DECISION AND ORDER
This case is a dispute over whether Provider, Dr. Mark Beaty, D.C., should be reimbursed for the cost of medical treatment and services (manipulation therapy, myofascial release, and electrical stimulus) provided to the workers’ compensation claimant. The amount in controversy is $ 2,800.00.
The Administrative Law Judge (ALJ) concludes the Petitioner met its burden of proving the treatment and services were not medically reasonable or necessary under the Texas Workers’ Compensation Commission’s (the Commission) Spine Treatment Guidelines. Therefore, she denies additional reimbursement.
I. Procedural History, Jurisdiction, and Notice
On April 18, 2002, ALJ Suzanne Formby Marshall convened the hearing at the William C. Clements Building, 300 W. 15th St., 4th Floor, Austin, Texas. Attorney Thomas Hudson appeared on behalf of Petitioner, Texas Mutual Insurance. Counsel for the Texas Workers’ Compensation Commission had previously filed a waiver of appearance. No one appeared on behalf of Provider. After the hearing and receipt of the evidence, the record closed. Notice and jurisdiction will be addressed in the findings of fact and conclusions of law.
The Claimant sustained a compensable back injury on ______He began treatment under the care of Dr. Mark Beaty (Provider) who prescribed passive care therapy, including manipulation therapy, myofascial release and electrical stimulation to decrease the Claimant’s pain and allow him to perform daily activities more easily. The period of treatment at issue is from January 31, 2000, through September 13, 2000.
Texas Mutual Insurance Company (Carrier) declined to pay for the medical treatment and services provided by Dr. Beaty during this time period. Dr. Beaty filed a request for medical dispute resolution with the Commission. The Commission’s Medical Review Division (MRD) found in favor of Dr. Beaty on June 12, 2001. Carrier has appealed that decision. As the party appealing the MRD decision, Carrier has the burden of proof. 28 Tex. Admin. Code (TAC) §148.21(h).
Dr. Alvarado’s Testimony.
Carrier’s refusal to pay for treatment was based on a records review conducted by David Alvarado, D.C. Dr. Alvarado performed a peer review in June 2001. He examined the medical records and other documents in this case, including physicians’ reports, treatment notes, and billing records. Dr. Alvarado testified that Claimant began treatment with Dr. Beaty in May of 1998. Claimant’s symptoms included lower back pain in the left lower extremity, pain and numbness.
Provider prescribed a course of treatment of manipulation therapy, myofascial release, and electrical stimulant that continued during the time period in question. According to Dr. Alvarado, the prescribed treatment was appropriate initially, but should have been re-evaluated when the Claimant did not show improvement within a two-week period, consisting of approximately four to six visits. Dr. Alvarado testified that the records did not reflect improvement by the Claimant, nor that any tests were done to measure whether Claimant showed improvement, from both an objective and subjective perspective. Dr. Alvarado testified that if the Claimant had not shown at least a fifty percent improvement within two weeks, the treatment should have been altered or different diagnostic tests should have been ordered, such as an MRI, CT scan, or a neurological and/or orthopedic evaluation.
As noted by Dr. Alvarado, another physician, Dr. Scarpino, performed an independent medical evaluation and recommended that Claimant receive a myelogram and a post-myelogram CT, but the records did not indicate that these tests were ever ordered by Provider. Dr. Whitsell also performed an independent medical evaluation and also recommended a myelogram and post-myelogram CT, as well as an orthopedic or neurological consultation. Again, the records did not reflect that any of these tests were ordered. Despite the recommendations of these other physicians and the continuation of Claimant’s pain and lack of progress, Provider did not alter the treatment plan for Claimant.
Dr. Alvarado observed that Claimant made approximately four visits per week to Dr. Beaty over the relevant time period. Dr. Alvarado testified that the continued treatment was not beneficial to Claimant and led to a dependency of Claimant upon the treatment and doctor, instead of helping the Claimant to have more active control over the pain. Dr. Alvarado testified that Provider did not follow the McKinsey protocols for back injuries, developed by Robin McKinsey, which would have been appropriate in this case. These protocols encourage the education and training of patients in order to assist in the recovery from back injuries through the use of home exercises. Based on Dr. Alvarado’s assessment, Carrier contended that the continued use of the passive modality treatment was not reasonable or necessary.
