What can the Oregon Workers’ Compensation Board consider before applying the First Responders Presumption under ORS 656.802(7)(b)?
Certain first responders are entitled to a presumption of compensability when a preponderance of medical evidence from a psychiatrist or psychologist establishes the worker has more likely than not satisfied the DSM-5 diagnostic criteria for post-traumatic stress disorder (“PTSD”) or acute stress disorder. ORS 656.802(7)(b). Applicable roles include full time paid firefighters, emergency services providers, police officers, parole and probation officers, emergency dispatchers and 9-1-1 operators. ORS 656.802(7)(a)(B)(i)(I)-(VI). The worker must be employed for at least 5 years or experience a single traumatic event that satisfies diagnostic Criteria A for PTSD. ORS 656.802(7)(a)(B)(i). The worker must remain employed in this role or separate less than seven years prior to qualify for this presumption. ORS 656.802(7)(a)(B)(ii).
In Smicz v. Deschutes County 911 Service District, 347 Or App 28 (2026), the Court of Appeals upheld the Board’s interpretation of ORS 656.802(7)(b) and its consideration of all persuasive medical evidence from all parties. Dr. Wicher (psychologist) and Dr. Telew (psychiatrist) separately evaluated claimant and concluded she did not satisfy PTSD’s diagnostic criteria. Dr. Wicher found an adjustment disorder was a more appropriate diagnosis. Claimant’s expert, Dr. Barram (psychologist), diagnosed PTSD but noted his report was limited in scope.
The Administrative Law Judge concluded the preponderance of medical evidence did not establish claimant satisfied PTSD’s diagnostic criteria. The Board’s review upheld the Judge’s order and found Dr. Barram unpersuasive because his report was not based on a complete or accurate history, and did not address Drs. Wicher and Telew’s reports.
The Court of Appeals clarified the evidentiary standard in ORS 656.802(7)(b) requires the evaluation of all medical evidence in its determination, not merely evidence claimant proffered. The Court of Appeals refused to interpret ORS 656.802(7)(b) in a manner consistent with the firefighter’s presumption in ORS 656.802(4)(a) to presume lung, respiratory, hypertension or cardiovascular-renal disease conditions are due to the worker’s employment. Unlike the firefighter’s presumption, ORS 656.802(7)(b)’s evidentiary standard must be satisfied before the worker is entitled to the presumption of compensability. Therefore, a preponderance of medical evidence from a psychiatrist or psychologist must establish the worker more likely than not satisfied the DSM-5 diagnostic criteria for PTSD or acute stress disorder to apply the presumption of compensability.
The Court of Appeals upheld the Board’s determination that claimant was not entitled to the presumption because she did not satisfy the diagnostic criteria for PTSD by a preponderance of medical evidence. The Court of Appeals found the decision was supported by substantial evidence.
Smicz v. Deschutes County 911 Service District, 347 Or App 28 (2026) distinguished the first responder’s presumption under ORS 656.802(7)(b) from the firefighter’s presumption under ORS 656.802(4). The preponderance of medical evidence must establish PTSD or an acute stress disorder is more likely than not an appropriate diagnosis before the condition may be presumed compensable.
If you have any questions regarding these presumptions, please contact me at or (503) 776-5434.
Posted by Hayley Porter.
