DECISION AND ORDER

I. INTRODUCTION

After an Independent Review Organization (IRO) reviewer and the Commission’s Medical Review Division determined that physical-medicine treatment was unnecessary for a workers’ compensation claimant, Brian Randall, D. C. (Provider) appealed. The amount in dispute is $4,539.00 for 22 physical-medicine sessions. In this Decision and Order, the Administrative Law Judge (ALJ) sustains the Provider’s appeal in part and orders the Carrier to reimburse the Provider $2,558.00, plus applicable interest.

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact and Conclusions of Law. The hearing convened on December 6, 2004, at the State Office of Administrative Hearings, 300 West Fifteenth Street, Austin, Texas, before the undersigned Administrative Law Judge (ALJ). Attorney Doug Pruett represented the Carrier, Texas Hospital Insurance Exchange; the Provider appeared pro se. The hearing concluded and the record closed the same day.

II. DISCUSSION

A. Background

As a result of a fall on ___, the claimant sustained a right wrist injury that included a Colles’ fracture^[1] and an ulnar-styloid-process fracture. The claimant underwent surgery on May 18, 2001, on the right distal radius. After the open-reduction surgery, the claimant had external fixation, and her right arm was immobilized in a splint.

Follow up x-rays showed that the fracture remained in a satisfactory position. On August 13, 2001, the claimant’s surgeon recommended that she continue with a supervised therapy program. By September 14, 2001, the claimant was able to demonstrate active range of motion

(ROM) and was nearly able to clench her fist. But she had significant apprehension about movement, and her wrist ROM was limited.

In September 2001, the claimant began treatment in the Provider’s office with Marjan Malekzadeh, D.C. Dr. Malekzadeh referred the claimant to Camille George, M.D., who, in turn, prescribed physical therapy with Dr. Malekzadeh. According to Dr. George, the claimant had radial shortening and paresthesias in the right radial sensory nerve. By December 6, 2001, the claimant had not improved, and a subsequent MRI revealed a slightly impacted fracture of the distal metaphysis of the radius. There were also mild degenerative changes.

In March 2002, Dr. George performed a second surgery on the claimant’s wrist, an allograft of the right radius. Five months later, the claimant was diagnosed as having a nonunion of the distal-radial-diaphyseal osteotomy site. In November, Dr. George performed an osteotomy and “take down” of the nonunion.

The claimant continued to experience pain. In early December 2002, Dean Smith, M.D., found a deep wound infection. The claimant was hospitalized for six days, and Dr. Smith performed debridement surgery.

Dr. George subsequently prescribed physical therapy for the claimant, including formal ROM physical therapy, ice, iontophersis (electrical stimulation), and ultrasound. During the next several months, the claimant returned for regular office visits with Dr. George, who continued to write new physical-therapy prescriptions.

On February 4, 2003, the claimant reinitiated her therapy with Dr. Malekzadeh. She complained of constant pain at eight to nine on a one-to-ten scale, was taking antibiotics for an infection of her incision, and had severe muscle atrophy and stiffness. Dr. Malekzadeh decided to begin gentle ROM exercises and passive ROM modalities. On February 14, 2003, the Carrier preauthorized a total of twelve physical-therapy sessions. The Carrier determined that after those sessions, “an appropriate transition to a self-managed progressive home exercise program would be warranted.”^[2]

The Carrier paid for the first twelve physical-medicine sessions, but stopped with the service date of March 19, 2003. There are 22 disputed dates of service: March 19, 21, 24, 26, 28; April 2, 4, 7, 9, 11, 14, 16, 21, 23, 25, 28, 30; and May 2, 7, 9, 12, and 14, 2003. Services included:

97010 hot or cold packs

97014 electrical stimulation

97110 therapeutic exercises

97250 myofascial release

97265 joint mobilization

99212 office visits

On March 20, 2003, Dr. George saw the claimant, and she reported pain and discomfort along the distal-radial-ulnar joint and occasional swelling. She also said she had pain with physical therapy and iontophersis. Even so, Dr. George prescribed continued physical therapy.

A month later, the claimant was evaluated by Dr. Smith. He found no clinical evidence of infection and noted that her right radius appeared to be healing. The forearm was normally aligned; the incision sites were not tender; the claimant had decreased pain; her ROM had increased; and the previous osteotomy site was stable.

Dr. Malekzadeh determined the claimant was at maximum medical improvement on May 7, 2003. The claimant continued to report pain at the distal-radial-ulnar joint, which indicated possible derangement from incorrect distal-radius alignment or from a tear of the triangular fibrocartilage.

In a letter dated May 23, 2003, Dr. Malekzadeh summarized the claimant’s situation. She had undergone three surgeries, and after her last surgery, her hand and forearm were placed in a cast for about three months. According to Dr. Malekzadeh, the claimant experienced radial-sensory-nerve neuropathy that required myofascial release and soft tissue mobilization. In Dr. Malekzadeh’s opinion, the claimant could not do her exercises at home because she did not have appropriate equipment and supplies, and she needed to be observed in order to increase the intensity and duration of her exercises.

B. Provider’s Testimony

The Provider testified that in his office, health care providers follow the surgeon’s recommendations. In this case, the claimant returned to her surgeon every four weeks, and the surgeon prescribed continued physical therapy. Because of this claimant’s complex medical history, e.g., three surgeries, long-term splinting, and the post-surgical infection, it took longer for her to improve.

C. Peer Review

Peer reviewers engaged by Dr. Malekzadeh determined in a review dated June 23, 2003, that the claimant’s physical therapy would have been expected to conclude by May 4, 2003, six months after her third operation. Then, she would have been expected to begin a home exercise program, and six months later, to have reached maximum medical improvement. However, the reviewers also stated, “there is absolutely no justification from a medical standpoint for chiropractic care in this diagnostic problem.”^[3][4]

D. IRO Decision

In the IRO’s opinion, none of Dr. Malekzadeh’s treatment from March 10, 2003, to May 14, 2003, was medically necessary because the Provider’s care did not relieve the effects of the compensable injury, promote recovery, or enhance the employee’s ability to return to work. As for the peer reviewers’ report, the IRO contrasted the statement that treatment would have been expected to conclude by May 4, 2003, with the lack of any characterization of the treatment as medically necessary.

On May 20, 2003, the Carrier specifically denied further physical-therapy preauthorization and determined that office visits every two weeks would be sufficient.^[5]

E. Carrier’s Witness

Samuel M. Bierner, M.D., board-certified physician in physical medicine and in rehabilitation and electrodiagnostic medicine, testified for the Carrier. Dr. Bierner referenced January and February 2003 reports stating that the claimant had superficial drainage at the surgical site. She was prescribed antibiotics on February 4, 2003, and began physical-medicine treatment with the Provider the following day. Dr. Bierner testified that physical therapy can make an infection worse, so it is inappropriate to begin physical therapy when a patient has an infection. Further, in May 2003, Dr. George found a failed screw. In Dr. Bierner’s opinion, the screw failure could have been caused by the claimant’s excessive use of her arm.

From September 20, 2001, through May 14, 2003, the claimant had approximately 88 physical-medicine treatments with the Provider. After the claimant’s third surgery, she was treated with essentially the same exercises as before, and there was no need for them to be completed in a one-on-one setting, Dr. Bierner said. All the exercises were simple and could have been performed at home. Atrophy from immobilization can be treated with regular daily use of the arm, supplemented by at-home exercises. Equipment, such as Therabands, could have been taken home, and ordinary household objects could have been used for weights. In fact, Dr. Bierner testified, there was no evidence that the claimant even used weights when exercising with Dr. Malekzadeh.

Dr. Bierner further criticized Dr. Malekzadeh’s documentation because the number of exercises remained static and the reports did not document objective measurements. In this case, the only change was to add more repetitions of certain exercises.

Moreover, the claimant’s May 29, 2003, functional capacity evaluation (FCE) showed that she could not perform as required by her employer. She was able to do light duty work but was not even released to return to work at that level, Dr. Bierner testified. The FCE shows a pain level of seven with constant pain in the right forearm and wrist. The claimant’s score on the Oswestry Pain Questionnaire suggested a moderately severe disability.^[6] Except for elbow flexion and pronation, the claimant’s ROM and grip strength measurements were significantly lower on the injured right side than on the left, Dr. Bierner noted. She was unable to lift more than 10 pounds from the floor in a safe manner, to lift more than 15 pounds from the waist to the shoulder, and to push and pull more than 25 pounds.

