OAR 436-060-0025
Worker’s Weekly Wage Calculation and Rate of Temporary Disability Compensation

(1) Continuation of wages, insured employers. An employer may not continue to pay wages in place of temporary disability benefits. However, with the worker’s consent, the employer may pay the worker amounts in addition to the temporary disability benefits due to the worker, if the employer:
(a) Identifies temporary disability benefits separately from other payments; and
(b) Does not withhold payroll deductions from the temporary disability benefits.
(2) Continuation of wages, self-insured employers. Notwithstanding section (1) of this rule, a self-insured employer may continue to pay the same wage at the same pay interval that the worker received at the time of injury. Such payment qualifies as timely payment of temporary disability under ORS 656.210 (Temporary total disability) and 656.212 (Temporary partial disability). If the self-insured employer continues to pay wages in place of temporary disability benefits under this section:
(a) Normal deductions including but not limited to, taxes, benefits, and voluntary deductions, must be withheld;
(b) The claim must be classified as disabling;
(c) The self-insured employer must report to the division the rate and duration of temporary disability that would have been paid had wages not continued; and
(d) If the pay interval changes or the amount of wages decreases, the worker must be paid temporary disability as otherwise prescribed by the workers’ compensation law.
(3) Rate of compensation, generally. Except when payments are made under section (2) of this rule, the worker must receive compensation as calculated under ORS 656.210 (Temporary total disability) during the period of temporary total disability, subject to the following:
(a) The benefits of a worker who incurs an injury must be based on the worker’s wages at the time of injury and may include regular wages, irregular wages, or both;
(b) The benefits of a worker who incurs an occupational disease must be based on the worker’s wages at the time there is medical verification the worker is unable to work because of the disability caused by the occupational disease and may include regular wages, irregular wages, or both. If the worker is not working at the time there is medical verification the worker is unable to work because of the disability caused by the occupational disease, the benefits must be based on the worker’s wages at the worker’s last regular employment;
(c) The benefits of a worker who was employed in multiple jobs at the time of injury, and who is eligible for supplemental disability under ORS 656.210 (Temporary total disability)(2)(b) and OAR 436-060-0035 (Supplemental Disability for Workers with Multiple Jobs at the Time of Injury), must be based on the worker’s earnings from all eligible subject employment under OAR 436-060-0035 (Supplemental Disability for Workers with Multiple Jobs at the Time of Injury);
(d) For a worker with a cyclic schedule, the cycle must be considered to have no scheduled days off; and
(e) When a work shift extends into another calendar day, the date of injury used to determine the wage under this section is the date the employer used for payroll purposes.
(4) Calculation of irregular wages. If the worker receives irregular wages, the insurer must calculate the worker’s irregular wages to determine the worker’s average weekly wage based on the weekly average of the worker’s irregular wages for the period up to 52 weeks before the date of injury or verification of disability caused by occupational disease, subject to the following:
(a) As used in this section:
(A) “New wage earning agreement” means the worker’s wage earning agreement changed for reasons other than only a pay rate change, including but not limited to a change of hours worked or a change of job duties. A job assignment from a temporary service provider or worker leasing company as defined in OAR 436-180 is not considered to be a new wage earning agreement.
(B) “Pay rate change” means an increase or decrease in a previously established pay rate.
(b) If, on the date of injury or verification of disability caused by occupational disease, the worker had been employed by the employer at injury for four weeks or more, and the most recent new wage earning agreement had been in place for four weeks or more, the insurer must average the worker’s irregular wages for the period up to 52 weeks of employment before the date of injury or verification of disability caused by occupational disease, subject to the following:
(A) The insurer must exclude any gap in earnings of more than 14 consecutive calendar days that was not anticipated in the wage earning agreement;
(B) If the worker began work under a new wage earning agreement in the 52 weeks before the date of injury or verification of disability caused by occupational disease, and there has been no pay rate change since the beginning of that work, the insurer must average irregular wages only for the weeks worked under the most recent wage earning agreement; and
(C) When there has been a pay rate change during the 52 weeks before the date of injury or verification of disability caused by occupational disease, and paragraph (b)(B) of this section does not apply, the insurer must calculate the worker’s average weekly hours worked at each pay rate since a new wage earning agreement went into place, but not to exceed 52 weeks. The average weekly hours worked at each pay rate must then be multiplied by the pay rate(s) at the time of injury or verification of disability caused by occupational disease to determine the worker’s average weekly wage for these wages. For the purpose of this rule, the “average weekly hours worked” includes all hours paid at an hourly rate which resulted in payment of irregular wages since the new wage earning agreement went into place, but not to exceed 52 weeks. This may include, but is not limited to, pay for regular hours, overtime, vacation, sick leave, paid time off, or bereavement leave. If there are irregular wages not paid at an hourly rate, the worker’s average weekly wage under this paragraph must be added to the average of all of those other irregular wages paid at something other than an hourly rate.
(c) If, on the date of injury or verification of disability caused by occupational disease, the worker was employed by the employer at injury for less than four weeks, or the worker’s most recent new wage earning agreement had been in place for less than four weeks, the insurer must base the rate of compensation on the intent of the worker’s wage earning agreement in place at the time of injury or verification of disability caused by occupational disease, as confirmed by the employer and worker.
(5) Calculation of regular wages. If the worker receives regular wages, the insurer must calculate the worker’s regular wages to determine the worker’s average weekly wage:
(a) Daily wages must be multiplied by the number of days per week the worker was regularly employed;
(b) Monthly wages must be divided by 4.35;
(c) Wages for other pay intervals must be calculated on an equivalent basis; or
(d) For workers employed through a union hiring hall, the insurer must calculate the rate of compensation on the basis of a five-day work week at 40 hours a week, regardless of the number of days actually worked per week.
(A) The rate of compensation for workers employed through a union hiring hall with dates of injury on or after January 1, 2018 must be calculated under this subsection.
(B) The rate of compensation for workers employed through a union hiring hall with dates of injury from January 1, 2017 through December 31, 2017 must be calculated under this subsection, unless such calculation would result in a reduction of benefits.
(6) Workers with no wages. If the worker is a volunteer, adult in custody, or other covered worker that receives no wages, the insurer must calculate the rate of compensation based on the assumed wage used to determine the employer’s premium.
(7) Owners and corporate officers. If the worker is a sole proprietor, partner, officer of a corporation, or limited liability company member, the insurer must calculate the rate of compensation based on the assumed wage used to determine the employer’s premium.
(8) Wage disputes. If the worker disputes the wage used to calculate the rate of compensation, the insurer must attempt to resolve the dispute by reviewing its records and mathematical calculations, or by contacting the employer to confirm the correct wage. The insurer must then contact the worker with the results of its review and, if the wage was corrected, the new calculation. If the worker does not agree with the wage calculated by the insurer, the worker may request a hearing under OAR 436-060-0008 (Administrative Review and Contested Cases).

