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In re Compensation of Elvia Garcia-Solis

Court of Appeals of Oregon

September 27, 2017

In the Matter of the Compensation of Elvia Garcia-Solis, Claimant.
v.
FARMERS INSURANCE COMPANY; and Yeaun Corporation, dba Green Papaya and Sunset Deli, Respondents. Elvia GARCIA-SOLIS, Petitioner,

          Argued and submitted March 17, 2016

         Workers' Compensation Board 1203622

          Julene M. Quinn argued the cause and fled 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.

         Case 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.

         Affirmed.

         [288 Or. 3] ARMSTRONG, P. J.

         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 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.

         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 (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.

         The 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 or condition.

         That 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 ...


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