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At a Glance:
March 17, 2003
Retrospective Medical Necessity


March 17, 2003


Waco Ortho Rehab (Provider) and Continental Casualty Company (Carrier) each requested a hearing at the State Office of Administrative Hearings (SOAH) to dispute different portions of the Texas Workers' Compensation Commission's (Commission) Medical Review Division (MRD) findings and order issued July 20, 2001.[1] Therein, the MRD directed the Carrier to pay the Provider $2032.50[2] for a total reimbursement of $2277.50 on billings of $9998.50. Although it disagreed with the MRD’s order to pay the Provider $2032.50, the Carrier did not pursue its challenge of that reimbursement in the SOAH hearing. Issues presented for consideration in this proceeding deal solely with the Provider’s challenges to charges for services that were disallowed by the MRD. The Administrative Law Judge (ALJ) finds that the Provider is entitled to additional reimbursement of $513.00 for services related to CPT[3] Codes 99213 and 97750-MT, but that it failed to carry its burden of proof to show charges for services billed under CPT Code # 97110 should be reimbursed.

The hearing was convened on August 8, 2002, at the SOAH hearings facility in the William P. Clements State Office Building, Fourth Floor, 300 West 15th Street, Austin, Texas. Attorney Scott. C. Hilliard appeared on behalf of the Provider, and the Carrier participated through its counsel, James M. Loughlin. The Commission did not participate in the hearing. The hearing concluded that day, and the record closed upon receipt of supplemental arguments on November 21, 2002.

I. Notice, Jurisdiction, and Venue

Because there were no contested issues regarding notice, jurisdiction, or venue, those matters are addressed in the Findings of Fact and Conclusions of Law without further discussion here.


Claimant suffered a compensable injury to her wrist on or about _____. Upon referral by her primary care physician, she saw Dr. Randy Gardell, M.D., on October 21, 1998, and was prescribed a wrist brace to be worn at night. Dr. Gardell saw the Claimant again on November 2 and December 2, 1998, related to an EMG/NCV.[4] The evidence does not show that Claimant received active or passive physical therapy treatment for her injury or other evaluation of her condition until the Claimant sought a change of her treating physician to a doctor associated with the Provider on May 25, 1999.[5]

Claimant first received treatment at the Provider's Waco facility on June 4, 1999, by Dr. Craig E. Cernosek, D.C., for what she indicated was severe and constant pain (10 on a scale of 10) in her right hand, wrist, and forearm and numbness and weakness in her hands at night. Dr. Cernosek diagnosed the Claimant as suffering from carpal tunnel and myofascial pain syndromes, and muscular deconditioning, and he prescribed initial and subsequent treatment plans that included both active and passive therapy.[6]

The disputed services in this case stem from the treatments provided over thirty-seven dates running from July 6, 1999, to January 20, 2000, and were charged under twelve different CPT codes, which put 106 separate disputed charges at issue before the MRD. After the dust settled from the MRD's order and the parties subsequently decided what specific charges they still wished to dispute, the remaining issues to be considered in this Decision involve only payments by the MRD for services billed using the following three CPT codes: 97110, 99213, and 97750-MT.

III. ARGUMENT and Evidence

A. One-on-one physical therapy - CPT Code 97110

Maximum allowable reimbursement (MAR) for services under CPT Code 97110 is $35.00 for each fifteen-minute “unit”of time spent in therapy.[7] Citing, primarily, the failure to provide documentation that the treatment given was exclusive one-on-one therapy, the MRD denied reimbursement for 180 units of time or $6300 under CPT Code 97110.[8] Although "hotly" debated in several prior cases, both sides agree in this hearing that current Commission and SOAH decisions have settled the question that billing under CPT Code 97110 requires that the injured worker receive exclusive one-on-one continuously-supervised physical therapy.[9] The issue in this case concerning CPT Code 97110 is whether the evidence shows the Claimant actually received continuously supervised one-on-one physical therapy.


The Provider first complains that the Carrier never denied reimbursements on the basis that one-on-one physical therapy was not adequately documented. Citing a recent SOAH case,[10] the Provider argues that the MRD’s sua sponte consideration of whether the one-on-one physical therapy charged under CPT Code 97110 was adequately documented denied it the opportunity to address that issue and resulted in the wrongful disallowance of payments for those services. Although it maintains that documentation of one-on-one therapy should not be an issue in this hearing, the Provider asserts, nonetheless, that the Claimant received one-on-one therapy and that it should be reimbursed for the services provided under this code.

