Mathel v. Josephine County

858 P.2d 450, 122 Or. App. 424, 1993 Ore. App. LEXIS 1416

• Court: Court of Appeals of Oregon
• Decided: August 25, 1993
• Docket: WCB 90-18752; CA A76236
• Status: Published

Opinions

WARREN, J.

Claimant seeks review of a Workers’ Compensation Board order that upheld employer’s denial of his claim for myocardial infarction. We write only to address claimant’s argument that 1990 changes to the occupational disease law affect the compensability of his claim, and affirm.

Claimant had hypertension, which had been under control for many years. On August 23,1990, after experiencing two days of abnormally high emotional stress at his employment with employer, he suffered a myocardial infarction. Employer denied his claim for compensation. The Board, following our decision in SAIF v. Hukari, 113 Or App 475, 833 P2d 1307, rev den 314 Or 391 (1992), upheld the denial. In Hukari, we held that, under the 1987 amendments to the workers’ compensation law, any claim that a condition is independently compensable because it was caused by on-the-job stress must be treated as a claim for a mental disorder under the occupational disease provisions of ORS 656.802. A mental disorder is not compensable unless, inter alia, “there is a diagnosis of a mental or emotional disorder which is generally recognized in the medical or psychological community.” ORS 656.802(3) {formerly ORS 657.802(2)). It is undisputed that claimant does not have a diagnosed mental disorder, and therefore the Board concluded that his claim is not compensable.

The 1987 formulation of ORS 656.802 provided, in part:

“(1) As used in this chapter, ‘occupational disease’ means:

“(a) Any disease or infection arising out of and in the course of employment caused by ingestion of, absorption of, inhalation of or contact with dust, fumes, vapors, gasses, radiation or other conditions or substances to which an employee is not ordinarily subjected or exposed other than during a period of regular actual employment therein, and which requires medical services or results in disability or death.

“(b) Any mental disorder arising out of and in the course of employment and which requires medical services or results in physical or mental disability or death.

“(c) Any series of traumatic events or occurrences arising out of and in the course of employment which requires medical services or results in physical disability or death.”

In 1990, the legislature amended that statute by moving the language emphasized below from paragraph (l)(a) into subsection (1) and adding “caused by,” “or activities,” and “including.” ORS 656.802(1) now provides, in part:

“(1) As used in this chapter, ‘occupational disease’ means any disease or infection arising out of and in the course of employment caused by substances or activities to which an employee is not ordinarily subjected or exposed other than during a period of regular actual employment therein, and which requires medical services or results in disability or death, including:

“(a) Any disease or infection caused by ingestion of, absorption of, inhalation of or contact with dust, fumes, vapors, gases, radiation or other substances.

“(b) Any mental disorder which requires medical services or results in physical or mental disability or death.

“(c) Any series of traumatic events or occurrences which requires medical services or results in physical disability or death.” (Emphasis supplied.)

Claimant asserts that, under the new definition, his claim is compensable, because his work activities caused his heart attack.

The 1987 version of the statute listed three types of claims that were occupational diseases. ORS 656.802 (l)(a)-(c). ORS 656.802(1), as amended in 1990, may have been intended to expand that definition to include conditions that do not fit within one of the three listed categories of claims. However, the amendments did not change the mental disorder provisions or the determination in Hukari that any claim that a condition is caused by on-the-job stress must be considered a claim for mental disorder under ORS 656.802. Claims for mental disorders continue to be subject to the requirements of ORS 656.802(3). Thus, because claimant seeks compensation for myocardial infarction caused by on-the-job stress, that is a claim for mental disorder under ORS 656.802. Claimant does not have a diagnosed mental condition and, therefore, his claim is not compensable. ORS 656.802(3).

We have considered and reject claimant’s other arguments.

Affirmed.