DECISION AND ORDER

I. DISCUSSION

Neuromuscular Institute of Texas (Petitioner) appealed the Findings and Decision of the Texas Workers’ Compensation Commission (Commission) acting through Independent Review Incorporated, an Independent Review Organization (IRO), denying Petitioner reimbursement for therapeutic exercises, hot and cold pack therapy and office visits for the period March 14, 2002, through April 11, 2002 (Disputed Services).

This decision denies the relief sought by Petitioner.

The hearing convened on September 24, 2003, before Administrative Law Judge (ALJ) Howard S. Seitzman. David T. Duncan, Jr., represented Petitioner. Dean G. Pappas represented the San Antonio Independent School District (Respondent). There were no contested issues of notice or jurisdiction. Timothy J. Fahey, D.C., testified for Respondent. The record closed the same day following adjournment of the hearing.

____ (Patient) sustained a work related injury on or about_________, when she slipped while in a school cafeteria.^[1] She grabbed a table in an apparently unsuccessful attempt to prevent a fall to the floor. Patient injured her thoracic spine and right knee. On October 18, 2000, Patient presented to Brad Burdin, D.C. After a series of treatment for her knees and back, Patient had right knee surgery on May 28, 2002. There is no dispute that the right knee and thoracic spine were involved in the October 17, 2000 injury. The Disputed Services were provided by Petitioner.

Ptient exhibited symptom magnification and pain behavior during a medical examination conducted by Dr. Fahey on January 28, 2002. As of that date, Patient had resolved from the effects of the October 17, 2000 injury. Dr. John S. Toohey, M.D., conducted a Required Medical Examination (RME) on December 3, 2001. Dr. Toohey concluded (1) Patient had received appropriate treatment for her October 17, 2000 injury; (2) the objective findings of her physical examination are inconsistent with her subjective complaints; and (3) Patient has Ahad more than enough treatment for her thoracolumbar injury of October 17, 2000.

Petitioner had the burden of proof in this proceeding, and Petitioner failed to sustain its burden of proof that the Disputed Services are medically necessary.

II. FINDINGS OF FACT

1. ____ (Patient) sustained a work related injury on or about___________, when she slipped while in a school cafeteria.
2. Patient injured her thoracic spine and right knee.
3. On October 18, 2000, Patient presented to Brad Burdin, D.C. After a series of treatment for her knees and back, Patient had right knee surgery on May 28, 2002.
4. Neuromuscular Institute of Texas (Petitioner) seeks reimbursement for therapeutic exercises, hot and cold pack therapy and office visits for the period March 14, 2002, through April 11, 2002 (Disputed Services).
5. The Disputed Services were provided by Petitioner.
6. Patient has exhibited symptom magnification and pain behavior.
7. San Antonio Independent School District (Respondent) denied reimbursement for the Disputed Services as not medically necessary.
8. By letter dated June 10, 2003, Independent Review Incorporated, an Independent Review Organization (IRO), concluded that the Disputed Services were not medically necessary for treatment of Patient’s condition.
9. The IRO decision is deemed a Decision and Order of the Texas Workers’ Compensation Commission (Commission).
10. Petitioner timely requested a hearing to contest the Commission’s decision.
11. By letter dated June 12, 2003, the Commission issued a notice of hearing.
12. A hearing was convened by Administrative Law Judge Howard S. Seitzman on September 24, 2003, in the hearing rooms of the State Office of Administrative Hearings.
13. David T. Duncan, Jr., represented Petitioner. Dean G. Pappas represented Respondent.

III. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers’ Compensation Act, Tex. Lab. 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 Tex. Lab. Code Ann. ‘ 413.031(k) and Tex. Gov’t. Code Ann. ch. 2003.
3. Petitioner timely requested a hearing in this matter pursuant to 28 Tex. Admin. Code (TAC) ” 102.7 and 148.3.
4. Notice of the hearing was proper and complied with the requirements of Tex. Gov’t. Code Ann. ch. 2001.
5. 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 Ann. ‘ 408.021(a).
6. Petitioner had the burden of proof in this matter, which was the preponderance of evidence standard. 28 TAC ” 148.21(h) and (i); 1 TAC ‘ 155.41(b).
7. Based upon the Findings of Fact, Petitioner failed to prove by a preponderance of the evidence that the therapeutic exercises, hot and cold pack therapy and office visits for the period March 14, 2002, through April 11, 2002, were medically necessary for treatment of Patient’s condition.

ORDER

THEREFOREIT IS ORDERED that Petitioner Neuromuscular Institute of Texas= request for relief is DENIED.

Signed October 16, 2003.

HOWARD S. SEITZMAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Patient was also injured in a work related accident on_____, and was treated by Frank Garcia, M.D. Patient changed treating professionals from Dr. Garcia to Dr. Burdin on October 18, 2000.↑