Injured Workers: Is Medical Care A Noble Promise Or An Empty One?

The Oregon Legislature has stated that the foremost objective of our workers’ compensation law is "to provide, regardless of fault, sure, prompt and complete medical treatment for injured workers ... ." ORS 656.012(2)(a).

A noble sentiment, but is it an empty legal promise? I hope not, but more and more it seems that medical treatment is the number one legal headache for injured workers.

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Too often, and for far too many injured workers, today’s medical system is "uncertain, slow and inadequate." Rather than a speedy recovery, the sluggish bureaucracy of today’s occupational medical industry hinders the return to work. The state’s largest provider of workers comp insurance is the State of Oregon, through the publicly owned SAIF Corporation. SAIF utilizes a "managed care organization," Majoris, to ride herd on a worker’s physicians ... delaying care for months if the physician insists on a course of care that Majoris deems excessive.

Majoris routinely contacts physicians to question their treatment recommendations, frequently suggesting treatment requests be withdrawn or
replaced with less effective care. Why? (Hint: not to provide "sure, prompt and complete medical treatment for injured workers.")

If "justice delayed" is "justice denied," then what does "medical care delayed" mean?

It certainly is not prompt recovery. In human terms, workers who are forced into the comp system through no fault of their own are faced with limited choices of physicians and options for treatment. It is not complete care and means, too often, incomplete recovery.

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A recent decision of the Oregon Court of Appeals illustrates the disconnect of the lofty objective of "sure, prompt and complete medical treatment for injured workers" to the reality of legal roadblocks to medical care faced by injured Oregon workers.

In Garcia-Solis v. Farmers Ins. Co., 288 Or App 1 (September 27, 2017), the question was whether an injured worker was entitled to diagnostic medical services in her accepted claim for work-caused concussion, a closed head injury, chronic headache syndrome, facial scarring and nerve injury to her eye. The woman was struck in the face by a tent pole during a wind storm.

The worker became very fearful when she was outdoors during windy conditions. Her attending physician wanted her to be evaluated
psychologically for "PTSD like symptoms" that developed after the windstorm injury. The employer’s insurance company declined to authorize the
evaluation because it was not directed to one of the "accepted" medical conditions, and the Workers’ Compensation Board upheld the denial of
medical services.

On review, the Court of Appeal agreed the psychological evaluation was not covered because "compensable injury" only means the conditions the
employer agreed to accept. It is the worker’s responsibility to evaluate any other health problem they may suffer.

Assuming the worker could afford to first pay for diagnostic tests out of pocket or through private or public insurance, only then could they demand their employer cover the costs. If the worker has lost their insurance (or couldn’t afford the premiums while they were disabled), then tough luck. The best the Court could promise was, "If claimant’s psychological condition is ultimately determined to be compensable, then the diagnostic services will be compensable as well."

In a dissenting opinion, appellate Judge James Egan sharply criticized the court’s majority opinion as at odds with Oregon laws and court decisions that held "diagnostic services related to the discovery of the cause of complaints of pain (or by analogy, the discovery of a psychological reaction) can be reasonable and necessary expenses ... even if the results of the tests reveal that the condition was unrelated to the worker’s compensable condition."

Judge Egan went on to explain, "To conclude otherwise, as the majority does, leaves the injured worker completely without a remedy at the discretion of the carrier rather than as required for the treatment of work-related conditions. An insurance carrier’s decision to accept particular conditions, would then preclude any subsequent diagnostic procedure outside the confines of reasonable treatment for the accepted conditions. * * * ."

"To state the matter in the simplest terms, workers must have access to diagnostic procedures arising out of injuries rather than accepted conditions because all undiagnosed conditions arise out of injuries but not all undiagnosed conditions are related to accepted conditions."

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I spoke with the attorney who represented the worker in the Garcia-Solis appeal. I encouraged her to petition the state Supreme Court to review the decision given its broad scope and restrictive interpretation.

If the high court accepts review, then I respectfully suggest it keep in mind the first objective of Oregon workers compensation law is to provide "sure, prompt and complete medical treatment for injured workers" – it’s not just an empty promise.

~ Jim Edmunson