Extinguishing the Firefighter Presumption in Oregon Workers’ Compensation
The introduction of H.B. 2915 to the Oregon Legislature, signed into law in the same year, expanded workers’ compensation protection to Portland firefighters who had previously been exempted under Oregon law due to the city’s independent disability and retirement system. This inclusion further gave rise to the need to understand the protection provided by the firefighters’ presumption rule and how to rebut said presumption.
So, what is the firefighters’ presumption? and what burden of proof is on a carrier? Upon showing certain predicate facts, the firefighters’ presumption shifts the burden of proof to the employer and assumes a firefighters’ employment is the cause of the disease. This presumption is only applicable to certain qualifying diseases, such as cancer, lungs, respiratory tract diseases, hypertension, cardiovascular-renal disease etc. This presumption connotes that a claim which falls under this category is compensable. However, an employer may rebut the claim. To rebut this presumption, an employer must show by clear and convincing medical evidence that the condition or impairment was not caused or contributed to in material part by the firefighter’s employment. ORS 656.802(5).
The Oregon Court of Appeal recently clarified the requirements and burden on employers in rebutting the firefighters’ presumption in North Douglas County Fire & EMS v. Robert M. Shannon, 329 Or App 448 (2023). Specifically, the Court explained the definition of “in material part” as provided in the statute. The Court seemingly increased the burden through its interpretation by ruling that “in material part”, as used in the statute, meant “a fact of consequence, without regard to the amount of causation or contribution beyond being a fact of consequence.” Invariably, this interpretation ultimately means the employer must prove that not even a minor cause of the firefighter’s employment caused the disease.
This expansion may be construed as ensuring employers prove no part of the employment caused the disease under the firefighter’s presumption. This increased burden will likely be a difficult hurdle to meet. Therefore, an in-depth detailed medical opinion and evidence must be generated with the expectation of showing that not even a minor part of the employment contributed to the firefighter’s disease to debunk the burden.
If you have any questions regarding the firefighter presumption in Oregon, please do not hesitate to contact me at or 503-776-5423.
Posted by Dee Akinbosade.
