DECISION AND ORDER

Texas Mutual Insurance Company (Carrier) challenges an Independent Review Organization (IRO) decision granting reimbursement to Health & Medical Practice Associates (Provider) for physical therapy services provided to an injured worker (Claimant). The Administrative Law Judge (ALJ) concludes the disputed services were not medically necessary. Consequently, reimbursement is denied.

I. Jurisdiction and Notice

Notice and jurisdiction, which were not disputed, are addressed in the Findings of Fact and Conclusions of Law.

II. Discussion

A. Background.

Claimant suffered a compensable injury on ___, when she slipped in water, fell and injured her head, neck, and back. Provider administered physical therapy to Claimant from April 15, 2003, through July 16, 2003. The services included electrical stimulation, therapeutic activities and exercises, ultrasound therapy, a subsequent office visit, and nerve conduction velocity studies. Carrier denied reimbursement for the services. In response, Provider requested medical dispute resolution. The IRO reviewer determined the services were medically necessary. Carrier challenged the determination, which culminated in a hearing before the State Office of Administrative Hearings (SOAH) and this Decision and Order.

Administrative Law Judge (ALJ) Gary Elkins convened the hearing on October 27, 2004. Both parties appeared. Carrier was represented by Attorney Scott Placek, and Provider was represented by William Maxwell. The hearing closed following the parties’ submission of post-hearing briefs on January 10, 2005.

Evidence and Argument

The issue in this case is whether physical therapy modalities administered by Provider from April 15, 2003 to July 16, 2003-extending from five to eight months after Claimant’s injury-were medically necessary. In support of its position that Claimant’s injuries did not warrant such services, Carrier presented the testimony of David Alvarado, D.C. He testified that because passive physical therapy modalities are generally proper for two-to-six weeks following an injury, they would have been of minimal benefit to Claimant several months after her injury. He pointed out that her medical problems would have reached a plateau by the time the disputed services began.

In fact, Dr. Alvarado noted, Claimant’s pain levels remained the same throughout the treatment period. He agreed, though, that active physical therapy was warranted until April 22, 2003, when an MRI was performed on Claimant’s cervical and lumbar spine as well as on her right shoulder. At that time, however, Provider should have realized the physical therapy would no longer be helpful, according to Dr. Alvarado.

The April 22, 2003, MRI revealed the presence of a very large disc herniation at the C5-C6 level of Claimant’s cervical spine, which produced an increased signal level in Claimant’s spinal cord. The reviewing radiologist, Tom Clayton, M.D., expressed concern about the herniation:

The most significant finding is the presence of a very large central and slightly right lateral disc herniation at the C5-6 level. The is a very large amount of disc material, certainly relative to the cross-sectional diameter of the spinal canal, that it indenting (sic) and actually compressing the cervical cord consistent with a relatively severe spinal canal stenosis. I am even more concerned about the fact there is increased signal intensity within the cord itself no doubt from the compression of the disc material. There is a moderate amount of anterior spondylosis at this same level.

Ex. 1, p. 28

Dr. Alvarado testified that this finding alone should have put an attentive practitioner on notice that the patient needed surgery, not additional conservative care such as the physical therapy modalities administered. He also questioned the extent to which Claimant’s treating physician, Patrick McMeans, M.D., reviewed the MRI results.

Carrier also questioned the extent to which Floyd Hardimon, D.O., who performed an orthopedic evaluation on Claimant in May 2003, reviewed the April MRI. Carrier pointed out that despite the radiologist’s description of the herniation as “very large”, Dr. Hardimon simply described it as “mild,” while giving only cursory reference to the MRI.

As an additional indication of Provider’s oversights regarding the seriousness of the disc herniation, Dr. Alvarado referred to the findings of Richard R.M. Francis, M.D. Dr. Francis is an orthopedic surgeon to whom Claimant was referred for evaluation in September 2003, two months after Provider completed the disputed services. Based on his review of the April MRI, Dr. Francis found that the extent of herniation required immediate attention:

There is a very large disc herniation at the C5-C6 level occupying more than 60% of the canal space in the cervical spine. The cord is completely pushed backwards to the posterior aspect of the canal. There is evidence of extension behind the body of C6 as well.