In support of its position, the Provider relies on the documentary record considered by the MRD and the testimony of its president and general partner, Dr. David N. Bailey, D.C., who practices in the Provider's Bryan office. Although he still believes his prior practice of providing Code 97110 "one-on-one" physical therapy in a group setting was correct, Dr. Bailey testified he revised that former practice in response to decisions that began to repeatedly deny reimbursements when the therapy was not "exclusively" one-on-one. When asked about the timing of this change, Dr. Bailey responded that he thought he revised the policy in the spring of 1999, sometime prior to July 1999. He admitted, however, that there is no documentation of past or current clinic policies or procedures that reflect the change. Dr. Bailey further clarified that: (1) the Claimant was not his patient; (2) he was not present when the physical therapy at issue was given; and (3) he had no personal knowledge about the type of physical therapy received by the Claimant on the dates in dispute. When asked if there was any documentation showing that the service rendered on the dates at issue in this case was exclusive one-on-one therapy, Dr. Bailey pointed to a phrase in section "A" in Claimant's SOAP[11] notes that reads, "Not Group Setting."[12] However, he also acknowledged this same phrase is found in SOAP notes generated under the prior practice.


In response to the Provider's complaint that MRD wrongly considered whether one-on-one therapy was adequately documented, the Carrier contends that MRD has discretion to consider issues on its own initiative because it has an affirmative duty to enforce the Texas Workers’ Compensation Act and the Commission's rules regarding appropriate payment for services and awarding reimbursement because a carrier did not raise the violation would directly contradict that duty.[13] The Carrier maintains that the MRD correctly determined that the Provider's documentation does not support a finding that one-on-one therapy was provided for the period of time billed for each date of service, and adds that the Provider did not meet its burden in this hearing to show by a preponderance of the evidence that the therapy provided was one-on-one.

The Carrier acknowledges Dr. Bailey's testimony about changing his prior billing procedure in response to adverse reimbursement decisions, but points out that those adverse decisions had not yet been issued at the time the therapy in dispute here was provided - July through October 1999.[14] The Carrier argues that Dr. Bailey had no specific recall and no written documentation showing exactly when he changed the clinic's policy. Further, the Carrier points out that as late as September 2000, Dr. Bailey testified that his earlier billing practice of using Code 97110 for group therapy was correct, and the opposition's definition for what "one-on-one" therapy meant was "uncommon."[15] The Carrier maintains such prior testimony is inconsistent with Dr. Bailey's testimony in this case and does not prove that the physical therapy received by the Claimant from July through October 1999 truly involved continuous one-on-one supervision. Finally, the Carrier asserts that the phrase "Not Group Setting" has been in the SOAP notes in prior cases when the Provider was still advocating the incorrect use of CPT Code 97110 and, again, does not support an inference that the therapy given was exclusively one-on-one.

B. Established patient office visits - CPT Code 99213

MAR for services under CPT Code 99213 is $48.00.[16] The Provider was denied payment for eight office visits or $384.00 for the following stated reasons: (1) the documentation did not support re-evaluation on a frequent basis on seven of eight dates; and (2) lack of preauthorization on one date.[17] These reasons roughly coincide with the Carrier’s explanation of benefits (EOB) for denying payments for these office visits.

The Provider argues that preauthorization is not needed for limited office visits, and July 21 is within the initial eight weeks after the Claimant’s first appointment on June 4, 1999, and the Carrier preauthorized the physical therapy through the October 22 and 29 dates in question.[18] Dr. Bailey testified these visits are necessary because they provide information needed for the treating doctor to meet his/her responsibility to maintain efficient utilization of the patient’s health care.[19] He noted further that the SOAP notes detail such things as: who conducted the evaluation, describes the patient’s state of health coming into the evaluation, indicates what was checked during a particular evaluation, provides the doctor’s assessment of her progress and current condition, and discusses how he intends to proceed with treatment. The Provider contends that this information meets the requirements in the MFG for this level of limited office visit.

The Carrier argues that the Commission has more recently been trying to “crack down”on providers that bill for an office visit under Code 99213 every time the patient comes in, which in this case was roughly two or three times a week. It maintains that the relevant ground rule limits this code to periodic re-evaluations or for the evaluation and management of new problems of established patients.

