DECISION AND ORDER

This is a dispute over reimbursement for therapeutic and work hardening services performed for an injury suffered by Claimant while in the course and scope of his employment. The Administrative Law Judge (ALJ) concludes some of the therapeutic services should be reimbursed, but no work hardening is entitled to reimbursement.

I. FACTUAL AND PROCEDURAL HISTORY

Claimant suffered a work-related injury to his right shoulder on ___. On August 20, 2002, he visited the Provider, complaining of right shoulder pain and began treatment shortly thereafter. After referral to an orthopedic surgeon, he was diagnosed with a rotator cuff tear and underwent surgery on October 16, 2002. Thereafter, Claimant continued chiropractic treatment and was referred to Provider for work hardening. Claimant received work hardening treatment from January 22, 2003, until March 10, 2003. Following the work hardening program, on April 2, 2003, Claimant received a whole person impairment rating of 10%.

Since this is a joined docket, there are two distinct disputes in this proceeding. The first dispute involves the medical necessity of Provider’s one-on-one therapy (CPT Code 97110). The second dispute is limited to whether adequate documentation exists to support reimbursement of Provider’s work hardening treatment of Claimant (CPT Codes 97545-WH and 97546-WH).

Claiming lack of medical necessity, Carrier denied reimbursement of Provider’s treatment of Claimant involving one-on-one therapy (CPT Code 97110) from October 25, 2002, through January 13, 2003.^[1] Provider filed a timely request for medical dispute resolution (M5-03-3043-01). The Independent Review Organization (IRO) largely agreed with the Carrier, finding that some of the one-on-one therapy was not medically necessary through December 10, 2002. The IRO denied all one-on-one therapy after December 10, 2002 as not medically necessary.

The second dispute involves work hardening. For purposes of this proceeding, Provider treated Claimant through work hardening (CPT Codes 97545-WH and 97546-WH) from January 22,

2003, through March 10, 2003.^[2] Carrier denied reimbursement of all of Provider’s work hardening-related treatment, claiming lack of adequate documentation. Provider filed a timely request for medical dispute resolution (M4-03-7475-01). The Medical Review Division (MRD) agreed with the Carrier and recommended no reimbursement of the Provider for work hardening treatments.

Provider filed timely requests for hearing before the State Office of Administrative Hearings (SOAH) on April 26, 2004 (M4-03-7475-01) and May 10, 2004 (M5-03-3043-01). The Texas Worker’s Compensation Commission issued notices of hearing in these matters on June 1, 2004 (M4-03-7475-01) and June 9, 2004 (M5-03-3043-01). On August 24, 2004, SOAH joined the two dockets. A joined hearing was held on November 4, 2004, before ALJ Travis Vickery. Provider and Carrier participated in the hearing, which was adjourned the same day. The record closed on January 7, 2005.

II. DISCUSSION

A. Medical Necessity of One-on-One Therapy

The initial dispute is whether Provider’s one-on-one treatments were medically necessary. The description for CPT Code 97110 reads:

Therapeutic procedure, one or more areas each 15 minutes; therapeutic exercises to develop strength and endurance, range of motion and flexibility^[3]

Osler Kamath, D.C. (Claimant’s treating doctor), testified that within ten days of the October 16, 2002, surgery, the Claimant was engaged in one-on-one therapy. Dr. Kamath argued that one-on-one treatment was called for because the Claimant had only recently received surgery; such treatment is more effective and develops better results than group therapy; and there were documented improvements in range of motion, strength, function and pain management. Dr. Kamath correctly pointed out that the code description specifically includes increased range of motion and strengthening as goals.

The Carrier contends that once a patient has learned the exercise regimen, one-on-one exercise is only necessary for instruction, to assure the safety of the patient, to progress the exercise program to another level, or to monitor response to exercise. According to the Carrier, none of those factors exist here.

There is evidence that the Claimant experienced physical and emotional pain after the surgery. It appears that both parties agree that pain management may support one-on-one therapy. The Carrier admits that one-on-one therapy is justified to monitor response to exercise. It seems obvious that such responses would include recording and adjusting the exercises to the Claimant’s pain. While the ALJ agrees with Dr. Kamath regarding the necessity, and in this instance, positive

results of some one-on-one therapy, that need may not justify constant one-on-one attention.

