IN the SUPREME COURT of the STATE of OREGON in the Matter of the Compensation of Elvia Garcia-Solis, Claimant. ELVIA GARCIA-SOL

October 18, 2018 08:15 AM

IN THE SUPREME COURT OF THE STATE OF OREGON

In the Matter of the Compensation Agency No.: 1203622 Of Elvia Garcia-Solis, Claimant.

ELVIA GARCIA-SOLIS, Petitioner, Petitioner on Review, CA No.: A156734

v. SC No.: S065956

FARMERS INSURANCE COMPANY and YEAUN CORPORATION, dba Green Papaya and Sunset Deli,

Respondents, Respondents on Review.

______

RESPONDENTS’ BRIEF ON THE MERITS ______

On Review of the Decision of the Court of Appeals on Judicial Review from the Order on Review of the Workers’ Compensation Board of the State of Oregon.

Decision filed: September 27, 2017

Before Rex Armstrong, Presiding Judge James Egan, Judge (dissenting) Scott Shorr, Judge

Julene M. Quinn, OSB 893408 Marcia L. Alvey, OSB 970198 Julene M. Quinn LLC Alvey Law Group P.O. Box 820087 8555 SW Apple Way, Suite 310 Portland, OR 97282-1087 Portland, OR 97225-1777 (971) 259-8141 (503) 229-0895 [email protected] [email protected] Of Attorneys for Elvia Garcia-Solis Of Attorneys for Elvia Garcia Solis Petitioner, Petitioner on Review Petitioner, Petitioner on Review

Vera Langer, OSB 880682 James S. Coon, OSB 771450 Lyons Lederer, LLP Swanson, Thomas, Coon & Newton 530 Center St. NE, Ste 150 820 SW 2nd Ave., Ste 200 Salem, OR 97301 Portland, OR 97204 (503) 485-4888 (503) 228-5222 [email protected] [email protected] Of Attorneys for Of Attorneys for Amicus Curiae Famers Insurance Company and Oregon Trial Lawyer Association Yeaun Corporation, dba Green Papaya and Sunset Deli, Respondents, Respondents on Review

TABLE OF CONTENTS

STATEMENT OF THE CASE ...... 1

Nature of the Proceedings and Relief Sought ...... 1

First Question Presented on Review ...... 1

First Proposed Rule of Law ...... 2

Second Question Presented on Review ...... 2

Second Proposed Rule of Law ...... 2

Summary of Argument ...... 2

Summary of Facts ...... 5

ARGUMENT ...... 6

I. Introduction ...... 6

II. This Court’s Prior Interpretation of ORS 656.245 ...... 8

A. “For every compensable injury” ...... 8

B. “Medical services for conditions caused in material part by the injury” ...... 12

C. “For such period as the nature of the injury or the process of the recovery requires” ...... 16

III. Statutory Context ...... 16

A. Senate Bill 1197 (1990) ...... 18

B. Senate Bill 369 (1995) ...... 19

IV. Effect of ORS 656.262(6), (7) and ORS 656.267 ...... 23

V. Nature of Claimant’s Psychology Referral Claim ...... 29

CONCLUSION ...... 31

TABLE OF AUTHORITIES

Cases

Anderson v. Jensen Racing, Inc., 324 Or 570, 931 P2d 763 (1997) ...... 13

Booth v. Tektronix, Inc., 312 Or 463, 823 P2d 402 (1991) ...... 3

Brown v. SAIF Corp., 361 Or 241, 391 P3d 773(2017) ...... 2, 3, 9, 10, 11, 14, 17, 22, 25, 27

Counts v. International Paper Co., 146 Or App 768, 934 P2d 526 (1997) ...... 14, 15

Evangelical Lutheran Good Samaritan Society v. Bonham, 176 Or App 490, 32 P3d 899 (2001), rev den 334 Or 75, 45 P3d 449 (2002) ...... 24

Garcia-Solis v. Farmers Ins. Co., 288 Or App 1, 403 P3d 803 (2017) ...... 1, 3, 5, 29

Godfrey v. Fred Meyer Stores, 202 Or App 673, 124 P3d 621 (2005) ...... 13

Koskela v. Willamette Industries, Inc., 331 Or 362, 15 P3d 548 (2000) ...... 28, 29

Labor Ready v. Mogensen, 275 Or App 491, 365 P3d 623 (2015), rev den, 360 Or 235, 381 P3d 827 (2016) ...... 4, 26

PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993) ...... 12

Rose v. SAIF, 200 Or App 654, 116 P3d 913 (2005) ...... 26

iii

Roseburg Forest Products v. Langley, 156 Or App 454, 965 P2d 477 (1998) ...... 29

SAIF v. Carlos-Macias, 262 Or App 629, 325 P3d 827 (2014) (Carlos-Macias I) ...... 2, 11

SAIF v. Carlos-Macias, 290 Or App 801, 418 P3d 54 (2018) (Carlos-Macias II) ...... 3

