436-030-0055 Determining Permanent Total Disability (1) A worker is permanently and totally disabled if permanently incapacitated from regularly performing work in a suitable and gainful occupation. For the purpose of this rule and OAR 436-030-0065: (a) "Incapacitated from regularly performing work" means that the worker does not have the necessary physical and mental capacity and the work skills to perform the essential functions of the job. Employment in a sheltered workshop is not considered regular employment unless this was the worker’s job at the time of injury. (b) "Suitable occupation" means those occupations that exist in a theoretically normal labor market, within a reasonable geographic distance, for which a worker has the training or experience, and abilities to realistically perform the job duties, with or without rehabilitation. (c) "Gainful occupation" means those types of general occupations that provide wages that: (A) Meet the requirements in ORS 656.206(11)(a) for workers with a date of injury prior to January 1, 2006; or (B) Meet the requirements in ORS 656.206(11)(b) for workers with a date of injury on or after January 1, 2006. (d) "Work skills" means those skills acquired through experience or training that are necessary to gain and adequately perform skilled, semi-skilled or unskilled occupations. Unskilled types of general occupations require no specific skills that would be acquired through experience or training to be able to gain and adequately perform the unskilled occupation. Every worker has the necessary work skills to gain and adequately perform unskilled types of general occupations with a reasonable period of orientation. (e) A "reasonable geographic distance" means either of the following unless the worker is medically precluded from commuting: (A) The area within a 50-mile radius of the worker’s place of residence at the time of: (i) The original injury; (ii) The worker’s last gainful employment; (iii) Insurer’s determination; or (iv) Reconsideration by the director. (B) The area in which a reasonable and prudent uninjured and unemployed person, possessing the same physical capacities, mental capacities, work skills, and financial obligations as the worker does at the time of the rating of disability, would go to seek work. (f) "Types of general occupations" means groups of jobs which actually exist in a normal labor market, and share similar vocational purpose, skills, duties, physical circumstances, goals, and mental aptitudes. It does not refer to any specific job or place of employment for which a job or job opening may exist in the future. (g) "Normal labor market" means a labor market that is undistorted by such factors as local business booms and slumps or extremes of the normal cycle of economic activity, or technology trends in the long-term labor market. (h) "Withdrawn from the workforce" means a worker who is not employed, is not willing to be employed, or although willing to be employed is not making reasonable efforts to find employment, unless such efforts would be futile. The receipt of retirement benefits does not establish a worker has withdrawn from the workforce. (2) All disability that existed before the injury must be included in determining permanent total disability. (3) In order for a worker to be determined permanently and totally disabled, a worker must: (a) Prove permanent and total disability; (b) Be willing to seek regular and gainful employment; (c) Make reasonable effort to find work at a suitable and gainful occupation or actively participate in a vocational assistance program, unless medical or vocational findings, including the residuals of the compensable injury, make such efforts futile; and (d) Not have withdrawn from the workforce during the period for which benefits are being sought. (4) A worker retaining some residual functional capacity and not medically permanently and totally disabled must prove: (a) The worker has not withdrawn from the workforce for the period for which benefits are being sought; (b) Inability to regularly perform work at a gainful and suitable occupation; and (c) The futility of seeking work if the worker has not made reasonable work search efforts by competent written vocational testimony. Competent written vocational testimony is that which is available at the time of closure or reconsideration and comes from the opinions of persons fully certified by the State of Oregon to render vocational services. (5) Notices of Closure and Orders on Reconsideration that grant permanent total disability must notify the worker that: (a) The claim must be reexamined by the insurer at least once every two years, and may be reviewed more often if the insurer chooses. (b) The insurer may require the worker to provide a sworn statement of the worker’s gross annual income for the preceding year. The worker must make the statement on a form provided by the insurer in accordance with the requirements under section (6) of this rule. (6) If asked to provide a statement under (5)(b) of this rule, the worker is allowed 30 days to respond. Such statements are subject to the following: (a) If the worker fails to provide the requested statement, the director may suspend the worker’s permanent total disability benefits. Benefits must be resumed when the statement is provided. Benefits not paid for the period the statement was withheld must be recoverable for no more than one year from the date of suspension. (b) If the worker provides a report that is false, incomplete, or inaccurate, the insurer must investigate. The investigation may result in suspension of permanent total disability benefits. Statutory/Other Authority: ORS 656.268, ORS 656.726, OL Ch. 332 1995 & OL Ch. 313 1999 Statutes/Other Implemented: ORS 656.268, ORS 656.726, OL Ch. 332 1995, OL Ch. 313 1999, ORS 656.005, ORS 656.206 & OL Ch. 865 2001 History: WCD 4-2022, amend filed 06/13/2022, effective 07/01/2022 WCD 3-2020, amend filed 02/07/2020, effective 03/01/2020 WCD 8-2005, f. 12-6-05, cert. ef. 1-1-06 WCD 9-2004, f. 10-26-04, cert. ef. 1-1-05 WCD 2-2004, f. 2-19-04 cert. ef. 2-29-04 WCD 10-2001, f. 11-16-01, cert. ef. 1-1-02 WCD 9-2000, f. 11-13-00, cert. ef. 1-1-01 WCD 17-1997, f. 12-22-97, cert. ef. 1-15-98 WCD 8-1996, f. 2-14-96, cert. ef. 2-17-96 WCD 12-1994, f. 11-18-94, cert. ef. 1-1-95 WCD 31-1990, f. 12-10-90, cert. ef. 12-26-90 WCD 13-1987, f. 12-18-87, ef. 1-1-88