Focus. Workers Compensation. Assessments Where does the money go? Contents. Regular features

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1 Focus Workers Compensation Assessments Where does the money go? by Carey Thompson wo funds are supported through insurer, employer, and worker T assessments: the Consumer and Business Services Fund and the Workers Benefit Fund. The Consumer and Business Services Fund The workers compensation premium assessment operating account of the Consumer and Business Services Fund covers the expenses of the Workers Compensation Division and the Workers Compensation Board and the expenses of the Oregon Occupational Safety and Health Division not covered by federal funds. It also covers workers -compensation-related functions of the Director s Office, the Small Business Ombudsman, the Ombudsman for Injured Workers, the Information Management Division, the Business Administration Division, and the Insurance Division. This fund is from assessments set by the director on the directearned premium of insurers and a simulated earned premium of self-insured employers. The current rate is 7.3 percent. Although the Consumer and Business Services Fund is a dedicated fund and not part of the state s general fund, all of the agency budgets mentioned above must be appropriated by the legislature and approved by the governor. Part of the Consumer and Business Services Fund covers the Self-Insured Employer Adjustment Reserve and the Self-Insured Employer Group Adjustment Reserve. These reserves pay the claims of workers of self-insured employers when the claims costs exceed the sum of employer security deposits, excess coverage, and other assets available to pay claim costs due to employer insolvency. Generally, a third party administrator processes the claims and submits requests for reimbursement to the department. The Workers Benefit Fund From the moneys earned by all subject employees, employers retain an amount determined by the director for each hour or part of an hour the employee works. The director also assesses each employer an amount equal to that retained from the employees earnings. The combined workers compensation assessment rate for employers and employees is 4.0 cents per hour for The following programs are funded through the Workers Benefit Fund: Handicapped Workers Program. The Handicapped Workers Program, formerly the Handicapped Workers Reserve, was to encourage Winter 2000 Assessments continued on page 14 Winter 2000 Vol. IV, No. 1 Contents Assessments Where does the money go?... 1 New claim-closure forms... 5 Use of new Form 827 required... 5 Employers beware: Companies charge for forms that WCD supplies free... 6 Modules cover medical issues and appeal processes... 6 New MCO coordinator Employer-at-Injury program audit findings The Appellate Review Unit now has worker liaisons SB 729 eliminates TPD cap...16 New Centeral Hearings Officer Panel formed WCD has a new ZIP Regular features The ABCs of WCD... 2 Administrator s notebook... 3 Who s who in WCD... 4 Return to Work... 7 Worksite modification... 9 What s up on the Web Focus on Treasures from the attic FOCUS 1

2 The ABCs of WCD Terms and abbreviations in this issue ALJ Administrative law judge The legal representative who reviews and holds impartial hearings on appealed administrative orders and issues a legal opinion. (Formerly called hearings referee.) CDA Claim disposition agreement Also known as a compromise and release. ORS permits the parties to a workers compensation claim to dispose of all matters regarding the claim (except for medical benefits). Contested case hearing A session during which parties may present a dispute to a hearings judge for a legal decision. TPD Temporary partial disability A temporary disability, due to a work-related injury or illness, that allows a worker to return to a modified light-duty or part-time job that pays less than the job at injury. Until the partial disability ends, a worker may receive partial time-loss payments to make up the difference, or a portion of the difference between what he or she earned at the job-atinjury and what he or she earns while on light-duty or part-time work. TPD may not be paid for a period exceeding two years. Worksite modification Changes made to an injured worker s job that allow the worker to do the work within his or her injurycaused limitation. Key telephone numbers and Web address WCD general information: (503) TTY: (503) Workers Compensation Infoline: (800) Fraud Complaint Hotline: (800) Ombudsman for Injured Workers: (503) TTY (503) , (800) (1/00/COM) Editor Billie Healy WCD Administration Phone: (503) billie.j.healy@state.or.us WCD communications manager Jan Miller WCD Administration Editing Dian Cox DCBS Communications Design and production C. J. Lovato DCBS Communications Focus is a quarterly publication of the Oregon Workers Compensation Division. Subscriptions are free. In compliance with the Americans with Disabilities Act, this publication is available in alternative formats. Material contained in this publication is in the public domain and may be copied and distributed without permission. Focus is printed on recycled paper and is recyclable. 2 FOCUS Winter 2000

