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At a Glance:
Title:
453-01-0467-m5
Date:
October 17, 2002
Status:
Retrospective Medical Necessity

453-01-0467-m5

October 17, 2002

DECISION AND ORDER

Both the Texas Association of School Boards’ Risk Management Fund (TASB) and Masterwork Systems (Masterwork)[1] appealed the findings and decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) in MDR Docket No. M5-00-0417-01, issued September 12, 2000, (MRD Order No. 1), which ordered reimbursement be paid to Masterwork for five consecutive days of manipulations under anesthesia (MUA) performed by a chiropractor in a doctor’s office on a workers’ compensation claimant (Claimant), but which denied reimbursement for ancillary services billed under CPT code 99499-RR.

The parties’ original appeal of MRD Order No. 1 was remanded from the State Office of Administrative Hearings so the MRD could consider TASB’s argument that reimbursement for the MUAs was improper because chiropractors are not authorized by law to perform MUAs.[2] The MRD remand decision (MRD remand order), issued September 12, 2001, denied reimbursement for the MUAs based on the fact that, because there was an anesthesiologist involved, Masterwork violated the Texas Workers’ Compensation Commission’s (Commission) Surgery Ground Rule V by not performing the procedures in a hospital or ambulatory surgical center (ASC). The Remand Order was appealed to SOAH, along with the issues in the original appeal.

The second appeal to SOAH involved the following issues:

1)Whether Masterwork showed by a preponderance of the evidence that it performed the MUAs in conformance with the Commission’s Surgery Ground Rule V;

2)Whether Masterwork showed by a preponderance of the evidence that it performed the MUAs in conformance with the limitations on that procedure set by policy of the state chiropractor board; and

3)Whether TASB showed by a preponderance of the evidence that the MUAs were not medically necessary.

This decision finds that TASB proved the MUAs were not medically necessary healthcare for Claimant, which renders all other issues in this case moot.

I. NOTICE, JURISDICTION, AND HEARING

There were no contested issues of notice or jurisdiction in this matter. Those issues are discussed only in the Findings of Fact and Conclusions of Law below.

The hearing on the original appeal and the Remand Order convened and the record closed on September 9, 2002. Attorney James Loughlin appeared for TASB. Robert Canal, D.C., and Kim Bledsoe appeared as Masterwork’s designated representatives.

II. DISCUSSION

TASB met its burden to show by a preponderance of the evidence that the MUAs were not medically necessary. The record lacked sufficient information to establish that Claimant needed one MUA, much less five.

A. Background

In______, Claimant sustained an injury to her cervical back (neck) and head, when a vacuum cleaner fell on her head. The injury was compensable under the Texas Workers’ Compensation Act (Act). TASB was the responsible insurer for this injury. In 1992, Claimant underwent an anterior cervical fusion at the C5-6 level, but continued to complain of chronic pain in her neck, shoulder, low back, and legs. She did not return to work after completing a chronic pain management program in 1997. (Exh.1, p. 115). From December 1997 to August 1999, Claimant had no active treatment or surgical intervention. In May 1998, Claimant’s treating doctor, Jose Guerrero, M.D., agreed with TASB’s assessment that further treatment was unnecessary except for medication monitoring (Exh. 1, pp. 112-113, 131). However, in August 1999, Dr. Guerrero referred Claimant to Ron Huse, D.C., for MUAs. Dr. Huse performed the MUAs each day from August 9 through 13, 1999, in a doctor’s office with anesthesiologist Ajay Aggarwal, M.D. administering the anesthesia. Dr. Guerrero assisted Dr. Huse by holding Claimant’s limbs and helping shift her into position.

At the time she underwent the MUAs, Claimant was at the tertiary level of care pursuant to the Commission’s Spine Treatment Guideline (STG) then in effect. (Formerly 28 TEX. ADMIN. CODE (TAC) § 134.1001, repealed effective January 1, 2002).[3]

Dr. Guerrero’s Stated Rationale

At the time of the referral, Dr. Guerrero listed Claimant’s diagnoses as: vertegorgenic pain syndrome; cervicobrachiogenic pain syndrome; post-cervical surgical syndrome; chronic lumbar sprain; cervical related paresthesia; cervicalgia; lumbago; spinal myalgia; and sacroilitis. Dr. Guerrero stated that Claimant had been off work for seven years and had “prolonged use of medications” in explanation for the referral to Dr. Huse. In his request for post-MUA physical medicine and rehabilitation, Dr. Guerrero stated:

The patient has reached the Tertiary Level of care. Under the spine treatment guidelines the procedure of Manipulation Under Anesthesia is an accepted intervention. The goals of the procedure are to decrease pain, increase range of motion an improve function by stretching shortened muscles, breaking tissue adhesions and returning inter-segmental motion to the affected joints. By reducing pain and improving mobility a reduction in the patient’s need for medication is expected. We anticipate an improvement in activities of daily living and their ability to return to gainful employment. With this in mind the MUA procedure is both a reasonable and necessary medical treatment . . . (Exh. 1, p. 50)(Emphasis original).

Examinations Before And After MUAs

In 1998, orthopedic surgeon Dr. Richard DeYoung performed an independent medical examination (IME) of Claimant. In that examination, she complained of numbness and pain in her left arm, low back pain, hip pain, and pain in her left leg as well as numbness and tingling in her hands and feet. As a result of the 1998 IME, Dr. DeYoung found Claimant did not need further care for her cervical spine. He diagnosed her with resolved lumbar sprain and released her to work in a sedentary type of job. (Exh. 1, p. 127).

In September 1999, Dr. DeYoung again examined Claimant, this time for a required medical examination (RME). In that examination, Claimant described constant low back and neck pain that had gotten worse since her February 1998 examination. (Exh.1, p. 135). She also stated she had burning and numbness in her feet. Dr. DeYoung saw no objective findings to correlate to her pain complaints in the cervical region. While Claimant stated she could not perform simple tests such as putting her hands behind her back, Dr. DeYoung noted she willingly performed the same action when asked to point out where her back hurt. He also noted she lacked muscle atrophy in the areas where it would be expected based on the pain she described. He felt any impairment of range of motion in that area was voluntary. Dr. DeYoung also found no objective clinical findings to support her lumbar complaints. Once again, he diagnosed her with resolved lumbar sprain and healed cervical surgery. (Exh.1, pp.134-139). He recommended only over-the-counter pain medications such as Motrin, Aleve, or Tylenol, for her orthopedic needs.

B. Legal Standards

As note above, TASB had the burden of proof to show that the MUAs were not medically necessary healthcare for Claimant. 28 TAC § 148.21(h) and (i); 1 TAC § 155.41(b). Pursuant to the Act, an employee who has sustained 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 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. TEX. LAB. CODE ANN. § 408.021(a). Health care includes all reasonable and necessary medical services including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. § 401.011(31).

Spine Treatment Guideline

The STG, formerly at 28 TAC § 134.1001,set certain requirements for treatment of spinal maladies. The STG required a documented treatment plan (including proposed methods, expected outcomes, and probable duration) and documentation substantiating any need to deviate from the STG. 28 TAC § 134.1001 (e)(3)(B)(iii). The treating doctor had to demonstrate the appropriateness of all services and the relatedness of all services to the compensable injury. 28 TAC § 134.1001(c)(2)(A)(ii) and (iii). Treatment had to be based on the injured worker’s need and the doctor’s professional judgment. 28 TAC § 134.1001(e)(1). The STG recognized three levels of care based on the length of treatment, type of injury, and response to treatment. In general, the most economical form of treatment was preferred. 28 TAC § 134.1001(g)(5).

The STG, 28 TAC § 134.1001(b)(1), stated that it is a guideline to clarify those services that were reasonably and medically necessary for operative and nonoperative care of the spine. The STG stated, however, that the guideline shall not be used as the sole reason for denial when a treatment or service is not listed in the guideline. 28 TAC§ 134.1001(b)(1). Manipulation under anesthesia was a recognized treatment for patients at the tertiary level of care. 28 TAC § 134.1001(g)(7)(C).

