DECISION AND ORDER

I. SUMMARY

OxyMed, Inc. (Petitioner or OxyMed), the provider of the durable medical equipment (DME) in this case, seeks reimbursement for the DME provided to the injured worker, ___ (Claimant). Connecticut Indemnity Company (Carrier) denied payment stating that the DME was not medically necessary. Subsequently, the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) considered Petitioner’s claim of $1,655.00 and recommended no reimbursement. Petitioner appealed the MRD’s order, arguing that full reimbursement should be ordered.

The Administrative Law Judge (ALJ) concludes that Petitioner did not meet its burden of proving that the DME was medically necessary and is, therefore, not entitled to reimbursement.

II. JURISDICTION, NOTICE AND PROCEDURAL HISTORY

On October 3, 2002, ALJ Michael J. O’Malley convened the hearing on the merits at the William P. Clements Building, 300 West 15^th Street, Austin, Texas. Carrier appeared through its attorney, Mark H. Sickles. Petitioner appeared through its attorney, Peter N. Rogers. After the evidence was presented, the record of the hearing closed on October 11, 2002, when the last closing argument was filed.

There were no contested issues of jurisdiction or notice in this proceeding. Therefore, those matters are set out in the findings of fact and conclusions of law without further discussion here.

III. BACKGROUND, EVIDENCE, AND ANALYSIS

Background

Claimant suffered a compensable wrist injury on________, while working at the___. _____ in Dallas, Texas, as a cafeteria worker. She was diagnosed with carpal tunnel syndrome. The symptoms were primarily in her left wrist. Claimant initially went to see Dr. Michael Katz, who conducted x-rays and referred her to Dr. Michael Doyle, a hand specialist. Dr. Doyle performed injections, which offered Claimant some relief. Surgical intervention was discussed, but Claimant declined. In early 2001, Claimant changed her treating physician to Paul Eggert, D.C. Claimant participated in three months of conservative therapy with Dr. Eggert. Dr. Eggert then prescribed the DME for Claimant in April and May 2001. He prescribed a Pulse Galvanic Stimulator (PGS) at $950.00 for two months ($475.00 each month); Training and Fitting of the PGS at $125.00; Electromesh Garment at $495.00; and Electrodes at $85.00.

Because the documentation did not support the DME and because the DME was provided 2.5 years post injury, the MRD was unable to establish the medical necessity of the DME. The issue in this case is whether DME provided on April 3, 2001, and May 3, 2001, was medically necessary, substantiating reimbursement of $1,655.00.

1. Parties’ Positions and Evidence, and ALJ’s Analysis
2. Petitioner’s Position and Evidence

____of OxyMed testified on behalf of Petitioner. ____testified that OxyMed had filled similar DME prescriptions for similarly situated patients in the regular course of its business, and he believed this case to be no different. Also, according to Petitioner, Dr. Eggert was known as a doctor who had prescribed similar items for his patients in the past. And, Petitioner relied on the expertise of Dr. Eggert when he prescribed DME because OxyMed does not have access to the medical records.

____further testified that since Claimant had been treated for more than two years, she was in chronic pain and needed the DME. For these reasons, Petitioner asserts that it used due

diligence in determining that Dr. Eggert prescribed the DME based on medical necessity.

Carrier’s Position and Evidence

Kellie Timberlake, D.C., testified on behalf of Carrier. She testified that the DME was not medically necessary for Claimant’s injury because DME is typically used to relieve chronic pain for a short time period, but it does not provide long-term care. Since Claimant’s injury was of a lesser nature-mild carpal tunnel-Dr. Timberlake did not believe she needed the DME to relieve her pain. To support her testimony, Dr. Timberlake relied on the November 1998 electrodiagnostic evaluation, which indicated that Claimant suffered mild carpal tunnel syndrome in her left wrist. Carrier Ex. 1, Certified Record at 49. Further, at the time Claimant used the DME, she had returned to work and refused her employer’s offer to work in a different job that would be less stressful on her wrist. Dr. Timberlake further testified that the chart notes for April 26, 2001, and May 1, 2001, indicated that Claimant’s condition was the same, which calls into question the efficacy of the DME used in April and May 2001.

Carrier argues that the DME was not medically necessary, and Petitioner did not carefully evaluate whether the DME was necessary for Claimant for the following reasons. Preauthorization for the purchase of the DME was denied in March 2001. Further, Carrier points out that Dr. Eggert initially requested an electromesh back brace for Claimant, which did not relate to her wrist injury, and Petitioner indicated in its letter of medical necessity that Claimant suffered a traumatic lumbar injury on or about April 3, 1998. Id. at 17-19. Carrier further points out that Dr. Eggert and OxyMed were wrong because the injury occurred on October 9, 1998, and the injury was to her left wrist.

ALJ’s Analysis

The ALJ finds that Petitioner has not met its burden of proof and should not be reimbursed for the following reasons. First, the ALJ does not find that Petitioner used due diligence in determining that the DME was medically necessary. The February 19, 2001 medical necessity letter from Dr. Eggert indicated that he was prescribing an electro mesh back brace. Petitioner then sent out its letter of medical necessity, which referred to the Claimant as suffering from a traumatic lumbar injury. Id. at 17-19. If Petitioner had used due diligence, as it claims, it is doubtful that it would reference a lumbar injury when Claimant actually suffered a wrist injury.^[1] Further, preauthorization for the purchase of the DME was denied for this Claimant. Although the DME was eventually leased instead of purchased, it should have been evident to Petitioner that Carrier would likely deny payment for leased equipment after it refused preauthorization for the purchase of the same equipment one month earlier.^[2]

