DECISION AND ORDER

American Home Assurance Company (American Home) requested a hearing to contest an independent review organization (IRO) decision that an office visit for the evaluation and management of a new patient provided to an injured worker (Claimant) by First Rio Valley Medical, P.A. (First Rio), and an attendant work-status report submitted to the Texas Workers’ Compensation Commission (Commission) were medically necessary. American Home maintained a new patient office visit and work status report were unnecessary because the Claimant was not a new patient at First Rio. First Rio contended that the office visit was helpful in determining the Claimant’s condition and formulating a treatment plan and that American Home waived its objection to the first-office-visit charge by failing to assert that as a reason for denying the claim. This order concludes that American Home is not required to pay for the office visit, but is required to pay for the work-status report.

A hearing convened on August 17, 2004, before Administrative Law Judge (ALJ) James W. Norman at the State Office of Administrative Hearings (SOAH), Austin, Texas. American Home appeared and was represented by its counsel, Jack Latson. First Rio appeared and was represented by Robert S. Howell, D.C. There were no objections to notice or jurisdiction. The hearing closed on August 17, 2004.

I. Discussion

Background

The Claimant suffered an at-work injury to her neck, left shoulder, lower back and knees on ____, when she fell on a sidewalk, hitting both knees. She developed pain in her mid back, lower back, left groin area, left wrist/hand, and left shoulder. After undergoing a benefit review conference and contested case hearing for compensability, which was finalized on January 23, 2004, the parties agreed to compensable losses for incomplete rotator cuff tear of the left shoulder, impingement of the left shoulder, tear of the posterior horn of medial meniscus of both knees, lumbar sprain/strain and disc protrusions at the L4/L5 levels of her spine, and a cervical sprain/strain.

The disputed charges and services are $153.53 for an initial patient evaluation office visit on January 6, 2004, submitted under CPT code 99204, and $15.00 for a work status report submitted under CPT code 99080.

Employees hve a right to necessary health treatment under ” 408.021 and 401.011 of the Labor Code. Section 408.021(a) provides AAn employee who sustains 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: (1) cures or relieves the effects naturally resulting from the compensable injury; (2) promotes recovery; or (3) enhances the ability of the employee to return to or retain employment. Section 401.011(19) of the Labor Code provides that health care includes “all reasonable and necessary medical . . . services.”

CPT Guidelines and Treatment History

The description for CPT code 99204 is “Office or other outpatient visit for the evaluation and management of a new patient . . . .”^[1] (Emphasis in original). The CPT Evaluation and Management (E/M) Services Guidelines provide, “A new patient is one who has not received any professional services from the physician or another physician of the same speciality who belongs to the same group practice, within the past three years.”^[2]

First Rio began treating the Claimant in the spring of 2001 and continued there at times until the disputed office visit on January 6, 2004. The Claimant’s treating physician at First Rio was Sam J. Allen, D.C., although Dr. Howell also saw her at times. Dr. Howell wrote a report on the Claimant on November 19, 2002, which included a plan of treatment.^[3] Another document dated

November 13, 2002, shows Dr. Howell as the Claimant’s treating doctor.^[4] Dr. Howell wrote a letter on the Claimant’s behalf to American Home’s representative on July 9, 2003, in an attempt to settle their differences and avoid a benefit review conference.^[5]

Dr. Howell testified that the Claimant had been coming to First Rio for two or three years before January 6, 2004. Dr. Allen was Dr. Howell’s associate. Dr. Allen saw some patients and Dr. Howell saw others. The treating physician was responsible for a patient’s records and generally

handling the case. The doctors would cover each other’s patients, but were not responsible for them. Dr. Allen left First Rio at some point and took the Claimant’s records with him. The Claimant asked for Dr. Howell to be her treating doctor. The Commission approved the request.

Dr. Howell saw the Claimant on January 6, 2004, but explained he could not continue to see her because of a pending compensability dispute. He nonetheless took a detailed history and told her he would determine a treatment plan for her after the compensability issue was resolved.

C. Analysis

The ALJ concludes that American Home is not required to pay for the January 6, 2004, office visit because itwas not an office visit for the evaluation and management of a new patient under the above-quoted CPT code guidelines. Because the Claimant had been coming to First Rio for two to three years before the visit, she was not a patient who had “not received any professional services from the physician or another physician of the same speciality who belongs to the same group practice within the past three years.”

Dr. Howell maintained in closing argument that he would have simply billed the visit in some other fashion if he had known of American Home’s position. However, that issue was not before the court and it is not known whether American Home would have opposed payment of a different office visit on other grounds.

