Employer-At-Injury Program

Link to law: http://arcweb.sos.state.or.us/pages/rules/oars_400/oar_436/436_105.html
Published: 2015

The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,

WORKERS' COMPENSATION DIVISION










 

DIVISION 105
EMPLOYER-AT-INJURY PROGRAM

436-105-0001
Authority for Rules
The director has adopted OAR chapter 436, division 105 under the authority of ORS 656.622 and 656.726.
Stat. Auth.: ORS 656.622 & ORS 656.726(4)

Stats. Implemented: ORS 656.622

Hist.: WCD 7-2001, f. 8-14-01, cert. ef. 10-1-01
436-105-0002
Purpose of Rules
(1) The Employer-at-Injury Program encourages the early return to work of injured workers by providing incentives to employers.
(2) The Employer-at-Injury Program is activated by the employer and administered by the insurer.
(3) The program consists of Wage Subsidy, Worksite Modification, and Employer-at-Injury Program Purchases.
(4) These rules explain:
(a) The assistance and reimbursements available from the Employer-at-Injury Program;
(b) Who is qualified for the assistance and reimbursement; and
(c) How to receive assistance and reimbursements.
Stat. Auth.: ORS 656.622 & 656.726(4)

Stats. Implemented: ORS 656.622

Hist.: WCB 1-1973, f. 1-2-73, ef. 1-15-73; WCB 3-1973, f. 3-14-73, ef. 4-1-73; WCD 2-1977(Admin)(Temp), f. 9-29-77, ef. 10-4-77; WCD 2-1978(Admin), f. & ef. 2-1-78; WCD 7-1981(Admin), f. 12-30-81, ef. 1-1-82; Renumbered from 436-063-0015, 5-1-85; WCD 1-1987(Admin), f. 2-20-87, ef. 3-16-87; WCD 12-1987, f. 12-17-87, ef. 1-1-88; WCD 13-1990(Temp), f. 6-21-90, cert. ef. 7-1-90; WCD 32-1990, f. 12-10-90, cert. ef. 12-26-90; WCD 1-1993, f. 1-21-93, cert. ef. 3-1-93, Renumbered from 436-110-0010, 436-110-0020, 436-110-0025, 436-110-0041, 436-110-0042 & 436-110-0045; WCD 15-1995(Temp), f. 10-9-95, cert. ef. 10-11-95; WCD 20-1995(Temp), f. 12-8-95, cert. ef. 1-1-96; WCD 10-1996, f. 3-12-96, cert. ef. 4-5-96; WCD 4-1997(Temp), f. 3-13-97, cert. ef. 3-17-97; WCD 11-1997, f. 8-28-97, cert. ef. 9-12-97, Renumbered from 436-110-0200; WCD 7-2001, f. 8-14-01, cert. ef. 10-1-0, Renumbered from 436-110-0510; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07
436-105-0003
Applicability of Rules
(1) These rules
apply to:
(a) All individual
Employer-at-Injury programs started on or after the effective date of these rules,
unless otherwise provided in subsections (b) or (c);
(b) All wage
subsidy reimbursement requests when the wage subsidy period began on or after the
effective date of these rules; and
(c) All reimbursement
requests received by the division on or after the effective date of these rules
for worksite modification or program purchases, regardless of when the purchase
was made.
(2) The director
may waive procedural rules as justice requires, unless otherwise obligated by statute.
Stat. Auth.: ORS
656.622 & 656.726(4)

Stats. Implemented:
ORS 656.622

Hist.: WCD
7-2001, f. 8-14-01, cert. ef. 10-1-01; WCD 12-2002(Temp), f. & cert. ef. 12-11-02
thru 6-8-03; WCD 5-2003, f. 5-16-03, cert. ef. 6-8-03; WCD 4-2004(Temp), f. 3-22-04,
cert. ef. 4-1-04 thru 9-27-04; WCD 8-2004, f. 7-15-04, cert. ef. 8-1-04; WCD 4-2005,
f. 5-26-05, 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; WCD 3-2013,
f. 4-12-13, cert. ef. 7-1-13
436-105-0005
Definitions
For the purpose of these rules, unless the context requires otherwise:
(1) "Administrator" means the Administrator of the Workers' Compensation Division, or the administrator's delegate for the matter.
(2) "Client" means a person to whom workers are provided under contract and for a fee on a temporary or leased basis.
(3) “Consumables” means purchases required to support the functioning of tools or equipment utilized during transitional work.
(4) "Director" means the Director of the Department of Consumer and Business Services, or the director's delegate for the matter.
(5) "Division" means the Workers' Compensation Division of the Department of Consumer and Business Services.
(6) "Employer-at-Injury" means the organization that employed the worker when the worker:
(a) Sustained the injury or occupational disease;
(b) Made the claim for aggravation; or
(c) Requested an Own Motion opening under ORS 656.278.
(7) "Fund" means the Workers' Benefit Fund.
(8) “Insurer” means the insurance company or self-insured employer responsible for the workers’ compensation claim.
(9) "Premium" means the monies paid to an insurer for the purpose of purchasing workers’ compensation insurance.
(10) "Regular employment" means the employment the worker held at the time of:
(a) Injury;
(b) The claim for aggravation; or
(c) Own Motion opening under ORS 656.278.
(11) "Reimbursable wages" means the worker’s gross wages for the Wage Subsidy period.
(12) “Skills building” means a class or course of instruction taken by the worker for the purpose of enhancing an existing skill or developing a new skill. When skills building is the transitional work, the worker must agree in writing to take the class or course of instruction.
(13) "Transitional Work" means temporary work with the employer-at-injury which is not the worker's full duty regular work and is assigned because the worker cannot perform full duty regular work. Transitional work must be within the worker's injury-caused limitations and may be created through modification of the worker’s regular work, job restructuring, assistive devices, worksite modification(s), reduced hours, or reassignment to another job. Transitional work must be within the employer’s course and scope of trade or profession, unless the work is “skills building.”
(14) "Worker Leasing Company" means the person which provides workers, by contract and for a fee, as prescribed in ORS 656.850.
(15) "Work site" means a primary work area available for a worker to use to perform the required job duties. The work site may be the employer's, client’s, or worker's premises, property, and equipment used to conduct business under the employer's or client’s direction and control. A work site may include a worker's personal property or vehicle if required to perform the job.
Stat. Auth.: ORS 656.622 & 656.726(4)

Stats. Implemented: ORS 656.622

Hist.: WCD 7-2001, f. 8-14-01, cert. ef. 10-1-01; WCD 4-2005, f. 5-26-05, 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
436-105-0006
Administration of Rules
(1) Orders issued by the division to enforce ORS 656.622 or these rules are orders of the director.
(2) The department maintains the financial integrity of the fund and all reimbursement is subject to the availability of funds. If the funds are too low for all reimbursements, the director has the final authority to determine how the funds will be disbursed.
(3) The director may use monies from the fund for activities to provide information about and encourage the reemployment of injured workers. A maximum of $250,000 may be used in a fiscal year, July 1 to June 30. The director must approve all expenditures. Activities include, but are not limited to:
(a) Advertisements and promotion of reemployment assistance programs and associated production costs; and
(b) Public reemployment assistance program conferences and workshops.
Stat. Auth.: ORS 656.622 & ORS 656.726(4)

Stats. Implemented: ORS 656.622

Hist.: WCD 7-2001, f. 8-14-01, cert. ef. 10-1-01
436-105-0008
Reconsideration/Appeal to the Director
(1) The division will deny any reimbursement for Employer-at-Injury Program assistance it finds in violation of these rules. The division has the discretion to deny any reimbursement of Employer-at-Injury Program assistance it determines is not reasonable, practical, or feasible, or considers an abuse of the program.
(2) Parties directly affected by a division Employer-at-Injury Program decision may request a reconsideration by sending a written request for reconsideration to the administrator no later than 60 days after the date the decision is issued. Facsimiles that are legible and complete are acceptable and will be processed the same as originals. Reconsideration must precede a director's review.
(3) The request for reconsideration must specify the reasons why the decision is appealed and may include additional documentation. No reconsideration will be granted unless the request meets the requirements of this rule.
(4) The division will reconsider the decision and notify all directly affected parties of its decision in writing. The affected parties may request a director's review by sending a written request no later than 60 days after the date the reconsideration was issued. The request must specify the reasons why the decision is appealed and may include additional documentation.
(5) The director may require any affected party to provide information or to participate in the director's review. If the party requesting the director's review fails to participate without reasonable cause as determined by the director, the director may dismiss the review.
(6) The director's review decision will be issued in writing and all directly affected parties will be notified. The director's review decision is final and not subject to further review by any court or other administrative body.
Stat. Auth.: ORS 656.622 & 656.726(4)

Stats. Implemented: ORS 656.622

Hist.: WCD 7-2001, f. 8-14-01, cert. ef. 10-1-01; WCD 5-2003, f. 5-16-03, cert. ef. 6-8-03; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07
436-105-0500
Insurer Participation
in the Employer-At-Injury Program
(1) An insurer must be an active participant
in providing reemployment assistance with the employer’s consent. Participation
includes issuing notices of the available assistance and administering the Employer-at-Injury
Program as specified in these rules.
(2) The insurer will notify
the worker and employer-at-injury in writing of the assistance available from the
Employer-at-Injury Program. A notice must be issued:
(a) Upon acceptance or reopening
of a claim; and
(b) Within five days of a
worker’s first release for work after claim opening unless the release is
for regular work.
(3) The notices of Employer-at-Injury
Program assistance must contain the following language:
(a) The notice to the worker
must appear in bold type as follows:
The Reemployment Assistance Program provides
Oregon’s qualified injured workers help with staying on the job or getting
back to work. Because of your injury, your employer may be eligible for assistance
to return you to transitional work through the Employer-at-Injury Program while
your claim is open. Your employer may contact [insurer name and phone number].
(b) The notice to the employer-at-injury
must appear in bold type as follows:
Because of your worker’s injury,
you may be eligible for assistance through the Employer-at-Injury Program to return
the worker to transitional work while the worker’s claim is open. To learn
more about the assistance available from the program, please call [insurer name
and phone number].
(4) The insurer will administer the
Employer-at-Injury Program according to these rules. The insurer must assist an
employer to:
(a) Obtain a qualifying medical
release, pursuant to section (5) of this rule, from the medical service provider;
(b) Identify a transitional
work position;
(c) Process employer wage
subsidy requests as specified in OAR 436-105-0520(1);
(d) Make worksite modification
purchases as specified in OAR 436-105-0520(2);
(e) Make Employer-at-Injury
Program purchases as specified in OAR 436-105-0520(3); and
(f) Request Employer-at-Injury
Program reimbursement from the division as specified in OAR 436-105-0540.
(5) For purposes of the Employer-at-Injury
Program, medical releases must meet the following criteria:
(a) All medical releases
must be dated and related to the compensable injury or occupational disease or,
if the claim has not been accepted or denied, the claimed workers’ compensation
injury or occupational disease. The date the medical release is issued by the worker’s
medical service provider is considered the effective date if an effective date is
not otherwise specified.
(b) Two types of medical
release qualify under these rules:
(A) A medical release that
states the worker’s specific current or projected restrictions; or
(B) A statement by the medical
service provider that indicates the worker is not released to regular employment
accompanied by an approval of a job description which includes the job duties and
physical demands required for the transitional work.
(c) A medical release must
cover any period of time for which benefits are requested.
(6) For the purposes of the
Employer-at-Injury Program, a medical release, and any restrictions it contains,
remains in effect until another medical release is issued by the worker’s
medical service provider. An employer or insurer may get clarification about a medical
release from the medical service provider who issued the release any time prior
to submitting the reimbursement request.
(7) The insurer must maintain
all records of the Employer-at-Injury Program for a period of three years from the
date of the last Employer-at-Injury Program reimbursement request. The insurer will
maintain the following information at the authorized claim processing location(s):
(a) The worker’s claim
file;
(b) Documentation from the
worker’s medical service provider that the worker is unable to perform regular
employment due to the injury and dated copies of all work releases from the worker’s
medical service provider;
(c) A legible copy of the
worker’s payroll records for the wage subsidy period as follows:
(A) Payroll records must
state the payroll period, wage rate(s), and the worker’s gross wages for the
wage subsidy period. The payroll record must also include the dates and hours worked
each day if the worker has hourly restrictions;
(B) Insurers and employers
may supplement payroll records with documentation of how the worker’s earnings
were calculated for the wage subsidy. Supplemental documentation may be used to
determine a worker’s work schedule, wages earned on a particular day, dates
of paid leave, or to clarify any other necessary information not fully explained
by the payroll record;
(C) If neither the payroll
record(s) nor supplemental documentation show the amount of wages earned by the
worker for reimbursable partial payroll periods, the allowable reimbursement amount
may be calculated as follows:
(i) Divide the gross wages
by the number of days in the payroll period for the daily rate; and
(ii) Multiply the daily rate
by the number of eligible days; and
(D) If a partial day’s
reimbursement is requested after a worker is released for transitional work, or
prior to returning from a medical appointment with a regular work release, documentation
of the time of the medical appointment and hours and wages of transitional work
must be provided for those days.
(d) A legible copy of proof
of purchase, providing proof the item was ordered during the Employer-at-Injury
Program period and proof of payment of the item(s) for worksite modification purchases
and Employer-at-Injury Program purchases;
(e) Written documentation
of the insurer’s decision to approve worksite modifications;
(f) Documentation of the
transitional work, which must include the start date, wage and hours, and a description
of the job duties;
(g) Documentation that payments
for a home care worker were made to the Oregon Department of Human Services/Oregon
Health Authority, if applicable;
(h) The written acceptance
by the worker when skills building is the transitional work; and
(i) Documentation, including
course title and curriculum for a class or course of instruction when Employer-at
Injury Program purchases are requested.
Stat. Auth.: ORS 656.340, 656.622 &
656.726(4)
Stats. Implemented: ORS 656.340
& 656.622
Hist.: WCD 1-1987(Admin),
f. 2-20-87, ef. 3-16-87; WCD 12-1987, f. 12-17-87, ef. 1-1-88; WCD 13-1990(Temp),
f. 6-21-90, cert. ef. 7-1-90; WCD 32-1990, f. 12-10-90, cert. ef. 12-26-90; WCD
1-1993, f. 1-21-93, cert. ef. 3-1-93, Renumbered from 436-110-0090; WCD 20-1995(Temp),
f. 12-8-95, cert. ef. 1-1-96; WCD 10-1996, f. 3-12-96, cert. ef. 4-5-96; WCD 11-1997,
f. 8-28-97, cert. ef. 9-12-97, Renumbered from 436-110-0360; WCD 7-2001, f. 8-14-01,
cert. ef. 10-1-0, Renumbered from 436-110-0540; WCD 12-2002(Temp), f. & cert.
ef. 12-11-02 thru 6-8-03; WCD 5-2003, f. 5-16-03, cert. ef. 6-8-03; WCD 4-2004(Temp),
f. 3-22-04, cert. ef. 4-1-04 thru 9-27-04; WCD 8-2004, f. 7-15-04, cert. ef. 8-1-04;
WCD 4-2005, f. 5-26-05, 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 5-2012, f. 10-3-12, cert. ef. 11-1-12; WCD 1-2015, f. 1-29-15, cert. ef. 3-1-15
436-105-0510
Employer
Eligibility
(1) The employer
must maintain Oregon workers' compensation insurance coverage.
(2) The employer
must be the employer at injury as defined in OAR 436-105-0005.
(3) The employer
must be employing an eligible worker.
Stat. Auth.: ORS
656.622, 656.726(4)

Stats. Implemented:
ORS 656.622

Hist.: WCB
1-1973, f. 1-2-73, ef. 1-15-73; WCB 3-1973, f. 3-14-73, ef. 4-1-73; WCD 2-1977(Admin)(Temp),
f. 9-29-77, ef. 10-4-77; WCD 2-1978 (Admin), f. & ef. 2-1-78, WCD 7-1981(Admin),
f. 12-30-81, ef. 1-1-82; Renumbered from 436-063-0020, 5-1-85; WCD 1-1987(Admin),
f. 2-20-87, ef. 3-16-87; WCD 12-1987, f. 12-17-87, ef. 1-1-88; WCD 13-1990(Temp),
f. 6-21-90, cert. ef. 7-1-90; WCD 32-1990, f. 12-10-90, cert. ef. 12-26-90; WCD
1-1993, f. 1-21-93, cert. ef. 3-1-93, Renumbered from 436-110-0020; WCD 20-1995(Temp),
f. 12-8-95, cert. ef. 1-1-96; WCD 10-1996, f. 3-12-96, cert. ef. 4-5-96; WCD 4-1997(Temp),
f. 3-13-97, cert. ef. 3-17-97; WCD 11-1997, f. 8-28-97, cert. ef. 9-12-97, Renumbered
to 436-110-0280; WCD 7-2001, f. 8-14-01, cert. ef. 10-1-0, Renumbered from 436-110-0520;
WCD 12-2002(Temp), f. & cert. ef. 12-11-02 thru 6-8-03; WCD 5-2003, f. 5-16-03,
cert. ef. 6-8-03; WCD 4-2005, f. 5-26-05, cert. ef. 7-1-05; WCD 8-2007, f. 11-1-07,
cert. ef. 12-1-07; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-105-0511
Worker Eligibility
(1) The worker must
have an Oregon workers’ compensation injury or occupational disease claim
at the time of the Employer-at-Injury Program.
(2) The worker
must not be covered by the Injured Inmate Law.
Stat. Auth.: ORS
656.622, 656.726(4)

Stats. Implemented:
ORS 656.622

Hist.: WCB
1-1973, f. 1-2-73, ef. 1-15-73; WCB 3-1973, f. 3-14-73, ef. 4-1-73; WCD 2-1977(Admin)(Temp),
f. 9-29-77, ef. 10-4-77; WCD 2-1978 (Admin), f. & ef. 2-1-78, WCD 7-1981(Admin),
f. 12-30-81, ef. 1-1-82; Renumbered from 436-063-0020, 5-1-85; WCD 1-1987(Admin),
f. 2-20-87, ef. 3-16-87; WCD 12-1987, f. 12-17-87, ef. 1-1-88; WCD 13-1990(Temp),
f. 6-21-90, cert. ef. 7-1-90; WCD 32-1990, f. 12-10-90, cert. ef. 12-26-90; WCD
1-1993, f. 1-21-93, cert. ef. 3-1-93, Renumbered from 436-110-0020; WCD 20-1995(Temp),
f. 12-8-95, cert. ef. 1-1-96; WCD 10-1996, f. 3-12-96, cert. ef. 4-5-96; WCD 4-1997(Temp),
f. 3-13-97, cert. ef. 3-17-97; WCD 11-1997, f. 8-28-97, cert. ef. 9-12-97, Renumbered
to 436-110-0280; WCD 7-2001, f. 8-14-01, cert. ef. 10-1-0, Renumbered from 436-110-0520;
WCD 12-2002(Temp), f. & cert. ef. 12-11-02 thru 6-8-03; WCD 5-2003, f. 5-16-03,
cert. ef. 6-8-03; WCD 4-2005, f. 5-26-05, cert. ef. 7-1-05;
Renumbered from 436-105-0510, WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 5-2012,
f. 10-3-12, cert. ef. 11-1-12
436-105-0512
End of Eligibility
The Employer-at-Injury
Program will end:
(1) When
the worker or employer no longer meets the eligibility provisions stated in OAR
436-105-0510 and 436-105-0511;
(2) When
the worker's claim is closed or denied;
(3) When
sanctions under OAR 436-105-0560 preclude eligibility;
(4) When
the insurer ends the Employer-at-Injury Program at any time while the worker’s
claim is open; or
(5) Two years
after the original date of acceptance of a non-disabling claim.
Stat. Auth.: ORS
656.622, 656.726(4)