Dr. De Foyd’s Testimony.
Carrier relied upon the testimony of Dr. Bill De Foyd, D.C., to explain why the treatment did not comply with the Commission’s Spine Treatment Guidelines. Dr. De Foyd is a practicing chiropractor in Austin, Texas, and is board certified in chiropractic orthopedics. Dr. De Foyd agreed with the conclusions of Dr. Alvarado. According to Dr. De Foyd, the treatment of Claimant falls excessively outside the parameters of the Spine Treatment Guidelines.
He testified that there was insufficient documentation or medical rationale given by Provider in the medical records for continuing the same treatment plan for three years which supported deviating from the Spine Treatment Guidelines, given the results experienced by Claimant. Dr. De Foyd testified that Provider’s treatment violated the Commission’s Spine Treatment Guidelines for documentation, deviation from the Guidelines and evaluation. 28 TAC §134.1001(e)(2)(A).
With regard to Provider’s failure to comply with the documentation requirements of the guidelines, Dr. De Foyd testified that there was: (1) no evidence of a home program for patient; (2) inadequate description of the patient’s capabilities and clinical progress; (3) no notes describing quantified changes in pain behavior using tools such as pain drawings; (4) no notes describing the patient’s exercise; and (5) no description of a back disability index result, such as the Oswestry Q, which rates a patient’s back-related function in ten different categories.Dr. De Foyd testified that there was no indication that Provider used any type of commonly used or recommended, outcome measurements during the Claimant’s course of treatment. Dr. De Foyd testified that documentation for manipulation therapy is required in order to show continued objective and quantified measures of improvement over time. He could find no such evidence in the medical records. He testified that Provider’s failure to provide adequate documentation of the treatment violated the requirements of 28 TAC § 134.1001(e)(2)(A)(I), which require adequate documentation of treatment of a work- related injury.
Dr. De Foyd stated that there was little information in the medical records showing that the treatment was evaluated for effectiveness, such as through the use of ongoing measures of outcomes or through the use of a pain scale rating of effectiveness. According to Dr. De Foyd, there was no evidence that Provider modified the treatment provided to Claimant based on clinical changes, as required by 28 TAC § 134.1001(e)(2)(A)(ii). Instead, the treatment remained the same for over 330 visits. According to Dr. De Foyd, there was no medical rationale in the record which justified performing the same treatment for three years to Claimant. Dr. De Foyd agreed with Dr. Alvarado that the passive treatment, performed over and over, could have a detrimental effect on a patient, since it can produce patient dependency and actually reinforces the problem by setting up a cycle of chronic pain, depression, and a feeling of lack of control by the patient over how to manage the injury and its resulting pain.
There was also no documentation that the treatment was objectively measured and demonstrated functional gains. 28 TAC § 134.1001(e)(2)(A)(vi). According to Dr. De Foyd, this documentation requirement from the Guidelines requires an observation of the patient to determine whether there is improvement, use of a quantified pain scale rating, and an assessment of the patient’s ability to perform life functions. The records reviewed by Dr. De Foyd did not show functional gains by Claimant. Dr. De Foyd also testified that the records contained no documentation of ongoing progress in the recovery process by appropriate re-evaluation of the treatment. 28 TAC § 134.1001(e)(2)(A)(vii).
Dr. De Foyd testified that Provider did not provide treatment consistent with the Guidelines, and did not provide a rationale for deviating from the Guidelines, thereby violating the provisions of 28 TAC §§134.1001(d)(1) and (e)(2)(A)(v). Dr. De Foyd claimed that the excessive time frame for the manipulation treatment violated the Guideline’s requirements to perform manipulation for the minimum appropriate duration. 28 TAC § 134.1001(e)(2)(E).
