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At a Glance:
November 20, 2009
Concurrent Medical Necessity


November 20, 2009


This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and Rules of the Division of Workers’ Compensation adopted thereunder.


A contested case hearing was held on November 16, 2009, to decide the following disputed issue:

  1. Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that Claimant is not entitled to a Tempur-Pedic Mattress for the compensable injury of ___________?


Claimant appeared and was assisted by JT, ombudsman. Carrier appeared and was represented by GP, adjuster.


On ___________, Claimant sustained a compensable injury to his cervical spine and lumbar spine. Since the date of the injury, Claimant has been provided several mattresses by Carrier but still can not sleep well. His current treating doctor has now recommended a Tempur-Pedic mattress. After adverse utilization review, the IRO again determined that a Tempur-Pedic mattress is not health care reasonably required for the compensable injury.

Texas Labor Code Section 408.021 provides that 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. Health care reasonably required is further defined in Texas Labor Code Section 401.011 (22a) as health care that is clinically appropriate and considered effective for the injured employee's injury and provided in accordance with best practices consistent with evidence based medicine or, if evidence based medicine is not available, then generally accepted standards of medical practice recognized in the medical community. Health care under the Texas Workers' Compensation system must be consistent with evidence based medicine if that evidence is available. Evidence based medicine is further defined in Texas Labor Code Section 401.011 (18a) to be the use of the current best quality scientific and medical evidence formulated from credible scientific studies, including peer-reviewed medical literature and other current scientifically based texts and treatment and practice guidelines. The Commissioner of the Division of Workers' compensation is required to adopt treatment guidelines that are evidence-based, scientifically valid, outcome-focused, and designed to reduce excessive or inappropriate medical care while safeguarding necessary medical care. Texas Labor Code Section 413.011(e). Medical services consistent with the medical policies and fee guidelines adopted by the commissioner are presumed reasonable in accordance with Texas Labor Code Section 413.017(1).

In accordance with the above statutory guidance, the Division of Workers' Compensation has adopted treatment guidelines by Division Rule 137.100. This rule directs health care providers to provide treatment in accordance with the current edition of the Official Disability Guidelines (ODG), and such treatment is presumed to be health care reasonably required as defined in the Texas Labor Code. Thus, the focus of any health care dispute starts with the health care set out in the ODG. Also, in accordance with Division Rule 133.308 (t), "A decision issued by an IRO is not considered an agency decision and neither the Department nor the Division are considered parties to an appeal. In a Contested Case Hearing (CCH), the party appealing the IRO decision has the burden of overcoming the decision issued by an IRO by a preponderance of evidence-based medical evidence."

In making the adverse determination to Claimant, the IRO relied upon the ODG under "Low-Back-Mattress Selection, as follows:

Not recommen[d]ed to use firmness as sole criteria. In a recent RCT, a waterbed (Aqva) and a body-contour foam mattress (Tempur) generally influenced back symptoms, function, and sleep more positively than a hard mattress, but the differences were small. The dominant problem in this study was the large amount of dropouts. The predominant reason for dropping out before the trial involved the waterbed, and there was some prejudice towards this type of mattress. The hard mattress had the largest amount of test persons who stopped during the trial due to worsening LBP, as users were more likely to turn around in the bed during the night because of pressures on prominating body parts. (Bergholdt, 2008) Another clinical trial concluded that patients with medium-firm mattresses had better outcomes than patients with firm mattresses for pain in bed, pain on rising, and disability; a mattress of medium firmness improves pain and disability among patients with chronic non-specific low-back pain. (Kovacs, 2003) There are no high quality studies to support purchase of any type of specialized mattress or bedding as a treatment for low back pain. Mattress selection is subjective and depends on personal preference and individual factors.

Claimant failed to offer evidence based medicine to contradict the findings of the IRO. Therefore, he is not entitled to a Tempur-Pedic mattress.

Even though all the evidence presented was not discussed, it was considered. The Findings of Fact and Conclusions of Law are based on all of the evidence presented.


  1. The parties stipulated to the following facts:

A.Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.

B.On ___________, Claimant was the employee of (Employer), when he sustained a compensable injury.

  • Carrier delivered to Claimant a single document stating the true corporate name of Carrier, and the name and street address of Carrier’s registered agent, which document was admitted into evidence as Hearing Officer’s Exhibit Number 2.
  • A Tempur-Pedic mattress is not health care reasonably required for the compensable injury of ___________.

    1. The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case.
    2. Venue is proper in the (City) Field Office.
    3. The preponderance of the evidence is not contrary to the decision of the IRO that a Tempur-Pedic mattress is not health care reasonably required for the compensable injury of ___________.


    Claimant is not entitled to a Tempur-Pedic mattress for the compensable injury of ___________.


    Carrier is not liable for the benefits at issue in this hearing. Claimant remains entitled to medical benefits for the compensable injury in accordance with §408.021.

    The true corporate name of the insurance carrier is AMERICAN HOME ASSURANCE COMPANY, and the name and address of its registered agent for service of process is



    AUSTIN, TEXAS 78701

    Signed this 20th day of November, 2009.

    Charles T. Cole
    Hearing Officer

    End of Document