DECISION AND ORDER

I. INTRODUCTION

After an Independent Review Organization (IRO) reviewer determined chiropractic and physical medicine treatment was medically necessary for a workers= compensation claimant who was also receiving epidural steroid injections (ESIs), the Carrier, Liberty Insurance Corporation, requested a hearing. The Provider, Pain & Recovery Clinic-North, argued that the services were medically necessary. The amount in controversy is $11,095. In this decision, the ALJ finds the Provider is entitled to partial reimbursement in the amount of $1,510, and finds other services were not medically necessary.

The hearing convened on June 28, 2004, at the State Office of Administrative Hearings with Administrative Law Judge (ALJ) Sarah G. Ramos presiding. The Carrier was represented by Kevin Franta, attorney, and the Provider was represented by William Maxwell, attorney. Neither party objected to notice or jurisdiction. The hearing concluded and the record closed the same day.

II. DISCUSSION

The claimant suffered a work-related injury on ___, when she fell and landed in a seated position. She was treated with physical medicine care for five months and then was advised to have spinal surgery, which she underwent in February 2002.^[1] After the surgery, the claimant had more physical therapy before being receiving ESIs and the disputed treatment, which included chiropractic manipulation and other types of physical medicine care, listed at Attachment A and incorporated in the text of this decision.

IRO

The IRO reviewer found the Provider’s treatments and services were medically necessary. In support of that decision, the reviewer listed various articles from medical texts and periodicals. The reviewer stated:

These articles, in addition to the standard textbooks of physical medicine and rehabilitation, including those by Delia Braddom and others, consistently support the use of organized therapy/mobilization programs in conjunction with interventional pain techniques, including the injections described for this patient.

Medical Care Summary

Pertinent portions of the claimant’s medical records relating to her injury are summarized as follows:

10-05-01MRI revealed a protrusion of the L5-S1 disc in the spinal canal;^[2]

02-01-02Lumbar laminectomy and discectomy were performed at L5-S1;

10-01-02EMG-NCV showed right S1 nerve irritation with partial chronic denervation, radiculopathy, and bilateral post-operative changes at L4-L5 and L5-S1;^[3]

03-22-02 B

05-10-02 18 sessions of physical medicine treatment;^[4]

06-02 one week of work hardening;

07-29-02 B

08-07-02 10 sessions of physical medicine treatment;

10-23-02 Another MRI indicated spine curvature and degenerative disc disease at L5-S1; a three-millimeter, posterior central and right disc protrusion with compression on the anterior thecal sac, obliteration of the right neural foramen, and compression on the right L5 nerve root;^[5]

11-14-02 ESI;

01-09-03ESI;

01-15-03 B

02-17-03 16 sessions with the Provider;

02-20-03 ESI;

02-27-03 B

04-10-03 17 sessions with the Provider;

04-02-03Crrier’s peer reviewer, Thomas B. Sato, D.C., reviewed the claimant’s file and determined post-ESI rehabilitation was not medically necessary. He advised against continuing a Afailed conservative regime and said he found no medical literature to support the treatment;^[6]

04-02-03The claimant reached statutory MMI and was assigned 10% whole-person, spine, and lumbar sacral impairment ratings;

04-30-03An licensed physical therapist noted that the claimant complained of pain levels at five on a one-to-ten scale (5/10) at rest and 9/10 with activity. She had difficulty when standing, sitting, walking, and squatting; ambulated with a cane; had decreased lumbar lordosis and increased muscle guarding in the lumbar paraspinal and especially in the right lower back region;^[7]

05-03-03A discectomy was performed using a different procedure than the one used in 2002;^[8] and

1. %1-%2-3Dr. Sato, asked to reconsider his earlier recommendation, said there were no baseline measurements and no objective documentation to show that the Provider’s program
2. would be structured. He also reiterated his opinion that medical literature did not support rehabilitation therapy at the claimant’s stage of treatment.^[9]
3. Carrier’s Expert Witness, Samuel Bierner, M.D.^[10]

Dr. Bierner said the type of chiropractic treatment the claimant received from the Provider is used primarily in the first six to eight weeks of care. By the treatment dates in question, the claimant had received over eighteen months of physical medicine treatment and should have been considered a chronic pain patient. When asked to describe the claimant’s condition in layperson’s terms, Dr. Bierner said the lowest disc of the claimant’s back is wearing out.

Dr. Bierner, who has administered ESIs to his own patients, said he would not use that type of therapy in conjunction with chiropractic manipulation. During a lumbar ESI, anti-inflammatory and anesthetic medication is inserted into the spinal canal. Physical therapy for a few visits before, and at times, for a brief period after an ESI could be helpful, but, Dr. Bierner added, he has never seen someone who had a medical need for such extensive therapy when that person was also receiving ESIs. At the conclusion of the Provider’s treatment, the claimant’s pain had diminished only from an 8/10 to a 7/10, and she had the same diagnoses and treatment recommendations.^[11] In Dr. Bierner’s opinion, this further demonstrated the ineffectiveness of the treatment.

Dr. Bierner’s also said that the Provider’s treatment notes are deficient because they are repetitive and include no quantitative measurement of progress.^[12] As an example, Dr. Bierner highlighted an April 7, 2003, report, noting there was no documentation regarding range of motion, strength, or lifting capacity.^[13] Without progress notes, it is impossible to know whether the treatment was effective, he testified.

Addressing the procedures for which the Provider billed, Dr. Bierner said Code 99213, which was billed every time except for the first time the claimant was at the Provider’s clinic, is used for evaluation and management at an intermediate level and should include a physical examination and history. Dr. Bierner said the Provider’s notes for the dates on which Code 99213 was billed do not reflect this level of service. Codes with lower reimbursements can be used for shorter visits, and an intermediate office visit with a physical examination and history is normally indicated only once a month or every six weeks. Code 97265, joint mobilization, was also billed for every visit, and there is no documentation that the claimant improved with this treatment.

Code 97250, myofascial release, is used to treat muscle pain, but it is not necessary for one who is receiving ESIs because ESIs are given into the spine, not the muscles. According to Dr. Bierner, the best treatment for muscle pain is active exercise.

Code 97112, neuromuscular reeducation, is used for someone who has suffered a head injury or stroke and is relearning how to use a muscle group. There is no need for this treatment for someone who has back pain, according to Dr. Bierner. Similarly, Code 97110 is used when a patient is being taught therapeutic exercises in a one-on-one setting. A few sessions might be appropriate to instruct a patient in exercises that can be done at home, but a longer period of treatment would be needed only for persons who cannot remember what they have been taught. In this case, there is no proof that the claimant was unable to learn the exercises and do them on her own. Further, a person who walked on a treadmill would not need one-on-one supervision, even if she used a cane or had leg numbness, Dr. Bierner stated.

The Provider submitted several medical articles in support of its position that ESIs and physical medicine should be used concurrently. One article recommends medical management,

including referral to a physical therapist or manual medicine practitioner and consideration of ESIs if there has been no response to pain medications.^[14] An article published in the North American Spine Society magazine states, A[i]n selected cases of lumbar disc herniation and spinal stenosis, [ESIs] when coupled with physical rehabilitation may help promote recovery without surgery.^[15] In Dr. Bierner’s opinion, the first article is directed to primary care physicians who are treating patients in the first stages of recovery. He also said the other articles also do not address the claimant’s post-surgery stage of treatment.^[16]

1. Provider’s Evidence
2. Physician’s Reports

On October 28, 2002, Ali Mohamed, M.D.,^[17] evaluated the claimant for care and recommended a series of three ESIs along with chiropractic manipulation and joint mobilization, as

indicated. At the time, the claimant’s pain level was 8-9/10. ^[18] She received her first injection the next month. On December 30, 2002, shortly before the claimant began chiropractic and physical

medicine care with the Provider, she saw Dr. Mohamed again, and her pain level was 8/10 with radiation to the bilateral lower extremities.^[19]

Orthopedic specialist Merrimon Baker, M.D., examined the claimant on March 15, 2003, near the end of her disputed treatment. The claimant told him that after her 2002 surgery, she had no improvement in her right leg pain; indeed, the pain was even more intense, and it radiated to her foot and toes. Although she had no atrophy in the lower extremity, she had extreme limitations of lumbar range of motion in all planes; significant tenderness in the S1 joints bilaterally, the right sciatic notch, and the left trochanteric bursa area; and diminished right Achilles reflex sensation. Dr. Baker recommended that she continue outpatient physical therapy, be given a TENS unit for permanent usage, receive bilateral ESIs, and have a repeat MRI. Further, he determined she more than likely would require additional surgery in the future.^[20]

Nestor Martinez, D.C.

