience requirements, the intern may apply for certification as a Vocational Rehabilitation Counselor.
(3) Return-to-Work Specialist certification allows the person to provide job search skills instruction, job development, return-to-work follow-up, labor market search, and to determine eligibility for vocational assistance, except where such determination requires a judgment as to whether the worker has a substantial handicap to employment. This certification requires 24 months of direct experience. Full-time (or the equivalent) additional college coursework in psychology, counseling, education, a human services related field, or a field related to vocational rehabilitation may substitute for up to 18 months of direct experience, on a month-for-month basis. To conduct only labor market research/or job development does not require certification when conducted under the supervision of a certified vocational rehabilitation counselor.
(4) To meet the direct experience requirements for Vocational Rehabilitation Counselor, the individual must:
(a) Perform return-to-work plan development and implementation for the required number of months; or
(b) Perform three or more of the qualifying job functions listed in paragraphs (A) through (J) of this subsection for the required number of months, with at least six months of the experience in one or more of functions listed in paragraphs (A) through (D) of this subsection. The qualifying job functions are:
(A) Return-to-work plan development and implementation;
(B) Employment counseling;
(C) Job development;
(D) Early return-to-work assistance which must include working directly with workers and their employers;
(E) Vocational testing;
(F) Job search skills instruction;
(G) Job analysis;
(H) Transferable skills assessment or employability evaluations;
(I) Return-to-work plan review and approval; or
(J) Employee recruitment and selection for a wide variety of occupations.
(5) To meet the direct experience requirements for Vocational Rehabilitation Intern or Return-to-Work Specialist, the individual must:
(a) Perform return-to-work plan development and implementation for the required number of months; or
(b) Perform three or more of the qualifying job functions listed in paragraphs (4)(b)(A) through (J) of this rule for the required number of months.
(6) To receive credit for direct experience, the individual must:
(a) Perform one or more of the qualifying job functions listed in paragraphs (4)(b)(A) through (J) of this rule at least 50 percent of the work time for each month of direct experience credit. Qualifying job functions performed in a job that is less than full time will be prorated. For purposes of this rule, full time will be 40 hours a week. An individual will not receive credit for any function performed less than 160 hours.
(b) Provide any documentation required by the director, including work samples. The director may also require verification by the individual's past or present employers.
(7) All degrees must be from accredited institutions and documented by a copy of the transcript(s) with the application for certification.
Stat. Auth.: ORS 656.340(9) & 656.726(4)

Stats. Implemented: ORS 656.340

Hist.: WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0205; WCD 6-1996, f. 2-6-96, cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10; WCD 5-2010, f. 9-15-10, cert. ef. 11-15-10
436-120-0840
Professional Standards for Authorized Vocational Assistance Providers and Certified Individuals
(1) Registered vocational assistance providers and certified individuals must:
(a) Determine eligibility and provide assistance in an objective manner not subject to any conditions other than those prescribed in these rules;
(b) Fully inform the worker of the categories and kinds of vocational assistance under OAR 436-120 and reemployment assistance under OAR 436-110;
(c) Document all case activities in legible file notes or reports;
(d) Provide only vocationally relevant information about workers in written and oral reports;
(e) Recommend workers only for suitable employment;
(f) Fully inform the worker of the purpose and results of all testing and evaluations and
(g) Comply with generally accepted standards of conduct in the vocational rehabilitation profession.
(2) Registered vocational assistance providers and certified individuals must not:
(a) Provide evaluations or assistance if there is a conflict of interest or prejudice concerning the worker;
(b) Enter into any relationship with the worker to promote personal gain, or the gain of a person or organization in which the vocational assistance provider or certified individual has an interest;
(c) Engage in, or tolerate, sexual harassment of a worker. "Sexual harassment" means deliberate or repeated comments, gestures or physical contact of a sexual nature;
(d) Violate any applicable state or federal civil rights law;
(e) Commit fraud, misrepresent, or make a serious error or omission, in connection with an application for registration or certification;
(f) Commit fraud, misrepresent, or make a serious error or omission in connection with a report or return-to-work plan, or the vocational assistance activities or responsibilities of a vocational assistance provider under OAR chapter 436;
(g) Engage in collusion to withhold information, or submit false or misleading information relevant to the determination of eligibility or provision of vocational assistance;
(h) Engage in collusion to violate these rules or other rules of the department, or any policies, guidelines or procedures issued by the director;
(i) Fail to comply with an order by the director to provide specific vocational assistance, except as provided in ORS 656.313; or
(j) Instruct any individual to make decisions or engage in behavior that is contrary to the requirements of these rules.
Stat. Auth.: ORS 656.340(9) & 656.726(4)

Stats. Implemented: ORS 656.313, 656.340

Hist.: WCD 11-1987, f. 12-17-87, ef. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0207; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10
436-120-0900
Audits, Penalties and Sanctions
(1) Insurers and employers at injury must fully participate in any department audit, periodic program review, investigation or review, and provide records and other information as requested.
(2) If the director finds the insurer or employer at injury failed to comply with OAR 436-120, the director may impose one or more of the following sanctions:
(a) Reprimand by the director.
(b) Recovery of reimbursements.
(c) Denial of reimbursement requests.
(d) An insurer or employer may be assessed a civil penalty under ORS 656.745 for any violation of statutes, rules, or orders of the director.
(3) In determining the amount of a civil penalty to be assessed the director may consider:
(a) The degree of harm inflicted on the worker;
(b) Whether there have been previous violations or warnings; and
(c) Other matters as justice may require.
(4) Under ORS 656.447, the director may suspend or revoke an insurer's authority to issue worker’s compensation insurance policies upon determination that the insurer has failed to comply with these rules.
Stat. Auth.: ORS 656.340 & 656.726(4)

Stats. Implemented: ORS 656.340, 656.447 & 656.745(1) & (2)

Hist.: WCD 4-1981, f. 12-4-81, ef. 1-1-82; WCD 2-1983, f. 6-30-83, ef. 6-30-83; WCD 5-1983, f. 12-14-83, ef. 1-1-84; Renumbered from 436-061-0981, 5-1-85; WCD 7-1985, f. 12-12-85, ef. 1-1-86; WCD 11-1987, f. 12-17-87, eff. 1-1-88; WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0255 & 436-120-0270; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10
436-120-0915
Sanctions of Authorized Vocational Assistance Providers and Certified Individuals
(1) Vocational assistance providers and certified individuals must fully participate in any department audit, periodic program review, investigation or review, and provide records and other information as requested.
(2) If the director finds any registered vocational assistance provider or certified individual failed to comply with OAR 436-120, the director may impose one or more of the following sanctions:
(a) Reprimand by the director.
(b) Probation, in which the department systematically monitors the vocational assistance provider's or individual's compliance with OAR 436-120 for a specified length of time. Probation may include the requirement an individual receive supervision, or successfully complete specified training, personal counseling or drug or alcohol treatment.
(c) Suspension, which is the termination of registration or certification to determine eligibility and provide vocational assistance to Oregon injured workers for a specified period of time. The vocational assistance provider or individual may reapply for registration or certification at the end of the suspension period. If granted, the vocational assistance provider or individual will be placed on probation as described in subsection (2)(b) of this rule.
(d) Revocation, which is a permanent termination of registration or certification to determine eligibility and provide vocational assistance to Oregon injured workers.
(3) The director will investigate violations of OAR 436-120 and may impose a sanction under these rules. Before issuing a suspension or revocation, the director will send a notice of the proposed action and provide the opportunity for a show-cause hearing. The process is as follows:
(a) The director will send by certified mail a written notice of intended suspension or revocation and the grounds for such action. The notice must advise of the right to participate in a show-cause hearing.
(b) The vocational assistance provider or individual has 10 days from the date of receipt of the notification of proposed action in which to request a show-cause hearing.
(c) If the vocational assistance provider or individual does not request a show-cause hearing, the proposed suspension or revocation will become final.
(d) If the vocational assistance provider or individual requests a show-cause hearing, the director will send a notification of the date, time and place of the hearing.
(e) After the show-cause hearing, the director will issue a final order which may be appealed as described in OAR 436-120-0008(3).
(4) For the purposes of section (3) “show-cause hearing” means an informal meeting with the director in which the vocational assistance provider or certified individual will be provided an opportunity to be heard and present evidence regarding any proposed actions by the director to suspend or revoke a vocational assistance provider or certified individual’s authority to provide vocational assistance services to injured workers.
(5) The director may bar a vocational assistance provider or individual who has received a suspension or revocation under this rule from sponsoring or teaching continuing education programs.
Stat. Auth.: ORS 656.340(9) & 656.726(4)

Stats. Implemented: ORS 656.340

Hist.: WCD 11-1987, f. 12-17-87, eff. 1-1-88; Renumbered from 436-120-0207, WCD 10-1994, f. 11-1-94, cert. ef. 1-1-95; Renumbered from 436-120-0850, WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD 7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10


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