(1)
Purpose of eligibility
evaluation. An eligibility evaluation is done to determine whether the
worker is or is not eligible for vocational assistance.
(2)
When an eligibility evaluation is
not required. An eligibility evaluation is not required if:
(a) The worker's claim is reopened under Own
Motion under ORS
656.278;
(b) The worker is receiving permanent total
disability benefits; or
(c) The
worker is deceased.
(3)
When an eligibility evaluation is required. Except as provided in
OAR
436-120-0117, the insurer is required to begin an eligibility evaluation
for workers with accepted disabling claims within five days of any of the
following conditions:
(a) The insurer receives
information such as medical or investigative reports that indicate, before the
worker is medically stationary, the worker is likely eligible for vocational
assistance;
(b) The worker is
medically stationary, is not currently receiving vocational assistance, and:
(A) Has not returned to or been released to
regular employment; or
(B) Has not
returned to other suitable employment with the employer at the time of injury
or aggravation; or
(c)
Eligibility was previously determined under the current opening of the claim
and the insurer has accepted a new condition.
(4)
Services may be provided at any
time. Nothing in these rules prevents an insurer from finding a worker
eligible and providing vocational assistance at any time.
(5)
Worker request for vocational
assistance. If the insurer receives a request for vocational assistance
from the worker and the insurer is not required to do an eligibility
evaluation, the insurer may not deny eligibility for assistance, but must
notify the worker in writing within 14 days of the request of:
(a) The reasons an eligibility evaluation is
not required;
(b) The circumstances
that require an eligibility evaluation; and
(c) Instructions to contact the division with
questions about vocational assistance eligibility requirements and
procedures.
(6)
The
eligibility evaluation process.
(a)
The eligibility evaluation must be done by a counselor.
(b) At the insurer's request, the worker must
provide vocationally relevant information needed to determine eligibility
within a reasonable time set by the insurer.
(c) The insurer must provide the counselor
with all relevant vocational and medical information.
(d) The eligibility evaluation process,
including notifying the worker of the results under section (9) of this rule,
must be completed within 30 days of when the process began under section (3) of
this rule, unless extended under section (7) of this rule.
(e) Either the insurer or the counselor may
notify the worker of the results of the eligibility evaluation under section
(9) of this rule.
(7)
Extension of time.
(a) The
counselor may extend the time frame in section (6) of this rule for completing
the eligibility evaluation if the counselor is unable to obtain needed
information from the worker, employer, or medical provider.
(b) An extension of time may be for no more
than 30 days.
(c) The counselor
must notify the worker of the extension under section (8) of this rule, and
submit a copy of the letter to the division.
(8)
Notice of extension of time.
The letter informing the worker that the time frame for completing the
eligibility evaluation process has been extended must:
(a) Clearly indicate the purpose of the
letter;
(b) Explain the reason for
the extension of time;
(c) Explain
what information is necessary to complete the eligibility evaluation
process;
(d) State when the
eligibility evaluation process is expected to be completed;
(e) Be mailed to the worker within five days
of the date the counselor determines an extension is needed under subsection
(7)(a) of this rule; and
(f)
Include the following language in bold type:
"If you have questions about the vocational assistance
process, contact [use appropriate reference to the insurer]. If you still have
questions contact the Workers' Compensation Division's toll free number
1-800-452-0288."
(9)
Results of the eligibility
evaluation. The results of the eligibility evaluation must be mailed to
the worker following the requirements for the appropriate notice under
subsection (a) or (b) of this section.
