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Title: 

453-04-1542-m5

Date: 

July 29, 2004

Type: 

Retrospective Medical Necessity

453-04-1542-m5

DECISION AND ORDER

SCD Back and Joint Clinic, Ltd. (Provider) contested the decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission) declining to order reimbursement of $777.50 foroffice visits, joint mobilization, myofascial release, therapeutic exercises, and group exercises that were provided to Claimant on four dates of service between September 4, 2002, and October 15, 2002. Carrier denied reimbursementon the basis that the treatment was not reasonable or medically necessary. The Administrative Law Judge (ALJ) finds the disputed treatment was not reasonable or medically necessary.Therefore, Provider is not entitled to reimbursement for the aforementioned services.

Provider also contested the MRD decision declining to order reimbursement of $825.50 for fitting Claimant with lumbar support on December 21, 2001, because the required documentation of procedure was absent, and for therapeutic exercises provided to Claimant from December 14, 2001, through August 9, 2002, partly because the therapist’s reports failed to document the severity of injury that would support one-on-one supervision, and partly because the treatment was not reasonable or medically necessary. The ALJ finds that Provider did not meet its burden of proof for these treatments, and is not entitled to reimbursement for them.

I. PROCEDURAL HISTORY

ALJ Sharon Cloninger convened and recessed the hearing on March 10, 2004,in the William P. Clements Building, 300 West 15th Street, Austin, Texas.Provider was represented by William Maxell, attorney.Carrier was represented by James Laughlin, attorney. The hearing reconvened and concluded on June 16, 2004. The parties did not contest notice or jurisdiction, which are addressed in the Findings of Fact and Conclusions of Law below.

II. BACKGROUND

Claimant suffered two compensable injuries, the first on ___, when she slipped and fell on a wet floor, injuring her low back, mid-back, and left upper extremity, and the second on ___, when she was the passenger in a golf cart that rear-ended another golf cart, causing a sharp increase in her low back pain. Provider’s treatment of Claimant was complicated by Claimant’s carpal tunnel release surgery on May 10, 2002, and her stroke on or about September 10, 2002.

As a result of the injury of ____, Claimant suffered left rotator cuff sprain/strain, left wrist sprain/strain, deconditioning syndrome, myofascial pain syndrome, and displacement of lumbar intervertebral disc without myelopathy. Claimant’s injury of ____, caused displacement of lumbar intervertebral disc without myelopathy, deconditioning syndrome, and myofascial pain syndrome. (Carrier’s Exh. 1, at 68).

After her first compensable injury, Claimant returned to work October 8, 2001, for four hours per day. She was taken off work October 29, 2001, after being given a steroid injection in her left shoulder. Claimant’s treating doctor, returned her to work December 3, 2001, with restrictions for her left arm, but not for her low back. Claimant reported having severe low back pain doing her restricted work. (Provider’s Exh. 1, at 282).

Sam Liscum, D.C., who was Claimant’s treating doctor at Provider’s clinic, initially examined Claimant on ___. He found her job description requires her to work at a medium work strength level, but that her medical condition prevented her from working at a light work strength safely. (Carrier’s Exh. 1, at 69).

Carrier paid Provider for some of Claimant’s treatment, but denied reimbursement for other treatment. Provider requested medical dispute resolution on Carrier’s denial. The Commission’s Medical Review Division (MRD) granted Provider’s request for reimbursement in part, following its review of decisions issued by independent review organizations (IROs).Provider then requested a hearing on the other disputed services for which reimbursement was denied.

III. APPLICABLE LAW

A.Texas Labor Code

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 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 §408.021(a).

