DECISION AND ORDER

______ (APetitioner) appealed a decision of the Texas Workers’ Compensation Commission’s Medical Review Division (“MRD”), which denied Petitioner reimbursement for the purchase of a motor vehicle large enough to accommodate a wheelchair lift. The MRD found that the requested van did not constitute a medical benefit within the meaning of § 408.021 of the Texas Workers’ Compensation Act (the Act), TEX. LABOR CODE ANN ch. 401 et seq.

This decision concurs with the MRD’s denial of reimbursement.

I. JURISDICTION AND VENUE

The Texas Workers’ Compensation Commission (the Commission) has jurisdiction to consider appeals from decisions of its MRD pursuant to ‘ 413.031 of the Act. The State Office of Administrative Hearings (ASOAH) 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 ANN. ‘ 413.031(k) and TEX. GOV’T CODE ANN. ch. 2003.

II. STATEMENT OF THE CASE

The hearing in this docket was convened on November 17, 2003, at SOAH facilities in the Stephen F. Austin Building, 1700 North Congress Avenue, Austin, Texas. Administrative Law Judge (AALJ) Mike Rogan presided over the hearing. Service Lloyd’s Insurance Co. (ARespondent) was represented by Tommy Lueders, Attorney. Petitioner appeared on his own behalf and received assistance from Luz Losa with the Ombudsman’s Office of the Commission. After presentation of evidence and argument, the hearing was adjourned and the record in the matter closed that same day.^[1]

The record revealed that on _________, Petitioner suffered injuries when a heavy weight

fell on both of his feet. Failure of the injuries to heal properly led to successive amputations above the right knee and then at the left knee. Petitioner was thereafter unable to operate a conventional motor vehicle. He also found that the vehicle he had owned prior to his injuries could not be retrofitted with a wheelchair lift. For that reason, on or about July 22, 2002, he purchased a used van large enough to accommodate such a lift and sought reimbursement from Respondent, his employer’s insurer, for the van’s purchase price of $27,992.71.

Respondent agreed to pay for modifications to Petitioner’s new vehicleB$1,668.00 for installation of the wheelchair lift and $784.00 for installation of hand controls. However, the insurer denied reimbursement for the van itself. No documentation in the record provides any exact articulation of Respondent’s basis for denial, although correspondence on the subject stresses Respondent’s contention that only the amputation of Petitioner’s left legBand not that of the right legBwas related to a compensable injury. Dr. Brian Zale, who examined Petitioner as a designated doctor at Respondent’s request, affirmed Respondent’s position in a report dated August 7, 2002, concluding that the amputation of the right leg was not compensable.

Petitioner sought medicl dispute resolution. The MRD issued a decision on August 28, 2003, finding that Aa van is not considered a medical benefit and therefore not reimbursable. Petitioner then effected a timely appeal to SOAH.

III. THE PARTIES’ EVIDENCE AND ARGUMENTS

A. Petitioner

Petitioner himself testified tht a vehicle of the type at issue offered his only practicable means of transportation in his present circumstances, allowing him a chance to regain Asome independence in his life.

Petitioner also submitted in evidence a letter from one of his treating surgeons, Dr. Peter H. Lin of Baylor College of Medicine, stating that a vehicle with wheelchair lift is Anecessary for [Petitioner] to achieve the level of independence that would enable him to accept his physical challenges and make the most of his life as it is now.

B. Respondent

Respondent argued that 1) SOAH lacks jurisdiction over this dispute because the compensability of Petitioner’s injuries as a whole has not been determined, 2) a motor vehicle per se does not constitute medical care under ” 401.011 and 408.021 of the Act, and 3) if a motor vehicle is encompassed within definable medical care, it must be durable medical equipment (ADME), and Commission rules require preauthorization (which Petitioner failed to obtain) for DME costing more than $500.00.

On cross-examination, Respondent elicited from Petitioner a rather uncertain statement that he could have continued to use his previous vehicle and would not have needed to purchase a new van, if he had only suffered the amputation of one leg.

IV. ANALYSIS

quite consistent line of cases decided at SOAH has concluded that a motor vehicle, in itself, is not an element of health care under ” 401.011 and 408.021 of the Act.^[2] As noted in a 2002 decision, a vanBwhile Aeasing the plight of an injured claimant and providing Apositive impAct in a claimant’s overall well-beingBAis not considered health care under the rules.^[3] In particular, the Commission’s 1996 Medical Fee Guideline, at 28 TEX. ADMIN. CODE ‘ 134.201(a) describes DME 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. Clearly, an unmodified van fails to satisfy most of these criteria, at least in this case.

