DECISION AND ORDER

Texas Mutual Insurance Company (Carrier) challenges Independent Review Organization (IRO) and Medical Review Division (MRD) decisions granting reimbursement to Work Ready Rehab (Provider) for physical therapy services provided to an injured worker (Claimant). The Administrative Law Judge (ALJ) concludes, based on the evidence presented, that (1) the disputed services were not medically necessary for the treatment of Claimant’s injury, and (2) Carrier failed to present evidence successfully challenging the MRD decision awarding Provider $182.00. Consequently, Carrier shall pay to Provider reimbursement of $182.00.

I. Jurisdiction and Notice

Notice and jurisdiction, which were not disputed, are addressed in the Findings of Fact and Conclusions of Law.

II. Discussion

A. Background.

Claimant suffered a compensable injury on ___, when a piece of glass he was installing broke and lacerated tendons, nerves, and an artery in his right wrist and hand. He underwent surgical repair of the injury the same day and had an additional surgery to the site in July 2002, following a re-rupture of a tendon. Claimant began post-operative physical therapy treatments with Provider on June 12, 2002. The services included therapeutic exercises, joint mobilization, group therapeutic procedures, paraffin bath therapy, and office visits. Nearly all of the therapy was provided in a one-on-one setting, which continued for approximately six months following Claimant’s second surgery.

Ultimately, Carrier denied reimbursement for services provided from September 23, 2002, to January 10, 2003, as not medically necessary. An Independent Review Organization (IRO) disagreed with Carrier, concluding the disputed services were medically necessary. In a related fee dispute, the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission ordered additional reimbursement for some of the services.

Based on the IRO and MRD decisions, Carrier requested a hearing before the State Office of Administrative Hearings. Administrative Law Judge (ALJ) Gary Elkins convened the hearing on September 2, 2004. Carrier was represented by Attorney Scott Placek. Provider was represented by

Attorney Carl Richie. The hearing closed following Carrier’s submission of disputed services on November 11, 2004.

Evidence and Argument

The predominant issue in this case is whether the provision of physical therapy services in a one-on-one setting was necessary based on the nature of the injury, the amount of time that had elapsed since Claimant’s injury and surgeries, and any special needs Claimant may have exhibited. In support of its position that Claimant’s circumstances did not warrant one-on-one therapy, Carrier makes the following arguments, which reflect the testimony of its expert witness, Gary Pamplin, M.D.:

• There is no evidence Claimant needed one-on-one therapy, which is the most intensive and expensive type of therapy to be used the most sparingly. The evidence does not reflect that Claimant was uncooperative, had impaired abilities preventing him from participating in a physical therapy program in a less intensive setting such as a home or group program, or otherwise exhibited special needs requiring treatment in a one-on-one setting.
• Generally, an injury like Claimant’s should heal in approximately three months, and nothing in the treatment notes for Claimant indicated his course of healing should have required more than three months.
• Provider conducted only occasional range-of-motion evaluations, but without regular evaluations there is no way of knowing the extent to which continued therapy is needed.
• There is no indication the doctor referring Claimant for physical therapy specified the course of therapy to be administered, including the modalities, the frequency at which they were to be administered, and the deficits to be treated.
• A home exercise program should have been used in place of one-on-one therapy, but there was no documentation indicating Provider attempted to transition Claimant from one-on-one therapy to a home-based program.
• The physical therapy exercises employed in Claimant’s rehabilitation program were pretty simple, consisting of turning the hand, turning the wrist, squeezing a ball, and picking up small objects. All were exercises that could easily have been performed at home.

In support of its position that its one-on-one services were medically necessary and provided in a reasonable manner consistent with the Texas Workers’ Compensation Act, Provider makes the following arguments in reliance on the testimony of Martin Grabois, M.D.:

• The severity and nature of Claimant’s injury required one-on-one physical therapy.
• Three doctors who had treated Claimant had the opportunity to change his physical therapy program but did not.
• Claimant experienced some difficulties, including edema, which affected the healing process.
• Claimant had come a long way in his rehabilitation and was slowly making progress at the time of the disputed services.
• Claimant was immobilized for four to six weeks after his second surgery in July 2002, which delayed his rehabilitation program.
• A designated doctor evaluation on October 22, 2002, revealed not only that Claimant was not at maximum medical improvement but also that Claimant needed to proceed with the physical therapy regimen.
• Claimant did not appear to be expending a full rehabilitative effort because of pain, so the one-on-one sessions would have been useful in ensuring he remained faithful to the physical therapy program.
• Because the wrist is a complex joint, the positioning of the wrist and digits during rehabilitation is critical to rehabilitative success.

C. Analysis and Conclusion

The ALJ concludes Carrier carried its burden of proving by a preponderance of the evidence that the more intensive one-on-one physical therapy administered to Claimant, during the disputed dates of service, was not shown to be reasonably calculated to treat Claimant’s injury in a medically necessary and cost effective manner, or that the complexity of the wrist by its very nature called for such therapy. Certainly, special circumstances might support the long-term, intensive use of one-on-one physical therapy to treat such an injury. In fact, both expert witnesses agreed on a number of special circumstances that might require the treating doctor to rely on such an approach:

• At the instructional phase to ensure the patient clearly understands the program’s requirements;
• where special circumstances might support the long-term, intensive use of one-on-one physical therapy to treat such an injury. In fact, the opposing expert witnesses agreed on a number of special circumstances that might require the treating doctor to rely on such an approach;
• where the patient does not cooperate with the prescribed physical therapy regimen when left to do it on his own;
• when the patient does not understand how to perform the required exercises;
• when the patient suffers from impaired abilities making a home therapy program unrealistic;
• when the patient has not improved at the expected rate;
• when the nature of the injury and the complexity of the involved body part demand close supervision; and
• When employed in periodic, followup evaluations.

