DECISION AND ORDER

Neuromuscular Institute of Texas, PA (“Provider”) has challenged a decision of an independent review organization (“IRO”), acting on behalf of the Texas Workers’ Compensation Commission (“Commission”), in a dispute regarding medical necessity for chiropractic treatment. The IRO found that Southwestern Bell Telephone Co. (“Carrier”), the self-insured employer of a claimant suffering from a compensable injury, properly denied reimbursement for physical therapy and related care administered to that claimant by Provider between March 4 and May 22, 2003.

Provider 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.

This decision disagrees, in part, with that of the IRO, finding that reimbursement of Provider for most of the disputed services is appropriate.

JURISDICTION, NOTICE, AND VENUE

The Commission has jurisdiction over this matter pursuant to § 413.031 of the Act. The State Office of Administrative Hearings (“SOAH”) 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. No party challenged jurisdiction, notice, or venue.

STATEMENT OF THE CASE

The hearing in this docket was convened on November 9, 2004, at SOAH facilities in the William P. Clements Building, 300 W. 15^th St., Austin, Texas. Administrative Law Judge (“ALJ”) Mike Rogan presided. Provider was represented by Allen Craddock, attorney. Carrier was represented by Charlotte Salter, attorney. Both parties presented evidence and argument.^[1] The record then closed on the same date.

The record revealed that on____, the claimant reported a compensable injury to her arms, wrists, and neck. Immediately thereafter, she began receiving therapeutic treatment from Dr. Daniel Bradley Burdin, a board-certified chiropractic neurologist who practices with Provider.^[2] Ultimately, however, the patient’s condition necessitated several surgeries, including a right carpal tunnel release on December 6, 2002, and a left carpal tunnel release on March 5, 2003.

Carrier reimbursed Provider for much of the therapy that Provider administered to the claimant. However, when Provider billed Carrier for such care on 14 specific dates of service from March 4 through May 22, 2003, Carrier denied reimbursement on the grounds that the treatment had been medically unnecessary. Provider sought medical dispute resolution through the Commission. The IRO to which the Commission referred the dispute issued a decision on April 20, 2004, concluding that Provider had failed to demonstrate the medical necessity of the treatment at issue. The IRO declared that the care was not consistent with any known guidelines, did not improve the patient’s condition, and “was a full 3 months post surgical, with most of the care being passive in nature.”

The Commission’s Medical Review Division (“MRD”) reviewed the IRO’s decision and, on April 27, 2004, issued its own decision confirming that the disputed services were not medically necessary and should not be reimbursed. Petitioner then made a timely request for review of the IRO and MRD decisions before SOAH.

THE PARTIES’ EVIDENCE AND ARGUMENTS

A. PROVIDER

Provider argued that the IRO was clearly incorrect in two of the basic factual assumptions underlying its decision – i.e., that the disputed therapy occurred “a full 3 months” after the claimant underwent surgery and that it consisted mostly of passive modalities. The IRO decision makes reference only to the claimant’s right carpal tunnel release on December 6, 2002 – which indeed occurred about three months before the first date of service in question – but it notably overlooks the claimant’s left carpal tunnel release on March 5, 2003 – which was virtually concurrent with that first date of service. And on nine of the 14 dates in dispute, the patient underwent primarily active modalities, while pursuing rehabilitation of the left wrist.

Provider also questioned Carrier’s overall logic in choosing the 14 dates that it has disputed in this case. The first such date, March 4, 2003, was the final session of therapy and evaluation in the immediate post-surgical rehabilitation for the claimant’s right carpal tunnel release. However, Carrier did not question reimbursement of the two dozen or so previous sessions in that series. Three of the disputed dates (March 17, April 17, and May 15, 2003) entailed therapy (including manipulations) for the cervical spine – which was not obviously related to rehabilitation for either of the two carpal tunnel surgeries. The remaining ten disputed dates occurred after the claimant’s left carpal tunnel release. On one of those dates, the claimant underwent primarily passive therapy – as part of a twelve-session series (of which Carrier reimbursed all the other sessions without challenge). On the other nine dates, the claimant underwent primarily active therapy – again, as part of a second twelve-session series.

