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At a Glance:
Title:
453-01-2370-m5
Date:
December 5, 2001
Status:
Retrospective Medical Necessity

453-01-2370-m5

December 5, 2001

DECISION AND ORDER

This case involves an appeal by the Liberty Mutual Insurance Company (the Petitioner), from the Findings and Decision of the Texas Workers' Compensation Commission's Medical Review Division (MRD) that directed the Petitioner to pay $497.00, plus all accrued interest due at the time of payment, to Montgomery Chiropractic (the Provider). This decision agrees with the recommendation of the MRD with a modification to the amount the Petitioner is required to pay.

JURISDICTION AND VENUE

The Texas Workers' Compensation Commission (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. The State Office of Administrative Hearings (SOAH) 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. There were no objections to jurisdiction or venue.

STATEMENT OF THE CASE

On October 17, 2001, Ann Landeros, Administrative Law Judge (ALJ), convened the hearing in Suite 1100 of the Stephen F. Austin Building, 1700 North Congress Avenue, Austin, Texas. Susan Goggan, Attorney, appeared and represented the Commission. The Petitioner was represented by Mahon B. Garry, Jr., Attorney-at-Law. Montgomery Chiropractic was represented by Larry R. Montgomery, D.C. Following the presentation of evidence, the record was closed on the same date.

The disputed issue is whether the Petitioner correctly refused to pay for chiropractic treatments rendered by the Provider to __________(the Claimant) between July 31, 2000, and September 21, 2000. As previously stated, the MRD directed payment of $497.00. The evidence in the case consisted of Exhibit No. 1, the certified Official Record of the Medical Review Division, and the testimony of Larry R. Montgomery, D.O. and Priscilla Montgomery.

The Petitioner argued that (1) certain treatments were denied payment by the MRD on the grounds of lack of preauthorization and because the Provider failed to appeal that portion of the MRD decision, then those treatments are not before this tribunal; and (2) the remainder of the treatments, for which the MRD did direct payment, were not medically necessary on the grounds they did not meet the requirements of the Spine Treatment Guideline (the STG).[1] Specifically, the Petitioner relied upon subsections (e)(2)(A)[2] and (e)(3)(E)[3] of the STG.

The Provider argued that the STG is a guideline and deviations are allowed. The Provider further argued that the portions of the STG relied upon by the Petitioner did not address the needs of a post-surgical patient. The Provider also argued that the Claimant was entitled to treatments that cure or relieve the effects naturally resulting from his compensable injury.

The Commission argued that the Petitioner failed to carry its burden of showing that the treatments provided by the Provider did not comport with the requirements of the STG. The Commission contended the record is contrary to the Petitioner’s position.

LEGAL STANDARDS

A. Entitlement to Medical Benefits.

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 injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment. TEX. LAB. CODE ANN. §408.021. "Health care" includes "all reasonable and necessary medical aid . . . and medical services . . . ." TEX. LAB. CODE ANN. §401.011(19)(E).

B. Entitlement to Payment.

An insurance carrier shall pay the fee charged for a service rendered by a health care provider not later than the 45th day after the date the insurance carrier receives the charge unless the amount of the payment or the entitlement to payment is disputed. TEX. LAB. CODE ANN. §408.027(a). “ health care provider” includes an individual who is licensed to provide or render and provides or renders health care. TEX. LAB. CODE ANN. §401.011(20) and (21).

C. Procedures for Obtaining Payment.

The Commission’s Rules, at 28 TEX. ADMIN. CODE (TAC) §134.800, establish forms to be submitted to insurance carriers by healthcare providers when seeking payment. Health care providers are required to submit bills using the national standard HCFA-1500 health insurance claim form prepared according to instructions provided by the Commission.

D. Requisites for a Hearing.

  1. Medical Dispute Resolution. A party, including a health care provider, is entitled to a review of a medical service provided or for which authorization of payment is sought if a health care provider is denied payment or paid a reduced amount for the medical service rendered. TEX. LAB. CODE ANN. §413.031(a).
  2. Hearing before the State Office of Administrative Hearings. A party to a medical dispute that remains unresolved after a review of the medical service conducted pursuant to §413.031(a) of the Act is entitled to a contested case hearing conducted by the State Office of Administrative Hearings. TEX. LAB. CODE ANN. §413.031(d)

EVIDENCE & ARGUMENTS

A. Basic Facts.

The Claimant suffered a compensable back injury on_________, while employed as a truck driver. The Claimant was treated by the Provider for an unspecified period of time. On January 20, 2000, the Claimant underwent a laminectomy and discectomy. Between July 31, 2000, and September 21, 2000, the Claimant received regular spinal manipulations and other services from the Provider. The other services required preauthorization. The Provider sought, but did not obtain, preauthorization for the other services. The Petitioner refused to pay for any of the services provided to the Claimant by the Provider.

B. The Petitioner’s Evidence.

The Petitioner called Priscilla Montgomery and Larry R. Montgomery, D.C., as witnesses and offered no other evidence.

  1. Priscilla Montgomery, whose position with the Petitioner was not specified in the record, testified that two services listed in the MRD decision as unpaid had actually been paid by the Petitioner. The two services were spinal manipulations provided on September 18, 2000, and electrical stimulation provided on September 21, 2000. The total amount paid, for which the Petitioner had not received credit in the MRD decision, was $65.00.
  2. Dr. Montgomery testified that his progress notes have a “Subjective” section that includes what the patient says about his condition and an “Objective” section that includes observations made by the doctor. On the “pain scale” that is included in the subjective section, the patient rates his perception of his pain between “0” for no pain, and “10” for the worst pain the patient has known. Dr. Montgomery agreed that over time chiropractic treatments should cause the pain scale rating to decrease unless the patient has a permanent impairment. Dr. Montgomery agreed the Claimant entered a work hardening program that overlapped with the series of spinal manipulations performed by the Provider.[4] Dr. Montgomery testified that his purpose in administering spinal manipulations to the Claimant was to provide pain relief.

C. The Respondents’ Evidence.

  1. Dr. Montgomery testified on behalf of the Respondent Montgomery Chiropractic. He testified without objection that the Claimant’s treating doctors were frustrated because the Petitioner refused to grant preauthorization for post-operative rehabilitation for the Claimant. Subsequently, Dr. Montgomery decided to provide rehabilitative physical therapy to the Claimant without preauthorization. He contended the services were time sensitive and he was unable to allow time for the medical dispute resolution process to run its course. He stated he hoped the ALJ would understand that on many occasions there is no time for debate. The responsible doctor has to provide the treatment and seek reimbursement later.
  2. The Respondent Commission presented no evidence save Exhibit No. 1, the record of the review by the MRD.

ANALYSIS AND CONCLUSION

A. Analysis.

In regard to the hope expressed by the Provider’s representative that the ALJ would consider ordering payment for the physical therapy provided to the Claimant, it is without foundation. The MRD rendered its decision that the spinal manipulations provided to the Claimant by the Provider were reimbursable. It also rendered its decision that other services required preauthorization and denied reimbursement because the Provider failed to obtain preauthorization for those services. The Provider did not appeal the portion of the MRD’s decision that was adverse to it. That portion of the MRD decision is final.

Even though the Petitioner did not object to the Provider’s evidence regarding the non-preauthorized services, the ALJ can not consider that evidence because it is not relevant to the instant proceeding. As correctly argued by the Petitioner, that matter is not before the tribunal because of the Provider’s failure to file a timely appeal.

In regard to the issue of medical necessity for the spinal manipulations, the Petitioner had the burden of proving by a preponderance of the evidence that the treatments were not medically necessary. The Petitioner sought to do this by use of the doctor’s progress notes that indicate on each treatment date that the Claimant felt his pain level to be at a two or three on his subjective pain scale. On August 1, 2000, the Claimant listed his pain level at “two.” On September 21, 2000, the Claimant listed his pain level at “three.” The Petitioner contended that the record indicated a lack of “objective/quantified substantive and continued measures of improvement over time,” as required by Subsection (e)(3)(E) of the STG.

The Petitioner’s analysis is flawed. The STG does not limit the measurement of progress to the pain scale as measured by the patient. Subsection (e)(3)(C)(ii) of the STG, which is referenced in Subsection (e)(3)(E), allows the “description of patient’s capabilities and clinical progress made” to suffice as documentation of progress. In this case, there are numerous references in the record that satisfy Subsection (e)(3)(C)(ii).[5]

B. Conclusion.

The Petitioner had the burden of demonstrating that denial of benefits is warranted. The evidence is contrary to the Petitioner’s position. The Petitioner failed to carry its burden of proof.

A review of the MRD decision reveals an error. The MRD failed to note that the Petitioner paid for spinal manipulations provided on September 18, 2000, and electrical stimulation provided on September 21, 2000. The MRD incorrectly ordered the Petitioner to pay to the Provider $497.00. The amount paid for the two services was $65.00. When that is deducted from the $497.00 that the MRD directed the Petitioner to pay, the proper amount the Petitioner should be ordered to pay to the Provider is $432.00. Neither the Commission nor the Provider requested that the Petitioner be ordered to pay all accrued interest due at the time of payment.

