DECISION AND ORDER

Employers Insurance Company of Wausau (EICW), petitioner, seeks an order from the State Office of Administrative Hearings (SOAH) to reverse the decision of the Medical Review Division (MRD) of the Texas Workers= Compensation Commission (TWCC) on the issue of whether chiropractic services rendered by Jack Barnett, D.C., were medically necessary.

Following a hearing and consideration of the evidence, the Administrative Law Judge (ALJ) finds that the evidence supports EICW’s appeal in part and orders that EICW is not required to reimburse Dr. Barnett for thirteen of the eighteen CPT code 99213 services in dispute. The ALJ finds that EICW should reimburse Dr. Barnett for all other services in dispute.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

Jurisdiction and notice were not disputed and are addressed in the Findings of Fact and Conclusions of Law.

The hearing was convened and closed on January 27, 2004, before ALJ Paul Keeper. EICW was represented by Kevin Franta, and Dr. Barnett was represented by H. Douglass Pruett. Petitioner called Samuel Michael Bierner, M.D., as an expert witness, and offered into evidence Petitioner’s Exhibit 1. Respondent called no witnesses and offered into evidence Respondent’s Exhibit 1. Both exhibits were admitted into the record.

II. BACKGROUND

The claimant, E.P., strained her lower back on April 16, 2001, while lifting a box. The injury caused the claimant considerable pain in her low back, groin, and legs. At the time of her injury, the claimant was in her fifth month of pregnancy. Her obstetrician/gynecologist referred her to Mark Hendry, D.C., for passive treatment until she had delivered her child.

The claimant’s child was born in June 2001, and on July 5, 2001, the claimant had an MRI of her lumbar spine. The MRI revealed mild bulges, a subligamentous herniation, and a non-compressive annular tear.^[1]

On August 22, 2001, the claimant began seeing Dr. Jack Barnett, D.C., for treatment of her back problems. The medical records reflect that the claimant was in considerable pain. Dr. Barnett’s initial diagnosis was herniated nucleus pulposus, lumbar radicular neuralgia, and myospasm. Dr. Barnett requested eighteen sessions of active therapeutic rehabilitation^[2] and referred the claimant to Son Nguyen, M.D., for pain management.

Dr. Nguyen examined the claimant on September 5, 2001, and prescribed a range of medicines to treat her back pain. Dr. Nguyen advised the claimant to continue rehabilitation therapy with Dr. Barnett.^[3]

On October 15, 2001, the claimant’s condition was evaluated by Lubor J. Jarolimek, M.D., an orthopedist. Dr. Jarolimek recommended that the claimant receive manual therapy, mobility exercises, neuromuscular re-education, stabilization exercises, and strengthening exercises. He recommended that the physical therapy be given three times a week for four weeks. Further, he recommended that the claimant have epidural steroid injections (ESI) in conjunction with rehabilitation if her condition did not improve with rehabilitation alone.^[4]

EICW requested Required Medical Evaluation, and on October 18, 2001, the claimant was examined by Avner Robert Griver, M.D., a physiatrist. Dr. Griver: (1) concluded that Dr. Barnett’s treatment of the claimant appeared to be well-delineated and reasonable and necessary, (2) disagreed with Dr. Barnett’s assessment that the claimant was unable to perform any job description whatsoever, (3) concluded that the claimant had demonstrated Ainappropriate illness behavior, (4) concluded that the claimant had reached maximum medical improvement (MMI) with an impairment rating of five percent, (5) concluded that no further diagnostic tests would be reasonable or necessary, and (6) recommended no further treatment of her condition other than a work hardening program.^[5]

In response to Dr. Griver’s report, EICW began to deny Dr. Barnett’s requests for reimbursement as Aunnecessary medical treatment or service per independent medical exam.^[6]

On November 20, 2001, Craig Thiry, D.C., performed a designated doctor examination of the claimant’s condition. Dr. Thiry concluded that the patient was not at MMI and should undergo a series of ESIs and have an electromyelogram (EMG).^[7]