For some reason, however, Carrier did not challenge reimbursement for the ninth, tenth, and twelfth sessions in that second series.

Dr. Burdin testified that the multiple problems afflicting the claimant in this case created complications in the rehabilitation program, generally lengthening the recovery process. Even after the disputed dates of service, the claimant underwent further surgery related to her compensable injuries – i.e., a right cubital tunnel release on August 1, 2003. According to Dr. Burdin, the unresolved problems – both with cubital tunnel and carpel tunnel symptoms – may have reduced the effectiveness of the patient’s post-carpal-tunnel-release therapy, since they probably hampered her ability to hold objects in her hands. Nonetheless, Dr. Burdin concluded, the claimant needed the disputed therapy as a cost-effective means of restoring function to her hands and wrists following surgery.

Post-operative therapy of the type in dispute normally begins two to three weeks after surgery, noted Dr. Burdin, as it did in this case. He said that the physical therapy, hot packs, and ultrasound provided to the claimant generated heat in the injured areas that both improved circulation and increased conduction velocity (which promotes healing within the nerves). He added that the ultrasound therapy, in particular, could only be administered under the supervision of a licensed practitioner.

The medical records in evidence indicate that Terry Westfield, M.D., the surgeon who performed the claimant’s carpal tunnel releases, evaluated the claimant on May 15, 2003 (near the end of the disputed dates of service) and concluded that the patient “is doing fairly well as far as her carpal tunnels. The numbness in her hands in the median nerve distribution seems to be improved.”

Provider noted that a designated doctor appointed by the Commission (Lawrence L. Lenderman, M.D.) examined the claimant and reported on November 3, 2003, that, although the patient displayed good range of motion in her left hand, she “should go through more intensive therapy, desensitization, and have an FCE done to determine whether she is or is not capable of returning to her previous level of activity and employment. She was advised to follow-up with Dr. Burdin and Dr. Westfield.”

Finally, after a Required Medical Examination (“RME”), Patrick W. Mulroy, M.D., issued a report dated June 23, 2003, concluding that “the length and frequency” of treatment in this case “appears to be reasonable and necessary up until the examinee received her most recent carpal tunnel release” (which would include the first disputed date of service). Dr. Mulroy stated, however, that further chiropractic care or physical therapy in the future would not be appropriate, given that the patient was then “three months out from her most recent surgical intervention.” He did not directly address whether therapy between the most recent surgery and the date of the report (that is, most of the treatment at issue in this case) had been reasonable and necessary.

B. CARRIER

Carrier noted that much of the treatment administered to this claimant by Provider, prior to the disputed dates of service, was found to be unnecessary in an earlier contested-case proceeding before SOAH.^[3] According to the decision in that case, a large amount of the claimant’s “pre-operative physical therapy” was not shown to be efficacious. The decision also noted that while some testimony indicated that chiropractic manipulations provided relief for the patient, a lack of treatment notes documenting the service made substantiating the medical necessity of such therapy impossible.

Carrier argued that although the IRO in this case apparently erred in characterizing the disputed treatment as occurring three months or more after the claimant’s most recent surgery, its decision was nonetheless correct, because Provider failed, despite “plenty of opportunity,” to show that the disputed treatment produced any significant improvement in the cervical or left carpal tunnel injuries. This is particularly true with respect to the treatment of the cervical spine, Carrier concluded, since the most recent medical records presented in this case – for April of 2004 – reveal that the claimant’s cervical injury still remains unresolved. The same records also suggest that the claimant has not yet been able to return to work, in part because of pain and weakness in her hands.

ANALYSIS

The obviously erroneous premises cited by the IRO reviewer as a basis for decision in this case make it difficult to accord that decision much weight. With the rather general but unrebutted testimony of Dr. Burdin, the ALJ finds that Provider has discharged its burden of proof in demonstrating that the IRO’s decision should be reversed, in large part.

