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At a Glance:
Title:
453-01-2384-m5-etal
Date:
June 27, 2002
Status:
Retrospective Medical Necessity

453-01-2384-m5-etal

June 27, 2002

DECISION AND ORDER

Bexar County MRI (BCMRI) appeals the decisions of the Medical Review Division (MRD) of the Texas Workers= Compensation Commission (TWCC) in these two cases. In both cases, MRD denied BCMRI's claim for reimbursement[1] for MRI services because BCMRI performed the MRIs earlier than 60 days after the date of injury without a showing of medical necessity. BCMRI argues that the MRIs were medically necessary while Texas Mutual Insurance Company (TMI) argues that they were not. The Administrative Law Judge (ALJ) finds that the early MRIs were not medically necessary and denies BCMRI's appeal.

I. Jurisdiction and Procedural History

There were no challenges to notice or jurisdiction and those matters are stated in the findings of fact and conclusions of law without further discussion here.

These two cases were consolidated on February 14, 2002, and were set for a hearing on the merits on May 16, 2002. BCMRI filed a Motion for Summary Decision in both cases on May 9, 2002, and TMI filed responses to the motions on May 16, 2002. ALJ Thomas H. Walston convened the hearing on the merits on May 16, 2002. The parties argued the Motion for Summary Disposition and the ALJ took the motion under advisement and proceeded with the hearing, subject to a ruling on the motion. The hearing concluded on May16, but the ALJ kept the record open to allow BCMRI to file a reply to TMI's response to BCMRI's Motion for Summary Disposition. BCMRI filed its reply on May 24, 2002, at which time the record closed. On June 14, 2002, ALJ Walston entered an order denying BCMRI's Motion for Summary Disposition.

II. Discussion

Background

Concerning Docket No. 453-01-2384.M5, Claimant J.B. sustained a compensable injury to his back on (date of injury). J.B. saw a chiropractor named Kyle Campbell on March 28, 2000, and reported pain in his upper back. Dr. Campbell referred J.B. to BCMRI for an MRI of his thoracic spine. BCMRI performed the MRI on _______ which was 35 days after J.B.'s date of injury. The MRI was entirely normal, with no bulging or herniated discs, with patent and intact neural foramina, and with unremarkable soft tissue. BCMRI billed $1400.00 for the MRI. TMI denied reimbursement on the grounds that the MRI was not medically necessary. TMI relied on the Spine Treatment Guideline (STG), which states that an MRI should not be performed earlier than six weeks after injury unless a significant neurological deficit is documented. BCMRI requested medical dispute resolution, and on February 9, 2001, the TWCC MRD denied reimbursement.

Concerning Docket No. 453-02-0524.M5, Claimant J.C. sustained a compensable injury to his back on (date of injury). J.C. saw a chiropractor named Richard Bozeman on September 21, 2000, and made subjective complaints of moderate, constant neck pain, mid-back pain, low-back pain, bilateral shoulder and wrist pain, and left shin pain, as well as severe, constant throat pain. Dr. Bozeman referred J.C. to BCMRI for an MRI. BCMRI performed two MRIs on October 6, 2000 one on J.C.'s cervical spine and a second on his lumbar spine. The MRI of J.C.'s cervical spine showed a 2 mm posterior disc herniation at C4-5; a 4 mm posterior disc herniation at C5-6; and a 3 mm right paramedian disc herniation at C6-7. There were no disc bulges or herniations at C2-3, C3-4, or C7-T1. The lumbar MRI showed a Grade 1 spondylolisthesis with vertebral body subluxation causing mild foraminal stenosis at L4-5, and a 3 mm posterior central disc herniation at L5-S1. The MRI was normal at L1-2, L2-3, and L3-4. BCMRI billed $1400.00 for each MRI for a total of $2800.00. TMI denied reimbursement on the grounds that the MRIs were not medically necessary under the STG because they were performed earlier than six weeks after injury without documentation of a significant neurological deficit. BCMRI requested medical dispute resolution, but on September 10, 2001, the TWCC MRD denied reimbursement.

