DECISION AND ORDER
Marsha Miller, D.C. (Petitioner), sought review of a decision by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) declining to order payment to her for professional services that she had performed for ___(Claimant) between August 8 and November 11, 2000. Hartford Insurance Company (Carrier) denied payment on the basis that Petitioner had not documented the need for the services; the MRD upheld the Carrier’s denial of payment. Based on the evidence, the Administrative Law Judge (ALJ) concluded that Petitioner met her burden of proof in regard to eight of the disputed items, and that Carrier should be required to reimburse Petitioner $212
The hearing was held on January 3, 2002, with the record held open until February 15, 2002, to permit the parties to supplement the record and submit written closing argument.
On ____, Claimant injured her back and shoulders in the course of her employment on an assembly line. Petitioner, her treating doctor, testified at the hearing regarding disputed treatment and case management activities.
Discussion of some of the more complex issues appears below. The ALJ’s conclusions on points other than those discussed below, and on procedural matters, appear solely in the Findings and Conclusions.
A. Radiographic and MRI Reports (CPT 99358-52)
The Carrier asserted that Petitioner failed to document her reviews of a radiographic (X-ray) report and an MRI report. Petitioner asserted that she had sufficiently documented her review of both reports.
Dr. Kenneth J. Ratajczak, M.D., a radiologist, X-rayed Claimant’s spine four days after her injury. Petitioner did not prepare a report or summary of her review of Dr. Ratajcazk’s report, but stamped it as follows, “Report Reviewed 99358-52 File in Pts. File.” Petitioner testified that she used this stamp routinely when she reviewed an X-ray report in order to document that she had received and studied the report. Further, Petitioner discussed the X-ray results in treatment notes made on September 21, 2000. (TWCC Exh. 1, Pp. 133-137). The ALJ concludes Petitioner did document her review of this report sufficiently, by use of the stamp and her notes, to make her eligible for payment for that work. The procedure for which she billed, CPT 99358, is not a direct patient-service code but rather is used for a health care provider’s time to evaluate and manage the case before or after a session of direct patient care. Medical Fee Guideline (MFG) 28 Tex. Admin. Code (TAC) §134.201, P. 28.
The ALJ concludes that the $22 Petitioner billed for this report is reasonable. The MAR for this procedure is $84 for the first hour. Petitioner testified that $22 is her standard billing to review a brief radiographic report and the Carrier provided no evidence casting doubt on the reasonableness of that charge.
On September 8, 2000, Petitioner billed the Carrier $22 for her review of an MRI report from Dr. Dee L. Martinez, M.D. Petitioner used the same stamp in noting her review of this report, and references the “imaging reports” in her ongoing treatment notes. (TWCC Exh. 1, Pp. 133-137.). The ALJ concluded she also documented her review of the MRI report sufficiently to support reimbursement of $22.
B. Analysis of Computer Information (CPT Code 99090)
On August 8, 2000, Petitioner reviewed a radiographic biomechanical report prepared by Dr. Ratajczak. For this work she billed $120 under CPT code 99090; the maximum allowable reimbursement (MAR) is $108. MFG, P. 60. The service billed is described as “analysis of information data stored in computers (e.g., ECGs, blood pressures, hematologic data).” The MRD held that the Petitioner did not document the billing for her own analysis of the computerized data, but rather only for her reading of an analysis prepared by another. (TWCC Exh. 1, Pp. 2-3). The Carrier also contended that Petitioner failed to document the type of work outlined under CPT code 99090. Petitioner’s medical necessity argument consisted primarily of a one-page narrative which described generally the utility of digitized X-rays. (TWCC Exh. 1, P. 14).
There is no dispute that X-rays were an appropriate and compensable test to use at that stage of Claimant’s care. Spine Treatment Guideline (STG), 28 TAC § 134.1001 (f)(3). Given that Petitioner, as the treating physician, determined that digitized X-rays would be the most accurate presentation of the radiographic data, and that she did document her review of the report, the ALJ concludes that Petitioner is entitled to compensation for reviewing Dr. Ratajczak’s report. However, the ALJ also concludes there is no evidence to show that Petitioner herself performed any data analysis; Petitioner herself suggested no distinction between the skill and time needed to read a standard radiographic report and to read the digitized version of the same X-ray data. Therefore, the ALJ will be guided by Petitioner’s own practices in billing for reading reports and reduce to $22 the amount the Carrier should be required to reimburse Petitioner for reviewing Dr. Ratajczak’s biomechanical report.
