Chapter 656

NOTES OF DECISIONS

Party having affirmative of any issue must prove it by preponderance of evidence unless legislature fixes some different quantum of proof. Hutcheson v. Weyerhaeuser Co., 288 Or 51, 602 P2d 268 (1979)

Amendments to existing statutes and enactment of additional statutes by 1995 legislation generally apply to pending cases and to orders still appealable on June 7, 1995, effective date. Volk v. America West Airlines, 135 Or App 565, 899 P2d 746 (1995), Sup Ct review denied

Amendments to existing statutes and enactment of additional statutes by 1995 legislation do not extend or shorten procedural time limitations with regard to actions taken prior to June 7, 1995, effective date. Motel 6 v. McMasters, 135 Or App 583, 899 P2d 1212 (1995)

ATTY. GEN. OPINIONS: Benefit unavailability for inmates engaged in prison work programs, (1996) Vol 48, p 134

LAW REVIEW CITATIONS: 24 WLR 321, 341 (1988); 32 WLR 217 (1996)

656.001 to 656.794

LAW REVIEW CITATIONS: 55 OLR 432-445 (1976); 16 WLR 519 (1979); 22 WLR 559 (1986)

656.002

NOTE: Repealed July 1, 1975; ORS 656.003 and 656.005 enacted in lieu

See annotations under ORS 656.005.

656.004

NOTE: Repealed November 1, 1981; ORS 656.012 enacted in lieu

See annotations under ORS 656.004 in permanent edition.

656.005

See also annotations under ORS 656.002 in permanent edition. ORS 656.005 was enacted in lieu of ORS 656.002.

Compensable injury

Work connection generally

Going/coming, dual purpose

Traveling employees

Personal comfort

Listed exclusions to compensable injury

Aggravation, preexisting or combination

conditions

Major cause, material cause

Occupational disease

In general

Claimant’s medical condition

Employers

Workers and independent contractors

Beneficiaries

Wages

Other

NOTES OF DECISIONS

Compensable injury

Work connection generally

Where nonwork activity was ordered by employer and benefited employer, injury was incurred within course of employment. Casper v. SAIF, 13 Or App 464, 511 P2d 451 (1973)

In cases holding medical testimony unnecessary to make prima facie case of causation, distinguishing features are uncomplicated situation, immediate appearance of symptoms, prompt reporting of occurrence by worker to superior, consultation with physician and prior good health of plaintiff, free from disability of kind involved. Seriganis v. Fleming, 20 Or App 659, 533 P2d 183 (1975); Barnett v. SAIF, 122 Or App 279, 857 P2d 228 (1993)

Presence at work is insufficient by itself to eliminate requirement that injury arise out of employment. Robinson v. Felts, 23 Or App 126, 541 P2d 506 (1975); Otto v. Moak Chevrolet, 36 Or App 149, 583 P2d 594 (1978), Sup Ct review denied

Factors used to determine whether injury producing activity was within employee’s scope of employment include whether: activity occurred during regular hours of employment, activity benefitted employer, employee was compensated for activity, activity was contemplated at time of hiring, participation was expectation or requirement of employment. Hansen v. SAIF, 28 Or App 263, 558 P2d 1303 (1977)

Factors to be considered include whether activity benefited employer, was contemplated, was ordinary risk of employment, was paid activity, was on employer premises, was directed by or acquiesced to by employer or was personal mission. Olsen v. SAIF, 29 Or App 235, 562 P2d 1234 (1977), Sup Ct review denied; Mellis v. McEwen, Hanna, Gisvold, Rankin & Van Koten, 74 Or App 571, 703 P2d 255 (1985), Sup Ct review denied; Freightliner Corp. v. Arnold, 142 Or App 98, 919 P2d 1192 (1996)

Employee-initiated off-premises activity undertaken to maintain qualification for employment did not arise out of or occur in course of employment. Haugen v. SAIF, 37 Or App 601, 588 P2d 77 (1978)

Where action is prohibited by employer or is unreasonable in nature, resulting injury does not arise out of or occur in course of employment. Lane v. Gleaves Volkswagen, 39 Or App 5, 591 P2d 368 (1979)

Where stressful job-related event produced immediate employee reaction producing injury, reaction was sufficiently minor deviation from job duties to meet course of employment requirement. Youngren v. Weyerhaeuser Co., 41 Or App 333, 597 P2d 1302 (1979), Sup Ct review denied

Opinion of medical expert as to causation of injury is not required for determining whether injury arose out of employment. Hutcheson v. Weyerhaeuser Co., 288 Or 51, 602 P2d 268 (1979)

Activity causing injury need not be of type only engaged in during on-job activities. Hubble v. SAIF, 56 Or App 154, 641 P2d 593 (1982), Sup Ct review denied

Violation of rule specifying manner of job performance did not make injury non-compensable. Patterson v. SAIF, 64 Or App 652, 669 P2d 829 (1983); Sisco v. Quicker Recovery, 218 Or App 376, 180 P3d 46 (2008)

Injury caused by neutral risk is compensable if originating in risk connected with employment or rationally and naturally connected thereto, even though risk is not peculiar to, or increased by, employment. Phil A. Livesley Co. v. Russ, 296 Or 25, 672 P2d 337 (1983); Redman Industries, Inc. v. Lang, 326 Or 32, 943 P2d 208 (1997)

Unitary work connection test analysis applies to occupational disease claims. SAIF v. Noffsinger, 80 Or App 640, 723 P2d 358 (1986), Sup Ct review denied

Injury suffered while coming or going is work-connected unless employee engages in conduct not expressly or impliedly allowed by employer. Agripac, Inc. v. Zimmerman, 97 Or App 512, 776 P2d 590 (1989), Sup Ct review denied

For injuries resulting from horseplay to be compensable, claimant must show causal link between occurrence of injury and risk connected with his or her employment. Brown v. Liberty Northwest Ins. Co., 105 Or App 92, 803 P2d 780 (1990), Sup Ct review denied

Injury sustained in vehicle accident was compensable even if cause of accident was factor peculiar to individual. Marshall v. Bob Kimmel Trucking, 109 Or App 101, 817 P2d 1346 (1991)

Assault on employee by third person arises out of employment where resulting from nature of work or originating from risk to which employment exposes employee. Barkley v. Corrections Div., 111 Or App 48, 825 P2d 291 (1992)

Parking lot rule establishes “arising out of” element of unitary test, but does not establish causal connection between work and injury. Norpac Foods, Inc. v. Gilmore, 318 Or 363, 867 P2d 1373 (1994)

Although neither element is dispositive, unitary test requires evaluation both of whether injury occurred in course of employment and of causal connection between injury and employment. First Interstate Bank v. Clark, 133 Or App 712, 894 P2d 499 (1995), Sup Ct review denied; Krushwitz v. McDonald’s Restaurants, 323 Or 520, 919 P2d 465 (1996)

Where claim is based on street injury, claimant is not required to prove risk was peculiar to employment. First Interstate Bank v. Clark, 133 Or App 712, 894 P2d 499 (1995), Sup Ct review denied

Where employee is not participant in horseplay, employer knowledge or acquiescence in horseplay is not required to make injury one arising out of employment. Kammerer v. United Parcel Service, 136 Or App 200, 901 P2d 860 (1995)

Where instrumentality of employer became hazard solely because of personal activity of employee, employer ownership of instrumentality and location on owner property were not sufficient to create work connection with resulting injury. SAIF v. Marin, 139 Or App 518, 913 P2d 336 (1996), Sup Ct review denied

Coverage exclusion for injury resulting from horseplay does not apply to nonparticipating victim. Liberty Northwest Ins. Corp. v. Johnson, 142 Or App 21, 919 P2d 529 (1996)

Disobedience of employer’s order setting boundaries of claimant’s ultimate work is not dispositive of whether resulting injury was work related. Andrews v. Tektronix, Inc., 323 Or 154, 915 P2d 972 (1996)

Whether disobedience of employer’s instruction to avoid certain work destroys work connection of resulting injury depends in part on: 1) degree of connection between authorized work and forbidden action; 2) degree of judgment and latitude normally permitted claimant; 3) workplace customs and practices; 4) relative risk to claimant in comparison with benefit to employer; 5) manner of conveying instruction to claimant; and 6) claimant’s perception of instruction’s purpose and scope. Andrews v. Tektronix, Inc., 323 Or 154, 915 P2d 972 (1996)

“Arising out of” factor is not determined by individual factors such as control, but by totality of circumstances surrounding injury. Torkko v. SAIF, 147 Or App 678, 938 P2d 225 (1997)

Injury arising from friction between coworkers arises out of employment if friction is product of work environment. Redman Industries, Inc. v. Lang, 326 Or 32, 943 P2d 208 (1997)

Unusual method of carrying out work-related activity does not undermine compensability. Wilson v. State Farm Insurance, 326 Or 413, 952 P2d 528 (1998)

Worker injury incurred during medical evaluation requested by attending physician as part of evaluation and claim closure process for original compensable injury has sufficient work connection to be compensable. Getz v. Wonder Bur, 183 Or App 494, 52 P3d 1097 (2002), Sup Ct review denied

Injury incurred during employer-required examination of claimant, whether designated as compelled medical examination, insurer medical examination, physical capacity evaluation or medical arbiter examination, is injury arising out of and in course of employment. McAleny v. SAIF, 191 Or App 105, 81 P3d 88 (2003), Sup Ct review denied

Injury sustained on employer-controlled property while engaged in normal ingress to or egress from work area arises out of employment. Hearthstone Manor v. Stuart, 192 Or App 153, 84 P3d 208 (2004)

Where injury occurred at place employer could reasonably expect worker to be and during activity reasonably incidental to employment, injury occurring after work shift ended was compensable. Tri-Met, Inc. v. Lamb, 193 Or App 564, 92 P3d 742 (2004)

Detrimental effect of worker behavior on economic relationship with employer does not place behavior that merely violates workplace rule outside of worker’s course of employment. Sisco v. Quicker Recovery, 218 Or App 376, 180 P3d 46 (2008)

Action performed without work-related reason may be social activity regardless of whether claimant intended to gain personally from action. Washington Group International v. Barela, 218 Or App 541, 180 P3d 107 (2008)

Where employer demands for its own advantage that employee furnish work premises, injury resulting from risk at premises encountered while performing work arises out of employment. Sandberg v. JC Penney Co., 243 Or App 342, ___ P3d ___ (2011)

Going/coming, dual purpose

Employee is entitled to compensation for injuries incurred while going to or from work on travel time paid for by employer. Fenn v. Charles T. Parker Constr. Co., 6 Or App 412, 487 P2d 894 (1971)

Where employee is required to use entrance or exit from work exposing employee to hazards in greater degree than general public, employee is within scope of employment. Nelson v. Douglas Fir Plywood Co., 260 Or 53, 488 P2d 795 (1971); Kiewit Pacific v. Ennis, 119 Or App 123, 849 P2d 541 (1993)

Where employment is such that employee going to or coming from work would normally be covered, personal activity while going or coming will not negate coverage unless substantially increasing risk of journey. Boyd v. Francis Ford, Inc., 12 Or App 26, 504 P2d 1387 (1973); Fowers v. SAIF, 17 Or App 189, 521 P2d 363 (1974), Sup Ct review denied

Where overtime work does not substantially increase hazard of journey, going to or coming from job is not special errand creating compensability. Davis v. SAIF, 15 Or App 405, 515 P2d 1333 (1973)

Where employment-related aspect of claimant’s trip had been completed and employment-related item she was carrying did not enhance risk of trip, dual-purposes rule was not satisfied and injury was not compensable. Gumbrecht v. SAIF, 21 Or App 389, 534 P2d 1189 (1975)

Where business aspect of dual purpose trip had ended, injury was not compensable. Johnson v. Employee Benefits Ins. Co., 25 Or App 215, 548 P2d 519 (1976), Sup Ct review denied

Where employee going to or coming from work sustains injury near employer’s premises, injury is work connected only if employer exerts some control over place where injury occurred. Kringen v. SAIF, 28 Or App 19, 558 P2d 854 (1977); Adamson v. The Dalles Cherry Growers, Inc., 54 Or App 52, 633 P2d 1316 (1981); Cope v. West American Insurance Co., 309 Or 232, 785 P2d 1050 (1990)

Where journey has dual purpose, compensability depends on whether business component of trip was of sufficient character and importance that journey would have been undertaken solely for that purpose. Brown v. SAIF, 43 Or App 447, 602 P2d 1151 (1979), Sup Ct review denied

Injury in parking lot over which employer exerts control is injury occurring on employer premises. Montgomery Ward v. Cutter, 64 Or App 759, 669 P2d 1181 (1983)

Employer control over place of injury must exist at time of injury, but need not be year-round control. Montgomery Ward v. Malinen, 71 Or App 457, 692 P2d 694 (1984)

Where employer required claimant to bring personal car to work, trip to and from work was sufficiently work-related and accident occurring on way to car was compensable. Jenkins v. Tandy Corp, 86 Or App 133, 738 P2d 985 (1987), Sup Ct review denied

Work performed as special errand can be of same nature as claimant’s regular work. Hickey v. Union Pacific Railroad Co., 104 Or App 724, 803 P2d 275 (1990)

Where work outside of normal hours substantially increases hazard of going to or coming from work, journey is special errand. Hickey v. Union Pacific Railroad Co., 104 Or App 724, 803 P2d 275 (1990)

Substituted performance of journey’s business purpose by another person is not required for proving business component of journey. Marshall v. Cosgrave, Kester, Crowe, Gidley and Lagesen, 112 Or App 384, 830 P2d 209 (1992), Sup Ct review denied

Where parking lot is owned and controlled by employer, injury sustained prior to employee undertaking action purely for employee’s personal benefit arises out of and in course of employment. Boyd v. SAIF, 115 Or App 241, 837 P2d 556 (1992)

Claimant status as own employer does not disqualify self-imposed job requirements from being work-connected activity. McKeown v. SAIF, 116 Or App 295, 840 P2d 1377 (1992)

Where employee is required to live on employer’s premises and is injured as result of condition of premises, injury is work-related. Leo Polehn Orchards v. Hernandez, 122 Or App 241, 857 P2d 213 (1993), Sup Ct review denied

Where employer had non-exclusive control over common area and area was necessary route for going to or coming from work, injury arose out of and in course of employment. Henderson v. S.D. Deacon Corp., 127 Or App 333, 874 P2d 76 (1994)

Injuries occurring in employer’s parking lot are not per secompensable, but are sufficiently work-related to meet requirement of occurring in course of employment. Norpac Foods, Inc. v. Gilmore, 318 Or 363, 867 P2d 1373 (1994)

“Special errand” exception applies only if employee was acting in furtherance of employer’s business at time of injury or if employer had right to control some aspect of employee’s travel. Krushwitz v. McDonald’s Restaurants, 323 Or 520, 919 P2d 465 (1996)

Employee exposure to “greater hazard” while traveling to or from work creates coverage only where travel route is exclusive way to or from employment site and route contains specific hazard at particular point. Krushwitz v. McDonald’s Restaurants, 323 Or 520, 919 P2d 465 (1996)

Where travel for purpose other than going to or coming from work is done at request of employer, sufficient work connection exists to make injury compensable. Iliaifar v. SAIF, 160 Or App 116, 981 P2d 353 (1999)

Whether frequency of exposure creates greater risk for employee going to or coming from work is determined by comparison with risk to public generally, not individual members of public. Beaver v. The Mill Resort and Casino, 180 Or App 324, 43 P3d 460 (2002)

Where work shift ended at place other than where shift began, and employer could reasonably expect worker would return to starting place after end of shift, going and coming rule did not apply to injury incurred during return. Tri-Met, Inc. v. Lamb, 193 Or App 564, 92 P3d 742 (2004)

Traveling employees

Employee participation in combined social and business activity is employment related activity that maintains traveling employee continuous coverage. Simons v. SWF Plywood Co., 26 Or App 137, 552 P2d 268 (1976)

Where traveling employee engagement in personal activity was in lieu of normal business related activity, personal activity was non-compensable deviation. Hackney v. Tillamook Growers, 39 Or App 655, 593 P2d 1195 (1979), Sup Ct review denied

Worker’s death resulting from activities occurring after work hours, but while worker was away from home supervising employer’s construction project, was compensable. Rogers v. SAIF, 289 Or 633, 616 P2d 485 (1980)

Personal activity is compensable if reasonably related to routine needs arising from employee’s traveler status. Slaughter v. SAIF 60 Or App 610, 654 P2d 1123 (1982); PP&L v. Jacobson, 121 Or App 260, 854 P2d 999 (1993), Sup Ct review denied

Death of traveling employee was not compensable, because it occurred during personal activities that had nothing to do with job or requirement that he live near job site. Burge v. SAIF, 108 Or App 145, 813 P2d 81 (1991)

Overnight travel is not required to qualify employee as traveling employee. PP&L v. Jacobson, 121 Or App 260, 854 P2d 999 (1993), Sup Ct review denied

Where activity is not so inconsistent with employer requirements as to constitute abandonment of work duties, injury is compensable. Proctor v. SAIF, 123 Or App 326, 860 P2d 828 (1993); Savin Corp., v. McBride, 134 Or App 321, 894 P2d 1261 (1995)

Where overnight travel was elective but was consistent with employer interest, coverage applied to personal activities during trip. Proctor v. SAIF, 123 Or App 326, 860 P2d 828 (1993)

Where activity at time of injury is result of earlier departure on personal errand, but is type of activity employer would reasonably expect of traveling employee, activity is reasonably related to employee’s status as traveling employee. Sosnoski v. SAIF, 184 Or App 88, 55 P3d 533 (2002), Sup Ct review denied

Personal comfort

Lunchtime activities on employer premises are generally compensable even if not caused by work-related hazard. Olsen v. SAIF, 29 Or App 235, 562 P2d 1234 (1977), Sup Ct review denied

Where employer did not provide restrooms or refreshment facilities for employees, injury that occurred while employee was crossing street to use facilities on delayed coffee break was sufficiently work-related to be compensable. Halfman v. SAIF, 49 Or App 23, 618 P2d 1294 (1980)

On-premises injuries sustained by worker while engaged in activities for personal comfort are compensable where conduct is expressly or impliedly allowed by employer. Clark v. U.S. Plywood, 288 Or 255, 605 P2d 265 (1980); Bailey v. Peter Kiewit & Sons, 51 Or App 407, 626 P2d 3 (1981)

Injury sustained on employer’s premises during personal comfort activities by resident employee continuously on call is compensable where work-connected and incurred during activities incidentally related to claimant’s employment. Wallace v. Green Thumb, Inc. 296 Or 79, 672 P2d 344 (1983)

Off-premises injury incurred during paid normally contemplated personal activity is compensable. Mellis v. McEwen, Hanna, Gisvold, Rankin & Van Koten, 74 Or App 571, 703 P2d 255 (1985), Sup Ct review denied

Employer contemplated that employee required to travel throughout working day would conduct ordinary comfort activities while working and thereby anticipated risk of injury related to such activities. PP&L v. Jacobson, 121 Or App 260, 854 P2d 999 (1993)

Listed exclusions to compensable injury

Where charitable activity did not occur on employer’s premises or during working hours and employer did not require participation in or derive direct benefits from activity, activity was not within scope of employment. Richmond v. SAIF, 58 Or App 354, 648 P2d 370 (1982), Sup Ct review denied

Claimant proves work connection of recreational activity by meeting any of three criteria: 1) accident was on premises during regular lunch or recreational time activity; 2) employer expressly or impliedly requires participation; or 3) employer derives benefits beyond employee health and morale. Colvin v. Industrial Indemnity, 83 Or App 73, 730 P2d 585 (1986)

“Active participant” in assault or combat means employee had opportunity to avoid or withdraw from encounter but did not. Irvington Transfer v. Jasenosky, 116 Or App 635, 842 P2d 454 (1992)

Behavior by claimant angering attacker and motivating later attack does not make claimant “active participant in assaults or combats.” Redman Industries, Inc. v. Lang, 326 Or 32, 943 P2d 208 (1997)

Where social or recreational activity causing injury is merely incidental to contemporaneous performance of work, injury does not result from “activities primarily for worker’s personal pleasure.” Liberty Northwest Insurance Corp. v. Nichols, 186 Or App 664, 64 P3d 1152 (2003)

Recreational activities engaged in or performed while on job but not incidental to primary activity of working are not compensable. Roberts v. SAIF, 196 Or App 414, 102 P3d 752 (2004), aff’d 341 Or 48, 136 P3d 1105 (2006)

Aggravation, preexisting or combination conditions

If accident delays diagnosis of preexisting disease such that disease is not treated as promptly as it otherwise would have been, injured worker is entitled to compensation for physical consequences of delay in treatment. Pettit v. Austin Logging Co., 9 Or App 347, 497 P2d 207 (1972)

Worsening of symptoms of preexisting injury or disease due to employment, without worsening of occupational disease, is not compensable. Weller v. Union Carbide, 288 Or 27, 602 P2d 259 (1978); Georgia-Pacific Corp. v. Warren, 103 Or App 275, 796 P2d 1246 (1990), Sup Ct review denied

Last injurious exposure rule does not apply to occupational disease claim where subsequent employer is not subject to Oregon Workers’ Compensation Act. Progress Quarries v. Vaandering, 80 Or App 160, 722 P2d 19 (1986)

That injury is compensable because it is direct and natural consequence of original injury does not mean injury is compensable for claim processing purposes as aggravation of original injury. State v. Partible, 98 Or App 244, 778 P2d 990 (1989), Sup Ct review denied

Subsequent injury must be major contributing cause of disability in order for initial injury responsibility to shift to subsequent employer. SAIF v. Drews, 318 Or 1, 860 P2d 254 (1993)

Where either compensable or noncompensable injury combines with preexisting condition, it is necessary to determine whether injury is major contributing cause of disability or need for treatment. SAIF v. Drews, 318 Or 1, 860 P2d 254 (1993)

Where pre-existing condition was compensable, provisions of ORS 656.308 apply to determine whether responsibility for condition shifts to subsequent employer. SAIF v. Drews, 318 Or 1, 860 P2d 254 (1993)

Where more than one employer is potentially liable for initial claim, disputed claim settlement leaving only one potentially liable employer does not negate application of last injurious exposure rule to prove causation. Bennett v. Liberty Northwest Ins. Corp., 128 Or App 71, 875 P2d 1176 (1994)

Finding that former employer was not sole cause of injury does not shift responsibility to subsequent employer under last injurious exposure rule absent evidence that subsequent employment actually contributed to worsening of underlying condition. Willamette Industries, Inc. v. Titus, 151 Or App 76, 950 P2d 318 (1997); SAIF v. Hoffman, 193 Or App 750, 91 P3d 812 (2004)

Employer subjecting claimant to conditions of type that could cause occupational disease, but that could not have been actual cause of claimant’s occupational disease, is not responsible under last injurious exposure rule, regardless of whether claim is available against other employers. Beneficiaries of Strametz v. Spectrum Motorwerks, 325 Or 439, 939 P2d 617 (1997)

Application of major cause standard to person with preexisting disability does not constitute discrimination violating Americans with Disabilities Act. Bailey v. Reynolds Metals, 153 Or App 498, 959 P2d 84 (1998), Sup Ct review denied

Degenerative condition resulting from natural aging process can be “preexisting condition.” Brown v. A-Dec, Inc., 154 Or App 244, 961 P2d 280 (1998); Wantowski v. Crown Cork and Seal, 164 Or App 214, 991 P2d 574 (1999)

Triggering date for purposes of last injurious exposure rule is earlier of date claimant first seeks treatment or date claimant first receives treatment. Agricomp Insurance v. Tapp, 169 Or App 208, 7 P3d 764 (2000), Sup Ct review denied; Sunrise Electric, Inc. v. Ramirez, 181 Or App 401, 45 P3d 1057 (2002)

Last injury rule presumes that unaccepted consequential condition results from last employment that actually contributed to injury unless evidence establishes earlier employment as major contributing cause of condition. SAIF v. Webb, 181 Or App 205, 45 P3d 950 (2002)

Military service is employment for purposes of last injurious exposure rule. Wallowa County v. Fordice, 181 Or App 222, 45 P3d 963 (2002), Sup Ct review denied

New compensable injury involves same condition as preexisting condition only if preexisting condition is within or part of new injury or is directly affected by new injury. Multifoods Specialty Distribution v. McAtee, 333 Or 629, 43 P3d 1101 (2002)

For purpose of last injurious exposure rule, medical treatment means either ongoing medical care or application of some technique, drug or other action designed to alleviate or cure disease or injury. Foster Wheeler Corp. v. Marble, 188 Or App 579, 72 P3d 645 (2003), Sup Ct review denied

For purpose of last injurious exposure rule, seeking of medical treatment implies communicating with medical professional authorized to provide treatment. Liberty Northwest Insurance Corp. v. Gilliland, 198 Or App 84, 107 P3d 687 (2005)

To establish occupational disease based on worsening of work-related preexisting condition, claimant may use employment conditions both before and after existence of preexisting condition to prove employment is major contributing cause of current condition and worsening of disease. Ahlberg v. SAIF, 199 Or App 271, 111 P3d 778 (2005)

Where working conditions with single employer cause worker to suffer injuries to same body part at different times, consequential condition is compensable if worker establishes any compensable injury as major contributing cause of condition. Garoutte v. Mail Well Corp., 200 Or App 507, 115 P3d 957 (2005), Sup Ct review denied

Predisposition to injury is not preexisting condition for purposes of injury claims or occupational disease claims. Multnomah County v. Obie, 207 Or App 482, 142 P3d 496 (2006)

“Arthritis” refers to inflammation of one or more joints. Karjalainen v. Curtis Johnston & Pennywise, Inc., 208 Or App 674, 146 P3d 336 (2006), Sup Ct review denied

Last injury rule presumptively assigns responsibility for compensable condition to employer at time of last injury contributing independently to condition giving rise to need for treatment, but does not allow claimant to establish compensability merely by demonstrating that current condition or need for treatment arises from employment. Kirby v. SAIF, 214 Or App 123, 162 P3d 1063 (2007), Sup Ct review denied

Out-of-state compensable injury and treatment may be “preexisting condition.” Kirby v. SAIF, 214 Or App 123, 162 P3d 1063 (2007), Sup Ct review denied

“Arthritis” means inflammation of one or more joints, due to infectious, metabolic or constitutional causes, and resulting in breakdown, degeneration or structural change. Hopkins v. SAIF, 349 Or 348, 245 P3d 90 (2010)

Major cause, material cause

“Consequence of compensable injury” subject to major contributing cause standard means condition or need for treatment caused by compensable injury, but does not mean condition or need for treatment caused by industrial accident that caused compensable injury. Albany General Hospital v. Gasperino, 113 Or App 411, 833 P2d 1292 (1992)

Injury or condition not directly related to industrial accident is compensable only if major contributing cause of injury or condition is compensable injury suffered in industrial accident. Hicks v. Spectra Physics, 117 Or App 293, 843 P2d 1009 (1992); Kephart v. Green River Lumber, 118 Or App 76, 846 P2d 428 (1993), Sup Ct review denied

Where work-related injury combines with preexisting condition to cause disability or need for treatment, injury is compensable only if injury is major contributing cause of disability or need for treatment. Tektronix, Inc. v. Nazari, 117 Or App 409, 844 P2d 258 (1992), modified 120 Or App 590, 853 P2d 315 (1993); Schuler v. Beaverton School District No. 48J, 164 Or App 320, 992 P2d 467 (1999), aff’d 334 Or 290, 48 P3d 820 (2002)

Insurer may not relitigate compensability of medical treatment under new stricter standard where medical condition has been finally and conclusively determined to be compensable under the former standard as “materially related” to compensable injury. Cox v. SAIF, 121 Or App 568, 855 P2d 1165 (1993)

Where mental disorder is consequence of compensable injury, major cause standard used for independent mental disorder claims does not apply. Boeing Co. v. Young, 122 Or App 591, 858 P2d 484 (1993)

Major contributing cause does not apply to need for continuing medical treatment of compensable condition where no new injury has occurred. Beck v. James River Corp., 124 Or App 484, 863 P2d 526 (1993), Sup Ct review denied; Fred Meyer, Inc. v. Crompton, 150 Or App 531, 946 P2d 1171 (1997)

Where necessary and reasonable treatment of compensable injury is major contributing cause of new injury, new injury is compensable. Barrett Business Services v. Hames, 130 Or App 190, 881 P2d 816 (1994), Sup Ct review denied

Immediate cause of need for treatment may be distinguishable from major cause of need for treatment. Dietz v. Ramuda, 130 Or App 397, 882 P2d 618 (1994)

Determination of “major cause” of combined condition requires evaluating relative contribution of different causes for condition without regard to which cause precipitated need for treatment. Dietz v. Ramuda, 130 Or App 397, 882 P2d 618 (1994)

Compensable consequential condition resulting from original compensable injury is itself compensable injury and can be major contributing cause of another compensable consequential condition not directly caused by original injury. Roseburg Forest Products v. Zimbelman, 136 Or App 75, 900 P2d 1089 (1995)

Stress-inducing actions taken by employer or insurer during claims processing are not part of compensable injury. Baar v. Fairview Training Center, 139 Or App 196, 911 P2d 1232 (1996), Sup Ct review denied

If claimant’s work injury, rather than preexisting condition, is major cause of need for treatment, combined condition is compensable regardless of extent of preexisting condition. SAIF v. Nehl, 148 Or App 101, 939 P2d 96 (1997), modified 149 Or App 309, 942 P2d 859 (1997), Sup Ct review denied

Injury incurred during compelled medical examination requested by employer under ORS 656.325 is analyzed as independent work-related injury, not consequence of original compensable injury. Robinson v. Nabisco, Inc., 331 Or 178, 11 P3d 1286 (2000)

Where treatment of noncompensable condition is necessary prerequisite to successful treatment of compensable condition, material cause standard applies to determine whether expense of treating noncompensable condition is compensable. SAIF v. Sprague, 221 Or App 413, 190 P3d 443 (2008), aff’d 346 Or 661, 217 P3d 644 (2009)

Occupational disease

See also annotations under ORS 656.802.

Distinguishing features between occupational disease and accidental injury are unexpectedness and definiteness of onset time. O’Neal v. Sisters of Providence, 22 Or App 9, 537 P2d 580 (1975)

Symptoms of disease can constitute disease itself. Weller v. Union Carbide, 288 Or 27, 602 P2d 259 (1978); Georgia-Pacific Corp. v. Warren, 103 Or App 275, 796 P2d 1246 (1990), Sup Ct review denied

Exposure to substance capable of causing disease is not, by itself, injury. Brown v. SAIF, 79 Or App 205, 717 P2d 1289 (1986), Sup Ct review denied

Where claimant actually has injury or occupational disease, diagnostic medical services are compensable. Finch v. Stayton Canning Co., 93 Or App 168, 761 P2d 544 (1988)

Repetitive trauma occurring during discrete, identifiable period of time due to specific activity can be injury rather than occupational disease. LP Company v. Disdero Structural, 118 Or App 36, 845 P2d 1305 (1993)

Out-of-state employment could be used for purpose of establishing that occupational disease was work related, notwithstanding that employment was not subject to Oregon Workers’ Compensation Act. Silveira v. Larch Enterprises, 133 Or App 297, 891 P2d 697 (1995)

In occupational disease cases, disease or condition is “preexisting” only if it: 1) contributes or predisposes claimant to disability or need for treatment; and 2) precedes either date of disability or date when medical treatment is first sought, whichever occurs first. SAIF v. Cessnun, 161 Or App 367, 984 P2d 894 (1999)

Distinction between injury and occupational disease depends on whether condition occurred gradually, not whether symptoms developed gradually. Smirnoff v. SAIF, 188 Or App 438, 72 P3d 118 (2003)

In general

Harm creating need for medical treatment is compensable injury, whether or not worker suffers actual physical or mental harm. K-Mart v. Evenson, 167 Or App 46, 1 P3d 477 (2000), Sup Ct review denied

Claimant’s medical condition

Where case involves expert analysis rather than expert observation, deference to opinion of attending physician over opinion of other physician is not justified. Harris v. Farmers’ Co-op Creamery, 53 Or App 618, 632 P2d 1299 (1981), Sup Ct review denied

Person whose medical condition fluctuates may nonetheless be medically stationary. Maarefi v. SAIF, 69 Or App 527, 686 P2d 1055 (1984)

Reasonableness of medical expectations at time of claim closure must be judged by evidence then available, not by subsequent developments of claimant’s case. Alvarez v. GAB Business Services, 72 Or App 524, 696 P2d 1131 (1985)

Where claimant has pre-existing condition, in addition to determination whether claimant suffered compensable injury, determination must be made whether underlying condition has actually worsened. Scarratt v. H.A. Anderson Construction Co., 108 Or App 554, 816 P2d 691 (1991)

Medical treatment prescribed solely to improve functional abilities is not pertinent to determination of medically stationary date. Clarke v. SAIF, 120 Or App 11, 852 P2d 208 (1993)

Reclassification of claim from nondisabling to disabling requires proof of current condition that could lead to ratable impairment, but does not require proof of specific existing ratable impairment. SAIF v. Schiller, 151 Or App 58, 947 P2d 1128 (1997), Sup Ct review denied

In aggravation case, increased symptomatology beyond waxing and waning contemplated by previous award may be included in “objective findings” that underlying condition has actually worsened. SAIF v. Walker, 330 Or 102, 996 P2d 979 (2000)

“‘Objective findings’ in support of medical evidence” means determination, made in medically acceptable way, that characteristics of physical findings or of subjective responses to physical examination are verifiable indicators of injury or disease. SAIF v. Lewis, 335 Or 92, 58 P3d 814 (2002)

Making “‘objective findings’ in support of medical evidence” does not constrain person making findings to rely on own perceptions or examination or require person to determine that injury or disease presently exists. SAIF v. Lewis, 335 Or 92, 58 P3d 814 (2002)

Same types of nonverified indicators of impairment that qualify as “objective findings” for purposes of determining compensability qualify as objective findings for purposes of determining extent of permanent disability. SAIF v. Drury, 202 Or App 14, 121 P3d 664 (2005), Sup Ct review denied

“Verifiable indications of injury or disease” upon which physician may rely to form medical opinion include claimant’s self-reported symptoms if symptoms are reproducible, measurable or observable. Merle West Medical Center v. Parker, 207 Or App 24, 139 P3d 976 (2006)

Employers

There are two fundamental elements which must be present if employer-employee relationship exists: (1) Contract of hire between parties, either express or implied; and (2) Right of control. Oremus v. The Oregonian Publishing Co., 11 Or App 444, 503 P2d 722 (1972), Sup Ct review denied

Critical issue is whether right to control exists, whether or not control is ever actually exercised. Collins v. Anderson, 40 Or App 765, 596 P2d 1001 (1979)

Where “labor broker” supplied temporary worker to work at defendant’s premises, and labor broker and defendant controlled various aspects of plaintiff’s work, both labor broker and defendant were plaintiff’s employers for purposes of Workers’ Compensation Law. Robinson v. Omark Industries, 46 Or App 263, 611 P2d 665 (1980)

Where one person negotiated labor contract and paid wages, but another person had right to direct and control work and terminate employment, right of control was more persuasive factor than existence of contract in determining which person was employer. Multnomah County v. Hunter, 54 Or App 718, 635 P2d 1371 (1981)

Provider of “remuneration” is person making payment in quid pro quo exchange with worker for services, not provider of money used for payment. Martelli v. R.A. Chambers and Associates, 99 Or App 524, 783 P2d 31 (1989), aff’d 310 Or 529, 800 P2d 766 (1990)

Where loaned servant doctrine does not apply, employee belief as to identity of employer is irrelevant. Liberty Northwest Ins. Corp. v. Church, 106 Or App 477, 808 P2d 106 (1991), Sup Ct review denied

Whether employment relationship was created through implied contract is determined by examining actions of parties over extended period of time. Montez v. Roloff Farms, Inc., 175 Or App 532, 28 P3d 1255 (2001)

Workers and independent contractors

Where work to be performed occurs only at irregular intervals and is of short duration, person performing work is usually considered independent contractor. Marcum v. SAIF, 29 Or App 843, 565 P2d 399 (1977)

Possibility of future employment does not make job skills test service furnished for remuneration. Dykes v. SAIF, 47 Or App 187, 613 P2d 1106 (1980); BBC Brown Boveri v. Lusk, 108 Or App 623, 816 P2d 1183 (1991)

Statutory language and public policy implicit in Workers’ Compensation Act prohibit award of compensation for injuries suffered by worker employed by contract to engage in criminal activities. DePew v. SAIF, 74 Or App 557, 703 P2d 259 (1985)

Person is “worker” for purposes of increased disability benefits for aggravation if person was “worker” at time of original compensable injury, whether or not retired at time of aggravation. Pacific Motor Trucking v. Standley, 93 Or App 204, 761 P2d 930 (1988)

Claimant’s hearing loss was not attributed to employer since claimant was never employee, and had only taken preemployment test. BBC Brown Boveri v. Lusk, 108 Or App 623, 816 P2d 1183 (1991)

Hiring party’s control over quality or description of work, as opposed to control over person performing work, did not convert independent contractor relationship into one of employment. Reforestation General v. National Council on Comp. Ins., 127 Or App 153, 872 P2d 423 (1994), on reconsideration 130 Or App 615, 883 P2d 865 (1994), Sup Ct review denied

Right to terminate contract for bona fide dissatisfaction is not unqualified right to fire indicative of worker status. Reforestation General v. National Council on Comp. Ins., 127 Or App 153, 872 P2d 423 (1994), on reconsideration 130 Or App 615, 883 P2d 865 (1994), Sup Ct review denied

Where board determined that claimant was covered under Washington law as Washington employee doing temporary work in Oregon, claimant was exempt worker notwithstanding contrary finding by Washington board that claimant was not covered under that state’s laws. Haney v. Union Forest Products, 129 Or App 13, 877 P2d 651 (1994)

Initial determination is whether person is worker, then determination is made whether person found to be worker is nonsubject worker under ORS 656.027. S-W Floor Cover Shop v. National Council on Comp. Ins., 318 Or 614, 872 P2d 1 (1994)

Person found not to be worker is not subject to workers’ compensation coverage, so determination of person’s status as independent contractor is unnecessary. S-W Floor Cover Shop v. National Council on Comp. Ins., 318 Or 614, 872 P2d 1 (1994); Blackledge Furniture Co., Inc. v. National Council on Comp. Ins., 318 Or 632, 872 P2d 10 (1994); Lake Oswego Hunt, Inc. v. National Council on Comp. Ins., 318 Or 636, 872 P2d 12 (1994)

Where nature of task requires performance at particular time, employer’s setting of performance time does not indicate right to control. Trabosh v. Washington County, 140 Or App 159, 915 P2d 1011 (1996)

Where employer has right to control claimant’s performance in some respects but not others, determination whether claimant is worker requires consideration of both “right to control” test and “nature of work” test. Rubalcaba v. Nagaki Farms, Inc., 333 Or 614, 43 P3d 1106 (2002)

Oregon employer’s employee who is injured while working permanently outside Oregon is not subject worker. Nelson v. SAIF, 212 Or App 627, 159 P3d 379 (2007), Sup Ct review denied

Application of nature of work test to determine whether person is subject worker is appropriate only for situations in which potential employer is carrying on business. Bovet v. Law, 214 Or App 349, 164 P3d 1186 (2007), Sup Ct review denied

Beneficiaries

Child is substantially dependent on worker if worker’s wages were relied upon to maintain child’s accustomed mode of living. Rookard, Inc. v. Meyers, 25 Or App 303, 548 P2d 1318 (1976)

Claimant is not required to show that deceased worker provided more than 50 percent of claimant’s average monthly income in order to receive benefits. Gallegos v. Amalgamated Sugar Co., 81 Or App 68, 724 P2d 850 (1986)

Worker cannot claim benefits for children acquired after worker has sustained compensable injury. Jackson v. Bogart Construction, 110 Or App 10, 821 P2d 420 (1991), Sup Ct review denied

Wages

Recompense for labor that was received in varying amounts depending on company profits was remuneration. Associated Reforestation Contractors v. Workers’ Comp. Bd., 59 Or App 348, 650 P2d 1068 (1982), Sup Ct review denied

Under definition of “wages,” worker who suffered permanent total disability while working part-time job was entitled to benefits based on that job only and not for full-time job held simultaneously. Reed v. SAIF, 63 Or App 1, 662 P2d 776 (1983)

Where claimant had regularly earned incentive pay, inclusion of incentive pay in wage calculation was proper. Nordstrom, Inc. v. Gaul, 108 Or App 237, 815 P2d 710 (1991)

Payroll includes fringe benefits unless exempted under this section. Paul Brothers, Inc. v. Natl. Council on Comp. Ins., 116 Or App 161, 840 P2d 743 (1992), Sup Ct review denied

Payments are not wages unless employee rendered services in return for payments. Stone Forest Industries, Inc. v. Bowler, 147 Or App 81, 934 P2d 1138 (1997)

Monetary patronage dividends payable to member of cooperative based on hours worked are “wages.” SAIF v. Ekdahl, 170 Or App 193, 12 P3d 57 (2000)

Where no contractual agreement was in effect at time of injury, and subsequent contractual agreement applied wage rate retroactively to encompass time of injury, contractual agreement was “in force” at time of injury. United Airlines v. Anderson, 207 Or App 493, 142 P3d 508 (2006)

Short-term disability benefits are not wages. Safeway Stores, Inc. v. Martinez, 239 Or App 224, 243 P3d 1203 (2010)

Other

“Doctor or physician” practicing one or more of healing arts does not include psychologist. Frey v. Willamette Ind., Inc., 13 Or App 449, 509 P2d 861 (1973), Sup Ct review denied

Use of “includes” in defining terms “child” and “person” that have common meaning is not restrictive, but use in defining term of art “compensation” restricts definition to benefits described. American Building Maintenance v. McLees, 296 Or 772, 679 P2d 1361 (1984)

Physician includes any person licensed to use skills to treat disease or disability and to restore health where condition permits. Driver v. Rod & Reel Restaurant, 125 Or App 661, 866 P2d 512 (1994)

General definition of “party” does not apply to exclude agency as party entitled to notice under ORS 656.295. Kelsey v. Drushella-Klohk, 128 Or App 53, 874 P2d 1349 (1994)

Injury of which employer has notice or knowledge is “claim” regardless of whether employer challenges compensability. Allied Systems Co. v. Nelson, 158 Or App 639, 975 P2d 923 (1999)

Claimant’s attorney is not “party” to action or in privity with party to action for purposes of issue preclusion. Steiner v. E.J. Bartells Co., 170 Or App 759, 13 P3d 1050 (2000)

Compensable injury of which subject employer has notice or knowledge is not “claim” absent timely filing of written request for compensation. Simmons v. Lane Mass Transit District, 171 Or App 268, 15 P3d 568 (2000)

Correction: The permanent edition incorrectly cites the case of State v. Schulman, 6 Or App 81, 485 P2d 1252 (1971), Sup Ct review denied, under [former] ORS 656.002. The case is correctly placed under ORS 435.405 to 435.495.

COMPLETED CITATIONS: Sahnow v. Fireman’s Fund Ins. Co., 3 Or App 164, 470 P2d 378 (1970), aff’d 260 Or 564, 491 P2d 997 (1971); Cardwell v. SAIF, 6 Or App 175, 486 P2d 587 (1971), Sup Ct review denied; Younggren v. SAIF, 6 Or App 297, 487 P2d 107 (1971), Sup Ct review denied

ATTY. GEN. OPINIONS: Benefit increase limitation under 1973 law, (1973) Vol 36, p 710

LAW REVIEW CITATIONS: 10 EL 159 (1979); 23 WLR 441, 442 (1987); 27 WLR 81 (1991); 32 WLR 217 (1996)

656.010

NOTES OF DECISIONS

Rule applying statutory exception for practitioner of “well-recognized church” violated state and federal constitutional provisions against religious discrimination. Kemp v. Workers’ Comp. Dept., 65 Or App 659, 672 P2d 1343 (1983), modified 67 Or App 270, 677 P2d 725 (1984), Sup Ct review denied

656.012

See also annotations under ORS 656.004 in permanent edition.

LAW REVIEW CITATIONS: 22 WLR 559, 566 (1986); 27 WLR 81 (1991)

656.017

See also annotations under ORS 656.016 in permanent edition.

NOTES OF DECISIONS

Where “labor broker” supplied temporary worker to work at defendant’s premises and defendant’s fee to broker included workers’ compensation protection for plaintiff, defendant was “complying employer.” Robinson v. Omark Industries, 46 Or App 263, 611 P2d 665 (1980)

LAW REVIEW CITATIONS: 27 WLR 81 (1991)

656.018

NOTES OF DECISIONS

In general

If Workmen’s Compensation Board has rejected claim on ground that injury or disease is not covered by chapter, and decision has become final, exclusivity provisions do not bar common law tort action on claim. Hubbard v. Reynolds Metals Co., 482 F2d 63 (1973)

Common enterprise requires that employee and third party be working in accomplishment of same or related purpose at time of injury. Metcalf v. Case, 278 Or 629, 565 P2d 736 (1977)

Exclusive liability provision does not unreasonably interfere with freedom to contract under Article I, section 20 of Oregon Constitution, nor deny third party remedy in violation of Article I, section 10 of Oregon Constitution. Roberts v. Gray’s Crane & Rigging, 73 Or App 29, 697 P2d 985 (1985), Sup Ct review denied

Exclusive liability provision does not violate federal equal protection or state privileges and immunities constitutional provisions. Rock v. Peter Kiewit Sons’ Co., 77 Or App 469, 713 P2d 673 (1986), Sup Ct review denied

Application of choice of laws provision to allow employer indemnity of third party was void as contrary to fundamental public policy. Young v. Mobil Oil Corp., 85 Or App 64, 735 P2d 654 (1987)

Exclusivity provision does not apply to prevent statutory claim for separate injury of discrimination. Palmer v. Bi-Mart Company, 92 Or App 470, 758 P2d 888 (1988); Seitz v. Albina Human Resources Center, 100 Or App 665, 788 P2d 1004 (1990)

Agreements to purchase liability insurance are independent contractual obligations that are not subject to prohibition against indemnity agreements. Montgomery Elevator Co. v. Tuality Community Hosp., 101 Or App 299, 790 P2d 1148 (1990), Sup Ct review denied

Fellow employee is not exempt in capacity as legally separate entity causing harm. Perkins v. Gehlar, 107 Or App 158, 811 P2d 650 (1991)

Where third party did not qualify as employer through relationship to claimant, employer immunity was not available to third party based upon intercorporate relationship with claimant’s employer. Osborn v. Crane Equipment Manufacturing Corp., 135 Or App 176, 897 P2d 1192 (1995), Sup Ct review denied

Where employee held dual employment partly under same employer as injured person, employee immunity as coworker of injured person did not extend to unshared employer. Perry v. Express Services, Inc., 143 Or App 321, 923 P2d 673 (1996), Sup Ct review denied

Exclusivity of workers’ compensation liability does not apply if injury is not “arising out of and in the course of employment.” Krushwitz v. McDonald’s Restaurants, 323 Or 520, 919 P2d 465 (1996)

Where decedent would have been prevented from asserting claim, preventing bringing of derivative claim does not improperly deny remedy. Kilminster v. Day Management Corp., 323 Or 618, 919 P2d 474 (1996)

Coworker exemption from liability exists regardless of whether employer is complying employer. Van Drimmelen v. Berlin, 148 Or App 21, 939 P2d 59 (1997), Sup Ct review denied

Government employee receiving workers’ compensation benefits for injuries from motor vehicle accident is not barred from also collecting benefits under uninsured motorist coverage provided by employer under ORS 278.215. City of Salem v. Salisbury, 168 Or App 14, 5 P3d 1131 (2000), Sup Ct review denied

Provision making workers’ compensation claim exclusive remedy violated remedy clause of section 10, Article I, Oregon Constitution, where worker suffered injury recognized under 1857 common law but could not qualify for remedy through claim process. Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001)

Good faith filing of workers’ compensation claim does not estop worker from asserting contrary position in later civil complaint. Day v. Advanced M&D Sales, Inc., 336 Or 511, 86 P3d 678 (2004)

Exceptions from tort immunity

Removal of safety switch is not act of “willful and unprovoked aggression.” Chung v. Fred Meyer, Inc., 276 Or 809, 556 P2d 683 (1976)

For purposes of determining whether action was “willful and unprovoked aggression,” provocation means incitement to action, not act providing legal justification. Virgil v. Walker, 280 Or 607, 572 P2d 314 (1977)

Person contracting with complying employer for services does not become immune from suit by employee. Martelli v. R.A. Chambers and Associates, 310 Or 529, 800 P2d 766 (1990)

Exemption from liability for complying employer is available to predecessor complying employer of injured person for alleged negligence that occurred during former ownership of business. Fields v. Jantec, Inc., 317 Or 432, 857 P2d 95 (1993)

Disputed claim settlement disposing of all claims raised or raisable relating to workers’ compensation claim did not preclude action against company officer for intentional tort. Terris v. Stodd, 126 Or App 666, 870 P2d 835 (1994), Sup Ct review denied

Claims for intentional or reckless infliction of emotional distress are not excluded by availability of workers’ compensation remedy. McMellon v. Safeway Stores, Inc., 945 F. Supp. 1402 (D. Or. 1996)

Wrongful discharge is separate injury from compensable injury, notwithstanding possible reliance on same facts. McMellon v. Safeway Stores, Inc., 945 F. Supp. 1402 (D. Or. 1996)

656.020

NOTES OF DECISIONS

Failure to provide coverage is not actionable as breach of fiduciary duty. Hoffman v. Donahue, 136 Or App 26, 900 P2d 531 (1995)

656.023

ATTY. GEN. OPINIONS: Necessity of incorporated cooperative association of tree planters providing workers compensation, (1977) Vol 38, p 771

656.027

NOTES OF DECISIONS

“Domestic service” refers to performance primarily of household duties and chores; maintenance of home; and care, comfort and convenience of household members. Gunter v. Mersereau, 7 Or App 470, 491 P2d 1205 (1971)

Where nature of employment is in course of business, trade or profession of subject employer, employment will not qualify as casual regardless of casual nature of particular employee’s employment. Buckner v. Kennedy’s Riding Academy, 18 Or App 516, 526 P2d 450 (1974), Sup Ct review denied; Hunnicutt v. Dollarhyde, 95 Or App 375, 768 P2d 444 (1989)

Employer “business” includes enterprises that are temporary or engaged in as sideline activity. Carlile v. Greeninger, 35 Or App 51, 580 P2d 588 (1978), Sup Ct review denied; Fincham v. Wendt, 59 Or App 416, 651 P2d 159 (1982), Sup Ct review denied

Where employee is subject worker when performing principal duties, employee does not cease to be subject worker upon engaging in minor amounts of exempt work. Anfilofieff v. SAIF, 52 Or App 127, 627 P2d 1274 (1981); Gordon v. Farrell, 85 Or App 590, 737 P2d 654 (1987), Sup Ct review denied

County jail inmates performing work authorized by ORS 169.320 were not subject workers where county had not filed election of coverage required by ORS 656.041. Westfall v. Multnomah County, 57 Or App 459, 645 P2d 561 (1982)

Cooperative organization was not exempt from workers’ compensation coverage as partnership where workers could be excluded from partnership at will by other members and worker control was through elected representatives. Associated Reforestation Contractors v. Workers Comp. Bd., 59 Or App 348, 650 P2d 1068 (1982), Sup Ct review denied

Whether work on buildings “about” private home falls under exemption depends on whether buildings were used for private or business purpose. Fincham v. Wendt, 59 Or App 416, 651 P2d 159 (1982), Sup Ct review denied

Claimant’s receipt of benefits under the Longshoreman’s and Harbor Workers’ Compensation Act excludes him from coverage under ORS chapter 656. State v. SAIF Corporation, 91 Or App 715, 756 P2d 76 (1988)

Fact that employment is casual does not deprive employee of protection if employment is in course of trade, business or profession of employer. Hunnicutt v. Dollarhyde, 95 Or App 375, 768 P2d 444 (1989)

Householder exemption is limited to work similar to listed types and performed in or around an already existing private home. Caddy v. SAIF, 110 Or App 353, 822 P2d 156 (1991)

Within context of general premium audit, whether payment was for board and lodging received from charitable organization depended on predominant use of payment by recipient group. Oregon Country Fair v. Natl. Council on Comp. Ins., 129 Or App 73, 877 P2d 1207 (1994)

Initial determination is whether person is worker under ORS 656.005, then determination is made whether person found to be worker is nonsubject worker. S-W Floor Cover Shop v. Natl. Council on Comp. Ins., 318 Or 614, 872 P2d 1 (1994)

For holder of leasehold interest to also be person who “maintains” equipment, person must have substantial interest in equipment requiring responsibility for maintenance to same extent as owner or other individual having financial investment in equipment. Broadway Deluxe Cab v. Natl. Council on Comp. Ins., 133 Or App 324, 891 P2d 1326 (1995), Sup Ct review denied

Employer is not required to be occupying home at time of injury for private home exception to apply. Blevins v. Mitchell, 138 Or App 29, 906 P2d 293 (1995)

Application of casual employment wage limit to “any 30-day period” makes employer subject to insurance requirement if wages have ever exceeded limit, notwithstanding that wages were below limit during 30-day period surrounding injury. Deer Lodge Apartments v. Hartman, 156 Or App 634, 966 P2d 245 (1998)

Oregon employer’s employee who is injured while working permanently outside Oregon is not subject worker. Nelson v. SAIF, 212 Or App 627, 159 P3d 379 (2007), Sup Ct review denied

LAW REVIEW CITATIONS: 27 WLR 110 (1991); 32 WLR 217 (1996)

656.029

NOTES OF DECISIONS

If requirements of this section are met it is immaterial whether there is actual employer-employee relationship because relationship is created by operation of law. Love v. Northwest Exploration Co., 67 Or 413, 678 P2d 754 (1984); Kistner v. BLT Enterprises, 74 Or App 131, 700 P2d 1047 (1985)

Partnership can be subject worker under this section. EBI Companies v. Erzen, 73 Or App 256, 698 P2d 534 (1985), Sup Ct review denied; Kistner v. BLT Enterprises, 74 Or App 131, 700 P2d 1047 (1985)

For activities prior to October 4, 1989, registration as proprietor of independent building business establishes conclusive presumption person is independent contractor. HDG Enterprises v. Natl. Council on Comp. Ins., 121 Or App 513, 856 P2d 1037 (1993)

Where contract is awarded to sole proprietor, exemption from coverage under ORS 656.027 applies to proprietor’s employees only if contract obligates proprietor to perform personally as worker rather than in role as employer. K-Mart Corporation v. Claussing, 162 Or App 558, 986 P2d 1185 (1999)

Requirement that general contractor or subcontractor “provide” coverage means coverage must actually be supplied. Liberty Northwest Insurance Corp. v. Sparks, 171 Or App 65, 14 P3d 624 (2000)

Exemption granted to general contractor if subcontractor supplies coverage “before” work begins applies only if coverage supplied by subcontractor is still in force at time work commences. Liberty Northwest Insurance Corp. v. Sparks, 171 Or App 65, 14 P3d 624 (2000)

Key aspects of “trade or business” are that activity is both regular and commercial in character. Sorenson v. LaTour, 217 Or App 373, 176 P3d 395 (2007)

656.039

NOTES OF DECISIONS

Written notice of coverage election can be provided by means other than application and acceptance. Quadel Industries v. Luckman, 95 Or App 612, 770 P2d 928 (1989)

656.041

LAW REVIEW CITATIONS: 27 WLR 112 (1991)

656.052

LAW REVIEW CITATIONS: 27 WLR 110 (1991)

656.054

NOTES OF DECISIONS

Liability as insurer for noncomplying employer confers standing to seek review of disputed claim settlement between employer and worker. Trojan Concrete v. Tallant, 107 Or App 429, 812 P2d 433 (1991), Sup Ct review denied

Where wrong party is identified as noncomplying employer due to insurer error, backup denial cannot be issued if denial would result in lack of coverage. Garcia v. SAIF, 108 Or App 653, 816 P2d 1188 (1991)

Claim need not be compensable for department to recover cost of claim processing from noncomplying employer. Director of Dept. of Ins. and Finance v. Brimhall, 123 Or App 590, 860 P2d 884 (1993)

Noncomplying employer may not challenge validity of employee claim in defense of recovery action by Department of Consumer and Business Services. Director of DCBS v. J. M. Marson Co., Inc., 151 Or App 355, 949 P2d 318 (1997)

656.126

NOTES OF DECISIONS

Oregon has jurisdiction where worker is employed in this state by employer contributing to fund, whether or not work temporarily will be performed within state. Kolar v. B & C Contractors, 36 Or App 65, 583 P2d 562 (1978)

Fact that Oregon worker temporarily performing work outside state filed unsuccessful initial claim in state where injury occurred did not affect Oregon jurisdiction over claim when later filed in Oregon. Kolar v. B & C Contractors, 36 Or App 65, 583 P2d 562 (1978)

Employment in Oregon does not confer jurisdiction where work performance is permanently conducted outside state. Langston v. K-Mart, 56 Or App 709, 642 P2d 1205 (1982), Sup Ct review denied

Where worker was performing work for Washington-based employer in Oregon on temporary basis, fact that all pre-injury job performance was in Oregon did not confer Oregon jurisdiction. Phelan v. H.S.C. Logging, Inc., 84 Or App 632, 735 P2d 22 (1987), Sup Ct review denied

Principal location of employee’s work duties, rather than location of employer’s operational headquarters, determines whether worker is Oregon employee. Power Master, Inc. v. National Council on Comp. Ins., 109 Or App 296, 820 P2d 459 (1991)

Where location of job duty performance is inconclusive, worker status is determined by location of employer’s operational headquarters. Power Master, Inc. v. National Council on Comp. Ins., 109 Or App 296, 820 P2d 459 (1991)

In determining extent that claimant’s work outside state is temporary, relevant factors are: 1) intent of employer; 2) understanding of employee; 3) location of employer and facilities; 4) circumstances surrounding claimant’s work assignment; 5) laws and regulations binding employer; and 6) residence of employee. Northwest Greentree, Inc. v. Cervantes-Ochoa, 113 Or App 186, 830 P2d 627 (1992)

Where worker is working at nontemporary workplace, interstate agreement does not replace permanent employment relation test for determining Oregon coverage. Carothers v. Robert Westlund Construction, 149 Or App 457, 944 P2d 966 (1997)

656.128

NOTES OF DECISIONS

Written application for coverage is not required to be in particular form. SAIF v. D’Lyn, 74 Or App 64, 701 P2d 470 (1985)

Corroborative evidence requirement refers to corroboration of compensability. SAIF v. Marshall, 130 Or App 507, 882 P2d 1115 (1994), Sup Ct review denied

Evidence corroborates compensability if making either “arising out of” or “in course of” prong of compensability more certain. Marshall v. SAIF, 146 Or App 50, 931 P2d 823 (1997), aff’d on other grounds, 328 Or 49, 968 P2d 1281 (1998)

Medical opinion of treating physician that relies in part on medical history supplied by claimant is “in addition” to claimant’s evidence. Marshall v. SAIF, 146 Or App 50, 931 P2d 823 (1997), aff’d on other grounds, 328 Or 49, 968 P2d 1281 (1998)

Claimant who is sole proprietor satisfies corroboration requirement by providing any evidence--separate from claimant statements--that supplements, strengthens and confirms that injury exists and is work related. Marshall v. SAIF, 328 Or 49, 968 P2d 1281 (1998)

656.132

NOTES OF DECISIONS

Employment of minor in bad faith does not defeat exclusivity of workers’ compensation remedy for injury. Rangel v. Denton Plastics, Inc., 148 Or App 328, 939 P2d 644 (1997)

656.156

NOTES OF DECISIONS

Absent evidence that worker’s suicide was result of either irresistible impulse or complete lack of understanding of consequences of act, suicide was deliberately intended. Jones v. Cascade Wood Prod., Inc., 21 Or App 86, 533 P2d 1399 (1975), Sup Ct review denied

Employer’s ratification of tortious acts of employee is not employer conduct intended to injure. Bakker v. Baza’r, Inc., 275 Or 245, 551 P2d 1269 (1976); Hanson v. Versarail Systems, Inc., 175 Or App 92, 28 P3d 626 (2001)

Worker’s suicide resulting from work-related stress that produces mental derangement impairing ability to resist compulsion to take own life cannot be said to have arisen from “deliberate intention.” McGill v. SAIF, 81 Or App 210, 724 P2d 905 (1986), Sup Ct review denied; Sullivan v. Banister Pipeline AM, 86 Or App 334, 739 P2d 597 (1987), Sup Ct review denied

Chain of causation test requires that: 1) worker suffer from work-related psychological condition; 2) condition is or causes mental derangement; and 3) worker’s ability to resist temptation to take own life is impaired. Ahn v. Frito-Lay, Inc., 91 Or App 443, 756 P2d 40 (1988), Sup Ct review denied

Claimant’s noncompensable suicide does not bar recovery for compensable injuries sustained prior to suicide. Ahn v. Frito-Lay, Inc., 91 Or App 443, 756 P2d 40 (1988), Sup Ct review denied; Carling National Breweries v. McClure, 164 Or App 209, 991 P2d 578 (1999), Sup Ct review denied

“Deliberate intention” to produce injury requires specific intent to harm, not merely carelessness or gross negligence. Lusk v. Monaco Motor Homes, Inc., 97 Or App 182, 775 P2d 891 (1989); Davis v. United States Employers Council, Inc., 147 Or App 164, 934 P2d 1142 (1997), Sup Ct review denied

Showing that injury resulted from deliberate intention of employer requires showing that employer specifically intended to injure some employee, that employer acted on intent and that plaintiff employee was injured as result of employer’s action. Kilminster v. Day Management Corp., 323 Or 618, 919 P2d 474 (1996)

Reckless infliction of emotional distress claim is not barred, because reckless act can be result of specific intent to produce injury. McMellon v. Safeway Stores, Inc., 945 F. Supp. 1402 (D. Or. 1996)

Personal representative of worker may maintain action based on deliberate intent to cause death of worker regardless of whether beneficiaries of action qualify to claim workers’ compensation benefits. Behurst v. Crown Cork & Seal USA, Inc., 346 Or 29, 203 P3d 207 (2009)

LAW REVIEW CITATIONS: 30 EL 811 (2000)

656.160

NOTES OF DECISIONS

Criminal incarceration renders claimant ineligible to receive benefits during incarceration period regardless of whether incarceration resulted from actual commission of crime. Johnson v. RSG Forest Products, 129 Or App 192, 878 P2d 449 (1994)

656.202

NOTES OF DECISIONS

Survivor’s rights to continuance of disability payments after death of worker are governed by law in effect at date of injury. Bradley v. SAIF, 38 Or App 559, 590 P2d 784 (1979)

Law in force at time of injury governs determination of right to compensation, but evaluation of injury can be determined under law in force at time of hearing. Futrell v. United Airlines, 59 Or App 571, 651 P2d 1353 (1982)

Section applies only to claimant’s substantive rights to compensation and not to procedural requirements for filing claim or period within which claimant must file. Argonaut Insurance Companies v. Eder, 72 Or App 54, 695 P2d 72 (1985)

Worker cannot claim benefits for spouse and children acquired after worker has sustained compensable injury. Jackson v. Bogart Construction, 110 Or App 10, 821 P2d 420 (1991), Sup Ct review denied

1990 amendment to ORS 656.214, which sets rate of payment for permanent partial disability, is subject to date of injury provision. SAIF v. Herron, 114 Or App 64, 836 P2d 131 (1992), Sup Ct review denied

Time of injury for occupational disease is date of disability from disease or date of first medical treatment of disease. Reynoldson v. Multnomah County, 189 Or App 327, 75 P3d 477 (2003), Sup Ct review denied

State does not have contractual obligation to calculate disability payment using compensation rate in effect on date of last exposure. Weyerhaeuser Company v. Ellison, 208 Or App 612, 145 P3d 309 (2006), Sup Ct review denied

COMPLETED CITATIONS: Blisserd v. SAIF, 6 Or App 111, 486 P2d 1312 (1971)

LAW REVIEW CITATIONS: 10 EL 159 (1979)

656.204

NOTES OF DECISIONS

“Remarriage” means valid and subsisting marriage. Peters v. Briggs & Sons, 10 Or App 310, 499 P2d 1361 (1972)

Notwithstanding that parties were never formally married, claimant whose common law marriage to decedent worker was valid under laws of Colorado was entitled to benefits as surviving spouse of decedent. Johnston v. Georgia-Pacific, 35 Or App 231, 581 P2d 108 (1978)

Although child’s paternity has not been established under ORS chapter 109, Workers’ Compensation Board may determine child’s paternity for purpose of determining mother and child’s rights to benefits. Amos v. SAIF, 72 App 145, 694 P2d 998 (1985)

Claimant is not required to show that deceased worker provided more than 50 percent of claimant’s average monthly income in order to receive benefits as dependent. Gallegos v. Amalgamated Sugar Co., 81 Or App 68, 724 P2d 850 (1986)

Correction: The permanent edition incorrectly cites the case of State v. Schulman, 6 Or App 81, 485 P2d 1252 (1971), Sup Ct review denied, under this section. The case is correctly placed under ORS 435.405 to 435.495.

ATTY. GEN. OPINIONS: Benefit increase limitation under 1973 law, (1973) Vol 36, p 710

656.206

NOTES OF DECISIONS

If evidence prima facie places claimant into odd-lot category, burden is on employer to show that suitable work is regularly and continuously available to claimant. Mansfield v. Caplener Bros., 10 Or App 545, 500 P2d 1221 (1972); Hill v. U.S. Plywood-Champion Co., 12 Or App 1, 503 P2d 728 (1972), Sup Ct review denied

Where claimant falls within odd-lot category, age and training are relevant in determining extent of claimant’s disability. Mansfield v. Caplener Bros., 10 Or App 545, 500 P2d 1221 (1972); Wilson v. Weyerhaeuser, 30 Or App 403, 567 P2d 567 (1977); Livesay v. SAIF, 55 Or App 390, 637 P2d 1370 (1981)

Whether work is available to odd-lot claimant depends on likelihood claimant can sell services in competitive labor market, undistorted by unusual conditions. Hill v. U.S. Plywood-Champion Co., 12 Or App 1, 503 P2d 728 (1972), Sup Ct review denied; Wilson v. Weyerhaeuser, 30 Or App 403, 567 P2d 567 (1977)

Under odd-lot doctrine, income from business owned by claimant, even though claimant contributes some work to it, should not be used to reduce disability. Hill v. U.S. Plywood-Champion Co., 12 Or App 1, 503 P2d 728 (1972), Sup Ct review denied

Evidence of motivation is not needed to establish prima facieodd-lot status where medical facts and other factors show claimant unable to work regardless of motivation. Deaton v. SAIF, 13 Or App 298, 509 P2d 1215 (1973)

Proof of motivation to work is relevant in establishing prima facie case of odd-lot status where injuries do not otherwise dispositively prove permanent total disability. Deaton v. SAIF, 13 Or App 298, 509 P2d 1215 (1973); Blackford v. SAIF, 17 Or App 358, 521 P2d 1092 (1974); Wilson v. Weyerhaeuser, 30 Or App 403, 567 P2d 567 (1977)

Permanent total disability benefits are payable during period of disability and do not cease upon reaching of retirement age. Krugon v. Beall Pipe and Tank Corp., 19 Or App 922, 529 P2d 962 (1974)

Compensation for scheduled injury is not limited to schedule award if injury causes permanent total disability. Hill v. SAIF, 38 Or App 13, 588 P2d 1287 (1979)

Where medical evidence shows that claimant is totally incapacitated so that attempt to find work would be futile, claimant is exempted from usual requirement of proving unemployability. Butcher v. SAIF, 45 Or App 313, 608 P2d 575 (1980); Hanna v. SAIF, 65 Or App 649, 672 P2d 67 (1983); Phillips v. Liberty Mutual, 67 Or App 692, 679 P2d 884 (1984)

Where insurer timely requested hearing on initial disability determination, subsequent issuing of periodic re-examination order did not have res judicata effect on initial determination. Farmers Ins. v. Hopson, 53 Or App 109, 631 P2d 342 (1981)

In proceeding to modify or terminate workers’ compensation disability award, burden of proof is upon party seeking the modification or termination. Harris v. SAIF, 292 Or 683, 642 P2d 1147 (1982)

Where claimant who works two jobs is permanently and totally disabled from injury received on one job, disability benefits are determined by wages received on that job, not by combining wages received for both jobs. Reed v. SAIF, 63 Or App 1, 662 P2d 776 (1983)

Settlement of claim for earlier injury does not exclude consideration of resulting impairment in evaluating claimant’s total condition. Hanna v. SAIF, 65 Or App 649, 672 P2d 67 (1983)

Where claimant was permanently totally disabled, that wife could aid work on days disability prevented him from working should not have been considered in determining award. Allen v. Fireman’s Fund Ins. Co., 71 Or App 40, 691 P2d 137 (1984)

Where issue in workers’ compensation case was whether claimant unreasonably failed to follow medical advice, employer had burden of proof. Christensen v. Argonaut Ins. Co., 72 Or App 110, 694 P2d 1017 (1985), Sup Ct review denied

Special position offered by employer does not constitute regular employment and claimant’s rejection of special position will not preclude finding claimant permanently and totally disabled. Wiley v. SAIF, 77 Or App 486, 713 P2d 677 (1986), Sup Ct review denied

Where pre-existing medical condition interferes with healing of compensable injury, effect of condition on ability to treat injury does not prevent awarding benefits. Waremart, Inc. v. White, 85 Or App 122, 735 P2d 1262 (1987)

When partially disabled claimant became totally disabled as result of compensable condition, claimant was eligible for permanent total disability benefits, notwithstanding that claimant had retired from work force. Crumley v. Combustion Engineering, 92 Or App 439, 758 P2d 878 (1988), Sup Ct review denied. But see SAIF v. Orr, 101 Or App 612, 792 P2d 454 (1990)

Occupation where work is available only on occasional basis is not “regular” employment. Lankford v. Commodore Corp., 92 Or App 622, 759 P2d 329 (1988)

Refusal to undertake or complete offered course of vocational rehabilitation constitutes failure to show claimant was willing to seek employment. Delanoy v. Western Shake Co., 96 Or App 699, 773 P2d 818 (1989)

Where claimant voluntarily leaves workforce and thereafter becomes totally disabled by compensable injury, before being entitled to permanent total disability (PTD) benefits, Workers’ Compensation Board must determine that but for compensable injury, claimant would have returned to work. SAIF v. Stephen, 308 Or 41, 774 P2d 1103 (1989); SAIF v. Orr, 101 Or App 612, 792 P2d 454 (1990)

Noncompensable disability that first occurs after compensable injury is not pre-existing injury and cannot be considered in determining extent of disability at time of hearing. Searles v. Johnston Cement, 101 Or App 589, 792 P2d 449 (1990), Sup Ct review denied

Where claimant unreasonably refuses to mitigate effects of injury, portion of disability that could have been mitigated is not compensable. SAIF v. Orr, 101 Or App 612, 792 P2d 454 (1990)

Where noncompensable disability occurring after injury prevents retraining, resulting inability to retrain may not be considered in evaluating whether claimant is permanently and totally disabled. Elder v. Rosboro Lumber Co., 106 Or App 16, 806 P2d 692 (1991)

Where board found claimant’s employment was not regular gainful employment, express finding that work was unsuitable was not required. SAIF v. Terry, 126 Or App 558, 869 P2d 876 (1994)

Where permanent total disability claim is based on unscheduled disability, impairment finding is not required and testimony of physician other than attending physician is permissible. EBI Companies v. Hunt, 132 Or App 128, 887 P2d 372 (1994)

Definition of “gainful occupation” does not allow consideration of net profitability of employment. Tee v. Albertson’s, Inc., 148 Or App 384, 939 P2d 668 (1997), Sup Ct review denied

Odd-lot doctrine must consider marketability of claimant’s skills in local economy under normal economic conditions. Bruce v. SAIF, 149 Or App 190, 942 P2d 789 (1997)

Worker who is permanently totally disabled cannot also be temporarily totally disabled. SAIF v. Grover, 152 Or App 476, 954 P2d 820 (1998)

Work that worker may “regularly” perform includes part-time employment if within ability of worker and occurring at fixed or uniform intervals. Gornick v. J. Frank Schmidt and Son, 160 Or App 338, 981 P2d 817 (1999)

Preexisting condition is relevant for determining whether worker has “permanent total disability” only if condition was disabling at time worker suffered compensable injury. Fimbres v. SAIF, 197 Or App 613, 106 P3d 690 (2005)

ATTY. GEN. OPINIONS: Benefit increase limitation under 1973 law, (1973) Vol 36, p 710; Workers’ Compensation Board’s authority to require payment of claimant’s attorney fees and expenses, (1978) Vol 38, p 2069

656.208

NOTES OF DECISIONS

A presumption of permanent total disability does not arise from fact that worker was totally disabled at time of death. Ward v. SAIF, 12 Or App 49, 505 P2d 355 (1973)

Dependent’s right to benefits includes right to compensation during period pending employer appeal of permanent total disability determination. Mayes v. Boise Cascade, 46 Or App 333, 611 P2d 681 (1980), Sup Ct review denied

Claimant’s suicide during period of disability does not bar continuation of disabling-condition benefit payments to surviving spouse. Carling National Breweries v. McClure, 164 Or App 209, 991 P2d 578 (1999), Sup Ct review denied

ATTY. GEN. OPINIONS: Benefit increase limitation under 1973 law, (1973) Vol 36, p 710

656.209

NOTES OF DECISIONS

“Actual receipt” means receipt of Social Security benefits within same month that offset is made, not month in which benefit should have been paid. Fletcher v. SAIF, 48 Or App 777, 617 P2d 945 (1980)

Portion of disability benefit payable to attorney is included in combined benefit amount that must meet or exceed federal limitation. Johnson v. Capitol Car Wash, 127 Or App 49, 871 P2d 473 (1994)

656.210

NOTES OF DECISIONS

When both injuries were subject to pending claims and each of the two in itself created a condition of temporary total disability, the board correctly chose to order a proration between insurance carriers. Jackson v. SAIF, 7 Or App 109, 490 P2d 507 (1971)

No setoff is allowed for installments paid on award for permanent partial disability when later order requires payment of compensation for temporary total disability following aggravation claim. Taylor v. SAIF, 40 Or App 437, 595 P2d 515 (1979), Sup Ct review denied

Claimant was not entitled to receive temporary total disability compensation for period during which noncomplying employer paid her amounts equal to her wages. Candee v. SAIF, 40 Or App 567, 595 P2d 1381 (1979), Sup Ct review denied

Claimant who retired prior to date on which claimed time loss occurred is not entitled to temporary total disability payments. Stiennon v. SAIF, 68 Or App 735, 683 P2d 556 (1984), Sup Ct review denied

“Total disability” means loss, including pre-existing disability, of use or function of any scheduled or unscheduled portion of body that prevents working at suitable and gainful occupation. Cutright v. Weyerhaeuser, 299 Or 290, 702 P2d 403 (1985)

Person can be “regularly employed” even if person does not work regular hours for hourly wage. Saiville v. EBI Companies, 81 Or App 469, 726 P2d 394 (1986), Sup Ct review denied

Wages received by employee do not include value of fringe benefits unless employee has right of direct access to benefit. Nelson v. SAIF, 302 Or 463, 731 P2d 429 (1987)

Where worker who has received compensation for permanent partial disability becomes totally disabled for more than 14 consecutive days or becomes inpatient at hospital for treatment of that condition as result of worsening of worker’s condition from original injury, worker is at least entitled to compensation for temporary total disability. Gwynn v. SAIF, 304 Or 345, 745 P2d 775 (1987)

Claimant, unavailable for work because of reasonable and necessary treatment for compensable injury at pain center, was physically unable to work and entitled to temporary total disability. Weyerhaeuser Co. v. Surprise, 89 Or App 296, 748 P2d 1024 (1988)

Employer may not unilaterally terminate temporary total disability benefits because employee is incarcerated. Northrup King & Co. v. Fisher, 91 Or App 602, 757 P2d 855 (1988), Sup Ct review denied

Number of days per week worker is “regularly employed” is not affected by short-term fluctuations. Overbey v. Kaiser Health Plan, 93 Or App 175, 761 P2d 547 (1988), Sup Ct review denied

Claimant can be both regularly employed and employee “whose remuneration is not based solely upon daily or weekly wages.” Lowry v. Du Log, Inc., 99 Or App 459, 782 P2d 454 (1989), Sup Ct review denied

Claimant is part of work force if: 1) engaged in regular, gainful employment; 2) willing to work and making reasonable effort to obtain employment; or 3) willing to work, but not making an effort to obtain employment due to futility. Dawkins v. Pacific Motor Trucking, 308 Or 254, 778 P2d 497 (1989)

Claimant must miss continuous period of 14 days without interruption from first day of being off work in order to receive total disability for first three days. Tennant v. Lyman Slack Chevrolet, 102 Or App 470, 794 P2d 1248 (1990), Sup Ct review denied

Three-day waiting period of this section applies only to original injury claims and not to aggravation claims. Liberty Northwest Ins. Corp. v. Short, 102 Or App 495, 795 P2d 118 (1990)

Where worker is disabled more than three calendar days, but less than full work week, benefit payable is based on missed work days, not calendar days of disability. Bostick v. Ron Rust Drywall, 138 Or App 552, 909 P2d 904 (1996)

Claimant enrolled in worker retraining program and receiving wage replacement is in work force for purposes of determining eligibility for temporary disability benefits. Linnton Plywood Assn. v. Hansen, 151 Or App 616, 949 P2d 743 (1997)

Worker who is permanently totally disabled cannot also be temporarily totally disabled. SAIF v. Grover, 152 Or App 476, 954 P2d 820 (1998)

Presence of injury that renders attempt to work futile does not establish requirement that claimant is willing to work. SAIF v. Blakely, 160 Or App 242, 981 P2d 347 (1999)

Where no contractual agreement was in effect at time of injury, and subsequent contractual agreement applied wage rate retroactively to encompass time of injury, wage under contractual agreement is correct basis for temporary total disability benefits. United Airlines v. Anderson, 207 Or App 493, 142 P3d 508 (2006)

656.212

NOTES OF DECISIONS

Payment of temporary partial disability benefits is required only for loss of wages due to compensable injury, not for loss of wages due to claimant’s refusal to accept modified work. Madrigal v. J. Frank Schmidt and Son, 172 Or App 1, 17 P3d 555 (2001)

656.214

NOTES OF DECISIONS

In general

Award is not to be divided into separate physical disability and loss of earning capacity components. Grossen v. Griffey & Laird Logging Co., 7 Or App 600, 492 P2d 820 (1972)

Loss of use is not measured exclusively by impairment to range of motion. Boyce v. Sambo’s Restaurant, 44 Or App 305, 605 P2d 1213 (1980)

Loss need not be solely due to physical disability, but can include loss resulting from psychological overlay. Mesa v. Barker Manufacturing, 66 Or App 161, 672 P2d 1378 (1983)

When pain has disabling effects, they must be considered in establishing awards for unscheduled permanent partial disability. Harwell v. Argonaut Ins. Co., 296 Or 505, 678 P2d 1202 (1984)

Workers’ Compensation Board must give reasoned explanation of why facts found led to conclusion that claimant was entitled to specific percentage of permanent partial disability. Matthies v. Tillamook County Creamery Assoc., 101 Or App 44, 788 P2d 1032 (1990); Brown v. Gold Beach Dairy Queen, 109 Or App 509, 820 P2d 830 (1991)

This section does not require that factors of age, education, impairment and adaptability necessarily affect extent of disability in every case, nor does it specify weight to be given those factors in particular situations. Harrison v. Taylor Lumbering & Treating, Inc., 111 Or App 325, 826 P2d 75 (1992)

Aggravations are measured by same standard that made condition originally compensable. Fred Meyer, Inc. v. Farrow, 122 Or App 164, 857 P2d 189 (1993)

Where one or more factors to be considered exceed zero, assignment of zero value to factors taken as whole does not fulfill requirement for modifying impairment. Carroll v. Boise Cascade Corp., 138 Or App 610, 910 P2d 1111 (1996)

Worker who has been released for work by attending physician or nurse practitioner, but who is unable to return to work for cause not related to injury, is not entitled to work disability. Suchi v. SAIF, 238 Or App 48, 241 P3d 1174 (2010), Sup Ct review denied

Scheduled disabilities

Medical diagnosis of condition is not always required to make out prima facie causal relationship between injury and condition. Volk v. Birdseye Div., 16 Or App 349, 518 P2d 672 (1974), Sup Ct review denied

