DECISION AND ORDER

Atlantis Healthcare, L.P. (Provider) seeks reimbursement for work hardening services^[1] provided to Claimant from February 19, 2002, through March 21, 2002. The Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC or Commission) found in favor of American Home Assurance Company (Carrier), because when Provider submitted its table of disputed services to the MRD, the services were not identified with modifiers to the CPT codes, and the MRD stated it could not clearly identify what services were in dispute and therefore could not recommend reimbursement. The ALJ finds the evidence does not support the MRD’s decision, and determines that Provider should be reimbursed $992.80 for the disputed claims in this case.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code Ann. ch. 401 et seq. The State Office of Administrative Hearings (SOAH) has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. § 413.031 and Tex. Gov’t Code Ann. ch. 2003.

The MRD issued its decision on December 17, 2003. Carrier filed a timely request for hearing. Proper and timely notice of the hearing was issued January 30, 2004. The hearing convened March 31, 2004, with ALJ Sharon Cloninger presiding. Ben Higbee, D.C., appeared for Provider via telephone, and Ron Johnson, attorney, appeared for Carrier. The hearing adjourned and the record closed that same day.

II. LEGAL STANDARDS

Section 408.021 of the Texas Labor Code states:

(a)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 compensable injury;
2. promotes recovery; or
3. enhances the ability of the employee to return to or retain employment.

Section 401.11(19) of the Texas Labor Code defines “health care” to include “all reasonable and necessary medical aid, medical examinations, medical treatments, medical diagnoses, medical evaluations, and medical services.”

The Commission’s rule requires in relevant part that all provider and carrier requests for medical dispute resolution include a copy of all medical bills as originally submitted to the carrier for reconsideration, a copy of each explanation of benefits (EOB), and “a table listing the specific disputed health care and charges in the form, format, and manner prescribed by the commission.”See 28 Tex. Admin. Code (TAC) §§ 133.307.e)(2)(a)(b)(c).

In its decision denying Provider’s request for reimbursement, the MRD cited 28 TAC § 133.307(e)(2)(C), and noted that the instructions for completing the TWCC 60 Medical Dispute Resolution Request, Part V, state in part A. . .The requestor is required to complete the table of disputed services to clearly identify and specify all unresolved health care billing in order to establish a medical fee dispute. . . .

Provider, as the petitioner, has the burden of proof in this matter. 28 TAC §148.21(h).

III. DISCUSSION

A. Background

Claimant suffered a compensable injury to his ankle and foot on August 15, 2001. Carrier approved six weeks of daily work hardening for Claimant with a start date of February 6, 2002. (Provider’s Ex. 2, 26). Work conditioning and work hardening share the same CPT codes except for the “WC” and “WH” modifiers. CPT Code 97545, with the appropriate “WC” or “WH” modifier, was to be used for the first two hours on a given date of service, and CPT Code 97546, with the appropriate modifier, was to be used for additional hours. Under the Commission’s 1996 Medical Fee Guideline ^[2], the maximum allowable reimbursement (MAR) for work hardening is $64 per hour, and for work conditioning is $36 per hour. Carrier’s Explanation of Review records indicate Carrier was aware that the disputed treatment was work hardening, not work conditioning, on all dates of service except that no Explanation of Review records are in evidence for February 19, March 1, and March 4, 2002. (Carrier’s Ex. 1). The Explanation of Review records show that Carrier denied reimbursement, using codes “F” (Fee Guideline MAR reduction), and A850″ (reduced according to Medical Fee Schedule Guidelines). Although Provider’s table of disputed services submitted to the MRD did not include the “WH” modifier, Provider also submitted health

insurance claim forms with “Request for Reconsideration” stamped on each one of them, which did contain the “WH” modifier; Carrier’s letter pre-authorizing the work hardening; and copies of Carrier’s Explanation of Benefits (EOB) forms, which did not contain the modifier. (Provider’s Ex. 1, 1-25).

Although the MAR is $64 per hour, Provider charged $51.20 per hour for the disputed treatments.

The disputed treatments are set out below:

Date of Service	CPT Code	Amount billed	Total amount paid	Amount in dispute
02/19/02	97546-WH	$307.20 (6 hours)	$51.20	$256.00
02/21/02	97546-WH	$307.20 (6 hours)	$204.80	$0
02/22/02	97546-WH	$256.00 (5 hours)	$204.80	$51.20
02/28/02	97546-WH	$307.20 (6 hours)	$204.80	$102.40
03/01/02	97546-WH	$256.00 (5 hours)	$204.80	$51.20
03/04/02	97546-WH	$307.20 (6 hours)	$204.80	$102.40
03/05/02	97546-WH	$256.00 (5 hours)	$204.80	$51.20
03/06/02	97545-WH	$102.40 (1 hour)[3]	$51.20	$51.20
03/07/02	97545-WH	$102.40 (1 hour)	$51.20	$51.20
03/07/02	97546-WH	$307.20 (6 hours)	$204.80	$102.40
03/08/02	97545-WH	$102.40 (1 hour)	$51.20	$51.20
03/21/02	97546-WH	$204.80 (4 hours)	$51.20	$153.60
Totals		$2,816.00	$1,689.60	$1,146.40

B.Provider’s Testimony

Provider testified that the disputed work hardening services for Claimant were pre-authorized by Carrier, and that the CPT code modifier for work hardening was included on the bills submitted to Carrier and to the MRD but was not included on the EOBs Carrier sent to Provider. Dr. Higbee testified that when the table of disputed services was prepared, the preparer went by the information on the EOBs and that it was a typographical error to exclude the modifier. He said that while the table of disputed services did not include the modifier, the documents submitted to the MRD along with the table of disputed services included Provider’s bills and Carrier’s letter pre-authorizing work hardening, so the MRD should have known that the disputed treatment was work hardening.

