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At a Glance:
Title:
453-02-3294-m5
Date:
October 22, 2002
Status:
Retrospective Medical Necessity

453-02-3294-m5

October 22, 2002

DECISION AND ORDER

Liberty Mutual Fire Insurance Company (Petitioner) appealed the decision and order of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) in MDR Docket No. M5-02-0327-01, which granted reimbursement for an EBIce Machine provided by Scientific Therapy and Advanced Treatment (Provider) to a workers’ compensation claimant (Claimant). Petitioner had denied reimbursement to Provider claiming the EBIce Machine was not medically necessary healthcare. This decision finds Petitioner is not liable to reimburse Provider for the device.[1]

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 and the record closed on September 17, 2002, at the State Office of Administrative Hearings, 300 W. 15th Street, Austin, Texas, with Administrative Law Judge (ALJ) Ann Landeros presiding. Petitioner was represented by its attorney, Mahon Garry. Respondent was represented by its designated representative, Nicky Otts. The Commission did not participate in the hearing.

II. DISCUSSION

A. Background Facts

In______, Claimant injured his back, an injury compensable under the Texas Workers’ Compensation Act (Act). At the time of the compensable injury, Petitioner was the workers’ compensation insurer for Claimant’s employer.

On November 17, 2000, Claimant’s treating doctor, orthopedic surgeon Dr. Lawrence Lenderman, prescribed “cold therapy-lumbar w/pad” for Claimant. This prescription was pre-printed with Petitioner’s name, logo, address, and telephone numbers, and was entitled “Prescription & Letter of Medical Necessity.” Handwritten in the designated blanks were the names of Claimant, Dr. Lenderman, and a hospital, along with the date of “11-17-00" and a diagnosis/ICD9 Code. The prescription listed available items with a “check off” box for designating the prescribed item. The form contained the following statement:

Letter of Medical Necessity. I, [sic] hereby certify that the products prescribed above, in my professional opinion are reasonable and necessary with reference to the accepted standards of medical practice and treatment of the conditions indicated.

The form was signed by Dr. Lenderman at the bottom. (Exh. 1, p. 25).

Claimant had surgery on his lumbar back on November 30, 2000. In a letter to Petitioner dated July 30, 2001, Dr. Lenderman wrote:

[Claimant] has been under my care for the treatment of displacement of lumbar intervertebral disc. The patient was dispensed an EBIce Machine and Cybertech chair-back brace to aide [sic] in the recovery of displacement of lumbar intervertebral disc. It is my opinion that the continued home use of the EBIce Machine and Cybertech chair-back brace will expedite his recovery. (Exh. 1, p. 19).

Petitioner declined to reimburse the $495 charged by Provider for the EBIce Machine.[2] Petitioner claimed that the device was not medically necessary. The MRD agreed with Provider and awarded reimbursement for the full amount billed. Petitioner timely appealed the MRD decision and order.

B. Legal Standards

Entitlement To Health Care

Petitioner has the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i); 1 TAC §155.41. 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).

Under the Commission’s former Spine Treatment Guideline (STG), in effect at the time this claim occurred, the treating doctor was responsible for ensuring the cost of services was appropriate.[3] 28 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).

The DME Ground Rule IX, formerly found in the Commissions Medical Fee Guideline at 28 TAC § 134.1000, required that, with its bill, the provider submit a letter of medical necessity (containing the diagnosis, the prognosis, and the expected duration of use) along with the DME prescription.

C. Evidence

Provider submitted a claim for reimbursement dated December 15, 2000. (Exh. 1, p. 18) Petitioner denied that claim in January 2001. (Exh. 1, p. 13). It was not clear from the record what, if any, documentation was submitted with the original claim or the subsequent request for reconsideration, but, except for the prescription, the record lacked any statement of medical necessity from Dr. Lenderman until his July 2001 letter. Neither the prescription nor Dr. Lenderman’s letter stated Claimant’s prognosis or his expected duration of use of the EBIce Machine.

Both parties submitted articles and abstracts regarding the efficacy of use of cold therapy. Most of these discussed studies performed on patients who used cold therapy within the first few days after surgery. None specifically addressed the use of cold therapy, whether with a machine or an ice-pack, as a long-term treatment. The articles and abstracts stated different conclusions about the efficacy of use of cold therapy in the immediate post-surgical period. Some found it significantly reduced pain and swelling, while others concluded it did not. (Exhs. 3, 5).

Petitioner’s expert witness, orthopedic surgeon Dr. Nick Tsourmas, testified by affidavit that, in his opinion, cold therapy was beneficial to a lumbar laminectomy patient only during the immediate post-surgical period, but would have no therapeutic benefit following recovery from surgery. Dr. Tsourmas also stated that an ice machine would not be more effective in administering cold therapy than an ice pack (which cost only a few dollars), so that purchase of the EBIce Machine for use during the post-surgical period would not be cost-effective. (Exh. 2).

D. Analysis

The record was devoid of evidence that showed the EBIce Machine was medically necessary for Claimant in the sense that it was a cost-effective means of providing cold therapy or was useful after the first few days post-surgery. The record established that cold therapy is widely used for the the first few days after surgery. Thereafter, the efficacy of any cold therapy, including a device such as the EBIce Machine, is disputed. Dr. Lenderman did not explain why Claimant needed cold therapy for more than the first few days after surgery, and he did not state why the EBIce Machine was preferable to an ice pack. His letter of July 2001 simply stated a conclusion--he believed the EBIce Machine would expedite Claimant’s recovery. Because it did not state the facts upon which this belief was based, Dr. Lenderman’s letter did not suffice to establish medical necessity. Nor was medical necessity established in the cursory and conclusionary “Letter of medical necessity” on Provider’s preprinted prescription form. Dr. Lenderman did not state that he had evaluated the EBIce Machine for effectiveness for short or long-term cold therapy or that it was a cost-effective manner of administering cold therapy.

Without some information about why this specific Claimant needed this specific device to obtain the benefits of cold therapy, there is simply nothing to establish the EBIce Machine was medically necessary.

Petitioner met its burden to show that the record lacked sufficient information to establish that the EBIce Machine was medically necessary for Claimant. Petitioner is not liable to reimburse Provider for the EBIce Machine provided Claimant.

III. FINDINGS OF FACT

  1. In______, Claimant suffered a back injury compensable under the Texas Workers’ Compensation Act and for which Liberty Mutual Fire Insurance Company (Petitioner) was the responsible insurer.
  2. On November 30, 2000, Claimant had surgery on his lumbar back.
  3. Prior to the surgery, Dr. Lawrence Lenderman, M.D., Claimant’s treating doctor, prescribed Acold therapy-lumbar w/pad” for Claimant, using Scientific Therapy and Advanced Treatment’s (Provider) preprinted, check-off prescription form (prescription form).
  4. The prescription form was signed by Dr. Lenderman and contained the following statement:
  5. Letter of Medical Necessity. I, [sic] hereby certify that the products prescribed above, in my professional opinion are reasonable and necessary with reference to the accepted standards of medical practice and treatment of the conditions indicated.
  6. The use of cold therapy in the first few days after surgery is an accepted medical practice but its efficacy is disputed, and there is no consensus of its value for long-term therapy.
  7. Based on Dr. Lenderman’s prescription, Provider supplied Claimant with an EBIce Machine for the cold therapy.
  8. Provider billed Petitioner $495 for the EBIce Machine.
  9. Petitioner denied reimbursement for the EBIce Machine.
  10. After the Commission’s Medical Review Division ordered reimbursement for the EBIce Machine, Petitioner timely appealed.
  11. Pursuant to notice sent by Commission Staff, Petitioner and Provider appeared and were represented at the hearing. Staff chose not to participate in the hearing.
  12. Except for the statement in the prescription, the only other statement about medical necessity for the EBIce Machine in the record was Dr. Lenderman’s letter dated July 30, 2001, in which he wrote:
  13. [Claimant] has been under my care for the treatment of displacement of lumbar intervertebral disc. The patient was dispensed an EBIce Machine and Cybertech chair-back brace to aide [sic] in the recovery of displacement of lumbar intervertebral disc. It is my opinion that the continued home use of the EBIce Machine and Cybertech chair-back brace will expedite his recovery. (Exh. 1, p. 19).
  14. Neither the letter of medical necessity on the prescription nor Dr. Lenderman’s July 2001 letter contained specific information about why Claimant needed this specific device to obtain cold therapy or why Claimant would benefit from long-term cold therapy.
  15. Cold therapy can be administered by a device such as the EBIce Machine, which costs hundreds of dollars, or by an ice pack, which costs only a few dollars. Based on the record provided, there was no basis to believe the EBIce machine was a cost-effective means of delivering cold therapy to Claimant or that it would be efficacious as long- term therapy.

IV. CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers' Compensation Act (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 and the Commission’s rules, 28 TEX.ADMIN.CODE (TAC) § 133.305(g).
  4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§ 2001.051 and 2001.052.
  5. Petitioner has the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i); 1 TAC § 155.41.
  6. 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).
  7. 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).
  8. Under the Commission’s former Spine Treatment Guideline (STG), in effect at the time this claim occurred, the treating doctor was responsible for ensuring the cost of services was appropriate. 28 TAC § 134.1001(c)(2)(A).
  9. Treatment of a compensable injury had to be evaluated for effectiveness and cost-effective. 28 TAC § 13.1001(d)(2)(A).
  10. The EBIce Machine provided Claimant was not medically necessary because it was not cost-effective nor shown to be effective for long-term therapy.
  11. Petitioner is not liable to reimburse Provider for the EBIce Machine.

ORDER

IT IS ORDERED that Liberty Mutual Fire Insurance Company is not liable for reimbursement of the cost of the EBIce Machine provided by Scientific Therapy and Advanced Treatment to Claimant.

Signed this 22nd day of October, 2002.

ANN LANDEROS
Administrative Law Judge

  1. In MDR Docket No. M5-02-0327-01, the MRD declined to order reimbursement claimed by Provider for a chair brace. Provider did not appeal that denial and so it was not part of this case.
  2. Although it was not clear from the record, the device was apparently purchased by Claimant from Provider, rather than rented.
  3. All references to the STG are to that amended version effective February 2000, which were repealed along with the Medical Fee Guideline, effective January 1, 2002.
End of Document
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