2017 ORS 656.278¹
Board has continuing authority to alter earlier action on claim
  • limitations

(1) Except as provided in subsection (7) of this section, the power and jurisdiction of the Workers’ Compensation Board shall be continuing, and it may, upon its own motion, from time to time modify, change or terminate former findings, orders or awards if in its opinion such action is justified in those cases in which:

(a) There is a worsening of a compensable injury that results in the inability of the worker to work and requires hospitalization or inpatient or outpatient surgery, or other curative treatment prescribed in lieu of hospitalization that is necessary to enable the injured worker to return to work. In such cases, the payment of temporary disability compensation in accordance with ORS 656.210 (Temporary total disability), 656.212 (Temporary partial disability) (2) and 656.262 (Processing of claims and payment of compensation) (4) may be provided from the time the attending physician authorizes temporary disability compensation for the hospitalization, surgery or other curative treatment until the worker’s condition becomes medically stationary;

(b) The worker submits and obtains acceptance of a claim for a compensable new medical condition or an omitted medical condition pursuant to ORS 656.267 (Claims for new and omitted medical conditions) and the claim is initiated after the rights under ORS 656.273 (Aggravation for worsened conditions) have expired. In such cases, the payment of temporary disability compensation in accordance with the provisions of ORS 656.210 (Temporary total disability), 656.212 (Temporary partial disability) (2) and 656.262 (Processing of claims and payment of compensation) (4) may be provided from the time the attending physician authorizes temporary disability compensation for the hospitalization, surgery or other curative treatment until the worker’s condition becomes medically stationary, and the payment of permanent disability benefits may be provided after application of the standards for the evaluation and determination of disability as may be adopted by the Director of the Department of Consumer and Business Services pursuant to ORS 656.726 (Duties and powers to carry out workers’ compensation and occupational safety laws); or

(c) The date of injury is earlier than January 1, 1966. In such cases, in addition to the payment of temporary disability compensation, the payment of medical benefits may be provided.

(2) Benefits provided under subsection (1) of this section:

(a) Do not include vocational assistance benefits under ORS 656.340 (Vocational assistance procedure);

(b) Do not include temporary disability compensation for periods of time during which the claimant did not qualify as a “worker” pursuant to ORS 656.005 (Definitions) (30);

(c) Do not include medical services provided pursuant to ORS 656.245 (Medical services to be provided) except as provided under subsection (1)(c) of this section; and

(d) May include permanent disability benefits for additional impairment to an injured body part that has previously been the basis of a permanent partial disability award, but only to the extent that the permanent partial disability rating exceeds the permanent partial disability rated by the prior award or awards.

(3) An order or award made by the board during the time within which the claimant has the right to request a hearing on aggravation under ORS 656.273 (Aggravation for worsened conditions) is not an order or award, as the case may be, made by the board on its own motion.

(4) Pursuant to ORS 656.298 (Judicial review of board orders), any party may appeal an order or award made by the board on its own motion.

(5) The insurer or self-insured employer may voluntarily reopen any claim to provide benefits allowable under this section or to grant additional medical or hospital care to the claimant. The board shall establish procedures for the resolution of disputes arising out of a voluntary reopening of a claim under this section.

(6) Any claim reopened under this section shall be closed by the insurer or self-insured employer in a manner prescribed by the board, including, when appropriate, an award of permanent disability benefits as determined under subsections (1)(b) and (2)(d) of this section. The board shall also prescribe a process to be followed if the worker objects to the claim closure.

(7) The provisions of this section do not authorize the board, on its own motion, to modify, change or terminate former findings or orders:

(a) That a claimant incurred no injury or incurred a noncompensable injury; or

(b) Approving disposition of a claim under ORS 656.236 (Compromise and release of claim matters except for medical benefits) or 656.289 (Orders of Administrative Law Judge) (4). [Amended by 1955 c.718 §1; 1957 c.559 §1; 1965 c.285 §33; 1981 c.535 §32; 1985 c.212 §6; 1987 c.884 §37; 1990 c.2 §19; 1995 c.332 §33; 2001 c.865 §11; 2005 c.188 §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

Employer may not ap­peal board decision that neither increases nor decreases award. Morton v. N.W. Foundry, 36 Or App 259, 584 P2d 346 (1978), Sup Ct review denied

Legislature did not intend that a claimant’s ap­peal rights granted by ORS 656.268 (Claim closure) should prematurely terminate when his aggrava­tion rights expire and, when claim is opened during time claimant still has ap­peal rights, closure of that claim carries with it right of ap­peal whenever issued. Coombs v. SAIF, 39 Or App 293, 592 P2d 242 (1979)

In limiting right of ap­peal, “former award” refers to award made prior to exercise of own mo­tion power. Christiani v. SAIF, 40 Or App 827, 596 P2d 621 (1979), Sup Ct review denied

Because claim was reopened during time claimant had right to ap­peal, closing order was not on board’s “own mo­tion” and was therefore ap­pealable. Carter v. SAIF, 52 Or App 1027, 630 P2d 397 (1981)

Board must explain conclusion when pre­vi­ous determina­tions are directly contrary. Wausau Ins. Co. v. Morris, 103 Or App 270, 796 P2d 1243 (1990)

Employer may not seek review of own mo­tion order that does not increase award, even if determina­tion is not based on merits of claim. SAIF v. Wheeler, 110 Or App 453, 823 P2d 434 (1992), Sup Ct review denied

Even though Workers’ Compensa­tion Board’s award of benefits was erroneous, insurer was entitled to reimburse­ment under ORS 656.625 (Reopened Claims Program). EBI Companies v. Dept. of Ins. and Finance, 114 Or App 356, 834 P2d 539 (1992), Sup Ct review denied

Board lacks authority to award voca­tional services or other unenumerated benefits on own mo­tion claims. Harsh v. Harsco Corp., 123 Or App 383, 859 P2d 1178 (1993), Sup Ct review denied

Board has original jurisdic­tion to enforce own mo­tion order. Orman v. SAIF, 131 Or App 653, 886 P2d 503 (1994)

Where worker has suffered worsening of compensable injury instead of new or omitted medical condi­tion, worker may not obtain addi­tional permanent disability benefits. Goddard v. Liberty Northwest Insurance Corp., 193 Or App 238, 89 P3d 1215 (2004)

Award of insurer-paid attorney fees is not increase in compensa­tion award for purposes of ap­pealability of order of Workers’ Compensa­tion Board. Liberty Northwest Insurance Corp. v. Samel, 199 Or App 540, 112 P3d 414 (2005)

Under 1999 version of this sec­tion, Workers’ Compensa­tion Board may not, on its own mo­tion, suspend claimant’s temporary disability pay­ments for failure to cooperate with physical therapy recommenda­tions. Jordan v. SAIF, 343 Or 208, 167 P3d 451 (2007)

This sec­tion does not require curative treat­ment in context of new or omitted medical condi­tion to be in lieu of hospitaliza­tion. Butcher v. SAIF Corp., 247 Or App 684, 270 P3d 385 (2012), Sup Ct review denied

Where claimant had compensable injury that physician determined was not medically sta­tionary, and physician prescribed pain medica­tion, muscle relaxers and other treat­ment but did not make “palliative care plan”, physician’s authoriza­tion for claimant’s temporary disability for “curative treat­ment” as used in this sec­tion, is supported by substantial evidence. SAIF Corpora­tion v. Camarena, 264 Or App 400, 332 P3d 341 (2014)

Completed Cita­tions

Willamson v. SAIF, 6 Or App 95, 487 P2d 110 (1971)

Law Review Cita­tions

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 (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.