C. Muscle Testing - CPT Code 97750-MT

MAR for services under CPT Code 97750-MT is $43.00 for each fifteen-minute “unit” of time spent in testing.[20] At issue here are the Provider’s charges for muscle testing performed on August 10 (three units/$129) and November 18, 1999 (two units/$86). The MRD reduced reimbursement to one unit on each date of service, which resulted in a total denial of three units or $129.00. The MRD’s rationale for denial states, “[r]eimbursed per body area only” and refers to MGR I.(E)(3)(a).[21]

Citing a recent SOAH decision wherein the judge determined that the MAR level allowed reimbursement in fifteen-minute increments for muscle testing within one body area and did not limit a provider to a one unit charge for the entire time it to administer the test(s),[22] the Provider contends the MRD wrongly denied it reimbursement for all the time spent.[23] Echoing the information in Dr. Chenosek’s medical notes, Dr. Bailey further testified that the muscle testing in this case was necessary to: (1) evaluate the Claimant’s general work capacity or ability to return to unrestricted work status; (2) assess her progress; and (3) determine whether any or what kind of future treatment might still be needed.

The Carrier notes, however, that this provider also billed for a range of motion test and the highest level office visit the same day as the NIOSH capacity test. As such, it questions why this third test was medically necessary when, according to the MFG description of the office visit billed, the doctor had already spent at least forty minutes evaluating the patient that day. The Carrier contends an assessment of a patient’s progress is generally done through the office visit and patient interview and questions why the doctor here could not determine the Claimant’s condition and need for further treatment based on the range of motion test and lengthy office evaluation that had been done that day.


As a preliminary matter, whether or not the Carrier actively defended the following contested portions of the MRD’s decision is immaterial. The burden on appeal lies with the party who is seeking to change the MRD’s decision. Regardless of whether the Carrier is even a party in this proceeding, if the Provider seeks payment for charges denied by the MRD, it is incumbent on the Provider to show by a preponderance of the evidence in this hearing that such reimbursement is appropriate.

Second, the ALJ disagrees with the Provider’s complaint that it is unfair to consider the adequacy of Code 97110 documentation in this case and finds this case is factually distinguishable from the Waco Ortho Rehab case cited by the Provider. See note 10. Therein, the MRD responded to the Provider’s request to reconsider its decision denying payments for services billed under three specific CPT codes by first auditing and then ordering the Provider to refund payments for a fourth unrelated service without notice of the audit or opportunity to present additional documentation, and in flagrant violation of its own audit rule. The fourth service was not denied by the Carrier or the MRD in its first decision. Under those circumstances, the judge found that, besides violating its own rule, the MRD’s failure to give notice of the audit denied the Provider a chance to present data to support the charges for those services. In the SOAH hearing that followed, the judge found the additional evidence that the Provider finally had the opportunity to present was sufficient to support the charges. Here, the MRD’s decision plainly gave notice and put at issue the question of whether exclusive one-on-one or group therapy had been provided by denying reimbursement of most Code 97110 charges based on a lack of adequate documentation. Accordingly, the Provider had a full opportunity to address that issue with evidence in this hearing. Moreover, the fact that the Provider had ample notice and opportunity to address the documentation issue is confirmed by the fact that it did, in deed, present evidence and argument directly on this question in the hearing.

A. One-on-one physical therapy - CPT Code 97110

The ALJ finds that the preponderance of the evidence does not show the services at issue here were rendered in a non-group exclusive one-on-one setting so as to justify billing under Code 97110.

The ALJ believes Dr. Bailey’s testimony that he has accepted the current interpretation of what can be billed under Code 97110 and has changed practices at his clinics accordingly. However, the evidence does not show when the procedure was revised or whether the new practice was actually applied to the Claimant’s physical therapy received from July through October 1999 at the Waco facility. Testimony, at best, shows that Dr. Bailey thinks the procedure changed by mid-1999. Dr. Bailey, however, stated that his reason for changing his treatment procedure was the growing number of adverse decisions denying reimbursement under Code 97110. In the absence of any direct evidence showing when the former practice was revised and implemented at the Provider’s facilities and accepting Dr. Bailey’s given reason for change as a logical response to adverse hearing decisions, the ALJ agrees with the Carrier that the therapy procedures would more likely have changed after those adverse decisions began to be issued, i.e., roughly September 2000.

Looking to the other possibly supportive documents, the ALJ concludes the phrase "Not Group Setting" in the SOAP notes would be more persuasive but for the fact Dr. Bailey admitted: (1) SOAP notes do not tell the reader how the therapist actually worked with the patient; and (2) language describing the therapy in the SOAP notes "did not change" after the procedure changed. The evidence shows this same phrase is found in 1998 SOAP notes at issue in Docket No. 453-00-2051.M4, i.e., when Code 97110 was still clearly used to for less than exclusive group therapy.[24] The ALJ also finds it somewhat significant that the Provider apparently did have a different description for exclusive one-on-one non-group therapy as is shown in the September 15, 1999 SOAP notes, which state: "This is a supervised program of therapeutic procedures per TWCC MFG. One to one therapy. Not group therapy."[25] This clearer terminology describing one-on-one therapy is conspicuously absent from documentation for any of the twenty-seven dates at issue here.[26] The fact that the September 15, 1999 SOAP note description is distinct from every other note could lead one to conclude that the physical therapy given on September 15 was, in fact, different than the group therapy received by the Claimant on the other dates.

Finally, unlike her treating doctor or the therapist(s) that actually worked with her, Dr. Bailey has no personal knowledge of what form of physical therapy was provided to the Claimant. For this reason, Dr. Bailey does not offer the best evidence of what actually transpired in this Claimant’s therapy sessions.

Based on all of the above, the record does not support the Provider’s position that the CPT Code 97110 charges on the dates at issue are for exclusive one-on-one physical therapy.[27]

B. Established patient office visits - CPT Code 99213

According to the E/M-GR, the established patient codes (99211-99215) are to be used when providing services to "established patients who present for follow-up and/or periodic re-evaluation of problems or for the E/M of new problem(s). . ." Billing for an office or other outpatient visit under Code 99213 requires at least two of these three "key" components: an expanded problem focused history, an expanded problem focused examination, and/or medical decision making of "low complexity." The patient’s presenting problem(s) are "usually" of low to moderate severity and physicians "typically" spend fifteen-minutes face-to-face with the patient and/or family.[28]

Initially, it is difficult to discern from the evidentiary record why the MRD did or did not order reimbursement for Code 99213 charges on different service dates. For example, it denies reimbursement on seven of the dates at issue for a lack of documentation to justify the frequency of the visits. Then it turns around and orders reimbursement for services in September to mid-October 1999 with the rationale that the documentation "supports the medical necessity of this disputed service." Review of the documentation for the dates when charges were denied and when they were ordered to be paid, however, shows essentially the same information was supplied.

Second, the evidence shows each of the evaluations in question were done by the Claimant’s treating doctor, Dr. Craig Cernosek. Records of these office visits show Dr. Cernosek performed a detailed examination of the effected body parts of this injured worker. He documented the Claimant’s condition coming into the appointment, e.g., current level of pain being experienced, assessed her progress and/or new problems or conditions that had come up since the last evaluation, indicated his decision(s) of how to proceed and made adjustments to future treatment.[29] The ALJ finds such documentation is sufficient to meet the requirements in the MFG’s E/M-GR for billing under CPT Code 99213.

Finally, although the Carrier raised a reasonable question about the frequency of such office visits, there is no apparent prohibition against them as long as they are appropriately documented and shown to be a necessary part of the injured patient’s treatment program. It is also unclear how the MRD’s order to reimburse for visits on September 15, 16, 17, 20, 22, 24, 30, October 4, 6, 8, 11, 15, and 18, 1999, is indicative of a Commission "crack down on the frequency" of office visits.

C. Muscle testing

The MFG for Code 97750-MT requires documentation identifying the services provided, results, and interpretation of the test. Muscle testing under this code "shall be reimbursed per body area" as that term is used in the MGR.[30] It has been determined that: (1) the “per body area” language is intended to restrict reimbursements for each muscle tested within a body area; but (2) as long as the testing is reasonable and necessary, a provider can charge for each fifteen minutes of testing within a body area.[31] Among the criteria that “shall be met” in order for physical medicine treatment to qualify for reimbursement is the requirement that “treatment shall be specific to the injury and provide for the potential improvement of the patient’s condition."[32]

In this case, the record shows that two different tests account for the three units of time billed on August 10, 1999: (1) Dynatron wrist muscle testing for fifteen minutes; and (2) NIOSH[33] strength testing for thirty minutes. The latter testing is described in the SOAP notes as "functional and global assessments of patient ability, rather than tests of isolated muscle groups."[34] In addition to Dr. Bailey’s testimony regarding the necessity of such tests, results of the treating doctor’s examination, his progress evaluations, and the reasons these tests were ordered are documented in Dr. Cernosek’s August 10 and November 18, 1999 medical reports and in the individual tests result reports that follow.[35] The Provider questions why only partial payment for the time spent was ordered.

