DECISION AND ORDER

I. Discussion

Cotton D. Merritt, D.C. (Provider) disputes a decision of an independent review organization (IRO) on behalf of the Texas Workers’ Compensation Commission (TWCC)/Medical Review Division (MRD) in which Liberty Mutual Fire Insurance (Carrier) denied payment for various services provided Claimant including four units (15 minutes per unit) of one-on-one physical therapy (CPT 97110), kinetic activities (CPT 97530), office visits (99213), joint mobilization (CPT 97265), and myofascial release (CPT 97250), provided to Claimant from June 13, 2003, through June 25, 2003 (collectively, referred to as medical services).^[1] The IRO/MRD found these medical services were not medically necessary to treat Claimant’s compensable injury. As set out below, the Administrative Law Judge (ALJ) finds that the medical services provided by Provider between June 13, 2003, through June 25, 2003, were not medically necessary.

Claimant sustained a compensable injury to his lower back on ___, when he slipped and fell into a construction hole. An MRI taken on December 4, 2001, showed that Claimant had a herniated disc at L5-S1, and a disc protrusion at L4-L5. Claimant’s treating physician, at the time, treated him with medication and physical therapy, which did not relieve his pain.

On January 7, 2002, Claimant changed his treating physician to Provider. However, Claimant’s condition failed to respond to conservative chiropractic care, and on February 4, 2003, Claimant underwent lumbar spinal surgery to fuse the L4-L5 and L5-S1 discs. On March 26, 2003, Claimant’s surgeon, T. Bryon Smitherman, M.D., prescribed gentle spine/trunk stabilization exercises.^[2]

The medical records admitted into evidence indicate that rehabilitation therapy with Provider did not begin until April 28, 2003. Carrier paid for Provider’s treatment until June 13, 2003, but thereafter denied payment. Between June 13 and June 25, 2003, Provider billed Carrier for the medical services. However, Carrier denied coverage for these medical services based on a peer review determination that the medical services were not medically necessary to treat Claimant’s compensable injury.

Thomas B. Sato, D.C., conducted a retrospective review of the Claimant’s medical records

and found that the services provided by Provider to Claimant after June 13, 2003, were not medically necessary. Instead, Dr. Sato maintained Claimant should have been placed on an independent exercise program by June 13, 2003.

Nicholas Tsourmas, M.D., Carrier’s expert, clarified that while myofascial release might be beneficial three to four weeks following surgery to break down scar tissue, it is not medically necessary months after surgery. Provider also performed joint mobilization on Claimant’s spine. Dr. Tsourmas expressed concern about the medical appropriateness of trying to mobilize discs that were fused because these discs were fused to remove their mobility. In Dr. Tsourmas’ opinion, the only type of joint mobilization necessary to treat Claimant was the mobility acquired through exercise, not passive modalities.

Provider had the burden of proof in this matter. From April 28, 2003, through June 30, 2003, the therapy of treatment provided to Claimant did not change substantially. By June 13, 2003, Claimant had undergone enough training and treatment to be able to engage in an independent home exercise program. Claimant did not require further one-on-one therapy. Based on the evidence, Provider failed to show that the medical services provided to Claimant four months following spinal surgery were medically necessary. Therefore, the ALJ finds that the disputed medical services provided by Provider to Claimant between June 13 and June 25, 2003, were not medically necessary.

II. Findings of Fact

1. On ___, Claimant sustained a work-related injury to his lower back as a result of his work activities (compensable injury).
2. At the time of Claimant’s compensable injury, Claimant’s employer’s workers’ compensation insurance carrier was Liberty Mutual Fire Insurance (Carrier).
3. As a result of the compensable injury, the Claimant suffered a herniated disc at L5-S1 and a disc protrusion at L4-L5.
4. On January 7, 2002, Claimant changed his treating physician to Cotton D. Merritt, D.C. (Provider).
5. On February 4, 2002, Claimant underwent lumbar spinal surgery to fuse the L4-L5 and L5-S1 discs.
6. Provider began providing Claimant with postoperative rehabilitative care on April 28, 2003.
7. From June 13 to June 25, 2003, Provider treated Claimant with one-on-one physical therapy (CPT 97110), kinetic activities (CPT 97530), office visits (CPT 99213), joint mobilization (CPT 97265) and myofascial release (CPT 97250).
8. By June 13, 2003, Claimant did not require one-on-one physical therapy because he had undergone sufficient one-on-one therapy prior to that time to be able to do the exercises independently.
9. Between June 13 and June 25, 2003, Claimant’s medical condition did not require further treatments of myofascial release, kinetic activities, office visits, or joint mobilization.
10. Carrier denied coverage for these medical services based on a peer review finding that these medical services were not medically necessary to treat Claimant’s compensable injury.
11. On June 1, 2004, Provider filed a request for medical dispute resolution with the Texas Workers’ Compensation Commission (TWCC).
12. On August 10, 2004, an independent review organization (IRO) reviewed the medical dispute and found that the disputed services were not medically necessary.
13. Based on the IRO’s findings, TWCC’s Medical Review Division (MRD) declined to order reimbursement to Provider for the disputed services provided to Claimant from June 13 to June 25, 2003.
14. After the MRD order was issued, the Provider asked for a contested-case hearing by a State Office of Administrative Hearings (SOAH) Administrative Law Judge (ALJ).
15. Required notice of a contested-case hearing concerning the dispute was mailed to the parties.
16. On May 4, 2005, SOAH ALJ Catherine C. Egan held a contested-case hearing concerning the dispute at the William P. Clements Office Building, Fourth Floor, 300 West 15th Street, Austin, Texas. Attorney Kevin Franta appeared for Carrier. Provider appeared pro se. The hearing concluded and the record closed on that same day.

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. Labor Code Ann. (Labor Code) §§ 402.073(b) and 413.031(k) and Tex. Gov’t Code Ann. (Gov’t Code) ch. 2003.
2. Adequate and timely notice of the hearing was provided in accordance with Gov’t Code §§ 2001.051 and 2001.052.
3. Based on the above Findings of Fact and Gov’t Code § 2003.050 (a) and (b), 1 Tex. Admin. Code (TAC) § 155.41(b) (2004), and 28 TAC §§ 133.308(v) and 148.21(h) (2004), Provider has the burden of proof in this case.
4. 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 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. Labor Code § 408.021 (a).
5. Based on the above Findings of Fact and Conclusions of Law, the disputed services provided by Provider to Claimant between June 13 and June 25, 2003, were not medically necessary to treat Claimant’s compensable injury.

ORDER

IT IS ORDERED THAT Cotton D. Merritt, D. C., is not entitled to reimbursement from Liberty Mutual Fire Insurance for the medical services provided Claimant from June 13, 2003, to June 25, 2003.

Signed July 5, 2005.

CATHERINE C. EGAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. According to Provider, the amount in dispute is $2,723.↑
2. Provider Ex. A at 46.↑