Additionally, the evidence does not show that Claimant was in chronic pain for two years.^[3] Shortly after Claimant reported her injury in______ , an electro diagnostic evaluation was conducted on November 10, 1998. The nerve conduction studies showed minor slowing of the median and motor nerve distally at the wrist with normal proximal findings. The EMG needle examination showed no abnormal findings. The study concluded that Claimant suffered mild carpal tunnel syndrome in her left wrist. Id. at 49. On December 19, 2000, Dr. Doyle indicated that Claimant was at maximum medical improvement. Id. at 47. Further, at the hearing, Dr. Timberlake testified that there were no objective clinical findings that showed Claimant to be suffering chronic pain in her left wrist in April and May 2001. Also, on May 30, 2001, the required medical examination (RME) showed Claimant to be at maximum medical improvement. The RME also indicated that Claimant was not taking any medications for the pain in her wrist. The RME further stated that Claimant could continue to work in her current capacity. Id. at 46-48. Because Claimant was at maximum medical improvement in December 2000 and May 2001, was not on any medication to relieve her pain, and was able to work, it is unlikely she was in chronic pain in April and May 2001.

The ALJ finds that Petitioner did not meet its burden of proof that the DME was medically necessary; therefore, it should not be reimbursed the amount of $1655.00.

IV. FINDINGS OF FACT

1. Claimant ____ employed as a cafeteria worker for ______ in Dallas, Texas, sustained an injury to her left wrist on________.
2. At the time of the injury, Claimant’s employer had workers’ compensation insurance through Connecticut Indemnity Company (Carrier).
3. In November 1998, the electro diagnostic evaluation concluded that Claimant suffered from mild carpal tunnel syndrome in her left wrist.
4. The nerve conduction studies showed minor slowing of the median and motor nerve distally at the wrist with normal proximal findings.
5. The EMG needle examination showed no abnormal findings.
6. On December 19, 2000, Dr. Michael Doyle determined that Claimant was at maximum medical improvement.
7. In early 2001, Paul Eggert, D.C., became her treating physician. Dr. Eggert began a series of treatment consisting of active and passive modalities, and then on April 3 and May 3, 2001, he prescribed durable medical equipment (DME) for Claimant. He prescribed and OxyMed, Inc. (Petitioner) billed for a Pulse Galvanic Stimulator (PGS) at $950.00 for two months ($475.00 each month); Training and Fitting of the PGS at $125.00; Electromesh Garment at $495.00; and Electrodes at $85.00. Petitioner’s bill to Carrier totaled $1,655.00Bthe amount in dispute.
8. In March 2001, Carrier denied preauthorization for the purchase of the same DME that Petitioner leased for Claimant in April and May 2001.
9. In April and May 2001, there were no objective clinical findings indicating that Claimant was in chronic pain.
10. In May 2001, Claimant was not taking any medications to relieve the pain in her left wrist.
11. In April 2001, Claimant continued to work as a cafeteria worker and refused a job with her same employer that would be less stressful on her left wrist.
12. Claimant’s May 30, 2001, required medical examination (RME) showed Claimant to be at maximum medical improvement. The RME also indicated that Claimant could continue to work.
13. Petitioner seeks reimbursement for the DME in the amount of $1,655.00.
14. Carrier denied reimbursement of the claim, indicating the DME was not medically necessary.
15. Petitioner appealed the Carrier’s reimbursement denial to the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission).
16. On May 17, 2002, the MRD denied Petitioner reimbursement because it was unable to establish the medical necessity of the DME.
17. On July 1, 2002, Petitioner appealed the MRD’s decision.
18. The Commission sent notice of the hearing to the parties on July 25, 2002. The hearing notice informed the parties of the matter to be determined, the right to appear and be represented, the time and place of the hearing, and the statutes and rules involved.
19. The hearing was held on October 3, 2002. Carrier appeared through its attorney, Mark H. Sickles. Petitioner appeared through its attorney, Peter N. Rogers. After the evidence was presented, the record of the hearing closed on October 11, 2002, when the last closing argument was filed.

V. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented, pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 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. Lab. Code Ann. §§402.073 and 413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
3. The Petitioner timely filed notice of appeal of the MRD decision, as specified in 28 Tex. Admin. Code (TAC) § 148.3.
4. Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov’t Code Ann. ch. 2001 and 28 TAC § 148.4(b).
5. Pursuant to 28 TAC §148.21(h) and (i), Petitioner had the burden of proving by a preponderance of the evidence that it should receive total reimbursement for the DME.
6. Petitioner failed to prove that the DME provided to Claimant on April 3, 2001, and May 3, 2001, was medically necessary.
7. Based on the foregoing findings of fact and conclusions of law, Petitioner did not prove that its claim for $1,655.00 should be reimbursed.

ORDER

IT IS HEREBY ORDERED that the request for reimbursement of OxyMed, Inc. is denied as it did not prove that the durable medical equipment provided Claimant____ on April 3, 2001, and May 3, 2001, was medically necessary.

Signed this 18^th day of October 2002.

_______________________________________ MICHAEL J. O’MALLEY
Administrative Law Judge
State Office of Administrative Hearing

1. Ultimately, Petitioner provided Claimant with the correct DME for her wrist, but the faulty documentation calls into question Petitioner’s due diligence.↑
2. Even if preauthorization was not required for the lease of the DME, OxyMed had been put on notice that Carrier might not pay for this equipment when it denied preauthorization for the purchase of the DME.↑
3. ___testimony that Claimant had been in chronic pain for two years was given very little weight by the ALJ because Mr. ____is not a doctor and had no expertise to testify on chronic pain.↑