On December 5, 2001, the claimant’s condition was evaluated by David MacDougall, D.O., a clinical professor of neurology at the University of Texas Medical School in Houston. Dr. MacDougall found no evidence of myelopathy, no muscular wasting, and no hypesthesia. In light of the claimant’s continued complaints of pain, Dr. MacDougall recommended a lumbar discogram if her condition did not improve.^[8]

On December 13, 2001, the claimant’s condition was evaluated by James Weiss, M.D., the founder/director of the Longevity Institute of Houston.^[9] Dr. Weiss performed an EMG as part of a physiatrist evaluation. His examination found no evidence of neuropathy or myopathy to explain the claimant’s pain.^[10]

On January 8, 2002, the claimant was evaluated by Edward Lewis, M.D., of the Mainland Center for Pain Medicine. Following an examination of the claimant, Dr. Lewis recommended a trial of ESIs and continued rehabilitation therapy with Dr. Barnett at least three times a week for the next three weeks.^[11]

On January 29 and on March 26, 2002, the claimant received ESIs.^[12] On April 30, 2002, Dr. Lewis examined the claimant again. By that time, her gynecologist had identified her as a candidate for hysterectomy because of ovarian cysts. Dr. Lewis recommended that Dr. Barnett discontinue active therapy and terminated further ESIs pending the decision to conduct the surgery and the claimant’s recovery from surgery.^[13]

On May 7, 2002, the claimant was examined by Carl Cannon, M.D., board certified in orthopedic surgery and sports medicine. Dr. Cannon’s medical report to TWCC, a Designated Doctor Examination, recommended: (1) a follow-up examination by Dr. MacDougall or another spine specialist for the claimant’s further evaluation as a surgical candidate, and (2) a work hardening program pending her medical release following her hysterectomy. Dr. Cannon projected that the claimant could be at MMI within three to four months following her surgery and following the completion of her work hardening program. Dr. Cannon also concluded that the treatment modalities provided to this patient have been reasonable and necessary, and certainly thorough.^[14]

On August 15, 2002, EICW faxed to Dr. Barnett a copy of a medical record review of the claimant’s condition that had been performed by Roger Canard, D.C., on August 12, 2002. Dr. Canard concluded that: (1) the claimant should have progressed to a complete recovery in four to six weeks following the birth of her child in June 2001, and (2) Dr. Barnett’s treatment would have been acceptable through August 8 or 10, 2001. Beyond that date, Dr. Canard concluded, the care was not reasonable or necessary.^[15]

The dispute that ultimately became the subject of this docket arises from EICW’s denial of reimbursement to Dr. Barnett for services rendered to the claimant between March 5, 2002, and May 17, 2002. Dr. Barnett appealed the decision to TWCC. The Independent Review Organization (IRO) ruled in its Independent Review Decision (IRD) against Dr. Barnett on some treatment charges and in his favor on others. The MRD adopted the findings of the IRO. Dr. Barnett does not appeal the ruling, and EICW appeals solely that portion of the MRD ruling that is in Dr. Barnett’s favor.

The MRD found that sixty-six of the disputed therapy charges were medically necessary. In tabular form, the modes of therapy and related information appear as follows:

Therapy	CPT Code	No. of sessions	Charge per session	Total
Therapeutic exercise	97110	10	$140.00	$1,400.00
Therapeutic exercise	97110	1	$105.00	$105.00
Joint mobilization	97265	17	$43.00	$731.00
Myofascial release	97250	20	$43.00	$860.00
Office visits	99213	18	$48.00	$864.00
Total		66		$3,960.00

The sole issue before SOAH is whether the sixty-six disputed services were medically necessary.

III. RELEVANT LAW

Under Texas law, 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. Labor Code, ‘ 408.021. The statute provides that the purposes for which health care is to be rendered to a claimant includes any 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.

The types of health care to which an employee is entitled are similarly broad, including Aall reasonable and necessary medical aid, medical examinations, medical treatments, medical diagnoses, medical evaluations, and medical services.Tex. Labor Code ‘ 401.11(19).

Although the law describes few limitations on a claimant’s entitlements to care, the law places upon the treating physician an obligation to maintain efficient utilization of health care. Tex. Labor Code’408.025(c).

IV. DISCUSSION AND ANALYSIS

The claimant’s availability for physical therapy was complicated by the fact of her pregnancy at the time of her injury. In addition, the claimant changed chiropractors prior to entering into active therapeutic rehabilitation with Dr. Barnett. Another complicating factor was the intensity of her pain, leading to her treatment by Dr. Nguyen for pain management. The clinical results of the claimant’s medical tests revealed no physical condition that would account for her discomfort. Neither the MRI and the EMG adequately accounted for the claimant’s continuing physical pain.

The reports on the medical examinations performed by Dr. Griver in October 2001 and by Dr. MacDougall and Dr. Weiss in December 2001 describe a patient who had no clear medical reason for continued care, beyond her great discomfort. Dr. Griver’s report describes the claimant as having demonstrated Ainappropriate illness behavior.

On the other hand, the reports following the medical examinations performed by Dr. Jarolimek in October 2001, Dr. Thiry in November 2001, and Dr. Lewis in January 2002 all recommend that the patient continue physical therapy and/or describe the patient as not having attained MMI.

At the hearing on the merits, EICW presented the testimony of Dr. Bierner, a physician with board certification in physical medicine/rehabilitation and electrodiagnogistic medicine. Dr. Bierner reviewed the IRD and the medical reports of Drs. Griver, Weiss, and Canard. His testimony was that Dr. Barnett’s treatment of the claimant lasted too long, was not medically necessary, and may have been harmful to the patient’s recovery. Dr. Bierner’s contention was that the claimant’s pregnancy may have exacerbated her pain and that the end of the pregnancy should have eliminated some of the claimant’s discomfort. Dr. Bierner’s testimony was that the duration of the claimant’s physical therapy should not have exceeded four to six weeks following her pregnancy. In Dr. Bierner’s opinion, all treatment beyond that period was medically unnecessary.

Among Dr. Bierner’s criticisms of the IRD was the IRO’s recommendation of approval for payment for all of the office visits (CPT code 99213). Dr. Bierner contended that an office visit should have been used for a periodic reassessment of the patient’s condition. In Dr. Bierner’s opinion, these charges should be incurred no more frequently than every two weeks. Dr. Barnett billed for office visits eighteen times over a ten week period instead of Dr. Bierner’s recommended maximum of five visits.

This dispute involves the conflict between a claimant’s actual and apparent health care needs. The issue of medical necessity in this case focuses upon the physician’s obligation to treat a patient’s ongoing physical discomfort in the absence of a clear medical explanation for its cause. The issue raises the question of appropriate medical management, or, in the language of the statute, the responsibility to maintain efficient utilization of health care.^[16]

Because of his patient’s continued complaints about her discomfort, Dr. Barnett appropriately sought diagnosis and treatment for his patient from a variety of doctors. Some did not believe that the claimant needed additional care, and their disagreement with Dr. Barnett’s treatment might have raised questions about the efficiency of his utilization of health care for this patient.

However, s stated in Dr. Barnett’s August 30, 2002, response to Dr. Canard’s evaluation, Aevery injury is different, and A[t]his case is not a normal lumbar injury.^[17] The conclusions of the several other doctors who did recommend continued physical therapy for the claimant demonstrate that the medical necessity issues were far from clear. The ALJ concludes that Dr. Barnett did engage in appropriate medical management of this patient.

The LJ also notes with approval the May 7, 2002, conclusion of Dr. Cannon, a designated doctor in this case, that the treatment modalities provided to this patient have been reasonable and necessary. When Dr. Cannon issued his report, the claimant was nearing the end of her treatment with Dr. Barnett. The ALJ accepts the conclusions of the designated doctor as evidence that the forty-eight sessions of therapeutic exercise, joint mobilization, and myofascial release rendered by Dr. Barnett between March 5 and May 17, 2002, were necessary for the cure or relief of the effects naturally resulting from the claimant’s compensable injury; promoted her recovery, and enhanced her ability to return to or retain employment.^[18] The ALJ finds that each of these services were medically necessary to the treatment of the condition presented by this claimant.

