Oregon Workers’ Compensation Mental Health Presumption of Compensability

Presumption—it’s a scary word in the world of Oregon workers’ compensation. Last year Oregon passed Senate Bill 507—now codified at ORS 656.802(7)—creating a presumption of compensability of certain mental health claims filed by first responders working for public entities. A careful look at the presumption created by ORS 656.802(7) reveals it actually applies in limited circumstances and may not be so scary after all.

Covered Employees

The presumption applies to limited group of employees employed by public employers. Only those employees that are full-time paid firefighters, emergency medical services providers, police officers, corrections officers or you corrections officers, parole or probation officer, or emergency dispatcher or 9-1-1 emergency operated are covered by the presumption. Further, the employee in question must have been employed for at least 5 years at the date of the claim or experienced a single traumatic event that satisfied the criteria set forth in the DSM-5 as Criterion A for diagnosing post-traumatic stress disorder. A list of those criterion is available here.

Presumption of Compensability

How does the presumption work? If one of the named employees above can establish through a preponderance of persuasive medical evidence from a psychiatrist or psychologist that the employee has satisfied the diagnostic criteria for PTSD or acute stress disorder, it is presumed that the diagnosed PTSD or acute stress disorder is work related. The worker does not have to establish that the condition arose as a result of their work exposure.

An insurer/employer can rebut the presumption only by establishing through clear and convincing medical evidence that the employee’s duties were not of real importance or great consequence in causing the diagnosed condition.

Steps to Compensability under ORS 656.802(7)

While a presumption statute is scary and will certainly lead to a increase in compensable claims—overall the steps to compensability under ORS 656.802(7) remain limited. Only a covered employee (as discussed above) that has been employed for at least 5 years or experiences a single traumatic event as described in DSM-5. The claim is only presumed compensable if the employee has PTSD or acute stress disorder diagnosed by a psychiatrist or psychologist. At that point an employer may be able to rebut the presumption with sufficient evidence.

The presumption is still relatively new. Therefore, we have not seen an analysis of what kind of evidence an employer will actually need to rebut the presumption.
If you have any questions regarding the new presumption, please do not hesitate to contact me at mvaniman@sbhlegal.com or 503-595-6107.