In the Matter of the Compensation of Elvia Garcia-Solis, Claimant.
FARMERS INSURANCE COMPANY; and Yeaun Corporation, dba Green Papaya and Sunset Deli, Respondents. Elvia GARCIA-SOLIS, Petitioner,
and submitted March 17, 2016
Compensation Board 1203622
M. Quinn argued the cause and fled the briefs for petitioner.
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.
Armstrong, Presiding Judge, and Egan, Judge, and Shorr,
Summary: 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 was not an accepted condition.
Held: The board correctly determined that diagnostic
services are compensable only if they are necessary to
determine the cause or extent of a compensable injury.
Although recent Court of Appeals opinions have held that, to
be compensable, diagnostic services need only relate to the
work injury, not the accepted condition, see Easton v.
SAIF, 264 Or.App. 147, 331 P.3d 1035 (2014); SAIF v.
Carlos-Macias, 262 Or.App. 629, 325 P.3d 827, rev
pending (2014), the Supreme Court's recent opinion in
Brown v. SAIF, 361 Or. 241, 391 P.3d 773 (2017),
implicitly overturns those opinions. Because claimant's
PTSD is [288 Or. 2] not an accepted condition, the board did
not err in upholding employer's refusal to authorize the
requested diagnostic services.
Or. 3] ARMSTRONG, P. J.
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.
facts are undisputed. Claimant was compen-sably 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.
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.
requested a hearing. The administrative law judge (AL J)
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.
board affirmed the AL J's order and adopted his findings,
with supplementation. Citing ORS 656.245(1)(a) ("For
every compensable injury, the insurer or the self-insured
employer shall cause to be provided medical services for
conditions caused in material part by the injury for such
period as the nature of the injury or the process of recovery
requires [.]"); SAIF v. Swartz, 247 Or.App.
515, 525, [288 Or. 4] 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
conclusion is correct. In Counts, 146 Or.App. at
771, 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. See also SAW v.
Martinez.219 Or.App. 182, 191, 182 P.3d 873 (2008)
("[T]o establish the compensability of a medical
treatment under ORS 656.245(1)(a), the condition for which
treatment is sought need not be the accepted condition;
however, the treatment must be necessitated in material part
by the 'compensable injury, ' which, we said in
Sprague [v. United States Bakery.199 ...