June 11, 2024
by Evan Novotny

Oregon: Processing Proposed Surgical Authorization Requests Is Not Solely Based on Accepted Conditions

In 2019, the Oregon Supreme Court held that medical services materially related to the work injury are compensable under ORS 656.245 and are not limited to only the accepted conditions. Garcia-Solis v. Farmers Ins. Co., 365 Or 26 (2019). This decision continues to have a significant impact on claim processing decisions medical services litigation.

Most recently, the Workers’ Compensation Board issued a decision on June 6, 2024, holding that an employer’s disapproval of a proposed surgery was based on an incorrect legal standard where the condition to which the treating surgeon directed surgery was “not part of the accepted claim.” Theron G. Gerber, 76 Van Natta 320 (2024).

The employer relied on a medical expert report which contemplated the claimant might require the eventually-denied surgery to treat pre-existing pathology.  However, the Board was not persuaded by the expert report because it was provided prior to the surgical proposal, and the employer did not have the expert subsequently address the surgical proposal before the insurer issued its disapproval. The expert report specifically noted the surgery would eventually be required, and stated the surgery would not be required the compensable conditions but directed at an unrelated condition. However, the Board was not persuaded by this since it came before the surgery was actually requested and recommended by the treating providers.

This case serves an important reminder that if an insurer or self-insured employer has any question about the compensability of a medical service, it is important to confirm the medical opinions supporting any denial are based on the current medical record. This can, of course, be difficult with quick turn-around requirements under Oregon law.

Unless enrolled in an MCO, OAR 436-010-0250 gives the insurer seven days to respond to an elective surgery request and inform the requestor that the surgery is approved, disapproved, or pending for a consulting expert opinion. Otherwise, the insurer is barred from challenging the appropriateness of the surgery or whether the surgery is excessive or ineffectual. The consultation must be completed within 28 days, and the insurer must notify the recommending physician of the consultant’s findings within seven days of the consult. Additionally, if the insurer disapproves the request, such disapproval must be based on current legal standards.

If you have any questions regarding recommended language, current legal standards, or other steps in the surgical authorization process, please feel free to contact me to see how SBH Legal can help. I can be reached at (503) 595-6108 or .

Posted by Evan Novotny