DECISION AND ORDER

Texas Mutual Insurance Company (Carrier) challenges an independent review organization (IRO) decision granting reimbursement to Brett M. Downey, D.C. (Provider) for therapeutic exercises, range-of-motion measurements, and office visits provided to an injured worker (Claimant). The Administrative Law Judge (ALJ) concludes most of the disputed services were shown not to be medically necessary for the treatment of Claimant’s injury. Consequently, reimbursement for the disputed services should be denied.

I. PROCEDURAL HISTORY

Administrative Law Judge (ALJ) Bill Zukauckas convened the hearing on December 6, 2004. Attorney Katie Kidd appeared on behalf of Carrier. Provider represented himself by telephone. The record closed on December 22, 2004, after receipt of proposed finding of fact and conclusions of law.

Notice and jurisdiction, which were not disputed, are addressed in the Findings of Fact and Conclusions of Law.

II. DISCUSSION

A. Background

Claimant suffered a compensable injury to his right index finger on ___, while at work. Claimant was diagnosed with near amputation of the right index fingertip and underwent a pin fixation of the middle phalanx fracture, repair of the ulnar digital nerve, and closure of the four centimeter laceration on May 21, 2002. An x-ray report dated July 30, 2002, indicated an oblique fracture line passing through the shaft of the middle phalanx had healed. On August 16, 2002, Claimant underwent a manipulation of the PIP and DIP joint and repair of the ulnar digital nerve using a sterile nerve graft.

Between October 16, 2002, and March 14, 2003, Claimant received chiropractic services from Provider. Provider submitted claims for these services to the Carrier for reimbursement and the Carrier denied the claims. Provider appealed and on February 24, 2004, the IRO assigned by the Texas Workers’ Compensation Commission (Commission) rendered a decision that, because

Provider had rendered 28 chiropractic treatments on Claimant without documented improvement, between October 16, 2002, and December 23, 2002,, further like-kind chiropractic treatments between December 26, 2002 and February 13, 2003, were not shown to be medically necessary. On April 28, 2004, the Commission’s Medical Review Division (MRD) issued a decision that said: (1) The IRO reviewed therapeutic activities (hot/cold pack therapy, electrical stimulation-unattended, neuromuscular re-education, myofascial release, and extended office visits) rendered from December 26, 2002, to February 13, 2003, that were denied by Carrier as not medically necessary, and (2) that other services rendered by Provider, but not considered by the IRO, under CPT codes 97530, 97010, 97014, 97112, 97540, and 97214, on dates of service between January 13 and March 14, 2003, in the total amount of $1,176.00, were to be reimbursed by Carrier because Provider showed documentation of the services and Carrier provided no Explanation of Benefits (EOB).

On May 18, 2004, Carrier appealed the MRD decision to the State Office of Administrative Hearings. Provider did not appeal. Consequently, the portion of services considered by the IRO and found to be not medically necessary are not subject to this appeal. Only the services billed in the amount of $1,176.00, discussed above, are at issue.

B. Analysis and Conclusion

Provider’s chiropractic treatments rendered to Claimant for dates of service between January 13, 2003 and March 14, 2003, were shown by Carrier to be medically unnecessary. Specifically, William David DeFoyd, D.C., testified that an appropriate chiropractic trial for Claimant would have lasted about two weeks from when it began on October 16, 2002. In this case Provider had already been paid for 28 visits over a two-month period from the first date of treatment. Dr. DeFoyd provided persuasive testimony that an evaluation of the efficacy of treatment should had been made by Provider after a brief trial. That was not done and a significant amount of additional treatment, including the dates of service in question, were rendered without measurable evidence of improvement. Consequently, the ALJ finds the services were not medically necessary and finds that no additional reimbursement is due Provider.

III. FINDINGS OF FACT

1. An injured worker (Claimant) suffered a compensable injury on ___.
2. At the time of Claimant’s injury, his employer held workers’ compensation insurance coverage with Texas Mutual Insurance Company (Carrier).
3. Claimant treating doctor was John LeMonaco, M.D., and on December 5, 2002, the Texas Worker’s Compensation Commission (Commission) approved a Change of Treating Doctor request made by Claimant, from Dr. LeMonaco to Brett M. Downey, D.C. (Respondent).
4. From October 16, 2002, to March 14, 2003, Claimant received chiropractic services from Respondent.
5. On multiple dates between December 26, 2002 and March 14, 2003, Respondent provided services to Claimant billed as:

CPT CodeDescription

97530 Therapeutic Activities

97010 Hot or Cold Packs

97014 Electric stimulation therapy

97112 Neuromuscular re-education

97540 Myofascial release

99212 Office/outpatient visit, est

1. An independent review organization (IRO) assigned to review Provider’s claim concluded the services provided for dates of service December 26, 2002, through February 13, 2003, were not medically necessary. The Medical Review Division (MRD) ordered that no reimbursement was due to Respondent for the services reviewed by the IRO.
2. Provider did not appeal the MRD decision to SOAH, and those services addressed by the IRO are not considered in this decision.
3. The Commission determined that some of the dates of service were to be reviewed by the MRD including the following CPT codes and corresponding dates of service listed on Attachment A, which is incorporated in this finding.
4. The MRD reviewer found no Explanation of Benefits (EOB) for the services in question and ordered Petitioner to reimburse Respondent in the amount of $1,175.00.
5. Petitioner appealed the MRD’s decision on May 18, 2004.
6. Each date of service in consideration was either during, or subsequent to, the period for which the IRO determined treatment was not necessary.
7. None of the services in consideration were medically necessary because Provider continued to provide these treatment beyond the date of a reasonable trial period when Claimant had not shown measurable signs of improvement.
8. Notice of the hearing was sent to the parties on June 14, 2004. The notice informed the parties of the date, time, and location of the hearing; a statement of the matters to be considered; the legal authority under which the hearing would be held; and the statutory provisions applicable to the matters to be considered.
9. The hearing convened and closed on December 6, 2004, and the record closed upon the submission of post-hearing filings on December 22, 2004.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction related to this matter pursuant to Section 413.031 of the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code Ann. § 401 et seq.
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. Admin.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. As Petitioner, Texas Mutual Insurance Company (Carrier) bears the burden of proof in this proceeding. 28 TAC §148.21(h).
6. Brett M. Downey, D.C., (Provider) did not file notice of appeal as specified in 28 TAC § 148.3 for those portions of the Texas Workers’ Compensation Commission Findings and Decision that were adverse to his position. Those portions of the decision are not reviewable by SOAH.
7. Carrier timely filed notice of appeal for those portions of the Commission’s finding that were adverse to its position.
8. The disputed services were not medically necessary as a routine, ongoing treatment for Claimant’s compensable injury.

ORDER

IT IS ORDERED thatTexas Mutual Insurance Company has no additional reimbursement liability to Bret M. Downey, D.C., for chiropractic services provided to Claimant on January 13, 2003, under CPT Code 97530, and all chiropractic services from February 17 to March 14, 2003.

Signed February 22, 2005.

BILL ZUKAUCKAS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS