In re Comp. of Garcia-Solis

• Decision Date: 14 June 2021
• Docket Number: WCB Case No. 12-03622
• Citation: In re Comp. of Garcia-Solis, 73 Van Natta 481, WCB Case No. 12-03622 (Or. Work. Comp. Jun 14, 2021)
• Parties: In the Matter of the Compensation of ELVIA GARCIA-SOLIS, Claimant
• Court: Oregon Workers' Compensation Division

73 Van Natta 481

In the Matter of the Compensation of ELVIA GARCIA-SOLIS, Claimant

WCB Case No. 12-03622

Oregon Workers' Compensation Division

June 14, 2021

ORDER ON REMAND

Julene M Quinn LLC, Claimant Attorneys

Reinisch Wilson Weier PC, Defense Attorneys

Reviewing Panel: Members Ousey and Curey.¹Member Curey concurs.

This case is before the Board on remand from the Supreme Court.Garcia-Solis v. Farmers Ins. Co., 365 Or 26(2019).The Supreme Court has reversed the Court of Appeals opinion, 288 Or App 1(2017), that affirmed our prior order, Elvia Garcia-Solis, 66 Van Natta 538(2014), which had affirmed an Administrative Law Judge's order that upheld the insurer's denial of claimant's medical service claim for a psychological evaluation.Reasoning that medical services are compensable under ORS 656.245(1)(a) if claimant demonstrates that her medical service was for a condition caused in material part by the work injury (rather than the accepted conditions), the Supreme Court has remanded for further proceedings.

FINDINGS OF FACT

We adopt the "Findings of Fact" from our prior order with the following summary and supplementation.

In February 2009, claimant was compensably injured when a large tent pole was blown down, striking her in the head and slamming her against a wall.(Ex. 4).The insurer ultimately accepted a left midshaft clavicle fracture, first through third left rib fractures, C7-T3 spinous process fractures, a full thickness scalp laceration with facial scarring, a right supraorbital nerve injury, a left elbow contusion, T5-T8 compression fractures, a concussion, chronic headache syndrome, and status post closed head injury.(Ex. 134-1).

On November 15, 2011, Dr. Erb, a treating rehabilitation specialist, noted that claimant was injured due to windy weather, and that she continued to be fearful of being outdoors in the wind.(Ex. 160).Dr. Erb also noted that claimant was experiencing low mood and difficulty with adjustment to disability.(Id.)Dr. Erb proposed counseling to assist claimant with those difficulties.(Id.)

On February 27, 2012, Dr. Erb noted that claimant's mood had improved, but that she continued to be fearful outdoors and was "limiting her environment."(Ex. 162).Dr. Erb planned to initiate a psychology referral to address "PTSD like symptoms."(Id.)

On May 11, 2012, a managed care organization declined to review a request for authorization for the psychology referral, asserting it was not directed toward any accepted condition.(Ex. 164).

Claimant requested review by the Workers' Compensation Division(WCD).(Ex. 165).The insurer responded that the medical service request was disapproved because it was not directed to an accepted condition.(Ex. 166).On July 17, 2012, the Director transferred the medical services dispute to the Hearings Division to determine whether there was a sufficient causal relationship between the disputed medical service and the accepted claim.(Ex. 168).

On February 20, 2013, Dr. Erb indicated that claimant's need for a psychology referral to address PTSD-like symptoms was caused in material part by claimant's February 25, 2009, work injury.(Ex. 170-2).

CONCLUSIONS OF LAW AND OPINION

Noting that the parties agreed that the first sentence of ORS 656.245(1)(a) determined the compensability of the disputed psychology referral, the ALJ upheld the insurer's denial.The ALJ reasoned that Dr. Erb's opinion did not establish a causal connection between the referral and any accepted medical condition.Accordingly, applying SAIF v. Swartz, 247 Or App 515, 525(2011), the ALJ upheld the insurer's medical service denial.On Board review, we affirmed the ALJ's order.Garcia-Solis, 66 Van Natta at 540.

The Court of Appeals affirmed our decision, reasoning that "compensable injury" in ORS 656.245(1)(a) referred to a previously accepted condition.Garcia-Solis v. Farmers Ins. Co., 288 Or App 1, 5(2017).

