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Title: 

453-04-5800-m5

Date: 

February 4, 2005

Type: 

Retrospective Medical Necessity

453-04-5800-m5

DECISION AND ORDER

Texas Mutual Insurance Company (Texas Mutual) and Main Rehab & Diagnostic (Main Rehab) each requested a hearing to contest an Independent Review Organization (IRO) decision, made on behalf of the Texas Workers= Compensation Commission (Commission), regarding certain treatments/services that Main Rehab provided to an injured worker (Claimant), including therapeutic exercise, office visit, joint mobilization, myofascial release, manual traction, range of motion (ROM) measurements, and MT muscle testing. The IRO concluded that some, but not all, of the treatments/services were medically necessary. The Administrative Law Judge (ALJ) concludes that Texas Mutual should pay for some of the procedures the IRO said were medically necessary and none of the procedures the IRO said were unnecessary.

I. PROCEDURAL HISTORY

A hearing convened on December 6, 2004, before the undersigned ALJ at the State Office of Administrative Hearings (SOAH), Austin, Texas. Texas Mutual appeared and was represented by its attorney, R. Scott Placek. Main Rehab appeared and was represented by its attorney, Scott C. Hilliard. The hearing record remained open for Main Rehab to submit deposition testimony from its expert, Osler Kamath, D.C. SOAH received the deposition on December 9, 2004, and the hearing closed on that date.

II. DISCUSSION

FACTUAL AND LEGAL BACKGROUND TO REQUEST

The Claimant sustained an at-work injury on ___, lifting and carrying a 100-plus pound object. He immediately experienced sharp pain. He presented to Main Rehab on April 22, 2003. He had already undergone about two weeks of mostly passive care beginning on March 17, 2003, with Permanent, Inc., d/b/a Solutions in Therapy.[1] His treating doctor at Main Rehab was Robert L. Bedford, D.C. His complaints included constant neck and back pain referring to the left arm and left upper extremeties. His condition was: 722.0 cervical disc displacement/herniation; 953.0 injury to cervical nerve root; 739.2 segmental dysfunction, thoracic region; 782.0 disturbance of skin sensation; and 728.85 spasm of muscle, according to Dr. Bedford.

The following treatments/services, beginning on April 23, 2003, and ending on July 16, 2003, are disputed:

  • CPT code 97265 (joint mobilization) on April 23, 28, 29 and 30; May 6; and June 3, 10, 11, 12, 16, 17, 18, 25, 26, and 30;
  • CPT code 97110 (therapeutic exercise) on April 23, 28, 29, and 30; May 2, 6, 8, 9, 19, 20, 22, 23, 27, 28, 29, and 30; June 3, 4, 5, 6, 10, 11, 12, 16, 17, 18, 25, 26, and 30; and July 1, 2, 3, 7, 8, 10, 14, and 16;
  • CPT code 99213 (office visit) on June 3, 10, 11, 12, 16, 17, 18, 25, 26, and 30; and July 1, 2, 3, 7, 8, 10, 14, and 16;
  • CPT code 97250 (myofascial release) on June 3, 10, 11, 12, 16, 17, 18, 25, 26, and 30;
  • CPT code 97122 (manual traction) on June 3, 10, 11, 12, 16, 17, 18, 25, 26, and 30; and
  • CPT code 95851 (developmental testing) on June 11.[2]

The IRO doctor concluded that services from April 23, 2003, through June 12, 2003, were medically necessary and that services after June 12, 2003, were unnecessary. He/she said:

The records indicate the patient underwent an aggressive passive and active therapy and rehabilitation program. National Treatment Guidelines allow for this type of treatment for injuries of this nature. However, there are no National Treatment Guidelines that allow for the intensive treatment program this patient received. Normal treatment guidelines allow for up to two to four weeks of passive therapy with a progression into an active therapeutic rehabilitation program for six to eight weeks. This patient’s treatment program exceeded the normal recommended National Treatment Guidelines.

Therefore, all treatment in the form of therapeutic exercise, office visits/outpatient, joint mobilization, myofascial release, manual traction therapy, ROM measurements, and MT muscle testing up to and including date of service of 06/12/03 was, in fact, reasonable, usual, customary and medically necessary for the treatment of this patient’s injury. However, all treatment which included therapeutic exercises, office visits/outpatient, joint mobilization, myofascial release, manual traction, ROM measurements, and MT muscle testing after 06/12/03 was NOT medically necessary for the treatment of this patient’s injury. (Capitals in original.)[3]

MRD also denied five units of CPT code 97265 (joint mobilization) billed from April 23, 2003, through May 6, 2003, based on its conclusion that Main Rehab failed to submit documentation proving that it actually performed the services. In issuing that decision, MRD said joint mobilization was not global to any other service billed on the dates it was performed.[4]

Employees hve a right to necessary health care under Tex. Labor Code Ann.”408.021 and 401.011. Section 408.021(a) provides AAn 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: A(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. Section 401.011(19) of the Labor Code provides that health care includes “all reasonable and necessary medical . . . services.”

