In the Matter of the Compensation of Francisco M. Carlos-Macias, Claimant.
Francisco M. CARLOS-MACIAS, Respondent. SAIF CORPORATION and Sherman Paint & Collision, Petitioners,
Submitted on remand November 7, 2017.
remand from the Oregon Supreme Court Workers'
Compensation Board 1004446, 1004555, SAIF Corporation v.
Carlos-Macias, 362 Or. 38, 403 P.3d 777 (2017).
Masters fled the briefs for petitioners. Dale C. Johnson fled
the briefs for respondent.
S. Coon and Thomas, Coon, Newton, & Frost, fled the brief
amici curiae for Oregon Trial Lawyers' Association.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: This case is on remand from the Oregon Supreme Court
for reconsideration in light of Brown v. SAIF, 262
Or.App. 640, 325 P.3d 834 (2014) (Brown I),
rev'd, 361 Or. 241, 391 P.3d 773 (2017)
The Court of Appeals withdrew its conclusion reached in
reliance on Brown I that rejected SAIF's
contention that the compensability of a diagnostic service is
determined with reference to the "accepted
condition." However, the Court of Appeals adhered to its
conclusion that claimant's diagnostic services are
Or.App. 802] ARMSTRONG, P. J.
workers' compensation case is on remand from the Supreme
Court for reconsideration in light of Brown v. SAIF,
361 Or. 241, 272, 391 P.3d 773 (2017) (Brown II). As
explained in our original opinion, SAIF v.
Carlos-Macias, 262 Or.App. 629, 631, 325 P.3d 827
(2014), claimant compensably injured his left shoulder. SAIF
accepted a left shoulder strain and rotator cuff tendinosis
and paid for surgery. The dispute on judicial review arose
when claimant's orthopedist recommended diagnostic tests
to determine the cause of claimant's continued symptoms.
Ultimately, the Workers' Compensation Board determined
that the requested diagnostic services were compensable under
ORS 656.245(1)(a), and employer Sherman Paint & Collision
and SAIF sought review, asserting that there was no causal
relationship between the requested services and
claimant's accepted conditions.
original opinion, we affirmed the board's order and
upheld the board's determination that the diagnostic
services were necessitated by the accepted conditions.
Carlos-Macias, 262 Or.App. at 638-39. We also held,
citing our opinion in Brown v. SAIF, 262 Or.App.
640, 325 P.3d 834 (2014) (Brown I), that the
requested diagnostic services were compensable because they
were related to claimant's "compensable injury,
" which we understood in Brown I to be a
reference to the work-related injury incident, rather than
the accepted condition. We rejected employer's and
SAIF's contention that the compensability of diagnostic
services is determined by reference to the "accepted
condition." Carlos-Macias, 262 Or.App. at 637.
petitioned for review of our opinion, and the Supreme Court
has remanded the case to us for reconsideration in light of
its opinion in Brown II, in which it reversed our
decision in Brown I and determined that
"compensable injury, " as used in ORS
656.005(7)(a)(B), refers to the medical condition or
disability previously accepted. The court in Brown
II explicitly expressed no opinion on whether its
conclusion regarding the meaning of "compensable
injury" in ORS 656.005(7)(a)(B) applies to the meaning
of "compensable injury" in ORS 656.245, stating
that the question was [290 Or.App. 803] pending and depended
"on the careful construction of the relevant terms of
the applicable statute." 361 Or at 282. The question on
remand concerns that issue.
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 overturned our
original construction of ORS 626.245 in this case, and that
"compensable injury, " as used in ORS 656.245, has
the same meaning that it does in ORS 656.005(7)(a)(B). We
noted that, before our opinion in Brown I and the
cases that followed it, see, e.g., Carlos-Macias; Easton
v. SAIF, 264 Or.App. 147, 331 P.3d 1035 (2014), our case
law had long held that diagnostic testing is compensable if
its purpose is to determine the cause or extent of a
compensable injury. Garcia-Solis, 288 Or.App. at 4.
We cited our opinion in Roseburg Forest Products v.
Langley, 156 Or.App. 454, 463, 965 P.3d 477 (1998), in
support of the conclusion that diagnostic services are
compensable for the purpose of determining the cause or
extent of the original compensable injury but not for the
purpose of establishing the compensability of a new or
consequential condition. Garcia-Solis, 288 Or.App.
at 5. And we concluded in Garcia-Solis that
diagnostic services are compensable under ORS 656.245 only if
they relate to an already-accepted injury or condition.
after reviewing the relevant terms of the applicable
statutes, we again reach the same conclusion. ORS 656.003
provides that the definitions given in ORS chapter 656 govern
the construction of the defined terms in that chapter, except
"where the context otherwise requires." ORS
656.005(7) defines "compensable injury" for
purposes of ORS chapter 656. In Brown II, the
Supreme Court determined that "compensable injury,
" as defined in ORS 656.005(7)(a), refers to the
accepted injury. As the court explained, "[a]lthough the
original definition of 'compensable injury' in ORS
656.005(7)(a) did not explicitly link the term with
acceptance, *** the courts long have supplied that very
link." Brown II, 361 Or at 273. An example of
that link that the court discussed in Brown II is
SAIF v. Sprague,346 Or. 661, 673-75, 217 P.3d 644
(2009), in which the court in Brown II interpreted
to "plainly refer" to "compensable [290
Or.App. 804] injury" as used in ORS 656.245 as a
reference to "the previously accepted medical