Dr. Howell also contended in closing argument that American Home is precluded by the Commission’s rules at 28 Tex. Admin. Code § 133.304(c) from denying the claim as an inappropriate new-patient-office visit because it did not state that as a ground for denying the claim. The rule requires an insurer to use the correct payment code exception when denying a claim and to provide sufficient explanation to allow the sender of the claim to understand the insurer’s reasons for denial. The ALJ was not persuaded by this argument because he could not find support for the waiver contention in the evidentiary record. The record before the ALJ did not contain an explanation of benefits or any ground given by American Home for denying the claim.^[6]

Dr. Howell argued that the January 6, 2004, office visit was not merely to tell the Claimant he could not treat her during the pendency of a compensability dispute, but also to review her history and plan a course of treatment. This argument, however, is not relevant to the basic issue of whether an initial office visit was warranted.

It is not possible to reconcile conflicting evidence on the work status report. One consideration is that the office visit at which Dr. Howell determined the Claimant’s work status (and said she could return to work) was not necessary. A countervailing consideration is Dr. Howell’s testimony that a work status report is required when a patient changes treating doctorsBthe Commission approved the Claimant’s request to change to Dr. Howell as her treating doctor.

American Home argued cogently that a doctor cannot justify becoming a new doctor just by filing a request to do soBit maintained, since the January 6, 2004, office visit was not justified as a new office visit, a first-patient evaluation and work-status report was also unjustified. The ALJ

nonetheless concludes that American Home should pay for the report because the Commission approved the change in treating doctors and once it did so, a work status report was required and thus medically necessary.

II. FINDINGS OF FACT

1. An injured worker (Claimant) suffered an at-work injury to her neck, left shoulder, lower back and knees on ____, when she fell on a sidewalk, hitting both knees.
2. American Home Assurance Company (American Home) was the Claimant’s employer’s workers’ compensation insurance carrier.
3. The Claimant began treating with First Rio Valley Medical, P.A. (First Rio) in the spring of 2001 and continued there at times until the disputed office visit on January 6, 2004.
4. The description for CPT code 99204 is “Office or other outpatient visit for the evaluation and management of a new patient . . . .” (Emphasis in original).
5. The CPT Evaluation and Management Services Guidelines provides, AA new patient is one who has not received any professional services from the physician or another physician of the same speciality who belongs to the same group practice, within the past three years.
6. The Claimant saw Dr. Howell for a new patient office visit on January 6, 2004, which Dr. Howell billed at $153.53 to American Home under CPT code 99204.
7. The Claimant was not a new patient for First Rio.
8. Dr. Howell also billed $15.00 to American Home for a work status report submitted under CPT code 99080.
9. In December 2003, the Texas Workers’ Compensation Commission (Commission) approved the Claimant’s request to change her treating doctor to Dr. Howell.
10. Dr. Howell filed the work status report with the Commission in accordance with a Commission requirement that a report be filed when a patient changes treating doctors.
11. American Home denied the First Rio claims described in Findings of Fact Nos. 6 and 8.
12. First Rio requested medical dispute resolution.
13. An independent review organization concluded that the disputed services were medically necessary and that American Home should pay for them.
14. It is undisputed that American Home requested a hearing not more than 20 days after receiving notice of the MRD decision.
15. All parties received not less than 10 days’ notice 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 a short, plain statement of the matters asserted.
16. All parties had an opportunity to respond and present evidence and argument on each issue involved in the case.

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. Lab. Code Ann. ‘ 413.031(k) and Tex. Gov’t. Code Ann. ch. 2003.
2. Notice of the hearing was proper and timely. Tex. Gov’t. Code Ann. ” 2001.051 and 2001.052.
3. American Home has the burden of proof in this case. 1 Tex. Admin. Code (TAC) ‘ 155.41; 28 TAC’ 148(h).
4. American Home proved that the initial office visit described in Finding of Fact No. 6 was medically unnecessary.
5. The work status report described in Finding of Fact No. 8 was medically necessary.

ORDER

IT IS THEREFORE ORDERED American Home Assurance Company pay First Rio Valley Medical, P.A. $15.00 plus applicable interest for a work status report submitted on behalf of the Claimant on January 6, 2004.

IT IS ORDERED FURTHER that First Rio Valley, P.A.’ s claim against American Home Assurance Company for a new patient visit for the Claimant on January 6, 2004, be and the same is hereby, denied.

Signed September 17, 2004.

JAMES W. NORMAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Ex. 1 at 9.↑
2. Ex. 1 at 2.↑
3. Ex. 1 at 117-124.↑
4. Ex. 1 at 134.↑
5. Ex. 1 at 41-43.↑
6. The ALJ concludes that First Rio has the burden of proving its claim that American Home waived its right to argue it is not liable for a first office visit. First Rio’s assertion is an affirmative defense, i.e., it seeks to avoid the effects of charging for an incorrect CPT code by establishing an independent reason that its claim should be paid. It is not American Home’s burden to negate every conceivable reason that it may be required to pay even when it has established a lack of medical necessity. It is First Rio’s burden to establish the affirmative defense that it should be paid even if its service was medically unnecessary.↑