The Supreme Court reversed.The court reasoned that, although the term "otherwise compensable injury" designated a medical condition for purposes of ORS 656.005(7)(a), the phrase "compensable injury" was not used uniformly through the workers' compensation statutes.Garcia-Solis, 365 Or at 35-37.In doing so, the court noted that its decision in Brown v. SAIF, 361 Or 241(2017), expressly reserved any decision concerning the meaning of "compensable injury" for purposes of ORS 656.245.Id. at 37.Analyzing the first sentence of ORS 656.245(1)(a)(which requires carriers to provide "medical services for conditions caused in material part by the injury," for every "compensable injury"), the court concluded that the first use of the term "compensable injury," and the subsequent use of "material part by the injury," both refer to the injury event, rather than a medical condition.Id. at 38.In contrast, the court reasoned that the statute's subsequent use of the term "nature of the injury" referred to a medical condition.Id.Accordingly, the court reversed our previous decision and remanded for a determination consistent with those definitions of "compensable injury"(i.e., whether the requested medical service was for a condition caused in material part by the work injury event).²Id. at 43.

Thus, to establish that the claimed psychology referral is compensable on remand, claimant must establish that it is for a condition that was caused in material part by her 2009 work injury event.SeeORS 656.245(1)(a);ORS 656.266(1);Garcia-Solis, 365 Or at 37.

On remand, the insurer first contends that claimant has not established that the disputed medical service was directed toward "a condition" within the meaning of ORS 656.245(1)(a), rather than mere symptoms.Based on the following reasoning, we decline to address that contention.

In its closing arguments to the ALJ, the insurer specifically conceded that the recommended psychological evaluation was for a "condition," namely, PTSD.(App. Rec.at 60).Furthermore, in closing arguments, the insurer acknowledged that the medical evidence described a connection between the February 2009 work incident and "the psychological condition."(App. Rec.at 62).Finally, in its respondent's brief to the Board, the insurer stated that the psychological evaluation was "for the psychological condition or claimant's psychological symptoms," and that "the issue reduces to whether claimant has proven that any of the previously accepted conditions are a material cause of that underlying psychological condition or symptoms."(App. Rec.at 21).

Given these concessions, we decline to consider the insurer's argument concerning the existence of a "condition" for purposes of ORS 656.245(1)(a).SeeIan M. Reoch, 72 Van Natta 174(2020)(declining to consider issue raisedon Board review that was conceded at the hearing level).Accordingly, we proceed to analyze whether Dr. Erb's psychology referral was "for" a condition that was caused in material part by the 2009 work injury event.

On this record, on multiple occasions, Dr. Erb documented claimant's fearful symptoms related to being outdoors when the weather was windy.(Exs. 160, 162).Dr. Erb commented that claimant was limiting her environment because she was fearful that something would fall on her head (similar to the occurrence of the compensable injury).(Ex. 162).Ultimately, Dr. Erb concluded that claimant's need for a psychology referral was caused in material part by the February 2009 work injury.(Ex. 170).There is no contrary medical opinion.

We acknowledge the insurer's assertions that claimant's son's involvement in her medical care, and an alleged delay between the work accident and claimant's PTSD symptoms, make Dr. Erb's opinion unpersuasive.However, no physician assigned any importance to the abovementioned issues.SeeDorothy S. Calliham, 59 Van Natta 137, 138(2007)(where other physicians' opinions attached no significance to certain facts, a physician's failure to evaluate those facts did not undermine the persuasiveness of the physician's opinion).

Under such circumstances, we find Dr. Erb's opinion to be sufficient to establish that the requested medical service was for the "PTSD-like" symptoms that were caused in material part by the work injury.Thus, the record persuasively establishes the compensability of the disputed medical service.

Claimant's attorney is entitled to an assessed fee for services rendered at the hearing level, on Board review, before the appellate courts,³ and on remand for finally prevailing over the insurer's denial.ORS 656.386(1),ORS 656.388(1).⁴

Claimant's attorneys requested attorney fees totaling $124,370.50, based on proposed contingent hourly rates and reported hours spent on the case.⁵Specifically, claimant's attorneys requested a $24,992.50 attorney fee award for services at the hearing level and on Board review, an $88,380.00 attorney fee award for services before the Court of Appeals and the Supreme Court, and a $10,998 attorney fee for services before the Board on remand.

In determining a reasonable attorney fee award, we apply the factors set forth in OAR 438-015-0010(4) to the circumstances of each case.SeeSchoch v. Leupold & Stevens, 325 Or 112, 118-19(1997).Those factors are: (1) the time devoted to the case; (2) the complexity of the issue(s) involved; (3) the value of the interest involved; (4) the skill of the attorneys; (5) the nature of the proceedings; (6) the benefit secured for the represented party; (7) the necessity of allowing the broadest access to attorneys by injured workers; (8) the fees earned by attorneys representing the insurer/self-insured employer, as compiled in the Director's annual report under ORS 656.388(7) of attorney salaries and other costs of legal services incurred by insurers/self-insured employers pursuant to ORS Chapter 656;(9) the risk in a particular case that an attorney's efforts may go uncompensated; (10) the contingent nature of the practice of workers' compensation law; (11) the...