SAIF v. Martinez, 219 Or App 182, 182 P3d 873 (2008) ...... 14, 16

SAIF v. Sprague, 346 Or 661, 217 P3d 644 (2009) ...... 3, 8, 9, 12, 13, 14, 16

State v. Gaines, 346 Or 160, 206 P3d 1042 (2009) ...... 21, 22

Statutes

Or Laws 1965, ch 285, § 23 ...... 16

Or Laws 1990, ch 2, § 3 (Spec Sess) ...... 18

Or Laws 1990, ch 2, § 10 (Spec Sess) ...... 18

Or Laws 1990, ch 2, § 15 (Spec Sess) ...... 19

Or Laws 1990, ch 2, § 43 (Spec Sess) ...... 18

Or Laws 1995, ch 332, § 25 ...... 19

Or Laws 1995, ch 332, § 28 ...... 21

Or Laws 2001, ch 865 § 10 ...... 21

ORS 174.010 ...... 17

ORS 656.005(6) ...... 22, 23

ORS 656.005(7)(a) ...... 2, 10, 11, 27, 30

ORS 656.005(7)(a)(A) ...... 15, 18

ORS 656.005(7)(a)(B) ...... 18

ORS 656.012(2) ...... 16

ORS 656.245 ...... 2, 3, 4, 8, 15, 16, 18, 20, 23, 29, 30

ORS 656.245(1) ...... 1, 2, 6, 9, 10

ORS 656.245(1)(a) ...... 3, 4, 8, 9, 11, 12, 13, 14, 16, 17, 18, 19, 21, 30

ORS 656.245(1)(b) ...... 8

ORS 656.245(1)(c) ...... 8

ORS 656.245(4) ...... 20, 30

ORS 656.245(4)(a) ...... 20, 21

ORS 656.260 ...... 18

ORS 656.260(1) ...... 18

ORS 656.262 ...... 16, 21

ORS 656.262(2) ...... 28

ORS 656.262(2)(a) ...... 28

ORS 656.262(6) ...... 1, 3, 19, 23

ORS 656.262(6)(a) ...... 18 , 19, 20, 23

ORS 656.262(6)(b) ...... 20, 27

ORS 656.262(6)(b)(A) ...... 23, 27

ORS 656.262(6)(b)(B) ...... 23

ORS 656.262(6)(b)(F) ...... 23, 25

ORS 656.262(6)(d) ...... 21 , 23, 25

ORS 656.262(7) ...... 23

ORS 656.262(7)(a) ...... 21, 23

ORS 656.262(7)(a) (1995) ...... 21

ORS 656.262(7)(c) ...... 28, 29

ORS 656.265 ...... 17

ORS 656.265(1)(a) ...... 17

ORS 656.267 ...... 21, 22, 23, 24, 30

ORS 656.267(1) ...... 4, 25, 26, 29

ORS chapter 656 ...... 17, 30

Other Authorities

Senate Bill 1197 (1990) ...... 18

Senate Bill 369 (1995) ...... 19

RESPONDENTS’ BRIEF ON THE MERITS ______

STATEMENT OF THE CASE

Nature of the Proceedings and Relief Sought

Petitioner on Review, Elvia Garcia-Solis (claimant), seeks reversal of the order of the Workers’ Compensation Board affirming employer’s denial of a medical service claim for a psychology referral. The Court of Appeals affirmed the board’s decision and rejected claimant’s argument that diagnostic medical services related to a work-related accident are compensable even if not related to an already-accepted medical condition. Garcia-Solis v. Farmers Ins. Co.,

288 Or App 1, 4-5, 403 P3d 803 (2017).

Respondents on Review, Farmers Insurance Company and Yeaun

Corporation, dba Green Papaya and Sunset Deli (employer), ask that the board’s order and the Court of Appeals’ decision be affirmed.

First Question Presented

Does the scope of insurer’s or self-insured employer’s notice of acceptance required by ORS 656.262(6) determine the worker’s entitlement to workers’ compensation benefits, including medical services under ORS

656.245(1)?

First Proposed Rule of Law

An injured worker is entitled to medical services that are necessitated by the compensable injury, that is, the medical conditions specified in the notice of acceptance.

Second Question Presented

Do the compensability standards in ORS 656.245(1) apply to diagnostic medical services?

Second Proposed Rule of Law

Diagnostic medical services must meet the standards for the compensability of medical services provided for in ORS 656.245(1), including a causal relationship to the accepted conditions.

Summary of Argument

The Court of Appeals applied this court’s decision in Brown v. SAIF, 361

Or 241, 391 P3d 773 (2017) and concluded that Brown implicitly overruled the

Court of Appeals’ original construction of ORS 656.245, see SAIF v. Carlos-

Macias, 262 Or App 629, 325 P3d 827 (2014) (Carlos-Macias I) (the terms

“compensable injury” and “accepted condition” are not interchangeable;

“compensable injury” means the work injury resulting from the work accident).

Consequently, the Court of Appeals concluded that “compensable injury,” as used in ORS 656.245, has the same meaning that it does in ORS 656.005(7)(a),

i.e., the accepted medical condition. Garcia-Solis, 288 Or App at 5; see also

SAIF v. Carlos-Macias, 290 Or App 801, 803, 418 P3d 54 (2018) (Carlos-

Macias II) (reaching the same conclusion as in Garcia-Solis).

The Court of Appeals correctly relied on this court’s decisions in Brown and SAIF v. Sprague, 346 Or 661, 217 P3d 644 (2009). In Sprague, as explained in Brown, this court plainly referred to a “compensable injury” in

ORS 656.245(1)(a) as the previously accepted medical condition that was caused by an on-the-job accident. Brown, 361 Or at 276; Sprague, 346 Or at

673-75.

Claimant attempts to revisit that issue. She asserts that “compensable injury” means a work accident and, to hold otherwise, would violate the objectives of the Workers’ Compensation Law that include complete medical treatment for injured workers. To the extent claimant invokes a policy argument, it is better directed to the legislature. See Brown, 361 Or at 280

(quoting Booth v. Tektronix, Inc., 312 Or 463, 473, 823 P2d 402 (1991)

(“Weighing of policy arguments [in the context of workers’ compensation law] is within the purview of the legislature, not the courts.”)).

The statutory context supports the conclusion that “compensable injury” in ORS 656.245 means conditions specified in the mandatory notice of acceptance under ORS 656.262(6). In 1990 and 1995, the legislature significantly changed key provisions in the Workers’ Compensation Law,

including substantive standards of compensability and procedures for claiming and processing workers’ compensation claims. As a result of these changes, the formal notice of acceptance defines the scope of the compensable claim.