If all claimant’s disabilities are scheduled, they cannot be combined to qualify claimant for unscheduled permanent total disability. Rencken v. SAIF, 17 Or App 210, 521 P2d 551 (1974)

Requirement that disability be rated based on loss due to industrial injury means that specified method for measuring hearing loss cannot include pre-existing loss. Nomeland v. City of Portland, 106 Or App 77, 806 P2d 175 (1991); Papen v. Willamina Lumber Co., 123 Or App 249, 859 P2d 1166 (1993), Sup Ct review denied

Where claimant’s award for hearing loss was originally based on binaural method, claimant could not later claim additional compensation based on monaural method. Wardell v. Smurfit Newsprint, 107 Or App 358, 812 P2d 21 (1991)

Requirement that vision loss involving both eyes be assessed as greater of monocular vision loss or binocular vision loss does not apply where condition is present only when both eyes are open. Gordon v. City of Portland, 144 Or App 471, 927 P2d 96 (1996)

Unscheduled disabilities

Earning capacity must be considered in connection with a worker’s handicap in obtaining and holding gainful employment in the broad field of general industrial occupations and not just in relationship to his occupation at any given time. Ford v. SAIF, 7 Or App 549, 492 P2d 491 (1971)

Notwithstanding that claimant suffered no loss of visual acuity from eye injury after maximum correction, where there was additional permanent and partial loss of use of claimant’s eye disability was compensable. Russell v. SAIF, 281 Or 353, 574 P2d 653 (1978)

Where claimant developed further disability from injury for which scheduled award was previously made, unscheduled award could be made where further disability was independent of scheduled disability and not intrinsic result of original injury. Woodman v. Georgia-Pacific Corp., 289 Or 551, 614 P2d 1162 (1980)

COMPLETED CITATIONS: Hawes v. SAIF, 6 Or App 136, 486 P2d 1294 (1971)

LAW REVIEW CITATIONS: 52 OLR 190-200 (1973)

656.216

COMPLETED CITATIONS: Bivens v. Weyerhaeuser Co., 6 Or App 100, 487 P2d 119 (1971); Wilson v. Gilchrist Tbr. Co., 6 Or App 104, 487 P2d 104 (1971)

656.218

NOTES OF DECISIONS

Claimant’s noncompensable suicide does not bar recovery for compensable injuries sustained prior to suicide. Ahn v. Frito-Lay, Inc., 91 Or App 443, 756 P2d 40 (1988), Sup Ct review denied

Where claimant was unmarried and had no dependents or minor children at time of death, personal representative does not have standing to pursue claim for unpaid temporary total disability benefits that accrued before claimant’s death. Trice v. Tektronix, Inc., 104 Or App 461, 801 P2d 896 (1991)

Authority of beneficiaries to request hearing includes authority to perform acts prerequisite to making request. Edwards v. Cherry City Electric, Inc., 141 Or App 578, 919 P2d 501 (1996)

Payment of burial allowance is discretionary with insurer or self-insured employer. Edwards v. Cherry City Electric, Inc., 141 Or App 578, 919 P2d 501 (1996)

Where worker dies of unrelated causes prior to becoming medically stationary, both calculation and payment of benefits must be made to beneficiaries as if worker had survived. Shaw v. Steinfelds Products, Inc., 160 Or App 77, 980 P2d 169 (1999), Sup Ct review denied

“Final disposition” of hearing request occurs when final order has been entered and is no longer subject to review by Workers’ Compensation Board or courts. SAIF v. Balcom, 162 Or App 325, 986 P2d 104 (1999), Sup Ct review denied

656.222

NOTES OF DECISIONS

In general

Past receipt of money for earlier disabilities refers only to previous compensation paid under Oregon workers’ compensation system. American Building Maintenance v. McLees, 296 Or 772, 679 P2d 1361 (1984)

Only previous payments for same condition are to be considered in adjusting award. Norby v. SAIF, 303 Or 536, 738 P2d 974 (1987)

Where claimant had previously been awarded permanent unscheduled disability to same body part but established that injuries lacked any combined effect, no offset was applicable. City of Portland v. Duckett, 104 Or App 318, 801 P2d 847 (1990), Sup Ct review denied

Requirement that offset be made if award has previously been given does not impliedly prohibit award reduction for effect of pre-employment disability. Nomeland v. City of Portland, 106 Or App 77, 806 P2d 175 (1991)

Whether injury is scheduled or unscheduled does not affect applicability of offset. Offill v. Greenberry Tank and Iron Company, 142 Or App 351, 921 P2d 1342 (1996)

Computation of compensation

Strict arithmetic offset for amount of previous award is not required since condition at time of award and condition immediately prior to injury are not always identical. Cascade Steel Rolling Mills v. Madril, 57 Or App 398, 644 P2d 655 (1982)

Offset for “past receipt of money” on degree-by-degree basis rather than for actual award amount is allowable. Thomas v. Professional Reforestation of Oregon, 119 Or App 325, 850 P2d 1143 (1993)

656.225

NOTES OF DECISIONS

Treatment for pre-existing condition is not compensable as prelude to treatment for compensable condition. Roseburg Forest Products v. Wofford, 138 Or App 560, 909 P2d 1242 (1996)

656.226

NOTES OF DECISIONS

Where claimant had previously released her child for adoption, she had, within the contemplation of this section, no living children. Thomas v. SAIF, 8 Or App 414, 495 P2d 46 (1972)

Requirement of one-year resident cohabitation and requirement of having minor children must both be met to qualify. Kempf v. SAIF, 34 Or App 877, 580 P2d 1032 (1978), Sup Ct review denied

Although child’s paternity has not been established under ORS chapter 109, Workers’ Compensation Board may determine child’s paternity for purpose of determining mother’s benefits. Amos v. SAIF, 72 Or App 145, 694 P2d 998 (1985)

Woman who had cohabited with worker but was not cohabiting at time of worker’s fatal injury did not qualify for benefits on his death, because this section requires that period of cohabitation include time of accidental injury. Amos v. SAIF, 72 Or App 145, 694 P2d 998 (1985)

Nature of relationship and not number of days spent in same location determines whether cohabitation exists. Bowlin v. SAIF, 81 Or App 527, 726 P2d 1186 (1986)

Cohabitation relationship must exist at time of worker’s death. Cottrell v. EBI Companies, 304 Or 187, 743 P2d 716 (1987)

Temporary living apart or occasional trip away does not destroy cohabitation relationship. Cottrell v. EBI Companies, 304 Or 187, 743 P2d 716 (1987)

“Children” means children under age 18 or dependent children with disabilities. Cato v. Alcoa-Reynolds Metals Co., 210 Or App 721, 152 P3d 981 (2007), Sup Ct review denied

LAW REVIEW CITATIONS: 68 OLR 252 (1989)

656.230

NOTES OF DECISIONS

Only claimant may waive right to appeal adequacy of award, and claimant may waive right to appeal adequacy of award only after claimant receives award. Cayton v. Safelite Glass Corporation, 231 Or App 644, 220 P3d 1190 (2009)

656.234

NOTES OF DECISIONS

Workers compensation award which had been paid to worker and deposited by him in bank account was not exempt from attachment and garnishment. McCabe v. Fee, 279 Or 437, 568 P2d 661 (1977)

ATTY. GEN. OPINIONS: Wage assignments of workers compensation for child support, (1978) Vol 38, p 1690

656.236

NOTES OF DECISIONS

Where aggravation claim was subject to settlement agreement disposing of all issues raised or that could be raised, recharacterizing claim as new injury did not place claim outside agreement. Safeway Stores, Inc. v. Seney, 124 Or App 450, 863 P2d 528 (1993)

Where aggravation claim was pending at time of original injury settlement agreement disposing of all issues that could be raised, claimant waived right to challenge later denial of aggravation claim by employer. Good Samaritan Hospital v. Stoddard, 126 Or App 69, 867 P2d 543 (1994), Sup Ct review denied

“All matters and all rights to compensation” includes third-party lien rights of insurers. Rash v. McKinstry Co., 331 Or 665, 20 P3d 197 (2001)

Terms of claim disposition agreement do not control claimant’s right to attorney fees when those fees derive from subsequent claim for medical services. Liberty Northwest Ins. Corp., Inc. v. Watkins, 347 Or 687, 227 P3d 1134 (2010)

LAW REVIEW CITATIONS: 32 WLR 217 (1996)

656.245

NOTES OF DECISIONS

In general

Medical expenses are not compensable if they are result of pre-existing disability that contributed to award of permanent total disability but not result of compensable injury. Francoeur v. SAIF, 17 Or App 37, 520 P2d 477 (1974), Sup Ct review denied

Right to medical services for compensable injury does not terminate upon finding of no permanent disability. Bowser v. Evans Prod. Co., 270 Or 841, 530 P2d 44 (1974)

Where third party paid medical bills after insurer’s denial of claim, order could properly provide for reimbursement by insurer directly to third party. Francoeur v. SAIF, 20 Or App 604, 532 P2d 1148 (1975)

Lack of general acceptance by medical profession does not prevent finding that treatment method is reasonable and necessary. McGarry v. SAIF, 24 Or App 883, 547 P2d 654 (1976)

Payment of medical expenses for claim of aggravation does not amount to acceptance of aggravation claim and does not estop employer from contesting claim. Jacobson v. SAIF, 36 Or App 789, 585 P2d 1146 (1978), Sup Ct review denied

Insurer could refuse to pay for medical services rendered by claimant-selected out-of-state physician not approved by insurer. Rivers v. SAIF, 45 Or App 1105, 610 P2d 288 (1980)

Psychotherapy considered necessary by licensed psychologist, to whom claimant had been referred by physician for job counseling, was medical service for which carrier was responsible. Kemery v. SAIF, 51 Or App 813, 627 P2d 34 (1981)

Exploratory surgery performed as result of industrial injury was compensable even though surgery revealed noncompensable condition. Brooks v. D & R Timber, 55 Or App 688, 639 P2d 700 (1982)

Neither worker’s election to pursue third party recovery nor worker’s receipt of share of proceeds recovered absolved insurance carrier of duty to provide continued medical services. SAIF v. Parker, 61 Or App 47, 656 P2d 335 (1982)

Claimant impliedly can have only one attending physician at given time. Kemp v. Workers’ Comp. Dept., 65 Or App 659, 672 P2d 1343 (1983), modified 67 Or App 270, 677 P2d 725 (1984), Sup Ct review denied

If insurer gives claimant reasonable basis to believe that it has approved claimant’s choice of doctor, claimant need not obtain insurer’s consent to medical services that doctor provides for conditions that result from compensable injury. Mogliotti v. Reynolds Metals, 67 Or App 142, 676 P2d 919 (1984)

Insurer may not deny worker choice of treatments by restricting approval of out-of-state physician to certain categories of service provider. Reynaga v. Northwest Farm Bureau, 300 Or 255, 709 P2d 1071 (1985); Day v. S & S Pizza Co., 77 Or App 711, 714 P2d 275 (1986), Sup Ct review denied

Exposure to substance capable of causing occupational disease is not, by itself, injury absent subsequent development of occupational disease. Brown v. SAIF, 79 Or App 205, 717 P2d 1289 (1986), Sup Ct review denied

Even after claim closure, employer cannot deny its future responsibility for payment of medical services for previously accepted claim. Evanite Fiber Corp. v. Striplin, 99 Or App 353, 781 P2d 1262 (1989)

Where treatment request has previously been denied, claimant renewing request for treatment must show that condition has changed and that request is supported by new facts unavailable at time of earlier request. Liberty Northwest Ins. Corp. v. Bird, 99 Or App 560, 783 P2d 33 (1989), Sup Ct review denied

Cost of palliative care is compensable where there is substantial evidence in record that service is reasonable and necessary as result of compensable injury. Elixir Industries v. Lange, 100 Or App 492, 786 P2d 1301 (1990)

Special review standard is allowable where items recommended for palliative care purposes are not usually viewed as medical services. Rager v. EBI Companies, 102 Or App 457, 795 P2d 573 (1990), modified 107 Or App 22, 810 P2d 1315 (1991)

Open status of claim does not prevent employer from denying request for ongoing care. Green Thumb, Inc. v. Basl, 106 Or App 98, 806 P2d 186 (1991)

Employer can deny current need for particular treatment and specific unpaid services, but cannot deny responsibility for possible future needs. Green Thumb, Inc. v. Basl, 106 Or App 98, 806 P2d 186 (1991)

Employers have only limited right to veto claimant’s choice of out-of-state physician, and only adequate basis for veto is when out-of-state doctor would be unlikely to comply with reporting requirements. Safeway Stores, Inc. v. Dupape, 106 Or App 126, 806 P2d 191 (1991), Sup Ct review denied

Claim is subject to statute provisions and rules making certain medical treatment noncompensable, notwithstanding that provisions and rules were adopted after time of injury. Thorpe v. Seige Logging, 115 Or App 335, 838 P2d 628 (1992), Sup Ct review denied

Where claimant fell at home and damaged sutures, claimant suffered no new “injury” or condition different from compensable carpal tunnel syndrome and emergency room treatment necessary to resuture wound is compensable. Roseburg Forest Products v. Ferguson, 117 Or App 601, 845 P2d 930 (1993), Sup Ct review denied

Where no new injury has occurred and compensable injury is material cause of need for continuing medical treatment, major contributing cause standard does not apply. Roseburg Forest Products v. Ferguson, 117 Or App 601, 845 P2d 930 (1993), Sup Ct review denied; Beck v. James River Corp., 124 Or App 484, 863 P2d 526 (1993), Sup Ct review denied; Fred Meyer, Inc. v. Crompton, 150 Or App 531, 946 P2d 1171 (1997)

Use of independent medical examination to impeach attending physician’s assessment of claimant’s disability was improper. Koitzsch v. Liberty Northwest Ins. Corp., 125 Or App 666, 866 P2d 514 (1994)

Exclusive ability of attending physician to make findings on medical condition does not require acceptance of physician findings or prevent reliance on nonmedical evidence. Libbett v. Roseburg Forest Products, 130 Or App 50, 880 P2d 935 (1994), Sup Ct review denied

Physician request for approval of noncompensable type of palliative care does not constitute “claim.” Hathaway v. Health Future Enterprises, 320 Or 383, 884 P2d 549 (1994); Nicholson v. Salem Area Transit, 320 Or 391, 884 P2d 864 (1994)

Director has exclusive power to review appropriateness of ongoing or proposed medical treatment. Liberty Northwest Ins. Corp. v. Yon, 137 Or App 413, 904 P2d 645 (1995)

“Other related services” that are compensable are limited to services of same kind or class as those listed. Baar v. Fairview Training Center, 139 Or App 196, 911 P2d 1232 (1996), Sup Ct review denied

Requirement that director make physician change determination with “advice of one or more physicians” does not prohibit use of generalized medical guidelines in place of claimant-specific advice. Liberty Northwest Ins. Corp. v. Vasquez, 147 Or App 704, 938 P2d 237 (1997)

Referral for consultation does not place subsequent change to consulting physician outside limitation on attending physician changes. Country Mutual Insurance Co. v. Mendoza, 148 Or App 397, 939 P2d 674 (1997)

Where remodeling of claimant’s residence is reasonable and necessary to further claimant’s self-sufficient status, remodeling services are compensable medical services. SAIF v. Glubrecht, 156 Or App 339, 967 P2d 490 (1998)

Provisions for use of managed care organization or in-lieu services apply to all forms of claims, not just initial or aggravation claims. SAIF v. Reid, 160 Or App 383, 982 P2d 14 (1999); Travelers Indemnity of Illinois v. Curtis, 195 Or App 305, 97 P3d 673 (2004), Sup Ct review denied

Limitation on compensability of treatment rendered by medical service provider not qualifying as attending physician applies to both accepted and denied claims. SAIF v. Jensen, 183 Or App 439, 52 P3d 1118 (2002)

Where work-related injury is fact of consequence regarding claimant’s need of medical services, injury may be “material” regardless of amount of contribution. Mize v. Comcast Corp-AT&T Broadband, 208 Or App 563, 145 P3d 315 (2006)

Where prescribed type of modified vehicle was uniquely suited to accommodating claimant’s disability resulting from compensable injury, vehicle was medical service. Sedgwick Claims Management Services v. Jones, 214 Or App 446, 166 P3d 547 (2007)

Where treatment is necessitated in material part by accepted condition, treatment of condition other than accepted condition is compensable. SAIF v. Martinez, 219 Or App 182, 182 P3d 873 (2008); SAIF v. Sprague, 221 Or App 413, 190 P3d 443 (2008), aff’d 346 Or 661, 217 P3d 644 (2009)

Medical services to determine cause or extent of compensable injury are compensable even if condition discovered is not compensable. SAIF v. Martinez, 219 Or App 182, 182 P3d 873 (2008)

Burden of proof

Frequency of treatment cannot be limited so long as treatment is reasonable and necessary. West v. SAIF, 74 Or App 317, 702 P2d 1148 (1985)

Claimant bears burden of proof with regard to required frequency of treatment. Freres Lumber Co., Inc. v. Murphy, 101 Or App 92, 789 P2d 674 (1990), Sup Ct review denied

ATTY. GEN. OPINIONS: Services rendered by clinical social worker independently and not at direction of doctor or physician as constituting medical services required to be provided claimants, (1981) Vol 42, p 167

LAW REVIEW CITATIONS: 27 WLR 81 (1991); 32 WLR 217 (1996)

656.247

NOTES OF DECISIONS

Worker entitled to payment for medical expenses incurred before denial of claim only if worker has health insurance. Blacknall v. Manpower, Inc., 238 Or App 638, 243 P3d 794 (2010)

656.248

NOTES OF DECISIONS

Authority of director to resolve fee disputes does not preclude bringing of criminal complaint regarding same conduct. SAIF v. Anderson/DeShaw, 321 Or 139, 894 P2d 1152 (1995)

656.252

NOTES OF DECISIONS

Board is free to define permissible modes of communication to include ex parte oral communication between claimant’s physician and employer. Booth v. Tektronix, 312 Or 463, 823 P2d 402 (1991)

Physician-patient privilege does not apply in workers’ compensation contested case claim hearing. Booth v. Tektronix, 312 Or 463, 823 P2d 402 (1991)

656.260

NOTES OF DECISIONS

Primary care physician who is not member of managed care organization, but agrees to comply with rules, terms and conditions of organization, is not plan participant for purposes of organization duty to exclude individuals who violate treatment standards from plan participation. Managed Healthcare Northwest, Inc. v. Department of Consumer and Business Services, 189 Or App 444, 75 P3d 912 (2003), aff’d 338 Or 92, 106 P3d 624 (2005)

656.262

Notice; hearing requests

Interim compensation

Unreasonable employer behavior

Penalty and attorney fee availability/limitations

Acceptance, denial and revocation of acceptance

Other

NOTES OF DECISIONS

Notice; hearing requests

See also annotations under ORS 656.319.

Employer’s letter was not valid and effective denial of compensable claim in that it did not expressly disclaim responsibility and it failed to state with reasonable certainty what was being denied. Pettit v. Austin Logging Co., 9 Or App 347, 497 P2d 207 (1972)

Telephone conversation that did not inform claimant of reasons for denial of his claim or of his hearing rights was not adequate substitute for notice of denial requirement. Burkholder v. SAIF, 11 Or App 334, 502 P2d 1394 (1972)

Failure to strictly comply with notice requirement does not necessarily preclude jurisdiction over claim where no prejudice results from failure to give such notice. Murphy v. SAIF, 13 Or App 105, 508 P2d 227 (1973)

“Notification” of denial occurs on date denial notice is deposited in mail, not date shown on body of denial notice. Madewell v. Salvation Army, 49 Or App 713, 620 P2d 953 (1980)

Where notice was properly sent, fact that claimant did not actually receive notice did not toll time limitation for requesting hearing. Wright v. Bekins Moving and Storage Co., 97 Or App 45, 775 P2d 857 (1989), Sup Ct review denied

Request for hearing must be referable to particular denial. Guerra v. SAIF, 111 Or App 579, 826 P2d 1034 (1992)

After receiving actual or constructive notice of denial of workers’ compensation claim, claimant has 60 days to file request for hearing. SAIF v. Edison, 117 Or App 455, 844 P2d 261 (1992)

Where employer issues denial of coverage for condition, claimant may request hearing on denial notwithstanding that claimant did not comply with procedure for requesting acceptance of condition. Sound Elevator v. Zwingraf, 181 Or App 150, 45 P3d 958 (2002), Sup Ct review denied

Where claimant requests hearing of any type regarding denial of claim for failure to cooperate, duty to ensure that hearing is assigned to Expedited Claim Service rests with Workers’ Compensation Board. SAIF v. Dubose, 335 Or 579, 74 P3d 1072 (2003)

Interim compensation

Worker receiving payment over period of time for award of one class of compensation benefit is not prevented from receiving payment during same period of time for award of different class of compensation benefits. Wingfield v. Nat. Biscuit Co., 8 Or App 408, 494 P2d 905 (1972); Horn v. Tbr. Prods., Inc., 12 Or App 365, 507 P2d 36 (1973)

“Compensation” as used in this section has special meaning that includes only interim compensation paid for non-compensable injury. Jones v. Emanuel Hospital, 280 Or 147, 570 P2d 70 (1977); Williams v. Burns International Security, 36 Or App 769, 585 P2d 734 (1978)

Payment must be made from date of claimant’s injury rather than from date injury is reported to claimant’s employer. Gilroy v. General Distributors, 35 Or App 361, 582 P2d 428 (1978)

Claimant who was not “worker” within definition of Workers Compensation Law was not entitled to interim compensation pending denial of claim. Bell v. Hartman, 289 Or 447, 615 P2d 314 (1980)

To receive interim compensation, claimant must establish absence from work or that earning power was diminished. Bono v. SAIF, 298 Or 405, 692 P2d 606 (1984)

Medical expenses are not interim compensation; there is no duty to pay medical expenses pending determination that claim is compensable. Anderson v. EBI Companies, 79 Or App 345, 719 P2d 1383 (1986), Sup Ct review denied; Wacker Siltronic Corp., v. Satcher, 103 Or App 513, 798 P2d 264 (1990); Meier & Frank Co. v. Smith-Sanders, 115 Or App 159, 836 P2d 1359 (1992), Sup Ct review denied, modified 118 Or App 261, 846 P2d 1194 (1993)

Award of interim compensation is not stayed pending appeal. Georgia-Pacific v. Hughes, 305 Or 286, 751 P2d 775 (1988)

Where claimant’s attending physician was unable to verify claimant’s inability to work, insurer or self-insured employer may suspend payment of temporary total disability, but claimant’s entitlement to temporary total disability does not terminate. Sandoval v. Crystal Pine, 118 Or App 640, 848 P2d 1224 (1993), Sup Ct review denied; Cameron v. Norco Contract Service, 128 Or App 422, 875 P2d 1196 (1994), Sup Ct review denied

Where claimant is injured on job, but leaves job for reasons unrelated to injury, interim compensation may be available for loss of earnings resulting from injury. RSG Forest Products v. Jensen, 127 Or App 247, 873 P2d 324 (1994)

1995 amendment limiting retroactive authorization of temporary disability benefits applies retroactively to claim existing at time of amendment. Jensen v. Conagra, Inc., 152 Or App 449, 954 P2d 822 (1998)

Employer must pay interim compensation pending processing of claim for new medical condition. Labor Ready, Inc. v. Mann, 158 Or App 666, 976 P2d 89 (1999), modified 160 Or App 576, 987 P2d 524 (1999), Sup Ct review denied; Johansen v. SAIF, 158 Or App 672, 976 P2d 84 (1999), on reconsideration 160 Or App 579, 987 P2d 524 (1999), Sup Ct review denied

Limitation on retroactive establishment of disability period applies both to procedural obligation to pay benefits while claim is open and to substantive entitlement to benefits at claim closure. Fred Meyer, Inc. v. Bundy, 159 Or App 44, 978 P2d 385 (1999); Menasha Corp. v. Crawford, 332 Or 404, 29 P3d 1129 (2001)

Claimant’s actual notice of claim denial cannot substitute for written denial so as to terminate interim compensation obligation. Bishop v. OBEC Consulting Engineers, 160 Or App 548, 982 P2d 25 (1999)

Where attending physician contemporaneously signifies approval for claimant to be off work, whether or not explicitly authorizing payment of temporary disability benefits, insurer or self-insured employer is obligated to pay benefits. Lederer v. Viking Freight, Inc., 193 Or App 226, 89 P3d 1199 (2004), modified195 Or App 94, 96 P3d 882 (2004)

Withdrawal or replacement of attending physician does not cause open-ended authorization of temporary disability to cease. Dedera v. Raytheon Engineers & Constrs, 200 Or App 1, 112 P3d 1198 (2005), Sup Ct review denied

Unreasonable employer behavior

Refusal to pay temporary total disability benefits was not unreasonable where order to pay compensation due did not specify period for which benefits must be paid. Reed v. Del Chem. Corp., 16 Or App 366, 518 P2d 679 (1974), Sup Ct review denied

Where insurer has legitimate doubt from legal standpoint of its liability, refusal to pay medical expenses is not unreasonable. Norgard v. Rawlinsons, 30 Or App 999, 569 P2d 49 (1977); Price v. SAIF, 73 Or App 123, 698 P2d 54 (1985); Brown v. Argonaut Insurance Company, 93 Or App 588, 763 P2d 408 (1988); Atlas Cylinder v. Epstein, 114 Or App 117, 833 P2d 1374 (1992)

Delay in payment of interim compensation is unreasonable resistance to payment because requirement is that payment be made “promptly.” Williams v. SAIF, 31 Or App 1301, 572 P2d 658 (1977)

Claimant was entitled to award of penalties where employer’s unreasonable conduct was contributing cause of denial of compensation. Anfilofieff v. SAIF, 52 Or App 127, 627 P2d 1274 (1981)

Compensation duty of noncomplying employers assumed by SAIF includes any penalties for unreasonable behavior by noncomplying employer. Anfilofieff v. SAIF, 52 Or App 127, 627 P2d 1274 (1981)

Self-insured employer’s delay of six months in responding to Evaluation Division’s request for medical information necessary to close claim constituted “unreasonable delay” in payment of claim. Lester v. Weyerhaeuser, 70 Or App 307, 689 P2d 342 (1984), Sup Ct review denied

Where plaintiff was awarded permanent partial disability compensation and claim was reopened to offer evidence of permanent total disability, carrier should not have suspended payment on partial disability award. Allen v. Fireman’s Fund Ins. Co., 71 Or App 40, 691 P2d 137 (1984)

Insurer that timely and properly denies claim has duty to re-evaluate denial upon receipt of later medical report. Brown v. Argonaut Insurance Company, 93 Or App 588, 763 P2d 408 (1988)

Where claim was not result of compensable injury, insurer did not unreasonably resist payment of compensation or attorney fees. Ellis v. McCall Insulation, 308 Or 74, 775 P2d 316 (1989); Randall v. Liberty Northwest Ins. Corp., 107 Or App 599, 813 P2d 1120 (1991)

