DECISION AND ORDER

Michael Ganschow, D.C. (Petitioner or Provider) sought reimbursement for various services rendered to Claimant. Those services included office visits with manipulations, therapeutic exercises, joint mobilization, myofascial release, manual traction, range of motion testing, computer analysis of notes, temperature gradient testing, electrical stimulation, and a functional capacity evaluation. Petitioner treated two areas of Claimant’s body, the right knee and the lower back. Poly America, Inc. (Carrier) disputed portions of the treatments, and used denial code R, disputing that the treatment was related to the compensable injury.^[1] The Carrier used no other denial codes. Carrier asserted that many treatments were provided to Claimant’s back, rather than to his knee. The parties stipulated at the hearing that the injury to the knee was the only compensable injury.

The Administrative Law Judge (ALJ) concludes that Petitioner met its burden of proof with respect to certain services provided Claimant and those services should be reimbursed in the amount of $5,018.00. The ALJ further concludes that Petitioner failed to meet its burden of proof to show that some of the services provided were performed on the knee, rather than the lower back. Carrier is not required to reimburse Petitioner for those services. The specific details as to which treatment dates and services are to be reimbursed are outlined below.

I. PROCEDURAL HISTORY

ALJ Wendy Harvel convened the hearing on August 7, 2003, at the State Office of Administrative Hearings, Austin, Texas. Attorney H. Douglas Pruett represented Petitioner. Attorney Steve Tipton represented Carrier. The parties did not contest notice or jurisdiction, which are addressed in the Findings of Fact and Conclusions of Law. The record was held open for submission of written closing arguments, and it closed on August 18, 2003.

II. BACKGROUND

Claimant sustained a work-related knee injury on________. To treat the injury, Claimant underwent surgery on April 27, 2001. Following the surgery, he engaged in physical therapy for several weeks. On May 15, 2001, he switched to a new provider for his physical therapy treatments.^[2] During the course of those treatments, Petitioner and other providers in his practice treated both the injured knee and the spine.^[3] Carrier denied reimbursement based on denial code R. Code R is to be used “[w]hen the [insurance carrier] is disputing that the [treatment or service] is related to the compensable injury, and the issue has not been finally adjudicated.”^[4] Provider agrees that the treatments to the spine are not reimbursable, but seeks reimbursement for all treatments related to the knee.

Provider appealed Carrier’s denial, and the Medical Review Division (MRD) upheld Carrier’s denial. In its denial, the MRD raised the issue of lack of documentation as an additional ground for denial, which Carrier did not raise. At the hearing on the merits, the Carrier attempted to raise the issue of medical necessity for the first time.

III. DISPUTED ISSUES

A. Grounds for Denial

In its initial denial, Carrier disputed that the treatment or service was related to the compensable injury, namely the knee. The MRD then added grounds for denial, as did Carrier at the hearing on the merits. Because Carrier denied the claim for treatment unrelated to the compensable injury, that is the only ground for denial properly within the scope of this dispute. This decision is similar in principal to the majority view in previous SOAH dockets where ALJs have ruled that an insurer may not assert a reason for denying a claim that was not asserted to the health care provider prior to the filing of a request for medical dispute resolution.^[5] These decisions were based largely on Tex. Lab. Code Ann. § 408.027(d), which states that if an insurer disputes the amount of payment or the health care provider’s entitlement to payment, it must send to the Commission, the provider, and the injured employee, a report that “sufficiently explains the reasons for the reduction or denial of payment.” In this case, the Carrier provided one reason for denying the claim, that the treatment was not provided to the area of compensable injury. The lack of medical necessity and lack of documentation were not cited by the Carrier as a reason for its initial denial. Carrier cannot assert either reason at the hearing on the merits without first citing it to Provider.

The SOAH dockets cited above are also relevant to the MRD reason for denying the claim. The cases hold that a carrier may not rely on a ground for denying the claim that it did not assert prior to the case going to medical dispute resolution. The inadequate documentation basis for the MRD decision was not cited by Carrier as a ground for denial. The Carrier’s argument that medical necessity and documentation are always in issue, even if not asserted as a basis for denial was unpersuasive. Both inadequate documentation and medical necessity are listed in the TWCC denial codes as separate grounds for denial. They, therefore, must be asserted prior to medical dispute resolution to be argued in a SOAH hearing.

B. Treatment for the Knee

Because the only denial code properly before SOAH is treatment unrelated to the compensable injury, the issue is: was treatment provided to the knee on the disputed dates of service? There are numerous disputed dates of service in this case. For clarity, a chart is attached indicating the CPT code, the dates of service, the amount requested, and the ALJ’s finding.

Office Visits^[6]

Provider requests reimbursement for eleven office visits when the office visit did not include manipulation. Provider asserts that these office visits were for treating the compensable injury, the knee, and not treating the spine. In its written closing argument, Carrier did not take a position with respect to the office visits without manipulation. The SOAP notes from the office visits on May 25, June 25, July 2, July 3, July 5, July 16, July 18, July 23, and July 30, 2001, indicate that Claimant’s

right knee was treated during the visit. Provider met his burden of proof to establish that the treatment was for the compensable injury. Therefore, the ALJ finds Carrier shall reimburse Provider for these visits.

There is no documentary evidence that the office visits without manipulation on July 10, and August 29, 2001, were for the purpose of treating the compensable injury. Dr. Michael Alan Ganschow testified that if the SOAP notes did not indicate that the spine was treated, the knee was the area treated. He also testified that every time Claimant reported for treatment, the compensable injury, the knee, was treated. Dr. Alex Rivera, another chiropractor who treated Claimant, also testified that he treated Claimant for a knee injury on all visits. Dr. Lee Moses, a chiropractor, testified for Carrier that the office visits without manipulations did not give an expanded history regarding the area of injury, and therefore, there was no means to determine that the office visit was for the purpose of treating the knee. On three dates of service, the treating chiropractor was Dr. Juan Sanchez.^[7] Dr. Sanchez did not testify at the hearing. Because there is no testimony regarding the evaluations performed during those office visits, and no reliable testimony, the ALJ finds that Petitioner failed to meet his burden of proof to show that the office visits on those dates were performed to treat the compensable injury. Based on the testimony of the treating providers, the ALJ finds that Petitioner has met his burden of proof to show that the office visits without manipulations are reimbursable when either Petitioner or Dr. Rivera treated Claimant. Because the compensable injury was treated, Carrier shall reimburse the office visits.

Office Visits with Manipulation^[8]

In addition to office visits where no manipulations were performed, Claimant went to several office visits where Provider performed manipulations. Carrier denied payment because the treatment was not performed on the compensable injury, the knee, but rather was performed on the spine. Provider admits that the manipulations during the office visits were performed on the spine and not the knee. Provider asserts, however, that because every office visit included an examination of the right knee, the visits are reimbursable. Carrier argues that the manipulation was provided to the spine, and that the Provider, if the charge were approved, would be reimbursed for the office visit and the manipulation. In other words, the manipulation is provided in conjunction with the office visit. The ALJ agrees with Carrier. The manipulations were done on the spine, and not on the knee. The treatment was, therefore, not provided to the compensable injury. While the treating doctor may have asked the Claimant about his knee, the doctor did not treat it. Certainly, the purpose of the visit was to treat the spine. Because the spine is not a compensable injury, the office visits with manipulation are not reimbursable.

Therapeutic Exercises^[9]

Provider seeks reimbursement for therapeutic exercises performed on thirty-seven dates of service, with three units per visit. Provider contends that the therapeutic exercises were performed on the knee, and that no therapeutic exercises were ordered for Claimant’s back. In its written closing argument, Carrier did not take a position with respect to the therapeutic exercises. Provider asserts that the treating providers testified that therapeutic exercises were performed on the right knee, and none were ordered for the back. While it is true that Drs. Ganschow and Rivera testified that all therapeutic exercises were performed on the knee, on certain dates of service neither of those doctors provided treatment, rather Dr. Sanchez was the treating chiropractor.^[10] Dr. Sanchez did not testify at the hearing. The ALJ gives little weight to the testimony of two non-treating providers, who testified regarding what another provider did to a patient. Therefore, the only reliable evidence relating to the therapeutic exercises on the above dates is contained in the SOAP notes, which state, “Strength, flexibility, range of motion, and proper job functioning were [Claimant’s] goals when these supervised therapeutic exercises were performed.” It is unclear to which body part the exercises were performed. Therefore, Petitioner did not meet his burden of proof to show that the treatment was provided to the compensable injury on those dates.^[11]

On two dates of service, there is no evidence that therapeutic exercises were performed at all. The SOAP notes from October 9, 2001, and October 15, 2001, contain no reference to therapeutic exercises. Dr. Ganschow testified that whenever therapeutic exercises were performed, they were performed on the knee. He did not specify, however, on which dates of service the therapeutic exercises were performed. Because there is no evidence that therapeutic exercises were performed on those days, the ALJ finds that Petitioner should not be reimbursed for those dates of service.

With respect to the other dates of service, either Dr. Ganschow or Dr. Rivera was the treating chiropractor.^[12] Both doctors testified that the therapeutic exercises were performed on the knee. Carrier did not refute the treating doctor’s claims that the exercises were performed on the knee. Therefore, the ALJ finds that Petitioner met his burden of proof to show that the therapy was performed on the knee on the dates of service in footnote 9. Carrier shall reimburse Petitioner for three units of therapy on each of those dates.

Joint Mobilization^[13]

As with the therapeutic exercises, Drs. Ganschow and Rivera testified that if the SOAP notes did not reference the spine, then it was the knee that was treated. Again, Dr. Sanchez was the treating doctor for many dates of service.^[14] For the reasons discussed above, the ALJ finds that Petitioner failed to meet his burden of proof for the dates on which Dr. Sanchez was the provider. On August 6, 7, and 9, 2001, there is no indication in the certified record that any joint mobilization was performed. On the dates where either Dr. Ganschow or Dr. Rivera was the provider, the ALJ finds that Petitioner met his burden of proof to show that the joint mobilization was performed on the knee.^[15] For those dates of service, Carrier shall reimburse Petitioner $43.00 per day.

Myofascial Release^[16]

This service was performed on numerous different dates. As with the other services, Dr. Sanchez treated the Claimant on many of those dates.^[17] For the reasons discussed above, the ALJ finds that Petitioner failed to meet his burden of proof to show that the knee was the area treated on those dates.

On August 6, 7, and 9, 2001, there is no indication in the certified record that a myofascial release was performed. Therefore, Carrier is not required to reimburse for that procedure on those dates.

Either Dr. Ganschow or Dr. Rivera treated Claimant with a myofascial release on the remaining dates of service.^[18] Both doctors testified that the myofascial release was performed on the knee. Therefore, the ALJ finds that Petitioner met his burden of proof to show that the myofascial release was performed on the Claimant’s knee.

Manual Traction^[19]

The ALJ finds that Petitioner is not entitled to reimbursement for any of the manual traction services. The services were either performed by Dr. Sanchez, who did not testify at the hearing, or specifically mention the apophyseal joints, which Dr. Ganschow admitted are in the spine. Therefore, the ALJ finds that Petitioner failed to meet his burden of proof to show that the treatment was performed to the compensable injury.

Range of Motion Testing^[20]

Petitioner provided range of motion testing on seven dates of service, with two units performed each day.^[21] Both the spine and the knee were tested on those dates. Petitioner seeks reimbursement for one unit of range of motion testing to treat the knee, and he does not seek reimbursement for the testing to the spine. Carrier attempted in its written closing argument to make a medical necessity argument with respect to the range of motion testing to the knee. As discussed above, Carrier is barred from making a medical necessity argument when it did not assert medical necessity as a reason for denial of the initial claim. The medical records submitted indicate that on those dates of service, range of motion testing was provided to Claimant’s spine and knee. The ALJ finds that Petitioner met his burden of proof to show that the compensable injury was treated on those dates of service. Because two units were billed, one for the spine and one for the knee, the ALJ finds that one unit per day is reimbursable.

Computer Analysis^[22]

Petitioner seeks reimbursement for computer analysis of the range of motion testing. Unlike the testing, the computer analysis is not broken down into two separate billing units. The computer analysis tracks the results of the range of motion testing and compares it to previous tests. The computer analysis tracked changes in the range of motion for both the spine and the knee. There is, however, only one charge for the analysis. It is not divided among different body areas. Because the ALJ finds that the range of motion testing was related to the compensable injury, the ALJ also finds that the computer analysis of the data was related to the compensable injury and should be reimbursed.

Temperature Gradient Testing^[23]

The MDR denied payment for this testing because it was not performed to the knee. There is only one date of service for this test, June 11, 2001. The SOAP notes for that date state, Temp gradiant [sic] between knees anterior inferior patella, Rt knee 89.3, Lt knee 86.2. The temperature gradient testing was clearly documented as being performed on the knee. Therefore, the ALJ finds that this testing was performed on the compensable injury, and should be reimbursed.

Electrical Stimulation^[24]

Petitioner seeks reimbursement for two units per day on nine dates of service.^[25] There is no evidence that electrical stimulation was performed on August 27 or 28, 2001. Therefore, the request for reimbursement on those dates of service is denied. On August 6, and 9, 2001, the records indicate that two units of electrical stimulation were performed on the lumbar spine and on the knee. The records do not indicate whether two units were performed to the lumbar spine and to the knee or whether one unit was performed to each. There was no testimony submitted regarding this discrepancy. Therefore, the ALJ finds that for those two dates of service, one unit is reimbursable for the knee since Petitioner proved that he performed one unit of electrical stimulation to the knee. On the other dates of service, the ALJ finds that Petitioner proved he performed two units of electrical stimulation to the knee. Therefore, Carrier shall reimburse two units for each of those dates.

Functional Capacity Evaluation^[26]

Petitioner seeks reimbursement for a functional capacity evaluation (FCE) performed on October 9, 2001. Petitioner argues that the FCE indicates on its face that the knee was tested and that Claimant was unable to return to work as a result of the knee injury. Carrier asserts that the FCE does not indicate which portion of the evaluation was related to the knee. The FCE discusses Claimant’s knee pain and the limits it places on him. Although other areas of injury are included in the FCE, it does relate to the compensable injury. Therefore, the ALJ finds that Carrier shall reimburse Petitioner for the FCE.

IV. CONCLUSION

The ALJ finds that Petitioner should be reimbursed in the amount of $5,018.00 for treatment provided to Claimant for his compensable injury.