C.Analysis and Recommendation

The TWCC rule governing the submission of table of disputed services does not contain a sanction for failure to add modifiers to a CPT code. The MRD’s basis for denial was that it could not clearly identify what services were in dispute, because Provider had not identified the services provided with the correct modifier. However, attached to the table were Carrier’s letter pre-authorizing work hardening, and Provider’s requests for reconsideration that clearly identified the disputed treatment as work hardening. The only other treatment the CPT codes could have referred to was work conditioning, and there was nothing in the submitted request that could have caused the MRD to be unable to discern if the disputed treatments were work hardening or if they were work conditioning. Provider’s position that the absence of modifiers on the Table of Disputed Services is because the preparer took the CPT codes from Carrier’s EOBs, is credible. The ALJ finds that the MRD was mistaken in concluding Provider’s documentation precluded recovery.

Because the record does not support the MRD’s reason for its decision (that it could not clearly identify what services were in dispute), and because Provider substantially complied with the Commission’s rules in submitting its TWCC-60 form, the ALJ determines that Provider should be reimbursed for the work hardening billed under CPT Code 97546-WH. The requested reimbursement of $51.20 per hour falls within the MAR of $64 per hour. However, Provider should not be reimbursed for services billed under CPT Code 97545-WH, because Carrier has already remitted payment for those services. Therefore, Carrier should reimburse Provider $992.80 for the claims in this case.

IV. FINDINGS OF FACT

1. Claimant suffered a compensable injury to his foot and ankle on August 15, 2001.
2. American Home Assurance Company (Carrier) is the workers’ compensation insurer with respect to the claims at issue in this case.
3. Carrier pre-authorized six weeks of work hardening for Claimant, to begin February 6, 2002.
4. Atlantis Healthcare Clinic, L.P. (Provider) provided 52 hours of work hardening to Claimant from February 19, 2002, through March 21, 2002.
5. Provider billed Carrier $51.20 per hour for the work hardening services provided to Claimant, using CPT Codes 97545-WH and 97546-WH., for a total of $2,816.00.
6. Carrier reimbursed Provider $1,689.60, but denied reimbursement for the remaining $1,146.40, using codes “F” (Fee Guideline MAR reduction), and A850″ (reduced according to Medical Fee Schedule Guidelines).
7. At the time the disputed services were provided, the MAR for CPT Code 97545-WH (first two hours) was $64 per hour, and for CPT Code 97546-WH (each additional hour) was $64 per hour.
8. Following Carrier’s denial of reimbursement, Provider requested dispute resolution before the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission).
9. In a December 17, 2003 decision, the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC or Commission) found in favor of Carrier, because when Provider submitted its table of disputed services to the MRD, the services were not identified with modifiers to the CPT codes, and the MRD stated it could not clearly identify what services were in dispute and therefore could not recommend reimbursement.
10. Provider filed a request for hearing before the State Office of Administrative Hearings (SOAH).
11. Notice of the hearing was issued January 30, 2004.
12. The notice 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.
13. The hearing convened March 31, 2004, with ALJ Sharon Cloninger presiding. Ben Higbee, D.C., appeared for Provider, and Ron Johnson, attorney, appeared for Carrier. The hearing adjourned and the record closed that same day.
14. Carrier has already reimbursed Provider for the work hardening billed under CPT Code 97545-WH for services provided on March 6, 7, and 8, 2002, for a total of $153.60 of the $1,146.40 in dispute.

V. 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. Lab. 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. Pursuant to 28 Texas Administrative Code (TAC) § 134.202, the Commission’s 1996 Medical Fee Guideline applies to this dispute.
4. Adequate and timely notice of the hearing was provided in accordance with the Administrative Procedure Act. Tex. Gov’t Code § 2001.052.
5. Provider, as the petitioner, has the burden of proof in this matter. 28 TAC § 148.21(h).
6. Based on the Findings of Fact, the documents Provider submitted for Medical Dispute Resolution substantially complied with 28 TAC § 133.307(e).
7. Based on the above Findings of Fact and Conclusions of Law, Provider is entitled to reimbursement of $992.80.

ORDER

IT IS THEREFORE ORDERED that American Home Assurance Company is to pay Alta Healthcare Clinic, L.P., $992.80 for work hardening provided to Claimant from February 19, 2002, through March 21, 2002.

Signed May 18, 2004.

SHARON CLONINGER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. ¹ The MRD denied reimbursement for a functional capacity evaluation as well as the disputed work hardening services. However, Provider stated on the record that he is only seeking reimbursement for the work hardening services.↑
2. ² Under 28 TAC § 134.202(2), the 1996 Medical Fee Guideline applies to services provided prior to September 1, 2002.↑
3. ³ Although the 1996 MFG’s Medicine Ground Rules at II.E.4 and II.E.5 indicate work hardening will be billed as CPT Code 97545-WH for the first two hours of each session, and as CPT Code 97546-WH for each additional hour, Provider’s bills indicate that only one hour of work hardening was billed under CPT Code 97545-WH on March 6, March 7, and March 8, 2002.↑