3 Administrator s notebook A conference designed for you by Mary C. Neidig Mark your calendars for October 23-25, 2000, for the first Oregon Workers Compensation Educational Conference, which we plan to make an annual event. For the past few years, we ve been collecting information from evaluation forms and requests on what type of training you re looking for. Overwhelmingly, the response has been specific training that will help me do my job. We ve had requests from employers for training on how to handle claims, from medical providers on how to fill out forms and bill correctly, from insurers for specific rule training, and from vocational providers pleading for more information directly related to them. Other requests have been for workers compensation training 101 for those new to the system and classes that provide a better understanding of re-employment assistance programs. Well, I m happy to say we have a conference designed with all of you in mind. Co-sponsoring with the International Workers Compensation Foundation, WCD will be offering more than 20 programs at this educational conference. Each program will be offered twice during the two and a half days of the conference, so you shouldn t have to miss any program of interest to you. We ll provide Oregon-specific training for employers, medical providers, claims examiners, injured workers, and others. Part of the conference will feature open forum sessions that will provide panels of experts to answer your questions. You ll have the opportunity to meet WCD staff at informational booths or during the breaks and lunches provided as part of the conference. A special reception on the first evening, will give you even more time to network with other workers compensation experts and professionals in your industry. Workers compensation-related vendors will be available in adjoining rooms to offer you a look at the latest information, services, and technology. The conference will begin on Monday morning with a two-hour general session to give you an update on the latest workers compensation news. The rest of the conference will offer onehour sessions on specific topics. Four sessions will run concurrently approximately every hour. We re sure you ll find a program of interest in each grouping. The conference will also offer continuing-education credits. This educational conference design is offered in other states in cooperation with the International Workers Compensation Foundation and has proved to be successful. From your comments and suggestions, we felt it was time to bring it to Oregon. For more information about our first Oregon Workers Compensation Educational Conference, October at The Marriott in Portland, contact Jan Miller, WCD s communications manager, (503) , or send to jan.k.miller@state.or.us The International Workers Compensation Foundation, Inc. is a non-profit organization established in 1988 to provide research, education, and communication to the workers compensation community. Its founders included Allyn Tatum, former president of the International Association of Industrial Accident Boards and Commissions, and Phillip Bork. Mary Neidig is the administrator of Workers Compensation Division. mary.c.neidig@state.or.us Phone: (503) Winter 2000 FOCUS 3

4 Who s Who in Each day is a new adventure Reta Chastain WC WCD Reta Chastain, Administration by Billie Healy If you re one of the lucky ones, you ve had the opportunity to work with Reta Chastain. Her attitude, which comes shining through in everything she does, is that everyone is deserving of her best efforts. As the administrative support specialist in the administrator s office, she is often the first contact customers have with WCD. Reta welcomes them at the front desk. She answers phones in the administrator s office, and during the course of the day, may work with attorneys, judges, injured workers, employers, insurer representatives, and legislators. She enthusiastically accepts the challenge of learning something new or helping someone. If you ve attended one of our Workers Compensation Forums, then you ve had the advantage of Reta s timely and professional work. She handles registration for division training, public seminars, and division-sponsored conferences. When you call or for registration details, Reta is ready to assist you. Working with the Communications Unit, which is a part of the administrator s office, Reta maintains many of the training materials and coordinates mailings for the public. She works with professional organizations and state agencies, updating reference and resource materials. Reta believes it s important to find something to smile about each day. Her generosity and good nature make her a favorite among her co-workers. One of her supervisors commented Reta is patient, kind, sincere, humorous, and puts forth effort in her work and relationships that is beneficial to all of us who ve had the opportunity to know her. Throughout the 22 years she has worked for Oregon, Reta has shared this spirit and dedication with the public and co-workers. Reta began working for the state at the Department of Veteran Affairs after graduating from high school in Merrill, Oregon. She left state service to raise two children and work as a teachers aide in the education system in Oregon City and Molalla. In 1977, Reta returned to state service with the Employment Department s Data Processing Section when the department was just getting its first two computers. Anyone remember card punch/card readers? Nineteen years ago, Reta came to the Workers Compensation Division to work in Data Processing, IMD and Contested Case units prior to joining Administration. Away from the office, Reta enjoys her family, gardening, reading, and exploring the beautiful state of Oregon. Billie Healy is a communications specialist in the Communications Unit of Administration. billie.j.healy@state.or.us Phone: (503) FOCUS Winter 2000

