DECISION AND ORDER

Texas Mutual Insurance Company (TMI) appeals a decision by the Texas Workers’ Compensation Commission’s (TWCC) Medical Review Division (MRD) regarding the medical necessity and documentation of chiropractic services provided to a workers’ compensation claimant by Respondent Candido F. Garcia, D.C. MRD referred the medical necessity issues to an independent review organization (IRO), which found some of the services medically reasonable and necessary but others not. MRD also denied reimbursement for some additional services based on lack of documentation submitted to MRD.^[1] The net result was that MRD ordered TMI to pay total reimbursement of $6,443.00. However, Dr. Garcia stipulated at hearing that $2,275.00 of these charges were in error, so the amount now in dispute totals $4,168.00. This decision finds the services medically reasonable and necessary and orders TMI to reimburse Dr. Garcia $4,168.00

I. JURISDICTION AND PROCEDURAL HISTORY

The Commission has jurisdiction over this matter pursuant to Tex. Lab. Code § 413.031. The State Office of Administrative Hearings (SOAH) has jurisdiction over matters related to the hearing in this proceeding pursuant to Tex. Lab. Code ‘ 413.031(k) and Tex. Gov’t Code ch. 2003. No party challenged jurisdiction or notice.

Administrative Law Judge (ALJ) Thomas H. Walston convened a hearing in this matter on May 25, 2005, at the SOAH hearing facilities in Austin, Texas. Attorney Ryan Willett represented TMI and attorney William Maxwell represented Dr. Garcia. The hearing concluded and the record closed the same day.

II. DISCUSSION

A. Introduction

Claimant ___ is a 44-year-old male who injured his low back on ___, while pulling a piece of rebar steel. He began receiving frequent therapy and chiropractic treatments from Dr. Garcia on August 14, 2002. TMI paid for these services through September 18, except for a part of Dr. Garcia’s charges on September 9 and 11, 2002. TMI then denied payment of most (but not all) of Dr. Garcia’s charges from September 20, 2002 – January 27, 2003. TMI resumed payment of Dr. Garcia’s services in February 2003, and on April 25, 2003, Claimant had surgery for a lumbar laminectomy at L4-5 on the left, with foraminotomy and disc removal. TMI also paid for post-surgery therapy provided by Dr. Garcia through December 2003.

As noted, TMI denied payment for various services provided by Dr. Garcia on September 9 and 11, 2002, and from September 20, 2002, through January 27, 2003. These are the services at issue in this proceeding. Some of these denials were based on lack of medical necessity and others on inadequate documentation. Dr. Garcia appealed TMI’s denials to the TWCC MRD, which referred the medical necessity issues to an IRO. The IRO reviewing doctor found that the disputed services provided between September 9 and November 29, 2002, were medically necessary, but not the services provided between November 29, 2002, and January 27, 2003. The IRO reviewing doctor stated the rationale as follows:

. . . It is evident from the notes provided that the patient was suffering from a significant injury to his lumbar spine as verified through exam and diagnostic imaging.

Due to this factor, an initial eight weeks of therapies was not sufficient to remedy his injury. Therefore, with the desire to exhaust all conservative care prior to surgery, continued care past the initial eight weeks was prudent.

However, on 11/13/02, the patient showed no improvement from the prior exam done on October 29, 2002, and no other documentation of therapies was present. Therefore, it must be assumed that no further progress was recorded following the date of 11/13/02. According to TWCC Rule, when there is documented absence of change in the condition of the injured worker over a period of time of no less than one month, re-evaluation of the injured worker’s condition is required, as well as re-evaluation of the current treatment program. It is the reviewer’s opinion that no further treatment past 11/29/03 would have been medically necessary in this case.

. . .

MRD accepted the IRO’s decision and also denied reimbursement of additional claims totaling $2,084.56 because of inadequate documentation. This resulted in a net award to Dr. Garcia of $6,443.00. TMI timely requested a contested case hearing on the $6,443.00 awarded by MRD, but Dr. Garcia did not request a hearing on his claims disallowed by the IRO and MRD.

B. Parties’ Evidence and Arguments

Both TMI and Dr. Garcia introduced voluminous records into evidence. William DeFoyd, D.C., testified for TMI, and Dr. Garcia’s deposition was admitted into evidence.

