2017 ORS 656.210¹
Temporary total disability
  • payment during medical treatment
  • election
  • rules

(1) When the total disability is only temporary, the worker shall receive during the period of that total disability compensation equal to 66-2/3 percent of wages, but not more than 133 percent of the average weekly wage nor less than the amount of 90 percent of wages a week or the amount of $50 a week, whichever amount is less. Notwithstanding the limitation imposed by this subsection, an injured worker who is not otherwise eligible to receive an increase in benefits for the fiscal year in which compensation is paid shall have the benefits increased each fiscal year by the percentage which the applicable average weekly wage has increased since the previous fiscal year.

(2)(a) For the purpose of this section, the weekly wage of workers shall be ascertained:

(A) For workers employed in one job at the time of injury, by multiplying the daily wage the worker was receiving by the number of days per week that the worker was regularly employed; or

(B) For workers employed in more than one job at the time of injury, by adding all earnings the worker was receiving from all subject employment.

(b) Notwithstanding paragraph (a)(B) of this subsection, the weekly wage calculated under paragraph (a)(A) of this subsection shall be used for workers employed in more than one job at the time of injury unless the insurer, self-insured employer or assigned claims agent for a noncomplying employer receives:

(A) Within 30 days of receipt of the initial claim, notice that the worker was employed in more than one job with a subject employer at the time of injury; and

(B) Within 60 days of the date of mailing a request for verification, verifiable documentation of wages from such additional employment.

(c) Notwithstanding ORS 656.005 (Definitions) (7)(c), an injury to a worker employed in more than one job at the time of injury is not disabling if no temporary disability benefits are payable for time lost from the job at injury. Claim costs incurred as a result of supplemental temporary disability benefits paid as provided in subsection (5) of this section may not be included in any data used for ratemaking or individual employer rating or dividend calculations by an insurer, a rating organization licensed pursuant to ORS chapter 737, the State Accident Insurance Fund Corporation or the Department of Consumer and Business Services if the injured worker is not eligible for permanent disability benefits or temporary disability benefits for time lost from the job at injury.

(d) For the purpose of this section:

(A) The benefits of a worker who incurs an injury shall be based on the wage of the worker at the time of injury.

(B) The benefits of a worker who incurs an occupational disease shall be based on the wage of the worker at the time there is medical verification that the worker is unable to work because of the disability caused by the occupational disease. If the worker is not working at the time that there is medical verification that the worker is unable to work because of the disability caused by the occupational disease, the benefits shall be based on the wage of the worker at the worker’s last regular employment.

(e) As used in this subsection, “regularly employed” means actual employment or availability for such employment. For workers not regularly employed and for workers with no remuneration or whose remuneration is not based solely upon daily or weekly wages, the Director of the Department of Consumer and Business Services, by rule, may prescribe methods for establishing the worker’s weekly wage.

(3) No disability payment is recoverable for temporary total or partial disability suffered during the first three calendar days after the worker leaves work or loses wages as a result of the compensable injury unless the worker is totally disabled after the injury and the total disability continues for a period of 14 consecutive days or unless the worker is admitted as an inpatient to a hospital within 14 days of the first onset of total disability. If the worker leaves work or loses wages on the day of the injury due to the injury, that day shall be considered the first day of the three-day period.

(4) When an injured worker with an accepted disabling compensable injury is required to leave work for a period of four hours or more to receive medical consultation, examination or treatment with regard to the compensable injury, the worker shall receive temporary disability benefits calculated pursuant to ORS 656.212 (Temporary partial disability) for the period during which the worker is absent, until such time as the worker is determined to be medically stationary. However, benefits under this subsection are not payable if wages are paid for the period of absence by the employer.

(5)(a) The insurer of the employer at injury or the self-insured employer at injury, may elect to be responsible for payment of supplemental temporary disability benefits to a worker employed in more than one job at the time of injury. In accordance with rules adopted by the director, if the worker’s weekly wage is determined under subsection (2)(a)(B) of this section, the insurer or self-insured employer shall be reimbursed from the Workers’ Benefit Fund for the amount of temporary disability benefits paid that exceeds the amount payable pursuant to subsection (2)(a)(A) of this section had the worker been employed in only one job at the time of injury. Such reimbursement shall include an administrative fee payable to the insurer or self-insured employer pursuant to rules adopted by the director.

(b) If the insurer or self-insured employer elects not to pay the supplemental temporary disability benefits for a worker employed in more than one job at the time of injury, the director shall either administer and pay the supplemental benefits directly or shall assign responsibility to administer and process the payment to a paying agent selected by the director.

(6) The director shall adopt rules for the payment and reimbursement of supplemental temporary disability benefits under this section. [Amended by 1955 c.713 §1; 1957 c.452 §2; 1959 c.517 §2; 1965 c.285 §22c; 1969 c.183 §1; 1969 c.500 §1; 1971 c.204 §1; 1973 c.614 §1; 1974 c.41 §6; 1975 c.507 §1; 1975 c.663 §1; 1985 c.507 §3; 1987 c.521 §1; 1987 c.713 §7; 1995 c.332 §15; 2001 c.865 §3; 2003 c.760 §1; 2007 c.241 §10; 2009 c.313 §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

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

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

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

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

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

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

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

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

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

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

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

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

Claimant Is Part of Work Force If

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

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

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

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

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

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

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

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

When calculating the claimant’s total temporary disability benefits based on claimant’s wages, calcula­tion must exclude expenses incurred due to employ­ment if claimant is reimbursed for expenses by employer. SAIF Corp. v. Sparks, 258 Or App 227, 309 P3d 174 (2013)

Where claimant was injured at work and claimant’s employer was aware that claimant had other employers, employer’s knowledge of claimant’s sec­ondary employ­ment cannot be imputed to employer’s insurer to replace claimant giving actual notice of claimant’s sec­ondary employ­ment to insurer and claimant was not entitled to supple­mental disability pay­ments based on claimant’s sec­ondary employ­ment. Depart­ment of Consumer and Business Services v. Muliro, 267 Or App 526, 341 P3d 131 (2014), aff’d 359 Or 736, 380 P3d 270 (2016)

When read with ORS 656.005 (Definitions) and 656.054 (Claim of injured worker of noncomplying employer), where claimant, who was unpaid intern, earned com­mis­sion from noncompliant employer and was injured at work before earning first com­mis­sion pay­ment, workers’ compensa­tion benefits must be calculated on “assumed wage” on which employer’s premium is based; because claimant did not have assumed wage, benefits may not be less than benefits would be if employer were compliant employer. Rehfeld v. Sedgwick Claims Manage­ment Services, 283 Or App 288, 388 P3d 403 (2017), Sup Ct review denied

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.