DECISION AND ORDER

I. INTRODUCTION

American Home Assurance Company (Carrier) contests the decision of the Texas Workers” Compensation Commission’s Medical Review Division (MRD) ordering reimbursement of $3,108 for services provided to Claimant from April 28, 2003, through May 21, 2003, by Community Rehab & Work Conditioning (Provider). The Administrative Law Judge (ALJ) finds that Carrier proved the disputed treatments were not reasonable or medically necessary. Therefore, reimbursement to Provider of $3,108 for the disputed services is not warranted.

II. PROCEDURAL HISTORY

ALJ Sharon Cloninger convened the hearing April 1, 2004. Both parties participated. At the hearing, an oral motion for continuance was granted, and the hearing was recessed until June 22, 2004. Both parties appeared at the June 22, 2004 proceeding, at which a motion to abate was granted to give the parties time to reach a settlement. The parties did not reach a settlement, and the hearing was scheduled to re-convene February 14, 2005.

The hearing re-convened February 14, 2005, at the State Office of Administrative Hearings, William P. Clements State Office Building, 300 West 15^th Street, Fourth Floor, Austin, Texas, with

ALJ Cloninger presiding. Dan C. Kelley, attorney, represented Carrier. Peter N. Rogers, attorney, represented Provider. Both parties appeared, evidence was heard, and the record closed that same day.

The parties did not contest notice or jurisdiction, which are addressed in the Findings of Fact and Conclusions of Law below.

III. BACKGROUND

On ___, Claimant injuredhis lower back when he was pushing a grocery cart through an icy parking lot at work and slipped. An MRI of Claimant’s lumbar spine performed March 28, 2003, showed a posterior central annular tear at L3-L4, mild facet arthrosis at L4-L5, and posterior central discal substance herniation at L5-S1. However, a TWCC hearing officer found on July 8, 2003, that while Claimant’s compensable injury to the lumbar spine included a herniated disk at L5-S1, it did not include an injury to the lumbar spine in the form of a bulge and annular tear at L3-4 or a bulge at L4-5.^[1]

Jack LoCascio, D.C. [associated with Provider] began treating Claimant on March 18, 2003, with passive modalities.^[2] Upon recommendation of Kenneth S. Bayles, D.O., who examined Claimant on April 3, 2003, and on April 21, 2003, Provider tailored a physical therapy program for Claimant.^[3] The disputed treatment, provided on 12 dates from April 28, 2003, through May 21, 2003, include therapeutic exercises (CPT Code 97110), aquatic therapy and exercise (CPT Code 97113), training for activities of daily living (CPT Code 97540), and therapeutic activities (CPT

Code 97530). Claimant received physical therapy treatments from Provider on 17 dates before April 28, 2003.^[4]

IV. EVIDENCE

Carrier offered one exhibit, which was admitted, and called one witness. Provider offered one exhibit, which was admitted, and called two witnesses.

A. Applicable Law

The only issue in this case is whether, by a preponderance of the evidence, there was medical necessity for the treatment rendered to Claimant by Provider. Medical necessity is defined inTex. Lab. Code Ann. ‘ 408.021, which 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.

B. Carrier’s Evidence

Testimony of Brad Hayes, D.C.

Brad Hayes, D.C., testified on behalf of Carrier that the disputed treatment was not medically necessary. He said that Claimant’s condition worsened under Provider’s care, as indicated by Claimant’s subjective measurement of strong pain on April 28, 2003Bthe first disputed date of serviceBincreasing to severe pain and finally to maximal pain by May 21, 2003, the last disputed date of service.^[5] Dr. Hayes said there was no justification to continue treatment when Claimant’s pain level was worsening.

Dr. Hayes said Claimant suffered from a sprain/strain to his low back, which should have resolved in a relatively short time with home exercises following a short period of chiropractic

intervention. He testified that if a patient does not have a positive response to care within two weeks, a provider should Amove to some other type of care.

Examination by Phillip Osborne, M.D.

Phillip Osborne, M.D., examined Claimant, who continued to complain of low back pain, on June 2, 2003. Dr. Osborne concluded Claimant showed significant evidence of symptom magnification. He said Claimant exhibited four out of five positive Waddell categories, and that he did not demonstrate any physiological parameters that would correlate with the severity of his complaints.