C. MUAs Not Effective For Claimant

As a reason for ordering reimbursement, the MRD Order No. 1 cited to Dr. Huse’s comment in the MUA dismissal report on August 13, 1999, that Claimant reported decreased pain and increased range of motion after the MUAs. (Exh. 1, p.13). Thus, the efficacy of treatment was used by the MRD as proof that the MUAs were medically necessary. However, this rationale was not supported by the most persuasive evidence in the record, the pre-MUA IME and post-MUA RME reports by Dr. DeYoung. Those reports showed that Claimant’s subjective reports of pain and the clinical findings remained unchanged after the MUAs. Therefore, the rationale cited in MRD Order 1 for ordering reimbursement, that “. . . documentation supports that the injured worker received benefit from the disputed services is not supported by the record. The MUAs were not efficacious treatment for Claimant, as they did not cure or relieve her pain nor did they enable her to return to work. Therefore, efficacy of treatment is not a basis for finding the MUAs were medically necessary for Claimant.

D. No Reasonable Basis Shown To Believe That MUAs Might Be Effective

As mentioned above, Dr. Guerrero listed Claimant’s diagnoses and stated the goal of the MUAs, but the record lacked any specific rationale establishing a reasonable basis to believe the MUAs would would tend to cure or relieve symptoms from her diagnosed conditions. Dr. Guerrero did not enumerate Claimant’s specific symptoms. He did not establish that the diagnosed illnesses were naturally occurring effects of her compensable injury. He did not show that the MUAs were a cost-effective approach to curing or relieving Claimant’s symptomology.

The MUA, according to Dr. Guerrero, was intended to improve function by stretching shortened muscles, breaking tissue adhesions and returning inter-segmental motion to the affected joints. Yet, the record was devoid of information as to which muscles were shortened, which tissue had adhesions, and which joints were affected in Claimant.

TASB’s expert witness, orthopedic surgeon Dr. Nick Tsourmas, testified that absent surgery or external trauma (such as a broken bone), tissue adhesions do not occur. The only known surgery or trauma to Claimant’s back was her cervical fusion. Dr. Canal testified that MUA would not have been performed near the fusion area, so an MUA would not be used to break up tissue adhesions in the only area of Claimant’s body where such adhesions might have occurred.

Dr. Guerrero did not explain why Claimant needed to be anesthetized in order to have her muscles stretched or manipulated. Without a more specific correlation between Claimant’s symptoms and the MUA’s purpose, there is nothing to show that MUAs could reasonably be expected to be more beneficial than a less expensive type of treatment such as regular chiropractic manipulation, massage, or physical exercise. Dr. Canal stated that MUA allows movement without resistence but Dr. DeYoung’s examinations revealed that Claimant was intentionally limiting her range of motion. It is hard to rationalize a procedure as medically necessary when it is used to overcome a self-imposed, volitional limitation.

Dr. Guerrero did not explain why in May 1999, more than a year after the last significant course of treatment (the chronic pain management program she completed in December 1997) and with no significant change in the complaints or clinical status, Claimant needed MUAs. Dr. Canal admitted that the record lacked evidence that Drs. Guerrero or Huse examined Claimant’s range of motion in her shoulder, thoracic spine or sacral spine or that those doctors had evaluated the biomechanics of her spine.

Dr. Canal testified that the MUAs were medically necessary healthcare; Dr. Tsourmas disagreed. Neither Dr. Canal nor Dr. Tsourmas examined Claimant and neither were involved with the MUAs she received. However, Dr. Tsourmas’ opinion was supported by the most concrete and specific evidence in the record--Dr. DeYoung’s two examinations of Claimant. Dr. DeYoung actually reviewed Claimant’s medical history and performed diagnostic tests on her on two occasions. Both sets of tests demonstrated that the extreme nature of Claimant’s subjective pain complaints lacked a corollary physical manifestation. Dr. DeYoung concluded on both occasions that Claimant would not benefit from further treatment. Based on the testing done by Dr. DeYoung before and after the MUAs, it was evident the procedures did not cure or relieve Claimant’s pain.