Texas Mutual has the burden of proving that the services performed from April 23, 2003, through June 12, 2003, were medically unnecessary. Main Rehab has the burden of proving that services performed after June 12, 2003, were medically necessary. 1 Tex. Admin. Code (TAC) ‘155.41; 28 TAC ‘148.21(h).

B. EVIDENCE AND ANALYSIS

The analysis of this case falls into two divisions: treatments/services performed before and after the time normally allowed in treatment guidelines; and passive and active care.

Reasonable Time for Treatments/Services

The ALJ concludes that treatments/services provided after the period allowed in normal treatment guidelines were not medically necessary. According to the IRO doctor, up to four weeks of passive care and eight weeks of active care are ordinarily considered medically necessary. Evidence from the IRO doctor and Texas Mutual expert David Alvardo, D. C., persuasively indicated that treatments/services after that period were not justifiable.

Other expert opinion evidence did not prove that ordinary time limits should be exceeded. Athough Dr. Bedford’s notations indicated the Claimant was improving and Main Rehab argued that the Claimant’s ROM showed he had improved,[5] the weight of evidence was against a conclusion that the Claimant improved under Dr. Bedford’s care. In a consultation written on July 9, 2003, shortly before the last disputed date of service, Christopher Pratt, D.O., P.A., wrote that the Claimant Ahas failed conservative therapy including anti-inflammatories, analgysics, the tincture of time, and physical therapy.[6] Another physician, Shawn Henry, D.O., agreed with Dr. Pratt. Dr. Henry wrote the following on September 25, 2003:

He has been treated so far with physical therapy, in which he is taking this four days a week for about four months now. He also has had epidural steroid injections. He has been treated with anti-inflammatory medications, muscle relaxers and pain medications. None of this has helped him so far. On a visual analog scale he rates his neck pain at about an 8, arm pain at 7.

This evidence shows there was no reason to continue the Claimant’s treatment beyond normal time protocols. Main Rehab argued that the Claimant’s continued pain could have been due to referred pain resulting from untreated carpal tunnel syndrome or a disc bulge. However, there was no expert opinion evidence directly supporting those theories. The most persuasive expert opinion evidence was that Dr. Bedford’s treatment/services had not helped the Claimant.

The ALJ finds Dr. Alvarado’s testimony persuasive that, for the purpose of determining the usual time protocols, the Claimant’s care began on March 17, 2003, when he received approximately two weeks of care at Permanent, Inc., d/b/a Solutions in Therapy. There was no evidence or argument to the contrary. The ALJ, therefore, finds Dr. Alvarado’s testimony persuasive that two weeks of passive care and six weeks of active care on and after April 23, 2004, would have been a justifiable time period for treatment. Two weeks from and including April 23, 2003, is May 6, 2003. Six weeks from and including April 23, 2003, is June 3, 2003.

Passive Care

Main Rehab provided the Claimant five units of passive care, joint mobilization (CPT code 97265),[7] beginning on April 23, 2003, and ending on May 6, 2003. Based on the ordinary time limits for passive care, the ALJ concludes that Texas Mutual should pay for these services.

Texas Mutual said these procedures were global to office visit charges when it denied payment. However, MRD said joint mobilization was not global to any other service billed on the dates it was charged. Dr. Alvarado conceded that CPT code 99213, under which the office visit was charged, does not even require physical therapy, according to the American Medical Association code description. Only two of the following elements are required: an expanded history; an expanded examination; and decision making of low to moderate complexity. Dr. Alvarado also acknowledged that applicable evaluation and management guidelines provide that a doctor may be reimbursed separately from an office visit if he/she performs andinterprets applicable testing.

MRD concluded there was no documentation to support the delivery of these services.[8] However, Main Rehab cited records showing the services were delivered.[9]

Overall, the ALJ concludes that Texas Mutual should pay for joint mobilization on April 23, 28, 29, and 30, and May 6, 2003. The ALJ concludes that Texas Mutual should not be required to pay for any passive care after May 6, 2003, the end of the usual treatment time for passive care, including joint mobilization, myofascial release, or manual traction.

