Country Mutual Insurance v. Mendoza
Country Mutual Insurance v. Mendoza
Opinion of the Court
ORS 656.245(2)(a) provides, in relevant part:
“The worker may choose an attending doctor or physician within the State of Oregon. The worker may choose the initial attending physician and may subsequently change attending physician two times without approval from the director. If the worker thereafter selects another attending physician, the insurer or self-insured employer may require the director’s approval of the selection and, if requested, the director shall determine with the advice of one or more physicians, whether the selection by the worker shall be approved.”
(Emphasis supplied.) At issue in this case is whether a worker changing attending physicians after referral by her current attending physician for evaluation and treatment by another counts as one of the two changes that the statute permits without prior director approval. Claimant in this case contends, and the Workers’ Compensation Division of the Department of Consumer and Business Services (department) held, that such a change is not really a “change” within the meaning of the statute. According to claimant and the department, that is so because the change was preceded by the referral of a physician. Insurer contends that the statute draws no such distinction between changes that follow a physician referral and changes that do not. We conclude that a change of physicians is no less a “change” within the meaning of ORS 656.245(2)(a) merely because it was preceded by a referral for evaluation and treatment. Accordingly, we reverse and remand for reconsideration.
The facts are undisputed. Claimant compensably injured her right ankle. She was treated by Dr. Lieuallen, whom she had chosen to be her attending physician. Claimant then saw Dr. Oliver, and, on the day that she first saw him, she filed a change of physician form with insurer that stated, “I wish to change my attending physician,” and designated Oliver as her new attending physician. Ten days later, Oliver referred her to Dr. Karmy for evaluation and treatment of her ankle. Karmy proceeded to see claimant as a “consultation at the request” of Oliver and sent a copy of his examination notes to Oliver. The following week, claimant
Insurer requested a hearing. An administrative law judge (AU) affirmed. The ALJ noted that a department rule, OAK 436-10-060(3), provides that only referrals “initiated by the claimant” count as one of the two statutory changes of physicians that may transpire without director approval, while “ [consultations or referrals initiated by the attending physician” do not count.
Insurer argues that the ALJ erred in concluding that the mere fact that the change of physicians from Oliver to Karmy was preceded by a referral means that the change of physicians does not count as one of the two “changes” of
At the outset, we note that this case calls for no deference to an agency’s exercise of discretion or authority delegated to it by statute. It calls for us to determine whether an agency’s construction of nondelegative statutory terms is correct, nothing more. See generally England v. Thunderbird, 315 Or 633, 638, 848 P2d 100 (1993) (court’s function in reviewing agency construction of inexact statutory term is to determine whether the agency erroneously interpreted the law). In determining the validity of the agency’s construction of the statute, we examine the text and context of the statute and, if necessary, its legislative history and other relevant interpretive aids. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993).
ORS 656.245(2)(a) allows the worker to choose his or her attending physician. It further allows the worker “subsequently [to] change attending physician [s] two times without approval from the director.” The statute then provides that, “[i]f the worker thereafter selects another attending physician,” the insurer or self-insured employer has the right to insist on prior approval of the director.
The department’s implementing rule provides that certain actions do not constitute a “change” of physicians within the meaning of ORS 656.245(2)(a). Among those actions are emergency treatments, medical examinations that occur at the request of the insurer and “ [consultations or referrals initiated by the attending physician.” OAR 436-10-060(3)(c). Under the language of the rule, a consultation or referral itself does not necessarily require a change of attending physicians. A current attending physician, for example, may refer the claimant to another for a consultation or for specialized treatment, and the medical services provided by the consulting physician or treating specialist will continue to be covered as long as they are authorized by the
We turn, then, to the facts of this case. There are no findings that Oliver’s referral to Karmy was anything other than a referral for consultation or specialized treatment that did not necessitate a change of attending physicians. Indeed, Karmy’s own notes refer to the initial examination as a “consultation” at the request of Oliver. A week later, claimant filed a change of physician form declaring her “wish to change [her] attending physician.” There is neither a finding nor evidence that filing the change of physician form was in any way required by the referral for consultation. They were two separate events. Although one—the consultation—does not count as a change of physicians within the meaning of ORS 656.245(2)(a), the other—filing the change of physician form—does. Accordingly, the AU’s order concluding that the change of attending physicians from Oliver to Karmy did not
Reversed and remanded for reconsideration.
OAR 436-10-60 provides, in relevant part:
“(3) The worker * * * is allowed to change attending physicians by choice two times after the initial choice. Referral by the attending physician to another attending physician, initiated by the claimant shall count in this calculation. * * * For the purposes of this rule, the following are not considered changes of physician by the worker:
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“(c) Consultations or referrals initiated by the attending physician.”
Reference
- Full Case Name
- COUNTRY MUTUAL INSURANCE COMPANY v. Angelica MENDOZA and the Department of Consumer and Business Services
- Cited By
- 1 case
- Status
- Published