DECISION AND ORDER
Petitioner, Industrial Medical Associates (IMA), requested payment of $2,513.00 from Association Casualty Insurance Company (Carrier) for office visits and an interdisciplinary conference that occurred between May 4, 2000, and November 9, 2000. The Carrier refused all payment as not reasonable or medically necessary, relying on a peer review report. IMA requested medical dispute resolution by the Texas Workers’ Compensation Commission’s Medical Review Division (MRD). MRD found in favor of the Carrier based on inadequate documentation. IMA appealed to the State Office of Administrative Hearings (SOAH). This decision reverses the MRD in part, and finds IMA to be entitled to payment for services rendered in the amount of $1875.
I. Procedural History
The hearing in this case was held on May 22, 2002, at the State Office of Administrative Hearings, Austin, Texas. IMA, the provider, was represented by A. J. Morris, M.D., who appeared by telephone. Robert Josey appeared on behalf of the Carrier. The Texas Workers’ Compensation Commission (Commission) did not participate in the hearing. After oral testimony was concluded, the record was left open for the submission of an additional report by IMA and for written closing remarks by both parties. The record closed on June 3, 2002.
Documentary evidence in this case included the Commission’s 300 page Certified Record, marked as Exhibit 1. Exhibit 2 is a Pyschosocial Evaluation, by Jack R. Scherchell, Ph.D., LPC, LCDC, dated March 30, 1999, that IMA asked to submit after the close of the hearing. The ALJ granted the request. However, IMA also submitted two additional Procedure Reports from Dr. Boatwright that were not offered at the SOAH hearing and were not included in the Commission’s certified record (Exhibit 1). These documents will not be considered part of the record, and will not be considered by the ALJ. Dr. Morris offered the only testimony in the case by telephone. The Carrier did not call any witnesses nor introduce any additional documentary evidence. Both parties submitted closing arguments and replies in writing. As Petitioner, IMA has the burden of proof in this appeal.
Claimant sustained a compensable injury on__________, when she slipped on a grape and fell when she was tried to hang a dress on a rack at work. She fell, hitting her head, and landing on her right side. As a result of the fall, she sustained multiple injuries to her neck, right shoulder, and right hip. In 1994, Claimant underwent a cervical laminectomy and fusion of the C5-C6 anterior cervical vertebrae by an orthopedic surgeon in Fort Worth, Texas. In October 1995, she also had a rotator cuff repair. In 1996, a medical doctor determined she had reached MMI and gave her an impairment rating of 19% WP.
In January 1997, Dr. Morris became Claimant’s treating doctor. His initial diagnosis was a cervical sprain/strain, right shoulder pain, and right hip pain. He considered the cervical fusion a failure because it had not relieved her pain. Dr. Morris’s treatment consisted primarily of medications, including Darvocet, Ultram, Parafon DS, Prozac and Limbitrol.
Dr. Morris requested n MRI of the right hip in 1997. It was refused. Over a year later, he requested it again and it was granted. The MRI showed Achanges throughout the inferior aspect of the right S1 arthritis. In the interim, he referred her to Dr. Wanda Johnson for counseling. In 1999, Dr. Morris referred her to Jack R. Scherschell, Ph.D., for a psychological evaluation. Dr. Scherschell recommended pain management for twelve weeks with biofeedback, psychotherapy, and physical therapy. The program was requested and denied by the Carrier. Claimant continued receiving conservative treatment through medications prescribed and supervised by Dr. Morris, including Darvocet, Vanadom, Soma, and Limbitrol.
Services subject to this appeal
IMA requests payment for services rendered by Dr. Morris beginning May 4, 2000, through November 9, 2000, in the amount of $2,513. The maximum allowable reimbursement (MARS) for the services billed is $2,024.
Dr. Morris saw Claimant approximately once a week between May 4, 2000, and November 9, 2000, to manage chronic pain resulting from the compensable injuries she sustained in 1993. The services rendered were billed as follows:
CPT Code 99215 6 visits MARS: $ 618.00
CPT Code 9921415 visits MARS: 1,065.00
CPT Code 99213 6 visits MARS: 288.00
CPT Code 993611 conference MARS 53.00
The first three CPT Codes are for office visits for established patients. They vary depending on the type of history, examination, and complexity of medical decision making required during each visit. At least two of these three components (history, examination, decision-making) must be done and documented during each visit. CPT Code 99361 is described as a “conference coordinated by the doctor with an interdisciplinary team outside of an interdisciplinary program to assist in the development of treatment plans and coordinate activities of patient care....”
Carrier’s denial of payment based on peer review
A peer review, dated May 1, 2000 (before the dates of service involved in this case), was performed by Leslie M. Bishop, M.D. Dr. Bishop reviewed documents and concluded there was a lack of documentation of objective physical findings, neurological deficits, or objective data to justify any treatment as medically reasonable or necessary. The Carrier denied all of Dr. Morris’s claims based upon Dr. Bishop’s peer review.
MRD denied reimbursement finding the documentation did not support the medical necessity of the office visits. It also noted there was “no change in claimant’s condition” and “claimant did not return to work” during the relevant time period. MRD also found the medical records did not properly document the frequency and medical necessity of billing for the three different levels of service. It concluded that the Treatment Plan was not working because there had been no change in Claimant’s condition or the medications prescribed during the course of these visits.
III. Issues Raised in this Appeal
Is the Carrier’s peer review report valid?
Dr. Morris challenged the validity of the report on two grounds. First, he argued the peer review report was invalid because the peer reviewer was not of the “same or similar specialty as the treating doctor.” Dr. Morris is an M.D., engaged in family practice, with some special training in occupational medicine and pain management. The peer reviewer is also an M.D., a Diplomate of the American Board of Physical Medicine and Rehabilitation, and a Diplomate of the American Board of Electrodiagnostic Medicine.
Dr. Morris argued there is a difference between being on the front line, providing post-tertiary care to patients, and reviewing and drawing conclusions based solely on documents without actually examining patients. There was no evidence about whether Dr. Bishop provided patient care as well as peer review services.
The Carrier argued Dr. Morris does not have any specialty. In any event, both Dr. Bishop and Dr. Morris practice physical medicine and rehabilitation.
Second, Dr. Morris argued the peer review was invalid because Dr. Bishop did not include his or her professional license number on the peer review report. The Carrier did not respond to this contention. Finally, Dr. Morris referenced the rule requiring that peer reviews not be conducted by doctors who have been removed from the Commission’s approved doctor list.
ALJ’s Analysis: The ALJ concludes the peer review report is valid.
Dr. Bishop’s basic medical degree is the same as Dr. Morris’s. Her specialties are in the areas Dr. Morris claims special training. Dr. Bishop’s credentials and Dr. Morris’s practice are sufficiently alike to make Dr. Bishop a suitable peer reviewer.
The report does not include Dr. Bishop’s license number on the report. This is, technically, a violation of the TWCC rule. As Dr. Morris asserted, the peer review must not be a doctor who has been removed from the Commission’s approved doctor list. The rule, however, does not require that the peer reviewer affirmatively state he or she has not been removed from the Commission’s approved doctor list. The burden of proof in this appeal belongs to Dr. Morris and he has not offered any proof that Dr. Bishop has been removed from the list. Though technically not in compliance with the rule, neither of these defects were not shown to prejudice Dr. Morris or cast doubt onto the content of the peer review report.
Was the treatment provided by Dr. Morris reasonably required?
Dr. Morris maintained pain management is specifically provided for in the Texas Labor Code, § 408.021(a):
An employee who sustains a compensable injury is entitled to all health carereasonably required ... as and when needed. The employee is specifically entitled to health care that:
1)cures or relieves the effects naturally resulting from the compensable injury ... (Emphasis added
Claimant’s chronic pain is an “effect naturally resulting from the injury,” even though years have passed since the date of injury. His treatment relieved her pain. Therefore, it is reasonably required.
In fact, Dr. Morris argued, the post tertiary treatment he provided Claimant was the only treatment available to her because the Carrier has been so resistant to authorizing any other diagnostic or treatment approaches. Commission rules specifically state that some injured employees will require treatment after they have reached maximum medical improvement or after they have completed the tertiary phase of treatment.4 Treatment should be provided to control pain or other symptomology, maintain function and/or help the injured employee return to work.5 Claimant was as injured employee who continued to need pain relief even though she had reached maximum medical improvement. Now, Dr. Morris argued, the Carrier is trying to cut off what little pain relief the Claimant has received from a general practitioner.
Claimant’s pain has been present since the injury and resultant surgery. During a Psychosocial Evaluation on March 30, 1999, Claimant described constant pain in her shoulder, neck and right hand with a pain intensity rating of 6-10 on a 10 point scale.6
Claimant was evaluated again by a pain management specialist three years later, on June 13, 2002 (after the peer review). Dr. Boatwright also reported that Claimant experienced pain on a daily basis since the time of the injury, and transcribed her description of the pain:
The patient presently reports discomfort that emanates from the cervical spine with extension into the right shoulder area with further extension into the right upper arm and right forearm.... described as a continuous aching, gnawing sensation associated with intermittent burning sensation and shooting exacerbations with a pain intensity of 5-6/10 on the Visual Analog Scale on a good day with exacerbations to 10/10 ...on a bad day. ...increased discomfort in the right elbow area in addition that has been long term....persistent gnawing, aching sensation in the right hip area with radiation into the thigh and lower extremity extending into the foot ....present on a daily basis..
