ORS 656.273
Aggravation for worsened conditions; procedure; limitations; additional compensation


(1)

After the last award or arrangement of compensation, an injured worker is entitled to additional compensation for worsened conditions resulting from the original injury. A worsened condition resulting from the original injury is established by medical evidence of an actual worsening of the compensable condition supported by objective findings. However, if the major contributing cause of the worsened condition is an injury not occurring within the course and scope of employment, the worsening is not compensable. A worsened condition is not established by either or both of the following:

(a)

The worker’s absence from work for any given amount of time as a result of the worker’s condition from the original injury; or

(b)

Inpatient treatment of the worker at a hospital for the worker’s condition from the original injury.

(2)

To obtain additional medical services or disability compensation, the injured worker must file a claim for aggravation with the insurer or self-insured employer. In the event the insurer or self-insured employer cannot be located, is unknown, or has ceased to exist, the claim shall be filed with the Director of the Department of Consumer and Business Services.

(3)

A claim for aggravation must be in writing in a form and format prescribed by the director and signed by the worker or the worker’s representative and the worker’s attending physician. When an insurer or self-insured employer receives a completed aggravation form, the insurer or self-insured employer shall process the claim.

(4)

The claim for aggravation must be filed within five years:

(a)

After the first notice of closure made under ORS 656.268 (Claim closure) for a disabling claim; or

(b)

After the date of injury, provided the claim has been classified as nondisabling for at least one year after the date of acceptance.

(5)

The director may order the claimant, the insurer or self-insured employer to pay for such medical opinion.

(6)

A claim submitted in accordance with this section shall be processed by the insurer or self-insured employer in accordance with the provisions of ORS 656.262 (Processing of claims and payment of compensation). The first installment of compensation due under ORS 656.262 (Processing of claims and payment of compensation) shall be paid no later than the 14th day after the subject employer or paying agent of the subject employer receives a written report that verifies the worker’s inability to work resulting from a compensable worsening under subsection (1) of this section and that establishes by medical evidence supported by objective findings that the claimant has suffered a worsened condition attributable to the compensable injury.

(7)

A request for hearing on any issue involving a claim for aggravation must be made to the Workers’ Compensation Board in accordance with ORS 656.283 (Hearing rights and procedure).

(8)

If the worker submits a claim for aggravation of an injury or disease for which permanent disability has been previously awarded, the worker must establish that the worsening is more than waxing and waning of symptoms of the condition contemplated by the previous permanent disability award. [1973 c.620 §5 (enacted in lieu of 656.271); 1975 c.497 §1; 1977 c.804 §7; 1979 c.839 §6; 1981 c.854 §20; 1987 c.884 §23; 1989 c.171 §76; 1990 c.2 §18; 1995 c.332 §31; 1999 c.313 §2; 2001 c.350 §1; 2005 c.50 §1]

See also annotations under ORS 656.271 in permanent edition.

Notes of Decisions

Under Former Similar Statute (Ors 656.271)

Same procedure applies to aggravation claims for injury and aggravation claims for occupational disease. Schoch v. SAIF, 9 Or App 100, 496 P2d 53 (1972)

Physician’s opinion in support of aggravation claim must indicate that there are reasonable grounds for claim that disability has been aggravated subsequent to last award or arrangement of compensation, and in absence of opinion that meets this requirement, board lacks jurisdiction to award increased compensation on account of aggravation. McKinney v. G. L. Pine, Inc., 16 Or App 619, 519 P2d 1265 (1974)

In General

Payment of medical expenses under ORS 656.245 following filing of claim does not amount to acceptance and does not estop employer or insurer from contesting claim. Jacobson v. SAIF, 36 Or App 789, 585 P2d 1146 (1978), Sup Ct review denied

Increased loss of earning capacity is not prerequisite to aggravation claim. Webster v. SAIF, 52 Or App 957, 630 P2d 375 (1981)

In claim for increased compensation for unscheduled disability, worker need not show decreased ability to work in present employment, but must prove decreased ability to work in broad field of general occupations, resulting in loss of earning power. Smith v. SAIF, 302 Or 396, 730 P2d 30 (1986)

For purpose of commencing acceptance period, insurer has “notice or knowledge” of claim beginning with date claim notice is received by insurer. Barr v. EBI Companies, 88 Or App 132, 744 P2d 582 (1987)

Psychologist is “physician” capable of providing medical verification of inability to work. Crooke v. Gresham Transfer, 88 Or App 246, 744 P2d 1316 (1987)

In order to obtain increased award of permanent disability, worker must show that worsening of health condition resulted from original injury. Stepp v. SAIF, 304 Or 375, 745 P2d 1207 (1987); Nethercott v. SAIF, 126 Or App 210, 867 P2d 566 (1994)

Worker who had returned to work while claim remained open was entitled to receive temporary total disability benefits for later inability to work although no worsening of condition was shown, because worsening is required only after claim has initially been closed. Hallmark Fisheries v. Harvey, 100 Or App 657, 788 P2d 471 (1990)

Worker needs to prove only that worsening has resulted in loss of earning capacity, not actual wage loss. International Paper Co. v. Hubbard, 109 Or App 452, 820 P2d 35 (1991)

Worsened condition is rated under system existing at time of worsening, not rating system existing at time of initial claim closure. Buddenberg v. Southcoast Lumber, 112 Or App 148, 826 P2d 1062 (1992), aff’d 316 Or 180, 850 P2d 360 (1993)

Limitation for filing claim for injury that has been “in nondisabling status for one year” applies only where injury is nondisabling at time of injury and remains nondisabling for one year following time of injury. SM Motor Co. v. Mather, 117 Or App 176, 843 P2d 998 (1992)

Where claimant’s injury was initially disabling, it was subject to limitation of five years from first determination or first notice of closure. SM Motor Co. v. Mather, 117 Or App 176, 843 P2d 998 (1992)

Where injury was reclassified from nondisabling to disabling more than one year after injury and claimant failed to establish that injury became disabling within one year after injury date, claimant was subject to aggravation of claims limit of five years from injury date. Normandeau v. Aetna Casualty & Surety Co., 120 Or App 184, 851 P2d 217 (1993)

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

Claimant is not required to prove diminished capacity to work in order to pursue claim for additional medical services. Meyers v. Darigold, Inc., 123 Or App 217, 861 P2d 352 (1993), Sup Ct review denied

Once claimant establishes that compensable injury is material contributing cause to injury, employer claiming that off-the-job injury is major cause of aggravated condition has burden of proof. Fernandez v. M & M Reforestation, 124 Or App 38, 860 P2d 898 (1993); Asplundh Tree Expert Co. v. Hart, 132 Or App 494, 888 P2d 1082 (1995), Sup Ct review denied

Medical verification of inability to work must come from attending physician to trigger insurer obligation to commence payment of aggravation claim benefits. SAIF v. Christensen, 130 Or App 346, 882 P2d 125 (1994)

Claim must be accepted and classified as nondisabling before it can be in “nondisabling status.” Liberty Northwest Ins. Corp. v. Koitzsch, 140 Or App 194, 914 P2d 1102 (1996)

“Actual worsening” of compensable condition means worsening of pathological condition as determined by direct medical evidence, not by worsening of symptoms. SAIF v. Walker, 145 Or App 294, 930 P2d 230 (1996), aff’d 330 Or 102, 996 P2d 979 (2000)

1995 amendments did not remove requirement that claimant prove loss of earning capacity as element of unscheduled disability aggravation claim. Intel Corp. v. Renfro, 155 Or App 447, 963 P2d 173 (1998)

Increased symptomatology beyond waxing and waning contemplated by previous award may be relied upon by physician in determining whether underlying condition has actually worsened. SAIF v. Walker, 330 Or 102, 996 P2d 979 (2000)

“Objective findings” supporting claim for aggravation must, at least as prima facie matter, evince worsening of claimant’s condition. Liberty Northwest Insurance Corp. v. Stapleton, 192 Or App 312, 84 P3d 1116 (2004)

Claimant may request hearing on aggravation claim without perfecting that claim where insurer has denied claim on merits. Ake v. SAIF, 192 Or App 617, 87 P3d 673 (2004)

Where claimant experiences pathological changes, proof of aggravation does not require opinion of medical expert that changes are due to worsening of compensable condition. Johnson v. SAIF, 194 Or App 689, 96 P3d 830 (2004)

If worsened condition is established, worker is once again entitled to broader suite of medical services required by worker’s compensation statutes for conditions caused in material part by original compensable injury. Basin Tire Service, Inc. v. Minyard, 240 Or App 715, 249 P3d 127 (2011)

Atty. Gen. Opinions

In General

Constitutionality of application, (1976) Vol 37, p 1079; procedural quality of provisions, (1976) Vol 37, p 1079

Law Review Citations

In General

27 WLR 94 (1991); 32 WLR 217 (1996)

§§ 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)


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