Or. Admin. Code § 137-076-0025

Current through Register Vol. 63, No. 12, December 1, 2024

Section 137-076-0025 - Lost Earnings and Loss of Support Compensation

(1) A victim is eligible for loss of earnings under ORS 147.035(2)(b) when:

(a) The victim is eligible to receive compensation under ORS 147.005 to 147.367;

(b) The victim was gainfully employed or receiving unemployment benefits at the time of the compensable crime; and

(c) The victim is prevented from working as a direct result of the compensable crime.

(A) Loss of earnings does not include missed time from work to attend court hearings or appointments;

(B) Loss of earnings does not include intermittent leave;

(C) Lost earnings compensation for periods of disability in excess of 10 working days may be paid only if the period of disability is confirmed by a health provider, or a licensed therapist when the victim has missed work due to an emotional injury. The maximum period for wage loss due to an emotional injury is six months unless good cause is determined by the Department.

(2) A parent or guardian of a minor child victim may be eligible for loss of earnings under ORS 147.035 (2) when:

(a) A minor child victim is eligible to receive compensation under ORS 147.005 to 147.367;

(b) The parent or guardian of a minor child victim who was gainfully employed or receiving unemployment benefits at the time of the compensable crime to the victim;

(c) The minor child victim sustained physical or emotional injuries directly related to the compensable crime. These injuries must require that the parent or guardian miss work to provide care for the minor child while they recover from their injuries.

(d) A work release is required from the child's medical or mental health provider to review any request for loss of earnings.

(A) Loss of earnings for the parent or guardian does not include missed time from work to attend court hearings or to take a child to appointments;

(B) Loss of earnings does not include intermittent leave;

(C) Loss of earnings for the parent or guardian are compensable up to a maximum of $5,000.00 under the child victim's claim under ORS 147.035 (2)(f).

(3) The Department will review employment wages, to ensure payments are accurate and to coordinate benefits, this will alleviate the potential for overpayments. Compensation for lost earnings under ORS 147.035(2)(b) shall be computed on the basis of 75% of the victim's documented gross earnings on the date of the compensable crime. Possible future earnings may not be considered as a basis for lost earnings compensation. The Department can contact employers to document earnings in lieu of other documentation.

(a) Compensation for lost earnings may be paid for subsequent crime-related periods of disability. The victim must have qualified for loss of earnings at the time of the crime. The lost earnings compensation amount for subsequent periods of disability shall be recalculated and computed on the basis of 75% of the victim's current documented gross earnings at the time of the subsequent period of disability, and shall be paid accordingly;

(b) If a victim was not working at the time of the compensable crime but has a history of annual earnings through periodic work such as seasonal work, contracting, or temporary assignments, the victim may still be eligible for lost earnings compensation if the Department receives proper documentation to support the gross earnings. Proper documentation includes but is not limited to a written employment contract, 1099, quarterly filing (1040-ES). This documentation shall be used by the Department to determine the victim's income and provide a basis for calculating the disability period, if applicable;

(c) If a victim is self-employed the Department will require documentation to verify the loss of earnings. Such documentation includes but is not limited to a complete federal tax return for the prior year if the crime occurred in the first quarter of the year or a quarterly tax filing (1040-ES) if the crime occurred after the first quarter of the year, 1099, a bank statement for a business account, or a written employment contract;

(d) Where a replacement is hired to fulfill the duties of an injured victim and the cost of this replacement person is a direct financial cost to the victim, the Department may use the documented replacement cost as the basis for calculating lost earnings compensation;

(e) Under no circumstances may lost earnings compensation exceed the weekly or aggregate per-claim maximum amounts set forth in ORS 147.035(2)(b);

(f) If an applicant is receiving a prior resource including but not limited to Workers' Compensation, Paid Leave Oregon or equivalent plan, short- or long-term disability, auto insurance such as personal injury protection (PIP), settlements or unemployment insurance, they do not qualify for loss of earnings through the Department;

(g) Passive income is not considered earned income. Passive income is defined as income that includes regular earnings from a source other than an employer or contractor. Passive income can come from rental property or a business in which one does not actively participate.

(4) A victim's dependents are eligible for loss of support when:

(a) The victim's dependents are eligible to receive compensation under ORS 147.005 to 147.367 and OAR 137-076-0025(4);

(b) The victim was gainfully employed or receiving unemployment benefits at the time of the compensable crime; and

(c) The victim is deceased as a result of the compensable crime.

(5) The amount of compensation for loss of support shall be computed on the basis of 75% of the deceased victim's documented gross earnings at the time of death.

(a) Under no circumstances may loss of support compensation exceed the weekly or aggregate per-claim maximum amounts set forth in ORS 147.035(3)(d);

(b) Compensation for loss of support may include documented loss of child support, if applicable. Loss of child support is calculated based on the amount of child support received by the child from the victim at the time of the victim's death not to exceed $800 per week per ORS 147.035(3)(d);

(c) Loss of support compensation may be paid to documented dependent children until the age of 18, or until the age of 24 if the dependent child is a full-time college student. If the documented dependent child is a minor, payment shall be made to the child's legal guardian;

(d) Loss of support compensation may also be paid to a dependent spouse of a deceased victim and any relative of the deceased victim who is a legal dependent of the deceased victim at the time of the compensable crime;

(e) Loss of support is based on the deceased victim's income at the time of the compensable crime that caused their death regardless of the surviving spouses income. The income of the deceased victim shall be used to determine loss of support compensation for the deceased victim's surviving dependents, including a surviving dependent spouse;

(f) Documentation to determine the deceased victim's legal guardianship of surviving minor children will be required by the Department prior to the authorization of loss of support payments;

(g) The current legal guardian of the surviving dependents must apply to the Department in order to receive loss of support for the dependents.

Or. Admin. Code § 137-076-0025

JD 4-1983, f. & ef. 9-1-83; JD 2-1992, f. & cert. ef. 3-2-92; JD 2-1997, f. & cert. ef. 7-9-97; DOJ 4-2001, f. & cert. ef. 6-1-01; DOJ 14-2004, f. & cert. ef. 11-22-04; DOJ 3-2017, f. 4-25-17, cert. ef. 4/27/2017; DOJ 7-2024, amend filed 04/29/2024, effective 4/29/2024

Statutory/Other Authority: ORS 147.205(1)

Statutes/Other Implemented: ORS 147.035