(a) The
Notice of Eligibility FOR VOCATIONAL ASSISTANCE must:
(A) Include the worker's responsibilities, as
specified in OAR
436-120-0197(2) and 436-120-0520(1);
(B) Include the following statement in bold
type:
"You have the right to request a return-to-work plan
conference if the insurer does not approve a return-to-work plan within 90 days
of determining you are entitled to a training plan, or within 45 days of
determining you are entitled to a direct employment plan. The purpose of the
conference will be to identify and remove all obstacles to return-to-work plan
completion and approval. The insurer, the worker, the counselor, and any other
parties involved in the return-to-work process must attend the conference. The
insurer or the worker may request a conference with the division if other
delays in the vocational assistance process occur. Your request for this
conference should be directed to the Employment Services Team of the Workers'
Compensation Division. The address and telephone number of the division are:
Employment Services Team, Workers' Compensation Division, P.O. Box 14480,
Salem, Oregon 97309-0405; 1-800-452-0288.";
(C) Explain that the worker and the insurer
must agree on the selection of a counselor, and:
(i) Provide instructions for the worker to
access the list of providers on the division's website
(wcd.oregon.gov/rtw/Pages/voc-assistance.aspx);
(ii) Include a phone number for the worker to
call to request a paper copy of the list; and
(iii) Include the following language in bold
type:
"If you have questions about the vocational counselor
selection process, contact [use appropriate reference to the insurer]. If you
still have questions, call the Workers' Compensation Division at
1-800-452-0288.";
(D) Include information about the Preferred
Worker Program;
(E) Explain what
the worker can do if the worker disagrees with something the insurer does;
and
(F) Explain direct employment
services and state the worker is not entitled to training, if the worker is
entitled to direct employment services but not training.
(b) The NOTICE OF INELIGIBILITY FOR
VOCATIONAL ASSISTANCE must include:
(A)
Information about services that may be available at no cost from the Oregon
Employment Department or the Office of Vocational Rehabilitation
Services;
(B) A brief description
of the Preferred Worker Program benefits and contact information. The
information can be part of the notice or a separate document attached to the
notice; and
(C) A list of suitable
occupations the worker can perform without being retrained, if the notice is
based on a finding that the worker does not have a substantial handicap to
employment.
(10)
Multiple claims. Vocational
assistance may only be provided for one claim at a time. If the worker is
eligible for vocational assistance under two or more claims, the claim for the
injury with the most severe vocational impact is the claim that gave rise to
the need for vocational assistance. The parties may agree to provide services
for more than one claim at a time, and extend time and fee limits beyond those
allowable in these rules.
Notes
Or. Admin. R.
436-120-0115
WCD 11-1982(Admin)(Temp),
f. 12-29-82, ef. 1-1-83; WCD 2-1983(Admin), f. & ef. 6-30-83; WCD
5-1983(Admin), f. 12-14-83, ef. 1-1-84; Renumbered from 436-061-0111, 5-1-85;
WCD 7-1985(Admin), f. 12-12-85, ef. 1-1-86, , Renumbered from 436-061-0111; WCD
11-1987, f. 12-17-87, ef. 1-1-88, Renumbered from 436-120-0060; WCD 10-1994, f.
11-1-94, cert. ef. 1-1-95, Renumbered from 436-120-0035; WCD 6-1996, f. 2-6-96,
cert. ef. 3-1-96; WCD 6-2000, f. 4-27-00, cert. ef. 6-1-00, Renumbered from
436-120-0330 & 436-120-0370; WCD 4-2001, f. 4-13-01, cert. ef. 5-15-01; WCD
7-2002, f. 5-30-02, cert. ef. 7-1-02; WCD 3-2004, f. 3-5-04 cert. ef. 4-1-04;
WCD 6-2005, f. 6-9-05, cert. ef. 7-1-05; WCD 8-2005, f. 12-6-05, cert. ef.
1-1-06; WCD 8-2007, f. 11-1-07, cert. ef. 12-1-07; WCD 3-2009, f. 12-1-09,
cert. ef. 1-1-10, Renumbered from 436-120-0320; WCD 5-2010, f. 9-15-10, cert.
ef. 11-15-10; WCD 5-2012, f. 10-3-12, cert. ef. 11-1-12;
WCD
4-2016, f. 11-28-16, cert. ef.
1/1/2017; WCD 6-2020, minor correction filed
03/11/2020, effective 03/11/2020;
WCD
4-2022, amend filed 06/13/2022, effective
7/1/2022
Statutory/Other Authority: ORS
656.340
& ORS
656.726(4)
Statutes/Other Implemented: ORS
656.340
