Elsea v. Liberty Mutual, Ins.

Under ORS 656.206, If a worker is so disabled that he or she cannot work, efforts to seek work would be futile. Even if efforts would be futile, to establish permanent total disability, the worker must prove that, but for the compensable injury, the worker is or would be willing to seek regular gainful employment.

Elsea challenged the Workers’ Compensation Board’s denial of his request for permanent total disability. The Board based its denial on Elsea’s failure to prove that he was willing to seek regular gainful employment, a requirement under ORS 656.206. Elsea argued that efforts to seek employment, as required under ORS 656.206, would be futile because he is so disabled that he cannot work. This Court upheld that to establish permanent total disability, a worker must prove that he or she is willing to seek regular gainful employment and that he or she has made reasonable efforts to obtain such employment. ORS 656.206. Even if efforts to seek work would be futile because the worker is so disabled that he or she cannot work, the worker must still establish that, but for the compensable injury, he or she is or would be willing to seek regular gainful employment. SAIF v. Stephen, 308 Or 41, 774 P2d 1103 (1989). Elsea’s three-year absence from the job market could be used as a weighing factor to demonstrate an unwillingness to work. Elsea argued against the weighing factor, but conceded that, even if he were not treated as having withdrawn from the work force, he must still establish a current willingness to seek work under ORS 656.206. This Court holds that the Board did not err in denying permanent total disability benefits because Elsea did no persuasively establish a willingness to seek work. Affirmed.