Order reciting incorrect award amount does not create substantive entitlement of claimant to erroneous extra compensation. Vega v. Express Services, 144 Or App 602, 927 P2d 1106 (1996), Sup Ct review denied

For purposes of determining whether insurer unreasonably refused to pay compensation, legitimate doubt concerning liability requires more than argument passing frivolousness test of ORS 656.390. SAIF v. Azorr, 182 Or App 90, 47 P3d 542 (2002), Sup Ct review denied

Penalty and attorney fee availability/limitations

Award of attorney fees is not limited to cases where employer or insurer requests hearing or review or files appeal. Wingfield v. Nat. Biscuit Co., 8 Or App 408, 494 P2d 905 (1972)

Penalty for unreasonable refusal need not be paid pending appellate review of claim. Reed v. Del Chemical, 26 Or App 733, 554 P2d 586 (1976), Sup Ct review denied

Where finding of unreasonable denial is overturned on appeal, penalties or attorney fees based solely on unreasonable denial are canceled. Duggan v. SAIF, 31 Or App 1059, 572 P2d 329 (1977)

Claimant was entitled to recover reasonable attorneys fees upon employer’s refusal to either deny claim or make total disability payments, notwithstanding that injury complained of was subsequently determined noncompensable. Jones v. Emanuel Hospital, 280 Or 147, 570 P2d 70 (1977); Likens v. SAIF, 56 Or App 498, 642 P2d 342 (1982)

There is no statutory authority for award of interest on unpaid temporary disability benefits, and only penalties available are those specified in this section. Button v. SAIF, 45 Or App 295, 608 P2d 206 (1980), Sup Ct review denied

Where claimant failed to raise issue of unreasonable denial of claim, referee improperly awarded penalty. Mavis v. SAIF, 45 Or App 1059, 609 P2d 1318 (1980)

Board could not award penalty for insurer’s unreasonable delay in requesting appointment of designated paying agent. EBI Companies v. Thomas, 66 Or App 105, 672 P2d 1241 (1983)

Since there was no duty to pay interim compensation for medical services pending acceptance or denial of claim, there were no “amounts then due” and no penalty could be assessed. Poole v. SAIF, 69 Or App 503, 686 P2d 1063 (1984); Anderson v. EBI Companies, 79 Or App 345, 719 P2d 1383 (1986), Sup Ct review denied; Wacker Siltronic Corp., v. Satcher, 103 Or App 513, 798 P2d 264 (1990); Meier & Frank Co. v. Smith-Sanders, 115 Or App 159, 836 P2d 1359 (1992), Sup Ct review denied, modified 118 Or App 261, 846 P2d 1194 (1993)

Prejudice and intentional delay are not necessary predicates to imposition of penalty and attorney fees. Lester v. Weyerhaeuser, 70 Or App 307, 689 P2d 342 (1984), Sup Ct review denied

For purpose of imposing penalty, language excepting payment of medical benefits or burial expenses from definition of “compensation” pending acceptance or denial of claim refers only to period for timely acceptance or denial of claim. Whitman v. Industrial Indemnity Co., 73 Or App 73, 697 P2d 999 (1985)

Claimant was entitled to penalty and attorney fees because of delay in payment of interim compensation on aggravation claim notwithstanding later determination that original claim was prematurely closed. O’Dell v. SAIF, 79 Or App 294, 719 P2d 52 (1986)

Where penalty is assessed for delay in issuing denial, amount “then due” is calculated as of denial date. Wacker Siltronic Corp. v. Satcher, 91 Or App 654, 756 P2d 679 (1988); Weyerhaeuser v. Knapp, 100 Or App 615, 788 P2d 462 (1990)

Board may assess penalty for unreasonable delay based on interim compensation due but not on medical services. Eastmoreland Hospital v. Reeves, 94 Or App 698, 767 P2d 97 (1989)

Where compensation has been timely paid, failure to seek claim closure does not permit penalty. SAIF v. Wilson, 95 Or App 748, 770 P2d 972 (1989)

Award of attorney fee in addition to payment of penalty award is not permitted. Martinez v. Dallas Nursing Home, 114 Or App 453, 836 P2d 147 (1992), Sup Ct review denied; Corona v. Pacific Resource Recycling, 125 Or App 47, 865 P2d 407 (1993)

Where claim is unreasonably denied, penalty applies to amount due at time denial is withdrawn. Conagra, Inc. v. Jeffries, 118 Or App 373, 847 P2d 878 (1993)

Where more than one insurer unreasonably denies claim, separate 25 percent penalty may be assessed against each insurer. SAIF v. Whitney, 130 Or App 429, 882 P2d 614 (1994)

Once dispute is properly before Hearings Division, subsequent narrowing of issues to involve only penalty issue does not divest division of jurisdiction over dispute. Icenhower v. SAIF, 180 Or App 297, 43 P3d 431 (2002)

Liability for additional amount and attorney fee may be imposed on insurer or self-insured employer multiple times during processing of single claim if claimant satisfies predicates for imposing liability and fee in each instance. Cayton v. Safelite Glass Corporation, 232 Or App 454, 222 P3d 1134 (2009)

Acceptance, denial and revocation of acceptance

Failure to issue denial in written form tolls time for filing request for hearing. Bebout v. SAIF, 22 Or App 1, 537 P2d 563 (1975), aff’d 273 Or 487, 541 P2d 1293 (1975)

Misrepresentation by claimant is material if decision of insurer could reasonably have been affected by knowledge of true facts. Ebbtide Enterprises v. Tucker, 303 Or 459, 738 P2d 194 (1987)

Acceptance of claim for condition includes acceptance of compensability of underlying causes of condition. Georgia-Pacific v. Piwowar, 305 Or 494, 753 P2d 948 (1988); Freightliner Corp. v. Christensen, 163 Or App 191, 986 P2d 1263 (1999)

Claim status report filed with Workers’ Compensation Division was not notice to claimant of claim determination. EBI Ins. Co. v. CNA Insurance, 95 Or App 448, 769 P2d 789 (1989)

Acceptance of claim for one condition did not require acceptance of claim for second condition in same location, but did estop employer from denying that work-related injury had occurred. Boise Cascade Corp. v. Katzenbach, 104 Or App 732, 802 P2d 709 (1990), Sup Ct review denied

Where employer gave oral authorization for surgery to claimant and claimant’s doctors, employer was estopped from denying responsibility for claimant’s medical expenses associated with surgery. Meier & Frank Co. v. Smith-Sanders, 115 Or App 159, 836 P2d 1359 (1992), Sup Ct review denied, modified 118 Or App 261, 846 P2d 1194 (1993)

Employer may reclassify claim from disabling to nondisabling only if done within sufficient time for claimant to challenge reclassification within one year from date of injury. DeGrauw v. Columbia Knit, Inc., 118 Or App 277, 846 P2d 1214 (1993), Sup Ct review denied

Later obtained evidence allowing insurer to revoke claim acceptance means evidence other than evidence insurer had at time of initial acceptance. CNA Ins. Co. v. Magnuson, 119 Or App 282, 850 P2d 396 (1993); Curry Educational Service Dist. v. Bengtson, 175 Or App 252, 27 P3d 526 (2001)

Change in legal significance of existing evidence does not make it “later obtained evidence.” CNA Ins. Co. v. Magnuson, 119 Or App 282, 850 P2d 396 (1993)

Settlement agreement between parties is not claim acceptance and is not subject to later revocation for noncompensability. Fimbres v. Gibbons Supply Co., 122 Or App 467, 857 P2d 904 (1993)

Litigation of aggravation claim precludes later denial of compensability of original injury. SAIF v. Hansen, 126 Or App 662, 870 P2d 247 (1994)

Insurer acquiescence to designation of paying agent does not constitute acceptance of claim. Taylor v. Masonry Builders, Inc., 127 Or App 230, 872 P2d 442 (1994), Sup Ct review denied

Denial based on lack of coverage is subject to limitation of two years from date of claim acceptance. SAIF v. Shaffer, 129 Or App 289, 878 P2d 1114 (1994)

Acceptance of claim is not required to process claim while compensability is litigated. SAIF v. Mize, 129 Or App 636, 879 P2d 907 (1994)

Two-year rescission period begins at date of claim acceptance, not at end of 90-day period for accepting or denying claim. SAIF v. Andrews, 130 Or App 620, 883 P2d 248 (1994)

Acceptance of particular condition, rather than acceptance of symptom, does not necessarily include acceptance of cause for condition. Granner v. Fairview Center, 147 Or App 406, 935 P2d 1252 (1997); Cloud v. Klamath County School District, 191 Or App 610, 83 P3d 918 (2004)

Employer is not estopped from amending denial of claim at hearing. SAIF v. Ledin, 149 Or App 94, 941 P2d 1093 (1997)

Retroactive 1997 amendment allowing employer or insurer to deny compensability of previously accepted claim does not violate privileges and immunities provision of Oregon Constitution (section 20, Article I). Kmart Corp. v. Lloyd, 155 Or App 270, 963 P2d 734 (1998)

1995 amendment, which requires insurer to send written denial before claim closure if asserting that accepted condition is no longer compensable, applies retroactively. SAIF v. Belden, 155 Or App 568, 964 P2d 300 (1998), Sup Ct review denied

Employer “notice or knowledge of claim” for possible compensable injury arises at time employer becomes aware of allegedly compensable injury. Allied Systems Co. v. Nelson, 158 Or App 639, 975 P2d 923 (1999)

Employer may not deny combined condition after acceptance unless condition was combined condition at time of acceptance. Croman Corp. v. Serrano, 163 Or App 136, 986 P2d 1253 (1999)

All causes underlying accepted condition are compensable in their own right and cannot be viewed as preexisting conditions for purposes of finding combined condition. Freightliner Corp. v. Christensen, 163 Or App 191, 986 P2d 1263 (1999)

Where employer accepts combined condition involving new injury and preexisting compensable injury, employer may deny combined condition if new injury ceases to be major contributing cause, but will remain subject to shifted responsibility for preexisting injury under ORS 656.308. Barrett Business Services v. Morrow, 164 Or App 628, 993 P2d 179 (1999)

Notice of claim acceptance that adequately identifies accepted combined condition is not rendered insufficient by failure to expressly identify accepted claim as claim for combined condition. Columbia Forest Products v. Woolner, 177 Or App 639, 34 P3d 1203 (2001)

Later obtained evidence of compensability or responsibility for claim does not include evidence employer had, or with reasonable diligence should have had, at time of acceptance nor does it include restatement, reevaluation, analysis or confirmation of such evidence. Barrett Business Services, Inc. v. Stewart, 178 Or App 145, 35 P3d 1055 (2001)

Where employer denial is limited to specific medical condition, denial does not place at issue other existing medical conditions unknown to employer. Longview Inspection v. Snyder, 182 Or App 530, 50 P3d 1201 (2002)

“Other written clarification” made in response to claimant communication regarding omitted condition must clarify notice of acceptance. Rasmussen v. SAIF, 182 Or App 642, 50 P3d 248 (2002)

Employer or insurer may issue acceptance and denial of combined condition in single letter, provided effective date of denial is later than effective date of acceptance. Stockdale v. SAIF, 192 Or App 289, 84 P3d 1120 (2004)

Suspension sanction provided under ORS 656.325 for claimant failure to cooperate with insurer medical examination prevents using failure as basis for denying claim. Lewis v. CIGNA Insurance Co., 339 Or 342, 121 P3d 1128 (2005)

Effective date for modified acceptance of combined condition need not coincide with date of original injury. Oregon Drywall Systems, Inc. v. Bacon, 208 Or App 205, 144 P3d 987 (2006)

Updated notice of acceptance issued at time of claim closure is subject to restrictions on revocation of acceptance. City of Grants Pass v. Hamelin, 212 Or App 414, 157 P3d 1206 (2007)

Where claimant had no prior accepted claim and denial was directed at claimant’s only pending claim for new injury, misstating date of claim did not nullify denial. Mills v. The Boeing Co., 212 Or App 678, 159 P3d 375 (2007)

Other

Insurer acceptance of claim does not prevent noncomplying employer from denying claim and demanding hearing on compensability. Clark v. Linn, 98 Or App 393, 779 P2d 203 (1989)

Failure of party to raise issue at hearing did not constitute waiver where no relinquishment of right was intended. Drews v. EBI Companies, 310 Or 134, 795 P2d 531 (1990); V. W. Johnson & Sons v. Johnson, 103 Or App 355, 797 P2d 396 (1990), Sup Ct review denied

SAIF and Department of Insurance and Finance had standing to seek review of disputed claim settlement between claimant and noncomplying employer. Trojan Concrete v. Tallant, 107 Or App 429, 812 P2d 433 (1991), Sup Ct review denied

Where out-of-state employer accepts claim for subsequent injury, inadequacy of compensation for subsequent injury does not bar release of Oregon employer from responsibility for combined condition. Wootton v. Stadeli Pump & Construction, 108 Or App 548, 816 P2d 689 (1991)

Where claimant was employee, stockholder and manager of corporate employer, claimant satisfied injury notice requirement by notifying employer, and claim was not barred notwithstanding failure of employer to notify insurer of claim. Barney’s Karts, Inc. v. Vance, 110 Or App 62, 821 P2d 422 (1991)

Claimant is not entitled to overpayment of temporary disability benefits for period between medically stationary date and claim closure. Santos v. Caryall Transport, 152 Or App 322, 954 P2d 187 (1998)

“New medical condition” is one that: 1) arises after acceptance of initial claim; 2) is related to initial claim; and 3) involves condition other than condition initially accepted. Johansen v. SAIF, 158 Or App 672, 976 P2d 84 (1999), on reconsideration 160 Or App 579, 987 P2d 524 (1999), Sup Ct review denied

Unless direct medical sequela to accepted compensable condition has been specifically denied, both condition and its sequelae must be medically stationary at time of claim closure. Manley v. SAIF, 181 Or App 431, 45 P3d 1027 (2002)

New medical condition is subject to 1995 and 1997 amendments if, on July 25, 1997, claim was perfected and not yet processed or was pending in litigation. Hiner v. Crawford Health & Rehabilitation, 183 Or App 640, 54 P3d 633 (2002)

Duty of injured worker to cooperate in investigation of claim for compensation is not breached by failure to explain alleged lack of cooperation. SAIF v. Dubose, 193 Or App 62, 88 P3d 933 (2004)

Administrative system for issuing backup denial does not divest circuit court of jurisdiction over unjust enrichment action arising out of payment on mistakenly accepted claim. Specialty Risk Services v. Royal Indemnity Co., 213 Or App 620, 164 P3d 300 (2007)

LAW REVIEW CITATIONS: 27 WLR 81 (1991); 32 WLR 217 (1996)

656.265

NOTES OF DECISIONS

To establish employer knowledge, claimant needs to establish only employer knowledge of injury, not knowledge claim would result. Baldwin v. Thatcher Construction Co., 49 Or App 421, 619 P2d 682 (1980); Hayes-Godt v. Scott Wetzel Services, 71 Or App 175, 691 P2d 919 (1984), Sup Ct review denied

Knowledge of injury must be sufficient to alert employer of possibility of workers’ compensation claim. Argonaut Ins. Co. v. Mock, 95 Or App 1, 768 P2d 401 (1989), Sup Ct review denied

Requirement that worker give employer written notice of “when and where and how” injury occurred is satisfied if written information, viewed as whole, provides enough detail about when, where and how injury occurred to put employer on notice that worker may have sustained compensable injury. Vsetecka v. Safeway Stores, Inc., 337 Or 502, 98 P3d 1116 (2004)

Notice consisting of report or statement secured from worker need not be in written form. Godfrey v. Fred Meyer Stores, 202 Or App 673, 124 P3d 621 (2005), Sup Ct review denied

LAW REVIEW CITATIONS: 32 WLR 217 (1996)

656.266

NOTES OF DECISIONS

Claimant must prove by preponderance of evidence that workplace exposure is major cause of occupational disease, but need not eliminate all other possible causes. Magana v. Wilbanks International, 112 Or App 134, 826 P2d 1058 (1992)

Diagnosis based on exclusion of other causes is insufficient only if specific evidence of work-related causation is absent. Bronco Cleaners v. Velazquez, 141 Or App 295, 917 P2d 539 (1996); Seeley v. Sisters of Providence, 179 Or App 723, 41 P3d 1093 (2002)

Disproving that cause of injury is idiopathic is permissible means of establishing inference that cause of injury is unexplained and that injury is therefore compensable as neutral-risk injury. McTaggart v. Time Warner Cable, 170 Or App 491, 16 P3d 1154 (2000), Sup Ct review denied

Although worker retains burden of proof of disability on appeal, burden of identifying and establishing error of appealed decision rests on party seeking modification. Marvin Wood Products v. Callow, 171 Or App 175, 14 P3d 686 (2000)

656.267

NOTES OF DECISIONS

Under former similar statute (ORS 656.262)

Clause permitting worker to file new claim at any time prevents application of claim preclusion doctrine to claim, but does not prevent application of issue preclusion doctrine. Evangelical Lutheran Good Samaritan Society v. Bonham, 176 Or App 490, 32 P3d 899 (2001), Sup Ct review denied

In general

New medical condition claim for worsened condition is subject to time limitations for aggravation rights under claim for original injury. Davis v. SAIF, 185 Or App 500, 60 P3d 578 (2002)

Where worker files claim for new medical condition, provision that insurer need not accept each and every diagnosis or medical condition with particularity if acceptance reasonably apprises claimant of nature of compensable conditions refers to acceptance of new medical condition claim, not acceptance previously issued by insurer. Rose v. SAIF, 200 Or App 654, 116 P3d 913 (2005)

656.268

NOTES OF DECISIONS

Employer has burden of proof at redetermination stage to show improvement in claimant’s condition. Bentley v. SAIF, 38 Or App 473, 590 P2d 746 (1979)

Legislature did not intend claimant’s appeal rights should prematurely terminate when aggravation rights expire, and where claim is opened during time claimant still has appeal rights, closure of claim carries with it right of appeal whenever issued. Coombs v. SAIF, 39 Or App 293, 592 P2d 242 (1979)

Requirement for disclosure of medical reports to claimant is not intended as limitation on power of board to order discovery. Morgan v. Stimson Lumber Co., 288 Or 595, 607 P2d 150 (1980)

Because claim was reopened during time claimant had right to appeal, closing order was not on board’s own motion and was therefore appealable. Carter v. SAIF, 52 Or App 1027, 630 P2d 397 (1981)

After vocational rehabilitation, claimant’s disability may be determined to be more or less than previously supposed even absent change in medical condition. Hanna v. SAIF, 65 Or App 649, 672 P2d 67 (1983)

District court had no jurisdiction over case regarding overpayment of workers’ compensation benefits. SAIF v. Harris, 66 Or App 165, 672 P2d 1384 (1983)

Where insurer’s notice to claimant contained all information to be provided in notice of closure except for fact it was notice of closure, claim remained in open status. Davison v. SAIF, 80 Or App 541, 723 P2d 331 (1986), modified 82 Or App 546, 728 P2d 582 (1986)

Requirement that party seek hearing within one year of issuance of determination order is not tolled pending claimant’s appeal from board order finding claim non-compensable, because extent of disability is independent determination. Weyerhaeuser Co. v. Roller, 85 Or App 500, 737 P2d 625 (1987)

Subsequent determination by Court of Appeals that claim was not compensable did not alter employer’s processing obligations during period prior to determination order. Weyerhaeuser Co. v. McCullough, 92 Or App 204, 757 P2d 871 (1988)

Where claimant is initially injured or becomes disabled as result of occupational disease while in work force, claimant is entitled to temporary total disability benefits until medically stationary and released for work, even though claimant voluntarily withdrew from work force prior to closure of claim. Weyerhaeuser Co. v. Kepford, 100 Or App 410, 786 P2d 745 (1990), Sup Ct review denied; Forshee & Langley Logging v. Peckham, 100 Or App 717, 788 P2d 487 (1990)

Where determination order was pending review and had not become final, worker could request hearing on benefit calculation error. Drews v. EBI Companies, 310 Or 134, 795 P2d 531 (1990); Hammon Stage Line v. Stinson, 123 Or App 418, 859 P2d 1180 (1993)

Employer must continue to pay temporary disability benefits for period after date claimant would otherwise have been laid off. International Paper Co. v. Huntley, 106 Or App 107, 806 P2d 188 (1991)

SAIF may seek review of order re-examining award of permanent total disability. Lehman v. SAIF, 107 Or App 207, 811 P2d 924 (1991)

Claimant who fails to report for physician approved modified work in order to participate in labor dispute has refused wage earning employment and is not entitled to continued temporary total disability benefits. Roseburg Forest Products v. Wilson, 110 Or App 72, 821 P2d 426 (1991)

Referee has subject matter jurisdiction over case even if request for hearing is subject to denial as untimely. SAIF v. Roles, 111 Or App 597, 826 P2d 1039 (1992), Sup Ct review denied

Claimant is not entitled to overpayment of temporary disability benefits for period between medically stationary date and claim closure. Lebanon Plywood v. Seiber, 113 Or App 651, 833 P2d 1367 (1992); Santos v. Caryall Transport, 152 Or App 322, 954 P2d 187 (1998)

Where redetermination order reducing disability is issued before payment under original award becomes due, redetermination effectively reduces award and excuses employer duty to pay original award. SAIF v. Sweeney, 121 Or App 142, 854 P2d 487 (1993)

Where payment under original award becomes due prior to issuance of redetermination order, original award obligation must be paid prior to redetermination date. SAIF v. Sweeney, 121 Or App 142, 854 P2d 487 (1993)

Workers’ compensation insurance carrier can offset amount of temporary disability overpaid to claimant by deducting amount from permanent disability award. Cravens v. SAIF Corp., 121 Or App 443, 855 P2d 1129 (1993)

Order to pay penalty for late payment to temporary total disability (TTD) is not final determination of TTD rate for purposes of claim preclusion analysis of res judicata. Cravens v. SAIF Corp., 121 Or App 443, 855 P2d 1129 (1993)

Where claimant had accepted employer’s offer of modified work, employer lockout of claimant during labor dispute effectively withdrew offer of modified work and claimant was entitled to temporary disability payments for period of lockout. Safeway Stores, Inc. v. Hanks, 122 Or App 582, 857 P2d 911 (1993), Sup Ct review denied

“No subsequent medical evidence” means medical evidence subsequent to medical arbiter’s report, not medical arbiter’s report. Pacheco-Gonzalez v. SAIF, 123 Or App 312, 860 P2d 822 (1993); Wickstrom v. Norpac Foods, Inc., 125 Or App 520, 865 P2d 491 (1993)

Where no medical arbiter was appointed, medical report prepared after issuance of reconsideration order was admissible at hearing before referee. Scheller v. Holly House, 125 Or App 454, 865 P2d 475 (1993), Sup Ct review denied

Whether worker is “20 percent disabled” is based on combined effect of all scheduled and unscheduled disability arising out of claim. Nero v. City of Tualatin, 127 Or App 458, 873 P2d 390 (1994), Sup Ct review denied. But see SAIF v. Cline, 135 Or App 155, 897 P2d 1172 (1995), Sup Ct review denied

Appointment of medical arbiter does not make prior impairment evaluations by other than attending physician admissible. Roseburg Forest Products v. Owen, 129 Or App 442, 879 P2d 1317 (1994)

Challenge to zero impairment rating was disagreement with impairment used. Sedgwick James of Oregon v. Hendrix, 130 Or App 564, 883 P2d 226 (1994)

Penalty awarded at reconsideration for disability above threshold level should not be sustained if disability is later reduced to be below threshold level. Mast v. Cardinal Services, Inc., 132 Or App 108, 887 P2d 814 (1994)

Where claimant refused examination by appointed medical arbitrator, submission of findings by medical arbitrator were not prerequisite to preclusion of subsequent medical evidence of impairment. Jackson v. Tuality Community Hospital, 132 Or App 182, 888 P2d 35 (1994), Sup Ct review denied

Where party fails to request reconsideration of determination order, issue of determination order propriety may not be raised at subsequent hearing. Duncan v. Liberty Northwest Ins. Corp., 133 Or App 605, 894 P2d 477 (1995)

Where determination order not challenged by party is changed by reconsideration order, at subsequent hearing where either party challenges propriety of change, determination order defines minimum or maximum award allowable. Duncan v. Liberty Northwest Ins. Corp., 133 Or App 605, 894 P2d 477 (1995)

Determination whether claimant is 20 percent disabled for purposes of award of attorney fees requires that impairment of body part be translated into measurement of total worker disability. SAIF v. Cline, 135 Or App 155, 897 P2d 1172 (1995), Sup Ct review denied

Reconsideration hearing held upon request of one party did not prevent later timely request by other party for additional reconsideration. Guardado v. J. R. Simplot Co., 137 Or App 95, 902 P2d 1225 (1995)

Reports “not prepared in time” for reconsideration proceeding do not include supplemental or clarifying medical arbiter reports. Tinh Xuan Pham Auto v. Bourgo, 143 Or App 73, 922 P2d 1255 (1996)

Notice of closure sets forth claimant’s award of benefits and precludes subsequent challenge to erroneous benefits awarded. Bowman v. Esam, Inc., 145 Or App 46, 928 P2d 359 (1996)

Medical evidence provided before claimant has become medically stationary may be considered for purpose of determining extent of disability. Liberty Mutual Insurance v. Englestadter, 145 Or App 330, 930 P2d 264 (1996)

Education factor used in determining disability must be rated as of reconsideration date. Baggett v. The Boeing Co., 150 Or App 269, 945 P2d 663 (1997)

Order denying reconsideration is reconsideration order for which party may request hearing before Workers’ Compensation Board under ORS 656.283. Jordan v. Brazier Forest Products, 152 Or App 15, 952 P2d 560 (1998)

1997 amendment imposing limit of one reconsideration proceeding did not apply retroactively. Franzen v. Liberty Mutual Fire Ins. Co., 154 Or App 503, 962 P2d 729 (1998)

For mandatory reconsideration to preclude further review under ORS 656.283, matter that claimant objects to must be manifest in notice of closure. Venetucci v. Metro, 155 Or App 559, 964 P2d 1090 (1998)

Cases where benefits have been paid in full are subject to requirement that disability be redetermined following training. SAIF v. Coburn, 159 Or App 413, 977 P2d 412 (1999), Sup Ct review denied

Cases where original determination order or notice of closure has become final are subject to requirement that disability be redetermined following training. SAIF v. Coburn, 159 Or App 413, 977 P2d 412 (1999), Sup Ct review denied

Where redetermination of disability following training results in reduced disability rating, amounts correctly paid according to earlier rating do not result in “overpayment.” SAIF v. Coburn, 159 Or App 413, 977 P2d 412 (1999), Sup Ct review denied

Deadline for issuance of reconsideration order does not prevent withdrawal of timely order and post-deadline issuance of amended order. Liberty Northwest Insurance Corp. v. Allenby, 166 Or App 331, 999 P2d 503 (2000), Sup Ct review denied; Boydston v. Liberty Northwest Insurance Corp., 166 Or App 336, 999 P2d 503 (2000), Sup Ct review denied

