Cook v. Workers' Compensation Department

758 P.2d 854, 306 Or. 134, 1988 Ore. LEXIS 397
CourtOregon Supreme Court
DecidedJuly 6, 1988
DocketWCD 6-1985; CA A38782; SC S34626
StatusPublished
Cited by27 cases

This text of 758 P.2d 854 (Cook v. Workers' Compensation Department) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Workers' Compensation Department, 758 P.2d 854, 306 Or. 134, 1988 Ore. LEXIS 397 (Or. 1988).

Opinions

[136]*136GILLETTE, J.

Petitioner brought an original proceeding in the Court of Appeals challenging the validity of an administrative rule promulgated by the Workers’ Compensation Department (the department).1 The rule limits the circumstances under which an insurer or a self-insured employer may be required to reimburse a nurse practitioner2 who provides medical services relating to a compensable illness or injury. OAR 436-10-050(4).3 Petitioner argues that a nurse practitioner is a “doctor or physician” as those terms are defined by statute and [137]*137that the department exceeded its authority in restricting reimbursement for nurse practitioners. Alternatively, she argues that the challenged rule violates Article I, section 20, of the Oregon Constitution and the Fourteenth Amendment to the United States Constitution, because it unreasonably differentiates between nurse practitioners and physician’s assistants by imposing fewer restrictions on a physician’s assistant’s eligibility for reimbursement. We agree with the first argument.

The Court of Appeals initially upheld the rule without opinion. Cook v. Workers’ Compensation Department, 85 Or App 219, 736 P2d 230 (1987). On reconsideration, the court withdrew its decision because “[a] challenge to an administrative rule in this court is an original proceeding, and our determination of the rule’s validity should, generally, be by written opinion.” Cook v. Workers’ Compensation Department, 87 Or App 486, 487, 742 P2d 714 (1987). The court again upheld the challenged rule, stating that “[w]e have considered petitioner’s arguments challenging the validity of OAR 436-10-050 and find them to be without merit.” Id. This court allowed review. We find that the department misinterpreted the pertinent provision of law and, therefore, exceeded its authority in promulgating the challenged rule. Accordingly, we reverse the Court of Appeals.

We first consider petitioner’s argument that the [138]*138department lacked the statutory authority to promulgate the challenged rule. See Planned Parenthood Assn v. Dept. of Human Res., 297 Or 562, 565, 687 P2d 785 (1984). The director of the Workers’ Compensation Department is vested with the general authority to promulgate rules “which are reasonably required in the performance of the director’s duties” of administering, regulating and enforcing the workers’ compensation laws. ORS 656.726(3)(a). The duty to administer the Workers’ Compensation Law requires that the director apply the statutes to individual factual situations. That process necessarily involves interpretation of statutory terms, either by rule or by order in a contested case. It follows that the director had the authority to promulgate a rule interpreting the meaning of the statutory terms “doctor or physician.” The question remains — was that interpretation correct?

For the purposes of the Workers’ Compensation Law, the legislature has defined a “doctor or physician” as:

“[A] person duly licensed to practice one or more of the healing arts in this state within the limits of the license of the licentiate. ‘Attending physician’ means a doctor or physician who is primarily responsible for the treatment of a worker’s compensable injury. ‘Consulting physician’ means a doctor or physician who examines a worker or the worker’s medical record to advise the attending physician regarding treatment of a worker’s compensable injury.” (Emphasis supplied.)

ORS 656.005(12). Although the department has the authority to interpret the statutory terms, “doctor or physician,” that interpretation must be consistent with the policy underlying the legislative enactment. An administrative agency may not, by its rules, amend, alter, enlarge or limit the terms of a statute. U. of O. Co-oper. v. Dept. of Rev., 273 Or 539, 550, 542 P2d 900 (1975). The question before this court is whether the department’s interpretation of the statutory language comports with the statutory intent. Springfield Education Assn. v. School Dist., 290 Or 217, 228, 621 P2d 547 (1980).

When OAR 436-10-050 originally was promulgated in 1982, it authorized reimbursement for nurse practitioners who practiced in areas defined by the State Health Planning and Development Agency as medically underserved. The rule thus recognized the special, hybrid status of the nurse practitioner, different both from a traditional nurse and a traditional doctor. In 1985, the rule was amended to delete that provision and [139]*139add a provision that treatment by a nurse practitioner for a disabling illness or injury would be reimbursable only if the patient were referred to the nurse practitioner by the attending physician. Exhibit C to the 1985 amendment explains the agency’s reasoning:

“There was considerable testimony from nurse practitioners regarding the proposed rule, and the testimony was unanimous in objecting to any limitation on nurse practitioners, be it geographical or scope of practice, or any limitation regarding the extent of an injury that they could treat and be reimbursed for by the system.
“The intent of the rule was to allow nurse practitioners to treat nondisabling injuries and treat disabling injuries only when the patients were referred by attending physicians who would remain attending physicians and were in control of the case. This would remove the geographic limitation and allow all adult nurse practitioners and family nurse practitioners to treat nondisabling injuries, but would not designate them as attending physicians and it is the opinion of the department that the definition is defined in the statute and the department cannot expand the definition. * * *.” (Emphasis added).

It is apparent that the department concluded that nurse practitioners did not qualify as “doctors or physicians” under the statutory definition and therefore declined to permit their designation as attending physicians.4 For the reasons that follow, we hold that the department was incorrect in so concluding and therefore erred in adopting a rule that excludes nurse practitioners from the statutory definitions of “physician” and “attending physician.”

For the purposes of the Workers’ Compensation Law, a “physician” or “doctor” is defined, in part, as a person “licensed to practice one or more of the healing arts.” ORS 656.005(12). The issue before this court turns on the meaning of the term, “healing arts.” No Oregon statute or Supreme Court opinion defines that term, nor (so far as we can determine) does it have any special and immutable meaning either [140]*140in medicine or in the law. Although the term is used in various contexts throughout the Oregon Revised Statutes, no clear meaning can be distilled from those provisions. Neither has our research with respect to other jurisdictions produced much help. What law we have been able to find is primarily statutory. A summary of laws from other jurisdictions appear in the Appendix.

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Bluebook (online)
758 P.2d 854, 306 Or. 134, 1988 Ore. LEXIS 397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-workers-compensation-department-or-1988.