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All Contested Case Subject
Vocational Assistance
In General
A return to work training plan was not sufficient because it did not produce a wage that was as close as possible to the claimant's pre-injury wage where the claimant had an exceptional loss of earning capacity and anoither plan couild result in a signficantly higher wage. Horner, Camron J.,
17 CCHR 13 (2012).
The director did not specify the length of a revised return to work training plan when the director fouind a prior plan was void because that plan would not have resulted in the claimant earning a wage as close as possible to the pre-injury wage. Horner, Camron J.,
17 CCHR 13 (2012).
The insurer properly terminated a worker's vocational assistance eligibility under OAR 436-120-0165(9) for failing to participate in developing the return-to-work plan after receiving a written warning when the worker failed to respond to multiple letters and phone calls from the vocational counselor. Olsen, Douglas E.,
16 CCHR 382 (2011).
A worker's failure to respond to a written warning under OAR 436-120-0165(9) was not excused by his medical issues when there was no evidence in the record the worker's medical condition prevented him from communicating with the vocational counselor. Olsen, Douglas E.,
16 CCHR 382 (2011).
Vocational assistance is intended to help a worker whose accepted condition prevents them from performing their regular work to become qualified for work that pays a wage similar to their previous regular work. Goodwin, Jeff,
16 CCHR 395 (2011).
It was proper to order substitution of a new vocational counselor under OAR 436-120-0185 when there was evidence the new counselor developed an occupational choice that would pay the claimant 18% more than the previous counselor offered. Horner, Camron J.*,
16 CCHR 370 (2011).
Under OAR 436-120-0003(2), review of a decision concerning eligibility for vocational assistance must be based on the rules in effect on the date the insurer issued its notice. Vincent, Robert,
16 CCHR 266 (2011).
In a vocational assistance dispute, the administrative order may only be modified if it reflects an error of law, is based on an unlawful procedure, or demonstrates an abuse or unwarranted exercise of discretion. Ibarra, Adan G.*,
16 CCHR 188 (2011).
Under ORS 656.340, a person may be eligible for vocational assistance if they are unable to return to the work they were performing at the time of injury, or other work for which they are qualified and which has pay similar to what they were receiving at the time of injury, due to a substantial handicap that results from their accepted compensable condition. Ibarra, Adan G.*,
16 CCHR 188 (2011).
It was not error to dismiss claimant's request for hearing on the denial of eligibility for vocational services where claimant knowingly waived his right to receive vocational assistance in a claim disposition agreement. Turnbow, Matthew O.,
15 CCHR 93 (2010).
The director affirmed two previous orders reinstating claimant's vocational services, because claimant was authorized to miss training by the supervisor responsible for scheduling, and where the supervisor expressed no concern that the scope of the leave granted was exceeded. Holmes, Steven R,
15 CCHR 22 (2010).
Eligibility for vocational services was properly terminated because claimant lacked reasonable cause for failing to provide notice of missed training, allowing three to four weeks of unattended training to lapse without notifying the counselor or insurer of the missed training, per OAR 436-120-0350 and 436-120-0520. Ferguson, Kenneth S.,
14 CCHR 213 (2009).
WCD correctly set aside the insurer's end-of-eligibility determination because claimant complied with the terms of his vocational services program; thus under 436-120-0350, claimant did not need reasonable cause for his failure to notify the insurer of his absence. Holmes, Steven R.*,
14 CCHR 187 (2009).
Claimant is not eligible for vocational assistance because he had ample time to choose a goal since he had innumerable conferences, three warnings, two vocational counselors, and four years to find a suitable training program. Dubray, Kenneth D.*,
14 CCHR 65 (2009).
Claimant is not eligible for vocational assistance because he was on notice of the insurer's notice of warning letter when claimant was advised that it had been issued, that it was in effect, that claimant's attorney had received a copy, and the warning letter had not been returned as undeliverable, therefore claimant's own action of not monitoring his mail is not justification for an extension of time to respond to the warning letter. Dubray, Kenneth D.*,