Evidence

BCMRI:

Thomas Rhudy, D.C., testified by telephone on behalf of BCMRI.[2] Dr. Rhudy did not treat J.B. or J.C., but he reviewed their records and the deposition of Dr. Nicholas Tsourmas (who testified on behalf of TMI). Concerning J.B., Dr. Rhudy testified that J.B. sustained a compensable injury on date of injury, when he felt pain in his mid back as he was loading cases of cheese. J.B. went to Accident & Injury Chiropractic on March 27, 2000, and complained of mid-back pain. He reported the pain level as 6 on a scale of 10 and stated that it was constant and sharp and radiated to his chest. In Dr. Rhudy's opinion, the necessity for an MRI was clearly justified based on the nature and mechanics of the injury, the signs and symptoms, and particularly the radiating pain.

Dr. Rhudy also stated that J.B.'s Milgram's Test was positive. This test is designed to evaluate intrathecal pressure to find disc pathology. For this test, the patient lies in the supine position (face up), elevates his legs about six inches, and holds them in that position for about 30 seconds. The patient then reports where pain is increased. In this case J.B. reported increased pain in his thoracic spine, and Dr. Rhudy stated that this indicates a possible disc injury. Dr. Rhudy also testified that J.B. had a positive Soto-Hall test, which indicates a possible lesion or disc pathology. Based on these positive findings, Dr. Rhudy stated that an MRI was appropriate to rule out disc pathology or other lesion that could be contrary to the proposed chiropractic treatment.

Dr. Rhudy noted that the MRI was performed on J.B. on April 28, 2000, and that the results were normal. However, he pointed out that medical necessity must be based on the information available before the MRI was performed, not on the outcome of the MRI. In his opinion, the MRI was medically reasonable and necessary based on the available information.

For J.C., Dr. Rhudy noted tht J.C. injured himself on (date of injury) J.C. was working while standing on some steps, lost his balance, missed a step, fell, and hit his throat on a hand rail. He went for treatment on September 20, 2000, and was diagnosed with traumatic injury to the lumbar spine, tears to connective tissues, sprains to the thoracic and cervical spine, and contusions to the throat and shoulders. Dr. Rhudy stated that a cervical MRI for J.C. was medically reasonable and necessary based on the mechanics of the injury (a significant fall) and signs of pressure on the cervical discs. He testified that guidelines published by the U.S. Department of Health and Human Services state that a possible fracture and major trauma from a significant fall are Ared flags for early intervention. Dr. Rhudy stated that a major fall can put axial pressure on the spine and that tingling and pain in J.C.'s throat, wrist, and hand were also signs of a possible disc injury. In his opinion, J.C. was an appropriate candidate for an early MRI based on his injury and his signs and symptoms. Finally, Dr. Rhudy agrees that the results of an MRI should not be used to determine the appropriateness of ordering the MRI, but in this case he said the positive results confirm that the treating doctor properly referred J.C. for an early MRI.

TMI:

Clark Watts, M.D., testified on behalf of TMI. Dr. Watts is a medical doctor who has practiced medicine for more than 30 years and who specializes in neurosurgery. For this case he reviewed the available records for J.B. and J.C. and the deposition of Dr. Tsourmas.

First, Dr. Watts described a proper neurological examination. This would include a sensory exam and testing the motor system and reflexes. The sensory exam would include proprioception,[3] the ability to perceive touch, and the ability to perceive pain. In Dr. Watts= opinion, sensory impairment is a dysfunction of the sensory system that limits a patient's ability to carry out activities of daily living. But he emphasized that sensory impairment is not the same as pain, because the presence of pain indicates an intact sensory system.

Dr. Wtts further testified that he found no documentation of sensory impairment in the records for J.B. and J.C. He noted that the STG provides that an MRI should not be performed earlier than six weeks after injury without a showing of Asignificant neurological deficit. The STG also defines significant neurological impairment as Asigns of sensory impairment, progressive numbness, or increased physiological impairment such as severe weakness, bowel or bladder dysfunction directly related to the spinal injury. Dr. Watts= stated that none of these conditions were documented for J.B. or J.C., and, in fact, the neurological examinations for J.B. and J.C. were essentially normal.[4] Dr. Watts added that an MRI may be warranted for intractable pain, but otherwise an MRI is not justified based on pain alone. Here, however, neither J.B. nor J.C. had intractable pain. Therefore, in Dr. Watts= opinion, an early MRI was not warranted for these patients.

