DECISION AND ORDER

Petitioner, Liberty Mutual Fire Insurance Company (Carrier), appealed the Findings and Decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC) ordering reimbursement to Kelly Alana, D.C., (Dr. Alana/Provider) for medical services provided to _____, Claimant. Carrier disputes the IRO’s conclusion that these services are medically necessary. The Administrative Law Judge (ALJ) concludes that Carrier met its burden of proof with respect to certain services provided Claimant between December 19, 2001, and July 19 2002, and Carrier should reimburse Provider only for the physical therapy modalities billed for ultrasound (CPT Code 97035), myofascial release (CPT Code 97250), electrical stimulation (CPT Code 97014), and special reports (CPT Code 99080), provided to Claimant for his compensable injury.

I. PROCEDURAL HISTORY

ALJ Penny Wilkov convened and closed the hearing on March 8, 2004, at the State Office of Administrative Hearings, Austin, Texas. Attorney Kevin J. Franta represented Carrier. Attorney Larry J. Laurent represented Provider. The parties did not contest notice or jurisdiction, which are addressed in the Findings of Fact and Conclusions of Law.

II. DISCUSSION

Background

Claimant, a thirty-year-old male, sustained a work-related back injury on _____, when he slipped and fell while carrying a five-gallon bucket of rocks and soil weighing 50-60 pounds.Claimant has not significantly returned to work since the date of the accident.^[1]

Claimant has been generally diagnosed with lumbosacral spine strain.^[2] An MRI performed on December 22, 200, showed that the L5-S1 disc had a 3mm disc protrusion with a zone of signal hyperintensity in the right portion suggesting a fissure. Claimant describes symptoms of constant

low back pain with thigh and leg numbness and tingling, with a subjective level of pain ranging from five to eight on a scale of one to ten. Claimant also experiences pain when sitting, driving, standing, and bending. Claimant reports that the pain is worse with activity and better with rest. The medical records indicate that he has been primarily under the care of Robert J. Henderson, M.D., Benjamin J. Cunningham, M.D., Kelly Alana, D.C., and Gregory K. Shy, D.C.

Carrier denied payment, using denial code U and V^[3], for the following treatments administered between December 19, 2001, and July 19, 2002,:

• forty-two office visits: thirty-seven office visits with an expanded history and examination, one office visit with minimal contact, and four office visits with a detailed history and examination.^[4]
• analysis of computer data performed on nine occasions.^[5]
• therapeutic exercise (treadmill, stationary bicycle, weights, etc.) performed on fifteen occasions, with six units per visit; for one occasion, with eight units per visit; for two occasions with four units per visit; and for fifteen occasions with five units per visit.^[6]
• traction and mobilization services with manual traction performed on sixteen occasions, mechanical traction performed on four occasions, and joint mobilization conducted on fourteen occasions.^[7]
• ultrasound, myofascial release, and electrical stimulation services and specifically, ultrasound treatments provided on three occasions, myofascial treatment performed on twenty occasions, and electrical stimulation performed on one occasion.^[8]
• special report services provided on two occasions to fill out Texas Worker’s Compensation Commission (TWCC) forms required.^[9]

1. Evidence and Argument
2. Carrier

Carrier argues that it should not be required to reimburse Provider for all medical services provided between December 19, 2001, and July 19, 2002, which total $10,914.00, since the treatments were medically unnecessary, redundant, and may have actually aggravated Claimant’s condition.

In support of this argument, Carrier presented the testimony of Casey Cochran, D.O., who is a full-time practicing physician specializing in occupational medicine.^[10] Dr. Cochran reviewed the Carrier’s 450-page compilation of medical evaluations, assessments, follow-ups, reviews, and test results, in formulating his testimony.

Dr. Cochran testified that Claimant, within days of the accident, was diagnosed with relatively mild lumbar strain that required no more treatment than pain medication and a short course of physical therapy.^[11] One week later, Claimant was continuing to show improvement, reporting a subjective level of pain of two on a scale of one to ten. An X-ray, EMG, and MRI taken periodically over three months further corroborated the initial diagnosis of a lumbrosacral spine strain.^[12]

Approximately three weeks after the accident, Claimant changed Providers to Gregory Shy, D.C. and Kelly Alana, D.C. Dr. Cochran testified that from this date forward, Claimant appeared to take a significant and unexpected turn for the worse. On one of the first exams, Provider noted that Claimant exhibited swelling and pain as well as poor strength, range of motion, and functional activity, although none of these symptoms had been observed in any prior evaluation. Nevertheless, Provider began extensive frequent treatment which, according to Dr. Cochran, was worthless at best and potentially harmful at worst, acting to slow recovery and aggravate the condition. Dr. Cochran testified that as the treatments progressed over nine months, there was limited medical necessity for the continual one-on-one treatment supervision and duplicative office visits particularly in light of the nonexistent evaluative assessment of the services provided. If Claimant had shown improvement, eight weeks of passive treatment might have been appropriate under the circumstances. There was no indication, however, that Claimant was progressing with this therapy.

