Our Notable Cases

Chu v. SAIF, 290 Or App 194 (2018)

In this workers’ compensation case decided by the Court of Appeals, Attorney Don Hooton successfully argued that secondary jobs should be considered part of the injured worker’s “regular employment” under ORS 656.340(5) for purposes of determining the worker’s eligibility for vocational assistance.  In this case, the injured worker was employed one day per week as a bartender/server at employer’s restaurant, where she slipped and fell on a wet floor and injured her left arm and wrist, requiring surgery.  Her wage at this job was minimal.  At the time of her injury, she also worked for two other employers: She worked full-time as a jewelry salesperson for Fred Meyer and part-time as a lead generator for American Family Insurance.  The worker was found ineligible for vocational assistance because she could be employed at a weekly wage within 20 percent of her $100.80 weekly wage at the employer-at-injury’s restaurant (i.e., earning a suitable wage).  The insurer took the position that the wages from the two secondary jobs should not be considered in assessing vocational eligibility.  In ruling favorably for the injured worker, the Court invalidated a WCD administrative rule that defined “regular employment” as limited to the employment in “the job at injury.”

This case has the positive effect of substantially expanding vocational benefits for injured workers with multiple jobs at the time of injury. 

Sather v. SAIF, 357 Or 122 (2015)

In this workers’ compensation case decided by the Supreme Court, the Court ruled that when a worker files a request for hearing on a matter that may result in an additional award of compensation, and then dies for reasons unrelated to the compensable injury before the matter is resolved, leaving no beneficiaries, then the worker’s estate is authorized to pursue the hearing request to its final conclusion.  In making this ruling, the court interpreted the word “person” in ORS 656.218(3) and (5) to include the worker’s “estate,” and interpreted the phrase “unpaid balance of the award” in subsection (5) to include an unresolved hearing request on a compensation issue.

This important appellate victory significantly expanded the right of the estate of a deceased injured worker to step into the worker’s shoes and pursue benefits otherwise would have been owed to the injured worker. 

Spurger v. SAIF, 266 Or App 183 (2014)

In this workers’ compensation case decided by the Court of Appeals, Attorney Don Hooton prevailed on the argument that the Workers’ Compensation Board failed to provide substantial reason to support its order determining the injured worker failed to demonstrate that she was “significantly limited” in the repetitive use of her left hip and, thus, was not entitled to additional compensation for chronic condition impairment.  There was uncontroverted evidence from two doctors that claimant would have difficulty with repetitive squatting, walking long distances and static standing for long periods of time, but Board did not explain why it did not consider the described limitations as “significant” enough to qualify for chronic condition impairment, and Board did not explain what interpretation of term “significantly limited” was correct. 

This appellate victory demanded the implementation of a clearer legal standard for addressing when a worker is entitled to a chronic condition impairment.  The decision resulted in the publication of a December 22, 2014 Industry Notice by the Workers’ Compensation Division, clarifying the proper inquiry of a chronic condition impairment as follows: Because of a permanent and chronic condition caused by the compensable injury, is the worker unable to repetitively use the body part for more than two-thirds of a period of time?

Schleiss v. SAIF, 354 Or 637 (2013)

In this workers’ compensation case decided by the Supreme Court, the insurer closed the claim with very limited permanent impairment.  The doctor who performed the closing examination apportioned 33% of the worker’s impairment to the on-the-job injury, and 67% impairment to the worker’s mild degenerative joint disease and long history of smoking.  Attorney Don Hooton successfully argued that the apportionment of 67% impairment to factors such as degenerative joint disease and smoking was impermissible under the circumstances, because the insurer had not affirmatively established those factors as legally cognizable preexisting conditions. 

This appellate victory served to affirm the insurer’s responsibility to establish a legally cognizable preexisting condition for apportioning permanent impairment; if the insurer cannot meet this burden, then the injured worker should receive the entirety of his permanent disability award.

Jordan v. SAIF, 343 Or 208 (2007)

In this workers’ compensation case decided by the Supreme Court, Attorney Don Hooton successfully argued that the Workers’ Compensation Board lacked “own motion” authority to suspend temporary disability payments when an injured worker failed to comply with the physical therapy recommendations of his treating physician.

This case clarified that the Director (WCD), and not the Board, has the authority to suspend benefits for failure to comply with medical treatment recommendations. It also affirmed the longstanding legal principal that an agency’s authority is limited by the terms of the governing statute.

United Airlines v. Anderson, 207 Or App 493 (2006)

In this workers’ compensation case decided by the Court of Appeals, the Court held that the injured worker, a union member, was entitled to receive temporary disability benefits based on an increased hourly wage rate that was made retroactive under a collective bargaining agreement.

This case stands for the proposition that if the effect of a collective bargaining agreement is to increase the injured worker’s hourly wage, then the workers’ compensation benefits he receives should similarly reflect the benefit of such increase.