Concerning J.C.'s fall down the stairs, Dr. Watts testified that X-rays were the appropriate test for acute trauma rather than an MRI. And X-rays taken on September 22, 2000, of J.C.'s cervical spine, thoracic spine, lumbar spine, left shoulder, right shoulder, right wrist, and left wrist did not show any fractures.[5] Further, Dr. Watts stated that J.C.'s positive cervical spine MRI did not establish sensory impairment. Rather, sensory impairment must be determined by an examination of the patient. If a patient is asymptomatic, he does not have sensory impairment, regardless of the MRI results.

Concerning J.B., Dr. Watts noted that the patient had musculoskeletal pain on the orthopedic exam, but the neurological exam B motor, sensory, and reflexes B was entirely normal. He also believes that J.B.'s chest pain was diffuse referred pain rather than radicular pain along a nerve. But even if it was radicular pain, that alone did not justify an early MRI.

On cross-examination, Dr. Watts agreed that an MRI can be helpful in formulating a treatment plan, in ruling out or diagnosing a herniated disc, and in diagnosing a soft tissue injury. He also stated that he could not be sure whether J.B.'s chest pain was radicular pain or referred pain, and that potential surgery is not always required to justify an MRI. But Dr. Watts= bottom line was that an early MRI was not justified for either J.B. or J.C. because neither of them had a documented significant neurological deficit as defined by the STG.

Nicholas F. Tsourmas, M.D. TMI offered Dr. Tsourmas= deposition testimony into evidence. Dr. Tsourmas is a medical doctor who practices orthopedic surgery and who is the medical director for TMI. As a medical director, he is familiar with the Commission's Medical Fee Guidelines and the STG.

Dr. Tsourms stated that the STG does not authorize an MRI earlier than six weeks after injury except when dire clinical situations occur. This time parameter is imposed because, 85-95% of back injuries will resolve during the first six weeks with little or no treatment. The dire clinical situations that would justify an early MRI include cauda equina syndrome, progressive neurologic deficit, and unremitting, uncontrolled pain. But he added that these situations are rare. Dr. Tsourmas stated that cauda equina and a progressive neurological deficit would fit within the STG definition of Asignificant neurological deficit for an early MRI. In addition progressive numbness, bladder dysfunction, and progressive motor deficit would also fall within the definition. And Dr. Tsourmas added that the treating doctor must properly document a significant neurologic deficit to justify an early MRI.

Concerning J.C., Dr. Tsourms reviewed Dr. Bozeman's records but stated that they did not document any significant neurological deficit. Instead, the sensory examination performed on J.C.'s cervical, thoracic, and lumbar spine was Atotally normal on both the left and right sides, as were the motor exam and reflexes. In addition, X-rays taken shortly after J.C.'s accident showed some chronic changes to the spine but did not show any signs of acute injury from an accident. Dr. Tsourmas did not deny that J.C. had pain, but he stated that the pain did not justify an MRI, especially when J.C. complained of diffuse pain over his entire spine. In short, Dr. Tsourmas testified that J.C. had no objective findings to justify an early MRI and that an MRI was not medically necessary. Further, Dr. Tsourmas stated that J.C.'s MRI results showed some disc bulges but did not show any nerve root compression. This finding was consistent with all the other tests and examinations that also did not show any neurological deficit.

