DECISION AND ORDER

Neuromuscular Institute of Texas, P.A., (Provider) appealed the decision of the Texas Workers’ Compensation Commission’s (Commission) designee, an independent review organization (IRO), in MDR Docket No. M2-02-0803-01, which upheld San Antonio I.S.D.’s (Respondent) denial of preauthorization of biofeedback sessions for a workers’ compensation claimant (Claimant). Respondent denied the sessions as not being medically necessary healthcare. This decision finds Provider is not entitled to preauthorization for the requested biofeedback sessions.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

There were no contested issues of jurisdiction, notice or venue. Therefore, those issues are addressed in the findings of fact and conclusions of law without further discussion here.

The hearing in this matter convened and closed on November 4, 2002, at the State Office of Administrative Hearings, 300 W. 15^th Street, Austin, Texas, with Administrative Law Judge (ALJ) Ann Landeros presiding. By order issued October 3, 2002, and served on Provider, the hearing in this case was set for November 4, 2002. Provider’s attorney did not file a notice of representation until October 11, 2002. Provider failed to inform its attorney of the date and time of the hearing. When the hearing was called, the ALJ made a courtesy telephone call to Provider’s attorney, Hector Martinez, and left a message for him to call immediately. Mr. Martinez did return the call but did not join the hearing until after Respondent had presented its case. Respondent was represented by its attorney Dean Pappas. The Commission was did not participate in the hearing. Although Provider did not present any evidence, the record was left open, by agreement of the parties, for submission of Provider’s written closing argument. The record closed November 12, 2002, after receipt of that argument.

II. DISCUSSION

A. Background Facts

In_______Claimant injured his back and hip, injuries which were compensable under the Texas Workers’ Compensation Act (Act). At the time of the compensable injury, Respondent, as a self-insurer, was responsible for Claimant’s workers’ compensation insurance coverage.

After undergoing hip x-rays, physical therapy, EMG studies, and a functional capacity evaluation, Claimant continued to report groin pain, so his treating physician referred him to Provider for ten sessions of biofeedback training. After Respondent denied the biofeedback sessions as being medically unnecessary, Provider requested the Commission review the denial. That review produced the IRO decision, dated July 30, 2002, which upheld the denial. Provider timely appealed the IRO decision.

B. IRO Decision

As a basis for the decision, the IRO reviewer wrote: “. . . Biofeedback has been shown to be efficacious in migraine patients and not chronic pain patients that have degenerative disc disease and hip arthritis. Therefore, the biofeedback sessions are not medically necessary.” The IRO reviewer apparently believed that the recommended biofeedback sessions were part of or related to a chronic pain management program, which was not shown to be the case.

C. Legal Standards

Petitioner has the burden of proof in this proceeding. 28 TEX. ADMIN. CODE (TAC) §§ 148.21(h) and (i); 1 TAC § 155.41. Pursuant to the Act, an employee who has sustained a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. The employee is specifically entitled to health care that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. TEX. LAB. CODE ANN. §408.021(a). Health care includes all reasonable and necessary medical services including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. § 401.011(31). For a carrier to be liable to reimburse a provider, certain services, including biofeedback, must be preauthorized by the carrier. 28 TAC 134.600(h).

D. Evidence

Provider failed to appear at the hearing in time to present its case and presented no evidence. Respondent presented the testimony of its expert witness, chiropractor Dr. Timothy Fahey. Dr. Fahey stated that, based on his review of Claimant’s medical records, Claimant’s pain was caused by disc dessication and osteoarthritis, conditions related to the aging process. (Claimant was about 60 years old at the time of this referral.) Dr. Fahey reiterated the opinion he expressed in his report dated April 4, 2002, which stated:

Degeneration is not curable but is an ongoing progression of life. This degenerative condition would be inclusive of disc bulges and would naturally be achy regardless of any intervening injuries. This has nothing to do with the effects naturally occurring from his alleged injury, but is related to life. (Exh. 5, p. 7).

Dr. Fahey was familiar with the uses of biofeedback, which has not been shown to be an effective treatment for lower back or associated hip pain.

E. Analysis

The evidence in the record supported the IRO reviewer’s conclusion that the biofeedback sessions were not medically necessary healthcare for Claimant. Provider’s request for preauthorization must be denied.

IV. FINDINGS OF FACT

1. In_______Claimant sustained an injury compensable under the Texas Workers’ Compensation Act (Act).
2. At the time of Claimant’s compensable injury, San Antonio I.S.D.(Respondent) was self-insured for workers’ compensation coverage and responsible for paying for Claimant’s healthcare for the compensable injury.
3. Claimant’s treating physician referred him to Neuromuscular Institute of Texas, P.A. (Provider) for biofeedback sessions to treat ongoing pain in his low back and hip.
4. Biofeedback has not been shown to be efficacious for pain such as Claimant’s.
5. After Respondent denied preauthorization, Provider sought medical dispute resolution with the Texas Workers’ Compensation Commission.
6. After the Commission’s designee, an Independent Review Organization (IRO) upheld Respondent’s denial of preauthorization, Provider timely appealed that decision.
7. By order issued October 3, 2002, and served on Provider, the hearing in this case was set for November 4, 2002.
8. Provider’s attorney did not file a notice of representation until October 11, 2002.
9. Provider failed to inform its attorney of the date and time of the hearing.
10. Pursuant to the Commission’s notice of hearing, which stated the date, time, and location of the hearing and cited to the legals statutes and rules involved along with a short, plain statement of the factual matters involved, Respondent appeared and was represented at the hearing in this matter but Provider’s attorney did not enter an appearance until after Respondent had presented its case. Provider did not present any evidence in this matter.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act (Act), TEX. LABOR 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 § 413.031(d) of the Act and TEX. GOV’T CODE ANN. ch. 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV’T CODE ANN. ch. 2001 and the Commission’s rules, 28 TEX. ADMIN. CODE (TAC) § 133.308.
4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§ 2001.051 and 2001.052.
5. Provider had the burden of proof in this proceeding. 28 TAC §§148.21(h) and (i); 1 TAC § 155.41.
6. Pursuant to the Act, an employee who has sustained a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. The employee is specifically entitled to health care that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. TEX. LAB. CODE ANN. § 408.021(a).
7. Health care includes all reasonable and necessary medical services, including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. §401.011(31).
8. For a carrier to be liable to reimburse a provider for biofeedback, the service must be preauthorized. 28 TAC § 134.600(h).
9. Biofeedback is not medically necessary healthcare for Claimant and should not be preauthorized.

ORDER

It is ORDERED that the request of Neuromuscular Institute of Texas, P.A., for preauthorization of biofeedback for Claimant is denied.

Signed this 2^nd day of December, 2002.

ANN LANDEROS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS