DEFINITIONS

Employer

The term employer means “any person, including receiver, administrator, executor or trustee, and the state, state agencies, counties, municipal corporations, school districts and other public corporations or political subdivisions, who contracts to pay a remuneration for and secures the right to direct and control the services of any person.” ORS 656.005(13)(a).

The client of a temporary service provider, as defined by ORS 656.850(1)(c), is not an employer of the temporary workers provided by the temporary service provider. ORS 656.005(13)(b).

The “contract” to pay remuneration can be implied. Furthermore, an “implied contract” does not require violation to enter into the contract.

A subject employer means an employer who is subject to ORS chapter 656 as provided by ORS 656.023. ORS 656 005(27). “Every employer employing one or more subject workers in the state” is a subject employer. ORS 656.023. A subject employer must ensure that subject workers are covered by workers’ compensation insurance. ORS 656.017. Coverage is mandatory, and a violation results in a proposed order declaring noncomplying employer status. Civil penalties may be assessed. Failure to comply after the order becomes final is a ground for a permanent injunction prohibiting employment of subject workers without complying with ORS 656.017. ORS 656.052(3).

Worker

A worker is any person, including a minor whether lawfully or unlawfully employed, who engages to furnish services for a remuneration, subject to the direction and control of an employer and includes salaried, elected and appointed officials of the state, state agencies, counties, cities, school districts and other public corporations, but does not include any person whose services are performed as an inmate or ward of a state institution or as part of the eligibility requirements for a general or public assistance grant. ORS 656.005(3).

Subject Worker

“Subject worker” means a worker who is subject to ORS chapter 656. All workers are covered except those specifically excluded as “nonsubject’ workers under ORS 656.027. Persons injured when applying for employment are not subject workers. Susznik v. Alger Logging Co., 76 Or 189, 195-198, 147 P 922 (1915); Dykes v. SAIF, 47 Or App 187, 613 P2d 1106 (1980).

Part-Time Workers

Part-time workers are not exempt merely because they are employed on a weekend or other part-time basis. The nature of the employment relationship, not the number of hours worked per week, determines subject-worker status.

Minors

A minor working at an age legally permitted under that laws of the state is considered of full age and capacity for the purpose of ORS 656.001-656.794. ORS 656.132(1). No other person has a cause of action or right to compensation for an injury to a minor of legal working age. If an employer in good faith employs a minor under the legal working age and the minor sustains an injury or suffers death in such employment, the minor is conclusively presumed to have accepted the provisions of ORS 656.001-656.794. and cannot sue outside the workers’ compensation system. ORS 656.132(2); Clevidence v. Portland School Dist. #1, 125 Or App 608, 866 P2d 492 (1994).

Worker or Independent Contractor

Oregon courts have provided an analysis to determine whether a worker is a subject worker or an independent contractor. See S-W Floor Cover Shop v. Natl. Council on Comp. Ins., 318 Or 614, 872 P2d 1 (1994). The first step is to determine whether one is a worker under ORS 656.005(30) by using the judicially created “right to control” test. If a person is not a worker under this test, then the analysis ends. If the “right to control” test is inconclusive, then the court applies the “relative nature of the work” test. If a person is a worker under this test, then the second step is to analysis whether the person is a nonsubject worker based on the exceptions set forth in ORS 656.027.

If the right to control is not expressly contracted for, it may be ascertained by an examination of various secondary considerations. Among these are: payment of wages; furnishing and maintaining equipment; right to hire and right to discharge; right to control the details of the method of performance; and the right to control work schedules. Butts v. State Ind. Acc. Comm., 193 Or 417, 427, 239 P2d 238 (1951), overruled in part on other grounds, 276 Or 189 (1976).

Before the common law test can be applied, there must be a valid contract to pay remuneration. The contract may be either express or implied.

A volunteer provides gratuitous assistance, without remuneration, not services pursuant to a contract. See Smith v. SAIF, 144 Or 480, 23 P2d 904 (1933).

Common Law Test

If a contractual relationship can be found between the parties, a court will then look to the employer’s right to control over the employee. S-W Floor Cover Shop v. Natl. Council on Comp. Ins., 318 Or 614, 622, 872 P2d 1 (1994). The inquiry regarding “direction and control” should begin with an examination of prior analogous interpretations by the Supreme Court as guidance, rather than writing each case on a clean slate. Rubalcaba v. Nagaki Farms, Inc., 333 Or 614, 619-20, 43 P3d 1106 (2002). The ultimate test in determining the right to control “is based not on the actual exercise of control…..but on the right to control.” See Bauer v. Richardson, 3 Or App 578, 475 P2d 995 (1970).

If the right to control is not expressly contracted for, it may be ascertained by the examination of various secondary considerations. Among these are:
(1) Payment of wages;
(2) Furnishing and maintaining equipment;
(3) Right to hire assistants;
(4) Right to discharge;
(5) Right to control the details of the method of performance; and
(6) Right to control work schedules.

Butts. v. State Ind. Acc. Comm., 193 Or 417, 427, 239 P2d 238 (1951).
“A[s] between [right of control] and payment of wages, control is the decisive factor for determining employment.” Multnomah County v. Hunter, 54 Or App 718, 722, 635 P2d 1371 (1981).

When the right to control test is not conclusive because the employer has the right to control a claimant’s performance in some aspects but not others, then the “relative nature of the work” test may be applied. Henn v. SAIF, 60 Or App 587, 593, 654 P2d 1129 (1982). The test for the relative nature of the work is based on the cost-spreading theory that the consumer should ultimately bear the cost of industrial accidents as part of the cost of the product. Woody v. Waibel, 276 Or 189, 195, 554 P2d 492 (1976).

The relative nature of the work test requires examination of the character of the claimant’s work and its relationship to the employer’s business. Questions relative to a claimant’s work include:
(1) What degree of skill is required to do the work?
(2) How much of a separate enterprise is the claimant’s work?
(3) To what extent should the claimant be expected to carry his or her own accident burden?
Questions relative to an employer’s business include:
(1) To what degree is the claimant’s work a part of the employer’s regular business?
(2) Is the work continuous or intermittent?
(3) Does the duration of employment indicate hiring for continuous services or for a particular job?

New law in this state defines an “independent contractor as “a person who provides services for remuneration” and then reduces the test to four factors that include:
(1) Whether the person is “free from direction and control over the means and manner of providing services,” subject to the employer’s right to specify desired results;
(2) Whether the person is “customarily engaged in an independently established business”;
(3) Whether the person is licensed as a construction contractor or architect, if applicable; and
(4) Whether the person is responsible for obtaining any necessary licenses or certificates to provide the services. ORS 670.600.

