DECISION AND ORDER

Kiest Park Medical (Provider) challenged the decision of an Independent Review Organization (IRO) upholding the denial of treatment rendered to ___ (Claimant) between May 28, 2003, through September 2, 2003. In this decision, the Administrative Law Judge (ALJ) finds that Provider met its burden of showing that the treatment rendered was reasonable and medically necessary for Claimant’s compensable injury. Therefore, Provider is entitled to $2,079.30 reimbursement.

The hearing convened and closed on January 19, 2005, before Steven M. Rivas, ALJ. Provider appeared and was represented William Maxwell, attorney. Texas Mutual Insurance Company (Carrier) appeared and was represented by Tim Riley, attorney.

I. DISCUSSION

A. Background Facts

Claimant sustained a compensable ankle injury on ___. Later, the Commission expanded her compensable injury to her lumbar and cervical spine.^[1] At some point, Claimant was referred to Provider for treatment of back pain associated with her compensable injury. On the disputed dates of service, Provider rendered therapeutic exercises and activities to Claimant using an instrument known as a DRX9000. Provider requested reimbursement for the exercises and activities Claimant performed on the DRX9000, which Carrier denied as not medically necessary. Provider filed a request for medical dispute resolution with the Medical Review Division of the Texas Workers’

Compensation Commission. The dispute was sent to an IRO, which upheld the denial of reimbursement, and Provider filed a request for hearing before the State Office of Administrative Hearings.

B. Applicable Law

The Texas Labor Code contains the Texas Workers’ Compensation Act (the Act) and provides the relevant statutory requirements regarding compensable treatment for workers’

compensation claims. In particular, Tex. Lab. Code Ann. § 408.021(a) provides that 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. The statute further states an 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.”

Under Tex. Lab. Code Ann. §401.011(19) health care “includes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services.”

C. Evidence and Analysis

Provider met its burden of proving that the services rendered were medically necessary. Provider’s first argument was that it received preauthorization for the DRX9000, and the services in dispute were “ancillary” to the DRX9000. Gretchen Jones, P.T., an employee at Provider’s facility, testified Provider requested preauthorization from Carrier for the DRX9000, and that request was approved. Provider offered no documents showing approval, and Ms. Jones admitted she based her opinion on what somebody “told” her and the fact that Carrier paid some of the charges associated with the DRX9000. Conversely, Carrier did not provide any documents or testimony that it denied preauthorization of the DRX9000, but instead argued Provider had not proven by a preponderance of the evidence that it received preauthorization. The ALJ believes that in this case, initial preauthorization of the DRX9000 is a crucial point because the disputed services were all performed using the DRX9000. In the ALJ’s opinion, if Provider’s initial preauthorization request for the DRX9000 was denied, none of the ancillary services could have been medically necessary. On the other hand, if there is some indication that Provider received initial preauthorization for the DRX9000, the ALJ must review Claimant’s treatment records to determine if the services were medically necessary under § 408.021. Neither side presented any compelling evidence to support their position regarding preauthorization, however, the ALJ believes Carrier’s payment of some charges associated with the DRX9000 makes it more likely than not that preauthorization was granted for the DRX9000.^[2]

Based on the records, Ms. Jones testified the therapeutic activities and exercises performed on the DRX9000 were prescribed by Claimant’s treating doctor Louis Zegarelli, D.O. Additionally, the records indicated Provider utilized an electronic stimulator known as a Matrix for some of activities and exercises. A review of the records also reflected Claimant suffered from “severe low back pain” at the outset of her treatment, and performed the prescribed activities and exercises without any complications. Furthermore, the daily notes show Claimant “tolerated the treatment well,” or “did very well” as she progressed through the prescribed treatment plan using the DRX9000.

Susan Dunlap, P.T., testified on behalf of the Carrier that the records did not reflect Claimant showed any signs of significant improvement as a result of performing the therapeutic activities and exercises in dispute. Ms. Dunlap additionally asserted Claimant’s treatment notes were of such “poor quality” that she could not tell whether the disputed treatment improved Claimant’s condition. However, on direct examination, Ms. Dunlap admitted she had never utilized the

DRX9000 or the Matrix device. On cross-examination, Provider’s counsel pointed out several instances where two or three pages of notes were recorded regarding Claimant’s treatment for a date of service. The notes contained a record of Claimant’s pain level, the exercises that were administered, and how well Clamant performed the exercises. In the ALJ’s opinion, the notes were detailed enough to show that the exercises in dispute were performed and that Claimant progressed well. Because the records were not “poor quality” and Ms. Dunlap had never utilized the DRX9000 or Matrix, her testimony was not persuasive.

Carrier also presented testimony of Clark Watts, M.D., who asserted the DRX9000 had never been shown to be effective in treating patients with back pain. Dr. Watts has extensive experience as a neurosurgeon, and asserted it was impossible to relieve a patient’s back pain by using an instrument like the DRX9000. However, Dr. Watts admitted on cross-examination that he had not reviewed the study presented by Provider in this case. The study titled Decompression, Reduction, and Stabilization of the Lumbar Spine: A Cost-Effective Treatment for Lumbosacral Pain suggested 86 percent of patients suffering from a ruptured intervertebral disc showed “good” or “excellent” results after performing decompression exercises on the DRX9000. However, the study also showed that only 55 percent of patients who suffered from a ruptured intervertebral disc obtained “good” results after performing traction exercises on the DRX9000. By no means did the results of the study overwhelmingly convince the ALJ of the efficacy of the DRX9000. Instead, the study illustrated that some patients experience more relief than others. Because Dr. Watts had not reviewed the study in question, he was unable to directly discredit it.

The overall efficacy of the DRX9000 may not have been determined, but the records clearly show Claimant’s condition improved after she performed the disputed exercises on the instrument. For these reasons, Provider should be reimbursed for the treatment rendered to Claimant using the DRX9000 between May 28, 2003, through September 2, 2003.

II. FINDINGS OF FACT

1. Claimant,__, sustained a compensable ankle injury on___. The Commission later expanded Claimant’s injury to include her back.
2. At some point, Claimant was referred to Kiest Park Medical (Provider) her treatment of her back pain.
3. Provider, requested preauthorization from Texas Mutual Insurance Company (Carrier) for the use of a DRX9000. The requested was approved.
4. From May 28, 2003, through September 2, 2003, Provider administered therapeutic activities and exercises using the DRX9000.
5. Provider billed Carrier $2,079.30 for the services rendered, and Carrier denied reimbursement on the basis that the services were not medically necessary.
6. Provider requested medical dispute resolution through the Medical Review Division of the Texas Workers’ Compensation Commission (the Commission). The dispute was referred to an Independent Review Organization (IRO), which upheld the denial of reimbursement.
7. Provider timely requested a hearing before the State Office of Administrative Hearings (SOAH).
8. Notice of the hearing in this case was mailed to the parties on July 9, 2004. The notice contained a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
9. The hearing convened and closed on January 19, 2005, with Administrative Law Judge Steven M. Rivas presiding. Provider appeared and was represented by William Maxwell, attorney. Carrier appeared and was represented by Tim Riley, attorney.
10. Claimant completed the prescribed therapeutic activities and exercises without any complication.
11. Provider maintained a sufficient record of Claimant’s progress as she advanced through the treatment program.
12. Claimant’s condition improved as a result of performing the prescribed therapeutic activities and exercises on the DRX9000.

III. CONCLUSIONS OF LAW

1. The State Office of Administrative Hearings has jurisdiction over 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. Provider timely filed its notice of appeal, as specified in 28 Tex. Admin. Code § 148.3.
3. Proper and timely notice of the hearing was effected upon the parties in accordance with Tex. Gov’t Code Ann. §2001.051 and § 2001.052 and 28 Tex. Admin. Code § 148.4.
4. Provider had the burden of proof on its appeal by a preponderance of the evidence, pursuant to Tex. Lab. Code Ann. § 413.031 and 28 Tex. Admin. Code §148.21(h).
5. Under Tex. Lab. Code Ann. § 408.021(a)(3), an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury.
6. The treatment rendered to Claimant from May 28, 2003, through September 2, 2003, was medically necessary for treatment of Claimant’s compensable injury.
7. Based on the Findings of Fact and Conclusions of Law, Provider is entitled to $2,079.30 reimbursement for the services rendered from May 28, 2003, through September 2, 2003.

ORDER

IT IS ORDERED THAT the Carrier reimburse Provider $2,079.30 for the treatment rendered to Claimant from May 28, 2003, through September 2, 2003.

Signed March 23, 2005.

STEVEN M. RIVAS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. ¹ Claimant was a bus driver and slipped on the stairs of a bus. Claimant initially complained of ankle pain. Apparently, Claimant later complained of back pain, and the Commission held her back was also related to the injury she sustained on___.↑
2. Although the specific DRX9000 charges paid by Carrier were not addressed at the hearing, Ms. Jones testified under oath that this was the case, and Carrier did not cross-examine her regarding the paid charges. Without any evidence to the contrary, the ALJ believes Ms. Jones’ assertions regarding the paid charges are true.↑