Court: Oregon Supreme Court; December 1, 1994; Oregon; State Supreme Court
The Workers' Compensation Board dismissed the claimant's request for a hearing on the insurer's refusal to approve palliative medical care under ORS 656.245(1)(b). The Court of Appeals upheld this decision, ruling that the palliative care dispute did not qualify as a "question concerning a claim" under ORS 656.283(1) because the procedures outlined in ORS 656.245(1)(b) were exclusive for obtaining such care. Consequently, under ORS 656.704(3), the Board lacked jurisdiction over the dispute.
The claimant, who suffered a work-related back and neck strain in 1985, had their claim accepted and subsequently closed. In 1990, the claimant’s physician recommended palliative care, which the insurer disapproved. A subsequent request for treatment approval by the Department of Insurance and Finance was also denied. The Board concluded it had no jurisdiction over the matter, a decision affirmed by the Court of Appeals, referencing prior case law (Hathaway v. Health Future Enterprises). The court found that the claimant's request for a hearing on noncompensable palliative care did not pertain to compensation under ORS 656.005(8) and thus fell outside the Board's authority. The facts of this case echoed those in Hathaway, with the procedural difference being that the physician sought director approval following the insurer’s disapproval, rather than the claimant directly requesting a Board hearing.
Claimant contends that her physician followed the approval procedure outlined in ORS 656.245(1)(b) for noncompensable palliative care and argues that the permissive term 'may' allows for alternative procedural avenues, such as ORS 656.283(1). However, the court disagrees, citing previous rulings that indicate 'may' does not imply a right for the Board to consider palliative care claims under ORS 656.283(1). The term reflects the physician’s discretionary ability to request approval without a corresponding obligation to do so, maintaining that the subject of such requests remains noncompensable. Claimant's interpretation would conflict with the definition of palliative care as noncompensable under ORS 656.245(1)(b) and would render the procedural guidelines redundant. Furthermore, the court concurs with the insurer's view that the legislative language demonstrates an intention not to categorize palliative care requests as claims requiring acceptance or denial under ORS 656.262(6). The court finds no merit in the argument that the director's alleged procedural error in failing to appoint a physician panel invalidates the request for palliative care or provides grounds for the Board to review the director’s decision. Consequently, the Board’s dismissal of the hearing request is upheld, alongside the affirmation of the Court of Appeals' decision. ORS 656.245(1)(b) clarifies that palliative care is generally noncompensable unless specific conditions apply, such as permanent total disability or monitoring of certain medical treatments.
If a worker's attending physician, as defined in ORS 656.005(12)(b)(A), deems palliative care necessary for the worker to maintain employment, the physician must seek approval from the insurer or self-insured employer before proceeding with treatment. If approval is denied, the physician can then request approval from the director, who will establish a panel of physicians to evaluate the treatment per ORS 656.327(3). Under ORS 656.283(1), any party or the director may request a hearing regarding any claim-related questions, but disputes over medical treatment or fees follow specific procedural rules outlined in this chapter. The parties agree that the treatment in question is 'palliative care,' thus the interpretation of that term in ORS 656.245(1)(b) remains unaddressed. The Board refrained from evaluating the constitutionality of ORS 656.245(1)(b) since no party raised this issue. The claimant contends that the statute is unconstitutional and seeks the court's review, which the court declines. Additionally, ORS 656.005(8) defines 'Compensation' to encompass all benefits for compensable injuries as provided by insurers or self-insured employers. While the question of ORS 656.704(2)'s relevance to procedural errors in disapproving palliative care is not decided, it indicates that the director's actions and hearings are governed by ORS 183.310 to 183.550 and any rules the director may set.