Under 1997 version of statute, closing examination by attending physician was not prerequisite to insurer closing of claim. Ball v. The Halton Company, 167 Or App 468, 6 P3d 1106 (2000), Sup Ct review denied

Under 1997 version of statute, insurer may not deny consequential claim without closing underlying accepted claim. Roy v. McCormack Pacific Co., 171 Or App 526, 17 P3d 550 (2000), modified 172 Or App 663, 19 P3d 999 (2001)

Claimant seeking permanent total disability benefits is entitled to opportunity for oral evidentiary hearing at some meaningful stage in appeal process because limiting record on reconsideration to written evidence denies claimant due process by preventing meaningful opportunity to meet burden of proof and persuasion. Koskela v. Willamette Industries, Inc., 331 Or 362, 15 P3d 548 (2000)

Unless direct medical sequela to original accepted condition has been specifically denied, both condition and its sequelae must be medically stationary at time of claim closure. Manley v. SAIF, 181 Or App 431, 45 P3d 1027 (2002)

Where continuing compensability of combined condition is denied because otherwise compensable injury is no longer major contributing cause of combined condition, underlying accepted injury remains compensable and must be properly closed. South Lane County School District #45-J3 v. Arms, 186 Or App 361, 62 P3d 882 (2003), Sup Ct review denied

Permanent partial disability award that has become final remains substantive entitlement during period following completion of training and prior to redetermination of permanent disability compensation. Holdren v. SAIF, 186 Or App 443, 63 P3d 1238 (2003)

Worker who accepts offer of modified employment may not subsequently claim right to refuse accepted employment because it is not with employer at injury or not at work site of employer at injury. Hammock v. SAIF, 198 Or App 480, 108 P3d 1185 (2005)

Penalty is not available where employer fails to issue either notice of claim closure or notice of refusal to close. Red Robin International v. Dombrosky, 207 Or App 476, 142 P3d 493 (2006)

For purposes of calculating penalty for failure to close claim, compensation “due” claimant is amount awarded in notice of closure, reduced by allowable offset for overpayment. Johnson v. SAIF Corp., 219 Or App 82, 180 P3d 1237 (2008)

Penalties may be assessed against insurer or self-insured employer multiple times during processing of single claim if claimant satisfies predicates for assessment of penalty in each instance. Cayton v. Safelite Glass Corporation, 232 Or App 454, 222 P3d 1134 (2009)

Insurer or self-insured employer who is penalized for refusing to close claim cannot be liable under other similar statute for same act of refusal. Cayton v. Safelite Glass Corporation, 232 Or App 454, 222 P3d 1134 (2009)

Additional information submitted during reconsideration proceeding is not relevant to whether sufficient information existed for insurer to close claim in first instance. Sanchez v. SAIF, 242 Or App 339, 255 P3d 592 (2011)

COMPLETED CITATIONS: Bivens v. Weyerhaeuser Co., 6 Or App 100, 487 P2d 119 (1971)

ATTY. GEN. OPINIONS: Applicability of “medically stationary” provision to workers injured before effective date of amendment, (1978) Vol 39, p 124

LAW REVIEW CITATIONS: 27 WLR 105 (1991); 32 WLR 217 (1996)

656.273

See also annotations under ORS 656.271 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 656.271)

Same procedure applies to aggravation claims for injury and aggravation claims for occupational disease. Schoch v. SAIF, 9 Or App 100, 496 P2d 53 (1972)

Physician’s opinion in support of aggravation claim must indicate that there are reasonable grounds for claim that disability has been aggravated subsequent to last award or arrangement of compensation, and in absence of opinion that meets this requirement, board lacks jurisdiction to award increased compensation on account of aggravation. McKinney v. G. L. Pine, Inc., 16 Or App 619, 519 P2d 1265 (1974)

In general

Payment of medical expenses under ORS 656.245 following filing of claim does not amount to acceptance and does not estop employer or insurer from contesting claim. Jacobson v. SAIF, 36 Or App 789, 585 P2d 1146 (1978), Sup Ct review denied

Increased loss of earning capacity is not prerequisite to aggravation claim. Webster v. SAIF, 52 Or App 957, 630 P2d 375 (1981)

In claim for increased compensation for unscheduled disability, worker need not show decreased ability to work in present employment, but must prove decreased ability to work in broad field of general occupations, resulting in loss of earning power. Smith v. SAIF, 302 Or 396, 730 P2d 30 (1986)

For purpose of commencing acceptance period, insurer has “notice or knowledge” of claim beginning with date claim notice is received by insurer. Barr v. EBI Companies, 88 Or App 132, 744 P2d 582 (1987)

Psychologist is “physician” capable of providing medical verification of inability to work. Crooke v. Gresham Transfer, 88 Or App 246, 744 P2d 1316 (1987)

In order to obtain increased award of permanent disability, worker must show that worsening of health condition resulted from original injury. Stepp v. SAIF, 304 Or 375, 745 P2d 1207 (1987); Nethercott v. SAIF, 126 Or App 210, 867 P2d 566 (1994)

Worker who had returned to work while claim remained open was entitled to receive temporary total disability benefits for later inability to work although no worsening of condition was shown, because worsening is required only after claim has initially been closed. Hallmark Fisheries v. Harvey, 100 Or App 657, 788 P2d 471 (1990)

Worker needs to prove only that worsening has resulted in loss of earning capacity, not actual wage loss. International Paper Co. v. Hubbard, 109 Or App 452, 820 P2d 35 (1991)

Worsened condition is rated under system existing at time of worsening, not rating system existing at time of initial claim closure. Buddenberg v. Southcoast Lumber, 112 Or App 148, 826 P2d 1062 (1992), aff’d 316 Or 180, 850 P2d 360 (1993)

Limitation for filing claim for injury that has been “in nondisabling status for one year” applies only where injury is nondisabling at time of injury and remains nondisabling for one year following time of injury. SM Motor Co. v. Mather, 117 Or App 176, 843 P2d 998 (1992)

Where claimant’s injury was initially disabling, it was subject to limitation of five years from first determination or first notice of closure. SM Motor Co. v. Mather, 117 Or App 176, 843 P2d 998 (1992)

Where injury was reclassified from nondisabling to disabling more than one year after injury and claimant failed to establish that injury became disabling within one year after injury date, claimant was subject to aggravation of claims limit of five years from injury date. Normandeau v. Aetna Casualty & Surety Co., 120 Or App 184, 851 P2d 217 (1993)

Aggravations are measured by same standard that made condition originally compensable. Fred Meyer, Inc. v. Farrow, 122 Or App 164, 857 P2d 189 (1993)

Claimant is not required to prove diminished capacity to work in order to pursue claim for additional medical services. Meyers v. Darigold, Inc., 123 Or App 217, 861 P2d 352 (1993), Sup Ct review denied

Once claimant establishes that compensable injury is material contributing cause to injury, employer claiming that off-the-job injury is major cause of aggravated condition has burden of proof. Fernandez v. M & M Reforestation, 124 Or App 38, 860 P2d 898 (1993); Asplundh Tree Expert Co. v. Hart, 132 Or App 494, 888 P2d 1082 (1995), Sup Ct review denied

Medical verification of inability to work must come from attending physician to trigger insurer obligation to commence payment of aggravation claim benefits. SAIF v. Christensen, 130 Or App 346, 882 P2d 125 (1994)

Claim must be accepted and classified as nondisabling before it can be in “nondisabling status.” Liberty Northwest Ins. Corp. v. Koitzsch, 140 Or App 194, 914 P2d 1102 (1996)

“Actual worsening” of compensable condition means worsening of pathological condition as determined by direct medical evidence, not by worsening of symptoms. SAIF v. Walker, 145 Or App 294, 930 P2d 230 (1996), aff’d 330 Or 102, 996 P2d 979 (2000)

1995 amendments did not remove requirement that claimant prove loss of earning capacity as element of unscheduled disability aggravation claim. Intel Corp. v. Renfro, 155 Or App 447, 963 P2d 173 (1998)

Increased symptomatology beyond waxing and waning contemplated by previous award may be relied upon by physician in determining whether underlying condition has actually worsened. SAIF v. Walker, 330 Or 102, 996 P2d 979 (2000)

“Objective findings” supporting claim for aggravation must, at least as prima facie matter, evince worsening of claimant’s condition. Liberty Northwest Insurance Corp. v. Stapleton, 192 Or App 312, 84 P3d 1116 (2004)

Claimant may request hearing on aggravation claim without perfecting that claim where insurer has denied claim on merits. Ake v. SAIF, 192 Or App 617, 87 P3d 673 (2004)

Where claimant experiences pathological changes, proof of aggravation does not require opinion of medical expert that changes are due to worsening of compensable condition. Johnson v. SAIF, 194 Or App 689, 96 P3d 830 (2004)

If worsened condition is established, worker is once again entitled to broader suite of medical services required by worker’s compensation statutes for conditions caused in material part by original compensable injury. Basin Tire Service, Inc. v. Minyard, 240 Or App 715, 249 P3d 127 (2011)

ATTY. GEN. OPINIONS

In general

Constitutionality of application, (1976) Vol 37, p 1079; procedural quality of provisions, (1976) Vol 37, p 1079

LAW REVIEW CITATIONS

In general

27 WLR 94 (1991); 32 WLR 217 (1996)

656.277

NOTES OF DECISIONS

Employer may accept aggravation claim without accepting injury as disabling. Rogers v. Hewlett-Packard Co., 153 Or App 436, 960 P2d 871 (1998)

Challenge of initial classification must be processed as aggravation claim if challenge is made more than one year following injury. Alcantar-Baca v. Liberty Northwest Insurance Corp., 161 Or App 49, 983 P2d 1038 (1999)

656.278

NOTES OF DECISIONS

Employer may not appeal board decision that neither increases nor decreases award. Morton v. N.W. Foundry, 36 Or App 259, 584 P2d 346 (1978), Sup Ct review denied

Legislature did not intend that a claimant’s appeal rights granted by ORS 656.268 should prematurely terminate when his aggravation rights expire and, when claim is opened during time claimant still has appeal rights, closure of that claim carries with it right of appeal whenever issued. Coombs v. SAIF, 39 Or App 293, 592 P2d 242 (1979)

In limiting right of appeal, “former award” refers to award made prior to exercise of own motion power. Christiani v. SAIF, 40 Or App 827, 596 P2d 621 (1979), Sup Ct review denied

Because claim was reopened during time claimant had right to appeal, closing order was not on board’s “own motion” and was therefore appealable. Carter v. SAIF, 52 Or App 1027, 630 P2d 397 (1981)

Board must explain conclusion when previous determinations are directly contrary. Wausau Ins. Co. v. Morris, 103 Or App 270, 796 P2d 1243 (1990)

Employer may not seek review of own motion order that does not increase award, even if determination is not based on merits of claim. SAIF v. Wheeler, 110 Or App 453, 823 P2d 434 (1992), Sup Ct review denied

Even though Workers’ Compensation Board’s award of benefits was erroneous, insurer was entitled to reimbursement under ORS 656.625. EBI Companies v. Dept. of Ins. and Finance, 114 Or App 356, 834 P2d 539 (1992), Sup Ct review denied

Board lacks authority to award vocational services or other unenumerated benefits on own motion claims. Harsh v. Harsco Corp., 123 Or App 383, 859 P2d 1178 (1993), Sup Ct review denied

Board has original jurisdiction to enforce own motion order. Orman v. SAIF, 131 Or App 653, 886 P2d 503 (1994)

Where worker has suffered worsening of compensable injury instead of new or omitted medical condition, worker may not obtain additional permanent disability benefits. Goddard v. Liberty Northwest Insurance Corp., 193 Or App 238, 89 P3d 1215 (2004)

Award of insurer-paid attorney fees is not increase in compensation award for purposes of appealability of order of Workers’ Compensation Board. Liberty Northwest Insurance Corp. v. Samel, 199 Or App 540, 112 P3d 414 (2005)

Under 1999 version of this section, Workers’ Compensation Board may not, on its own motion, suspend claimant’s temporary disability payments for failure to cooperate with physical therapy recommendations. Jordan v. SAIF, 343 Or 208, 167 P3d 451 (2007)

COMPLETED CITATIONS: Willamson v. SAIF, 6 Or App 95, 487 P2d 110 (1971)

LAW REVIEW CITATIONS: 32 WLR 217 (1996)

656.283

NOTES OF DECISIONS

Letter that did not specifically set out claimant’s address was nonetheless adequate request for hearing. Burkholder v. SAIF, 11 Or App 334, 502 P2d 1394 (1972)

Medical reports prepared by physician not available for cross-examination at hearing are admissible. Critofaro v. SAIF, 19 Or App 272, 527 P2d 412 (1974)

Claimant may request hearing on initial disability determination notwithstanding enrollment in ongoing vocational rehabilitation program. Minor v. Delta Truck Lines, 43 Or App 29, 602 P2d 288 (1979), Sup Ct review denied

Where claimant requested hearing on or about same date he filed claim and did not renew request after claim was denied, request on sole question of whether claim should be accepted was premature and therefore ineffective. Syphers v. K-W Logging, Inc., 51 Or App 769, 627 P2d 24 (1981), Sup Ct review denied

Court of Appeals properly relied on exhibit that was marked but not admitted as evidence where referee considered exhibit. Rivera v. R & S Nursery, 69 Or App 281, 684 P2d 1250 (1984)

“Lord Mansfield’s Rule” that, for establishing paternity, non-access of married party may not be testified to by the married parties, should not be applied in workers’ compensation hearings to exclude or ignore relevant evidence. Amos v. SAIF, 72 Or App 145, 694 P2d 998 (1985)

Because acceptance or denial of claim is not duty of noncomplying employer, employer could request hearing on compensability of claim without issuing denial. Horgen v. Martinez, 101 Or App 396, 790 P2d 1195 (1990)

Workers’ Compensation Board has authority to award attorney fees for legal services provided to client during director’s administrative review of dispute regarding vocational assistance. SAIF v. Severson, 105 Or App 67, 803 P2d 1203 (1990), modified 109 Or App 136, 817 P2d 1352 (1991)

Request for hearing is not jurisdictional, so failure of employer to file written request for hearing on particular issue was not preclusive where no objection was made at hearing. Salter v. SAIF, 108 Or App 717, 816 P2d 1208 (1991)

Request for hearing must be referable to particular denial. Guerra v. SAIF, 111 Or App 579, 826 P2d 1034 (1992)

Where Department of Insurance and Finance order on reconsideration was invalid, referee still had jurisdiction to review order. Pacheco-Gonzalez v. SAIF, 123 Or App 312, 860 P2d 822 (1993)

Referee has no authority to remand claim to Department of Insurance and Finance. Pacheco-Gonzalez v. SAIF, 123 Or App 312, 860 P2d 822 (1993)

Correct process is for director to informally investigate and issue order; then referee conducts hearing, develops record and decides based on facts in record whether director’s decision survives review; then board reviews based on record developed by referee. Colclasure v. Wash. Co. School Dist. No. 48-J, 317 Or 526, 857 P2d 126 (1993)

Physician request under ORS 656.245 for approval of noncompensable type of palliative care does not raise “question concerning a claim.” Hathaway v. Health Future Enterprises, 320 Or 383, 884 P2d 549 (1994); Nicholson v. Salem Area Transit, 320 Or 391, 884 P2d 864 (1994)

Requirement that evidence at appeal level be limited to evidence presented at reconsideration conditions ORS 656.287 right to introduce evidence at hearing. Rogue Valley Medical Center v. McClearen, 152 Or App 239, 952 P2d 1048 (1998), Sup Ct review denied

For mandatory reconsideration under ORS 656.268 to preclude further review, matter that claimant objects to must be manifest in notice of closure. Venetucci v. Metro, 155 Or App 559, 964 P2d 1090 (1998)

Issue that did not exist at time of reconsideration may be raised for first time at hearing. Crowder v. Alumaflex, 163 Or App 143, 986 P2d 1269 (1999)

Where witness testimony is type that generally does not involve issues of witness veracity or credibility, claimant does not have due process right to cross-examine witness. Logsdon v. SAIF, 181 Or App 317, 45 P3d 990 (2002), aff’d on other grounds, 336 Or 349, 84 P3d 119 (2004)

Same types of nonverified indicators of impairment that qualify as objective findings for purposes of determining compensability qualify as objective findings for purposes of determining extent of permanent disability. SAIF v. Drury, 202 Or App 14, 121 P3d 664 (2005), Sup Ct review denied

Person signing request for hearing “on behalf of” claimant need not be attorney. Havi Group LP v. Fyock, 204 Or App 558, 131 P3d 793 (2006)

Personal representative acting on behalf of deceased worker’s estate lacks standing to challenge claim resolution. Cato v. Alcoa-Reynolds Metals Co., 210 Or App 721, 152 P3d 981 (2007), Sup Ct review denied

LAW REVIEW CITATIONS: 32 WLR 217 (1996)

656.287

NOTES OF DECISIONS

This section does not mandate exclusion of report received by party less than 10 days before hearing. Peter Kiewit & Sons v. Leigh, 116 Or App 76, 840 P2d 1360 (1992)

Right to introduce evidence at hearing is conditioned by ORS 656.283 requirement that evidence at appeal level be limited to evidence presented at reconsideration. Rogue Valley Medical Center v. McClearen, 152 Or App 239, 952 P2d 1048 (1998), Sup Ct review denied

656.289

NOTES OF DECISIONS

Where court found bona fide dispute over compensability and approved settlement agreement between employee and employer, no “compensable claim” existed for which employee could later bring claim for aggravation of previous injury. Seeber v. Marlette Homes, 30 Or App 233, 566 P2d 926 (1977)

Thirty-day time period for appeal from referee’s order begins to run from date of original order and not from date of order correcting irrelevancy in original order. Chisholm v. SAIF, 277 Or 51, 559 P2d 511 (1977)

Whether settlement amount is proportionate to injury and cost incurred is irrelevant where bona fide dispute exists as to compensability. Greenwade v. SAIF, 41 Or App 697, 598 P2d 1265 (1979), Sup Ct review denied

Settlement entered into by one insurer and claimant on issue of responsibility after issuance of order under ORS 656.307 was invalid where there was dispute as to which insurer was responsible for claimant’s injury or condition. J.C. Compton Co. v. DeGraff, 52 Or App 317, 628 P2d 437 (1981), Sup Ct review denied, modified 52 Or App 1023, 630 P2d 395 (1981)

Subsequent injury to same body part does not create bona fide dispute as to claimant’s entitlement to future medical benefits for accepted original injury. EBI Companies v. Freschette, 71 Or App 526, 692 P2d 723 (1984), Sup Ct review denied

Referee cannot extend 30-day appeal period for order determining issues directly affecting claimant’s right to compensation where referee did not intend to reconsider any issue in such order. Farmers Ins. Group v. SAIF, 301 Or 612, 724 P2d 799 (1986)

Where disputed claims settlement agreement between claimant and his insurer provided, in part, that insurer would hold claimant harmless from outstanding medical bills for disputed psychiatric condition, claimant’s unilateral understanding that bill would be paid in full was not part of contract. EBI Companies v. Moore, 90 Or App 99, 750 P2d 1194 (1988)

Provision of health insurance contract requiring loan receipt agreement that insured worker would reimburse health insurance carrier directly for payments made for covered medical expenses was contrary to legislative policy that disputes between health insurance providers and workers’ compensation insurance carriers be settled by arbitration. Pacific Hospital Assn. v. Marchbanks, 91 Or App 459, 756 P2d 648 (1988)

Thirty-day deadline for issuance of order is not limitation on referee’s authority to withdraw or abate decision before time for appeal to Workers’ Compensation Board expires. Lyday v. Liberty Northwest Ins. Corp., 115 Or App 668, 839 P2d 756 (1992)

Where referee signed abatement order within 30-day period but did not mail it until time period had expired, date of abatement order was when it was mailed. Geer v. SAIF, 121 Or App 647, 855 P2d 1145 (1993)

Stipulated settlement agreement approved by administrative law judge is determination by administrative law judge regarding merits of claim and therefore allows for award of attorney fees if compensation was not disallowed or reduced. Deaton v. Hunt-Elder, 145 Or App 110, 928 P2d 992 (1996)

Disputed claim settlement may only dispose of claims that have been formally denied prior to date of settlement. Trevisan v. SAIF, 146 Or App 358, 932 P2d 1202 (1997)

Agreement that provides for claim to remain in denied status must be in form of disputed claim settlement, not stipulation. Simmons v. Lane Mass Transit District, 171 Or App 268, 15 P3d 568 (2000)

LAW REVIEW CITATIONS: 32 WLR 217 (1996)

656.295

NOTES OF DECISIONS

Where claimant does not deny receipt of first mailing of board’s order, a second and later mailing of another copy of the same order does not extend the time for appeal. Wise v. SAIF, 14 Or App 463, 513 P2d 1212 (1973)

Service of notice of appeal on claimant’s attorney is constructive notice to claimant. Schneider v. Emanuel Hosp., 20 Or App 599, 532 P2d 1146 (1975), Sup Ct review denied

Where there is no notice to Workmen’s Compensation Board to commence the judicial review process in prescribed time there is no jurisdiction. Zandbergen v. Johnson, 24 Or App 151, 544 P2d 587 (1976)

Symptoms arising after hearing constitute aggravation claim and are not cause for remand to take additional evidence. Holmes v. SAIF, 38 Or App 145, 589 P2d 1151 (1979)

Remedy for order not explaining claimant’s right to appeal is not to invalidate order, but to allow claimant hearing. Greenwade v. SAIF, 41 Or App 697, 598 P2d 1265 (1979), Sup Ct review denied

Where record on issue is adequate, de novo review by board permits disposition of case on grounds not raised by petition or cross-petition. Neely v. SAIF, 43 Or App 319, 602 P2d 1101 (1979), Sup Ct review denied

Board could not consider submitted material that was not part of record, because proper procedure to augment record is by remand. Brown v. SAIF, 51 Or App 389, 625 P2d 1351 (1981); Groshong v. Montgomery Ward Co., 73 Or App 403, 698 P2d 998 (1985)

Where compensation has been awarded, review is also available concerning reasonableness of attorney fee award. Neal’s Truck Stop v. Giger, 53 Or App 402, 632 P2d 464 (1981)

It was abuse of discretion for Workers’ Compensation Board to refuse to remand case to referee for consideration of additional evidence when evidence was not available to claimant at time of original hearing. Muffet v. SAIF, 58 Or App 684, 650 P2d 139 (1982)

Actual notice will not excuse failure to mail copies of review request unless actual notice occurs within time limit for mailing review request. Argonaut Insurance v. King, 63 Or App 847, 666 P2d 865 (1983)

Remand is available for case where information is available at time of hearing, but record is incompletely developed. Bailey v. SAIF, 296 Or 41, 672 P2d 333 (1983)

Although claimant may appeal final determination of part of claim, it does not necessarily follow that claimant must have petitioned for review within 30 days in order to preserve appellate challenge to board’s decision; claimant had option to appeal partial denial or await final determination of balance of claim. Ragan v. Fred Meyer, Inc., 73 Or App 363, 698 P2d 988 (1985)

Where claimant requesting review of referee’s order put letter requesting the review in the mail addressed to the proper party at the correct street address, but with incorrect zip code, service was adequate and delivery by Postal Service to zip code rather that street address did not nullify fact that claimant complied with requirement for requesting review. Kahl v. SAIF, 86 Or App 203, 738 P2d 999 (1987)

Workers’ compensation referee’s rulings on claims, which allegedly exceeded referee’s jurisdiction, was not redressable by mandamus because exclusive review of order was provided in Workers’ Compensation Law and constituted plain, speedy and adequate remedy. SAIF v. Johnson, 99 Or App 64, 781 P2d 374 (1989), Sup Ct review denied

Filing of petition for judicial review does not affect authority of Workers’ Compensation Board to withdraw order for purpose of reconsideration at request of party or on its own motion, provided board does so before order becomes final. SAIF v. Fisher, 100 Or App 288, 785 P2d 1082 (1990)

Where order denies attorney fees and appeal is not filed, board’s continuing jurisdiction over case does not permit review of fee issue. Orozco v. U & I Group, Inc., 103 Or App 634, 798 P2d 727 (1990)

Director’s disability standards do not apply where claimant does not establish worsening of underlying condition. Lewis v. McCracken Motor Freight, 108 Or App 32, 813 P2d 78 (1991)

Workers’ Compensation Board must express results of its evaluation of party’s factual and legal assertions in order for court to determine whether board erred in denying employer’s requests for board to reconsider order in light of newly developed evidence. Liberty Northwest Ins. Corp. v. Griggs, 112 Or App 44, 827 P2d 921 (1992)

Notice of appeal must be given to all parties to previous action whether or not appeal makes claim against all parties. Mosley v. Sacred Heart Hospital, 113 Or App 234, 831 P2d 721 (1992); Kelsey v. Drushella-Klohk, 128 Or App 53, 874 P2d 1349 (1994)

Date board’s decision becomes final if not appealed does not control date of finality of underlying litigation. SAIF v. VanLanen, 127 Or App 735, 873 P2d 1090 (1994)

Where notice of Workers’ Compensation Board decision is given to party, failure to provide notice to attorney of party does not toll deadline for filing appeal. Haskell Corp. v. Filippi, 152 Or App 117, 953 P2d 396 (1998), Sup Ct review denied

Where appeal is untimely, appellate court lacks authority to consider reason for untimeliness. Haskell Corp. v. Filippi, 152 Or App 117, 953 P2d 396 (1998), Sup Ct review denied

Board remand of case to administrative law judge requires compelling reason that: 1) concerns disability; 2) was not obtainable at time of hearing; and 3) is reasonably likely to affect outcome of case. SAIF v. Avery, 167 Or App 327, 999 P2d 1216 (2000), Sup Ct review denied

COMPLETED CITATIONS: Sahnow v. Fireman’s Fund Ins. Co., 3 Or App 164, 470 P2d 378 (1970), aff’d 260 Or 564, 491 P2d 997 (1971)

656.298

NOTES OF DECISIONS

Circuit court acquires jurisdiction if notification is actually received notwithstanding that notice was not dispatched by registered or certified mail. Stroh v. SAIF, 261 Or 117, 492 P2d 472 (1972)

Order is not appealable final order unless resolving rights of parties and all questions regarding claim without further proceedings. Hammond v. Albina Engine & Machine Works, Inc., 13 Or App 156, 509 P2d 56 (1973); Mendenhall v. SAIF, 16 Or App 136, 517 P2d 706 (1974), Sup Ct review denied

Where claimant does not deny receipt of first mailing of board’s order, second and later mailing of another copy of the same order does not extend time for appeal. Wise v. SAIF, 14 Or App 463, 513 P2d 1212 (1973)

Defect in appeal notice content does not deprive court of jurisdiction. Stevens v. SAIF, 20 Or App 412, 531 P2d 921 (1975)

Time limit for serving notice of appeal is jurisdictional matter. Zandbergen v. Johnson, 24 Or App 151, 544 P2d 587 (1976)

Sending of notice by means other than registered or certified mail is ineffective to establish jurisdiction unless actually received. Stevens v. SAIF, 27 Or App 87, 555 P2d 480 (1976)

