DECISION AND ORDER

The issue in this case is whether Iohann F. Gonzales with the Alta Health Care Clinic (Provider) should be reimbursed for the cost of services rendered to the Claimant between May 22, 2001 and August 20, 2001. The Administrative Law Judge finds the Provider is entitled to $43 of reimbursement and the remainder of the claims are denied.

Factual Background

The Claimant sustained an on-the-job injury on_________, when he fell from a ladder and landed on his knee. At the time of the injury, he was working as a ____. Beginning in October, 2000, the Claimant underwent treatment consisting of medication and two weeks of physical therapy through Occupational Health Solutions. On November 27, 2000, the Claimant was evaluated by James W. Czewski. He complained of constant low back pain, aggravated by overhead reaching. At that time, Dr. Csewski stated that the Claimant had reached Maximum Medical Improvement (MMI) with a 0% whole person rating, but he stated that this might need to be changed depending on MRI results. Subsequently, he was seen on April 5, 2002, by Mark Ritchie, D.C., and received an 11% whole person rating. Provider Ex. 1 at 277.

On December 11, 2000, an MRI was interpreted by Joel H. Carp, M.D., as showing a small herniation at the L2-L3 level with moderate to severe multilevel facet degenerative changes and mild multilevel disc dessication. On January 17, 2001, the Claimant saw Christopher Hull, D.O., who found that surgery was not necessary but suggested that the Claimant look for work that would allow him to function without having to do overhead type activities or lumbar extension. Dr. Hull also suggested that the Claimant should consider retraining with the Texas Rehabilitation Commission. Provider Ex. 1 at 278.

On May 22, 2001, the Claimant was first treated at Alta Healthcare Clinic, the Provider in this matter. The Claimant continued to receive physical therapy roughly four times a week until July 10, 2001 when he began a six-week work hardening program. In physical therapy sessions the Claimant received chiropractic services, including joint mobilizations and manipulations, and other forms of individual therapy.

Based upon the results of range-of-motion testing using “Jtech Dual Inclinometry,” the Provider determined that the Claimant was an appropriate candidate for a six week, eight-hour a day

work hardening program. The Claimant underwent work hardening from July 10, 2001 through August 20, 2001. Provider Ex. 2 at 9.

On June 13, 2001, the Carrier preauthorized twelve visits of physical therapy (three times a week for four weeks). Provider Ex. 1 at 174. Other than this preauthorization, there is no evidence that the Provider sought or was denied preauthorization for any other services rendered to the Claimant. The Provider reimbursed parts of the ten physical therapy sessions between June 13 and July 10, 2003, and denied the remainder as not appropriately documented. Based upon a peer review performed by Casey Cochran, D.C., the Carrier denied payment for all other treatment rendered between May 22, 2001-August 21, 2001. The codes for the Carrier’s denials were primarily “V” (not medically necessary with peer review), with several denials under the “N” code (not appropriately documented).

Concurrent with Claimant’s treatment with the Provider, he was also seen by James E. Laughlin, D.O., who recommended that the Claimant receive epidural steroid injections (ESIs). Dr. Laughlin noted that the ESIs were appropriate because the Claimant had not responded to conservative care, including pain medication, physical therapy and chiropractic care. Carrier Ex. 3.

The Provider requested medical dispute resolution from the Medical Review Division of the Texas Workers’ Compensation Commission, which found that the Provider was not entitled to any reimbursement for the $15,085.20 claimed.^[1]

1. Discussion
2. Request to Dismiss Matter

The Carrier argues that the Provider’s claims for reimbursement should be dismissed because it failed to file copies of all medical bills complete with the explanations of medical benefits (EOBs) with the Medical Review Division. The Carrier argues that the MRD failed to follow its own rules and should have dismissed the request for medical dispute resolution. The Carrier fails to acknowledge that the rule provides the Division the discretion to dismiss a claim for failing to follow the requirements enumerated in 28 Tex. Admin. Code (TAC) §133.305(m)(7), but it does not require it; therefore, the Carrier’s argument that the Provider’s claims must be dismissed is without merit at the MRD level and also before SOAH.

Physical Therapy Provided Between May 22 and July 10, 2001

The EOBs submitted at the hearing reflect that the Carrier paid for portions of eleven sessions of physical therapy, consistent with its preauthorization letter, between June 13, 2001, when the preauthorization was issued, and the beginning of the work hardening program on July 10, 2001. For these dates of service, the Provider generally billed for multiple units of individual therapy as well as a variety of modalities. The Provider argues that the Carrier should reimburse it for all modalities billed for each date of service. Neither the Carrier nor the Provider discusses the services already reimbursed, and it is only due to the ALJ’s review of the EOBs that the partial payments were discovered.

The 1996 Medical Fee Guideline^[2] provides: “A physical medicine session is defined as any combination of four modalities (97010-97039), procedures (97110-97150) and/or physical medicine activities and training, (97220-97541). The maximum amount of time allowed per session is two hours.” Therefore, more than four units may be claimed, as long as the session is limited to no more than four modalities, or separate CPT codes, and the session is not longer than two hours.

Consistent with the MFG, the ALJ finds that the Provider is entitled to additional reimbursement for the June 28^th, 2001 date of service in the amount of $43. For this date of service, the Carrier only reimbursed for three modalities. The ALJ finds that the other ten physical therapy sessions reimbursed pursuant to the preauthorization met or exceeded the MFG definition. For each of these sessions, the Carrier reimbursed the Provider for four or more modalities, some containing multiple units.

For the remainder of the physical therapy provided without preauthorization between May 22 and August 21, 2001, the ALJ finds that the documentation and testimony provided is insufficient to meet the Provider’s burden of proof to show that these services were medically necessary. The Provider failed to provide treatment notes or a treatment plan that would allow the Carrier or this ALJ to effectively evaluate medical necessity. There is no consideration of the effectiveness of the treatments or the need for the Claimant to have received intensive physical therapy and chiropractic modalities four days a week for five weeks. The computer generated documentation provided is much the same from visit to visit with small changes in the descriptions of the services. There is virtually no detail about the specific type of supervised therapy provided, or explanation as to why it was necessary to provide one-on-one therapy as opposed to group therapy.

Further, the Claimant’s progress is not documented with any specificity. Starting on the first day of therapy through July 10, 2002, the post-treatment assessment is that the Claimant is “progressing satisfactorily” with no explanation as to what progress he experienced. In a contradictory statement, the computer generated notes nearly invariably say that the Claimant’s condition “has stayed about the same since his las [sic] visit.” Provider Ex. 2. Further, Provider’s witness, Spencer Sloan, D.C., was not the Claimant’s treating doctor and had not, except on perhaps one occasion, provided any services to the Claimant. While he provided background information and explanation, his opinion that the services were medically necessary was based on a review of the file, not his experience in treating the Claimant.

The ALJ finds that to the extent that services were preauthorized, the Carrier has already sufficiently reimbursed the Provider, with the exception of the payment of one modality for one date of service, in the amount of $43.

Further, the ALJ finds that the Provider failed to demonstrate the medical necessity for all remaining physical therapy services rendered between May 22, 2001 and July 10, 2001 as well as the August 21, 2001 office visit.

Work Hardening

The Claimant underwent work hardening between July 10 and August 20, 2001. The ALJ finds that the Provider failed to meet its burden of proof to demonstrate that the work hardening program was medically necessary.

The MFG^[3] states that “work hardening provides a transition between management of the initial injury and return to work while addressing the issues of productivity, safety, physical tolerances, and work behaviors.” The MFG also identifies the criteria for admission into a work hardening program:

1. persons who are likely to benefit from the program;
2. persons whose current levels of functioning due to illness or injury interfere with their ability to carry out specific tasks required in the workplace;
3. persons whose medical, psychological, or other conditions do not prohibit participation in the program;
4. persons who are capable of attaining specific employment upon completion of the program.

The record is devoid of any consideration of whether the Claimant had a job to return to as a touch-up painter. Nor did the Provider consider the likelihood that the Claimant, at sixty years old with significant degeneration in his spine, might not have been able to return to manual labor and might have needed retraining.

In determining the Claimant’s need for the six-week intensive work hardening program, the Provider’s documentation reflects only consideration of the results of the June 13, 2001 range-of-motion testing performed using Inclinometry. Provider Ex. 2 at 9. While Dr. Sloan, the Provider’s witness, attempted to explain the results of the muscle and range-of-motion testing, the Provider did not present evidence of consideration of any of the factors raised by the MFG in placing the Claimant in the work hardening program.

Even if the Claimant was a suitable candidate for work hardening, it is not appropriate for an injured worker to engage in it prematurely. The MFG makes clear that work hardening is appropriate after treatment of the injury has occurred. The Carrier’s witness also testified that work hardening should be the last step before returning to work. But the record does not demonstrate any consideration of the Claimant’s ongoing treatment, for instance, Dr. Laughlin’s June 5, 2001 recommendation that the Claimant receive epidural steroid injections.

The Carrier’s witness, Casey Cochran, D.O., strongly criticized the Provider’s reliance on Inclinometry stating that it is only appropriate when required by law in establishing impairment ratings and that it has no clinical utility. He also questioned the validity of the testing done, stating the results of the June 13, 2001 range-of-motion tests indicated that the Claimant would have been able to place his lips on the back of his spine. Dr. Cochran’s testimony raised legitimate issues regarding the Inclinometry performed and it’s utility. See Provider Ex. 1 at 202. The ALJ finds, however, even if the Inclinometry testing was an appropriate factor for consideration, it is not appropriate to rely upon the results in a vacuum in referring a Claimant to work hardening.

The record fails to demonstrate that the Provider considered any of the factors identified by the MFG for admission into a work hardening program, including the timing of the program in relationship to the Claimant’s ongoing treatment. The ALJ, therefore, finds that the documentation and testimony fail to establish the medical necessity of the work hardening program.

Testing

The Provider contends it is entitled to reimbursement under CPT code 99090 for preparing three computer generated reports on May 22 (initial range-of-motion testing), May 29 (muscle testing) and June 13, 2001(range-of-motion testing) at $108 for each report.

The Provider failed to meet its burden of proof to establish the medical necessity for the May 22 and May 29 and June 13, 2001 testing. The Carrier’s witness testified that the Provider’s muscle testing was not accurate because an injured person does not have the required motivation to give maximum effort. He stated that muscle testing was more appropriate for placement in a pre-employment situation than to determine the extent of muscle weakness in treatment. In order to determine if an individual is giving maximum effort, it is necessary to have cardiovascular monitoring, which was not done. Further, the range-of-motion testing performed on June 13, 2001 reflects invalid results as is explained above.

The record fails to contain any documentation supporting the medical necessity for the claims under CPT 99090 for computer generated reports. The ALJ also denies reimbursement for the two Functional Capacity Evaluations (FCEs) as they relate to the work hardening program, for which payment has been denied. Had the Claimant not undergone the work hardening program, these two FCEs would not have been performed. Therefore, they too, were not medically necessary.

III. Findings of Fact

1. The Claimant sustained a compensable back injury on_________.
2. Based upon a peer review performed by Casey Cochran, D.C., the Lumberman’s Underwriting Alliance (Carrier) denied payment for treatment rendered from May 22, 2001-August 21, 2001. The codes for the denials were primarily “V” (not medically necessary with peer review), with several denials under the “N” code (not appropriately documented).
3. 3Iohann Gonzalez, with Alta Healthcare Clinic (Provider), requested medical dispute resolution from the Medical Review Division of the Texas Workers’ Compensation Commission, which found that the Provider was not entitled to any reimbursement for the $15,085.20 claimed.
4. The Provider appealed the IRO decision on July 26, 2002.
5. Notice of the hearing was sent September 17, 2002. The notice contained 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.
6. The hearing was convened November 5, 2002 with Administrative Law Judge (ALJ) Janet Dewey presiding and representatives for the Carrier and Provider participating. The hearing was recessed and reconvened on January 27, 2003. The record closed February 18, 2003 after the parties had an opportunity to file written closing statements.

