Temporary Changes to Workers’ Compensation Rules

Determining the Worker’s Average Weekly Wages for Workers With Irregular Wages

Oregon Workers’ Compensation Association www.OregonWCA.com

The Workers’ Compensation Division has adopted temporary changes to OAR 436-060-0005 and 0025, to be effective February 21, 2018 through August 19, 2018.

Summary of changes:

  • Revised rule 0005 updates the definitions of wages; and
  • Revised rule 0025 changes the method for determining the worker’s average weekly wage if the worker has irregular wages and has experienced an increase or decrease in the rate of pay during the 52 weeks before the date of injury or verification of disability caused by an occupational disease, and clarifies that the rate of compensation may include regular wages, irregular wages, or both.

Need for the Temporary Rule(s): Temporary rules are needed to ensure that workers with irregular wages who have experienced wage increases during the year preceding their injuries are fairly compensated during their recovery.

Documents Relied Upon, and where they are available: Advisory committee records and written advice. These documents are available for public inspection upon request to the Workers’ Compensation Division, 350 Winter Street NE, Salem, Oregon 97301-3879. Please contact Fred Bruyns, rules coordinator, 503-947-7717, fred.h.bruyns@oregon.gov.

Justification of Temporary Rule(s): Failure to act promptly will result in serious prejudice to the public interest or the interest of the parties concerned. A worker’s weekly wage is the basis for determining the rate of temporary disability. For workers whose wages have increased in the year before their injuries, the current rule requires wage averaging based on total earnings for a period of up to 52 weeks before the injury. This method has harmed some workers whose temporary disability rate does not reflect the wage subsequent to the pay increase.

The agency finds that issuing temporary rules under ORS 183.335(5) is appropriate because it will very quickly end the practice of basing the rate of temporary disability on wages that do not reflect the worker’s wage subsequent to a pay increase.

The agency finds that issuing permanent rules under ORS 183.335(2) and (3) is not appropriate because more workers may not be fairly compensated during the time required to promulgate a permanent rule.

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Oregon Workers’ Compensation Association www.OregonWCA.com