Denial does not appear to have been based on a determination that the NIOSH test is not an appropriate muscle test. Ordering even a partial payment for this test, as was done on November 18, indicates the NIOSH capacity test is an accepted muscle test that can be billed under Code 99750-

MT, and there is no evidence to the contrary. Neither does the record show that either the MRD or Carrier denied reimbursements because these tests were not a reasonable and necessary part of the Claimant's treatment.

A recent SOAH case also considered the appropriateness of payment for a NIOSH test billed under Code 97750-MT.[36] The patient in that case had also received two types of tests, i.e., one fifteen-minute test specific to the injured elbow and a thirty minute NIOSH test to determine the patient’s safe level of global and functional work capacity. Noting evidence that the specific goal of the provider’s treatments in that case was “post-surgical elbow rehabilitation,” the judge decided the NIOSH test, which included back and leg lifts, was "difficult to connect to the carpal tunnel injury" and did not find a sufficient link between rehabilitation of the injured elbow and the NIOSH testing to warrant payment for that more general test.

In a similar way, the portion of the NIOSH strength capacity test that measures back and leg lifting capacities does not appear to be directly related to the diagnosed carpal tunnel, myofascial pain, and muscular deconditioning problems in the Claimant’s right hand, wrist and forearm in this case. However, the MFG does not appear to impose an across-the board mandatory limit on muscle testing that confines it to specific body parts. Instead, the guideline requires that the tests be specific to the injury and provide for potential improvement in the patient’s condition. The treating doctor is allowed to decide what tests will do this and are necessary depending on the particular circumstances of the case and injured worker’s condition. The Claimant’s treatment plan in this case[37] is not so narrowly drawn to address a specific body part as was shown in the above noted case. More importantly and as is called for in the MFG, the documentation appropriately and clearly identifies the NIOSH test and provides: (1) an explanation for why it was given, i.e., to obtain accurate measurements of a patient’s precise strength capacity which, in turn, will identify areas of weakness, quantify performance deficiencies, determine the extent of injury, and evaluate rehabilitation goals and progress; (2) the results; and (3) the interpretation of those results. The treating doctor's notes also show how he used these results to measure the Claimant's progress and her ability to return to full work duties, and to plan additional treatments to address her injury and associated conditions.

In addition, the ALJ observes that in this case the MRD also ordered full reimbursement for a forty-five minute (three units) DeLorme muscle strength test on July 8, 1999.[38] The record shows this test measured the condition of the Claimant’s neck, upper extremities, lumbar spine, and lower extremities with the rationale that: “[p]eriodic monitoring of rehab progress is needed to prevent overutilization,” and the test values are used to assess patient progress and compliance, and set future workout limits. Reviewing the documentation for the NIOSH and DeLorme tests, the ALJ sees no substantive difference in the supporting documentation that explains why these tests were given.

Considering all of the above, the ALJ finds the evidence shows that the NIOSH capacity test is an appropriately documented and reasonable and necessary part of the treatment plan for this patient. Under these circumstances, there is no discernable reason why only partial payment was ordered for the tests in dispute.

V. Conclusion

The ALJ finds that: (1) reimbursement is appropriate and should be made for the office visits and muscle test payments at issue in this case that were denied under the MRD’s order; and (2) the evidence does not prove it is more likely than not that the Claimant received exclusive one-on-one physical therapy. Accordingly, CPT Code 97110 charges at issue in this case should be denied.


  1. On _______, the Claimant was injured at her place of employment. Compensability is not at issue.
  2. On June 4, 1999, the Claimant was diagnosed by her treating doctor, Dr. Craig E. Cernosek, D.C., as suffering from carpal tunnel and myofascial pain syndromes and muscular deconditioning and began to receive treatment services for these conditions from Waco Ortho Rehab (Provider).
  3. The Provider filed claims for reimbursement for services provided over thirty-seven dates running from July 6, 1999 to January 20, 2000, charged under twelve different CPT codes, which resulted in over one hundred separate disputed charges by Continental Casualty Insurance Company (Carrier). The Provider filed a request for medical dispute resolution on June 28, 2000.
  4. On June 20, 2001, the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) issued a decision and order requiring the Carrier to reimburse the Provider a total of $2032.50 for services rendered to the Claimant. In that same order, the MRD denied reimbursements to the Provider totaling $7721.00.
  5. The Carrier filed a request for hearing and appeal of the MRD’s order on August 3, 2001, and the Provider filed a request for hearing and appeal of the MRD’s order on August 8, 2001.
  6. On September 4, 2001, the Commission issued notice of hearing to be held at the State Office of Administrative Hearings (SOAH). The notice contained a statement of the time, place, and nature of the hearing, and a statement of the legal authority and jurisdiction under which the hearing was to be held. On June 7, 2002, the Commission further filed a statement of the matters asserted and reference to the relevant statutes and rules involved.
  7. The hearing on the merits was held on August 8, 2002.
  8. By agreement, the parties narrowed the issues in dispute by specifying at the hearing that the issues to be decided in this case involved only the payments denied by the MRD for services billed using CPT codes 97110 (one-on-one physical therapy), 99213 (office visits), and 97750-MT (muscle testing).