Contrary to the IRO’s assertions, all of the disputed therapy was completed within about two and a half months after the claimant’s left carpal tunnel release – the surgery for which most of that therapy was intended to provide rehabilitation – and most of it consisted of active therapeutic exercises by the claimant. No testimonial or documentary evidence presented in this case indicates that such therapy, delivered within such a time-frame, would be inappropriate in the rehabilitation for a carpal tunnel release. Indeed, the fact that both the IRO and RME reports identify three months post-surgery as a rough cut-off date for reasonable rehabilitative therapy suggests that such services provided earlier than that would satisfy general standards of care.

Carrier presented a persuasive argument for giving deference to the analysis in the prior SOAH decision that addresses Provider’s earlier treatment of this same claimant. However, that decision dealt only with “pre-operative” therapy, whereas most of the disputed services in this case constituted post-operative rehabilitative therapy. With respect to such treatment, the ALJ does not find the earlier decision’s analysis or conclusions to be controlling.

On the other hand, the therapy on three of the disputed dates of service – i.e., office visits with manipulations of the cervical spine – cannot reasonably be characterized as post-surgical rehabilitation. The claimant has had no surgery on the cervical spine since reporting her present compensable injury, and nothing in the record indicates that any of her other surgeries since then have had discernible effect on the cervical spine. This cervical care thus seems to fall within the same category of pre-operative therapy that the earlier SOAH decision examined and found medically unnecessary. In fact, it appears to be identical to the care that the decision criticized for a lack of treatment notes substantiating medical necessity. In the present administrative proceeding, the ALJ notes the same lack of such documentation. Moreover, Dr. Burdin’s testimony about this treatment was even broader and less informative than his discussion of the other disputed services. He merely made conclusory statements that the disputed cervical manipulations have relieved discomfort and promoted more normal activity for the claimant. In the ALJ’s opinion, therefore, Provider has not established the medical necessity of the office visits with manipulations on March 17, April 17, and May 15, 2003.

CONCLUSION

The ALJ finds that, under the record provided in this case, most of the medical services at issue, which were intended to provide physical rehabilitation of the claimant following carpal tunnel releases, have been shown to be medically necessary and reasonable. Reimbursement for these services is therefore appropriate, contrary to the prior determination of the IRO. However, reimbursement for treatment of the claimant’s cervical spine on three disputed dates of service is not appropriate, as the IRO previously determined.

FINDINGS OF FACT

1. On____, claimant reported an injury to her arms, wrists, and neck that was a compensable injury under the Texas Worker’s Compensation Act (“the Act”), TEX. LABOR CODE ANN. § 401.001et seq.
2. Immediately after the report of injury, claimant began receiving therapeutic treatment through the Neuromuscular Institute of Texas, PA (“Provider”); ultimately, however, the patient’s condition necessitated several surgeries, including a right carpal tunnel release on December 6, 2002, and a left carpal tunnel release on March 5, 2003.
3. Post-surgical therapy administered to claimant by Provider, for the purpose of achieving rehabilitation after the patient’s carpal tunnel releases, included office visits (CPT Code 99213), hot/cold packs (CPT Code 97010), ultrasound (CPT Code 97035), one-on-one therapeutic exercise (CPT Code 97110), and group exercise (CPT Code 97150) on 11 dates of service between March 4 and May 22, 2003.
4. The maximum allowable reimbursement (“MAR”) for the services noted in Finding of Fact No. 3, under applicable guidelines of the Texas Workers’ Compensation Commission (“Commission”), is $1,363.00.
5. On March 17, April 17, and May 15, 2003, claimant underwent chiropractic manipulation during office visits to Provider (CPT Code 99213-MP), for the purpose of relieving discomfort and improving function in the patient’s cervical spine.
6. The MAR for the services noted in Finding of Fact No. 5, under applicable guidelines of the Texas Workers’ Compensation Commission (“Commission”), is $144.00.
7. Provider sought reimbursement for the services noted in Findings of Fact Nos. 3 and 5 from Southwestern Bell Telephone Co. (“Carrier”), the claimant’s self-insured employer.
8. Carrier denied the requested reimbursement.
9. Provider made a timely request to the Commission for medical dispute resolution with respect to the requested reimbursement.
10. The independent review organization (“IRO”) to which the Commission referred the dispute issued a decision on April 20, 2004, concluding that Provider had failed to demonstrate the medical necessity of the treatment at issue. The IRO declared that the care was not consistent with any known guidelines, did not improve the patient’s condition, and “was a full 3 months post surgical, with most of the care being passive in nature.”
11. The IRO clearly erred in its declarations that the disputed care “was a full 3 months post surgical, with most of the care being passive in nature.”

