Determining eligibility for vocational assistance

Question:The worker was released to regular work but she did not return to regular work. Under the old rules, the insurer was required to determine a worker's eligibility in such cases; however, under the new rules the insurer is not required to determine eligibility if the worker was released to return to regular work. The insurer referred the case to me for an eligibility evaluation in December 2009, before the rule change. Is the insurer required to determine eligibility at this point?

Answer: No. The rules that apply are the ones in effect when the insurer makes its decision. In this case, the rules in effect as of January 1, 2010, do not require the insurer to determine this worker's eligibility.

Question: I have been asked to do an eligibility evaluation in a case where the worker quit a job with a new employer for reasons unrelated to the injury. The job was not suitable because it was "on-call" and did not pay a suitable wage; however, the job probably would have become suitable on the first of the month if the worker had not resigned. Which rule applies in this case?

Answer: If the worker accepted a job with a new employer that was not suitable, you cannot determine the worker's eligibility based on that job, regardless of whether the employer may have offered the worker suitable employment at a later date if the worker had not resigned. You need to continue the eligibility evaluation and perform a substantial handicap evaluation.

Question: When I called the worker's home to set up a meeting for an eligibility evaluation, the worker's wife told me the worker had recently suffered a heart attack. I later learned that the heart attack was serious, and the worker may never be able to participate in vocational assistance. Under the old rules, the worker would be ineligible under OAR 436-120-0350(11), because "The worker's lack of suitable employment cannot be resolved by providing vocational assistance." However, that option does not exist in the new rules. Which rule applies?

Answer: The worker is not eligible for vocational assistance because he is not available; therefore, the rule that applies is OAR 436-120-0145(2)(f). Assuming that the insurer considers the worker's unavailability to be for "reasonable cause," the insurer will be required to redetermine the worker's eligibility, under OAR 436-120-0175(1), if and when the worker notifies the insurer that he is able to participate and has become available.

Question: What rule do I cite when determining a worker ineligible because he was terminated for cause, but the employer would have provided suitable employment if the worker had not been terminated?

Answer: The worker is not eligible because he does not satisfy the condition described in OAR 436-120-0145(c)(B): "The worker is not able to return to suitable and available work with the employer at injury or aggravation…"

Question: Is the insurer required to determine a worker's eligibility if the worker receives a permanent total disability (PTD) award?

Answer: OAR 436-120-0115(2) states: "Even if the conditions in (1) are met, the insurer is not required to do an eligibility evaluation if the worker is deceased, the worker has a permanent disability award, or the worker's claim is reopened under a Board's Own Motion." However, under OAR 436-120-0145(1), if the worker's PTD benefits are later terminated by a final order, the worker becomes eligible automatically and no eligibility evaluation is required.

Determining eligibility after a deferral

Question: I deferred an eligibility determination in 2009 because the worker returned to a modified job that resulted from an employer-at-injury activated use of the Preferred Worker Program. The 12-month deferral period started on the date the parties signed a worksite modification agreement. Should I determine the worker's eligibility 12 months from the date of the worksite modification agreement, as per the old rules, or should I determine the worker's eligibility 12 months from the date the department determined that the worksite modification was complete, as required under the new rules?

Answer: You should comply with the new rules and determine the worker's eligibility 12 months from the date the department determined that the worksite modification was complete.

Question: An insurer referred a case to me for an eligibility evaluation; however, a few days later, the insurer informed me that the claim had gone to mediation and the parties had settled. They agreed to do a claim disposition agreement (CDA); however, the CDA has not yet been approved by the Workers' Compensation Board (WCB). Do I need to complete the eligibility evaluation and determine the worker's eligibility?

Answer: Even though the parties have agreed to the terms of a CDA, the worker has not actually "entered into a claim disposition agreement" until the CDA has been approved by the WCB and the CDA becomes final. Until that happens, the insurer is still responsible for completing the eligibility determination, so you should talk to the insurer about how to proceed. If the insurer determines the worker eligible before the WCB approves the CDA, under OAR 436-120-0165(14), the parties may agree in writing to suspend provision of vocational assistance services until the CDA becomes final. When the WCB approves the CDA, the insurer must end the worker's eligibility unless the worker retains his or her vocational assistance rights. No notice of end of eligibility is required in such cases.

Ending eligibility

Question: What rule do I cite when ending a worker's eligibility because the worker has returned to suitable employment and has been working for 60 days?

Answer: The rule that applies in this case is OAR 436-120-0165(1) "… the worker no longer meets the eligibility requirements." Specifically, the worker no longer meets the requirement described in OAR 436-120-0145(2)(d): "The worker was not employed in suitable employment for at least 60 days after the injury or aggravation." You should cite both rules in the Notice of End of Eligibility.

Ending training

Question: I need to send the worker a Notice of Training End because he failed to pass his classes. Do I need to cite OAR 436-120-0165, or just OAR 436-120-0440?

Answer: The answer depends on whether you are ending the worker's eligibility because he failed to participate in training, or just ending the worker's training but not his eligibility. If you are ending the worker's eligibility as well as his training, you should cite OAR 436-120-0440 (15)(b), which states that training is ending because the worker's eligibility has ended under OAR 436-120-0165. If you are only ending the worker's training, and intend to re-evaluate the training plan, then just cite the applicable reference under OAR 436-120-0440(13), (14) or (15).

Postponements and deferrals

Question: OAR 436-120-0125(3) states that, if the insurer is unable to determine a worker's eligibility because of "insufficient data," the insurer has to explain to the worker, in writing, why it cannot yet make a decision; however, the rule does not state in so many words that a Notice of Deferral is required. Is the insurer required to send the worker a Notice of Deferral under these circumstances?

Answer: First of all, "postponements" and "deferrals" are not the same thing.

Postponements
The conditions that may require the insurer to postpone determining a worker's eligibility are described in OAR 436-120-0125. In most cases, the reason for a postponement is that the insurer does not yet know what the worker's permanent limitations will be, but the reason could also be that the insurer needs other necessary information, such as wage data. When postponing an eligibility determination, no formal notice is required - only a written explanation that includes what information the insurer needs to determine eligibility or make a decision and when the insurer expects to make the decision.

Deferrals
The insurer is required to send the worker a Notice of Deferral, under OAR 436-120-0155, only in cases where the employer at injury activates preferred work benefits under OAR 436-120-110 and the worker agrees in writing to accept a new or modified job.