C. Nerve Conduction Testing (CPT 95904.5)
Petitioner correctly states that nerve conduction testing of the type she performed on Claimant was an eligible diagnostic procedure under the MFG for the service date of (40 days after date of injury). STG, 28 TAC § 134.1001 (f)(2)(K). She further argued that she had demonstrated the medical necessity for administration of this test to Claimant. The Carrier argued that Petitioner had not documented the need for this test in this case, and further argued that her administration of this test was premature as EMG/nerve conduction studies are not diagnostic tools “recommended” for use within six weeks of the date of injury. STG, 28 TAC § 134.1001 (f)(3). The CPT test was administered on (40 days after date of injury), which was 40 days-or almost six weeks-after the injury on ________.
Notwithstanding the fact the CPT test is reimbursable, a doctor must demonstrate that the test was medically necessary to treat the claimant whose care is at issue before he or she is entitled to that reimbursement. In this regard, Petitioner failed to sustain her burden of proof. The only justification offered by Petitioner was a page-long description which outlined the benefits that would flow generally from the administration of this test. (TWCC Exh. 1, P. 32). What is missing from this case are notes or analysis from Petitioner that show her reasons-based on Claimant’s symptoms or on the results of other tests-why this particular Claimant would benefit from this particular test. Indeed, the ALJ was unable to discern any reference in the treatment notes to the CPT testing, either prospectively or as to how Petitioner may have used the results of that CPT test to confirm or alter her diagnosis, or to plan future treatments for Claimant. (TWCC Exh. 1, Pp. 126-132). At the hearing, Petitioner only cited to her notes and did not provide further explanation. To have met her burden to show medical necessity, Petitioner had to show the benefits of this test to diagnosis or alleviate the specific conditions presented by Claimant. STG, 28 TAC § 134.1001(e)(2)(A). She did not do so.
As Petitioner failed to carry her burden of proof in regard to the medical necessity of this test, it is unnecessary to evaluate whether she documented its timing as appropriate under the terms of the STG.
The Carrier is not required to reimburse Petitioner for administering a nerve conduction test.
D. Spinal Manipulations
Petitioner contended that the manipulations of Claimant’s spine that she performed on two dates in October should be compensated as treatment to three body areas. The Carrier argued that Petitioner’s documentation was insufficient to demonstrate the “progressive overall improvement in the patient’s condition” and lacked an assessment or treatment plan. The MRD held that the applicable rules defined the entire spine as one area or body part, concluding that the MFG rules do not provide for reimbursement for additional areas when a provider manipulates the spine. However, the MRD decision did not discuss the adequacy of the treatment notes overall. There is no factual dispute that Petitioner did manipulate Claimant’s total spine-the cervical, thoracic and lumbar zones-on the two treatment dates.
The crux of this case is the meaning of the CPT descriptor language in the MFG. Neither party offered authority other than the MFG language itself as guidance. MFG, P. 59. The descriptor for the service billed states as follows (the immediately preceding code has been included to provide context):
Manipulation (cervical, thoracic, lumbosacral, sacroiliac, hand, wrist) (separate procedure), performed by physician; one area
each additional area
For each visit, Petitioner had billed for an office visit for an established patient (CPT Code 99213), adding the modifier “-MP” for each visit; she also billed for manipulation of two additional areas (CPT 97261). The MFG requires the use of the MP modifier under the following circumstances:
-MPManipulation: This modifier shall be added to the E/M code when the first manipulation for the visit is performed. (MFG, P. 18). (Emphasis supplied).
Notwithstanding the MRD’s assertion that the spine is “one area” within the meaning of the MFG, that conclusion is not supported by the language of the CPT section of the MFG, which in plain language lists the spine as four separate segments, “cervical, thoracic, lumbosacral and sacroiliac,” following that list with a parenthetical “separate procedure.” As the specific is held to control over the general term in construing a statute or rule, it appears this CPT descriptor breaks the spine into separate areas for administering manipulation treatments.
Petitioner’s treatment notes, although employing some form language, do document separate sessions, and include the necessary elements. The ALJ concludes they adequately documented the treatments.
In sum, the ALJ concludes that the Carrier is obligated to reimburse Petitioner for manipulation treatments to three spinal areas for the October 24 and 26, 2000 dates of service.
III. Findings of Fact
- On _______, ___(Claimant) suffered a compensable back and shoulder injury at her job on an assembly line when she was stacking plates and packing them in bags.
- Immediately following the injury, Claimant experienced pain throughout her entire back, her neck and in both shoulders and forearms.
- On July 24, 2000, Dr. Marsha Miller, D.C. (Petitioner), diagnosed Claimant as having low back syndrome pain, cervical nerve root irritation, sprain of an unspecified site of her shoulder and upper arm and muscle spasm.
- Petitioner was Claimant’s treating physician on all dates of service at issue.
