DECISION AND ORDER

ABF Freight Systems (ABF), a self-insured employer, has appealed the decision by an Independent Review Organization (IRO) to grant preauthorization for Claimant ____ to receive renovations to his home to accommodate his handicap and to receive a handicap-accessible van. ABF disputes that these items are “health care” as defined by the Texas Workers’ Compensation Act and disagrees with the scope of the requested modification to ____’s home. In response, ____ argues that the requested items are health care; the modifications to his home are reasonable and necessary; ABF agreed to provide these modifications; and ABF should provide him with a handicap-accessible van. This decision finds that modifications to ____’s home to make it handicap-accessible constitute health care under the Texas Workers’ Compensation Act, but it limits the scope of the modifications requested by ____ The decision also finds that ABF is required to provide modifications to a van to make it handicap accessible but is not required provide the van itself. The extent of these home and van modifications is discussed in more detail in the text of the decision.

I.JURISDICTION & HEARING

There were no challenges to notice or jurisdiction, and those matters are set forth in the findings of fact and conclusions of law without further discussion here. Administrative Law Judge (ALJ) Thomas H. Walston conducted a hearing in this case on August 2, 2004, at the State Office of Administrative Hearings (SOAH), William P. Clements State Office Building, 300 West 15th Street,

Austin, Texas. Attorney Janice Menzies represented ABF, and attorney Larry Trimble represented ____ The hearing concluded the same day, but the ALJ kept the proceeding open to allow the parties to participate in post-hearing mediation. A mediator from SOAH conducted a settlement conference on August 19, 2004, and the parties continued negotiations during the following days. However, the parties did not reach a settlement agreement and the mediator declared an impasse on September 1, 2004, at which time the record closed.

II.DISCUSSION

Background

Claimant ____ is a 60-year-old male who previously worked as a truck driver for ABF. On ____, ____ sustained a compensable injury in a major motor vehicle accident. ____ was ejected from his tractor-trailer rig and suffered catastrophic injuries, including a T-11 burst fracture that compromised 50% of the spinal cord and resulted in complete paralysis below the navel, a small interhemispheric subdural hematoma (brain injury), a complex right scapular fracture, bilateral lung contusions, and renal contusion.

____ has undergone an extensive course of medical care for his injuries, including treatment at the Scott & White Hospital in Temple, the Dallas VA Hospital Spinal Cord Wing, and the Baylor Rehab Unit in Dallas. ____’s medical records will not be summarized in detail in this decision, as it is sufficient to note for the issues in this case that he remains completely paralyzed below the navel and is dependent upon a wheelchair for mobility. At issue is ____’s request for modifications to his home to accommodate his wheelchair and for a van modified for his wheelchair and equipped with hand controls for him to drive.

In an undated letter to ABF, Dr. Lance Bruce of the Baylor Institute for Rehabilitation made the following recommendations concerning renovations to ____’s home:

. . . The following modifications are recommended for the home of____. Two entrance/exit doorways need to be 36″ wide and ramps built to make them accessible. The hallway leading to bedrooms and bathrooms need to be widened to 42″ to accommodate the wheelchair. The doorway to the master bedroom as well as the bathroom needs to be 36″. The master bathroom needs to have a 5′ turning radius for maneuverability, and a sink adjusted so ___ can roll under it. ___ will use a rolling shower chair for his bathing, therefore, a rolling shower needs to be 5’X5′.

The flooring throughout the home should be a solid smooth surface to conserve energy and increase ___’s efficiency with propulsion. Prior to his injury, ___ was an avid chef. Currently his kitchen is not a safe working environment. To make this environment safe for his daily use, the following modifications should be made. The kitchen modifications include having a countertop lower for safe food preparation. The stove needs to have control knobs in front for ___’s access. He will also need either a mirror over the stove and Visions cookware to observe food cooking, or the countertop with stove top on it lowered for visual access. A side by side refrigerator will allow ___ access to both freezer and refrigerator sides. . . .

ABF approved payment for certain modifications to ____’s home, essentially following Dr. Bruce’s recommendation. However, ____’s wife then hired a contractor who began working on a much larger renovation than approved by ABF, including the addition of a second story to the house. This caused a dispute between ABF and ____’s wife over the scope of renovations, and ABF has not made any payment for the work done on the house. Eventually, ____ and his wife ran out of money before the renovations were completed, and work stopped with the house essentially gutted and uninhabitable. As a result, ____ and his wife currently live in a handicap-adapted hotel, paid for by ABF. In fact, ____ has not lived in his home at any time since his accident because the doorways and hallways in ____’s home were too small for his wheelchair. Instead, he has lived in either a hospital, a rehabilitation facility, or a hotel.