Dr. Boatwright’s report confirmed that Claimant experienced relief from pain as a result of Dr. Morris’s treatment:
..the patient reports that she has been under the care of A. J. Morris, M.D., for approximately the last 3 years and ....finds that her life is much improved presently under the direction of A. J. Morris, M.D. .... Nothing but her present medications have seemed to improve her present pain complaints.
Dr. Boatwright recommended epidural steroid injections to diminish the central inflammatory component. He also recommended that physical therapy be tried again, in a multi-modality fashion under Dr. Morris’s direction. Furthermore, he recommended Dr. Morris keep the patient on her current pharmacologic regimen, in the dosages he was using at that time.
Claimant did receive two courses of epidural steroidal injections on July 5, 2000, and August 3, 2000. She reported they relieved her pain for three to four days. Dr. Boatwright recommended physical therapy in a multi-modality fashion. Dr. Morris and Dr. Boatwright believed these to be promising treatments that could lead to rehabilitation of the Claimant and perhaps even a return to the work force and normal activities without pain. The Carrier refused to authorize the physical therapy. Dr. Morris was left with the same alternative of conservative treatment by prescription drugs.
ALJ’s analysis The ALJ concludes that Dr. Morris’s treatment was reasonable and medically necessary to relieve Claimant’s pain, the direct result of compensable injuries sustained when she fell at work in______. As a result of the fall, she underwent a cervical fusion that did not give her relief, and a rotator cuff repair in 1994 or 1995. The pain began immediately after the fall and continues to date. She gets some relief from the drugs prescribed and monitored by Dr. Morris.
Neither the Carrier nor the MRD recognized Claimant’s statutory right to have health care that “relieves the effects naturally resulting from” the compensable injury, including pain. In this case, Claimant is entitled to obtain whatever relief she can from her chronic pain. It is ironic that the Carrier repeatedly denied requests from the treating physician for tests and consultations and alternative treatments that might produce some objective data, as well as giving Claimant a chance to actually improve, and then its peer reviewer faults Dr. Morris for having no “objective” data in his records.
Did Dr. Morris’s documentation support the medical necessity of the level of servicebilled?
MRD based its denial on the lack of documentation showing medical necessity of the frequency of the office visits and the lack of documentation to support the levels coded for those visits.
As to the frequency of the visits, Dr. Morris testified that there is no standard regulating how often a physician sees a patient. As the treating doctor, he was responsible for the patient’s safety. In this case, he was prescribing narcotics to a patient who had been diagnosed with a major depressive disorder, a severe chronic pain syndrome, and had an insurance company that denied virtually all his requests for testing or treatment by specialists who might be able to help. Dr. Morris believed it was medically necessary to see the Claimant as frequently as he did to ensure himself she was being safely treated, i.e., taking her drugs as prescribed. As a licensed physician, Dr. Morris testified he is required by the Texas State Board of Medical Examiners to maintain a certain level of patient safety when prescribing narcotics.
A review of Dr. Morris’s treatment notes show they are similar but do vary somewhat visit by visit. The patient has been Dr. Morris’s patient for a long period of time, her symptoms remain pretty much the same, and the treatment options are limited. The last alternative for alleviating her pain is the conservative medical treatment in which Dr. Morris prescribes narcotic analgesics and muscle relaxants and monitors the patient at regular intervals to ensure her safety.
The documentation reveals that Dr. Morris regularly took a history of her current pain symptoms, the detail of which varied somewhat from visit to visit. She regularly had complaints of cervical and right hip pain. On other occasions, her complaints included radiating pain “shooting” down her right leg; occasionally into her right shoulder; and sometimes she reported pain in the lumbar region and knee pain. Her right leg was weak and sometimes “gave way” during use. Other complaints included insomnia because of the pain, and headaches. Occasionally, she had symptoms involving her other leg and her lumbar region.
The documents then indicated an examination, particularly of the areas where she reported pain. Upon examination, the doctor consistently reported tenderness on palpation and spasms. He later modified his diagnosis to include cervical radiculopthy and right sciatica.
The medical decision-making varied. It was more complex during some visits than others. Deciding to continue a medication regimen of narcotics always requires careful consideration and a weighing of alternatives, especially when dealing with a depressed patient. Since he had few treatment alternatives to choose from, he consistently used Darvocet, a narcotic analgesic, and Vanadom, a muscle relaxer. This was a reasonably conservative treatment plan which provided relief. Nonetheless, he believed use of such medications required close monitoring, especially when a patient uses them for a relatively long period of time and has a history of depression.
Other visits, he documented discussing Dr. Boatwright’s pain evaluation and treatment recommendations with the patient. The medical decision making during that visit was more complex than for many visits.
Down coding. As to whether the CPT Codes used were supported by the proper level of documentation, Dr. Morris asserted he met the required criteria. Dr. Morris argued alternatively that, in every instance, if his record-keeping somehow did not meet the CPT code he used, he certainly met the service level just below it. He argued the entire amount should not have been denied, but simply down coded and reimbursed at the lower dollar amount.
The Carrier cited Commission Rule 133.301(b) to support its argument it had no authority to down code the CPT codes submitted by the provider. Further, it argued it had no responsibility to help Dr. Morris code his services correctly.
ALJ’s Analysis The ALJ reviewed all of Dr. Morris’s patient notes in the record and concluded Dr. Morris’s documentation was generally sufficient, if minimalist. His notes are short and to the point. However, he had been treating the patient for several years and saw her on a fairly frequent basis. The ALJ also down coded a few dates and denied the claim for an interdisciplinary conference as not being adequately documented. (See below)
The Carrier’s argument that it could not down code the CPT codes submitted by the provider is based on only part of the rule cited. The Carrier could not down code the billing code “unless the insurance carrier contacts the sender of the bill and the sender agrees to the change.” Id. It does not seem likely that the provider would refuse the request to down code when faced with the denial of the charges submitted. On the other hand, the Carrier correctly maintained it had no responsibility to help Dr. Morris code his services correctly.
As indicated above, the ALJ disallows or modifies the following claims:
Date of Service & CPT Code
Action by ALJ
CPT Code 99361
Conference coordinated by doctor with interdisciplinary team outside of an interdisciplinary program to assist in the development of treatment plans and coordinate activities of patient care.
Disallowed. Documentation did not reveal a conference as contemplated by the rule. Failed to document what the durable medical equipment was or how it would help the patient.
CPT Code 99215
Requires comprehensive history, comprehensive examination, and/or medical decision-making of high complexity.
Down coded to CPT Code 99214, based on doctor’s notes which describe this visit as Amoderate complexity
CPT Code 99215
Down coded to CPT Code 99214, based on doctor’s notes which describe this visit as Amoderate complexity
CPT Code 99215
Down coded to CPT Code 99214, based on doctor’s notes which describe this visit as Amoderate complexity
Initial amount under doctor’s coding, using MARS
Amount to decrease by:
Amount of payment due doctor
Is the Carrier required to pay 50% of the amount charged within 45 days?
Dr. Morris argued the Carrier was required, by the Texas Labor Code §408.027(b) and TWCC Rule 133.304(d) to pay 50% of the amount charged by a provider in order to be able to contest the services rendered. The Carrier responded that the cited provisions only apply if the Carrier requests an on-site audit of the services rendered.
ALJ Analysis: The ALJ agrees with the Carrier’s reading of the provisions.
IV. Findings of Fact
- The Claimant in this case sustained a compensable injury to her neck and right side on____________, when she slipped on a grape and fell while trying to hang a dress on a rack at her place of employment.
- She fell, hitting her head, and landing on her right side, sustaining numerous injuries to her neck, right shoulder, and right hip.
- She has had pain on a daily basis ever since the injury.
- The Claimant’s injury is covered by workers’ compensation insurance written by Associated Casualty Insurance Company.
- In 1994-1995, Claimant underwent a C5-C6 anterior cervical fusion and a rotator cuff repair as a result of this injury but continued to have constant pain.
- In 1996, a medical doctor determined she had reached maximum medical improvement (MMI) and gave her an impairment rating of 19% WP.
- In January, 1997, A. J. Morris, M.D., of Industrial Medical Associates (IMA), became Claimant’s treating doctor. He is a primary care physician, with some specialized training in occupational medicine and pain management.
- Claimant has a cervical sprain/strain, right shoulder pain, and right hip pain.
- The anterior cervical fusion, described in Finding of Fact No. 5, was not successful and did not eliminate Claimant’s pain.
- Dr. Morris has had considerable difficulty getting the Carrier to agree to any outside testing, or consultation with specialists who might offer alternative treatment possibilities for the Claimant.
- At two different times, several years apart, two pain management specialists recommended a multi-disciplinary approach to treating Claimant’s pain.
- The Carrier refused requests for these services as well as requests for physical therapy.
- Dr. Morris concentrated on alleviating Claimant’s pain primarily by use of prescription medications given the restrictions imposed by the Carrier.
- The primary medications used during the dates of service involved in this appeal were Darvocet, a narcotic, and Vanadom, a muscle-relaxer.
- Neither the number of tablets per prescription nor the strength of the Darvocet and Vanadom prescriptions increased during the dates of service involved here.
- The maximum allowable reimbursement for services Dr. Morris could have recovered for office visits and an “interdisciplinary conference” between May 4, 2000, to November 9, 2000, is summarized in the following table.
- (1)CPT Code 99215 6 visits MARS = $ 618.00
- (2)CPT Code 99214 15 visits MARS = 1,065.00
- (3)CPT Code 99213 6 visits MARS = 288.00
- (4)CPT Code 99361 1 MARS = 53.00
Total potential reimbursement requested: $2,024.00
- 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 relieves the effects naturally resulting from the compensable injury.
- Claimant has had pain every day since the day of the compensable injury.
- The medications provided by Dr. Morris controlled and relieved the pain Claimant suffered as a result of her fall at work in 1993.
- If Claimant had not taken the medications prescribed by Dr. Morris, she would have experienced a marked increase in pain.
- Dr. Morris’s documentation for office visits indicated two of the three requirements for each level of service coded, i.e. included appropriate history, examination, and medical decision-making, except for the dates of 6/8/00, 8/2/00, and 8/31/00.
- The charge for service on 5/10/00 (CPT Code 99361), an interdisciplinary conference, was disallowed because documentation did not reveal who participated and/or what durable medical equipment or other treatments were discussed.
- The Carrier owes IMA $1875 in payment for reasonable and medically necessary services rendered to Claimant by Dr. Morris between May 4, 2000, and November 9, 2000.
- The Petitioner timely requested dispute resolution by the Texas Workers’ Compensation Commission Medical Review Division (MRD) and timely appealed the MRD’s decision.
VI. Conclusions of Law
- The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers' Compensation Act (Act), Tex. Labor Code Ann. § 413.031.
- 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 of the Act and Tex. Gov’t Code Ann. ch. 2003.
- The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001 and the Commission’s rules, 28 Tex. Admin. Code (TAC) § 133.305(g).
- Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann §§ 2001.051 and 2001.052.
- An employee who has sustained a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. The employee is specifically entitled to health care that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. Tex. Lab. Code Ann. §408.021(a).
- Health care includes all reasonable and necessary medical services. Tex. Lab. Code Ann. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. Tex. Lab. Code Ann. §401.011(31).
- Based on the Findings of Fact and Conclusions of Law above, Carrier should pay Petitioner the amount $1,875 for the services rendered between the dates of May 4, 2000, and November 9, 2000. Tex. Labor Code §§ 401.011(31) and 408.021(a).
IT IS THEREFORE, ORDERED that Association Casualty Insurance Company pay Industrial Medical Associates’ the amount of $1,875 for office visits provided Claimant between May 4, 2000, through November 9, 2000, plus accrued interest on that amount.
Issued on August 2, 2002.
Nancy N. Lynch
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- The maximum allowable reimbursement for the services rendered was $2,024.↑
- Report of Peer Review doctor, Leslie M. Bishop, M.D., p. 00121 of the record.↑
- 28 Tex. Admin. Code § 133.304(g)↑
- 28 Tex. Admin. Code § 133.304(h).↑
- 28 Tex. Admin. Code § 133.304(g).↑
- 428 Tex. Admin. Code§ 133.1001(6)↑
- 528 Tex. Admin. Code § 134.1001(6): Post Tertiary Treatment. The injured employees are entitled to the reasonable and necessary medical benefits for the duration of the injury. In some cases injured employees will require treatment after they have reached MMI or after they have completed the tertiary phase of treatment. Treatment should be provided to control pain or other symptomology, maintain function and/or help the injured employee remain at work. (Emphasis added)↑
- 6After completing the evaluation, Dr. Scherschell, Ph.D., LPC, LCDC, recommended a 12-week pain management program including biofeedback, psychotherapy, and physical therapy. The recommended treatment plan was denied. Exhibit 2.↑
- 7There was no indication in the record whether these were authorized by the Carrier.↑