Landis v. Liberty Northwest Insurance Corp.

383 P.3d 349, 281 Or. App. 639, 2016 Ore. App. LEXIS 1320
CourtCourt of Appeals of Oregon
DecidedOctober 19, 2016
Docket1200057H; A154724
StatusPublished

This text of 383 P.3d 349 (Landis v. Liberty Northwest Insurance Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Landis v. Liberty Northwest Insurance Corp., 383 P.3d 349, 281 Or. App. 639, 2016 Ore. App. LEXIS 1320 (Or. Ct. App. 2016).

Opinions

ARMSTRONG, P. J.

In this workers’ compensation case, claimant seeks review of an order of the Director of the Department of Consumer and Business Services (DCBS) determining that treatments prescribed by claimant’s attending physician for pain relief from claimant’s compensable and medically stationary “arachnoiditis” are not compensable medical services under ORS 656.245. The director determined that the prescribed physical therapy and transcutaneous electrical nerve stimulation (TENS) unit1 were “palliative” rather than “curative,” ORS 656.005(20); ORS 656.245(l)(c)(L), and that, as palliative care, they were not compensable because the evidence did not establish that the services were necessary to allow claimant to continue employment. ORS 656.245(l)(c)(J) (after a worker has become medically stationary, palliative medical services are compensable if “necessary to enable the worker to continue current employment or a vocational training program”). The director further concluded that the TENS unit was not compensable as a “prosthetic device.” ORS 656.245(l)(c)(D) (listing prosthetic devices as a compensable medical service after a worker has become medically stationary). The relevant facts are not disputed; we review the director’s order under ORS 183.482(7) and (8) for legal error and affirm.

We summarize the relevant facts from the director’s findings, which claimant does not challenge. Claimant suffered a compensable injury in 2004 that the employer’s workers’ compensation insurer, respondent Liberty Northwest Insurance Corporation, ultimately accepted as disabling arachnoiditis, thoracic and lumbar strains combined with underlying unrelated L5-S1 disc bulge, facet arthrosis, and stenosis. At some point, claimant was prescribed a TENS unit for back pain. In 2008, claimant’s physician determined [641]*641that claimant was medically stationary, and the claim was settled through a claims disposition agreement under which claimant released his rights to permanent total disability benefits but retained his right to medical treatment.

In May 2010, claimant sought treatment from Dr. McKellar, hoping to reduce his use of prescription pain medications for chronic lumbosacral pain. McKellar prescribed physical therapy and the continued use of the TENS unit. McKellar opined that, without the TENS unit, claimant’s condition would deteriorate, and he would become bedridden.

Liberty had been paying for the TENS unit at least since 2008, but in June 2010, it denied the compensability of that treatment as well as the prescribed physical therapy, determining that the medical services were palliative rather than curative care, and that they were not compensa-ble because claimant had not submitted information showing that he was currently employed or that the services were necessary to allow him to continue his employment. ORS 656.245(l)(c)(J). The Workers’ Compensation Division of DCBS upheld the denial, and claimant requested a hearing. Ultimately, the director upheld the administrative decision, finding that claimant’s conditions were medically stationary and that the services had been prescribed to treat chronic symptoms of a stable condition rather than an “acute waxing and waning of symptoms.” The director thus concluded that the services were “palliative,” as defined in ORS 656.005(20), and that the record did not support a finding that they were necessary to support current employment. The director also rejected claimant’s contention that the TENS unit was a prosthetic device under ORS 656.245(l)(c)(D). For those reasons, the director concluded, the services were not compensable. On judicial review, claimant contends that the director has misinterpreted the relevant statutes and administrative rules and that the prescribed services are compensable.

As a general rule, medical services for a compensable injury are to be provided “for such period as the nature of the injury or the process of recovery requires.” ORS 656.245(l)(a). When, however, as in this case, a worker’s condition has [642]*642become medically stationary, “[notwithstanding any other provision” of ORS chapter 656, only those medical services listed in ORS 656.245(l)(c) are compensable. As relevant here, ORS 656.245(l)(c) lists as compensable the following medical services:

“(D) Prosthetic devices * * * [.]
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“(J) With the approval of the insurer *** palliative care that the worker’s attending physician * * * prescribes that is necessary to enable the worker to continue current employment or a vocational training program.
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“(L) Curative care provided to a worker to stabilize a temporary and acute waxing and waning of symptoms of the worker’s condition.”

It is undisputed that claimant’s compensable conditions are medically stationary. Claimant contends in his first assignment that the director erred in determining that his treatments are palliative rather than curative. As claimant correctly notes, the meaning of the two statutory terms is a legal question. See Karjalainen v. Curtis Johnston & Pennywise, Inc., 208 Or App 674, 681, 146 P3d 336 (2006), rev den, 342 Or 473 (2007) (statutes are, by definition, law, and their interpretation is always a question of law). Under ORS 656.245(l)(c)(L), “curative care” is compensable after a claimant becomes medically stationary if it is provided “to stabilize a temporary and acute waxing and waning of symptoms of the worker’s condition.” Claimant points out that the term “curative” is not defined in the statutes and asserts that dictionaries define the term consistently with McKellar’s opinion that claimant’s use of the TENS unit and participation in physical therapy are necessary to avoid a deterioration in claimant’s condition.

We need not decide whether the term “curative” has the meaning proposed by claimant, because ORS 656.245 (l)(c)(L) states that, after a claimant has become medically stationary, curative care is compensable only if it is provided [643]

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Related

In the Matter of Marriage of Perlenfein and Perlenfein
848 P.2d 604 (Oregon Supreme Court, 1993)
Cook v. Workers' Compensation Department
758 P.2d 854 (Oregon Supreme Court, 1988)
Karjalainen v. Curtis Johnston & Pennywise, Inc.
146 P.3d 336 (Court of Appeals of Oregon, 2006)
SAIF Corp. v. Donahue-Birran
96 P.3d 1282 (Court of Appeals of Oregon, 2004)
Sedgwick Claims Management Services v. Jones
166 P.3d 547 (Court of Appeals of Oregon, 2007)
Dowell v. Oregon Mutual Insurance
343 P.3d 283 (Court of Appeals of Oregon, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
383 P.3d 349, 281 Or. App. 639, 2016 Ore. App. LEXIS 1320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landis-v-liberty-northwest-insurance-corp-orctapp-2016.