V. FINDINGS OF FACT

1. Claimant suffered a compensable injury to his knee on ___.
2. At the time of the injury, Claimant’s employer had its worker’s compensation insurance through Poly America, Inc. (Carrier).
3. Michael Ganschow, D.C. (Petitioner) and other providers in his practice treated Claimant for his injuries.
4. Carrier denied reimbursement for numerous dates of treatment on the grounds that the treatment was not provided to the compensable injury.
5. During the time he saw Petitioner, Claimant complained of pain in his knee and his spine.
6. The compensable injury was Claimant’s knee.
7. Petitioner submitted a claim to Carrier for eleven office visits without manipulation, for which Carrier denied reimbursement.
8. Eight of the eleven office visits were performed to treat the compensable injury.
9. Three of the eleven office visits did not treat the compensable injury.
10. Petitioner submitted a claim to Carrier for thirty-five office visits with manipulation where the manipulation was performed on the spine, for which Carrier denied reimbursement.
11. The thirty-five office visits with manipulation did not treat the compensable injury.
12. Petitioner submitted a claim to Carrier for thirty-seven dates of service for therapeutic exercises, with three units of exercises performed each visit, for which Carrier denied reimbursement.
13. Therapeutic exercises did not treat the compensable injury on nineteen of the thirty-seven dates of service.
14. Petitioner treated the compensable injury with three units of therapeutic exercises on eighteen dates of service.
15. Petitioner submitted a claim to Carrier for thirty-two dates of service for joint mobilization, for which Carrier denied reimbursement.
16. Joint mobilization did not treat the compensable injury on nineteen dates of service.
17. Petitioner treated the compensable injury with joint mobilization on thirteen dates of service.
18. Petitioner submitted a claim to Carrier for myofascial release on thirty-five dates of service, for which Carrier denied reimbursement.
19. Myofascial release did not treat the compensable injury on twenty dates of service.
20. Petitioner treated the compensable injury with myofascial release on fifteen dates of service.
21. Petitioner submitted a claim to Carrier for manual traction, for which Carrier denied reimbursement.
22. Manual traction did not treat the compensable injury.
23. Petitioner submitted a claim to Carrier for range of motion testing on seven dates of service, with two units performed each day, for which Carrier denied reimbursement.
24. Petitioner provided one unit of range of motion testing to the knee on each date of service.
25. Petitioner submitted a claim to Carrier for computer analysis of the range of motion testing on five dates of service, for which Carrier denied reimbursement.
26. Petitioner treated the compensable injury with computer analysis of the range of motion testing on all five dates of service.
27. Petitioner submitted a claim to Carrier for temperature gradient testing on one date of service, for which Carrier denied reimbursement.
28. Petitioner provided temperature gradient testing to the compensable injury.
29. Petitioned submitted a claim to Carrier for electrical stimulation on nine dates of service, at two units per day, for which Carrier denied reimbursement.
30. Electrical stimulation was not provided on two dates of service.
31. Petitioner provided one unit of electrical stimulation to the compensable injury on two dates of service.
32. Petitioner provided two units of electrical stimulation to the compensable injury on five dates of service.
33. Petitioner submitted a claim to Carrier for a functional capacity evaluation, for which Carrier denied reimbursement.
34. The functional capacity evaluation was performed to treat the compensable injury.
35. All claims that Carrier denied were denied because the treatment did not treat the compensable injury.
36. On December 20, 2001, Petitioner appealed Carrier’s reimbursement denials to the Texas Worker’s Compensation Commission’s (Commission) Medical Review Division (MRD).
37. On September 25, 2002, the MRD issued Findings and Decision denying Petitioner’s appeal on the grounds of inadequate documentation.
38. Provider filed a request for a hearing before the State Office of Administrative Hearings on October 18, 2002.
39. The Commission sent notice of the hearing to the parties on November 15, 2002. The hearing notice informed the parties of the time, place, and nature of the hearing; the legal authority and jurisdiction under which the hearing was to be held; the statutes and rules involved; and the matters asserted.
40. The hearing convened on August 7, 2003. Petitioner appeared and was represented by H. Douglas Pruett, attorney. Carrier appeared and was represented by Steve Tipton, attorney. The record closed on August 18, 2003, after the submission of written closing arguments.

