DECISION AND ORDER

Petitioner, Texas Mutual Insurance Co. (Carrier), appealed the Findings and Decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC) granting reimbursement to Brian Randall, D.C. (Provider) for medical services rendered to ___, (Claimant). Carrier disputes the conclusion of the Independent Review Organization (IRO) that these services were medically necessary. The Administrative Law Judge (ALJ) concludes that Carrier has met its burden of proof with respect to all services in dispute provided to Claimant between December 2, 2002, and July 15, 2003. Thus, Provider should not be reimbursed.

I. PROCEDURAL HISTORY

ALJ Penny Wilkov convened a hearing in this case on December 1, 2004, at the State Office of Administrative Hearings, Austin, Texas. Carrier appeared and was represented by Attorney R. Scott Placek. Provider did not appear, nor was he represented, at the hearing. Following a post-hearing filing, the record closed on December 7, 2004.

II. DISCUSSION

Background

Claimant sustained a work-related injury on ___, while employed as an apartment manager, when she pulled up carpet in an apartment unit and felt a pop in her right shoulder and then burning pain up her neck.^[1] Claimant has been diagnosed with tendonitis of the rotator cuff and positive impingement syndrome.^[2] Claimant described symptoms of pain in the right shoulder joint and reports a subjective level of pain, with movement, of seven on a scale of one to ten, with ten as the most painful. Claimant’s history of treatments have included medications, arthroscopic surgeries in 1999 and 2002, a TENS unit, injections, work hardening, and extensive chiropractic treatments, as well as diagnostic testing including an MRI and x-rays.^[3]

Carrier denied payment for certain chiropractic services, including myofascial release, electrical stimulation, hot and cold packs, ultrasound therapy (passive therapies), and one-on-one therapeutic exercises (active therapy), as well as associated office visits and report writing, administered by Provider between December 2, 2002, and July 15, 2003, as not medically necessary.

B. Applicable Law

Under the workers’ compensation system, an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury. The employee is specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment. Tex. Lab. Code Ann. § 408.021. “Health care” includes “all reasonable and necessary medical . . . services.” Tex. Lab. Code Ann.§ 401.011(19).

C. Evidence and Argument

Carrier submitted Claimant’s medical records, consisting of a 741-page compilation of medical evaluations, assessments, follow-ups, reviews, and test results. Carrier also presented, through oral deposition, the testimony of David Alvarado, D.C.

Dr. Alvarado testified that in his opinion, based on a review of Claimant’s medical records, the disputed services were not medically necessary. He pointed out that Claimant began a course of conservative treatment with Provider in November of 2001. After a second arthroscopic surgery on Claimant’s shoulder by an orthopedic surgeon on September 20, 2002, Provider began eight weeks of post-operative rehabilitation, fully reimbursed by Carrier.^[4] However, beginning on December 2, 2002, the first date of disputed services, and continuing until July 15, 2003, Dr. Alvarado testified that his review of the records yielded no evidence of Claimant’s progression with the continued therapy and that he found that the conclusions of the IRO, a chiropractor, in support of the continued therapies were erroneous.

First, according to Dr. Alvarado, the IRO’s conclusion that the delayed healing attributable to Claimant’s history of asthma, hypothyroidism, or the age of the injury, justifying chiropractic treatment for the additional seven months, from December 2, 2002, until July 15, 2003, was not medically supportable. Dr. Alvarado testified that he saw no evidence in the record to affirm that any of these three conditions were a complicating factor for Claimant’s shoulder rehabilitation. Instead, Dr. Alvarado testified that the IRO’s conclusion that these conditions could have interfered with recovery, justifying months of additional chiropractic treatment, was generic and not substantiated by medical literature.

