DECISION AND ORDER

This case is an appeal by Chad Blackwell, D.C. (Petitioner or Provider), from a decision of an independent review organization (IRO) on behalf of the Texas Workers’ Compensation Commission (Commission) in a dispute regarding medical necessity for chiropractic treatment. The IRO found that the insurer, The University of Texas System (Respondent or Carrier), properly denied reimbursement for office visits, physical therapy and related services that Petitioner provided from September 9 through November 6, 2002, to a claimant suffering from a compensable low back and left leg injury.

Petitioner challenged the decision on the basis that the treatment at issue was, in fact, medically necessary, within the meaning of §§ 408.021 and 401.011(19) of the Texas Workers’ Compensation Act (the Act), Tex. Labor Code Ann. ch. 401 et seq.

This decision agrees with that of the IRO, finding that reimbursement of Petitioner for the disputed services should be denied.

I. JURISDICTION AND VENUE

The Commission has jurisdiction over this matter pursuant to § 413.031 of the Act. The State Office of Administrative Hearings (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. No party challenged jurisdiction or venue.

II. STATEMENT OF THE CASE

Administrative Law Judge (ALJ) Lilo D. Pomerleau convened the hearing in this docket on September 2, 2004, at SOAH facilities in the William P. Clements Building, 300 W. 15^th Street, Austin, Texas. Petitioner was represented by Kathline Stewart, Petitioner’s office manager, who is not an attorney. Respondent was represented by Juliana C. Griggs, Attorney. As Petitioner was unprepared to proceed that day, the hearing was continued to January 6, 2005, when both parties presented evidence and argument. The hearing was adjourned and the record closed on January 6, 2005.

On ___, the claimant suffered a compensable injury to her back and left knee when she stepped into a drainage hole while pulling a cart full of bottles and fell backwards, flexing her

left knee and landing on her back. A lumbar MRI dated July 11, 2002, showed a small disc protrusion (2 mm) at L5-S1 and the left leg MRI, taken on the same day, was negative. On August 19, 2002, John Wey, M.D., performed an orthopedic evaluation of the claimant, finding no effusion within the left knee, although the claimant had limited knee flexion and was tender along the medial joint line. On August 30, 2002, Robert Henderson, M.D., a spine surgeon, examined the claimant. He evaluated her MRI and x-rays, finding such suggestive of L4-L5 instability with a grade I retrolisthesis and spinal stenosis. In September 2002, the claimant had electrodiagnostic studies performed: the EMG, as well as nerve conduction studies, were normal, with no evidence of neurological neuropathy or radiculopathy in the lower extremities.^[1] On October 15, 2002, the claimant underwent a functional capacity evaluation (FCE), which indicated that the claimant could return to work with no restriction, pending the release from her treating doctor.^[2]

The claimant began treatments with Petitioner beginning on July 1, 2002, through December 9, 2002. On October 24, 2002, George N. Armstrong, M.D., performed a second FCE on the claimant. In the FCE, Dr. Armstrong reported that the claimant continued to see Petitioner Dr. Blackwell once a week and had not returned to work. The claimant complained of intermittent pain in her lower back and left knee, rating her pain as 4 out of 10, with 10 being the highest level. Dr. Armstrong’s diagnosis indicated lumbosacral and left knee strain. He concluded that she could return to work with restrictions. He also concluded that her chiropractic care had been excessive after the first six to eight weeks. He found that further chiropractic care was unnecessary as the claimant could work on strengthening exercises on her own.^[3]

When Petitioner billed Respondent (the insurer for the claimant’s employer) for medical services (specifically, office visits, additional manipulation, myofascial release, electrical stimulation, massage, unusual travel, unlisted modalities, and therapeutic activities) from September 9, 2002, through November 6, 2002, Respondent denied for the following reasons:

G-One manipulation to the related area included in office visit charge.

N-A generic description of CPT codes does not document what activities were performed or for how long. Documentation does not support billed service.

N-There is no explanation that myofascial release was done to support 97250.

N-Documentation fails to support continued chiro trmt w/no sustained benefit noted. See Physical Medicine Ground Rule IA.

N-Unnecessary service as medical treatment is reasonably available within 20 miles of ie residence, who lives in Dallas.