Ex. 1, p. 35

Based on his findings, Dr. Francis described his plan of action:

I have recommended that this patient have immediate surgery for the cervical spine. I am concerned that with a large disc herniation that if she were to fall she could possibly become quadriplegic. The disc herniation is indeed that large. As far as her low back is concerned she will require a laminectomy and decompression at L2-L3 on the right side and at L4-L5 on the left. Both surgeries should be done at the soonest opportunity but I consider the cervical spine to be a matter of great urgency . . . .

Ex. 1, p. 36

Carrier emphasizes that Dr. Francis arrived at this conclusion based on the April MRIBtaken around the time the disputed services began. Consequently, Carrier asserts, Claimant obviously had been in the precarious medical state for several months, and Provider should have recognized and acted on this as a significant revelation but did not, at Claimant’s peril.

Instead, Carrier suggests, Provider disregarded the health risks to Claimant when it chose to engage in months of failed physical therapy treatments reflected in repetitive, canned treatment notes. Carrier argues that the notes failed to enunciate a plan of treatment or to provide for ongoing assessment of her condition in order that her treatment regimen might be adjusted accordingly.

Provider argues that consistent with § 408.021 of the Texas Labor Code, the disputed treatments were necessary prior Claimant’s surgery because she was in constant pain, which the treatment reduced. In support of this contention, Provider pointed out that all of the surgeons as well as treating doctors had concluded that the active therapy services were medically necessary. Additionally, it noted, two IROs, the treating doctor, a surgeon, a designated doctor evaluation, and an independent medical review all concluded that Claimant needed conservative care prior to a surgical intervention.

C. Analysis and Conclusion

Reimbursement is denied. The ALJ was persuaded by Dr. Francis’ conclusion in September 2003 that the April 22, 2003, MRI revealed the immediate necessity of surgery. Particularly persuasive was the doctor’s conclusion that any postponement of surgery would simply subject Claimant to a greatly increased risk of paralysis in the event she were to suffer a fall. Notwithstanding the MRI results, though, Provider chose to continue with a three-month physical therapy regimen focused on Claimant’s injury symptoms-her pain-rather than on the cause of the pain. Provider’s approach to treating Claimant was particularly troubling in light of her increased risk of paralysis. Also troubling was the severe neck pain reported by Claimant around the time of the MRI, providing further evidence of the seriousness of her injury.

The ALJ was not persuaded by Provider’s argument that its pain treatment was consistent with § 408.021 of the Workers’ Compensation Act in that it relieved the effects naturally resulting from Claimant’s injury. Though pain reduction is a legitimate reason for medical care under the Act, Provider chose it as the stated objective instead of focusing on the underlying cause of the pain

revealed in the April 2003 MRI. In his evaluations of Claimant, treating doctor Patrick McMeans appeared to find ample support for extended physical therapy while making little if any reference to the significance of the herniation, the potential impact of such therapy on the herniation, or a plan of how the herniation itself might be addressed by physical therapy.

Instead, Provider appeared to forge ahead with physical therapy for three months. Notably, the therapy began bout the time a pre-MRI designated doctor evaluation estimated Claimant might achieve maximum medical improvement (MMI) on July 14, 2003, which was just two days before the therapy ended. Although a treatment program involving physical therapy might have proven medically necessary based on what was known about Claimant’s medical condition prior to the MRI, Provider’s seeming indifference to the MRI results places the medical necessity of its subsequent activities into question.

In regard to Provider’s argument that evaluations of several doctors supported its physical therapy services, a review of Claimant’s medical records reveals that several of the evaluations occurred prior to the April 2003 MRI, when the doctors did not yet have at their disposal the results of diagnostic tests that clearly revealed both the nature and the seriousness of Claimant’s cervical and lumbar disc problems. The doctors’ comments support this observation.^[1]

Also unconvincing were Provider’s claims of success in treating Claimant’s pain. Throughout its daily notes reflecting its treatment of Claimant, Provider reported her Subjective Complaints in a somewhat repetitive tone, at times largely mimicking text of earlier treatment notes. Provider also used this approach when reporting its Objective Findings.