Records: The records offered into evidence exceed 1,200 pages. Many are duplicates or concern services provided after Claimant’s surgery, which are not at issue in this proceeding. For this case, the relevant records show that Dr. Garcia provided frequent sessions of extensive passive and active therapy, supervised one-on-one. These provided some temporary relief, but Claimant continued to complain of persistent back pain. An MRI preformed October 8, 2002, showed a 5 mm herniated nucleus pulposus at L4-5, and Dr. Edward Murphy, a neurosurgeon, recommended disc surgery. However, Claimant was diabetic and did not want to undergo surgery if possible; therefore, he asked for additional conservative care. Dr. Murphy agreed with Claimant’s request and prescribed additional therapy by Dr. Garcia. Unfortunately, the additional therapy did not help, so Claimant eventually underwent L4-5 back surgery on April 25, 2003.

TMI: The crux of TMI’s argument is that Dr. Garcia should have ended his passive treatments of Claimant after an initial one-month acute phase and should have ended all therapy when Claimant failed to show any improvement. In TMI’s view, the treatments in dispute were not medically reasonable or necessary because they provided no improvement to Claimant’s condition.

Dr. William Defoyd testified for TMI that none of the disputed services were medically reasonable or necessary because Claimant showed no improvement or progress from the treatments. He pointed out that even the IRO reviewing doctor stated that Dr. Garcia’s November 13, 2002 report shows no progress by Claimant, yet the IRO doctor approved additional care until November 29, 2002. Dr. Defoyd also criticized Dr. Garcia for continuing passive modalities (manipulation, hot/cold packs, electric stimulation, myofacial release, and ultrasound) long after the first two to four weeks, when the initial acute phase should have ended. He also stressed that Dr. Garcia provided Claimant with 18 sessions of passive therapy before the dates of the disputed services. Those sessions did not provide any improvement, but Dr. Garcia made no change to the treatment plan. In fact, Dr. Defoyd stated, Dr. Garcia never changed the treatment plan for nearly 90 visits. In his view, a doctor should change the treatment plan if the patient shows no improvement after one month.

Dr. Defoyd also criticized Dr. Garcia for billing one-on-one supervision for the active modalities (patient exercises) throughout the course of treatment. He stated that this level of supervision was not necessary when the patient performed the same exercises at every session. He agreed that one-on-one supervision might be necessary for special safety concerns or for the first few visits when the patient learned the exercises, but those situations did not exist here. Because Claimant had already been performing the exercises for six weeks by the time the disputed services began, Dr. Defoyd stated that the exercises during the disputed visits should have been performed in a group setting or at home. Dr. Defoyd added that one-on-one supervision was not medically necessary simply because Claimant was a surgical candidate, and he complained that Dr. Garcia provided no documentation to verify that one-on-one supervision actually occurred.

Finally, Dr. Defoyd also testified that the passive modalities were not necessary to treat Claimant’s pain after the acute phase of his treatment. Further, he stated that the passive modalities did not provide relief for Claimant’s pain in any event.

On cross-examination, Dr. Defoyd acknowledged that TMI paid for many of Dr. Garcia’s services, and that the documentation for the services paid was no different than for the services not paid. He also agreed that, as a diabetic, Claimant would take longer to heal from surgical complications than a non-diabetic person. Therefore, he was not surprised that Claimant wanted to try additional conservative care before undergoing surgery.

Dr. Garcia: Counsel for Dr. Garcia argued that the disputed services were medically reasonable and necessary to treat Claimant’s back injury, and in particular to relieve the pain caused by the injury. He also argued that TMI’s explanations of benefits (EOBs) did not adequately inform Dr. Garcia of the reasons for the denial of payment. Dr. Garcia testified in his deposition that he became a licensed chiropractor in 1993. After initially working with a medical doctor, Dr. Garcia operated his own practice, known as Doctors Affiliated, Inc., from 1995 through December 2003. He ended his practice in 2003 for health reasons.

Dr. Garcia recounted Claimant’s medical history, including Claimant’s diabetes. When Dr. Garcia first saw Claimant on August 14, 2002, he was on pain medication prescribed by another treating doctor, but he also continued to complain of acute pain. The treating doctor had referred Claimant to Dr. Garcia to see if therapy would alleviate the pain symptoms. Dr. Garcia thought Claimant was an appropriate candidate and began a course of passive treatment that included ice, electro-stimulation of the muscles, and massage. Dr. Garcia stated that for most patients the acute phase can last from a few days to a month. In this case, Claimant received only passive care until he began an active exercise program on September 9, 2002, so Dr. Garcia stated that Claimant’s acute phase lasted approximately one month.

Dr. Garcia testified that Claimant had a serious injury that was originally diagnosed as a strain. However, as discussed previously, an MRI performed October 8, 2002, showed that Claimant had a 5-mm herniated disc at L4-5. Dr. Garcia stated that a bulge greater than 3 mm makes a patient a surgical candidate. On October 29, 2002, Claimant’s neurosurgeon, Dr. Murphy, recommended surgery, but Claimant did not want surgery due to possible complications from his diabetes. Therefore, Dr. Murphy returned Claimant to Dr. Garcia with a prescription for 4-6 weeks of additional rehabilitation. During this time, Claimant participated in both passive and active treatments, including a stationary bicycle and exercising with a cardiovascular aerobic exercise video. Although Claimant repeated these same exercises on all visits, Dr. Garcia stated it was important for Claimant to have one-on-one supervision because he was a surgical candidate with a herniated disc. In other words, because Claimant had a herniated disc, Dr. Garcia considered him a high risk patient and supervised Claimant during the exercises to make sure he did not hurt himself further. Dr. Garcia also stated that it was appropriate to continue passive modalities after the initial acute phase in order to provide relief for Claimant’s continued pain. In his opinion, the passive modalities continued to be medically necessary as long as Claimant suffered from pain.

Dr. Garcia acknowledged that on some dates his office inadvertently double-billed for two hours of therapy when only one hour was actually provided. This resulted in an agreed reduction of his claim by $2,275.00, so the amount in dispute is now $4,168.00.

C. ALJ’s Analysis and Decision

The ALJ finds that TMI did not prove by a preponderance of the evidence that the therapy provided by Dr. Garcia to Claimant during the dates in dispute was not medically reasonable or necessary. Therefore, the ALJ upholds the IRO decision and, after applying the stipulated reduction of $2,275.00, finds that TMI should reimburse Dr. Garcia $4,168.00. It is undisputed that Claimant suffered a serious back injury that resulted in a herniated disc and eventual back surgery. It is also undisputed that an initial course of therapy was reasonable and necessary for Claimant. The dispute essentially concerns when additional therapy should have been considered futile and terminated.

Dr. Garcia and the IRO doctor both stated that additional passive therapy (manipulation, hot/cold packs, electric stimulation, myofacial release, and ultrasound) beyond the initial acute phase was reasonable due to the seriousness of Claimant’s injury, a herniated disc at L4-5. Further, Claimant had legitimate concerns about undergoing surgery due to his diabetes. As a result, Dr. Murphy (neurosurgeon) also recommended additional therapy as a last attempt to relieve Claimant’s symptoms without surgery. In response, TMI argues that all passive therapy should have ended after one month because that is when the initial acute phase was considered over. The ALJ finds that TMI’s position is too rigid and fails to take into account the specific circumstances of this Claimant. Considering the seriousness of Claimant’s injury, his continuing pain, and the potential surgical complications from his diabetes, additional therapy was reasonable beyond the initial acute phase of Claimant’s injury to provide pain relief and attempt to avoid surgery.

The ALJ also finds that the active therapy (exercises) provided to Claimant were reasonable and necessary through November 29, 2002, as found by the IRO. All parties and the IRO concur that, after a time, the exercises failed to provide any improvement for Claimant. But they disagree on when Dr. Garcia should have terminated the active therapy. The IRO reviewing doctor concluded that November 29, 2002, was the proper date to terminate the therapy because it was a period of one month without documented improvement after the last previous examination of Claimant on October 29, 2002. The IRO doctor relied on the TWCC rule that an a lack of improvement in the injured worker’s condition over a period of no less than one month requires re-evaluation of the treatment program. The ALJ believes the IRO doctor’s reasoning is logical and finds that November 29, 2002, is an appropriate end date for Dr. Garcia’s treatment of Claimant.

The final issue concerns Dr. Garcia’s one-on-one supervision of Claimant’s active therapy exercises. Dr. Garcia contends that his supervision was necessary to prevent further injury to Claimant’s herniated disc, which was already a serious condition that made Claimant a likely surgical candidate. In Dr. Garcia’s opinion, it was imperative that he supervise Claimant under these circumstances. Dr. Defoyd stated that Claimant’s injury and likely surgery did not require Dr. Garcia’s one-on-one supervision. The IRO reviewing doctor did not specifically address this issue. The ALJ considers this a close question. Under normal circumstances, there would be no need for continued one-on-one supervision of Claimant once he learned the exercises. Here, however, Claimant was known to have a herniated disc and it appeared he would probably need back surgery. Dr. Garcia believed this made it necessary for him to supervise Claimant during the exercises, while Dr. Defoyd stated it was not necessary. But Dr. Defoyd’s testimony was conclusory and did not explain why supervision was not necessary under these circumstances. Furthermore, Dr. Garcia was Claimant’s treating physician, he had examined Claimant, and he was responsible to prevent further injury to Claimant, while Dr. Defoyd merely reviewed Claimant’s records and had no responsibility

for his treatment. Although the issue is not free from doubt, TMI had the burden of proof, and the ALJ finds that TMI did not establish by a preponderance of the evidence that one-on-one supervision was not reasonable or necessary for Claimant’s proper treatment, especially considering the seriousness of Claimant’s injury.