Concerning J.B., Dr. Tsourmas noted that an MRI was performed on the patient's thoracic spine less than six weeks after injury, and that the MRI was normal. In Dr. Tsourmas= opinion, there was no documentation of objective findings to support the medical necessity of an early MRI for J.B. In particular, Dr. Tsourmas stated the records showed no nerve injury, motor loss, sensory loss, or reflex loss, and, thus, failed to document a significant neurological deficit. He further stated that chiropractic spinal manipulation could be dangerous for a person with a herniated disc, so he believed the treating doctor's plan to give J.B. such manipulations suggested that the treating doctor did not believe that J.B. actually had a herniated disc. Dr. Tsourmas noted that J.B. complained of thoracic back pain (which J.B. rated as a 6 on a scale of 1-10) and had a decreased range of motion. But Dr. Tsourmas stated that these did not justify an early MRI under the STG. Further, X-rays performed on J.B. prior to the MRI showed the disc heights were normal, and the MRI itself had normal findings.

On cross-exmination, Dr. Tsourmas agreed that the STG is a guideline and is not an absolute rule in all cases. He stated that a doctor can deviate from the STG when it is documented that something clinically was Agoing terribly wrong. He also assumed that Dr. Bozeman must have thought an MRI was medically necessary for J.C., since Dr. Bozeman ordered the MRI.

III. ALJ's Analysis and Decision

The Administrative Law Judge (ALJ) finds that BCMRI did not establish that early MRIs were medically necessary for J.B. or J.C. and, therefore, denies BCMRI's appeal. In particular, the ALJ finds that BCMRI failed to establish that either J.B. or J.C. had a significant neurological deficit or other documented medical condition that warranted an MRI earlier than six weeks after injury.[6]

The STG provides guidance for this case. In several sections of the STG, the Commission makes clear that, although the guidelines are not absolute rules, a provider must document and show a bona fide medical necessity to deviate from the guidelines. For example, 28 TAC ' 134.1001(d)(1) states:

Health Care Provider. This guideline shall be used as a tool by the health care provider to establish the required elements to initiate and continue treatment. If, for example, a health care provider's treatment deviates from this guideline, documentation of the medical condition that specifically requires treatment outside the guideline parameters would be required to clearly delineate the need for treatment.

And concerning diagnostic procedures, such as an MRI, 28 TAC ' 134.1001(c)(4) states:

Diagnostics. Diagnostic work should be performed in accordance with recommended testing and timeframes contained in this guideline. If the need arises to deviate from the guideline, then a clinical rationale must be provided which adequately substantiates the need for this deviation.

Likewise, 28 TC ' 134.1001(e) acknowledges that a subset of injured employees will need treatment outside the STG's parameters, but it also states that such treatment will be subject to more careful scrutiny and requires documentation of Aspecial circumstances to justify treatment outside the guidelines. One subsection of this rule also states that an early MRI may be justified by a documented finding of a significant neurological deficit:

(e) Ground Rules.

  1. Introduction: . . . The guidelines recognize that a subset of injured employees will be found to be outside the guidelines= parameters. However, cases exceeding the guidelines level of treatment shall be subject to more careful scrutiny and review and shall require documentation of the special circumstances justifying that treatment. . . .
  2. Ground Rules.

(A) Not withstanding any other provision of this section, treatment of a work related injury must be

. . .

(v) consistent with this guideline which may include providing a documented clinical rationale for deviation from this guideline;

. . .

(Q) Documentation of significant neurological deficit may support early intervention (0-6 weeks) of MRI's and CT scans, which would better direct the course of treatment.

Finlly, the Glossary contained at 28 TAC ' 134.1001(j) defines Asignificant neurological deficit as follows:

(53) Significant Neurological Deficit B signs of sensory impairment, progressive numbness, or increased physiological impairment such as severe weakness, bowel or bladder dysfunction directly related to the spinal injury.