Consequently, the reference to “compensable injury” in ORS 656.245 means accepted conditions, not the workplace accident and not unclaimed and unaccepted conditions.

Contrary to claimant’s argument, limiting the “compensable injury” in

ORS 656.245(1)(a) to the conditions listed in the formal notice of acceptance does nothing to prevent the worker from obtaining compensable medical treatment. Claimant may file, at any time, a new or omitted medical condition claim for the suspected PTSD condition. ORS 656.267(1). That statute requires a claim for a condition, not a diagnosis. Labor Ready v. Mogensen,

275 Or App 491, 365 P3d 623 (2015), rev den, 360 Or 235, 381 P3d 827

(2016). Employer will investigate the claim and, if any other psychological condition emerges, claimant is free to claim it as well.

Claimant did not seek the psychology referral for the purpose of determining the extent of her accepted physical conditions. Rather, as the Court of Appeals correctly reasoned, claimant was essentially seeking to establish the compensability of a new or consequential psychological condition, without following the mandatory procedure.

Summary of Facts

Employer accepts the Court of Appeals’ summary of undisputed facts,

Garcia-Solis, 288 Or App at 3, reproduced below.

“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 [post-traumatic stress disorder] 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.”

Employer offers the additional summary of relevant facts. Claimant’s accident occurred on February 25, 2009. (Ex 1). Her claim was enrolled in

Oregon Health Systems, Inc., a managed care organization, for medical treatment. (Ex 41). In March 2011, her attending physician referred her for a psychological evaluation that resulted in a diagnosis of adjustment disorder with mixed anxiety and depressed mood. (Ex 141). Upon the psychologist’s recommendation, claimant participated in a rehabilitation treatment program that included psychotherapy. (Exs 141; 146; 152 at 1).

In November 2011, claimant began reporting being fearful outdoors when it was windy. (Ex 160 at 1). In February 2012, her attending physician

intended to refer her to a psychologist “to address PTSD like symptoms.” (Ex

162). Claimant never filed any claim for a psychological condition.

After her request for “psychological evaluation” and “psychological consultation” was denied (Ex 164), claimant generated her attending physician’s opinion that the “need for medical services” to address PTSD-like symptoms was caused in material part by her “work injury.” (Ex 170 at 3).

The Administrative Law Judge and the board found that opinion unexplained, unpersuasive and insufficient to establish the compensability of the medical services claim. (Rec 8-11; 49-50).

On judicial review, claimant did not contest the board’s evaluation of the medical opinion. She argued that the board applied an incorrect legal standard to determine compensability of the psychological evaluation and consultation.

ARGUMENT

I. Introduction

At issue in this case is the meaning of “compensable injury” and “injury” in ORS 656.245(1). The statute provides, in relevant part:

(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 the recovery requires, subject to the limitations in ORS 656.225, including such medical services as may be required after a determination of permanent disability. In addition, for consequential and combined conditions described in ORS 656.005 (7), the insurer or the self-insured

employer shall cause to be provided only those medical services directed to medical conditions caused in major part by the injury.

(b) Compensable medical services shall include medical, surgical, hospital, nursing, ambulances and other related services, and drugs, medicine, crutches and prosthetic appliances, braces and supports and where necessary, physical restorative services. A pharmacist or dispensing physician shall dispense generic drugs to the worker in accordance with ORS 689.515. The duty to provide such medical services continues for the life of the worker.

(c) Notwithstanding any other provision of this chapter, medical services after the worker’s condition is medically stationary are not compensable except for the following:

(A) Services provided to a worker who has been determined to be permanently and totally disabled.

(B) Prescription medications.

(D) Prosthetic devices, braces and supports.

(E) Services necessary to monitor the status, replacement or repair of prosthetic devices, braces and supports.

(F) Services provided pursuant to an accepted claim for aggravation under ORS 656.273.

(G) Services provided pursuant to an order issued under ORS 656.278.

(H) Services that are necessary to diagnose the worker’s condition.

(I) Life-preserving modalities similar to insulin therapy, dialysis and transfusions.

(J) With the approval of the insurer or self-insured employer, palliative care that the worker’s attending physician referred to in ORS 656.005 (12)(b)(A) prescribes and that is necessary to enable the worker to continue current employment or a vocational training program. * * *

(K) With the approval of the director, curative care arising from a generally recognized, nonexperimental advance in medical science since the worker’s claim was closed that is highly likely to improve the worker’s condition and that is otherwise justified by the circumstances of the claim. * * *

(L) Curative care provided to a worker to stabilize a temporary and acute waxing and waning of symptoms of the worker’s condition.

Paragraph (1)(a) governs compensability (causal) standards for medical services. Paragraph (1)(b) lists types of covered medical services, such as medical, surgical, hospital services, drugs, medicine, crutches and prosthetic appliance. Paragraph (1)(c) limits compensable medical services to which the worker may be entitled after the worker’s condition is medically stationary.

That is the only provision that specifically lists diagnostic services. Although paragraph (1)(a) does not mention diagnostic services, employer agrees that this paragraph determines their “compensability.”

II. This Court’s Prior Interpretation of ORS 656.245

A. “For every compensable injury”

Sprague interpreted this very phrase. To determine whether the carrier was required to pay for the worker’s gastric bypass surgery to treat his noncompensable obesity as a precondition for a knee replacement, the court

reviewed relevant facts and, using the terminology of the statute, examined the nature of various “conditions” for which the worker received treatment. 346 Or at 672.

The worker initially sustained a meniscus tear caused by a workplace accident in 1976. He underwent surgery that later caused arthritis in his knee.