14 CCHR 65 (2009).
WCD might have reached a different conclusion about claimant's ability to perform modified work if doctor's opinion that claimant was not physically qualified to do the work had been submitted; matter remanded to WCD for consideration of the "new evidence." Barton, Mark,
14 CCHR 76 (2009).
The attending physician's opinion is not controlling nor entitled to particular deference in a vocational assistance eligibility matter, so it is appropriate to base the decision on a balanced evaluation of all the evidence. Faircloth, Amber,
14 CCHR 44 (2009).
While the medical evidence is conflicting, significant, credible evidence exists in the record that supports the RRU's and the ALJ's conclusion that claimant was able to return to her regular work. Faircloth, Amber,
14 CCHR 44 (2009).
Barring other reasons, the fact that an insurer's warning letter is not in Spanish (claimant's primary language) is not a basis for determining that the director exceeded statutory authority in affirming insurer's denial of vocational assistance. Ibanez, Zenaida,
14 CCHR 31 (2009).
No abuse of discretion in the director's decision to affirm insurer's denial of vocational eligibility when the director considered the fact that claimant's inability to read and speak English contributed to claimant's failure to participate. Ibanez, Zenaida,
14 CCHR 31 (2009).
If claimant's lawyer failed to act reasonably to resolve confusion for claimant involving letters written in multiple languages, that failure is a matter between claimant and the lawyer, and is not grounds for overturning the director's order that affirms the insurer's denial of vocational assistance. Ibanez, Zenaida,
14 CCHR 31 (2009).
The fact that claimant regretted claimant's choice to not participate in vocational assistance does not warrant finding abuse of discretion in the director's conclusion that the claimant failed to participate in vocational assistance. Ibanez, Zenaida,
14 CCHR 31 (2009).
RRU's order requiring claimant to report an absence by the end of the next business day or each day as the absences occurred is modified because the order added time limit terms to rule 436-120-0350(10) that the rule does not contain. Bush, Drewey T,
13 CCHR 501 (2008).
OAR 436-120-0350(10) provides that a worker's eligibility ends if the worker misses two consecutive days of training and does not notify the counselor or insurer "without reasonable cause", but does not state a time limit within which the worker must provide that notice. Bush, Drewey T,
13 CCHR 501 (2008).
OAR 436-120-0520(1)'s requirement of notice from the worker by the close of the next business day does not apply when claimant continues to attend training after absences and never expresses an intent to discontinue training. Bush, Drewey T,
13 CCHR 501 (2008).
Claimant's absence from his keyboarding class for two consecutive days does not satisfy the OAR 436-120-0520(1) regulatory prerequisite of ("stop attending training") to trigger its notice requirement because claimant was not required to attend his keyboarding class on those days, and therefore the RRU's order affirming insurer's end-of-eligibility determination is vacated. Dooley, Patrick C,
13 CCHR 286 (2008).
The employer is not required to reimburse claimant's laptop computer purchases because neither the instructional facility staff, trainer, nor the employer state that a laptop computer is required for claimant's training program, and the instructional staff believe that computer labs provide a less expensive, adequate alternative. Tannehill, John E.,
13 CCHR 260 (2008).
OAR 436-120-0350(10) does not provide for a specific response or notification time of absences of the claimant in a return to work plan and therefore it was an abuse of discretion for the director to uphold insurer's termination of vocational assistance due to claimant's untimely notification of absences. Bush, Drewey T*,
13 CCHR 230 (2008).
An agreement between the claimant and the claimant's counselor to notify counselor "immediately" if claimant was absent from his program for two consecutive days could be construed to mean "as soon as possible" when OAR 436-120-0350(10) does not provide for a specific response or notification time of claimants' absences. Bush, Drewey T*,
13 CCHR 230 (2008).
RRU's determination that claimant is unable to return to regular employment is affirmed because RRU determined that claimant's job exceeded the physical capacities evaluation findings with which several doctors concurred. Rice, James E,