In this case, the ALJ finds that BCMRI did not establish that either J.B. or J.C. had a significant neurological deficit or any other medical condition to support the need for an early MRI. For J.B., BCMRI performed an MRI of his thoracic spine on April 28, 2000, which was after J.B. injured his back (date of injury) while lifting a case of cheese. Dr. Rhudy attempted to justify an early MRI for J.B. based on the mechanics of injury, symptoms (especially pain radiating to J.C.'s chest), and a positive Milgram's test. But the ALJ did not find Dr. Rhudy's testimony persuasive. First, some of the records indicate no radiating pain, and Dr. Watts stated that J.B.'s chest pain was likely diffuse referred pain rather than radiating pain. In addition, J.B.'s neurological exam (including a sensory exam) was entirely normal on (date of injury), and the orthopedic exam was entirely normal except for the Valsalva and Soto-Hall tests, and a slight decrease in flexion and extension of the throaco-lumbar spine. X-rays taken on (date of injury) were normal except for some postural alterations, and in particular, X-rays of the thoracic spine showed that vertebral bodies and disc heights were maintained. No other records were offered concerning J.B., and the ALJ finds that the evidence does not establish that J.B. had a significant neurological deficit to justify an early MRI.

For J.C., BCMRI performed two MRIs (lumbr and cervical) on October 6, 2000, which was after J.B.'s injury. Dr. Rhudy stated that a cervical MRI for J.C. was medically reasonable and necessary based on the mechanics of the injury (a significant fall) and signs of pressure on the cervical discs. Dr. Rhudy testified that J.C.'s fall down a flight of stairs could put axial pressure on the spine, and that tingling and pain in J.C.'s throat, wrist, and hand were also signs of a possible disc injury. But as Dr. Watts and Dr. Tsourmas noted, the sensory exam performed on J.C.'s cervical, thoracic, and lumbar spine was Atotally normal on both the left and right sides, as well as the motor exam and reflexes. In addition, X-rays taken shortly after J.C.'s accident showed some chronic changes to the spine but did not show any signs of acute injury from an accident. On the orthopedic exam, J.C. complained of back pain, but he did not complain of radiating leg pain or other symptoms that indicated a likely disc pathology. Dr. Rhudy seemed to suggest that pain itself is an indication of sensory impairment, but the ALJ agrees with Dr. Watts that Asensory impairment means some type of impairment to the sensory system itself, such as a nerve root compression, which J.C. was not shown to have at the time the early MRIs were ordered. Therefore, the ALJ finds that BCMRI did not show by a preponderance of the evidence that an early MRI was medically necessary for J.C.

In summary, the ALJ finds that BCMRI performed MRIs on J.B. and J.C. earlier than the time parameters in the STG (i.e., earlier than 45 days after injury), but that BCMRI did not prove by a preponderance of the evidence that these early MRIs were medically necessary as required by the STG. Therefore, the ALJ denies BCMRI's appeal.

IV. FINDINGS OF FACT

  1. On (date of injury) Claimant J.B. suffered a compensable in the course and scope of his employment.
  2. J.B.'s injury is covered by workers= compensation insurance written by Texas Mutual Insurance Company (TMI), formerly Texas Workers= Insurance Fund.
  3. As a result of the compensable injury, J.B. had upper back pain.
  4. Kyle Campbell, D.C., was J.B.'s treating doctor.
  5. Bexar County MRI (BCMRI) performed an MRI on J.B.'s thoracic spine on April 28, 2000, which was after the date of injury.
  6. TMI denied BCMRI reimbursement in the amount of $1400.00, and BCMRI requested medical dispute resolution.
  7. In a decision issued February 9, 2001, the Medical Review Division (MRD) of the Texas Workers= Compensation Commission (Commission) denied BCMRI reimbursement for the MRI.
  8. On March 2, 2001, BCMRI appealed MRD's decision to the State Office of Administrative Hearings (SOAH).
  9. On March 28, 2001, notice of a hearing in this case was mailed to BCMRI, TMI, and the Commission's APA Litigation Division.
  10. On May 16, 2002, a hearing was convened in Austin, Texas, on BCMRI's appeal. Representatives of BCMRI and TMI appeared. No one representing the Commission appeared.
  11. Under the Texas Workers= Compensation Commission's Spine Treatment Guideline (STG), the time parameter for performing an MRI for a spinal injury is six weeks to four months after injury.
  12. Under the STG, an MRI should not be performed earlier than six weeks from the date of injury unless the injured worker has a significant neurological deficit or other documented medical condition making an early MRI medically necessary.
  13. J.B. was not experiencing unremitting pain, progressive numbness, signs of sensory impairment or motor weakness, bowel or bladder dysfunction, severe weakness or other medical condition within six weeks after the date of injury that made an early MRI medically necessary for J.B.
  14. On (date of injury) Claimant J.C. suffered a compensable in the course and scope of his employment.
  15. J.C.'s injury is covered by workers= compensation insurance written by Texas Mutual Insurance Company (TMI), formerly Texas Workers= Insurance Fund.
  16. As a result of the compensable injury, J.B. had moderate neck pain, mid-back pain, low-back pain, bilateral shoulder and wrist pain, and left shin pain, as well as severe throat pain.
  17. Richard Bozeman, D.C., was J.C.'s treating doctor.
  18. Bexar County MRI (BCMRI) performed two MRIs on J.C., one on his cervical spine and the other on his lumbar spine, on October 6, 2000, which was after the date of injury.
  19. TMI denied BCMRI reimbursement in the amount of $2800.00, and BCMRI requested medical dispute resolution.
  20. In a decision issued August 30, 2001, the TWCC MRD denied BCMRI reimbursement for the MRIs performed on J.C.
  21. On September 24, 2001, BCMRI appealed MRD's decision to SOAH.
  22. On November 6, 2001, notice of a hearing in this case was mailed to BCMRI, TMI, and the Commission's APA Litigation Division.
  23. On May 16, 2002, a hearing was convened in Austin, Texas, on BCMRI's appeal. Representatives of BCMRI and TMI appeared. No one representing the Commission appeared.
  24. Under the STG, the time parameter for performing an MRI for a spinal injury is six weeks to four months after injury.
  25. Under the STG, an MRI should not be performed earlier than six weeks from the date of injury unless the injured worker has a significant neurological deficit or other documented medical condition making an early MRI medically necessary.
  26. J.C. was not experiencing unremitting pain, progressive numbness, signs of sensory impairment or motor weakness, bowel or bladder dysfunction, severe weakness or other medical condition within six weeks after the date of injury that made an early MRI medically necessary for J.C.

V. CONCLUSIONS OF LAW

  1. The Texas Workers= Compensation Commission (Commission) has jurisdiction to decide the issues presented pursuant to Tex. Labor Code (Labor Code) ' 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 Labor Code ' 413.031 and Tex. Gov=t Code (Gov=t Code) ch. 2003.
  3. Adequate and timely notice of the hearing was provided in accordance with Gov=t Code '' 2001.051 and 2001.052.
  4. The MRIs performed by Bexar County MRI on J.B. and J.C. earlier than six weeks after their dates of injury were not medically necessary.
  5. Bexar County MRI is not entitled to reimbursement for the MRIs performed on J.B. and J.C.

ORDER

IT IS ORDERED that Bexar County MRI shall have and recover nothing from Texas Mutual Insurance Company for the MRIs performed on J.B. and J.C. that are the subject of this proceeding.

Signed June 27, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

THOMAS H. WALSTON
Administrative Law Judge

  1. In Docket No. 453-01-2384.M5 BCMRI seeks reimbursement of $823.00; in Docket No. 453-02-0524.M5 it seeks reimbursement of $1344.00.
  2. Dr. Rhudy also holds a J.D. degree.
  3. Dr. Watts described proprioception as the ability to determine where points are in space. A typical test would be for a patient to bring the fingertips of his two index fingers together in front of him with his eyes closed.
  4. See Tsourmas Deposition Exhibits 5, 6, 7, and 8.
  5. See Tsourmas Deposition Exhibit 10.
  6. 28 TC ' 134.1001(f)(2)(F) lists an MRI as an approved diagnostic intervention, and ' 134.1001(f)(3)(B) states than an MRI should be performed at a time interval of six weeks to four months. This section does not state when the time interval commences (i.e., from the date of injury or from the date treatment begins), but 28 TAC ' 134.1001(h)(3)(A) states that the need for diagnostic studies Ais dependent on both the amount of time that has passed since the date of injury and on the injured employee's documented clinical condition. This language clarifies that the time interval begins to run from the date of injury.
End of Document
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