DECISION AND ORDER

Michael Bhatt, D.C., requested a hearing to contest determinations by an Independent Review Organization (IRO) and the Texas Workers= Compensation Commission (Commission) Medical Review Division (MRD), that certain therapeutic exercises and office visits he provided to an injured worker (Claimant) were medically unnecessary. The ALJ concludes that Dr. Bhatt proved the services at issue^[1] were medically necessary and should be paid.

I. PROCEDURAL HISTORY

A hearing convened and closed on January 25, 2005, before the undersigned Administrative Law Judge (ALJ) at the State Office of Administrative Hearings, Austin, Texas. Dr. Bhatt appeared and represented himself. The Claimant’s employer’s workers= compensation insurance carrier, Travelers Indemnity Company (Travelers), was represented by Jeanne Schafer.

II. DISCUSSION

A.FACTUAL AND LEGAL BACKGROUND TO REQUEST

The Claimant sustained an injury on ___, while working for ___, when his right leg slipped in front of him on some leaves. His spine went into a hyper-extended position. Dr. Bhatt treated him from October 7, 2002, through March 17, 2003, based on a diagnosis of suspected right-sided lumbar facet pain and possible right S1 joint dysfunction.

Employees have a right to necessary health care under Tex. Labor Code Ann. §§ 408.021 and 401.011. 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.”

As appellant, Dr. Bhatt has the burden of proof. 1 Tex. Admin. Code (TAC) §155.41; 28 TAC §148.21(h).

The IRO review was performed by a licensed chiropractor who stated the following rationale in support of his/her conclusion:

• The initial examination revealed range of motion without evidence of arcs of motion, palpation findings, and one positive orthopedic test;
• there was no evidence of progress in the examinations;
• a magnetic resonance imaging (MRI) of the lumbar spine revealed some arthritic changes and the examination findings indicated that the patient had reached maximum medical improvement;
• there was no evidence that additional care would have made substantial changes in the patient’s condition;
• the patient could have been transitioned to an independent home exercise program; and
• the treatment received surpassed the American College of Orthopedic Environmental Medicine guidelines and the Mercy guidelines.^[2]

B. EVIDENCE AND ARGUMENT

Travelers denied Dr. Bhatt’s claim on the basis of a peer review by Aaron L. Combs, M.D., P.A., which concluded:

Based on today’s examination and review of the records, I feel the initial treatment rendered has been directly related to the compensable injury, however, has exceeded typical recovery periods for similar injuries/complaints. I see no indications of neurologic deficit or for further aggressive treatment, diagnostics, chiropractic care or surgical intervention. Claimant’s condition is compatible with a release from active care to a home based program of stretching and strengthening of the lumbar spine region. Claimant’s condition is compatible with a release to work at full duty with no restrictions. . . .^[3]

Dr. Bhatt testified the Claimant was initially referred to him by Mark Queralt, M.D., and Jerald Head, M.D., who are part of a group he practices with. On February 17, 2003, Dr. Head referred the Claimant for the treatments at issue, at two times per week for four weeks.^[4]

Dr. Bhatt testified the Claimant improved under his care. He was only able to do light duty

when he presented, but was able to return to full capacity within two weeks of starting treatment.^[5]

Dr. Bhatt disputed statements from the IRO doctor and Dr. Combs saying that the care exceeded the typical recovery period contained in applicable guidelines. He testified a guideline called the “Mercy Consensus Document” is commonly used to determine the necessity of treatment and the Claimant’s treatment fell well within those guidelines.

Dr. Bhatt contended the IRO doctor’s rationale is filled with inaccuracies. Contrary to what the IRO doctor said, he did perform an arc of motion examination on the initial visit, as shown by a weight-bearing extension that was painful at ten degrees and that reproduced right-sided lower back pain. Also contrary to what the IRO doctor said, he performed more than one orthopedic examination. These included a weight-bearing extension with ipsilateral rotation that further increased the Claimant’s right-sided lower back pain; a repeated movement examination with pain that worsened with extension and was relieved by flexion; and a range of motion to extension that improved after repeated flexion. Dr. Bhatt also cited a palpation that revealed tenderness over the right lumbosacral junction and over the right PSIS and a Faber’s test that produced pain over the right lumbosacral junction.^[6] This evidence shows the IRO doctor was wrong in saying there were no palpation findings.^[7]

Dr. Bhatt cited the IRO doctor’s reference to the American College of Orthopedic Environmental Medicine guidelines. He said he has never heard of those guidelines, although he has heard of the American College of Occupational Environmental Medicine guidelines. He maintained the latter guidelines do not support the IRO doctor’s opinion.

Dr. Bhatt testified treatment is justified if the patient is improving and getting stronger or his/her symptoms are manageable. He cited opinions by the IRO doctor and Dr. Combs saying the Claimant should have been put on a home exercise program. He said he did that at the beginning of the claimant’s treatment.

Dr. Bhatt maintained his treatment was appropriate under § 408.021of the Texas Labor Code because it cured or relieved the Claimant’s pain, promoted recovery, and enhanced his ability to return to and retain employment. He noted the Claimant walks twelve to fifteen miles per day in his job. He asserted the treatment was within the time frame prescribed by Dr. Head on February 17, 2003, and was within applicable treatment guidelines. He does not believe that eighteen or nineteen treatments over a four-month period was excessive.

