DECISION AND ORDER

Laurence M. Smith, D.C., (Provider) appealed the decision of an Independent Review Organization (IRO) upholding the denial of reimbursement for 23 office visits with manipulations, a nerve conduction velocity (NCV) study, and a myofascial release procedure administered to S. H. (Claimant) on various dates of service. In this decision, the Administrative Law Judge (ALJ) finds that Provider failed to meet its burden of showing that the treatment rendered was reasonable and medically necessary for Claimant’s compensable injury. Therefore, Liberty Mutual Insurance Company (Carrier) is not ordered to reimburse Provider for the treatment rendered.

The hearing convened and closed on January 6, 2004, before Steven M. Rivas, ALJ. Provider appeared and represented himself. Carrier appeared and was represented by Kevin Franta, attorney.

I. DISCUSSION

A. Background Facts

Claimant sustained a compensable back injury on July 5, 2001. At some point, Claimant was referred to Provider for treatment of his injury. Claimant underwent several sessions of physical therapy, including the disputed services in this matter. Provider was reimbursed for many of the services rendered, but Carrier denied reimbursement for the above-mentioned disputed services as not medically necessary. Provider filed a request for Medical Dispute Resolution with the Medical Review Division of the Texas Workers’ Compensation Commission. The dispute was sent to an IRO, which upheld the denial of reimbursement, and Provider filed a request for hearing before the State Office of Administrative Hearings.

B.Applicable Law

The Texas Labor Code contains the Texas Workers’ Compensation Act (the Act) and provides the relevant statutory requirements regarding compensable treatment for workers’ compensation claims. In particular, Tex. Lab. Code Ann. § 408.021(a) provides that 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 statute further states an 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.”

Under Tex. Lab. Code Ann. §401.011(19) health care “includes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services.”

Analysis and Conclusion

Provider had the burden of proof in this matter but did not to provide any testimony. Instead, Provider submitted copies of Claimant’s medical records, made a few arguments and asked the ALJ to draw a conclusion. Provider argued that he should be reimbursed for the treatment rendered based on Claimant’s assertion that he experienced temporary relief after each office visit and manipulation. Specifically, the records indicated that Claimant reported the treatment administered by Provider relieved the symptoms of Claimant’s injury. However, the ALJ was persuaded by Carrier’s argument that although Claimant reported temporary relief, the Claimant’s sentiments alone do not meet the standards outlined under § 408.021.

The records indicated the office visits and manipulations that were billed for were apparently administered on the disputed dates of service. However, there was no evidence that suggested Claimant experienced any lasting improvement following any office visit because the notes for each office visit and manipulation indicated that Claimant’s condition had not improved following each visit. Specifically, Claimant complained of lower back pain in the same area on each visit, and Provider commenced with the same manipulation treatment without documenting any improvement. The same is true for the myofascial release that was performed on July 15, 2002.

Furthermore, Provider did not establish that the NCV study that was administered on August 28, 2002, was medically necessary. Carrier argued there was no documentation that supported the medical necessity for the NCV study. Provider offered records that showed the procedure was administered on the disputed date of service, but did not point to any report or recommendation from himself or any other provider that the procedure was medically necessary. Carrier’s argument was persuasive in that the service did not comply with § 408.021 because no showing of medical necessity was established. And as the Petitioner in this matter, Provider had the burden to prove the service was medically necessary, and he did not do so.

II. FINDINGS OF FACTS

1. Claimant S. H. sustained a compensable injury on July 5, 2001.
2. Claimant was referred to Laurence M. Smith, D.C. (Provider), for treatment of his injury.
3. Claimant underwent months of physical therapy with Provider following his injury.
4. Provider billed Texas Mutual Insurance Company (Carrier) for the service rendered to Claimant, and Carrier reimbursed Provider for most of the services except 23 office visits with manipulations, a nerve conduction velocity (NCV) study, and a myofascial release procedure, which Carrier denied as not medically necessary.
5. Provider requested medical dispute resolution through the Texas Workers’ Compensation Commission’s (the Commission) Medical Review Division. The dispute was referred to an Independent Review Organization (IRO), which upheld the denial of reimbursement.
6. Provider timely appealed the IRO decision to the State Office of Administrative Hearings (SOAH).
7. Notice of the hearing in this case was mailed to the parties on November 13, 2003. 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. In the notice, the Commission’s staff indicated that it would not participate in the hearing.
8. The hearing convened and closed on January 6, 2004, with Administrative Law Judge Steven M. Rivas presiding. Provider appeared and represented himself. Carrier appeared and was represented by Kevin Franta, attorney.
9. Claimant did not improve after the 23 office visits and manipulations administered by Provider.
10. No evidence was offered to show that the NCV study was medically necessary to treat Claimant’s compensable injury.
11. No evidence was offered to show that the myofascial release procedure was medically necessary to treat Claimant’s compensable injury.

III. CONCLUSIONS OF LAW

1. The Commission has jurisdiction over this matter pursuant to Tex. Lab. Code Ann. § 413.031.
2. SOAH has jurisdiction over 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. Provider timely filed its notice of appeal, as specified in 28 Tex. Admin. Code § 148.3.
4. Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov’t Code Ann. §2001.052 and 28 Tex. Admin. Code § 148.4.
5. Provider had the burden of proof on its appeal by a preponderance of the evidence, pursuant to Tex. Lab. Code Ann. § 413.031 and 28 Tex. Admin. Code §148.21(h).
6. Under Tex. Lab. Code Ann. § 408.021(a)(3), an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury.
7. The 23 office visits with manipulations, NCV study, and myofascial release procedure was not medically necessary for treatment of Claimant’s compensable injury.
8. Based on the Findings of Fact and Conclusions of Law, Provider’s appeal for reimbursement should be denied.

ORDER

IT IS ORDERED THAT the reimbursement requested by Provider for the treatment rendered to Claimant is denied.

Signed on February 26, 2004.

STEVEN M. RIVAS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS