DECISION AND ORDER

I. DISCUSSION

Travelers Indemnity Company (Petitioner) appealed the Findings and Decision of the Texas Workers Compensation Commission (Commission) acting through Envoy Medical Systems, L.P., an Independent Review Organization (IRO). The IRO disagreed with the Petitioner’s decision to deny preauthorization of the proposed purchase of an RS-4i. The RS-4i is a medical device that is used to provide muscle stimulation and interferential current stimulation. An RS-4i had been prescribed for indefinite use by the physician of S.D.L.C..(the claimant) for treatment of muscle spasms and joint pain.

This decision denies the relief sought by Petitioner.

A hearing convened on July 20, 2004, before Administrative Law Judge (ALJ) Paul D. Keeper. Steven Loomis represented Petitioner, and Patrick K. Cougill represented Respondent. Nicholas Tsourmas, M.D., an orthopedic surgeon, testified for Petitioner. Testifying for Respondent were Susan Keesee, a registered nurse and Petitioner’s insurance relations manager, and the claimant. There were no contested issues of notice or jurisdiction. The record closed following adjournment of the hearing.

The claimant injured herself on ____, while she was working in a hospital. She attempted to prevent a patient from falling to the ground, catching her under the left armpit. The strain to her left shoulder created intense periscapular pain and injury to her shoulder. She was given physical therapy and prescriptions for narcotics, muscle relaxants, and anti-inflammatory medication to reduce her pain and muscle spasms. On October 30, 2003, her physician, Dr. Gert Rohde, D.O., prescribed an RS-4i for two months for the purpose of decreasing the claimant’s shoulder pain and spasms and to restore her muscle function. On January 14, 2004, the claimant’s physician prescribed the RS-4i for an indefinite period.

On February 3, 2004, the Petitioner denied the request for authorization to purchase the RS-4i on the grounds that there was a lack of objective clinical findings to justify the requested services. The Respondent sought reconsideration of Petitioner’s decision, and on February 6, 2004, the Petitioner reasserted its decision on appeal. On April 27, 2004, the IRO issued its decision, disagreeing with the Petitioner’s decision to deny preauthorization for the purchase of the RS-4i. The IRO’s rationale for its decision was that: (1) the claimant indicated that the unit markedly improved her comfort and functional status, and (2) the claimant’s physician noted that the claimant’s medication needs are less than they would be without the RS-4i. On May 6, 2004, the Commission received Petitioner’s request for a hearing before the State Office of Administrative Hearings (SOAH).

The claimant’s physician recommended that the claimant use the RS-4i one to three times each day for 15 minutes of interferential therapy and 30 minutes of muscle stimulation. The RS-4i includes data collection software that has the capability of producing patient usage reports. For this claimant, the reports reveal the following history of use:

Period	Total Days in Period	Days of Use	No. of Treatments	Mean Treatments per Total Days	Mean Treatments per Day of Use	Mean Treatment Minutes per Days of Use
10-30-03 to 10-31-03	2	2	7	3.5	3.5	124.5
11-01-03 to 11-30-03	30	30	103	3.4	3.4	134.9
12-01-03 to 12-30-03	31	29	121	3.9	4.2	163.8
01-01-04 to 01-31-04	31	23	57	1.8	2.5	104.1
02-01-04 to 02-03-04	3	3	7	2.3	2.3	104.7
Totals	97	87	295	3.0	3.4	132.6

For the 97 days for which the claimant’s usage reports are available, the data reveals that the claimant used the RS-4i during each period for at least the number of daily treatments and number of minutes per treatment that her physician had recommended. The claimant’s use often exceeded the maximum recommended by her physician. The ALJ interprets this information to mean that the patient used the device because it was effective in providing relief from her pain. In addition, the claimant’s letter of February 9, 2004, (Respondent’s Exhibit 14) restates the claimant’s reliance on the unit for relief of pain and her preference for the unit over prescription medications.

The claimant’s physician’s letter of November 6, 2004, reflects that the claimant made significant progress in her physical condition and that the claimant obtained improvement in her left upper extremity function from the treatment program, including the use of the requested device.

The testimony of Susan Keesee, although informative about the RS-4i and the manner of its distribution, was not considered as expert testimony on the topic of medical indication for the device.