ABF also previously approved payment for modifications for hand controls that would allow ____ to drive his current vehicle, a Chevrolet Suburban. However, the company that makes such modifications advised ____ that his Suburban is inadequate to handle his wheelchair. Therefore, ____ requested ABF to provide him with a van modified to handle his wheel chair and equipped to drive with hand controls. Dr. Susan Garstang of the University of Texas Southwestern Medical Center recommended such a van in a letter dated July 8, 2003:

In order for ____ to progress in his rehabilitation and community reintegration, he will need a handicapped-accessible van. This van must have a lift that he can use to enter and exit the van while seated in his power chair. The lift must be remotely controlled, so the patient can deploy the lift independently when he is outside the vehicle. Once inside the van, there must be wheelchair tie-downs for safety. Given the possibility that he will be able to drive in the future with hand-controls, the option for this should also be anticipated.

ABF has refused to provide ____ with a van. Consequently, ____ rarely travels and is generally confined to his hotel. He uses a transport service paid for by ABF to go to medical appointments and he participates in other travel only when his wife rents a wheelchair-modified van.

____ appealed ABF’s denials to the Texas Workers’ Compensation Commission, which referred the matter to the Ziroc IRO. The IRO reviewer disagreed with ABF and found that the requested services were medically necessary. However, the reviewer also noted that “Ziroc has made no determinations regarding benefits available under the injured employee’s policy.” The reviewer stated her rationale as follows:

. . . A proper living environment is essential for someone with Mr. ___’s needs. He needs an environment that will allow him to function and allow the caregivers who are assisting him in his normal daily living activities to function. Therefore, accommodations do need to be provided for the person or persons that would be providing him with ongoing care to maintain his health. Since he will continue to need a considerable amount of medical care in the future and will continue to need a means of transportation to the medical care, the reviewer agrees with Dr. Ganstang that the properly fitted handicapped van would be important to his ongoing care

and health. In addition, if he is to ever achieve any form of independence and be able to return to any kind of work at all, he will definitely need the ability to operate the van himself.

The standard of care for a closed head injury person, if that was his only problem, would include necessity of supervision 24 hours a day, seven days a week, whether a family member or another health care provider. In his particular situation, a place for him to stay, such as in his home, would be a reasonable method of arranging for that care. . . .

ABF timely requested a contested case hearing to appeal the IRO’s decision.

B. Parties’ Evidence and Arguments

ABF

ABF contends that modifications to a home or an automobile, regardless of their reasonableness and necessity, are not “health care” or a “medical benefit” under the Workers’ Compensation Act. ABF first cites Tex. Lab. Code § 401.011(31), which defines “medical benefit” as follows:

“Medical benefit” means payment for health care reasonably required by the nature of the compensable injury and intended to:

(A) cure or relieve the effects naturally resulting from the compensable injury . . .;

(B) promote recovery; or

(C) enhance the ability of the employee to return to or retain employment.

ABF states that the key phrase in this definition is “health care,” and it argues that if a service is not “health care” it also is not a medical benefit. And it argues that home and vehicle modifications simply are not “health care” under the definition contained in Tex. Lab. Code § 401.011(19):

“Health care” includes all reasonable and necessary medical aid, medical examinations, medical treatments, medical diagnoses, medical evaluations, and medical services. The term does not include vocational rehabilitation. The term includes:

(A) medical, surgical, chiropractic, podiatric, optometric, dental, nursing, and physical therapy services provided by or at the direction of a doctor;

(B) physical rehabilitation services performed by a licensed occupational therapist provided by or at the direction of a doctor;

(C) psychological services prescribed by a doctor;

(D) the services of a hospital or other health care facility;

(E) a prescription drug, medicine, or other remedy; and

(F) a medical or surgical supply, appliance, brace, artificial member, or prosthesis, including training in the use of the appliance, brace, member, or prosthesis.

In ABF’s view, home and vehicle modifications do not fall within the services listed in the definition of ”health care” and, therefore, cannot be recovered as a medical benefit under the Workers’ Compensation Act. It cites prior SOAH decisions holding that handicap-modified vehicles are not health care, and it suggests that the same logic applies to home modifications. ABF acknowledges that it previously agreed to pay for some modifications to ____’s house and vehicle, even though they do not constitute health care under the Workers’ Compensation Act. However, ____ and his wife hired a contractor who “gutted” the house and added a second story, which greatly exceeded the modifications agreed to by ABF and made it impossible to complete the agreed modifications. Further, it was later determined that ____’s current vehicle could not be modified to handle a wheelchair, and ABF states that ____ has not been released by his doctor to drive.

In response to ____’s argument that ABF has voluntarily certified these services under TWCC Rule 134.600(j)(4), ABF points out that the section refers to preauthorization of “health care.” But, as discussed previously, ABF contends that the home and vehicle modifications are not health care, so it argues that the section relied on by ____ does not apply. Therefore, ABF argues that it is no longer obligated to provide the agreed modifications to ____’s home or vehicle.

ABF called Julie Shank as a witness. Ms. Shank has been a registered nurse for 30 years and has worked for a number of employers, including the Texas Workers’ Compensation Commission (TWCC) from 1988-1996. She began at TWCC as a nurse auditor but advanced to manager of the Medical Review Division. In that position, she worked on policy development, drafting rules for TWCC, and testifying for TWCC at the Legislature on workers’ compensation issues. Currently she is self employed as a consultant on workers’ compensation.

In Ms. Shank’s opinion, home and vehicle modifications do not fall within the Workers’ Compensation Act’s definition of “health care.” Further, she stated, ABF’s agreement to provide some home and vehicle modifications do not fall within the TWCC voluntary certification Rule 134.600(j)(4) because that rule applies only to “health care,” which, in her opinion, does not include modifications to a home or vehicle. In addition, she suggested that home and vehicle modifications are not included on TWCC’s list of services that require preauthorization because they are not health care.

Ms. Shank also testified that a motor vehicle does not fall within the criteria for durable medical equipment under the TWCC 1996 Medical Fee Guidelines. Those criteria require that a device can withstand repeated use, be primarily or customarily used for medical purposes, not be useful in the absence of an injury or illness, and be appropriate for home use. She stated that a vehicle is useful without an injury or illness, is not used customarily for medical purposes, and, thus, is not a durable medical device. Ms. Shank acknowledged that home and vehicle modifications would contribute to a better life and better well being for ____, but she stated that this beneficial effect does not make the modifications health care.

On cross examination, Ms. Shank agreed that she has no legal training and that she is paid for her testimony. She also agreed that a physician, Dr. Bruce, recommended the home modifications and that the modifications are reasonable and necessary for ____, given the extent of his injuries. But she continued to assert that these modifications are not health care. In addition, Ms. Shank

stated that, in her opinion, the requested vehicle modifications were not reasonable because she understands that ____ is not physically able to drive at this time, even with the modifications. Ms. Shank agreed that ambulance services and assisted living can constitute reasonable and necessary health care, depending on the circumstances.

Concerning voluntary preauthorization of services under Rule 134.600(j)(2), Ms. Shank explained that the rule requires documentation of the preauthorization, but there is no specific form required for this. Once voluntary preauthorization is provided by a carrier, the carrier becomes liable to pay the agreed amount. However, Ms. Shank did not believe that voluntary certification occurred in this case because the rule only applies to “health care.”

With respect to the durable medical equipment rule, Ms. Shank explained that the criteria she cited are actually contained within Medicare guidelines, which are incorporated by reference in the 1996 and 2002 TWCC Medical Fee Guidelines pursuant to TWCC Rule 134.202(b). Ms. Shank stated that she did not believe the home improvements qualified under these criteria because the modifications are not primarily for medical use. In addition, she stated that the modifications would not promote medical recovery or relieve the effects of ____’s compensable injuries, although they would make his life easier. However, she acknowledged that ____ would not need these modifications if he were not confined to a wheelchair.

In summary, ABF contends that modifications to a home or van are not health care under the Workers’ Compensation Act and that ABF’s agreement to provide these items did not constitute voluntary certification under Rule 134.600(j)(2) because the rule applies only to health care.

____

____ argues that he suffered a catastrophic injury and that the home and vehicle modifications are reasonable and necessary health care under the circumstances. He states that the home and vehicle modifications fall under “medical aid” in the definition of “health care” in Tex. Lab. Code §401.011(19). ____ also argues that the statutory definition does not include an exhaustive list of health care, and he notes that TWCC considers nursing home care as health care, although not listed in the definition. He also contends that ramps, wider doorways, large turning areas, and similar modifications fall within the scope of residential and home health-care services. Further, ____ emphasizes that ABF agreed in writing that it would pay for the home and vehicle modifications, which caused ____’s wife to move forward with remodeling their home. In his view, ABF’s voluntary certification waived any argument that the home and vehicle modifications are not health care.

____ testified at the hearing. He is married and has two children, ages 30 and 22. Prior to his accident, ____ worked for ABF as a truck driver for 32 years. ____ recalls little about his accident except that a car pulled out in front of him. He suffered a broken back, a cut on his left ear, and a small brain injury. ____ stated that he has complete paralysis below the navel.

____ stated that he underwent two training sessions for driving a handicap-modified van. The modifications allow a wheelchair to be located behind the steering wheel and hand controls allow driving without the use of his legs. ____ requests a modified van so he can be mobile and go places. Currently, he relies on a transportation service to go to doctor’s appointments, or on a special rented van, driven by his wife, to travel elsewhere. ____ owns a Suburban, but it cannot handle his wheelchair. Under the present circumstances, ____ stated that he has essentially been confined to a handicap-adapted hotel for two years.

