June 30, 2021
by Hannah Teig

On remand from the Supreme Court, Oregon’s Workers’ Compensation Board issues decision addressing whether a referral for a noncompensable condition must be covered under a claim

Hannah TeigCourts have made clear that pursuant to ORS 656.245(1), employers are required to pay for “medical services for conditions caused in material part by the injury,” but that diagnostic services are compensable only if they are “necessary to determine the cause or extent of a compensable injury.” In other words, “the statute extends to payment of diagnostic services relating to noncompensable conditions if such procedures are performed to determine whether or not a causal relationship exists between the industrial injury and the noncompensable condition.” Charles W. Womack, 44 Van Natta 2407 (1992).

Prior to the decision in In re Garcia-Solis, 365 Or. 26 (2019), it was unclear what was meant by “injury” for purposes of determining whether diagnostic or referral services for noncompensable conditions could be covered under a claim. In 2019, the Oregon Supreme Court clarified this issue. There, the claimant was compensably injured when she was struck in the head with a tent pole while working outside. The claim was accepted for various physical conditions including a concussion and face laceration. Subsequently, claimant began reporting psychological symptoms including fears of being outdoors and having something fall on her head. As such, her attending physician provided a referral for a psychological evaluation. The insurer denied the request on basis it was not causally related to any of the accepted conditions. By the time the case arrived at the Supreme Court, the parties agreed the medical services sought were caused in material part by the work accident but were not caused in material part by any of the accepted conditions. The Court held that “for purposes of workers’ compensation statute providing that for every compensable injury, an insurer shall cause to be provided medical services for conditions caused in material part by the injury, the “injury” is the work accident that caused the medical condition and resulted in the need for medical services; it does not mean medical conditions, and it is not limited to conditions that the insurer has accepted at the time that medical services are sought.” In coming to its conclusion, the Court did a deep dive into statutory interpretation and legislative intent. Based on its holding, the Court remanded the case to the Board for further proceedings to determine if the psychological evaluation referral was caused in material part by the work accident and should be covered under the claim.

On June 23, 2021, the Board finally issued a decision. See Garcia-Solis 73 Van Natta 421 (2021). Based on the Supreme Court’s holding, the Board explained that in order to establish the claimed psychology referral was compensable on remand, claimant must establish that the referral was for a condition caused in material part by her 2009 work injury event. Here, the evidence showed claimant’s attending physician documented her psychological symptoms following the work accident in various chart notes. Moreover, the attending physician signed a concurrence wherein he specifically stated the referral was to address PTSD symptoms caused by the work incident rather than the accepted conditions. There were no contrary opinions. As such, the Board held the attending physician’s opinion was sufficient to establish the psychological evaluation referral was caused in material part by the work injury and compensable under ORS 656.245.

The holding in In re Garcia-Solis will likely make it easier for injured workers to establish that requested diagnostic services and referrals are compensable and must be covered under the claim. If you find yourself in a situation where an attending provider has submitted a referral request make sure you clarify with them whether the referral is related to the work incident and not the previously accepted conditions prior to authorizing the request. You can also seek out an opinion from a previous examiner or treating provider involved in the claim or schedule an IME or record review to evaluate this issue.

If you have any questions about compensable diagnostic services or referrals for noncompensable or yet to be determined compensable conditions, feel free to contact me at or 503-595-6115.

Posted by Hannah Teig.