12. The Commission’s Medical Review Division reviewed and concurred with the IRO’s decision in a decision dated April 27, 2004, in dispute resolution docket No. M5-04-1666-01.

13. Provider requested in timely manner 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’s setting (originally for November 3, 2004) to the parties at their addresses on June 10, 2004. The hearing was subsequently continued to November 9, 2004, with proper notice to parties.
13. A hearing in this matter was convened on November 9, 2004, at the William P. Clements Building, 300 W. 15^th St., Austin, Texas, before Mike Rogan, an Administrative Law Judge with SOAH. Provider and Carrier were represented and presented evidence and argument. The hearing adjourned and the record closed on the same date.
14. The treatment noted in Finding of Fact No. 3 contributed to claimant’s rehabilitation following carpal tunnel release surgeries, in part by generating heat in the injured areas, both to improve circulation and to increase conduction velocity (which promotes healing within the nerves).
15. The claimant’s multiple problems relating to the compensable injury in this case created complications in the rehabilitation program, generally lengthening the recovery process.
16. Terry Westfield, M.D., the surgeon who performed the claimant’s carpal tunnel releases, observed improvement in the claimant’s carpal tunnel areas and in the numbness in claimant’s hands between the performance of a left carpal tunnel release on March 5, 2003, and an evaluation on May 15, 2003 (near the end of the disputed dates of service).
17. Provider failed to demonstrate that the treatment noted in Finding of Fact No. 5 materially contributed to claimant’s recovery or rehabilitation from her compensable injury.

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. § 413.031.
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. Petitioner, the party seeking relief, bore the burden of proof in this case, pursuant to 28 TAC § 148.21(h).
6. Based upon the foregoing Findings of Fact, the treatments for the claimant noted in Finding of Fact No. 3 represent elements of health care medically necessary under § 408.021of the Act.
7. Based upon the foregoing Findings of Fact, the treatments for the claimant noted in Finding of Fact No. 5 do not represent elements of health care medically necessary under § 408.021of the Act.
8. Based upon the foregoing Findings of Fact and Conclusions of Law, the findings and decisions of the IRO issued on April 20, 2004, and of the MRD, issued on April 27, 2004, were incorrect, in part. Contrary to those decisions, reimbursement to Provider of $1,363.00 for the services noted in Finding of Fact No. 3 is appropriate.

ORDER

IT IS THEREFORE, ORDERED that Southwestern Bell Telephone Co. reimburse Neuromuscular Institute of Texas, PA, $1,363.00 (plus any applicable interest) for disputed medical services from March 4 through May 22, 2003, for the purpose of achieving rehabilitation after a claimant’s carpal tunnel releases, as addressed in dispute resolution docket No. M5-04-1666-01 of the Texas Workers’ Compensation Commission’s Medical Review Division. However, Southwestern Bell Telephone Co. shall not be required to reimburse Neuromuscular Institute of Texas, PA, for office visits with cervical manipulation (CPT Code 99213-MP) on March 17, April 17, and May 15, 2003, as addressed in the same dispute resolution docket.

Signed December 3, 2004.

MIKE ROGAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The staff of the Commission formally elected not to participate in this proceeding, although it filed a general “Statement of Matters Asserted” with the notice of the hearing.↑
2. Dr. Burdin is also the president of the Neuromuscular Institute of Texas, PA..↑
3. See SOAH Docket No. 453-04-1161.M5 (ALJ Smith, issued April 6, 2003).↑