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 of an RS-4i, a sequential stimulator that provides muscle and interferential current stimulation, for indefinite use by the claimant, ___

This decision denies the relief sought by Petitioner.

A hearing convened on July 20, 2004, in a hearing before Administrative Law Judge (ALJ) Paul D. Keeper at which both counsel were present. The hearing was continued on July 21, 2004, by telephone for all participants. Patrick K. Cougill represented Petitioner, and Robert Graves represented the City of Tyler (Respondent). There were no contested issues of notice or jurisdiction. The record closed following adjournment of the hearing on July 21, 2004.

The claimant sustained a work-related injury on or about ___. He was seen at the emergency room of East Texas Medical Center and given morphine, Taradol, and Valium for severe low back pain. The claimant was unable to bend or sit up. Four days later, he was seen by Frederick Kersh, D.O., with lumbar pain with associated muscle spasms. At the time of his examination, the claimant reported being treated with Motrin, Valium, and Vicodin. Dr. Kersh prescribed Celebrex for pain control and reported that the claimant was still having palpable muscle spasms.

On June 25, 2003, the claimant was seen by Dr. Thomas Grahm, M.D., a neurosurgeon, who reported that the claimant was still having back pain, spasms, and numbness and tingling in his legs and hands, with pain radiating around his abdomen. Dr. Grahm’s diagnosis was myelopathy with a canal compromise in the claimant’s cervical or thoracic region. On July 14, 2003, Dr. Grahm saw the claimant again and reported that his pain was continuing.

On August 12, 2003, the claimant was prescribed a two-week course of chiropractic therapy, including electromuscular stimulation (EMS). The course of therapy was extended through October 2003.

On September 5, 2003, Dr. Kersh prescribed an RS-4i for a two-month period to relieve pain and relax the claimant’s muscles. By October 6, the claimant had stopped taking all medications other than Tylenol, and by October 10, 2003, he was performing most aspects of his regular duties. By October 16, 2003, Dr. Kersh reported that the claimant’s pain had abated and that the claimant Athinks the EMS [sic] TENS [transcutaneous electrical nerve stimulator] has helped.^[1] On

October 24, 2003, Dr. Kersh relesed the claimant to regular work duties without restrictions. On December 8, 2003, Dr. Kersh examined the claimant and noted in his medical records that the he should Acontinue RS-4 unit daily. On December 9, 2003, Dr. Kersh extended the prescription for the RS-4i for an indefinite period.

On January 6, 2004, Forte, Respondent’s utilization review agent, denied Dr. Kersh= request for indefinite use. On January 15, 2004, Dr. Kersh submitted to Forte an appeal of Forte’s decision, and on January 21, 2004, Forte denied Dr. Kersh’s appeal. On April 7, 2004, the IRO issued its decision denying the request for preauthorization.

In its May 12, 2004, letter to the parties, the Commission provided the parties with a statement of the matters to be asserted in the contested hearing. Although the letter describes the dispute generally as concerning whether medical services should be preauthorized, the Commission also refers the parties to the rationale used by the IRO in determining that the requested services are not medically necessary. Among the reasons listed by the IRO for denying the request for preauthorization of the RS-4i were:

1. The primary treating physician failed to produce any competent, objective, and independently confirmable medical evidence demonstrating the efficacy of this device.
2. The claimant’s use of the device declined.
3. The claimant’s condition showed no measurable improvement.
4. The primary treating physician failed to provide evidence of a clinical assessment supporting the use or purchase of the device.
5. The claimant’s use of active rather than passive modalities like the RS-4i was important, and the need for the use of passive modalities after the acute phase of the injury do not exist.

Efficacy of the device.

As a preliminary matter, the ALJ rules that the general efficacy of the device is not material to this proceeding. Petitioner introduced documentary evidence of the approval of the RS-4i by the United States Food and Drug Administration (FDA) for the medical purposes listed by Dr. Kersh in his prescription. The question before SOAH is not whether the device is efficacious for any patient but whether the use of the device should be preauthorized for this claimant’s condition.

Claimant’s rate of use of the device.

Dr. Kersh’s prescription of December 9, 2003, was for the claimant’s use of the RS-4i two to three times each day for 15 minutes of interferential therapy and 30 minutes of muscle stimulation. At this rate, the claimant would initially have had 60 to 90 treatments per month and 90 to 135 minutes per day of use. The RS-4i includes data collection software that has the capability of producing patient usage reports. For the claimant, the reports reveal the following:

Period	Total Days in Period	Days of Use	No. of Trtments	Mean No. of Treatments per Total Days	Mean No. of Treatments per Day of Use	Mean No. of Treatment Minutes per Day of Use
09/09/03 to 09/30/03	22	21	32	1.45	1.52	26
10/01/03 to 10/31/03	31	27	36	1.16	1.33	34
11/01/03 to 11/30/03	30	17	22	0.73	1.29	28
12/01/03 to 12/29/03	29	10	13	0.45	1.30	34
01/03/04 to 01/29/04	27	13	18	0.67	1.38	31
02/01/04 to 02/26/04	26	12	13	0.50	1.08	39
03/03/04 to 03/22/04	20	7	7	0.35	1.00	38
Totals	185	107	141	0.76	1.32	32

The data reveals that the claimant used the device on 107 out of 185 days, 58% of the period during which the device was available to him. The claimant’s use of the device dropped substantially over time. In October, the claimant used the device almost 1.5 times a day, and by March, the claimant was using the device about once every third day. The number of minutes that the claimant used the device varied comparatively little, with the greatest average amount of minutes of use when the number of treatments were the least.