He presented a claim for that condition and the carrier accepted it as a consequential condition. Id. at 666-67. The court determined that the

“compensable injury” under ORS 656.245(1) was the original meniscus tear – the accepted injury caused by the worker’s workplace accident. Id. at 672.

This court examined Sprague in Brown and concluded:

“Once again, the [Sprague] court plainly referred to a ‘compensable injury’ as the previously accepted medical condition that was caused by an on-the-job accident.” 361 Or at 276.

Therefore, this court has determined, on at least two occasions, that the phrase “for every compensable injury” in ORS 656.245(1)(a) means “for every accepted condition.” Claimant’s repeat argument that

“compensable injury” in ORS 656.245(1)(a) means a work accident (Pet

Merits Br 9-10, 17-18, 20, 24, 32, 36-37), directly contradicts this court’s understanding of the statute in Sprague and Brown.

Claimant further argues that the phrase “[f]or every compensable injury” in ORS 656.245(1) has the meaning contained in ORS 656.005(7)(a).1 (Pet

Merits Br 16; 20-22). Brown, however, specifically addressed the meaning of

“compensable injury” in ORS 656.005(7)(a) and concluded that it does not refer to an incident but rather to a medical condition that is the result of an accidental incident. 361 Or at 255. Therefore, ORS 656.005(7)(a) does not support claimant’s concept of “compensable injury” as the workplace accident.

According to claimant, Brown “withheld opinion on compensability of diagnostic medical services.” (Pet Merits Br 11). She is correct that the Brown court expressed no opinion either on the issue of

1 ORS 656.005(7)(a) provides:

A “compensable injury” is an accidental injury, or accidental injury to prosthetic appliances, arising out of and in the course of employment requiring medical services or resulting in disability or death; an injury is accidental if the result is an accident, whether or not due to accidental means, if it is established by medical evidence supported by objective findings, subject to the following limitations:

(A) No injury or disease is compensable as a consequence of a compensable injury unless the compensable injury is the major contributing cause of the consequential condition.

(B) If an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment, the combined condition is compensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause of the disability of the combined condition or the major contributing cause of the need for treatment of the combined condition.

the compensability of medical services then-pending before this court in

Carlos-Macias I, 262 Or App 629, or on a policy argument concerning the compensability of diagnostic medical services. 361 Or at 282.2

However, as described above, the court unequivocally confirmed its prior understanding of the term “compensable injury” in ORS 656.245(1)(a) as the previously accepted medical condition. Furthermore, the court specifically rejected the claimant’s argument that “compensable injury” in ORS 656.005(7)(a) means an accident. 361 Or at 255-63.

Claimant acknowledges that diagnostic services are part of

“medical services” described in ORS 656.245(1)(a). (Pet Merits Br 15).

Because that provision, which contains the “compensability” (causal) provisions, refers to the broad term of “medical services,” without differentiating the type of services, the compensability standards apply to all medical services, including diagnostic services. Consequently, this court’s prior interpretation of the phrase “compensable injury” in ORS

656.245(1)(a) applies equally to diagnostic medical services.

2 The claimant argued that the court’s reading of the statutes cannot be correct because it would preclude an injured worker from obtaining compensation for diagnostic medical services to investigate the complete result of a work accident, and such result would be poor public policy. 361 Or at 281-82.

B. “Medical services for conditions caused in material part by

the injury”

“Conditions” in this phrase of ORS 656.245(1)(a) mean conditions for which medical services are requested. The first sentence of ORS

656.245(1)(a) concerns “ordinary” conditions that are caused in material part by compensable injuries, while the second sentence concerns preexisting, consequential and combined conditions caused in major part by those injuries. Sprague, 346 Or at 664.

In claimant’s view, the medical evidence indicated that the workplace accident resulted in the need for diagnostic medical services for a psychology referral and, because the accident was a material contributing cause of the need for those diagnostic medical services, she proved the compensability of those medical services. (Pet Merits Br 10).

That argument is incorrect for two reasons.

First, consistent with the introductory phrase (“for every compensable injury”), the word “injury” used throughout ORS

656.245(1)(a) means the accepted condition. See PGE v. Bureau of

Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993) (ordinarily, the use of the same term throughout a statute indicates that the term has the same meaning throughout that statute). Moreover, the legislature’s use of the definite article “the” in the phrase “medical services for

conditions caused in material part by the injury” indicates that “the injury” refers to “every compensable injury” in the immediately preceding phrase. See, e.g., Godfrey v. Fred Meyer Stores, 202 Or App

673, 678, 124 P3d 621 (2005) (citing Anderson v. Jensen Racing, Inc.,

324 Or 570, 578-79, 931 P2d 763 (1997) (the definite article "the" functions as an adjective that denotes a particular, specified thing)).

Second, the statute plainly requires that the compensable injury be a material contributing cause of the relevant condition itself, not the need for medical services. See Sprague, 346 Or at 674 (interpreting in that manner the second sentence of ORS 656.245(1)(a) referring to the major contributing cause standard).3 Therefore, even if claimant were correct that the injury meant the work accident, she would still need to establish that the work accident caused, in material part, the suspected PTSD condition itself, not merely the need for a psychology referral.4

While this construction may mean that medical services are required to be provided for already-identified conditions only, this court

3 That sentence states: “In addition, for consequential and combined conditions described in ORS 656.005 (7), the insurer or the self-insured employer shall cause to be provided only those medical services directed to medical conditions caused in major part by the injury.”

4 The physician’s opinion on which claimant relied addressed the “need for medical services.” (Ex 170 at 3).

has found that it is what the statute plainly compels. Only the legislature may accommodate other circumstances. Brown, 361 Or at 282.