- Claimant’s back was X-rayed on July 24, 2000, by Dr. Kenneth J. Ratajczak, M.D. Dr. Ratajczak prepared both a standard radiographic report and a radiographic biomechanical report, derived from digitized X-ray images. Both were based on his July 24, 2000 radiographic examination of Claimant.
- Petitioner reviewed the standard radiographic report on August 8, 2000; she reviewed the biomechanical report on August 10, 2000. Petitioner used both radiograph reports described in Finding No. 5 to diagnose Claimant’s injury and to prepare a plan for her treatment.
- Petitioner’s charge of $22 to review the radiographic reports in Finding No. 6 was a reasonable and necessary charge.
- On September 8, 2000, Petitioner reviewed an MRI report prepared by Dr. Dee L. Martinez, M.D., in aid of her ongoing treatment of Claimant. Petitioner’s charge of $22 to review this report was reasonable and necessary.
- On (40 days after date of injury), Petitioner performed a current perception threshold (CPT) test on Claimant.
- The medical reason for administering a CPT test to Claimant on (40 days after date of injury), was not adequately documented in Petitioner’s treatment notes in the manner required by the Medical Fee Guideline (MFG) 28 Tex. Admin. Code (TAC) § 134.201.
- On August 31, 2000, Petitioner instructed Claimant on proper home use of a neuromuscular stimulation unit; home use by Claimant of a neuromuscular stimulation unit was self-care treatment of her compensable injury.
- On September 28, 2000, Petitioner conducted a telephone conference with the Carrier’s reviewing physician in order to obtain preauthorization for treatment for Claimant.
- On October 24 and 26, 2000, Petitioner manipulated all three zones of Claimant’s spine, thoracic, cervical and lumbar, to alleviate or relieve pain resulting from Claimant’s injury. No other body part was manipulated.
- On November 2, 2000, Petitioner examined Claimant, and researched medical literature to assist in her treatment of Claimant. No manipulations or other treatments were administered by Petitioner on November 2, 2000.
- The Carrier declined to reimburse Petitioner for any of the services described in Findings of Fact Nos. 5 through 14, based on its conclusion that the need for the services had not been adequately documented.
- Petitioner appealed the Carrier’s denial of benefits to the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC); on August 24, 2001, the MRD upheld the Carrier’s denial of reimbursement citing lack of documentation and also improper coding.
- On September 7, 2001, Petitioner filed a timely request for a hearing at the State Office of Administrative Hearings (SOAH) on the MRD decision.
- On November 5, 2001, the Commission issued a notice of hearing which included the date, time, and location of the hearing, and the applicable statutes under which the hearing would be conducted; the notice stated additional facts on the nature of the matters asserted would be issued within 10 days of the hearing. The Commission timely filed statements of matters asserted.
- SOAH Administrative Law Judge (ALJ) Cassandra Church convened a hearing on these issues on January 3, 2002. The record closed on February 15, 2002, to permit both parties to supplement the record and to submit written closing statements.
IV. Conclusions of Law
- The Texas Workers’ Compensation Commission (Commission) has jurisdiction to decide the issues presented pursuant to Tex. Labor Code § 413.031.
- The State Office of Administrative Hearings (SOAH) has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a Decision and Order, pursuant to Tex. Labor Code § 413.031 and Tex. Gov’t Code ch. 2003.
- The notice of hearing issued by the Commission conformed to the requirements of Tex. Gov’t Code § 2001.052 in that it 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 section of the statutes and rules involved; and a short plain statement of the matters asserted.
- Petitioner has the burden of proving by a preponderance of the evidence that she should prevail in this matter. Tex. Labor Code §413.031.
- Training Claimant in proper home use of neurostimulation equipment on August 31, 2000, was compensable patient instruction in self care and was medically necessary to treat Claimant’s compensable injury, within the meaning of Tex. Labor Code §413.015 (the Act), and the Medical Fee Guideline (MFG) 28 Tex. Admin. Code (TAC) §134.201.
- Petitioner’s review of radiograph reports on August 8 and 10, 2000, and of an MRI report on September 8, 2000, were reimbursable services necessary for her treatment of Claimant’s injury, within the terms of the Act and the MFG.
- A fee of $22 each for Petitioner’s review of two radiographic reports and an MRI report is a reasonable and necessary charge for this service.
- The current perception threshold (CPT) nerve conduction test administered to Claimant on (40 days after date of injury), was an undocumented diagnostic procedure, so is not reimbursable under the terms of the Act and the MFG.
- On both October 24 and 26, 2000, Petitioner performed reimbursable manipulations on three body parts-the thoracic, the cervical and the lumbar spine-within the meaning of “body part” in the MFG, Code Descriptors.
- Under Tex. Labor Code §413.015, the following services or treatments were medically necessary, and allowable under the MFG to treat Claimant’s compensable injury. The Carrier is obligated under the Act to reimburse Petitioner for the following treatments or services in the amounts shown:
Date of Service
August 8, 2000
Review of Biomechanical Report
August 10, 2000
Review of Radiographic Report
August 31, 2000
September 8, 2000
Review of MRI Report
September 28, 2000
Case management phone call
October 24, 2000
Manipulation, two additional areas
October 26, 2000
Manipulation, two additional areas
November 2, 2000
Case management office visit
It is hereby ordered that the Hartford Insurance Company reimburse Dr. Marsha Miller in the amount of $212.00 for the medical services she performed for Claimant ___on eight dates of service between August 8 and November 2, 2000.
Signed April 16, 2002.
STATE OFFICE OF ADMINISTRATIVE HEARINGS
CASSANDRA J. CHURCH
Administrative Law Judge
- At the hearing, Petitioner withdrew her protest in regard to two items of medical durable equipment, E0745 and E1399, for the August 31, 2000 date of service.↑
- Petitioner billed this code with the “-52” modifier. When applied in this case, the modifier describes a service reduced below the level listed in the coding narrative section of the MFG. MFG, P. 3. The “-52” modifier is applied as follows: Reduced Services: Under certain circumstances, a service or procedure is partially reduced or eliminated at the HCP’s [health care provider’s] election. Under these circumstances, the service provided can be identified by its procedure code with the addition of the modifier “-52,” DOP [documentation of procedure] is required.↑
- The preamble to the 1999 amendments to the STG, 24 Tex. Reg. 11455 (December 17, 1999), states as follows in recommending the inclusion of CPT and NCT testing as approved diagnostic tests for dates of service on or after February 1, 2000: . . . The Commission agrees that CPT should be included in the STG. Staff reviewed the literature supplied by commentators and determined the literature supported the efficacy of CPT testing for peripheral neuropathy that is not clinically detectible through sensory nerve conduction velocity (NCV) studies. The literature also indicates the usage of CPT, including sensory nerve conduction threshold (NCT), testing to be reliable for the evaluation of the functional integrity of sensory nerve fibers. Therefore, current perception threshold (CPT) testing has been included as a nerve conduction study (NCS) in the List of Diagnostic Interventions (f)(2)(K). The diagnostic interpretation of the potentials evoked in standard NCS includes the analysis of changes in sensory and motor nerve conduction velocities (NCV’s), response amplitudes and latencies.↑
- The ALJ would also note that one of the Carrier’s reviewing physicians, Dr. Jane Duncan, D.C., rejected outright the use of a CPT test in a clinical setting, asserting it has “no validity.” (TWCC Exh. 1, Pp. 120-121). As the acceptance by the Commission of this test as a valid diagnostic procedure does not appear to limit the setting in which it could be beneficially administered, the reviewer’s blanket opposition did little to assist the ALJ evaluate the appropriateness of Petitioner’s use of this test under the existing rules.↑
- As the Petitioner’s claim for reimbursement to this particular service is resolved against Petitioner on the issue of medical necessity, the question of the amount due for the test need not be decided. However, the ALJ found unclear Petitioner’s computation of the billed amount of $1,408 for one episode of testing, when the applicable, or most analogous code, CPT 95904, has an MAR of $64 per nerve.↑
- The ALJ notes there was no discussion in this case of whether the alleged prematurity of the procedure was encompassed in the denial code originally used by the Carrier, so this decision does not constitute a ruling on that issue. The MRD decision focused entirely on whether the code was recognized. (TWCC Exh. 1, P.3).↑
- In making its decision, the MRD referred to a passage in the STG which it asserted supported its position. However, that section, STG (e)(2)(A), does not define “body parts,” rather, it outlines generally the criteria that any treatment of a work related injury must meet, i.e., “adequately documented”and “cost effective.” This passage shed no light on the narrow issue presented in this case.↑
- The applicable provision of the Code Construction Act, Tex. Gov’t Code Ann., ch. 311, reads as follows: §§ 311.026. Special or Local Provision Prevails Over General (a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both. (b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail (eff. Sept. 1, 1985).↑
- The ruling on the adequacy of the records in this case is not intended as an indicator that Petitioner’s method of documentation would be found adequate in any other case. Respondent quite rightly notes a line of SOAH decisions which have held that rote, canned language which does not reflect the specifics of that particular patient’s treatment and condition over time will not support a claim for reimbursement. See Carrier’s Closing Argument, January 9, 2002.↑