Petitioner had the burden of proof in this proceeding. The testimony of Dr. Tsourmas was that evidence-based medical studies reflect that neuromuscular electrical stimulators like the RS-4i do not provide a reliable source of pain control or long-term physical benefit, with the exception of cases requiring muscular stimulation to allow a severed nerve to regenerate in an arm or a leg to prevent muscular atrophy. Beyond that limited category of problems, Dr. Tsourmas testified, no neuromuscular stimulator, TENS unit, or similar type of device, including the RS-4i, is medically indicated.

Although the ALJ respects the testimony of Dr. Tsourmas, the Respondent’s evidence of the medical benefits to this claimant through her use of the RS-4i preponderate over that of the Petitioner. Specifically, Dr. Tsourmas= testimony focused upon the results of empirical studies of these types of devices but did not involve his examination of this patient, the extent of the pain associated with this injury, the improvement she experienced during the course of her treatment, or Bmost importantlyBthe claimant’s reliance upon the device for relief of pain. On balance, the evidence presented by the Respondent presented a compelling argument in favor of approval of the device for this claimant in that the RS-4i is an effective device for relieving her pain, has contributed to improvement of her physical condition, and is relied upon by her for pain relief.

II. FINDINGS OF FACT

1. The claimant suffered a compensable injury on ____, while she was working in a hospital.
2. The nature of the claimant’s injury was a muscular strain to her left shoulder, creating intense periscapular pain and damage to her shoulder.
3. The claimant’s physician, Gert Rohde, D.O., prescribed physical therapy and narcotics, muscle relaxants, and anti-inflammatory medication to reduce her pain and muscle spasms.
4. On October 30, 2003, her physician prescribed an RS-4i for two months for the purpose of decreasing the claimant’s shoulder pain and spasms and to restore her muscle function.
5. An RS-4i is a medical device that is manufactured by RS Medical, Respondent, and is used to provide muscle stimulation and interferential current stimulation.
6. On January 14, 2004, the claimant’s physician prescribed the RS-4i for an indefinite period.
7. On February 3, 2004, the Petitioner denied the request for authorization for purchase of the RS-4i on the grounds that there was a lack of objective clinical findings to justify the requested services.
8. The Respondent appealed Petitioner’s decision, and on February 6, 2004, the Petitioner reasserted its decision on appeal.
9. On April 27, 2004, the IRO issued its decision in which the IRO disagreed with the Petitioner’s decision to deny preauthorization for the purchase of the RS-4i.
10. The IRO’s rationale for its decision was that: (1) the claimant’s indicates that the unit markedly improved her comfort and functional status, and (2) the claimant’s physician notes that the claimant’s medication needs are less than they would be without the RS-4i.
11. The claimant’s physician recommended that the claimant use the RS-4i one to three times each day for 15 minutes of interferential therapy and 30 minutes of muscle stimulation.
12. The RS-4i’s patient usage software produced reports showing that the claimant used the RS-4i as follows: (a) 87 days of use over a 97 day period, (b) 295 treatments during that period, (c) an average of 3.0 treatments per day for every day that the claimant had use of the device, (d) an average of 3.4 treatments per day for every day that the claimant used the device, and (e) an average of 132.6 minutes of use per day for every day that the claimant used the device.
13. The claimant’s history of use reflects that the claimant used the device at least as frequently as prescribed by her physician.
14. The patient’s frequency and duration of using the device reflects that the device has been effective in controlling her pain.
15. The claimant made significant progress in her physical condition and made improvement in her left upper extremity function from her treatment program, including the use of the requested device.
16. In this case, the RS-4i is an effective device for relieving pain for this claimant, has contributed to the improvement of the physical condition of this claimant, and is relied upon by this claimant for pain relief.
17. On May 6, 2004, the Commission received Petitioner’s request for a hearing before the State Office of Administrative Hearings (SOAH).
18. A hearing on the merits was convened in this case on July 20, 2004, before Administrative Law Judge (ALJ) Paul D. Keeper.
19. The record closed following adjournment of the hearing.

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 did not prove by a preponderance of the evidence that the preauthorization of an RS Medical RS-4i interferential and muscle stimulator for use by Claimant was not medically necessary.
8. Petitioner did not establish that indefinite use was not the appropriate length of time for treatment of the claimant.

ORDER

THEREFORE IT IS ORDERED that Petitioner Travelers Indemnity Company’s request for relief is DENIED and the preauthorization of the use of an RS Medical RS-4i interferential and muscle stimulator for claimant____ is GRANTED.

Signed August 5, 2004.

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