Workers and Employers Excluded by Statute

Oregon law provides a list of exceptions to providing workers’ compensation benefits, namely: domestic service workers; workers during gardening, maintenance, repair, remodeling or similar work; casual employment (total labor cost must not exceed $500 in any 30-day period and the employment must not be in the course, trade, business or profession of the subject employer); workers covered by federal law; interstate transportation workers; firefighters and police employees of large cities; sole proprietors; partners; limited liability companies; corporate officers; religious, charitable and relief workers; newspaper carriers; truckers and taxi drivers; foster caregivers; and other categories A close evaluation of ORS 656.027 is recommended.

EXCLUSIVE REMEDY

Exclusive Remedy Against Complying Employer

For a complying employer, subject workers incurring compensable injuries and their beneficiaries are limited to compensation as provided in ORS chapter 656. All common law and other statutory remedies are barred.

Except as specifically provided in ORS chapter 656, “[t]he liability of every employer who satisfies the duty required by ORS 656.017(1) is exclusive and in place of all other liability arising out of [compensable] injuries, diseases, symptom complexes or similar conditions” to the subject workers and their beneficiaries. ORS 656.018(1)(a); Blacknall v. Westwood Corporation, 307 Or 113, 117, 764 P2d 544 (1988).

The exemption from liability given to a client under ORS 656.018(5)(a) extends to the client’s insurer, the self-insured client’s claims administrator, the Department of Consumer and Business Services, and the contracting agents, employees, officers and directors of the client, the client’s insurer, the self-insured client’s administrator, and the department.

A complying employer is not liable for contribution or indemnity to third persons who are held responsible for injury to the employer’s subject workers. ORS 656.018(1)(a). Contractual agreements or warranties to the contrary are void. ORS 656.018(1)(c).

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rule

Workers remain subject to Oregon law even if injured outside Oregon. If the worker was employed in Oregon, was subject to the Workers’ Compensation Law (ORS chapter 656) and only temporarily left Oregon incidental to that employment, his or her out-of-state injuries are compensable under Oregon law. ORS 656.126(1).

Permanent Employment Relation Test

The “permanent employment relationship test” that Oregon courts use to determine whether a worker is “temporarily” out of state is codified in OAR 436-050-0055. Northwest Greentree, Inc. v. Cervantes-Ochoa, 113 Or App 186, 189, 830 P2d 627 (1992).

The primary factor in determining whether a worker is an Oregon worker is “the extent to which claimant’s work outside the state [is] temporary.” Phelan v. H.S.C. Logging, Inc., 84 Or App 632, 635, 735 P2d 22 (1987). The extent to which the employer’s work in the state is of a temporary duration is established by a beginning date and expected ending date of the employer’s work. Other relevant factors include:
(1) The intent of the employer in regard to the worker’s employment status;
(2) The understanding of the worker in regard to the employment status with the employer;
(3) The permanent location of the employer and its permanent facilities;
(4) The circumstances and directives surrounding the worker’s work assignment;
(5) The state laws and regulations to which the employer is otherwise subject;
(6) The residence of the worker.

Out-of-State Workers Injured in Oregon

Under ORS 656.126(2), workers and employers from other states who are temporarily working in Oregon are exempted from the provisions of ORS chapter 656 if:
(1) The employer has workers’ compensation insurance in another state;
(2) The other state recognizes Oregon’s extraterritorial provisions; and
(3) The other state exempts Oregon workers and employers from its workers’ compensation laws.

The criteria to be used to determine whether a worker is temporarily in the state are set forth in OAR 436-050-0055 and include:
(1) The extent to which the worker’s work within the state is of a temporary duration;
(2) The intent of the employer in regard to the worker’s employment status;
(3) The understanding of the work in regard to the employment status with the employer;
(4) The permanent location of the employer and its permanent facilities;
(5) The circumstances and directives surrounding the worker’s work assignment;
(6) The state laws and regulations to which the employer is otherwise subject;
(7) The residence of the worker; and
(8) The extent to which the employer’s work in the state is of a temporary duration, established by a beginning date and expected ending date of the employer’s work.

If the worker has claims for the same injury in Oregon and in another state, Oregon will credit the amount of any award the other state paid against the compensation due under Oregon law. If the Oregon award is higher, the worker is entitled to the difference between the compensation the other state awarded and the amount under Oregon law. ORS 656.126)6).

Time Limitation

A worker is required to give written notice to the employer not more than 90 days after an accident occurs. ORS 656.265(1). Different forms of writing are allowed. See Vsetecka v. Safeway Stores, Inc., 337 Or 502, 98 P3d 116 (2004). An electronic notice to the employer is sufficient. However, exceptions to the written notice requirement are set forth in ORS 656.265(4).

If the worker fails to provide proper notice within 90 days, the worker may still file a claim within 1 year from the date of injury if the employer has knowledge of the injury, if the worker dies within 180 days of the injury, or if the worker or beneficiary had good cause for late notice. ORS 656.265(4).

There is a rebuttable presumption that the worker gave sufficient and timely notice. ORS 656.310(1)(a).

The employer has 60 days after notice or knowledge of a claim to issue a written acceptance or denial. ORS 656.262(6)(a). If the attending physician has authorized temporary disability, the insurer or self-insured employer must pay temporary disability (total or partial) benefits no later than the 14th day after the employer has notice or knowledge of the claim, unless the claim has been denied by that date. ORS 656.262(4)(a).

The insurer must investigate and evaluate the work connection, employment relationship and coverage issues, responsibility issues and other factors potentially affecting its decision to accept or deny the claim. See ORS 656.005(7), 656.021-656.046, 656.070-656.140, 656.307-656.308.

The worker must cooperate with the investigation by giving personal or telephonic interviews, which may be taped, and by submitting to other information-gathering techniques. ORS 656.262(13); OAR 436-060-0135. The worker’s attorney may be present during the interview, and the attorney must make himself or herself available within 14 days of the employer’s request for an interview. The worker’s failure to cooperate may result in suspension of the worker’s benefits by the director or denial of the claim. ORS 656.262(14); OAR 436-060-0135.

If the insurer accepts the claim, the insurer must provide a written notice of acceptance. ORS 656.262(6)(a); SAIF v. Tull, 113 Or App 449, 453-55, 832 P2d 1271 (1992). The notice of acceptance must meet the following requirements:
(1) Be in writing;
(2) Specify the compensable condition;
(3) Advise the worker whether the claim is considered disabling;
(4) Inform the worker of his or her aggravation and hearing rights;
(5) Inform the worker of his or her right to expedited claim service;
(6) Inform the worker of his or her employment reinstatement rights and responsibilities;
(7) Inform the worker of the assistance available to employers and workers from the Reemployment Assistance Program; and
(8) Be modified from time to time as medical or other information changes. ORS 656.262(6)(a)-(b).

