Meyers v. Darigold, Inc.

861 P.2d 352, 123 Or. App. 217, 1993 Ore. App. LEXIS 1521

• Court: Court of Appeals of Oregon
• Decided: September 15, 1993
• Docket: 90-09863; CA A72829
• Status: Published

Opinions

DURHAM, J.

Claimant seeks review of a Workers’ Compensation Board order upholding employer’s denial of his aggravation claim and holding that the Board lacked jurisdiction to review employer’s partial denial of his claim for medical services. We review for errors of law, ORS 656.298(6); ORS 183.482(7), (8), and reverse.

Claimant, a warehouseman and laborer, suffered a compensable back injury in September, 1986. After the last arrangement of compensation in June, 1987, he continued working at his regular job. In January, 1989, he experienced the same back pains that he had experienced after the original injury. He returned to his treating physician who, on January 13,1989, reported to employer that claimant’s condition had worsened since the last arrangement of compensation. Claimant then consulted a chiropractor, who began to treat him once or twice a week. On April 24, 1990, employer denied payment of any chiropractic treatments in excess of the administrative guideline for such treatments. OAR 436-10-040(2).¹ On June 1, 1990, employer denied claimant’s claim for an aggravation of the 1986 injury.

Claimant requested a hearing on both denials. The referee set aside employer’s denial of the aggravation claim. She also set aside employer’s partial denial of the medical services claim on the basis that employer had failed to submit the matter to the director for review under ORS 656.327. The Board reinstated the aggravation denial and vacated the order setting aside the denial of chiropractic treatment on the ground that it lacked jurisdiction to review the denial of medical services.

Claimant first assigns error to the Board’s conclusion that it lacks jurisdiction to review employer’s denial of the claim for medical treatment. ORS 656.327(1) provides:

“(a) If an injured worker, an insurer or self-insured employer or the director [of the Department of Insurance and Finance] believes that an injured worker is receiving medical treatment that is excessive, inappropriate, ineffectual or in violation of rules regarding the performance of medical services and wishes review of the treatment by the director, the injured worker, insurer or self-insured employer shall so notify the parties and the director.

“(b) Unless the director issues an order finding that no bona fide medical services dispute exists, the director shall review the matter as provided in this section. Appeal of an order finding that no bona fide medical services dispute exists shall be made directly to the board within 30 days after issuance of the order. The board shall set aside or remand the order only if the board finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding in the order when the record, reviewed as a whole, would permit a reasonable person to make that finding. The decision of the board is not subject to review by any other court or administrative agency.

“(c) The insurer or self-insured employer shall not deny the claim for medical services nor shall the worker request a hearing on any issue that is subject to the jurisdiction of the director under this section until the director issues an order under subsection (2) of this section.” (Emphasis supplied.)

The Board reasoned that a 1990 amendment to ORS 656.704(3) made review of treatment disputes by the director a mandatory rather than discretionary procedure.² ORS 656.704(3), with the 1990 amendment in italics, provides:

“For the purpose of determining the respective authority of the director and the board to conduct hearings, investigations and other proceedings under ORS 656.001 to 656.794, and for determining the procedure for the conduct and review thereof, matters concerning a claim under ORS 656.001 to 656.794 are those matters in which a worker’s right to receive compensation, or the amount thereof, are directly in issue. However, such matters do not include any proceeding for resolving a dispute regarding medical treatment or fees for which a procedure is otherwise provided in this chapter.” Or Laws 1990 (Spec Sess), ch 2, § 37.

The Board adopted that construction even though no party requested director review or gave a notice initiating the director’s procedure under ORS 656.327(l)(a).

In construing the statute, we look primarily to the text and context of the statute to discover the legislature’s intention. Boone v. Wright, 314 Or 135, 138, 836 P2d 727 (1992). We must adopt a construction that gives effect to every word of a statute, if possible. ORS 174.010.

ORS 656.327 does not require the parties or the director to invoke the director review process. ORS 656.327(l)(a) provides that a party who believes that a claimant is receiving inappropriate treatment “and wishes review of the treatment by the director” (emphasis supplied) shall notify the parties and the director. In the 1990 amendments, the legislature left untouched the parties’ discretion to not request director review and to argue the claimant’s entitlement to compensation for ipedical services before the Board.³

The legislature’s purpose in defining “matters concerning a claim” in ORS 656.704(3) is to determine “the respective authority of the director and the board to conduct hearings, investigations and other proceedings under [this chapter] * * (Emphasis supplied.) Under ORS 656.327 (l)(a), if no party or the director requests a medical treatment review by the director, no question of respective authority between the director and the Board arises. If a party or the director “wishes” for director review and gives the notice, ORS 656.327(1) provides the procedure for a proceeding, within the meaning of ORS 656.704(3), for resolving the medical treatment dispute. If the parties or the director commence the director review proceeding, they must exhaust it and are barred from denying the claim or requesting a hearing before the Board until the director issues an order. ORS 656.327(l)(c), (2). Without a “wish” for the review and a notice filed with the director, there is no proceeding before the director. The director acquires exclusive jurisdiction over a medical treatment dispute only if the conditions necessary to create that jurisdiction occur. Those conditions did not occur here. The medical treatment dispute remained within the Board’s jurisdiction.

