The News You Need for June 14

Happy Flag Day! Check in with some Oregon compliance information.

Glossary Check: Or. ‘Suitable Employment,’ ‘Suitable Wage’

Frank Ferreri

Eugene, OR (WorkersCompensation.com) -- In Oregon, when it is asserted that a worker's current employment precludes the worker from being awarded partial temporary disability benefits, the work must be both “gainful” and “suitable.” But what counts as "suitable employment" in Oregon? Here's how state law defines the term.

“Suitable employment” or “suitable job” means employment or a job:

(A) For which the worker has the necessary physical capacities, knowledge, skills, and abilities;

(B) Located where the worker customarily worked, or within reasonable commuting distance of the worker's residence. A reasonable commuting distance is no more than 50 miles one-way modified by other factors including, but not limited to:

(i) Wage of the job;

(ii) The pre-injury commute;

(iii) The worker's physical capacities, if they restrict the worker's ability to sit or drive for 50 miles;

(iv) Commuting practices of other workers who live in the same geographic area; and

(v) The distance from the worker's residence to the nearest cities or towns that offer employment opportunities;

(C) That pays a suitable wage or would average on a year-round basis a suitable wage;

(D) That is permanent. Temporary work is suitable if the worker's job at injury was temporary and the worker has transferable skills to earn, on a year-round basis, a suitable wage; and

(E) For which a reasonable labor market is documented to exist.

(b) “Suitable employment” or “suitable job” may also be modified or new employment resulting from an employer at injury activated use of the Preferred Worker Program under OAR 436-110, as described in OAR 436-120-0165(1)(c).

“Suitable wage” means:

(a) For the purpose of determining eligibility for vocational assistance, a wage at least 80 percent of the adjusted weekly wage; or

(b) For the purpose of providing or ending vocational assistance, a wage as close as possible to 100 percent of the adjusted weekly wage. This wage may be considered suitable if less than 80 percent of the adjusted weekly wage, if the wage is as close as possible to the adjusted weekly wage.

Case Example

In Saif Corp v. Terry, 869 P.2d 876 (Or. Ct. App. 1994), an injured fruit picker's employment as broiler feeder at Burger King was "'reflective of [claimant's] pluck and the sympathy of the employer’ and did not establish that claimant was competitively employable in a theoretically normal labor market.”