DECISION AND ORDER

American Casualty Company of Reading, PA (Carrier) requested a hearing to contest a decision by Independent Review, Inc., an independent review organization (IRO), which found that an initial functional capacity evaluation or physical performance test was medically necessary for ___ (Claimant). The Administrative Law Judge (ALJ) holds that finds that Carrier met its burden of showing that the testing was not medically necessary for Claimant’s compensable injury.

I. JURISDICTION AND NOTICE

Notice and jurisdiction are not contested and are addressed in the Findings of Fact and Conclusions of Law set out below. ALJ Lilo D. Pomerleau convened the hearing on November 10, 2004. Carrier was represented by David L. Swanson, attorney. Robert Howell, D.C., owner of First Rio Valley Medical, P.A., appeared and represented himself. The hearing concluded and the record closed December 6, 2004, upon the filing of closing briefs.

II. DISCUSSION

A. Background Facts

Claimant incurred a compensable injury to her low back and left knee on ___, when she turned while lifting a heavy box at work. She felt a Apop” in her left knee. She was diagnosed on August 29, 2003, with a sprain in her lower back and some tendinitis in her left knee.^[1] A second diagnosis on September 5, 2003, confirmed a similar diagnosis: sprained lumbar spine, sprained left knee, and tendinitis of the left knee.^[2] Claimant underwent physical therapy three times per week for four weeks. An August 12, 2003 MRI of the left knee revealed no significant abnormalities. A September 11, 2003 MRI of the lumbar spine revealed a narrowing of the L5-S1 disc with slight disc bulge but no evidence of herniation or a surgical lesion (no acute findings).^[3] On September 29, 2003, Donald H. Nowlin, M.D., performed an evaluation for Carrier. Dr. Nowlin indicated:

I do not find any reason to continue treating this examinee and would recommend that all treatment cease. She requires no further imaging studies, radiographs, or other evaluation or physical therapy. She should be on a self-directed home program of back exercises and possibly moist heat and exercises to the left knee. In my opinion, she is capable of returning to regular duty.^[4]

Claimant subsequently changed treating doctors. Dr. Howell first evaluated Claimant on November 4, 2003. He indicated Claimant had a left knee sprain/strain and lumbar disc bulge. His treatment plan included a referral for a psychological evaluation; referrals to a pain management specialist, neurologist, and orthopedic surgeon; and referral for a functional capacity evaluation (FCE). Claimant underwent the FCE on November 13, 2003.^[5] Carrier disputes that this evaluation was medically necessary.

B. Applicable Law

An initial issue raised by Provider is that Carrier failed to comply with 28 Tex. Admin. Code (TAC) ‘ 133.304(c), which requires Carrier to include the correct payment codes and provide sufficient explanation for denial of benefits.^[6] The denial code for the FCE was AU,” unnecessary treatment. Provider argues that Carrier chose this denial code to avoid having a licensed health care provider review the treatment request.^[7] Provider also argues that Carrier failed to provide an explanation behind the payment code. In its entirety, Carrier stated, AU- unnecessary treatment (without peer review)(910-001) frequency exceeds that which is typically provided on a single date of service.”

The substantive issue in this case is whether Carrier, as petitioner, has shown by a preponderance of the evidence that the FCE was medically necessary. 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 Acures 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 Aincludes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services.”

C. Evidence

William Defoyd, D.C. testified on behalf of Carrier, which also offered two exhibits, which were admitted. Provider did not testify but offered two exhibits, which were admitted.

III. ANALYSIS

A. Compliance with 28 TAC 133.304(c)

Included in Provider’s evidence are several pages of letters Provider sent Carrier when Carrier initially denied payment for the FCE. On Provider’s letterhead is the following statement:

The carrier used Denial U (Unnecessary Treatment without Peer Review) as the payment exception code* for the above treatment(s)/service)s). This is used when the Insurance Carrier is denying payment because the Insurance Carrier deems the treatment(s) and/or service(s) to be medical [sic] unreasonable and/or unnecessary, and the Insurance Carrier is not basing that judgment on a peer review.^[8]

The ALJ finds that the denial code AU” properly raised the issue of whether the FCE was medically necessary. While the statement concerning the Afrequency” of the service is less clear, the focus of this case has been on whether the treatment was necessary. On that issue, Provider, while suggesting that a peer review should have been performed, nonetheless understood that the necessity of the treatment was the reason Carrier was denying payment. Additionally, the IRO requested from Provider Aall records that may be pertinent to the request for and denial due to lack of medical necessity of physical performance testing on 11/13/03”.^[9] The issue of medical necessity is clearly and properly in dispute.

B. Medical Necessity of the FCE

The weight of the evidence supports a finding that the FCE was not medically necessary. Dr. Defoyd testified that Provider did not know the physical demands of Claimant’s job as a data entry employee for an employer providing temporary workers; therefore, he could not structure a test to measure Claimant’s ability to perform. Provider did not contact the employer to obtain a job description but used the ADictionary of Occupational Titles”from the U.S. Department of Labor. Dr. Defoyd explained that the Department of Labor job titles are general classifications that list a range of physical demands (such as five listings for truck driver). He suggested these general classifications are not sufficient for providing a functional requirement for the FCE.

According to Dr. Defoyd, a number of other issues raised questions about the necessity of the FCE:

• There was no explanation in the initial examination as to why Claimant needed an FCE.
• Upon his initial evaluation of Claimant, Dr. Howell also referred Claimant to Dr. Kramer for pain management, to Dr. Moses for a psychological evaluation, to Dr. Fuller for electrical diagnostic testing, and to Dr. Tijmes for orthopedic consultation.^[10]
• Provider did not have Claimant’s full records before performing the FCE.
• The FCE failed to include all the elements of this type of exam, as listed by 28 TAC ‘ 134.202(e)(4)(A).
• The FCE and initial examination contained the exact same range of motion values, which Dr. Defoyd found highly unlikely.

Carrier raised a number of concerns that were unrebutted by Provider, chiefly, that there was no explanation for why an FCE was needed, and there was no stated functional requirement (a job goal) providing a context for the testing. The FCE indicates the test and results are Abased on the U.S. Department of Labor definitions for WORK.” The ALJ concurs with Dr. Defoyd that this category fails to provide an adequate functional requirement, especially in light of Claimant’s work as a data entry clerk for Manpower, a temporary agency. Accordingly, the ALJ determines that the FCE was not reasonably required or medically necessary within the meaning of ‘ 408.021. Thus, Provider is not entitled to reimbursement

IV. FINDINGS OF FACT

1. Claimant suffered a compensable injury to low back and left knee on ___, when she turned while lifting a heavy box at work. At that time, she felt a Apop” in her left knee.
2. American Casualty Company of Reading, PA (Carrier) was the insurance carrier for Claimant at the time of Claimant’s compensable injury.
3. At the time of her injury, Claimant was a data entry employee for an employer providing temporary workers.
4. An MRI of the left knee dated August 12, 2003, revealed no significant abnormalities.
5. An MRI of the lumbar spine dated September 11, 2003, revealed no evidence of herniation or a surgical lesion.
6. On September 29, 2003, Donald H. Nowlin, M.D. declared Claimant did not require additional treatment, although she would benefit from a self-directed home program of back and left knee exercises and moist heat.
7. Claimant subsequently changed doctors.
8. On November 4, 2003, Robert S. Howell, D.C., who owns First Rio Valley Medical, P.A. (Provider), first evaluated Claimant.
9. Provider’s initial treatment plan included a referral for a psychological evaluation; referrals to a pain management specialist, neurologist, and orthopedic surgeon; and to take a functional capacity evaluation (FCE).
10. The initial treatment plan did not state a reason why an FCE was needed.
11. Claimant underwent the FCE on November 13, 2003.
12. The use of the generl classification AWORK on the FCE failed to provide a specified functional requirement for the FCE.
13. Without a specific job classification, an FCE examiner is unable to structure a test to measure a claimant’s ability to perform.
14. Provider billed Carrier for the FCE performed on Claimant on November 13, 2003, which Carrier denied as not medically necessary.
15. Provider requested medical dispute resolution through the Texas Workers= Compensation Commission’s (the Commission) Medical Review Division. The dispute was referred to an Independent Review Organization (IRO), which found that the physical performance testing was medically necessary.
16. Carrier timely requested a hearing on the IRO decision.
17. 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. In the notice, the Commission’s staff indicated that it would not participate in the hearing.
18. The hearing convened and closed on November 10, 2004, with Administrative Law Judge (ALJ) Lilo D. Pomerleau presiding. Carrier appeared and was represented by David L. Swanson, attorney. Provider appeared and represented himself. The record closed on December 6, 2004, with the filing of briefs.

V. CONCLUSIONS OF LAW

1. The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers= Compensation Act (the Act), Tex. Lab. Code Ann. ch. 401 et seq.
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(k) 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.” 2001.051 and 2001.052.
4. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t CodeAnn. ch. 2001 and SOAH’s rules, 1 Tex. Admin. Code (TAC) ch. 155.
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 FCE was not medically necessary for treatment of Claimant’s compensable injury.
7. Based on the foregoing Findings of Fact and Conclusions of Law, Provider’s reimbursement request should be denied.

ORDER

IT IS, THEREFORE, ORDERED the reimbursement requested by First Rio Valley Medical, P.A. for a November 13, 2004 functional capacity evaluation is denied.

Signed February 4, 2005.

LILO D. POMERLEAU
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Carrier’s Ex. 1 at 3 (Oliver Achleitner, M.D., referral letter).↑
2. Id. at 5 (Gabriel Molina, LPT physical therapy report).↑
3. Id. at 16 (Donald H. Nowlin, M.D., evaluation).↑
4. Id. at 20 (Dr. Nowlin’s evaluation).↑
5. Provider’s Ex. 1 at 9-12 (Dr. Howell’s initial report and FCE).↑
6. 28 TAC § 133.304(c) provides, “At the time an insurance carrier makes payment or denies payment on a medical bill, the insurance carrier shall send, in the form and manner prescribed by the Commission, the explanation of benefits to the appropriate parties. The explanation of benefits shall include the correct payment exception codes required by the Commission’s instructions, and shall provide sufficient explanation to allow the sender to understand the reason(s) for the insurance carrier’s action(s). A generic statement that simply states a conclusion such as “not sufficiently documented” or other similar phrases with no further description of the reason for the reduction or denial of payment does not satisfy the requirements of this section. . . .”↑
7. Provider lso contends that Carrier should have used the denial code AD not properly documented if it now claims Provider failed to perform the FCE as required.↑
8. Provider Ex. 2 at 50, emphasis in the original text.↑
9. Provider’s Ex. 1 at 5, emphasis in the original text.↑
10. See Carrier’s Ex. 2 at 39 (initial examination).↑