13 CCHR 58 (2008).
RRU did not abuse its discretion by relying on an earlier "more chronologically-relevant opinion" when an attending physician's opinion released claimant to return to work for an inventory job and it was not until six months later that the same attending physician changed the physician's own opinion to find the inventory job was not suitable. Reyes-Joya, Jose,
12 CCHR 341 (2007).
Based on the construction of the text of the definition of "worker," in ORS 656.005(30), the words "whether lawfully or unlawfully employed" modify "minor" not "worker" and the statute is silent as to adults who are unlawfully employed, therefore, OAR 436-120-0320(10)(a) does not conflict with or alter the definition of "worker" and it is within the director's authority under ORS 656.340(7) to establish conditions for providing vocational assistance. Carreon, Carmen,
12 CCHR 334 (2007).
The director's reviewing authority allows the director to compare medical, vocational, and other evidence relating to claimant's limitations up to the time of claim closure with evidence that was developed post closure. Blasingame, Steven*,
12 CCHR 310 (2007).
Based on binding case law, the "law of the case" doctrine does not apply between ARU and RRU. Munoz-Chavez, Nabor,
12 CCHR 303 (2007).
The director's decision did not violate a statute or rule when a doctor concurs with the PCE even though the doctor?s subsequent opinion limits claimant to part-time work with no explanation for the change, diminishing the subsequent opinion?s persuasiveness. Tsomo, Pema*,
12 CCHR 288 (2007).
The issue of extent of permanent disability and vocational assistance are not the same and insurer should not rely on the Opinion and Order for purposes of ending vocational assistance. Van Bibber, Jr., Dale E,
12 CCHR 256 (2007).
An Opinion and Order is not "new information" that would allow insurer to end vocational assistance. Van Bibber, Jr., Dale E,
12 CCHR 256 (2007).
A vocational assistance provider must maintain the worker's files for four years after the end of service and if the files are destroyed before that time, the director assumes, absent other documentation, that no assistance was provided. Howard-Douglas, Debra R,
12 CCHR 196 (2007).
When a vocational assistance provider fails to provide assistance, the worker may be entitled to additional days of vocational service. Howard-Douglas, Debra R,
12 CCHR 196 (2007).
When disputing vocational assistance eligibility, the ALJ can only address issues related to the eligibility not issues related to harassment and representation by prior attorneys. Toepfer, Linda S,
12 CCHR 152 (2007).
When a worker is released to work for a different job that was not her job at injury, she is eligible for vocational assistance. Caswell, Dianna L*,
12 CCHR 121 (2007).
It is within the director's authority to establish conditions for the provision of vocational assistance that relate to the worker's availability for such assistance. Keller, Charles W,
12 CCHR 89 (2007).
An order regarding vocational assistance can only be modified if the order violates a statute or rule, exceeds the agency's statutory authority, made upon an unlawful procedure, or is characterized by abuse of discretion. Rodriguez-Duarte, Samuel,
11 CCHR 273 (2006).
A worker has not exceeded the requirements of his work when the worker is not required for his job to do an activity but the worker chooses to perform the activity anyway. Rodriguez-Duarte, Samuel,
11 CCHR 273 (2006).
An order regarding vocational assistance can only be modified if the order violates a statute or rule, exceeds the agency's statutory authority, made upon an unlawful procedure, or is characterized by abuse of discretion. Dinger, Stephen W*,
11 CCHR 275 (2006).
While participating in a vocational training program, childcare expenses are compensable only for hours needed in addition to what was required before the injury at the rate prescribed by DHS. Miller, Gregory J,
11 CCHR 96 (2006).
MRU erred in placing greater weight on an opinion that was not as thorough or as well reasoned as an opposing opinion. Lewis, Chad E.,
10 CCHR 452 (2005).
RRU is not prohibited from contacting the medical provider concerning a vocational dispute. Dever, Glen A.*,
10 CCHR 273 (2005).
Following a notice of eligiblity and temporary termination, an insurer may deny eligibility only on new information. Dever, Glen A.*,
10 CCHR 273 (2005).
The employer failed to show that WCD exceeded its statutory authority be relying on Medical Arbiter reports and by determining it was not bound by an Order on Reconsideration related to an ancillary issue. Spence-Brodbeck, Lisa,
10 CCHR 186 (2005).
Claimant failed to show that RRU abused its discretion by exercising it beyond its authority for an unjust purpose beyond reason. Murray, Daniel S.*,
10 CCHR 6 (2005).
Vocational assistance provided after a Notice of End Training is sent and labeled "Optional Services" is properly classified as Optional Services. Bennet, Thomas,
9 CCHR 482 (2004).
Optional Services are not excluded from maximum spending limits. Bennet, Thomas,
9 CCHR 482 (2004).
disallowing retroactive reimbursement of the costs of vocational assistance paid by the claimant without insurer approval is not inconsistent with the statute Fossum, Janean M.,
9 CCHR 438 (2004).
It is consistent with the statute to stay any action until both insurer and worker are on the same page in implementing a vocational plan Fossum, Janean M.,
9 CCHR 438 (2004).
Director's final order is not the appropriate forum for claimant to challege the wage calculation used to determine temporary disability rate. Engles, Nicholas A.,
9 CCHR 311 (2004).
Weekly wage is the wage upon which temporary disability was based, not the hourly rate at the time of injury. Engles, Nicholas A.,
9 CCHR 311 (2004).
An Insurer must reconsider a change in circumstances within 30-days of it's knowledge of the change to reclassify eligibility. Turner, Ray C.*,
9 CCHR 129 (2004).
Injury prevented worker from returning to regular employment, which qualified worker for vocational assistance. Blakley, Suzanne P.*,
9 CCHR 51 (2004).
Insurer is not required to redetermine eligibility where worker was awarded permanent disability for one condition, was found ineligible for assistance, then later awarded additional permanent disability for a newly accepted condition. Watterson, Calvan*,
8 CCHR 327 (2003).
Insurer incorrectly recalculated claimant's weekly wage and found claimant ineligible because the rule required reconsideration of the category of assistance within 30 days of knowledge of a change in circumstances; the rule required use of a weekly wage upon which temporary disability was based; and issue preclusion bound the insurer to a wage set in a prior proceeding. Fossum, Janean,
8 CCHR 312 (2003).
Claimant is not entitled to further training where the program was not found inadequate to prepare him for suitable employment and the counselor's work was found to be reasonable. Hord, Gary,
8 CCHR 308 (2003).
Claimant entitled to vocational evaluation to determine whether additional training needed. Moore, Jimmie D.,
8 CCHR 300 (2003).
Insurer is not liable for claimant's tuition expenses after parties entered into CDA. Faust, Ronald C.,
8 CCHR 196 (2003).
Current condition denial did not revoke original accepted claim and claimant remained eligible for vocational assistance. Holland, Christopher R.*,
8 CCHR 169 (2003).
Holland, Christopher R.*,
8 CCHR 169 (2003).
Claimant is entitled to additional training because the previous training plan was inadequate to prepare him for suitable employment due to insurer's error or omission. Moore, Jimmie D.*,
8 CCHR 117 (2003).
Claimant denied vocational services because he refused to participate in the temporary modified light duty job that RRU found was within his capabilities. Haveron, Mathew J.,
8 CCHR 96 (2003).
Claimant is entitled to change vocational assistance counselors due to the previous counselor's lack of progress in identifying vocational options. Brown, Richard M.,
8 CCHR 52 (2003).
Vocational assistance continues notwithstanding insurer's appeal of PPD award (vocational benefits are excepted from the stay), therefore claimant was entitled to continued vocational assistance. Kramer, Candace C.,
8 CCHR 44 (2003).
Insurer is liable for claimant's vocational assistance educational expenses that became due and payable before the CDA was submitted to WCB. Faust, Ronald C.*,