Dr. Bierner contrasted the claimant’s January 21, 2003, ROM measurements with those taken on June 23, 2003: flexion 10 vs. 40; extension 5 vs. 35, ulnar deviation 5 vs. 15, and radial deviation 5 vs. 10.^[7] In Dr. Bierner’s opinion, there was not a dramatic improvement, and the improvement noted did not justify Petitioner’s treatment.

While conceding that ice is an appropriate treatment for edema or swelling, Dr. Bierner said iontophersis and ultrasound were contraindicated because the claimant had a metal plate, myofascial release can worsen a fracture, and heating modalities can worsen an infection and inflammation. Finally, he said the CPT code used for office visits are not intended for daily use.

F. Legal Standard

Pursuant to Tex. Labor Code Ann. § 408.021(a), 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. The employee is specifically entitled to health care 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.

G. Analysis

The ALJ finds that the Provider met its burden of proof on certain points. With three surgeries, the debridement, and several infections, the claimant’s course of treatment was atypically complex. As a result, the ALJ finds that one-on-one physical therapy for a longer period of time that usual was warranted. Primarily based on Dr. George’s prescriptions and the peer reviewers’ report, the ALJ sustains the Provider’s appeal as to physical-therapy modalities, electrical stimulation, and charges for the application of ice through May 4, 2003.

However, the peer reviewers found no chiropractic services should have been used. Indeed, as both the peer review report and Dr. Bierner made clear, chiropractic modalities were contraindicated. Therefore, the ALJ orders no payment for myofascial release or joint mobilization. In addition, the documentation did not support the CPT code charged for office visits (99212). That code requires a record of two of three components: a problem-focused history, a problem-focused examination; and straightforward medical decision making. The daily patient record made by Dr. Malekzadeh includes the claimant’s subjective complaints, a very basic assessment, and a record of the exercises performed. Except for two treatment dates when Dr. Malekzadeh completed long reports (April 14, 2003, and May 9, 2003), her notes fall short of what is required for the charge.

In summary, the ALJ orders payment for the two office visits and for CPT codes 97110 (therapeutic exercise), 97014 (electrical stimulation), and 97010 (cold packs^[8]) for treatment dates through May 4, 2003, and denies any reimbursement for myofascial release and joint mobilization. The reimbursement is calculated as follows:

99212: 2 X $32 = $64

97110: 1X 35 = $35

9 X 105 = $945

8X 140 = $1,120

97014: 16 X $15 = $240

97010: 14 X $11 =$154

Total: $2,558

III. FINDINGS OF FACT

1. As a result of a fall on ___, the claimant sustained a right wrist injury that included a Colles’ fracture and an ulnar-styloid-process fracture.
2. On the date of injury, the claimant’s employer had workers’ compensation insurance with the Carrier, Texas Hospital Insurance Exchange.
3. The claimant underwent surgery on May 18, 2001, on the right distal radius. After the open-reduction surgery, the claimant had external fixation, and her right arm was immobilized in a splint.
4. In March 2002, the claimant had a second surgery to correct a slightly impacted fracture of the distal metaphysis of the radius.
5. Five months later, the claimant was diagnosed as having a nonunion of the distal-radial-diaphyseal osteotomy site. In November 2002, she underwent an osteotomy and “take down” of the nonunion.
6. The claimant continued to experience pain and limited range of motion (ROM).
7. In early December 2002, the claimant was hospitalized for six days and had debridement surgery for a deep wound infection.
8. Beginning in January 2003, the claimant’s surgeon began prescribing formal ROM physical therapy, ice, iontophersis, and ultrasound for her.
9. On February 4, 2003, the claimant, who had already had physical therapy after prior surgeries, reinitiated her therapy at the office of Brian Randall, D.C. (Provider).
10. The Carrier paid for the first twelve physical-medicine sessions, but stopped with the service date of March 19, 2003.
11. There are 22 disputed dates of service: March 19, 21, 24, 26, 28; April 2, 4, 7, 9, 11, 14, 16, 21, 23, 25, 28, 30; and May 2, 7, 9, 12, and 14, 2003.
12. The Provider’s services included:

97010 hot or cold packs

97014 electrical stimulation

97110 therapeutic exercises

97250 myofascial release

97265 joint mobilization

99212 office visits

1. The claimant’s surgeon reevaluated her monthly throughout the time she was receiving therapy, and the surgeon continued to prescribe physical therapy for her.
2. The surgeon did not prescribe myofascial release or joint mobilization, and those modalities were contraindicated for the claimant’s injuries.
3. With three surgeries, the debridement, and several infections, the claimant’s course of treatment was atypically complex.
4. One-on-one physical therapy for a longer period of time that usual was warranted.
5. The claimant’s physical therapy would have been expected to conclude by May 4, 2003, six months after her third operation.
6. A charge for CPT code 99212, an office visit, requires documentation of two of three components: a problem-focused history, a problem-focused examination; and straightforward medical decision making.
7. The daily patient records made by the Provider includes the claimant’s subjective complaints, a very basic assessment, and a record of the exercises performed.
8. Except for two treatment dates, the Provider’s notes do not include two of the three components required in order to charge for CPT code 99212.
9. The claimant’s ROM measurements were taken January 21, 2003, and June 23, 2003. They showed: flexion 10 vs. 40; extension 5 vs. 35, ulnar deviation 5 vs. 15, and radial deviation 5 vs. 10.
10. Even though the claimant did not experience dramatic improvement as a result of the therapy, she did experience some improvement.
11. By decision dated April 5, 2004, an Independent Review Organization (IRO) reviewer determined that none of the Provider’s treatments were medically necessary.
12. On April 12, 2004, the Commission’s Medical Review Division adopted the IRO’s decision, and the Provider timely requested a hearing before the State Office of Administrative Hearings (SOAH).
13. Notice of the hearing was sent to both parties on May 28, 2004.
14. The notice of hearing contained a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
15. The hearing convened on December 6, 2004, and both parties were represented.

IV. CONCLUSIONS OF LAW

1. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to the Texas Workers’ Compensation Act, specifically Tex. Labor Code Ann. §§ 402.073(b) and 413.031(k), and Tex. Gov’t Code Ann. ch. 2003.
2. The hearing request was timely made pursuant to 28 Tex. Admin. Code § 148.3.
3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§2001.051 and 2001.052.
4. The Provider had the burden of proof in this matter. 28 Tex. Admin. Code § 148.21(h).
5. Pursuant to Tex. Labor Code Ann. § 408.021(a), the Provider failed to sustain its burden of proof regarding all but two office visit charges and any charges for joint mobilization and myofascial release.
6. Pursuant to Tex. Labor Code Ann. § 408.021(a), the Provider sustained its burden of proving that two office visits, one-on-one therapeutic exercises, ice, and electrical stimulation were medically necessary.
7. The reimbursement to be paid to the Provider is calculated as follows:

99212:

2 X $32 = $64

97110:

1 X 35 =$35

9 X 105 = $945

8 X 140 = $1,120

97014:

16 X $15 = $240

97010:

14 X $11 = $154

Total: $2,558

ORDER

THEREFORE, IT IS ORDERED that the Provider’s appeal is granted in part and denied in part. The Carrier shall reimburse the Provider the amount of $2,558, plus applicable interest.

Signed February 4, 2005.

SARAH G. RAMOS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. This is a fracture of the lower end of the radius with backward displacement of the lower fragment and radial deviation of the hand at the wrist that produces a characteristic deformity. Merriam Webster’s Medical Dictionary (1995), p. 129.↑
2. Ex. 1, pp. 240-241.↑
3. Ex. 1, p. 409. The pages in Exhibit 1 have two sets of Bates-stamped numbers. The page numbers used in this Decision are those in the center of each page.↑
4. Two persons signed the peer review. One was the medical director of the peer reviewing organization, RehabCorp, Inc., and the other was a physician who is board-certified in orthopaedic surgery.↑
5. Ex. 1, p. 297.↑
6. Ex. 1, pp. 304-309.↑
7. Ex. 1, pp. 220 and 333.↑
8. Dr. Malekzadeh’s record show that cold packs were used, rather than heat.↑