VI. CONCLUSIONS OF LAW

1. The Texas Worker’s Compensation Commission (Commission) has jurisdiction to decide the issue presented, pursuant to Tex. Lab. 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, pursuant to Tex. Lab. Code Ann. § 413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
3. The parties received proper and timely notice of the hearing pursuant to Tex. Gov’t Code Ann. ch. 2001 and 1 Tex. Admin. Code § 155.27.
4. Petitioner timely filed a notice of appeal of the MRD decision, as specified in 28 Tex. Admin. Code § 148.3.
5. Petitioned had the burden of proving the case by a preponderance of the evidence pursuant to 28 Tex. Admin. Code §148.21.
6. Carrier is precluded from asserting inadequate documentation as a ground for denying the claims. Tex. Lab. Code Ann. § 408.027(d); 28 Tex. Admin. Code § 133.304.
7. Carrier is precluded from asserting lack of medical necessity as a ground for denying the claims. Tex. Lab. Code Ann. § 408.027(d); 28 Tex. Admin. Code § 133.304.
8. The disputed services referenced in Finding of Fact Nos. 9, 10, 13, 16, 19, 21, and 30 were not shown to have been provided to the compensable injury.
9. The disputed services referenced in Finding of Fact Nos. 8, 14, 17, 20, 24, 25, 27, 31, 32, and 33 were shown to have been provided to the compensable injury.
10. Based on the foregoing findings of fact and conclusions of law, Petitioner’s request for reimbursement should be denied for the services referenced in Finding of Fact Nos. 9, 10, 13, 16, 19, 21, and 30. Petitioner’s request for reimbursement should be granted for the services referenced in Finding of Fact Nos. 8, 14, 17, 20, 24, 25, 27, 31, 32, and 33.

ORDER

IT IS ORDERED that Michael A. Ganschow, D.C. is entitled to reimbursement by Poly America, Inc. for certain services totaling $5,018.00.

Signed October 9, 2003.

WENDY K. L. HARVEL
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. See Ex. 2.↑
2. 2 These treatments include procedures billed under CPT codes 99213, 99213-MP, 97110, 97265, 97250, 97122, 95851, 99090, 93740, 97032, and 97750-FC.↑
3. 3 Provider does not argue that the spine injury was part of the compensable injury.↑
4. 4 Ex. 2, July 2000 TWCC denial codes.↑
5. See, e.g., SOAH Docket Nos. 453-01-1958.M5, 453-01-0309.M5, and 453-00-1570.M5.↑
6. CPT Code 99213.↑
7. Dr. Sanchez treated Claimant on May 25, 2001, June 25, 2001, and July 2, 2001.↑
8. CPT Code 99213-MP.↑
9. CPT Code 97110.↑
10. Those dates of service are: May 23, 24, 25, 29, 30, June 5, 6, 7, 11, 12, 14, 18, 19, 20, 21, 27, and July 2, 2001.↑
11. Although Petitioner argues that the Carrier did not assert inadequate documentation, the only evidence regarding whether the treatment was provided to the compensable injury is the documentation and any testimony.↑
12. These dates of service are July 3, 9, 18, August 6, 7, 8, 9, 13, 14, 16, 20, 22, 27, 28, September 4, 17, 18, and 24, 2001.↑
13. CPT code 97265.↑
14. Those dates of service are: May 23, 24, 29, 30, June 5, 6, 7, 11, 12, 13, 14, 18, 19, 20, 21, and 27, 2001.↑
15. Those dates of service are: July 9, 11, August 8, 14, and 16, 2001.↑
16. CPT code 97250.↑
17. Those dates of service are: May 23, 24, 29, 30, June 5, 6, 7, 11, 12, 13, 14, 18, 19, 20, 21, 27, and July 5, 2001.↑
18. Those dates of service are: July 9, 11, 24, August 8, 13, 14, 16, 20, 22, 27, 28, September 4, 17, 18, and 24, 2001.↑
19. CPT code 97122.↑
20. CPT code 95851.↑
21. May 29, 2001, June 11, 21, 27, July 11, 24, and August 6, 2001.↑
22. CPT code 99090.↑
23. CPT code 93740.↑
24. CPT code 97032↑
25. July 9, 11, 18, August 6, 7, 8, 9, 27, and 28, 2001.↑
26. CPT code 97750-FC↑