I. Introduction

Cotton D. Merritt, D.C. (Dr. Merritt) has appealed a decision of the Texas Workers’ Compensation Commission’s (TWCC) Medical Review Division (MRD) regarding medical services he provided ___ (Claimant) from March 18, 2003, through April 24, 2003, but for which National Fire Insurance Company of Hartford (Carrier) denied reimbursement. MRD, relying on a determination of an independent review organization (IRO), found that Dr. Merritt failed to show that the services he provided Claimant were medically necessary to treat Claimant’s compensable injury.

At the hearing, the parties agreed that the amount in dispute is $3,142.00. The disputed issue is whether the services provided by Dr. Merritt were medically necessitated by the compensable injury. As set out below, the Administrative Law Judge (ALJ) finds that the medical services provided Claimant by Dr. Merritt were medically necessary and grants Dr. Merritt’s request for reimbursement for those services.

II. Findings of Fact

1. On ___, ___ (Claimant) sustained a work-related injury to his lower right leg as a result of his work activities (compensable injury).
2. On the date of injury, Claimant’s employer was ___, and its workers’ compensation insurance carrier was National Fire Insurance Company of Hartford (Carrier).
3. After a 500-pound cotton bale fell on Claimant’s leg, he was taken to University Medical Center in Lubbock, Texas, where he had surgery on ___, for a comminuted fracture of the lower third of his right tibia.
4. A comminuted fracture requires complex surgery to repair and is difficult to rehabilitate.
5. At University Medical Center on December 24 and December 25, 2001, Claimant had physical therapy and gait training.
6. From December 23, 2001, until June 25, 2002, orthopedic surgeon Michael Marshall, M.D., was Claimant’s treating doctor.
7. Claimant had insufficient physical therapy and rehabilitative treatment following his surgery.
8. On January 14, 2003, Claimant changed treating doctors to Cotton D. Merritt, D.C. (Dr. Merritt). Claimant had constant right ankle pain and could no longer walk up stairs. Dr. Merritt measured Claimant’s active range of motion and found the following: plantar flexion 5 degrees, dorsi flexion 0 degrees, inversion 3 degrees, and eversion 0 degrees.
9. Claimant’s injury was over one year old when Dr. Merritt began providing Claimant with medical services.
10. Dr. Merritt performed a functional capacity evaluation of Claimant on January 15, 2003, and determined Claimant’s condition required “a structured physical therapy and rehab program” that “should be performed in conjunction with a home exercise program.” Dr. Merritt expected the rehabilitation duration to be six weeks.
11. Dr. Merritt provided medical services to Claimant on nine occasions over five weeks from January 16, 2003, through February 18, 2003 (January 16, January 21, January 22, January 27, January 29, January 30, February 4, February 5, and February 18).
12. After being incarcerated for approximately three weeks, Claimant on March 18, 2003, returned to Dr. Merritt for “reevaluation and recommendations for care.” Dr. Merritt determined that Claimant should “continue with the prescribed treatment plan” that the patient will complete three times per week for four weeks.” Dr. Merritt measured Claimant’s active range of motion and found the following: flexion 25 degrees, associated with a 5-degree flexion contracture; extension 10 degrees; inversion 5 degrees; and eversion 5 degrees.
13. Dr. Merritt furnished the disputed medical services to Claimant, on the dates and with the

Current Procedural Terminology (CPT) codes shown below:

CPT CODE	SERVICE DESCRIPTION	DATES	TOTAL MAR NOT REIMBURSED
99213	Office/outpatient visit, est.	3/18, 19, 20, 25, 27/2003; 4/1, 2, 3, 8, 10, 24/2003	$ 528.00
97110	Therapeutic exercises	3/18, 19, 20, 25, 27/2003; 4/1, 2, 3, 8, 10/2003	$1,330.00
97530	Therapeutic activities	3/18, 19, 20, 25, 27/2003; 4/1, 2, 3, 8, 10/2003	$ 700.00
97265	Joint mobilization	3/18, 19, 20, 25, 27/2003; 4/1, 2, 3, 8, 10/2003	$ 430.00
97250	Myofascial release/soft tissue mobilization	3/18, 19, 20, 25, 27/2003; 4/1, 2, 3, 8, 10/2003	$ 430.00
97035	Ultrasound	3/27/2003; 4/1, 2, 3, 8, 10/2003	$ 132.00
97032	Electrical stimulation	3/27/2003; 4/1, 2, 3, 8, 10/2003	$ 132.00
97139	Physical medical procedures	3/27/2003; 4/1, 2, 3, 8, 10/2003	$ 240.00

