DECISION AND ORDER

This case is an appeal by Dana J. Santelli, D.C. (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, American Home Assurance Company (Carrier), properly denied reimbursement for various services Dr. Santelli administered between January 31, 2003, and September 8, 2003, to a claimant suffering from a back injury. Dr. Santelli 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. The amount in controversy is $1,243.00. The Administrative Law Judge (ALJ) concludes the services were medically necessary and should be reimbursed.

I.JURISDICTION, NOTICE AND PROCEDURAL HISTORY

The hearing in this matter was convened July 27, 2004, at the State Office of Administrative Hearings with ALJ Carol S. Birch presiding. Dr. Santelli and Carrier participated in the hearing, which was adjourned the same day. The evidence on the issue of medical necessity consisted of medical records submitted by both parties and the testimony of Dr. Santelli, the claimant and Michael Hamby, D.C. Following the hearing, the parties submitted additional documents and argument at the ALJ’s request, and the record was closed December 8, 2004.^[1]

There were no contested issues of jurisdiction or notice. Therefore, those issues are addressed in the findings of fact and conclusions of law without further discussion here.

II. DISCUSSION

Background Facts

The record revealed the claimant suffered a compensable injury to her lower back on ___, while lifting a heavy object off a conveyor belt. She sought immediate treatment, was initially diagnosed as having a lumbar sprain/strain, and released to work with restrictions. Shortly

thereafter, because of continued pain, the claimant began chiropractic care with Dr. Santelli. Based on diagnostic studies performed in February 2002, he revised the diagnoses to include lumbar disc displacement, myalgia and myositis.^[2]

Between January 2002 and April 2004, Dr. Santelli provided various modalities of chiropractic treatment, which included office visits with manipulations, myofascial release, electrical stimulation and iontophoresis, for the claimant’s condition. The claimant also received an epidural steroid injection on February 27, 2002, which provided significant pain relief for a short time; however, shortly after the procedure was performed, the claimant learned she was pregnant and Dr. Santelli was unable to administer any more active modalities during the pregnancy. Dr. Santelli continued passive treatments throughout the remainder of the pregnancy, providing the claimant some measure of pain relief.

In January 2003, a few months after the birth of the claimant’s child, Dr. Santelli referred the claimant to Kenneth Kemp, M.D., a spine specialist, for concurrent care in treating the claimant’s chronic low back pain. Dr. Kemp believed the claimant to be in significant pain and his stated goal was to manage her pain and keep her as functional as possible. Between January and September 2003, Dr. Kemp attempted to get authorization from Carrier for other types of treatment to provide the claimant with prolonged relief, but Carrier denied all requests. Dr. Santelli continued to treat the claimant during this period of time in an effort to provide her with some pain relief, and the claimant was able to work for at least a portion of the time. When Dr. Santelli billed Carrier for 11 dates of service between January 31, 2003 and September 8, 2003, Carrier denied reimbursement for these service s as unnecessary treatment.

After receiving authorization from Carrier, the claimant received additional treatments aimed at providing pain relief, including a lumbar facet steroid injection in November 2003, and a medial branch radiofrequency neurotomy in December 2003. The claimant was not determined to be at maximum medical improvement until February 2004, with a 10% impairment rating.

Applicable Law

Under Texas law, 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. Tex. Labor Code § 408.021. The statute provides that the purposes for which health care is to be rendered to a claimant includes any that: (1) cures or relieves the effects naturally resulting from the compensable injury; (2) promotes recovery; or (3) enhances the ability of the employee to return to or retain employment.

The types of health care to which an employee is entitled are similarly broad, including “all reasonable and necessary medical aid, medical examinations, medical treatments, medical diagnoses, medical evaluations, and medical services.”Tex. Labor Code § 401.11(19).

Although the law describes few limitations on a claimant’s entitlements to care, the law places upon the treating physician an obligation to maintain efficient utilization of health care.

Tex. Labor Code§408.025(c).

C. Burden of Proof

Under the Commission’s rules, an IRO decision is deemed a Commission decision andorder.^[3] The burden of proof in this case is on Dr. Santelli to prove by a preponderance of the evidence that the disputed services were reasonable and necessary medical treatments.^[4]

D. IRO Decision

In its report, the IRO found that the documentation submitted for review offered no objective and/or subjective justification for continuing chiropractic treatment 13 months post-injury, and stated that after approximately 70 chiropractic treatments prior to the dates of service in dispute, the claimant continued to rate her pain as 6 to 7 on a 10-point scale. The reviewer appears to have based these opinions on a diagnosis of lumbar sprain/strain, rather than on the subsequent diagnosis of lumbar disc displacement.

Evidence, Argument and Analysis

Extent of Injury Dispute. Carrier argued that Dr. Santelli’s claim must be denied due to an unresolved extent of injury dispute. The ALJ does not find this argument persuasive. Under Commission rules, if a Carrier timely raises an extent of injury dispute, a request for an IRO will be held in abeyance until that dispute has been resolved by a final decision of the Commission.^[5] The record reflects that:

• Carrier filed a TWCC 21, a notice of disputed claim form, in February 2002, in an attempt to limit the compensable injury to a lumbar sprain/strain per the initial diagnosis;
• there is no evidence of any final decision of the Commission regarding the extent of injury dispute;
• none of Carrier’s explanation of benefits (EOB) for the disputed dates of service reflect payment exception code “R,” which is the proper code for a denial based on an extent of injury claim;
• not one, but two IRO decisions involving these parties and this claimant have been issued and adopted by the Commission’s Medical Review Division;^[6]
• Carrier paid a significant number of claims based on the diagnosis of lumbar disc displacement; and
• Carrier did not make a motion to have this case abated and remanded, and did not raise this issue until the end of the hearing after presenting evidence regarding medical necessity.

Carrier provided no explanation for these apparent inconsistencies although given an additional opportunity to do so. The ALJ finds that Carrier has waived its extent of injury claim in this case, and is limited to the exception code used in the EOBs, which was “U,” unnecessary treatment, without peer review.

Proper Diagnosis for Review. Carrier presented the testimony of Michael Hamby, D.C., who performed a retrospective peer review in this case, although it is not clear which dates of service he reviewed. Based on a perceived lack of objective support in the documentation, Dr. Hamby concluded that the disputed treatments were not medically necessary to treat a sprain/strain. As Carrier pointed out in its closing argument, the IRO reviewer, the five peer reviewers and Dr. Hamby all opined that the treatments in question were not necessary to treat a sprain/strain more than 13 months after the injury. None of the reviewers seemed to have addressed the necessity of such treatment with respect to Dr. Santelli’s diagnosis of disc displacement which the ALJ finds to be the real inquiry in this case.^[7]

There is an ample evidence in the record that the claimant’s injury was more serious than a mere sprain/strain. The diagnostic tests support Dr. Santelli’s diagnosis, and the physicians who actually examined the claimant also agreed.

Compensability of Pain Relief. Carrier also argued, without citing any authority, that pain is not a compensable injury because temporary relief of pain is not equivalent to “relieving the effects” of claimant’s injury. Dr. Hamby attempted to distinguish between palliative treatment of pain and corrective care. He testified that because the pain relief was transitory, and there was no marked improvement in the claimant’s overall condition, the treatments were not medically necessary.

Dr. Santelli argued that his treatments relieved the effects, i.e., pain, naturally resulting from the claimant’s compensable injury, and were therefore medically necessary under Tex. Labor Code, § 408.021, and Travelers Ins. Co. v. Wilson, 28 S.W. 3^rd 42 (Tex. Civ. App. – Texarkana 2000, no pet.).

The court in Travelers found that treatment for pain relief is clearly provided for in the statute but the treatment must give reasonable relief. 28 S.W.3rd “ 46. In light of the circumstances in this case, the ALJ finds that the disputed treatments provided reasonable relief as contemplated by Travelers and the statute. The diagnostic studies provide objective evidence that supports the claimant’s subjective reports of pain. The record indicates that the claimant’s condition was very unstable with periods of extended relief followed by exacerbations which required treatment. The claimant testified that she usually got one to three days of relief, sometimes more, from the

treatments provided by Dr. Santelli. Furthermore, there is no evidence that the type of pain caused by claimant’s injury would have subsided on its own over time. There is also no evidence that the claimant became increasingly dependant on chiropractic services as a result of the treatments; there appeared to be no increase in the scope or frequency of visits. The ALJ does not believe that 11 visits over an eight-month period were excessive for an individual suffering from chronic pain.

Based on the evidence in this case as discussed above, and as set forth in the findings of fact, the ALJ concludes Dr. Santelli met his burden of proof to show that continued chiropractic care was needed for the disputed dates of service to alleviate the claimant’s pain. Although all of the evidence presented was not discussed in this decision, it was considered. The findings of fact and conclusions of law are based on all of the evidence in the record.

III. FINDINGS OF FACT

1. On ___, the claimant reported an injury to her back was a compensable injury under the Texas Worker’s Compensation Act (“the Act”), Tex. Labor Code Ann. § 401.001et seq.
2. American Home Assurance Company (Carrier) is the workers’ compensation insurer with respect to the claims at issue in this case.
3. The claimant began treatment with Dr. Santelli in January 2002, and reached maximum medical improvement in February 2004.
4. The claimant was diagnosed by Dana J. Santelli, D.C., as suffering a lumbar disc displacement, myalgia and myositis.
5. On 11 dates between January 31, 2003, and September 8, 2003, Dr. Santelli performed or provided chiropractic services to the claimant that included, variously, office visits with manipulation, myofascial release, electrical stimulation and iontophoresis.
6. The Carrier denied the requested reimbursement for those services.
7. The amount in dispute is $1,243.00.
8. Dr. Santelli made a timely request to the Texas Workers’ Compensation Commission (the Commission) for medical dispute resolution with respect to the requested reimbursement.
9. The Commission referred the dispute to an independent review organization (“IRO”) which concluded that the services in dispute were not medically necessary.
10. The Commission’s Medical Review Division reviewed and concurred with the IRO’s decision.
11. Dr. Santelli timely requested a hearing with the State Office of Administrative Hearings (“SOAH”), seeking review and reversal of the MRD decision regarding reimbursement.
12. The Commission mailed notice of the hearing setting to the parties on April 29, 2004.
13. A hearing in this matter was convened on July 27, 2004, at the William P. Clements Building, 300 W. 15^th St., Austin, Texas, before Carol S. Birch, an Administrative Law Judge with SOAH. Dr. Santelli and a representative of the Carrier participated in the hearing.
14. The IRO, the peer reviews, and Dr. Hamby discussed general guidelines for treatment, but did not directly refute the necessity for pain relief for the claimant’s diagnosed injury.
15. Dr. Santelli’s testimony was more credible than the IRO decision, the peer reviews and Dr. Hamby because he more directly and thoroughly addressed the claimant’s medical situation.
16. The services at issue were medically necessary.

IV. 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. § Tex. Gov’t Code Ann413.031.
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. Administrative Code (“TAC”) § 133.305(g) and §§ 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. Dr. Santelli, the party seeking relief, bore the burden of proof in this case, pursuant to 28 TAC § 148.21(h).
6. The treatments for the claimant noted in Findings of Fact No. 5 represent elements of health care medically necessary under § 408.021of the Act.
7. Pursuant to Tex. Labor Code Ann. § 413.031, the Carrier should reimburse Dr. Santelli $1,243.00, plus interest, for the services in dispute.

ORDER

IT IS THEREFORE, ORDERED that American Home Assurance Company shall reimburse Dana J. Santelli, D.C., $1,243.00, plus interest, for the services in dispute in this proceeding.

Signed on February 15, 2005.

CAROL S. BIRCH
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The table of disputed services has been admitted in evidence as Provider’s exhibit 2; the additional records submitted by Dr. Santelli on November 23, 2004 have been admitted as Provider’s exhibit 3.↑
2. An MRI performed in February 2002 showed broad-based annular bulges at L3/4, L4/5, and L5/S1, and a concentric tear in the posterior annulus of L4/L5. A lower extremity electrodiagnostic evaluation done the same month revealed abnormalities, and an additional nerve conduction study performed in November 2002 confirmed nerve dysfunction.↑
3. 28 Tex. Admin. Code § 133.308(p)(5).↑
4. 28 Tex. Admin. Code §§ 133.308(p)(5) and (w), 148.21(h)-(i).↑
5. 28 Tex. Admin. Code § 133.308(f)(7).↑
6. A previous IRO was done regarding similar claims for prior dates of service.↑
7. Nor do they appear to have taken the claimant’s pregnancy into account, although it was noted in the medical records, when discussing the prolonged treatment in this case.↑