compensability claim in Oregon

2017In Bauman, 295 Or at 794 , the Supreme Court had concluded that, “[i]f *** the insurer officially notifies the claimant that the claim has been accepted, the insurer may not * * * deny the compensability of the claim unless there is a showing of fraud, misrepresentation or other illegal activity.” The court held that the claim was accepted for purposes of ORS 656.262(6) in Bauman when it was “specifically accepted” as compensable “by providing the claimant with an acceptance letter and subsequently paying medical benefits for a three-year period.” Id. at 793 .

2017In Bauman, 295 Or at 794 , the Supreme Court had concluded that, “[i]f *** the insurer officially notifies the claimant that the claim has been accepted, the insurer may not * * * deny the compensability of the claim unless there is a showing of fraud, misrepresentation or other illegal activity.” The court held that the claim was accepted for purposes of ORS 656.262(6) in Bauman when it was “specifically accepted” as compensable “by providing the claimant with an acceptance letter and subsequently paying medical benefits for a three-year period.” Id. at 793 .

2007In upholding the compensability of the claim, the board therefore must have concluded that claimant’s errand to the convenience store *207 across the street was “in furtherance of the employer’s business.” Krushwitz, 323 Or at 528 .

1997In Krushwitz, 323 Or at 530 , this court concluded that, although the “arising out of’ prong of the compensability test was met, the “in the course of’ prong was not.

1999Krushwitz v. McDonald’s Restaurants, 323 Or 520, 525-26 , 919 P2d 465 (1996); Norpac Foods, Inc. v. Gilmore, 318 Or 363, 366 , 867 P2d 1373 (1994).

1999Krushwitz v. McDonald’s Restaurants, 323 Or 520, 525-26 , 919 P2d 465 (1996); Norpac Foods, Inc. v. Gilmore, 318 Or 363, 366 , 867 P2d 1373 (1994).

2023The injured worker may appeal the compensability of the claim as provided in ORS 656.298 (Judicial review of board orders), but may not pursue a civil negligence claim against the employer until the order affirming the denial has become final. “(b) Nothing in this subsection grants a right for a per- son to pursue a civil negligence action that does not other- wise exist in law. “(2)(a) Notwithstanding any other statute of limita- tion provided in law, a civil negligence action against an employer that arises because a workers’ compensation claim has been determined to be not compensable becau

2023The injured worker may appeal the compensability of the claim as provided in ORS 656.298 (Judicial review of board orders), but may not pursue a civil negligence claim against the employer until the order affirming the denial has become final. “(b) Nothing in this subsection grants a right for a per- son to pursue a civil negligence action that does not other- wise exist in law. “(2)(a) Notwithstanding any other statute of limita- tion provided in law, a civil negligence action against an employer that arises because a workers’ compensation claim has been determined to be not compensable becau

2023The injured worker may appeal the compensability of the claim as provided in ORS 656.298 (Judicial review of board orders), but may not pursue a civil negligence claim against the employer until the order affirming the denial has become final. “(b) Nothing in this subsection grants a right for a per- son to pursue a civil negligence action that does not other- wise exist in law. “(2)(a) Notwithstanding any other statute of limita- tion provided in law, a civil negligence action against an employer that arises because a workers’ compensation claim has been determined to be not compensable becau

2023The injured worker may appeal the compensability of the claim as provided in ORS 656.298 (Judicial review of board orders), but may not pursue a civil negligence claim against the employer until the order affirming the denial has become final. “(b) Nothing in this subsection grants a right for a per- son to pursue a civil negligence action that does not other- wise exist in law. “(2)(a) Notwithstanding any other statute of limita- tion provided in law, a civil negligence action against an employer that arises because a workers’ compensation claim has been determined to be not compensable becau

2023Bundy v. Nustar GP LLC, 317 Or App 193, 204 , 506 P3d 458 , rev allowed, 370 Or 197 (2022) (Bundy III).2 As we explained in Bundy III, 317 Or App at 195, 202-06 , ORS 656.019(1) creates a procedural limit on when the claims described in the statute may be brought; it does not provide a substantive exception to the exclusive remedy 1 The parties do not argue, and we do not perceive, that the Supreme Court’s decision in Horton v. OHSU, 359 Or 168 , 376 P3d 998 (2016), affects the analysis or decision of this case.

2023Bundy v. Nustar GP LLC, 317 Or App 193, 204 , 506 P3d 458 , rev allowed, 370 Or 197 (2022) (Bundy III).2 As we explained in Bundy III, 317 Or App at 195, 202-06 , ORS 656.019(1) creates a procedural limit on when the claims described in the statute may be brought; it does not provide a substantive exception to the exclusive remedy 1 The parties do not argue, and we do not perceive, that the Supreme Court’s decision in Horton v. OHSU, 359 Or 168 , 376 P3d 998 (2016), affects the analysis or decision of this case.

2017In Johnson , the court adhered to Bauman but explained that Bauman’s prohibition of “retrospective denials” applies only when a claim has been “specifically” or “officially” accepted by “written notice of acceptance or denial of the claim.” 303 Or at 55 ; see also SAIF v. Mize, 129 Or App 636, 640 , 879 P2d 907 (1994) (“Once an employer or insurer officially notifies a claimant that the claim has been accepted, it may not subsequently deny compensability without complying with ORS 656.262(6).”); Allen v. Bohemia, Inc., 125 Or App 205, 209 , 864 P2d 1365 (1993), rev den, 318 Or 582 (1994) (“Bau

1992In Johnson v. Spectra Physics, 303 Or 49 , 733 P2d 1367 (1987), the court clarified that rule, saying: “Bauman applies only to a claim ‘specifically’ or ‘officially’ accepted by the insurer. 295 Or at 793-94 .

2001In Marshall , the court addressed the context of the “corroborative evidence” requirement of ORS 656.128(3), 8 the workers’ compensation “sole proprietor claim” provision: “Turning to ‘corroborative evidence,’ we agree with the Court of Appeals’ definition of that phrase, as ‘evidence, different from the evidence of the claimant, that tends to make more certain the compensability of the claim.’ [Marshall v. SAIF, 146 Or App 50, 53 , 931 P2d 823 (1997)].

2001In Marshall , the court addressed the context of the “corroborative evidence” requirement of ORS 656.128(3), 8 the workers’ compensation “sole proprietor claim” provision: “Turning to ‘corroborative evidence,’ we agree with the Court of Appeals’ definition of that phrase, as ‘evidence, different from the evidence of the claimant, that tends to make more certain the compensability of the claim.’ [Marshall v. SAIF, 146 Or App 50, 53 , 931 P2d 823 (1997)].

2000Where the insurer appeals the compensability of a claim or the amount or extent of liability, as the insurer did in this case before the board, the insurer is liable for attorney fees under ORS 656.382(2).” (Emphasis added.) Again, in Greenslitt v. City of Lake Oswego, 305 Or 530, 535 , 754 P2d 570 (1988), the court said: “ORS 656.382(2) provides for attorney fees to a claimant in an employer-initiated review or appeal where compensation is not reduced or disallowed.” Further, as mentioned above, our case law since the 1983 amendment adheres to our earlier reading of ORS 656.382(2) that the em

2000Where the insurer appeals the compensability of a claim or the amount or extent of liability, as the insurer did in this case before the board, the insurer is liable for attorney fees under ORS 656.382(2).” (Emphasis added.) Again, in Greenslitt v. City of Lake Oswego, 305 Or 530, 535 , 754 P2d 570 (1988), the court said: “ORS 656.382(2) provides for attorney fees to a claimant in an employer-initiated review or appeal where compensation is not reduced or disallowed.” Further, as mentioned above, our case law since the 1983 amendment adheres to our earlier reading of ORS 656.382(2) that the em

1994Jones, 42 Van Natta 875 (1990), aff'd in Jones v. OSCI, 107 Or.App. 78 , 810 P.2d 1318 , on reconsideration, 108 Or.App. 230 , 814 P.2d 558 (1991), [5] and for the purpose of authorizing attorney fees when the compensability of a claim for workers' compensation has been denied and the employer or insurer rescinds the denial through the efforts of the claimant's lawyer.

1994Jones, 42 Van Natta 875 (1990), aff'd in Jones v. OSCI, 107 Or.App. 78 , 810 P.2d 1318 , on reconsideration, 108 Or.App. 230 , 814 P.2d 558 (1991), [5] and for the purpose of authorizing attorney fees when the compensability of a claim for workers' compensation has been denied and the employer or insurer rescinds the denial through the efforts of the claimant's lawyer.