Occupational Disease Claims

Occupational disease claims must be filed within one year of the later of
(1) the date the worker first discovered, or in the exercise of reasonable care should have discovered, the occupational disease; or
(2) the date the worker becomes disabled or is informed by a physician that the worker is suffering from an occupational disease. ORS 656.807(1).
For occupational diseases that result in death, a claim may be filed within one year from the date the worker’s beneficiary first discovered, or in the exercise of reasonable care should have discovered, that the cause of the worker’s death was caused by an occupational disease. ORS 656.807(2).

Oregon case law holds that a claim is void unless filed by whichever is the later of the following dates: one year from the date the worker first discovered the occupational disease; one year from the date that, in the exercise of reasonable care, the worker should have discovered the occupational disease; one year from the date the worker becomes disabled; or one year from the date the worker is informed by a physician that the worker is suffering from an occupational disease.

As a practical matter, the last two of the enumerated events are the ones that will operate to toll the statute of limitations, because a worker cannot become disabled or be informed by a physician without also triggering the first two enumerated events, that is, discovering the disease or failing to exercise reasonable care that would have discovered the disease.

A worker is informed by a physician that the worker is suffering from an occupational disease when the worker is given notice by a doctor that the disease is occupational in its nature and causation. The record must affirmatively show that the worker was told that the disease was caused by or arose out of employment. Wayne-Dalton Corp. v. Mulford, 190 Or App 370, 375, 79 P3d 894 (2003).

COMPENSABILITY

General Rule

Under ORS 656.005(7)(a), a compensable injury is an accidental injury arising out of and in the course of employment requiring medical services or resulting in disability or death. The two prongs of that compensability test (“arising out of” and “in the course of”) are viewed as “two parts of a unitary ‘work connection’ inquiry that asks whether the relationship between the injury and the employment has a sufficient nexus so that the injury should be deemed compensable.” Tri-Met, Inc. v. Lamb, 193 Or App 564, 567, 92 P2d 742 (2004).

“The ‘arise out of’ prong of the compensability test requires that a causal link exist between the worker’s injury and his or her employment…..The requirement that the injury occur ‘in the course of’ employment concerns the time, place, and circumstances of the injury.” Fred Meyer, Inc. v. Hayes, 325 Or 592, 596, 943 P2d 107 (1997). “Both prongs must be satisfied to some degree, but neither is dispositive…..The work-connection test may be satisfied if the factors supporting one prong of the statutory test are weak while factors supporting the other prong are strong.” Tri-Met, Inc. 193 Or App at 567 (citing Fred Meyer, Inc., 325 Or at 596-97).

Types of Injuries

Accidental Injury

To be compensable under Oregon’s Workers’ Compensation Act, an injury must be accidental in nature. ORS 656.005(7)(a). An injury that results from the “deliberate intention of the worker to produce such injury” is not compensable. ORS 656.156(1).

Infectious Diseases

ORS 656.802 defines an occupational disease as any disease or infection arising out of and in the course of employment caused by substances or activities in 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: any disease or infection caused by ingestion of, absorption of, inhalation of or contact with dust, fumes, vapors, gases, radiation or other substances; any mental disorder, whether sudden or gradual in onset, which requires medical services or results in physical or mental disability or death; any series of traumatic events or occurrences which requires medical services or results in physical disability or death

The distinction between an accidental injury and an occupational disease can be elusive, but whether a claim is brought as an injury claim or as a disease can significantly affect a worker’s chance of recovery, because a worker’s burden of proof is higher for an occupational disease claim. The primary distinction between an accidental injury and an occupational disease claim is “time-definiteness.” Smirnoff v. SAIF, 188 Or App 438, 443, 72 P3d 118 (2003). Generally, an injury has a sudden onset, while an occupational disease develops gradually over time. The exception to this general rule is a mental disorder, which is classified as an occupational disease under the statute “whether sudden or gradual in onset.” ORS 656.802(1)(A)(B).

Categories of Diseases

A compensable occupational disease is any disease or condition from which a worker suffers and for which the worker produces medical and factual evidence meeting the definitional standard. The primary focus is medical evidence identifying the particular work environmental conditions acting as the major contributing cause of the worker’s occupational disease. James v. SAIF, 290 Or 343, 624 P2d 565 (1981); King v. Oregon Steel Mills, 25 Or App 685, 550 P2d 747 (1976).

Toxic or Harmful Exposure

The first category of compensable occupational diseases contains those that arise from exposure to a substance. The statute defines this category as “[a]ny disease or infection caused by ingestion of, absorption of, inhalation of or contact with dust, fumes, vapors, gases, radiation or other substances.” ORS 656.802(1)(a)(B).

Mental Disorders

The term mental disorder includes “any physical disorder caused or worsened by mental stress.” ORS 656.802(1)(b). The Oregon legislature added this language to the statute to overrule earlier case law, which had allowed workers to file injury claims for the physical consequences of stress. See, e.g., DiBrito v. SAIF, 319 Or 244, 248-49, 875 P2d 459 (1994). The statute now outlines four requirements for a mental disorder claim to be compensable:
(1) The employment conditions producing the condition must exist in a real and objective sense.
(2) The employment conditions producing the mental disorder must not be conditions generally inherent in every working situation; conditions related to reasonable disciplinary, corrective or job performance evaluation actions; conditions related to the cessation of employment, or conditions related to employment decisions attendant upon ordinary business or financial cycles.
(3) There must be a diagnosis for claimant’s condition that is generally recognized in the medical or psychological community.
(4) There must be clear and convincing evidence that the mental disorder arose out of and in the course of employment. ORS 656.802(3).

Burden of Proof

The general compensability standard for occupational disease is the “major contributing cause” standard. ORS 656.802(2)(a). See Dietz v. Ramada, 130 Or App 397, 401, 882 P2d 618 (1994) (major contributing cause standard requires that work conditions contribute more than all other causes); McGarrah v. SAIF, 296 Or 145, 171-72, 675 P2d 159 (1983) (employment conditions must contribute more than nonemployment conditions). The burden of proof required to establish an compensable occupational disease lies with the worker, who must prove by a preponderance of the evidence that the worker suffers a compensable disability caused in major part by employment.Gormley v. SAIF, 52 Or App 1055, 1059, 630 P2d 407 (1981).

EXCLUSIONS AND DEFENSES

Course of Employment

As noted above, a compensable injury is an accidental injury arising out of and in the course of employment requiring medical services or resulting in disability or death. ORS 656.005(7)(a). Case law concerning whether a particular accident arose out of and in the course of employment is very fact specific and the outcomes turn on how the Workers’ Compensation Board or the court weighs the particular set of facts to determine whether the accident was sufficiently connected to work to be compensable.

Personal Comfort Doctrine

This doctrine is based on the principle that certain activities of workers are necessary and expected by workers and that the engagement in such activities does not represent a departure from the employment relationship. “[T]he compensability of on-premises injuries sustained while engaged in activities for the personal comfort of the worker can best be determined by a test which asks: Was the conduct expressly or impliedly allowed by the employer?” Clark v. U.S. Plywood, 288 Or 255, 266, 605 P2d 265 (1980) (the death of a worker who was killed when retrieving his lunch from the top of a hot glue press during a lunch break was held to be compensable because the employer expressly or impliedly allowed such conduct).

Traveling Employee

A traveling employee is considered to be “within the course and scope of employment while traveling, except when the employee has ‘engaged in a distinct departure on a personal errand.’” Sosnoski v. SAIF, 184 Or App 88, 93, 55 P3d 533 (2002). In determining whether a “distinct departure” occurred, the court considers “whether the activity that resulted in the injury was ‘reasonably related’ to the employer’s travel status.”Sosnoski, 184 Or App at 93.

A traveling employee is considered to be in the course of employment while engaged in personal activities such as eating and sleeping, but will not be covered for injuries that occur during personal activities that are not reasonably related to the worker’s travel status.

Going to and Coming from Place of Employment

Although the general rule is that an injury sustained by a worker on the way to or returning from the place of employment is not compensable, a number of exceptions to the “going and coming” rule have been recognized.

For example, in Redman Industries, Inc. v. Long, 326 Or 32, 943 P2d 208 (1997), the court rejected the “largely obsolete…..considerations in assessing whether a worker’s injury was linked to a risk associated with employment,” and stated that the proper test was “whether the risk of claimant’s injury either resulted from the nature of his work or whether the work environment exposed him to the risk of his injury.” Long, 326 Or at 36.

On-the-Job Falls

Risks distinctly associated with the employment are universally compensable, risks “personal to the claimant” are universally not compensable, and neutral risks are compensable if the conditions of employment put claimant in a position to be injured. Phil A. Livesley Co. v. Russ, 296 Or 25, 30, 672 P2d 337 (1983).

Unexplained Falls

Where injuries are caused by idiopathic factors (reasons personal to a claimant), the requisite causal connection does not exist. However, where the injury is the result of a neutral risk of employment (one that is neither particular to the work activities nor personal to the claimant), the injury is compensable. If the claimant can demonstrate that idiopathic factors did not cause his or her injury, he or she can meet the “arising out of” test. Under this approach, a truly unexplained fall is compensable as a matter of law. Lisa R. Jaross, 56 Van Natta 517, 517-18, (2004).

Mixed Risk Doctrine

In Violet Colhour, 59 Van Natta 1116 (2007), the worker was injured when she fainted and fell from her chair onto the floor. The parties did not dispute that the worker’s fainting episode and fall were of idiopathic origin. The Board held that the worker’s injury was compensable, agreeing with the administrative law judge that
(1) the “course of employment” prong of the work connection test was strongly satisfied because the worker’s injury occurred while she was at her workstation, performing her duties during work hours,” and
(2) “the arising out of” prong was also satisfied, as the medical and scientific evidence indicated that the elevated chair and hard surface of the floor increased the potential danger of claimant’s fall.”

Increased Danger Rule

Generally, idiopathic falls are not compensable. However, if work conditions substantially contributed to the injury, causing increased danger, the injury will be compensable. In Emery A. Reber, 43 Van Natta 2373, a worker fainted for reasons that were not work-related and fell from a second-story deck where he was performing his job. The Board held that the injury was compensable under the increased-danger rule because the work conditions aggravated the injury. Emery A. Reber, 43 Van Natta at 2375.

ORS 656.005(7)(b) provides for several exclusions to compensability:
1. Injury to any active participant in assaults or combats which are not connected to the job assignment and which amount to a deviation from customary duties.
2. Injury incurred while engaging in or performing, or as the result of engaging in or performing, any recreational or social activities primarily for the worker’s personal pleasure.
3. Injury the major contributing cause of which is demonstrated to be by a preponderance of the evidence the injured worker’s consumption of alcoholic beverages or the unlawful consumption of any controlled substance, unless the employer permitted, encouraged or had actual knowledge of such consumption.

Prohibited Conduct

Although in Oregon the Workers’ Compensation Act is a no-fault system, “an employee who is injured while engaged in a prohibited activity that is outside the boundaries defining his or her ultimate work cannot prevail on a claim that the injury is work connected.” Andrews v. Tektronix, Inc., 323 Or 154, 163-64, 915 P2d 972 (1966).

In Andrews, the court rejected the notion that a worker’s violation of an employment rule renders a worker’s claim not compensable per se. The question is whether the worker was engaged in an activity that was within the boundaries of the worker’s ultimate work, not whether the worker was performing his or her ultimate work in a prohibitive manner. The fact that an employer has instructed a worker to avoid certain work, and that the worker’s injury occurred when he or she disregarded the instruction, are only two of many factors that must be considered in the over-all calculation of work-connectedness.Andrews, 323 Or at 165.

Horseplay

“Injuries caused by horseplay may or may not be compensable……Under Oregon case law, an active participant or instigator in horseplay who is injured may not receive compensation unless the employer knew or should have known of and acquiesced in the behavior.” Kommerer v. United Parcel Service, 136 Or App 200, 204, 901 P2d 860 (1995).

Going and Coming Rule

An injury sustained by a worker on the way to or returning from the place of employment is not compensable in the absence of special circumstances. Brown v. SAIF, 43 Or App 447, 452, 602 P2d 1151 (1979). The reason for the going and coming rule is that the relationship of employer and employee is ordinarily suspended from the time the employee leaves his work to go home until he resumes his work, since the employee, during the time that he is going to or coming from work, is rendering no service for the employer. Krushwitz v. McDonald’s Restaurants, 323 Or 520, 526-27, 919 P2d 465 (1996).

Exceptions to the Going and Coming Rule

The greater-hazard exception to the going and coming rule applies if the employee’s employment requires the employee to use an entrance or exit to or from work that exposes the employee “to hazards in a greater degree that the common public.” Krushwitz v. McDonald’s Restaurants, 323 Or 520, 529, 919 P2d 465 (1996).

Special Errand Exception

The special errand exception to the going and coming rule applies “when an employee sustains an injury while off the employer’s premises, ‘but while [the employee] was proceeding to perform, or while preceeding from the performance of a special task or mission.’” Krushwitz v. McDonald’s Restaurants, 323 Or 520, 527, 919 P2d 465 (1996). Oregon’s special errand exception applies only when either the employee was acting in the furtherance of the employer’s business at the time of the injury or the employer had a right to control the employee’s travel in some respect. Krushwitz, 323 Or at 528.

