DECISION AND ORDER

Claimant _______ injured his back on _______, while lifting a heavy object. Dana Santelli, D.C., provided various services to _______ from April 5, 2002, through February 14, 2003, including office visits with manipulations, massage, and myofascial release. Citing a lack of medical necessity, Texas Mutual Insurance Company (TMIC) denied reimbursement for these services. An Independent Review Organization (IRO) concluded that the disputed services were not medically necessary. Dr. Santelli requested a hearing. The amount in controversy is $1,712.00. The Administrative Law Judge (ALJ) agrees with the IRO that the services at issue were not medically necessary.

I.

DISCUSSION

A. Background Facts

_______’s injury on _______, caused immediate back pain radiating through his hips and legs to his feet on both sides, though more so on the left. He began seeing Dr. Santelli on July 11, 2001, and commenced regular office visits with chiropractic treatments. An MRI performed that month showed some disc protrusions and suggested degenerative disc disease.^[1] A lumbar electrodiagnostic evaluation in August 2001 suggested some sensory radiculopathy involving the left leg and foot.^[2] A discogram with CT scan in October 2001 also showed degenerative changes and disc protrusions.^[3] He has had facet injections and epidural steroid injections.^[4] He has been deemed not to be a surgical candidate by two physicians, including a neurosurgeon.^[5] In early 2002, he underwent an intensive chronic pain management and functional restoration program. He made progress with his lumbar

range of motion, although his back and leg pain persisted.^[6] He was declared to have reached maximum medical improvement in 2002 with a 10% impairment rating,^[7] and apparently returned to work at some point.^[8] He continued to see Dr. Santelli for chiropractic treatment throughout 2002 and into 2003; these visits and treatments are the disputed services in this case.

Procedural History

The IRO issued its decision July 29, 2003 (distributed as an order of the Texas Workers’ Compensation Commission August 12, 2003). Dr. Santelli requested a hearing August 18, 2003. The hearing was convened on February 10, 2004, before State Office of Administrative Hearings (SOAH) Judge Shannon Kilgore. Dr. Santelli, appearing by telephone, represented himself. Patricia Eads, attorney, represented TMIC. The record closed on February 23, 2004, with submission by TMIC of a reply to written closing argument by Dr. Santelli.

C. Applicable Law

The Texas Labor Code contains the Texas Workers’ Compensation Act (Act) and provides the relevant statutory requirements regarding compensable treatment for workers’ compensation claims.^[9] In particular, the Act provides in pertinent part that:

(a) An employee who sustains 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:

1. cures or relieves the effects naturally resulting from the compensable injury;
2. promotes recovery; or
3. enhances the ability of the employee to return to or retain employment.

* * *

Health care includes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services.^[10]

D. Burden of Proof

Under the rules of the Texas Workers’ Compensation Commission (Commission), an IRO decision is deemed a Commission decision and order.^[11] The burden of proof in this case is on

Dr. Santelli to prove by a preponderance of the evidence that the disputed services were reasonable and necessary medical treatments.^[12]

E. The Disputed Services

Dr. Santelli billed under the following CPT codes:

99213-MPoffice visit with manipulation

97124 massage

97250 myofascial release

99080 special report

E1399 equipment [TENS pads].

As noted above, the dates of service were April 5, 2002, through February 14, 2003. There were 32 visits over this 10-month period. TMIC denied reimbursement using denial code “U” B unnecessary treatment.^[13] TMIC also added the rationale, “The treatment/service provided exceeds medically accepted utilization review criteria and/or reimbursement guidelines established for severity of injury, intensity of service and appropriateness of care.”^[14]

F. IRO Decision

In its report, the IRO stated in part:

There does appear to be some clinical rationale for supportive care with manipulative procedures on an as needed basis. However, no specific exacerbation, re-injury or other acute aggravation of conditions is documented. There is little rationale in this file supporting supportive care with manipulation at greater than 2x per month to establish RTW restoration of function. This file contains no clinical rationale or documented medical necessity for 97124 massage services, 97250 myofascial release or unlisted DME services. There are no specific documents dated 10/4/02 that justify the charge of 99080 special reports.

G. General Description of the Evidence

The evidence in this case consists of medical and billing records and the testimony of the following witnesses:

Dr. Santelli, testifying on his own behalf; and

David Alvarado, D.C., a chiropractor who testified for TMIC.

H. Analysis and Decision

Office visits with manipulations. Dr. Santelli testified – and his notes reflect – that he provided the manipulations on a “prn” (as needed) basis for pain relief. However, his records do not reflect the efficacy of such treatment. His notes, which are very difficult to read, nearly always describe _______’s response to the treatment as “P [after] tx,” which the ALJ interprets as “decrease in pain following treatment.” However, most of the notes fail to document the claimant’s reported pain level before treatment and compare it to the pain level after treatment. Many progress notes indicate no specific level of pain, and some indicate only one level of pain – most likely the level prior to treatment. (Several notes – beginning in November 2002 – do have “before” and “after” pain levels for comparison, and show some diminution in pain during the visit.) Most important, the notes never document pain relief that lasted beyond the duration of the office visit. Dr. Santelli testified that the manipulations gave _______ pain relief for one day up to four weeks, but this assertion carries little weight because it is unsupported by the documentation. Indeed, this assertion does not correspond with Dr. Santelli’s statement in a letter dated June 30, 2003, that the pain-relieving benefits of chiropractic care in _______’s case “will last anywhere from one to two weeks.”^[15] Because there is no consistent and reliable evidence that these treatments helped the claimant with his pain after he left Dr. Santelli’s office, the ALJ concurs with the determination of the IRO that the office visits with manipulations were not medically necessary.

