DECISION AND ORDER

Pain & Recovery Clinic – North (Provider) appealed an Independent Review Organization (IRO) decision that determined 14 physical therapy sessions from March 24, 2003, through May 3, 2003, were not medically reasonable and necessary for a workers’ compensation claimant. The amount in dispute is $4,654. As reflected in the Findings of Fact and Conclusions of Law, this decision denies the Provider’s appeal.

I. PROCEDURAL HISTORY AND JURISDICTION

The hearing for this case first convened on January 19, 2005. The Provider was represented by William B. Maxwell, who appeared in person for the hearing. No representative for American Casualty Company of Reading, PA., the Carrier, entered an appearance. From the hearing room in which Mr. Maxwell was present, Administrative Law Judge (ALJ) William G. Newchurch, who was then assigned to hear this case on behalf of SOAH, contacted the Carrier’s attorney, David Swanson. Mr. Swanson requested a continuance. ALJ Newchurch granted the request and reset the hearing for March 23, 2005, a date the party representatives had agreed upon.

On March 18, 2005, Mr. Maxwell filed a Motion for Continuance. In the motion, Mr. Maxwell stated that he had a conflicting setting in the District Court of Brazos County on the same date as the State Office of Administrative Hearings (SOAH) hearing. On behalf of the Carrier, James M. Loughlin, attorney, opposed the motion, stating that the Carrier would incur a cancellation fee of $700 for its expert witness if the hearing continued.

The Carrier offered to agree to the continuance if the Provider was willing to reimburse the Carrier for the cancellation fee.

After considering the Provider’s motion and the response, the ALJ denied the motion. In addition to the reasons Mr. Loughlin had mentioned, the ALJ noted that Mr. Maxwell had agreed to the hearing date. In response to the ALJ’s order that denied his motion, Mr. Maxwell filed an amended motion, stating with more specificity why he could not be available for the SOAH hearing.

On the morning of March 23, 2005, the ALJ conducted a prehearing conference to consider the amended motion. Both Mr. Maxwell and Mr. Loughlin participated by telephone. After hearing additional arguments, the ALJ informed the parties that the hearing could commence after Mr. Maxwell completed his Brazos County hearing, and Mr. Maxwell would be allowed to participate in the hearing by telephone conference. However, each party was limited to one hour to present its evidence, so that the evidentiary portion of the hearing could conclude within the time frame for which the Carrier’s expert had been retained (1:30 – 4:30 p.m.). Further, the ALJ informed the parties that they would be allowed to give closing statements from 4:30 p.m. to 5:00 p.m., if they wished to do so.

The hearing convened at approximately 2:00 p.m., on March 23, 2005, after Mr. Maxwell had informed SOAH that he had completed his Brazos County case. The Provider submitted one exhibit, which was admitted into evidence. Three of the Carrier’s four exhibits were admitted into evidence, and the Carrier offered the testimony of Steven Minors, D.C. The hearing concluded that same day, but the record was left open until April 18, 2005, in response to Mr. Maxwell’s request for the parties to be allowed to file written closing arguments.

II. BACKGROUND

As detailed in the Findings of Fact, the claimant was treated with physical therapy after his injury. He underwent two microdiscectomies in 2002 and began physical therapy again on December 16, 2002. From that date until March 24, 2003 (the first date in dispute in this proceeding) the claimant had 27 physical therapy sessions. Each session included:

99213 office visit

97265 joint mobilization

97250 myofascial release

97110 therapeutic exercises

The 14 physical therapy sessions in dispute were provided from March 24, 2003, through May 3, 2003, and included the same components as the earlier 27 post-surgery sessions. As of May 2003, the claimant had not reached maximum medical improvement, and in August of that year, he underwent extensive back surgery.

III. ARGUMENTS

The Provider asserted that the care, which was recommended by the treating doctor and provided by a licensed physical therapist, was necessary to cure or relieve the effects of the claimant’s work-related injury based on his persistent functional deficits. Further, the Provider argued that additional surgery was not recommended until after the dates in dispute. Thus, according to the Provider, it was unaware that its services would not provide relief for the claimant.

