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At a Glance:
Title:
453-02-3364-m5
Date:
October 22, 2002
Status:
Retrospective Medical Necessity

453-02-3364-m5

October 22, 2002

DECISION AND ORDER

_____ (Claimant) has appealed an amended decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission). In its amended decision, MRD denied reimbursement to Claimant for purchase of a modified van as not being medically necessary. In this decision, the Administrative Law Judge (ALJ) finds that Claimant has failed to meet his burden of showing that the van it purchased was reasonable and medically necessary for Claimant’s compensable injury. Therefore, the ALJ concurs with the amended MRD decision which denied reimbursement for Claimant.

The hearing was convened on August 29, 2002, before Steven M. Rivas, ALJ. Claimant appeared and was assisted by Luz Loza, Ombudsman. Travelers Indemnity Company of America (Carrier) was represented by Dan Flanagan. The Commission was represented by Susan Goggan, attorney. The record closed the same day.

I. DISCUSSION

Background Facts

Claimant was an employee of _______in______, Texas, when he suffered a compensable injury on_______, while loading tires.[1] As part of his treatment, Claimant was referred to Patrick W. Donovan, M.D., who prescribed Claimant a modified van to accommodate Claimant’s new wheelchair.[2] Claimant purchased a Dodge Conversion Minivan totaling $44148.8(b).[3] On May 13, 2002, the MRD issued an amended order denying Claimant any reimbursement for the van other than the cost of modifications previously paid by Carrier. Claimant filed a request for hearing before SOAH seeking additional reimbursement.

Applicable Law

The Texas Labor Code contains the Texas Workers’ Compensation Act (the “Act”) and provides the relevant statutory requirements regarding compensable treatment for workers’ compensation claims. In particular, Tex. Lab. Code Ann. §408.021 provides in pertinent part: (a) 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. The employee is specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the compensable injury; (2) promotes recovery; or (3) enhances the ability of the employee to return to or retain employment.

* * *

Under Tex. Lab. Code Ann. §401.011(19) health care “includes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services.”

* * *

Under Tex. Lab. Code Ann. §401.011(31)medical benefit means payment for health care reasonably required by the nature of a compensable injury and intended to: (A) cure or relieve the effects naturally resulting from the compensable injury, including reasonable expenses incurred by the employee for necessary treatment to cure and relieve the employee from the effects of an occupational disease before and after the employee knew or should have known the nature of the disability and its relationship to the employment; (B) promote recovery; or (C) enhance the ability of the employee to return to or retain employment.

A. Analysis

Testimony of Claimant and Dr. Donovan

The evidence reflects Claimant was relegated to the use of a wheelchair shortly after the injury. Additionally, at the time of the injury, Claimant’s primary mode of transportation was a 1997 Nissan Sentra. Claimant’s treating doctor, Dr. Donovan, concluded Claimant could not conceivably modify his vehicle with the necessary adjustments that would accommodate his wheelchair so he prescribed a modified van capable of housing Claimant’s wheelchair and fitted with hand controls so that Claimant could operate the van with his hands. After forwarding the prescription for the modified van to the Carrier, it was Claimant’s understanding that he was suppose to look for a modified van, forward a price quote to the Carrier, and purchase the van. Based on his conversations with Carrier, Claimant believed he would be reimbursed for the entire van, not just the modifications. Claimant subsequently purchased the van and requested reimbursement for the entire van, including the modifications. Claimant had no documentation to indicate Carrier’s agreement that he would be reimbursed the total price of the van with modifications.

Testimony of Debbie Thomas

Debbie Thomas, a claims representative employed by Carrier, testified on behalf of Carrier that she has been a licensed adjuster for 14 years, and is very familiar with this claim. Ms. Thomas spoke to Claimant on several occasions and never agreed, nor suggested to Claimant, that Carrier would reimburse Claimant for the entire cost of the van. Ms. Thomas testified she told Claimant that Carrier would reimburse Claimant for the cost of the modifications only.

On cross examination, Ms. Thomas denied ever telling Claimant that if he purchased a modified van, the Carrier would reimburse Claimant for the total amount of the van including the modifications.

