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Title: 

453-04-4186-m5

Date: 

February 3, 2005

Type: 

Retrospective Medical Necessity

453-04-4186-m5

DECISION AND ORDER

I. DISCUSSION

Texas Mutual Insurance Company (TMIC) requested a hearing to contest the January 28, 2004 Findings and Decision of the Texas Workers’ Compensation Commission (Commission) allowing SCD Back and Joint Clinic, Ltd. (SCD), reimbursement, on the basis of medical necessity, for analgesic balm,[1] therapeutic exercises,[2] muscle testing,[3] office visits,[4] joint mobilization,[5] myofascial release,[6] group therapeutic procedures,[7] shoulder, ankle, thoracic and lumbar range of motion measurements,[8] massage,[9] and electric stimulation[10] from July 19, 2002,

through January 14, 2003 (Disputed Medical Necessity Services).[11] The Commission’s January 28,

2004 Findings and Decision (Commission Decision) also ordered TMIC to reimburse SCD for certain services and denied SCD reimbursement for certain other services based upon a fee dispute (collectively AFee Dispute Services). TMIC also contested that portion of the Commission Decision that granted SCD reimbursement for Fee Dispute Services.

SCD requested a hearing to contest that portion of the Commission Decision denying SCD reimbursement for Fee Dispute Services.

This Decision and Order grants in part and denies in part the relief sought by TMIC and orders payment for the Disputed Medical Necessity Services from July 19, 2002, through September 27, 2002. This Decision and Order grants in part and denies in part the relief sought by SCD and orders payment for the Fee Dispute Services provided to Claimant from July 19, 2002, through September 27, 2002.

The hearing convened on December 9, 2004, before Administrative Law Judge (ALJ) Howard S. Seitzman. William Maxwell represented SCD. Ryan Willett represented TMIC. There were no contested issues of notice or jurisdiction. David Alvarado, D.C., testified for TMIC and David N. Bailey, D.C., testified for SCD. The hearing adjourned and the record closed on December 9, 2004.

___ (Claimant), a 21-year old male, sustained a work-related injury or about ___, when an electric transformer fell and struck him. He was transported to a hospital for diagnostic studies and care. He was kept overnight and released the following day. Claimant was referred to Michael Savage, M.D., for passive and active care. In late June 2002, Claimant was released by Dr. Savage with a follow-up visit scheduled for two weeks. Claimant apparently also visited a Dan Davis, P.A., at the Brenham Clinic and received an air cast for his left ankle.

On July 19, 2002, Claimant visited Dr. Bailey at SCD complaining of low back pain and left ankle pain. Claimant described his pain as a 7 on a scale of 10.[12] Dr. Bailey diagnosed Claimant with a lumbar sprain/strain, a thoracic sprain/strain, a left ankle sprain/strain, a right shoulder sprain/strain and muscle spasm. Dr. Bailey prescribed a trial home exercise program and a treatment program involving passive and active care. Following 11 sessions of treatment, Dr. Bailey examined Claimant on August 6, 2002. On August 6, 2002, Claimant reported his pain as a 6. Claimant was referred for MRIs and for an orthopedic evaluation of his ankle and additional treatment sessions were prescribed.

By September 27, 2002, Claimant reported his pain as a 4/5. Additionally, Claimant suffered an injury to his right hand that was not work-related. The hand was placed in a cast on August 22, 2002, by George Richardson, M.D., but the cast had been removed by September 27. Although improvement was noted, Dr. Bailey prescribed additional treatment. Dr. Bailey examined Claimant again on January 28, 2003. Between the September 27, 2002 examination and the January 28, 2003 examination, Claimant was involved in two auto accidents. During the time Claimant sought treatment for his auto accident injuries at another facility,[13] he did not receive treatments at SCD.[14]

TMIC contends Claimant’s care was excessive, overly intensive, of limited therapeutic benefit and failed to follow both Commission and general chiropractic protocols. Dr. Alvarado’s opinion was that an office visit and one unit of therapeutic exercise was warranted for each of the following dates of service after August 21, 2002: August 23, 2002; and September 4, 6, 9, 11 and 18, 2002. All treatment after September 18, 2002, was medically unnecessary to treat the compensable injury, in Dr. Alvarado’s opinion.

SCD and Dr. Bailey contend that Claimant continued to exhibit clinical symptoms consistent with his injury that interfered with his activities of daily living and “interfered with his social interactions.” Dr. Bailey points to the Claimant’s increased strength and to his reduction in pain as evidence that the treatment improved Claimant’s function and abilities.

II. ANALYSIS

The evidence established that Claimant improved while under Dr. Bailey’s care. By September 27, 2002, Claimant’s range of motion was at or near normal. Claimant’s perceived pain had decreased. By September 27, 2002, Claimant’s perceived pain was moderate, 4/5, and had been so since August 22, 2002. The record evidences no reasonable medical expectation that continued treatment after September 27, 2002, would lead to a further reduction in Claimant’s perceived pain. Given his range of motion and conditioning as of September 27, 2002, the record does not support a need for the continuation of the same treatment regimen to treat Claimant’s compensable injury. There was no reasonable medical expectation that the Claimant’s condition would significantly improve with continuation of the same treatment. TMIC had the burden of proof with respect to the Disputed Medical Necessity Services. TMIC sustained that burden only with respect to services after September 27, 2002.