In JAK Pizza, Inc. - Domino’s v. Gibson, 211 Or App 203, 154 P3d 159 (2007), the worker clocked out for his lunch break and told his employer that he was driving to a nearby store to buy a beverage. After telling the employee that he did not have enough time to drive to the store and that he was needed at the employer’s premises, the employer “directed claimant to go to the store across the street and get back to the employer’s premises.” While the claimant walked across the street to buy a beverage, he was struck by a car. The Workers’ Compensation Board found the injury compensable.

Parking Lot Exception

Injuries that occur in parking lots that are owned or maintained by the employer arise out of and in the course of employment and are compensable. If the employer does not exercise some control over the area where the injury occurs, the injury is generally not compensable. See, e.g., Montgomery v. State Ind. Acc. Com., 224 Or 380, 356 P2d 524 (1960).

BENEFITS

Temporal Total Disability

Temporary total disability (TTD) is the benefit paid directly to the worker when the worker is temporarily and completely unable to work due to a compensable injury or is enrolled in an authorized training program. ORS 656.210; OAR 436-060-0020; 436-060-0025. TTD is a wage-replacement benefit and is paid by the insurer or self-insured employer. TTD continues to be paid until: the worker returns to regular or modified work; the attending physician advises the worker and documents in writing that the worker is released to modified work and such work is offered in writing to the worker and the worker fails to begin employment; or any other event that suspends entitlement to benefits pursuant to ORS chapter 656, including, but not limited to, ORS 656.262(4), which requires attending physician authorization and allows suspension if a worker refuses to treat with an appropriate managed care organization. ORS 656.268(4).

Temporal Partial Disability

Temporary partial disability (TPD) is a wage-replacement benefit paid to an injured worker who is not medically stationary but has returned to work, although not at the wage at the time of injury. ORS 656.212; OAR 436-060-0030.

Interim Compensation

Interim compensation must be paid to a worker who is missing work due to a claimed injury or disease if the insurer or self-insured employer has not formally accepted or denied the claim within 14 days of notice or knowledge of the claim.

Computation of Benefits

TTD benefits are based on the wage paid on the date of the injury. For occupational disease claims, the rate is based on the wage paid on the date of medically verified disability for the occupational disease. If the worker is not working at the time of medical verification, the rate is based on the wage on the date of the last regular employment. ORS 656.210(2)(d).

The TTD rate for workers who are regularly employed is “equal to 66 & 2/3 percent of wages, but not more than 133 percent of the average weekly wage nor less than the amount of 90 percent of wages a week or the amount of $50 a week, whichever amount is less.” ORS 656.210(1). Once a time loss rate is established, it remains constant for the life of the claim, subject only to the July 1st increase authorized each fiscal year by the Department of Consumer and Business Services. ORS 656.210(1).

The methods for calculating the TTD rate of workers not regularly employed and for workers with no remuneration or whose remuneration is not based solely on daily or weekly wages are prescribed in OAR 436-060-0025.

The issue of whether a worker is “regularly employed” has been the subject on litigation. The term regularly employed means “actual employment or availability for such employment.” ORS 656.210(2)(e). A worker’s availability for work is determined by the employment contract. See, e.g,Qualified Contractors v. Smith, 126 Or App 131, 867 P2d 562 (1994). On the other hand, a “regularly employed” worker may not be paid based solely on daily or weekly wages. In that event, ORS 656.210(2)(e) authorizes the director to prescribe the method of establishing the weekly wage, and this method is contained in OAR 436-060-0025(5).

For workers employed less than 52 weeks or where extended gaps exist, TTD is calculated by using the actual weeks of employment (excluding extended gaps) with the employer at the time of injury up to the previous 52 weeks. Courts will consider “the circumstances of the individual employment relationship itself, including whether the parties contemplated that such gaps would occur when they formed the relationship. SAIF v. Frias, 169 Or App 345, 353, 8 P3d 1005 (2000).

Permanent Disability

Disability may be either permanent or temporary. Those terms describe the duration and not the extent or severity of the disability. The extent of disability is described as either partial or total. An injured worker’s disability will be considered partial if it is less than permanent and total. The result is four classes of disability – temporary partial, temporary total, permanent partial and permanent total. Each type of disability is exclusive of the others.

Permanent disability is disability that will last the remainder of the injured worker’s life. A condition that, according to medical opinion, will not improve in the future is deemed a permanent one.

Permanent disability for injuries occurring before January 1, 2005, may be either scheduled or unscheduled. Scheduled permanent disability is disability involving certain body parts or functions (generally the limbs or extremities) specified by statute. Former ORS 656.214(2)-(4) (2003). Unscheduled permanent disability is disability from impairment of any body part or function that is not expressly scheduled by statute. See former ORS 656.214(5) (2003). The date of injury controls whether the disability will be determined as scheduled or unscheduled, or as whole-person impairment. The date of injury also controls the amount of compensation awarded for a given impairment. ORS 656.202.

For claims with dates of injury on or after January 1, 2005, permanent disability is awarded based on the percent of the whole person. Whether or not the worker has been released to return to the job held at the time of injury will affect whether or not a worker is entitled to an individual award of “work disability,” which can have a tremendous effect on a worker’s permanent disability award.

Determination of the extent of any permanent disability is made at the time a claim is closed. Prior to June 1, 2001, the Workers’ Compensation Division generally made these determinations, although self-insured employers and insurers were permitted to issue notices of closure. Since that date, insurers and self-insured employers have issued their own notices of closure, subject to a reconsideration process by the Workers’ Compensation Division.

Insurers and self-insured employers close claims and determine, in the first instance, the extent of permanent impairment and disability by applying the rules for determining permanent impairment known as “the standards.” OAR 436-035-0001 et seq. If a worker has lost range of motion of the lumbar spine, the percentage of that loss is determined under a single rule that addresses range of motion of the lumbar spine. When all of the worker’s losses are tabulated, they are converted to the appropriate measure depending on the date of injury. For dates of injury before 2005, the measure is degrees of impairment. For dates of injury in 2005 or later, the measure is percentage of whole person.

Permanent total disability means a loss, including preexisting disability, of use or function of any portion of the body which permanently incapacitates the worker from regularly performing work at a gainful and suitable occupation. ORS 656.206(1)(d). Regularly performing work means the ability of the worker to discharge the essential functions of the job, and essential functions means the primary tasks associated with the job. ORS 656.206(1)(e)(a). Suitable occupation means one that the worker has the ability and the training or experience to perform, or an occupation that the worker is able to perform after rehabilitation. ORS 656.206(1)(f).