Measurable improvement.

The foregoing data does not measure the improvement of the claimant’s medical condition. The claimant reported improvement in pain management and ability to sleep. Dr. Kersh reported improvement in the claimant’s condition, and the claimant eventually was released from light duty to regular duty at work. Dr. Kersh gave his opinion that the device held potential for continued improvement of the claimant’s condition. However, the evidence did not include any objective data measuring the claimant’s improvement in muscle strength, endurance, or other factors.

Clinical assessment supporting the use or purchase of the device.

Petitioner’s prefiled documentary evidence contained no reports of the manner by which Dr. Kersh determined that a prescription for the RS-4iBas opposed to some other model or type of EMS unit–was appropriate for this patient. Without question, the evidence reveals that the claimant’s use of EMS therapy had been a source of relief to the claimant, but the specific need for the RS-4i does not appear in the evidentiary record.

Need for passive modalities of treatment.

The medical record reflects that the claimant received solely passive forms of chiropractic or physical therapy: traction, EMS, and joint mobilization. No evidence appears that the claimant was prescribed or received any form of active exercise, including walking, by any of his clinicians.

The foregoing evidence was presented during the July 20, 2004, portion of the hearing. The claimant testified by telephone during the July 21, 2004, portion of the hearing. In summary, his testimony was that: he now uses the RS-4i every three or four days; the RS-4i provides him with relief from pain in his back and legs; he has no current prescriptions for medications; he is no longer

taking any prescription medication; and he does not know how his pain will be affected if he were to stop using the RS-4i.

Petitioner has the burden of proof in this proceeding. As noted in Respondent’s brief, Tex. Labor Code Ann. ‘ 408.021, an injured worker is entitled to receive–and an insurance carrier is liable to fund–only the health care that is reasonably required by the nature of the worker’s injury. Such health care should: (1) cure or relieve the effects naturally arising from the injury; (2) promote recovery; or (3) enhance the ability of the employee to return to or obtain employment. An injured worker is entitled to receiveBand an insurance carrier is obligated to fundBonly those medical services that are reasonable and necessary to treat the compensable injury.

The medical record, though sparse in terms of objective information, does reflect that the claimant’s pain and muscle spasms were significantly decreased during his use of EMS generally and during his use of the RS-4i specifically. The claimant’s rate of use of the RS-4i never approached those included in Dr. Kersh’s prescription. That is, the claimant was to have used the device 2-3 times a day,^[2] and he actually used it at a rate of about half of that suggested. At a prescribed use rate

of 90-135 minutes per day, the claimant’s range of 26-39 minutes per day never reached 50% of Dr. Kersh’s prescribed rate.

It is clear from the record that the claimant’s use of the RS-4i may have been a significant factor in his relief from pain arising from his work-related injury, that the RS-4i has played a role in the claimant’s recovery, and that the RS-4i has enhanced the ability of the claimant to return to his work. However, the standard of proof is whether the claimant currently requires the RS-4i to achieve these various states of health.

The claimant’s use of the device once or twice a week may provide some relief for the claimant. However, neither the claimant nor his health care providers were able to provide information as to the claimant’s need to continue using the RS-4i, either to relieve pain or to promote recovery. With respect to the third element of the statute, the claimant has now returned to work at full duty, albeit with care in how he lifts heavy items.

At best, Petitioner proved that preauthorization for the past use of the RS-4i was proper for the reasonable and medically necessary care of this claimant. As to the current and future use for the purposes required in the statute, the Petitioner did not carry its burden of proof and the claim is denied.

