What happened to Jessie Chu?
Jessie Chu had three jobs at the time she was injured: a full-time position as a jewelry salesperson at Fred Meyer, a part-time lead generator position for an insurance company, and a one-day-per-week gig as a bartender/server at a restaurant. While working at the restaurant, she had a bad fall that injured her left arm and wrist, and she eventually needed surgery. Chu got temporary disability benefits while she was unable to work, and her disability benefits were calculated based on her average weekly wage from all three of her jobs, since the law requires those payments to be calculated “by adding all earnings the worker was receiving from all subject employment.”
After Chu healed, her doctors released her to return to work, but with the restriction that she should not lift more than 5-10 pounds with her left arm. She was able to return to her position as a jewelry salesperson, but the restaurant said they couldn’t take her back since her old job required her to lift more than 5-10 pounds. Was she entitled to vocational assistance?
The Law on Vocational Assistance
An injured Oregon worker can get vocational assistance if she can’t go back to her job after medical treatment has healed her as well as it can. Vocational assistance means a range of services, including wage subsidies, job site modification, and job training. The worker is eligible for vocational assistance if she can no longer do work that pays “within 20 percent” of what she earned at her “regular employment” (ORS 656.340). So what happens to a worker like Jessie Chu, who worked three different jobs?
The workers compensation insurer—SAIF—took the position that Chu was not eligible for vocational assistance because she could work at a weekly wage within 20% of her one-day-a-week wage at the restaurant at the time she was injured—$100.80. In short, because Chu could make at least $80.64 per week, she didn’t need vocational assistance—despite the fact that she had been working three jobs at the time of injury, and her aggregate wages were much higher than the $100.80 she had been earning by working one day per week at the restaurant alone.
The Court of Appeals Rules for Jessie Chu
The Oregon Court of Appeals disagreed with SAIF. The central question was the meaning of “the worker’s regular employment.” SAIF argued it means only the particular job which the worker was injured. The court held that “employment” doesn’t mean just one job; it means all of the work the injured worker was doing when she got hurt. After all, the point of vocational assistance is to return the worker to work that is “as close as possible to the worker’s regular employment.” That should mean all of the worker’s employment, not just the part-time job on which the worker happened to get hurt. The court ruled that Chu was entitled to vocational assistance because, after her injury, she was no longer able to make 80% of the wages she was earning at all of her jobs before her injury.