One-on-one physical therapy

  1. Maximum allowable reimbursement (MAR) for CPT Code 97110 is $35.00 for each fifteen- minute “unit” of time spent in therapy. Billing under this code requires one-on-one contact between the patient and physician or therapist.
  2. The Provider was denied payment for 180 units of time or $6300 under CPT Code 97110. Specific dates of services in dispute are: July 6, 7, 9, 14, 16, 19, 21, 23, 26, 28, 30, September 16, 17, 20, 22, 24, 29, 30, October 4, 6, 8, 11, 15, 18, 22, 25, and 29, 1999. 11.In the past, the Provider used CPT Code 97110 to charge for therapy in a group setting that did not provide the patient with direct one-on-one therapy for the entire session. At the present time, it is no longer the policy or practice of the Provider to bill for physical therapy using CPT Code 97110 unless the therapy is exclusively one-on-one. There is no evidence showing that Dr. Bailey had changed the practice of billing for group therapy using CPT Code 97110 prior to the service dates at issue in this case.
  3. Documentation does not show the Claimant received one-on-one therapy on the dates in dispute. The phrase “Not Group Setting” in the medical notes was used in past cases when therapy was provided in a group setting and billed under CPT Code 97110, and this phrase was not changed whenever the Provider revised its practice and began billing under CPT Code 97110 only when the therapy was given in a one-on-one setting.
  4. Dr. Bailey is not the Claimant’s doctor; he was not present when her therapy was given; and he has no other personal knowledge of what type of therapy she received on the dates in dispute.

Office visits

  1. MAR for CPT Code 99213 is $48.00 per visit.
  2. The Provider was denied payment of $384.00 for eight established patient office visits. The dates of service in dispute are: July 6, 21, 23, 26, 28, 30, October 22, and 29, 1999.
  3. During the office visits, the Claimant’s treating doctor performed a detailed evaluation of the effected body parts and therein documented her current condition, including level of pain being experienced, assessed her progress from treatments received to date, considered any new problems or conditions the patient was experiencing since the last evaluation, and decided how to proceed and made any necessary adjustments for future treatments.
  4. These office visits are a reasonable and necessary part of the Claimant’s treatment program.
  5. Documentation is adequate to support reimbursement for all eight office visits billed under CPT Code 99213 on the dates in dispute.

Muscle testing

  1. MAR for CPT Code 97750-MT is $43.00 for each fifteen-minute unit of time spent in testing. The disputed dates of service are: August 10 and November 18, 1999.
  2. The Provider was reimbursed for two of five units of time billed for muscle testing.
  3. The muscle tests given on August 10 and November 18, 1999, took a total of five units or seventy-five minutes.

a.The Dynatron wrist-muscle test on August 10, 1999, was given to assess whether any improvement had occurred as a result of the treatment program; and

b.The NIOSH muscle strength capacity tests on August 10 and November 18, 1999, were given to: obtain accurate measurements of the Claimant’s precise strength capacity, identify areas of weakness and quantify deficiencies, determine the current extent of injury, and re-evaluate current rehabilitation goals and progress in light of the test results.

  1. The muscle tests noted in Finding of Fact No. 21 addressed the specific conditions of injury the Claimant has been diagnosed with and assisted the doctor in evaluating whether the treatment plan is working and how it might be adjusted to better improve the Claimant’s condition.
  2. Documentation is adequate to support reimbursement for all five units of time billed under CPT Code 97750-MT on the dates in dispute.


  1. The Commission has jurisdiction to decide the issues presented pursuant to Tex. Lab. Code Ann. § 413.031 (Vernon Supp. 2002).
  2. SOAH 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 and Tex. Gov’t Code Ann. ch. 2003.
  3. Timely appeals of the MRD’s order were filed by the Provider and Carrier. Tex. Admin. Code §§ 133.305(p) and 148.3.
  4. Adequate and timely notice of the hearing was provided by the Commission in accordance with TexGov’t Code Ann. § 2001.052.
  5. The party seeking relief bears the burden of proving by a preponderance of the evidence that it should prevail in hearings. 28 Tex. Admin. Code § 148.21(h).
  6. Based on the Findings of Fact, the Provider has not met its burden of proof to show it is entitled to additional reimbursement for one-on-one therapy services charged under CPT Code 97110.
  7. Based on the Findings of Fact, the Provider is entitled to reimbursement of $384.00 for eight established patient office visits billed under CPT Code 99213 and additional reimbursement of $129.00 for three units of time related to muscle-testing services billed under CPT Code 97750-MT on the above noted dates.


It is hereby ORDERED that the Carrier shall reimburse the Provider an additional $513.00, plus interest at the rate and for the time as provided by law.

Issued the 17th day of March 2003.

Leslie Craven
Administrative Law Judge

  1. At the time of the hearing, this docket was consolidated with SOAH Dkt No. 453-01-3331.M5, a dispute involving a May 22, 2001 MRD order to pay for similar services involving the same parties and Claimant. In the hearing, Carrier withdrew its appeal in that case and agreed to pay the reimbursement ordered by the MRD. SOAH Dkt. No. 453-01-3331.M5 was dismissed pursuant to Order No. 15 issued August 13, 2002.
  2. This amount reflects a credit of $245 for charges already paid by the Carrier: $2277.50 - 245 = $2032.50.
  3. Current Procedural Terminology (CPT) codes adopted for use by the TWCC come from Physicians’ Current Procedural Terminology, Fourth Edition, copyright 1994 by the American Medical Association. See preamble to rule adopting the Medical Fee Guideline, effective April 1, 1996. 21 Tex. Reg. 2361 (1996) and 28 Tex. Admin. Code Ann. §' 134.201 (hereinafter referred to as the "MFG").
  4. EMG/NVC stands for “electromyogram - nerve conduction velocity.” In general terms, this is a test for nerve conductivity as a means of assessing damage to nerves and areas peripheral to the nerves. Dorland’s Illustrated Medical Dictionary 544, 1102 (28th ed., W.B. Saunders Co. 1994).
  5. Carrier Exhibit (Ex.) 1 at 235.
  6. Carrier Ex. 1 at 310 - 314.
  7. Medicine Ground Rules (MGR) I. (A) (9)(b) and I. (C)(9) found in the Commission’s 1996 MFG.
  8. Dates: July 6, 7, 9, 14, 16, 19, 21, 23, 26, 28, 30, September 16, 17, 20, 22, 24, 29, 30, October 4, 6, 8, 11, 15, 18, 22, 25, and 29, 1999. See Carrier Ex. 1 at 320 - 328 (MRD Findings and Decision).
  9. Robert S. Howell, D.C. v. Tex. Workers’ Compensation Comm’n and Tex. Workers’ Compensation Ins. Fund, SOAH Dkt. No. 453-00-1219.M5, D&O issued Sept. 27, 2000; Tex. Workers’ Compensation Ins. Fund v. Tex. Workers’ Compensation Comm’n and David Bailey, D.C., SOAH Dkt. No. 453-00-2051.M4, D&O issued Dec.1, 2000; Tex. Fund v. Tex. Workers’ Compensation Comm’n and BPT Therapy Servs., Inc., SOAH Dkt. No. 453-01-1081.M4, D&O issued May 25, 2001; Tex. Workers’ Compensation Ins. Fund v. Tex. Workers’ Compensation Comm’n and Jesus E. Garcia, D.C., SOAH Dkt. No. 453-01-1492.M5, D&O issued July 23, 2001; and Tex. Workers’ Compensation Ins. Fund v. Tex. Workers’ Compensation Comm’n and Alpha Treatment Center, Inc., SOAH Dkt. No. 453-01-1268.M5, D&O issued Aug.8, 2001.
  10. Waco Ortho Rehab v. Tex. Workers’ Compensation Comm’n and TML Intergovernmental Risk Pool, SOAH Dkt. No. 453-02-2706.M4, D&O issued July 29, 2002.
