Or. Admin. Code § 436-030-0055 - Determining Permanent Total Disability
(1) A worker is permanently and totally
disabled if permanently incapacitated from regularly performing work in a
suitable and gainful occupation. For the purpose of this rule and OAR
436-030-0065:
(a)
"Incapacitated from regularly
performing work" means that the worker does not have the necessary
physical and mental capacity and the work skills to perform the essential
functions of the job. Employment in a sheltered workshop is not considered
regular employment unless this was the worker's job at the time of
injury.
(b)
"Suitable
occupation" means those occupations that exist in a theoretically normal
labor market, within a reasonable geographic distance, for which a worker has
the training or experience, and abilities to realistically perform the job
duties, with or without rehabilitation.
(c)
"Gainful occupation" means
those types of general occupations that provide wages that:
(A) Meet the requirements in ORS
656.206(11)(a)
for workers with a date of injury prior to January 1, 2006; or
(B) Meet the requirements in ORS
656.206(11)(b)
for workers with a date of injury on or after January 1,
2006.
(d)
"Work
skills" means those skills acquired through experience or training that
are necessary to gain and adequately perform skilled, semi-skilled or unskilled
occupations. Unskilled types of general occupations require no specific skills
that would be acquired through experience or training to be able to gain and
adequately perform the unskilled occupation. Every worker has the necessary
work skills to gain and adequately perform unskilled types of general
occupations with a reasonable period of orientation.
(e) A "reasonable geographic
distance" means either of the following unless the worker is medically
precluded from commuting:
(A) The area within
a 50-mile radius of the worker's place of residence at the time of:
(i) The original injury;
(ii) The worker's last gainful
employment;
(iii) Insurer's
determination; or
(iv)
Reconsideration by the director.
(B) The area in which a reasonable and
prudent uninjured and unemployed person, possessing the same physical
capacities, mental capacities, work skills, and financial obligations as the
worker does at the time of the rating of disability, would go to seek
work.
(f)
"Types of
general occupations" means groups of jobs which actually exist in a
normal labor market, and share similar vocational purpose, skills, duties,
physical circumstances, goals, and mental aptitudes. It does not refer to any
specific job or place of employment for which a job or job opening may exist in
the future.
(g)
"Normal labor
market" means a labor market that is undistorted by such factors as
local business booms and slumps or extremes of the normal cycle of economic
activity, or technology trends in the long-term labor market.
(h)
"Withdrawn from the
workforce" means a worker who is not employed, is not willing to be
employed, or although willing to be employed is not making reasonable efforts
to find employment, unless such efforts would be futile. The receipt of
retirement benefits does not establish a worker has withdrawn from the
workforce.
(2) All
disability that existed before the injury must be included in determining
permanent total disability.
(3) In
order for a worker to be determined permanently and totally disabled, a worker
must:
(a) Prove permanent and total
disability;
(b) Be willing to seek
regular and gainful employment;
(c)
Make reasonable effort to find work at a suitable and gainful occupation or
actively participate in a vocational assistance program, unless medical or
vocational findings, including the residuals of the compensable injury, make
such efforts futile; and
(d) Not
have withdrawn from the workforce during the period for which benefits are
being sought.
(4) A
worker retaining some residual functional capacity and not medically
permanently and totally disabled must prove:
(a) The worker has not withdrawn from the
workforce for the period for which benefits are being sought;
(b) Inability to regularly perform work at a
gainful and suitable occupation; and
(c) The futility of seeking work if the
worker has not made reasonable work search efforts by competent written
vocational testimony. Competent written vocational testimony is that which is
available at the time of closure or reconsideration and comes from the opinions
of persons fully certified by the State of Oregon to render vocational
services.
(5) Notices of
Closure and Orders on Reconsideration that grant permanent total disability
must notify the worker that:
(a) The claim
must be reexamined by the insurer at least once every two years, and may be
reviewed more often if the insurer chooses.
(b) The insurer may require the worker to
provide a sworn statement of the worker's gross annual income for the preceding
year. The worker must make the statement on a form provided by the insurer in
accordance with the requirements under section (6) of this rule.
(6) If asked to provide a
statement under (5)(b) of this rule, the worker is allowed 30 days to respond.
Such statements are subject to the following:
(a) If the worker fails to provide the
requested statement, the director may suspend the worker's permanent total
disability benefits. Benefits must be resumed when the statement is provided.
Benefits not paid for the period the statement was withheld must be recoverable
for no more than one year from the date of suspension.
(b) If the worker provides a report that is
false, incomplete, or inaccurate, the insurer must investigate. The
investigation may result in suspension of permanent total disability
benefits.
Notes
Statutory/Other Authority: ORS 656.268, ORS 656.726, OL Ch. 332 1995 & OL Ch. 313 1999
Statutes/Other Implemented: ORS 656.268, ORS 656.726, OL Ch. 332 1995, OL Ch. 313 1999, ORS 656.005, ORS 656.206 & OL Ch. 865 2001
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