DECISION AND ORDER

Petitioner, JCMLR, P.A., (Provider) appealed the Findings and Decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC) denying reimbursement from Texas Mutual Insurance Co. (Carrier) for medical services rendered to an injured worker (Claimant). Provider disputes the conclusion of the Independent Review Organization (IRO) that these services were not medically necessary. The Administrative Law Judge (ALJ) concludes that Provider has met its burden of proof with respect to all services in dispute provided to Claimant between December 20, 2002, and April 30, 2003. Thus, Provider should be reimbursed.

I. PROCEDURAL HISTORY

ALJ Penny Wilkov convened a hearing in this case on December 15, 2004, at the State Office of Administrative Hearings (SOAH), Austin, Texas. Provider appeared and was represented by Attorney Alan D. Tysinger. Carrier did not appear and was not represented at the hearing. The record closed after the hearing. No party challenged jurisdiction or notice.

II. DISCUSSION

Background

Claimant, who is 74 years old, sustained a work-related injury on ___, when she fell at work and broke her wrist and injured her right shoulder. Claimant has continued to have shoulder pain and has had several surgeries, including surgery on November 20, 2002, shortly before the disputed services but nevertheless she has continued to work. She has been diagnosed with right shoulder rotator cuff injury, wrist tendonitis, and decreased range of motion in the C spine and she describes symptoms of muscle spasms, cramping, shoulder stiffness, and wrist pain. Claimant’s history of treatments have included two surgeries to the right wrist, two surgeries to the right shoulder, medications, physical therapy, and chiropractic treatments, as well as diagnostic testing including an MRI and x-rays.^[1]

Carrier denied payment for certain chiropractic services, including neuromuscular re-education, therapeutic exercises, massage therapy, iontophoresis, supplies and materials, electrical stimulation, myofascial release, joint mobilization, measure of blood oxygen level, as well as associated office visits and report writing, administered by Provider between December 20, 2002, and April 30, 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

Provider submitted Claimant’s medical records, consisting of a 182-page compilation of medical evaluations, assessments, follow-ups, reviews, and test results. Provider also presented the testimony of Robert Lowry, M.D., and Thimios D. Partalas, D.C. ^[2]

Both Dr. Lowry and Dr. Partalas testified that the disputed services were medically necessary. According to Dr. Lowry, a surgeon and rehabilitative medicine practitioner, Claimant had just completed rotator cuff surgery by an orthopedic surgeon on November 20, 2002, when Dr. Lowry began post-operative treatment. However, shortly after beginning the therapy sessions, Claimant developed “shingles” (herpes zoster), a painful condition of scabs and sores on the skin, manifested on her neck, shoulder, and arms. Due to this painful condition, therapy did not resume until January 28, 2003, and by this time, there was significant regression in the shoulder necessitating additional treatments. According to Dr. Lowry, the additional treatments and testing were necessary to prevent scar tissue from forming which would have been very difficult to overcome due to Claimant’s age. Thus, the development of shingles, diabetes, and the regression of Claimant’s injury, compounded by Claimant’s age, medically necessitated all treatments administered between December 20, 2002, and April 30, 2003.

Dr. Partalas, who worked with Dr. Lowry to develop a treatment plan, testified that the rehabilitative therapy was necessary and could not have been accomplished at home. The passive therapies kept Claimant’s muscles from stiffening and prevented scarring, particularly after she had to stop therapy due to shingles, and the closely monitored active therapies were necessary to prevent injury and to insure the exercises were done properly. The testing and office visits were also necessary to insure that Claimant was tolerating and progressing with the therapies.

Dr. Partalas testified that Claimant has made progress with the therapy, noting that Claimant reported a 90% improvement after Provider’s treatments.^[3] Dr. Lowry testified that as a result of his treatment protocol, Claimant experienced an increase in her range of motion and was able to retain employment.

D. Analysis

Provider has met its burden of proof to show that the disputed services administered between December 20, 2002, and April 30, 2003, were medically necessary. Given that Claimant had a frail stature, had the medical conditions of diabetes, shingles, and had just completed surgery to repair her left shoulder on November 20, 2002, it was medically necessary to perform all disputed treatments. The active therapies were performed under close supervision because of the danger that she might injure herself. It was also medically necessary to make sure that the exercises were done correctly so that she did not scar which would have been extremely difficult to correct due to her age. Along those lines, the tests, supplies, and materials were necessary to monitor her heart and blood levels to insure that she was healthy enough to continue. Further, since treatments had to be interrupted after a flare-up of shingles from December 2, 2002, until January 28, 2003, causing a regression in her therapy which prolonged her recovery, the length of the passive treatments from December 20, 2002, to April 30, 2003, were also medically reasonable and necessary. Claimant’s age, shingles, soreness, and most importantly, the monitoring of her health were all factors that were considered in her rehabilitative treatment.