The record lacked sufficient information to establish why Drs. Guerrero or Huse might have reasonably believed the MUAs would benefit Claimant. The record lacked evidence that either doctor performed the sort of diagnostic testing on Claimant that Dr. DeYoung performed. Dr. Tsourmas testified that there are no studies showing MUAs are suitable treatment for chronic pain complaints. Masterwork introduced an article from Journal of Manipulative and Physiological Therapeutics[4] to support its position that MUA is an appropriate treatment for chronic pain. Dr. Tsourmas questioned whether the article was a true peer review article. He noted the study did not involve the sort of double-blind clinical analysis one would expect in scientific, peer review study. Regardless of its short-comings as a peer review article, the conclusion of the study itself was too vague to establish Masterwork’s contention. The study concluded merely that:. . a multidisciplinary approach to evaluation and treatment offers patient benefits above and beyond what can be obtained through the individual providers working alone. This conclusion did not establish MUA as an appropriate treatment of chronic pain such as Claimant evinced.

E. Conclusion

TASB showed that neither MRD record established the medical necessity of the MUAs. Nothing in the record established that Drs. Guerrero or Huse had a reasonable basis to believe the MUAs would be helpful to Claimant. If either performed diagnostic tests on Claimant, those tests were not included in the record.

The most persuasive and comprehensive medical evidence of Claimant’s condition before and after the MUAs came from Dr. DeYoung. In February 1998, Dr. DeYoung concluded that Claimant would not benefit from further treatment. In September 1999, after the MUAs, Dr. DeYoung found Claimant’s clinical status and complaints to be unchanged from her 1998 examination, which proved that the MUAs were not effective healthcare in that the procedures did not cure or relieve her pain or enable her to return to work. There was nothing in the record that showed that MUAs were the most economical treatment available for Claimant in August 1999.

Because the MUAs were not medically necessary healthcare, there was no basis for any award of reimbursement to Masterwork for the MUAs and the remaining issues in this matter are moot.

TASB met it’s burden of proof to show that the MUAs administered to Claimant in May 1999 were not medically necessary healthcare. TASB is not liable to reimburse Masterwork for those MUAs or for any service provided in connection with those procedures.

III. FINDINGS OF FACT

  1. In______, Claimant sustained an injury compensable under the Texas Workers' Compensation Act (Act).
  2. At the time of her compensable injury, the Texas Association of School Boards’ Risk Fund (TASB) was the responsible insurer for Claimant’s compensable injury.
  3. In a February 1998 independent medical examination (IME) by orthopedic surgeon Dr. Richard DeYoung, Claimant complained of numbness and pain in her left arm, low back pain, hip pain, and pain in her left leg as well as numbness and tingling in her hands and feet.
  4. As a result of the 1998 IME, Dr. DeYoung found Claimant did not need further care for her cervical spine, diagnosed her with resolved lumbar sprain, and released her to work in a sedentary type of job.
  5. In May 1998, Claimant’s treating doctor, Jose Guerrero, M.D., agreed with TASB that Claimant did not need further treatment.
  6. Other than medication management, Claimant had no significant medical treatment from December 1997 to May 1999 when Dr. Guerrero referred her to Dr. Ron Huse, D.C. for manipulation under anesthesia (MUA).
  7. In May 1999, Claimant was at the tertiary level of care pursuant to the Commission’s Spine Treatment Guidelines (formerly 28 TEX. ADMIN. CODE § 134.1001,effective 1996).
  8. When he referred her to Dr. Huse, Dr. Guerrero listed Claimant’s diagnoses as: vertegorgenic pain syndrome; cervicobrachiogenic pain syndrome; post-cervical surgical syndrome; chronic lumbar sprain; cervical related paresthesia; cervicalgia; lumbago; spinal myalgia; and sacroiliitis
  9. The goals of the MUA were to: decrease pain; increase range of motion; improve function by stretching shortened muscles, breaking tissue adhesions and returning inter-segmental motion to the affected joints; reduce pain; improve mobility; reduce the need for medication; improve the ability to perform activities of daily living; and return the patient to gainful employment
  10. Claimant underwent MUAs daily from August 9 through 13, 1999, at a doctor’s office.
  11. The record did not establish why Drs. Guerrero or Huse believed that Claimant’s chronic pain might be helped by MUAs.
  12. The only possible tissue adhesion Claimant might have had was at the level of her cervical fusion and MUA would not be done at the site of a fusion.
  13. The record did not show which of Claimant’s muscles or joints needed manipulation.
  14. The record did not show why manipulation under anesthesia was cost-effective healthcare for Claimant’s chronic pain.
  15. A medical doctor-anesthesiologist anesthetized Claimant during each of the MUA procedures.
  16. In September 1999, Dr. DeYoung examined Claimant for a required medical examination (RME). During that examination, Claimant described the same constant low back and neck pain that had gotten worse since her February 1998 examination. She also stated she had burning and numbness in her feet.
  17. In the RME, Dr. DeYoung gave Claimant the same diagnosis as he had in February 1998: resolved lumbar sprain and healed cervical surgery.
  18. The MUAs were not effective treatment in that they did not either cure or relieve Claimant’s chronic pain nor did they enable her to return to work.
  19. TASB denied Masterwork’s claim for reimbursement for the MUAs and related services.
  20. The Commission’s Medical Review Division (MRD) initially ordered reimbursement to Masterwork for most of its claims, then on remand, denied all reimbursement.
  21. Both TASB and Masterwork appealed the original and remand orders from MRD.
  22. Pursuant to a notice of hearing and order setting hearing, the parties appeared and were represented at the hearing in this matter held September 9, 2002.