1994Jones, 42 Van Natta 875 (1990), aff'd in Jones v. OSCI, 107 Or.App. 78 , 810 P.2d 1318 , on reconsideration, 108 Or.App. 230 , 814 P.2d 558 (1991), [5] and for the purpose of authorizing attorney fees when the compensability of a claim for workers' compensation has been denied and the employer or insurer rescinds the denial through the efforts of the claimant's lawyer.

1994Jones, 42 Van Natta 875 (1990), aff'd in Jones v. OSCI, 107 Or.App. 78 , 810 P.2d 1318 , on reconsideration, 108 Or.App. 230 , 814 P.2d 558 (1991), [5] and for the purpose of authorizing attorney fees when the compensability of a claim for workers' compensation has been denied and the employer or insurer rescinds the denial through the efforts of the claimant's lawyer.

1987(Emphasis added.) As the Court of Appeals noted in Jeld-Wen, Inc. v. McGehee, 72 Or App 12, 14-15 , 695 P2d 92 (1985), Bauman recognizes that retrospective denials cause instability, create evidentiary problems and frustrate the timely resolution of claims.

1985We held in Jeld-Wen v. McGehee, 72 Or App 12, 15 , 695 P2d 92 , rev den 299 Or 203 (1985), that the prohibition stated in Bauman applies as well to denials of *6 responsibility.

1987(Emphasis added.) As the Court of Appeals noted in Jeld-Wen, Inc. v. McGehee, 72 Or App 12, 14-15 , 695 P2d 92 (1985), Bauman recognizes that retrospective denials cause instability, create evidentiary problems and frustrate the timely resolution of claims.

1985We held in Jeld-Wen v. McGehee, 72 Or App 12, 15 , 695 P2d 92 , rev den 299 Or 203 (1985), that the prohibition stated in Bauman applies as well to denials of *6 responsibility.

2020Simmons, 171 Or App at 272 .

2019Citing Kepford v. Weyerhaeuser Co., 77 Or App 363 , 713 P2d 625 , rev den, 300 Or 722 (1986), Board Member Weddell expressed the view that, because each work injury occurred while claimant was performing work activities, the injuries are part of claimant’s overall employment conditions to be considered in determining the compensability of the claim. 262 Simi v. LTI Inc. - Lynden Inc. “* * * * * “(C) Any series of traumatic events or occurrences which requires medical services or results in physical dis- ability or death. “(2)(a) The worker must prove that employment condi- tions were the major

2019Citing Kepford v. Weyerhaeuser Co., 77 Or App 363 , 713 P2d 625 , rev den, 300 Or 722 (1986), Board Member Weddell expressed the view that, because each work injury occurred while claimant was performing work activities, the injuries are part of claimant’s overall employment conditions to be considered in determining the compensability of the claim. 262 Simi v. LTI Inc. - Lynden Inc. “* * * * * “(C) Any series of traumatic events or occurrences which requires medical services or results in physical dis- ability or death. “(2)(a) The worker must prove that employment condi- tions were the major

2019App. 161 , 164-65, 396 P.3d 241 (2017), an occupational disease case, the claimant asserted that SAIF had erroneously considered the claimant's personal factors, including deconditioning, age, and weight, in determining the compensability of a claim for "chronic pain disorder." We said, citing Spurgeon and Obie , that "the major contributing cause of a disease must be determined by a weighing of all causes, as distinct from susceptibilities and predispositions.

2019Thus, a worker's personal factors are part of the equation, if, and only if, they are causes." *212 Lowells , 285 Or.

2018Like the ALJ, the board found Puziss's opinion to be the most persuasive-that "claimant's rotator cuff tears * * * were caused by his work activities over time, in combination with the June 2013 injury incident." The board observed that an "occupational disease" is defined to include "[a]ny series of traumatic events or occurrences which requires medical services or results in physical disability or death," ORS 656.802(1)(a)(c), and that, "[w]ork injuries may be considered among 'employment conditions' when evaluating the major contributing cause of an occupational disease." (Citing, inter ali

2018To determine whether the ALJ erred in finding both claims compensable, the board reviewed the medical evidence and the record to determine which standard or standards to apply, stating as follows: "Despite a claimant's chosen theory of compensability, it is our obligation as fact finder to review the medical evidence and the record to determine the appropriate legal standard to evaluate the compensability of a claim." (Citing, inter alia , DiBrito v. SAIF , 319 Or. 244 , 248, 875 P.2d 459 (1994) ).

2018To determine whether the ALJ erred in finding both claims compensable, the board reviewed the medical evidence and the record to determine which standard or standards to apply, stating as follows: "Despite a claimant's chosen theory of compensability, it is our obligation as fact finder to review the medical evidence and the record to determine the appropriate legal standard to evaluate the compensability of a claim." (Citing, inter alia , DiBrito v. SAIF , 319 Or. 244 , 248, 875 P.2d 459 (1994) ).

2018App. 640 , 325 P.3d 834 (2014), in support of its statement that the "otherwise compensable injury," as used in ORS 656.266(2)(a), means the "work-related injury incident." Our opinion in Brown has been reversed. *749 Brown v. SAIF , 361 Or. 241 , 391 P.3d 773 (2017).

2018App. 640 , 325 P.3d 834 (2014), in support of its statement that the "otherwise compensable injury," as used in ORS 656.266(2)(a), means the "work-related injury incident." Our opinion in Brown has been reversed. *749 Brown v. SAIF , 361 Or. 241 , 391 P.3d 773 (2017).

2018App. 640 , 325 P.3d 834 (2014), in support of its statement that the "otherwise compensable injury," as used in ORS 656.266(2)(a), means the "work-related injury incident." Our opinion in Brown has been reversed. *749 Brown v. SAIF , 361 Or. 241 , 391 P.3d 773 (2017).

2018In view of the board's conclusion that the "claimed conditions" of disc protrusion were nonexistent, the board's discussion of causation and compensability in its first order can plausibly be understood to be limited to the "claimed conditions" of multiple-level disc "protrusions," and not to this current claim for "bulges." However, in analyzing the compensability of the claim, the board cited our opinion in Brown v. SAIF , 262 Or.

2017In Johnson , the court adhered to Bauman but explained that Bauman’s prohibition of “retrospective denials” applies only when a claim has been “specifically” or “officially” accepted by “written notice of acceptance or denial of the claim.” 303 Or at 55 ; see also SAIF v. Mize, 129 Or App 636, 640 , 879 P2d 907 (1994) (“Once an employer or insurer officially notifies a claimant that the claim has been accepted, it may not subsequently deny compensability without complying with ORS 656.262(6).”); Allen v. Bohemia, Inc., 125 Or App 205, 209 , 864 P2d 1365 (1993), rev den, 318 Or 582 (1994) (“Bau

2017In Johnson , the court adhered to Bauman but explained that Bauman’s prohibition of “retrospective denials” applies only when a claim has been “specifically” or “officially” accepted by “written notice of acceptance or denial of the claim.” 303 Or at 55 ; see also SAIF v. Mize, 129 Or App 636, 640 , 879 P2d 907 (1994) (“Once an employer or insurer officially notifies a claimant that the claim has been accepted, it may not subsequently deny compensability without complying with ORS 656.262(6).”); Allen v. Bohemia, Inc., 125 Or App 205, 209 , 864 P2d 1365 (1993), rev den, 318 Or 582 (1994) (“Bau

2015As we said in Mills v. The Boeing Co., 212 Or App 678, 682 , 159 P3d 375 (2007), whether a denial is directed at a particular claim depends on the context in which the denial is made, including what the insurer did or did not know when the denial was made.

2015As we said in Mills v. The Boeing Co., 212 Or App 678, 682 , 159 P3d 375 (2007), whether a denial is directed at a particular claim depends on the context in which the denial is made, including what the insurer did or did not know when the denial was made.

2014ORS 183.482(8)(a), (c); Jackson County v. Wehren, 186 Or App 555, 557 , 63 P3d 1233 (2003).

2014ORS 183.482(8)(a), (c); Jackson County v. Wehren, 186 Or App 555, 557 , 63 P3d 1233 (2003).

2013State v. Gaines, 346 Or 160, 171-72 , 206 P3d 1042 (2009) (setting forth interpretive methodology).

2013State v. Gaines, 346 Or 160, 171-72 , 206 P3d 1042 (2009) (setting forth interpretive methodology).

2013Stress-caused physical disorders are not compensable unless the heightened compensability requirements of ORS 656.802(3) are satisfied: “(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 performanc

2013Stress-caused physical disorders are not compensable unless the heightened compensability requirements of ORS 656.802(3) are satisfied: “(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 performanc

2010As we said in Coleman, 203 Or App at 447 , although ORS 656.266(1) generally places the burden of proving the compensability of a claim on the claimant, if the employer asserts that the claim is for a combined condition, the burden of proof shifts.