No HCFAs submitted for this date of service at all.^[4]

More specifically, the services from September 23 though November 6, 2002, were denied for only two reasons “N-Documentation fails to support continued chiro trmt w/no sustained benefit noted. See Physical Medicine Ground Rule IA.” and “N-Unnecessary service as medical treatment is reasonably available within 20 miles of ie residence, who lives in Dallas.”^[5]

III. THE EVIDENCE AND ARGUMENTS

A. PETITIONER

Petitioner submitted into evidence medical records and argument previously submitted to the IRO but offered no witness testimony. Unfortunately, the bulk of this evidence does not apply to the service dates at issue in this case, September 9 through November 6, 2002. Pertaining to the dates in question, Petitioner’s evidence consists of brief daily notes and a sketchy weekly progress report. Petitioner’s letter of position to Debbie Lovato, RN, Director of Health Services Assessment, reflects the frustrations of Petitioner:

Our documentation is extremely explanatory. Not only this, but we provided the carrier with weekly summaries to support our daily notes. We do not understand what more is needed. Our notes state the progression or regression of the patient, and any other pertinent information, an what procedures were done. We billed appropriately for each procedure done and provided documentation over and above what is required in an attempt to satisfy the carrier.^[6]

However, although Petitioner’s letter disagrees with the carrier’s denials for a number of services, it specifically references services on July 22, 2002 only. Neither this letter, nor any other letter of explanation, specifically addresses denials for failing to support continued treatment without noted benefits or unusual travel.

B. RESPONDENT

Respondent also presented documentary evidence but no testimony. Respondent argues that Petitioner failed to have a treatment plan after the first four to six weeks and failed to update any treatment plan; that Petitioner’s notes were repetitive and failed to document the claimant’s progress; and that the treatment was not specific to the injury.

IV. ANALYSIS

Petitioner bears the burden of proving that the factual basis or analytical rationale for the IRO’s decision in this case was invalid. In the ALJ’s view, he has not met that burden. Again, the bulk of the unexplained records submitted by Petitioner pertained to dates outside those at issue

before the IRO and this case. More importantly, Petitioner offered no rebuttal to: (1) the October 15, 2002 FCE which indicated the claimant could return to work; and Dr. Armstrong’s October 24, 2002 evaluation and opinion that the claimant did not need further chiropractic treatment. The sole explanations countering the denials by the carrier can be found in Ms. Stewart’s letters to both the carrier and the Commission’s Medical Dispute Resolution.

The daily and weekly progress notes for the claimant during the period in question-the only medical opinion offered by the Petitioner-are sparse. On September 25, 2002, Petitioner indicated that the claimant was “rapidly approaching a more active rehabilitation program than she is able to do here. I will attempt to get her into a program next week.”^[7] But there is no showing that this was done-rather, Petitioner’s notes reflect that he continued to treat the claimant through November 11, 2002. As noted by the IRO, the notes do not include a treatment plan after the initial four to six weeks of treatment. Throughout the treatment period, which extends beyond the service dates in question in this case, the treatment notes indicate that the claimant’s condition changed little. For months, most days she was sore and most days she received adjustments.

Under § 408.021 of the Act, an injured worker is entitled to “health care reasonably required” to relieve the effects of the injury or to enhance the ability to continue working. However, care that provides only superficial improvement or relief at inordinate cost is not “reasonably” required. In the ALJ’s view, the record in this case does not adequately demonstrate that Petitioner’s choice of treatment for the claimant bore any discernible relationship to her progress or that Petitioner was guided by any specific protocol or pattern of practice in administering those particular modalities. Petitioner has not demonstrated by a preponderance of the evidence, as legally required, that the prior decisions of the IRO and Medical Review Division in this case should be overturned.

V. CONCLUSION

The ALJ finds that, under the record provided in this case, the medical services at issue have not been shown to be medically necessary. Reimbursement for these services should be denied, accordingly, as initially determined by the IRO.