Order continuing temporary disability payments was not final and appealable order. Beck v. Oregon Steel Mills, 36 Or App 581, 585 P2d 37 (1978); Jones v. SAIF, 49 or App 543, 619 P2d 1342 (1980)

Award of attorney fees by board may be contested on appeal without prior objection to board. Bentley v. SAIF, 38 Or App 473, 590 P2d 746 (1979)

Service on director of Workers’ Compensation Department in manner specified by this section is adequate service on the Workers’ Compensation Board. Boyce v. Sambo’s Restaurants, 39 Or App 615, 593 P2d 1178 (1979)

Authority under ORS 656.593 to resolve conflicts concerning balance of third party recovery is reviewable as matter concerning claim. Schlecht v. SAIF, 60 Or App 449, 653 P2d 1284 (1982)

Court of Appeals lacks jurisdiction to hear appeal if petitioner fails to give notice to all parties that appeared in review proceedings. Zurich Ins. Co. v. Diversified Risk Management, 300 Or 47, 706 P2d 178 (1985)

Reference to conducting of review as provided in specific subsections of ORS 183.482 does not authorize remand for further evidence taking as provided under related subsection of ORS 183.482. United Foam Corp. v. Whiddon, 92 Or App 492, 758 P2d 435 (1988)

Board is not required to explain its rejection of referee’s express credibility findings. Erck v. Brown Oldsmobile, 311 Or 519, 815 P2d 1251 (1991)

Board is not required to defer to medical opinion of treating physician. Dillon v. Whirlpool Corp., 172 Or App 484, 19 P3d 951 (2001)

Failure to serve copy of petition for judicial review on party within time allowed for commencing review is not jurisdictional defect. Liberty Northwest Insurance Corp. v. Spivey, 197 Or App 67, 104 P3d 640 (2005)

COMPLETED CITATIONS: Sahnow v. Fireman’s Fund Ins. Co., 3 Or App 164, 470 P2d 378 (1970), aff’d 260 Or 564, 491 P2d 997 (1971); Blisserd v. SAIF, 6 Or App 111, 486 P2d 1312 (1971)

656.307

NOTES OF DECISIONS

Where more than one injury is capable of causing temporary total disability, proration of benefits between responsible parties is appropriate. Jackson v. SAIF, 7 Or App 109, 490 P2d 507 (1971)

Where claimant failed to timely appeal from denial of aggravation claim by current insurer, insurer covering initial injury was not entitled to reimbursement from current insurer because initial-injury insurer’s claim for reimbursement was derivative of claimant right. Saltmarsh v. A. T. Industries, Inc., 35 Or App 763, 583 P2d 4 (1978), Sup Ct review denied

Where issue is allocation of responsibility among insurers rather than compensability of claim, claimant need not appeal nonresponsibility finding in favor of particular insurer to protect claim right in event of later reallocation. Hanna v. McGrew Bros. Sawmill, 44 Or App 189, 605 P2d 724 (1980), modified45 Or App 757, 609 P2d 422 (1980)

Settlement entered into under ORS 656.289 by one insurer and claimant on issue of responsibility after issuance of order was invalid where there was dispute as to which insurer was responsible for claimant’s injury or condition. J.C. Compton Co. v. DeGraff, 52 Or App 317, 628 P2d 437 (1981), Sup Ct review denied, as modified by 52 Or App 1023, 630 P2d 895 (1981)

Penalties or attorney fees are not available where insurer unreasonably delays request to designate paying agent. EBI Companies v. Thomas, 66 Or App 105, 672 P2d 1241 (1983)

Where one party accepts claim after denial by another party, requirement of determination of responsible paying party is satisfied and department has authority to order payment of reimbursement for interim compensation. Liberty Northwest Ins. Corp. v. SAIF, 99 Or App 729, 784 P2d 123 (1989)

Notified insurer that knows of potential dispute over responsibility for claim has obligation to join other potentially responsible insurers and may not avoid responsibility by failing to join other insurers. Dennis Uniform Manufacturing v. Teresi, 115 Or App 248, 837 P2d 984 (1992), modified 119 Or App 447, 851 P2d 620 (1993)

Insurer acquiescence to designation of paying agent does not constitute acceptance of claim. Taylor v. Masonry Builders, Inc., 127 Or App 230, 872 P2d 442 (1994), Sup Ct review denied

Attorney fee limitation under ORS 656.308 does not apply in determining reasonable attorney fee for claimant’s attorney under this section. Dean Warren Plumbing v. Brenner, 150 Or App 422, 946 P2d 356 (1997)

Administrative system for assigning claim payment responsibility does not divest circuit court of jurisdiction over unjust enrichment action arising out of payment on mistakenly accepted claim. Specialty Risk Services v. Royal Indemnity Co., 213 Or App 620, 164 P3d 300 (2007)

LAW REVIEW CITATIONS: 23 WLR 441, 457 (1987); 24 WLR 363 (1988); 32 WLR 217 (1996)

656.308

NOTES OF DECISIONS

If second accidental injury described under ORS 656.005 is not major contributing cause of disability or need for treatment, employer during first compensable injury remains responsible. SAIF v. Drews, 318 Or 1, 860 P2d 254 (1993)

If second accidental injury described under ORS 656.005 is major contributing cause of disability or need for treatment, responsibility for combined condition shifts to employer during second injury. SAIF v. Drews, 318 Or 1, 860 P2d 254 (1993)

Last injurious exposure rule is not affected by this section where initial claim rather than accepted claim is in issue. Bennett v. Liberty Northwest Ins. Corp., 128 Or App 71, 875 P2d 1176 (1994); SAIF v. Yokum, 132 Or App 18, 887 P2d 380 (1994)

Within context of shifting employer responsibility, “compensable injury” refers to injury that resulted in accepted claim. SAIF v. Yokum, 132 Or App 18, 887 P2d 380 (1994)

Under version in effect prior to 1995 amendment, failure of claimant to file claim against other potentially liable insurer within 60 days did not bar claim as untimely. Motel 6 v. McMasters, 135 Or App 583, 899 P2d 1212 (1995); Norstadt v. Murphy Plywood, 148 Or App 484, 941 P2d 1030 (1997), modified 150 Or App 245, 945 P2d 654 (1997), Sup Ct review denied

Where initial employer is determined to be not responsible for subsequent injury, application of last injurious exposure rule to assess liability is permissible. Barrett Business Services v. Williams, 148 Or App 1, 939 P2d 50 (1997)

1995 amendments eliminating obligation to issue disclaimer and changing time limit for issuing denial are not retroactively applicable to claims filed before amendment date. Norstadt v. Murphy Plywood, 148 Or App 484, 941 P2d 1030 (1997), modified 150 Or App 245, 945 P2d 654 (1997), Sup Ct review denied

Under pre-1995 version of statute, employer obligation to disclaim responsibility is not dependent upon compensability of injury. Garibay v. Barrett Business Services, 148 Or App 496, 941 P2d 1036 (1997)

Maximum limit on attorney fees for finally prevailing against responsibility denial is limit on total fees awarded at all stages of case. Liberty Northwest Ins. Corp. v. Gordineer, 150 Or App 136, 945 P2d 107 (1997)

Attorney fee limitation in responsibility denial cases is not applicable to attorney fees awarded under ORS 656.307. Dean Warren Plumbing v. Brenner, 150 Or App 422, 946 P2d 356 (1997)

Attorney fee limitation is applicable to responsibility portion of case regardless of whether responsibility is sole issue in case. Foster-Wheeler Constructors, Inc. v. Smith, 151 Or App 155, 947 P2d 1144 (1997)

Where claimant has compensable claim caused by conditions at single employer, most recent insurer is responsible unless insurer proves: 1) workplace conditions at time it insured employer could not have caused claimant’s disease; or 2) disease was caused solely by conditions at time coverage was under previous insurer. Roseburg Forest Products v. Long, 325 Or 305, 937 P2d 517 (1997)

Evidence that previous employment was major cause, but not sole cause, of injury does not shift responsibility for injury to previous employer. Safeco Insurance Co. v. Victoria, 154 Or App 574, 963 P2d 83 (1998), Sup Ct review denied

Where factual findings establish compensability under last injurious exposure rule, rule must be followed regardless of whether claimant has invoked it. Gosda v. J. B. Hunt Transportation, 155 Or App 120, 962 P2d 777 (1998)

Where employer accepts combined condition involving new injury and preexisting compensable injury, employer may deny combined condition under ORS 656.262 if new injury ceases to be major contributing cause, but will remain subject to shifted responsibility for preexisting injury. Barrett Business Services v. Morrow, 164 Or App 628, 993 P2d 179 (1999)

Where claimant has compensable claim caused by conditions at multiple employers, most recent employer is responsible unless employer proves: 1) workplace conditions at time it employed claimant could not have caused claimant’s disease; or 2) disease was caused solely by conditions at time coverage was under previous employer. Liberty Northwest Insurance Corp. v. Kaleta, 173 Or App 82, 20 P3d 256 (2001)

Where employer responsible for initial occupational disease claim is not subject to Oregon law, treatment of claim filed against Oregon employer for worsening of disease is same as for claim against Oregon employer for initial injury. SAIF v. Henwood, 176 Or App 431, 31 P3d 1096 (2001), Sup Ct review denied

656.310

NOTES OF DECISIONS

Report by out-of-state physician is not admissible unless physician is “treating or examining doctor.” Downey v. Halvorson-Mason, 20 Or App 593, 532 P2d 807 (1975), Sup Ct review denied

Where first insurer offered written medical reports and second insurer made arrangements for doctor to appear at hearing for cross-examination, first insurer was responsible for paying fees and expenses incident to doctor’s appearance as witness. Hanna v. McGrew Bros. Sawmill, 44 Or App 189, 605 P2d 724 (1980), modified 45 Or App 757, 609 P2d 422 (1980)

Specific allowance of medical, surgical and hospital reports does not exclude introduction of other types of reports. Stevens v. Champion International, 44 Or App 587, 606 P2d 674 (1980)

Statements in medical reports constitute prima facie evidence of medical matters only, not causation issues. Zurita v. Canby Nursery, 115 Or App 330, 838 P2d 625 (1992), Sup Ct review denied

656.313

NOTES OF DECISIONS

Penalty for unreasonably resisting payment is not “compensation” and need not be paid pending appeal. Reed v. Del Chemical, 26 Or App 733, 554 P2d 586 (1976), Sup Ct review denied

Determination of extent of disability will not be stayed pending appeal of compensability. SAIF v. Maddox, 295 Or 448, 667 P2d 529 (1983)

Provision that claimant need not repay compensation paid pending review applies to attorney fees paid out of compensation award. SAIF v. Gatti, 72 Or App 106, 694 P2d 1020 (1985), Sup Ct review denied

“Compensation” includes interim compensation. Georgia-Pacific v. Hughes, 305 Or 286, 751 P2d 775 (1988)

Order requiring payments of interim compensation was not stayed pending review, but penalties could be assessed only for failure to compensate for time claimant was absent from work. Georgia-Pacific v. Hughes, 305 Or 286, 751 P2d 775 (1988)

Reference to requests for “reviews or appeals” is not intended to exclude other proceeding and permit employer to terminate compensation payments pending hearing on determination order. Georgia-Pacific v. Piwowar, 305 Or 494, 753 P2d 948 (1988)

Employer filing appeal of disability award need not also appeal subsequent determination order to stay payment. Diamond Fruit Growers v. Goss, 120 Or App 390, 852 P2d 915 (1993), Sup Ct review denied; SAIF v. VanLanen, 127 Or App 346, 873 P2d 1086 (1994), Sup Ct review denied

Request for reconsideration of determination order by Department of Insurance and Finance is not same as review of order on reconsideration and therefore does not stay payment of compensation. Sisters of Providence v. East, 122 Or App 366, 858 P2d 155 (1993)

Employee has unconditional right to receive temporary disability benefits pending employer appeal of reconsideration order awarding temporary disability. Anodizing, Inc. v. Heath, 129 Or App 352, 879 P2d 218 (1994); Foster Wheeler Constructors, Inc. v. Parker, 148 Or App 6, 939 P2d 52 (1997)

Where payment of previously stayed benefits was by monthly installments, interest on stayed benefit amount did not continue to accrue on outstanding installment balance. Hinkley v. Oregon State Police, 131 Or App 382, 885 P2d 756 (1994)

Requirement that employer pay temporary disability benefits accruing from date of order being appealed does not create independent entitlement to benefits. Liberty Northwest Ins. Corp. v. Cotner, 148 Or App 28, 939 P2d 62 (1997), Sup Ct review denied

Substantive temporary disability benefit is made explicit and unconditional entitlement by statute or administrative rule, while procedural temporary disability is conditional, arising solely from vagaries of claim processing. Atchley v. GTE Metal Erectors, 149 Or App 581, 945 P2d 557 (1997), Sup Ct review denied

656.319

See also annotations under ORS 656.262 (Notice; hearing requests).

NOTES OF DECISIONS

Failure of claimant’s attorney to file request for hearing is not excusable for good cause unless attorney’s reason for failing to file would be good cause if attributed to claimant. Sekermestrovich v. SAIF, 280 Or 723, 573 P2d 275 (1977); EBI Companies v. Lorence, 72 Or App 75, 695 P2d 61 (1985), Sup Ct review denied; Mendoza v. SAIF, 123 Or App 349, 859 P2d 582 (1993), Sup Ct review denied

Timely filing of request for hearing requires that request be received by board within time limit, not merely mailed. Bergeron v. Ontario Rendering Co., 34 Or App 1025, 580 P2d 216 (1978), Sup Ct review denied

“Notification” of denial occurs on date denial notice is deposited in mail, not date shown on body of denial notice. Madewell v. Salvation Army, 49 Or App 713, 620 P2d 953 (1980)

Where failure to make timely request for hearing was attributable to error by attorney’s employee not responsible for recognizing or correctly handling notice of decision, board was not precluded from finding that error was excusable neglect. Brown v. EBI Companies, 289 Or 455, 616 P2d 457 (1980); Ogden Aviation v. Lay, 142 Or App 469, 921 P2d 1321 (1996)

Where claimant requested hearing on or about same date claimant filed claim and did not renew request after claim was denied, request on sole question of whether claim should be accepted was premature and therefore ineffective. Syphers v. K-W Logging, Inc., 51 Or App 769, 627 P2d 24 (1981), Sup Ct review denied

Claimant’s request for hearing was timely filed where request followed all three determination orders for same claim within one year of issuance, even though request for hearing referred only to first two orders. Shaw v. SAIF, 63 Or App 239, 662 P2d 805 (1983), Sup Ct review denied

Where claimant mailed hearing request on 60th day, after insurer’s claims supervisor lead him to believe that that would protect his rights, and Workers’ Compensation Board received request on 61st day, there was no lack of diligence by claimant or prejudice to other party and late filing was excused by good cause. Voorhies v. Wood, Tatum, Mosser, 81 Or App 336, 725 P2d 405 (1986), Sup Ct review denied

Test for determining whether good cause exists has been equated to standard of “mistake, inadvertence, surprise or excusable neglect” recognized under former ORS 18.160 and present ORCP 71B. Voorhies v. Wood, Tatum, Mosser, 81 Or App 336, 725 P2d 405 (1986), Sup Ct review denied

Purported backup denial by employer did not require response where claim had been ordered accepted following hearing. Knapp v. Weyerhaeuser Co., 93 Or App 670, 763 P2d 746 (1988), Sup Ct review denied

Claimant had good cause for filing late where insurer had previously engaged in regular correspondence with attorney but mailed denial to claimant only. Cowart v. SAIF, 94 Or App 288, 765 P2d 226 (1988)

Where claimant did not receive employer’s denial letter until 60-day period had run, claimant had good cause for filing hearing request late. Giusti Wine Co. v. Adams, 102 Or App 329, 794 P2d 451 (1990)

Where employer treated letter from claimant’s attorney as request for hearing, employer could not argue that claimant had failed to expressly request hearing. Morelock Wood Products v. Baur, 105 Or App 371, 804 P2d 519 (1991)

Where claimant reasonably left legal pursuit of claim to attorney, employer was aware that claimant was represented by counsel, but employer failed to mail notice of denial to attorney, claimant demonstrated “good cause” for failure to request hearing within 60 days. Freres Lumber Co. v. Jegglie, 106 Or App 27, 806 P2d 164 (1991)

Request for hearing must be referable to particular denial. Guerra v. SAIF, 111 Or App 579, 826 P2d 1034 (1992)

Referee has subject matter jurisdiction over case even if request for hearing is subject to denial as untimely. SAIF v. Roles, 111 Or App 597, 826 P2d 1039 (1992), Sup Ct review denied

Appellate court review of good cause determination is limited to seeing whether determination is within range of discretion delegated to board. Ogden Aviation v. Lay, 142 Or App 469, 921 P2d 1321 (1996)

Mental problem that is less than incompetency can satisfy requirement of “good cause” for filing during period after 60 days and not later than 180 days. SAIF v. Avery, 167 Or App 327, 999 P2d 1216 (2000), Sup Ct review denied

Where insurer accepts claim but fails to process claim to closure, “inaction” triggering two-year time limit for requesting hearing occurs when insurer fails to timely respond to claimant’s written request for closure. French-Davis v. Grand Central Bowl, 186 Or App 280, 62 P3d 865 (2003)

LAW REVIEW CITATIONS: 32 WLR 217 (1996)

656.325

NOTES OF DECISIONS

Since licensed clinical psychologist is not doctor or physician, claimant had no duty to submit to psychological examination to determine whether or not his disease was occupational and compensable. Frey v. Willamette Ind., Inc., 13 Or App 449, 509 P2d 861 (1973), Sup Ct review denied

Where, on original claim, court held that employee’s refusal to undergo myelogram and possible resulting surgery was reasonable, employee’s refusal to submit to myelography did not bar recovery for aggravation of initial injury. Waldroup v. J. C. Penney Company, 30 Or App 443, 567 P2d 576 (1977)

Refusal to submit to medical treatment is not absolute bar to recovery, but is factor considered in determining what treatment is “reasonably essential” Waldroup v. J. C. Penney Company, 30 Or App 443, 567 P2d 576 (1977)

Where appeal period has run, insurer may seek redetermination of award where there is available medical or other evidence that injured worker’s condition has improved. Bentley v. SAIF, 38 Or App 473, 590 P2d 746 (1979)

Injured party has duty to mitigate damages and therefore downrating of claimant’s disability to reflect failure to lose excess weight was proper. Nelson v. EBI Companies, 64 Or App 16, 666 P2d 1360 (1983), aff’d 296 Or 246, 674 P2d 596 (1984)

Claimant may not be denied benefits for reasonable refusal of treatment essential to promote recovery. Reef v. Willamette Industries, 65 Or App 366, 671 P2d 1197 (1983), Sup Ct review denied

Because temporary benefits are compensation for loss of wages, worker suffering aggravation after retirement does not qualify. Cutright v. Weyerhaeuser, 299 Or 290, 702 P2d 403 (1985)

Where claimant suffers aggravation while in workforce, claimant is entitled to temporary total disability benefits until medically stationary and released for work even though claimant voluntarily withdraws from workforce prior to closure of claim. Weyerhaeuser Co. v. Kepford, 100 Or App 410, 786 P2d 745 (1990), Sup Ct review denied

Insurer may seek board review of director’s order re-examining award of permanent total disability. Lehman v. SAIF, 107 Or App 207, 811 P2d 924 (1991)

Injury incurred during compelled medical examination requested by employer is analyzed as independent work-related injury, not consequence of original compensable injury. Robinson v. Nabisco, Inc., 331 Or 178, 11 P3d 1286 (2000)

Worker “entitled to receive compensation” includes worker whose claim has been denied and who is pursuing challenge to denial. Darling v. Johnson Controls Battery Group, Inc., 188 Or App 190, 70 P3d 894 (2003), Sup Ct review denied

Whether employer has written policy of offering modified work to injured workers is determined as of time physician approves modified job that would have been offered to worker, not time of worker injury. Morales v. SAIF, 196 Or App 693, 103 P3d 654 (2004), aff’d 339 Or 574, 124 P3d 1233 (2005)

Requirement that employer cease payment of temporary total disability benefits under specified circumstances applies to both initial and aggravation claims. Morales v. SAIF, 196 Or App 693, 103 P3d 654 (2004), aff’d 339 Or 574, 124 P3d 1233 (2005)

Suspension sanction for claimant failure to cooperate with insurer medical examination prevents using failure as basis for denying claim under ORS 656.262. Lewis v. CIGNA Insurance Co., 339 Or 342, 121 P3d 1128 (2005)

Where worker is terminated following return to modified employment, requirement to pay temporary total disability benefits until attending physician approves modified employment does not apply. SAIF v. Vivanco, 216 Or App 210, 173 P3d 160 (2007)

ATTY. GEN. OPINIONS: Workers’ Compensation Board’s authority to order payment of claimant’s attorney fees, (1978) Vol 38, p 2069

656.327

NOTES OF DECISIONS

Director has exclusive power to review appropriateness of ongoing or proposed medical treatment. Liberty Northwest Ins. Corp. v. Yon, 137 Or App 413, 904 P2d 645 (1995)

Contested case hearing is not prerequisite to appellate review of director’s decision. Quaker State Oil Co. v. Taskinen, 147 Or App 245, 935 P2d 1229 (1997), Sup Ct review denied

Requirement for contested case hearing before Director of Department of Consumer and Business Services pursuant to [former] ORS 183.310 to 183.550 is modified by other restrictions on hearing, therefore full contested case hearing is not required. O’Neil v. National Union Fire, 152 Or App 497, 954 P2d 847 (1998), Sup Ct review denied

Director of Department of Consumer and Business Services may limit time available for employer to request administrative review of proposed treatment. Roseburg Forest Products v. Humbert, 212 Or App 285, 158 P3d 21 (2007), Sup Ct review denied

LAW REVIEW CITATIONS: 32 WLR 217 (1996)

656.340

NOTES OF DECISIONS

Fixing maximum fees is within Department of Insurance and Finance’s authority and determination that established rates are reasonable was within agency’s range of discretion. Oregon Assn. of Rehab. Prof. v. Dept. of Ins., 99 Or App 613, 783 P2d 1014 (1989)

Vocational assistance is not available where claim for new medical condition is initiated after worker’s aggravation rights have expired. Lloyd v. American Manufacturers Mutual Insurance, 202 Or App 592, 123 P3d 357 (2005), Sup Ct review denied

Director of Department of Consumer and Business Services may establish prerequisites for vocational assistance eligibility that supplement statutory conditions for eligibility. Carreon v. Commerce and Industry Insurance Co., 233 Or App 440, 226 P3d 73 (2010)

LAW REVIEW CITATIONS: 32 WLR 217 (1996)

656.382

NOTES OF DECISIONS

Provision for awarding attorney fees where request for hearing, review or appeal is initiated by employer or insurer does not prevent award where employee alleging unreasonable employer behavior requests hearing. Wingfield v. Nat. Biscuit Co., 8 Or App 408, 494 P2d 905 (1972)

Percentage of penalty for delay could not be designated as reasonable attorney fee because penalty and attorney fee must be separately calculated. Williams v. SAIF, 31 Or App 1301, 572 P2d 658 (1977)

Unintentional delay in payment of interim compensation is unreasonable resistance to payment since requirement is that payment be made promptly. Williams v. SAIF, 31 Or App 1301, 572 P2d 658 (1977)

Reduction in attorney fee award is not reduction in compensation awarded claimant. Mobley v. SAIF, 58 Or App 394, 648 P2d 1357 (1982)

Initiation of request encompasses raising issues that would otherwise not be dealt with by reviewing body, including award challenged by employer on cross appeal. Teel v. Weyerhaeuser Co., 294 Or 588, 660 P2d 155 (1983); Littleton v. Weyerhaeuser Co., 93 Or App 659, 763 P2d 742 (1988); Kordon v. Mercer Industries, 308 Or 290, 778 P2d 958 (1989)

Where compensation has been ordered, claimant seeking award of attorney fees must establish only that insurer unreasonably resisted ordered payment, not that claimant is prevailing party on appeal. Gray v. SAIF, 70 Or App 313, 689 P2d 345 (1984)

Workers’ Compensation claimant is not entitled to award of attorney fees for preparing and filing response to petition for Supreme Court review that is not allowed. SAIF v. Curry, 297 Or 504, 686 P2d 363 (1984)

Claimant was entitled to penalty of attorney fees because of delay in payment of interim compensation on aggravation claim notwithstanding later determination that original claim closure was premature. O’Dell v. SAIF, 79 Or App 294, 719 P2d 52 (1986)

Attorney fees are not “compensation.” Dotson v. Bohemia, Inc., 80 Or App 233, 720 P2d 1345 (1986), Sup Ct review denied

Claimant successful in defending award of attorney fees and penalties but unsuccessful in defending award of temporary total and permanent partial disability is not entitled to attorney fees as prevailing party on appeal. Saxton v. SAIF, 80 Or App 631, 723 P2d 355 (1986), Sup Ct review denied

Reimbursement of claimant’s attorney fees is available where determination of compensability was at issue rather than award of compensation or benefits. Shoulders v. SAIF, 300 Or 606, 716 P2d 751 (1986)

Where award involves multiple conditions, each condition must be viewed separately and attorney fees awarded only for cost of defending those conditions for which award was not disallowed or reduced. Shoulders v. SAIF, 300 Or 606, 716 P2d 751 (1986); Roseburg Forest Products v. Boqua, 147 Or App 197, 935 P2d 478 (1997)

Insurer’s refusal to accede to issuance of paying agent order resulting in claimant’s not receiving compensation for already accepted claim constituted unreasonable resistance to payment of compensation. D Maintenance Co. v. Mischke, 84 Or App 218, 733 P2d 903 (1987), Sup Ct review denied

Claimant was not entitled to insurer-paid attorney fees in review proceeding to determine which employer was responsible for claim because right to compensation on underlying claim was never at risk. Anfora v. Liberty Communications, 88 Or App 30, 744 P2d 265 (1987); Howard v. Willamette Poultry, 101 Or App 584, 792 P2d 447 (1990)

Where employer promptly accepted claimant’s claim as nondisabling and paid medical bills but failed to close claimant’s nondisabling claim, since there was no delay in payment of compensation, Workers’ Compensation Board was without statutory authority to authorize penalty under this section and ORS 656.382. SAIF Corporation v. Wilson, 95 Or App 748, 770 P2d 972 (1989)

Court of Appeals standard of review for board award of attorney fees is review for abuse of discretion. Weyerhaeuser Co. v. Fillmore, 98 Or App 567, 779 P2d 1102 (1989), Sup Ct review denied

“Cross-request for review” is encompassed by words “request for review” in this section. Kordon v. Mercer Industries, 308 Or 290, 778 P2d 958 (1989)

Attorney fees provisions under this chapter are incorporated within Inmate Injury Act, ORS 655.505 to 655.550. Dept. of Justice v. Spear, 308 Or 594, 783 P2d 998 (1989)

