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November 25, 2002


November 25, 2002


Oxymed (Provider) appealed the decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) upholding United Pacific Insurance Company’s (Carrier) denial of reimbursement for a cold therapy unit, a showerhead extension, and a moist heating pad provided to a workers’ compensation claimant (Claimant). Carrier had denied reimbursement to Provider on the basis it had failed to demonstrate that these durable medical equipment (DME) items were medically necessary health care.[1] This decision finds Provider is not entitled to reimbursement for these DME items.

I. Jurisdiction, Notice, and Procedural History

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

The hearing in this matter convened September 11, 2002, in Austin, Texas, with Administrative Law Judge (ALJ) Cassandra Church presiding. Provider was represented by its designated representative, Emil Cerullo.[2] Carrier was represented by its attorney, Steven Tipton. The Commission did not participate in the hearing. After submission of written argument, the record closed September 27, 2002.

II. Discussion

In________ his job, an injury compensable under the Texas Workers’ Compensation Act (Act). At the time of the compensable injury, Carrier was the workers’ compensation insurer for Claimant’s employer.

In mid-September 2000, Claimant’s treating doctor, orthopedic surgeon Paul Vaughn, performed a microdiscectomy and decompression on Claimant’s lumbar spine. (Provider Exh.1, p.11). On September 1, 2000, Dr. Vaughn had prescribed a raised toilet seat, a showerhead extension, a cold therapy cooler, and a moist heating pad for Claimant to use after his surgery. The prescription authorized the DME provider to make product selection. The prescription contained a notation that Claimant’s diagnosis was “disc herniation-status post lumbar spine fusion.” (Provider Exh. 1, p. 12). Carrier denied reimbursement for the requested items, except the raised toilet seat, on the basis that the documentation of medical necessity was insufficient.[3] In April 2002, the MRD upheld Carrier’s denial on that basis.

Provider relied on the prescription by Dr. Vaughn, which was a checklist form, and an explanatory letter written by him in connection with the MRD’s review of the claim. In his explanatory letter dated January 8, 2001, Dr. Vaughn wrote:

This is a patient that had a microdiscectomy at L5-S1 for a herniated disc. I ordered a raised toilet seat for him, as well as a showerhead extension hose, shower bench, water-circulating unit, and some moist heat and cooling wraps.

In my opinion, it is medically necessary for the patient to have this durable medical equipment. The raised toilet seat, shower bench, and showerhead extension to help him take showers, and use the toilet for bowel movements, etc. without excessive flexion of her [sic] lumbar spine immediately after her [sic] surgery.[4] I also find the heating and cooling wraps help localized swelling and the circulating water unit with muscle spasm in the post-operative period. (Exh. 1, p. 21).

Overall, Provider argued that Dr. Vaughn’s explanation was sufficient to establish the medical necessity of the requested items B to support Claimant’s recovery from his back surgery.[5]

For its part, Carrier argued that Provider had failed to provide specific clinical facts about the Claimant’s condition that supported the need for these products, arguing that the”vast majority” of back surgery patients do not need such equipment.[6] (Provider Exh. 1, p. 43). However, Carrier provided no medical evidence to support its conclusion as to the medical needs of the ”vast majority” of back surgery patients, within either the general population or within the population of injured workers.

When requesting reimbursement, a DME provider was required tosubmit a letter of medical necessity containing the diagnosis, the prognosis, and the expected duration of use, along with the DME prescription. DME GroundRule IX, Medical Fee Guideline (MFG) 28 TAC §134.201 (repealed effective January 1, 2002).[7] The Commission rules define DME as items that can withstand repeated use; are primarily used to serve a medical purpose; are generally notuseful to a person in the absence of illness, injury or disease; and are appropriate for use in the injured worker’s home. (Emphasis in original). DME Ground Rules, Introduction.

Although adding more detail to the original, terse prescription, Dr. Vaughn’s January 8, 2001, letter fails to meet the criteria set in the DME Ground Rules. That is, it contained the diagnosis, but insufficient detail about the expected duration of use and prognosis and benefits expected from the articles to support reimbursement. It is also of some concern that the letter listed a product that did not appear in the prescription itself, and that the gender of the patient was incorrect. It is of further concern that, although Dr. Vaughn originally gave the DME provider product choice, his later letter of support appears to refer to the product supplied as if it had been prescribed. Taken together, these elements suggest the letter may have been based on a form used generically for back-surgery patients rather than one reflecting this particular Claimant’s medical condition. As such, the doctor’s letter lost much credibility. Further, the original prescription, although bearing the name of the Claimant in this case, references a spine fusion. The letter, more detailed, lists only a discectomy. The two procedures are not the same, which further lessened the credibility of the supporting letter. The ALJ is unable to conclude that the medical evidence that Provider supplied is sufficient to sustain his burden of proof on the medical necessity of the heating and cooling products.[8] Further, the showerhead, while a type of product listed as a potentially reimbursable DME item, is nevertheless an item that could serve either a medical purpose or general household use purpose. The documentation in this case is insufficient to demonstrate its use was “primarily medical,” as required by the DME Ground Rules. In sum, Carrier is not obligated to reimburse Provider for the multi-part cold therapy unit, showerhead extension, and moist heating pad.

II. Findings of Fact

  1. On___________suffered a back injury compensable under the Texas Workers’ Compensation Act and for which Texas Mutual Insurance Company (Carrier) was the responsible insurer.
  2. On September 15, 2000, Dr. Paul Vaughn, M.D., an orthopedic surgeon, performed a microdiscectomy on Claimant for a herniated disc at the L5-S1 level. No spine fusion was performed.
  3. On September 9, 2000, Dr. Vaughn prescribed the following items of durable medical equipment (DME): a cold therapy cooler, a showerhead extension, a raised toilet set, and a moist heating pad. The listed procedure on the prescription was a spine fusion.
  4. The check-off prescription listed the items by general category, only and Dr. Vaughn authorized product selection by the Provider.
  5. Oxymed (Provider) provided Claimant with the prescribed DME items.
  6. Carrier denied reimbursement for the cold therapy cooler, the showerhead extension, and the moist heating pad on the basis that the Provider had failed to document their medical necessity for Claimant’s treatment.
  7. Provider timely requested medical dispute resolution after Carrier denied its request for reimbursement for the DME items.
  8. On April 24, 2002, the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) denied reimbursement to Provider for the DME items.
  9. On May 9, 2002, Provider requested a hearing on the MRD decision.
  10. On June 12, 2002, the Commission issued a notice of hearing that included the date, time, and location of the hearing; the applicable statutes under which the hearing would be conducted; and a statement of matters asserted.
  11. Administrative Law Judge Cassandra Church conducted a hearing on the merits of this case on September 11, 2002, and the record closed on September 27, 2002.
  12. Dr. Vaughn’s January 8, 2001, letter did not contain Claimant’s prognosis or expected or actual duration of Claimant’s use of the DME items, and did not state that Claimant had experienced the conditions for which the products had been prescribed.
  13. The January 8, 2001, letter did not clarify whether the products, described on the prescription as being in aid of recovery from a spine fusion, were similarly necessary for post-surgical treatment of a microdiscectomy of a herniated disk.

III. Conclusions of Law

  1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to 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 Tex. Labor Code §413.031 and TEX. GOV'T CODE ANN. ch. 2003.
  3. Provider timely requested a hearing, as specified in 28 Tex. Admin Code (TAC) § 148.3.
  4. Proper and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§2001.051 and 2001.052.
  5. Provider has the burden of proof in this proceeding pursuant to 28 TAC §§ 148.21(h) and (i); 1 TAC § 155.41.
  6. Provider failed to prove by a preponderance of the evidence that the DME items were reimbursable health care within the meaning of TEX. LAB. CODE ANN. § 408.021(a), and the Medical Fee Guideline (MFG) 28 TAC §134.201, DME Ground Rules (repealed effective January 1, 2002).
  7. Carrier is not obligated to reimburse Provider for the showerhead extension, moist heating pad, or cold therapy unit.


IT IS ORDERED that Oxymed is not entitled to reimbursement from United Pacific Insurance Company for the showerhead extension, moist heating pad, and multi-part cold therapy unit.

Signed November 25, 2002.


Administrative Law Judge

  1. The actual denial code originally used by the Carrier was “T,” meaning “outside the treatment guidelines, and lacking documentation for that extraordinary treatment.” (Provider Exh. 1, P. 22). However, there was no evidence the treatment was outside any treatment guideline, and, had there been no further history of this claim, the ALJ would be inclined to review this case solely on the denial code used. However, a medical cost reviewer did transmit his or her conclusion on medical necessity to the Claimant’s treating physician prior to the formal denial. (Provider Exh. 1, P. 43). Further, Provider himself believed the dispute concerned insufficient documentation of the medical necessity of the items, and the MRD reviewed the claim on that ground. Thus, the ALJ will treat the notice to the Provider as to the actual grounds for denial as sufficient under the facts in this case.
  2. Provider’s attorney, Peter Rogers, filed written closing argument after the record closed.
  3. To be medically necessary, DME items must be cost-effective. Under the Commission’s Spine Treatment Guideline (STG), in effect at the time this claim arose, the treating doctor was responsible for ensuring the cost of services was appropriate. 28 Tex. Admin Code (TAC)§ 134.1001(c)(2)(A). Treatment of a compensable injury had to be evaluated for effectiveness and be cost-effective. 28 TAC § 13.1001(d)(2)(A). However, as the treating doctor is not the party here and as Provider relied on the treating doctor’s prescription, this decision will not address the cost-effectiveness of this treatment versus other, less costly, alternatives. See SOAH Docket No. 453-02-3294.M5 (October 22, 2002; A. Landeros).
  4. According to the TWCC claims form, Claimant is male.
  5. 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. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. § 401.011(31).
  6. Inexplicably, the Carrier later argued that the prescription was written eleven months after the operation, without contemporaneous medical evidence of continuing need. (Respondent Exh. 1). In actuality, the prescription appears to have been written in anticipation of the surgery, so the products would be in place on or before the date of the surgery.
  7. Preauthorization is required for all DME items whose purchase price or expected cumulative rental is in excess of $500 per item. 28 TAC § 134.600(h)(11), as amended effective January 1, 2002. Although it is arguable that the hot/cold unit, pump and pad were, for all practical purposes, a single item of equipment, the MFG segment listing codes for these components treats them as separate items. MFG, p. 272. As the Carrier did not allege lack of preauthorization or improper coding, the ALJ assumes the separation of these items is consistent with industry practice as it existed in 2001.
  8. Petitioner has the burden of proof in this proceeding. 28 TAC§§148.21(h) and (i); 1 TAC § 155.41.
End of Document