According to the record, no physician has provided technical specifications for the requested vehicle or engaged his or her medical expertise in supervising or reviewing its use, as normally would be expected in the case of medical care or equipment.

While the ALJ’s conclusion on this issue obviates the need to rule definitively upon the other

principal positions asserted by Respondent, the ALJ notes that Respondent appears to have waived its right to maintain those positions in this action. Nothing in the record indicates that Respondent raised the issue of required preauthorization prior to the decision in this dispute by the MRD (which made no mention of that issue). Moreover, by agreeing to pay for medically related modifications to Petitioner’s van, Respondent appears to have negated any distinction as to whether the need for the van was created by just one of the amputations suffered by PetitionerBor only by both in combination. Thus, in the ALJ’s view, Respondent cannot reasonably challenge SOAH’s jurisdiction on the basis that this action requires consideration of an arguably non-compensable aspect of Petitioner’s overall injuries.

V. CONCLUSION

The LJ finds that the requested van has not been shown to constitute an element of Ahealth care under the terms of the Act and implementing rules. Accordingly, Petitioner should not be reimbursed for the purchase of the disputed item.

VI FINDINGS OF FACT

1. On _________, while working for an employer who had workers’ compensation insurance coverage with Respondent Service Lloyd’s Insurance Co., ______ (APetitioner) suffered an injury to his left foot that was a compensable injury under the Texas Worker’s Compensation Act, TEX. LABOR CODE ANN. ch. 401 et seq. (the Act).
2. As a result of the injury, Petitioner subsequently underwent amputation of his left leg to the knee.
3. Unable to operate a conventional vehicle or to retrofit the vehicle he then owned with a wheelchair lift, Petitioner on or about July 22, 2002, purchased a used van large enough to accommodate such a lift
4. Petitioner subsequently sought reimbursement from Respondent for the van’s purchase price of $27,992.71, which Respondent denied.
5. Petitioner then requested medical dispute resolution through the Texas Workers’ Compensation Commission (ACommission).
6. The Commission’s Division of Medical Review denied the reimbursement sought by Petitioner in a decision dated August 28, 2003, in dispute-resolution docket No. M4-03-7569-01, finding that Aa van is not considered a medical benefit and therefore not reimbursable.
7. Petitioner requested in timely manner a hearing with the State Office of Administrative Hearings (ASOAH), seeking review and reversal of the MRD decision.
8. The Commission mailed notice of the hearing’s setting to the parties at their addresses on October 17, 2003.
9. A hearing in this matter was convened on November 17, 2003, at the Stephen F. Austin Building, 1700 North Congress Avenue, Austin, Texas, before Mike Rogan, an Administrative Law Judge with SOAH. All parties were represented.
10. No physician has provided technical specifications or other significant guidance for selecting the van at issue, has proposed to participate in its selection, or engaged medical expertise in supervising or reviewing its use
11. Respondent agreed to pay for medically specialized modifications to Petitioner’s vehicle noted in Finding of Fact No. 3Bi.e., $1,668.00 for installation of a wheelchair lift and $784.00 for installation of hand controls.
12. The unmodified vehicle noted in Finding of Fact No. 3 was not primarily used to serve a medical purpose, was generally useful to a person even in the absence of illness or injury, and was not appropriate for use in an injured worker’s home.

VII. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issues presented pursuant to the Texas Workers’ Compensation 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(k) 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. ADMINISTRATIVE CODE (“
   (“TAC”) § 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 TAC § 148.21(h).
6. Based upon the foregoing Findings of Fact, the van noted in Finding of Fact No. 3 does not represent an element of health care under §§401.011 and 408.021of the Act or under 28 TAC § 134.201(a).
7. Based upon the foregoing Findings of Fact and Conclusions of Law, the findings and decision of the MRD, issued in this matter on August 28, 2003, were correct; the requested reimbursement $27,992.71 for the van noted in Finding of Fact No. 3 should be denied.

ORDER

IT IS THEREFORE, ORDERED that the appeal of ______, seeking reimbursement of $27,992.71 for purchase of a motor vehicle, be denied, in accordance with the findings and decision of the MRD issued in this matter on August 28, 2003.

Signed November 21, 2003.

.

MIKE ROGAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The stff of the Commission formally elected not to participate in this proceeding, although it filed a general AStatement of Matters Asserted with the notice of the hearing.↑
2. In addition to the decision cited immediately below, see SOAH Docket No. 453-00-1564.M2 (April 18, 2001, ALJ Dewey) and SOAH Docket No. 453-97-2186.M2 (November 2, 1998, ALJ Smith).↑
3. SOAH Docket No. 453-02-3365.M5 (October 22, 2002, ALJ Rivas).↑