Second, Dr. Alvarado addressed the IRO’s conclusion that the passive and active modalities, administered from December 2, 2002, until July 15, 2003, “relieved the symptomatology of the injury.”^[5] Dr. Alvarado testified that, in his opinion, an appropriate standard of care for post-operative rehabilitation would be to administer passive therapies to reduce inflammation, spasm, and pain, during the acute stage of healing, lasting no longer than three or four weeks. Then passive

therapy would cease and therapeutic exercise to increase range of motion would begin for an additional four to six weeks, with an eventual transition to a home-based exercise program. Here, he noted that after two months of post-operative care, Claimant failed to show any further progress with the symptoms. He testified that Claimant relayed a subjective level of pain of seven on a one to ten scale on October 7, 2002, shortly after the surgery, and an identical level of pain on December 2, 2002, the first day of disputed service. Further, Dr. Alvarado pointed out that on January 30, 2003, following three months of passive and active therapies, Claimant was still experiencing pain of five and one-half, which he attributed to the natural healing of the injury after surgery.^[6]

Lastly, Dr. Alavardo takes issue with the IRO’s conclusion that the exercises were appropriate, noting that the one-on-one therapeutic exercises were simple range-of-motion exercises that could have been adapted to home exercise, particularly when Claimant was not at risk of injuring herself and was not shown to be incapable of instruction. According to Dr. Alvarado, the seven months of passive and active therapies did not yield any increased range of motion, other than the course of natural healing post-operatively.

D. Analysis

Carrier has met its burden of proof to show that the disputed services administered between December 2, 2002, and July 15, 2003, were not medically necessary. The additional seven months, from December 2, 2002, and July 15, 2003, of passive and active chiropractic therapies beyond the post-operative recovery period is not supported by the evidence. The IRO’s conclusion that a longer recovery period was necessary due to asthma, hypothyroidism or age of the injury, with no further discussion, was not addressed by Carrier’s peer review physician, N. F. Tsourmas, M.D., or the designated doctor, Thomas M. Richey, D.C. Instead, Dr. Richey states that Claimant’s condition results from the injury and “no contributing factors are present from pre-existing conditions.”^[7] This was also affirmed by the testimony of Dr. Alvarado who saw no reason why these conditions would affect Claimant’s progress after surgery.

Further, the IRO’s position that the additional seven months of post-operative therapy was effective in relieving the symptoms of the injury was not substantiated by the evidence. The passive modalities (which continued beyond the acute phase of the injury where reducing inflammation, spasm, and pain are key) did not improve Claimant’s recovery beyond normal healing. The active one-on-one therapies were shown to be relatively simple and easily adaptable to a home-exercise program, and there was no evidence that Claimant had an issue with safety or a learning disability.

In conclusion, Carrier has met the burden of proof to establish that all disputed services administered between December 2, 2002, and July 15, 2003 were not medically necessary.