____ testified that his wife is handling their home modifications. He explained that he needs wider doors and hallways and a larger bedroom and bathroom to handle his wheelchair, as well as equipment to assist him in getting in and out of his wheelchair, bathtub, and bed. ____ also stated that he likes to cook and needs lower counter tops and a lower stove that would allow him to prepare food while in his wheelchair. ____ also explained that he and his wife did not expect ABF to pay for all of the remodeling they planned for their house, but only the modifications necessary to accommodate his wheelchair and other equipment.

On cross examination, ____ testified that their home has essentially been gutted and a second story added. In its present condition, there are no interior walls or counters. He also acknowledged that no doctor has officially cleared him for driving at this time.

Mrs. ____ also testified. She stated that, in addition to his paralysis, ____ had a broken scapula and a torn rotator cuff, but that these have resolved and will not keep ____ from driving. She explained that a van needs a 600 lb. capacity lift to load and unload ____ and his wheelchair, equipment to secure the wheelchair once it is in the van, and controls to enable ____ to drive himself.

For home modifications, Mrs. ____ stated that the home needs a ramp, wider doors and halls, a larger bathroom and bedroom, lowered stove and kitchen counters, hard surface flooring, and special closets to allow ____ to reach his clothes. In addition, Mrs. ____ testified that she also requested space for herself. The original size of the home was 1,359 square feet. It included three bedrooms and a small office for a real estate business she operated in addition to her regular job. Due to the small size of the home, Mrs. ____ requested ABF to add about 300 square feet of space for her, as the spouse and housekeeper. When ABF declined to approve this, Mrs. ____ decided to

go forward with the renovations, including the expansion, and she planned to pay for the additional work herself. Mrs. ____ also explained that she had to add a second story for the extra space

because of the small lot size and restrictions that prevented adding another room to the first floor.

Ms. ____ testified that a therapist evaluated their house and made recommendations for the modifications. She also worked with a caseworker from ABF and a contractor. ABF requested a prescription for these modifications, which Mrs. ____ obtained. ABF then sent her a list of modifications that it approved. Mrs. ____ obtained multiple bids for the work, and she understood that ABF would provide her with a check for the amounts it approved, which she could add to her own money to complete all the modifications that she and ____ wanted. However, a dispute arose after the work began and ABF refused to provide any funding. As a result, she and ____ ran out of money and the work on their home ceased.

On cross examination, Mrs. ____ stated that the second story to their home has been framed, plumbed, and wired, but there is no sheetrock on the interior walls. Also, the modifications to the first floor have been framed but not sheetrocked. However, Mrs. ____ reiterated that she is not looking for more money from ABF than it approved. She planned to pay for the extra modifications herself.

C. ALJ’s Analysis and Decision

The primary issue in this case is whether modifications to ____’s home and vehicle to accommodate the disability resulting from his compensable injury constitute “health care” or a “medical benefit” as defined by the Texas Workers’ Compensation Act. Additional issues are whether ABF is required to purchase a van (in addition to modifications) and whether ABF’s agreement to provide modifications to ____’s home and vehicle amounted to a voluntary

certification under TWCC’s rules. Based on the evidence and the applicable legal authority, the ALJ finds the following:

• reasonable home modifications necessary to make a medical appliance (such as a wheelchair, lift, or special bed) useable to an employee who has sustained a compensable injury constitutes health care and a medical benefit under the Texas Workers’ Compensation Act;
• ABF voluntarily certified modifications to ____’s home and vehicle pursuant to TWCC Rule 134.600(j)(4) and is liable for the reasonable costs of such modifications pursuant to TWCC Rule 134.600(b)(2);
• ABF is not required to purchase a handicap accessible van for ____;
• if ____ purchases an appropriate van, ABF is required to provide modifications to the van to make it useable by ____
• Definitions of “medical benefit” and “health care”

As discussed previously, Tex. Lab. Code § 401.011(31), defines “medical benefit” as follows:

“Medical benefit” means payment for health care reasonably required by the nature of the compensable injury and intended to:

(A) cure or relieve the effects naturally resulting from the compensable injury . . .;

(B) promote recovery; or

(C) enhance the ability of the employee to return to or retain employment.

The proposed modifications to ____’s home and vehicle will not promote ____’s recovery in the sense of curing his paralysis, nor is it likely to enhance his ability to return to work. However, the ALJ finds that the modifications clearly will relieve the effects naturally resulting from ____’s compensable injury. ____ has complete paralysis below the navel and is confined to a wheelchair. But neither ____’s home nor his vehicle can accommodate his wheelchair, and ____’s inability to

move about his home or operate his vehicle are adverse effects naturally resulting from his injury. Even ABF witness Ms. Shank acknowledged that the proposed modifications are reasonable and necessary (although she disputed that they constitute health care). As the proposed

modifications are reasonably required by the nature of ____’s injury and are intended to relieve adverse effects resulting from the injury, they satisfy the criterion of § 401.011(31)(A), even if they will not cure his paralysis or enhance his ability to return to work.

