Landis v. Liberty Northwest Insurance Corp. , 281 Or. App. 639 ( 2016 )

EGAN, J.,

dissenting.

The majority concludes that the director did not err in determining that a TENS unit is not a prosthetic as defined in OAR 436-009-0080 (2010) and in accordance with ORS 656.245(l)(c)(D). I respectfully dissent. I would conclude that the TENS unit is a compensable prosthetic device.

The majority correctly states the undisputed facts. I briefly summarize the facts pertinent to my dissent. Claimant suffered a compensable injury and, at some point, was prescribed a TENS unit for back pain. Claimant later sought treatment from Dr. McKellar and he prescribed the continued use of the TENS unit. McKellar opined that the TENS unit was “a prosthetic device directly supporting Mr. Landis’ back, in that its primary purpose is to improve the function of a moveable body part.” McKellar opined that the TENS unit aided in the performance of claimant’s natural functions of “standing, walking and sitting — or what are normally considered activities of daily living.”

Liberty had been paying for the TENS unit, but in June 2010, it denied the compensability of that treatment. The Workers’ Compensation Division of the Department of Consumer Business Services upheld the denial, and claimant requested a hearing. The director upheld the administrative decision, rejecting claimant’s contention that the TENS unit was a prosthetic device under ORS 656.245(l)(c)(D). The director explained:

“A prosthetic is a mechanical device that physically replaces or supports a body part, or physically assists a body part in performing its mechanical functions. The TENS electrically stimulates muscles and nerves to attempt to reduce pain. A TENS unit is a medical treatment intended to reduce pain, not to mechanically assist a body function. The TENS is therefore not compensable as a prosthetic device.”¹

(Emphases added.) For those reasons, the director concluded, the services were not compensable.

ORS 656.245(l)(c)(D) lists “prosthetic devices” as a compensable medical service. A “prosthetic device” is not defined by statute, but the director’s administrative rule— OAR 436-009-0080(2) (2010) — defines a “prosthetic” as

“an artificial substitute for a missing body part or any device aiding performance of a natural function. For Example: hearing aids, eye glasses, crutches, wheelchairs, scooters, artificial limbs, etc.”

(Emphases added.) OAR 436-010-0230(12) (2010) similarly provides that a “prosthetic appliance” is “an artificial substitute for a missing body part or any device by which performance of a natural function is aided, including but not limited to hearing aids and eyeglasses.” (Emphases added.)

The same administrative rule also defines “durable medical equipment.” OAR 436-009-0080(1) (2010) provides:

“Durable medical equipment (DME) is equipment that is primarily and customarily used to serve a medical purpose, can withstand repeated use, could normally be rented and used by successive patients, is appropriate for use in the home, and is not generally useful to a person in the absence of an illness or injury. For example: Transcutaneous Electrical Nerve Stimulation (TENS), Microcurrent Electrical Nerve Stimulation (MENS), home traction devices, heating pads, reusable hot/cold packs, etc.”

(Emphases added.)

As discussed by the majority, claimant does not dispute that OAR 436-009-0080 (2010) categorizes the TENS unit as “durable medical equipment” rather than a “prosthetic.” He contends, however, that the medical evidence in this case shows that, as prescribed to claimant, the TENS unit was a prosthetic as defined in both OAR 436-009-0080(2) (2010) and OAR 436-010-0230(12) (2010), because, in acting as a nerve stimulator, it aids claimant’s physical functions. 281 Or App at 646.

In rejecting claimant’s position, the director did not acknowledge, take into account, or even conceive that certain items could possess characteristics that fall within more than one category. That is, the director ignored the reality that some appliances fall into the categories of both prosthetic and durable medical equipment, based on the definitions in the rule. For example, the TENS unit, although prescribed for the medical purpose of relieving pain, has the incidental effect of aiding in the natural functions of the back. As the terms “prosthetic” and “durable medical equipment” are applied to other body parts, certain items in the category of “prosthetic,” such as eyeglasses or hearing aids, also serve a durable medical purpose. Nevertheless, the majority concludes that the director’s interpretation of the text of the rule as establishing mutually exclusive categories and characterizing a TENS unit as durable medical equipment and not also a prosthetic is a plausible one entitled to deference.

