Garcia-Solis v. Farmers Ins. Co. (In re Comp. of Garcia-Solis)
| Decision Date | 27 September 2017 |
| Docket Number | A156734. |
| Citation | 403 P.3d 803,288 Or.App. 1 |
| Parties | In the Matter of the Compensation of Elvia Garcia-Solis, Claimant. Elvia GARCIA-SOLIS, Petitioner, v. FARMERS INSURANCE COMPANY; and Yeaun Corporation, dba Green Papaya and Sunset Deli, Respondents. |
| Court | Oregon Court of Appeals |
Julene M. Quinn, Albany, argued the cause and filed the briefs for petitioner.
Vera Langer argued the cause for respondents. On the answering brief were Theodore P. Heus and Lyons Lederer, LLP. With her on the reply brief was Lyons Lederer, LLP.
Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.
In this workers' compensation case, claimant, who suffered serious compensable injuries when she was hit by a tent pole during a wind storm, seeks review of an order of the Workers' Compensation Board upholding employer's refusal to authorize a consultation with a psychologist to address symptoms possibly related to post-traumatic stress disorder (PTSD). Employer denied the claim for the reason that PTSD is not an accepted condition. We conclude that the board did not err and therefore affirm.
The facts are undisputed. Claimant was compensably injured when she was struck on the head by a tent pole that fell in the wind, sustaining a large laceration to her scalp, and other injuries. Claimant was hospitalized for almost a month. Employer ultimately accepted a claim for a concussion, a closed head injury, chronic headache syndrome, facial scarring, and right supraorbital nerve injury.
Claimant's attending physician sought to refer her to a counselor or psychologist to address her fear of going outside when it is windy, which the doctor described as "PTSD like symptoms." Claimant's physician offered the opinion that the referral was necessitated in material part by claimant's work injury. Employer declined to authorize the requested referral for the reason that the service was not directed toward an accepted condition.
Claimant requested a hearing. The administrative law judge (ALJ) found that there was "no reasonable doubt that the denied psychology referral was caused in material part by the [work-related] accidental injury." But the ALJ also upheld employer's refusal to authorize the psychological evaluation, because it was not necessitated in material part by the accepted conditions.
The board affirmed the ALJ's order and adopted his findings, with supplementation. Citing ORS 656.245(1)(a) (); SAIF v. Swartz , 247 Or.App. 515, 525, 270 P.3d 335 (2011) ; and Counts v. International Paper Co. , 146 Or.App. 768, 934 P.2d 526 (1997), the board reasoned that diagnostic services are compensable only if they relate to an already-accepted injury or condition.
That conclusion is correct. In Counts , 146 Or.App. at 771, 934 P.2d 526, we said that, in light of the requirement in ORS 656.245(1) that employers pay for "medical services for conditions caused in material part by the injury," diagnostic services are compensable only if they are "necessary to determine the cause or extent of a compensable injury." We adhered to that analysis in Swartz , 247 Or.App. at 526-27, 270 P.3d 335. See also SAIF v. Martinez , 219 Or.App. 182, 191, 182 P.3d 873 (2008) ( ).
On judicial review, citing this court's recent opinions in Easton v. SAIF , 264 Or.App. 147, 331 P.3d 1035 (2014), and SAIF v. Carlos-Macias , 262 Or.App. 629, 325 P.3d 827 (2014),1 claimant contends that, to be compensable, diagnostic services need only relate to the work injury, not the accepted conditions. Therefore, claimant contends, the board applied an incorrect standard in determining that the services were not compensable because claimant had failed to prove that they were causally related to an accepted condition.2
Both Easton and Carlos-Macias relied on our opinion in Brown v. SAIF , 262 Or.App. 640, 325 P.3d 834 (2014)( Brown I ), in which we held that, in the workers' compensation statutory scheme, the term "compensable injury" refers to the accidental work injury or the "work-related injury incident," and is not limited to an accepted condition. In both Carlos-Macias , 262 Or.App. at 637, 325 P.3d 827, and Easton , 264 Or.App. at 149, 331 P.3d 1035, we held that diagnostic services are compensable if they are related to the injury incident.
After oral argument in this case, the Supreme Court reversed our decision in Brown I , rejecting our "injury incident" definition of "compensable injury" and holding that the compensability of a combined condition claim depends on its relationship to a previously accepted condition. Brown v. SAIF , 361 Or. 241, 283, 391 P.3d 773 (2017) ( Brown II ). The question that we must address here is whether the Supreme Court's reversal of our decision in Brown I also implicitly reverses our decisions in Carlos-Macias and Easton and requires affirmance of the board's order upholding employer's denial of the claimed diagnostic services.
