In the ORS 656.340 Vocational Assistance Matter of Jessie L. Chu, Claimant. Jessie L. CHU, Petitioner,
SAIF CORPORATION and Lis Chiam Inc., Respondents, and DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, Intervenor.
and submitted November 22, 2016.
of Consumer and Business Services 1400034H; A159901
M. Hooton argued the cause and fled the briefs for
L. Runner argued the cause and fled the brief for
C. Lucas, Assistant Attorney General, argued the cause for
intervenor. With her on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen,
Summary: Claimant seeks judicial review of an order of the
director of the Department of Business and Consumer Services
upholding SAIF's determination that she is not entitled
to vocational assistance for her compensable work injury.
Claimant contends that the director erred in concluding that
wages only from claimant's part-time job at injury were
to be considered in determining claimant's eligibility
for benefits. Held: The director erred. Under ORS
656.340, [290 Or. 195] wages from all jobs held at the time
of injury are to be considered in determining claimant's
eligibility for vocational assistance benefits.
seeks review of an order of the director of the Department of
Business and Consumer Services (the department) upholding
SAIF's determination that she is not entitled to
vocational assistance for her compensable work injury. The
facts are not in dispute, and the only issue presented on
judicial review is a question of statutory construction. We
review the director's order for legal error, ORS
183.482(8), conclude that the director erred, and therefore
reverse and remand.
October 2010, claimant worked one day per week as a
bartender/server at employer's restaurant, where she
slipped and fell on a wet floor and injured her left arm and
wrist, requiring surgery. Claimant's pay at the
restaurant was minimum wage plus tips. SAIF, employer's
workers' compensation insurance carrier, accepted a
disabling claim for three conditions. At the time of her
injury, claimant also worked for two other employers: She
worked full time as a jewelry salesperson for Fred Meyer and
part time as a lead generator for American Family Insurance.
lost time from all three of her jobs because of her
injury. As a result, her benefits for temporary
disability were calculated based on a weekly wage determined
"by adding all earnings the worker was receiving from
all subject employment." ORS
656.210(2)(a)(B). Over the course of [290 Or. 197] the
claim, claimant received temporary total and temporary
partial disability benefits based on her wages from all three
injury became medically stationary and, in December 2013,
claimant's physician released her to regular work at the
restaurant and at Fred Meyer, with a lifting restriction of
five to ten pounds on the left arm. Claimant was able to
return part-time to her work at Fred Meyer, with
accommodations. But employer could not accommodate
claimant's work restrictions, so she could not return to
work at the ...