Permanent total disability benefits are based on wage replacement. SAIF v. Stephen, 308 Or 41, 45, 774 P2d 1103 (1989). Workers’ compensation law applies to “workers.” A “worker” is defined as one who “engages to furnish services for a remuneration.” ORS 656.005(30). The term does not include a person who has withdrawn from the workforce during the period for which such benefits are sought. ORS 656.005(30). A person who voluntarily withdraws from the workforce is not entitled to permanent total disability benefits for a subsequent disability because he or she is no longer a worker. Stephen, 308 Or at 47. A person may return to the workforce after retiring. If a worker decides to return to the workforce but is unable to do so because of a prior compensable injury, the worker has lost wages and is not barred from receiving permanent total disability because of the earlier retirement.Stephen, 308 Or at 47.

Vocational Rehabilitation Benefits

In cases involving a disabling injury or aggravation claim, the employer must contact the worker within five days to evaluate eligibility for vocational assistance when it has knowledge of the worker’s likely eligibility, or when the worker is medically stationary and has not returned to regular work or other suitable employment. ORS 656.340(1)(b).

Vocational assistance is subject to very detailed and specific laws. See ORS 656.340; OAR ch 436, div 120. These rules govern worker eligibility, types of benefits available, certification and selection of vocational assistance providers, methods of providing assistance, reports required of providers and employers and other matters. Generally, benefits may include an eligibility determination, direct employment services or training. Direct employment services basically involve job development and job search skills assistance. Training is often called an authorized training plan, or ATP. Training is provided when a worker requires it to return to employment that is significantly closer to the wage at injury. Training is limited to an aggregate of 16 months, although the director of the Department of Consumer and Business Services may extend it to 21 months.

A worker who enters an authorized training program is entitled to receive temporary disability benefits. ORS 656.268(9). Temporary disability may only last for 16 months, unless the director extends the program to 21 months.

Penalties

In most cases, some specific conduct must be found unreasonable to justify imposing a penalty against the employer. If an insurer or self-insured employer unreasonably delays or refuses to pay compensation, the insurer or self-insured employer shall be liable for an additional amount up to 25 percent of the amounts then due. ORS 656.262(11)(a). The standard for determining an unreasonable resistance to the payment of compensation is whether, from a legal standpoint, the insurer had a legitimate doubt as to its liability. International Paper Co. v. Huntley, 106 Or App 107, 806 P2d 188 (1991). If so, the refusal to pay is not unreasonable. “Unreasonableness” and “legitimate doubt” are to be considered in the light of all the evidence available to the insurer or self-insured employer. Brown v. Argonaut Insurance Company, 93 Or App 588, 591, 763 P2d 408 (1988).

A penalty may be imposed for failure to pay interim compensation with 14 days of notice of a claim. A penalty may be imposed for the late payment of permanent partial disability or unreasonable delays in accepting or denying a claim. However, if there are no “amounts then due” at the time of the hearing on the claim on which to base a penalty, then there is no unreasonable resistance to the payment of compensation to support a penalty. Penalties may be imposed if an insurer or self-insured employer has closed a claim or refused to close a claim and at a hearing it is determined that the notice of closure or refusal to close was not reasonable. A penalty may be imposed based on a discovery violation if the medical records are not timely provided, provided there are “amounts then due” upon which to impose a penalty. See Wendy Butcher, 58 Van Natta 243, 246-47 (2006).

Interest

In the event the employer files a request for Board review or court appeal of a decision of an Administrative Law Judge, if it is ultimately found that the award appealed from was payable, any amounts withheld accrues interest at the rate provided in ORS 82.010 (nine percent per annum) from the date of the order appealed from through the date of final payment. ORS 656.313(1)(b).

Costs

Costs are recoverable if the worker prevails against a denied claim. The worker can seek recovery through an order from the Administrative Law Judge for payment of reasonable expenses and costs for records, expert opinions and witness fees. However, recovery is limited to $1,500 unless the worker can demonstrate extraordinary circumstances justifying payment of a greater amount. OAR 438-015-0019.

Attorney’s Fees

Attorney fees are recoverable out of the worker’s compensation under certain circumstances. If it is decided at a hearing that the wrong time loss was paid to a worker, the Administrative Law Judge will approve an attorney fee of 25 percent of the increased compensation. Likewise, if a claim is closed by a notice of closure, and the worker requests reconsideration of the closure, if the reconsideration results in an increase in temporary disability benefits, the attorney is entitled to 10 percent of the increase. No fee can be awarded without a signed attorney-client agreement.

When a worker’s attorney requests a hearing and the result is an increase in compensation for TTD or TPD, the attorney is entitled to 25 percent of the increased compensation.OAR 436-015-0045.

If a worker appeals an order that disallows a period of time loss or rate of time loss, the attorney is entitled to an approved fee of 25 percent of the increased disability, provided the worker prevails at the Board or court level. The attorney fee for this work is currently capped at $5,000. OAR 436-015-0055(1).

When an insurer or self-insured employer requests review of an Administrative Law Judge’s opinion and order or an order on review by the Board, the Board or the court will assess a reasonable fee for the insurer or self-insured employer to pay to the claimant’s attorney. ORS 656.382(2).

When the worker’s attorney requests reconsideration for an increase in permanent disability, the attorney may take an approved fee of no more than 10 percent of the increase in permanent disability awarded on reconsideration. ORS 656.268(6)(c).

Denied claims are claims for compensation that the insurer or self-insured employer refuses to pay on the express ground that the injury or condition for which compensation is claimed is not compensable or otherwise does not give rise to an entitlement to any compensation. ORS 656.386(1)(b)(A). If the attorney for the worker prevails over the denial, the Administrative Law Judge must award a reasonable fee payable in addition to the worker’s compensation. The rule applies to original claims, aggravations claims and partial denials. OAR 438-015-0035.

Generally, the factors that the Board will take into account in calculating a reasonable fee are:
(1) The time devoted to the case;
(2) The complexity of the issues involved;
(3) The value of the interest involved;
(4) The lawyer’s skill;
(5) The nature of the proceedings
(6) The benefits secured;
(7) The risk that the lawyer will go uncompensated; and
(8) The assertion of frivolous issues or defenses. OAR 438-015-0010(4).

Death Benefits

In accordance with ORS 656.204, the following type of benefits will be paid if death results from the accidental injury:
(1) A burial benefit;
(2) A surviving spouse’s benefit, which may include child support;
(3) A child’s benefit paid to the child if there is no surviving spouse;
(4) A benefit for certain related dependants.

The cost of a burial, including transportation of the body, must be paid in an amount not to exceed 10 times the Oregon average weekly wage. ORS 656.204(1).

If the worker is survived by a spouse, the surviving spouse is paid a monthly benefit equal to 4.35 times 66 & 2/3 percent of the Oregon average weekly wage until the surviving spouse remarries. On remarriage, the surviving spouse is paid a lump sum final payment equal to 36 times the monthly benefit. ORS 656.204(3)(a).

Termination of the surviving spouse’s benefit also occurs if the surviving spouse cohabits with another person for an aggregate period of more than one year and a child has resulted in the relationship. ORS 656.204(3)(b).

Children’s benefits can be included in a surviving spouse’s benefit or in a cohabitant’s benefit. If a worker leaves behind a child but no surviving spouse, or if the surviving spouse dies, each child receives a monthly benefit equal to 4.35 times 25 percent of the Oregon average weekly wage until the child reaches age 18. ORS 656.204(4)(a), (2)(d).

Dependent’s benefits are also required to be paid. Under ORS 656.204(5), if the deceased worker leaves behind certain related dependents, a monthly benefit is paid to each such dependent.

The employer must pay only for medical care necessary for the compensable injury or recovery process. The employer is not required to pay for medical services that are unnecessary or inappropriate according to accepted professional standards or the administrative rules, or that are unrelated to the compensable injury. ORS 656.327; OAR 436-010-0230.

After the worker becomes medically stationary, the insurer must provide for the following types of medical care:
(1) Prescription medications and prosthetic devices, and services necessary to administer or monitor them;
(2) Services for aggravation;
(3) Services when the worker is permanently and totally disabled;
(4) Diagnostic services;
(5) Life-preserving modalities;
(6) Curative care arising from non-experimental, generally recognized advances in medical science since claim closure;
(7) Curative care to stabilize a temporary waxing and waning; and
(8) Palliative care with the employer’s approval, that is necessary to allow the worker to continue working or participating in vocational rehabilitation. ORS 656.245(1)(c).

Medical bills must be paid within 45 days of receipt of properly documented statements. OAR 436-009-0030(3). A worker has an absolute right to choose an attending physician and to make two changes of attending physician. ORS 656.245(2)(a). If the worker is enrolled in an MCO (managed care organization) under ORS 656.260, then the worker must choose an attending physician from the panel of physicians in the MCO. By statute, only a medical doctor, osteopath or board-certified oral and maxillofacial surgeon licensed in Oregon may be an attending physician. ORS 656.005(12)(b)(A); OAR 436-010-0005(2). The law allows a nurse practitioner to provide compensable medical services for the first 90 days on the claim and to authorize temporary disability for a period of 60 days. ORS 656.245(2)(b)(D). However, a nurse practitioner may not make impairment findings and must refer the worker to a qualified attending physician to evaluate the worker’s disability. ORS 656.245(2)(b)(D)(iii).

The worker is also entitled to payment for “medical, surgical, hospital, nursing, ambulances and other related services,” including drugs, braces, crutches and prosthetic devices. ORS 656.245(1)(b). Rates for reimbursement have been specifically set. OAR 436-060-0055. The employer must reimburse the worker for related services within 30 days of receiving a written request with supporting documentation. OAR 436-009-0025.

SUBROGATION OR CREDIT

General Rule

If a claim is denied, and medical bills have been incurred that are unpaid by the workers’ compensation carrier or any other insurance program, the worker must make certain payments on those bills under certain circumstances.

Under ORS 656.313(4), up to 40 percent of the settlement proceeds must be allocated for the payment of outstanding medical bills in the insurer’s or self-insured employer’s possession. If the settlement proceeds are insufficient to allow each medical service provider the reimbursement amount authorized under the statute, then the paying agency must reduce each provider’s reimbursement by the same proportional amount. Reimbursement under a disputed claim settlement of less than the provider’s total bill does not preclude the medical service provider from recovering the balance of amounts owing for such services directly from the worker. ORS 656.313(4)(d).

Motor Vehicle Accidents

The receipt of benefits under Oregon’s Financial Responsibility Law (ORS chapter 802) does not affect the right to receive workers’ compensation benefits.

Health Benefits

A health insurance carrier’s subrogation right is limited to the amount the carrier can prove it paid on behalf of the worker. The health insurer is subrogated to the full amount of the medical expenses it actually paid. The insurer is not limited to recovering the audited or reduced amount of benefits actually paid; it may seek recovery for the full amount.

Credits or Offsets

An insurer or self-insured employer may recover overpayment of benefits as specified by ORS 656.268(13), unless authority is granted by an Administrative Law Judge or the Board. OAR 436-060-0170(1). The law allows that, at the time of closure, an insurer or self-insured employer may offset any compensation payable to the worker to recover an overpayment from the claim with the same insurer or self-insured employer. ORS 656.268(13)(a); OAR 436-030-0020(12). However, an explanation in writing must be given for the reason, amount and method of recovery to the worker and the worker’s attorney or the worker’s survivors. OAR 436-060-0170(2).

When overpayments are recovered from temporary disability or permanent total disability benefits, the amount recovered from each payment shall not exceed 25 percent of the payment, without prior authorization from the worker. ORS 656.268(13)(a).

An employer may, with the worker’s consent, deduct the amount of workers’ compensation benefits the worker received from any sick-leave payments for the same injury. ORS 656.240.

The procedure for offsetting the award of an injured worker who has a prior award of permanent disability is set forth in OAR 436-035-0015. The rule attempts to eliminate the possibility that an injured worker will receive double recovery for the same impairment. See ORS 656.222. Offset is only used in the case of successive injuries, and not for successive closures of the same injury.

ORS 656.268(11) provides for crediting overpaid temporary disability payments against current of future permanent or temporary disability awards as well as other adjustments. The Hearings Division has jurisdiction to address adjustments in compensation because an offset is a question concerning a claim.

ATTORNEYS

Certification

Oregon law does not require attorneys to obtain certification to practice in this particular field of law.

CLAIMS PROFESSIONALS

Insurers, self-insured employers and third party claims administrators may employ only certified workers’ compensation claims examiners to process workers’ compensation claims. ORS 656.780(3). A certified workers’ compensation claims examiner must undergo a certain amount of training to obtain certification, as set forth in OAR 436-055-0070 and 436-055-0085. Certification is for three years and must be renewed.

LITIGATION AND APPEAL

Workers’ Compensation Board, Administrative Law Judges and Hearings

Oregon’s Workers’ Compensation Board is composed of five members appointed by the Governor and was created within the Department of Consumer and Business Services. ORS 656.712(1). No more than three members shall belong to the same political party. Two members are selected with a background and understanding of the concerns of employers and two members are selected with a background and understanding as to the concerns of employees. One member represents the interests of the public and serves as the Board chairman. ORS 656.712(1). Each Board member’s term is four years.