Stats. Implemented:
ORS 656.622

Hist.: WCB
1-1973, f. 1-2-73, ef. 1-15-73; WCB 3-1973, f. 3-14-73, ef. 4-1-73; WCD 2-1977(Admin)(Temp),
f. 9-29-77, ef. 10-4-77; WCD 2-1978 (Admin), f. & ef. 2-1-78, WCD 7-1981(Admin),
f. 12-30-81, ef. 1-1-82; Renumbered from 436-063-0020, 5-1-85; WCD 1-1987(Admin),
f. 2-20-87, ef. 3-16-87; WCD 12-1987, f. 12-17-87, ef. 1-1-88; WCD 13-1990(Temp),
f. 6-21-90, cert. ef. 7-1-90; WCD 32-1990, f. 12-10-90, cert. ef. 12-26-90; WCD
1-1993, f. 1-21-93, cert. ef. 3-1-93, Renumbered from 436-110-0020; WCD 20-1995(Temp),
f. 12-8-95, cert. ef. 1-1-96; WCD 10-1996, f. 3-12-96, cert. ef. 4-5-96; WCD 4-1997(Temp),
f. 3-13-97, cert. ef. 3-17-97; WCD 11-1997, f. 8-28-97, cert. ef. 9-12-97, Renumbered
to 436-110-0280; WCD 7-2001, f. 8-14-01, cert. ef. 10-1-0, Renumbered from 436-110-0520;
WCD 12-2002(Temp), f. & cert. ef. 12-11-02 thru 6-8-03; WCD 5-2003, f. 5-16-03,
cert. ef. 6-8-03; WCD 4-2005, f. 5-26-05, cert. ef. 7-1-05; Renumbered from 436-105-0510, WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 5-2012,
f. 10-3-12, cert. ef. 11-1-12
436-105-0520
Assistance
Available from the Employer-at-Injury Program
The Employer-at-Injury Program may be
used only once per worker per claim opening for a nondisabling claim or a disabling
claim. If a nondisabling claim becomes a disabling claim after one year from the
date of acceptance, the disabling claim is considered a new opening and the Employer-at-Injury
Program may be used again. Assistance available includes:
(1) Wage subsidy, which provides
45 percent reimbursement of the worker’s gross wages for the wage subsidy
period. Wage subsidy benefits are subject to the following conditions:
(a) A wage subsidy may not
exceed 66 workdays and must be completed within a 24 consecutive month period;
(b) A wage subsidy may not
start or end with paid leave;
(c) If the worker has hourly
restrictions, reimbursable paid leave must be limited up to the maximum number of
hours of the worker’s hourly restrictions. Paid leave exceeding the worker’s
hourly restrictions is not subject to reimbursement;
(d) Any day during which
the worker exceeds his or her injury-caused limitations will not be reimbursed.
If, however, an employer uses a time clock, a reasonable time not to exceed 30 minutes
per day will be allowed for the worker to get to and from the time clock and the
worksite without exceeding the worker’s hourly restrictions.
(2) Worksite modification.
(a) Worksite modification
means altering a worksite by renting, purchasing, modifying, or supplementing equipment
to:
(A) Enable a worker to perform
the transitional work within the worker’s limitations that resulted in the
worker’s EAIP eligibility;
(B) Prevent a worsening of
the worker’s compensable injury or occupational disease; or
(C) If the claim has not
been accepted or denied, to prevent a worsening of the claimed workers’ compensation
injury or occupational disease.
(b) Worksite modification
assistance is subject to the following conditions:
(A) The insurer determines
the appropriate worksite modifications for the worker;
(B) The insurer documents
its reasons for approving the modifications;
(C) The worksite modifications
must be ordered during the Employer-at-Injury Program; and
(D) Worksite modification
items become the employer’s property upon the end of the Employer-at-Injury
Program.
(3) Employer-at-Injury Program
purchases, which are limited to:
(a) Tuition, books, fees,
and materials required for a class or course of instruction to enhance an existing
skill or develop a new skill when skills building is used as transitional work or
when required to meet the requirements of the transitional work position. Maximum
expenditure is $1,000. Tuition, books, fees, and required materials will be provided
under the following conditions:
(A) The insurer determines
the instruction will help the worker enhance an existing skill or develop a new
skill, and documents its decision; and
(B) The worker begins participation
in the class or course while eligible for the Employer-at-Injury Program;
(b) Clothing required for
the job, except clothing the employer normally provides. Clothing becomes the worker’s
property. Maximum expenditure is $400.
(4) Employer-at-Injury Program
purchases of tools and equipment, including consumables, must be required for the
worker to perform transitional work. These purchases will be the employer’s
property.
(5) Worksite modification
and purchases of tools and equipment are limited to a combined maximum reimbursement
of $5,000.
(6) All modifications and
purchases made by the employer in good faith are reimbursable, even if the worker
refuses to return to work, or if the worker agreed to take part in training and
then later refused to attend training.
Stat. Auth.: ORS 656.622 & 656.726(4)
Stats. Implemented: ORS 656.622
Hist.: WCB 1-1973, f. 1-2-73,
ef. 1-15-73; WCB 3-1973, f. 3-14-73, ef. 4-1-73; WCD 2-1977(Admin)(Temp), f. 9-29-77,
ef. 10-4-77; WCD 2-1978(Admin), f. & ef. 2-1-78; WCD 7-1981(Admin), f. 12-30-81,
ef. 1-1-82; Renumbered from 436-063-0015, 5-1-85; WCD 1-1987(Admin), f. 2-20-87,
ef. 3-16-87; WCD 12-1987, f. 12-17-87, ef. 1-1-88; WCD 13-1990(Temp), f. 6-21-90,
cert. ef. 7-1-90; WCD 32-1990, f. 12-10-90, cert. ef. 12-26-90; WCD 1-1993, f. 1-21-93,
cert. ef. 3-1-93, Renumbered from 436-110-0010, 436-110-0020, 436-110-0025, 436-110-0041,
436-110-0042 & 436-110-0045; WCD 15-1995(Temp), f. 10-9-95, cert. ef. 10-11-95;
WCD 20-1995(Temp), f. 12-8-95, cert. ef. 1-1-96; WCD 10-1996, f. 3-12-96, cert.
ef. 4-5-96; WCD 4-1997(Temp), f. 3-13-97, cert. ef. 3-17-97; WCD 11-1997, f. 8-28-97,
cert. ef. 9-12-97, Renumbered from 436-110-0200; WCD 7-2001, f. 8-14-01, cert. ef.
10-1-0, Renumbered from 436-110-0510; WCD 5-2003, f. 5-16-03, cert. ef. 6-8-03;
WCD 4-2005, f. 5-26-05, 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;
WCD 3-2013, f. 4-12-13, cert. ef. 7-1-13; WCD 1-2015, f. 1-29-15, cert. ef. 3-1-15
436-105-0530
Employer-at-Injury
Program Procedures for Concurrent Injuries
(1) A worker is
eligible for only one Employer-At-Injury Program at a time.
(2) When
a worker in an Employer-at-Injury Program incurs a new compensable injury, transitional
work for the first Employer-At-Injury is considered regular work for the second
Employer-at-Injury Program.
(3) If the
new injury makes the first Employer-at-Injury Program unsuitable, the worker may
be eligible for a second Employer-at-Injury Program under the new injury.
(4) When
the worker is no longer eligible for the second Employer-At-Injury Program, the
first Employer-At-Injury Program may be resumed if the employer and worker still
meet eligibility criteria under that claim.
Stat. Auth.: ORS
656.622 & 656.726(4)