However, the LJ is also persuaded by the testimony of Dr. Bierner in which he contended that the eighteen office visits over a ten week period were excessive since the purpose of office visits (CPT code 99213) are for Aperiodic reassessment rather than for active therapy. The ALJ finds that this number of office visits during this period were neither medically necessary nor reasonable and that no medical documentation is available to show any special need for office visits with this frequency. Using Dr. Bierner’s proposed ratio of an office visit every two weeks, the ALJ finds that five of the eighteen office visits over the ten week period were medically necessary.

V. FINDINGS OF FACT

1. The claimant, as an injured worker, strained her lower back on April 16, 2001, while lifting a box.
2. At the time of her injury, the claimant was in her fifth month of pregnancy.
3. The claimant’s obstetrician/gynecologist referred her to Dr. Mark Hendry, D.C., for passive treatment until she had delivered her child.
4. The claimant’s child was born in June 2001, and on July 5, 2001, the claimant had an MRI of her lumbar spine.
5. The MRI revealed mild bulges, a subligamentous herniation, and a non-compressive annular tear.
6. On August 22, 2001, the claimant began seeing Dr. Jack Barnett, D.C., for treatment of her back problems.
7. Dr. Barnett’s initial diagnosis was herniated nucleus pulposus, lumbar radicular neuralgia, and myospasm.
8. During the period of September 5, 2001, through August 12, 2002, the claimant’s medical condition was evaluated by nine other physicians or chiropractors.
9. Based on the conclusions of some of these examining doctors, EICW denied reimbursement to Dr. Barnett for services rendered to the claimant between March 5, 2002, and May 17, 2002.
10. The treatment modalities provided to the claimant were reasonable and necessary in that the claimant was suffering from low back pain caused by a work-related injury and in that the claimant’s condition responded to the care provided.
11. Dr. Barnett appealed the decision to TWCC, and the IRO found medically necessary the following sessions of treatment:

Therapy	CPT Code	No. of sessions	Charge per session	Total
Therapeutic exercise	97110	10	$140.00	$1,400.00
Therapeutic exercise	97110	1	$105.00	$105.00
Joint mobilization	97265	17	$43.00	$731.00
Myofascial release	97250	20	$43.00	$860.00
Office visits	99213	18	$48.00	$864.00
Total		66		$3,960.00

VI. 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. Labor 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. Labor Code ‘ 408.021.
4. Adequate and timely notice of the hearing was provided in accordance with the Administrative Procedure Act. Tex. Gov=t Code ‘ 2001.052.
5. EICW has the burden of proof in this matter. 28 TAC ‘148.21(h).
6. EICW sustained its burden of proof as to thirteen of the eighteen office visit sessions (code 99213).
7. As to all other therapy sessions, EICW did not sustain its burden of proof, as reflected in the foregoing Findings of Fact.
8. All treatments except thirteen of the office visits (code 99213) were medically necessary and should be reimbursed by EICW.

ORDER

EICW is not required to reimburse Dr. Barnett for thirteen of the eighteen office visits (code 99213) and must reimburse Dr. Barnett for all other therapy sessions.

Signed on February 20, 2004.

PAUL D. KEEPER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Petitioner’s Exhibit 1 at 308.↑
2. Petitioner’s Exhibit 1 at 316.↑
3. Petitioner’s Exhibit 1 at 335.↑
4. Petitioner’s Exhibit 1 at 337.↑
5. Petitioner’s Exhibit 1 at 371.↑
6. Respondent’s Exhibit 1 at 358.↑
7. Petitioner’s Exhibit 1 at 374.↑
8. Petitioner’s Exhibit 1 at 341.↑
9. Dr. Weiss= specialty is not disclosed in Petitioner’s Exhibit 1.↑
10. Petitioner’s Exhibit 1 at 312.↑
11. Petitioner’s Exhibit 1 at 345.↑
12. Petitioner’s Exhibit 1 at 351.↑
13. Petitioner’s Exhibit 1 at 350.↑
14. Respondent’s Exhibit 1 at 381.↑
15. Petitioner’s Exhibit 1 at 386. Also, no evidence of Dr. Canard’s qualifications or his areas of specialization were made part of the record.↑
16. Tex. Labor Code Ann.’ 408.025(c).↑
17. Respondent’s Exhibit 1 at 385.↑
18. Tex. Labor Code Ann. ‘ 408.021(a).↑