B. Medical Fee Guideline: Documentation of Procedure

The General Instructions in the Commission’s Medical Fee Guideline in force when the disputed treatment occurred state that, when there is no maximum allowable reimbursement (MAR) for some treatment or services, documentation of procedure is required, as set out below:

III. A. Documentation of procedure (DOP) in the maximum allowable reimbursement (MAR) column indicates that the value of the service shall be determined by written documentation attached to or included in the bill. DOP is used when the services provided are not specifically listed or are unusual or too variable to have an assigned MAR. The required documentation may vary based on the complexity of the procedure. DOP shall include pertinent information about the procedure including:

  1. Exact description of procedure or service provided.
  2. Nature, extent, and need (diagnosis and rationale) for the service or procedure;
  3. Time required to perform the service or procedure.
  4. Skill level necessary for performance of service or procedure.
  5. Equipment used (if applicable); and
  6. Other information necessary.

IV. Materials Supplied by Health Care Provider

Supplies and materials provided over and above those usually included in the office visit and in excess of a cumulative total of $5.00 for that date of service may be billed separately using the Health Care Financing Administration Coding System (HCPCS) codes listed in this guideline. If no HCPCS code is available for the supplies or materials, code 99070 shall be used for those supplies otherwise not coded and a description shall be included. Documentation of Procedure (DOP)/Supplies is required for any single supply that is billed at $50.00 or greater.

C. Medical Fee Guideline: Medicine Ground Rule

For the purposes of the Medical Fee Guideline, treatment provided under CPT Code 97110 is considered physical medicine care or therapy, and a one-to-one setting is required. Medicine Ground Rule (I)(A)(9).

IV. DISPUTED TREATMENT

A. Therapeutic Exercises(CPT Code 97110)[2]

  1. Denied by Carrier because therapist reports do not support the severity of injury that would require exclusive supervision
    • In the December 26, 2001, SOAP note, Dr. Liscum states he is having Claimant start in-office supervised therapeutic exercises for joint stabilization, flexibility, and strength, using stretching exercises, the gymnic ball, and a balance roller. He notes that Claimant needed some encouragement to complete the session. (Carrier’s Exh. 1, at 76 and 78).
    • In the December 28, 2001, SOAP note, Dr. Liscum states Claimant made a good effort to do the therapeutic exercises, and that she was instructed to continue stretching to tolerance and walking as part of her home exercise program. Carrier’s Exh. 1, at 78). Neither SOAP note describes how the nature of Claimant’s injury required her to have one-to-one supervision.
  2. Denied by Carrier because therapeutic reports do not support the medical necessity of one-to-one supervision
    • The March 18, 2002, SOAP note does not list any reason for one-to-one supervision, and states Claimant is still doing home exercises, including walking and stretching to tolerance. (Provider’s Exh. 1, at 212).
    • The records contain no March 20, 2002, SOAP note.
    • The March 22, 2002, SOAP note states Claimant needed encouragement to complete the one-to-one session, and that she is still doing her home exercises. (Provider’s Exh. 1, at 215).
    • The April 3, 2002, medical records indicate Claimant made a good effort at completing the therapeutic exercises, but do not list any reason that one-to-onesupervision was medically necessary.(Carrier’s Exh. 1, at 152-153).
    • The April 5, 2002, medical records indicated Claimant is still doing her home exercises, and do not explain why Claimant is doing therapeutic exercises under one-to-one supervision. (Carrier’s Exh. 1, at 154-155).
    • The July 10, 2002, SOAP notelists no reason for the medical necessity of one-to-one supervision for therapeutic exercises. (Carrier’s Exh. 1, at 300-301).
    • The July 12, 2002, SOAP note states Claimant is still exercising and walking at home, and lists no reason for the medical necessity of one-to-one supervision for therapeutic exercises. (Carrier’s Exh. 1, at 312). The July 12, 2002, therapeutic exercise sheet states Claimant is hampered by pain during the exercise session, but with motivation is capable of completing the exercise safely, with one-to-one supervision being required. (Carrier’s Exh. 1, at 316).
    • The July 16, 2002, SOAP note reports clinically significant joint dysfunction in the lumbar spine, with severe to moderate decreased range of motion of the lumbar spine, and notes Claimant’s exercise efforts are limited due to pain, and that she needs encouragement to complete the exercise session. (Carrier’s Exh. 1, at 313-314). The exercise sheet states Claimant is hampered by pain during exercises, but is able to complete them with one-to-one supervision. (Carrier’s Exh. 1, at 317).
    • The July 17, 2002, SOAP note reports that Claimant exercises and walks at home, and that her efforts at rehabilitation exercises appear to be limited due to pain, and that she needs encouragement to complete the session. (Carrier’s Exh. 1, at 314). The exercise sheet notes Claimant was hampered by pain during exercises, and required one-to-one supervision and assistance to complete them. (Carrier’s Exh. 1, at 318).
    • The July 22, 2002, medical records state Claimant’s efforts at exercising appear to be limited due to pain, but that with motivation she is capable of completing the exercises safely, and that one-to-one supervision was required for the entire session. (Carrier’s Exh. 1, at 333-334).
    • The July 29, 2002, medical records state Claimant was capable of performing the exercises completely with extensive one-to-one assistance and supervision. (Carrier’s Exh. 1, at 347).
  3. Denied by Carrier for lack of medical necessity

According to Provider’s SOAP notes dated September 4, 6, and 9, 2002, Claimant was walking, using ice treatment, and exercising at home.

  • Provider reported in the September 4, 2002, SOAP note that Claimant was hampered by pain during the exercise session, but with motivation, she was capable of completing the exercises, so one-to-one supervision was required. (Carrier’s Exh. 1, at 427).
  • The September 6, 2002, SOAP note contains the same information as the September 4, 2002, SOAP note, with the notation that Claimant required “continued one-to-one encouragement and supervision during session to properly complete exercises. (Carrier’s Exh. 1, at 424-425, and 428).”
  • The September 9, 2002, SOAP note states Claimant was able to complete the exercises with one-to-one supervision. (Carrier’s Exh. 1, at 425 and 429).

B. Group therapeutic procedure (CPT Code 97150)

The request for reimbursement for group therapeutic exercises provided on September 4, 2002, was denied due to lack of medical necessity. The medical records indicate the group therapeutic exercises were provided to increase Claimant’s endurance, coordination, flexibility, and stamina. (Carrier’s Exh. 1, at 424). However, the medical records contain no information about what exercises were done by Claimant, or how they affected her endurance, coordination, flexibility, and stamina.

C. Myofascial release (CPT Code 97250)

Carrier denied reimbursement because the treatment was not medically necessary.

  • In the September 4, 2002, SOAP note, Dr. Liscum reports, “By manual examination and pressure I find moderate to mild hypersensitive myofascial sites in the muscles of the mid back and low back, furthermore, on the posterior, the left elbow, left wrist, right elbow, and right wrist, coupled with moderate local contraction or twitch response, moderate to mild myospasms, and moderate to mild taut, ropey bands.” He states he provided “[g]entle mobilization to the middle and lower lumbar spine. Soft tissue technique to the middle and lower spine and related soft tissues.” (Carrier’s Exh. 1, at 423).
  • In the September 6, 2002, SOAP note, Dr. Liscum reports, “[d]aily examination was performed to determine patient status,” with no description of myofascial sites. He
  • provided “[g]entle mobilization to the lumbar spine. Soft tissue technique to the lumbar spine and related soft tissues.” (Carrier’s Exh. 1, at 424).
  • In the September 9, 2002, SOAP note, Dr. Liscum states, “Muscle and soft tissue evaluation today indicates moderate to mild muscle trigger points in the soft tissues and myofascial structures of the low back and buttock, plus, the elbow and wrist on the left, together with moderate to mild local contraction, moderate to mild tight muscles probably indicative of muscle spasm, and moderate to mild ropey bands.” He provided “[s]oft tissue technique to the upper, middle, and lower lumbar spine and related soft tissues.” (Carrier’s Exh. 1, at 425).

D. Joint Mobilization (CPT Code 97265)

Carrier denied reimbursement for joint mobilization because the treatment was not medically necessary.