Although the home and vehicle modifications are intended to relieve the effects naturally resulting from ____’s compensable injury, they still do not qualify as a medical benefit under the Act unless they qualify as “health care.” Health care is defined at Tex. Lab. Code § 401.011(19):

“Health care” includes all reasonable and necessary medical aid, medical examinations, medical treatments, medical diagnoses, medical evaluations, and medical services. The term does not include vocational rehabilitation. The term includes:

(A) medical, surgical, chiropractic, podiatric, optometric, dental, nursing, and physical therapy services provided by or at the direction of a doctor;

(B) physical rehabilitation services performed by a licensed occupational therapist provided by or at the direction of a doctor;

(C) psychological services prescribed by a doctor;

(D) the services of a hospital or other health care facility;

(E) a prescription drug, medicine, or other remedy; and

(F) a medical or surgical supply, appliance, brace, artificial member, or prosthesis, including training in the use of the appliance, brace, member, or prosthesis.

ABF argues that home and vehicle modifications are not listed as health care in § 401.011(19) and cannot reasonably be considered a part of the health-care items that are listed in the definition. ____ argues that the modifications are reasonable and necessary to relieve the effects of his compensable injury and, thus, should be considered as health care. Neither party cited any legal authority for its position, except that ABF cited two prior SOAH decisions that found handicap-modified vans did not qualify as a medical benefit.

In reviewing the sttutory definitions of Amedical benefit and Ahealth care, the ALJ notes that the Legislature used the operative word Ameans to define medical benefit in ‘ 401.011(31) (Medical benefit” means . . .) but used the word Aincludes in ‘ 401.011(19) to define health care

(Health care” includes . . .). This different wording has legal significance because the Code Construction Act^[1] at Tex. Gov’t Code ‘ 311.005(13) provides:

Includes and Aincluding are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded.

Further, even before doption of the Code Construction Act, the common law rule of statutory construction held that the words Ainclude and Aincluding were terms of enlargement and not of limitation.^[2] Therefore, the ALJ finds that home and vehicle modifications to accommodate a handicap resulting from a compensable injury are not excluded from the definition of health care at ‘ 401.011(19) simply because they are not expressly listed among the items included in the definition.

Home modifications

Although the ALJ has determined that home modifications are not excluded from the Act’s definition of Ahealth care, it is still necessary to determine whether home modifications are included in the health care definition. The ALJ has not found, and the parties have not cited, any Texas cases that considered whether home modifications to accommodate a wheelchair constitute health care under the Texas Workers’ Compensation Act. However, several out-of-state court decisions have considered this issue under their workers’ compensation statutes. These include the following:

• Pringle v. Myor and Alderman of the City of Savannah, 478 S.E.2d 139 (Ga. App. 1996): carrier required to pay rent for a handicap-accessible apartment under statute that provided for Arehabilitation benefits, which specifically included necessary home and vehicle modifications.
• SIF Corp. v. Glubrecht, 967 P.2d 490 (Ore. App. 1998): home modifications for a quadriplegic were Acompensable medical services under Oregon Act which provided for Aprosthetic appliances, braces and supports. The court reasoned that A. . . structural modifications are an extension of the wheelchair itself, without which the wheelchair could not serve as the tool it was intended to serve. Without the structural modifications, a wheelchair could not assist a person without the use of his or her legs to be independently mobile in the home. Id. at 495.
• Rieger v. Workmen’s Comp. ppeal Bd., 521 A.2d 84 (Pa. Cmwlth 1987): home modifications were compensable as payment for Aorthopedic appliances. The court noted that the act was to be liberally construed and that a wheelchair was an orthopedic appliance. Therefore, it held that the home modifications made the wheelchair useable in the claimant’s home and that Adevices to aid in the use of wheelchairs fit within the definition of orthopedic.’
• Squeo v. Comfort Control Corp., 494 .2d 313 (N.J. 1985): construction of a handicap-accessible apartment recoverable as Aother treatment necessary to cure and relieve an injured worker. New Jersey workers’ compensation act required employer to furnish Amedical, surgical, and other treatment. The court noted that the act was to be liberally construed and that it involved unique circumstances.
• Derebery v. Pitt County Fire Mrshall, 347 S.E.2d 814 (N.C. 1986): wheelchair accessible housing fell within statutory scope of Aother treatment or care. When structural modification to existing housing is not feasible, Aother treatment or care may include a duty to furnish alternate, wheelchair accessible housing.
• Miller v. E.M.C. Ins. Cos., 610 N.W.2d (Neb. 2000): Home modifictions authorized under statute that the employer Ashall be liable for all reasonable medical, surgical, and hospital services, including . . . appliances, supplies, prosthetic devices, and all medicines as and when needed . . . . The court held that the modifications fell within appliances or supplies
• R&T Const. Co. v. Judge, 594 A.2d (Md. 1991): Home modifications authorized under statute that provided for Amedical . . . or other attendance or treatment. The court noted that the workers’ compensation statute was to be liberally construed. Further, the court reasoned: the wheelchair is a medical apparatus,’ and, without wheelchair accessibility, use of the apparatus is denied in the location where the [legislature] would expect the wheelchair most commonly to be used. Id. at 107. However, authorized modifications were limited to those that were necessary for self sufficiency and did not include additional Aquality of life modifications. Id. at 108.