1. Carrier denied all of the maximum allowable reimbursement (MAR) for each medical service on each date shown in Finding of Fact No. 13.
2. Claimant completed the in-office physical therapy and rehabilitative treatments provided by Dr. Merritt in ten visits over four weeks.
3. On April 10, 2003, Dr. Merritt released Claimant to a home treatment program.
4. According to the guidelines of TrailBlazer Health Enterprises, “It is expected that patients undergoing rehabilitation therapy for musculoskeletal injuries in the absence of neurologic compromise will transition to self-directed physical therapy within two months. . . .”
5. Claimant completed his rehabilitation therapy within nine weeks, including two weeks in which Dr. Merritt provided only one treatment per week (January 16 and February 18, 2003).
6. On April 16, 2003, Ajay J. Mohabeer, M.D., performed a designated medical examination of Claimant. Claimant’s active range of motion was very satisfactory: dorsi flexion 15 degrees, plantar flexion 30 degrees, eversion 20 degrees, and inversion 30 degrees.
7. Claimant’s comminuted fracture of his distal tibia showed excellent response to the physical therapy provided by Dr. Merritt.
8. Dr. Merritt sought reimbursement from Carrier for the provided medical services.
9. Carrier sent explanations of benefit (EOBs) to Dr. Merritt, denying the requested reimbursement as unnecessary treatment with peer review.
10. Dr. Merritt filed a request for medical dispute resolution with the Texas Workers’ Compensation Commission (TWCC).
11. An independent review organization (IRO) reviewed the medical dispute and found that the office outpatient visits, therapeutic procedures, therapeutic activities, joint mobilization, myofascial release, kinetic activities, established office visits, unlisted procedures, ultrasound, and electrical stimulation that Dr. Merritt provided Claimant from March 18, 2003, through April 24, 2003, were medically unnecessary.
12. Based on the IRO’s findings, TWCC’s Medical Review Division (MRD) on May 4, 2004, denied reimbursement and found that Dr. Merritt failed to show the services he provided Claimant were medically necessary.
13. After the MRD order was issued, Dr. Merritt asked for a contested-case hearing before a State Office of Administrative Hearings (SOAH) Administrative Law Judge (ALJ).
14. Notice of a contested-case hearing concerning the dispute was mailed on June 16, 2004, to Dr. Merritt and Carrier. The notice informed the parties 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 the matters to be considered.
15. On November 9, 2004, Carol Wood, a SOAH ALJ, held a contested-case hearing concerning the dispute at the William P. Clements Office Building, Fourth Floor, 300 West 15^th Street, Austin, Texas. The hearing concluded, and the record closed the next day upon Carrier’s submission of additional information at the ALJ’s request.
16. Carrier appeared at the hearing through its attorney, Douglas Pruett.
17. Dr. Merritt appeared at the hearing pro se by telephone.

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. Labor Code Ann. (Labor Code) §§ 402.073(b) and 413.031(k) (West 2004) and Tex. Gov’t Code Ann. (Gov’t Code) ch. 2003 (West 2004).
2. Adequate and timely notice of the hearing was provided in accordance with Gov’t Code §§ 2001.051 and 2001.052.
3. 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 that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. Labor Code § 408.021 (a).
4. Based on the above Findings of Fact and Gov’t Code §§ 2003.050 (a) and (b), 1 Tex. Admin. Code (TAC) § 155.41(b) (2004), and 28 TAC §§ 133.308(v) and 148.21(h) (2004), Dr. Merritt has the burden of proof in this case.
5. Based on the above Findings of Fact and Conclusions of Law, all medical services provided Claimant by Dr. Merritt were medically necessitated by Claimant’s compensable injury.
6. Based on the above Findings of Fact and Conclusions of Law, Dr. Merritt’s request to be reimbursed for the disputed services should be granted.

ORDER

IT IS THEREFORE ORDERED that Dr. Merritt’s request for reimbursement for medical services provided Claimant from March 18, 2003, through April 24, 2003, is GRANTED. Although the total maximum allowable reimbursement (MAR) not reimbursed is $3,922.00, the parties stipulated that the amount in dispute is $3,142.00. National Fire Insurance Company of Hartford is ORDERED, therefore, to reimburse Cotton D. Merritt, D.C., the amount of $3,142.00.

Signed January 10, 2005.

CAROL WOOD
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS