2017 ORS 656.266¹
Burden of proving compensability and nature and extent of disability

(1) The burden of proving that an injury or occupational disease is compensable and of proving the nature and extent of any disability resulting therefrom is upon the worker. The worker cannot carry the burden of proving that an injury or occupational disease is compensable merely by disproving other possible explanations of how the injury or disease occurred.

(2) Notwithstanding subsection (1) of this section, for the purpose of combined condition injury claims under ORS 656.005 (Definitions) (7)(a)(B) only:

(a) Once the worker establishes an otherwise compensable injury, the employer shall bear the burden of proof to establish the otherwise compensable injury is not, or is no longer, 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) Notwithstanding ORS 656.804 (Occupational disease as an injury under Workers’ Compensation Law), paragraph (a) of this subsection does not apply to any occupational disease claim. [1987 c.713 §2; 2001 c.865 §2]

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

Notes of Decisions

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

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

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

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

For combined condi­tion injury claims other than those involving occupa­tional disease, employer bears burden of proving that claimant’s otherwise compensable injury is not, or is no longer, major contributing cause of claimant’s combined condi­tion. Washington County v. Jansen, 248 Or App 335, 273 P3d 278 (2012)

For combined condi­tion injury claims involving occupa­tional disease, claimant bears burden of proving that compensable injury is not, or is no longer, major contributing cause of claimant’s combined condi­tion. Washington County v. Jansen, 248 Or App 335, 273 P3d 278 (2012)

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.