Retrospective Peer Reviews

a. May 21, 2003, Retrospective Peer Review byMichael Hamby, D.C.^[6]

Michael Hamby, D.C. reviewed three of the disputed dates of service. He said the submitted services were not needed, specifically mentioning that there was no established evidence to warrant aquatic therapy. He said the submitted records lacked credible objective medical evidence or explanation for the amount, frequency, or the need (such as documented flare-up) for such prolonged treatment.^[7] He said the medical records provided no explanation as to why Claimant was not responding favorably to the treatment, how the treatment impacted Claimant in a positive manner, or how the treatment improved his functional status so could return to work. He said the medical records contain no support for the rendered diagnosis of lumbar sprain, as Claimant’s subjective complaints are not matched with objective evidence to support the diagnosis, or the need for the disputed services, or for ongoing treatment.

b. Dr. Hamby’s May 26, 2003, Retrospective Peer Review^[8]

In a May 26, 2003, retrospective peer review, Dr. Hamby reviewed three dates of service^[9] and reiterated the statements made in his May 21, 2003, retrospective peer review of Provider’s treatment of Claimant.

c. June 6, 2003, Retrospective Peer Review by Bobby Enkvetchakul, M.D.^[10]

Bobby Enkvetchakul, M.D., reviewed services provided May 19, May 20, and May 21, 2003. He said between 12 and 20 visits would have been reasonable for Claimant’s recovery and improvement, unless there had been a showing of objective deficit and benefit. But he said there was no indication that Claimant continued to receive any lasting objective benefit from the treatment, or that there was any significant improvement in objective measures for range of motion, strength, or function that would justify the disputed therapy.

d. June 17, 2003, Retrospective Peer Review by Dr. Hayes^[11]

Dr. Hayes performed a June 17, 2003, retrospective peer review of the disputed dates of service from April 28, 2003, through May 7, 2003. He said there had been an adequate trial of care to significantly reduce Claimant’s condition but that the Claimant’s condition had worsened. He pointed out that on April 28, 2003, Claimant reported strong pain; two visits later he reported severe pain; and three visits later he complained of maximal pain.

e. July 3, 2003, Retrospective Peer Review by Victor Roth, M.D.^[12]

Victor Roth, M.D., reviewed Provider’s tretment of Claimant including therapeutic activities, training for daily living, therapeutic exercises, and aquatic therapy/exercises. He concluded that if the treatment had been reasonably effective, Claimant would have been at full recovery after three months of treatment for his non-surgical injury claim, listed as a Asprain on the explanation of benefits (EOB). He said that after 22 treatments and three months, Claimant’s pain was at the moderate to severe level, and his strength was at the Aweak to Asome strength level, which he characterized as Anot an expected significant clinical or functional improvement.

f. November 9, 2003, Retrospective Peer Review by Melissa Tonn, M.D.^[13]

Melissa Tonn, M.D., found no documentation of objective or functional improvement in Claimant’s condition from the treatment provided just prior to the disputed dates of service (from March 19, 2003, through April 27, 2003), so determined there could be no reasonable expectation of functional restoration based on that prior lack of success. She noted that the treatment provided April 28, 2003, through May 21, 2003, could have been performed by Claimant at home. She said there is no evidence that Provider progressed Claimant’s treatment program (other than increasing the number of sets of repetitions) or that Claimant required additional instruction in exercise previously performed. She said there was no documentation to support an ongoing need for body mechanics education on proper lifting, proper sitting, proper bending, and proper posture for five minutes each at every visit. She also said there is no documentation that addresses the content of Claimant’s training.

1. C.Provider’s Evidence
   1. Testimony of Dr. LoCascio

Dr. LoCascio testified ththe consulted with Claimant on March 18, 2003, and initially provided passive care such as ultrasound, electrical stimulation, and myofascial release for the acute phase of Claimant’s treatment. He said he then referred Claimant to Dr. Bayles for an orthopedic consult before proceeding to the next phase of treatment. He said Dr. Bayles recommended on April 3, 2003, that Provider continue treating Claimant with physical therapy and rehabilitation.^[14]

Dr. LoCscio testified that an April 23, 2003 functional capacity evaluation (FCE) showed Claimant’s capacity to be at a Alight work level, with a pain level of 7 out of 10, indicating he needed more treatment. He compared the results of the April 23, 2003 FCE^[15] with those of Claimant’s May 27, 2003 FCE,^[16] which showed him to be at a Alight to medium work capacity level, with a pain rating of 5 out of 10, and concluded Claimant’s condition had improved.^[17]

Testimony of Charles Crane, M.D.

Charles Crane, M.D., testified on behalf of Provider that the disputed services were reasonable and necessary at the time rendered. He said eight weeks of physical therapy is reasonable under standard guidelines for a back injury.^[18] He said the accepted standard of practice is to provide

physical therapy for a back injury until the patient fails to respond, gets worse, or shows improvement.

1. C.Additional Documentary Evidence
2. Examinations by Kenneth Bayles, D.O.^[19]

Dr.Byles examined Claimant on May 1, 2003, and reported that Claimant continued having low back pain that was essentially unchanged since the previous visit [on April 21, 2003]. He said Claimant suffered from numbness and tingling in both legs. He also said Claimant was taking the prescribed medications, but that they did not seem to be helping him. He reported that Claimant attended therapy three times per week, which provided some relief. Dr. Bayles recommended epidural steroid injection with manipulation under anesthesia, and continued therapy and rehabilitation with Provider Aas this does give him some symptom relief. ^[20]

Examination by Jerry D. Houchin, D.O.^[21]

Jerry D. Houchin, D.O, examined Claimant on May 21, 2003, the last disputed date of service, and observed Claimant to have severe inflammation, swelling, and edema, as well as abnormality of gait due to pain/radicular pain. During the visit, Claimant complained of severe back pain and pain radiating into his right leg, preventing him from carrying out many previously routine tasks and chores.

Physical therapy records^[22]

Provider’s records documenting Climant’s physical therapy do not show how much weight he used to perform various exercises, or Claimant’s changes in strength, flexibility and range of motion over the four-week period. The records indicate that Claimant’s subjective rating of his pain and strength go from Astrong pain and Amoderate strength in the first week, to Asevere pain and

weak strength in the second week, to Astrong pain and Asome strength in the third week, and to a pain evaluation fluctuating from Astrong to Amoderate in the final week, with Asome strength.

V. ANALYSIS

Carrier proved Provider’s treatment of Claimant was not medically necessary, because the treatmentdid not cure or relieve the effects naturally resulting from the compensable injury; promote Claimant’s recovery; or enhance Claimant’s ability to return to or retain employment.Claimant’s back pain progressively worsened from ___, the date of injury, to May 21, 2003, the last disputed date of service. There is no objective evidence that Claimant’s condition improved with the chiropractic treatment provided on 17 dates of service from his initial visit with Provider on March 18, 2003, through April 27, 2003. The subjective evidence is that Claimant’s condition actually worsened. Accordingly, it was not reasonable or medically necessary to continue the treatment, although Dr. Bayles recommended it. In addition, there is no objective evidence that the treatment rendered on the disputed dates of service cured or relieved the effects of Claimant’s compensable injury, or promoted his recovery. As of May 29, 2003, Claimant had not returned to work.^[23] Therefore, Provider’s requested reimbursement is not warranted.

VI. CONCLUSION

Carrier proved that reimbursement is not warranted for the disputed treatments. Accordingly, the ALJ orders that Carrier is not to reimburse Provider for the treatment rendered to Claimant from April 28, 2003, through May 21, 2003.

VII. FINDINGS OF FACT

1. Claimant sustained a compensable work-related injury to his low back on ___, when he was pushing a shopping cart across an icy parking lot and slipped.
2. Theworkers’ compensation insurance carrier for Claimant’s employer is American Home Assurance Company (Carrier).
3. Community Rehab & Work Conditioning (Provider) began treating Claimant on March 18, 2003.
4. The diagnosis for Claimant’s work-related injury to the lumbar spine, as determined by a Texas Workers Compensation Commission hearing officer on July 8, 2003, includes a herniated disk at L5-S1, but does not include an injury to the lumbar spine in the form of a bulge and annular tear at L3-4 or a bulge at L4-5.
5. Provider referred Claimant for an orthopedic evaluation, which was conducted by Kenneth Bayles, D.O., on April 3, 2003.
6. On both April 3, 2003, and April 21, 2003, after examining Claimant, Dr. Bayles recommended that Claimant continue physical therapy with Provider Aas this does give him some symptom relief.
7. Claimant’s condition objectively did not improve from March 18, 2003, his first date of treatment by Provider, through April 27, 2003.
8. Claimant reported that his back pain progressively worsened from his ___ date of injury until April 27, 2003.
9. It was not reasonable to continue ineffective treatment protocols beyond April 27, 2003.
10. From April 28, 2003, through May 21, 2003, Provider’s disputed treatment of Claimant included therapeutic exercises (CPT Code 97110), aquatic therapy and exercise (CPT Code 97113), training for activities of daily living (CPT Code 97540), and therapeutic activities (CPT Code 97530).
11. Climant’s April 23, 2003 functional capacity evaluation (FCE) showed him to be at a Alight work level with a pain rating of 7 out of 10, and his May 27, 2003 FCE showed him to beat a Alight to medium work level with a pain rating of 5 out of 10. Claimant’s job requires him to be at a Aheavy work level.
12. Claimant did not receive any lasting pain relief from the disputed treatment.
13. There was no significant improvement in objective measures for Claimant’s range of motion, strength, or function as a result of the disputed treatment.
14. The disputed treatment could have been performed by Claimant at home.
15. As of May 29, 2003, Claimant had not returned to work.
16. Provider sought reimbursement from Carrier for services rendered to Claimant between April 28, 2003, and May 21, 2003.
17. Carrier denied reimbursement for the treatments and services.
18. Provider filed a request for medical dispute resolution with the Texas Workers’ Compensation Commission’s Medical Review Division (MRD).
19. On January 9, 2004, after reviewing a December 17, 2003,independent review organization (IRO) decision recommending non-payment, the MRD denied reimbursement of the disputed treatment and services.
20. On January 13, 2004, Carrier requested a hearing before the State Office of Administrative Hearings (SOAH) to contest the MRD decision.
21. On February 17, 2004, notice of the hearing was mailed to Provider and Carrier, informing the parties of the matter to be determined, the right to appear and be represented, the time and place of the hearing, and the statues and rules involved.
22. The hearing convened April 1, 2004. Both parties participated. A motion for continuance was granted, and the hearing was recessed until June 22, 2004. Both parties appeared at the June 22, 2004 proceeding, at which a motion to abate was granted, to give the parties time to reach a settlement. The parties did not reach a settlement, and the hearing was scheduled to re-convene February 14, 2005.
23. ALJ Sharon Cloninger re-convened the hearing on February 14, 2005, in the William P. Clements Building, 300 West 15^th Street, Fourth Floor, Austin, Texas. Dan C. Kelley, attorney, represented Carrier.Peter N. Rogers, attorney, represented Provider.

VIII. 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. Lab. Code Ann. ‘ 413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
2. Provider timely filed notice of appeal of the decision of TWCC’s Medical Review Division (MRD), 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. ” 2001.051 and 2001.052 and 28 TAC ‘ 148.4(b).
4. As the party appealing the MRD decision, Carrier had 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, Carrier proved Claimant’s treatment from April 28, 2003, through May 21, 2003, was not reasonable or medically necessary as defined in Tex. Lab. Code Ann. ‘ 408.021(a).
6. Based on the above Findings of Fact and Conclusions of Law, Carrier should not reimburse Provider for the disputed treatment and services.

ORDER

IT IS ORDERED THATAmerican Home Assurance Companyis to not reimburse Community Rehab &Work Conditioningfor the disputed services and treatments.

Signed April 15, 2005.

SHARON CLONINGER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Provider’s Exh. 4, at 94-97.↑
2. Provider’s Exh. 4, at 72.↑
3. An April 21, 2003, examination by Dr. Bayles showed limited range of motion in Claimant’s lumbar spine, and loss of strength and endurance. On that date, Dr. Bayles recommended that Claimant enter physical medicine sessions including therapeutic activities, daily living activities, and aquatic therapy, to develop strength and endurance, and increase range of motion.↑
4. Testimony of Dr. LoCascio.↑
5. Dr. Hayes noted that Claimant’s pain level increased from 2 out of 10 on the ___, date of injury to 7 or higher out of 10 by the last disputed date of treatment.↑
6. Carrier’s Exh. 1, at 4.↑
7. Provider treated Claimant on 17 dates between ___ (Claimant’s date of injury) and prior to April 28, 2003.↑
8. Dr. Hamby did not specify which three dates of service he reviewed, except to say that there had been over 17 patient visits at the time of review, which indicates to the ALJ that the dates reviewed were among the disputed dates of service, because Claimant had visited Provider about 17 times prior to April 28, 2003. (Carrier’s Exh. 1, at 5).↑
9. It is not clear which three disputed dates of service he reviewed.↑
10. Carrier’s Exh. 1, at 7.↑
11. Carrier’s Exh. 1, at 8.↑
12. Carrier’s Exh. 1, at 9.↑
13. Carrier’s Exh. 1, at 15.↑
14. See Provider’s Exh. 1, at 58-59.↑
15. Carrier’s Exh. 1, at 40-49.↑
16. Carrier’s Exh. 1, at 64-65, and 71-88.↑
17. Claimant’s physical demand category for his job is “very heavy” capacity. See Carrier’s Exh. 1, at 96.↑
18. Prior to the four weeks of physical therapy in dispute, Claimant received three weeks of passive chiropractic care from March 24, 2003, through April 14, 2003. See Carrier’s Exh. 1, at 174-191.↑
19. Dr. Bayles first examined Claimant on April 3, 2003, at Provider’s recommendation, and again on April 21, 2003. He recommended the course of treatment now in dispute.↑
20. Provider’s Exh. 1, at 60-61. Dr. Bayles gives no further description of Claimant’s symptom relief.↑
21. Carrier’s Exh. 1, at 55-58 and Provider’s Exh. 4, 75-77.↑
22. Provider’s Exh. 1, at 36-55, and Carrier’s Exh. 1, at 179, 184, and 192.↑
23. Provider’s Exh. 1, at 62.↑