Oregon: To Rebut Firefighter’s Presumption, Employer Must Meet Both Burden of Production and Burden of Persuasion

Where a firefighter established a prima facie case for compensability under ORS 656.802(4), Oregon’s “Firefighter Presumption,” both the burden of production and the burden of persuasion shifted to the employer to prove that the claimant’s condition or impairment was unrelated to the firefighter’s employment. Moreover, the employer was required to prove that fact by clear and convincing evidence. Reversing the Court of Appeals, the Supreme Court of Oregon held that it was within the Workers’ Compensation Board’s province to determine that although the employer did indeed produce medical testimony that met the employer’s burden of production, it had failed to meet the burden of persuasion that the firefighter’s atherosclerosis was “unrelated” to his employment. The employer’s expert issued a written report in which he opined that firefighting was not the major contributing cause of claimant’s atherosclerosis. That was, however, at odds with the expert’s testimony that the causes of atherosclerosis were unknown. The issue was not whether firefighting was the major contributing cause of the firefighter’s condition, but rather whether the firefighter’s condition was unrelated to his employment.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See SAIF Corp. v. Thompson, 360 Ore. 155, 2016 Ore. LEXIS 472 (Aug. 4, 2016)

See generally Larson’s Workers’ Compensation Law, § 52.07.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law