The claimant’s treating physician referred her to Dr. Martinez, who initially evaluated her on January 15, 2003. In Dr. Martinez’s opinion, the claimant improved significantly because of the services she received at his clinic. Dr. Martinez said the claimant made more progress because of the chiropractic and other physical medicine services she received in conjunction with the ESIs.

When Dr. Martinez first interviewed the claimant, she had difficulty standing erect, was at a 7/10 pain level, and she walked with a mild antalgic gait. She had decreased lumbar lordosis and

moderte-to-severe muscle guarding of the lumber paraspinal muscles. There was Aexquisite tenderness over these muscles. Ranges of motion were restricted in flexion by 50%, and pain radiated into the bilateral lower extremities. With treatment, Dr. Martinez hoped the claimant would have increased lumbar ranges of motion; improved standing, walking, bending, and squatting tolerance; decreased low back pain; and improved ability to sleep without interruption.^[21]

Dr. Martinez’s treatment plan for the claimant included the following over four weeks at three times a week:

• passive stretches of the lumbar and lower extremity musculature;
• lumbar range of motion exercises;
• treadmill and stationary bike exercises;
• isokinetic machine exercises for strengthening the lumbar spine and lower extremities;
• McKenzie exercises for lumbar spine;
• myofascial release;
• joint mobilization; and
• electrical muscle stimulation/ultrasound, as needed.

The one-page daily progress notes for the claimant show the CPT codes performed, reflect her subjective complaints, and have brief notes about objective findings.^[22] Checks are placed beside certain activities, such as stretching, treadmill, stationary bike, gymnic ball, and isokinetic circuit. However, there are no notes to show the length of time required to perform the exercises. The Provider noted whether the claimant tolerated the procedures well and again checked items to show whether she improved after receiving treatment.

Analysis

Following the claimant’s February 2002 surgery and before the disputed dates of service (beginning January 15, 2003), she had 28 physical medicine sessions and one week of work hardening. Thus, while some medical literature and the IRO reviewer noted it is sometimes medically necessary for a patient to have organized therapy or mobilization in conjunction with ESIs, it is also true that the claimant had already had a substantial amount of physical medicine care.

As Dr. Bierner summarized and as the record reflects, the therapy did not provide significant relief for her. The Provider’s notes vary little from day to day and do not show that the claimant improved measurably during treatment.^[23] And, for almost all treatment dates, the claimant’s assessment is rated as fair. Certainly, it was wise to treat the claimant with conservative care before

she underwent a subsequent surgery. But at some point during her treatment, the Provider should have realized further treatment would not be beneficial for her.

Moreover, the evidence does not indicte the therapeutic procedures, Codes 97110 and 97112, were those that a person could not do on her own. For example, stretching, walking on a treadmill, riding a stationary bike, and or completing an isokinetic circuit do not necessarily have to be done in a therapeutic setting. Even though the claimant had leg numbness and walked with a cane, there is no documentation that she needed one-on-one assistance in performing these tasks. Specifically, Tex. Labor Code Ann. ‘ 408.021 entitles workers to reasonable health care that Acures or relieves the effects naturally resulting from the compensable injury. But, in this case, the evidence does not support a determination that the care cured or relieved the effects of the claimant’s injury.

As for the intermediate office visits billed, there is no documentation of these services other than check marks next to listed procedures. The Provider emphasized the fact that the Carrier challenged only the medical necessity of services B not documentation in particular. However, with only the limited documentation in the record, the ALJ cannot find adequate evidence that rebuts Dr. Bierner’s testimony regarding the lack of medical necessity for these office visits.

Similarly, the record does not indicate whether the two ESIs the claimant had in 2003 in conjunction with the Provider’s care gave the claimant any more relief than the one she had in 2002 without physical medicine care. For this claimant, in particular, the record does not support continued treatment with the Provider beyond the first few treatments. Dr. Bierner did not state precisely how many sessions would have been reasonable. In the ALJ’s opinion, the nine sessions from January 15 – 31, 2003, should have given the Provider an idea of whether the claimant was responding to its treatments. Certainly, after those sessions the claimant should have learned how to perform the exercises on her own, and the Provider should have had adequate feedback to make an

informed decision regarding continued services. Further, since no time is recorded for Code 97110, it is appropriate to reimburse the Provider for only one session per day for that code.

Accordingly, the ALJ finds the Provider’s initial evaluation of the claimant, billed at $106, was medically necessary and should be reimbursed. In addition, the first nine days of physical medicine treatment were medically necessary, except for the additional office visits and excess therapeutic procedures (Code 97110). Therefore, the Provider should receive the maximum allowable reimbursement (MAR) for one session of each physical medicine CPT code billed on the first nine days of treatment: 97110 ($35), 97112 ($35), 97250 ($43), and 97265 ($43), for a total of $156 per day. The total of $156 times nine days equals $1,404. With the $106 for the initial evaluation, total reimbursement ordered is $1,510.

III. FINDINGS OF FACT

1. A workers= compensation claimant suffered a work-related injury on___, when she fell and landed in a seated position.
2. The claimant received various treatments after her injury, including five months of initial physical medicine care. She also had 28 physical medicine sessions and one week of work hardening between February 2002, when she had a lumbar laminectomy and discectomy at L5-S1, and August 2002.
3. Even after her 2002 surgery, the claimant continued to have right S1 nerve irritation with partial chronic denervation, radiculopathy, and bilateral post-operative changes at L4-L5 and L5-S1; spine curvature; degenerative disc disease at L5-S1; and a three-millimeter, posterior central and right disc protrusion.
4. After the claimant had epidural steroid injections (ESIs) on November 14, 2002, and January 9, 2003, she began receiving chiropractic and physical medicine treatments from the Provider.
5. Between January 15, 2003 and February 17, 2003, the claimant received treatment 16 times from the Provider, who billed the Carrier for the CPT codes listed on Attachment A, which is incorporated into this Finding of Fact.
6. The claimant received another ESI on February 20, 2003, followed by 18 additional sessions of physical medicine treatment from the Provider who billed for the CPT codes listed in Attachment A, which is incorporated into this Finding of Fact.
7. The maximum allowable reimbursement (MAR) for all the services the Provider billed is $11,095.
8. While some medical literature supports the use of physical medicine treatment in conjunction with ESIs, the claimant had already had significant physical medical care by the time the Provider treated her, and the articles do not address the claimant’s post-surgery, tertiary stage of treatment.
9. Physical medicine treatment for a few visits before, and at times, for a brief period after an ESI could be helpful, but the claimant received excessive treatment, particularly considering her prior conservative care.
10. The Provider’s treatment notes are repetitive and include no quantitative measurement of progress. There was no documentation regarding range of motion, strength, or lifting capacity.
11. At the conclusion of the Provider’s treatment, the claimant’s pain had diminished only from an 8/10 to a 7/10, and she had the same diagnoses and treatment recommendations.
12. Except for a few initial treatments, there is insufficient evidence to show the Provider’s care of the claimant relieved the effects naturally resulting from the compensable injury.
13. It is reasonable to reimburse the Provider for its initial evaluation of the claimant because the claimant’s treating physician referred her to the Provider for treatment.
14. The MAR rate for the initial evaluation is $106.
15. It is not necessary to bill CPT Code 99213, which is used for evaluation and management at an intermediate level, every time a patient is treated, especially in this case in which the CPT code was billed 32 times over a period of 85 days (January 15 B April 10, 2003).
16. By the end of the first nine sessions, the claimant should have been familiar enough with the physical medicine exercises to know how to do them on her own.
17. By the end of the first nine sessions, the Provider should have realized its other services, such as joint mobilization and myofascial release, did not improve the claimant’s condition.
18. Because the time spent for services billed under Code 97110 was not recorded, it is appropriate to reimburse the Provider the MAR of $35 for one session for each of the first nine days that services were provided.
19. The Provider should be reimbursed for one session of each physical medicine CPT code billed on the first nine days of treatment: 97110 ($35), 97112 ($35), 97250 ($43), and 97265 ($43), for a total of $156 per day.
20. The total of $156 times nine days equals $1,404 for the first nine physical medicine treatments.
21. The Texas Workers’ Compensation Commission, acting through an Independent Review Organization, determined the Provider’s services were medically necessary for the treatment of claimant.
22. Petitioner timely requested a hearing before the State Office of Administrative Hearings (SOAH).
23. Notice of the hearing was sent to both parties on March 3, 2004.
24. One continuance was granted, and both parties were notified of the new hearing date.
25. The hearing convened on June 28, 2004, and both parties were represented. The hearing concluded and the record closed that day.

