2017 ORS 656.802¹
Occupational disease
  • mental disorder
  • proof

(1)(a) As used in this chapter, “occupational disease” means any disease or infection arising out of and in the course of employment caused by substances or activities to which an employee is not ordinarily subjected or exposed other than during a period of regular actual employment therein, and which requires medical services or results in disability or death, including:

(A) Any disease or infection caused by ingestion of, absorption of, inhalation of or contact with dust, fumes, vapors, gases, radiation or other substances.

(B) Any mental disorder, whether sudden or gradual in onset, which requires medical services or results in physical or mental disability or death.

(C) Any series of traumatic events or occurrences which requires medical services or results in physical disability or death.

(b) As used in this chapter, “mental disorder” includes any physical disorder caused or worsened by mental stress.

(2)(a) The worker must prove that employment conditions were the major contributing cause of the disease.

(b) If the occupational disease claim is based on the worsening of a preexisting disease or condition pursuant to ORS 656.005 (Definitions) (7), the worker must prove that employment conditions were the major contributing cause of the combined condition and pathological worsening of the disease.

(c) Occupational diseases shall be subject to all of the same limitations and exclusions as accidental injuries under ORS 656.005 (Definitions) (7).

(d) Existence of an occupational disease or worsening of a preexisting disease must be established by medical evidence supported by objective findings.

(e) Preexisting conditions shall be deemed causes in determining major contributing cause under this section.

(3) Notwithstanding any other provision of this chapter, a mental disorder is not compensable under this chapter unless the worker establishes all of the following:

(a) The employment conditions producing the mental disorder exist in a real and objective sense.

(b) The employment conditions producing the mental disorder are conditions other than conditions generally inherent in every working situation or reasonable disciplinary, corrective or job performance evaluation actions by the employer, or cessation of employment or employment decisions attendant upon ordinary business or financial cycles.

(c) There is a diagnosis of a mental or emotional disorder which is generally recognized in the medical or psychological community.

(d) There is clear and convincing evidence that the mental disorder arose out of and in the course of employment.

(4) Death, disability or impairment of health of firefighters of any political division who have completed five or more years of employment as firefighters, caused by any disease of the lungs or respiratory tract, hypertension or cardiovascular-renal disease, and resulting from their employment as firefighters is an “occupational disease.” Any condition or impairment of health arising under this subsection shall be presumed to result from a firefighter’s employment. However, any such firefighter must have taken a physical examination upon becoming a firefighter, or subsequently thereto, which failed to reveal any evidence of such condition or impairment of health which preexisted employment. Denial of a claim for any condition or impairment of health arising under this subsection must be on the basis of clear and convincing medical evidence that the cause of the condition or impairment is unrelated to the firefighter’s employment.

(5)(a) Death, disability or impairment of health of a nonvolunteer firefighter employed by a political division or subdivision who has completed five or more years of employment as a nonvolunteer firefighter is an occupational disease if the death, disability or impairment of health:

(A) Is caused by brain cancer, colon cancer, stomach cancer, testicular cancer, prostate cancer, multiple myeloma, non-Hodgkin’s lymphoma, cancer of the throat or mouth, rectal cancer, breast cancer or leukemia;

(B) Results from the firefighter’s employment as a nonvolunteer firefighter; and

(C) Is first diagnosed by a physician after July 1, 2009.

(b) Any condition or impairment of health arising under this subsection is presumed to result from the firefighter’s employment. Denial of a claim for any condition or impairment of health arising under this subsection must be on the basis of clear and convincing medical evidence that the condition or impairment was not caused or contributed to in material part by the firefighter’s employment.

(c) Notwithstanding paragraph (b) of this subsection, the presumption established under paragraph (b) of this subsection may be rebutted by clear and convincing evidence that the use of tobacco by the nonvolunteer firefighter is the major contributing cause of the cancer.

(d) The presumption established under paragraph (b) of this subsection does not apply to prostate cancer if the cancer is first diagnosed by a physician after the firefighter has reached the age of 55. However, nothing in this paragraph affects the right of a firefighter to establish the compensability of prostate cancer without benefit of the presumption.

(e) The presumption established under paragraph (b) of this subsection does not apply to claims filed more than 84 months following the termination of the nonvolunteer firefighter’s employment as a nonvolunteer firefighter. However, nothing in this paragraph affects the right of a firefighter to establish the compensability of the cancer without benefit of the presumption.

(f) The presumption established under paragraph (b) of this subsection does not apply to volunteer firefighters.

(g) Nothing in this subsection affects the provisions of subsection (4) of this section.

(h) For purposes of this subsection, “nonvolunteer firefighter” means a firefighter who performs firefighting services and receives salary, hourly wages equal to or greater than the state minimum wage, or other compensation except for room, board, lodging, housing, meals, stipends, reimbursement for expenses or nominal payments for time and travel, regardless of whether any such compensation is subject to federal, state or local taxation. “Nominal payments for time and travel” includes, but is not limited to, payments for on-call time or time spent responding to a call or similar noncash benefits.

(6) Notwithstanding ORS 656.027 (Who are subject workers) (6), any city providing a disability and retirement system by ordinance or charter for firefighters and police officers not subject to this chapter shall apply the presumptions established under subsection (5) of this section when processing claims for firefighters covered by the system. [Amended by 1959 c.351 §1; 1961 c.583 §1; 1973 c.543 §1; 1977 c.734 §1; 1983 c.236 §1; 1987 c.713 §4; 1990 c.2 §43; 1995 c.332 §56; 2009 c.24 §1]

See also annota­tions under ORS 656.005 (Definitions) (Occupa­tional disease).

Notes of Decisions

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)

Workers’ Compensa­tion Law presump­tion of occupa­tional cause of firefighter’s heart disease is inapplicable to public retire­ment disability benefits cases. Mitchell v. PERB, 28 Or App 339, 559 P2d 1325 (1977), Sup Ct review denied

Temporary worsening of underlying condi­tion is compensable if requiring medical services or resulting in temporary disability. Morgan v. Beaver Heat Treating Corp., 44 Or App 209, 605 P2d 732 (1980)

Mere increase in level of pain does not es­tab­lish actual worsening of underlying condi­tion. Cooper v. SAIF, 54 Or App 659, 635 P2d 1067 (1981), Sup Ct review denied

Disability is not occupa­tional disease if on-job and off-job condi­tions are both of type capable of producing particular disability even though condi­tions are not identical. James v. SAIF, 290 Or 343, 624 P2d 565 (1981)

High intensity of on-job stress made it substantially different from off-job stress and therefore ac­tivity not ordinarily encountered outside employ­ment. SAIF v. Gygi, 55 Or App 570, 639 P2d 655 (1982), Sup Ct review denied

Where on-job condi­tion did not cause disabling pain until after sudden distinct event, claim for resulting disability was for accidental injury rather than occupa­tional disease. Valtinson v. SAIF, 56 Or App 184, 641 P2d 598 (1982)

Where disabling occupa­tional disease developed during specific employ­ment, later employ­ment that exacerbated symptoms did not shift liability from initial employer under last injurious exposure rule. Bracke v. Baza’r, Inc., 293 Or 239, 646 P2d 1330 (1982)

There Are At Least Two Last Injurious Exposure Rules

one that assigns liability where successive employ­ment contributes to totality of disease and one that substitutes for proof of actual causa­tion. Bracke v. Baza’r, Inc., 293 Or 239, 646 P2d 1330 (1982); Fossum v. SAIF, 293 Or 252, 646 P2d 1337 (1982)

Under both last injurious exposure rules, rule of liability assign­ment and rule of proof, last potentially causal employer is solely liable. Fossum v. SAIF, 293 Or 252, 646 P2d 1337 (1982)

Stressful events accompanying discharge from employ­ment arise within scope of employ­ment, but discharge and loss of job do not. Elwood v. SAIF, 298 Or 429, 693 P2d 641 (1984)

Claimant must es­tab­lish work caused worsening or accelera­tion of underlying disease, not merely worsening of symptoms. AMFAC v. Ingram, 72 Or App 168, 694 P2d 1005 (1985), 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)

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

Strain can constitute occupa­tional disease, not merely worsening of condi­tion. Tucker v. Liberty Mutual Ins. Co., 87 Or App 607, 743 P2d 761 (1987)

