Permanent total disability
Source:
Section 656.206 — Permanent total disability, https://www.oregonlegislature.gov/bills_laws/ors/ors656.html
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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)
Attorney General 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