Stats. Implemented:
ORS 656.622

Hist.: WCD
7-2001, f. 8-14-01, cert. ef. 10-1-01; WCD 5-2003, f. 5-16-03, cert. ef. 6-8-03
436-105-0540
Employer-at-Injury
Program Reimbursement Procedures
(1) Reimbursements
may include wage subsidy, Employer-at-Injury Program purchases, and worksite modification.
(2) The insurer
is entitled to a program administrative cost of $120.00 for the first reimbursement
request of an Employer-at-Injury Program. A subsequent request for reimbursement
for the same Employer-at-Injury Program is not entitled to an additional program
administrative cost.
(3) The insurer
must receive all required documentation for reimbursement within one year from the
end of the Employer-at-Injury Program in order to qualify for reimbursement. The
insurer must date stamp each reimbursement request document with the receipt date.
(4) The insurer
must submit the request for reimbursement (Form 2360) to the division within one
year and 30 days from the end of the Employer-at-Injury Program.
(5) The employer-at-injury
reimbursement request must be a minimum of $100. The associated administrative costs
will also be eligible for reimbursement.
(6) Subsequent
requests less than $100 will be eligible for reimbursement. However, the requests
will not be eligible for reimbursement of a subsequent administrative cost.
(7) If the
original request was less than $100, but the amended request is at least $100, the
request and the associated administrative costs will be eligible for reimbursement.
(8) When
the division finds the insurer has submitted an Employer-at-Injury Program reimbursement
request that is incomplete or contains an error, the division may return the form
to the insurer for correction. The insurer has 60 days from the date the insurer
receives the reimbursement request, or one year and 30 days from the end of Employer-at-Injury
Program eligibility, whichever is greater, to make the corrections and return the
corrected form to the division.
(9) The insurer
may send an Employer-at-Injury Program reimbursement request to the division when
a claim was initially denied and was subsequently accepted after the Employer-at-Injury
Program eligibility ended and more than one year and 30 days have passed. In that
case, the insurer must send a completed Employer-at-Injury Program reimbursement
request to the division within 60 days of the first order or stipulation and order
accepting the claim. A copy of the order accepting the claim, or stipulation and
order accepting the claim must be attached.
(10) The
insurer may request reimbursement for a qualifying Employer-at-Injury Program that
took place prior to claim denial even if the claim is denied at the time the reimbursement
request is sent to the division.
(11) Amended
reimbursement requests must be sent to the division within one year and 30 days
from the end of the Employer-at-Injury Program eligibility except as provided in
section (6) of this rule. The insurer may not request additional administrative
cost reimbursement for filing an amended reimbursement request.
(12) An amended
reimbursement request must clearly state that it is an amendment and cite the corrected
information.
(13) The
insurer will not use Employer-at-Injury Program costs subject to reimbursement for
rate making, individual employer rating, dividend calculations, or in any manner
that would affect the employer's insurance premiums or premium assessments with
the present or a future insurer. The insurer must be able to document that Employer-at-Injury
Program costs do not affect the employer's rates or dividend.
(14) If a
preferred worker employed by an eligible employer with active premium exemption
incurs a new injury, the claim is subject to claim cost reimbursement under OAR
436-110. If the worker subsequently enters an Employer-at-Injury Program, program
costs are to be separated from claim costs and will not be reimbursed as claim costs.
[ED. NOTE: Forms
referenced are available from the agency.]
Stat. Auth.:
ORS 656.622 & 656.726(4)