Dr. De Foyd concluded that the continued performance of passive treatment during the relevant time period was not medically necessary or reasonable.
III. Findings of Fact
- The Claimant sustained a compensable back injury on ___________
- The Claimant’s treating physician, Dr. Mark Beaty, D.C., prescribed passive treatment of manipulation therapy, myofascial release, and electrical stimulation to decrease the Claimant’s pain and allow him to perform daily activities more easily.
- Texas Mutual Insurance Company (Carrier) declined to pay for the treatment and services provided by Dr. Beaty (Provider) to Claimant during the period from January 31, 2000, through September 13, 2000.
- Provider filed a request for medical dispute resolution with the Texas Workers’ Compensation Commission.
- The Commission’s Medical Review Division (MRD) found in favor of Provider.
- Texas Mutual filed a timely appeal of the MRD decision.
- Notice of the hearing was sent July 19, 2001.
- 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.
- The hearing was held April 18, 2002, with Administrative Law Judge (ALJ) Suzanne Formby Marshall presiding. Texas Mutual Insurance Company was represented and participated in the hearing. Dr. Beaty was not represented and did not participate in the hearing. After receipt of evidence, the hearing adjourned and the record closed the same day.
- The amount in controversy is $ 2,800.00.
- Claimant’s symptoms were not improved by Provider’s treatment and services to an extent that would normally be expected.
- Despite Claimant’s lack of improvement under the prescribed treatment, Provider did not modify the treatment or seek other diagnostic tests in order to provide more effective treatment of Claimant.
- Provider’s medical records did not contain: documentation of a home program for Claimant; information about the Claimant’s capabilities and clinical progress; notes describing quantified changes in pain behavior; notes describing the patient’s exercise; description of a back disability index result; objective measurements of the treatment which demonstrated functional gains; documentation of ongoing progress in the recovery process by appropriate re-evaluation of the treatment; a rationale for the length of time in which manipulation treatment was provided; and a rationale explaining Provider’s deviation from the Guidelines.
- There was little indication that the treatment was evaluated for effectiveness or measured objectively to demonstrate functional gains.
- The duration of manipulation treatment was excessive.
- Provider’s treatment plan led to a dependency of Claimant upon the treatment and doctor, instead of allowing him to have more control over his pain.
- The evidence does not demonstrate that the use of the passive modality of manipulation treatment, myofascial release, and electrical stimulation provided to Claimant from January 31, 2000, through September 13, 2000, was medically reasonable or necessary.
IV. Conclusions of Law
- The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers' Compensation Act. Tex. Lab. Code Ann. ch. 401 et seq.
- SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. §413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
- Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §2001.052 and 1 TAC § 155.27.
- Texas Mutual Insurance Company has the burden of proof in this matter. 28 Tex. Admin. Code (TAC) §148.21(h).
- An employee is 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. Tex. Lab. Code Ann. § 401.011(19)(A).
- Provider’s medical records did not contain adequate documentation for the treatment as required by the Spine Guidelines.
- The duration of manipulation treatment violated the Guidelines’ requirement to perform manipulation for the minimum appropriate duration.
- Texas Mutual Insurance Company met its burden of proving the medical treatment and services rendered to Claimant from January 31, 2000, through September 13, 2000, were not medically reasonable or necessary, pursuant to 28 TAC §134.1001(e)(2)(A)(4).
- Petitioner should not reimburse Respondent for treatment and services rendered from January 31, 2000, through September 13, 2000.
IT IS, THEREFORE, ORDERED that Petitioner should not reimburse Dr. Mark Beaty in the amount of $ 2,800.00 for treatment and services provided to Claimant from January 31, 2000, through September 13, 2000.
Signed this 15th day of May, 2002.
SUZANNE FORMBY MARSHALL
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- Although Dr. De Foyd’s testimony discussed three years of treatment by Dr. Beaty, the only dates at issue in this matter are January 31, 2000, through September 13, 2000.↑