DECISION AND ORDER

SCD Back & Joint Clinic (Clinic) seeks review of a decision by the Texas Workers’ Compensation Commission (Commission), acting through an independent review organization (IRO), in a dispute regarding the medical necessity of physical medicine treatments provided to Claimant ___, who suffered from a compensable lower back injury. The amount in controversy is approximately $13,000. This decision finds that the disputed services were not shown to be medically necessary and are, therefore, not reimbursable.

I. PROCEDURAL HISTORY, NOTICE, AND JURISDICTION

There are no contested issues of notice or jurisdiction in this proceeding. Those matters are addressed in the findings of fact and conclusions of law. The hearing convened and closed on November 2, 2004, before Administrative Law Judge Kerry D. Sullivan. The Clinic was represented by William Maxwell. Texas Mutual Insurance Company (Carrier) was represented by R. Scott Placek.

II. BASIS FOR DECISION

The Claimant suffered a compensable injury to his neck, lower back, left shoulder, and left knee on ___, when he fell off the back of a delivery truck, landing on his back on a concrete surface. A “work surface” of unidentified shape and weight then fell on top of him. The Claimant went to the Clinic that same day. There, David Bailey, D.C., diagnosed the Claimant with neck, back and knee sprains and strains. Over the next year, Dr. Bailey provided extensive physical medicine to the Claimant. Reimbursement for the first six weeks of treatment has been allowed; the services in dispute in this proceeding were provided after this period, between October 31, 2002 and June 18, 2003. These services consisted of electrical stimulation, diathermy, joint mobilization, myofascial release, office visits, individual and group physical therapy, range of motion measurements, physical performance testing, muscle testing, massage therapy, and supplies and reports.

The Clinic acknowledges the extended duration of the services provided. It points out, however, that the Claimant suffered from six “exacerbations” during this period which it believes warranted the provision of the services in dispute. It also points out that the records show that the Claimant’s range of motion and strength increased substantially during the course of the Claimant’s

treatment, including during the period in dispute. Dr. Bailey testified as a fact witness to address the above issues. The Petitioner also called David Alvarado, D.C., as an adverse witness to establish that the various tests and procedures performed by the Petitioner were all reasonable ways to assess neurological considerations and muscle strength when there is cause for concern regarding those issues.

The ALJ, however, accepts the testimony of Dr. Alvarado and Dr. John Pearce, an orthopedic surgeon, to the effect that the services provided after the first six weeks following the injury were excessive and not medically necessary. Dr. Pearce established that the diagnostic findings were essentially normal. These included an X-ray, MRI, and EMG. These witnesses also established that the Claimant’s gains in range of motion and strength simply represent the natural history of the injury based on the passage of time, and that the vague findings of exacerbations with no known cause did not warrant continued physical medicine treatment. Instead, Drs. Pearce and Alvarado reasonably concurred with the IRO assessment that the Claimant essentially had a soft tissue injury, that a six week course of physical medicine was appropriate, but that, when the Claimant’s pain level and sense of well being failed to improve and even worsened, the treatment plan should have been altered.^[1] The ALJ finds the decision of the IRO, as supported by Drs. Alvarado and Pearce, to be persuasive. Accordingly, the petition is denied, and the Carrier is not required to reimburse the Petitioner for the disputed services.

III. FINDINGS OF FACT

1. The Claimant suffered a compensable injury to his neck, lower back, left shoulder, and left knee on ___, when he fell off the back of a delivery truck, landing on his back on a concrete surface. A “work surface” of unidentified shape and weight then fell on top of him.
2. At the time of the injury, Claimant’s employer had workers’ compensation insurance coverage with Texas Mutual Insurance Co. (Carrier).
3. The Claimant went to SCD Back & Joint Clinic (Clinic) on the day of his compensable injury. There, David Bailey, D.C., diagnosed the Claimant with neck, back and knee sprains and strains.
4. Over the next year, Dr. Bailey provided extensive physical medicine to the Claimant.
5. The services in dispute were provided between October 31, 2002 and June 18, 2003. They consisted of electrical stimulation, diathermy, joint mobilization, myofascial release, office visits, individual and group physical therapy, range of motion measurements, physical performance testing, muscle testing, massage therapy, and supplies and reports.
6. The Carrier denied reimbursement of services in dispute on the basis that they were not medically necessary.
7. The Clinic made a timely request to the Texas Workers’ Compensation Commission (Commission) for medical dispute resolution.
8. The independent review organization (IRO) to which the Commission referred the dispute concluded that the disputed services were not medically necessary.
9. The Clinic timely requested a hearing on the IRO decision, which the Commission adopted.
10. On June 10, 2004, the Commission issued the notice of the hearing, which stated the date, time, and location of the hearing and cited to the statutes and rules involved, along with a short, plain statement of the factual matters involved.
11. The hearing convened on November 2, 2004, at the William P. Clements Building, 300 W. 15th St., Austin, Texas, before Kerry D. Sullivan, an Administrative Law Judge with SOAH. The Clinic and TMIC appeared through counsel.
12. The disputed services were not shown to be medically necessary.
13. The Claimant had a soft tissue injury for which only a six-week course of physical medicine was shown to be appropriate.
14. Following an X-ray, MRI, and EMG, the diagnostic findings pertaining to the Claimant were essentially normal.
15. The Claimant’s gains in range of motion and strength during the course of treatment represent the natural history of the injury based on the passage of time.
16. The Claimant’s pain level, physical symptoms, and feelings of well being worsened during the course of the disputed treatment. This should have, but did not, lead to a change in the Claimant’s treatment plan.

IV. CONCLUSIONS OF LAW

1. The Commission has jurisdiction over this matter pursuant to the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code Ann. § 413.031.
2. 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. Govt. Code Ann. ch. 2003.
3. Adequate and timely notice of the hearing was provided in accordance with Tex. Govt. Code Ann. §§ 2001.051 and 2001.052.
4. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Govt. Code Ann. ch. 2001 and the Commission’s rules, 28 Tex. Govt. Code (TAC) § 133.305(g) and §§ 148.001-148.028.
5. The Clinic bore the burden of proof in this proceeding pursuant to 28 TAC §148.21(h).
6. The medical services set out in Finding of Fact No. 5 were not shown to be medically necessary health care under § 408.021 of the Act.
7. Based upon the foregoing Findings of Fact and Conclusions of Law, the Clinic’s request for reimbursement for the disputed services should be denied.

ORDER

IT IS THEREFORE, ORDERED that Texas Mutual Insurance Company is not ordered to reimburse SCD Back & Joint Clinic for the disputed services rendered between October 31, 2002, and June 18, 2003. All other requests for relief are denied for want of merit.

Signed December 23, 2004.

KERRY D. SULLIVAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Specifically, the IRO observed that an October 23, 2002 report noted that the Claimant’s overall pain scale never exceeded five on a scale of one to ten and the Claimant denied feelings of hopelessness or guilt, and his motivation was fine. Several months later, however, the same doctor reported that the Claimant was depressed, his pain scale often reached nine out of ten, he had developed a loss of bladder control, and he was functionally impaired and socially isolated. The IRO determined that these were indications that treatment was failing, but essentially the same course of treatment continued for several more months, including the period in dispute.↑