With respect to the Commission Decision on the Fee Dispute Services, the Medical Review Division ordered reimbursement of $757.00, denied reimbursement of $245.00, failed to decide a

muscle testing dispute on October 4, 2002, and failed to quantify the amount denied for muscle testing on August 8, 2002. All fee dispute items were also challenged on the basis of medical necessity. Because the dates of service after September 27, 2002, were not medically necessary, SCD is not entitled to reimbursement for the muscle testing on October 4, 2002. SCD is entitled to reimbursement for muscle testing on August 8, 2002, as the provision of the service was documented and was medically necessary. The reimbursement for muscle testing on August 8, 2002, is $129.00.SCD is entitled to reimbursement for therapeutic exercises on September 25, 2002, as the provision of the service was properly documented and was medically necessary. The reimbursement for therapeutic exercises on September 25, 2002, is $245.00.

III. FINDINGS OF FACT

  1. ___ (Claimant), a 21-year old male, sustained a work-related injury or about ___, when an electric transformer fell and struck him.
  2. Claimant was transported to a hospital for diagnostic studies and care, kept overnight and released the following day.
  3. Claimant was referred to Michael Savage, M.D., for passive and active care.
  4. In late June 2002, Claimant was released by Dr. Savage with a follow-up visit scheduled for two weeks.
  5. Claimant also visited a Dan Davis, P.A., at the Brenham Clinic and received an air cast for his left ankle.
  6. On July 19, 2002, Claimant visited SCD Back and Joint Clinic, Ltd. (SCD), where he was treated by David N. Bailey, D.C.
  7. Claimant suffered from low back pain and left ankle pain.
  8. Claimant described his pain as a 7 on a 1- 10 scale, with 10 being severe pain.
  9. Dr. Bailey diagnosed Claimant with a lumbar sprain/strain, a thoracic sprain/strain, a left ankle sprain/strain, a right shoulder sprain/strain and muscle spasm.
  10. Dr. Bailey prescribed a trial home exercise program and a treatment program involving passive and active care.
  11. Following 11 sessions of treatment, Dr. Bailey examined Claimant on August 6, 2002. On August 6, 2002, Claimant reported his pain as a 6.
  12. Claimant was referred for MRIs and for an orthopedic evaluation of his ankle and additional treatment sessions were prescribed.
  13. By September 27, 2002, Claimant reported his pain as a 4/5.
  14. Claimant suffered an injury to his right hand that was not work-related. The hand was placed in a cast on August 22, 2002, by George Richardson, M.D., but the cast had been removed by September 27.
  15. Although improvement was noted, Dr. Bailey prescribed additional treatment.
  16. Dr. Bailey examined Claimant again on January 28, 2003. Between the September 27, 2002 examination and the January 28, 2003 examination, Claimant was involved in two auto accidents.
  17. During the time Claimant sought treatment for his auto accident injuries at another facility, he did not receive treatments at SCD.
  18. The evidence established that Claimant improved while under Dr. Bailey’s care.
  19. By September 27, 2002, Claimant’s range of motion was at or near normal and Claimant’s perceived pain had decreased.
  20. By September 27, 2002, Claimant’s perceived pain was moderate, 4/5, and had been so since August 22, 2002.
  21. There was no reasonable medical expectation that continued treatment after September 27, 2002, would lead to a further reduction in Claimant’s perceived pain.
  22. Given his range of motion and conditioning as of September 27, 2002, there was not a need for the continuation of the same treatment regimen to treat Claimant’s compensable injury.
  23. There was no reasonable medical expectation that the Claimant’s condition would significantly improve with continuation of the same treatment.
  24. Texas Mutual Insurance Company (TMIC) denied SCD reimbursement for services provided to Claimant.
  25. Independent Review Incorporated, an Independent Review Organization (IRO), determined that disputed services were medically necessary by Decision dated November 26, 2003.
  26. TMIC requested a hearing to contest the January 28, 2004 Findings and Decision of the Texas Workers’ Compensation Commission (Commission) allowing SCD reimbursement for analgesic balm, therapeutic exercises, muscle testing, office visits, joint mobilization, myofascial release, group therapeutic procedure, shoulder, ankle, thoracic and lumbar range of motion measurements, massage, and electric stimulation from July 19, 2002, through January 14, 2003 (Disputed Medical Necessity Services).
  27. The Commission Decision ordered TMIC to reimburse SCD $757.00 for certain services based upon a fee dispute and denied SCD reimbursement of $245.00 for certain fee dispute services (collectively AFee Dispute Services).
  28. The Commission Decision failed to decide a muscle testing dispute on October 4, 2002, and failed to quantify the fee denied for muscle testing on August 8, 2002.
  29. TMIC also contested that portion of the Commission Decision that granted SCD reimbursement for Fee Dispute Services.
  30. SCD requested a hearing to contest that portion of the Commission Decision denying SCD reimbursement for Fee Dispute Services.
  31. All Fee Dispute Services were also challenged by TMIC on the basis of medical necessity and are included in the Disputed Medical Necessity Services.
  32. Because the dates of service after September 27, 2002, were not medically necessary, SCD is not entitled to reimbursement for the muscle testing on October 4, 2002.
  33. SCD is entitled to reimbursement for muscle testing on August 8, 2002, as the provision of the service was documented and was medically necessary.
  34. The reimbursement for muscle testing on August 8, 2002, is $129.00.
  35. SCD is entitled to reimbursement for therapeutic exercises on September 25, 2002, as the provision of the service was properly documented and was medically necessary.
  36. The reimbursement for therapeutic exercises on September 25, 2002, is $245.00.
  37. The Commission issued a notice of hearing on March 16, 2004.
  38. A hearing was convened by Administrative Law Judge Howard S. Seitzman on December 9, 2004, in the hearing rooms of the State Office of Administrative Hearings. The hearing adjourned and the record closed that same day.