This repetitive approach to recording Claimant’s complaints and its objective findings provided little detail with which the ALJ might make an informed decision on the medical necessity of the disputed services. To the extent the notes are insightful, they place into the question the effectiveness of Provider’s physical therapy services in treating Claimant’s pain. Provider’s Daily Notes Reports over the same period support this conclusion. In fact, Provider’s notes for both April 15, 2003, and July 16, 2003-representing both the beginning and end of the disputed physical therapy program-reveal almost identical subjective complaints by Claimant. On both dates Claimant reported the following:

• severe occasional headaches over the entire head;
• severe pain in the right shoulder;
• severe pain in the right arm;
• severe stiffness in the right shoulder;
• the same pain in the right shoulder and right arm as the previous visit;
• severe pin-and-needle sensations in the right hand;
• severe paravertebral low back pain;
• the same pin-and-needle sensations in the right hand as at the previous visit;
• the same paravertebral low-back pain as at the previous visit; and
• unchanged paravertebral low-back stiffness from the last visit.

Ex. 1, pp. 95 and 118

Although Provider’s Daily Notes contain objective findings reflecting some improvement over the three months of services, the same notes for April 15 and July 16 reveal muscle hypertonicity in both the cervical region and lumbar regions bilaterally as well as muscle spasms in the cervical region.

These findings by Provider at both the beginning and end of the disputed treatment period, together with several other factors, serve to disprove the need for the disputed physical therapy services as medically necessary treatment. The other factors include Dr. Alvarado’s testimony about the efficacy of passive physical therapy several months post-injury; the form and substance of Provider’s treatment notes throughout the treatment period; the medical warnings reflected in the MRI results and Dr. Francis’ evaluation; and Provider’s nonresponsiveness to the MRI. These factors also combine to reveal Provider’s unwillingness to evaluate and alter, as needed, its approach to treating Claimant.

Consequently, the disputed services were neither medically necessary nor efficacious in Claimant’s treatment. Accordingly, reimbursement is denied.

III. Findings of Fact

1. Claimant, an injured worker, suffered a compensable injury on ___, when she slipped in water, fell and injured her head, neck, and back.
2. At the time of Claimant’s injury, his employer held workers’ compensation insurance coverage with Carrier, Texas Mutual Insurance Company.
3. Provider, Health & Medical Practice Associates, administered active and passive physical therapy modalities to Claimant from April 15, 2003, through July 16, 2003, extending from five to eight months after her injury.
4. Carrier refused reimbursement for the services reflected in Finding 3.
5. In response to Carrier’s refusal to reimburse it for the services reflected in Finding 3, Provider requested medical dispute resolution.
6. An IRO reviewer determined the services were medically necessary.
7. Carrier challenged the IRO determination by requesting a hearing before the State Office of Administrative Hearings (SOAH).
8. Administrative Law Judge (ALJ) Gary Elkins convened the SOAH hearing on October 27, 2004. Carrier was represented by Attorney Scott Placek, and Provider was represented by William Maxwell. The hearing closed following the parties’ submission of post-hearing briefs on January 10, 2005.
9. As of April 22, 2003, Claimant was suffering from:

A. a very large central and slightly right lateral disc herniation at cervical spine level C5-C6. The herniation involved a very large amount of disc material relative to the cross-sectional diameter of the spinal canal;

B. a large lateral disc herniation at the L4-L5 level of the lumbar spine. Disc material was extending at least 4 millimeters beyond the vertebral body margins, obliterating the left lateral recess, and producing significant narrowing of the inferior aspect of the intervertebral foramen; and C. a broad disc protrusion at lumbar spine level L2-L3.