Ms. Schafer relied on the IRO and peer review doctor’s statements that the appropriate number of treatments was exceeded. She argued there was insufficient evidence that a home

exercise program would not have been adequate.

C. ANALYSIS

The ALJ concludes that Dr. Bhatt proved the treatments were medically necessary. The primary issue appears to be a disagreement over whether the treatments were within the permissible time frames stated in applicable treatment guidelines. Dr. Combs said the treatment exceeded typical recovery periods for similar problems and he saw no indications for further treatment. Similarly, the IRO doctor said the treatment surpassed applicable guidelines and further treatment was not justified by a showing of progress in the examinations or a showing that additional care would have made substantial changes in the Claimant’s condition.

Dr. Bhatt’s assertions concerning an appropriate time frame for treating the Claimant’s condition was implicitly supported by Dr. Head, who referred the Claimant for four more weeks of treatment on February 17, 2003.

Overall, the ALJ found Dr. Bhatt’s testimony more convincing than the written statements from the IRO doctor and Dr. Combs because it was provided under oath and subject to cross-examination. The preponderant evidence is that the Claimant made progress during Dr. Bhatt’s treatment, including an ability to walk twelve to fifteen miles per day as required by his job, and that

the treatment was within the time frames permitted by applicable guidelines.

III. FINDINGS OF FACT

1. The Claimant sustained an injury on ___, while working for ___, when his right leg slipped in front of him on some leaves.
2. The Claimant’s spine went into a hyper-extended position.
3. Michael Bhatt treated the Claimant from October 7, 2002, through March 17, 2003.
4. Dr. Bhatt’s diagnosis was suspected right-sided lumbar facet pain and possible right SI joint dysfunction.
5. The disputed treatments/services were therapeutic exercises from March 5, 2003, through March 17, 2003.
6. Dr. Bhatt did not challenge the Texas Workers= Compensation Commission Medical Review Division determination that services on February 13 and 24, 2003, should not be paid because they were not submitted for medical dispute resolution within one year of the date of service.
7. The Claimant’s employer’s insurance carrier, Traveler’s Indemnity Company (Travelers), denied Dr. Bhatt’s claim for the treatments/services.
8. Dr. Bhatt requested medical dispute resolution.
9. An independent review organization concluded that the services/treatments were medically unnecessary.
10. It is undisputed that Dr. Bhatt requested a hearing not less than 20 days after receiving notice of the hearing.
11. 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.
12. All parties had an opportunity to respond and present evidence and argument on each issue involved in the case.
13. The Claimant walks twelve to fifteen miles per day in his job.
14. The treatments/services cured or relieved the Claimant’s pain, promoted recovery, and enhanced his ability to return to and retain employment.
15. The treatments/services were within the time frames prescribed in applicable guidelines.

IV. 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. Dr. Bhatt has the burden of proof in this case. 1 Tex. Admin. Code (TAC) § 155.41; 28 TAC § 148(h).
3. Notice of the hearing was proper and timely. Tex. Gov’t. Code Ann. ” 2001.051 and 2001.052.
4. Dr. Bhatt proved that the March 5, 2003, through March 17, 2003 treatments/services were medically necessary. Tex. Lab. Code Ann. ‘ 408.021(a).
5. Travelers should pay for the treatments/services provided by Dr. Bhatt from March 5, 2003, through March 17, 2003.
6. Travelers should not be required to pay for treatments/services provided by Dr. Bhatt on February 13 and 24, 2003. Tex. Lab. Code Ann. ‘ 408.021(a).

ORDER

IT IS THEREFORE ORDERED that Travelers Indemnity Company pay the cost of services provided by Michael Bhatt, D.C., to the Claimant from March 5, 2003, through March 17, 2003, plus applicable interest.

IT IS ORDERED FURTHER that Travelers Indemnity Company is not required to pay the cost of services provided to the Claimant by Michael Bhatt, D.C., on February 13 and 24, 2003.

Signed February 4, 2005

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

1. Dr. Bhatt appealed the MRD decision for six dates of service, including February 13 and 24, 2003, and March 5, 6, 10, and 17, 2003. Upon learning at the hearing that MRD denied the February services because his request for medical dispute resolution was not filed within one year of the date of service as required by 28 Tex. Admin. Code § 133.307.d), Dr. Bhatt withdrew his appeal regarding services on those dates.↑
2. Ex. 2 at 38.↑
3. Ex. 2 at 6.↑
4. Ex. 1 at 25.↑
5. In an October 7, 2002, Oswestry Questionaire, the Claimant’s answers indicated a fifty-one percent disability. On October 21, 2002, after he began treatment, he rated himself at eighteen percent. His disability rating in a December 16, 2002, Questionaire was forty-four percent. Ex. 1 at 51-57.↑
6. Ex. 1 at 17.↑
7. Dr. Bhtt testified his March 5, 2003, notes, which state the word Atenderness, show another palpation finding.↑