August 14, 2024
by TJ Bhullar

What type of medical services are compensable after a worker is medically stationary in Oregon?

A common question which arises in Oregon workers’ compensation claims process is what type of medical services will continue to be compensable once a worker has reached a medically stationary status. The Workers’ Compensation Division recently providing some clarification when an insurer will be held liable to compensate a proposed palliative care service in a series of recent final Orders. Steven A. Smith, 29 CCHR 1 (2024).

Generally, medical care after a worker is found medically stationary are only compensable when the services are considered palliative care; curative care; care provided to a permanently and totally disabled worker; prescription medications; necessary to administer or monitor administration of prescription medications; prosthetics, braces, or other supports; care for related to aggravation under an accepted claim; under the Board’s own motion; diagnostic services; or life-preserving modalities like insulin therapy, dialysis, and transfusions.  OAR 436-010-0290(1)(a)-(k).

The administrative rules define palliative care as medical services provided to temporarily reduce or moderate the intensity of an otherwise stable medical condition, but they do not include medical services provided to diagnose, heal, or permanently alleviate or eliminate a medical condition. OAR 436-010-0290(2)(a). This type of care is compensable when prescribed via an attending physician and it is necessary to enable a worker to continue their current employment. OAR 436-020-0290(2)(a).  On the other hand, curative care is described as care provided to stabilize a temporary acute waxing and waning of symptoms of a worker’s condition. OAR 436-010-0290(3). When an insurer or self-insured employer disapproves a request for palliative care, the attending physician or worker may request administrative review within 90 days from the date of the disapproval notice. OAR 436-010-0290(2)(e).

In Steve A. Smith, the Division upheld the compensability of a proposed lumbar spine injection as a curative procedure rather than palliative. The Division was asked to determine whether the claimant was entitled to the proposed lumbar injection as recommended by the treating provider. The claimant had reported low back pain radiating into his hips and a variety of steroid injections to multiple regions of his back and hips from 2010 through 2018. 29 CCHR 1, 2 (2024). Then in November 2022, claimant reported an increase in his bilateral SI joint pain, after which Dr. Cochrane proposed bilateral SI joint injections. A month later, Dr. Cochrane provided a clarification indicating bilateral provocative testing had produced pain for which he continued to recommend a bilateral SI joint steroid injection. Sedgwick disapproved the recommended palliative care, explaining it did not meet the requirements set by ORS 656.245(1) and OAR 436-010-0290. The claimant then requested administrative review from the medical review team, which issued an Amended Administrative Order on April 7, 2023 holding the requested procedure was both appropriate and compensable. In holding so, the MRT explained, since claimant had left the workforce, the palliative care rule was inapplicable and instead the proposed injection was compensable as curative care under ORS 656.245(1)(c)(L).

Sedgwick challenged this MRT order and thereby bore the burden of proving through substantial evidence or an error of law in the record the proposed lumbar injection was palliative in nature. Sedgwick first contended the MRT had exceeded its authority by reviewing the medical service as either palliative or curative and thereby committed an error of law. Smith, 29 CCHR at 3-4 (2024). However, the Division explained when the MRT is acting under the director’s authority, the MRT has the authority to review a requested medical service is permissible under ORS 656.245(1)(c)(J)-(L), which authorizes the MRT to review the compensability of palliative and curative care options. The Division also pointed to its decision in Landis v. Liberty Northwest Ins. Corp., where it concluded when the MRT is acting under the director’s authority tit has the authority to review the proposed procedure as either palliative or curative. Smith, 29 CCHR at 4 (2024). Therefore, Sedgwick did not meet the burden of establishing an error in the record.

Next, Sedgwick argued substantial evidence did not indicate the proposed injection was curative, but the Division explained substantial evidence in fact supported the MRT’s Order. Smith, 29 CCHR at 4 (2024). Notably, both Dr. Cochrane’s description of the claimant’s lumbar pain as waxing and waning, as well as the evidence in the record corroborating claimant’s reports of temporary and acute waxing and waning of his back pain indicated the proposed procedure was curative and not palliative. As such, the Division concluded the proposed injection was compensable and it affirmed the MRT’s Order.

Thus, it is important for employers to consider all of the potential purposes for which an attending physician may propose medical services. As demonstrated in Steve A. Smith, medical services considered forms of curative care are likely to be considered compensable when a medically stationary worker continues to report a waxing and waning of symptoms which were related to the compensable condition, Since the employer bears the burden of establishing the MRT’s error to argue against the compensability of the services on appeal, it will be important to carefully review the worker’s report of symptoms to determine whether these are symptoms related to the condition which are waxing or waning. Further, because the MRT may analyze post-medically stationary medical services as either palliative or curative, a thorough defense plan will also include evidence demonstrating how the proposed service is not palliative in nature.

If you have any questions about the compensability of post-medically stationary medical services, including those which are palliative or curative, you can contact me at or at 971-867-2726.

Posted by TJ Bhullar.