When an injured worker cannot work due to a workplace injury, they are entitled to receive a wage replacement benefit called “time-loss.” This important benefit keeps workers financially afloat when they are recovering from their injury. A worker’s time-loss rate is 66% of the worker’s average weekly wage (AWW). Before 2017, this time-loss benefit was calculated using the worker’s wage-at-injury multiplied by their average weekly hours from their past weeks on the job (up to 52 weeks).
In 2017, the Oregon Workers’ Compensation Division (WCD) changed the rule to allow insurers to simply average the wages from the past 52 weeks instead of using the wage at the time of injury. While this change made it simpler for the insurer, it also resulted in reducing the time-loss rate for any injured worker who had received a pay increase within the year before their injury. In addition, the reduced time-loss rate also lowered the permanent disability award of workers who were unable to return to their former jobs, because their AWW is a factor for determining their permanent disability award.
WCD made this rule change over objections from TCNF’s Chris Frost and other claimants’ attorneys from the Oregon Trial Lawyers Association (OTLA). Chris then began working with Jess Giannettino Villatoro, the Oregon AFL-CIO’s political director, to get WCD to change the rule back. Reducing injured workers’ benefits to simplify time-loss calculations for the insurer was simply unacceptable. Over the last twenty years, workers’ compensation premiums paid by employers in the state of Oregon have been steadily declining. In 2016, Oregon’s premiums dropped to 45th nationwide. Chris used an example of how detrimental the new rule was for one of her clients.
Brian Hoskins, a line operator, was injured thirteen weeks into his new job. Under the old rule, his weekly time-loss rate would have been $506. Under the new rule, it was $365. He couldn’t afford his rent or child support on this reduced time-loss rate and had to leave the state to live with a relative. Another worker, Richard Poland, wrote to WCD that this new time-loss rate cost him $100 a week in time-loss: “$100 may not seem like very much to you, but when you are living on 2/3 of what you are used to, that $100 can make a big difference.”
The Oregon AFL-CIO mobilized organized labor and OTLA supported their efforts to reopen the rule-making process to get rid of this bad rule—and it worked! The rule was scrapped and replaced in February 2018. This is an important victory for injured workers in Oregon and one that would not have happened without the power of organized labor and the coalition building that kept this issue alive. It is also an important reminder that vigilance must be constant. WCD changed this rule over objections, knowing it would reduce workers’ benefits—an action suggesting the agency does not understand how difficult it can be to live on a reduced time-loss rate, particularly for low wage workers. That is why Chris Frost not only fights for her TCNF clients individually, but is also on the forefront of helping to create better policy for injured workers across Oregon.