DECISION AND ORDER

O.G., (Claimant) seeks an order from the State Office of Administrative Hearings (SOAH) to reverse the decision of the City of McAllen denying preauthorization for a custom knee brace for Claimant.^[1] The Texas Workers= Compensation Commission (TWCC) Medical Review Division referred the dispute to an Independent Review Organization (IRO) for an Independent Review Decision (IRD). The IRO issued an IRD in favor of the City of McAllen, and Claimant filed a notice of appeal. TWCC’s Legal Services Division referred the dispute to SOAH for a hearing and final administrative decision and order. Following a hearing, the ALJ finds that Claimant is not entitled to preauthorization for the custom knee brace.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

Jurisdiction and notice were not disputed. Both are addressed in the Findings of Fact and Conclusions of Law.

The hearing was convened and closed on January 28, 2004, before ALJ Paul Keeper. Claimant represented himself in the hearing, and James Sheffield represented the City of McAllen. Claimant called himself as a witness, and Mr. Sheffield called Gary Polizzotto, D.C., by telephone following a prior motion and order.

II. LEGAL STANDARDS

Section 408.021 of the Texas Labor Code states:

(a)An employee who sustains 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:

1. cures or relieves the effects naturally resulting from the compensable injury;
2. promotes recovery; or
3. enhances the ability of the employee to return to or retain employment.

Section 401.11(19) defines “health care” to include Aall reasonable and necessary medical aid, medical examinations, medical treatments, medical diagnoses, medical evaluations, and medical services.

Claimant, the petitioner, has the burden of proof in this matter. 28 TAC ‘148.21(h).

III. DISCUSSION

Background. Claimant was prescribed a knee brace^[2] following an operation on his right knee on July 15, 2003.^[3] On July 25, 2003, Crawford and Company, the utilization management agent for the City of McAllen, preauthorized a prefabricated knee brace.^[4] Claimant testified that the knee brace he received made his knee pop and caused him to be unsteady on his feet.

Shortly following Claimant’s operation, he complained about the brace to his physician, Pete E. Garcia, M.D. On July 28, 2003, Dr. Garcia prescribed a custom knee brace for Claimant.^[5] On September 11, 2003, Crawford and Company denied preauthorization for the custom knee brace as medically unnecessary Abased on the lack of sufficient clinical information to support a custom knee brace, along with the fact an over-the-counter knee brace is sufficient to limit range of motion and position the patella in correct alignment.^[6]

On August 22, 2003, and on January 8, 2004, Dr. Garcia wrote letters to Crawford and Company in which Dr. Garcia expressed his opinion in support of the medical necessity for a custom knee brace.^[7], ^[8]

Testimony of O.G. Claimant testified on his own behalf about his surgery, his dissatisfaction with the prefabricated knee brace, and his need for a custom brace. Claimant’s Exhibits 1, 2-4, 7, 8, and 10 were admitted into evidence. On cross-examination, Claimant testified that he had not worn the brace since 2003 because of the discomfort caused by the device.

Testimony of Dr. Polizzotto. The City of McAllen called Dr. Polizzotto as its witness. Dr. Polizzotto’s testimony was that custom knee braces usually are not medically necessary when knee braces are required for periods of relatively short duration. Dr. Polizzotto explained that Claimant’s operation would not require him to use a knee brace for an extended period of time, but that a knee brace was medically necessary.

Dr. Polizzotto testified that a patient with Claimant’s type of medical condition will experience changes in musculature as the patient’s leg improves. As a result, the patient will need a knee brace that may be adjusted for the changes in the patient’s condition. A custom knee brace is less adjustable than a prefabricated knee brace and, thus, is less preferable. Dr. Polizzotto added that prefabricated knee braces are usually returnable to the durable medical equipment distributor for a period of up to one year following prescription if patients are dissatisfied with their performance.

Dr. Polizzotto also testified that he was the physician for the utilization review of Claimant’s prescription and that he had recommended denial of the custom brace as not medically necessity.

In reviewing the IRD, Dr. Polizzotto noted that the IRO had concurred that a custom knee brace was not medically necessary under these circumstances.

IV.ANALYSIS AND RECOMMENDATION

Claimant’s discomfort with his prefabricated knee brace requires careful consideration. The evidence reveals that Dr. Garcia has recommended or prescribed the custom knee brace and that Claimant is not well served by the original knee brace.

However, neither Dr. Garcia’s recommendation nor Claimant’s discomfort are the same as medical necessity under the terms of the law administered by TWCC. While Claimant proved the medical necessity of a knee brace in the treatment of his knee problem, he failed to demonstrate the need for a custom knee brace. The evidence indicates that a properly fitted, prefabricated brace not only should serve him well, but also may be better than a custom brace.

Therefore, because the record does not support Claimant’s request for preauthorization, the ALJ determines that Claimants= appeal should be denied.

V. FINDINGS OF FACT

1. O.G. was prescribed a knee brace following an operation on his right knee on July 15, 2003.
2. On July 25, 2003, Crawford and Company, the utilization management agent for the City of McAllen, preauthorized a prefabricated knee brace.
3. The prefabricated knee brace made O.G.’s knee pop and caused him to be unsteady on his feet.
4. On July 28, 2003, O.G.’s physician, Dr. Pete Garcia, prescribed a custom knee brace for Cliamant.
5. On September 11, 2003, Crawford and Company denied preauthorization for the custom knee brace as medically unnecessary.
6. Custom knee braces are usually not medically necessary when they are used for periods of relatively short duration.
7. O.G.’s operation will not require him to use a knee brace for an extended period of time, but the use of a knee brace is medically necessary.
8. Custom knee braces are less desirable than prefabricated knee braces for O.G.’s medical condition because custom braces are less easily adjustable.
9. Since adjustability of a brace is important as the patient’s musculature changes, a custom knee brace is less appropriate and is not medically necessary.
10. Prefabricated knee braces are usually returnable to the durable medical equipment distributor for a period of up to one year following prescription in the event that patients are dissatisfied with their performance.

VI. CONCLUSIONS OF LAW

1. The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code ch. 401 et seq.
2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order. Tex. Lab. Code ‘ 413.031; Tex. Gov=t Code ch. 2003.
3. An employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. Tex. Lab. Code ‘ 408.021.
4. Adequate and timely notice of the hearing was provided in accordance with the Administrative Procedure Act. Tex. Gov=t Code ” 2001.051 and 2001.052.
5. Claimant has the burden of proof in this matter. 28 TAC ‘148.21(h).
6. Claimant failed to prove that a custom knee brace was reasonably required or medically necessary under the Act, as reflected in the foregoing Findings of Fact.

ORDER

IT IS ORDERED THAT O.G. is not entitled to preauthorization from the City of McAllen for a custom knee brace.

Signed on February 2, 2004.

PAUL D. KEEPER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The City of McAllen is a self-funded subscriber to the Texas Workers= Compensation program.↑
2. OG Exhibit 10 at 1. The prescription did not specify a custom knee brace. Mr. Gonzalez was provided with a prefabricated knee brace.↑
3. OG Exhibit 3 at 1.↑
4. City of McAllen 1 at 1.↑
5. OG Exhibit 8 at 1.↑
6. City of McAllen Exhibit 2.↑
7. OG Exhibit 4 at 1.↑
8. OG Exhibit 1 at 1.↑