The board stated, and the courts provide in dicta, that the legal standard for “medically stationary” is when the accepted conditions are medically stationary. The director, in Workers’ Compensation Division (WCD) rules, declared a worker is medically stationary when the accepted conditions are declared medically stationary. This assumption does not have statutory support. The law begins with ORS 656.268(1)(a), which requires closure of a claim “when *** [t]he worker has become medically stationary.…”. Medically stationary is defined in ORS 656.005(17) to mean “that no further material improvement would reasonably be expected from medical treatment or the passage of time.” This definition is not limited by the conditions listed in the notice of acceptance. Medical services are not limited to accepted conditions. Garcia-Solis v. Farmers Ins. Co., 365 Or 26 (2019), confirmed this, allowing medical services for the work accident. A worker is entitled to treatment related to the accident “for such period as the nature of the injury or the process of the recovery requires.” ORS 656.245(1)(a). The law allows for diagnostic services. Counts v. International Paper Co., 146 Or App 768, 770-72, 934 P2d 526 (1997); Brooks v. D & R Timber, 55 Or App 688, 692, 639 P2d 700 (1982); Garcia-Solis, 365 Or at 32 n 2. Even if a medical condition turns out to be unrelated to a work injury, until the diagnostic services are performed and the attending physician and worker understand the medical condition is or is not something that will be treated in the claim, the worker cannot be medically stationary. A doctor would be unable to say a worker is medically stationary until the medical investigation is complete. ORS 656.262(7)(c) may allow the reopening of a claim after closure when a new condition is found compensable, but it limits when a claim may be closed. Closure is only allowed when there is an objection to the notice of acceptance or appeal of denied conditions pending. Thus, only when a claim is actually disputed can an insurer ignore a condition and close the claim. Now that ORS 656.262(6)(b)(F) has been interpreted to provide an affirmative duty to an insurer to modify the notice of acceptance from time to time as information comes to light, see Nava v. SAIF, 333 Or App 196 (2024), that reinforces a claim includes all conditions related to the accident, not just those the insurer wants to accept. See ORS 656.262(7)(c) (insurer must update acceptance at closure). As a system, we have assumed with the advent of “accepted” conditions, a worker no longer is treated holistically for an accident, but, instead, an insurer may process only the conditions it wants to process from the accident. While 1990 and 1995 saw extreme changes in the law, this was not one of them. In summary, in cases where a worker requires further diagnostic treatment to determine the scope of the compensable injury, a worker would not be medically stationary until that occurred. As well, if there are additional symptoms or conditions requiring treatment that are related to the accident, but are not yet accepted, then a worker would be not medically stationary. A caveat: this is not a new theory but is based on old law that is unchanged. However, medically stationary as limited to the accepted conditions is the prevalent thinking. Pursuit of this legal theory is an uphill battle. The successful case will require documentation that the worker continues to need treatment or diagnostic services, those medical services are related to the accident, and the doctor cannot say no material improvement is expected by the worker until the treatment or diagnostic services occur. 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. Comp Corner The “Worker” is Medically Stationary by Julene Quinn, OTLA Guardian 51 Trial Lawyer | Summer 2024
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