DECISION AND ORDER
This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and the Rules of the Texas Department of Insurance, Division of Workers’ Compensation. For the reasons discussed herein, the Hearing Officer determines that Claimant is not entitled to a rehab room from February 13, 2015, through September 19, 2015, for the compensable injury of (Date of Injury).
STATEMENT OF THE CASE
A contested case hearing was held on September 28 2013, to decide the following disputed issue:
- Is the preponderance of the evidence contrary to the decision of the Independent Review Organization that Claimant is not entitled to a rehab room from February 13, 2015, through September 19, 2015, for the compensable injury of (Date of Injury)?
Petitioner/Claimant appeared and was represented by HA, attorney. Respondent/Carrier appeared and was represented by JS, attorney.
The following witnesses testified:
For Claimant: BS, M.D.
For Carrier: None
The following exhibits were admitted into evidence:
Hearing Officer’s Exhibits HO-1 and HO-2.
Claimant’s Exhibits C-1 through C-7.
Carrier’s Exhibits CR-A through CR-K.
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 (22-a) 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 (18-a) 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, in making decisions for the care of an individual patient. 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. The focus of any health care dispute starts with the health care set out in the ODG.
Claimant sustained a compensable right ankle fracture on (Date of Injury). He underwent surgery for the fracture that include the implantation of hardware. Claimant is an older gentleman and is diabetic. As a result of comorbidities, Claimant experienced significant healing problems and had to undergo plastic surgery to address non-healing wounds. As a result of the additional problems, Claimant was non-weightbearing on his right leg and he used a wheelchair for a number of months. During the time that he was in the wheelchair, Claimant rented a wheelchair-accessible room at a Townplace Suites, an extended-stay hotel in (City). Claimant refers to that room as a “rehab room.” Claimant contends that the wheelchair-accessible room is health care reasonably required for his compensable injury and requested reimbursement for the money he spent staying in the hotel for approximately seven months, from early February of 2015, through August or September of 2015. During part of the time he was staying at the hotel, Claimant underwent outpatient physical therapy. He also had several surgeries that necessitated overnight stays in the hospital. Despite not being at the hotel while in the hospital for the surgeries, Claimant kept the room to avoid the possibility that someone else would rent it and he would be unable to return to the hotel after being discharged from the hospital. Claimant did not receive any medical care or treatment in the hotel; it was simply a place to stay. He and his wife decided to seek alternate living arrangements because of difficulty in navigating his home and his daughter’s home (where he stayed for a very brief period) in the wheelchair. There was no prescription for the use of the wheelchair tendered into evidence and the evidence failed to show that the use of wheelchair accessible housing, although certainly more convenient for Claimant and his family, was medically necessary.
Claimant contends that he should be reimbursed for the use of the hotel room because someone, who could be a social worker or nurse case manager for Carrier, told him that she was familiar with the types of rooms at the hotel and that she saw no reason why Carrier would not allow the room to be direct billed. Despite that reported assurance, there was no contact with Claimant’s adjuster about the room until August of 2015. Claimant’s wife testified that she called the adjuster about the room and was told that Carrier would not pay for a hotel room. Ms. (wife) testified that the adjuster was rude, so she hung up on her. The next contact between Claimant and Carrier about the request for reimbursement appears to have been made in January of 2016 when Claimant, through his attorney, submitted a request for reimbursement of the money spent by Claimant to pay for the hotel room. The bill of charges tendered by the attorney on Claimant’s behalf included charges for the room from February 3, 2015, through August 12, 2015. Claimant currently seeks reimbursement for the hotel room from February 13, 2015, through September 19, 2015. There is no documentation to support the request for reimbursement for the period beginning on August 13, 2015, and continuing through September 19, 2015.
In January of 2016, Claimant requested that Carrier reimburse him for the use of the hotel room. Claimant’s request for reimbursement of the hotel room, characterized the room as a “rehab room,” was submitted to a utilization review agent. The utilization review agent recommended that the reimbursement request be denied; and it was. Claimant requested reconsideration of his request. It was denied a second time. Claimant then availed himself of the Independent Review Organization appeal process for denial of health care. After considering the request, the Independent Review Organization’s physician reviewer agreed with Carrier’s utilization review agents and upheld Carrier’s denial of the request for reimbursement. Claimant then appealed the Independent Review Organization’s decision to the Division.
A decision issued by an Independent Review Organization (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. (Division Rule 133.308(s).) The ODG does not address the use of wheelchair accessible accommodations and Claimant did not offer any other evidence based medical evidence to substantiate the need to stay in a wheelchair accessible “rehab” room.
The Hearing Officer considered all of the evidence admitted. The Findings of Fact and Conclusions of Law are based on an assessment of all of the evidence whether or not the evidence is specifically discussed in this Decision and Order.
FINDINGS OF FACT
- The parties stipulated as follows:
A.Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
B.On (Date of Injury), Claimant was the employee of (Carrier), Employer.
C.On (Date of Injury), Employer provided workers’ compensation insurance through (Carrier), Carrier.
D.Claimant sustained a compensable injury on (Date of Injury).
E.The TDI appointed Magnolia Reviews of Texas, LLC, as the independent review organization in this matter.
CONCLUSIONS OF LAW
- The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case.
- Venue is proper in the (City) Field Office.
- A rehab room from February 13, 2015, through September 19, 2015, is not reasonably required health care for the compensable injury of (Date of Injury).
Claimant is not entitled to a rehab room from February 13, 2015, through September 19, 2015, for the compensable injury of (Date of Injury).
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 Section 408.021.
The true corporate name of the insurance carrier is (Carrier) and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TX 75201-3136
Signed this 3rd day of October, 2016.
KENNETH A. HUCHTON