DECISION AND ORDER

I. PROCEDURAL HISTORY

Petitioner, Scientific Therapy and Advanced Treatment 2000 (Provider), appealed the Findings and Decision of the Medical Review Division (MRD) of the Texas Worker’s Compensation Commission (TWCC) denying reimbursement from Respondent, Safeco Insurance Company of America (Carrier), for stimulator supplies provided to ______, Claimant. This decision concludes that the Provider is not entitled to reimbursement.

The Administrative Law Judge convened a hearing on June 5, 2002. The hearing was concluded and the record closed that date. The Provider appeared pro se. The Carrier was represented by Robert Graves, attorney.

II. EVIDENCE AND BASIS FOR DECISION

The issue presented in this proceeding is whether the Carrier should reimburse the Provider $425.00 plus interest for batteries and other supplies provided on October 19, 2000, December 19, 2000, January 19, 2001, February 19, 2001, and March 19, 2001 for a TENS^[1] unit.

The Carrier denied liability for the supplies because there was no showing that continued use of the unit was medically necessary or reasonably required. The Provider argued that the Carrier should pay for the supplies because it had purchased the unit rather than renting it;^[2] and that it had purchased the unit 46 weeks after the date of injury, which was in the chronic phase of the injury.^[3]

The documentary record in this case consisted of the 90-page certified record of the MRD proceeding (Exh. 1). The record reflects that a peer review was conducted on January 21, 2001, by Dr. William C. Watters, III, M.D. Dr. Watters noted in his report that the Claimant had reached maximum medical improvement on May 31, 2000, with a 7% whole body impairment. He stated in his report that TENS therapy is useful in treating acute injuries, but has not been shown to be effective for treatment of chronic injuries. Dr. Watters concluded that use of the TENS unit was not reasonable or medically necessary for treatment of the injury. (Exh. 1, pp. 61-63).

The certified record also contains a letter from the Claimant’s treating physician, Dr. Bill Weldon, D.O. In the letter, Dr. Weldon stated that he strongly recommended that the supplies be provided to enable his patient to continue using the simulator. (Exh. 1, p. 34)^[4]

Based on the evidence, the ALJ concludes that, consistent with the Carrier’s arguments, the appeal should be denied. The particular facts, reasoning, and legal analysis in support of this decision are set forth below in the Findings of Fact and Conclusions of Law.

III. FINDINGS OF FACT

1. On_________, _____ (Claimant) suffered a compensable injury to her lower back while lifting an object.
2. Claimant’s injury is covered by worker’s compensation insurance written for Claimant’s employer by Safeco Insurance Company of America (Carrier).
3. Petitioner Scientific Therapy and Advanced Treatment 2000 (Provider) provided the Claimant with batteries and other supplies for a TENS unit purchased by the Carrier for the Claimant on May 12, 2000. The batteries and other supplies were provided on October 19, 2000, December 19, 2000, January 19, 2001, February 19, 2001, and March 19, 2001.
4. A TENS unit should be used for acute pain and usually for no longer than four to six weeks.
5. Objective documentation should be provided for the continued use of a TENS unit beyond the acute phase.
6. The Provider did not provide objective documentation for the continued use of the stimulator beyond the acute phase.
7. The Carrier denied payment for the batteries and other supplies based on a peer review which stated that TENS therapy has not been shown to be effective for a chronic condition.
8. The Provider timely requested dispute resolution by the Texas Workers’ Compensation Commission Medical Review Division (MRD).
9. The MRD issued its findings and decision on November 7, 2001, concluding that the disputed expenses should not be paid, and the Provider timely appealed this decision.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (TWCC) has jurisdiction to decide the issues presented pursuant to Tex. Labor Code §413.031.
2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a Decision and Order, pursuant to Tex. Labor Code §413.031 and Tex. Gov’t Code ch. 2003.
3. The Notice of Hearing issued by TWCC conformed to the requirements of Tex. Gov’t Code §2001.052 in that it contained a statement of the time, place and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular section of the statutes and rules involved; and a short plain statement of the matters asserted.
4. The Provider has the burden of proving by a preponderance of the evidence that he should prevail in this matter. Tex. Labor Code ‘413.031.
5. Based on Findings of Fact Nos. 5 and 6, the Provider failed to provide documentation to support the continued use of a the TENS unit as required by 28 Texas Admin. Code §134.1001 (e)(3)(F).
6. Based on Conclusions of Law Nos. 4 and 5, Scientific Therapy and Advanced Treatment 2000 is not entitled to reimbursement for the batteries and other supplies provided on the disputed dates of service of October 19, 2000, December 19, 2000, January 19, 2000, February 19, 2001, and March 19, 2001.

ORDER

IT IS, THEREFORE, ORDERED that Safeco Insurance Company of America shall not reimburse Scientific Therapy and Advanced Treatment 2000 for the amount claimed.

Issued this 1^st day of August 2002.

MICHAEL J. BORKLAND
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. TENS is an abbreviation for transcutaneous electrical nerve stimulator. The Provider referred to the unit as a neuromuscular stimulator.↑
2. The ALJ considered this argument akin to an estoppel argument. The Provider argued that because the Carrier had purchased the unit, it then became responsible for purchasing the supplies.↑
3. This was again an estoppel argument. The Provider argued that since the Carrier purchased the unit in the chronic phase of the injury, it could not now argue that the unit is only designed the acute injuries, and not chronic injuries.↑
4. At the hearing, the Provider offered an additional letter into evidence from Dr. Weldon which was not part of the certified record. The Carrier objected to the letter as being hearsay. The ALJ advised the parties that he would rule on the objection in this decision. The hearsay objection to the letter is sustained.↑