5 New claim-closure forms by Fred Bruyns and Claudia Stone arlier this year, at the request of the Management-Labor Advisory Committee E (MLAC), WCD formed a focus group of injured workers and key staff members to review the type and clarity of information given to injured workers at the time of claim closure. Workers suggested revisions to the Notice of Closure and proposed new forms based on those used by other states. Drafts of proposed forms were circulated to insurers, self-insured employers, and lawyers for editing and comment. Since then, WCD has incorporated many of the recommendations and will implement use of the new forms with the early-2000 publication of revised Bulletin 139. The new and revised forms are Form 1644, Notice of Closure ; Form 1644a, Understanding Claim Closure and Your Rights (brochure); and the Notice of Closure cover letter. Form 1644 has been reformatted to highlight the worker s appeal rights. The back of the form has been simplified and department phone numbers have been placed in a More Questions? box. Form 1644a is a brochure explaining workers compensation benefits, rights, and responsibilities after claim closure. While it includes some of the same information as the brochure What happens if I am hurt on the job?, it focuses on information that workers need at the time of claim closure. WCD will provide the free brochure to insurers, self-insured employers, and service companies for distribution with Notice of Closures. The Notice of Closure cover letter, to be issued on the insurer s letterhead, explains the packet of documents workers receive at the time of claim closure. It will explain why the claim was closed and notify the worker about the end of temporary disability benefits (if any were due) and the anticipated start of permanent disability benefits (if any are due). As with all new or revised publications, problems may be encountered. WCD invites additional input. Contact Fred Bruyns, (503) , or send to fred.h.bruyns@state.or.us. Fred Bruyns is forms coordinator in the Policy Section. fred.h.bruyns@state.or.us Phone: (503) Claudia Stone is the medical policy analyst in the Policy Section. claudia.a.stone@state.or.us Phone: (503) Use of new Form 827 required January 1, 2000 by Fred Bruyns and Claudia Stone As requested by the Paperwork Reduction Taskforce, the Workers Compensation Division published a revised consolidated medical report form in July The Worker s and Physician s Report for Workers Compensation Claims, Form , replaces five report forms: Form First Medical Report Form Supplemental Medical Report Form Change of Attending Physician Form Palliative Care Request Form Notice of Claim for Aggravation of Occupational Injury or Disease Instructions for use of the new form may be found in Bulletin 292 of July 30, 1999, and the Physician s Guide for Reporting Oregon On-the-job Injuries. Physicians have been encouraged to use up old forms during the latter half of As of January 1, use of the new Form 827 is required. If you have questions about the use of Form 827, please call Fred Bruyns, (503) or send to fred.h.bruyns@state.or.us. Fred Bruyns is forms coordinator in the Policy Section. Claudia Stone is the medical policy analyst in the Policy Section. Winter 2000 FOCUS 5

6 Employers beware: Companies charge for forms that WCD supplies free by Darla Thompson mployers may be contacted by private E companies misrepresenting themselves as being from this agency. Using Oregon statutes as leverage, these businesses contact employers who have changed insurance coverage and try to get employers to purchase forms from them. Notices of Compliance, for instance, are provided by WCD at no cost to employers. If you believe you have been a victim of one of these companies, contact Oregon Department of Justice, Consumer Fraud, (503) or (800) How to protect yourself: Be suspicious if any of the following occur: A business contacts you about required notices, particularly after a change in insurance coverage. Someone says there is a charge for any form required by Oregon WCD rules. Intimidation tactics are used (i.e. you will be penalized or fined if you don t get these forms from us. ) The company does not have an Oregon address or phone number. If you have questions, contact Darla Thompson, (503) , or her: darla.l.thompson@state. or.us. Darla Thompson is the acting supervisor of the Quality Control/Employer Coverage Unit in the Operations Section. Modules cover medical issues and appeal processes by Wendy Stone In the Spring 1999 Focus, the Benefit Consultation unit introduced seven modules planned for internal and external training. In the summer and fall issues, the contents of the first four modules were presented. In this issue, we introduce Modules 5 and 6 and explain our plans for Module 7. Module 5: Medical Issues, contains information on the statutory authority, rule references, and requirements for changes of attending physician, requests for additional insurer medical exams and requirements for an insurer medical exam notice, including consideration of the relevant facts if a suspension of benefits is requested. Module 6: Appeal Processes, includes statutory and rule references and timelines for appeal of issues concerning a claim, determination orders, notice of closures, medical disputes and other various administrative orders. Module 7: Rule and Statute Update, will qualify for two hours of rules update required for claims examiner certification and continuing education. However, it will not be available until the claims processing rules are modified. The benefit consultants provide this training free of charge and will provide documentation of training attendance for continuing education for claims examiner certification in accordance with OAR These training modules can be tailored to the requester s needs. If you are interested in any of the training modules, please call (800) in Oregon, or (503) outside Oregon, to schedule training with the benefit consultants. Wendy Stone is the acting manager of the Benefit Consultation Unit in the Benefit Section. wendy.m.stone@state.or.us Phone: (503) FOCUS Winter 2000

