Bill Text: OR HB2069 | 2013 | Regular Session | Enrolled
Bill Title: Relating to payment of temporary disability compensation paid to injured workers engaged in vocational training.
Spectrum: Committee Bill
Status: (Passed) 2013-05-13 - Chapter 103, (2013 Laws): Effective date January 1, 2014. [HB2069 Detail]
Download: Oregon-2013-HB2069-Enrolled.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
Enrolled
House Bill 2069
Introduced and printed pursuant to House Rule 12.00. Presession
filed (at the request of House Interim Committee on Business
and Labor for Oregon Association of Rehabilitation
Professionals)
CHAPTER ................
AN ACT
Relating to payment of temporary disability compensation paid to
injured workers engaged in vocational training; creating new
provisions; and amending ORS 656.340.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 656.340 is amended to read:
656.340. (1)(a) The insurer or self-insured employer shall
cause vocational assistance to be provided to an injured worker
who is eligible for assistance in returning to work.
(b) For this purpose the insurer or self-insured employer shall
contact a worker with a claim for a disabling compensable injury
or claim for aggravation for evaluation of the worker's
eligibility for vocational assistance within five days of:
(A) Having knowledge of the worker's likely eligibility for
vocational assistance, from a medical or investigation report,
notification from the worker, or otherwise; or
(B) The time the worker is medically stationary, if the worker
has not returned to or been released for the worker's regular
employment or has not returned to other suitable employment with
the employer at the time of injury or aggravation and the worker
is not receiving vocational assistance.
(c) Eligibility may be redetermined by the insurer or
self-insured employer upon receipt of new information that would
change the eligibility determination.
(2) Contact under subsection (1) of this section shall include
informing the worker about reemployment rights, the
responsibility of the worker to request reemployment, and wage
subsidy and job site modification assistance and the provisions
of the preferred worker program pursuant to rules adopted by the
Director of the Department of Consumer and Business Services.
(3) Within five days after notification that the attending
physician or nurse practitioner authorized to provide compensable
medical services under ORS 656.245 has released a worker to
return to work, the insurer or self-insured employer shall inform
the worker about the opportunity to seek reemployment or
reinstatement under ORS 659A.043 and 659A.046. The insurer shall
inform the employer of the worker's reemployment rights, wage
subsidy and the job site modification assistance and the
provisions of the preferred worker program.
Enrolled House Bill 2069 (HB 2069-INTRO) Page 1
(4) As soon as possible, and not more than 30 days after the
contact required by subsection (1) of this section, the insurer
or self-insured employer shall cause an individual certified by
the director to provide vocational assistance to determine
whether the worker is eligible for vocational assistance. The
insurer or self-insured employer shall notify the worker of the
decision regarding the worker's eligibility for vocational
assistance. If the insurer or self-insured employer decides that
the worker is not eligible, the worker may apply to the director
for review of the decision as provided in subsection (16) of this
section. A worker determined ineligible upon evaluation under
subsection (1)(b)(B) of this section, or because the worker's
eligibility has fully and finally expired under standards
prescribed by the director, may not be found eligible thereafter
unless that eligibility determination is rejected by the director
under subsection (16) of this section or the worker's condition
worsens so as to constitute an aggravation claim under ORS
656.273. A worker is not entitled to vocational assistance
benefits when possible eligibility for such benefits arises from
a worsening of the worker's condition that occurs after the
expiration of the worker's aggravation rights under ORS 656.273.
(5) The objectives of vocational assistance are to return the
worker to employment which is as close as possible to the
worker's regular employment at a wage as close as possible to the
weekly wage currently being paid for employment which was the
worker's regular employment even though the wage available
following employment may be less than the wage prescribed by
subsection (6) of this section. As used in this subsection and
subsection (6) of this section, 'regular employment' means the
employment the worker held at the time of the injury or the claim
for aggravation under ORS 656.273, whichever gave rise to the
potential eligibility for vocational assistance; or, for a worker
not employed at the time of the aggravation, the employment the
worker held on the last day of work prior to the aggravation.