Nevertheless, the statute construed in this manner is not as restrictive as claimant complains. As this court explained in Sprague,

ORS 656.245(1)(a) does not limit the compensability of medical services simply because those services also provide incidental benefits to treat other medical conditions. 346 Or at 675. Therefore, the “conditions” for which medical services are sought need not be accepted conditions, but to be compensable, those medical services must be related, at least in material part, to the “compensable injury,” i.e., the accepted condition.

See also SAIF v. Martinez, 219 Or App 182, 191, 182 P3d 873 (2008) (so concluding); Counts v. International Paper Co., 146 Or App 768, 771,

934 P2d 526 (1997) (for diagnostic services to be compensable, the claimant must show that the compensable injury made those tests necessary).

OTLA criticizes Counts for conflating several possible purposes of diagnostic testing. (OTLA Merits Br 11). It is correct that the court referred to the already accepted condition and a noncompensable condition that may be discovered as a result of diagnostic services and stated that diagnostic tests could be compensable whether or not the condition that is discovered as a result is compensable. Id.

Nonetheless, the court reiterated the correct legal standard, “which only requires employers to pay for ‘medical services for conditions caused in material part by the injury,’” and affirmed the board’s order denying the compensability of diagnostic services related to a noncompensable condition. Id. Thus, Counts is consistent with the notion that, as long as the diagnostic or other medical services are "for" an accepted condition, they are compensable if they seek to explore the extent of such a condition or determine the best course of treatment for an accepted condition. Diagnostic services to determine the existence of another condition, however, are not permitted under ORS 656.245.

OTLA further argues that the term “injury” in this phrase must refer to a workplace accident, not an accepted condition, because otherwise the phrase would apply to consequential conditions under ORS

656.005(7)(a)(A), for which the major contributing cause standard applies. (OTLA Amicus Br 6-7). The legislature, however, has specifically addressed the true consequential conditions in the second sentence of the statute and it is improbable that it would have referred to the same conditions in the first sentence. Moreover, the courts have determined that the word “injury” in both the first and second sentence of the statute refers to the “compensable injury,” which in turn is the

accepted condition. Sprague, 346 Or at 666 (restating the second sentence as providing that, “in the case of consequential and combined conditions, the insurer is responsible for only those medical services that are ‘directed to medical conditions caused in major part by the

[compensable] injury’”; Martinez, 219 Or App at 191 (adhering to the meaning of “injury” in ORS 656.245(1)(a) as the accepted condition).

C. “For such period as the nature of the injury or the process of

the recovery requires”

Claimant argues that this phrase echoes the policy statement in

ORS 656.012(2) to allow complete medical treatment for injured workers. (Pet Merits Br 11-12). She asserts that “nature of the injury” describes the breadth of the treatment while “process of the recovery” describes the length. (Pet Merits Br 33). Yet, as discussed above, the key word in the phrase, “the injury,” means the accepted condition, not a workplace accident.

III. Statutory Context

ORS 656.245 was adopted in 1965. Or Laws 1965, ch 285, § 23.

Claimant argues that because there was no such thing as accepted conditions in 1965, it is doubtful that the legislature intended

“compensable injury” to be limited to accepted conditions. She further argues that when the legislature amended ORS 656.262 to require written

notices of acceptance listing compensable conditions, it provided no statutory link to limit compensable injury to the accepted conditions.

(Pet Merits Br 16-17).

Since its inception, however, ORS 656.245(1)(a) has referred to a

“compensable injury.” Nothing in the statute itself suggests that by using the term “compensable injury,” the legislature meant the event of a work-related accident. In other parts of ORS chapter 656, the legislature used the term

“accident” and distinguished it from an injury. See ORS 656.265(1)(a) requiring the worker who has suffered a compensable injury to file a notice “of an accident resulting in an injury or death.” Because the legislature could have referred to “compensable injury accident” in ORS 656.245(1)(a), but did not, claimant’s interpretation of the statute is unconvincing. See ORS 174.010 (in the construction of a statute, the court is not to insert what has been omitted); see also Brown, 361 Or at 258 (noting that ORS 656.265 suggests that compensable injury and the accident that may have caused it are separated things).

An injury becomes compensable when the worker files a claim for it, the insurer or self-insured employer accepts the claim and pays benefits in accordance with the Workers’ Compensation Law. The legislature evidently authorized payment for medical services for claims that have been accepted and processed as such by the insurer or self-insured employer, not for potentially

compensable claims. See ORS 656.262(6)(a) (before acceptance or denial of a claim, compensation payable to a claimant does not include the costs of medical benefits or funeral expenses).

Furthermore, while no formal notices of acceptance were required in

1965 and, as OTLA puts it, the “‘claim’ was acted on as a whole” (OTLA

Amicus Merits Br 10), that landscape changed significantly in 1990 and 1995.

As a result of these legislative actions, both the text and context of ORS

656.245 changed. These changes must be considered in determining the meaning of “compensable injury” in ORS 656.245(1)(a).

A. Senate Bill 1197 (1990)

In 1990, through SB 1197, the legislature adopted limitations on the compensability of consequential conditions and preexisting conditions. Or

Laws 1990 (Special Session), ch 2, §§ 3, 43; codified as ORS 656.005(7)(a)(A),

(B). This bill also approved MCOs to provide medical services to injured workers. Id. ch 2, § 10, codified as ORS 656.260.5 Furthermore, the legislature adopted a requirement that an insurer or self-inured employer issue notice of

5 ORS 656.260(1) provides, in part:

Any health care provider or group of medical service providers may make written application to the Director of the Department of Consumer and Business Services to become certified to provide managed care to injured workers for injuries and diseases compensable under this chapter.

acceptance and specify what conditions are compensable. Id., § 15, codified in

ORS 656.262(6)(a).6

B. Senate Bill 369 (1995)

Further legislative changes occurred in 1995. SB 369 amended

ORS 656.245(1)(a) to reflect the 1990 changes to the workers’ compensation law, including limitations on the compensability of preexisting, combined and consequential conditions. Or Laws 1995, ch

332, §25.

The statute, as amended, provided:

For every compensable injury, the insurer or self-insured employer shall cause to be provided medical services for conditions [resulting from] caused in material part by the injury for such period as the nature of the injury or the process of recovery requires, subject to the limitations in section 3 of this 1995 Act, including such medical services as may be required after a determination of permanent disability. In addition, for consequential and combined conditions described in ORS 656.005 (7), the insurer or self-insured employer shall cause to be provided only those medical services directed to medical conditions caused in major part by the injury. (Deletions in brackets and italicized, additions underlined.)

6 ORS 656.262(6) currently provides, in part:

(a) Written notice of acceptance or denial of the claim shall be furnished to the claimant by the insurer or self-insured employer within 60 days after the employer has notice or knowledge of the claim. * * * The insurer shall also furnish the employer a copy of the notice of acceptance.

(b) The notice of acceptance shall:

(A) Specify what conditions are compensable.

In the same bill, the legislature modified ORS 656.245(4) to reflect the 1990

MCO provisions. ORS 656.245(4) now provides:

(4) Notwithstanding subsection (2)(a) of this section [allowing the worker to choose an attending physician], when a self-insured employer or the insurer of an employer contracts with a managed care organization certified pursuant to ORS 656.260 for medical services required by this chapter to be provided to injured workers:

(a) Those workers who are subject to the contract shall receive medical services in the manner prescribed in the contract. Workers subject to the contract include those who are receiving medical treatment for an accepted compensable injury or occupational disease, regardless of the date of injury or medically stationary status, on or after the effective date of the contract. (Emphasis added.)

OTLA argues that if the legislature intended “compensable injury” in

ORS 656.245 to mean “accepted condition,” ORS 656.245(4) would have to be interpreted to mean that MCO contracts would apply to workers receiving treatment for an “accepted accepted condition.” (OTLA Amicus Br 13). Under that construction, one of the terms is superfluous. Conceivably, the word

“compensable” in that phrase is superfluous; that cannot be said about the word

“accepted,” which can mean only conditions specified in the notice of acceptance as required by ORS 656.262(6)(a) and (b).

The reference to “accepted” compensable injuries and occupational diseases in ORS 656.245(4)(a) is significant in a different connotation. The legislature hardly intended to limit the provision of medical services for

accepted conditions only to the class of MCO-enrolled workers, while authorizing the provision of medical services for unaccepted conditions to non-

MCO workers. The more plausible is a conclusion that in both paragraphs

(1)(a) and (4)(a), the legislature intended to authorize medical services for conditions causally related to accepted conditions.

In 1995, the legislature further adopted amendments to ORS 656.262 concerning the worker’s objections to a notice of acceptance, ORS

656.262(6)(d), as well as provisions relating to new medical condition claims,

ORS 656.262(7)(a). Or Laws 1995, ch 332, § 28. In 2001, most of the language in ORS 656.262(7)(a) relating to new medical condition claims was transferred to a new section, ORS 656.267. Or Laws 2001, ch 865, § 10. The effect of these amendments is discussed in the following section.

The 1990 and 1995 amendments affected both the substantive standards for compensability and the procedures for processing claims. As particularly relevant here, the procedural law changed from the acceptance and processing of a single, all-inclusive “claim” for an accidental injury or occupational disease to the acceptance and processing of specific medical conditions. These amendments provide the relevant statutory context for interpreting ORS

656.245(1)(a). In addition, because ORS 656.267, which was adopted in 2001, contains the same language as ORS 656.262(7)(a) (1995), that statute is part of the relevant statutory context. See State v. Gaines, 346 Or 160, 177 n.16, 206

P3d 1042 (2009) (ordinarily, only statutes enacted simultaneously with or before a statute at issue are pertinent context for interpreting that statute; later enacted statutes aid in interpreting an earlier one for the purpose of demonstrating the legislature’s adherence to certain conventions in legislative drafting or word usage).

As part of its “context” argument, OTLA further argues that, given the definition of a claim in ORS 656.005(6) as a written request for compensation from a subject worker or someone on the worker’s behalf, or any compensable injury of which the employer has notice or knowledge, “compensable injury” cannot mean “accepted condition” because there is no logical or chronological sense in which an already-accepted condition is a claim. (OTLA Merit Br 13-

14). As this court cautioned in Brown, however, the legislature has a tendency in workers’ compensation statutes to use terms in not altogether consistent fashion. 361 Or at 253.

Moreover, ORS 656.005(6) does not apply to all claims. After initial acceptance, any new or omitted medical condition claim must comply with

ORS 656.267 that requires a specific claim for a condition filed by the worker; the receipt of medical billings or requests for authorization to provide medical services does not rise to a valid new or omitted medical condition claim.

In addition, any claim merely notifies the employer that the worker believes a compensable injury has occurred and the worker is entitled to

workers’ compensation benefits. Any claim triggers the employer’s duty to investigate and make the initial compensability determination. Therefore, the reference to “compensable injury” in ORS 656.005(6) does not mean “accepted condition,” but that conclusion does not affect the interpretation of

“compensable injury” in ORS 656.245. In other words, thee definition of a claim in ORS 656.005(6) does not provide the relevant context for interpreting the term “compensable injury” in ORS 656.245.

IV. Effect of ORS 656.262(6), (7) and ORS 656.267

ORS 656.262(6)(a) requires the insurer or self-insured employer to furnish “written notice of acceptance or denial of the claim” to the claimant within 60 days after the employer has notice or knowledge of the claim.

Paragraphs (6)(b)(A) and (B) require that the notice of acceptance specify what conditions are compensable and advise the claimant whether the claim is considered disabling or nondisabling. Paragraph (6)(b)(F) requires the insurer or self-insured employer to modify the notice of acceptance “from time to time as medical or other information changes a previously issued notice of acceptance.”

ORS 656.262(6)(d) and (7)(a) impose a duty upon the worker to communicate in writing any objections to the notice of acceptance before requesting a hearing asserting a de facto denial of a claim. Paragraph (6)(d) allows the worker to initiate objection to the notice of acceptance at any time.

ORS 656.2677 provides for procedures the worker must use to claim new medical conditions or conditions that the worker believes to be omitted from the notice of acceptance. Again, the worker may file new or omitted medical condition claims at any time, and thus without time limit. See Evangelical

Lutheran Good Samaritan Society v. Bonham, 176 Or App 490, 32 P3d 899

(2001), rev den 334 Or 75, 45 P3d 449 (2002) (broadly construing the statutory expression “at any time” in this context).

7 ORS 656.267 provides in relevant part:

(1) To initiate omitted medical condition claims under ORS 656.262 (6)(d) or new medical condition claims under this section, the worker must clearly request formal written acceptance of a new medical condition or an omitted medical condition from the insurer or self-insured employer. A claim for a new medical condition or an omitted condition is not made by the receipt of medical billings, nor by requests for authorization to provide medical services for the new or omitted condition, nor by actually providing such medical services. The insurer or self-insured employer is not required to accept each and every diagnosis or medical condition with particularity, as long as the acceptance tendered reasonably apprises the claimant and the medical providers of the nature of the compensable conditions. Notwithstanding any other provision of this chapter, the worker may initiate a new medical or omitted condition claim at any time.

(2)(a) Claims properly initiated for new medical conditions and omitted medical conditions related to an initially accepted claim shall be processed pursuant to ORS 656.262.

(b) If an insurer or self-insured employer denies a claim for a new medical or omitted medical condition, the claimant may request a hearing on the denial pursuant to ORS 656.283.

Through these statutes, the legislature provided for an orderly process that protects the rights of both the workers and employers. The worker’s right to object to the scope of the claim acceptance is nearly unlimited, but the worker also has a responsibility to initiate the objections and allow the employer to investigate new claims and allegations.

Claimant renews arguments that the worker is not required to request acceptance of additional conditions. The Brown court resolved that issue against her. It held that such argument “is squarely contradicted by the wording of the statutes themselves, which are not merely about notice. They establish a process for ‘[s]pecify[ing] what conditions are compensable[.]’” 361 Or at 273.

Claimant also suggests that ORS 656.262(6)(b)(F) supersedes her responsibility to request acceptance of additional conditions. Although that paragraph requires employer to modify from time to time as medical or other information changes a previously issued notice of acceptance, it does not provide an independent venue for the resolution of claim processing issues and does not surpass, but merely complements, the statutory process mandated by

ORS 656.262(6)(d) and ORS 656.267(1). Whether medical or other information changes the scope of accepted claim may be subject to a dispute between the claim adjuster and the injured worker. To the extent any new information creates such a dispute, it is incumbent upon the worker to file a new claim that triggers the established procedures for processing that claim.

In support of her argument undermining the function of formal notices of acceptance, claimant cites part of ORS 656.267(1) that states the employer “is not required to accept each and every diagnosis or medical condition with particularity, as long as the acceptance tendered reasonably apprises the claimant and the medical providers of the nature of the compensable conditions.” (Pet Merits Br 22-23). The Court of Appeals rejected a similar argument in Rose v. SAIF, 200 Or App 654, 116 P3d 913 (2005), concluding that nothing in the statute suggests that the legislature intended that provision to operate as an exception to the otherwise unqualified command that an employer provides written notice of acceptance or denial. In addition, the court construed the phrase as specifically related to the acceptance of a new or omitted medical condition claim, not any acceptance that the employer may have issued in the past. Id. at 663.

Rose is consistent with other Court of Appeals’ cases finding the phrase

(employer “is not required to accept each and every diagnosis or medical condition with particularity”) relevant to factual determinations regarding the scope of acceptance and whether a condition is encompassed within a new or omitted condition claim. See, e.g., Labor Ready, 275 Or App at 497-98.

Consequently, ORS 656.267(1) does not imply that “benefits do not flow from the notice of acceptance, because of the lack of specificity required.” (Pet

Merits Br 23). To the contrary, ORS 656.262(6)(b) explicitly requires that the notice of acceptance “specify what conditions are compensable.”

Moreover, the requirement of a written notice of acceptance specifying

“what conditions are compensable,” ORS 656.262(6)(b)(A), necessarily means that conditions not listed in the notice of acceptance are not compensable, that is, the worker does not have a right to workers’ compensation benefits for conditions not listed in the notice of acceptance. At the same time, as described above, the legislature guarantees the worker’s virtually unlimited right to seek acceptance of any other conditions if the employer does not modify the previously issued notice of acceptance on its own.

Under claimant’s concept, a “compensable injury” would be any injury that in the worker’s view arises out of and in the course of employment and requires medical services or results in disability or death, see ORS

656.005(7)(a), unless expressly denied. Such concept, of course, renders wholly unnecessary the legislatively dictated process of making and accepting workers’ compensation claims and objecting to the employer’s claim processing actions and must be rejected. See Brown, 361 Or at 280-81 (rejecting claimant’s argument that “otherwise compensable injury” refers not to an accepted condition but more broadly to a “work accident” and “all the effect that flow from it” because the claimant’s interpretation would give no effect to the new or omitted medical condition claim provisions).