However, nothing in the evidence indicates-to any significant degree, at least-that one or more of these circumstances played a substantial role in a conscious decision to administer the physical therapy using the intensive one-on-one approach therapy through the period of the disputed services. Dr. Grabois speculated about an instance in which Claimant used his injured wrist when he was not supposed to and that he otherwise experienced pain during therapy. He also testified that the wrist is a complex mechanism and that treatment of wrist injuries involving soft tissue can present significant rehabilitative challenges.

There was little if any direct indication, however, that any such circumstances influenced either Provider or Claimant’s treating doctor in formulating Claimant’s treatment regimen and in its decision to the course of one-on-one therapy through the disputed dates of service. In fact, the ALJ

was concerned about the apparent absence of oversight by the treating doctor to ensure that the physical therapy was being administered consistent with a reasonably calculated plan of treatment. Without some meaningful, concrete evidence tying the intensive, one-on-one therapy to decision-making by the treating doctor based on the presence of one or more special circumstances supporting such an approach, the ALJ can not find the approach either reasonably necessary or cost effective. The evidence indicates, instead, that Provider should have made a more concerted effort to move Claimant to a less intensive, more autonomous treatment program.

Also persuasive was the testimony of Carrier witness Gary Pamplin that a reasonable treatment regimen for the wrist, absent special circumstances, would not consist of regular, one-on-one therapy sessions continuing month after month. Instead, much of the therapy could be transferred to a less intensive setting while maintaining some scheduled one-on-one sessions for evaluation of progress and to ensure exercises were being performed correctly.

Because Carrier proved by a preponderance of the evidence that the regular sessions of one-on-one physical therapy were not shown to be medically necessary after September 23, 2002, the portion of Provider’s claim addressed by the IRO should be denied. Carrier’s challenge to the MRD decision granting reimbursement of $182.00 should also be denied based on Carrier’s failure to present evidence regarding the decision.

III. Findings of Fact

1. Claimant, an injured worker, suffered a compensable injury on ___, when a piece of glass he was installing broke and caused lacerations to tendons, nerves, and an artery in his right wrist and hand.
2. At the time of Claimant’s injury, his employer held workers’ compensation insurance coverage with Texas Mutual Insurance Company (Carrier).
3. Claimant underwent surgical repair of the injury the same day and had an additional surgery to the site in July 2002, following a re-rupture of a tendon.
4. Claimant began post-operative physical therapy treatments with Provider on June 12, 2002. The services included therapeutic exercises, joint mobilization, group therapeutic procedures, paraffin bath therapy, and office visits. Nearly all of the therapy was provided in a one-on-one setting, which continued for months following Claimant’s second surgery in July 2002.
5. Carrier denied reimbursement for services provided from September 23, 2002, to January 10, 2003, as not medically necessary.
6. An Independent Review Organization (IRO) concluded the disputed services were medically necessary. In a fee dispute involving Claimant’s treatment, the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission ordered additional payment for some of the services.
7. Upon receiving the IRO and MRD decisions, Provider challenged both, timely requesting a hearing before the State Office of Administrative Hearings (SOAH).
8. Notice of the hearing was sent to the parties on May 21, 2004. The notice informed the parties of the date, time, and location of the hearing, a statement of the matters to be considered, the legal authority under which the hearing would be held, and the statutory provisions applicable to the matters to be considered.
9. The hearing convened on September 2, 2004, and closed upon the filing of Petitioner’s Amended Table of Disputed Services on November 11, 2004.
10. No special circumstances were demonstrated that would support the use of the disputed one-on-one therapy, such as an uncooperative attitude; a failure to understand the prescribed physical therapy regimen; the existence of impaired abilities that would make a home therapy program unrealistic; or a failure to improve at the expected rate.
11. Neither the nature of Claimant’s injury nor the complexity of the wrist were shown to form the basis for the decision to administer the disputed physical therapy services in a one-on-one setting.
12. The one-on-one physical therapy administered to Claimant during the disputed dates of service were shown to be reasonably calculated to treat Claimant’s injury in a medically necessary and cost effective manner.
13. Carrier failed to present evidence challenging the MRD decision awarding reimbursement of $182.00.

IV. Conclusions of Law

1. SOAH has jurisdiction over this proceeding pursuant to §413.031(k) of the Act and Tex. Gov’t Code Ann. ch. 2003.
2. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§2001.051 and 2001.052.
3. As Petitioner, (Provider) bears the burden of proof in this matter. 28 Tex. Admin. Code (TAC) §148.21(h).
4. Provider failed to prove the disputed physical therapy services were reasonably required by the nature of the claimant’s injury. Tex. Lab. Code Ann. §408.021.
5. The disputed services addressed by the IRO were not medically necessary to treat Claimant’s compensable injury.
6. The services addressed by the MRD were properly billed and should be reimbursed.

ORDER

IT IS ORDERED thatthe reimbursement claim of Work Ready Rehab for physical therapy services provided to Claimant from September 23, 2002, to January 10, 2003, except for those services addressed by the MRD, is denied. Consistent with the MRD Decision and Order, Carrier shall reimburse Provider in the amount of $182.00.

Signed January 10, 2005.

Gary W. Elkins
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS