DECISION AND ORDER

I. DISCUSSION

Neuromuscular Institute of Texas (Petitioner) requested a hearing to contest the Findings and Decision of the Texas Workers’ Compensation Commission (Commission) acting through Independent Review Incorporated, an Independent Review Organization (IRO), denying Petitioner reimbursement for therapeutic procedures and exercises, hot and cold pack therapy, electrical stimulation, functional capacity evaluation (FCE), office visits, injections, unclassified drugs, special reports, ultrasound, myofacial release, review of MMI/IR report, durable medical equipment, elbow orthosis and syringe with needle for the period December 4, 2002, through May 1, 2003 (Disputed Services).

This decision grants the relief sought by Petitioner and orders payment of $3,239.00.

The hearing convened on September 20, 2004, before Administrative Law Judge (ALJ) Howard S. Seitzman. Allan T. Craddock, represented Petitioner. Brandy Young Prejean represented Connecticut Indemnity Company (Respondent). There were no contested issues of notice or jurisdiction. Brad Burdin, D.C., testified for Petitioner. The record closed the same day following adjournment of the hearing.

___ (Claimant) sustained a work related injury on or about ___, caused by repetitive work injury mechanism. She was diagnosed with the following ailments: a severe left carpal tunnel; a moderate to severe left cubital tunnel; mild to moderate right carpal and cubital tunnels; myofascitis of the forearm muscles bilaterally; a torn rotator cuff and adhesive capsulitis. Claimant underwent a series of surgeries, including a carpal tunnel release in October 2001, a cubital tunnel release in

January 2002, and a trigger finger release of her left index finger and thumb in August 2002. Following the August 2002 surgery, Claimant experienced pain in the volar aspect of the base of her left thumb from inflammation and scar tissue. Terry L. Westfield, M.D., recommended therapy, and in April 2003, he recommended injections. The injections were successful in resolving the pain in her left hand. Claimant also underwent a series of injections in her left elbow from November 2002 through May 2003, accompanied by strengthening and range of motion exercises, ultrasound, electrical stimulation and other therapies.^[1] Petitioner performed a second FCE on December 16, 2002.^[2] Dr. Burdin, by letter dated November 1, 2002, challenged the impairment rating assessment performed by the designated doctor and requested the Claimant be reevaluated by the designated doctor.^[3] There was apparently no response, and on December 31, 2002, Dr. Burdin did an impairment rating (IRR). Claimant returned to work on restricted duty in June 2003. The amount in dispute totals $3,239.00.^[4]

Respondent does not challenge the injections but does challenge as medically unnecessary the passive care provided in conjunction with the injections. Respondent contends the December 16, 2002 FCE was unnecessary as Claimant was still having difficulties and was being considered for a variety of treatments, including injections and chronic pain management. Respondent also contends the December 31, 2002 IRR was unnecessary and that the appropriate action was a reevaluation by the designated doctor.

II. ANALYSIS

The ultrasound, heat packs, electrical stimulation and therapy were medically necessary because they were used in conjunction with the injections for strengthening, increasing range of motion and flexibility, relieving pain and enhancing the effect of the injections.

The December 16, 2002 FCE was Claimant’s second FCE. At this time, Claimant was showing considerable improvement and Dr. Burdin was considering returning Claimant to work. The FCE was performed to determine whether she should be returned to work and was medically necessary.

The December 31, 2002 IRR was necessary given the regulatory requirements of Tex. Lab. Code Ann. ‘ 408.125(c), which apparently require a competing impairment rating in a challenge to the designated doctor’s impairment rating. While the better course may have been reevaluation by the designated doctor, there is no evidence in the record that the designated doctor would reevaluate Claimant following Dr. Burdin’s November 1, 2002 request for reevaluation.

Petitioner had the burden of proof in this proceeding, and Petitioner sustained its burden of showing that the Disputed Services were medically necessary.

III. FINDINGS OF FACT

1. ___ (Claimant) sustained a work related injury on or about ___, caused by repetitive work injury mechanism.
2. Claimant was diagnosed with the following ailments: a severe left carpal tunnel; a moderate to severe left cubital tunnel; mild to moderate right carpal and cubital tunnels; myofascitis of the forearm muscles bilaterally; a torn rotator cuff and adhesive capsulitis.
3. Claimant underwent a series of surgeries, including a carpal tunnel release in October 2001, a cubital tunnel release in January 2002, and trigger releases of her left index finger and thumb in August 2002.
4. Claimant experienced pain in the volar aspect of the base of her left thumb from inflammation and scar tissue.
5. Neuromuscular Institute of Texas (Petitioner) seeks reimbursement for therapeutic procedures and exercises, hot and cold pack therapy, electrical stimulation, functional capacity evaluation (FCE), office visits, injections, unclassified drugs, special reports, ultrasound, myofacial release, review of MMI/IR report, durable medical equipment, elbow orthosis and syringe with needle for the period December 4, 2002, through May 1, 2003 (Disputed Services).
6. The Disputed Services were provided by Petitioner to and for the benefit of Claimant.
7. The ultrasound, heat packs, electrical stimulation and therapy were used in conjunction with the injections for strengthening, increasing range of motion and flexibility, relieving pain and enhancing the effect of the injections.
8. The December 16, 2002 FCE was needed to determine whether Claimant’s progress was sufficient to allow her to return to work.
9. The December 31, 2002 IRR was needed to challenge the designated doctor’s impairment rating.
10. Connecticut Indemnity Company (Respondent) denied reimbursement for the Disputed Services as not medically necessary.
11. By letter dated February 20, 2003, Independent Review Incorporated, an Independent Review Organization (IRO), concluded that the Disputed Services were not medically necessary for treatment of Claimant’s condition.
12. The IRO decision is deemed a Decision and Order of the Texas Workers’ Compensation Commission (Commission).
13. The Commission issued a Finding and Decision on February 23, 2004.
14. Petitioner timely requested a hearing to contest the Commission’s decision.
15. The Commission issued a notice of hearing on April 8, 2004.
16. A hearing was convened by Administrative Law Judge Howard S. Seitzman on September 20, 2004, in the hearing rooms of the State Office of Administrative Hearings and the hearing adjourned and the record closed the same day.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation 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. Petitioner 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. Petitioner 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. Based upon the Findings of Fact, Petitioner proved by a preponderance of the evidence that the Disputed Services were medically necessary for treatment of Claimant’s condition.

ORDER

THEREFOREIT IS ORDERED that Respondent Connecticut Indemnity Company pay Petitioner Neuromuscular Institute of Texas= $3,239.00, plus any and all applicable interest, for the Disputed Services provided to Claimant.

Signed November 18, 2004.

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

1. Claimant had injections on November 14, 2002; December 12, 2002; January 13, 2003; February 20, 2003; March 6, 2003; March 20, 2003; April 17, 2003; and May 1, 2003.↑
2. Respondent does not challenge a final FCE performed in May 2003.↑
3. The designated doctor examined Claimant on May 16, 2002, and Dr. Burdin, in a June 26, 2002 letter, raised several issues including the date of maximum medical improvement (MMI). Because of her January 2002 surgery, Dr. Burdin suggested that Claimant should be reevaluated by the designated doctor for MMI.↑
4. The December 16, 2002 FCE and the December 31, 2002 IRR conducted by Dr. Burdin account for $1,060.00 of the $3,239.00 in dispute.↑