DECISION AND ORDERNUNC PRO TUNC
Continental Casualty Company (Carrier) appealed the findings of the Texas Workers’ Compensation Medical Review Division (MRD), which had approved __________request for preauthorization for a Queen Serta-flex orthopedic mattress, structured weight loss program to include aquatic therapy, and twelve physical therapy sessions. This decision agrees in part with the MRD and ___________(Claimant) and orders preauthorization for the weight loss program to include aquatic therapy and twelve sessions of physical therapy, but denies preauthorization for the purchase of the requested mattress.
PROCEDURAL HISTORY, NOTICE AND JURISDICTION
The hearing convened before Janet R. Dewey, Administrative Law Judge (ALJ) with the State Office of Administrative Hearings, on October 4, 2001, in the Stephen F. Austin Building, 1700 North Congress, Austin, Texas. Attorney Charles Finch appeared and represented the Carrier. Attorney Susan Goggan appeared on behalf of the Commission. The Claimant appeared and was assisted by Luz Loza of the Commission’s Ombudsman’s Office. The record closed the same day. In this proceeding, the Carrier bore the burden of proving by a preponderance of the evidence that the requested treatment and equipment should not have been authorized by the MRD. See 28 Tex. Admin. Code ' 148.21(h) and (i).
The Claimant sustained a compensable work-related injury on________, when her feet were caught under a piece of improperly installed carpet and she fell, injuring both knees and her back. She had a laminectomy and discectomy of the lumbar spine in 1998 but has continued to have pain and discomfort and has been almost entirely immobilized by the injury. Since the time of her injury, she has been unable to work and her activities of daily living have decreased. Due to her inactivity, she has gained 80 pounds. Treatment since her surgery in 1998 has been limited to narcotics and other drugs and four weeks of physical therapy. While the Carrier has preauthorized spinal fusion surgery at the L-5, S-1 level of her spine, doctors have advised her that she must lose weight prior to this procedure.
The Claimant’s treating physician recommends that she attend a weight loss program including aquatic therapy, and physical therapy and that she be provided with an orthopedic mattress. The Carrier denied preauthorization for the weight loss program with aquatic therapy and the mattress. The Carrier stated at the hearing that it had preauthorized twelve sessions of physical therapy. The Carrier, however, has apparently refused to issue an unambiguous letter of preauthorization to the physical therapy provider, insisting on reservation of the issue of compensability. The ALJ, therefore, includes the physical therapy issue in this order, despite the Carrier’s assertions that preauthorization for this service has already been provided.
Entitlement to Medical Benefits
Workers’ compensation insurance covers all medically necessary health care, which includes all reasonable and necessary medical aid, examinations, treatments, diagnoses, evaluations and services. Tex. Lab. Code Ann. ' 401.011 (19)(A) (Vernon Supp. 2000). An employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the compensable injury, as and when needed. Tex. Lab. Code Ann. ' 408.021 (Vernon 1996). The employee is specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment. Id.
Durable Medical Equipment
The Commission’s Medical Fee Guideline (MFG) provides that durable medical equipment refers to those items that (1) can stand repeated use, (2) are primarily used to serve a medical purpose, (3) are not generally useful to in a person in the absence of illness, injury, or disease, and (4) are appropriate for use in the injured worker’s home. 1996 Medical Fee Guideline at 253, adopted under 28 Tex. Admin. Code (TAC) ' 134.201.
THE PARTIES’ POSITIONS
The Carrier denied the weight loss program and aquatic therapy, because it did not believe the Claimant’s weight gain was a result of the industrial accident. The Carrier also denied the mattress as not reasonable. The physical therapy appears to have been preauthorized conditional to any contrary determination regarding compensability. At the hearing, the Carrier primarily focused on denial of the orthopedic mattress arguing the mattress was not reasonable and necessary health care, and that it did not constitute durable medical equipment in that it was an item that is generally useful in the absence of illness and does not primarily serve a medical purpose.
The Claimant testified that she was not morbidly obese prior to her accident, but weighed 170 pounds and was almost five feet six inches tall. She stated that she now weighs 250 pounds and is only five feet two inches tall, having shrunk nearly four inches since her injury. She stated that she used to enjoy kick boxing, bowling and sailing and was generally a very active person. Because of her significant pain and inability to exercise since the accident, she continues to gain weight, although she stated she consumes no more than 1300 calories a day. She was particularly worried about whether she could undergo the preauthorized spinal surgery if she is not able to lose weight. She had gone to the facility offering the weight loss program and aquatic therapy and felt confident that the services offered would provide her the ability to lose weight so that she can get the needed surgery for her back and knees. Dr. Stephen Esses, M.D., the Claimant’s treating physician, wrote that it is imperative for the Claimant to lose weight prior to additional spinal surgery and recommended she be placed in a structured weight loss program with aquatic therapy.
The Claimant also requests preauthorization for the purchase of an orthopedic mattress. The Claimant testified that a durable medical equipment company referred her to the Texas Bed Company, which specializes in orthopedic mattresses and hospital beds. She stated that the requested mattress is durable medical equipment because it is designed for people with back problems and she was specially fit for the mattress. She testified that she does not have any trouble sleeping, but that she must take many drugs in order to sleep without pain.
Dr. Carl Shrontz, M. D. wrote in December of 2000 that the Claimant had tried taking many different types of pain medications, but that a mechanical and cost-effective approach that would help her would be an orthopedic mattress, and he recommended a Serta-flex orthopedic mattress. Dr. Esses wrote on February 9, 2001, that a Serta orthopedic mattress would prevent the Claimant’s sleep from being interrupted.
The MRD reviewed the Carrier’s denial and in its decision issued on July 23, 2001, found that the orthopedic mattress, the weight loss program with aquatic therapy, and the physical therapy were consistent with the Spine Treatment Guideline, 28 TAC 134.1001 and reasonably required within the meaning of sections 408.021 and 401.011(19) of the Texas Labor Code. At the hearing, the Commission argued that the mattress was medically necessary health care that would allow the Claimant to take less medication in order to sleep, and that it was durable medical equipment under the circumstances. Further, the Commission argued that the weight loss program with aquatic therapy is medically necessary health care and should be preauthorized.
ANALYSIS AND RECOMMENDATION
The ALJ finds that the requested mattress is not durable medical equipment under the MFG. While the ALJ agrees with the Commission that the mattress could be considered treatment under the Spine Treatment Guideline, and it does appear that the mattress would be beneficial to the Claimant and would serve a medical purpose, the MFG specifically requires that durable medical equipment generally not be useful in the absence of illness, injury or disease.
The Claimant believes the mattress is designed for people with back problems; however, a brochure for the mattress describes a high quality product generally useful to anyone. The brochure emphasizes comfort and luxury and makes no representation that the mattress set is intended for use by people with back problems, or any other illness. The Claimant stresses that she was fit for the mattress. Nonetheless, there is nothing apparent in the construction or design of the mattress to differentiate it from a mattress useful to a healthy consumer looking for an extremely comfortable mattress.
The ALJ recognizes that the mattress would be beneficial to the Claimant; however, the language of the MFG does not allow for the preauthorization of equipment that would ordinarily be useful in the absence of illness. Therefore, despite the potential medical benefit that the Claimant could derive from sleeping on such a mattress, the Commission’s rules compel the ALJ to find that it is not allowable durable medical equipment.
Weight Loss Program with Aquatic Therapy
The ALJ finds that the request for preauthorization of the weight loss program and aquatic therapy should be granted. It is clear from the record that despite the Claimant’s attempts to lose weight, she has been unsuccessful due to her pain and inactivity. The Carrier’s own reviewing doctor stated that if she wants her back and knee pain to improve and to feel better, she should be placed on a weight reduction program. Ex. 1 at 31. The Carrier apparently believes that the Claimant was morbidly obese prior to the injury and, therefore, it should not pay for weight related claims; however, a brief perusal of her medical history would demonstrate that the Claimant’s weight gain occurred after her injury. At the hearing, the Carrier presented little or no basis justifying its refusal to preauthorize this request.
While the Carrier agreed to preauthorize twelve sessions of treatment at the hearing, the ALJ will include this issue in the order. Further, the fact that the Commission’s rules provide for eight weeks of physical therapy without any preauthorization is certainly not a ground for refusing to preauthorize these services. See 28 TAC 134.600 (h)(10). The Claimant has had roughly four weeks of physical therapy and would clearly benefit from the continuation of these services.
FINDINGS OF FACT
- The Commission issued notice of the hearing on the merits in this matter on August 24, 2001.
- On __________________________(Claimant) sustained a compensable work-related injury when her feet were caught under a piece of improperly installed carpet and she fell, injuring both knees and her back.
- At the time of her injury, Continental Casualty Company (Carrier) was the workers’ compensation carrier for the Claimant’s employer.
- The Carrier denied requested preauthorization for a weight loss program to include aquatic therapy, and a queen size orthopedic Serta-flex mattress costing $1500.
- The Carrier agreed at the hearing to preauthorize twelve sessions of physical therapy for the Claimant.
- The Carrier preauthorized spinal fusion surgery for the Claimant; however, it is necessary that she lose weight prior to the surgery.
- The Claimant has gained eighty pounds since her accident because she is in a great deal of pain and has been inactive.
- The Claimant requests enrollment in a weight loss program including a one year membership provided through the Christus St. Elizabeth Health and Wellness Center (Wellness Center).
- A one year membership at the Wellness Center costs $800.
- Aquatic therapy is provided to members of the Wellness Center.
- A weight loss program and aquatic therapy will enable the Claimant to be more active and lose weight and additionally prepare her for spinal surgery.
- An evaluation performed on August 13, 2001 recommended physical therapy three times a week for four weeks.
- Physical therapy will help the Claimant to increase functional mobility, increase endurance and general fitness, and will provide the Claimant with a home exercise program.
- The weight loss program, aquatic therapy, and physical therapy will relieve the effects naturally resulting from the injury and are reasonably required health care.
- The queen size orthopedic Serta-flex mattress requested by the Claimant could be used in the absence of illness, injury or disease.
CONCLUSIONS OF LAW
- The Commission has jurisdiction to decide the issue presented pursuant to Tex. Lab. Code Ann. ' 413.031 (Vernon 1996).
- 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(b) (Vernon Supp. 2001) and 413.031(d) and Tex. Gov’t Code Ann. ch. 2003 (Vernon 2001).
- Adequate and timely notice of hearing was provided in accordance with Tex. Gov’t Code Ann. '' 2001.051 and 2001.052.
- Preauthorization of the requested queen size orthopedic Serta-flex mattress is not consistent with the Texas Workers’ Compensation Commission’s Medical Fee Guideline, adopted under 28 Tex. Admin. Code ' 134.201.
- Claimant’s participation in twelve sessions of physical therapy and in a weight loss program with aquatic therapy is reasonably required by the nature of the compensable injury. Tex. Lab. Code Ann. '408.021.
- The Claimant should be preauthorized to receive twelve sessions of physical therapy.
- Claimant should be preauthorized for enrollment in the weight loss program and a one year membership at the Wellness Center.
IT IS, THEREFORE, ORDERED that _________________is preauthorized to receive twelve sessions of physical therapy and to enroll in the weight loss program and a one year membership at the Christus St. Elizabeth Health and Wellness Center. _________is not preauthorized to purchase a queen size orthopedic Serta-flex mattress.
Signed this 12th day of November, 2001.
JANET R. DEWEY
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- This Nunc Pro Tunc Order modifies only the style, which contained a typographical error. The order in all other respects is the same as the order issued on November 2, 2001under the same docket number.↑