Workers' Compensation

ORS 656.266
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]

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)

§§ 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