OAR 436-035-0015: Offsetting Prior Awards

If a worker has a prior award of permanent disability under Oregon Workers’ Compensation Law, the award is considered in subsequent claims under ORS 656.222 and 656.214. (1) A prior award can be used to offset an award for a subsequent claim when all the following are true: (a) The prior claim is closed under Oregon Workers’ Compensation Law; (b) The prior claim has an award of permanent disability; (c) The disability in the prior claim has not fully dissipated as outlined in section (2) of this rule; and (d) Both claims have similar disabilities as outlined in sections (3) and (4) of this rule. (2) A disability from a prior claim is considered to have fully dissipated if there is not a preponderance of medical evidence or opinion establishing that disability from the prior injury or disease was still present on the date of the injury or disease of the claim being determined. If disability from the prior injury or disease was not still present, an offset is not applied. (3) The following are considered when determining what impairment findings can be offset from a prior claim: (a) Only identical impairment findings of like body parts or systems are to be offset (e.g., left leg sensation loss to left leg sensation loss, chronic low back to chronic low back, psychological to psychological, etc.). (b) A more distal body part impairment finding may be offset against a more proximal body part impairment finding (or vice versa) if there is a combined effect of impairment (e.g., a right forearm impairment finding may be offset against a right arm impairment finding). (c) Irreversible findings and surgical values are not offset. (4) The following are considered when determining what disability findings can be offset from a prior claim: (a) When a worker successfully returns to work in a position requiring greater physical capacity than the RFC established at the time of claim closure in a prior claim, an offset is not applied. The BFC for the current claim closure is established under OAR 436-035-0012, without offsetting the RFC from the prior claim. (b) The social-vocational factors of age and education (including SVP) are not offset, but are redetermined as of the date of issuance. (5) The following are considered when calculating the current disability award and applying an offset: (a) The worker’s loss of use or function or loss of earning capacity for the current disability under the standards; (b) The conditions or findings of impairment from the prior awards which were still present just prior to the current claim; (c) The worker’s adaptability factors which were still present just prior to the current claim, if appropriate; and (d) The combined effect of the prior and current injuries (the overall disability to a given body part), including the extent to which the current loss of use or function or loss of earning capacity (impairment and social-vocational factors) from a prior injury or disease was still present at the time of the current injury or disease. After considering and comparing the claims, any award of compensation in the current claim for loss of use or function or loss of earning capacity caused by the current injury or disease (which did not exist at the time of the current injury or disease and for which the worker was not previously compensated) is granted. (e) When there is measurable impairment in the current claim and the worker has not returned to regular work but the offset applied reduces the impairment award to zero, the worker is entitled to a work disability award. The work disability calculation must include the percentage of measurable impairment from the current claim.