The Legislature states in the Oregon Revised Statutes (ORS)
656.012(2)(c) that one objective of Workers’ Compensation Law is:
restore the injured worker physically and economically to a self-sufficient
status in an expeditious manner and to the greatest extent practicable.
Many injured workers
need vocational assistance, such as training and job-search assistance
(see ORS 656.340 and Oregon Administrative Rules (OAR) 436-120), to accomplish
this objective. Workers are eligible for vocational assistance if they
are unable to return to their previous job or other suitable, available
work with the same employer and if they have a substantial handicap to
employment. Insurers determine injured workers’ eligibility for vocational
assistance. Insurers and workers jointly select vocational assistance
providers. Data about the program are provided in the publication Vocational
Assistance in the Oregon Workers’ Compensation System, 1986-1994,
and in the executive summary Vocational Assistance in the Oregon Workers’
Compensation System, 1997.
This executive summary
provides data on the disputes arising from the vocational assistance program.
The Rehabilitation Review Unit (RRU) of the Department of Consumer and
Business Services, Workers’ Compensation Division (WCD) resolves these
disputes. The dispute process is defined in ORS 656.283(2):
(2)(a) The Legislative
Assembly finds that vocational rehabilitation of injured workers requires
a high degree of cooperation between all of the participants in the
vocational assistance process. Based on this finding, the Legislative
Assembly concludes that disputes regarding eligibility for and extent
of vocational assistance services should be resolved through nonadversarial
procedures to the greatest extent possible consistent with constitutional
principles. The director is hereby charged with the duty of creating
a procedure for resolving vocational assistance disputes....
(b) If a worker is dissatisfied with an action of the insurer or self-insured
employer regarding vocational assistance, the worker must apply to the
director for administrative review of the matter. Such application must
be made not later than the 60th day after the date the worker was notified
of the action. The director shall complete the review within a reasonable
time. If the worker’s dissatisfaction is resolved by agreement of the
parties, the agreement shall be reduced to writing, and the director
and the parties shall review the agreement and either approve or disapprove
it. If the worker’s dissatisfaction is not resolved by agreement of
the parties, the director shall resolve the matter in a written order
containing findings of fact and conclusions of law....
and disputed issues
There were 717 requests
for the resolution of vocational assistance disputes in 1998 (see Table
1). The number of requests has fallen throughout the 1990’s, chiefly because
insurers and self-insured employers have made fewer vocational assistance
eligibility determinations. Until 1998, approximately 20 percent of the
claims for which vocational assistance determinations have been made had
at least one dispute.
In 1998, the issue
in 87 percent of the disputes was claimants’ original eligibility for
vocational assistance. Insurers can terminate workers’ eligibility when
they receive information that affects workers’ eligibility status. Disputes
about the ending of eligibility were the second most frequent cause of
a dispute (6 percent).
fall into three main categories: professional services provided by private
rehabilitation organizations; timeloss (temporary disability) payments
to claimants who are in authorized training programs; and direct purchases,
such as tuition and books, tools required for training programs, work
clothing, etc. Professional services include vocational evaluation and
the development of training plans and direct employment plans. In 1998,
4 percent of the disputes were about eligibility for or the continuation
of training programs or about the quality of the professional services.
disputes are resolved in three ways: through agreements, by dismissals,
and through orders. When the parties in the dispute agree to a resolution,
RRU issues an agreement letter. In 1998, 30 percent of the resolutions
consisted of agreement letters (see Table 2).
Disputes can be
dismissed for several reasons. The most common occurrence is the agreement
to a Claim Disposition Agreement (CDA), in which the worker usually gives
up future non-medical benefits, including vocational assistance, for a
cash settlement. In 1998, 14 percent of the resolutions were dismissals
because of CDAs. (In other cases, the parties agreed to CDAs after they
saw the results of the resolution orders.) Other disputes were dismissed
when the worker requested the withdrawal of the review or failed to provide
the needed information. RRU also dismissed untimely disputes.
RRU resolved 37
percent of the 1998 disputes through Director’s Review and Orders (orders).
Most orders resolve the dispute in favor of either the insurer or the
worker, although there are a few cases in which both parties prevail on
some issues. In 1998, the insurer prevailed in 74 percent of the disputes
in which RRU issued orders.
of initial disputes often have different types of resolution (see Table
3 and Table 4). Eligibility disputes are more likely to be resolved through
orders than are the other disputes. In 1998, 96 percent of the orders
involved these issues. In contrast, disputes about training and the quality
of service were more likely to be resolved by agreement among the parties.
In 1998, RRU processed
vocational disputes in an average of 27 days (all time periods in this
section are the median number of calendar days). The processing times
vary, however, depending on the availability of information and the parties’
plans. Twenty-six percent of the disputes were deferred at some point
in the resolution process. Disputes were deferred while the parties negotiated
CDAs, when necessary information was not available for a prolonged period
of time, such as medical information or the results of hearings, or when
the worker was unable to participate in the dispute process for a time
(see OAR 436-120-0(1)(c)). This deferral time can be quite long. For the
disputes that were not deferred, the median time for resolution was 21
days (see Table 5); for disputes that were deferred, the median time from
request to resolution was 142 days.
Appeals of vocational
The RRU’s vocational
dispute orders may be appealed to Contested Case Hearings (CCH). The appeal
must be made within 60 days of the order. In general, only orders are
appealed. On occasion, however, workers appeal dismissals that were made
for reasons other than a CDA. At the contested case hearing, the original
decision can be modified only if it violates a statute or rule, exceeds
the agency’s authority, was based on an unlawful procedure, or was characterized
by the abuse of discretion or clearly unwarranted exercise of discretion
(see ORS 656.283(2)(c)).
Of the 1996 through
1998 orders, 189 (18 percent) were appealed to Contested Case Hearings.
Fifty-seven percent of these appeals were withdrawn or dismissed. Of the
cases for which CCH issued orders, 26 were affirmed, 11 were remanded
to RRU, and 10 were reversed. (Some appeals were still pending at the
time of this report.)