DECISION AND ORDER

This case involves a dispute concerning reimbursement of $18,566 for work hardening and physical therapy services provided by Dr. Stewart D. Stephenson (Provider)to____, a workers’ compensation claimant (Claimant), between March 21, 2003, and July 30, 2001. Bryan Independent School District^[1] (Carrier) denied payment asserting that the services were not medically necessary. The Administrative Law Judge (ALJ) finds that Carrier failed to meet its burden of proof to show that the services provided Claimant from March 21, through July 30, 2001, were medically unnecessary.

I. Jurisdiction, Notice, and Procedural History

The hearing convened March 11, 2003, in Austin, Texas, with ALJ Carol Wood presiding. Attorney Nick Bray represented Carrier. Although properly notified of the hearing, Provider did not appear. The Texas Workers’ Commission Commission (Commission) did not participate in the hearing. Jurisdiction and notice were not contested and are addressed only in the findings of fact and conclusions of law.

On May 7, 2003, the ALJ reopened the record to permit the parties to submit evidence of the amount in controversy, the medical bills, and the denial statements from Carrier. On June 2, and June 4, 2003, the parties submitted additional evidence. The evidence was marked and admitted as Exhibit No. 4 and admitted, and the record closed on June 4, 2003.

II. Discussion

Background

On__________, Claimant injured his lower back while shoveling pea gravel into a playground.^[2] He complained of back pain and days later sought treatment from Provider. Claimant’s initial treatment involved passive modalities but, subsequently, treatment progressed to work hardening.

On March 22, 2001, Provider signed the initial treatment report for Claimant. In the space for Provider to detail the treatment plan, Provider wrote Re-Examined at later date.^[3] Provider did not submit a treatment plan until July 19, 2001. Claimant was diagnosed with lumbosacral plexus and lumbar intervertebral disc displacement with myelopathy and sciatica^[4]

On May 22, 2001, Vickie Eckles, Provider’s certified biofeedback therapist, conducted a biofeedback evaluation of Claimant. According to Ms. Eckles, Claimant’s stress profile indicates he is experiencing considerable mental/emotional stress with financial difficulties.^[5] Long term goals included improving muscle control during activities of daily living and simulated work tasks.

On June 4, 2001, James M. Campbell, M.D., conducted an MRI of Claimant’s lumbar spine. Dr. Campbell found mild disc bulging at L4-5 without evidence of any herniation or stenosis.^[6] On July 27, 2001, Provider reported that Claimant reached maximum medical improvement (MMI) on July 19, 2001, with a ten percent whole body impairment rating.^[7] In his narrative report, Provider stated that Claimant had sustained injuries to the nerves in the low back, intervertebral disc displacement at the L-5 level and sciatica. These are accompanied by ligamentous instability, and myofascitis. These injuries are of permanent nature.^[8]

On July 30, 2001, William Gaines, M.D., examined Claimant at Carrier’s request. Dr. Gaines certified that Claimant reach MMI on July 30, 2001, and assigned a two percent whole body impairment rating. Claimant reported to Dr. Gaines that he wanted to return to work, but Provider would not put him back on light duty, telling him that he must complete his treatment protocol before he could go back.^[9] Dr. Gaines found that Claimant had work-related lumbar strain secondary to a shoveling accident and opined that Claimant already had sufficient time to recover and more than enough treatment.^[10] However, Dr. Gaines did not state that the treatments through July 30, 2001 were medically unnecessary.

On August 13, 2001, Claimant and Carrier attended a benefit dispute hearing. During this proceeding, the parties reached a written Benefit Dispute Agreement.(Agreement)^[11] The parties agreed that (1) Claimant sustained a compensable injury to his lower back on ___; (2) the disability existed from 3-23-01 through 5-31-01 only; (3) Claimant reach MMI on July 30, 2001; and (4) Claimant had a two percent impairment rating.^[12]

On May 31, 2002, an Independent Review Organization (IRO) conducted an independent review of Claimant’s medical treatments at the Commission’s request.^[13] The IRO found that the chiropractic treatments provided between March 21, 2001 and July 30, 2001 were medically necessary.^[14] Explaining that Claimant suffered a sprain/strain of the lumbar area, The IRO opined that according to medical protocol [the injury], should take 8-12 weeks to heal completely.^[15] The IRO noted that, with the treatments (physical therapy and work hardening) Claimant continuously improved. According to the IRO, further treatment beyond July 30, 2001, the day Claimant reached MMI, was not medically necessary.^[16]