II. FINDINGS OF FACT

1. The claimant, ___, sustained a work-related injury on or about ___.
2. The claimant was seen at the emergency room of East Texas Medical Center and given morphine, Taradol, and Valium for severe low back pain. The claimant was unable to bend or sit up.
3. Four days later, he was seen by Frederick Kersh, D.O., and was being treated with Motrin, Valium, and Vicodin for pain and muscle spasms.
4. On June 25, 2003, the claimant was seen by Dr. Thomas Grahm, M.D., a neurosurgeon, who diagnosed the claimant’s condition as myelopathy and found that the claimant was still having back pain, spasms, and numbness and tingling in his legs and hands, with pain radiating around his abdomen.
5. On August 12, 2003, the claimant was prescribed a two- week course of chiropractic therapy, including electromuscular stimulation (EMS). The course of therapy was extended through October 2003.
6. On September 5, 2003, Dr. Kersh prescribed an RS-4i, a sequential stimulator that provides muscle and interferential current stimulation, for a two-month period to relieve pain and relax the claimant’s muscles.
7. By October 6, the claimant had stopped taking all medications other than Tylenol, and by October 10, 2003, he was performing most aspects of his regular duties.
8. On December 8, 2003, Dr. Kersh examined the claimant and noted in his medical records that the he should Acontinue RS-4 unit daily.
9. On December 9, 2003, Dr. Kersh extended the prescription for the RS-4i for an indefinite period.
10. Dr. Kersh’s prescription of December 9, 2003, was for the claimant’s use of the RS-4i two to three times each day for 15 minutes of interferential therapy and 30 minutes of muscle stimulation.
11. The RS-4i includes data collection software that has the capability of producing patient usage reports.
12. The claimant used the device on 107 out of 185 days, 58% of the period during which the device was available to him.
13. The claimant’s use of the device dropped substantially over time.
14. In October, the claimant used the device almost 1.5 times a day, and by March, the claimant was using the device about once every third day.
15. The claimant’s rate of use of the RS-4i never approached those included in Dr. Kersh’s prescription.
16. The claimant was to have used the device 2-3 times a day, and he actually used it at a rate of about half of that suggested.
17. At a prescribed use rate of 90-135 minutes per day, the claimant’s range of 26-39 minutes per day never reached 50% of Dr. Kersh’s prescribed rate.
18. The evidence did not include any objective data measuring the patient’s improvement in muscle strength, endurance, or other factors.
19. The claimant’s medical record does not reflect how Dr. Kersh determined that a prescription for the RS-4iBas opposed to some other model or type of EMS unit–was appropriate for this patient.
20. The claimant received solely passive forms of chiropractic or physical therapy: traction, EMS, and joint mobilization. No evidence appears that the claimant was prescribed or received any form of active exercise, including walking, by any of his clinicians.
21. At the time of the hearing, the claimant was using the RS-4i every three or four days, found that the RS-4i provides him with relief from pain in his back and legs, had no current prescriptions for medications, was no longer taking any prescription medication, and did not know how his pain would be affected if he were to stop using the RS-4i.
22. Although the claimant’s use of the RS-4i may have been a significant factor in his relief from pain arising from his work-related injury, in his recovery, and in enhancing his ability to return to work, there was insufficient credible evidence that the RS-4 is currently reasonable and necessary to treat the compensable injury.
23. On January 6, 2004, Forte, Respondent’s utilization review agent, denied Dr. Kersh= request for indefinite use, and on January 21, 2004, Forte denied Dr. Kersh’s appeal.
24. Petitioner seeks preauthorization for the claimant’s purchase of an RS-4i for indefinite use by the claimant.
25. Respondent contends that the purchase of an RS-4i for indefinite use by the claimant is not medically necessary.
26. By letter dated May 12, 2003, Medical Review of Texas, an Independent Review Organization (IRO), denied the preauthorization request of Petitioner for the purchase of an RS-4i for indefinite use by Claimant.
27. The IRO decision is deemed a Decision and Order of the Texas Workers’ Compensation Commission (Commission).
28. Petitioner timely requested a hearing to contest the Commission’s decision.
29. By letter dated May 13, 2004, the Commission issued a notice of hearing of not less than ten days prior to the scheduled hearing.
30. The notice of hearing included 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.
31. Administrative Law Judge Paul D. Keeper convened a hearing on July 20-21, 2004, in the hearing rooms of the State Office of Administrative Hearing. All parties were given the right to respond and present evidence and argument on each issue involved in the case.
32. The record closed following adjournment of the hearing.
33. Patrick K. Cougill represented Petitioner. Robert Graves represented Respondent.

III. CONCLUSIONS OF LAW

1. 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.
2. Petitioner timely requested a hearing in this matter pursuant to 28 Tex. Admin. Code (TAC) ” 102.7 and 148.3.
3. Notice of the hearing was proper and complied with the requirements of Tex. Gov’t. Code Ann. ch. 2001.
4. 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.
5. 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 did not prove by a preponderance of the evidence that the preauthorization of an RS-4i for use by the claimant for indefinite use is medically necessary.

ORDER

THEREFORE IT IS ORDERED that Petitioner RS Medical’s request for relief is DENIED and the preauthorization of the use of an RS Medical RS-4i interferential and muscle stimulator for an indefinite period by ___ is DENIED.

Signed AUGUST 16, 2004.

PAUL D. KEEPER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. t various places in the claimant’s medical records, his clinicians occasionally use the term ATENS instead of the generic term AEMS or the RS-4i. In this instance, Dr. Kersh first wrote AEMS, struck the term, and added ATENS. The testimony of the claimant and the subsequent (and thereafter consistent) identification of the RS-4i leads the ALJ to conclude that the use of the term ATENS was a recording error reflecting the confusion of the clinician rather than evidence of a different type of device.↑
2. The LJ notes that the claimant’s medical record of October 16, 2003, contains the note from Dr. Kersh that the claimant should Acontin TENS as needed, by which the ALJ understands the doctor meant that the claimant should continue to use the RS-4i that had been prescribed the previous month. Respondent Ex. 1 at 49 (Tab C).↑