8 CCHR 40 (2003).
RRU is not bound through issue preclusion to the findings of ARU. Ott, Calvin,
7 CCHR 342 (2002).
WCD correctly approved only one instead of two training programs so that the worker could obtain a suitable wage as an airline dispatcher. Ketring, Ramon D.*,
7 CCHR 268 (2002).
RRU improperly denied a request for additional training. The requested training was necessary to return claimant to a job providing a suitable wage. Ketring, Ramon*,
7 CCHR 35 (2002).
Eligibility-In General
A worker's eligiblity for vocational assistance was properly terminated under OAR 436-120-0165(11), on the grounds he misrepresented information relevant to receiving vocational assistance, when he provided a synthetic urine sample for a drug test and subsequently refused to provide an observed sample. Lundblad, Christian R.*,
17 CCHR 427 (2012).
A worker's eligiblity for vocational assistance could not be terminated under OAR 436-120-0165(7), for declining vocational assistance, where it was alleged he provided a false urine sample for a drug test. Lundblad, Christian R.*,
17 CCHR 427 (2012).
A worker's eligiblity for vocational assistance could not be terminated under OAR 436-120-0165(8), for refusing a suitable training site, where the worker allegedly provided a false urine sample for a drug test. Lundblad, Christian R.*,
17 CCHR 427 (2012).
The preponderance of the evidence established the claimant smoked marijuana and submitted a false urine sample where medical evidence indicated the sample was synthetic urine and the claimant admitted smoking marijuana shortly before the test was administered. Lundblad, Christian R.*,
17 CCHR 427 (2012).
A worker who does not have any permanent disability resulting from their accepted condition is not entitled to receive vocational assistance. Goodwin, Jeff,
16 CCHR 395 (2011).
The EST acted properly, and did not reach a conclusion for which it lacked evidence, when it set aside an employer's denial of eligiblity for vocational assistance where there had yet been a substantial handicap evaluation. Claxton, Garry E.,
16 CCHR 384 (2011).
A worker did have limitations resulting from the accepted condition that prevented him from returning to his regular work, even though the attending physician released the worker to work without restrictions, when the same doctor repeatedly stated the worker had physical limitations and restrictions that resulted from the accepted condition and those limitations conflicted with the job analysis of the worker's regular work. Claxton, Garry E.,
16 CCHR 384 (2011).
A vocational eligiblity dispute had to be remanded where the order denying services relied on the attending physician's concurrence with a medical report that did not address all of the claimant's restrictions or limitations. Jones, Victor L.,
16 CCHR 364 (2011).
It was necessary to remand a vocational services dispute where the Director's Order finding the claimant ineligible for services did not explain the conflict in the order that found the claimant had chronic, limiting medical conditions, but also found the claimant could return to his regular work. Jones, Victor L.,
16 CCHR 364 (2011).
It was improper for the EST to reverse an employer's finding a worker was not eligible for vocational assistance where the EST concluded there was not sufficient evidence to determine whether the worker had a substantial handicap to employment under OAR 436-120-0145(2)(c)(C). Claxton, Garry E.*,
16 CCHR 337 (2011).
Under OAR 436-120-0165(9), a worker's eligiblity for vocational assistance can be terminated where the worker fails, after written warning, to particiapte in the development or implementation of a return to work plan. Olsen, Douglas E.*,
16 CCHR 322 (2011).
A worker's eligiblity for vocational assistance was properly terminated where, although the worker required medical treatment, the worker failed to show his medical problems prevented him from meeting with a counselor to develop his return to work plan or caused his extended absence from any contact with the counselor. Olsen, Douglas E.*,
16 CCHR 322 (2011).
Under former OAR 436-120-030(2)(b) and 436-120-0350(4), a worker is not eligible for vocational assistance if they returned to regular and suitable employment with the employer at injury or have been employed for at least 60 days in suitable employment after the injury with necessary worksite modifications in place. Vincent, Robert,