The Hearings Division is part of the Workers’ Compensation Board, and it has the responsibility for providing an impartial forum for deciding all cases, disputes and controversies regarding matters concerning a claim under ORS chapter 656. The Board employs Administrative Law Judges (“ALJ’s”) to hold hearings. An ALJ must be a member in good standing of the Oregon State Bar. ALJ’s are appointed for a probationary period of 18 months or less prior to regular employment.

ALJ’s preside over hearings and render Opinions and Orders. If a party appeals an Opinion and Order, the Board will review the written record from the hearing and either affirm, overrule the ALJ’s decision or refer the matter back to the ALJ for further proceedings.

Practitioners and ALJ’s are governed by OAR chapter 438 (Worker’s Compensation Board). These rules provide procedures prior to hearings, evidentiary rules in hearings, Board Review and Third Party Orders, rules regarding the Board’s Own Motion jurisdiction, compromise and settlement, expedited claims service, attorney fees and other related subjects.

Oregon law includes a voluntary mediation process that is commonly used by practitioners. OAR 438-019 et seq. Mediations are conducted by ALJ’s other than the adjudicating ALJ, and very often result in settlement of the disputed issue by way of a Claim Disposition Agreement, a Disputed Claim Settlement or a Stipulated Settlement. Claim Disposition Agreements are used in accepted claims, to dispose of all rights to benefits other than compensably-related medical services. Disputed Claim Settlements are used in denied claims, and can dispose of all rights to future workers’ compensation benefits regarding a claim. Stipulated Settlements are used to deal with relatively minor disputed issues.

At hearing, the worker is considered the “claimant,” who opposes the employer, insurer or self-insured employer. The claimant will typically testify at the live hearing, along with any corroborating witnesses. The employer, insurer or self-insured employer will likewise call witnesses to testify. Experts are deposed prior to the hearing, and the parties submit transcripts of depositions to prove their respective cases.

A party with the burden of proof is required to present a preponderance of evidence to prove an issue. In workers’ compensation, a worker is required to prove that an incident at work was a material contributing cause of the worker’s injury. For occupational diseases, the worker must prove that exposure at work was the major contributing cause of the disease, a tougher standard of proof.

The Board retains jurisdiction of all claims and may, on its own motion (“Board’s Own Motion Jurisdiction”), modify, change or terminate former findings, orders or awards if the action is justified. ORS 656.278. A worker is entitled to bring a claim for aggravation within five years of the date of the first closure of the worker’s claim. The aggravation claim is for a worsening condition resulting from the original injury. The worker must establish an actual worsening of the compensable condition supported by 24 objective findings. ORS 656.273(1). At the expiration of the five-year aggravation period, a worker typically seeks an Own Motion Order which will reopen the claim. ORS 656.273(3). Time loss can be paid on Own Motion reopenings, provided the worker qualifies as a “worker” pursuant to ORS 656.005(30). Likewise, permanent disability can be awarded once a claim is closed in Own Motion. ORS 656.278(2).

Workers’ Compensation Board

An aggrieved party can request Board review of an order from an Administrative Law Judge. ORS 656.295(1). Requests for Review are mailed to the Board and copies are mailed to all parties to the proceeding. ORS 656.295(2). A transcript of the proceeding is sent to the Board as well as a list of exhibits and exhibits. The Board is required to “set a date for review as expeditiously as possible.” ORS 656.295(4). Review by the Board is to be based upon the record submitted and oral (rarely granted) and written argument of the parties. The Board will “affirm, reverse, modify or supplement the order of the Administrative Law Judge.” If a party is dissatisfied with the Board’s Order, the party must file an appeal to Oregon’s Court of Appeals within 30 days after the date of the mailing of the Board’s Order on Review. ORS 656.295(8). The Board reviews de novo the decision of the Administrative Law Judge.

Oregon Court of Appeals and Supreme Court

Any party dissatisfied with the Board’s Order may request judicial review of the order by the Court of Appeals. ORS 656.298(1). A copy of the petition for judicial review must be served on the Board and on all parties who appeared in the review proceedings. ORS 656.298(3). Review by the Court of Appeals is of the entire record forwarded by the Board. The Court of Appeals must review the Board’s decision based on a substantial evidence standard of review. Armstrong v. Asten-Hill Company, 90 Or App 200, 752 P2d 312 (1988). If a party is dissatisfied with the Court of Appeals decision, the party may likewise seek an appeal with the next level of appeal in Oregon, the Oregon Supreme Court.

SETTLEMENT

Voluntary Mediation

As noted above, Oregon has a voluntary mediation program within the workers’ compensation system. Any party can request mediation any time after a request for hearing has been filed with the Board. In fact, if both parties appear for a scheduled hearing, if they both agree to mediation, the hearing will be postponed and the parties will move into mediation.

Prior to mediation, the parties submit an informal pre-mediation statement, outlining the issues to be resolved. The parties can choose an ALJ/mediator of their choice. Details of the mediation remain confidential, and mediations take place at the Hearings Division. Mediation has been very successful in Oregon.

Compromise and Release

Pursuant to ORS 656.236(1)(a), the parties “may make such disposition of any or all matters regarding a claim, except for medical services.” In light of this law, Oregon allows the parties to enter into a Claim Disposition Agreement, which in effect eliminates all rights a worker has to workers’ compensation benefits other than compensable medical services. See OAR 438-009-0001 et seq. This form of agreement is used when all or part of a claim has already been accepted. On the other hand, when a claim has been denied, practitioners utilize a Disputed Claim Settlement, which in effect eliminates all future benefits relating to a claimed condition. See ORS 656.289(4); OAR 438-009-0010. Oregon statutes sets out how unpaid medical bills are to be taken care of, in the event the settlement amount is less than the amount of unpaid bills. ORS 656.313(4). Both Claim Disposition Agreements and Disputed Claim Settlements must be approved by an ALJ.

INSURANCE

General Rule

Every employer is required to maintain assurance with the Director of the Department of Consumer and Business Services that subject workers and their beneficiaries will receive compensation for compensable injuries and that the employer will perform all the duties and pay other obligations required by law. ORS 656.017(1).

The liability of every employer who satisfies the duty required by ORS 656.017(1) is exclusive and in place of all other liability arising out of injuries, diseases, symptom complexes or similar conditions arising out of and in the course of employment that are sustained by subject workers. ORS 656.018(1)(a). Workers’ compensation insurance in Oregon is either insured through an insurance carrier, insured and/or processed through a self-insured employer (internally or by way of a claims administrator), or insured by SAIF Corporation, a quasi-government agency that underwrites and processes claims.