  • The September 4, 2002, SOAP note does not mention Claimant’s joints, but does state Claimant received “[g]entle mobilization to the middle and lower lumbar spine.” (Carrier’s Exh. 1, at 423).
  • The September 6, 2002, SOAP note does not mention Claimant’s joints, but does state Claimant received “[g]entle mobilization to the lumbar spine.” (Carrier’s Exh. 1, at 424).
  • The September 9, 2002, SOAP note states there is pain in the facet joints, which “seems clinically relevant and indicates joint dysfunction. Palpation and direct pressure indicates pain in the spinous processes of the lumbar spine, probably evidence of joint injury.” The note states Claimant received “[g]entle mobilization to the upper, middle, and lower lumbar spine.” (Carrier’s Exh. 1, at 425).

E. Fitting with Lumbar Support (CPT Code 99070)

Carrier denied reimbursement for treatment charged under CPT Code 99070 because there was no documentation of procedure for the December 21, 2001, fitting of Claimant with a lumbar support. The fitting is not documented in the medical records for the date of service. (See Carrier’s Exh. 1, at 74).

F. Limited Office Visit (CPT Code 99213-52)

Carrier denied reimbursement for limited office visits on September 4, 6, and 9, 2002, due to lack of medical necessity. The office visits are documented at Carrier’s Exh. 1, at 423-425.

G. Extended Office Visit (CPT Code 99214-52)

Carrier denied reimbursement because additional documentation was required to substantiate the treatment and/or charged amount for the October 15, 2002, extended office visit.

The medical records state, “Doctor and Claimant visited for 20-25 minutes recurrent physical status. All patients’ questions about care and treatment choices were answered. She seemed to understand the nature of the recommended chiropractic care, the physical and work restrictions, and possible referrals. Since last visit on September 9, 2002, patient suffered a stroke and is now in recovery.” (Carrier’s Exh. 1, at 426).

V. EVIDENCE AND DISCUSSION

Provider called one witness and offered two exhibits, which were admitted. Carrier calledone witness and offered one exhibit, which was admitted.

A. Testimony of David N. Bailey, D.C.

David N. Bailey, D.C., a limited partner for SCD Back and Joint Clinic, was not Claimant’s treating doctor. He testified that the disputed treatments were reasonably required to cure and relieve Claimant’s condition of mechanical low back pain caused by her work-related injuries. He said Provider’s treatment resulted in a substantial pain decrease of 50 percent, and a substantial increase in function. He testified that Claimant’s pain level was 8 out of 10 on December 19, 2001, and that it had decreased to the 3, 4, and 5 levels through the rest of rehabilitation.

He said Claimant’s treatment plan was designed to increase her strength and endurance so she could return to work.Claimant was released to light duty work, but her job as a housekeeper has a physical demand of “medium.” On cross-examination, Dr. Bailey testified that by September 9, 2002, Claimant had not achieved the physical demand of “medium” for her job.

He agreed that there should be a change in treatment if it does not work after a month, but said Provider obtained substantial improvement for Claimant with month-after-month of the same treatment, so there was no reason to change it. He explained that Provider probably would have discharged Claimant sooner, but for the carpal tunnel surgery on May 10, 2002, which slowed down the rehabilitation process quite a bit.

Dr. Bailey testified Claimant needed one-to-one supervision for some services due to her complicating factors of hypertension, diabetes, and poor body structure, and to ensure she performed the exercises with the proper speed, amount of force, and adequate rest periods. He pointed out that Claimant’s medical history and medical condition indicated she would be more likely to have a stroke than would the average person, and that she did have a stroke in September 2002.

B. Testimony of William DeFoyd, D.C.

William DeFoyd, D.C., testified on behalf of Carrier that the services in question were not medically necessary, because there had been a more-than-adequate trial of treatment that was not effective, beginning in December 2001. He said substantive and continued improvement is needed to justify rendering the same treatment and, in his opinion, there was no evidence of continued and substantive improvement to Claimant’s low back. He said Provider’s treatment did not cure or relieve the effects naturally resulting from Claimant’s compensable injuries.

Dr. DeFoyd said there was no medical necessity for one-to-one supervision of Claimant during therapeutic exercises, because Claimant was repeating exercises she had performed on previous visits, and patients typically understand the exercise routine after three or four visits.

Dr. DeFoyd agrees with the January 3, 2002, assessment by Dr. Randall Light that Claimant should lose weight and undergo conservative treatment.[3]Dr. DeFoyd described Claimant’s injury as “mechanical back pain,” which he said was consistent with Dr. Light’s examination[4] and with Claimant’s MRI scan, which shows slowly developing wear changes, and no nerve root compression. He said Claimant is neurologically intact, as shown by her electromyography referred to in Dr. Light’s report.Dr. DeFoyd said Claimant’s weight could have been a complicating factor to her recovery, as could psycho-social issues.

Dr. DeFoyd said there is no evidence Provider recognized any psycho-social problems in Claimant. He said the length of Claimant’s treatment with Provider created patient dependency, which should have been avoided. He said six months post-injury, Claimant was “sliding into the chronic pain camp.”

He characterized Claimant’s improvement as, at best, partial relief of symptoms. He said a 10-to-20 percent improvement over four months is not significant. He also said the temporary reduction of pain via physical modalities is insignificant. He said in evaluating treatment progress, what matters is how people function in their lives, explaining that meaningful outcome measures are things such as an improvement in pain, and the ability to sit, stand, or walk for longer periods of time. He said being able to push against a strain gauge better is not a meaningful outcome. He said Claimant’s pain complaints decreased minimally in the beginning, but not on a continuing basis, noting that the pain level stayed in the 5-to-7 range for the disputed dates of service. He said Claimant’s maximum trunk flexion was 10 to 20 pounds, which is very low, explaining that more would be required for her to get up from a chair or get out of bed.

Dr. DeFoyd said the goal of a health care provider should not be temporary relief, but should be treatment that is both effective and cost-effective, which is not what occurred in Provider’s treatment of Claimant. He said even though Claimant is obese, she can and should exercise at home. He said the flexibility exercises described in the medical records could have been performed by Claimant at home.

C. Documentary Evidence

Doris Cowley, M.D.

Doris M. Cowley, M.D., assessed Claimant and reported January 10, 2002, that Claimant has a history of hypertension, hypercholesterolemia, and asthma. She listed Claimant’s height at 66″ and her weight as 309 pounds. She said Claimant ambulates with an obvious antalgic gait, wearing an elastic back brace on the outside of her clothing. Her psychological assessment of Claimant is that her mood is depressed, that she suffers from feelings of hopelessness and worthlessness due to her inability to work, and that her energy and motivation are decreased. She found Claimant to have

injury-related pain in her left shoulder and lower back, sleep pattern disturbance, inadequate coping ability, impaired functionality, and social isolation. (Carrier’s Exh. 1, at 89-93).

Kenneth G. Berliner, M.D.

Following an orthopedic consultation with Claimant, Kenneth G. Berliner, M.D., reported on January 28, 2002, that Claimant’s MRI of October 19, 2001, depicts stenosis that can be readily visualized, but there does not appear to be any clinically significant nerve root compression. Dr. Berliner recommended continued physical therapy in conjunction with facet injections, or an SI joint injection, or both. He did not think surgical intervention would help Claimant. (Carrier’s Exh. 1, at 98-101).

In a second orthopedic consultation with Claimant regarding her left upper extremity, Dr. Berliner reported February 11, 2002, that Claimant’s nerve conduction studies and EMG done January 8, 2002, reveal carpal tunnel syndrome. He recommended she wear a brace at night, and undergo carpal tunnel syndrome release surgery if the brace did not provide relief. He recommended continued physical therapy for Claimant’s left shoulder, with additional oral anti-inflammatory medication. (Carrier’s Exh. 1, at 114-117).

Brian M. Glenn, D.C.

In a peer review dated May 6, 2002, Brian M. Glenn, D.C., reviewed Provider’s care of Claimant from February 19, 2002, through March 6, 2002, and concluded that documentation did not support the reasonableness and medical necessity or relatedness of chiropractic care beyond January 28, 2002. He said Claimant should lose weight and remain on a home-based exercise program. (Carrier’s Exh. 1, at 213-215).

David Niekamp, D.C.

David Niekamp, D.C., conducted a “designated doctor” examination of Claimant at the request of the Commission, and reported August 14, 2002, that passive modalities would be supported through the completion of the primary care level, or through February 13, 2002, but would

not be supported beyond that date as reasonable and necessary care, except for the carpal tunnel release surgery post-operative treatment.(Carrier’s Exh. 1, at 389-393).

Dr. Neikamp concluded that ongoing office visits and manipulations are supported only through February 19, 2002, based on functional abilities noted to be worse after the period of active care running from December 13, 2001, through February 19, 2002. He said no improvement is noted in Claimant’s functional abilities during this period, so ongoing active care would not be supported to extend beyond February 19, 2002.

He said manipulation should be performed for the minimum appropriate duration, which is defined as that duration of time from the initiation of treatment that results in continued improvement to the point at which additional treatment will no longer be of further therapeutic benefit. He said this appears to have been accomplished by February 19, 2002. He explained there is little evidence in the medical literature that any long-term effect is gained with the use of manipulative care. “Without recognition of the limitation from spinal manipulation and joint

mobilization, treatment via these approaches is no different than palliative treatment over-utilizing modalities,” he said.

Dr. Niekamp also stated that extensive long-term management discourages self-management, which is the final goal, and leads to physician dependence, illness behavior, and over-utilization.

V. ANALYSIS AND CONCLUSION

A. Therapeutic Exercises(CPT Code 97110)

The ALJ finds Provider did not prove the severity of Claimant’s injuries would support one-to-one supervision on December 26, 2001, and December 28, 2001, so reimbursement is not warranted. Claimant had a mechanical low back injury, but there is no evidence that the injury prevented her from safely completing the exercises. Dr. Bailey testified as to Claimant’s complicating factors of hypertension and obesity, with no explanation as to how those factors lead to the necessity for one-to-one supervision for exercises done on a gymnic ball and balance roller, and for stretching, particularly in light of the fact that Claimant was simultaneously participating in a home exercise program that included walking and stretching. Dr. DeFoyd testified that the one-to-one therapeutic exercises provided by Provider were of the type Claimant could have performed at home.

The ALJ finds that the medical records list no reason for one-to-one supervision for therapeutic exercises on March 18, March 20, April 3, April 5, July 10, July 29, and September 9, 2002, so Provider did not prove the medical necessity for one-to-one supervision on those dates.

The medical records list the reason for one-to-one supervision on March 22, July 12, July 16, July 17, July 22, September 4, and September 6, 2002, as being that Claimant needed motivation and encouragement to complete her therapeutic exercises. The ALJ finds this does not rise to medical necessity, and Claimant apparently needed no encouragement to complete her home exercises.

B. Group Therapeutic Procedure (CPT Code 97150)

The ALJ finds Provider did not prove the group therapeutic exercises provided on September 4, 2002, were medically necessary. The medical records indicate the group therapeutic exercises were provided to increase Claimant’s endurance, coordination, flexibility, and stamina. However, the medical records contain no information about what exercises were performed by Claimant, or how they affected her endurance, coordination, flexibility, and stamina. Claimant did not need group therapeutic exercise to treat her compensable injuries after April 2002.

C. Myofascial release (CPT Code 97250)

The ALJ finds Provider did not prove the myofascial release treatments provided on September 4, September 6, and September 9, 2002, were medically necessary, because passive modalities should not have been used to treat Claimant’s compensable injuries beyond the primary level of care, which ended in February 2002, according to Dr. Niekamp; Dr. Glenn found Provider’s treatment of Claimant should have ended in January 2002; and Dr. DeFoyd testified Provider’s care of Claimant should have ended well before September 2002.

D. Joint Mobilization (CPT Code 97265)

The ALJ finds Provider did not prove joint mobilization was medically necessary to treat Claimant’s compensable injuries on September 4, September 6, and September 9, 2002, because Provider’s treatment of Claimant for her compensable injuries should have ended well before September 2002, according to Dr. Niekamp, Dr. Glenn, and Dr. DeFoyd.