Entitlement to Reimbursement

The issue in this case is whether the Claimant is entitled to reimbursement after purchasing the modified van. Under Tex. Lab. Code Ann. § 408.021, Claimant is entitled to health care that cures or relieves the effects of Claimant’s injury or enhances Claimant’s ability to obtain or retain employment. Claimant offered no evidence that the modified van would cure or relieve the effects of his injury. Although the ALJ can infer the van would allow Claimant to travel to and from work, there was no evidence presented that Claimant could perform his job better with the modified van or that he was in danger of losing his job if reimbursement was not ordered.

The Original and Amended MRD Orders

Claimant’s main argument was that the original MRD order issued on September 27, 2001, was correct and that the amended MRD order was incorrect. The first MRD order held in favor of Claimant largely because Carrier did not submit a response to the reviewing board.[4] In that Order, the MRD adopted Claimant’s position that a modified van was considered health care and that it was medically necessary because it would enhance Claimant’s ability to obtain or retain employment.

The amended MRD order issued on May 13, 2002, contained no response by the Carrier nor did it contain any new evidence the MRD relied on in making its amended decision.[5] Although there seems to be a significant time lapse between the original and the amended MRD order, this ALJ heard no evidence of impropriety on the part of the Commission or the MRD. Close to seven months passed before an amended order was issued and although there seems to be a great disparity regarding the issue dates of the MRD orders, this ALJ heard no reason how such a disparity might have prejudiced Claimant or if such a delay in issuing the subsequent order was not allowed under the rules.

The amended MRD order relied upon the same evidence and denied reimbursement because the van purchased by Claimant did not fit the definition of health care or durable medical equipment. Under the Commission’s rules found at Tex. Lab. Code Ann. §401.011(19) health care includes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services. The 1996 Medical Fee Guideline found at 28 Tex. Admin. Code §134.201(a) describes durable medical equipment as those items that can withstand repeated use, are primarily used to serve a medical purpose, are generally not useful to a person in the absence of illness, injury, or disease; and are appropriate for use in the injured worker’s home.

One can only speculate why the MRD did not rely on the definitions of health care and durable medical equipment in its original order. Nevertheless, the amended order issued on May 13, 2002, relied on the applicable definitions and applied the correct reasoning in denying reimbursement for Claimant.

Conclusion

A van, while clearly easing the plight of Claimant by providing Claimant sufficient means of transportation, is not considered health care under the rules. This ALJ acknowledges the positive impact in Claimant’s overall well-being and quality of life, however, the standard for entitlement under the Texas Workers’ Compensation Act is more narrow than improving the quality of Claimant’s life.[6]

Additionally, the amended MRD order denied reimbursement because the van is not considered durable medical equipment. Indeed, for an item to be considered durable medical equipment it must be medical in nature under the rule. The van does not serve a medical purpose, a van is useful in the absence of an injury, and a van is not appropriate for use in the home as stipulated by the rule.[7]

The intricate procedures governing workers compensation can be misinterpreted by people of reasonable intelligence. The ALJ does not believe Carrier attempted to mislead Claimant into purchasing a modified van with the intent of reimbursing Claimant for the modifications only. Having reviewed the evidence presented by Claimant and the Carrier, specifically, Ms. Thomas, the ALJ believes Claimant misunderstood what was communicated to him by the Carrier.

For the foregoing reasons, the ALJ concludes that Claimant is not entitled to additional reimbursement for the modified van.