Where disease is of type manifested only through symptoms, presence of symptoms is sufficient to es­tab­lish existence of disease. Teledyne Wah Chang v. Vorderstrasse, 104 Or App 498, 802 P2d 83 (1990)

“Traumatic events or occurrences” refers to physical traumas only. Sibley v. City of Phoenix, 107 Or App 606, 813 P2d 69 (1991), Sup Ct review denied

“Condi­tions generally inherent in every working situa­tion” refers to condi­tions present in every employ­ment, not condi­tions generally inherent in claimant’s particular job. Housing Authority of Portland v. Zimmerly, 108 Or App 596, 816 P2d 1179 (1991); Whitlock v. Klamath County School District, 158 Or App 464, 974 P2d 705 (1999), Sup Ct review denied

Board is authorized to develop what condi­tions are generally inherent in every working situa­tion and may do so on case-by-case basis. SAIF v. Campbell, 113 Or App 93, 830 P2d 616 (1992)

Once liability is initially fixed, to shift responsibility for occupa­tional disease claim to later employer, initially responsible employer must prove that later employ­ment condi­tions actually contributed to worsening of condi­tion. Oregon Boiler Works v. Lott, 115 Or App 70, 836 P2d 756 (1992)

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)

All claims for independent compensability of mental disorder are subject to occupa­tional disease analysis regardless of suddenness of onset. Fuls v. SAIF, 129 Or App 255, 879 P2d 869 (1994), aff’d 321 Or 151, 894 P2d 1163 (1995)

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)

Physical examina­tion for evidence of disqualifying condi­tion in firefighter requires only tests customarily performed for purpose, not tests that will eliminate all possibility of disqualifying condi­tion. Winston-Dillard RFPD v. Addis, 134 Or App 98, 894 P2d 532 (1995)

Concern over possible transfer or layoff is not compensable condi­tion of employ­ment. Bogle v. Dept. of General Services, 136 Or App 351, 901 P2d 968 (1995)

Require­ment for diagnosis of mental or emo­­tion­al disorder is met by diagnosis of physical disorder caused or worsened by mental stress. SAIF v. Falconer, 154 Or App 511, 963 P2d 50 (1998), Sup Ct review denied

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)

Employer may rebut presump­tion that condi­tion is work related without identifying alternative cause for condi­tion. Long v. Tualatin Valley Fire, 163 Or App 397, 987 P2d 1267 (1999), Sup Ct review denied

Inclusion of “any disease” caused by inhala­tion of dust within defini­tion of occupa­tional disease does not extend defini­tion to injury resulting from sudden dust inhala­tion. Weyerhaeuser Co. v. Woda, 166 Or App 73, 998 P2d 226 (2000), Sup Ct review denied

In determining causa­tion under mental disorder claim, nonexcluded work-related factors are weighed against total of excluded work-related factors and non-work-related factors. Liberty Northwest Insurance Corp. v. Shotthafer, 169 Or App 556, 10 P3d 299 (2000)

Current employer may not treat disease arising from past employ­ment as preexisting disease for purpose of applying restric­tions on compensability for worsened condi­tion. SAIF v. Henwood, 176 Or App 431, 31 P3d 1096 (2001), Sup Ct review denied

Where gradual hearing loss is result of combined condi­tion, overall hearing loss is treated as disease for purposes of determining causa­tion. Lecangdam v. SAIF, 185 Or App 276, 59 P3d 528 (2002)

“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)

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)

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)

“Cardiovascular-renal disease” means physical impair­ment of heart or blood vessels that is gradual in onset and interrupts or modifies performance of body’s vital func­tions. City of Eugene v. McCann, 248 Or App 527, 273 P3d 348 (2012)

If per­son has mental disorder, heightened compensability standard for mental disorders applies instead of compensability standard for firefighters. Estacada Rural Fire District #69 v. Hull, 256 Or App 729, 303 P3d 969 (2013), Sup Ct review denied

Law Review Cita­tions

10 EL 159, 165 (1979); 17 WLR 708 (1981); 23 WLR 441, 442 (1987); 24 WLR 341 (1988); 32 WLR 217 (1996)

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.