That approach, which the majority upholds, is unnecessarily binary and ignores that workers’ compensation is a complex statutory scheme designed to help injured workers recover from injuries, to “provide a fair and just administrative system for delivery of medical * * * benefits to injured workers that reduces litigation,” and “restore [s] the injured worker physically and economically to a self-sufficient status in an expeditious manner and to the greatest extent practicable.” ORS 656.012(2)(b), (c). Even the majority admits that many of the devices listed as prosthet-ics in OAR 436-009-0080(2) (2010) are indeed nothing more than durable medical equipment. 281 Or App at 647-48. The majority, however, leaps to the unsupportable conclusion that this durable medical equipment, a TENS, is not a prosthetic as a matter of law because it is specifically listed as durable medical equipment, regardless of its actual function as used by claimant. When the majority entertained that mutually exclusive categories were not grounded in reality, as it must, then it should have also concluded that the director’s interpretation of the rule, which is reliant on that mutual exclusivity, is not plausible. Instead, the majority tries to support the director’s unrealistic vision of the world by stating that “[t]he examples of prosthetic devices are items that are personal to the individual and that, unlike a durable medical device, could not be rented and used by successive patients. By implication, a prosthetic is personal to the individual and is not an item that could he reused by different patients.” 281 Or App at 647-48. That conclusion, however, is contrary to other department decisions and our case law.

For example, in Toni L. Anderson, 16 CCHR 202 (2011), the director determined that compression stockings, which fits the definition of medical supplies under the rules, were nonetheless prosthetic, because they “improve [ed] the function of the leg and the circulatory system.” 16 CCHR at 204. There is nothing about stockings, however, that make them “personal to the individual.” In Sedgwick Claims Management Services v. Jones, 214 Or App 446, 454, 166 P3d 547 (2007), we determined that a new modified van to accommodate claimant’s wheelchair qualified as a com-pensable medical service under ORS 656.245(l)(b). In so concluding, we noted that modifications to accommodate a prosthetic were compensable as “a necessary extension” of the prosthetic. Id. at 453. However, again, there is nothing about a van modified to accommodate a wheelchair (i.e., any wheelchair) that is “personal to the individual.” The majority’s distinction between prosthetics and durable medical equipment does not stand up in light of those prior interpretations. Instead of approving the director’s unrealistic binary approach, I would conclude that claimant’s TENS unit, which stimulates a nerve to aid that nerve’s natural function to assist claimant in the functions of standing, walking, and sitting, qualifies as a prosthetic device. That TENS unit aids in the function and use of a body part, much like a compression stocking or a vehicle.

Some of the prosthetic appliances listed in the director’s own rule support my view, because those devices do not substitute for a function, but assist and improve that function. Eyeglasses are an optical aid; glasses do not substitute for eyes, but increase the ability to see. Simple hearing aids amplify sound while more sophisticated hearing devices actually provide electrical signals that stimulate the cochlear nerve. Although not listed, a pacemaker is a recognized prosthetic that electrically assists in maintaining the proper rhythm of the heart. In the same manner, a TENS unit that stimulates the nerves of the back so as to assist the neurologic function operates as a prosthetic device. Any other conclusion has the effect of amending and restricting ORS 656.245(l)(c)(D) through an administrative rule. Therefore, I would conclude that the director’s interpretation of OAR 436-009-0080 (2010) is not plausible because it erroneously limits the full scope of compensable prosthetic devices that the statute allows. See Cook v. Workers’ Compensation Dept., 306 Or 134, 138, 758 P2d 854 (1988).

In addition, I would conclude that the director erroneously found that the TENS unit only reduced claimant’s pain, and did not mechanically assist a body function. That finding is not supported by substantial evidence in the record, because the treating physician stated conclusively that the unit assisted claimant in the activity of standing, walking, and sitting.

For those reasons, I would conclude that the TENS unit is a compensable prosthetic device. I would reverse the director’s decision and remand this case for the director to reconsider it under the correct legal standard.

I respectfully dissent.

1 The majority concludes that the rule does not require that the device be “mechanical” or aid in mechanical functions and that the director’s interpretation of the rule was inconsistent with its text. 281 Or App at 647.1 agree.