Although these cases considered workers’ compensation acts from other states, the ALJ finds their reasoning sound and equally applicable to the Texas Workers’ Compensation Act. Four of the cases conclude that home modifications are, in effect, an extension of an authorized wheelchair or appliance when the modifications are necessary to make the wheelchair useable in the home (SAIF Corp., Rieger, Miller, R&T Const.), and three of the cases found that home modifications fell within the catchall phrase Aother treatment or care (Squeo, Derebery, R&T Const.).^[3] Like the statutes involved in those cases, the Texas Workers’ Compensation Act’s definition of Ahealth care also includes Aa medical or surgical supply, appliance, brace, artificial member, or prosthesis, and the ALJ agrees with the courts’ statements in SAIF Corp., Rieger, and R&T Const. that home modifications necessary to make a wheelchair (appliance) useable are an extension of the wheelchair itself and, therefore, constitute health care under the Act. Further, the Texas definition of health care includes Aother remedy, and the ALJ concurs with the courts’ reasoning in Squeo, Derebery, and

R&T Const. that reasonable home modifications necessary to make a medical appliance useable are an Aother remedy constituting health care.

In all of the cited cases, the courts noted that workers’ compensation statutes are to be liberally construed in favor of the injured worker. Likewise, the Texas Supreme Court has stated that the Texas Workers’ Compensation Act should be liberally construed in the employee’s favor, which further supports the conclusion that modifications to ____’s home constitute health care under the Texas Workers’ Compensation Act. See, Payne v. Galen Hosp. Corp., 28 S.W.2d 15, 17 (Tex. 2000).

Finally, the ALJ notes that ABF voluntarily pre-certified modifications to ____’s home. ABF’s counsel argued that ABF did this as an act of kindness to a long-time employee, but ABF offered no evidence to support this argument. And considering the less than amicable relationship that existed between ABF and ____, the ALJ does not accept counsel’s argument. ABF also argued that TWCC Rule 134.600(j)(4), which governs voluntary certification of health care, did not apply to its agreement to provide modifications to ____’s home because the rule only applies to health care, but home modifications do not constitute health care. However, the ALJ has concluded that home modifications can constitute health care. Thus the ALJ also finds that ABF has certified those home improvements in accordance with Rule 134.600(j)(4) and that ABF is liable for such improvements pursuant to Rule 134.600(b)(2). In short, the ALJ finds that (1) ABF’s certification of ____’s home modifications shows that ABF itself believed the home modifications qualified as health care under the Act; (2) ABF did, in fact, certify the home improvements pursuant to Rule 134.600(j)(4); and (3) ABF is liable for the improvements under Rule 134.600(b)(2).

Therefore, the ALJ concludes that reasonable home modifications necessary to make a medical appliance (such as a wheelchair, lift, or special bed) useable to an employee who has sustained a compensable injury constitute health care and a medical benefit under the Texas Workers’

Compensation Act, and that the modifications that ABF previously agreed to provide should be preauthorized. These pre-certified home modifications include the following:

• lower all kitchen countertops
• replace kitchen faucet with handheld faucet
• mirror over stove
• one set of Visions cookware
• new toilet with 20 inches on each side
• 5′ X 5′ shower with handicapped shower fixtures
• new ADA compliant sink
• floor drain
• ceramic tile throughout bathroom
• increase bathroom size 5′ turning radius
• widen bathroom door to 36 inches
• widen hallway to 42 inches
• move furnace to allow for 42 inch clearance
• increase door opening to master bedroom to 36 inches
• connect master bedroom to bathroom if feasible
• increase master bedroom size to accommodate wheelchair, lift, and other appliances
• install a wheel-in closet in master bedroom (like or similar)
• widen front entrance to 36 inches
• widen rear entrance to 36 inches
• install ramps at both entrances
• install hard surface floors on first floor
• change all ceiling fans on first floor to remote control.^[4]

The ALJ does not, however, find that the additional items requested by ____ are reasonable or necessary medical care. These include a second entrance to the kitchen, a front loading washer and dryer, a new bathtub (in addition to the preauthorized shower), replacement of all wiring and switches, a second floor to the house, a new garage, etc. While these items may improve the lifestyle of ____ or his wife, they are not necessary for ____’s treatment and mobility in his home.

