Or. Admin. R. 436-120-0147 - Establishing the Adjusted Weekly Wage
(1)
General provisions.
(a) To determine a suitable wage the insurer
must first establish the adjusted weekly wage as described in this
rule.
(b) The insurer must
calculate the adjusted weekly wage whenever determining or redetermining a
worker's eligibility for vocational assistance.
(c) All figures used in determining a weekly
wage by this method must be supported by verifiable documentation such as the
worker's state or federal tax returns, payroll records, or reports of earnings
or unemployment insurance payments from the Oregon Employment
Department.
(d) If the insurer is
unable to obtain complete information to calculate the weekly wage under
section (3) of this rule, but the worker does provide verifiable documentation
to establish wages at the time of injury, the insurer must make a reasonable
calculation of the worker's weekly wage based on the verifiable documentation
available.
(2)
Definitions. For the purposes of this rule, the following
definitions apply:
(a) "Adjusted weekly wage"
is the wage currently paid as calculated under this rule.
(b) "Cost-of-living adjustments" or
"collective bargaining adjustments" are increases or decreases in the wages of
all workers performing the same or similar jobs for a specific employer. These
adjustments are not variations in wages based on skills, merit, seniority,
length of employment, or number of hours worked.
(c) "Earned income" means gross wages,
salary, tips, commissions, incentive pay, bonuses, and the reasonable value of
other consideration (such as housing, utilities, and food) received from all
employers for services performed from all jobs held at the time of injury or
aggravation. Earned income also means gross earnings from self-employment after
deductions of business expenses excluding depreciation. Earned income does not
include fringe benefits such as medical, life, or disability insurance,
employer contributions to pension plans, or reimbursement of the worker's
employment expenses such as mileage or equipment rental.
(d) "Job at aggravation" means the job or
jobs the worker held on the date of the aggravation claim or, for a worker not
employed at the time of aggravation, the last job or concurrent jobs held
before the aggravation. The job does not need to be subject employment.
Volunteer work is not a job for purposes of this subsection.
(e) "Job at injury" is the job on which the
worker originally sustained the compensable injury. For an occupational
disease, the job at injury is the job the worker held at the time there is
medical verification that the worker is unable to work because of the
disability caused by the occupational disease. Volunteer work is not a job for
purposes of this subsection.
(f)
"Permanent employment" is a job with no projected end date or a job that had no
projected end date at the time of hire. Permanent employment may be year-round
or seasonal.
(g) "Permanent,
year-round employment" is permanent employment in which the worker worked or
was scheduled or projected to work in 48 or more calendar weeks a year. Paid
leave is counted as work time. Permanent year-round employment includes trial
service. It does not include employment with an annual salary set by contract
or self-employment.
(h) "Temporary
disability" means wage loss replacement for the job at injury.
(i) "Time of injury" means, in the case of an
injury, the date of injury or, in the case of an occupational disease, the time
there is medical verification that the worker is unable to work because of the
disability caused by the occupational disease.
(j) "Trial service" is employment designed to
lead automatically to permanent, year-round employment subject only to the
employee's satisfactory performance during the trial service period.
(3)
Determining weekly
wage. The insurer must determine the nature of the job at injury and any
other paid jobs held at the time of injury, or the job or jobs at aggravation,
and this must include contacting the employer at injury to verify the worker's
employment status.
(a) When the job at injury
or any other paid jobs held at the time of injury, or the job at aggravation
was seasonal or temporary, calculate the worker's weekly wage as
follows, then convert to the adjusted weekly wage as described in section (4)
of this rule:
(A) When the worker's regular
employment is the job at injury and the worker did not hold more
than one job at the time of injury, and did not receive unemployment insurance
benefits during the 52 weeks before the injury, use the same wage upon which
temporary disability was based.
(B)
When the worker's regular employment is the job at aggravation and
the worker did not hold more than one job at the time of aggravation, and did
not receive unemployment insurance benefits during the 52 weeks before the
aggravation, use the same methods used to calculate temporary disability as
described under OAR 436-060-0025 that was in effect on the date of
injury.
(C) When the worker held
more than one job at the time of injury or aggravation, and did
not receive unemployment insurance payments during the 52 weeks before the date
of the injury or aggravation, divide the worker's earned income by the number
of weeks the worker worked in those jobs during the 52 weeks before the date of
injury or aggravation.
(D) When the
worker held one or more jobs at the time of injury or aggravation,
and received unemployment insurance payments during the 52 weeks before the
date of the injury or aggravation, combine the earned income with the
unemployment insurance payments and divide the total by the number of weeks the
worker worked in those jobs and received unemployment insurance payments during
the 52 weeks before the date of the injury or aggravation.
(b) When subsection (3)(a) of this rule does
not apply, calculate the worker's weekly wage as follows, then convert to the
adjusted weekly wage as described in section (4) of this rule:
(A) When the worker's regular employment is
the job at injury and the worker did not hold more than one
job at the time of injury, use the same wage upon which temporary
disability was based.
(B) When the
worker's regular employment is the job at injury and the worker
held more than one job at the time of injury, use the same methods
used to calculate temporary disability as described under OAR 436-060-0025 that
was in effect on the date of injury. The job does not need to be subject
employment. Volunteer work is not a job for purposes of this
paragraph.
(C) When the worker's
regular employment is the job at aggravation, use the same methods
used to calculate temporary disability as described under OAR 436-060-0025 that
was in effect on the date of injury.
(4)
Adjusted weekly wage. After
arriving at the worker's weekly wage under section (3) of this rule, establish
the adjusted weekly wage by determining the percentage increase or decrease
from the date of injury or aggravation, or last day worked before aggravation,
to the date of calculation, as follows:
(a)
Contact the employer at injury regarding any cost-of-living or collective
bargaining adjustments for workers performing the same job. Adjust the total of
all of the weekly wages from section (3) of this rule by any percentage
increase or decrease;
(b) If the
employer at injury is no longer in business and the worker's job was covered by
a union contract, contact the applicable union for any cost-of-living or
collective bargaining adjustments. Adjust the total of all of the weekly wages
from section (3) of this rule by the percentage increase or decrease;
(c) If the employer at injury is no longer in
business or does not currently employ workers in the same job category, adjust
the total of all of the weekly wages from section (3) of this rule by the
appropriate factor from the cost-of-living matrix in Bulletin 124;
(d) If the worker's regular employment was
the employment the worker held at the time of aggravation, adjust the total of
all of the weekly wages from section (3) of this rule by the appropriate factor
from the cost-of-living matrix in Bulletin 124.
Notes
Statutory/Other Authority: ORS 656.340(9) & 656.726(4)
Statutes/Other Implemented: ORS 656.340(5)(6)
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