Or. Admin. Code § 436-120-0115

Current through Register Vol. 63, No. 12, December 1, 2024

Section 436-120-0115 - Vocational Eligibility Evaluation

(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:

(A) In bold text:

"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."

(B) Effective no later than Oct. 1, 2024, the text under (f)(A) of this section must be replaced with the following language in bold and formatted as follows:

If you have questions about vocational assistance, contact:

[Insurer name]

[Insurer contact person]

[Insurer address]

[Insurer phone number]

If you still have questions, call the Workers' Compensation Division at 800-452-0288 (toll-free).

(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:

(i) In bold text:

"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.";

(ii) Effective no later than Oct. 1, 2024, the text in (B)(i) of this subsection must be replaced with the following language in bold and formatted as follows:

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.

Conference purpose: Identify and remove obstacles to return-to-work plan completion and approval.

Conference attendance: The insurer, the worker, the counselor, and others involved in the return-to-work process must attend.

Other conferences: The insurer or the worker may request a conference with the Workers' Compensation Division about other delays in vocational assistance.

To request a conference, write or call:

Workers' Compensation Division

Employment Services Team

PO Box 14480

Salem, OR 97309-0405

(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 counselors 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:

(I) In bold text:

"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.";

(II) "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.";

If you have questions about the process for selecting a vocational counselor, contact:

[Insurer name]

[Insurer contact person]

[Insurer address]

[Insurer phone number]

If you still have questions, call the Workers' Compensation Division at 800-452-0288 (toll-free).

(D) Include information about the Preferred Worker Program;

(E) Explain what the worker can do if the worker disagrees with something the insurer does;

(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; and

(G) Include the category of vocational assistance and the reason for the selection as described in OAR 436-120-0177(2).

(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.

Or. Admin. Code § 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; WCD 7-1985, f. 12-12-85, cert. ef. 1-1-86, Renumbered from 436-061-0111; WCD 11-1987, f. 12-17-87, cert. 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; 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; WCD 15-2024, amend filed 06/07/2024, effective 7/1/2024

Statutory/Other Authority: ORS 656.340 & ORS 656.726(4)

Statutes/Other Implemented: ORS 656.340