DECISION AND ORDER

I. SUMMARY

Texas Mutual Insurance Company (Carrier) appealed the decisions of two independent review organizations (IROs) in Texas Workers’ Compensation Commission (TWCC) Medical Review Division (MRD) tracking numbers M5-03-1014-01 and M5-03-1987-01, granting reimbursement for medical services provided to the Claimant. Additionally, the Carrier appealed the MRD’s decision denying reimbursement for services not considered by the IROs. This decision orders that the Carrier is not required to reimburse Suhail Al-Sahli, D.C. (Provider) for the contested services.^[1]

The Administrative Law Judge (ALJ) convened a hearing on December 13, 2004. The hearing was concluded and the record closed that day. The Carrier appeared through its representative Patricia Eads, attorney. The Provider appeared pro se.

II. EVIDENCE AND BASIS FOR DECISION

The issue presented in this proceeding is whether the Carrier should reimburse the Provider for medical services provided between May 1, 2002, and January 17, 2003, and billed under CPT Codes 99213 (office visit), 97035 (ultrasound), 99213-MP (office visit with manipulation), 97110 (therapeutic exercises), 97250 (myofascial release), and 97012 (mechanical traction). The Carrier argued that none of the medical services provided to the Claimant were medically necessary or reasonably required to treat the compensable injury and that the Provider failed to submit relevant

information to meet documentation criteria.^[2] According to the table of disputed services, the amount in controversy is $4,403.00.^[3]

The Provider attempted to present evidence and argument on the services denied reimbursement at the TWCC level. However, the Carrier objected because the Provider had failed to file a cross-appeal on those items. In response, the Provider stated that TWCC personnel had advised him that it was unnecessary to file a cross-appeal. The Carrier’s objection was sustained.

The documentary record consisted of four exhibits presented by the Carrier (Exh. A – 253 pages, Exh. B – 2 pages, Exh. C – 4 pages, Exh. D – 30 pages) and one exhibit submitted by the

Provider (R’s Exh. 1 – 349 pages). Additionally, William D. Defoyd, D.C., testified as an expert witness on behalf of the Carrier and the Provider appeared to offer argument but did not testify.

The Claimant, a 62-year-old man, suffered an injury to his lumbar spine on ___ when the 18-wheeled truck he was driving was struck from behind by another 18-wheeled truck.^[4] He was initially seen by Bruce R. Weimer, M.D.^[5] Diagnostic studies included an MRI completed on April 24, 2002, which revealed various degenerative changes in the lumbar spine,^[6] and a lumbar myelogram with post-myelogram CT scan, which revealed degenerative changes and spinal stenosis from the L2-L3 level downward.^[7] Additionally, on July 25, 2002, and August 15, 2002, the Claimant was given epidural steroid injections.^[8] Stephen I. Esses, M.D., examined the Claimant and reviewed an updated MRI, which showed nerve root compression caused by disc degeneration.^[9] The Claimant had surgery on August 13, 2003, to decompress nerve roots from L3 to S1.^[10]

The Provider furnished a variety of pre-operative and post-operative modalities. The table of disputed services submitted by the Carrier indicates that the Provider began treating the Claimant on April 12, 2002.^[11] On that date, the Claimant was treated with ultrasound, traction therapy, and

therapeutic exercises. The table shows that the Provider treated the Claimant until at least June 9, 2004.^[12]

Dr. Defoyd graduated from the Texas Chiropractic College in 1986. Since that time he has been in private chiropractic practice in Austin, Texas. He has also provided consulting services for carriers, and served on several TWCC committees.^[13] Dr. Defoyd reviewed the Claimant’s medical records in preparation for his testimony.

Dr. Defoyd testified that prior to the compensable injury the Claimant suffered from pre-existing osteoarthritis, bone spurs, and spinal stenosis. He stated that an effective program would have included both active and passive flexion based treatment. Dr. Defoyd pointed out that prior to beginning treatment, the Provider failed to create a treatment plan with goals for the Claimant’s progress.

Regrading the passive treatment provided to the Claimant, Dr. Defoyd testified that it continued much longer than it should have. Passive treatment, according to Dr. Defoyd, should be used exclusively for two weeks following an injury. He stressed that by June 6, 2002, there was no need for further passive treatment and the medical records did not contain clinical justification for continued passive treatment.

The Claimant’s active treatment was provided at the one-on-one level of supervision. Dr. Defoyd stated that treatment at this level is necessary for patients suffering from serious injuries, such as a stroke or a spinal cord injury. However, he testified the one-on-one level of supervision

was not cost effective, and it was not necessary to treat the Claimant. Dr. Defoyd stressed that a home exercise program would have been cost effective and would have made the Claimant more independent. Finally, he pointed out that the medical records show that Claimant had seven weeks of treatment with no improvement.

Dr. Defoyd testified that the medical records failed to appropriately document delivery of services. He pointed out the documentation did not have a treatment plan and that the same observations were repeated in the examination records. Specifically, Dr. Defoyd stated that the records did not show that two of the three required components for an intermediate level office visit were delivered to the Claimant. Finally, he said that the Provider improperly resubmitted denied bills to the Carrier for review. According to the records and the testimony of Dr. Defoyd, the Provider simply resubmitted the bill instead of requesting reconsideration of the denied bills. Therefore, the record was not appropriately documented for payment.

The ALJ concludes the Carrier established that the contested medical services delivered from May 1, 2002, through January 17, 2003, were not medically necessary and reasonably required to treat the Claimant’s compensable injury. As testified to by Dr. Defoyd, the Claimant suffered from pre-existing osteoarthritis and seven weeks of passive and active treatment failed to provide relief for him. The Claimant additionally had to undergo a multi-level decompressive surgical procedure despite all the treatment he received from the Provider. Additionally, the medical records were not appropriately documented for payment. Therefore, the Carrier should not reimburse the Provider for the contested services delivered to the Claimant.

III. FINDINGS OF FACT

1. On ___ the Claimant suffered a compensable injury to his lumbar spine.
2. The Claimant’s injury is covered by workers’ compensation insurance written for the Claimant’s employer by Texas Mutual Insurance Company (Carrier).
3. Suhail Al-Sahli, D.C. (Provider) began treating the Claimant on April 9, 2002, for a diagnosis of lumbar spine injury.
4. The Carrier denied reimbursement to the Provider for medical services provided between May 1, 2002, and January 17, 2003, and billed under CPT Codes 99213 (office visit), 97035 (ultrasound), 99213-MP (office visit with manipulation), 97110 (therapeutic exercises), 97250 (myofascial release), and 97012 (mechanical traction) on the basis that the treatment was not medically necessary to treat the injury and that the Provider failed to submit relevant information to meet documentation criteria.
5. The Claimant failed to show significant improvement following seven weeks of active and passive treatment from the Provider.
6. The Provider billed multiple 15-minute units for each day the Claimant performed therapeutic exercises.
7. The Claimant did not suffer a severe injury, such as a stroke or spinal cord injury, requiring one-on-one treatment.
8. Direct one-on-one contact with the treating physician at each session of therapy was not cost effective and necessary to treat the Claimant’s injury.
9. The Claimant could have done his exercises in a home-based setting instead of a one-on-one setting.
10. Performing therapeutic exercises in a home-based setting is cost effective and would have made the Claimant more independent.
11. The Provider’s treatment did not provide relief for the Claimant’s pain.
12. Continued treatment beginning June 6, 2002, was unnecessary.
13. The Provider failed to submit relevant information to meet documentation criteria for CPT Codes 99213 (office visit), 97035 (ultrasound), and 97250 (myofascial release).
14. The Provider timely requested dispute resolution by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC).
15. On October 2, 2003, in MRD Tracking No. M5-03-1014-01, the MRD issued its decision adopting the IRO decision concluding that the disputed expenses should be paid, and the Carrier timely appealed.
16. On December 30, 2003, in MRD Tracking No. M5-03-1987-01, the MRD issued its decision concluding that the disputed expenses should be paid, and the Carrier timely appealed the decision.
17. In Docket No. 453-04-1166.M5, TWCC sent notice of the hearing to the parties on November 13, 2003, and in Docket No. 453-04-3076.M5, TWCC sent notice of hearing to the parties on February 12, 2004. The hearing notices informed the parties of the matter to be determined, the right to appear and be represented by counsel, the time and place of the hearing, and the statutes and rules involved.
18. The hearing on the merits convened December 13, 2004, before Michael J. Borkland, Administrative Law Judge. The Carrier appeared through Patricia Eads, attorney. The Provider appeared pro se.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (TWCC) has jurisdiction to decide the issues presented pursuant to Tex. Lab. Code Ann. §413.031.
2. 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. Lab. Code Ann. §413.031 and Tex. Gov’t Code ch. 2003.
3. Based on Finding of Fact No. 17, the Notices of Hearing issued by TWCC conformed to the requirements of Tex. Gov’t Code Ann. §§2001.051 and 2001.052.
4. The Carrier has the burden of proving by a preponderance of the evidence that it should prevail in this matter. Tex. Lab. Code Ann. §413.031.
5. The services referred to in Finding of Fact No. 4 were not medically necessary.
6. Based on Findings of Fact Nos. 5 – 13, the Carrier proved that reimbursement for the disputed services should not be required.

ORDER

IT IS, THEREFORE, ORDERED that Texas Mutual Insurance Company is not required to reimburse Suhail Al-Sahli, D.C. for the disputed services provided in treating the Claimant.

Signed February 9, 2005.

MICHAEL J. BORKLAND
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. By order dated March 4, 2004, the two cases were joined for reasons of judicial economy and to efficiently expedite the consideration of these dockets.↑
2. In summary, these cases presented both a fee dispute and a medical necessity dispute.↑
3. Exh. B. Additionally, the table of disputed services indicates that the disputed dates of service are from June 6, 2002, through November 27, 2002.↑
4. Exh. A, page 1.↑
5. Exh. A, page 5.↑
6. Exh. A, pages 9 and 10.↑
7. Exh. A, pages 19 – 29.↑
8. Exh. A, pages 15 – 18.↑
9. Exh. A, pages 34 and 35.↑
10. Exh. A, page 39.↑
11. The medical records indicate that the Claimant was seen by the Provider on April 9, 2002, but this is not reflected in the table of disputed services. R. Exh. 1, pages 271 – 273. This is an example of the confusing condition of the evidence submitted. The state of the evidence caused the ALJ’s review to be much longer than it should have been and may have led to inaccuracies in this decision if there are any.↑
12. Exh. A, pages 198 – 252.↑
13. Exh. C.↑