  1. Active Care
  2. The active treatments/services at issue from April 23 through June 3, 2003, are seventeen sessions of therapeutic exercise. On each of those dates, Texas Mutual paid for some, but not all of the units charged.[10] On each date, Main Rehab charged five units, or 75 minutes. For dates immediately following April 23, Texas Mutual generally paid for two units, or 30 minutes, although it paid for only one unit on May 2 and paid for four units on May 9. Beginning on May 19 through June 3, it began paying for one unit only. It did not pay for any units after June 3.[11]

The LJ concludes that Texas Mutual should pay for some, but not all, of the extra units charged based on Dr. Kamath’s testimony that the exercises could very well have taken seventy-five minutes if the Claimant was in pain or experiencing dizziness from the exercises.[12] Dr. Kamath said the exercises can be Aquite challenging for patients with neck injuries.[13] His testimony was in response to questioning by Texas Mutual’s counsel concerning the reason Main Rehab always charged for five units even though the number of repetitions varied greatly, from 135 to 315.[14] Dr. Kamath explained that the first set of exercises, with 315 repetitions on April 23, 2003, could easily have taken longer than seventy-five minutes, although Dr. Bedford charged for only five units.[15]

Based on the following factors, the ALJ concludes that Texas Mutual proved that therapeutic exercises provided on and after May 6, 2003, were medically unnecessary: Dr. Alvarado’s testimony that the exercises should not have taken seventy-five minutes to perform was more persuasive for exercises on and after that dateBhe said the exercises were simple head movements and that virtually the same exercises were performed at each session; beginning on May 6, 2003, and continuing for most of the dates of service through June 3, 2003, Dr. Bedford did not even say what exercises he performed or the number of repetitions;[16] and beginning on April 30, 2003, Dr. Bedford began to record that the Claimant was improving.[17] For therapeutic exercises performed on and after May 6, the preponderant evidence supports the reasonableness of the number of units paid by Texas Mutual, which Dr. Alvarado and Mr. Herbowy characterized as more than sufficient.[18]

Overall, Texas Mutual should pay for the additional therapeutic exercise charges under CPT code 97110 on April 23, 28, 29, and 30, and May 2. Texas Mutual should not be required to pay additional amounts for therapeutic exercises after May 2.

Other Care

Texas Mutual continued to pay for some units of therapeutic exercises until June 3. It failed to prove that an office visit on that date was unnecessary to provide in conjunction with the therapeutic exercises it paid for.

Texas Mutual stopped paying for all services after June 6. Because treatments/services after June 3 were beyond the usual treatment time limits, they were shown to be medically unnecessary.

III. FINDINGS OF FACT

  1. An injured worker (Claimant) sustained an at-work injury on ___, while lifting and carrying an object weighing more than 100 pounds.
  2. Immediately following the injury, the Claimant experienced sharp pain.
  3. The Claimant presented to Main Rehab & Diagnostic (Main Rehab) on April 22, 2003, after having undergone about two weeks of mostly passive care beginning on March 17, 2003, administered by another provider.
  4. The Claimant’s treating doctor at Main Rehab was Robert L. Bedford, D.C.
  5. The Claimant’s complaints included constant pain in the neck and back, referring to the left arm and left upper extremeties.
  6. The Claimant’s condition was: 722.0 cervical disc displacement/herniation; 953.0 injury to cervical nerve root; 739.2 segmental dysfunction, thoracic region; 782.0 disturbance of skin sensation; and 728.85 spasm of muscle.
  7. The disputed treatments/services began on April 23, 2003, and ended on July 16, 2003. The following procedures are disputed:
  8. CPT code 97265 (joint mobilization) on April 23, 28, 29 and 30; May 6; and June 3, 10, 11, 12, 16, 17, 18, 25, 26, and 30;
  9. CPT code 97110 (therapeutic exercise) on April 23, 28, 29, and 30; and May 2, 6, 8, 9, 19, 20, 22, 23, 27, 28, 29, and 30; June 3, 4, 5, 6, 10, 11, 12, 16, 17, 18, 25, 26, and 30; and July 1, 2, 3, 7, 8, 10, 14, and 16;
  10. CPT code 99213 (office visit) on June 3, 10, 11, 12, 16, 17, 18, 25, 26, and 30; and July 1, 2, 3, 7, 8, 10, 14, and 16;
  11. CPT code 97250 (myofascial release) on June 3, 10, 11, 12, 16, 17, 18, 25, 26, and 30;
  12. CPT code 97122 (manual traction) on June 3, 10, 11, 12, 16, 17, 18, 25, 26, and 30; and
  13. CPT code 95851 (developmental testing) on June 11.
  1. Main Rehab requested medical dispute resolution after the Claimant’s employer’s workers= compensation insurer, Texas Mutual Insurance Company (Texas Mutual), denied Main Rehab’s claim for the services.
  2. The IRO doctor concluded that services from April 23, 2003, through June 12, 2003, were medically necessary and that services after June 12, 2003, were unnecessary.
  3. The Texas Workers’ Compensation Commission Medical Review Division (MRD) denied Main Rehab’s request for reimbursement for joint mobilization services provided from April 23, 2003, through May 6, 2003, based on its conclusion that Main Rehab did not submit documentation proving that it provided those services.
  4. It is undisputed that Main Rehab and Texas Mutual requested a hearing before the State Office of Administrative Hearings not less than 20 days after receiving notice of the MRD decision.
  5. All parties received not less than 10 days= notice of the time, place, and nature of the hearing; the legal authority and jurisdiction under which the hearing was to be held; the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
  6. All parties had an opportunity to respond and present evidence and argument on each issue involved in the case.
  7. Normal and customary times for treating an injury like the Claimant’s are two to four weeks for passive care and six to eight weeks for active care.
  8. Four weeks of passive care ended on May 6, 2003, and eight weeks of active care ended on June 3, 2003.
  9. The Claimant’s care under Main Rehab failed.
  10. There was insufficient reason to continue the Claimant’s care after the normal times for treating the Claimant’s injury.

Passive Care

  1. The disputed passive care services from April 23, 2003, through May 6, 2003, were five joint mobilization procedures.
  2. The five joint mobilization procedures provided by Main Rehab from April 23, 2003, through May 6, 2003, were not global to any other service.
  3. Main Rehab provided documentation to MRD showing that it provided joint mobilization from April 23, 2003, through May 6, 2003.
  4. The joint mobilization procedures provided by Main Rehab from April 23, 2003, through May 6, 2003, were during the usual time period for providing passive care.
  5. The joint mobilization procedures provided by Main Rehab from April 23, 2003, through May 6, 2003, were reasonably required by the nature of the Claimant’s injury.
  6. None of the passive care, including joint mobilization, manual traction, and myofascial release, provided by Main Rehab after May 6, 2003, was reasonably required by the nature of the Claimant’s injury.

Active Care

  1. Texas Mutual paid for some, but not all, of the seventeen sessions of therapeutic exercise Main Rehab provided from and after April 23, 2003.
  2. Main Rehab charged five units of service, or seventy-five minutes, for each session of therapeutic exercise.
  3. For the dates immediately following April 23, 2003, Texas Mutual generally paid for two units, or 30 minutes, on the disputed dates of services, although it paid for only one unit on May 2, 2003, and paid for four units on May 9, 2003.
  4. Beginning on May 19 through June 3, 2003, Texas Mutual began paying for only one unit of therapeutic exercise.
  5. Texas Mutual did not pay for any of therapeutic exercise sessions after June 3, 2003.
  6. Some, but not all, of the units of therapeutic exercise Texas Mutual did not pay for were reasonably required by the nature of the Claimant’s injury.
  7. In some of the sessions, the exercises could have taken seventy-five minutes if the Claimant was in pain or experiencing dizziness from the exercises.
  8. The exercises cn be Aquite challenging for patients with neck injuries.
  9. Some of the sets of exercises could have taken longer than the seventy-five minutes charged.
  10. All of the units of therapeutic exercise provided through May 2, 2003, were reasonably required by the nature of the Claimant’s injury.
  11. Therapeutic exercises provided on and after May 6, 2003, were not reasonably required by the nature of the Claimant’s injury.
  12. The therapeutic exercises after that date should not have taken seventy-five minutes to perform;
  13. The therapeutic exercises were simple head movements and virtually the same exercises were performed at each session;
  14. Beginning on May 6, 2003, and continuing for most of the dates of service through June 3, 2003, Dr. Bedford did not record what exercises he performed or the number of repetitions;
  15. Beginning on April 30, 2003, the Claimant began to improve.
  16. For therapeutic exercises performed on and after May 6, 2003, the amount paid by Texas Mutual was reasonable.
  17. Overall, Texas Mutual should pay for the additional therapeutic exercise units charged under CPT code 97110 on April 23, 28, 29, and 30 and May 2, 2003, but not otherwise.