The Board rewrote ORS 656.327 under the guise of interpretation in an attempt to harmonize its construction of the director’s authority with the terms of the statute. The Board said:

“[The insurer’s] failure to initiate review procedures or pay the bills within 90 days of receipt will, by that fact alone, ordinarily constitute the unreasonable resistance to the payment of compensation, for which penalties or attorney fees will be assessed.³

The Board held that employer was required either to “pay claimant’s medical bills or initiate Director review of the dispute.” That ignores employer’s right under ORS 656.327 (l)(a) to invoke director review only if it wishes to do so. The Board’s effort to compel employers and insurers to invoke director review contradicts the statute. The Board’s interpretation of its jurisdiction over the medical treatment dispute is erroneous as a matter of law.

Claimant assigns error to the Board’s holding that he must prove a diminished capacity to work in order to recover on his aggravation claim. The Board found that claimant suffered a symptomatic worsening, but rejected his aggravation claim, because

“claimant’s earning capacity was [not] diminished below what it was at the time his claim was last closed.”

Claimant admits that he has continued to work full time. He argues that his ability to work is irrelevant, because he seeks compensation only for medical services, not disability compensation.

ORS 656.273 does not require claimant to prove a diminished capacity to work in this context. That statute provides, in part:

“(1) After the last award or arrangement of compensation, an injured worker is entitled to additional compensation, including medical services, for worsened conditions resulting from the original injury. A worsened condition resulting from the original injury is established by medical evidence supported by objective findings.

"* * **

“(2) To obtain additional medical services or disability compensation, the injured worker must file a claim for aggravation with the insurer or self-insured employer.” (Emphasis supplied.)

The Board cited Smith v. SAIF, 302 Or 396, 730 P2d 30 (1986), for its proposition that lost earning capacity must be proven in all aggravation claims, including those limited to medical services. Smith does not support the Board. That case involved an aggravation claim for increased disability compensation. The Supreme Court held:

“[I]n a claim for increased compensation for unscheduled disability under ORS 656.273, the worker * * * must prove that his symptoms have increased or otherwise demonstrate that his underlying condition has worsened so that he is less able to work in the broad field of general occupations resulting in a loss of earning capacity.” 302 Or at 401. (Emphasis supplied.)

Smith states:

“Of course, a worker is entitled to medical expenses under ORS 656.245[⁴] without a showing of worsening of his underlying condition. The entitlement to services under ORS 656.245 is not tied to a worsening but requires only that the need for medical services be a result of the injury.” 302 Or at 402.

Because the Board disposed of the aggravation claim by holding that claimant was not more disabled from working, it did not determine whether the need for medical services was the result of the injury.⁵ Smith v. SAIF, supra, 302 Or at 402. On remand, the Board should address that question.

Claimant also assigns error to the order setting aside the referee’s award of penalties and attorney fees on the denials. In light of our disposition of the issues discussed above, we do not address this assignment.

Reversed and remanded for reconsideration.

1 OAR 436-10-040(2) provides, in part:

‘ ‘Frequency and extent of treatment shall not be more than the nature of the injury or process of a recovery requires * * *. The usual range of the utilization of medical services does not exceed 15 office visits by any and all attending physicians in the first 60 days from first date of treatment, and two visits a month thereafter.”

2 In Lillie M. Willis, 42 Van Natta 1923 (1990), the Board held that the Director review procedure in ORS 656.327(1) is discretionary with the parties and originates only if a party wants the Director to act:

“The language of this former statute is discretionary upon the parties. It contains two requirements: first there has to be one or more of the types of • problems listed in the statute; and second, the parties have to want the Director to act. Once the matter has been submitted by one of the parties to the Director, then the provisions of ORS 656.327(2) take effect. At that point, the Director has sole jurisdiction over the matter and the insurer cannot deny the claim and the claimant cannot request a hearing. It is only at that point that the Hearings Division loses jurisdiction over the matter under ORS 656.283.” (Emphasis supplied.)

3 The dissent contends that the parties’ discretion under ORS 656.327 to seek director review was impliedly repealed by the 1990 amendment to ORS 656.704(3). The dissent focuses on the amendment but does not address the language in ORS 656.327 that the legislature left untouched. The dissent’s interpretation fails to give effect to the unamended language, as required by ORS 174.010, and contradicts that language by, in effect, compelling the parties to seek review, whether or not they wish to do so. We find no persuasive indication that the legislature meant the amendment to ORS 656.704(3) to prevail over the language in ORS 656.327. See Harris v. Craig, 299 Or 12, 16 n 1, 697 P2d 189 (1985).

3 “3. Furthermore, by failing to timely request Director review, the insurer may waive its right to seek director review, and be held bound to pay the bills. See proposed OAR 436-10-046(4).”

4 ORS 656.245 provides, in part:

“(l)(a) For every compensable injury, the insurer or the self-insured employer shall cause to be provided medical services for conditions resulting from the injury for such period as the nature of the injury or the process of the recovery requires * *

5 The dissent contends that the aggravation claim was properly denied because it did not include a claim under ORS 656.245 for additional medical services resulting from the original injury. We reject that argument. Because the claim was based on ORS 656.273, a citation to ORS 656.245 was unnecessary. We also note that the dissent’s view was not a basis for the Board’s order and was not argued to this court by employer.