III.FINDINGS OF FACT

1. ___ (Claimant) sustained a work-related injury on ___, while employed as an apartment
2. manager, when she pulled up carpet in an apartment unit and felt a pop in her right shoulder and then burning pain up her neck
3. At the time of the injury, Claimant’s employer had its workers’ compensation insurance through Texas Mutual Insurance Co. (Carrier).
4. Claimant was diagnosed with tendonitis of the rotator cuff and positive impingement syndrome; she described symptoms of pain in the right shoulder joint and reported a subjective level of pain, with movement, of seven on a scale of one to ten, with ten as the most painful.
5. Claimant’s history of treatments have included medications, arthroscopic surgeries in 1999 and 2002, a TENS unit, injections, work hardening, and extensive chiropractic treatments, as well as diagnostic testing including an MRI, and x-rays.
6. Claimant had a second arthroscopic surgery on her shoulder, performed by an orthopedic surgeon on September 20, 2002, and Brian Randall, D.C. (Provider) began eight weeks of post-operative rehabilitation, fully reimbursed by Carrier.
7. Beginning on December 2, 2002, and continuing until July 15, 2003, Carrier denied payment for office visits, myofascial release, electrical stimulation, hot and cold packs, ultrasound therapy, report writing, and one-on-one therapeutic exercises, administered by Provider to Claimant as not medically necessary.
8. Provider requested medical dispute resolution with the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD).
9. An Independent Review Organization concluded that chiropractic treatments rendered between December 2, 2002, and July 15, 2003, were medically necessary.
10. Provider filed a request for a hearing before the State Office of Administrative Hearings on May 16, 2004.
11. The Commission sent notice of the hearing to the parties on June 21, 2004. The hearing 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 statutes and rules involved; and the matters asserted.
12. Administrative Law Judge Penny Wilkov convened a hearing in this case on December 1, 2004, at the State Office of Administrative Hearings, Austin, Texas. Carrier appeared and was represented by Attorney R. Scott Placek. Provider did not appear, nor was he represented, at the hearing. Following a post-hearing filing, the record closed on December 7, 2004.
13. Despite the services rendered to Claimant between December 2, 2002, and July 15, 2003, by Provider, Claimant experienced no significant improvement in her condition. Claimant reported a subjective level of pain of seven on a one to ten scale on October 7, 2002, shortly after the surgery, and an identical level of pain on December 2, 2002, the first day of disputed
14. service. On January 30, 2003, Claimant was still experiencing pain of five and one-half on
15. the same scale, attributable to the natural healing of the injury.
16. No delayed healing, justifying chiropractic treatment from December 2, 2002, until July 15, 2003, and attributable to Claimant’s history of asthma, hypothyroidism, or the age of the injury, was demonstrated.
17. Claimant was not at risk of injuring herself, and was not shown to be incapable of instruction, and therefore, a home rehabilitation program, rather than the therapeutic exercises and related office visits, were appropriate for Claimant’s condition.
18. The passive modalities, including myofascial release, electrical stimulation, hot and cold packs, ultrasound therapy, and related office visits, beyond the acute stage of healing, three for four weeks after surgery, were not medically necessary.

IV. CONCLUSIONS OF LAW

1. The State Office of Administrative Hearings (SOAH) has jurisdiction over matters related to the hearing, 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. Carrier timely filed a request for hearing before SOAH, as specified in 28 Tex. Admin. Code § 148.3.
3. The parties received proper and timely notice of the hearing pursuant to Tex. Gov’t Code Ann. ch. 2001 and 1 Tex. Admin. Code § 155.27.
4. Carrier had the burden of proving the case by a preponderance of the evidence pursuant to 28 Tex. Admin. Code § 148.21.
5. An employee who has sustained 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 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. Tex. Lab. Code Ann. § 408.021(a).
6. Health care includes all reasonable and necessary medical services. Tex. Lab. Code Ann. § 401.011(19)(A).
7. Carrier established that the office visits, myofascial release, electrical stimulation, hot and cold packs, ultrasound therapy, report writing, and one-on-one therapeutic exercises, administered between December 2, 2002, and July 15, 2003, are not reimbursable under Tex. Lab. Code Ann. §§ 401.011(19) and 408.021(a).
8. Carrier should not reimburse Provider for services provided to Claimant as noted in Con. of Law No. 7.

ORDER

IT ISORDERED that Brian Randall, D.C. is not entitled to reimbursement by Texas Mutual Insurance Company for the office visits, myofascial release, electrical stimulation, hot and cold packs, ultrasound therapy, report writing, and one-on-one therapeutic exercises, provided to Claimant between December 2, 2002, and July 15, 2003.

Signed January 14, 2005.

PENNY WILKOV
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Petitioner’s Exhibit 2, page 295.↑
2. Petitioner’s Exhibit 2, page 472 (MRI Examination of Jose L. Guerra-Paz, M.D., on August 6, 2002).↑
3. Petitioner’s Exhibit 1, pages 231-240.↑
4. Petitioner’s Exhibit 2, pages 632-635 (Orthopedic Surgeon, Camille George, M.D.)↑
5. Petitioner’s Exhibit 1, page 5.↑
6. Petitioner’s Exhibit 1, page 176, contains a Daily Patient Record, dated December 2, 2002, which shows a subjective pain level of seven, and a description of symptoms as “same.” Petitioner’s Exhibit 1, page 202, contains a Daily Patient Record, dated January 30, 2003, which shows a subjective pain level of five and one-half, and a description of symptoms as “same, and neck pain still.”↑
7. Petitioner’s Exhibit 2, page 299.↑