The Carrier argued that the claimant received adequate physical therapy prior to the dates in dispute, and there was no need for more one-on-one therapy. The physical therapy notes for the dates in dispute do not indicate the frequency, intensity, or duration of exercises. Without such documentation, it is unclear whether the claimant improved over time in response to the treatment. Also, the exercises performed could have been done at home or in a group setting, the Carrier argued, and the documentation did not explain why joint mobilization or myofascial release were appropriate treatments for the claimant. Finally, the Carrier asserted that the Provider should not have billed CPT code 99213, an office visit for evaluation and management, on each date the claimant received physical therapy, and the Provider’s notes do not support reimbursement for this service.

IV. ANALYSIS

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 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.^[1] Health care includes all reasonable and necessary medical aid, including physical rehabilitation services performed by a licensed occupational therapist at the direction of a doctor.^[2]

The ALJ finds that the Provider failed to meet its burden of proof and is not entitled to reimbursement for the services rendered from March 24, 2003, through May 3, 2003. The Provider did not make ongoing evaluations about the claimant’s progress. Each daily progress note is essentially the same and includes check marks besides certain preprinted statements. The claimant was not objectively measured for functional gains. While reports written on January and May 2003 indicate some improvement in the claimant’s condition, the improvement is not significant. By March 25, 2003, the Provider was aware that the claimant may have required more surgery. Certainly, on that date at the latest, the claimant should have been re-evaluated to determine the efficacy of continued physical medicine treatment. Even so, there was insufficient evidence to substantiate the need for ongoing services at that time.

On each day of treatment, in addition to the physical therapy exercises, the Provider billed for myofascial release, joint mobilization, and an intermediate-level office visit. However, there was no evidence as to the need for myofascial release and joint mobilization and no record that met requirements for an intermediate-level office visit, i.e., at least two of these three key components: an expanded, problem-focused history; an expended, problem-focused examination; and medical decision making of low complexity. Consequently, the ALJ finds that the Provider failed to meet its burden of proof.

V. FINDINGS OF FACT

Notice and Procedural History

1. On May 28, 2004, the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) denied the request of Pain & Recovery Clinic – North (Provider) for reimbursement after reviewing an Independent Review Organization decision that found
2. reimbursement for office visits, myofascial release, joint mobilization/osteomani, and related physical therapy procedures were not medically necessary for a workers’ compensation claimant.
3. In response to the MRD determination, the Provider requested a hearing before the State Office of Administrative Hearings (SOAH) within 30 days of receiving the MRD decision.
4. Notice of the hearing was sent to the parties on July 14, 2004.
5. 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.
6. The hearing for this case convened on January 19, 2005. The Provider was represented by William B. Maxwell, who appeared in person for the hearing. No representative for the Carrier entered an appearance. From the hearing room in which Mr. Maxwell was present, Administrative Law Judge (ALJ) William G. Newchurch, who was then assigned to hear this case on behalf of SOAH, contacted an attorney for the Carrier, David Swanson. Mr. Swanson requested a continuance.
7. ALJ Newchurch granted the continuance request and reset the hearing for March 23, 2005, a date agreed upon by both parties.
8. The hearing convened as scheduled on March 23, 2005, at SOAH 300 West 15^th Street, 4^th Floor, Austin, Texas, before the undersigned ALJ. Mr. Maxwell represented the Provider via telephone conference call, and attorney James M. Loughlin represented the Carrier.
9. The hearing concluded that day, but the record remained open until April 18, 2005, for the parties to file closing arguments.