We conclude that it does. In Brown II , the Supreme Court addressed the meaning of the term "compensable injury," as defined in ORS 656.005(7)(a), concluding that it refers to a particular medical condition and not, as the dissent suggests, to an injury incident. The effect of the Supreme Court's opinion in Brown II was to overturn our holdings in Carlos-Macias and Easton and to reinvigorate our holdings in Counts and Swartz that diagnostic services are compensable only if they are necessary to determine the cause or extent of an accepted compensable injury. Counts , 146 Or.App. at 771, 934 P.2d 526. Additionally, we have separately held in Roseburg Forest Products v. Langley , 156 Or.App. 454, 463, 965 P.2d 477 (1998), that diagnostic services for the purpose of establishing the compensability of a new or consequential condition are not compensable. That is essentially what claimant is seeking here. The board therefore did not err in upholding employer's refusal to authorize the requested diagnostic services. If claimant's psychological condition is ultimately determined to be compensable, then the diagnostic services will be compensable as well.
Affirmed.
The majority opinion holds that this court's decision in SAIF v. Carlos-Macias , 262 Or.App. 629, 325 P.3d 827 (2014), relied on this court's opinion in Brown v. SAIF , 262 Or.App. 640, 325 P.3d 834 (2014) ( Brown I ), which defined a "compensable injury" as a "work related injury incident" rather than an "accepted condition." The majority reasons that because the Supreme Court overturned Brown I , the underlying reasoning in Carlos-Macias must have been faulty and, therefore, the principle of payment for diagnostic services outside of an accepted condition cannot be upheld. I disagree. Because I believe that the majority is mistaken about the breadth of the Supreme Court's decision in Brown v. SAIF , 361 Or. 241, 391 P.3d 773 (2017) ( Brown II ), I respectfully dissent.
I first acknowledge that this court's decision in Brown I , reversed by the Supreme Court, was perceived as a sweeping decision about the analysis of workers' compensation claims. Under the terms of this court's decision, all decisions concerning compensability had to be made based on the result of the original incident of injury rather than on the basis of the condition "accepted" by the insurance carrier. Brown dealt with a condition accepted by the carrier as a lumbar strain. The carrier later expanded that accepted condition to include "lumbar strain combined with lumbar disc disease and spondylolisthesis." Brown II , 361 Or. at 245, 391 P.3d 773. The Supreme Court reversed this court on the narrow issue of whether an "accepted condition" or "injury incident" analysis applied to combined condition claims under ORS 656.005(7)(a)(B), and the distinction between the focus on "injury incident" versus the "accepted condition" that necessarily arises in the interpretation of that statute. Brown II , 361 Or. at 247-48, 391 P.3d 773. The Supreme Court landed squarely on the side of an "accepted condition" analysis in the interpretation of ORS 656.005(7)(a)(B) and combined conditions.
Nevertheless, the Supreme Court reserved judgment on implementing its "accepted condition" analysis in cases involving medical diagnoses. Specifically, the high court reserved judgment on the correction of Carlos-Macias .
Id . If the reasoning in this court's Brown I opinion was so faulty, and extended to Carlos-Macias , then the Supreme Court could just as easily have simultaneously disposed of both cases, but it did not. I believe the reason for that hesitation is implied by the decision of the Supreme Court in Brown II .
In its opinion, the high court notes that terms within the workers' compensation statute tend to be used inconsistently from provision to provision.
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Saif Corp. v. Carlos-Macias (In re Comp. of Carlos-Macias), A150950
...statute." 361 Or. at 282, 391 P.3d 773. The question on remand concerns that issue.In our recent opinion in Garcia-Solis v. Farmers Ins. Co. , 288 Or. App. 1, 403 P.3d 803 (2017), we addressed that same issue, concluding, in essence, that the Supreme Court's decision in Brown II implicitly ......
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Schaffer v. SAIF Corp. (In re Schaffer), A153630
...and DeVore, Judge, and James, Judge.PER CURIAMAffirmed. Brown v. SAIF , 361 Or. 241, 391 P.3d 773 (2017) ; Garcia-Solis v. Farmers Ins. Co. , 288 Or. App. 1, 403 P.3d 803 (2017). ...