VI. FINDINGS OF FACT

1. On ___, the claimant was pulling a cart full of bottles when she stepped into a drainage hole and suffered an injury to her low back and left knee. The injury was a compensable injury under the Texas Worker’s Compensation Act (the Act), Tex. Labor Code Ann. § 401.001et seq.
2. The claimant’s injury produced persistent lower back and left leg pain, for which she received treatment from Chad Blackwell, D.C. (Petitioner) beginning the day after the injury occurred.
3. Petitioner provided therapeutic treatment to the claimant for the injury noted in Finding of Fact No. 1, from September 9 through November 6, 2002.
4. Petitioner sought reimbursement for services noted in Finding of Fact No. 3 from The University of Texas System (Respondent), the insurer for claimant’s employer.
5. Respondent denied the requested reimbursement.
6. Petitioner made a timely request to the Texas Workers’ Compensation Commission (Commission) for medical dispute resolution with respect to the requested reimbursement.
7. The independent review organization (IRO) to which the Commission referred the dispute issued a decision on August 13, 2003, and concluded the services provided by Petitioner had not been medically necessary, based upon the lack of a treatment plan after the initial weeks of treatment, lack of quantitative assessment at the end of the initial treatment period, and a lack of qualitative documentation in the provider’s notes. Services which the IRO found unnecessary included office visits, additional manipulation, myofascial release, electrical stimulation, massage therapy, unusual travel, unlisted modalities, and therapeutic activities.
8. The Commission’s Medical Review Division reviewed and concurred with the IRO’s decision in a decision dated February 19, 2003, in dispute resolution Docket No. M5-03-2367-01.
9. Petitioner requested in a timely manner a hearing with the State Office of Administrative Hearings (SOAH), seeking review and reversal of the MRD decision regarding reimbursement.
10. The Commission mailed notice of the hearing’s setting to the parties at their addresses on April 28, 2004.
11. A hearing in this matter was initially convened on September 2, 2004, and reconvened on January 6, 2005, at the William P. Clements Building, 300 W. 15^th Street, Austin, Texas, before Lilo D. Pomerleau, an Administrative Law Judge with SOAH. Petitioner was represented by Kathline Stewart, who is not an attorney, and Respondent was represented by Juliana C. Griggs, Attorney. The record closed January 6, 2005.
12. From September 9 through November 6, 2002, Petitioner treated the claimant with office visits, additional manipulation, myofascial release, electrical stimulation, massage, unusual travel, unlisted modalities, and therapeutic activities.
13. There is no treatment plan for the claimant indicating why the treatments from September 9 through November 6, 2002, were necessary, as these treatments were beyond the initial six to eight weeks of initial treatment.
14. Except for the September 25, 2002 notes, Petitioner’s daily treatment notes offer little objective indication of the claimant’s progress as early as June 26, 2002, continuing through the dates at issue, September 9 through November 6, 2002, and beyond.
15. The September 25, 2002 daily treatment notes indicate the claimant was “approaching” a more active treatment program. There is no indication that the claimant was released to a more active treatment program during the dates in question.
16. There is no evidence that the claimant improved with the treatments provided to her by Petitioner.

VII. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act (the Act), Tex. Labor 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 § 413.031(k) of the Act and Tex. Gov’t Code Ann. ch. 2003.
3. 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) §§ 148.001-148.028.
4. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
5. Petitioner, the party seeking relief, bore the burden of proof in this case, pursuant to 28 TAC § 148.21(h).
6. Based upon the foregoing Findings of Fact, the treatments for the claimant on September 9 through November 6, 2002, do not represent elements of health care medically necessary under § 408.021of the Act.
7. Based upon the foregoing Findings of Fact and Conclusions of Law, the findings and decisions of the IRO and of the MRD were correct; Petitioner’s request of reimbursement for services should be denied.

ORDER

IT IS THEREFORE, ORDERED that the appeal of Chad Blackwell, D.C., seeking reimbursement for chiropractic services performed from September 9, 2002, through November 6, 2002, be denied, in accordance with the findings and decision of the independent review organization issued in this matter on August 13, 2003, which concluded that the disputed services had not been shown to be medically necessary.

Signed March 7, 2005.

LILO D. POMERLEAU
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Respondent’s Ex. F at 2.↑
2. Petitioner’s Ex. C, FCE dated October 15, 2002, performed by Rehab Diagnostics of Texas.↑
3. Respondent’s Ex. F at 7.↑
4. Respondent’s Ex. E at 9-13.↑
5. Id. at 11-13.↑
6. From Petitioner’s Ex. C, unnumbered page, July 5, 2003 letter to Debbie Lovato, written by Kathline Stewart.↑
7. Petitioner’s Ex. C, daily notes dated September 25, 2002.↑