Provider’s Position

While Providers did not appear at the hearing, Provider, according to the documentary evidence, asserts the medical services provided to Claimant through July 30, 2001, were medically necessary. Provider also contended that Carrier did not timely submit an explanation of benefits (EOB) to Provider explaining why Carrier was denying payment.^[17] The EOB dated July 31, 2001, addressed the services Provider furnished from April 18, 2001, through April 23, 2001, and June 7, 2001 through July 16, 2001. The reason cited by Carrier for denying payment was NON COMPENSABLE.^[18] Carrier gave the same explanation for denying payment for the services Provider furnished Claimant from May 16, 2001 through May 25, 2001, in the EOB dated July 10, 2001^[19]. It was not until the EOB dated September 14, 2001which covered Provider’s services from July 18, 2001to July 30, 2001, did Carrier advised Provider that it considered Provider’s services after July 18. 2001, to be UNNECESSARY TREATMENT.^[20] Provider sent a letter to Carrier asking that this decision be reconsidered, particularly since the parties’ Agreement signed on August 13, 2001, stated that the injury was compensable.^[21] It is not evident from the record whether Carrier responded.

Carrier’s Position

The Carrier argues that 28 Tex. Admin. Code (TAC) § 133.308 requires the IRO to follow the Texas Labor Code and the Commission Rules, therefore, the IRO was not at liberty to ignore the Commission’s 1996 Medical Fee Guidelines (MFG). The Carrier opined that, to qualify for reimbursement for physical medical treatment, the MFG requires, among other things, that (1) Claimant’s condition have the potential for restoration; (2) the treatments be specific for the injury and provide for the potential improvement of Claimant’s condition; (3) the initial treatment plan be in writing and contain the type of treatment, frequency, duration, expected clinical response to the treatment and a specified re-evaluation time frame; and (4) the treatment plan be updated to reflect any changes in the Claimant’s condition. Carrier contends the Provider’s records that the IRO received for review lacked this information. Therefore, Carrier argues, the IRO decision could not meet the MFG requirements.

Carrier further objected to Provider’s failure to submit a treatment plan in conformance with the MFG. Noting that almost four months after treatment began, Provider finally submitted a treatment plan on July 19, 2001, Carrier opined that the treatment plan was done after the fact, that is, at the end of the treatments in issue. In addition, Carrier maintained, the IRO failed to address the inconsistency between Provider’s July 19, 2001, report and the March 21, 2001 report. In the July 19 report, Provider states that an x-ray examination of the lumbar spine showed abnormal deviations which also assisted [sic] in arriving at the diagnostic impression herein contained.^[22] However argued Carrier, this was contradictory of Provider’s entry on March 21, 2001, in which Provider stated the following:

The xrays [sic] of the spine were unremarkable. Normal curves were exhibited and there was no evidence of osseous pathology other than those changes normally occurring though time and aging. The following findings were noted on the x-rays.

No degenerative joint disease was noted. There are multiple levels of misalignment in the spinal column producing possible subluxations. No fractures are apparent. The right hip was 3/4″ lower than the left and the right femoral head was 2″ deficient.^[23]

Carrier also argued that Provider failed to satisfy the MFG requirements to justify a work hardening program. Carrier asserted that nothing in the record showed (1) Claimant was using real or simulated work activities in a relevant work environment in conjunction with physical conditioning tasks as required: (2) Claimant met the entrance/admission criteria; or (3) a licensed physical or occupational therapist and/or doctor supervised Claimant during work-hardening. Because Provider failed to provide the specificity required by the MFG, Carrier argued it properly denied reimbursement for the services Provider furnished Claimant.

Finally, Carrier expressed confusion over the IRO opinion. In the opinion, the IRO stated that, according to medical protocol, Claimant’s injury should have healed completely within 8-12 weeks. Since the injury occurred on__________, Carrier noted Claimant should have healed completely within 12 weeks, that is, by June, 2001.

IV. ALJ’s Analysis

Pursuant to the Texas Workers’ Compensation Act, an employee who has sustained a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. The employee is specifically entitled to health care that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. Tex. Lab. Code (Labor Code). § 408.021(a). Health care includes all reasonable and necessary medical services. Labor Code. § 401.011(19)(A).

