Workers' Compensation

ORS 656.214
Permanent partial disability


(1)

As used in this section:

(a)

“Impairment” means the loss of use or function of a body part or system due to the compensable industrial injury or occupational disease determined in accordance with the standards provided under ORS 656.726 (Duties and powers to carry out workers’ compensation and occupational safety laws), expressed as a percentage of the whole person.

(b)

“Loss” includes permanent and complete or partial loss of use.

(c)

“Permanent partial disability” means:

(A)

Permanent impairment resulting from the compensable industrial injury or occupational disease; or

(B)

Permanent impairment and work disability resulting from the compensable industrial injury or occupational disease.

(d)

“Regular work” means the job the worker held at injury.

(e)

“Work disability” means impairment modified by age, education and adaptability to perform a given job.

(2)

When permanent partial disability results from a compensable injury or occupational disease, benefits shall be awarded as follows:

(a)

If the worker has been released to regular work by the attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) or has returned to regular work at the job held at the time of injury, the award shall be for impairment only. Impairment shall be determined in accordance with the standards provided 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) (4). Impairment benefits are determined by multiplying the impairment value times 100 times the average weekly wage as defined by ORS 656.005 (Definitions).

(b)

If the worker has not been released to regular work by the attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 (Medical services to be provided) or has not returned to regular work at the job held at the time of injury, the award shall be for impairment and work disability. Work disability shall be determined in accordance with the standards provided by the director pursuant to ORS 656.726 (Duties and powers to carry out workers’ compensation and occupational safety laws) (4). Impairment shall be determined as provided in paragraph (a) of this subsection. Work disability benefits shall be determined by multiplying the impairment value, as modified by the factors of age, education and adaptability to perform a given job, times 150 times the worker’s weekly wage for the job at injury as calculated under ORS 656.210 (Temporary total disability) (2). The factor for the worker’s weekly wage used for the determination of the work disability may be no more than 133 percent or no less than 50 percent of the average weekly wage as defined in ORS 656.005 (Definitions).

(3)

Impairment benefits awarded under subsection (2)(a) of this section shall be expressed as a percentage of the whole person. Impairment benefits for the following body parts may not exceed:

(a)

For the loss of one arm at or above the elbow joint, 60 percent.

(b)

For the loss of one forearm at or above the wrist joint, or the loss of one hand, 47 percent.

(c)

For the loss of one leg, at or above the knee joint, 47 percent.

(d)

For the loss of one foot, 42 percent.

(e)

For the loss of a great toe, six percent; for loss of any other toe, one percent.

(f)

For partial or complete loss of hearing in one ear, that proportion of 19 percent which the loss bears to normal monaural hearing.

(g)

For partial or complete loss of hearing in both ears, that proportion of 60 percent which the combined binaural hearing loss bears to normal combined binaural hearing. For the purpose of this paragraph, combined binaural hearing loss shall be calculated by taking seven times the hearing loss in the less damaged ear plus the hearing loss in the more damaged ear and dividing that amount by eight. In the case of individuals with compensable hearing loss involving both ears, either the method of calculation for monaural hearing loss or that for combined binaural hearing loss shall be used, depending upon which allows the greater award of impairment.

(h)

For partial or complete loss of vision of one eye, that proportion of 31 percent which the loss of monocular vision bears to normal monocular vision. For the purposes of this paragraph, the term “normal monocular vision” shall be considered as Snellen 20/20 for distance and Snellen 14/14 for near vision with full sensory field.

(i)

For partial loss of vision in both eyes, that proportion of 94 percent which the combined binocular visual loss bears to normal combined binocular vision. In all cases of partial loss of sight, the percentage of said loss shall be measured with maximum correction. For the purpose of this paragraph, combined binocular visual loss shall be calculated by taking three times the visual loss in the less damaged eye plus the visual loss in the more damaged eye and dividing that amount by four. In the case of individuals with compensable visual loss involving both eyes, either the method of calculation for monocular visual loss or that for combined binocular visual loss shall be used, depending upon which allows the greater award of impairment.

(j)

For the loss of a thumb, 15 percent.

(k)

For the loss of a first finger, eight percent; of a second finger, seven percent; of a third finger, three percent; of a fourth finger, two percent.

(4)

The loss of one phalange of a thumb, including the adjacent epiphyseal region of the proximal phalange, is considered equal to the loss of one-half of a thumb. The loss of one phalange of a finger, including the adjacent epiphyseal region of the middle phalange, is considered equal to the loss of one-half of a finger. The loss of two phalanges of a finger, including the adjacent epiphyseal region of the proximal phalange of a finger, is considered equal to the loss of 75 percent of a finger. The loss of more than one phalange of a thumb, excluding the epiphyseal region of the proximal phalange, is considered equal to the loss of an entire thumb. The loss of more than two phalanges of a finger, excluding the epiphyseal region of the proximal phalange of a finger, is considered equal to the loss of an entire finger. A proportionate loss of use may be allowed for an uninjured finger or thumb where there has been a loss of effective opposition.

(5)

A proportionate loss of the hand may be allowed where impairment extends to more than one digit, in lieu of ratings on the individual digits.

(6)

All permanent disability contemplates future waxing and waning of symptoms of the condition. The results of waxing and waning of symptoms may include, but are not limited to, loss of earning capacity, periods of temporary total or temporary partial disability, or inpatient hospitalization. [Amended by 1953 c.669 §4; 1955 c.716 §1; 1957 c.449 §1; 1965 c.285 §22d; 1967 c.529 §1; 1971 c.178 §1; 1977 c.557 §1; 1979 c.839 §27; 1981 c.535 §27; 1985 c.506 §3; 1987 c.884 §36; 1990 c.2 §7; 1995 c.332 §17; 1999 c.6 §7; 1999 c.876 §2; 2001 c.865 §6; 2003 c.657 §§1,2; 2005 c.653 §§3,4; 2007 c.274 §1]

Notes of Decisions

In General

Award is not to be divided into separate physical disability and loss of earning capacity components. Grossen v. Griffey & Laird Logging Co., 7 Or App 600, 492 P2d 820 (1972)

Loss of use is not measured exclusively by impairment to range of motion. Boyce v. Sambo's Restaurant, 44 Or App 305, 605 P2d 1213 (1980)

Loss need not be solely due to physical disability, but can include loss resulting from psychological overlay. Mesa v. Barker Manufacturing, 66 Or App 161, 672 P2d 1378 (1983)

When pain has disabling effects, they must be considered in establishing awards for unscheduled permanent partial disability. Harwell v. Argonaut Ins. Co., 296 Or 505, 678 P2d 1202 (1984)

Workers' Compensation Board must give reasoned explanation of why facts found led to conclusion that claimant was entitled to specific percentage of permanent partial disability. Matthies v. Tillamook County Creamery Assoc., 101 Or App 44, 788 P2d 1032 (1990); Brown v. Gold Beach Dairy Queen, 109 Or App 509, 820 P2d 830 (1991)

This section does not require that factors of age, education, impairment and adaptability necessarily affect extent of disability in every case, nor does it specify weight to be given those factors in particular situations. Harrison v. Taylor Lumbering & Treating, Inc., 111 Or App 325, 826 P2d 75 (1992)

Aggravations are measured by same standard that made condition originally compensable. Fred Meyer, Inc. v. Farrow, 122 Or App 164, 857 P2d 189 (1993)

Where one or more factors to be considered exceed zero, assignment of zero value to factors taken as whole does not fulfill requirement for modifying impairment. Carroll v. Boise Cascade Corp., 138 Or App 610, 910 P2d 1111 (1996)

Worker who has been released for work by attending physician or nurse practitioner, but who is unable to return to work for cause not related to injury, is not entitled to work disability. Suchi v. SAIF, 238 Or App 48, 241 P3d 1174 (2010), Sup Ct review denied

"Regular work" includes work that worker actually performs on steady or customary basis, including elective overtime. Thrifty Payless, Inc. v. Cole, 247 Or App 232, 269 P3d 76 (2011)

Where claimant's contributing causes include accelerated aging effects from long-term smoking and mild degenerative conditions that are not part of compensable injury to lower back or legally cognizable preexisting conditions, contributing causes are not considered in impairment calculation. Schleiss v. SAIF, 354 Or 637, 317 P3d 244 (2013)

Scheduled Disabilities

Medical diagnosis of condition is not always required to make out prima facie causal relationship between injury and condition. Volk v. Birdseye Div., 16 Or App 349, 518 P2d 672 (1974), Sup Ct review denied

If all claimant's disabilities are scheduled, they cannot be combined to qualify claimant for unscheduled permanent total disability. Rencken v. SAIF, 17 Or App 210, 521 P2d 551 (1974)

Requirement that disability be rated based on loss due to industrial injury means that specified method for measuring hearing loss cannot include pre-existing loss. Nomeland v. City of Portland, 106 Or App 77, 806 P2d 175 (1991); Papen v. Willamina Lumber Co., 123 Or App 249, 859 P2d 1166 (1993), Sup Ct review denied

Where claimant's award for hearing loss was originally based on binaural method, claimant could not later claim additional compensation based on monaural method. Wardell v. Smurfit Newsprint, 107 Or App 358, 812 P2d 21 (1991)

Requirement that vision loss involving both eyes be assessed as greater of monocular vision loss or binocular vision loss does not apply where condition is present only when both eyes are open. Gordon v. City of Portland, 144 Or App 471, 927 P2d 96 (1996)

Unscheduled Disabilities

Earning capacity must be considered in connection with a worker's handicap in obtaining and holding gainful employment in the broad field of general industrial occupations and not just in relationship to his occupation at any given time. Ford v. SAIF, 7 Or App 549, 492 P2d 491 (1971)

Notwithstanding that claimant suffered no loss of visual acuity from eye injury after maximum correction, where there was additional permanent and partial loss of use of claimant's eye disability was compensable. Russell v. SAIF, 281 Or 353, 574 P2d 653 (1978)

Where claimant developed further disability from injury for which scheduled award was previously made, unscheduled award could be made where further disability was independent of scheduled disability and not intrinsic result of original injury. Woodman v. Georgia-Pacific Corp., 289 Or 551, 614 P2d 1162 (1980)

Completed Citations

Hawes v. SAIF, 6 Or App 136, 486 P2d 1294 (1971)

Law Review Citations

52 OLR 190-200 (1973)

§§ 656.001 to 656.794

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)


Source

Last accessed
Jun. 26, 2021