Therefore, the neuromuscular re-education, therapeutic exercises, massage therapy, iontophoresis, supplies and materials, electrical stimulation, myofascial release, joint mobilization, measure of blood oxygen level, as well as associated office visits and report writing, administered by Provider between December 20, 2002, and April 30, 2003, were medically necessary.

III. FINDINGS OF FACT

1. Claimant, who is 74 years old, sustained a work-related injury on ___, when she fell at work and broke her wrist and injured her right shoulder.
2. At the time of the injury, Claimant’s employer had its workers’ compensation insurance through Texas Mutual Insurance Co. (Carrier).
3. Claimant was diagnosed with right shoulder rotator cuff injury, wrist tendonitis, and decreased range of motion in the C spine.
4. Claimant described symptoms of muscle spasms, cramping, shoulder stiffness, and wrist pain but nevertheless continued to work.
5. Claimant underwent surgical repair of her shoulder on November 20, 2002, with an orthopedic surgeon, and afterwards began post-operative treatment provided by JCMLR, P.A., (Provider).
6. Beginning on December 20, 2002, and continuing until April 30, 2003, Carrier denied payment for neuromuscular re-education, therapeutic exercises, massage therapy, iontophoresis, supplies and materials, electrical stimulation, myofascial release, joint mobilization, measure of blood oxygen level, as well as associated office visits and report writing, administered by Provider as not medically necessary.
7. Provider requested medical dispute resolution with the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD).
8. An Independent Review Organization concluded that many of the treatments, including one-on-one therapy, rendered between December 20, 2002, and April 30, 2003, were not medically necessary.
9. Provider filed a request for a hearing before the State Office of Administrative Hearings on May 24, 2004.
10. The Commission sent notice of the hearing to the parties on June 29, 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.
11. Administrative Law Judge Penny Wilkov convened a hearing and closed the record in this case on December 15, 2004, at the State Office of Administrative Hearings, Austin, Texas. Carrier did not appear and was not represented at the hearing. Provider appeared and was represented by Attorney Alan D. Tysinger.
12. Since Claimant had the medical conditions of diabetes and shingles, was of frail stature, and had just completed surgery to repair her left shoulder on November20, 2002, it was medically necessary to perform all disputed treatments.
13. The active therapies were performed under close supervision due to the danger that Claimant might injure herself and to insure that the exercises were done correctly to prevent scarring which would have been extremely difficult to correct given her age.
14. The associated tests, supplies, and materials were necessary to monitor her heart and blood levels due to her pre-existing medical condition.
15. The treatments had to be interrupted after a flare-up of shingles from December 2, 2002, until January 28, 2003, causing a regression in her therapy which prolonged her recovery, necessitating the longer period of treatments from December 20, 2002, and continuing until April 30, 2003.
16. All disputed services were medically necessary due to Claimant’s age, diabetes, shingles, and to prevent scarring.

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. Provider 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. Provider established that the neuromuscular re-education, therapeutic exercises, massage therapy, iontophoresis, supplies and materials, electrical stimulation, myofascial release, joint mobilization, measure of blood oxygen level, as well as associated office visits, administered between December 20, 2002, and April 30, 2003, were reimbursable under Tex. Lab. Code Ann. §§ 401.011(19) and 408.021(a).
8. Carrier should reimburse Provider for services provided to Claimant as noted in Conclusion of Law No. 7.

ORDER

IT ISORDERED that JCMLR, P.A. is entitled to reimbursement by Texas Mutual Insurance Company for the neuromuscular re-education, therapeutic exercises, massage therapy, iontophoresis, supplies and materials, electrical stimulation, myofascial release, joint mobilization, measure of blood oxygen level, as well as associated office visits provided to Claimant between December 20, 2002, and April 30, 2003.

Signed February 3, 2005.

PENNY WILKOV
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Petitioner’s Exhibit 1, pages 4-8.↑
2. Carrier did not participate in the scheduled evidentiary hearing and provided no explanation to SOAH or the Commission, either before or after the hearing, for the failure to appear. However, since Carrier prevailed in the IRO proceeding related to this dispute, Provider bears the burden of proof.↑
3. Petitioner’s Exhibit 1 (Report dated June 9, 2003, Thimios D. Partalas, D.C., P.A.).↑