16 CCHR 266 (2011).
Under OAR 436-120-0350(1), eligiblity for vocational assistance can be ended when new information that did not exist or that could not have been obtained with reasonable effort at the time the insurer determined eligibility establishes the worker is no longer eligible. Satterfield, Delbert L.*,
16 CCHR 192 (2011).
A new medical interpretation or opinion that is based on the same physical evidence that was available when the insurer determined eligiblity does not constitute new information that can justify ending eligiblity under OAR 436-120-0350(1). Satterfield, Delbert L.*,
16 CCHR 192 (2011).
Where there was evidence in the record that claimant only filed his aggravation claim when he was laid off from work, it was not error to find claimant was not eligible for vocational assistance. Ibarra, Adan G.*,
16 CCHR 188 (2011).
A worker is eligible for vocational assistance if, as a result of the limitations caused by the injury or aggravation, the worker is not able to return to regular work. Ibarra, Adan G.*,
15 CCHR 258 (2010).
Substantial evidence supported the director's conclusion that a worker was not eligible for vocational assistance because he could return to his regular work. The attending physician found the worker was medically stationary, cleared him to return to his regular work, and found that he did have restrictions but that those restrictions were not due to the accepted injury. It also appeared the claimant had actually returned to his regular work for a period after the injury. Ibarra, Adan G.*,
15 CCHR 258 (2010).
Where there was conflicting medical evidence about whether claimant could still perform the duties of his job, there was no violation of law or abuse of discretion where WCD found the worker was unable to return to his original work and was therefore elegible for vocational assistance. Satterfield, Delbert L.*,
15 CCHR 252 (2010).
The director's order was proper, setting aside the employer's Notice of Ineligibility for Vocational Assistance, because under OAR 436-120-0005, the employer did not offer claimant suitable employment, because it was not permanent employment, where claimant's projected end date was implied from assignment to a temporary position, and where claimant's temporary assignment "remained in temporary status at the time of his layoff." Collins, Roland, A.,
15 CCHR 11 (2010).
The ALJ affirmed the Director's order finding claimant ineligible for vocational services because claimant failed to maintain contact with his vocational counselor throughout the duration of his training program; he agreed to participate in the training program, and attempted to participate in the program under difficult circumstances, but he failed to exercise reasonable diligence in keeping contact with the vocational counselor. Ferguson, Kenneth S.*,
14 CCHR 175 (2009).
Initially, EST's decision finding claimant ineligible for vocational assistance was valid because claimant was not awarded PPD, subsequently, through litigation, claimant's PPD award increased; therefore OAR 436-120-0360(4) entitles claimant to a redetermination of eligibility for vocational assistance. Felgar, Larry C.,
14 CCHR 146 (2009).
The director affirmed the Employment Services Team's and the ALJ's orders finding claimant's eligibility for vocational services had been properly terminated. Dubray, Kenneth D.,
14 CCHR 130 (2009).
OAR 436-120-0320(11), which requires that a worker be authorized to work in the U.S. to be eligible for vocational services, is valid. Torres, Jesus,
14 CCHR 105 (2009).
Claimant is not eligible for vocational assistance because he has no permanent restrictions due to his accepted injury, and no persuasive evidence exists that claimant is not able to return to regular employment. Holte, Delare D.,
14 CCHR 94 (2009).
Claimant is not eligible for vocational assistance because claimant acknowledged that he could have returned to his previous job. Holte, Delare D.,
14 CCHR 94 (2009).
Claimant's lack of suitable employment is not due to the limitation caused by the work injury because there is no mention in the record of any limitation of the upper extremity due to claimant's accepted condition and there is no indication that this limitation existed before the injury. Terrill, Jason K.,
14 CCHR 58 (2009).
Claimant is ineligible for vocational services because his lack of suitable employment is not due to limitations caused by his work injury. Terrill, Jason K.,
14 CCHR 58 (2009).
Claimant is not eligible for vocational assistance because OAR 436-120-0320(10)(a) provides that eligibility for vocational services is contingent on a worker being "authorized to work in the United States," and claimant is not authorized to work in the United States. Torres, Jesus*,