Dr. Cochran testified that as the repetitive treatment continued into 2002, Claimant’s condition showed very little improvement and the therapy may even have impeded his recovery. Within four months of the injury, Claimant reported no significant improvement in his back pain which he continued to describe as constant and unremitting.^[13] In March 2002, Claimant was referred to a work hardening program that proved unsuccessful in returning Claimant to work. In June and July, 2002, more daily treatment followed with no detectable improvement, particularly in the level of pain. Dr. Cochran testified that certain studies show that administering repetitive, failed treatment

may actually serve to slow recovery, promoting physician dependence by the patient and refocusing energies on pain and disability. Dr. Cochran concluded that, in his opinion, the treatment rendered

by the Provider was inappropriate, excessive, and non-beneficial.

Provider

Dr. Alana testified that although Dr. Shy was the actual treating doctor, he actively participated in the diagnostics and management of this case. Claimant had originally consulted with Concentra Medical Centers (Concentra), characterized by Dr. Alana as a pro-employer health clinic where the treating physician recommended an immediate return to light-duty work despite Claimant’s pain. Initially, Dr. Alana was prepared to prescribe a home exercise program but Concentra documents indicated Claimant was not following the prescribed home exercise program. Dr. Alana thought it necessary, under this circumstance, to supervise Claimant’s exercises at Provider’s facility.

Dr. Alana points to the periodic recommendations of consulting physicians as justification for the medical necessity of the continued course of therapy. One such recommendation was made on December 17, 2001, by Erwin A. Cruz, M.D., a neurologist, who conducted an EMG on Claimant. Based on the EMG, Dr. Cruz diagnosed a lumbosacral spine strain and recommended continued physical therapy, exercise, and chiropractic care, noting that Claimant was showing obvious signs of improvement.^[14] Another recommendation was made on the basis of an MRI taken in late December and sent to Robert J. Henderson, M.D., who proposed a caudal epidural steroid block procedure for diagnostic reasons with chiropractic therapy to aid in the evaluation of the effectiveness of the injection in decreasing pain.^[15] When Claimant began experiencing additional neck and shoulder pain as well as back pain, a second MRI was taken and sent to Benjamin J. Cunningham, M.D., who recommended further therapy for eight weeks to strengthen the shoulder and rotator cuff and to alleviate the neck pain. Dr Alana testified that after Claimant underwent a subacromial injection on May 17, 2001, he continued with the chiropractic treatments for four additional weeks to monitor the injection’s progress. When a discogram CT scan performed by Chys Sory, M.D. noted a fissure at L3-4, L4-5, and L5-S1 on May 31, 2001, Dr. Alana continued therapy into June and July but recommended increased exercise to build strength.

Dr. Alana testified that throughout the treatment, he was able to gauge the success of the treatment by Claimant’s subjective statements as to swelling and pain, and Claimant’s increased range of motion and improvements in strength and endurance. According to Dr. Alana the therapy was not designed to fix the problem but to help Claimant live a more active life until surgery was approved. Furthermore, the treatment was considered appropriate and medically necessary by the IRO.^[16]

Applicable Law

Under the workers’ compensation system, an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury. The employee is

specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment. Tex. Lab. Code Ann. § 408.021. “Health care” includes “all reasonable and necessary medical . . . services.” Tex. Lab. Code Ann.§ 401.011(19).

Analysis

Concerning the forty-two office visits, Provider testified that the office visits were necessary to provide manipulation. Carrier, however, argues that the daily progress reports do not reflect that any manipulation services occurred and furthermore, in light of the lack of objective evidence of Claimant’s improvement, there is no justifiable reason to bill for detailed or expanded examination office visits for forty-two occasions. The ALJ agrees that the Carrier proved that the disputed office visits were not medically necessary because objective evaluative assessments were not taken to determine the progress and success of the treatments and the progress notes do not reflect that manipulation occurred. Accordingly, the Carrier is not required to reimburse for forty-two office visits and associated billings under CPT Codes 99213, 99211, and 99214.

The analysis of computer data billings, as testified to by Provider, were for the doctor’s time in reading documentation, reports, and records of other providers or facilities. The ALJ was persuaded by Dr. Cochran’s testimony that this service code contemplates the analysis of complex data and not the reading and reviewing of reports from referring physicians. Therefore, this service was inappropriately and improperly billed. The ALJ agrees that the Carrier has met the burden of proof to show that these services were not medically necessary. The Carrier is not required to reimburse for that procedure for all nine occasions under CPT Code 99090.

