DECISION AND ORDER

Texas Mutual Insurance Company (Carrier) challenged the decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission awarding reimbursement to Central Dallas Rehab (Provider) for sessions of physical medicine and other treatments that Provider administered to ___(Claimant) from March 21, 2002, through May 28, 2002. The MRD ordered reimbursement to Provider for joint mobilization, a manipulation, and for range of motion and muscle testing. Carrier asserted that some of these treatments duplicated services normally part of a manipulation, hence were not necessary, and that others were not medically necessary in and of themselves.

Based on the evidence submitted, Carrier met its burden of proof to show that joint mobilizations were not reasonably required and not medically necessary to treat Claimant. It also showed a manipulation treatment administered on May 28, 2002 was not medically necessary. However, Carrier failed to meet its burden of proof to show that range of motion and muscle testing were not medically necessary.

The hearing in this matter convened on February 11, 2004, in Austin, Texas, with Administrative Law Judge (ALJ) Cassandra Church presiding. The record closed March 10, 2004, when written closing arguments were filed. Provider was represented by Scott C. Hilliard, attorney. Carrier was represented by Patricia Eads, attorney. The Commission did not participate in the hearing.

I. DISCUSSION

On____, Claimant injured his lower back while lifting a heavy object. An unsuccessful four-month trial of physical medicine administered immediately after his injury was followed on February 7, 2002, by a discetomy at the L4-L5 level. At the time of the surgery, Claimant was diagnosed as having a herniated disc, sciatica, and lumbar degenerative disorder. Provider Exh. 1, pp. 13-14. Provider administered physical therapy and physical medicine treatments between the date of surgery and the first disputed service date. Claimant may have entered a work hardening program on May 10, 2002, about two weeks before the last disputed date of service here, although the record is not clear on that.

The payment history during the disputed period is checkered. Carrier reimbursed Provider for office visits with manipulation, for administering myofascial release, and for providing therapeutic activities on March 21, and on April 1 and 3, 2002. However, for the visit on March 27, 2002, and for some, but not all, other visits in April 2002, Carrier denied reimbursement for any services on the basis that all services after March 27, 2004, exceeded the reasonable medical needs for a patient with Claimant’s injury and treatment history. Provider Exh. 2, pp. 105-122. Specifically, Carrier denied reimbursement for all services on April 11, 2002, including an office visit, myofascial release, and administration of therapeutic activities, as well as the muscle testing. Carrier denied payment for the only service for which Provider billed on May 28, 2002, an office visit with a manipulation.

Acting on behalf of the MRD, the Independent Review Organization (IRO) ordered Carrier to reimburse Provider for joint mobilization and muscle testing on March 21, 2002; for joint mobilization and range of motion measurement on April 1, 2002, for joint mobilization on April 3, 2002, for joint mobilization and muscle testing on April 11, 2002, and for the manipulation on May 28, 2002. The office visit and the myofascial release treatment on April 11, 2002, are not in dispute here.

Carrier did not challenge the efficacy of the manipulations which Provider performed in February and March; rather, it argued there was no medical justification for also billing for joint mobilization and muscle or range of motion testing on the same visit. Carrier’s expert, William DaFoyd, D.C., testified that administering joint mobilization on the same day of an office visit involving manipulation was duplicative since mobilizing the affected joint is a precursor to the manipulation. Mobilization takes the joint to the extent of its natural range of motion, while manipulation moves it past that point by means of applying additional force. Carrier Exh. E. Dr. DaFoyd also stated that a chiropractor routinely checks a patient’s range of motion and muscle strength when preparing to do a manipulation in order to determine the extent of treatment needed, and that measurement by means of a machine, as was done by Claimant, was not necessary. Thus Carrier argued that billing for testing as a separate activity on the same day as a manipulation would not be warranted.

In regard to the later visits, Carrier argued that the post-surgery trial of physical medicine to effect Claimant’s recovery had, by the latter part of March 2002, proven unsuccessful so should have been discontinued.

Provider Ted Krejci, D.C., stated the Commission’s treatment guidelines provide for separate billing for joint mobilization and muscle or range of motion testing, and an office visit on the same date. The Commission’s rules do not define this combination of treatments as a global procedure which must be billed as a unit. Dr. Krejci also stated that a mobilization and manipulation each may be performed on different levels of the spine on the same day, which would make them separately-billable procedures. However, none of Provider’s treatment notes say that multiple levels of Claimant’s spine were treated during a visit. Further, Dr. Krejci did not dispute Dr. DaFoyd’s explanation that joint mobilization was a routine precursor to a manipulation. Dr. Krejci acknowledged that Claimant was not progressing as rapidly as might be expected with the injury he sustained, but stated that the treatments helped Claimant maintain sufficient steady progress in his physical recovery to enable him to undertake work hardening. He also stated that, in his experience, muscle and range of motion testing using machines was more objective than visual or manual testing.

The spinal manipulation on May 28, 2002, was the first treatment Provider had administered in three weeks. The treatment notes fail to provide any specific reason for the treatment or describe any change in Claimant’s condition which would warrant a return to treatment. Dr. DaFoyd’s expert opinion stating there was no longer need for such treatment is the most credible evidence in the record.

Based on the evidence, the ALJ concluded that Carrier met its prima facie burden of proof to show that joint manipulation was not medically necessary as it would usually be a preparation activity for a manipulations. Carrier having met that prima facie burden, the burden then shifted to Provider to overcome that evidence by showing that there were conditions or factors in Claimant’s case or in Provider’s procedures that warranted the separate billing that is permitted by the Commission’s rules. However, in this case, Provider failed to provide specifics about either Claimant’s medical condition or its treatment protocols that overcome Carrier’s evidence. Without facts to show how these services were separately provided and how each was needed to meet Claimant’s particular medical needs, Provider’s reliance on the Commission’s rule permitting separate billing for these services separately is insufficient to overcome Carrier’s evidence.

However, Carrier failed to meet its burden of proof to show that Claimant’s election to perform the muscle and range of motion testing by means of a machine rendered that testing medically unnecessary. Carrier’s expert and Provider agreed that assessing the patient’s condition before determining the appropriate level of treatment is appropriate, although they differed as to the best means to do so. Under the Commission’s rules it appears that muscle and range of motion testing, whether conducted manually or by means of a measuring device, are considered a separate service.

Carrier met its burden of proof to show the office visit on May 28, 2002, was not medically necessary as it presented reliable evidence demonstrating there was no medical purpose for this treatment at that stage of Claimant’s recovery.

II. FINDINGS OF FACT

1. On______ (Claimant) injured his lower back while lifting a heavy object.
2. Texas Mutual Insurance Company (Carrier) was the responsible insurer.
3. On February 7, 2002, Claimant underwent a discectomy at the L4-L5 level. Claimant had a herniated disc, sciatica, and lumbar degenerative disorder.
4. Between March 21, 2002, and May 28, 2002, Ted Kresjci, D.C., was Claimant’s treating doctor (Provider).
5. On March 21, on April 1, 3, and 11, 2002, Provider performed several physical medicine procedures to treat Claimant’s spine, including a spinal manipulation and joint mobilization on each date.
6. On March 21 and April 11, 2002, Provider also conducted muscle testing, and on April 1, 2002, range of motion testing. Both types of testing were conducted by means of measuring machines.
7. Provider administered a spinal manipulation on May 28, 2002. Provider had administered no treatments in the three weeks preceding this treatment and there was no change in Claimant’s condition during the treatment gap.
8. There was no medical necessity for the spinal manipulation on May 28, 2002.
9. In order to manipulate a joint, a chiropractic practitioner will normally mobilize the joint to be treated before performing the manipulation, which moves the joint past its normal range of motion by application of force.
10. Provider used joint mobilization as the preparation stage of a manipulation of Claimant’s spine on all dates of treatment.
11. In the course of administering treatments, a chiropractor must assess the patient’s range of motion and muscle strength in order to determine the appropriate types and levels of treatment.
12. Range of motion and muscle strength can be assessed manually and visually by the chiropractor or can be tested using machines. The Commission rules do not bar electing either method of testing.
13. Carrier paid for the manipulations on March 21 and on April 1 and 3, 2002, but denied payments for joint mobilization and muscle and range of motion testing performed in conjunction with the manipulations.
14. Carrier denied payment for all treatments on April 11, 2002, and for the office visit with manipulation on May 28, 2002.
15. Provider appealed the Carrier’s determinations to the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission).
16. On August 1, 2003, based on the review by an Independent Review Organization (IRO), Independent Review Incorporated, the MRD ordered Carrier to reimburse Provider for all joint mobilization, muscle and range of motion testing, and manipulations that Provider performed between March 21, 2002, and May 28, 2002.
17. On August 19, 2003, Provider requested a hearing on the MRD decision.
18. On September 22, 2003, the Commission issued a notice of hearing that included the date, time, and location of the hearing, the applicable statutes under which the hearing would be conducted, and a short, plain statement of matters asserted. The case was continued on motion of the parties.
19. Administrative Law Judge Cassandra Church conducted a hearing on the merits of this case on February 11, 2004, and the record closed on March 10, 2004.

III. CONCLUSIONS OF LAW

1. 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 and Tex. Gov’t Code Ann. ch. 2003.
2. Provider timely requested a hearing, as specified in 28 Tex. Admin Code § 148.3.
3. Proper and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann.§§ 2001.051 and 2001.052.
4. Carrier, as the petitioning party, has the burden of proof in this proceeding pursuant to Tex. Lab. Code Ann. § 413.031 and 28 Tex. Admin Code § 148.21(h).
5. Joint mobilization on the disputed service dates was not reasonably required or medically necessary on March 21, April 1, 3, and 11, 2002, to treat or relieve the effects of or promote Claimant’s recovery from a compensable injury within the meaning of Tex. Lab. Code Ann. §§ 408.021 and 401.011(19).
6. Range of motion testing conducted on April 1, 2002, and muscle testing conducted on March 21 and April 11, 2002, were reasonably required or medically necessary to treat or relieve the effects of or promote Claimant’s recovery from a compensable injury within the meaning of Tex. Lab. Code Ann. §§ 408.021 and 401.011(19).
7. An office visit with manipulation on May 28, 2002, was not medically necessary to treat or reasonably required to relieve the effects of or promote recovery from a compensable injury suffered by Claimant, within the meaning of Tex. Lab. Code Ann. §§ 408.021 and 401.011(19).

ORDER

IT IS ORDERED that Texas Mutual Insurance Company reimburse Central Dallas Rehab for range of motion and muscle testing conducted on March 21, and on April 1 and 11, 2002. All other claims by Central Dallas Rehab for reimbursement for unpaid procedures between March 21, 2002, through May 28, 2002, are hereby denied.

Signed May 3, 2004.

CASSANDRA J. CHURCH
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS