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At a Glance:
Title:
453-02-0533-m5
Date:
February 21, 2002

453-02-0533-m5

February 21, 2002

DECISION AND ORDER

This case is an appeal by Industrial Medical Associates (“Petitioner”) from the Findings and Decision of the Texas Workers’ Compensation Commission’s Medical Review Division (AMRD) in a medical fee dispute. The MRD denied Petitioner reimbursement for medical service provided to an injured claimant on the basis that such service had not been shown to be consistent with Commission rules and guidelines.

This decision affirms the MRD’s decision, finding that reimbursement for the disputed service should be denied.

JURISDICTION AND VENUE

The Texas Workers’ Compensation Commission (“the Commission”) has jurisdiction to consider appeals from decisions of its Medical Review Division pursuant to § 413.031 of the Act. The State Office of Administrative Hearings (ASOAH) has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to § 413.031(d) of the Act and TEX. GOV’T CODE ANN. ch. 2003.

STATEMENT OF THE CASE

The hearing in this docket was convened on January 8, 2002, at SOAH facilities in the Stephen F. Austin Building, 1700 North Congress Avenue, Austin, Texas. Administrative Law Judge (AALJ) Mike Rogan presided over the hearing. Respondent Highlands Casualty Company (“Highlands”) was represented by John Gillespie. Petitioner was represented by Dr. A.J. Morris, M.D., who appeared via telephone. After presentation of evidence and argument, the hearing was adjourned on January 8, 2002, but the record was left open until January 25, 2002, to allow the parties an opportunity to submit additional argument and documentation.

The record developed at the hearing revealed that the claimant sustained a compensable back injury on_______, and has experienced severe, chronic cervical and lumbar pain ever since. Dr. Morris has placed the claimant on opioid therapy to relieve this pain. The dispute in this case involves services relating to such therapy that were rendered between April 20, 2000, and April 2, 2001. Highlands, the claimant’s insurance carrier, denied Petitioner’s request for reimbursement of these services in the amount of $2,407.00, asserting that the services were unreasonable and unnecessary for the treatment of the claimant’s compensable injury. Petitioner then sought medical dispute resolution with respect to this issue from the Commission’s MRD.

The MRD issued a decision on September 14, 2001, finding that Petitioner was not entitled to reimbursement, because it had failed to establish that its performance was consistent with Commission rules, including the Spine Treatment Guideline (ASTG)[1] and the Medical Fee Guideline (“MFG”).[2] In particular, the MRD found the clinical progress notes produced by Dr. Morris to exhibit various deficiencies, including failure to indicate the patient’s specific pain levels or to show “objectively measured and demonstrated functional gains or ongoing progress,” as required by §134.1001(e)(2)(A)(vi) and (vii) of the STG.

THE PARTIES’ EVIDENCE AND ARGUMENTS

A. PETITIONER

According to both testimony and documentary evidence from Dr. Morris, the claimant suffers from “unrelenting” cervical, lumbar, and reticular pain, radiating into his hands and left leg. These symptoms make him unable to lift, pull, push, sit, stand, or stoop for extended periods of time. Due to chronic pain syndrome, the claimant also suffers from major depression and severe suicidal ideation. Dr. Morris stated that he has placed the claimant on opioid therapy to relieve his pain and allow him to perform simple daily activities. Patients receiving such medications require a physician’s monitoring for possible common side effects, dependency, and potential abuse.

The claimant is unable to work. On August 5, 1996, he was declared at maximum medical improvement (“MMI”), with an impairment rating of 34 percent. Dr. Morris concluded that nothing can be done to improve the patient’s functional capabilities and that administering narcotic analgesics is the only feasible method of relieving the patient’s pain, since other methods of addressing the problem (such as psychological treatment) have been consistently denied.

In closing argument, Petitioner contended that Respondents and the MRD have inappropriately shifted the focus of this dispute from the fundamental medical necessity of the treatment at issue to the sufficiency of Petitioner’s documentation in the case. As to those documentation requirements, Petitioner noted that the relevant section of the STGBi.e., 28 TAC § 134.1001(e)(3)(B)- provides merely that a health care provider “may”include specific enumerated elements within such documentation. Petitioner also argued that no regulatory requirement exists for objective measurements of a patient’s pain, as cited by the MRD’s decision. Nonetheless, Petitioner asserted, the medical reports in the record register the claimant’s pain in a “medically significant way,” repeatedly describing it as chronic and constant.

B. RESPONDENT

The certified record compiled by the Commission-i.e., the MRD's Findings and Decision, with accompanying documents, including materials offered by the Petitioner-was admitted into evidence as Exhibit 1. This compilation contains reports by Dr. Morris on 24 separate office visits by the claimant during the relevant time period.

Highlands focused its argument on the content of those medical reports, concluding that they provide almost no information to satisfy the requirements in Commission regulations that reimbursable treatment be coherently documented. The reports are all very similar in content and follow the form of the report for April 20, 2000, which is set out in its entirety below:

INTERIM HISTORY [Claimant] was seen by me in follow up on April 20, 2000. The patient had subjective complaints today of continued cervical and lumbar pain. He also complains of depression secondary to chronic pain.

Objective findings: Physical examination of the patient revealed cervical tenderness to palpation. There were spasms also noted on examination. Lumbar examination revealed tenderness and spasms to palpation. Diagnosis: cervical and lumbar radiculopathy.

TREATMENT AND PLAN The patient was given a prescription for Lortab 10 mg #45. The patient cannot return to work and will be seen again in one week. I will otherwise continue the patient on a plan of conservative treatment at this time. This visit was of moderate complexity.

Highlands noted that none of the 24 reports uses the word “severe” or any similar term in describing the patient’s pain. Nor do any of the reports explicitly discuss the patient’s progress or, alternatively, the reasons for treatment to continue in the absence of progress toward recovery. By Highlands’ analysis, documentation of any treatment’s medical necessity must address the issue of the patient’s progress, since §134.1001(e)(2) of the STG mandates that any treatment show “objectively measured and demonstrated functional gains” and be “consistent in demonstrating ongoing progress in the recovery process by appropriate re-evaluation of the treatment.” Additionally, Highlands cited § 134.1001(e)((3)(C) of the STG as enumerating the specific types of objective documentation that are appropriate for demonstrating such progress.

Highlands submitted a report dated December 14, 1998, from Dr. B.L. Reynolds, M.D., who reviewed claimant’s medical records and found no pathology relevant to the reported injury of____

_______ Highlands also submitted a report dated January 23, 1999, from Dr. Dorothy Ann Leong, M.D., who examined the claimant in July of 1998 and reviewed his medical records through December of 1998. Dr. Leong observed in the claimant a significant amount of symptom magnification and concluded that, to a large degree, claimant’s subjective complaints of pain did not correlate with any physiological or anatomical basis.

ANALYSIS

The ALJ finds that the documentation provided by Petitioner in this case is too perfunctory to allow any reasonable assessment of the necessity for the care in question. The information conveyed in the 24 almost identical reports from Dr. Morris is extremely general and conclusory, expressed with almost telegraphic terseness. While Dr. Morris is correct in noting that §134.1001(e)(3)(B) of the STG does not mandate specific elements of documentation, the reports by Dr. Morris do not appear to satisfy any of the potentially relevant categories of information listed in that section-nor can the ALJ perceive of any other meaningful categories of information that they would satisfy.

The ALJ disagrees with the position of Highlands and the MRD that § 134.1001(e)(2)(A)(vi) of the STG applies to this case, thus requiring that the treatment in issue be shown to provide “objectively measured and demonstrated functional gains.”[3] Intuitively, such a requirement appears anomalous, if not perverse, for a patient who has reached MMI and is primarily seeking relief from chronic pain that cannot be permanently eliminated. More concretely, however, § 134.1001(g)(6) appears to provide a clear exception to the requirements of § 134.1001(e)(2)(A)(vi), noting that some claimants “will require treatment after they have reached MMI” and that these claimants should be provided treatment “to control pain or other symptomology, maintain function, and/or to help the injured employee remain at work.”

On the other hand, the ALJ recognizes some logic in the conclusion of Highlands and the MRD that Petitioner must satisfy § 134.1001(e)(2)(A)(vii). This section demands that treatment be “consistent in demonstrating ongoing progress in the recovery process by appropriate re-evaluation of the treatment.” Of course, if interpreted narrowly, this provision would also appear illogical and unfair for patients beyond MMI; such patients are not likely to exhibit consistent, ongoing progress. However, to the extent that the guideline calls for periodic reassessment of treatment, it seems valid for all cases-particularly, in the ALJ’s view, one that appears to involve the almost routine -dispensing of narcotic medications. Indeed, evidence submitted by Dr. Morris declares that patients such as the claimant in this case require a physician’s monitoring for possible side effects or abuse of medications. What this record does not show, though, during a year of almost weekly office visits by the claimant, is any specific or systematic performance of that monitoring process or any reflective re-evaluation of an apparently long-standing treatment process.

The ALJ believes that Highlands is mistaken in contending that §134.1001(e)(3)(C)(iii) of the STG mandates objective showings of a patient’s pain levels in cases such as this. Section 134.1001(e)(3)(C) pertains only to documentation for “physical medicine treatment.” Although not defined in the STG glossary, “physical medicine”is defined in Merriam-Webster’s Medical Dictionary (1995) as “a branch of medicine concerned with the diagnosis and treatment of disease and disability by physical means (as radiation, heat, and electricity).”

Dr. Morris stated that “a two-foot stack” of other medical records-covering the patient’s symptomology and other aspects of treatment-had already been generated by this case before any of the 24 medical reports in evidence were even prepared. He argued, then, that requiring each such subsequent report to recapitulate all that prior material for documentation purposes would be clearly unreasonable. The ALJ agrees that a verified history of earlier documentation and interaction with the insurer may change the level of comprehensiveness required for more contemporary documentation, but in this case, little or no evidence relating to this point has been offered.

The STG states, “Treatment must be based on the injured worker’s need and the doctor’s professional judgment”; it notes also that the guideline does not establish “fixed treatment protocols.”[4] While these provisions may be taken into account to temper the degree of documentation required in cases of this type, little basis has been shown for doing so in this instance. Accordingly, the ALJ must conclude that Petitioner has failed to document that the treatment in dispute is medically reasonable and necessary within the meaning of §§408.021 and 401.011(19) of the Texas Workers’ Compensation Act (“the Act”, TEX. LABOR CODE ANN. ch. 401 et seq.

CONCLUSION

The ALJ finds that, under the record provided in this case, reimbursement sought by Petitioner for medical services provided between April 20, 2000, and April 2, 2001, in the amount of $2,407.00, should be denied for lack of documentation that such treatment was medically necessary. The ALJ thus generally concurs with the MRD decision of September 14, 2001, in this matter.

FINDINGS OF FACT

  1. On____, the Petitioner’s claimant suffered an injury to his back that was a compensable injury under the Texas Workers’ Compensation Act (“the Act”), TEX. LABOR CODE ANN. §401.001et seq. Subsequent to the injury, claimant has complained of experiencing constant, chronic cervical and lumbar pain, radiating into the hands and left leg.
  2. Treatment provided by Petitioner, Industrial Medical Associates (through its associate Dr. A.J. Morris, claimant’s attending physician), included 24 office examinations of the claimant, administration of opioid pain medications, and ancillary services between April 20, 2000, and April 2, 2001.
  3. The claimant is unable to work. On August 5, 1996, he was declared at maximum medical improvement (“MMI”), with an impairment rating of 34 percent.
  4. Primary documentation provided by Petitioner for the services noted in Finding of Fact No. 2 consists of the medical reports by Dr. Morris on the claimant’s 24 office visits. All of the reports are very similar. They note that claimant had subjective complaints of chronic cervical and lumbar pain, that examination indicated sensitivity of the claimant to palpation, and that the patient was given a prescription for narcotic pain medication.
  5. Among the ancillary services noted in Finding of Fact No. 2 are the provision of reports (CPT Code 99080). These reports were either not included in the documentation for this administrative record or were related to the claimant’s work status, which has not changed since his compensable injury.
  6. Among the ancillary services noted in Finding of Fact No. 2 is the provision of an unlisted therapeutic procedure (CPT Code 97139). The medical report for this procedure’s date of service does not identify the procedure.
  7. Petitioner sought reimbursement of $2,407.00 from Respondent Highlands Casualty Co. (the insurance carrier for the claimant) for the services noted in Finding of Fact No. 2.
  8. Respondent Highlands Casualty Co. denied the request for reimbursement on the grounds that the treatment in question was medically unnecessary.
  9. By submission dated April 5, 2001, Petitioner made a timely request to the Medical Review Division (“MRD”) of the Texas Workers’ Compensation Commission (“Commission”) for medical dispute resolution with respect to the requested reimbursement.
  10. The MRD declined to order reimbursement in a decision dated September 14, 2001, in dispute-resolution docket No. M5-01-1550-01. The MRD determined that medical examinations performed by Petitioner (CPT Codes 99213, 99214, and 99215) were ineligible for reimbursement because Petitioner failed to comply with the Commission’s Medical Fee Guideline (“MFG”), 28 TEXAS ADMINISTRATIVE CODE (“TAC”) §134.201, Ground Rules (IV)(C)(1)and (2) and (VI)(B); and the Commission’s Spine Treatment Guideline (“STG”), 28 TAC § 134.1001(e)(2)(A)(i), (v), (vi), and (vii); (e)(3)(B); and (g)(6). The MRD determined that reports provided by Petitioner (CPT Code 99080) were ineligible for reimbursement because Petitioner failed to comply with 28 TAC § 133.106(f)(1). The MRD determined that an unlisted therapeutic procedure performed by Petitioner was ineligible for reimbursement because Petitioner failed to comply with MFG General Instructions (III)(A) and STG § 134.1001(e)(3)(C).
  11. Petitioner requested in timely manner a hearing with the State Office of Administrative Hearings, seeking review and reversal of the MRD decision regarding preauthorization.
  12. The Commission mailed notice of the hearing’s setting to the parties at their addresses on November 6, 2001.
  13. A hearing in this matter was convened on January 8, 2002, at the Stephen F. Austin Building, 1700 North Congress Avenue, Austin, Texas, before Mike Rogan, an Administrative Law Judge with the State Office of Administrative Hearings. All parties were represented.

CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issues presented pursuant to the § 413.031 of the Act.
  2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to §413.031(d) of the Act and TEX. GOV’T CODE ANN. ch. 2003.
  3. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV'T CODE ANN. ch. 2001, and the Commission's rules, 28 TAC § 133.305(g) and §§ 148.001-148.028.
  4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §2001.051 and 2001.052.
  5. Petitioner, the party seeking relief, bore the burden of proof in this case, pursuant to 28 TAC § 148.21(h).
  6. Based upon the foregoing Findings of Fact, the Petitioner’s medical examinations of claimant (CPT Codes 99213, 99214, and 99215), as noted in Finding of Fact No. 2, are ineligible for reimbursement because Petitioner failed to comply with MFG Ground Rules (IV)(C)(1) and (2) and (VI)(B), as well as STG § 134.1001(e)(2)(A)(i), (v), and (vii) and (e)(3)(B).
  7. Based upon the foregoing Findings of Fact, the Petitioner’s provision of reports in claimant’s case (CPT Code 99080), as noted in Findings of Fact Nos. 2 and 5, is ineligible for reimbursement because Petitioner failed to comply with 28 TAC § 133.106(f)(1).
  8. Based upon the foregoing Findings of Fact, the Petitioner’s provision to claimant of an unlisted therapeutic procedure (CPT Code 97139), as noted in Findings of Fact Nos. 2 and 6, is ineligible for reimbursement because Petitioner failed to comply with MFG General Instructions (III)(A) and STG § 134.1001(e)(3)(C).
  9. Based upon the foregoing Findings of Fact and Conclusions of Law, the conclusion of the MRD that Petitioner is not entitled to requested reimbursement of $2,407.00 for medical services to the claimant, as stated in the MRD’s decision issued in this matter on September 14, 2001, is affirmed.

ORDER

IT IS THEREFORE, ORDERED that the Petitioner’s request for reimbursement from Highlands Casualty Company of $2,407.00 for medical services rendered to Petitioner’s claimant, as well as Petitioner’s appeal from the decision of the Medical Review Division of the Texas Workers’ Compensation Commission in this matter, issued on September 14, 2001, are denied.

Signed this 21st day of February, 2002.

MIKE ROGAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. 28 TEXAS ADMINISTRATIVE CODE (“TAC”)§ 134.1001.
  2. 28 TAC§ 134.201.
  3. It should be noted that this apparently is the commonly extrapolated meaning of this somewhat garbled portion of the STG; Literally§ 134.1001(e)(2)(A)(vi) reads, “. . treatment of a work related injury must be: (vi) objectively measured and demonstrated functional gains”-which is nonsensical phraseology.
  4. 28 TAC§ 134.1001(e)(1).
End of Document
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