Handicap-accessible van

Like modifications to ____’s home, the parties have not cited, and the ALJ has not found, any Texas case that decided whether a handicap-accessible van is health care under the Texas Workers’ Compensation Act. Numerous out-of-state cases have reached different conclusions under their respective workers’ compensation statutes. Some have held that a van with modifications must be provided; some have held that carrier must provide modifications to make a van handicap accessible, but the injured worker must provide the van itself; and some have held that the carrier is not required to provide either a van or modifications. See, Compensability of Specially Equipped Van or Vehicle Under Workers’ Compensation Statutes, 63 A.L.R.5th 163 (1998). Three SOAH decisions have held that a carrier is not required to provide a van or truck, but these decisions did not discuss whether a carrier had to provide handicap modifications if the injured employee provided the van. ___ v. Travelers Indemnity Co., No. 453-02-3364.M5 (Oct. 22, 2002);___ v. Texas Ass’n of School Boards Risk Management Fund, No. 453-00-2564.M2 (Apr. 16, 2001);___ v. Reliance National Indem. Co., 453-97-2186.M2 (Nov. 13, 1998).

The ALJ agrees with the prior SOAH decisions that ABF is not required to provide ____ with a handicap-accessible van. As discussed previously, ABF provides transportation for ____ to go to doctor visits and other treatments, and a van is not necessary for him to receive medical care. However, if ____ purchases a van suitable for handling his wheelchair, ABF will be required to provide reasonable modifications to make the van handicap accessible. Dr. Garstang prescribed the van modifications and ABF previously agreed to provide them to ____’s vehicle. That agreement amounted to a voluntary certification under TWCC Rule 134.600(j)(4); thus, ABF is liable for the modifications under Rule 134.600(b)(2).

Conclusion

In conclusion, the ALJ finds the following:

• reasonable home modifications necessary to make a medical appliance (such as a wheelchair, lift, or special bed) useable to an employee who has sustained a compensable injury constitute health care and a medical benefit under the Texas Workers’ Compensation Act;
• ABF voluntarily certified various modifications to ____’s home pursuant to TWCC Rule 134.600(j)(4) to allow ____ to use his wheelchair in his home, and ABF is liable for those pre-certified modifications under Rule 134.600(b)(2);
• ABF is not liable for additional requested modifications to ____’s home that are not necessary for the use of his wheelchair or other medical appliances;
• ABF is not liable to provide ____ with a handicap-accessible van;
• ABF voluntarily certified various modifications to ____’s vehicle pursuant to TWCC Rule 134.600(j)(4) to make it handicap accessible, and ABF is liable for those certified modifications under Rule 134.600(b)(2) if ____ purchases a van that is suitable for use with his wheelchair.

III.FINDINGS OF FACT

1. Claimant ____ suffered a compensable injury under the Texas Workers’ Compensation Act on ____, when he was involved in a motor vehicle accident.
2. At the time of ____’s compensable injury, his employer ABF Freight Systems, Inc. (ABF) was self-insured for workers’ compensation benefits.
3. ____ suffered catastrophic compensable injuries that included a T-11 burst fracture that compromised 50% of the spinal cord and resulted in complete paralysis below the navel, a small interhemispheric subdural hematoma (brain injury), a complex right scapular fracture, bilateral lung contusions, and renal contusion.
4. ____ is completely paralyzed below the navel. He is confined to a wheelchair for mobility and must use a special lift to get in and out of bed.
5. At the time of his injury, ____ lived in a house with narrow doorways and hallways and other barriers that prevented him from using his wheelchair and other necessary equipment in his house.
6. Dr. Lance Bruce of the Baylor Institute of Rehabilitation recommended several modifications to ____’s home so that the home would accommodate ____’s wheelchair and other medical devices.
7. On February 10, 2003, ABF agreed in writing to pay the following modifications to ____’s home:

lower all kitchen countertops

replace kitchen faucet with handheld faucet

mirror over stove

one set of Visions cookware

new toilet with 20 inches on each side

5′ X 5′ shower with handicapped shower fixtures

new ADA compliant sink

floor drain

ceramic tile throughout bathroom

increase bathroom size 5′ turning radius

widen bathroom door to 36 inches

widen hallway to 42 inches

move furnace to allow for 42 inch clearance

increase door opening to master bedroom to 36 inches

connect master bedroom to bathroom if feasible

increase master bedroom size to accommodate wheelchair, lift, and other appliances

install a wheel-in closet in master bedroom (like or similar)

