Workers’ Compensation

ORS 656.802
Occupational disease

mental disorder

presumptions as to stress disorders

proof

Text
Annotations 42

(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)

(a)

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.

(b)

Notwithstanding ORS 656.027 (Who are subject workers) (6), a city that provides a disability or retirement system for firefighters by ordinance or charter that is not subject to this chapter, when accepting and processing claims for death, disability or impairment of health from firefighters covered by the disability or retirement system, shall apply:

(A)

The provisions of this subsection; and

(B)

For claims filed under this subsection, the time limitations for filing claims that are set forth in ORS 656.807 (Time for filing of claims for occupational disease) (1) and (2).

(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.

(7)

(a)

As used in this subsection:

(A)

“Acute stress disorder” has the meaning given that term in the DSM-5.

(B)

“Covered employee” means an individual who, on the date a claim is filed under this chapter:

(i)

Was employed for at least five years by, or experienced a single traumatic event that satisfies the criteria set forth in the DSM-5 as Criterion A for diagnosing post-traumatic stress disorder while employed by, the state, a political subdivision of the state, a special government body, as defined in ORS 174.117 (“Special government body” defined), or a public agency in any of these occupations:

(I)

A full-time paid firefighter;

(II)

A full-time paid emergency medical services provider;

(III)

A full-time paid police officer;

(IV)

A full-time paid corrections officer or youth correction officer;

(V)

A full-time paid parole and probation officer; or

(VI)

A full-time paid emergency dispatcher or 9-1-1 emergency operator; and

(ii)

Remains employed in an occupation listed in sub-subparagraph (i) of this subparagraph or separated from employment in the occupation not more than seven years previously.

(C)

“DSM-5” means the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.

(D)

“Post-traumatic stress disorder” has the meaning given that term in the DSM-5.

(E)

“Psychiatrist” means a psychiatrist whom the Oregon Medical Board has licensed and certified as eligible to diagnose the conditions described in this subsection.

(F)

“Psychologist” means a licensed psychologist, as defined in ORS 675.010 (Definitions for ORS 675), whom the Oregon Board of Psychology has certified as eligible to diagnose the conditions described in this subsection.

(b)

Notwithstanding subsections (2) and (3) of this section, if a covered employee establishes through a preponderance of persuasive medical evidence from a psychiatrist or psychologist that the covered employee has more likely than not satisfied the diagnostic criteria in the DSM-5 for post-traumatic stress disorder or acute stress disorder, any resulting death, disability or impairment of health of the covered employee shall be presumed to be compensable as an occupational disease. An insurer or self-insured employer may rebut the presumption only by establishing through clear and convincing medical evidence that duties as a covered employee were not of real importance or great consequence in causing the diagnosed condition.

(c)

An insurer’s or self-insured employer’s acceptance of a claim of post-traumatic stress disorder or acute stress disorder under this subsection, whether the acceptance was voluntary or was a result of a judgment or order, does not preclude the insurer or the self-insured employer from later denying the current compensability of the claim if exposure as a covered employee to trauma that meets the diagnostic criteria set forth as Criterion A in the DSM-5 for post-traumatic stress disorder or acute stress disorder ceases being of real importance or great consequence in causing the disability, impairment of health or a need for treatment.

(d)

An insurer or self-insured employer may deny a claim under paragraph (c) of this subsection only on the basis of clear and convincing medical evidence.

(e)

Notwithstanding ORS 656.027 (Who are subject workers) (6), a city that provides a disability or retirement system for firefighters and police officers by ordinance or charter that is not subject to this chapter, when accepting and processing claims for death, disability or impairment of health from firefighters and police officers covered by the disability or retirement system, shall apply:

(A)

The provisions of this subsection; and

(B)

For claims filed under this subsection, the time limitations for filing claims that are set forth in ORS 656.807 (Time for filing of claims for occupational disease) (1) and (2). [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; 2019 c.372 §1; 2021 c.124 §1]

See also annotations under ORS 656.005 (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); Kalenius v. City of Corvallis, 313 Or App 447, 495 P3d 209 (2021), Sup Ct review denied

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

Worker may establish compensability of occupational disease based on series of traumatic events or occurrences without showing contribution from general work activities. Simi v. LTI Inc. -Lynden Inc., 300 Or App 258, 453 P3d 587 (2019)

Investigations that do not ultimately lead to discipline but that are preludes to discipline are disciplinary for purposes of this section. Vaughn v. Marion County, 305 Or App 1, 469 P3d 231 (2020)

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)