2015 ORS 656.005¹
Definitions

(1) "Average weekly wage" means the Oregon average weekly wage in covered employment, as determined by the Employment Department, for the last quarter of the calendar year preceding the fiscal year in which the injury occurred.

(2) "Beneficiary" means an injured worker, and the spouse in a marriage, child or dependent of a worker, who is entitled to receive payments under this chapter. "Beneficiary" does not include:

(a) A spouse of an injured worker living in a state of abandonment for more than one year at the time of the injury or subsequently. A spouse who has lived separate and apart from the worker for a period of two years and who has not during that time received or attempted by process of law to collect funds for support or maintenance is considered living in a state of abandonment.

(b) A person who intentionally causes the compensable injury to or death of an injured worker.

(3) "Board" means the Workers’ Compensation Board.

(4) "Carrier-insured employer" means an employer who provides workers’ compensation coverage with the State Accident Insurance Fund Corporation or an insurer authorized under ORS chapter 731 to transact workers’ compensation insurance in this state.

(5) "Child" includes a posthumous child, a child legally adopted prior to the injury, a child toward whom the worker stands in loco parentis, a child born out of wedlock and a stepchild, if such stepchild was, at the time of the injury, a member of the worker’s family and substantially dependent upon the worker for support. A dependent child who is an invalid is a child, for purposes of benefits, regardless of age, so long as the child was an invalid at the time of the accident and thereafter remains an invalid substantially dependent on the worker for support. For purposes of this chapter, a dependent child who is an invalid is considered to be a child under 18 years of age.

(6) "Claim" means a written request for compensation from a subject worker or someone on the worker’s behalf, or any compensable injury of which a subject employer has notice or knowledge.

(7)(a) A "compensable injury" is an accidental injury, or accidental injury to prosthetic appliances, arising out of and in the course of employment requiring medical services or resulting in disability or death; an injury is accidental if the result is an accident, whether or not due to accidental means, if it is established by medical evidence supported by objective findings, subject to the following limitations:

(A) No injury or disease is compensable as a consequence of a compensable injury unless the compensable injury is the major contributing cause of the consequential condition.

(B) If an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment, the combined condition is compensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause of the disability of the combined condition or the major contributing cause of the need for treatment of the combined condition.

(b) "Compensable injury" does not include:

(A) Injury to any active participant in assaults or combats which are not connected to the job assignment and which amount to a deviation from customary duties;

(B) Injury incurred while engaging in or performing, or as the result of engaging in or performing, any recreational or social activities primarily for the worker’s personal pleasure; or

(C) Injury the major contributing cause of which is demonstrated to be by a preponderance of the evidence the injured worker’s consumption of alcoholic beverages or the unlawful consumption of any controlled substance, unless the employer permitted, encouraged or had actual knowledge of such consumption.

(c) A "disabling compensable injury" is an injury which entitles the worker to compensation for disability or death. An injury is not disabling if no temporary benefits are due and payable, unless there is a reasonable expectation that permanent disability will result from the injury.

(d) A "nondisabling compensable injury" is any injury which requires medical services only.

(8) "Compensation" includes all benefits, including medical services, provided for a compensable injury to a subject worker or the worker’s beneficiaries by an insurer or self-insured employer pursuant to this chapter.

(9) "Department" means the Department of Consumer and Business Services.

(10) "Dependent" means any of the following-named relatives of a worker whose death results from any injury: Parent, grandparent, stepparent, grandson, granddaughter, brother, sister, half sister, half brother, niece or nephew, who at the time of the accident, are dependent in whole or in part for their support upon the earnings of the worker. Unless otherwise provided by treaty, aliens not residing within the United States at the time of the accident other than parent, spouse in a marriage or children are not included within the term "dependent."

(11) "Director" means the Director of the Department of Consumer and Business Services.

(12)(a) "Doctor" or "physician" means a person duly licensed to practice one or more of the healing arts in any country or in any state, territory or possession of the United States within the limits of the license of the licentiate.

(b) Except as otherwise provided for workers subject to a managed care contract, "attending physician" means a doctor, physician or physician assistant who is primarily responsible for the treatment of a worker’s compensable injury and who is:

(A) A medical doctor or doctor of osteopathy licensed under ORS 677.100 (Qualifications of applicant for license) to 677.228 (Automatic lapse of license for failure to pay registration fee or report change of location) by the Oregon Medical Board, or a podiatric physician and surgeon licensed under ORS 677.805 ("Ankle" defined for ORS 677.805 to 677.840) to 677.840 (Fees) by the Oregon Medical Board, an oral and maxillofacial surgeon licensed by the Oregon Board of Dentistry or a similarly licensed doctor in any country or in any state, territory or possession of the United States; or

(B) For a cumulative total of 60 days from the first visit on the initial claim or for a cumulative total of 18 visits, whichever occurs first, to any of the medical service providers listed in this subparagraph, a:

(i) Doctor or physician licensed by the State Board of Chiropractic Examiners for the State of Oregon under ORS chapter 684 or a similarly licensed doctor or physician in any country or in any state, territory or possession of the United States;

(ii) Physician assistant licensed by the Oregon Medical Board in accordance with ORS 677.505 (Application of provisions governing physician assistants to other health professions) to 677.525 (Fees) or a similarly licensed physician assistant in any country or in any state, territory or possession of the United States; or

(iii) Doctor of naturopathy or naturopathic physician licensed by the Oregon Board of Naturopathic Medicine under ORS chapter 685 or a similarly licensed doctor or physician in any country or in any state, territory or possession of the United States.

(c) Except as otherwise provided for workers subject to a managed care contract, "attending physician" does not include a physician who provides care in a hospital emergency room and refers the injured worker to a primary care physician for follow-up care and treatment.

(d) "Consulting physician" means a doctor or physician who examines a worker or the worker’s medical record to advise the attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) regarding treatment of a worker’s compensable injury.

(13)(a) "Employer" means any person, including receiver, administrator, executor or trustee, and the state, state agencies, counties, municipal corporations, school districts and other public corporations or political subdivisions, who contracts to pay a remuneration for and secures the right to direct and control the services of any person.

(b) Notwithstanding paragraph (a) of this subsection, for purposes of this chapter, the client of a temporary service provider is not the employer of temporary workers provided by the temporary service provider.

(c) As used in paragraph (b) of this subsection, "temporary service provider" has the meaning for that term provided in ORS 656.850 (License).

(14) "Insurer" means the State Accident Insurance Fund Corporation or an insurer authorized under ORS chapter 731 to transact workers’ compensation insurance in this state or an assigned claims agent selected by the director under ORS 656.054 (Claim of injured worker of noncomplying employer).

(15) "Consumer and Business Services Fund" means the fund created by ORS 705.145 (Consumer and Business Services Fund).

(16) "Invalid" means one who is physically or mentally incapacitated from earning a livelihood.

(17) "Medically stationary" means that no further material improvement would reasonably be expected from medical treatment, or the passage of time.

(18) "Noncomplying employer" means a subject employer who has failed to comply with ORS 656.017 (Employer required to pay compensation and perform other duties).

(19) "Objective findings" in support of medical evidence are verifiable indications of injury or disease that may include, but are not limited to, range of motion, atrophy, muscle strength and palpable muscle spasm. "Objective findings" does not include physical findings or subjective responses to physical examinations that are not reproducible, measurable or observable.

(20) "Palliative care" means medical service rendered to reduce or moderate temporarily the intensity of an otherwise stable medical condition, but does not include those medical services rendered to diagnose, heal or permanently alleviate or eliminate a medical condition.

(21) "Party" means a claimant for compensation, the employer of the injured worker at the time of injury and the insurer, if any, of such employer.

(22) "Payroll" means a record of wages payable to workers for their services and includes commissions, value of exchange labor and the reasonable value of board, rent, housing, lodging or similar advantage received from the employer. However, "payroll" does not include overtime pay, vacation pay, bonus pay, tips, amounts payable under profit-sharing agreements or bonus payments to reward workers for safe working practices. Bonus pay is limited to payments which are not anticipated under the contract of employment and which are paid at the sole discretion of the employer. The exclusion from payroll of bonus payments to reward workers for safe working practices is only for the purpose of calculations based on payroll to determine premium for workers’ compensation insurance, and does not affect any other calculation or determination based on payroll for the purposes of this chapter.

(23) "Person" includes partnership, joint venture, association, limited liability company and corporation.

(24)(a) "Preexisting condition" means, for all industrial injury claims, any injury, disease, congenital abnormality, personality disorder or similar condition that contributes to disability or need for treatment, provided that:

(A) Except for claims in which a preexisting condition is arthritis or an arthritic condition, the worker has been diagnosed with such condition, or has obtained medical services for the symptoms of the condition regardless of diagnosis; and

(B)(i) In claims for an initial injury or omitted condition, the diagnosis or treatment precedes the initial injury;

(ii) In claims for a new medical condition, the diagnosis or treatment precedes the onset of the new medical condition; or

(iii) In claims for a worsening pursuant to ORS 656.273 (Aggravation for worsened conditions) or 656.278 (Board has continuing authority to alter earlier action on claim), the diagnosis or treatment precedes the onset of the worsened condition.

(b) "Preexisting condition" means, for all occupational disease claims, any injury, disease, congenital abnormality, personality disorder or similar condition that contributes to disability or need for treatment and that precedes the onset of the claimed occupational disease, or precedes a claim for worsening in such claims pursuant to ORS 656.273 (Aggravation for worsened conditions) or 656.278 (Board has continuing authority to alter earlier action on claim).

(c) For the purposes of industrial injury claims, a condition does not contribute to disability or need for treatment if the condition merely renders the worker more susceptible to the injury.

(25) "Self-insured employer" means an employer or group of employers certified under ORS 656.430 (Certification of self-insured employer) as meeting the qualifications set out by ORS 656.407 (Qualifications of insured employers).

(26) "State Accident Insurance Fund Corporation" and "corporation" mean the State Accident Insurance Fund Corporation created under ORS 656.752 (State Accident Insurance Fund Corporation).

(27) "Subject employer" means an employer who is subject to this chapter as provided by ORS 656.023 (Who are subject employers).

(28) "Subject worker" means a worker who is subject to this chapter as provided by ORS 656.027 (Who are subject workers).

(29) "Wages" means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including reasonable value of board, rent, housing, lodging or similar advantage received from the employer, and includes the amount of tips required to be reported by the employer pursuant to section 6053 of the Internal Revenue Code of 1954, as amended, and the regulations promulgated pursuant thereto, or the amount of actual tips reported, whichever amount is greater. The State Accident Insurance Fund Corporation may establish assumed minimum and maximum wages, in conformity with recognized insurance principles, at which any worker shall be carried upon the payroll of the employer for the purpose of determining the premium of the employer.

(30) "Worker" means any person, including a minor whether lawfully or unlawfully employed, who engages to furnish services for a remuneration, subject to the direction and control of an employer and includes salaried, elected and appointed officials of the state, state agencies, counties, cities, school districts and other public corporations, but does not include any person whose services are performed as an inmate or ward of a state institution or as part of the eligibility requirements for a general or public assistance grant. For the purpose of determining entitlement to temporary disability benefits or permanent total disability benefits under this chapter, "worker" does not include a person who has withdrawn from the workforce during the period for which such benefits are sought.

(31) "Independent contractor" has the meaning for that term provided in ORS 670.600 (Independent contractor defined). [1975 c.556 §§3 to 19 (enacted in lieu of 656.002); 1977 c.109 §2; 1977 c.804 §1; 1979 c.839 §26; 1981 c.535 §30; 1981 c.723 §3; 1981 c.854 §2; 1983 c.740 §242; 1985 c.212 §1; 1985 c.507 §1; 1985 c.770 §1; 1987 c.373 §31; 1987 c.457 §1; 1987 c.713 §3; 1987 c.884 §25; 1989 c.762 §3; 1990 c.2 §3; 1993 c.739 §23; 1993 c.744 §18; 1995 c.93 §31; 1995 c.332 §1; 1997 c.491 §5; 2001 c.865 §1; 2003 c.811 §§1,2; 2007 c.241 §§6,7; 2007 c.252 §§1,2; 2007 c.365 §1; 2007 c.505 §§1,2; 2009 c.43 §§6,7; 2011 c.117 §1; 2015 c.629 §53]

Note: See notes under 656.202 (Compensation payable to subject worker in accordance with law in effect at time of injury).

See also annota­tions under ORS 656.002 in permanent edi­tion. ORS 656.005 (Definitions) 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)

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 (Responsibility for payment of claims) 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)

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)

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 (Required medical examination) 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

Occupa­tional disease

See also annota­tions under ORS 656.802 (Occupational disease).

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

Compensable injury is injury accident that caused disability or re­quired treat­ment and which arose out of or in course of employ­ment. Brown v. SAIF, 262 Or App 640, 325 P3d 834 (2014), Sup Ct review allowed

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)

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 (Who are subject workers). 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 (Board review of Administrative Law Judge orders). 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)

Law Review Cita­tions

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

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)


1 Legislative Counsel Committee, CHAPTER 656—Workers' Compensation, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors656.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 656, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano656.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.