Stats. Implemented:
ORS 656.622

Hist.: WCD
1-1987(Admin), f. 2-20-87, ef. 3-16-87; WCD 12-1987, f. 12-17-87, ef. 1-1-88; WCD
13-1990(Temp), f. 6-21-90, cert. ef. 7-1-90; WCD 32-1990, f. 12-10-90, cert. ef.
12-26-90; WCD 1-1993, f. 1-21-93, cert. ef. 3-1-93, Renumbered from 436-110-0090;
WCD 20-1995(Temp), f. 12-8-95, cert. ef. 1-1-96; WCD 10-1996, f. 3-12-96, cert.
ef. 4-5-96; WCD 11-1997, f. 8-28-97, cert. ef. 9-12-97, Renumbered from 436-110-0360;
WCD 7-2001, f. 8-14-01, cert. ef. 10-1-0, Renumbered from 436-110-0540; WCD 4-2004(Temp),
f. 3-22-04, cert. ef. 4-1-04 thru 9-27-04; WCD 8-2004, f. 7-15-04, cert. ef. 8-1-04;
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 5-2012, f. 10-3-12, cert. ef. 11-1-12
436-105-0550
Audits
(1) Insurers and employers are subject to periodic program and fiscal audits by the division. All reimbursements are subject to subsequent audits, and may be disallowed on any of the grounds set forth in these rules. Disallowed reimbursements must be repaid to the department.
(2) The audit may include but not be limited to a review of the records required in OAR 436-105-0500(7).
(3) When conflicting documentation exists, the division will utilize a preponderance of evidence standard to decide eligibility for reimbursement and if there is no clear preponderance, reimbursement will be allowed.
(4) The division reserves the right to visit the work site to determine compliance with these rules.
Stat. Auth.: ORS 656.455, 656.622, 656.726(4) & 731.475

Stats. Implemented: ORS 656.455, 656.622 & 731.475

Hist.: WCD 7-2001, f. 8-14-01, cert. ef. 10-1-01; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09, cert. ef. 1-1-10
436-105-0560
Sanctions
(1) Any person who knowingly makes a false statement or misrepresentation to the director or an employee of the director for the purpose of obtaining any benefits or reimbursement from the Employer-at-Injury Program or who knowingly misrepresents the amount of a payroll, or knowingly submits a false payroll report, is subject to penalties under ORS 656.990.
(2) Reasons for the director to sanction an insurer, self-insured employer, employer or their representative include, but are not limited to:
(a) Misrepresenting information in order to receive Employer-at-Injury Program assistance;
(b) Making a serious error or omission which resulted in the division approving reimbursement in error;
(c) Failing to respond to employer requests for assistance or failing to administer Employer-at-Injury Program assistance; or
(d) Failure to comply with any condition of these rules.
(3) Sanctions by the director may include one or more of the following:
(a) Ordering the person to take corrective action within a specific period of time;
(b) Ordering the person being sanctioned to repay the department all, or part, of the monies reimbursed, with or without interest at a rate set by the department. The order may include the department's legal costs;
(c) Ending the employer's eligibility to use the Employer-at-Injury Program for a specific period of time; and
(d) Pursuing civil penalties under ORS 656.745 or criminal action against the party.
Stat. Auth.: ORS 656.622 & ORS 656.726(4)

Stat. Implemented: ORS 656.622, ORS 656.745 & ORS 656.990

Hist.: WCD 7-2001, f. 8-14-01, cert. ef. 10-1-01


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