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Title: 

453-04-0817-m2

Date: 

February 6, 2004

Type: 

Pre-Authorization

453-04-0817-m2

DECISION AND ORDER

I. DISCUSSION

RS Medical (Petitioner) appealed the Findings and Decision of the Texas Workers’ Compensation Commission (Commission) acting through Medical Review of Texas, an Independent Review Organization (IRO), denying the preauthorization request of Petitioner for the purchase an interferential and muscle stimulator for indefinite use by D.F. (Claimant).[1]

This decision grants the relief sought by Petitioner.

A hearing convened on December 10, 2003, before Administrative Law Judge (ALJ) Howard S. Seitzman. Patrick K. Cougill represented Petitioner. Dan C. Kelley represented AMCOMP Assurance Company (Respondent). Susan Keesee, Petitioner’s Insurance Relations Manager, testified for Petitioner. Brad M. Hayes, D.C., testified for Respondent. There were no contested issues of notice or jurisdiction. The record closed following adjournment of the hearing.

Claimant sustained a work-related injury on or about August 23, 2003, and was diagnosed by Louis Patino, D.C., with lumbrosacral neuritis. On April 23, 2003, Dr. Patino prescribed an RS Medical RS-4i interferential and muscle stimulator for a two-month period to relieve pain, relax muscle spasms and increase muscle condition. On June 11, 2003, Dr. Patino prescribed the RS-4i for indefinite use. On July 3, 2003, Respondent denied Dr. Patino’s request for indefinite use.

The medical records in evidence are minimal and neither Dr. Patino nor Claimant testified. The usage reports obtained from the RS-4i’s onboard data collection system reveals that between April 23, 2003, and April 30, 2003, Claimant used the RS-4i once per day on five days for approximately 45 minutes on each occasion. From May 1, 2003, through May 27, 2003, Claimant used the RS-4i on 13 days. On all but one day, he used the device once, and on one occasion he used the device twice in one day. Treatment times averaged approximately 45 minutes each time it was used. From June 3, 2003, through June 30, 2003, Claimant used the RS-4i on 13 days.[2] On three of those days, he used it twice per day and the balance of the time it was used once per day. Average

time of treatment was approximately 40 minutes on each occasion it was used.

An August 23, 2003 clinic note from Dr. Patino reports that Claimant is using the RS-4i “consistently” and that his pain level has dropped from severe (8 on a scale of 10) to moderate (5 on a scale of 10). Dr. Patino also reports that Claimant has reduced his use of medication. On December 8, 2003, Dr. Patino reaffirmed his opinion that the RS-4i was beneficial to Claimant and that Claimant’s continued use of the device was medically necessary.

The RS Medical RS-4i interferential and muscle stimulator is a class II medical device approved by the United States Food and Drug Administration (FDA) for specified indications. The general efficacy of the device is not an issue so long as the device is prescribed and used for the indications approved by the FDA. Dr. Patino prescribed the RS Medical RS-4i for FDA approved indications. Therefore, the only issue in this proceeding is whether the device is reasonable and medically necessary for Claimant as of the date of the hearing.[3]

Dr. Hays testified about the general efficacy of the RS-4i. That portion of his testimony, for the reasons stated earlier, is not germane and is, therefore, not discussed. Dr. Hayes prescribes and uses interferential current for treatment in his office. As to evidence specific to Claimant, Dr. Hayes found no objective evidence in the few medical records of the device having a positive or lasting impact.

Petitioner had the burden of proof in this proceeding. The evidence shows Claimant experiences pain and muscle spasms as a result of a work-related injury. Claimant uses the RS Medical RS-4i interferential and muscle stimulator on a regular basis and it provides Claimant relief from pain and improvement. As a result, Claimant has also been able to decrease medications.

Petitioner proved that preauthorization for the continued use of an RS Medical RS-4i interferential and muscle stimulator by Claimant is reasonable and medically necessary as of the date of the hearing. However, Petitioner did not establish that indefinite use is the appropriate length of time. The minimum amount of time requiring preauthorization for this device is three months.

II. FINDINGS OF FACT

  1. D.F. (Claimant) sustained a work-related injury on or about August 23, 2003.
  2. Claimant was diagnosed by Louis Patino, D.C., with lumbrosacral neuritis.
  3. On April 23, 2003, Dr. Patino prescribed an RS Medical RS-4i interferential and muscle stimulator for a two-month period to relieve pain, relax muscle spasms and increase muscle condition.
  4. On June 11, 2003, Dr. Patino prescribed the RS-4i for indefinite use.
  5. Usage reports were obtained from the RS-4i’s onboard data collection system.
  6. Between April 23, 2003, and April 30, 2003, Claimant used the RS-4i once per day on five days for approximately 45 minutes on each occasion.
  7. From May 1, 2003, through May 27, 2003, Claimant used the RS-4i on 13 days. On all but one day, he used the device once, and on one occasion he used the device twice in one day. Treatment times averaged approximately 45 minutes each time it was used.
  8. From June 3, 2003, through June 30, 2003, Claimant used the RS-4i on 13 days. On three of those days, he used it twice per day and the balance of the time it was used once per day. Average time of treatment was approximately 40 minutes on each occasion it was used.
  9. As of August 23, 2003, Claimant was using the RS-4i “consistently” and his pain level had dropped from severe (8 on a scale of 10) to moderate (5 on a scale of 10).
  10. Claimant reduced his use of medication.
  11. On December 8, 2003, Dr.Patino reaffirmed his opinion that the RS-4i was beneficial to Claimant and that Claimant’s continued use of the device was medically necessary.
  12. The RS Medical RS-4i interferential and muscle stimulator is a class II medical device approved by the United States Food and Drug Administration (FDA) for specified indications.
  13. Dr. Patino prescribed the RS Medical RS-4i for FDA approved indications.
  14. On July 3, 2003, AMCOMP Assurance Company (Respondent) denied Dr. Patino’s request for Claimant’s indefinite use of the RS-4i.
  15. RS Medical (Petitioner) seeks preauthorization for Claimant’s purchase of an RS Medical RS-4i interferential and muscle stimulator for indefinite use by Claimant.
  16. Respondent contends that the purchase of an RS Medical RS-4i interferential and muscle stimulator for indefinite use by Claimant is not medically necessary.
  17. By letter dated September 15, 2003, Medical Review of Texas, an Independent Review Organization (IRO), denied the preauthorization request of Petitioner for the purchase of an RS Medical RS-4i interferential and muscle stimulator for indefinite use by Claimant.
  18. The minimum amount of time requiring preauthorization for this device is three months.
  19. The IRO decision is deemed a Decision and Order of the Texas Workers’ Compensation Commission (Commission).
  20. Petitioner timely requested a hearing to contest the Commission’s decision.
  21. By letter dated October 22, 2003, the Commission issued a notice of hearing.
  22. Administrative Law Judge Howard S. Seitzman convened a hearing on December 10, 2003, in the hearing rooms of the State Office of Administrative Hearing. The record closed following adjournment of the hearing.
  23. Patrick K. Cougill represented Petitioner. Dan. C. Kelley represented Respondent.

III. CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers’ Compensation 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, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. § 413.031(k) and Tex. Gov’t. Code Ann. ch. 2003.
  3. Petitioner timely requested a hearing in this matter pursuant to 28 Tex. Admin. Code (TAC) §§ 102.7 and 148.3.
  4. Notice of the hearing was proper and complied with the requirements of Tex. Gov’t. Code Ann. ch. 2001.
  5. 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).
  6. Petitioner had the burden of proof in this matter, which was the preponderance of evidence standard. 28 TAC §§ 148.21(h) and (i); 1 TAC § 155.41(b).
  7. Petitioner proved by a preponderance of the evidence that the preauthorization of an RS Medical RS-4i interferential and muscle stimulator for use by Claimant is medically necessary.
  8. Petitioner did not establish that indefinite use is the appropriate length of time.
  9. The minimum amount of time requiring preauthorization for this device is three months.

ORDER

THEREFORE IT IS ORDERED that Petitioner RS Medical’s request for relief is GRANTED and the preauthorization of the use of an RS Medical RS-4i interferential and muscle stimulator for three months by D.F. is GRANTED.

Signed February 6, 2004.

HOWARD S. SEITZMAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. The decision by the IRO is deemed to be a Commission Decision and Order.↑
  2. Petitioner allowed Claimant to retain and use the RS-4i pending resolution of the dispute.↑
  3. The ALJ adopts the reasoning of ALJ Norman that the issue of medical necessity is present need, as of the date of the hearing, and not past need, as of the date of the prescription. SOAH Docket No. 453-03-4229.M2, MDR No. M2-03-1308-01; RS Medical v. City of El Paso (January 6, 2004). ↑