  11. An acronym for different sections of information found in patient office visit reports: S- subjective findings/interval history; O - objective/exam findings; A - action/assessments; and P - plan (SOAP).
  12. This phrase is repeated in almost every documented office visit throughout the SOAP notes. See e.g., Carrier Ex. 1 at 118, 119, 120, 122.
  13. See Rehab 2112 v. Transcontinental Ins. Co., SOAH Dkt. No. 453-02-0996.M5, Order denying summary disposition issued May 24, 2002; Tex. Assoc. of School Bds. Risk Management Fund v. Tex. Workers’ Compensation Comm’n and Masterwork Systems, L.L.C., SOAH Dkt. No. 453-01-0467.M5, Order No. 6 Denying Motion to Dismiss issued Nov. 27, 2001.
  14. Specifically, the Carrier contends the first SOAH decision adverse to Dr. Bailey's position was Robert S. Howell, D.C. v. Tex. Workers’ Compensation Comm’n and Tex. Workers’ Compensation Ins. Fund, SOAH Dkt. No. 453-00-1219.M5, D&O issued on September 27, 2000.
  15. Tex. Workers' Compensation Ins. Fund v. Tex. Workers' Compensation Comm'n and David N. Bailey, D.C., SOAH Dkt No. 453-00-2051.M4 issued December 1, 2000. See Carrier Ex. 3 at 158, 199-200.
  16. Evaluation/Management Ground Rules (E/M-GR) VI.(B) in the 1996 MFG.
  17. July 6, 21 (lack of preauthorization), 23, 26, 28, 30, October 22 and 29.
  18. Carrier Ex. 1 at 26.
  19. 28 Tex. Admin. Code § 133.3(c).
  20. MGR I.(E)(3).
  21. The Carrier’s EOB for denying the August 10 payment was a lack of preauthorization, and it gave no EOB for the November 18 denial.
  22. SCD Back & Joint Clinic, LTD. v. American Home Assurance Co. & Tex. Workers’ Compensation Comm’n, SOAH Dkt. No. 453-02-0971.M4, D&O issued June 28, 2002, COL 5.
  23. See MGR at 60, “Tests and Measurements”: "Physical performance test or measurement (e.g., musculoskeletal, functional capacity), with written report, each 15 minutes. . ." (emphasis added)
  24. See note 15.
  25. Carrier Ex. 1 at 137. Note that the MRD apparently found this documentation was distinct enough from what was shown for any other dates and ordered reimbursement for the September 15, 1999 therapy.
  26. See note 8.
  27. A judge recently found Dr. Bailey's testimony regarding when he changed the form of 97110 therapy (“late 1999”) and his certainty that exclusive one-on-one therapy was provided to the claimant were sufficient to support Code 97110 charges in the absence of any contrary evidence. See SCD Back and Joint Clinic v. Tex. Workers' Compensation Comm'n and American Home Assurance Co., SOAH Dkt. No. 453-02-1753.M5, D&O issued October 18, 2002. That case is distinguishable from the present case in several ways. For example, treatment dates at issue were in September and December 2000 and January 2001 - dates occurring generally after Dr. Bailey began receiving adverse decisions on this issue, which lends greater support to his position that therapy was given under the revised practice. Also, the claimant appears to have been Dr. Bailey's patient as it is indicated she was seen at “his clinic” and a preauthorization request was made by Dr. Bailey. If so, he, arguably, has more personal knowledge about the form of the therapy provided.
  28. E/M-GR at 9 (VI.) and 19 “Established Patient”
  29. Carrier Ex. 1 at 118-119, 127-129, 131-132, 153, and 155.
  30. MGR I.(D)(1).
  31. See note 22.
  32. MFG I.(A)(2).
  33. National Institute for Occupational Safety and Health (NIOSH).
  34. Carrier Ex. 1 at 133.
  35. Carrier Ex. 1 at 66 - 67, 73 - 80 (Aug. 10) and at 157, 86 - 87, 97 - 101 (Nov. 18).
  36. Waco Ortho Rehab v. Tex. Workers' Compensation Comm'n and American Home Assurance Co., SOAH Dkt. No. 453-02-3653.M4, D&O issued Dec. 20, 2002.
  37. See Carrier Ex. 1 at 313-314. "Goals and expected outcomes of the treatment plan include normalized joint motion reduction of muscle spasm and tightness, reduced pain, increased mobility and physical capacity, and early return to normal work and activities of daily living. . ."
  38. Carrier Ex. 1 at 62 and 120-121.
End of Document