Massage. Dr. Santelli billed for massage on four dates during the period of disputed services: June 10, 21, and 28, and July 22, 2002. As with the manipulations, the documentation for these days does not support the need for these treatments. There is no indication what area was massaged and why. There is no documentation of the duration of any pain-relieving benefit _______ may have derived from the treatment. Dr. Santelli has failed to show that the massage treatments were medically necessary.

Myofascial release. Dr. Santelli billed for this service on September 13 and November 12, 2002. There is no documentation explaining why this therapy was performed on those two particular days, nor is there any indication of the benefit to the patient and its duration. The ALJ cannot conclude that the treatment was medically necessary.

Special report. Like the IRO, the ALJ cannot find any documents that justify Dr. Santelli’s billing for preparation of a special report on October 4, 2002.

Equipment. Dr. Santelli billed $11.00 under code E1399 (equipment) on July 10, 2002. There is nothing in the progress note for this day that mentions any medical equipment. Dr. Santelli stated that the equipment consisted of pads for a TENS unit. However, he acknowledged in his testimony that he had never prescribed a TENS unit for _______ There is no explanation in the record for this billing.

Summary. Dr. Santelli has failed to offer sufficient reason to warrant overturning the IRO’s determination that the disputed services were not medically necessary.

II.

FINDINGS OF FACTS

1. The claimant _______ injured his back on _______, while lifting a heavy object.
2. Texas Mutual Insurance Company (TMIC) is the workers’ compensation insurer with respect to the claims at issue in this case.
3. From April 5, 2002, through February 14, 2003, Dana J. Santelli, D.C., provided services to the claimant, including office visits with manipulations, massage, and myofascial release.
4. Dr. Santelli billed under the following CPT Codes in connection with the disputed dates of service:

99213-MPoffice visit with manipulation

97124 massage

97250 myofascial release

99080 special report

E1399 equipment [TENS pads].

1. TMIC declined to pay for these services, asserting that they were medically unnecessary.
2. The amount in dispute is $1,712.00.
3. Dr. Santelli requested medical dispute resolution.
4. On July 29, 2003, an independent review organization (IRO) issued a decision finding that the disputed services were not medically necessary.
5. Dr. Santelli requested a hearing.
6. Notice of the hearing was issued September 22, 2003.
7. 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.
8. The hearing was convened on February 10, 2004, before State Office of Administrative Hearings (SOAH) Judge Shannon Kilgore. Dr. Santelli, appearing by telephone, represented himself. Patricia Eads, attorney, represented TMIC. The record closed on February 23, 2004, with submission by TMIC of a reply to written closing argument by Dr. Santelli.
9. The office visits with manipulations, massage, and myofascial release at issue were not medically necessary; Dr. Santelli has not shown that _______ received any benefit from these treatments that lasted longer than the duration of each office visit.
10. The record does not satisfactorily explain the medical necessity of the special report billed for on October 4, 2002. It is not clear whether such a report was prepared and, if so, why.
11. The record does not satisfactorily explain the medical necessity of the TENS pads billed for on July 10, 2002. Dr. Santelli had not prescribed a TENS unit for _______

III.

CONCLUSIONS OF LAW

1. The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code ch. 401 et seq.
2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order. Tex. Lab. Code § 413.031; Tex. Gov’t Code ch. 2003.
3. An employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. Tex. Lab. Code § 408.021.
4. Dr. Santelli timely filed a request for hearing as specified in 28 Texas Administrative Code § 148.3.
5. Adequate and timely notice of the hearing was provided in accordance with the Administrative Procedure Act. Tex. Gov’t Code § 2001.052.
6. Dr. Santelli has the burden of proof in this matter. 28 Tex. Admin. Code §§ 133.308(p)(5)and (w), 148.21(h)-(i).
7. Based on the Findings of Fact, and pursuant to § 408.021 of the Texas Labor Code, TMIC need not reimburse Dr. Santelli for the disputed services.

ORDER

IT IS THEREFORE ORDERED that Texas Mutual Insurance Company need not pay for the office visits with manipulations, massage, myofascial release, special report, and medical equipment provided to the claimant _______ and/or billed for from April 5, 2002, through February 14, 2003.

Issued this April 12, 2004.

SHANNON KILGORE

State office of administrative hearings
Administrative Law Judge

1. Carrier Ex. A at 151.↑
2. Carrier Ex. A at 152-154.↑
3. Carrier. Ex. A at 155.↑
4. Petitioner Ex. 2 at 24-25, 31.↑
5. Petitioner Ex. 2 at 26-29.↑
6. Petitioner Ex. 31-51.↑
7. Petitioner Ex. 2 at 51, 52-53, 65.↑
8. Petitioner Ex. 2 at 71-72.↑
9. Tex. Lab. Code § 408.021.↑
10. Tex. Lab. Code § 401.011(19).↑
11. 28 Tex. Admin. Code § 133.308(p)(5).↑
12. 28 Tex. Admin. Code §§ 133.308(p)(5), 148.21(h)-(i). The IRO decision is entitled to presumptive weight. 28 Tex. Admin. Code § 133.308(w).↑
13. See generally Petitioner Ex. 1.↑
14. Id.↑
15. Petitioner Ex. 1 at 2.↑