2017 ORS 656.206¹
Permanent total disability

(1) As used in this section:

(a) “Essential functions” means the primary tasks associated with the job.

(b) “Materially improved medically” means an actual change for the better in the worker’s medical condition that is supported by objective findings.

(c) “Materially improved vocationally” means an actual change for the better in the:

(A) Worker’s vocational capability; or

(B) Likelihood that the worker can return to work in a gainful and suitable occupation.

(d) “Permanent total disability” means, notwithstanding ORS 656.225 (Compensability of certain preexisting conditions), the loss, including preexisting disability, of use or function of any portion of the body which permanently incapacitates the worker from regularly performing work at a gainful and suitable occupation.

(e) “Regularly performing work” means the ability of the worker to discharge the essential functions of the job.

(f) “Suitable occupation” means one that the worker has the ability and the training or experience to perform, or an occupation that the worker is able to perform after rehabilitation.

(g) “Wages” means wages as determined under ORS 656.210 (Temporary total disability).

(2) If permanent total disability results from a worker’s injury, the worker shall receive during the period of that disability compensation benefits equal to 66-2/3 percent of wages, no more than 133 percent of the average weekly wage or no less than 33 percent of the average weekly wage.

(3) A worker has the burden of proving permanent total disability status and must establish that the worker is willing to seek regular gainful employment and that the worker has made reasonable efforts to obtain such employment.

(4) When requested by the Director of the Department of Consumer and Business Services, a worker who receives permanent total disability benefits shall file on a form provided by the director, a sworn statement of the worker’s gross annual income for the preceding year along with such other information as the director considers necessary to determine whether the worker regularly performs work at a gainful and suitable occupation.

(5) Each insurer shall reexamine periodically each permanent total disability claim for which the insurer has current payment responsibility to determine whether the worker has materially improved, either medically or vocationally, and is no longer permanently incapacitated from regularly performing work at a gainful and suitable occupation. Reexamination must be conducted every two years or at such other more frequent interval as the director may prescribe. Reexamination must include such medical examinations, vocational evaluations, reports and other records as the insurer considers necessary or the director may require.

(6)(a) If a worker receiving permanent total disability benefits is found to be materially improved and capable of regularly performing work at a gainful and suitable occupation, the insurer or self-insured employer shall issue a notice of closure pursuant to ORS 656.268 (Claim closure). Permanent total disability benefits shall be paid through the date of the notice of closure. Notwithstanding ORS 656.268 (Claim closure) (5), if a worker objects to a notice of closure issued under this subsection, the worker shall request a hearing. If the worker requests a hearing on the notice of closure before the Hearings Division of the Workers’ Compensation Board within 30 days of the date of the notice of closure, the insurer or self-insured employer shall continue payment of permanent total disability benefits until an order of the Hearings Division or a subsequent order affirms the notice of closure or until another order that terminates the worker’s benefits becomes final. If the worker requests a hearing on the notice of closure more than 30 days from the date of the notice of closure but before the 60-day period for requesting a hearing expires, the insurer or self-insured employer shall resume paying permanent total disability benefits from the date the hearing is requested and shall continue payment of benefits until an order of the Hearings Division or a subsequent order affirms the notice of closure or until another order that terminates the worker’s benefits becomes final. If the notice of closure is upheld by the Hearings Division, the insurer or self-insured employer must be reimbursed from the Workers’ Benefit Fund for the amount of permanent total disability benefits paid after the date of the notice of closure issued under this subsection.

(b) An insurer or self-insured employer must establish that the condition of a worker who is receiving permanent total disability benefits has materially improved by a preponderance of the evidence presented at hearing.

(c) Medical examinations or vocational evaluations used to support the issuance of a notice of closure under this subsection must include at least one report in which the author personally observed the worker.

(d) Notwithstanding section 54 (3), chapter 2, Oregon Laws 1990, the Hearings Division of the Workers’ Compensation Board may request the director to order a medical arbiter examination of an injured worker who has requested a hearing under this subsection.

(7) A worker who has had permanent total disability benefits terminated under this section by an order that has become final is eligible for vocational assistance pursuant to ORS 656.340 (Vocational assistance procedure). Notwithstanding ORS 656.268 (Claim closure) (10), if a worker has enrolled in and is actively engaged in a training program, when vocational assistance provided under this section ends or the worker ceases to be enrolled and actively engaged in the training program, the insurer or the self-insured employer shall determine the extent of disability pursuant to ORS 656.214 (Permanent partial disability).

(8) A worker receiving permanent total disability benefits is required, if requested by the director, the insurer or the self-insured employer, to submit to a vocational evaluation at a time reasonably convenient to the worker as may be provided by the rules of the director. No more than three evaluations may be requested except after notification to and authorization by the director. If the worker refuses to submit to or obstructs a vocational evaluation, the rights of the worker to compensation must be suspended with the consent of the director until the evaluation has taken place, and no compensation is payable for the period during which the worker refused to submit to or obstructed the evaluation. The insurer or self-insured employer shall pay the costs of the evaluation and related services that are reasonably necessary to allow the worker to attend the evaluation requested under this subsection. As used in this subsection, “related services” includes, but is not limited to, wages, child care, travel, meals and lodging.

(9) Notwithstanding any other provisions of this chapter, if a worker receiving permanent total disability incurs a new compensable injury, the worker’s entitlement to compensation for the new injury shall be limited to medical benefits pursuant to ORS 656.245 (Medical services to be provided) and permanent partial disability benefits for impairment, as determined in the manner set forth in ORS 656.214 (Permanent partial disability) (2).

(10) When a worker eligible for benefits under this section returns to work, if the combined total of the worker’s post-injury wages plus permanent total disability benefit exceeds the worker’s wage at the time of injury, the worker’s permanent total disability benefit must be reduced by the amount the worker’s wages plus statutory permanent total disability benefit exceeds the worker’s wage at injury.

(11) For purposes of this section:

(a) A gainful occupation for workers with a date of injury prior to January 1, 2006, who were:

(A) Employed continuously for 52 weeks prior to the injury, is an occupation that provides weekly wages that are the lesser of the most recent federal poverty guidelines for a family of three that are applicable to Oregon residents and that are published annually in the Federal Register by the United States Department of Health and Human Services or 66-2/3 percent of the worker’s average weekly wages from all employment for the 52 weeks prior to the date of injury.

(B) Not employed continuously for the 52 weeks prior to the date of injury, but who were employed for at least four weeks prior to the date of injury, is an occupation that provides weekly wages that are the lesser of the most recent federal poverty guidelines for a family of three that are applicable to Oregon residents and that are published annually in the Federal Register by the United States Department of Health and Human Services or 66-2/3 percent of the worker’s average weekly wage from all employment for the 52 weeks prior to the date of injury based on weeks of actual employment, excluding any extended periods of unemployment.

(C) Employed for less than four weeks prior to the date of injury with no other employment during the 52 weeks prior to the date of injury, is an occupation that provides weekly wages that are the lesser of the most recent federal poverty guidelines for a family of three that are applicable to Oregon residents and that are published annually in the Federal Register by the United States Department of Health and Human Services or 66-2/3 percent of the average weekly wages intended by the parties at the time of initial hire.

(b) A gainful occupation for workers with a date of injury on or after January 1, 2006, who were:

(A) Employed continuously for 52 weeks prior to the injury, is an occupation that provides weekly wages that are the lesser of the most recent federal poverty guidelines for a family of three that are applicable to Oregon residents and that are published annually in the Federal Register by the United States Department of Health and Human Services or 66-2/3 percent of the worker’s average weekly wages from all employment for the 52 weeks prior to the date of injury adjusted by the percentage of change in the applicable federal poverty guidelines for a family of three from the date of injury to the date of evaluation of the extent of the worker’s disability.

(B) Not employed continuously for the 52 weeks prior to the date of injury, but who were employed for at least four weeks prior to the date of injury, is an occupation that provides weekly wages that are the lesser of the most recent federal poverty guidelines for a family of three that are applicable to Oregon residents and that are published annually in the Federal Register by the United States Department of Health and Human Services or 66-2/3 percent of the worker’s average weekly wage from all employment for the 52 weeks prior to the date of injury based on weeks of actual employment, excluding any extended periods of unemployment and as adjusted by the percentage of change in the applicable federal poverty guidelines for a family of three from the date of injury to the date of evaluation of the extent of the worker’s disability.

(C) Employed for less than four weeks prior to the date of injury with no other employment during the 52 weeks prior to the date of injury, is an occupation that provides weekly wages that are the lesser of the most recent federal poverty guidelines for a family of three that are applicable to Oregon residents and that are published annually in the Federal Register by the United States Department of Health and Human Services or 66-2/3 percent of the average weekly wages intended by the parties at the time of initial hire adjusted by the percentage of change in the applicable federal poverty guidelines for a family of three from the date of injury to the date of evaluation of the extent of the worker’s disability. [Amended by 1953 c.670 §4; 1955 c.553 §1; 1957 c.452 §1; 1959 c.517 §1; 1965 c.285 §22a; 1969 c.500 §2; 1973 c.614 §2; 1974 c.41 §5; 1975 c.506 §1; 1977 c.430 §1; 1981 c.874 §12; 1983 c.816 §3; 1995 c.332 §14; 1999 c.313 §13; 1999 c.927 §3; 2003 c.657 §§5,6; 2005 c.461 §§1,2; 2007 c.274 §3; 2011 c.99 §2; 2017 c.70 §1]

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

Notes of Decisions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Atty. Gen. Opinions

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

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 (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 656, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano656.­html (2017) (last ac­cessed Mar. 30, 2018).
 
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.