DECISION AND ORDER

This case is an appeal by American Home Assurance Company (Carrier or Petitioner) from a decision of the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) in a medical fee dispute. The MRD ordered additional reimbursement for durable medical equipment B an interferential stimulator. The issue in this case is whether the Carrier reimbursed Amerimed International, Inc. (Provider or Respondent) the appropriate amount for an interferential stimulator. After considering the evidence and arguments, the Administrative Law Judge (ALJ) concludes that Carrier properly reimbursed Provider; no additional reimbursement is ordered.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the findings of fact and conclusions of law. The hearing in this docket convened on May 6, 2003, at the State Office of Administrative Hearings, 300 West 15^th Street, Austin, Texas. Carrier was represented by attorney, Steve Tipton. Provider appeared pro se, with Richard Amato representing the company. The Texas Workers’ Compensation Commission (Commission) did not participate in the hearing, but filed a Statement of Position. The hearing concluded and the record closed the same day.

II. DISCUSSION

A. Background

Claimant, ____, sustained a compensable workers’ compensation injury on__________. Claimant was prescribed an interferential stimulator for the reduction of edema and pain control, which Provider supplied.^[1] The interferential stimulator was rented for two months and then purchased. Provider billed Carrier for two months’ rental at the rate of $275.00 and then billed for the cost of the unit at $2,495.00. Carrier paid $150.00 for the first two months’ rent, then paid $900.00 for the unit, which was calculated as $1,050.00 minus the first month’s rent. Carrier paid reimbursement at the rate set for a neuromuscular stimulator. MRD ordered additional reimbursement in the amount of $1,740.00, agreeing with Provider that the fair and reasonable reimbursement rate for the device was $2,495.00.

B. Applicable Law

Workers’ compensation insurance covers all medically necessary health care, which includes all reasonable medical aid, treatments, and services reasonably required by the nature of the compensable injury and reasonably intended to cure or relieve the effects naturally resulting from a compensable injury.^[2] Section 413.011 of the Act requires the Commission to establish medical policies and guidelines relating to fees charged or paid for medical services.^[3] In accordance with this section, the Commission adopted Medical Fee Guidelines (MFGs) that specify amounts payable for particular billing codes. No MFG specifies a charge for an interferential stimulator.

The 1996 MFG Durable Medical Equipment (DME) Ground Rules, which are applicable to this case, state in pertinent part:

VI. Rental/Purchase

D. The first month’s rent applies to the purchase price if the rental was reimbursed.

IX. Billing

C. Invoices should be billed at the provider’s usual and customary rate. Reimbursement shall be an amount pre-negotiated between the provider and carrier or if there is no pre-negotiated amount, the fair and reasonable rate. A fair and reasonable reimbursement shall be the same as the fees set for the “D” codes in the 1991 Medical Fee Guideline.

As the 1996 MFG mentions, the 1991 MFG should be used to determine fair and reasonable reimbursement for D codes. The MFG does not list a supply reimbursement rate for an interferential stimulator, but the 1991 MFG lists rates for TENS and neuromuscular stimulators.

Those amounts are:

CODEDESCRIPTIONPURCHASERENTAL

D0550 Muscle stimulator 1050.00 150.00

D0370 TENS 4-lead 495.00 85.00

1. Evidence and Arguments
2. Carrier

The Carrier asserts, and Provider agrees, that there is no code for an interferential stimulator.

Carrier argues, however, that an interferential stimulator is similar to a neuromuscular stimulator

and to a TENS unit. Carrier reimbursed Provider at the rate for a neuromuscular stimulator, which

is a higher rate than that for a TENS unit. Carrier argued that an interferential stimulator is like two

TENS units because it contains two generators. Thus, the TENS reimbursement amount may have

been the more appropriate reimbursement.^[4]

Carrier called Dr. Leonard Hershkowitz as an expert witness. Dr. Hershkowitz is a medical

doctor who specializes in neurology. He testified that TENS units and interferential stimulators

are used interchangeably for pain reduction. He further testified that the interferential stimulator

uses an alternating current providing constant stimulation, while a TENS unit provides stimulation

that is not constant because it has only one source of electrical current. After reviewing the

medical literature, Dr. Hershkowitz determined that interferential units are essentially the same

as TENS units and that no difference in their applications or results has been demonstrated.

On cross-examination, Dr. Hershkowitz admitted that he does not determine whether to use a TENS

unit or an interferential stimulator on a patient. That decision, he testified, is made by a physical

therapist.

Provider

The Provider asserts that an interferential stimulator is significantly different than a TENS unit or a neuromuscular stimulator. Provider called Gary Buster, a physical therapist, as an expert witness. Mr. Buster testified that he uses interferential stimulators extensively on his patients. He does not consider interferential stimulators and TENS units to be the same because he uses them for different purposes. He believes the medical literature on which Dr. Hershkowitz relied is outdated, but on cross-examination, Mr. Buster could provide no citations to medical literature explaining how TENS units and interferential stimulators are different.

Commission

The Commission’s statement of position argues that an insurance carrier may not change a billing code or reimburse services at another billing code’s value. Commission Staff argues that in reimbursing the interferential stimulator at the rate of a neuromuscular stimulator, Carrier violated the rule prohibiting it from reimbursing one service at the value of another.

III. ANALYSIS

The issue in this case is whether the interferential stimulator should be reimbursed at a rate significantly higher than the rate for a TENS unit or neuromuscular stimulator. The ALJ finds that the Carrier properly reimbursed the Provider. The medical evidence in this case demonstrates that the interferential stimulator is essentially the same type of machine as a TENS unit. Both a TENS unit and an interferential stimulator are used to reduce pain following an injury. They both generate electrical current that is received by the patient’s skin tissue. The theory behind both machines is that when the skin is stimulated, it causes the brain to release natural opiates, thereby reducing the patient’s pain. The difference is that a TENS unit has one generator while an interferential stimulator has two generators.

Although the machines are similar, the interferential stimulator is considerably more expensive.^[5] Patients in the workers’ compensation system are entitled to all reasonable and necessary health care. That care must, however, also be cost-effective. In other words, when a lower cost treatment option is available, it should be used before the higher cost option is tried. There is no evidence in this case that Claimant was provided with a TENS unit or other less expensive equipment to treat his pain. While in many cases, an interferential stimulator may be the appropriate treatment, a less expensive treatment, such as TENS unit should be tried first. If the patient is unable to tolerate the TENS unit, or the TENS unit does not reduce the Claimant’s pain, then an interferential stimulator, or other more expensive equipment may be appropriate.

Commission Staff’s position that the Carrier should not have reimbursed at the rate for a neuromuscular stimulator has little weight. In this case, there is no reimbursement amount set for an interferential stimulator. Therefore, the question is what reimbursement rate is fair and reasonable. In this case, Carrier proved that the rate charged by Provider was not fair and reasonable, and that the rate it reimbursed was the fair and reasonable rate.

Although MRD determined that Provider should be reimbursed at the rate it billed for the interferential stimulator, the MRD based its decision on the theory that Carrier had changed a billing code or reimbursed for one service at the rate of another. As discussed above, the ALJ finds that argument unpersuasive.

For these reasons, the ALJ finds that Carrier demonstrated by a preponderance of the evidence that the reimbursement for the interferential stimulator at the rate of a neuromuscular stimulator was fair and reasonable. Therefore, Carrier is not required to reimburse Provider additional money.

IV. FINDINGS OF FACT

1. On__________, Claimant suffered a work-related injury.
2. In the course of Claimant’s rehabilitation, Respondent, Amerimed International Inc.,
3. provided Claimant with durable medical equipment, specifically an interferential stimulator.
4. The interferential stimulator was rented for two months and then purchased.
5. Respondent sought reimbursement for the interferential stimulator from American Home Assurance Company (Petitioner), the insurance carrier for Claimant’s employer at the time of his injury.
6. Petitioner reimbursed Respondent at the rate set for a neuromuscular stimulator.
7. By filing dated August 21, 2002, Respondent made a timely request to the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) for medical dispute resolution with respect to the requested reimbursement.
8. The MRD granted Respondent’s request for reimbursement in a decision dated February 12, 2002.
9. Petitioner requested in timely manner a hearing with the State Office of Administrative
10. Hearings, seeking review and reversal of the MRD decision.
11. The Commission mailed notice of the hearing’s setting to the parties at their addresses on March 19, 2003. The notice of hearing listed the time, place, and nature of the hearing; included a statement of the legal authority and jurisdiction under which the hearing was to be held; referred to particular sections of the statutes and rules involved; and included a short, plain statement of the matters asserted.
12. A hearing in this matter was convened on May 6, 2003, at 300 West 15^th Street, Austin, Texas. Petitioner and Respondent participated in the case.
13. The Commission adopted the Medical Fee Guideline (MFG), which specifies amounts payable for particular billing codes.
14. There is no specific billing code or maximum allowable reimbursement (MAR) for an interferential stimulator.
15. The 1996 DME Ground Rules state that a fair and reasonable reimbursement is the same as the fees set for the “D” codes in the 1991 Medical Fee Guideline.
16. The 1991 DME Ground Rules lists $1,050.00 as the reimbursement rate for neuromuscular stimulators.
17. Because an interferential stimulator is similar in function to a TENS unit, the reimbursement rate for which is significantly lower than the rate for a neuromuscular stimulator, it is reasonable to use the billing code and MAR for a neuromuscular stimulator in determining a fair and reasonable reimbursement fee for the interferential stimulator.

V. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction over this matter pursuant to the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code Ann. § 413.031.
2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, 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 § 133.305(g) and §§148.001-148.028.
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, the party seeking relief, bore the burden of proof in this case, pursuant to 28 Tex. Admin. Code § 148.21(h).
6. Based upon the Findings of Fact, the interferential stimulator was properly reimbursed at the rate established for neuromuscular stimulators.
7. Based upon the Findings of Fact and Conclusions of Law, Petitioner’s appeal of the decision ordering additional reimbursement should be granted, and Petitioner should not be required to reimburse Respondent additional money.

ORDER

IT IS THEREFORE, ORDERED that Petitioner, American Home Assurance Company, is not required to pay further reimbursement to Amerimed International, Inc. for the interferential stimulator provided to Claimant, ____.

Signed this 3^rd day of June, 2003.

WENDY K. L. HARVEL
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Respondent’s Ex. B.↑
2. Tex. Lab. Code Ann. § 401.011(19) and (31). The Texas Workers’ Compensation Act is found at Tex. Lab. Code Ann. §’ 401.001et seq. and is hereafter referred to as the Act.↑
3. Section 413.011(d) of the Act. In 2001, the legislature amended § 413.011 so that § 413.011(b) became § 413.011(d), but the text is unchanged. The ALJ uses the current subsection (d) for reference.↑
4. Carrier does not seek the TENS reimbursement rate.↑
5. The rate for which Provider seeks reimbursement is considerably higher than the reimbursement rate for two TENS units. Provider’s actual out-of-pocket cost for the interferential stimulator is not in the record.↑