Richard Poland, 70 Van Natta 172 (2018), the board upheld OAR 436-060-0025(4), as amended effective January 1, 2017.
The worker had challenged the rule as inconsistent with ORS 656.210(2)(d), which states that the benefits of a worker who incurs an accidental injury “shall be based on the wage of the worker at the time of injury.” The worker contended that the rule was invalid to the extent that it allowed the averaging of wages earned under different wage rates during the 52 weeks prior to the date of injury. He contended that the statute required that the wage rate on the date of injury be applied to all wages earned during the entire averaging period. The board concluded that the rule was within the discretion allowed the director under ORS 656.210(2)(e), which states that the director, “by rule, may prescribe methods for establishing the worker’s weekly wage” of workers whose remuneration is not based solely on daily or weekly wages.
David Runner is an attorney with SAIF Corporation who periodically provides updates of important Oregon workers’ compensation litigation; used with permission. Click here to contact David.