Psychological Injuries Examined in New Oregon Supreme Court Case

Bruce Burk

The concept of rule in/rule out deals with the notion that an injured worker should have the right to diagnostic testing and evaluations to determine whether a condition is or is not related to a workers’ compensation accident. The standard for evaluations and diagnostic testing is often lower than proving compensability of an accident.
In Oregon, the State Supreme Court has issued a new opinion which overruled a trial court and court of appeals decision denying a worker diagnostic services by a psychologist. The decision to give the worker this testing was made, even though no psychological injury had been accepted by the employer/carrier.

The claimant, Elvia Garcia-Solis is seeking to have the evaluation to determine if she has Post-Traumatic Stress Disorder as a result of a work related accident.

In coming to its conclusion, the court was grappling with the term “compensable injury” in Oregon Statute 656.245(1) and whether that required the claimant to have a compensable workplace accident in order to be entitled to an evaluation:
(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 (Compensability of certain preexisting conditions), including such medical services as may be required after a determination of permanent disability.
The original accident occurred when some winds blew over a tent pole where the claimant was working as a server. The accident caused the claimant to sustain multiple fractures that’s a result of the industrial accident. The original accident was accepted as compensable which included laceration to her skull.
The claimant was then referred to see a psychologist after having episodes while feeling the effects of strong winds. Because the doctor who made the referral did not diagnose the claimant with a psychiatric or psychological injury, the trial court determined and the court of appeals agreed there was no compensable injury required by the first sentence of the above reference statute.

It is often difficult for employers/carriers to prevail in claims for diagnostic services. In many states, the standard of proof is relatively low because the request is being made to determine if a condition is related to a compensable injury. Many states have now adopted laws making it easier for injured workers to get access to both medical treatment in compensation for psychiatric and psychological conditions.

The standard is usually whether the test is meant to show whether or not the condition is related to a compensable worker’s compensation injury. Moreover, that the test is a reasonable and medically necessary. In this case the evaluation with a psychologist is of a similar nature to requesting an MRI to determine whether or not a neck injury is related to an accident involving the low back. The claim for diagnostic services is usually stronger if the request is made from an authorized doctor.

As with many state Supreme Court Cases, this could prompt the state legislature to want to take a look at the statute in question to make it more clear what their intent was, as it was obviously not clear given the separate rulings between the Oregon Court of Appeals and the Oregon Supreme Court.

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