7 Return to Work EAIP questions by Jeff Griffin Q. A worker is released for light-duty work and limited to six hours a day. Can the worker occasionally work more than six hours a day under the EAIP? A. No. The doctor has released the worker for only six hours of work a day. Exceeding this limitation is the same as exceeding any other injury-caused limitation, such as requiring a worker with a 20-pound lifting limit to occasionally lift 50 pounds. The division views requiring a worker to perform work tasks that exceed the stated limitation to be employment that is not a part of the employer s early return-to-work program. This ends the EAIP in accordance with OAR (7). Q. The employer recently sold the business. The new employer kept the employees, including a worker on light duty due to an on-the-job injury. Can the new employer request EAIP reimbursement? A. You miscalculated the EAIP start date. Many insurers and employers think that because the wage subsidy is limited to three consecutive months, the EAIP can t exceed three consecutive months. This is not correct. While the wage subsidy is a maximum of three consecutive months, the EAIP can be as short as one day or as long as several years. In order for purchases to be reimbursable under the EAIP, the purchases must occur on or after the start of light-duty and on or before the end of light-duty. Q. A worker who filed a new claim with the employer also filed a claim for the same body part with a former employer. This is the same as if the worker had filed a claim for aggravation with the insurer-at-injury and a new claim with an employer s new insurer. We are disputing the responsibility for the claim. How do I handle the employer s EAIP request in situations like this? A. No, the new employer is not the employer-atinjury. The employer-at-injury s insurer must end the EAIP no later than the day before the new employer assumed responsibility for the business. If the new employer assumed responsibility for the business on July 1, the EAIP would have to end no later than June 30. A change of business ownership can occur in many forms. This is generally easy to determine when a sole proprietor sells to another individual or a partnership sells to other parties. It becomes complex when only one partner sells, a worker leasing company takes over, or a corporation is involved. As a general rule, if the Federal Tax Identification number of the employer-atinjury has changed since the date of the worker s injury, the employer has changed. Q. Due to a recent audit, the division recovered funds for worksite modification and EAIP purchases, stating that these purchases occurred outside the EAIP period. I reported the EAIP period to be three months long, as required by the rules. My purchases were before this three-month period. What did I do wrong? EAIP questions continued on page 8 Winter 2000 A. The insurer that accepts responsibility for the new claim or reopens the claim on aggravation is responsible for administering the EAIP. When an employer puts a worker back to light-duty work before a decision of claim acceptance, claim reopening on aggravation or a designated paying agent action (.307 action ) occurs, the situation can be complex. In general, when there is a question of responsibility, the employer should always start the EAIP process with its current insurer (if a claim has been filed with that insurer). If the claim is later accepted by another insurer or the claim is reopened on aggravation by another insurer, that insurer assumes responsibility for the entire claim, including administering the EAIP. The insurer who started the EAIP process turns over the EAIP to the responsible insurer who repays the initial insurer any EAIP costs incurred. The same applies when a.307 action occurs. The employer s current insurer may have started the EAIP process when the.307 action occurs. The.307 insurer FOCUS 7

8 EAIP questions continued from Page 7 is responsible for all claim responsibilities, including administering the EAIP. If, at hearing, the.307 insurer is found not responsible for the claim, the insurer responsible for the claim assumes responsibility of the EAIP and must repay the.307 insurer. This procedure is repeated through the entire appeal process. Q. On some light-duty-position-description forms, employers are simply writing 8 hours per day. Does this limit reimbursement to only eight hours per day? What should the employer say for a worker who routinely works more than eight hours? Would as scheduled be appropriate? A. The division customarily relies on the employer s light-duty position description as required in OAR (3)(e), including hours and work schedule. If the position description states the job is an eight-hour job, the employer should not schedule the worker to work longer hours. The job is supposed to be transitional while the worker recovers from the injury. As scheduled is inadequate to describe work hours. The employer/insurer should state and document the general work hours for the position, including the overtime required. When an employer hasn t specified the work hours per day for a light-duty position, we assume the job is eight hours per day, unless the worker s usual work hours are different. When an injured worker frequently or continuously works overtime while on light-duty, there is the appearance that the job isn t really light-duty. Jeff Griffin is a re-employment consultant with the Reemployment Assistance Unit in the Benefits Section. jeffery.l.griffin@state.or.us Phone: (503) Preferred Worker Program questions by Mary Hoskins Q. I am a vocational counselor and I ve been helping an injured worker who is about ready to dispose of his claim. In looking at the proposed Claims Disposition Agreement, it appears to guarantee his Preferred Worker eligibility. Can a CDA do this? A. No, a CDA cannot make a worker eligible for the Preferred Worker Program, even when its language appears to do so. While statute prevents workers from waiving their Preferred Worker eligibility in a CDA, they must still meet all program eligibility requirements. The Reemployment Assistance Unit does all worker eligibility determinations. RAU verifies that workers have permanent injury-caused restrictions and that they are unable to return to regular employment before issuing Preferred Worker cards. Q. Will RAU approve a Preferred Worker obtainedemployment-purchase agreement for purchases like clothing, if exact items and prices are not known? A. Yes, Reemployment Assistance Unit will approve obtained-employment-purchase agreements for a specific number of items if they re described adequately ( four dress shirts or two pairs of casual slacks ) and appear reasonable for a particular job. This can include tools and equipment as well as clothing. RAU will always indicate a maximum dollar amount for purchases. This permits workers to be certain how many items and the dollar amounts the program has approved; they can then go to retailers and select specific items, knowing they will be reimbursed or will get an authorization for payment. Workers should not make additions or substitutions after an agreement is approved, or they may not be reimbursed. Mary Hoskins is the manager of the Reemploymet Assistance Unit in the Benefit Section. mary.e.hoskins@state.or.us Phone: (503) FOCUS Winter 2000

