Landis v. Liberty Northwest Ins. Corp.

Under ORS 656.245(1)(c)(D), “[t]he primary characteristics of prosthetics are that they take the place of a body part or aide in a natural function . . . [and] unlike a durable medical device, could not be rented are used by successive patients.”

Claimant, in a workers’ compensation case, sought judicial review of an order of the Director of the Department of Consumer and Business Services (DCBS). In his third assignment of error, Claimant argued that the Director erred in concluding that a Transcutaneous Electrical Nerve Simulation (TENS) unit Is not a prosthetic device for which he was entitled to compensation as defined by OAR 436-009-0080 (2010) and in accordance with ORS 656.245(1)(c)(D). Under ORS 656.245(1)(c)(D), “[t]he primary characteristics of prosthetics are that they take the place of a body part or aide in a natural function . . . [and] unlike a durable medical device, could not be rented are used by successive patients.”  OAR 436-009-0080 (2010) included a TENS unit in its list of examples of “durable medical devices,” and excluded a TENS unit from its list of “prosthetics.”  The Court held Director’s interpretation that the TENS unit was not a prosthetic under ORS 656.245(1)(c)(D) based on the characterization of a TENS unit as exclusively a durable medical device was “a plausible one entitled to deference.” Affirmed.