widen front entrance to 36 inches

widen rear entrance to 36 inches

install ramps at both entrances

install hard surface floors on first floor

8. change all ceiling fans on first floor to remote control.
9. ABF’s agreement to pay for the modifications described in Finding of Fact No. 7 was a voluntary certification under TWCC Rule 134.600(j)(4).
10. Additional home modifications requested by ____ were not reasonable and necessary to alleviate the effects of ____’s compensable injury.
11. After Mrs. ____ started remodeling ____’s home, a dispute arose between Mrs. ____ and ABF, and ABF has refused to pay for the home modifications described in Finding of Fact No. 7.
12. At the time of his injury, ____ owned a Chevrolet Suburban vehicle that could not accommodate his wheelchair.
13. On July 8, 2003, Dr. Susan Garstang of the University of Texas Southwestern Medical Center recommended that ____ be provided a vehicle modified to handle his wheelchair and equipped to drive with hand controls.
14. ABF agreed to provide modifications to ____’s current vehicle as recommended by Dr. Garstang, but ABF did not agree to purchase ____ a new vehicle. ABF’s agreement to pay for the modifications described in Finding of Fact No. 12 were a certification under TWCC Rule 134.600(j)(4).
15. ____’s Suburban could not be modified as recommended by Dr. Garstang and ____ requested ABF to provide him with a new van modified to handle his wheelchair and equipped to drive with hand controls.
16. ABF provides transportation for ____ to attend doctor appointments and other medical treatment.
17. A new handicap-modified van is not reasonable and necessary medical care nor a durable medical device.
18. ABF refused to provide ____ with a new handicap-modified van.
19. ____ requested medical dispute resolution concerning modifications to his home and the purchase of a new handicap-modified van.
20. The Independent Review Organization (IRO) reversed ABF’s decision and granted ____’s request for preauthorization of home modifications and a new handicap-modified van.
21. ABF requested a contested case hearing before the State Office of Administrative Hearings and requested denial of the home modifications and a new handicap-modified van.
22. Administrative Law Judge Thomas H. Walston conducted a hearing in this case on August 2, 2004.
23. ABF and ____ attended the hearing.
24. All parties received not less than 10 days notice of the time, place, and nature of the hearing; 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.
25. All parties were allowed to respond and present evidence and argument on each issue involved in the case.
26. At the conclusion of the hearing, ABF and ____ agreed to participate in post-hearing mediation. A mediator from SOAH conducted a settlement conference on August 19, 2004, and the parties continued negotiations during the following days. However, the parties did not reach a settlement agreement and the mediator declared an impasse on September 1, 2004, at which time the record closed.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction over this matter. Tex. Labor Code Ann. ‘ 413.031.
2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing, including the authority to issue a decision and order. Tex. Labor Code Ann. ‘ 413.031(k).
3. All parties received proper and timely notice of the hearing. Tex. Gov’t Code Ann. ” 2001.051 and 2001.052.
4. ABF has the burden of proof by a preponderance of the evidence.
5. Reasonable home modifications necessary to make a medical appliance (such as a wheelchair, lift, or special bed) useable to an employee who has sustained a compensable injury constitute health care and a medical benefit under the Texas Workers’ Compensation Act, Tex. Lab. Code ” 401.011(19) & (31).
6. Based on Conclusion of Law No. 5 and Finding of Fact No. 8, ABF is liable for modifications to ____’s home described in Finding of Fact No. 7, pursuant to TWCC Rule 134.600(b)(2).
7. Based on Finding of Fact No. 9, ABF is not liable for additional home modifications requested by ____
8. Based on Findings of Fact Nos. 12 and 13, ABF is liable to provide modifications to a vehicle owned by ____ in order for the vehicle to handle ____’s wheelchair and equipped to allow ____ to drive the vehicle with hand controls.
9. Based on Finding of Fact No. 16, ABF if not liable to purchase ____ a new handicap-modified van.
10. ABF’s appeal is granted in part and denied in part. ABF is liable to pay for home and vehicle modifications as described in Findings of Fact Nos. 7 and 13, but ABF is not liable for additional home modifications and is not liable to purchase ____ a new handicap-modified van.

ORDER

IT IS, THEREFORE, ORDERED that ABF’s appeal is GRANTED IN PART and DENIED IN PART; and it is further ORDERED that ABF is liable to pay for ____’s home modifications as described in Findings of Fact Nos. 7, and is liable to pay for modifications to a vehicle to make it handicap accessible, if ____ purchases a vehicle suitable for such modification, but ABF is not liable for additional home modifications and is not liable to purchase ____ a new handicap-modified van.

Signed September 30, 2004

THOMAS H. WALSTON
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The Code Construction Act applies to the Texas Labor Code pursuant to Tex. Gov=t Code Ann. ‘ 311.002(1).↑
2. El Paso Elec. Co. v. Safeway Stores, 257 S.W.2d 502, 506 (Tex. Civ. App. – El Paso, writ ref. n.r.e.).↑
3. The Pringle case involved a statute that expressly authorized home modifications as a rehabilitation benefit. The ALJ does not find that case to be applicable to the analysis of the Texas Workers= Compensation Act.↑
4. See, ____ Ex. L, tab 6.↑