As to therapeutic exercises, the Provider testified that close supervision was necessary to ensure proper use of the equipment. Carrier argued that temporary improvement is not justification for continued failed therapy, and that one-on-one supervision over a ten month period was neither required nor medically necessary. Although there is some benefit to proper supervision, it must be combined with periodic measurable assessments to determine the necessity and progress of the recovery and to ensure the treatment is not counterproductive. In this case, the evidence showed that not only did Claimant’s back pain fail to diminish but it began to radiate to his shoulder and neck yet no objective measurements or reassessments were done to gauge the ongoing effectiveness of the treatments. Therefore, based on the evidence and testimony, the ALJ finds that these treatments were medically unnecessary. Accordingly, Carrier is not required to reimburse Provider for these services billed under CPT Code 97110.

In regard to the traction and mobilization services, the ALJ finds there is an absence of measurable objective data to demonstrate the medical necessity of these services. Thus, Carrier is not required to reimburse Provider for any of these services, on all occasions, billed under CPT Codes 97122, 97012, and 97265.

As to the necessity of ultrasound, myofascial release, and electrical stimulation, Dr. Alana testified that these treatments were successful at reducing Claimant’s inflammation and swelling. Dr. Cochran substantiated that these therapies do have some benefit and that he might have

incorporated these same services into his treatment regiment, albeit for a lesser time period, along with home exercises. Because the testimony established that Claimant showed some improvement in inflammation and swelling, the ALJ finds that the procedures did offer some benefit to promote

Claimant’s recovery and were medically necessary. Therefore, the ALJ finds that Carrier should reimburse Provider for these services on all occasions billed under CPT Codes 97035, 97250, and 97014.

Concerning the billing of special reports, Carrier did not dispute the necessity of this service. The ALJ finds that this service was medically necessary to continue treatment, in hope of some recovery, and concludes that Carrier should reimburse for this service billed under CPT Code 99080

Conclusion

Carrier shall reimburse Provider only for the physical therapy modalities billed for ultrasound (CPT Code 97035), myofascial release (CPT Code 97250), electrical stimulation (CPT Code 97014), and special reports (CPT Code 99080) provided to Claimant for his compensable injury.

III. FINDINGS OF FACT

1. Claimant suffered a compensable injury to his back on _____.
2. At the time of the injury, Claimant’s employer had its workers’ compensation insurance through Liberty Mutual Insurance Company (Carrier).
3. Shortly after the injury, Claimant was diagnosed by Concentra Medical Centers with a lumbar strain and reported a subjective pain level of two on a scale of one to ten.
4. An MRI performed on December 22, 2001 showed that the L5-S1 disc had a 3mm disc protrusion with a zone of signal hyperintensity in the right portion suggesting a fissure.
5. Provider submitted a claim to Carrier for treatment rendered to Claimant from December 19, 2001, until October 14, 2002, including procedures billed under CPT codes 99213 (office visit), 99090 (analysis of computer data), 99211 (office visit), 97265 (joint mobilization), 97122 (manual traction), 97110 (therapeutic exercises), 97250 (myofascial release), 97012 (mechanical traction), 97035 (ultrasound), 99214 (office visit), 99080 (special reports), and 97014 (electrical stimulation).
6. Carrier denied Provider’s request for reimbursement.
7. On December 20, 2001, Petitioner requested medical dispute resolution with the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD).
8. An Independent Review Organization concluded that chiropractic treatments rendered from December 19, 2001 though July 17, 2002 were medically necessary and that all other services rendered from July 18, 2002 through October 14, 2002 were not medically necessary.
9. Provider filed a request for a hearing before the State Office of Administrative Hearings on October 20, 2003.
10. The Commission sent notice of the hearing to the parties on November 13, 2003. The hearing notice informed the parties of the time, place, and nature of the hearing; the legal

authority and jurisdiction under which the hearing was to be held; the statutes and rules involved; and the matters asserted.

1. The hearing convened and closed on March 8, 2004. Carrier appeared and was represented by Kevin J. Franta, attorney. Provider appeared and was represented by Larry J. Laurent, attorney.
2. Despite the services rendered to Claimant between December 19, 2001, and July 19, 2002 by Provider, he reported no significant improvement in his back pain which he continued to describe as constant and unremitting
3. Since objective evaluative assessments or measurements were not taken to determine the progress and success of the treatments and the daily progress notes do not reflect that manipulation occurred, the forty-two office visits, billed under CPT Codes 99213, 99211, and 99214, were not shown as medically necessary.
4. The analysis of computer data, billed under CPT Code 99090, was not established as medically necessary since the reading of reports from referring physicians was not demonstrated as the analysis of computer information data.
5. During the time the therapeutic exercises were provided under CPT Code 97110, Claimant’s back pain failed to diminish and radiated to his shoulder and neck, and no objective treatment assessment or evaluation was taken to gauge Claimant’s progress.
6. Traction and mobilization services, billed under CPT Codes 97122, 97012, and 97265, were not demonstrated as medically necessary in the absence of measurable objective data
7. Claimant showed improvement in the amount of inflammation and swelling based on ultrasound, myofascial release, and electrical stimulation, provided under CPT Codes 97035, 97250, and 97014.
8. The preparation of special reports, billed under CPT Code 99080, were medically necessary to continue Claimant’s medically necessary treatments.

IV. CONCLUSIONS OF LAW

1. The State Office of Administrative Hearings (SOAH) has jurisdiction over matters related to the hearing, 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.
2. Carrier timely filed a request for hearing before SOAH, as specified in 28 Tex. Admin. Code § 148.3.
3. The parties received proper and timely notice of the hearing pursuant to Tex. Gov’t Code Ann. ch. 2001 and 1 Tex. Admin. Code § 155.27.
4. Carrier had the burden of proving the case by a preponderance of the evidence pursuant to 28 Tex. Admin. Code § 148.21.
5. Pursuant to the Act, an employee who has sustained 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 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. Tex. Lab. Code Ann. § 408.021(a).
6. Health care includes all reasonable and necessary medical services. Tex. Lab. Code Ann. § 401.011(19)(A).
7. Carrier established by a preponderance of the evidence that treatment services billed under CPT codes 99213 (office visit), 99211 (office visit),99214 (office visit), 97110 (therapeutic exercises), 99090 (analysis of computer data), 97265 (joint mobilization), 97122 (manual traction), and 97012 (mechanical traction), were not medically reasonable or necessary for the proper treatment of Claimant. Tex. Lab. Code Ann. §§ 401.011(19) and 408.021.
8. Carrier failed to establish that physical therapy modalities billed under CPT codes 97035 (ultrasound), 97250 (myofascial release), 97014 (electrical stimulation) and 99080 (special reports), are not reimbursable under Tex. Lab. Code Ann. §§ 401.011(19) and 408.021(a).

ORDER

IT IS ORDERED that Kelly Alana, D.C., is entitled to reimbursement by Liberty Mutual Insurance Company for the physical therapy modalities billed for ultrasound (CPT Code 97035), myofascial release (CPT Code 97250), electrical stimulation (CPT Code 97014), and special reports (CPT Code 99080) provided to Claimant between December 19, 2001, and July 17, 2002.

Signed April 22, 2004.

PENNY WILKOV
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Provider’s testimony was that Claimant returned to work for a few days but was unable to continue work when the employer did not comply with the light duty restriction.↑
2. Petitioner’s Exhibit 1, page 11A (December 17, 2001 consultation with Erwin A. Cruz, M.D.).↑
3. Denial Code U and V are used when the insurance carrier is denying payment because the treatment or service is medically unreasonable and unnecessary with or without peer review.↑
4. CPT Code 99213, 99211, and 99214.↑
5. CPT Code 99090.↑
6. CPT Code 97110.↑
7. CPT Codes 97122, 97012, and 97265.↑
8. CPT Codes 97035, 97250, and 97014.↑
9. CPT Code 99080.↑
10. Dr. Cochran received his medical degree from the University of Health Sciences in Kansas City, Kansas, and is currently board certified in family medicine and occupational medicine.↑
11. Petitioner’s Exhibit 1, page 14A, Concentra Medical Centers, October 16, 2001.↑
12. Petitioner’s Exhibit 1, page 30A, (X-ray, Garrett Consulting, November 15, 2001), page 32A (EMG, Erwin A. Cruz, M.D., December 17, 2001) and page 46A(Texas Imaging and Diagnostic Center, December 22, 2001).↑
13. Petitioner’s Exhibit 1, page 68A, (Robert J. Henderson, M.D., February 13, 2002).↑
14. Respondent’s Exhibit 1, page 12A, although no explanation of the basis of the opinion is provided.↑
15. Respondent’s Exhibit 1, pages 23A and 24A.↑
16. The IRO’s decision concluded that chiropractic treatment rendered from December 19, 2001 though July 17, 2002 were medically necessary. All other services rendered from July 18, 2002 through October 14, 2002 were not medically necessary.↑