E. Fitting with Lumbar Support (CPT Code 99070)

The medical records do not contain the required documentation of procedure for the fitting of Claimant with lumbar support, so the ALJ finds Provider is not entitled to reimbursement in regard to this treatment.

F. Limited Office Visit (CPT Code 99213-52)

The ALJ finds Provider did not prove the limited office visits on September 4, 6, and 9, 2002, were medically necessary, because according to Dr. Niekamp, Dr. Glenn, and Dr. DeFoyd, Provider’s treatment of Claimant for her compensable injuries should have ended well before September 2002.

G. Extended Office Visit (CPT Code 99214-52)

The ALJ finds Provider did not prove the extended office visit on October 15, 2002, was medically necessary to treat Claimant’s compensable injuries. Claimant was in recovery from a stroke that occurred on or about September 10, 2002, and was using a walker. Her visit with Provider was not to treat her compensable injuries. In addition, Provider’s treatment of Claimant for her compensable injuries should have ended in January or February 2002, according to Dr. Niekamp, Dr. Glenn, and Dr. DeFoyd.

H. Conclusion

The ALJ finds Provider did not meet its burden of proof in this consolidated case, and should not be reimbursed for the disputed treatments.

VI. FINDINGS OF FACT

  1. Claimant suffered two compensable injuries, the first on ___, when she slipped and fell on a wet floor, injuring her low back, mid-back, and left upper extremity, and the second on ___, when she was the passenger in a golf cart that rear-ended another golf cart, causing a sharp increase in her low back pain.
  2. Twin City Fire Insurance Company (Carrier) was the workers’ compensation insurance carrier for Claimant’s employer when her compensable injuries occurred.
  3. As a result of the injury of ___, Claimant suffered left rotator cuff sprain/strain, left wrist sprain/strain, deconditioning syndrome, myofascial pain syndrome, and displacement of lumbar intervertebral disc without myelopathy.
  4. Claimant’s injury of ___, caused displacement of lumbar intervertebral disc without myelopathy, deconditioning syndrome, and myofascial pain syndrome.
  5. After her first compensable injury, Claimant returned to work October 8, 2001, for four hours per day. She was taken off work October 29, 2001, after being given a steroid injection in her left shoulder. Claimant’s treating doctor, returned her to work December 3, 2001, with restrictions for her left arm, but not for her low back. Claimant reported having severe low back pain doing her restricted work.
  6. Sam Liscum, D.C., who was Claimant’s treating doctor at SCD Back and Joint Clinic (Provider), initially examined Claimant on ___.
  7. Dr. Liscum found Claimant’s job as a housekeeper required her to work at a medium work strength level, but that her medical condition prevented her from working at light work strength safely.
  8. An MRI of Claimant’s spineon October 19, 2001, depicted slowly developing wear changes and no nerve root compression.
  9. Claimant was neurologically intact following her compensable injuries, as shown by her electromyography.
  10. The therapist’s reports do not support the severity of injury that would require one-to-one supervision of Claimant for therapeutic exercises on December 26, 2001, and December 28, 2001.
  11. The therapist’s reports do not support the medical necessity of one-to-one supervision of Claimant during therapeutic exercises on March 18, March 22, April 3, April 5, July 10, July 12, July 16, July 17, July 22, and July 29, 2002.
  12. It was not medically necessary for Claimant to receive treatment on a one-to-one basis to complete therapeutic exercises on September 4, September 6, and September 9, 2002.
  13. It was not medically necessary for Claimant to undergo group therapeutic exercises on September 4, 2002, or myofascial release and joint mobilization on September 4, September 6, and September 9, 2002, because Provider’s care for her compensable injuries should have ceased by April 2002 at the latest.
  14. Provider did not properly document the fitting of Claimant with a lumbar support on

December 21, 2001.