IV. CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers' Compensation Act (Act), 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 § 413.031(d) of the Act 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 rule, 28 TEX.ADMIN.CODE (TAC) § 133.305(g).
  4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. § 2001.051 and 2001.052.
  5. TASB had the burden of proof in this proceeding to show that the MUAs were not medically necessary healthcare. 28 TAC § 148.21(h) and (i); 1 TAC § 155.41(b).
  6. Pursuant to the Act, an employee who has sustained 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 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. TEX. LAB. CODE ANN. § 408.021(a).
  7. Health care includes all reasonable and necessary medical services, including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. §401.011(31).
  8. Under the Commission’s Spine Treatment Guideline (STG), the treating doctor had to demonstrate the appropriateness of all services and the relatedness of all services to the compensable injury. 28 TAC § 134.1001(c)(2)(A)(ii) and (iii).
  9. Under the STG, an MUA was an approved treatment for patients at the tertiary level of care. 28 TAC § 134.1001(g)(7)(C).
  10. In general, under the STG, the most economical form of treatment was preferred. 28 TAC § 134.1001(g)(5).
  11. Based on the foregoing, TASB proved by a preponderance of the evidence that the MUAs administered Claimant from August 9 through 13, 1999, were not medically necessary healthcare.
  12. TASB is not liable to reimburse Masterwork for the MUAs or related services provided Claimant.
  13. Based on the lack of medical necessity of the MUAs provided Claimant, all other issues in this case are moot.

ORDER

It is ORDERED that the Texas Association of School Boards’ Risk Fund is not liable to reimburse Masterwork Systems, LLC, for manipulations under anesthesia or related services provided Claimant from August 9 through 13, 1999.

Signed this 17th day of October, 2002.

ANN LANDEROS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. Masterwork was the entity that arranged for the procedure to be performed by the chiropractor and handled the billing in this matter for all the doctors involved.
  2. TASB’s Motion to Dismiss based on that argument was overruled in Prehearing Order No. 6, issued November 27, 2001.
  3. It should be noted the STG applicable to this case was the version adopted in 1996 and not the amended version amended effective February 1, 2000.
  4. West, Daniel, et al, Effective Management of Spinal Pain in One Hundred Seventy-seven Patients for Manipulation under Anesthesia, Journal of Manipulative and Physiological Therapeutics, Vol. 22, No. 5 (June 1999), p. 299.
End of Document
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