Source: Rule 436-060-0025 — Worker’s Weekly Wage Calculation and Rate of Temporary Disability Compensation, https://secure.­sos.­state.­or.­us/oard/view.­action?ruleNumber=436-060-0025.

436‑060‑0003
Purpose, Applicability, Forms, and Bulletins 436‑060‑0005
Definitions 436‑060‑0008
Administrative Review and Contested Cases 436‑060‑0010
Employer Responsibilities 436‑060‑0011
Insurer Reporting Requirements 436‑060‑0012
Notices and Correspondence Following the Death of a Worker 436‑060‑0015
Required Notice and Information 436‑060‑0017
Release of Claim Documents 436‑060‑0018
Nondisabling and Disabling Claim Reclassification 436‑060‑0019
Determining and Paying the Three Day Waiting Period 436‑060‑0020
Payment of Temporary Total Disability Compensation 436‑060‑0025
Worker’s Weekly Wage Calculation and Rate of Temporary Disability Compensation 436‑060‑0030
Payment of Temporary Partial Disability Compensation 436‑060‑0035
Supplemental Disability for Workers with Multiple Jobs at the Time of Injury 436‑060‑0040
Payment of Permanent Partial Disability Compensation 436‑060‑0045
Payment of Compensation During Worker Incarceration 436‑060‑0055
Payment of Medical Services on Nondisabling Claims 436‑060‑0060
Lump Sum Payment of Permanent Partial Disability Awards 436‑060‑0075
Payment of Death Benefits 436‑060‑0095
Medical Examinations 436‑060‑0105
Suspension of Compensation for Insanitary or Injurious Practices, Refusal of Treatment or Failure to Participate in Rehabilitation 436‑060‑0135
Injured Worker, Worker’s Attorney Responsible to Assist in Investigation 436‑060‑0137
Vocational Evaluations for Permanent Total Disability Benefits 436‑060‑0140
Acceptance or Denial of a Claim 436‑060‑0141
Claims for COVID-19 or Exposure to SARS-CoV-2 436‑060‑0147
Worker Requested Medical Examination 436‑060‑0150
Timely Payment of Compensation 436‑060‑0153
Electronic Payment of Compensation 436‑060‑0155
Penalty to Worker for Untimely Processing 436‑060‑0160
Use of Sight Draft to Pay Compensation Prohibited 436‑060‑0170
Recovery of Overpayment of Benefits 436‑060‑0180
Designation and Responsibility of a Paying Agent 436‑060‑0190
Monetary Adjustments among Parties and Department of Consumer and Business Services 436‑060‑0195
Miscellaneous Monetary Adjustments Among Insurers 436‑060‑0200
Assessment of Civil Penalties 436‑060‑0400
Penalty and Attorney Fee for Untimely Payment of Disputed Claims Settlement 436‑060‑0500
Reimbursement of Supplemental Disability for Workers with Multiple Jobs at the Time of Injury 436‑060‑0510
Reimbursement of Permanent Total Disability Benefits from the Workers’ Benefit Fund
Last Updated

Jun. 8, 2021

Rule 436-060-0025’s source at or​.us