Definitions
Source:
Section 656.005 — Definitions, https://www.oregonlegislature.gov/bills_laws/ors/ors656.html.
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, 260 P3d 495 (2011)
Establishing that claimant’s injury was sustained during personal-comfort activity satisfies “in the course of” prong of unitary work connection test but does not eliminate requirement to separately consider whether claimant’s evidence satisfies “arising out of” prong. Watt v. SAIF, 317 Or App 105, 505 P3d 1021 (2022)
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
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
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)
On remand, where appellate court directed Workers’ Compensation Board to apply any exceptions to going and coming rule, board did not err when board found that employer did not control, or have any right to control, area where claimant fell, after concluding that only issue was to determine if parking-lot exception applied to going and coming rule, because only exception to going and coming rule that was put at issue by either claimant or employer was parking-lot exception. Frazer v. Enterprise Rent-A-Car Co. of Oregon, 278 Or App 409, 374 P3d 1003 (2016)
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
“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)
Claimant’s “combined condition” under this section consists only of claimant’s “otherwise compensable injury” sustained at work and claimant’s statutory preexisting conditions. Combined condition is compensable only if preexisting conditions are not cause of or major contributing factor to combined condition. Vigor Industrial, LLC v. Ayres, 257 Or App 795, 310 P3d 674 (2013), Sup Ct review denied
Claimant’s abdominal wall weakness was not preexisting condition under this section because condition made claimant more “susceptible” to injury; “susceptible” means condition increases likelihood that affected body part will be injured by some other action or process but does not actively contribute to damaging body part. Corkum v. Bi-Mart Corp., 271 Or App 411, 350 P3d 585 (2015)
Predisposition to injury is not preexisting condition for purposes of injury claims or, separately, for purposes of occupational disease claims. Multnomah County v. Obie, 207 Or App 482, 142 P3d 496 (2006); SAIF v. Dunn, 297 Or App 206, 439 P3d 1011 (2019), Sup Ct review denied
Combined condition claim requires combination of two separate conditions and does not include symptoms of preexisting condition combined with preexisting condition itself. Carrillo v. SAIF, 310 Or App 8, 484 P3d 398 (2021), Sup Ct review denied
Workers’ Compensation Board erred in determining claimant’s injury was noncompensable “combined condition” under this section, because claimant’s preexisting condition and symptoms of that condition cannot be considered separate conditions and therefore cannot be combined. Interiano v. SAIF, 315 Or App 588, 502 P3d 224 (2021)
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
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
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)
Where claimant suffered workplace injury of partial rotator cuff tear, underwent surgery to repair injury and later, while working for new employer, suffered workplace injury of total rotator cuff tear, initial injury was major contributing cause to subsequent injury and first employer is liable for compensable condition of total rotator cuff tear in claimant’s consequential condition claim. SAIF Corporation v. Durant, 271 Or App 216, 350 P3d 489 (2015), Sup Ct review denied
In context of new or omitted condition claim, “combined condition” may exist without previously accepted condition. Sexton v. Sky Lakes Medical Center, 314 Or App 185, 496 P3d 1056 (2021), Sup Ct review denied
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
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)
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
Where plaintiff flight attendant required certain medical treatments to diagnose injury following change in air pressure in employer’s airplane cabin, plaintiff suffered “compensable injury” as used in this section. Plaintiff met burden of proof showing “compensable injury” even though plaintiff’s medical treatments were for diagnostic purposes rather than solely for treatment purposes. Horizon Air Industries, Inc. v. Davis-Warren, 266 Or App 388, 337 P3d 959 (2014)
“Injury” as used in “otherwise compensable injury” in this section refers to medical condition, not accident, that employer previously accepted; where “otherwise compensable injury” combines with preexisting condition, combined condition is compensable only so long as “otherwise compensable injury” is major cause of combined condition. Brown v. SAIF, 361 Or 241, 391 P3d 773 (2017); Pedro v. SAIF, 313 Or App 34, 495 P3d 183 (2021)
Where claimant was injured during pre-employment test for which employer told claimant that claimant would not be paid, claimant did not have reasonable expectation of remuneration for provision of services and thus was not “worker” for purposes of Workers’ Compensation Law. Gadalean v. SAIF, 364 Or 707, 439 P3d 965 (2019)
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
Attorney General 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)
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