During the most recent revision of OAR 436-105, we attempted to clarify certain portions of the rules that were unclear, and we made an effort to simplify the process for obtaining reimbursement benefits. The following questions provide a summary of the changes we made during this revision:

What are examples of "consumables," as defined in OAR 436-105-0005(3)?

OAR 436-105-0005(3) defines "Consumables" as "purchases required to support the functioning of tools or equipment during transitional work." Because previous versions of the rules were unclear about whether or not consumables were eligible for reimbursement under the Employer-at-Injury Program, the division added this definition to clarify that consumables are eligible for reimbursement, as mentioned in OAR 436-105-0520(3)(b). Examples include (but are not limited to) batteries, nails for a nail gun, or ink for a printer.

How does the addition of "consumables" change the rules?

In older versions of the rules, the Division did not specifically mention that consumables were eligible EAIP purchases. Because of this, some employers said they could not purchase certain tools and equipment when those items also required an additional ongoing expense that was unaccounted for in their budgets.

Now it is clear, in OAR 436-105-0520(3)(b), that employers can purchase tools and equipment that require the use of these consumable materials. Consumables can be included within the maximum amount available for reimbursement through the EAIP category of "tools and equipment."

What documentation is required during an audit of EAIP purchases?

In an audit, WCD looks for a legible copy of proof of payment for EAIP purchases, including proof the item was ordered during the EAIP. OAR 436-105-0500(7)(d).

Do I have to provide proof that an item was delivered during the EAIP eligibility period?

No. OAR 436-105-0500(7)(d) only requires proof that the item was "ordered during the EAIP period, and proof of payment of the items…"

Even though items are ordered during the eligibility period, certain hang-ups may occur outside the employer's control that delay delivery of the purchases until after the eligibility period ends. The employer will not be penalized for things that are outside of their control, such as items being on back order, delays in shipment, etc. The employer's requirements are simply to order during the eligibility period and pay for the item.

A "wrap-up" policy is another term for Owner Controlled Insurance Program (OCIP). With this type of policy, the owner purchases insurance on behalf of all contractors employed for a specific project. The insurance covers contractors, subcontractors, construction management and state employees working on the construction site who are approved by the owner for participation in the program. The contractors are required to carry their own insurance for work off the site and to pay a deductible when claims occur.

When considering the recipient of EAIP benefits, the Workers' Compensation Division defines "employer" based on ORS 656.005(13)(a), which states that an employer is a person who "contracts to pay a remuneration for and secures the right to direct and control the services of any person." With this consideration, the Division will provide benefits to the employer that directs and controls the daily work activities of the worker.

If one of your workers is injured while working under an OCIP policy, you should file the injury report under the OCIP policy. In this case, the owner of the OCIP policy would be considered the legal employer for purposes of compensability - meaning it would be responsible for processing the claim. For this reason, the claim should be filed under the OCIP policy. However, the policy owner's involvement with the claim does not extend beyond processing the claim.

On the other hand, the contracted employer would be considered to be the employer for purposes of Employer-at-Injury Program benefits. The contracted employer directly controls the services of, and directly distributes the payroll to the worker, and therefore the contracted employer more closely fits the definition of "employer" as outlined in Oregon Revised Statute. As a result, because the contracted employer controls the daily work activities of the worker, s/he would receive the EAIP benefits, including wage subsidy. Any EAIP reimbursement paid to the owner of the OCIP policy should be passed through to the contracted employer.