The ALJ is also cognizant that one-on-one therapy has its limits once the patient has learned appropriate exercise form and routine.^[4] Indeed, Dr. Kamath admitted that one of the goals of one-on- one therapy is to progress the Claimant towards independence. There is no bright-line rule on such limits and within general constraints, such limits vary as need dictates.

The Provider conducted 140 units, or approximately 35 hours, of one-on-one treatment pre-surgery. Under cross examination, Dr. Kamath admitted that post-surgery one-on-one therapy consisted of the same exercises that comprised the Claimant’s 140 units of pre-surgery therapy. Obviously, the Claimant knew how to perform the exercises by October 25, 2002. Yet, the surgery itself justifies some one-on-one therapy to monitor pain, to move Claimant back to full functionality as soon as possible and to insure that any post-surgical complications are not exacerbated by the exercises.

A review of the consolidated table of disputed services reveals that from October 25, 2002, through November 13, 2002, the Carrier reimbursed the Provider for two units of one-on-one therapy each day. Thereafter, except for November 15, 2002, the Carrier appears to have reimbursed the Provider for at least one unit for each date of service from November 19, 2002, through

January 13, 2003.

The ALJ finds that for Claimant’s first three visits after surgery, a total of 4 units of one-on-one therapy was appropriate for this particular Claimant. The Claimant obviously knew how to perform the exercises, but experienced both physical and emotional pain after surgery. Together with the impact of the surgery on the Claimant’s ability to perform the exercises, the pain justifies attention beyond the average claimant. This analysis is limited to the facts of this case.

After the first week, the Claimant should have begun to work toward independence with a commensurate reduction in the amount of time a therapist needed to attend to him one-on-one. In addition, the Claimant’s familiarity with the exercises should have allowed him to conduct them in group therapy or at home. To the extent that Claimant was still dealing with pain and post-surgical adjustment, two units of one-on-one therapy through November 13, 2002, should have been adequate for that purpose. Likewise, a reduction to one unit of one-on-one therapy from November 15, 2002, through January 13, 2003, is justified. The Claimant knew the exercises and pain management well-enough thereafter to provide feedback to the Provider, and Provider’s supervision of the Claimant’s exercise regimen should have been fairly limited.

The ALJ agrees that Carrier has shown that the majority of disputed services billed under CPT Code 97110 were not medically necessary for Claimant between November 15, 2002 and January 13, 2003. Because Claimant was motivated, cooperative, properly performing his exercises and was progressing, he should have been able to perform his exercises on his own at home or as part of a group at Provider’s office, and should not have needed Provider’s extensive one-on-one attention beyond an initial post-surgery monitoring and pain management phase.

The ALJ concludes that Provider is entitled to recover an additional two units of one-on-one therapy (billed under CPT Code 97110) for each of the following dates of service in issue: October 25, 28 and 30, 2002.^[5] This is a total of 6 units at a reimbursement of $35 per unit, for a total reimbursement of $210 for services billed under CPT Code 97110 through January 13, 2003. Otherwise, Petitioner is not required to reimburse any other services billed under CPT Code 97110 through January 13, 2003.

Documentation for Work Hardening

It is undisputed that work hardening was medically necessary. The parties stipulated at the hearing that a finding that the documentation was inadequate is fatal to Provider’s recovery for work hardening.

For purposes of this proceeding, the Claimant received work hardening treatment from January 22, 2003, through March 10, 2003. The applicable Medicine Ground Rules describe work hardening as:

A highly structured, goal-oriented, individualized treatment program designed to maximize the ability of the persons served to return to work. Work hardening programs are interdisciplinary in nature with a capability of addressing the functional, physical, behavioral, and vocational needs of the injured worker . . . [w]ork hardening programs use real or simulated work activities in a relevant work environment in conjunction with physical conditioning tasks . . .^[6]

The documentary requirements include:

1. Program supervision is provided by a licensed physical or occupational therapist or by a doctor. The program supervisor shall:
2. write the treatment plan for the patient and write changes to the plan based on documented changes in the patient’s condition;
3. Daily treatment and patient response to treatment shall be documented and reviewed to ensure continued progress.^[7] (Emphasis added.)

Read together, the mandatory documentary requirements are: 1) a written, individualized, interdisciplinary treatment plan that outlines and includes “real or simulated work activities in a relevant work environment;” 2) documents reflecting daily treatment that should match the treatment plan; and 3) documents reflecting the patient’s response to treatment and any “changes to

the plan based on documented changes in the patient’s condition.”

The Carrier denied Provider reimbursement for all work hardening, stating that documentation was inadequate. The Medical Review Division (MRD) agreed with the Carrier and recommended no reimbursement of the Provider for work hardening treatments, stating:

Requestor submitted documentation indicating support for general therapy, but does not identify an individualized treatment plan that includes real or simulated work activities in a relevant work environment or response to treatment to ensure continued progress . . .^[8] (Emphasis added.)

In response, Dr. Kamath testified in direct and cross-examination that Provider’s Exhibit 3 contained work hardening documentation. Dr. Kamath pointed out that the three Functional Capacity Evaluations (FCE) satisfied the documentation requirement for an individualized treatment plan and partly for documented responses to treatment. The first FCE on January 15, 2003, established Claimant’s baseline. At that time, the Claimant failed to even qualify for the lowest physical demand category found in the Dictionary of Titles. The Claimant progressed to a “sedentary” level by the second FCE on February 4, 2003. As of the third FCE on February 28, 2003, the Claimant had achieved the Alight” physical demand category.^[9] The ultimate goal was a “medium” category of physical demand.

The Provider admits there was no document entitled “treatment plan,” and points to the initial FCE conducted for the Claimant as the treatment plan. But establishing a baseline for Claimant’s condition and potential improvement is not the same as establishing an individual treatment plan as contemplated by the rules. The treatment plan must be written, not inferred from circumstances, and must contain an interdisciplinary and individualized approach to the Claimant’s condition and work duties. The plan is the template for exercises the Claimant will perform and the yardstick by which all work hardening is measured. Without it, the propriety of the exercises are unknown and the Claimant’s response, progress and corresponding changes to the plan are anchorless.

The Carrier’s expert witness, Dr. David Alvarado, testified that in spite of Dr. Kamath’s reference to the initial FCE, there was no evidence of a treatment plan. The ALJ agrees that Provider failed to meet its burden in this regard. It may be obvious that Claimant was injured, underwent treatment including surgery, was referred for work hardening (which the parties agree was medically necessary) and showed progress throughout, but there is no written treatment plan for work hardening as required by the rules. As the failure to develop a written treatment plan undermines the entire work hardening program, the Provider may not recover for any work hardening. The Provider is not entitled to reimbursement for work hardening.

The ALJ’s decision is also supported by the lack of documents reflecting Claimant’s response to treatment. The ALJ agrees that the Provider failed to meet its burden in this regard.

Going back to the need for a written treatment plan, the Provider must produce documents reflecting Claimant’s response to treatment as dictated by the plan and any changes to the plan as a result of Claimant’s progress or otherwise. While the ALJ agrees that two FCEs and weekly meeting notes are some evidence of Claimant’s response to treatment, in this particular case they do not satisfy the Provider’s burden. It cannot be stressed enough that progress should be measured against the goals set in the written treatment plan, and there appears to be nothing of the sort here. Furthermore, while weekly interdisciplinary meetings may satisfy this documentary requirement in other cases, the documents submitted by Provider in this case are inadequate.^[10]

In conclusion, the ALJ finds that Provider is entitled to additional reimbursement of $210, for services billed under CPT Code 97110. Carrier is ordered to reimburse Provider for this amount. In support of this determination, the ALJ makes the following findings of fact and conclusions of law.

III. FINDINGS OF FACT

1. Claimant ___suffered compensable, work-related injuries to his right shoulder on ___.
2. Texas Mutual Insurance Company (Carrier) is the provider of workers’ compensation insurance covering Claimant for his compensable injury.
3. On August 20, 2002, Claimant first visited Provider and received treatment until

March 10, 2003, followed by an April 2, 2003, medical examination.

1. Carrier declined to reimburse certain of Provider’s treatments, contending that they were not medically necessary or were inadequately documented.
2. Based on the Consolidated Table of Disputed Services, the total amount in dispute is $23,906.30. The disputed services involve one-on-one therapy (CPT Code 97110) and work hardening (CPT Codes 97545 and 97546).
3. Provider sought medical dispute resolution through the Texas Workers’ Compensation Commission (Commission).
4. There were two dispute resolution reviews. The one-on-one treatment matter was referred to an IRO designated by the Commission for the review process, while MRD reviewed work hardening.
5. The IRO determined that some of the one-on-one therapy was not medically necessary through December 10, 2002. The IRO denied all one-on-one therapy after December 10, 2002 as not medically necessary.
6. The Medical Review Division (MRD) reviewed work hardening and agreed with the Carrier recommending no reimbursement to the Provider for work hardening treatments.
7. Provider requested a hearing before the State Office of Administrative Hearings (SOAH).
8. The Texas Worker’s Compensation Commission issued notices of hearing in these matters on June 1, 2004 (M4-03-7475-01) and June 9, 2004 (M5-03-3043-01).
9. On June 1, 2004, notice of the hearing in SOAH Docket No. 453-04-5795.M4 was sent to all parties by the Commission.
10. On June 9, 2004, notice of the hearing in SOAH Docket NO. 453-04-6005.M5 was sent to all parties by the Commission.
11. On August 24, 2004, the two dockets were joined and notice of the joined hearing was sent to all parties by SOAH.
12. The hearing convened on November 4, 2004, with ALJ Travis Vickery presiding. Provider appeared telephonically through its attorney, Scott Hilliard. Carrier appeared through its attorney, R. Scott Placek. The hearing concluded and the record closed on January 7, 2005.
13. No parties objected to notice or jurisdiction.
14. Two additional units of one-on-one therapy (CPT Code 97110) on October 25, 28 and 30, 2002, were reasonable and medically necessary for treatment of Claimant’s compensable injury. This is a total of six units at a reimbursement of $35 per unit, for a total reimbursement of $210.
15. No additional one-on-one treatments were medically necessary for Claimant.
16. Provider failed to adequately document work hardening treatment for Claimant.

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. §413.031(k), and Tex. Gov’t Code Ann. ch. 2003.
2. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001 and 28 Tex. Admin. Code ch. 148.
3. The request for a hearing was timely made pursuant to 28 Tex. Admin. Code § 148.3.
4. Adequate and timely notice of the hearing was provided according to Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
5. Provider has the burden of proof. 28 Tex. Admin. Code §§ 148.21(h) and 133.308(w).
6. Provider has shown, by a preponderance of the evidence, that 6 total units of treatment
7. provided to Claimant and billed under CPT Code 97110 were medically necessary for treatment of Claimant’s compensable injury.
8. Provider has not shown, by a preponderance of the evidence, that the services provided to Claimant and billed under CPT Codes 97545 and 97546 were adequately documented.
9. Carrier is liable to Provider for a total reimbursement of $210 for services billed under CPT Codes 97110.

ORDER

Texas Mutual Insurance Company shall reimburse Main Rehab & Diagnostic a total of $210 for the services in dispute in this proceeding.

Signed March 8, 2005

TRAVIS VICKERY
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Evidence and the consolidated table of disputed services reflect other services and reimbursements that were disputed, but for various reasons are not in dispute in this proceeding.↑
2. Once again, evidence and the consolidated table of disputed services reflect other services and dates. These dates are taken from the consolidated table of disputed services and the parties’ stipulations at the hearing.↑
3. 1996 Texas Worker Compensation Commission Medical Fee Guideline, Medicine Ground Rules II. E

p. 59.↑

4. Texas Mutual Insurance Company v. Central Dallas Rehab., Docket 453-04-4750.M5.↑
5. The consolidated table of disputed services reflects that on those dates, the Carrier did not appeal as to 2 units of one-on-one therapy.↑
6. 1996 Texas Worker Compensation Commission Medical Fee Guideline, Medicine Ground Rules I. E

p. 37.↑

7. 1996 Texas Worker Compensation Commission Medical Fee Guideline, Medicine Ground Rules II. E

p. 38.↑

8. Provider’s Exhibit 4, pages 3-4.↑
9. Although Dr. Kamath testified that the third FCE occurred on February 28, 2003, it appears from the records that the actual date was February 27, 2003.↑
10. See Provider’s Exhibit 3 at p.147 for an example.↑