FINDINGS OF FACT

  1. On _________while working_________, the Claimant, suffered a compensable back injury.
  2. At the time of the Claimant’s compensable injury, his employer carried workers’ compensation insurance underwritten by Liberty Mutual Insurance Company (the Petitioner).
  3. Between July 31, 2000, and September 21, 2000, the Claimant’s compensable injury was treated at Montgomery Chiropractic (the Provider).
  4. The Petitioner denied payments to the Provider for spinal manipulations and for other services that required preauthorization. The treatments and services were provided during the period of time described in Finding of Fact No. 3.
  5. About November 11, 2000, the Provider requested the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission) to institute its medical dispute resolution process to ascertain whether the Petitioner should be required to pay the disputed charges.
  6. On February 8, 2001, the MRD issued its decision that required the Petitioner to pay to the Respondent $497.00 plus all accrued interest due at the time of payment.
  7. The MRD decision refused to require the Petitioner to pay for the services provided to the Claimant for which preauthorization was required but not obtained.
  8. The Petitioner was not satisfied with the MRD decision and timely requested a hearing before the State Office of Administrative Hearings. On March 27, 2001, a notice of hearing was issued to the parties.
  9. The Provider did not appeal the refusal by the MRD described in Finding of Fact No. 7.
  10. On October 17, 2001, the hearing sought by the Petitioner convened before Administrative Law Judge Ann Landeros. The Petitioner was represented by Mahon B. Garry, Jr., attorney. The Provider was represented by Larry R. Montgomery, D.C. The Commission was represented by Susan Goggan, attorney.
  11. The spinal manipulations provided to the Claimant by the provider did not require preauthorization.
  12. The spinal manipulations administered to the Claimant were provided to relieve the effects naturally resulting from the Claimant’s compensable injury.
  13. The Provider’s medical notes evidence measures of improvement of the Claimant’s condition over time.
  14. The MRD decision failed to give the Petitioner credit for two payments totaling $65.00 that the Petitioner made to the Provider.

CONCLUSIONS OF LAW

  1. The Texas Workers' Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers' Compensation Act (the 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 Petitioner had the burden of proof in this matter pursuant to 28 TEX. ADMIN. CODE (TAC) §148.21(h).
  4. Based on Findings of Fact Nos. 7 and 9, the issue of whether the Provider should be paid for services that required preauthorization and for which preauthorization was not obtained is not before the State Office of Administrative Hearings.
  5. Based on Findings of Fact Nos. 4 and 11-13, the Petitioner incorrectly denied the Provider’s request for payment for spinal manipulations.
  6. Based on Finding of Fact No. 14, the Petitioner must be given credit for the $65.00 paid to the Provider.
  7. Based on the foregoing Findings of Fact and Conclusions of Law, the Petitioner shall pay to the Provider a total of $432.00 for spinal manipulations provided to __________

ORDER

IT IS, THEREFORE, ORDERED that the Liberty Mutual Insurance Company remit $432.00 to Montgomery Chiropractic for spinal manipulations provided to_____________.

Signed this 5th day of December, 2001.

ANN LANDEROS Administrative Law Judge

State Office of Administrative Hearings

  1. The Spine Treatment Guideline has been adopted as a Rule by the Texas Workers’ Compensation Commission. It is found at 28 Tex. Admin. Code §134.1001.
  2. Subsection (e)(2)(A) of the STG provides, in part:
  3. (A) Not withstanding (sic) any other provision of this section, treatment of a work related injury must be: . . . (v) consistent with this guideline . . .(vi) objectively measured and demonstrated functional gains; and (vii) consistent in demonstrating ongoing progress in the recovery process by appropriate re-evaluation of the treatment.

  4. Subsection (e)(3)(E) of the STG provides:
  5. (E) Documentation for manipulation should show objective/quantified substantive and continued measures of improvement over time. The examples listed in paragraph (3)(C) of this subsection may be used to appropriately document progress.

  6. Ex. No. 1, page 34 reflects that on September 19, 2000, the Claimant completed a Functional Capacity Evaluation preliminary to his beginning a work hardening program at HealthSouth in Temple, Texas. The last treatment by the Provider at issue in the instant hearing occurred on September 21, 2000.
  7. References to clinical progress are found on the following pages of Ex. No. 1: p. 46, August 9, 2000; p. 46, August 10, 2000; p. 48, August 21, 2000; p. 49, August 24, 2000; p. 49, August 28, 2000; p. 50, September 5, 2000; p. 53, September 13, 2000; p. 53, September 18, 2000, and p. 54, September 21, 2000.
End of Document
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