9 Worksite modification Mobile workstation by Dan Gammon Worker disability: A 50-year-old wood-shop teacher sustained a knee injury. He has permanent restrictions from lifting or carrying more than 60 pounds. Work setting: The worker returned to his regular work but was unable to perform some duties. Obstacle: The worker is responsible for securing students unfinished projects in a second-story room accessed by a stairway. He must also retrieve large composite wood panels that weigh pounds, depending on the length, from a storage shed to the instruction area. Once the panels are in the instruction area, he must cut the panels to desired dimensions so they can be assigned to students projects. Cutting the panels involves lifting and maneuvering the panels onto a table saw. Modifications: The Preferred Worker Program purchased a custom-modified cart with the ability to transport the panels. The cart tilts to a horizontal plane so that the panels can be loaded by sliding instead of lifting. The Preferred Worker Program also purchased a panel saw that is vertically mounted on a frame equipped with rollers, allowing the worker to load the panels on the saw platform by sliding and to make the desired cuts without having to lift and maneuver the panels. Transport cart: $775 Panel saw: $2,498 Total cost of modification: $3,273 Note: In addition to the featured modification, the employer agreed to re-assign the lifting and carrying of projects to other personnel and students. Dan Gammon is a re-employment consultant with the Reemployment Assistance Unit in the Benefits Section. dan.r.gammon@state.or.us Phone: (503) Winter 2000 FOCUS 9

10 Dear RRU by Andre Allen Question I used to spend a lot of time on substantial handicap evaluations; however, it seems that whenever there is a dispute regarding this issue, the RRU vocational consultant does the whole analysis over from scratch, so does it really matter what I do? Answer If you complete all parts of the substantial handicap evaluation, as provided in OAR (1), there is no reason why RRU should re-do your work. However, in cases where the insurer has made a no substantial handicap determination without having completed a labor market analysis, as required in OAR (1)(g), the RRU vocational consultant can either send the file back to the insurer, or complete the evaluation and make a decision regarding the worker s eligibility. In the interest of resolving the dispute as quickly as possible, RRU often does the latter. The administrative rules define the labor market analysis required in a substantial handicap evaluation as an analysis of the worker s labor market utilizing Employment Department information such as the Occupational Program Planning System (OPPS) and wage-offered data The rules do not provide instructions for completing this operation; however, RRU has developed a process based on Employment Department guidelines for determining whether reasonable employment opportunities exist for specific occupations. You may find this information helpful, and it may result in your next substantial handicap decision being validated by RRU. The process includes the following steps: 1. Create a list of job titles that may provide suitable employment. Such a list should consider the worker s employment history, transferable skills, and availability of jobs in the worker s local area. 2. Eliminate occupations that exceed the worker s knowledge, skills, and abilities. If your list consists of job titles found in the Dictionary of Occupational Titles, you will need to identify the corresponding Oregon Employment Service occupational groups by using the Occupational Classification Crosswalk, because Oregon labor-market reference materials use OES occupational groups. Using OPPS information for the worker s Oregon Employment Service region, look at the job titles within each occupational group on your list, and determine whether the worker meets the specific vocational preparation and strength requirements for all or most of them. Job titles that have specific vocational preparation requirements of up to three (one to three months) require little or no experience or prior training. 3. Eliminate occupations that do not pay a suitable wage. Using Oregon Automated Reporting System reports, determine whether the Q2 (hourly) wage for each occupational group is suitable on a weekly basis. To convert the Q2 wage to a weekly wage, multiply it by 40 (hours per week). If the result is within 20 percent of the worker s adjusted weekly wage, then the Q2 wage is suitable. 4. Eliminate occupations that do not offer reasonable employment opportunities. Using OPPS occupational demand and supply indicators, determine whether each occupational group offers reasonable employment opportunities. The indicators to consider, in order of importance, are projected employment, average annual openings, unemployment rate, unemployment to openings ratio, and average annual growth rate. Job orders and labor market surveys The steps described above are often sufficient to determine whether a particular occupational group is likely to provide reasonable opportunities for suitable employment within the worker s region. In some cases, however, it may be necessary to supplement OPPS and OARS data with Oregon Employment Service job orders or labor market surveys. Oregon Employment Service job orders and labor market surveys may help determine the following: Which job titles are in demand in the worker s region. This information is useful if the occupational group is very large, e.g., Other Assemblers and Fabricators includes 472 job titles! 10 FOCUS Winter 2000

11 Whether available jobs are full- or part-time, permanent or temporary. This information may be necessary if OARS data show a high Part Time Percentage in order to determine the likelihood that those jobs would provide a suitable weekly wage. What types of training, experience, and/or physical capabilities employers are looking for. If any occupational groups remain on your original list after you complete this process, the worker may be considered employable in suitable employment and does not have a substantial handicap to employment. On the other hand, if none remain on the list, the worker probably has a substantial handicap. Detailed instructions for interpreting OPPS information is included in the OES publication, Oregon Comprehensive Analysis File. Additional help is available on the Oregon Labor Market Information System Web site ( Call Frank Ryals, Employment Department occupational information analyst, (503) , or Brenda Turner, occupational economist, (503) , if you have questions. If you need OES job orders, please contact the closest RRU office. Question I am preparing a written statement of informed consent (waiver of suitable wage) according to Bulletin No The guidelines that appeared in the Spring 1998 Focus state that if a worker is represented, the waiver must be signed by the worker s attorney; however, I was recently told by an RRU vocational consultant that the attorney s signature is not required. Which is correct? Answer WCD does not require the attorney s signature. However, if an insurer does not obtain the signature of a represented worker s attorney, the insurer risks the attorney arguing that the worker s consent was not informed, because the worker was denied access to legal advice. Bulletin No. 298 states that a written statement of informed consent should include at least the following: Language indicating that the worker understands the entitlement to services that will return the worker to a wage as close as possible to 100 percent of the adjusted weekly wage Language indicating that the worker gives up that entitlement in order to pursue the agreed-upon return-to-work plan The worker s signature A written statement of informed consent is needed only if a worker who could obtain a wage closer to the adjusted weekly wage by receiving training for goal A chooses instead to pursue goal B, which pays a lower wage. In other words, a waiver is not needed just because a training goal pays a wage lower than the adjusted weekly wage. Andre Allen is a vocational consultant in RRU s Medford office. andre.b.allen@ state.or.us Phone: (541) Winter 2000 FOCUS 11

12 Retraining Winners Successful career changes for workers from east of the Cascades by Elizabeth Johnson Lynn Baxter, a vocational coordinator, presents two success stories of workers* insured through SAIF Corporation: Shirley injured her right shoulder and developed bilateral carpal tunnel syndrome while trimming trees with a chain saw from a high bucket on a neighbor s Central Oregon ranch. As she was unable to return to her duties on the ranch she owns with her husband, SAIF referred Shirley for vocational assistance. SAIF approved yearlong Columbia Gorge Community College training to help Shirley become an accounting clerk. The training program was prepared by Cheri Ballantine, a vocational counselor for Jack Davis and Associates. After six months of classes, Shirley received an offer of employment as a general office clerk from an insurance company in her home community, and Ms. Ballantine helped her obtain a wage-subsidy contract. The employer was so impressed by Shirley s skills and abilities that he sent her to the Oregon Insurance School to get her agent s license. She is now certified to sell insurance policies on commission and has the potential to earn more income than at injury. The second worker, Jack, injured his left hand while using a saw as part of his work as a carpenter. SAIF referred him to NOVAEON in Pendleton for vocational assistance. Jack was reluctant to leave his family in Eastern Oregon, but agreed to attend school at Northwest Technical Institute in Portland for training in construction cost estimating. SAIF approved the training program arranged by NOVAEON vocational counselor Bill Gailey. Jack successfully completed academic training and then participated in a two-month professional skills training program with a Washington-based employer. That employer offered Jack employment at a higher wage than he earned at injury, and Jack reports his income has increased significantly as his skill levels have improved. All parties are pleased with the successful resolution of these two cases of industrial injury. We want to hear other successful rehabilitation stories. Please send them to Good Rehabilitation, c/o RRU, Workers Compensation Division, 350 Winter St. NE, Rm. 27, Salem OR , or send to elizabeth.a.johnston@state.or.us. *Workers names have been changed in this article. Elizabeth Johnston is a vocational consultant with the Rehabilitation Review Unit. elizabeth.a.johnston@state.or.us Phone: (503) New MCO coordinator Sandra Savage has been appointed MCO coordinator, following the August retirement of Jan DeWeese. Sandra began working for the division in 1991 as a medical review specialist in the Medical Review and Abuse Section; since 1993, she has been an investigator/auditor in the Compliance Section s Investigation Unit. If you have questions about MCO certification or MCO operations, call Sandra, (503) , or send to: sandra.l.savage@state.or.us. 12 FOCUS Winter 2000

13 What s up on the Web Forget Y2K remember H2F! by Ramona Barnwell If you re tired of not finding exactly what you re looking for on WCD s Web site, then H2F How 2 Find information is for you. WCD s new and powerful search engine, Verity, allows you to search with single words or phrases, exclude terms from searches, or use wildcards to expand your search. The search feature can be accessed on any WCD Web page by clicking on site search engine. When you search with a single word, Verity also searches for stemmed variations of the term. So, if you re searching for the word work, it will bring you results for work, works, and working. If you type the word in double quotations, the search engine will find pages that match only that word. You may expand your search by linking the terms with OR. You can also narrow your searches by linking the terms with AND. Use NOT in your search term to exclude pages that aren t helpful. For example, if you re looking for documents about a hearing, to prevent the search from producing documents that include hearing aids as well, type hearing NOT aids. If you are searching for abbreviations or acronyms, how you type the search term is important. For example, if you are looking for DO (Determination Order), use the CASE modifier, which is <CASE>, and type the term in upper case like this: <CASE> DO Use wildcard characters if you re not sure of the spelling of your search term. Substitute an asterisk to find a string of characters of any length, or substitute a question mark to substitute for characters in a particular place in a term. Don t be disappointed if you can t find what you re looking for the first time around. It is normal to repeat your search to refine the information Verity retrieves. Remember: Always enter your word(s) in lowercase. Search for phrases by putting spaces between the words. Use double quotes to find pages that contain only that word. Use AND to narrow your search. Use OR to expand your search. Use NOT to exclude pages that aren t useful. Use <CASE> and the term in uppercase when looking for abbreviations or acronyms. Use wildcards: * or? if you re not sure of the spelling of a word. Good luck and happy searching! Ramona Barnwell is WCD s Web editor in Administration. ramona.e.barnwell@state.or.us Phone: (503) Please visit our Web site for more information on Oregon s workers compensation system. Winter 2000 FOCUS 13

14 Assessment continued from Page 1 the employment of handicapped workers whether their impairment was due to congenital causes, injury or disease. It allowed for reimbursement for subsequent injuries for the percent of claim costs that could be attributed to the handicap. The legislature s special session in 1990 ended the identification of new claims for eligibility under the Handicapped Workers Reserve when incentives under the Reemployment Assistance Reserve were increased. No new claims against the reserve have been accepted since May 1, Reemployment Assistance Program. The Reemployment Assistance Program, formerly the Workers Reemployment Reserve, and previous to that, the Second Injury Reserve, provides incentives to employers to rehire or hire injured workers. Employment is encouraged through premium exemption, wage subsidies, worksite modifications, certain purchases, and claim cost reimbursement for eligible employers and workers. The program also offers reimbursement to insurers and selfinsured employers for certain related administrative costs. Reopened Claims Program. The Reopened Claims Program, formerly the Reopened Claims Reserve, provides reimbursement to insurers, self-insured employers and selfinsured employer groups for costs arising from specific claim costs associated with Board s Own Motion orders. These orders are done under the authority of ORS When the worsening of a compensable injury within five years of claim closure requires inpatient or outpatient surgery or other treatment involving hospitalization, payments of temporary disability compensation may be authorized by a Board s Own Motion order. If original claims have a date of injury prior to January 1, 1966, the payment of medical benefits may be authorized as well. Retroactive Program. The Retroactive Program, formerly the Retroactive Reserve, was established to provide increased compensation benefits to workers or their beneficiaries for benefit levels that are lower than what is currently being paid for those injuries. The increased benefits are received mainly by beneficiaries of workers who died from on-the-job injuries and by claimants who have been determined to have permanent total disabilities. Noncomplying Employer Payments. Noncomplying employer payments are for claims costs of injured workers who were employed by an employer that did not have workers compensation insurance coverage at the time of the workers injury. These payments previously came out of the Consumer and Business Services Fund, but this was changed in 1995 legislation. Premium Assessment Operating Account Expenditure Allocation, Fiscal Year 2000 Insurance CROET 3% Division 1% Self-Insured WBF (For NCE and Rehab) 2% Employer Reserves 1% Central Support Services 18% Oregon OSHA 32% Workers Compensation Division 29% Workers Compensation Board 14% Rehabilitation Payments. The department reimburses insurers for vocational assistance costs for workers injured prior to January 1, This includes temporary disability compensation during authorized training if the worker is medically stationary and the injury was after December The reserve for these costs, the Rehabilitation Reserve, was abolished by the legislature in This action made rehabilitation costs for claims occurring after December 31, 1985 part of the overall claims costs borne by insurers or self-insured employers. Center for Research on Occupational and Environmental Toxicology. An amount equal to one sixteenth of one cent of workers wage deductions is transferred from the Consumer and Business Services Fund for half of the funding for the Center for Research on Occupational and Environmental Toxicology. In addition to these programs, the following fund transfers from the Workers Benefit Fund were authorized by the legislature for this biennium only: $466,436 to the Bureau of Labor and Industries for the enforcement of complaints filed by injured workers with the Civil Rights Division, and an amount not to exceed $8,906,000 to the Department of Human Resources for services provided by rehabilitation facilities. Carey Thompson is the executive assistant to the administrator. carey.l.thompson@state.or.us Phone FOCUS Winter 2000