At issue is whether the medical services Dr. Stephenson provided Claimant were medically necessary. Carrier has the burden of proof in this proceeding. 28 TAC §§ 148.21 (h) and (i); 1 TAC §§ 155 41. Although Carrier objected to the IRO’s alleged failure to comply with the Commission’s rules and the MFG, the basis for denying payment for the services from April18, 2001, through July 16, 2001, was NON-COMPENSABLE, AS SET OUT IN Carrier’s July 10 and July 31, 2001, EOB’s. Carrier did not deny Carrier’s claims for lack of documentation of as unnecessary treatment. On August 13, 2001, Carrier agreed Claimant’s injury was compensable; consequently, in conformance with Carrier’s agreement, this reason for denying Provider’s claims was no longer applicable. Nothing in the record before the ALJ suggests that Carrier timely notified Provider that is was denying payment for the services Provider furnished Claimant from April 18 through April 23, 2001; May 16 through May 25, 2001; and June 7 through July 16, 2001, for any other reason.

According to the Commission’s rules, a carrier is required to take final action on a medical bill not later than the 45^th day after the date the insurance carrier received a completed medical bill.^[24] If the Carrier denies payment on a medical bill, the carrier must send an EOB that provides sufficient explanation to allow the sender to understand the reason(s) for the insurance carrier’s action(s).^[25] Carrier denied payment on the claims for services rendered from April 18 to July 16, 2001, asserting Provider furnished the services for a noncompensable injury. In August 2001, Carrier agreed that the injury was compensable. Therefore, presumably Carrier should have payed those claims.

Carrier has the burden of proof to show that the services Provider furnished between March 21 through July 30, 2001, were medically unnecessary. In his report, Dr. Gaines, Carrier’s medical expert, found that Claimant had reached MMI on July 30, 2001, and that Claimant no longer needed further medical treatment. Even assuming his report is relevant, nothing in Dr. Gaines’ report states that the services Provider provided to Claimant prior to July 30, 2001, were medically unnecessary.

The IRO found that the medical records it reviewed showed that Claimant’s condition had improved substantially following the services furnished by Provider, including the work hardening program. While Carrier challenged the IRO’s compliance with the MRG, the ALJ is uncertain that all of the documents considered by the IRO were admitted into evidence. The affidavit attached to the documents that Carrier submitted as Exhibit No. 1 states that the documents were submitted to the IRO by Carrier to support Carrier’s position. The affidavit does not indicate that Exhibit No. 1 included all of the documentation submitted to the IRO by Provider. Therefore, it is unclear that the IRO failed to comply with the MFG as alleged by Carrier.

Finally, it appears that in August 2001, both parties agreed that Claimant had a compensable injury that could be expected to improve with treatment. Nothing in the record proves by a preponderance of the evidence that the treatments furnished by Provider from March 21, 2001, to July 30, 2001, were medically unnecessary. Therefore, Provider is entitled to payment for the services provided Claimant from March 21, 2001, to July 30, 2001.