In summary, the ALJ upholds the IRO decision and finds that TMI is required to reimburse Dr. Garcia for the disputed services provided between September 9 and November 29, 2002. After the stipulated reduction for billing errors is applied,Dr. Garcia is entitled to reimbursement of $4,168.00.

III. FINDINGS OF FACT

1. Claimant ___ sustained a compensable injury to his low back on ___, while pulling a piece of rebar steel.
2. Texas Mutual Insurance Company (TMI) is responsible for workers’ compensation coverage for Claimant’s injury.
3. On August 14, 2002, Candido F. Garcia, D.C., began providing Claimant with chiropractic treatments and rehabilitation therapy. He continued treating Claimant through December 2003.
4. An MRI performed on Claimant on October 8, 2002, showed a 5 mm herniated disc at L4-5. Based on the MRI, Dr. Edward Murphy, a neurosurgeon, recommended disc surgery.
5. Claimant was concerned about possible surgical complications because he was a diabetic. Therefore, he requested additional conservative care before attempting surgery, and on October 29, 2002, Dr. Murphy prescribed 4-6 weeks of additional rehabilitation therapy by Dr. Garcia.
6. Dr. Garcia sought reimbursement from TMI for the services he provided Claimant.
7. TMI denied payment of $16,422.56 for various chiropractic and therapy services provided by Dr. Garcia to Claimant on September 9 and 11, 2002, and between September 20, 2002, and January 27, 2003. TMI denied payment based on lack of medical necessity for some services and inadequate documentation for others.
8. The disputed services included both active and passive modalities and one-on-one supervision by Dr. Garcia for all of the services.
9. Dr. Garcia made a timely request to the Texas Workers’ Compensation Commission (Commission) for medical dispute resolution with respect to the requested reimbursement.
10. The Commission referred the medical necessity issues concerning the services described in Finding of Fact No. 7 to an independent review organization (IRO). The IRO concluded that the disputed services provided by Dr. Garcia to Claimant between September 9 and November 29, 2002, were medically reasonable and necessary, but the disputed services provided between November 29, 2002, and January 27, 2003, were not medically necessary.
11. The Commission’s Medical Review Division (MRD) concurred with the IRO’s finding in a decision dated May 26, 2004, in dispute resolution docket No. M5-03-2479-01. MRD also denied reimbursement of an additional $2,084.56 because of inadequate documentation submitted to MRD.
12. The decisions of the IRO and MRD resulted in an award to Dr. Garcia of $6,443.00.
13. TMI timely requested a contested case hearing with the State Office of Administrative Hearings (SOAH) concerning the $6,443.00 reimbursement ordered by MRD. Dr. Garcia did not request a hearing on the claims for which MRD denied reimbursement.
14. A contested case hearing was held at SOAH on May 25, 2005, and the record closed the same day.
15. TMI and Dr. Garcia attended the hearing.
16. All parties received not less than ten days notice of the time, place, and nature of the hearing; 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.
17. All parties were allowed to respond and present evidence and argument on each issue involved in the case.
18. At hearing, Dr. Garcia stipulated that $2,275.00 of his charges at issue were in error, so the amount in dispute is $4,168.00.
19. The disputed services provided by Dr. Garcia to Claimant between September 9 and November 29, 2002, were medically reasonable and necessary for the treatment of Claimant’s compensable injury. One-on-one supervision by Dr. Garcia of the disputed services was medically reasonable and necessary due to the seriousness of Claimant’s herniated disc and the likelihood that Claimant would require back surgery.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction related to this matter pursuant to Tex. Lab. Code Ann. § 413.031.
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 Tex. Lab. Code Ann. § 413.031(k) 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. TMI, as the party seeking relief, bore the burden of proof in this case pursuant to 28 TAC § 148.21(h).
6. Based on the Findings of Fact, TMI should reimburse Dr. Garcia $4,168.00 for the services made the basis of this proceeding.

ORDER

IT IS, THEREFORE, ORDERED that Texas Mutual Insurance Company shall reimburse Dr. Candido Garcia the sum of $4,168.00 plus applicable interest for disputed chiropractic and rehabilitation services provided to Claimant between September 9, 2002, and November 29, 2002, as described in this decision.

Signed July 15, 2005.

THOMAS H. WALSTON
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Dr. Garcia did not appeal the IRO and MRD’s partial denial of his claims.↑