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At a Glance:
Title:
453-02-0536-m5
Date:
January 16, 2002

453-02-0536-m5

January 16, 2002

DECISION AND ORDER

Great American Insurance Company[1] (Carrier) appealed the findings and decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) in MDR Docket No. M5-01-1809-01, which granted reimbursement to Scientific Therapy and Advanced Treatment (STAT) for rental of a neuromuscular stimulator device to ________(Claimant). The MRD decision, issued October 4, 2001, ordered Carrier to pay STAT $310.00 for the device rental and accompanying supplies. Carrier asserted that the device was not medically necessary for Claimant. This decision finds reimbursement should be denied due to lack of documentation of medical necessity.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

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

The hearing in this matter was held January 9, 2002, at the Hearings Facility of the State Office of Administrative Hearings, Stephen F. Austin Building, Suite 1100, 1700 North Congress Avenue, Austin, Texas, with Administrative Law Judge (ALJ) Ann Landeros presiding. Carrier appeared through its attorney, Gregory Solcher. STAT’s employee, Randy Burgett appeared telephonically and represented the company. Respondent Commission did not participate. The record closed that same day after receipt of evidence and argument.

II. DISCUSSION

A. Background Facts

In _________, Claimant suffered an injury to his shoulder and neck compensable under the Texas Workers' Compensation Act. At the time of his compensable injury, Carrier was the worker’s compensation insurer for Claimant’s employer. Claimant is under the care of Dr. James Elbaor, M.D., for continuing pain in his back, neck, and arms. In July 2000, Dr. Elbaor prescribed a neuromuscular stimulator device for Claimant to relieve chronic back muscle spasms, to increase his range of motion, and to re-educate his muscles. (Exh. 1, p. 21). The prescription was for two months rental of STAT's BMR NT2000 device (NT2000). Carrier declined to pay for the rental.

In its denial letter, dated September 9, 2000, Carrier stated “U-Unnecessary medical treatment or service” as the reason for the denial. By letter dated January 12, 2001, Dr. Elbaor provided Carrier with the following explanation of medical necessity:

___________ has been under my care for the treatment of displacement of lumbar intervertebral disc, sciatica, and cervicalgia. He has experienced constant muscle spasms with noted numbness and tingling radiating into his arms and legs. The patient began using the NT 2000 Neuromuscular Electrical Stimulator on a rental basis on July 31, 2000. The indications for this therapy were to increase range of motion, muscle re-education, pain relief, and relaxation of muscle spasms. It is my strongest recommendation that the rental charges and supplies . . . be covered. The neuromuscular electrical stimulator provided a conservative treatment option to my patient which aided in rehabilitation and, at the same time, offered my patient comfort and relief. (Exh. 1, p.20)

At some point, Carrier was also provided with STAT's brochure, which described the uses and functioning of the NT 2000. (Exh. 1, p. 22-28). In April 2001, Carrier again denied STAT's claim for reimbursement.

B. Legal Standards

Carrier has the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i). 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).

The Commission’s Spine Treatment Guideline (STG), 28 TAC § 134.1001, effective February 2000, sets certain requirements for treatment of spinal maladies. The STG requires a documented treatment plan (including proposed methods, expected outcomes, and probable duration) and documentation substantiating any need to deviate from the STG. 28 TAC § 134.1001 (e)(3)(B)(iii). The treating doctor must demonstrate the appropriateness of all services and the relatedness of all services to the compensable injury. 28 TAC §§ 134.1001(c)(2)(A)(ii) and (iii). Treatment must be based on the injured worker’s need and the doctor’s professional judgment. 28 TAC § 134.1001(e)(1). The STG recognizes three levels of care based on the length of treatment, type of injury, and response to treatment. Additionally, the STG recognizes a post-tertiary level of treatment which is intended to control pain or other symptomology, and maintain functioning.[2]

The STG recognizes that some injured workers may require additional evaluations or modification of a treatment plan. 28 TAC § 134.1001(h)(1)(C). An injured worker may, depending upon clinical indicators, move between the STG’s levels of care or utilize more than one level of care simultaneously. 28 TAC §§134.1001(e)(2)(G) and (g)(1). In general, the most economical form of treatment is preferred. 28 TAC §134.1001(g)(5).

The NT2000 falls within the category of transcutaneous electric nerve stimulator (TENS) type of durable medical equipment. The STG’s Ground Rules states TENS units are for acute pain and usually used for no longer than four to six weeks. 28 TAC 134.1001 (e)(2)(G). Continued use of TENS units beyond four to six weeks should show objective/quantified measures of substantive and continued improvement over time which may include but are not limited to: decreased use of medication; increased function due to pain reduction; and enhanced ability to return to or retain employment. 28 TAC 134.1001(e)(3)(F).

Chronologically, Claimant was at the tertiary or post-tertiary level of care in July 2000. 28 TAC § 134.1001(g)(6). The STG specifically recommends TENS units only for the primary and secondary levels of non-operative care. 28 TAC § 134.1001(g)(7)(A-B). Because the NT2000 was not a recommended treatment for Claimant, Dr. Elbaor, as the treating doctor, needed to justify its rental to Carrier with adequate documentation including a treatment plan and information supporting the need to deviate from the STG's recommended treatments.

C. Analysis

At the hearing, the parties presented only the MRD decision, admitted into evidence as Exhibit 1, and argument. Carrier asked the ALJ to take official notice of the STG sections concerned the TENS unit, which was done.

Crrier argued that STAT failed to provide adequate documentation to show the medical necessity of the NT2000 rental. STAT argued that Carrier's denial letters were inadequate because in addition to using the AU code signifying the equipment was unnecessary, Carrier had an affirmative duty under the Commission's rules to notify STAT what information was lacking. STAT also claimed Dr. Elbaor's letter of January 12, 2001, was adequate documentation to justify the NT2000 rental and asserted that Carrier was raising medical necessity as a basis for the denial for the first time at the hearing. Finally, STAT argued that because the NT2000 can be used for muscle re-education and to increase range of motion, it is not a TENS unit and its use should not be limited to treat acute pain.

STAT provided no information to distinguish the NT2000 from an ordinary TENS unit in function. Whatever the claimed uses for the NT2000, it functions in the same way as a TENS unit, using neuromuscular stimulation by electric shock to achieve its effects. Therefore, it should be classified as a TENS unit when applying the STG. Even if it is not a TENS unit, it is still not a device approved in the STG for treatment of tertiary or post-tertiary back pain, and its use would have to be justified by adequate documentation.

Carrier's denial letters of September 2000 and April 2001 were sufficient to put STAT or Claimant on notice that the Carrier did not believe it had been shown that the device was medically necessary for Claimant. Not only was the “U” code used, its meaning was spelled out in the accompanying phrase “unnecessary medical treatment or service.” Use of this code with the modifier was sufficient to satisfy the Commission’s rule at 28 TAC 133.304(f).

STAT complained Carrier failed to comply with the provisions of the Commission’s rule at 133.304(h), which requires the carrier to provide a copy of the peer review report and list the reviewer’s identity and credentials when denial is based on peer review. The only peer review in the record, done by Dr. Marvin E. Van Hal in September 2000, does not mention use of a TENS unit. (Exh. 1, p. 41). STAT was provided a copy of the peer review, which was submitted as part of the MRD record, so it had an opportunity to review it long before this appeal. Having obtained the peer review report and learned the identity of the reviewer, STAT was not entitled to “lay behind the log” and claim surprise at the hearing.

STAT obviously understood the basis for the initial denial because it submitted Dr. Elbaor's letter in an attempt to prove the device was medically necessary for Claimant. Under the STG, use of a TENS unit (the category into which the NT2000 falls) beyond the secondary level of care requires objective/quantified measures of substantive and continued improvement over time which may include but are not limited to: decreased use of medication; increased function due to pain reduction; and enhanced ability to return to or retain employment. 28 TAC 134.1001 (e)(2)(G); 28 TAC 134.1001(e)(3)(F). STAT did not provide Carrier with any information regarding the objective measurements. Dr. Elbaor's letter did not even include the treatment plan required by the STG. Given the sparseness of documentation provided to Carrier to justify the medical necessity, even after STAT submitted additional information for reconsideration of the claim, Carrier was justified in denying the claim.

With its request for reconsideration, STAT submitted only Dr. Elbaor's letter, which was not sufficient documentation to justify deviation from the STG. None of STAT's documentation clarified what part of Claimant's back the NT2000 treated, so it was not clear that the NT2000 was used to treat pain or other symptoms related solely to the compensable injury.