II.FINDINGS OF FACTS

  1. On_______, ____ (Claimant) sustained a compensable work-related injury while employed by _________ in________, Texas.
  2. As part of his treatment, Claimant came under the care of Patrick W. Donovan, M.D., and was prescribed a wheelchair.
  3. Because Claimant owned only a 1997 Nissan Sentra, Dr. Donovan prescribed Claimant a modified van to accommodate Claimant’s wheelchair. The van prescribed by Dr. Donovan also called for hand controls that allowed Claimant to drive the van.
  4. Claimant purchased a van with modifications and requested reimbursement from Travelers Indemnity Company (Carrier) in the amount of $44,128.39.
  5. Carrier reimbursed Claimant $19,304.00, for the cost of the modifications only.
  6. Claimant requested medical dispute resolution through the Commission’s Medical Review Division (MRD) seeking additional reimbursement of $24,824.39.
  7. MRD reviewed the dispute and issued a decision on September 27, 2001, finding that the modified van was medically necessary and ordered Carrier to reimburse Claimant $24,824.39.
  8. Carrier appealed the MRD decision to the State Office of Administrative Hearings (SOAH).
  9. On October 8, 2001, the MRD withdrew its original order.
  10. On May 13, 2002, the MRD issued an amended order which found the modified van was not medically necessary and denied Claimant any additional reimbursement.
  11. Claimant appealed the amended MRD decision to SOAH.
  12. Notice of the hearing in this case was mailed to the parties on June 20, 2002. The notice contained a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted. In the notice, the Commission’s staff indicated that it would not participate in the hearing.
  13. The hearing was held on August 29, 2002, with Administrative Law Judge (ALJ) Steven M. Rivas presiding. Claimant_____ appeared with Luz Loza, Ombudsman. Carrier was represented by Dan Flanagan. The Commission was represented by Susan Goggan, attorney.

The hearing was adjourned and the record closed the same day.

  1. Carrier informed Claimant he would be reimbursed only for the modifications made to the van and not the entire van.
  2. Carrier did not mislead Claimant into purchasing the modified van with the intent of reimbursing Claimant the amount of modifications only.
  3. It was Claimant’s misunderstanding that he would be reimbursed the total amount of the van including the modifications prescribed by Dr. Donovan.
  4. Claimant presented no evidence that the modified van would enhance his ability to obtain or retain employment.
  5. Claimant presented no evidence the modified van should be considered health care or durable medical equipment as defined by the Commission’s rules.

III. CONCLUSIONS OF LAW

  1. The Commission has jurisdiction over this matter pursuant to Tex. Lab. Code § 413.031.
  2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. §413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
  3. Claimant timely filed its notice of appeal, as specified in 28 Tex. Admin. Code § 148.3.
  4. Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov’t Code § 2001.052 and 28 Tex. Admin. Code § 148.4.
  5. Claimant had the burden of proof on its appeal by a preponderance of the evidence, pursuant to Tex. Lab. Code Ann. § 413.031 and 28 Tex. Admin. Code §148.21(h).
  6. Under Tex. Labor Code § 408.021(a)(3), 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 that enhances the ability of the employee to retain employment.
  7. Claimant did not prove that the modified van is medically necessary for treating Claimant’s compensable injury.
  8. Based on the above Findings of Fact and Conclusions of Law, Claimant’s appeal and his request for additional reimbursement should be denied.

ORDER

IT IS ORDERED THAT the additional reimbursement requested by Claimant ____ be denied for the modified van purchased by Claimant.

Signed this 22ND day of October, 2002.

Steven M. Rivas

State office of administrative hearings
Administrative Law Judge

  1. The circumstances of Claimant’s injury were not addressed at the hearing nor were they made part of the record.
  2. Letter from Dr. Donovan dated March 1, 2001. Page 33 of the Certified Record.
  3. 28 Tex. Admin. Code§148.8(b) if a decision of the commission's medical review division in a review of a medical service or medical fee under the Act,§§413.031, has been set for a contested case hearing before SOAH and if the decision of the division is withdrawn or an amended decision is issued by the division within ten working days after the commission received the request for hearing before SOAH, then the commission shall file a request to withdraw the case from the SOAH docket. SOAH shall then issue an order dismissing the case without prejudice from the SOAH docket.
  4. MRD Order issued September 27, 2001. Pages 9 though 13 of the Certified Record.
  5. MRD Order issued May 13, 2002. Pages one through five of the Certified Record.
  6. SOAH Docket 453-00-1564.M2, Judge Dewey, April 18, 2001.
  7. SOAH Docket 453-97-2186.M2, Judge Smith, November 2, 1998.
End of Document
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