48 Trial Lawyer • Winter 2023 Comp Corner addresses reasonable/necessary treatment disputes — for the same, single medical service. ORS 656.704(3). At the Board, the worker must prove “causation,” i.e., that the medical service is compensable related to work accident, either under the material contributing cause standard or under the major contributing cause standard, depending on the type of medical condition. ORS 656.245(1)(a). Garcia-Solis, supra; SAIF v. Sprague, 346 Or 661 (2009). At the Board, while attorney fees are allowed, ORS 656.286(1); SAIF v. Bales, 274 Or App 700 (2015), the Board has been awarding the attorney fees as contingent upon prevailing on the entire medical services dispute, both before the Board and before the director. E.g. James K. Burnham, 71 Van Natta 904 (2019). This is not appropriate, because ORS 656.386(1) is not dependent upon prevailing on compensation and is only dependent upon prevailing over the denial of causation. The maze At DCBS, the legal standard depends on whether the claim is enrolled in a managed care organization or upon the defense the insurer later raises. ORS 656.245; ORS 656.248; ORS 656.327; ORS 656.260 (16), (17). Review of the WCD/MRT decision is limited to legal error and substantial justice, after an employee of WCD makes the initial decision. Id. The worker is not entitled to a judicial hearing to determine the evidence or take live testimony. Id. Attorney fees for the entire process are limited to $4000, adjusted annually, unless extraordinary circumstances apply. The director’s matrix does not allow for extraordinary fees. OAR 436-001-0410. The rule does not provide a legal standard By Julene Quinn OTLA Guardian Can we talk about the elephant in the room? This one has a long snout, deceivingly cute pink ears, but a tail that, if you don’t watch, will whip you sideways and knock you down. It is called Ridiculitis, and it p r e ven t s i n j u r ed workers from obtaining medical services for injuries. Currently, if an injured worker requires a medical service, the worker must navigate an impossible path. First, the injured worker must find a doctor willing to treat injured workers. ORS 656.005(12) provides limitations on who can treat. Chiropractors, physician assistants, naturopaths and nurse practitioners are limited in time. Id.; ORS 656.245(2)(c). Next, a worker must obtain treatment for the condition. While the Oregon Supreme Court, in GarciaSolis v. Farmers Ins. Co., 365 Or 26 (2019), guaranteed that medical services are not limited to the accepted condition but are provided for the accident resulting in the compensable injury, doctors are afraid to treat any condition not accepted, because they risk their bills being delayed. When an insurer denies a medical service or will not pre-approve a surgery, the worker must follow two separate paths before the service is approved or paid. The Workers’ Compensation Board addresses disputes of causation, while the director of DCBS Ridiculitis Issues & Topics for theWorkers’ Compensation Attorney Julene Quinn to award extraordinary fees when applicable. Id. When an insurer “ghosts” a worker, ignoring a bill, and later claims they only failed to pay the bill, the director determines the dispute is under ORS 656.248, instead of under ORS 656.245. See Randy Q. Nordyke, 27 CCHR 63 (2022) . Under ORS 656.248, no attorney fee is payable. Appeals are similarly complex, causing further delay. The dispute before the Board on causation begins with an ALJ hearing, ORS 656.283; then Board review, ORS 656.289(3), 656.295; then judicial review at the Court of Appeals, ORS 656.298. The director dispute begins with WCD/ MRT. OAR 436-010-0008; then a hearing, OAR 436-001-0019; then Exceptions at a higher director level, OAR 436-001-0246, then limited judicial review at the Court of Appeals, ORS 656.704(2)(a). The two disputes are heard separately, with the director typically delaying a decision until the Board issue is finalized. C.f. ORS 656.704(3)(c). The delay for one single medical treatment may be years in each jurisdiction. While the Board has specific timelines for decisions, the director does not as it relates to medical services. ORS 656.283, 656.295; ORS 656.327, 656.245, 656.260. Imagine if your own health insurance worked this way. Julene Quinn is an appellate attorney who focuses on workers’ compensation. She contributes to OTLA Guardians at the Sustaining Member level. Her firm is Quinn &Heus LLC, 4504 S. Corbett, Portland, OR 97239. She can be reached at julene.m.quinn@gmail.com or 503-575-1253.
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