(6)(a) A worker is eligible for vocational assistance if the
worker will not be able to return to the previous employment or
to any other available and suitable employment with the employer
at the time of injury or aggravation, and the worker has a
substantial handicap to employment.
(b) As used in this subsection:
(A) A 'substantial handicap to employment' exists when the
worker, because of the injury or aggravation, lacks the necessary
physical capacities, knowledge, skills and abilities to be
employed in suitable employment.
(B) 'Suitable employment' means:
(i) Employment of the kind for which the worker has the
necessary physical capacity, knowledge, skills and abilities;
(ii) Employment that is located where the worker customarily
worked or is within reasonable commuting distance of the worker's
residence; and
(iii) Employment that produces a weekly wage within 20 percent
of that currently being paid for employment that was the worker's
regular employment as defined in subsection (5) of this section.
The director shall adopt rules providing methods of calculating
the weekly wage currently being paid for the worker's regular
employment for use in determining eligibility and for providing
assistance to eligible workers. If the worker's regular
employment was seasonal or temporary, the worker's wage shall be
averaged based on a combination of the worker's earned income and
any unemployment insurance payments. Only earned income evidenced
Enrolled House Bill 2069 (HB 2069-INTRO) Page 2
by verifiable documentation such as federal or state tax returns
shall be used in the calculation. Earned income does not include
fringe benefits or reimbursement of the worker's employment
expenses.
(7) Vocational evaluation, help in directly obtaining
employment and training shall be available under conditions
prescribed by the director. The director may establish other
conditions for providing vocational assistance, including those
relating to the worker's availability for assistance,
participation in previous assistance programs connected with the
same claim and the nature and extent of assistance that may be
provided. Such conditions shall give preference to direct
employment assistance over training.
(8) An insurer or self-insured employer may utilize its own
staff or may engage any other individual certified by the
director to perform the vocational evaluation required by
subsection (4) of this section.
(9) The director shall adopt rules providing:
(a) Standards for and methods of certifying individuals
qualified by education, training and experience to provide
vocational assistance to injured workers;
(b) Standards for registration of vocational assistance
providers;
(c) Conditions and procedures under which the certification of
an individual to provide vocational assistance services or the
registration of a vocational assistance provider may be suspended
or revoked for failure to maintain compliance with the
certification or registration standards;
(d) Standards for the nature and extent of services a worker
may receive, for plans for return to work and for determining
when the worker has returned to work; and
(e) Procedures, schedules and conditions relating to the
payment for services performed by a vocational assistance
provider, that are based on payment for specific services
performed and not fees for services performed on an hourly basis.
Fee schedules shall reflect a reasonable rate for direct worker
purchases and for all vocational assistance providers and shall
be the same within suitable geographic areas.
(10) Insurers and self-insured employers shall maintain records
and make reports to the director of vocational assistance actions
at times and in the manner as the director may prescribe. The
requirements prescribed shall be for the purpose of assisting the
Department of Consumer and Business Services in monitoring
compliance with this section to insure that workers receive
timely and appropriate vocational assistance. The director shall
minimize to the greatest extent possible the number, extent and
kinds of reports required. The director shall compile a list of
organizations or agencies registered to provide vocational
assistance. A current list shall be distributed by the director
to all insurers and self-insured employers. The insurer shall
send the list to each worker with the notice of eligibility.
(11) When a worker is eligible to receive vocational
assistance, the worker and the insurer or self-insured employer
shall attempt to agree on the choice of a vocational assistance
provider. If the worker agrees, the insurer or self-insured
employer may utilize its own staff to provide vocational
assistance. If they are unable to agree on a vocational
assistance provider, the insurer or self-insured employer shall
notify the director and the director shall select a provider. Any
Enrolled House Bill 2069 (HB 2069-INTRO) Page 3
change in the choice of vocational assistance provider is subject
to the approval of the director.
