When PTD Is No Longer Permanent: Reexamining Permanent Total Disability in Oregon
Permanent total disability (“PTD”) benefits are intended for workers whose work-related disability permanently incapacitates them from regularly performing work at a gainful and suitable occupation. But what happens when a claimant receiving PTD benefits appears capable of working again?
In Oregon, a PTD award is not necessarily the end of the inquiry. Reexamination must be conducted every two years, but may be done more often if the insurer chooses to do so. ORS 656.206(5); OAR 436-030-0055(5)(a). On reexamination of a PTD award, the insurer has the burden of proving that the injured worker is no longer permanently and totally disabled. ORS 656.206(6)(b). See Bentley v. SAIF, 38 Or App 473, 478, 590 P2d 746 (1979); Harris v. SAIF Corp., 292 Or 683, 690, 642 P2d 1147 (1982).
What Must an Insurer Prove?
The insurer must establish, by a preponderance of the evidence, that the claimant has materially improved and is capable of regularly performing work at a gainful and suitable occupation. ORS 656.206(6)(b). ORS 656.206(5) requires that the insurer prove some material improvement, either medical or vocational.
A successful PTD reexamination generally requires more than evidence that the claimant can perform isolated tasks. The evidence must support the conclusion that the claimant can regularly perform the essential functions of a suitable, gainful occupation. Be sure to notify the worker and the worker’s attorney, if represented, whenever the insurer intends to reexamine the worker’s PTD. OAR 436-030-0065(1). If a decision is made to terminate PTD benefits following the insurer’s reexamination, that decision and all supporting evidence must be submitted to the worker and the worker’s attorney. OAR 436-030-0065(3).
Does the Improvement Have to Occur After the PTD Award?
The statute focuses on whether the worker has materially improved, rather than expressly stating that every piece of evidence must demonstrate a change occurring after the date of the original PTD determination. Practically, however, the prior PTD determination provides the critical baseline. The insurer should identify what medical and vocational limitations supported the original PTD determination and then develop evidence demonstrating a meaningful change in those limitations.
For example, surveillance showing a claimant performing activities that were inconsistent with the restrictions relied upon in establishing PTD can be significant. But surveillance alone may not establish that the claimant is capable of regularly performing a suitable and gainful occupation. A vocational evaluation can help connect the observed activities to actual employability. If requested by the director of the DCBS, the insurer, or the self-insured employer, the worker must cooperate with the vocational evaluation. ORS 656.206(8); OAR 436-030-0065(2). Depending on those findings, updated medical evidence may also be appropriate to determine whether the claimant’s accepted conditions continue to support the restrictions underlying the PTD award.
Timing is also worth considering. If current surveillance provides compelling evidence of improved functioning, there may be value in initiating the reexamination process now. Conversely, if the surveillance is isolated or ambiguous, waiting several months and obtaining additional surveillance may produce a more persuasive record demonstrating that the observed abilities are not merely temporary or unusual activities. The appropriate strategy will depend on the existing record, the quality of the surveillance, the claimant’s medical history, and the vocational issues presented.
What Happens If the Evidence Supports Termination?
If the insurer concludes that the claimant has materially improved and is capable of regularly performing gainful and suitable work, it must issue a Notice of Closure reducing the PTD and awarding PPD, if any. OAR 436-030-0065(6). Such closures are appealed to the Hearings Division of the Workers’ Compensation Board, not through the reconsideration process. OAR 436-030-0065(7). PTD benefits continue through the date of closure. If the claimant challenges the closure, PTD benefits may continue during the litigation process as provided by ORS 656.206.
The Takeaway
A PTD award should not be viewed as completely beyond reconsideration. For claims professionals, the best approach is to build the evidence methodically: identify the limitations that supported the original PTD determination, obtain objective evidence of current functioning, evaluate whether that evidence demonstrates a material improvement, and determine whether the claimant is now capable of regularly performing suitable and gainful work. It is also best practice to build in period reminders to reassess PTD every two years in order to remain in compliance with ORS 656.206(5) and OAR 436-030-0055(5)(a). While a quick look might show no reason to think there has been a change, a hint of increased activity in chart notes or other sources may warrant further investigation.
If you have questions regarding Permanent Total Disability Reevaluation or any other aspect of Oregon workers’ compensation law, please feel free to contact me at (971) 369-5230 or .
Posted by Sierra Sawyer.
