DECISION AND ORDER

Texas Mutual Insurance Company (TMIC) seeks review of a decision by the Texas Workers’ Compensation Commission (Commission), acting through an independent review organization (IRO), in a dispute regarding the medical necessity of physical medicine treatments that Southeast Health Services (Southeast) provided to Claimant___., who suffered from a lower back injury. This decision finds that Southeast should be denied reimbursement.

I. PROCEDURAL HISTORY, NOTICE, AND JURISDICTION

The hearing convened on November 16, 2004, at the facilities of the State Office of Administrative Hearings, 300 W. 15^th St., Austin, Texas. Administrative Law Judge (ALJ) Katherine L. Smith presided. TMIC was represented by Ryan Willett, an attorney. Southeast was represented by Bryan Weddle, D. C. The record closed the same day. Neither party challenged the adequacy of notice or jurisdiction.

II. BACKGROUND

Claimant suffered a compensable injury on ___, resulting in sharp pains in his lower back that radiated down his right leg to his foot. An EMG revealed acute lumbarradiculopathy. Dr. Weddlebegan treating Claimant at Southeast on June 25, 2002. TMIC denied reimbursement for physical medicine treatments provided from October 21 through November 8, 2002, based on lack of medical necessity. The IRO found that the treatments were medically necessary. TMIC appealed the decision. The following services are in dispute:

CPT CODES	DESCRIPTION	DATES OF CARE
99212	Office visit	10/21/02, 10/23/02, 11/6/02
99243	Office consultation	10/25/02, 11/8/02
97265	Joint mobilization	10/21/01, 10/23/02, 10/25/02, 11/6/02, 11/8/02
97032 (2 units)	Electrical stimulation	10/21/02, 10/23/02, 10/25/02
97016	vasopneumatic device	10/21/02, 10/23/02, 10/25/02
97530	one-on-one therapeutic activities	10/21/02-2 units, 10/23/02-2 units, 10/25/02-2 units, 11/6/02-2 units, 11/8/02-1 unit
97110	one-on-one therapeutic procedures	10/28/02-3 units, 10/30/02-3 units, 11/1/02-2 units, 11/4/02-1 unit, 11/8/02-3 units, 11/11/02-4 units
97113	aquatic therapy with therapeutic exercises	10/28/02-2 units, 10/31/02-2 units, 11/1/02-4 units, 11/4/02-4 units, 11/6/02-4 units, 11/8/02-3 units, 11/11/02-4 units

III. DISCUSSION

TMIC

TMIC introduced the deposition of Mark Miller, a physical therapist, as its expert testimony. Mr. Miller testified that the medical record does not justify the continued use of passive treatments, including joint mobilization, electrical stimulation, and vasopneumatic treatment, more than four months after the injury, which is well beyond the acute phase of care, particularly since Claimant had previously received 30 sessions of treatment. He testified further that passive modalities have no clinical value outside the acute phase of care, unless the documentation indicates that they are necessary to reduce pain so that the patient can perform exercises on his own or are needed to improve Claimant’s range of motion in a chronic situation. TMIC Ex. 2 at 14-15, 20. According to Mr. Miller the record indicates that Claimant participated in exercise therapy as early as June 25, 2002, and that his range of motion was near normal. Id. at 21-22. Mr. Miller testified more particularly that continued use of the vasopneumatic device, which he described as a form of traction, was not warranted beyond October 2, 2002, when Claimant said that he was 95% pain-free, and when by October 7, 2002, he could walk heel-to-toe and was near normal strength. According to Mr. Miller, at the time in question, Claimant should have been exercising at home on a regular basis and been weaned of passive modalities that created dependency on the treating doctor. Id. at 46-47. Mr. Miller also questioned billing for an office visit while billing for the more specific therapies, such as joint mobilization and electrical stimulation.

Mr. Miller also testified that it was inappropriate to bill for so many units of one-on-one physical therapy (CPT code 97110) unless the documentation shows that Claimant was being introduced to a new procedure, there was a need to monitor Claimant’s response to the new procedure, or there was a safety concern, which it did not. Id. at 28-30. According to Mr. Miller, at this point Claimant should have been adequately instructed on the exercises he was to perform and been monitored periodically. Id. at 34.

Mr. Miller also addressed the efficacy of therapeutic activities (CPT Code 97530), which are used to aid in coordination, balance, posture, and technique. Id. at 39. He stated that the activities were not necessary in Claimant’s case, because there was no indication in the record that he had deficits in those areas, particularly when three weeks prior to the dates in dispute, he was 95% pain-free and could walk on his heels and his toes. Id. at 41-42.

Mr. Miller also testified that having Claimant participate in aquatic exercising four months after his injury was not appropriate because he had already been performing exercises on land for up to an hour and a half each session. According to Mr. Miller, aquatic therapy is needed only when a patient is incapable of exercising in a full-gravity environment. Mr. Miller noted that the medical record contains no indication that Claimant had regressed to a point where he was incapable of exercising on land. Id. at 36.

Dr. Weddle

Dr. Weddle argued that the services provided, especially those between October 21 through 28, 2002, were medically necessary because the decompressive disc therapy,^[1] which involved a large machine, could not have been performed at home. Dr. Weddle also noted that Claimant had a limited response to the conservative treatment provided and that the aquatic therapy was initiated after Claimant hit a plateau with the decompressive disc therapy. Dr. Weddle described the land-based exercises as mere stretching exercises.

ALJ’s Analysis

The ALJ finds the testimony of Mr. Miller to be highly persuasive. Although the record indicates that Claimant was near recovery in October and that Claimant believed he had reached a plateau from the spine decompression therapy by October 21, 2002, use of the vasopneumatic device and other passive modalities continued on October 21, 23, and 25 and November 6, and 8, with no explanation why. TMIC Ex. 1 at 211. And although the ALJ was willing to consider the need for aquatic therapy to get Claimant beyond the plateau that he had reached, nowhere does the medical record indicate what exercises were being conducted and what their purpose was. That Southeast also billed for up to one hour of one-on-one physical therapy at the same time, when Claimant was only performing stretching exercises, appears to be an example of “over-billing”.

At this stage in Claimant’s treatment, Claimant should have been progressed to a home exercise program with periodic monitoring. If Claimant’s condition had met a chronic plateau, as Dr. Weddle suggests, that condition should have been documented and the grounds for further treatment sufficiently set out. Otherwise, it does appear that Claimant was encouraged to be overly dependent upon passive treatments for his recovery. The ALJ, therefore, concludes that the treatments Southeast provided to Claimant from October 21 through November 8, 2002, were not medically necessary health care.

IV. FINDINGS OF FACT

1. Claimant__ suffered a compensable injury on ___, resulting in pain in his lower back that radiated down his right leg to his foot. An EMG revealed acute lumbar radiculopathy.
2. At the time of the injury, Claimant’s employer had workers’ compensation insurance coverage with Texas Mutual Insurance Co. (TMIC).
3. Bryan Weddle, D.C., who practiced through Southeast Health Services (Southeast), began treating Claimant on June 25, 2002.
4. Southeast sought reimbursement from TMIC for services provided to Claimant from October 21 through November 8, 2002.
5. TMIC determined that the services were not medically necessary and denied reimbursement.
6. Southeast made a timely request to the Texas Workers’ Compensation Commission (Commission) for medical dispute resolution.
7. The independent review organization (IRO) to which the Commission referred the dispute found that the treatments were medically necessary.
8. The Commission’s Medical Review Division (MRD) issued a decision based on the IRO’s review on January 27, 2004.
9. TMIC requested a hearing in a timely manner with the State Office of Administrative Hearings (SOAH), seeking review of the MRD decision.
10. On February 12, 2004, the Commission issued the notice of the hearing, which stated the date, time, and location of the hearing and cited to the statutes and rules involved, along with a short, plain statement of the factual matters involved.
11. The hearing convened on November 16, 2004, at 300 W. 15^th St., Austin, Texas.
12. Claimant received physical medicine treatments at Southeast consisting of joint mobilization, electrical stimulation, vasopneumatic treatments, one-on-one therapeutic procedures, one-on-one therapeutic activities, and aquatic therapeutic exercises.
13. Southeast also billed for office visits and consultations.
14. The medical recorddoes not justify the continued use of passive treatments, including joint mobilization, electrical stimulation, and vasopneumatic treatment, more than four months after the injury, which was well beyond the acute phase of care, when Claimant was 95% pain-free, was near normal strength, and had near normal range of motion.
15. The medical record does not indicate that Claimant was having trouble performing exercises that required the need for continuous one-on-one physical therapy or that Claimant had problems with his coordination, balance, or posture that required the need for one-on-one physical activities.
16. Having Claimant participate in aquatic exercising four months after his injury was not appropriate because he had already been performing exercises on land for up to an hour and a half each session. Aquatic therapy is needed only when a patient is incapable of exercising in a full-gravity environment. The medical record contains no indication that Claimant had regressed to a point where he was incapable of exercising on land.
17. At this stage in Claimant’s treatment, Claimant should have been progressed to a home exercise program with periodic monitoring.
18. The treatments provided to Claimant between October 21 through November 8, 2002, were not shown to be reasonably required by the nature of Claimant’s injury.

V. CONCLUSIONS OF LAW

1. The Commission has jurisdiction over this matter pursuant to the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code Ann. §413.031.
2. SOAH has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to §413.031(k) of the Act and Tex. Gov’t Code Ann. ch. 2003.
3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
4. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001 and the Commission’s rules, 28 Tex. Admin Code (TAC) §§148.1-148.28.
5. TMIC had the burden of proof in this proceeding. 28 TAC §§148.21(h) and (i); 1 TAC §155.41.
6. Under Tex. Labor Code § 408.021(a)(1), 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 that cures or relieves the effects naturally resulting from the compensable injury.
7. Based upon Findings of Fact nos. 14 through 18, the treatments provided to Claimant that included office visits, office consultations, joint mobilization, electrical stimulation, vasopneumatic treatment, one-on-one physical procedures, one-on-one physical activities, and aquatic exercise therapy from October 21 through November 8, 2002, were not medically necessary health care under Tex. Labor Code §§401.11 and 408.021(a).
8. Based upon the foregoing Findings of Fact and Conclusions of Law, Southeast’s request for reimbursement should be denied.

ORDER

IT IS THEREFORE, ORDERED that Southeast Health Services’s request for reimbursement from Texas Mutual Insurance Company is denied.

Signed January 7, 2005.

KATHERINE L. SMITH
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The ALJ presumes this is the same as a vasopneumatic device.↑