15 Employer-at-Injury Program audit findings by Dan McNally and Jeff Griffin Identifying appropriate light-duty work or modifying regular employment. When creating or identifying a light-duty job or modifying regular employment, the employer and insurer must not only ensure that the job is within the injurycaused restrictions, but also that the job does not meet the definition of regular employment as found in Oregon Administrative Rules. The division has found upon audit that some modified jobs are actually regular employment with only minor changes in job duties or accommodations for the worker s restrictions. When, upon audit, it is determined that the light-duty job is substantially similar to the worker s regular job, the reimbursement is disallowed. OAR (9) defines regular employment as the job the worker held at the time of the injury or claim reopening, or employment substantially similar in nature, duties, responsibilities, knowledge, skills, and abilities This means an employer cannot simply shift a minor job duty or provide a minor accommodation for regular employment and claim that the job is now modified employment. The job is still substantially similar in nature, duties, responsibilities, knowledge, skills, and abilities. Any job duty that is shifted, reassigned, or a combination of changed job duties and physical accommodations must significantly change the regular job so that it is no longer substantially similar to regular employment. If you are uncertain whether a regular job has been changed enough to make it modified employment, check OAR (3) and (4) although not an EAIP rule, it provides excellent examples for the determination you must make. This rule also provides good examples of accommodations or combinations of accommodations that do not significantly modify regular employment. This is not an all-inclusive list, but it does illustrate the essence of accommodations that do not significantly modify regular employment. Staying within hourly restrictions. There are several restrictions a physician might place on a worker. One of those restrictions is the number of hours a worker may work in a day or week. This is a restriction often exceeded. A work release specifies the conditions under which a medically unstable and recovering claimant can work without hindering the healing process. A physician s time restrictions are as important to a successful Early-Return-to-Work Program (ERWP) as the physical restrictions by which a claimant may be released to work. OAR : The insurer shall end the EAIP when the worker has returned to other work which is not part of the employer s early-return-to-work program. When it is found at audit that a worker has worked beyond an imposed time restriction, the worker has returned to work that is not part of the employer s ERWP. If the worker began the light-duty position with a time restriction and subsequently began exceeding the restriction, the EAIP ends on the date the worker began exceeding the restriction.the reimbursement would be disallowed if the worker exceeded the time restriction immediately upon returning to the light-duty position. Determining EAIP and wage-subsidy start dates The insurer chooses the EAIP and wage-subsidy start dates, but a lot of employers and insurers misunderstand when EAIP and wage subsidy periods can begin. The EAIP start date can be any date on or after the date of injury, once the worker s restrictions are known. It is not tied to the date the worker begins or is working the light-duty job. This allows an employer to make any worksite modifications or early-return-to-work purchases necessary to enable the worker to perform the light-duty job before the worker actually begins light-duty. These items must be ordered, purchased, and used by the worker on or after the EAIP start date to be reimbursable. In contrast, the wage-subsidy period cannot begin until the worker has begun working the light-duty job. For example, if a worker is released to light duty, but chooses to take vacation or other paid leave before starting the light-duty job, the wage-subsidy period cannot begin, because the worker has not yet participated in the employer s early-return-to-work program. Wages paid for vacation and other leave taken before commencing light-duty work are not reimbursable. Audit findings continued on page 17 Winter 2000 FOCUS 15

16 The Appellate Review Unit now has worker liaisons by Lisa Murphy ome of the Appellate Review Unit has taken S on new job duties as worker liaisons. A liaison, as described by Webster s Dictionary, provides communication for establishing and maintaining mutual understanding. This position emerged as a result of a bill that was introduced but not passed last session. The bill, HB 2769, would have required a face-to-face interview between any worker appealing a claim closure and a representative of the Appellate Review Unit. As a result of the proposed bill and concerns over the complexity of claim closure, the Management/Labor Advisory Committee directed WCD to convene a focus group of injured workers. The group made a number of recommendations, including better ways to explain workers rights and responsibilities regarding claim closure and the reconsideration process. One outcome was a new brochure, Understanding Claim Closure and Your Rights, which was recently made available to the public. Another recommendation led to the development of the liaison role in the Appellate Review Unit. The liaisons are to provide workers the opportunity to discuss the reconsideration process oneon-one. Worker liaisons will not be advocates, and won t provide legal advice, but will serve as educators. Based on the recommendations of the focus group, the liaison will help workers understand the reconsideration process and their options, help workers complete requests for reconsideration, and answer workers questions as they go through the reconsideration process, including questions about making a statement for the record. If you have questions regarding worker liaisons, please call Debra Buchanan, manager of the Appellate Review Unit, (503) Lisa Murphy is an appellate review specialist with the Appellate Review Unit in the Dispute Resolution Section. lisa.j.murphy@state.or.us Phone: (503) SB 729 eliminates TPD cap by Wendy Stone Senate Bill 729, which became effective October 23, eliminated the two-year maximum payment of temporary partial disability (TPD) in ORS (2). Because the bill did not contain a retroactive clause and did not modify ORS , it does not apply to claims in existence before the effective date. Rather, it applies only to claims with a date of injury on or after October 23, A question was asked about this subject at the Forum seminar in Medford in August and the answer was incorrect. The previous language limiting TPD payments to two years will remain in effect for all claims that existed prior to October 23, See ORS (2). Remember the Benefit Consultation Unit is a resource available to everyone. If we don t know the answer when you contact us, we will research your question and contact you with the answer. You may call BCU Monday through Friday, (800) in Oregon; outside Oregon, the number is (503) Wendy Stone is the acting manager of the Benefit Consultation Unit in the Benefit Section. wendy.m.stone@state.or.us Phone: (503) FOCUS Winter 2000