1. Claimant suffered from severe neck pain at the time of her cervical MRI.
2. The disc material in Claimant’s herniated disc was indenting and compressing her cervical spinal cord consistent with a relatively severe spinal canal stenosis.
3. Claimant’s herniated disc caused increased signal intensity within her spinal cord.
4. Claimant suffered from a moderate amount of anterior spondylosis at cervical spine level C5-C6.
5. The type and extent of disc herniation suffered by Claimant does not respond to physical therapy.
6. Cervical disc herniations of the type suffered by Claimant require surgery.
7. Passive physical therapy modalities are generally proper for two-to-six weeks following an injury.
8. Claimant received approximately six weeks of physical therapy prior to the physical therapy services disputed in this case. The treatment included active and passive modalities.
9. Claimant’s severe level of pain remained at about the same level throughout the course of the disputed physical therapy treatments.
10. Any medical problems for which Claimant received passive physical therapy modalities had reached a plateau by the time the disputed services began.
11. Floyd Hardimon, D.O., who performed an orthopedic evaluation on Claimant following the April 2003 MRI, described her herniated cervical disc at “mild.”
12. A fall by Claimant while she was suffering from the large disc herniation could have made her a quadriplegic.
13. Claimant did not significantly improve despite the three months of physical therapy services.
14. Provider focused on treating Claimant’s pain instead of focusing on the underlying cause of the pain, her disc herniation.
15. Provider’s treatment notes did not address the potential impact of Claimant’s physical therapy on her disc herniation or a plan of how the herniation itself might be addressed by physical therapy.
16. Throughout its daily notes reflecting Claimant’s treatment, Provider reported her Subjective Complaints in a somewhat repetitive tone, at times largely mimicking text of earlier treatment notes. Provider also used this approach when reporting its Objective Findings.
17. On both April 15, 2003, and July 16, 2003, dates representing the beginning and end of the disputed physical therapy program, Claimant reported the following:

A.severe occasional headaches over the entire head;

B.severe pain in the right shoulder;

C.severe stiffness in the right shoulder;

D.severe pain in the right arm;

E.the same pain in the right shoulder and right arm as the previous visit;

F.severe pin-and-needle sensations in the right hand;

G.severe paravertebral low back pain;

H.the same pin-and-needle sensations in the right hand as at the previous visit;

I.the same paravertebral low-back pain as at the previous visit; and

J.unchanged paravertebral low-back stiffness from the last visit.

1. Provider’s objective findings on both April 15, 2003, and July 16, 2003, reveal that Claimant was suffering from muscle hypertonicity in both the cervical region and lumbar regions of her spine bilaterally and from muscle spasms in the cervical region.
2. Provider’s use of the disputed physical therapy services to treat Claimant’s compensable injuries were neither medically necessary nor efficacious.

IV. Conclusions of Law

1. SOAH has jurisdiction over this proceeding pursuant to §413.031(k) of the Act and Tex. Gov’t Code Ann. ch. 2003.
2. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§2001.051 and 2001.052.
3. As Petitioner, Texas Mutual Insurance Company (Carrier) bears the burden of proof in this proceeding. 28 Tex. Admin. Code (TAC) §148.21(h).
4. Carrier proved the disputed physical therapy services were not reasonably required by the nature of the claimant’s injury, did not cure or relieve the effects naturally resulting from the compensable injury, and did not promote Claimant’s recovery or enhance Claimant’s ability return to or retain employment. Tex. Lab. Code Ann. §408.021.
5. The disputed services were not medically necessary to treat Claimant’s compensable injury.
6. Provider is not entitled to reimbursement for the disputed services.

ORDER

IT IS ORDERED thatthe reimbursement claim of Health & Medical Practice Associates for physical therapy services provided to Claimant from April 15, 2003, through July 16, 2003, is denied.

Signed March 14, 2005.

Gary W. Elkins
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. In his March 25, 2003, Independent Medical Evaluation, Avner Robert Grivner, M.D., commented on the results of previous spinal x-rays and CT scans but concluded that further, more extensive testing might be required and that physical therapy might be appropriate for Claimant’s shoulder and leg:

In regards to her upper extremity and neck, her physical examination on today’s date is most compatible with a right shoulder contusion. However, there is some indication of a possible underlying cervical radiculopathy. Therefore, my best recommendation would be to do a diagnostic anaesthetic injection into the right shoulder and see how much of her pain is abolished. If 50% or greater of her pain is abolished, then the probable anatomic abnormality is located in the shoulder and consideration can be given toward a shoulder MRI. On the other hand, if the anaesthetic injection fails to abolish her pain, then consideration can be given toward the neck, with an eye toward possible cerviucal MRI and formal electrical diagnostic studies. . . .↑