IV. CONCLUSIONS OF LAW

1. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to the Texas Workers= Compensation Act, specifically Tex. Labor Code Ann. ” 402.073(b) and 413.031(k), and Tex. Gov=t Code Ann. ch. 2003.
2. The hearing request was timely made pursuant to 28 Tex. Admin. Code ‘ 148.3.
3. Adequate and timely notice of the hearing was provided according to Tex. Gov=t Code Ann. ” 2001.051 and 2001.052.
4. The Carrier had the burden of proof in this matter. 28 Tex. Admin. Code ” 148.21(h).
5. Except for certain services provided on the first nine days of treatment, the Provider’s care did not cure or relieve the effects naturally resulting from the claimant’s compensable injury; promote recovery; or enhance the claimant’s ability to return to or retain employment. Tex. Labor Code Ann. ” 408.021.
6. The Provider should be reimbursed for its initial evaluation of the claimant in the amount of $106.
7. The Provider should be reimbursed for the physical medicine services provided in January 2003 in the amount of $1,404.

ORDER

THEREFORE IT IS ORDERED that Liberty Insurance Corporation reimburse Pain & Recovery Clinic-North the amount of $1,510, but Pain & Recovery Clinic-North’s request for payment for additional services is denied.

Signed August 19, 2004.

SARAH G. RAMOS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

ATTACHMENT A

CPT Code	Description	MAR Amount	Number of Times Billed 1-15-03 through 4-10-03[24]
97110 x 3	therapeutic procedure	$35 x 3 = 105	33
97250	myofascial release, soft tissue mobilization	$43	33
97265	joint mobilization	$43	33
97112	neuromuscular re-education of movement	$35	9
99213	office visit for evaluation and management	$48	32
99204	new patient office visit	$106	1

1. Ex. 2, pp. 16-17.↑
2. Ex. 1, p. 22.↑
3. Id.↑
4. Ex. 2, p. 16.↑
5. Ex. 1, p. 237.↑
6. Ex. 1, pp. 223-225.↑
7. Ex. 1, p. 201-203.↑
8. Ex. 1, pp. 182-186.↑
9. Ex. 3, pp. 97-99.↑
10. Dr. Bierner is board-certified in physical medicine and rehabilitation, board-certified in electrodiagnostic medicine, and an associate professor of physical medicine at the University of Texas Medical School in Dallas.↑
11. Ex. 1, pp. 209-211.↑
12. Ex. 3, pp. 29 – 57.↑
13. Ex. 3, p. 55.↑
14. Sheila A. Dugan, M.D. and P.T. et al, Hospital Physician, October 2002; Ex. 3, pp. 108-119 at pp. 113 and 116.↑
15. Jeffrey . Saal, M.D, ASpinal Injections: Past, Present and Future, North American Spine Society; Ex. 3, pp. 120-125 at p. 124.↑
16. Ex. 3, pp. 103-133.↑
17. Dr. Mohamed is a pain management specialist with a fellowship in pain management from Massachusetts General Hospital, Harvard Medical School. When he wrote his assessments, he was associated with the Provider.↑
18. Ex. 1, p. 82.↑
19. Ex. 1, pp. 61-63.↑
20. Ex. 1, pp. 236-238.↑
21. Ex. 3, pp. 19-20.↑
22. E.g., the ptient still have [sic] signs of radiating pain from the diagnosed lumbar herniation. +bilateral SLR/+braggards/+Kemp=s. Ex. 1, p. 268, treatment date 2-10-03.↑
23. Ex. 1, pp. 272, 275, and 280.↑
24. Actual treatment dates were: Jan. 15, 16, 18, 21, 23, 24, 28, 30, 31; Feb. 4, 5, 8, 10, 12, 14, 17, 27, 28; Mar. 3, 4, 10, 11, 14, 21, 24, 25, 27, 31; Apr. 1, 4, 7, 8, and 10.↑