14 CCHR 55 (2009).
OAR 436-120-0320(11)(a) which provides that a worker must be authorized to work in the United States to be eligible for vocational assistance does not exceed either WCD's statutory authority, or the enabling statute ORS 656.340. Flores, Carmen,
14 CCHR 49 (2009).
OAR 436-120-0320(11)(a) which provides that a worker must be authorized to work in the United States to be eligible for vocational assistance does not conflict with the definition of "worker" found in ORS 656.005(30). Flores, Carmen,
14 CCHR 49 (2009).
OAR 436-120-0320(11), which includes authorization to work in the United States as a condition for vocational assistance eligibility does not exceed the director's authority under ORS 656.340 per Carmen Carreon, 12 CCHR 334 (2007). Flores, Carmen*,
14 CCHR 21 (2009).
The director's decision that claimant is ineligible for vocational services is not "clearly against, reason and evidence" because the director provides reasoning to support its decision, and gives reasons for not relying on medical opinions supporting claimant's position. Faircloth, Amber*,
14 CCHR 13 (2009).
Because the insurer did not comply with the requirement in OAR 436-120-0320(1)(a) that it contact claimant's attending physician to request actual or projected permanent restrictions due to the injury, the insurer was required to determine claimant's eligibility for vocational assistance. Arroyo, Joe L.,
13 CCHR 515 (2008).
When claimant failed, after written warning, to participate in the vocational assistance process, the director's order affirming the insurer's end-of-eligibility decision per OAR 436-120-350(9) was affirmed. Lehman, Jason T.,
13 CCHR 256 (2008).
Claimant is not eligible for vocational assistance because the treating physician had released claimant to perform her normal work duties, and the treating physician had found her physically capable of performing her normal duties. Benitez, Maria,
13 CCHR 226 (2008).
OAR 436-120-0320(10)(a), requiring the worker to be authorized to work in the United States to be eligible for vocational assistance, is within the director's authority, and RRU's order affirming the employer's denial of vocational assistance for failure to provide documentation of authority to work in the United States must be affirmed Velazquez-Gomez, Luciano,
13 CCHR 90 (2008).
Claimant's eligibility for vocational assistance ended when she was employed for 60 days in suitable employment following her authorized training program. Porter, Janine,
13 CCHR 69 (2008).
For a substantial handicap to employment to exist, the worker must lack the necessary physical capacities, knowledge, skills, and abilities to be employed in suitable employment because of the injury or aggravation. Tsomo, Perma,
13 CCHR 66 (2008).
It is not an error for RRU to rely on a physical capacities evaluation, that claimant's attending physician concurred with, to determine if claimant has the physical capacity to perform a job. Tsomo, Perma,
13 CCHR 66 (2008).
The wage from the job at injury is used to calculate the worker's temporary disability and wages from other employment or secondary jobs are used to calculate the worker's supplemental disability benefits. Only the worker's temporary disability benefits are used to determine the worker's suitable wage for vocational assistance purposes. Allen, Jim R,
13 CCHR 41 (2008).
A written warning is required prior to ending a worker's vocational assistance eligibility when sufficient notice to satisfy OAR 436-120-0350(10) was provided by worker. Short, William R.*,
13 CCHR 19 (2008).
The worker's failure to contact his vocational counselor or the insurer when he missed two consecutive training sessions was reasonable because of the worker's objectively documented mental deficiencies and the manner in which he was advised of these duties. Short, William R.*,
13 CCHR 19 (2008).
Insurer's more stringent plan requirement requiring the worker to immediately contact his vocational counselor if he missed more than one day of the program is not permissible under the terms of OAR 436-120-0350(10). Short, William R.*,
13 CCHR 19 (2008).
Claimant does not have a "substantial handicap" to employment, and he was properly found ineligible for vocational assistance based on his at-injury weekly wage for the employer. Allen, Jim Ray*,