  1. Passive modalities are supported through Claimant’s primary level of care for her compensable injuries, which ended February 13, 2002, but are not reasonable and medically necessary treatment for Claimant beyond that time.
  2. Provider’s treatment of Claimant with ongoing office visits and manipulations should have been discontinued February 19, 2002, based on functional abilities noted to be worse after a period of active after care running from December 13, 2001, through February 19, 2002.
  3. Provider sought reimbursement from Carrier for the treatments rendered to Claimant, which included fitting Claimant with a lumbar support on December 21, 2001; therapeutic exercises provided on a one-to-one basis from December 26, 2001, through September 9, 2002; myofascial release, joint mobilization, and office visits on September 4, 6, and 9, 2002; a group therapeutic procedure on September 4, 2002; and an extended office visit on October 15, 2002
  4. Carrier refused to reimburse Provider for the services listed in the preceding findings.
  5. Provider filed two requests for medical dispute resolution with the Texas Workers’ Compensation Commission’s Medical Review Division (MRD), asking for reimbursement ofthe above-described services.
  6. The MRD issued decisions on September 10, 2003, and on October 23, 2003,after reviewing IRO decisions, ordering partial reimbursement in both cases.
  7. On October 6, 2003, and on November 17, 2003,Provider contested the MRD decisions as to the dates of service it did not prevail, requesting hearings before the State Office of Administrative Hearings (SOAH).
  8. The cases were consolidated February 2, 2004.
  9. On November 7, 2003, and December 10, 2003, notices of the hearing in this case were mailed to Provider and Carrier.
  10. The notices 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.
  11. On March 10, 2004,SOAH Administrative Law Judge Sharon Cloninger convened and recessed the hearing in the William P. Clements Building, Fourth Floor, 300 West 15th Street, Austin, Texas.Provider was represented by William Maxwell, attorney, and Carrier was represented byJames Laughlin, attorney. The hearing reconvened and the record closed June 16, 2004.

VII. CONCLUSIONS OF LAW

  1. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this case, including the authority to issue a decision and order, pursuant to Tex. Labor Code Ann. §413.031(k) and Tex. Gov’t Code Ann. ch. 2003.
  2. Provider timely requested a hearing contesting the decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission), as specified in 28 Tex. Admin. Code (TAC) § 148.3.
  3. Proper and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. § 2001.052 and 28 TAC § 148.4(b).
  4. Provider has the burden of proving the case by a preponderance of the evidence, pursuant to 28 TAC § 148.21(h) and (i).
  5. Based on the above Findings of Fact and Conclusions of Law, and pursuant to Tex. Labor Code § 408.021(a), Provider’s disputed treatments of Claimant’s compensable injuries were neither reasonable nor medically necessary.
  6. Based on the above Findings of Fact, Provider did not properly document the fitting of Claimant with a lumbar support, pursuant to General Instructions (III)(A) and (IV) in the Commission’s Medical Fee Guideline in force on the disputed date of service.
  7. Based on the above Findings of Fact and Conclusions of Law, Provider’s request should be denied, and Provider should not be reimbursed.

ORDER

IT IS ORDERED THAT SCD Back and Joint Clinic is not to receive reimbursement from Twin City Insurance Company for the disputed treatment provided to Claimant from December 14, 2001, through October 15, 2002.

Signed July 29, 2004.

SHARON CLONINGER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. 1

    2. SOAH Docket Nos. 453-04-0987.M5 and 453-04-1542.M5 involve the same Provider, Carrier, and Claimant, and were consolidated on February 2, 2004.↑

  2. Throughout the SOAP notes, the description of the one-to-one exercises is A[t]herapeutic procedure exercises to the lumbar spine, to add strength, endurance, range of motion, and flexibility. “erobic conditioning to increase endurance and tolerance to work tasks. Progressive resistance isoinerital exercises to he major muscle groups in multiple planes to increase strength. Stretching of myofascial tissues and muscles to increase range of motion and flexibility.”↑
  3. Dr. Light’s assessment is found at Carrier’s Exh. 1, 98-99. Throughout Provider’s treatment of Claimant, her height and weight were recorded as 5’6″ tall, and between 288 and 309 pounds.↑
  4. Carrier’s Exh. 1, 82-84.↑