Injury and Treatment

1. The claimant sustained a work-related injury to his lower back on___, when he was 39 years old.
2. From October 1, 2001, through August 8, 2002, the claimant was treated with more than 50 physical therapy sessions.
3. On August 29, 2002, the claimant underwent endoscopic microdiscectomy at L4-5, and on October 30, 2002, he underwent the same procedure at L5-S1.
4. After the procedures mentioned in the preceding finding, the claimant’s treating doctor recommended more physical therapy for the claimant.
5. From December 16, 2002, to March 24, 2003, (the first date in dispute in this proceeding), the claimant attended 27 physical therapy sessions.
6. A January 3, 2003, physical therapy progress note sets goals for physical therapy and outlines a plan of care, but it does not include objective range-of-motion and strength measurements.
7. The 14 physical therapy sessions in dispute were provided from March 24, 2003, through May 3, 2003.
8. For each of the 14 physical therapy sessions in dispute, the same modalities were billed:
   1. Therapeutic procedures, one or more areas, each 15 minutes (97110);
   2. Myofascial release/soft tissue mobilization, one or more regions (97250);
   3. Joint mobilization, one or more areas (peripheral or spinal) (97265); and
   4. Office visit for evaluation and management (99213).
9. From February 3, 2003, to February 27, 2003, and from March 1, 2003, through July 2, 2003, the daily progress notes have the same comment, The patient still displays point tenderness at the lumbar region.
10. On March 1, 2003, the progress notes add a notation to show the claimant had painful ranges of motion and some weakness; the reference to pain and weakness is repeated in the progress notes through July 2, 2003.
11. Based on the Provider’s progress notes, the claimant’s condition worsened on March 1, 2003.
12. On March 12, 2003, a designated doctor evaluated the claimant to determine whether he needed additional surgery. The claimant’s pain level was 7/10, and his pain radiated to his right leg.
13. By March 25, 2003, the treating doctor was aware that the claimant may have required another lumbar spine surgery.
14. Between January 3, 2003, and May 30, 2003, the claimant had some improvement in trunk rotation and in strength; however, the claimant’s subjective, low-back pain did not change or changed only slightly between those dates (6/10 at rest and 8/10 with activity on January 3 and 6/10 at rest and 7/10 to 8/10 with activity on May 30, 2003).
15. There was no evidence showing whether the claimant had reached this level of improvement prior to the dates in dispute or whether the additional therapy sessions from March 24, through May 3, 2003, contributed to the improvement.
16. There was no evidence to explain why joint mobilization or myofascial release were appropriate treatments for the claimant.
17. Except to check a line to indicate that the claimant tolerated all procedures well and to state that his response was fair, the Provider did not document the claimant’s daily response to treatment.
18. Without documenting the claimant’s daily response to treatment, the Provider could not have known whether to modify the treatment plan to better meet the claimant’s needs.

CPT Code 97110 Charges

1. The Provider billed for six one-on-one therapeutic sessions (90 minutes) on each disputed service date.
2. To bill for CPT code 97110, a Provider must provide continuous one-on-one direct therapy for a claimant.
3. Extended one-on-one therapy is most appropriate for persons with cognitive deficits or those who have suffered injuries that affect a patient’s balance.
4. The one-on-one therapy provided to claimant included stretching exercises, riding a stationary bike, walking on a treadmill, and using a life fitness circuit.
5. There was insufficient evidence that the claimant needed one-on-one supervision to perform these activities.

CPT Code 99213 Charges

1. CPT code 99213 is used to bill for an intermediate-level office visit.
2. An intermediate level office visit is used for evaluation and management of an established patient, which requires at least two of these three key components: an expanded, problem-focused history; an expended, problem-focused examination; and medical decision making of low complexity.
3. The Provider’s progress notes do not contain the components required in order to support a bill for an intermediate level office visit.
4. There was no evidence that established the medical necessity of the 14 office visits during the disputed service dates.

VI. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction over this matter pursuant to Tex. Lab. Code Ann. § 413.031.
2. 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 and Tex. Gov’t Code Ann. ch. 2003.
3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. § 2001.052.
4. The Provider had the burden of proof in this matter, pursuant to 28 Tex. Admin. Code § 148.21(h).
5. The Provider did not meet its burden of proving the physical medicine treatment and office visits from March 24, 2003, through May 3, 2003, were medically reasonable and necessary.
6. Based on the Conclusions of Law, the Provider’s request for reimbursement should be denied.

ORDER

IT IS, THEREFORE, ORDERED that American Casualty Company of Reading PA., is not required to reimburse the Pain & Recovery Clinic – North for services billed under CPT codes 99213, 97265, 97250, and 97110 on March 24, through May 3, 2003.

Signed June 17, 2005.

SARAH G. RAMOS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Tex. Lab. Code Ann.§408.021.↑
2. Tex. Lab. Code Ann. §401.011(19)(B).↑