Other treatments/services

  1. Texas Mutual continued to pay for at least one unit of therapeutic exercise until June 6, 2003.
  2. There was insufficient evidence to prove that an office visit on June 3, 2003, was unnecessary to provide in conjunction with the therapeutic exercises Texas Mutual paid for after that date.
  3. Treatments/services after June 3, 2003, were not reasonably required by the nature of the Claimant’s injury.

III. CONCLUSIONS OF LAW

  1. 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 Tex. Lab. Code Ann. ‘ 413.031(k) and Tex. Gov’t. Code Ann. ch. 2003.
  2. Main Rehab has the burden of proving that the treatments/services it provided to the Claimant after June 12, 2003, were reasonably required by the nature of the Claimant’s injury. 1 Tex. Admin. Code (TAC) ‘ 155.41; 28 TAC ‘ 148(h).
  3. Texas Mutual has the burden of proving that the treatments/services provided from April 23, 2003, through June 12, 2003, were not reasonably required by the nature of the Claimant’s injury. 1 Tex. Admin. Code (TAC) ‘ 155.41; 28 TAC ‘ 148(h).
  4. Notice of the hearing was proper and timely. Tex. Govt. Code Ann. ” 2001.051 and 2001.052.
  5. Texas Mutual failed to prove that joint mobilization services provided from April 23, 2003, through May 6, 2003, were not reasonably required by the nature of the Claimant’s injury. Tex. Lab. Code Ann. ‘ 408.021(a).
  6. Texas Mutual failed to prove that the units of therapeutic exercise it did not pay for that Main Rehab provided from April 23, 2003, through May 2, 2003, were not reasonably required by the nature of the Claimant’s injury. Tex. Lab. Code Ann. ‘ 408.021(a).
  7. Texas Mutual failed to prove that an office visit provided by Main Rehab on June 3, 2003, was not reasonably required by the nature of the Claimant’s injury. Tex. Lab. Code Ann. ‘ 408.021(a).
  8. The preponderant evidence showed that all disputed treatments/services, other than the ones described in Conclusions of Law Nos. 5 through 7, were not reasonably required by the nature of the Claimant’s injury. Tex. Lab. Code Ann. ‘ 408.021(a).
  9. Texas Mutual should be required to pay for the treatments/services described in Conclusions of Law Nos. 5 through 7.
  10. Texas Mutual should not be required to pay for any other disputed treatments/services.

ORDER

IT IS THEREFORE ORDERED that Texas Mutual Insurance Company pay Main Rehab & Diagnostic for disputed joint mobilization services provided from April 23, 2003, through May 6, 2003, for disputed units of therapeutic exercise provided from April 23, 2003, through May 2, 2003, and a disputed office visit provided on June 3, 2003.

IT IS ORDERED FURTHER that Texas Mutual Insurance Company is not required to pay for any of the other disputed services.

Signed February 4, 2005.

JAMES W. NORMAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. Ex. 3 at 331.↑
  2. This list is based on Main Rehab’s “Table of Disputed Services” contained in Ex. 1 at 4-8. At the hearing, the parties agreed to use that table as showing the services at issue.↑
  3. Ex. 2 at 7.↑
  4. Ex. 2 at 4. Texas Mutual had denied joint mobilization as being global to office visits.↑
  5. A statement from physical therapist Scott Herbowy indicated the Claimant’s ROM probably improved by virtue of the simple passage of time. Ex. 3 at 358.↑
  6. Ex. 2 at 8. By contrast, Dr. Bedford wrote on July 14, 2003, and July 28, 2003, that the Claimant was making “good progress.” Ex. 2 at 66.↑
  7. Joint mobilization consists of applying pressure to the plane of the joint in order to move the bones of the joint.↑
  8. Ex. 2 at 4.↑
  9. Ex. 1 at 158, 160, 162, 164, and 168.↑
  10. Each unit equals fifteen minutes of treatment.↑
  11. Ex. 1 at 4-5.↑
  12. Dr. Kamath testified for Main Rehab because Dr. Bedford is no longer employed there. Dr. Kamath was not the Claimant’s treating doctor, and his knowledge of the case is based on a review of the records.↑
  13. Ex. 4 at 34, 48.↑
  14. Ex. 4 at 48-53.↑
  15. Ex. 4 at 50-51.↑
  16. Ex. 4 at 61-64, 72. Exhibit 1 to Ex. 4 at 167-192. He did identify the exercises and number of repetitions on May 20, 27, and 28 and June 3. Exhibit 1 to Ex. 4 at 175, 183, 188, and 192.↑
  17. Exhibit 1 to Ex. 4 at 164.↑
  18. Ex. 1 at 357.↑