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In re ORS 656.340 Vocational Assistance Matter of Chu

Court of Appeals of Oregon

February 14, 2018

In the ORS 656.340 Vocational Assistance Matter of Jessie L. Chu, Claimant. Jessie L. CHU, Petitioner,
v.
SAIF CORPORATION and Lis Chiam Inc., Respondents, and DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, Intervenor.

          Argued and submitted November 22, 2016.

         Department of Consumer and Business Services 1400034H; A159901

          Donald M. Hooton argued the cause and fled the briefs for petitioner.

          David L. Runner argued the cause and fled the brief for respondents.

          Judy 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.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

         Case 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.

         [290 Or. 196]

          EGAN, C. J.

         Claimant 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.

         In 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.

         Claimant lost time from all three of her jobs because of her injury.[1] 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).[2] 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 jobs.

         Claimant's 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 ...


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