Decision  Debra Reinke v. City of Holyoke School Department

Date:	02/16/2005
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 049571-01
Location:	Boston

• Employee: Debra Reinke
• Employer: City of Holyoke School Department
• Insurer: City of Holyoke

COSTIGAN, J. The self-insurer appeals from an administrative judge's decision ordering it to reimburse the employee the expense¹  of a "Nautilus Sleep Systems" mattress prescribed by her doctor following surgery for a work-related low back injury. The self-insurer advances three arguments on appeal. First, it argues that the employee purchased the mattress without notice to it, thereby depriving the self-insurer of its right to utilization review under 452 Code Mass. Regs. § 6.00 et. seq.²  As that issue was not raised before the administrative judge, we deem it waived.³  Wynn & Wynn, P.C. v. Massachusetts Comm'n Against Discrimination, 431 Mass. 655 (2000).

 

 ¹The administrative judge did not specify the amount the self-insurer was ordered to pay the employee. The manufacturer's invoice, dated February 4, 2002, reflects that the price of the mattress was $1,999.99. After a $100.00 discount and including $129.00 in freight charges, the total amount the employee paid was $2,028.99. (Employee Ex. 5.)

 ²452 Code Mass. Regs. § 6.01, entitled "Scope and Authority," provides:

452 CMR 6.00 is promulgated pursuant to M.G.L. c. 152, §§ 5, 13 and 30 as most recently amended by St. 1991, c. 398. 452 CMR 6.00 shall apply to all claims irrespective of date of injury for health care services rendered on or after October 1, 1993. 452 CMR 6.00:

(a) requires workers' compensation insurers to undertake utilization review;
(b) references the guidelines and review criteria that the Department of Industrial Accidents (DIA) requires providers to consider when treating certain medical conditions, and set forth the mechanism for the development, endorsement, dissemination, and implementation of future guidelines;
(c) sets forth the nature of utilization data that must be reported to the Department of Industrial Accidents;
(d) sets forth the methods for quality assessment that will be used by the Department of Industrial Accidents;
(e) sets forth the nature of the mechanisms that DIA [sic] will use to ensure compliance with 452 CMR 6.00; and
(f) concerns adequate and reasonable health care services provided to workers' compensation recipients, including consideration for cost containment.

 ³We note that on the self-insurer's issues statement, (Self-ins. Ex. 1), the box next to "Deny entitlement to § 13 and § 30 benefits," is not checked. Only the box designated "Other" is checked, and in handwriting, "Medical Issue" is the only dispute identified. At the hearing, the parties framed the issue thusly:

Mr. Donoghue: I think the only issue is the bill for the nautilus mattress, your Honor.

Judge: All right. And your opening.

Ms. Moore-Kocot: And the city's position is, your Honor, based on the
medicals that have been provided to date, even the doctor
has not substantiated his position. Though she has
requested this mattress it has, in fact not been
submitted to the insurer to date that it's medically and
reasonably necessary within the confines of the statute.

(Tr. 5.)