(12) Notwithstanding ORS 656.268, a worker actively engaged in
training may receive temporary disability compensation for a
maximum of 16 months. The insurer or self-insured employer may
voluntarily extend the payment of temporary disability
compensation to a maximum of 21 months. { + The director may
order the payment of temporary disability compensation for up to
21 months upon good cause shown by the injured worker. + } The
costs related to vocational assistance training programs may be
paid for periods longer than 21 months, but in no event may
temporary disability benefits be paid for a period longer than 21
months.
(13) As used in this section, 'vocational assistance provider'
means a public or private organization or agency that provides
vocational assistance to injured workers.
(14)(a) Determination of eligibility for vocational assistance
does not entitle all workers to the same type or extent of
assistance.
(b) Training shall not be provided to an eligible worker solely
because the worker cannot obtain employment, otherwise suitable,
that will produce the wage prescribed in subsection (6) of this
section unless such training will enable the worker to find
employment which will produce a wage significantly closer to that
prescribed in subsection (6) of this section.
(c) Nothing in this section shall be interpreted to expand the
availability of training under this section.
(15) A physical capacities evaluation shall be performed in
conjunction with vocational assistance or determination of
eligibility for such assistance at the request of the insurer or
self-insured employer or worker. The request shall be made to the
attending physician or nurse practitioner authorized to provide
compensable medical services under ORS 656.245. The attending
physician or nurse practitioner, within 20 days of the request,
shall perform a physical capacities evaluation or refer the
worker for such evaluation or advise the insurer or self-insured
employer and the worker in writing that the injured worker is
incapable of participating in a physical capacities evaluation.
(16)(a) The Legislative Assembly finds that vocational
rehabilitation of injured workers requires a high degree of
cooperation between all of the participants in the vocational
assistance process. Based on this finding, the Legislative
Assembly concludes that disputes regarding eligibility for and
extent of vocational assistance services should be resolved
through nonadversarial procedures to the greatest extent possible
consistent with constitutional principles. The director shall
adopt by rule a procedure for resolving vocational assistance
disputes in the manner provided in this subsection.
(b) If a worker is dissatisfied with an action of the insurer
or self-insured employer regarding vocational assistance, the
worker must apply to the director for administrative review of
the matter. Application for review must be made not later than
the 60th day after the date the worker was notified of the
action. The director shall complete the review within a
reasonable time.
(c) If the worker's dissatisfaction is resolved by agreement of
the parties, the agreement shall be reduced to writing, and the
director and the parties shall review the agreement and either
approve or disapprove it. The agreement is subject to
Enrolled House Bill 2069 (HB 2069-INTRO) Page 4
reconsideration by the director under limitations prescribed by
the director, but is not subject to review by any other forum.
(d) If the worker's dissatisfaction is not resolved by
agreement of the parties, the director shall resolve the matter
in a written order based on a record sufficient to permit review.
The order is subject to review under ORS 656.704. The request for
a hearing must be filed within 60 days of the date the order was
issued. At the hearing, the order of the director shall be
modified only if it:
(A) Violates a statute or rule;
(B) Exceeds the statutory authority of the agency;
(C) Was made upon unlawful procedure; or
(D) Was characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
(e) For purposes of this subsection, the term 'parties ' does
not include a noncomplying employer.
SECTION 2. { + The amendments to ORS 656.340 by section 1 of
this 2013 Act apply to all claims by workers who are eligible for
or actively engaged in vocational training on or after the
effective date of this 2013 Act. + }
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Passed by House March 5, 2013
.............................................................
Ramona J. Line, Chief Clerk of House
.............................................................
Tina Kotek, Speaker of House
Passed by Senate May 2, 2013
.............................................................
Peter Courtney, President of Senate
Enrolled House Bill 2069 (HB 2069-INTRO) Page 5
Received by Governor:
......M.,............., 2013
Approved:
......M.,............., 2013
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2013
.............................................................
Kate Brown, Secretary of State
Enrolled House Bill 2069 (HB 2069-INTRO) Page 6