12 CCHR 299 (2007).
When there is no indication that claimant's job at injury was "temporary or seasonal" under OAR 436-120-0007(3), OAR 436-120-0007(4) applies to determine the "the weekly wage upon which temporary disability was based" and must be used to determine "adjusted weekly wage." Allen, Jim Ray*,
12 CCHR 299 (2007).
When the attending physician agrees with the physical capacities evaluation concluding worker is capable of medium work, worker does not have a substantial handicap to employment and is not eligible for vocational assistance. Helstowski, Steven E,
12 CCHR 275 (2007).
Claimant is not eligible for vocational assistance if her claim is closed without an award of permanent disability. Tristany, Jane E,
12 CCHR 236 (2007).
The director did not abuse its discretion in finding a worker ineligible for vocational assistance because the employer terminated the worker for cause when the worker neither appeared for work nor phoned-in to report unavailability. Reyes-Joya, Jose*,
12 CCHR 231 (2007).
Merely concluding the claimant cannot return to regular work is not enough to determine eligibility for vocational assistance, a separate analysis is required. Caswell, Dianna L,
12 CCHR 195 (2007).
Claimant is eligible for vocational assistance only if she has a substantial handicap to employment and is unable to return to her prior employment or other suitable employment with her employer at injury, her preexisting conditions are not considered in this determination. Graham, Sherman,
12 CCHR 204 (2007).
Claimant's eligibility for vocational assistance ended because he failed, after written warning, to participate in the vocational assistance process. Shahad, Jassem M,
12 CCHR 165 (2007).
When determining vocational assistance eligibility, it is not necessary to determine if suitable employment is available when claimant has no work restrictions and can return to regular work. Toepfer, Linda S,
12 CCHR 152 (2007).
When claimant turns down suitable employment that is permanent, she is not eligible for vocational assistance even if when actually performed by other people the position involves work outside claimant's restrictions and there was no evidence that the employer would have required claimant to work outside her restrictions. Jorgens, Judith A,
12 CCHR 127 (2007).
When the claimant's claim was reopened to process a newly accepted condition before his vocational eligibility was determined, circumstances after reopening must be considered in determining eligibility, even though he had been suitably employed for more than 60 days after the initial injury but before reopening. Miller, James A,
12 CCHR 105 (2007).
It was not an abuse of discretion for the director to affirm the Notice of Ineligibility for vocational assistance when claimant made little effort to cooperate with the vocational counselor and failed to respond to written notices. Shahad, Jassem M*,
12 CCHR 92 (2007).
When a worker is unavailable for vocation assistance due to incarceration for a period greater than six months, the worker is ineligible for vocation assistance. Keller, Charles W,
12 CCHR 89 (2007).
In determining eligibility for vocational assistance, it is not error for an ALJ to consider a Notice of Closure that was issued after RRU's order. Dorcy, Tom H,
12 CCHR 70 (2007).
The Director did not abuse its discretion in allegedly failing to allow the cross-examination of a doctor when claimant's request was untimely, claimant did not request reconsideration, and claimant did not pursue the matter further. Branum Jr., Ray,
12 CCHR 67 (2007).
Claimant bears the burden of establishing eligibility for vocational assistance. Jorgens, Judith A*,
12 CCHR 41 (2007).
In this case, the claimant raised no specific exceptions for review and the director found there was no reason to modify the proposed order. Dinger, Stephen W,
12 CCHR 27 (2007).
For vocational assistance eligibility, a new claim occurs when a claim for aggravation is made or a reopened claim is processed for a newly accepted condition, therefore it is no longer relevant that claimant was suitably employed for more than 60 days after the injury. Miller, James A*,
8 CCHR 16 (2007).
An ALJ will not disturb the findings of the Director when the Director has found claimant eligible for vocational assistance because of a "substantial handicap" to employment relying on the preponderance of medical evidence. Miller, James A*,
8 CCHR 16 (2007).
If a worker is determined not to have a permanent disability after an eligibility finding, the worker's eligibility ends. Dorcy, Tommy H*,
11 CCHR 310 (2006).
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