V. Findings of Fact

1. In________, Claimant suffered a back injury compensable under the Texas Workers’ Compensation Act and for which Bryan Independent School District (Carrier), was self insured.
2. Claimant suffered injury to his lower back while moving pea gravel.
3. From March 21, 2001 through July 20, 2001, the dates of service in issue, Claimant was being treatment by Stewart D. Stephenson, D.C.
4. Claimant was diagnosed with lumbosacral plexus and lumbar intervertebral disc displacement with myelopathy and sciatica.
5. Dr. Stephenson initially treated Claimant with passive modalities but, subsequently, admitted Claimant into a work-hardening program.
6. Claimant’s physical condition improved between March 21, 2001 and July 30, 2001,
7. Provider timely set Carrier claim forms requesting payment for the medical services and treatment provided to Claimant between March 21, 2001, and July 30, 2001.
8. Carrier’s July 31, 2001, explanation of benefits (EOB), addressing the services furnished by Provider from April 18, 2001, through April 23, 2001 and from June 7, 2001, through July 16, 2001, stated that Carrier was denying payment because Claimant’s injury was noncompensable.
9. In the EOB dated July 10, 2001, Carrier denied payment for the services Provider furnished Claimant from May 16, 2001, through May 25, 2001, stating that Claimant’s injury was noncompensable.
10. In the September 14, 2001, EOB covering services Provider furnished Claimant from July 18, 2001 to July 20, 2001, Carrier denied payment, asserting that the services were medically unnecessary.
11. Carrier and Claimant entered into a Benefit Dispute Agreement on August 13, 2001, agreeing that the injury was compensable.
12. On June 4, 2001, James M. Campbell, M.D. conducted an MRI of Claimant’s lumbar spine, finding mild disc bulging at L4-5 without evidence of any herniation or stenosis.
13. On July 30, 2001, William Gaines, M.D., examined Claimant and certified that Claimant reached MMI on July 30, 2001, with a two percent whole body impairment rating.
14. On July 30, 2001, Dr. Gaines found that Claimant had work-related lumbar strain secondary to a shoveling accident and needed no further treatment
15. On May 31, 2002, the independent review organization (IRO) conducted an independent review of the treatment Provider furnished Claimant.
16. The IRO found that the chiropractic treatments (physical therapy and work hardening) Dr. Stephenson provided Claimant between March 21, 2001 and July 30, 2001, were medically necessary.
17. On October 1, 2002, based on the IRO’s decision, the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission’s (Commission) approved reimbursement to the Provider for treatment and services furnished to Claimant between March 21, 2001 and July 30, 2001.
18. On October 18, 2002, Carrier timely requested a hearing on the MRD decision.
19. On December 10, 2002, the Commission issued a notice of hearing to the parties. The notice contained a statement of the time and place 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.
20. On March 11, 2003, the hearing convened in Austin, Texas, before Administrative Law Judge Carol Wood (ALJ). Nick Bray, attorney, represented Carrier. Although properly notified of the hearing, Provider did not appear. The Commission did not participate in the hearing.
21. On May 7, 2003, the ALJ reopened the record to permit the parties to submit evidence of the amount of controversy, the medical bills, and Carrier’s denial statements. On June 2 and June 4, 2003, the parties submitted additional evidence, and the record closed on June 4, 2003
22. The medical treatment provided to Claimant, including physical therapy and work hardening treatments, was reasonably related to treating his compensable injury and was medically necessary.

VI. Conclusions of Law

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to Tex. Labor Code Ann. § 413.031.
2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to Labor Code §413.031 and Tex. Govt. Code Ann. ch. 2003.
3. Carrier timely requested a hearing, as specified in 28 Tex. Admin Code (TAC) §148.3.
4. Proper and timely notice of the hearing was provided in accordance with Govt Code §§ 2001.051 and 2001.052.
5. Carrier has the burden of proof in this proceeding pursuant to 28 TAC §§ 148.21(h) and (i); 1 TAC § 155.41.
6. Based on the above findings, Carrier failed to prove by a preponderance of the evidence that the medical treatment Provider furnished Claimant, including physical therapy and work hardening, was not medically reasonable and necessary to relieve the effects of the compensable injury suffered by Claimant, within the meaning of Labor Code §§ 408.021 and 401.011(19).
7. Provider is entitled to reimbursement for the work hardening treatments and other medical services provided to Claimant between March 21, 2001 and July 30, 2001.

ORDER

IT IS ORDERED that Bryan Independent School District shall pay reimbursement to Stewart D. Stephenson, D.C., for medical services provided to Claimant ____, including physical therapy and work hardening, from March 21, 2001, and July 30, 2001.

Issued this 5^th day of August, 2003

STATE OFFICE OF ADMINISTRATIVE HEARINGS

CAROL WOOD
Administrative Law Judge

1. Bryan Independent School District is self-insured.↑
2. Ex. 1 at 3.↑
3. Ex. 1 at 19.↑
4. Ex. 3 at 3.↑
5. Ex. 1 at 46.↑
6. Ex. 1 at 11.↑
7. Ex. 1 at 12.↑
8. Ex. 1 at 14.↑
9. Ex. 1 at 6.↑
10. Ex. 1 at 8.↑
11. Ex. 2.↑
12. Ex. 2.↑
13. Ex. 3.↑
14. The IRO also found that the chiropractic treatments provided after July 30, 2001, were not medically necessary. Provider did not appeal this portion of the MRD. Therefore, it will not be discussed further.↑
15. Ex. 3 at 2.↑
16. Ex. 3 at 4.↑
17. Ex. 4 at 27.↑
18. Ex. 4 at 77 and 83-99.↑
19. Ex. 4 at 79-82.↑
20. Ex. 4 at 100.↑
21. Ex. 4 at 103-133.↑
22. Ex. 1 at 14.↑
23. Ex. 1 at 20.↑
24. 28 TAC §133.304.↑
25. 28 TAC §133.304(c).↑