Claimant is not entitled to attorney fees when employer or insurer petition for review is dismissed without finding on merits. Liberty Northwest Ins. Corp. v. McKellips, 100 Or App 549, 786 P2d 1321 (1990); Terlouw v. Jesuit Seminary, 101 Or App 493, 790 P2d 1215 (1990), Sup Ct review denied; Wise v. Gary-Adams-Trucking, 106 Or App 654, 809 P2d 715 (1991)

When awarding attorney fees, board’s explanation must be detailed enough to show factors considered and that there is reasonable basis for award. Diamond Fruit Growers v. Davies, 103 Or App 280, 796 P2d 1248 (1990)

Where compensation had been paid in full prior to hearing, other actions by insurer could not result in award of attorney fees for unreasonably resisting payment. Aetna Casualty v. Jackson, 108 Or App 253, 815 P2d 713 (1991); SAIF v. Condon, 119 Or App 194, 850 P2d 382 (1993), Sup Ct review denied

Award of attorney fees under this section requires that: 1) employer initiate request for hearing to obtain disallowance or reduction in claimant’s award of compensation; 2) claimant’s attorney perform legal services in defending award; and 3) referee find on merits that claimant’s award should not be disallowed or reduced. Strazi v. SAIF, 109 Or App 105, 817 P2d 1348 (1991)

Request for offset of overpayment does not permit award of attorney fees because it is not attempt to disallow or reduce compensation. Strazi v. SAIF, 109 Or App 105, 817 P2d 1348 (1991)

If claim is compensable, failure to comply with discovery requirements may be unreasonable resistance to payment of compensation and justify attorney fees, even without evidence that noncompliance delayed acceptance of claim. Boehr v. Mid-Willamette Valley Food, 109 Or App 292, 818 P2d 1297 (1991)

To determine whether board can impute knowledge of supervisors to employer for purposes of determining whether denial of claim was reasonable, board must first determine scope of supervisor’s authority. Tri-Met, Inc. v. Odighizuwa, 112 Or App 159, 828 P2d 468 (1992)

Where claimant receives penalty award under ORS 656.262, claimant is not entitled to additional award for attorney fees. Martinez v. Dallas Nursing Home, 114 Or App 453, 836 P2d 147 (1992), Sup Ct review denied; Oliver v. Norstar, Inc., 116 Or App 333, 840 P2d 1382 (1992); Corona v. Pacific Resource Recycling, 125 Or App 47, 865 P2d 407 (1993)

Award of penalty under compensation increase and disability level criteria of ORS 656.268 does not establish that employer unreasonably resisted payment of compensation. Nero v. City of Tualatin, 142 Or App 383, 920 P2d 570 (1996)

Attorney fees are authorized only when employer or insurer initiates review at level at which award of fees is requested. Santos v. Caryall Transport, 171 Or App 467, 17 P3d 509 (2000), Sup Ct review denied

Where previous employer has not accepted claim, subsequent employer’s attempt to shift responsibility for injury is challenge to compensability, for which attorney fees may be awarded. Wal-Mart Stores, Inc. v. Climer, 173 Or App 282, 21 P3d 660 (2001)

Reclassification of injury from nondisabling to disabling is not award of compensation entitling claimant to attorney fees. Express Services, Inc. v. Conradson, 180 Or App 534, 43 P3d 1164 (2002), Sup Ct review denied

Where compensation has been paid but not “awarded,” insurer is not required to pay attorney fees to claimant prevailing at hearing. Reynolds v. Hydro Tech, Inc., 182 Or App 488, 49 P3d 827 (2002)

Employer resistance to processing of claim for which only medical bills are outstanding may support award of attorney fees. Tri-Met, Inc. v. Wolfe, 192 Or App 556, 86 P3d 111 (2004)

Tribunal to which claim is remanded may not award attorney fees if merely performing ministerial act of administering decision by remanding tribunal. SAIF v. Santos, 194 Or App 289, 94 P3d 906 (2004)

Order that does not award compensation or create automatic entitlement to benefits is not grounds for awarding attorney fees. SAIF v. Terrien, 221 Or App 671, 191 P3d 735 (2008)

ATTY. GEN. OPINIONS: Board’s authority to order payment of claimant’s attorney fees, (1978) Vol 38, p 2069

LAW REVIEW CITATIONS: 27 WLR 110 (1991)

656.386

NOTES OF DECISIONS

Attorney fees are available for prevailing on aggravation claim to same extent as available for original injury claim. Standley v. SAIF, 8 Or App 429, 495 P2d 283 (1972)

Rejected claim is not required to be original claim filed in regard to injury to qualify for attorney fee award. Cavins v. SAIF, 272 Or 162, 536 P2d 426 (1975)

Party that creates need for claimant to establish compensability of claim at hearing level or board level must pay claimant’s attorney fees if claimant prevails. Hanna v. McGrew Bros Sawmill, 45 Or App 757, 609 P2d 422 (1980); Dennis Uniform Manufacturing v. Teresi, 115 Or App 248, 837 P2d 984 (1992), modified 119 Or App 447, 851 P2d 620 (1993); Safeway Stores, Inc. v. Hayes, 119 Or App 319, 850 P2d 405 (1993)

Where employer issued partial denial disputing causation, denied condition constituted separate claim from accepted condition for purposes of awarding attorney fee. Ohlig v. FMC Marine & Rail Equipment Div., 291 Or 586, 633 P2d 1279 (1981)

Board lacks own motion authority to reduce award of attorney fees. Brooks v. D & R Timber, 55 Or App 688, 639 P2d 700 (1982)

Reasonable attorney fee includes payment for efforts in proceedings at earlier level of review. Hubble v. SAIF, 57 Or App 513, 647 P2d 474 (1982), Sup Ct review denied; Larson v. Brooks-Scanlon, 57 Or App 561, 647 P2d 934 (1982), Sup Ct review denied

Claimant is entitled to attorney fees where claimant prevailed as full-time employee over insurer partial denial based on status as part-time employee. Mission Insurance Co. v. Miller, 73 Or App 159, 697 P2d 1382 (1985)

Claimant was not entitled to attorney fees where insurer rather than claimant initiated review by board from order accepting rather than denying claim. Shoulders v. SAIF, 300 Or 606, 716 P2d 751 (1986)

Proceeding to determine responsibility among employers is not hearing on denied claim, so claimant may not be awarded attorney fees for initiating proceeding. Cascade Corporation v. Rose, 92 Or App 663, 759 P2d 1127 (1988); Multnomah County School Dist. v. Tigner, 113 Or App 405, 833 P2d 1294 (1992)

It was error to award attorney fees because employer never denied original claim or acted unreasonably in following department’s order to suspend payment of benefits. Beebe v. Phibbs Logging & Cutting, 94 Or App 542, 755 P2d 1258 (1988)

Where employer sought review by Workers’ Compensation Board but withdrew its request before board considered case, claimant is not entitled to attorney fees because there is no statutory authority for such award. Liberty Northwest Ins. Corp. v. McKellips, 100 Or App 549, 786 P2d 1321 (1990)

Claimant is not entitled to attorney fees on board review unless right to compensation is at risk. Dept of Justice Inmate Ins Fund v. Hendershott, 108 Or App 584, 816 P2d 1178 (1991)

Claimant is not eligible for insurer-paid attorney fees for service involving availability of particular type of benefit. Simpson v. Skyline Corp., 108 Or App 721, 816 P2d 1209 (1991)

Provision making attorney fees available only if attorney is instrumental in obtaining compensation does not apply where attorney fee is paid out of claimant’s compensation award. O’Neal v. Tewell, 119 Or App 329, 850 P2d 1144 (1993)

Where under board’s interpretation of attorney fees, pro seclaimants who are not attorneys may not be awarded attorney fees, claimant who is attorney and represented self is not entitled to attorney fees. Bischoff v. Bischoff & Strooband, P.C., 121 Or App 529, 855 P2d 1133 (1993)

This section is inapplicable when issue in case does not concern compensability of claim. Gamble v. Nelson International, 124 Or App 90, 861 P2d 1021 (1993)

Where injury was not compensable but hospitalization was compensable, attorney fees could be awarded for prevailing on hospitalization cost claim. Pacific Motor Trucking v. Huntley, 130 Or App 46, 880 P2d 934 (1994)

Where carrier unilaterally acted to pay full amount of additional compensation to claimant, requirement that payment to attorney be made out of compensation award amount did not preclude requiring additional payment of fee directly to attorney. SAIF v. O’Neal, 134 Or App 338, 895 P2d 350 (1995)

Where payment of fee directly to attorney was not properly authorized, carrier payment of full amount of additional compensation to claimant did not require that additional payment be made to attorney. Lathrop v. Fairview Training Center, 134 Or App 346, 894 P2d 1257 (1995), Sup Ct review denied

Penalty assessed to employer is not compensation and cannot provide source for payment of attorney fees in cases not involving denial of claim. Nero v. City of Tualatin, 142 Or App 383, 920 P2d 570 (1996)

Claimant is not entitled to attorney fees where written request for compensation of denied condition has not been filed. Stephenson v. Meyer, 150 Or App 300, 945 P2d 1114 (1997)

Rescission of denial need not be accompanied by acceptance of denied claim in order for attorney fees to be awarded. SAIF v. Batey, 153 Or App 634, 957 P2d 195 (1998), on reconsideration 155 Or App 21, 963 P2d 732 (1998), Sup Ct review denied

Attorney fees are not available for obtaining increased disability benefits in noncontested case matter reviewed exclusively by Director of Department of Consumer and Business Services. Shook v. Pacific Communities Hospital, 159 Or App 604, 980 P2d 161 (1999)

Request for, or objection to, attorney fees may be raised on reconsideration without having been preserved at hearing. Hays v. Tillamook County General Hospital, 160 Or App 55, 979 P2d 775 (1999)

“Denied claim” includes claim denied due to claimant noncooperation. SAIF v. Wart, 192 Or App 505, 87 P3d 1138 (2004), Sup Ct review denied

Where resolution of single dispute requires decisions by both Director of Department of Consumer and Business Services and Workers’ Compensation Board, board may not award attorney fees unless claimant has prevailed in both decisions. AIG Claim Services, Inc. v. Cole, 205 Or App 170, 133 P3d 357 (2006), Sup Ct review denied

Claim may be “denied claim,” notwithstanding that denial is eventually determined to be void. Cervantes v. Liberty Northwest Insurance Corp. 205 Or App 316, 134 P3d 1033 (2006)

Failure of insurer to respond to omitted condition claim by accepting or denying it within 60 days is procedural deficiency that constitutes denial of claim. Crawford v. SAIF, 241 Or App 470, 250 P3d 965 (2011)

656.388

NOTES OF DECISIONS

Where Court of Appeals decided all substantive issues and remand to referee was for ministerial purposes only, claimant did not “finally prevail after remand” and was barred from raising fee issue before referee. Aguiar v. J.R. Simplot Co., 94 Or App 658, 767 P2d 86 (1989)

Court of Appeals lacked authority to change attorney fees awarded by referee and board in earlier proceedings. Depoe Bay Fish Co. v. Coon, 113 Or App 249, 832 P2d 856 (1992)

Award of carrier-paid attorney fee is not permitted. Liberty Northwest Ins. Corp. v. Koitzsch, 135 Or App 524, 899 P2d 724 (1995)

656.403

See also annotations under ORS 656.401 in permanent edition.

COMPLETED CITATIONS: Cutright v. Am. Ship Dismantler, 6 Or App 62, 486 P2d 591 (1971)

656.407

LAW REVIEW CITATIONS: 27 WLR 84 (1991)

656.419

NOTES OF DECISIONS

Application for coverage need not be document separate from premium. SAIF v. Bowers, 215 Or App 30, 168 P3d 263 (2007)

656.427

NOTES OF DECISIONS

Insurer sending notice to invalid last-known address of employer is not obligated to attempt determination of new address. U.S. West Properties, Inc. v. AOI Compwise, 156 Or App 411, 965 P2d 467 (1998), Sup Ct review denied

656.556

ATTY. GEN. OPINIONS: Application of liability imposed on “person letting the contract” where “person” is state or political subdivision, (1979) Vol 39, p 583

656.576

NOTES OF DECISIONS

Insurer must be paying benefits at time of settlement or distribution in order to qualify as “paying agency.” SAIF v. Wright, 113 Or App 267, 832 P2d 1238 (1992)

656.580

NOTES OF DECISIONS

Recovery from third party does not terminate right to receive medical treatment benefits. SAIF v. Parker, 61 Or App 47, 656 P2d 335 (1982)

Paying agency had lien against action for attorney malpractice based on attorney’s negligent failure to recover compensation for injured worker directly from responsible third party. Toole v. EBI Companies, 314 Or 102, 838 P2d 60 (1992)

656.587

NOTES OF DECISIONS

Although board has authority to order approval of proposed settlement of third party action, board cannot restructure prior agreement of claimant and employer regarding settlement. SAIF v. Cowart, 65 Or App 733, 672 P2d 389 (1983)

Where claimant brought third party action combining compensable injury claim with other tort claims, paying agent’s lien was limited to recovery on compensable injury claim. Robertson v. Davcol, Inc., 99 Or App 542, 783 P2d 43 (1989)

Board may consider value of spouse’s loss of consortium claim as evidence of reasonableness of proposed settlement of claimant’s underlying claim. Weems v. American International Adjustment Co., 123 Or App 83, 858 P2d 914 (1993), aff’d on other grounds, 319 Or 140, 874 P2d 72 (1994)

Findings of settlement judge are no more binding than any other pieces of evidence and board may freely overrule such findings. Weems v. American International Adjustment Co., 123 Or App 83, 858 P2d 914 (1993), aff’d 319 Or 140, 874 P2d 72 (1994)

656.591

NOTES OF DECISIONS

Claimant seeking to rescind assignment needs only to show that decision could reasonably have been affected had true facts been known, not that assignment resulted from being misled. EBI Companies v. Cooper, 100 Or App 246, 785 P2d 380 (1990)

Plaintiff insurer was entitled to maintain action as injured worker’s assignee against person whose conduct caused aggravation to worker’s compensable injury. SAIF v. Meredith, 104 Or App 570, 802 P2d 95 (1990)

656.593

NOTES OF DECISIONS

“Damages recovered” means settlement amount less any benefits paid to insurer as personal injury protection reimbursement. Northwestern Pacific Indemnity v. Canutt, 280 Or 375, 570 P2d 1182 (1977)

Where insurer paid claim of employee injured while working in Oregon for Washington corporation, settlement agreement for payment by Washington to reimburse Oregon insurer was not recovery of damages and therefore not subject to distribution provisions. McCutchen v. Workers’ Comp. Dept., 35 Or App 697, 582 P2d 56 (1978)

In indemnification action by chemical supplier against employer whose employee was killed by chemical, supplier was not entitled to relief from employer’s worker’s compensation lien against damages recovered from supplier by worker’s estate, because employer’s culpability in worker’s death was irrelevant. Boldman v. Mt. Hood Chemical Corp., 288 Or 121, 602 P2d 1072 (1979)

Attorney fees claimant recovers against insurer after prevailing in hearing on insurer’s denial of claim are not recoverable by insurer as “other cost” of claim. Schlecht v. SAIF, 60 Or App 449, 653 P2d 1284 (1982)

After third party recovery, when insurance carrier retained no amount for estimated future medical expenditures, it gave up its right to reimbursement from the proceeds. SAIF v. Parker, 61 Or App 47, 656 P2d 335 (1982)

No portion of proceeds of claimant’s third party damage action can be distributed to person who has separate claim outside workers’ compensation system. SAIF v. Cowart, 65 Or App 733, 672 P2d 389 (1983)

Reserve for future expenses must be reduced to actuarial present value of amounts to be expended, not current cost of anticipated services. Denton v. EBI Companies, 67 Or App 339, 679 P2d 301 (1984)

Recovery in action on policy against insurance company of third person was distributable as arising out of “negligence or wrong of third person.” Shipley v. SAIF, 79 Or App 149, 718 P2d 757 (1986), Sup Ct review denied

SAIF’s lien against proceeds of recoveries by injured workers in third-party actions does not attach to payments to worker by Oregon Insurance Guarantee Association acting in place of insolvent insurer. Corvallis Aero Service v. Villalobos, 81 Or App 137, 724 P2d 880 (1986), Sup Ct review denied

Claimant and paying agency have right to rely on each other’s pertinent representations in negotiating settlement with third party. Estate of Troy Vance v. Williams, 84 Or App 616, 734 P2d 1372 (1987)

Paying agency’s right to lien on third-party recovery attaches only to share distributed to workers’ compensation claimant. Scarino v. SAIF, 91 Or App 350, 755 P2d 139 (1988), Sup Ct review denied; Worthen v. Lumbermen’s Underwriting, 137 Or App 368, 904 P2d 1088 (1995)

Notwithstanding fact that worker was injured or killed in jurisdiction that does not allow such reimbursement, paying agency is entitled to reimbursement from proceeds of any settlement for amounts it paid on behalf of injured or deceased workers. Allen v. American Hardwoods, 102 Or App 562, 795 P2d 592 (1990), Sup Ct review denied

Board has authority to determine whether insurer qualifies as “paying agency.” SAIF v. Wright, 312 Or 132, 817 P2d 1317 (1991)

Distribution of settlement proceeds is to beneficiaries as class, not to individuals, so recovery on lien is against total award. Liberty Northwest Ins. Corp. v. Golden, 116 Or App 64, 840 P2d 1362 (1992), Sup Ct review denied

Workers’ Compensation Board has authority to determine whether defendants in suit are “third parties.” Toole v. EBI Companies, 314 Or 102, 838 P2d 60 (1992)

Payment received under claim disposition agreement was “compensation” and therefore subject to determination of reimbursibility. Turo v. SAIF, 131 Or App 572, 888 P2d 1043 (1994)

Board can use tort law principles to determine that just and proper distribution limits insurer recovery to benefits paid only to certain parties. Liberty Northwest Ins. Corp. v. Urness, 138 Or App 388, 909 P2d 893 (1996), Sup Ct review denied

LAW REVIEW CITATIONS: 32 WLR 217 (1996)

656.625

NOTES OF DECISIONS

Where board’s award of benefits under ORS 656.278 was erroneous, insurer was entitled to reimbursement for award. EBI Companies v. Dept. of Ins. and Finance, 114 Or App 356, 834 P2d 539 (1992), Sup Ct review denied

656.634

NOTES OF DECISIONS

Pre-1982 version of disclaimer of “proprietary interest” in Industrial Accident Fund was contract with employers insured by SAIF and, insofar as amendment applied to employers with contracts entered into prior to amendment, amendment was unconstitutional impairment of state’s contractual obligation. Eckles v. State of Oregon, 306 Or 380, 760 P2d 846 (1988)

656.636

ATTY. GEN. OPINIONS: Benefit increase limitation under 1973 law, (1973) Vol 36, p 710

656.702

NOTES OF DECISIONS

Except as expressly provided in this section, request for disclosure of records of State Accident Insurance Fund Corporation is not subject to limitations on disclosure under Oregon public records law (ORS 192.410 et seq.). Oregonians for Sound Economic Policy, Inc. v. SAIF, 187 Or App 621, 69 P3d 742 (2003), Sup Ct review denied

656.704

NOTES OF DECISIONS

Board has no jurisdiction over dispute between carriers not affecting claimant’s right to compensation. Renolds-Croft v. Bill Morrison Co., 55 Or App 487, 638 P2d 495 (1982)

Board had jurisdiction to consider carriers’ requests that Board order repayment of or offset for monies erroneously sent to claimant. SAIF v. Zorich, 94 Or App 661, 766 P2d 1053 (1989)

Referee has subject matter jurisdiction over case even if request for hearing is subject to denial as untimely. SAIF v. Roles, 111 Or App 597, 826 P2d 1039 (1992), Sup Ct review denied

Workers’ Compensation Board conclusion that naturopathic physician acted beyond scope of license was within board’s authority for purposes of determining whether treatment compensable. Stiehl v. Timber Products, 115 Or App 651, 839 P2d 755 (1992)

Determination whether employer or worker is subject to Act is not reviewable by board because worker’s right to receive compensation is not directly in issue. Lankford v. Copeland, 141 Or App 138, 917 P2d 55 (1996)

Dispute over medical services related to compensable claim is to be decided by Director of Department of Consumer and Business Services, regardless of when or how dispute first arose. Roseburg Forest Products v. Langley, 156 Or App 454, 965 P2d 477 (1998)

Where issue changes from one within jurisdiction of Workers’ Compensation Board to one outside jurisdiction of board, transferal of case to Director of Department of Consumer and Business Services is not available and case must be dismissed. SAIF v. Shipley, 326 Or 557, 955 P2d 244 (1998)

Where employer challenges both causal relationship between medical services and accepted claim and medical appropriateness of services, both issues must be resolved favorably to claimant for services to be compensable. AIG Claim Services, Inc. v. Cole, 205 Or App 170, 133 P3d 357 (2006), Sup Ct review denied

656.708

NOTES OF DECISIONS

Where officers of Accident Prevention Division are issued inspection warrant by court to inspect work place for violations of Oregon Safe Employment Act, Workers’ Compensation Department referee may rule on validity of warrant. Accident Prevention Division v. Hogan, 37 Or App 251, 586 P2d 1132 (1978)

Workers’ Compensation Board had jurisdiction to supervise enforcement of agreement settling disputed claim. Howard v. Liberty Northwest Ins., 94 Or App 283, 765 P2d 223 (1988)

Board had jurisdiction to consider carriers’ requests that board order repayment of or offset for monies erroneously sent to claimant. SAIF v. Zorich, 94 Or App 661, 766 P2d 1053 (1989)

Carrier’s delayed payment to claimant’s insurance company for medical services did not involve payments to subject worker and therefore was not within jurisdiction of board. Lloyd v. Employee Benefits Ins. Co., 96 Or App 591, 773 P2d 798 (1989)

Referee has subject matter jurisdiction over case even if request for hearing is subject to denial as untimely. SAIF v. Roles, 111 Or App 597, 826 P2d 1039 (1992), Sup Ct review denied

Action between insurers for unjust enrichment arising out of claim payment is matter for resolution by circuit court, not by hearings division. Specialty Risk Services v. Royal Indemnity Co., 213 Or App 620, 164 P3d 300 (2007)

656.712

NOTES OF DECISIONS

Membership of panel reviewing case does not have to represent background and understanding of both employers and employees. Fred Meyer Stores, Inc. v. Ernst, 190 Or App 525, 79 P3d 387 (2003)

656.726

NOTES OF DECISIONS

Workers’ Compensation Board had authority to require, by rule, prompt compliance with claimant’s request for documents and to consider noncompliance as unreasonable delay within meaning of ORS 656.262 (8). Morgan v. Stimson Lumber Co., 288 Or 595, 607 P2d 150 (1980)

Director of Department of Insurance and Finance had authority to adopt rule regulating payment to physicians for deposition testimony. Black v. Dept. of Insurance and Finance, 108 Or App 437, 816 P2d 652 (1991), Sup Ct review denied

Standards for evaluating disabilities adopted by Department of Insurance and Finance which gave no value to factors of age, education, training and adaptability when worker has returned to his “usual and customary work” were not inconsistent with ORS 656.214. Harrison v. Taylor Lumbering & Treating, Inc., 111 Or App 325, 826 P2d 75 (1992)

Where disability is not addressed by existing standards, Director of Department of Consumer and Business Services is required to stay further proceedings and adopt temporary rules. Gallino v. Courtesy Pontiac-Buick-GMC, 124 Or App 538, 863 P2d 530 (1993)

Workers’ Compensation Board has authority to remand order to Director of Department of Consumer and Business Services where disability requires development of temporary rule. Gallino v. Courtesy Pontiac-Buick-GMC, 124 Or App 538, 863 P2d 530 (1993)

Requirement that criterion for evaluation of disability be “permanent impairment” as modified by age, education and adaptability factors does not require that all impairments, including chronic conditions, be rated prior to modification. Schultz v. Springfield Forest Products, 151 Or App 727, 951 P2d 169 (1997)

Workers’ Compensation Board has authority to review validity of rule of Director of Department of Consumer and Business Services to determine whether rule is consistent with statute. Schultz v. Springfield Forest Products, 151 Or App 727, 951 P2d 169 (1997)

Temporary rule adopted to address disability not addressed by existing standards must be directed to claimant’s particular impairment, not category of impairment generally. Shubert v. Blue Chips, 330 Or 554, 9 P3d 114 (2000)

Temporary rule that assigns zero value for claimant’s impairment qualifies as standard that accommodates impairment. May v. Multnomah County Animal Control, 177 Or App 218, 33 P3d 387 (2001)

For purposes of determining whether impairment is only factor to consider in determining worker’s disability, when worker is terminated for cause, availability is not factor to be considered in determining worker’s disability. Suchi v. SAIF, 238 Or App 48, 241 P3d 1174 (2010), Sup Ct review denied

For purposes of determining whether impairment is only factor to consider in determining worker’s disability, end of seasonal employment constitutes termination of employment unless claimant proffers evidence that claimant would have been entitled to return to work after seasonal layoff. Suchi v. SAIF, 238 Or App 48, 241 P3d 1174 (2010), Sup Ct review denied

LAW REVIEW CITATIONS: 32 WLR 217 (1996)

656.732

NOTES OF DECISIONS

Court order to enforce administrative law judge subpoena may require disclosure of inmate medical records made confidential under ORS 179.495. Coman v. Corrections Dept., 327 Or 449, 960 P2d 383 (1998)

656.740

NOTES OF DECISIONS

Insurer’s denial of coverage in compensation case prior to joinder in compliance case did not satisfy requirement to specifically deny coverage in compliance case. SAIF v. Robertson, 120 Or App 1, 852 P2d 212 (1993)

Employer seeking attorney fees is prevailing party if proposed order of noncompliance was incorrect at time of issuance. King v. Dept. of Ins. and Finance, 126 Or App 1, 867 P2d 511 (1994), Sup Ct review denied

656.751 to 656.758

NOTES OF DECISIONS

Establishment of SAIF as independent public corporation did not relieve it from statutory requirements for Attorney General representation of state agencies. Frohnmayer v. SAIF, 61 Or App 147, 655 P2d 1098 (1982), aff’d 294 Or 570, 660 P2d 1061 (1983)

656.751

NOTES OF DECISIONS

State Accident Insurance Fund Corporation is not state entity for purposes of immunity under Eleventh Amendment to United States Constitution, but its actions constitute state action for purposes of suit brought under 42 U.S.C. 1983. Johnson v. SAIF, 202 Or App 264, 122 P3d 66 (2005), on reconsideration 205 Or App 41, 132 P3d 1058 (2006), aff’d 343 Or 139, 164 P3d 278 (2007)

ATTY. GEN. OPINIONS: Constitutionality of Act creating State Accident Insurance Fund Corporation, (1979) Vol 39, p 587; origin, purposes and essential characteristics of SAIF Corporation, (1990) Vol 46, p 323

656.752

ATTY. GEN. OPINIONS: Authority of SAIFCO to incorporate wholly owned subsidiary corporation as licensed domestic workers’ compensation insurer, (1982) Vol 42, p 352

656.754