III. FINDINGS OF FACT

  1. In _____, __________ (Claimant) suffered an injury to his shoulder and neck compensable under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. ch. 401 et seq. (Act).
  2. At the time of Claimant’s compensable injury, Great American Insurance Company (Carrier) was the workers’ compensation insurer for Claimant’s employer.
  3. The NT2000 is a type of TENS unit in that it stimulates muscles via electric shocks.
  4. Claimant suffers from almost constant muscle spasms and pain in his cervical and low back and in his arms.
  5. To treat his muscle spasms and pain, Claimant’s doctor, Dr. James Elbaor, prescribed a neuromuscular stimulator medical device, which was intended to reduce pain, improve range of motion, and re-educate muscles.
  6. In July 2000, Scientific Therapy and Advanced Treatment (STAT) rented a neuromuscular stimulator device, the NT2000, to Claimant.
  7. The Commission's Spine Treatment Guideline (STG) approves use of a TENS unit for claimants at the primary or secondary level of care only for short-term (four to six weeks) of treatment of acute pain.
  8. At all times relevant to this case, Claimant was in the tertiary or post-tertiary level of care under the Texas Workers’ Compensation Commission’s (Commission) Spine Treatment Guideline found at 28 TEX. ADMIN CODE § 134.1001.
  9. In a decision issued October 4, 2001, the Commission’s Medical Review Division approved STAT's claim for reimbursement of $310.00 from Carrier for the rental of the NT2000.
  10. Carrier appealed the MRD's reimbursement order.
  11. All parties were represented at the hearing in this matter.
  12. STAT failed to provide Carrier with adequate documentation to justify rental of the device because there was no documentation showing: Claimant’s treatment plan; the efficacy of the treatment; the use of the NT2000 was for pain or symptoms relating to Claimant's compensable injury to his upper back or extremities; the use was for acute, not chronic pain; or the need to deviate from the STG's recommended treatments.

IV. CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers' Compensation Act (the 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.
  4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§ 2001.051 and 2001.052.
  5. Carrier had the burden of proof in this case. 28 TAC § 148.21(h) and (i).
  6. 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).
  8. The Commission’s Spine Treatment Guideline (STG) specifically recommends TENS units only for the primary and secondary levels of non-operative care. 28 TAC § 134.1001 (g)(7)(A-B).
  9. Under the STG, TENS units are for acute pain and usually used for no longer than four to six weeks. 28 TAC 134.1001 (e)(2)(G).
  10. The STG requires a documented treatment plan (including proposed methods, expected outcomes, and probable duration) and documentation substantiating any need to deviate from the STG. 28 TAC § 134.1001 (e)(3)(B)(iii). The treating doctor must demonstrate the appropriateness of all services and the relatedness of all services to the compensable injury. 28 TAC §§ 134.1001(c)(2)(A)(ii) and (iii).
  11. Based on Finding of Fact No. 13 and Conclusions of Law Nos. 9 - 13, Petitioner failed to provide sufficient documentation to meet the STG’s requirements to establish the medical necessity of the rental of the NT2000 for Claimant.
  12. Based on the foregoing, Carrier is not required to reimburse STAT for the rental of the NT2000 for Claimant.

ORDER

IT IS ORDERED that Carrier Great American Insurance Company is not required to reimburse the rental cost of a neuromuscular stimulator from Scientific Therapy & Advanced Treatment for claimant __________.

Signed this 16th day of January 2002.

ANN LANDEROS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. Carrier’s name was given as “American Alliance Insurance Company c/o Great American Insurance” in the style of the MRD decision.
  2. See, Comments to Adopted Amendments to 28 TAC§ 134.1001, p. 39. The Comment read:
  3. COMMENT: Commenter suggested the addition of language to the third sentence to read “Treatment should be provided. . . maintain function, or correct dysfunction and/or to help . . .” RESPONSE: The Commission disagrees. Post-tertiary treatment is for an injured employee who is receiving interventions at a lower frequency, and receiving periodic medical care. It is the intent of post-tertiary treatment to control pain or other symptomology, including pain management, for the duration of the injury. Furthermore, post-tertiary treatment was developed to enable the injured employee to remain at work. Treatment for the correction of a specific dysfunction would more appropriately occur in either the Initial, Intermediate, or Tertiary Phases of Care. When treatment deviates from the STG, documentation would be required to support the need for treatment.

End of Document
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