Claimant’s reliance on Koskela v. Willamette Industries, Inc., 331 Or

362, 15 P3d 548 (2000) as establishing acceptance of an unspecified claim as the only hurdle to obtaining workers’ compensation benefits is misplaced. (Pet

Merits Br 21-22). In that case, this court addressed the validity of the then- existing process for determining whether the worker should receive an award of permanent total disability benefits. That process prohibited the introduction of new evidence at hearing and limited the issues that could be considered to those that have been raised during the prior stage of the proceedings. This court held that the process was invalid under the Due Process Clause of the Fourteenth

Amendment to the United States Constitution. 331 Or at 382.

Addressing the argument at what point Oregon workers obtain a property interest in permanent disability benefits, the court referred to ORS 656.262(2)

(“The compensation due under this chapter shall be paid * * * to the person entitled thereto * * * except where the right to compensation is denied.”). The court further stated:

The claim closure process begins after a claim has been accepted and a claimant has been declared medically stationary. ORS 656.268(1)(a). The purpose of claim closure is to "determine the extent of the worker's permanent disability," ORS 656.268(1) * * *, not, as employer would have it, the worker's entitlement to compensation. 331 Or at 371 (emphasis omitted).

The court referred to an accepted “claim,” but did not determine whether the written notice of acceptance required by ORS 656.262(2)(a) and ORS

656.262(7)(c), define the scope of such a claim. That issue was not before the court. Furthermore, the court did not address, even remotely, ORS 656.245. As such, Koskela does not assist claimant.

V. Nature of Claimant’s Psychology Referral Claim

Claimant did not seek the denied psychological consultation for the purpose of determining the extent of her accepted physical conditions. As the

Court of Appeals reasoned, she was essentially seeking to establish the compensability of a new or consequential psychological condition and, as held in Roseburg Forest Products v. Langley, 156 Or App 454, 463, 965 P2d 477

(1998), diagnostic services for that purpose were not compensable. Garcia-

Solis, 288 Or App at 5. See also ORS 656.267(1) (a claim for a new or omitted medical condition is not made by the receipt of medical billings or requests for authorization to provide medical services for the new or omitted condition nor by actually providing medical services).

Employer formally accepted claimant’s claim for a number of physical conditions she sustained in the 2009 accident and enrolled claimant’s claim into its MCO. (Exs 28; 41; 42; 134). Employer paid for her rehabilitation treatment program that included a psychological evaluation and psychotherapy. Although she obtained a diagnosis of adjustment disorder with mixed anxiety and depressed mood (Exs 141, 146, 152), she never filed a claim for any psychological condition.

When claimant sought another psychological referral for “PTSD like symptoms” two years after her accident, employer, through the MCO, denied her request. (Ex 164). Instead of initiating a new or omitted medical condition claim for PTSD pursuant to ORS 656.267, she elected to proceed into this complex litigation framed as a medical services claim under ORS 656.245.

Because claimant was enrolled in the MCO, the manner of her treatment was dictated by the MCO contract. ORS 656.245(4). The reference in that statute to “medical treatment for an accepted compensable injury or occupational disease” suggests that her request for medical services unrelated to an accepted condition was outside the compensable medical services.

In any event, claimant’s request for psychological evaluation related to her newly suspected psychological condition obviously presents issues of compensability beyond the realm of the medical services statute. The first question is whether that psychological condition arose directly from the workplace accident or from the initial injury rather than from the accident itself.

For conditions arising as a direct consequence of the workplace accident, the material contributing cause standard applies. For conditions arising as a secondary consequence of the accepted condition, the major contributing cause standard applies. ORS 656.005(7)(a).

ORS 656.245(1)(a) distinguishes between these two types of compensable conditions, but other statutes in ORS chapter 656 govern the

process for determining their compensability. Thus, the legislature obviously contemplated that the compensability of these conditions would be determined through the legislatively-created process of filing and processing a claim for conditions arising out of and in the course of employment. Consequently, the

Court of Appeals correctly concluded that claimant cannot seek the determination of compensability of her psychological condition through the medical services claim.

CONCLUSION

For all of the foregoing reasons, the Supreme Court should affirm the board’s order and the Court of Appeals’ decision.

LYONS LEDERER, LLP

s/ Vera Langer VERA LANGER, OSB 880682 Of Attorneys for Famers Insurance Company and Yeaun Corporation, dba Green Papaya and Sunset Deli, Respondents, Respondents on Review

CERTIFICATE OF COMPLIANCE WITH ORAP 5.05(2)(d)

Brief Length

I certify that (1) this brief complies with the word-count limitation in ORAP 5.05(1) (b) and ORAP 9.10(3), and (2) the word-count of this brief is approximately 7,402 words and does not exceed the maximum allowed.

Type Size

I certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(3)(b).

CERTIFICATE OF FILING AND SERVICE

I hereby certify that on October 18, 2018, using the eFiling system, I filed electronically the foregoing RESPONDENTS’ BRIEF ON THE MERITS pursuant to ORAP 16.25 with:

Appellate Court Administrator Appellate Court Records Section 1163 State Street Salem, OR 97301-2563

I further certify that on the above date, I served a true copy of the RESPONDENT’S BRIEF ON THE MERITS electronically pursuant to ORAP 16.45 to:

Julene M. Quinn Marcia L. Alvey Of Attorneys for Claimant Of Attorneys for Claimant

James S. Coon Of Attorneys for Amicus Curiae

LYONS LEDERER, LLP

s/ Vera Langer VERA LANGER, OSB 880682 Of Attorneys for Famers Insurance Co. and Yeaun Corporation, dba Green Papaya and Sunset Deli