Lawrence Fillinger v. The Boeing Co., 290 Or App 187 (2017) (Egan, C.J.)
This case involved a current combined condition denial of a low back condition. On judicial review, the worker contended that the employer had failed to prove a sufficient change in the worker’s condition to support its denial. Specifically, the worker contended that nothing about the symptoms associated with the combined condition had changed for the better since the injury, and that they had actually worsened. The court held that the medical evidence was sufficient to show the required change in that it indicated that the accepted low back strain element of the combined condition had “resolved,” thus allowing a reasonable inference that a shift in major causation of the worker’s condition had occurred, even if the symptoms associated with the overall combined condition had not improved.
Jessie L. Chu v. SAIF, 290 Or App 204 (2017) (Egan, C.J.)
In this vocational assistance case, the court ruled that secondary jobs must be considered part of a claimant’s “regular employment” under ORS 656.340(5) for purposes of determining the worker’s eligibility for vocational assistance. In doing so, the court invalidated a DCBS rule that defined “regular employment” as limited to the employment in “the job at injury.” The court also refused to give effect to legislative history associated with the adoption of the supplemental disability provisions of ORS 656.210 in 2001, in which multiple, authoritative witnesses testified that the creation of supplemental disability compensation would not affect any benefit under the Workers’ Compensation Law other than temporary disability compensation, including, specifically, “vocational assistance.” The court indicated that it found this legislative history irrelevant, given the court’s interpretation of ORS 656.340(5) to include secondary jobs in a worker’s “regular employment.” SAIF Corporation likely will be seeking Supreme Court review in the case.
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David Runner is an attorney with SAIF Corporation who periodically provides updates of important Oregon workers’ compensation litigation; used with permission. Click here to contact David.