Physical Therapy Claims

1. Between May 22, 2001 and July 10, 2001, the Claimant visited the Provider roughly four times a week and received extensive physical therapy services. The Provider also saw the Claimant on August 21, 2001 for an office visit.
2. Between the original date of injury and June 5, 2001, the Claimant had not responded to conservative care including: medication, physical therapy, chiropractic services. James E. Laughlin, D.O., therefore, recommended that the Claimant receive epidural steroid injections.
3. On June 13, 2001, the Carrier preauthorized twelve visits of physical therapy (three times a week for four weeks).
4. The Carrier reimbursed the Provider for at least four modalities for physical therapy sessions on the following dates of service in 2001: June 13, 18, 20, 25, and 29, July 2, 3, 5, 6 and 9 pursuant to its preauthorization. Some of the modalities reimbursed included multiple units. The Carrier denied portions of the treatment provided on these dates of service based upon a lack of documentation, or failure to comply with the treatment guidelines.
5. The Carrier reimbursed the Provider for only three modalities on June 28, 2001.
6. For the remainder of the physical therapy provided between May 22 and July 10, 2001, the Provider failed to provide treatment notes or a treatment plan. There is no documented consideration of the effectiveness of the treatments or the need for the Claimant to have received intensive physical therapy and chiropractic modalities four days a week for five weeks.
7. The computer generated documentation provided is much the same from visit to visit with small changes in the descriptions of the services. There is virtually no detail about the specific type of supervised therapy provided, or explanation as to why it was necessary to provide one-on-one therapy as opposed to group therapy.
8. Physical therapy which has not already been reimbursed by the Carrier provided between May 22 and July 10, 2001 was not medically necessary.
9. The office visit billed under CPT code 99213 on August 21, 2001 was not medically necessary.

Work Hardening Claims

1. Based upon the results of range-of-motion testing using “Jtech Dual Inclinometry,” the Provider determined that the Claimant was an appropriate candidate for a six-week, eight-hour a day work hardening program. The Claimant underwent work hardening from July 10, 2001 through August 20, 2001.
2. The Provider did not consider the timing of work hardening in relationship to the Claimant’s ongoing treatment.
3. The Provider did not consider whether the Claimant, at ______ old, with severe degenerative disc issues would be able to return to a medium-duty job as a ______.
4. The Claimant did not have specific employment to return to upon completion of a work hardening program.
5. The work hardening program was not medically necessary.

Testing

1. The Provider claims reimbursement under CPT code 99090 for preparing three computer generated reports on May 22 (initial range-of-motion testing), May 29 (muscle testing) and June 13, 2001(range-of-motion testing). All of the testing was based upon Inclinometry.
2. The range-of-motion testing on June 13, 2001 was flawed and the results are of no clinical utility.
3. Muscle testing may not accurate because an injured person often does not have the motivation to give maximum effort and therefore the results can lack clinical utility.
4. The services provided under CPT code 99090 were not medically necessary.
5. The Provider claims reimbursement for two Functional Capacity Evaluations (FCEs) performed on July 2, 2001 and August 16, 2001 during the work hardening program to track the Claimant’s progress.
6. The FCEs were not medically necessary as the underlying work hardening program was not medically necessary.

III. Conclusions of Law

1. SOAH has jurisdiction over 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 (Vernon 2000).
2. The Provider timely filed its request for a hearing as specified in 28 Tex. Admin. Code (TAC) § 148.3.
3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. § 2001.052.
4. The Provider has the burden of proof in this matter. 28 TAC §148.21(h).
5. The Claimant did not meet the criteria for admission into a work hardening program under the 1996 Medical Fee Guideline, Medicine Ground Rules (MFG), II. E. at 37 adopted pursuant to 28 TAC §134.201.
6. The Carrier’s reimbursement met the requirements of the MFG I.A10.a. for the following preauthorized of dates of service in 2001: June 13, 18, 20, 25, and 26 and July 2, 3, 5, 6 and 9.
7. Because the Carrier reimbursed only three modalities for the physical therapy session provided on June 28, 2001, the Provider is entitled to reimbursement for one more modality of treatment in the amount of $43.
8. The Provider did not meet its burden of proving that the work hardening program, the testing and the remainder of physical therapy and chiropractic services were medically necessary or reasonably required health care under Tex. Lab. Code Ann.§ 408.021 and these claims should be denied.

ORDER

IT IS, THEREFORE, ORDERED that Lumberman’s Underwriting Alliance shall reimburse Iohann Gonzalez $43. All other claims for reimbursement are DENIED.

Signed April 21^st, 2003.

JANET R. DEWEY
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The Provider has withdrawn all claims under CPT code 99082 totaling $629.↑
2. MFG, Medicine Ground Rules, I. A.10. a., adopted pursuant to 28 TAC § 134.201.↑
3. 1996 Medical Fee Guideline, Medicine Ground Rules, II. E. at 37.↑