IV. CONCLUSIONS OF LAW

  1. The Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. ‘ 413.031.
  2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. ‘ 413.031(k) and Tex. Gov’t. Code Ann. ch. 2003.
  3. Both TMIC and SCD timely requested a hearing in this matter pursuant to 28 Tex. Admin. Code (TAC) ” 102.7 and 148.3.
  4. Notice of the hearing was proper and complied with the requirements of Tex. Gov’t. Code Ann. ch. 2001.
  5. An employee who has sustained 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 cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. Tex. Lab. Code Ann. ‘ 408.021(a).
  6. With respect to the Disputed Medical Necessity Services, TMIC had the burden of proof in this matter, which was the preponderance of evidence standard. 28 TAC ” 148.21(h) and (i); 1 TAC ‘ 155.41(b).
  7. With respect to the Fee Dispute Services on which the Commission ordered reimbursement, TMIC had the burden of proof in this matter, which was the preponderance of evidence standard. 28 TAC ” 148.21(h) and (i); 1 TAC ‘ 155.41(b).
  8. With respect to the Fee Dispute Services on which the Commission denied reimbursement, SCD had the burden of proof in this matter, which was the preponderance of evidence standard. 28 TAC ” 148.21(h) and (i); 1 TAC ‘ 155.41(b).
  9. TMIC proved by a preponderance of the evidence that after September 27, 2002, the Disputed Medical Necessity Services were not medically necessary.
  10. TMIC failed to meet its burden of proof as to the Disputed Medical Necessity Services on or before September 27, 2002.
  11. TMIC failed to meet its burden of proof as to the Fee Dispute Services on or before September 27, 2002.
  12. SCD is not entitled to reimbursement for the muscle testing on October 4, 2002, because it was not medically necessary.
  13. SCD proved by a preponderance of the evidence that SCD is entitled to reimbursement of $129.00 for muscle testing on August 8, 2002, as the provision of the service was properly documented and was medically necessary.
  14. SCD proved by a preponderance of the evidence that SCD is entitled to reimbursement of $245.00 for therapeutic exercises on September 25, 2002, as the provision of the service was properly documented and was medically necessary.

ORDER

THEREFORE IT IS ORDEREDthat Texas Mutual Insurance Company reimburse SCD Back and Joint Clinic, Ltd., for analgesic balm, therapeutic exercises, muscle testing, office visits, joint mobilization, myofascial release, group therapeutic procedures, shoulder, ankle, thoracic and lumbar range of motion measurements, massage, and electric stimulation from July 19, 2002, through September 27, 2002, plus any and all applicable interest. SCD Back and Joint Clinic, Ltd., is not entitled to reimbursement for any services provided to Claimant after September 27, 2002.

Signed February 3, 2005.

HOWARD S. SEITZMAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. CPT Code 99070.↑
  2. CPT Code 97110.↑
  3. CPT Code 97750-MT.↑
  4. CPT Code 99213.↑
  5. CPT Code 97265.↑
  6. CPT Code 97250.↑
  7. CPT Code 97150.↑
  8. CPT Code 95851.↑
  9. CPT Code 97124.↑
  10. CPT Code 97014.↑
  11. Independent Review Incorporated, an Independent Review Organization (IRO), determined that Disputed Medical Necessity Services were medically necessary by Decision dated November 26, 2003.↑
  12. On the 10-point scale, zero is pain free and 10 is severe pain.↑
  13. Dr. Bailey’s notes reflect that Claimant stated his auto accidents did not injure or exacerbate his work-related injuries.↑
  14. Between October 3, 2002 and January 28, 2003, Claimant received eight treatments at SCD.↑