DECISION AND ORDER
Daniel A. Boudreau, D. O. (Petitioner) appealed the Findings and Decision of the Texas Workers’ Compensation Commission’s (Commission’s) Medical Review Division (MRD) in Medical Dispute Resolution Docket No. M5-00-0618-01. The Findings and Decision upheld Liberty Mutual Fire Insurance’s (Carrier’s) denial of payment for Vertical Axial Decompression (VAX-D) treatments provided by Petitioner to ____ (Claimant). Carrier denied payment based on claims that: VAX-D required preauthorization and was not preauthorized, the treatments were unnecessary, there was no referral from the treating doctor, and the rate charged was not in accordance with the Commission’s Medical Fee Guidelines.
I. JURISDICTION, NOTICE, AND VENUE
There were no contested issues of jurisdiction, notice or venue. Therefore, those issues are addressed in the findings of fact and conclusions of law without further discussion here.
II. STATEMENT OF THE CASE
The hearing in this matter was held on January 28, 2002, at the Hearings Facility of the State Office of Administrative Hearings, Stephen F. Austin Building, Suite 1100, 1700 North Congress Avenue, Austin, Texas, with Administrative Law Judge (ALJ) Bill Zukauckas presiding. Carrier appeared by its attorney, Mahon B. Garry. Petitioner was present as was his attorney, Peter N. Rogers. The Commission did not participate. The record closed at the end of the hearing.
The parties agreed that the issues in the case were limited to whether the first twenty (20) VAX-D treatments provided by the Petitioner to the Claimant during May and June 1999 required preauthorization, whether said treatments were reasonable and necessary and, if the Petitioner was entitled to reimbursement, the appropriate reimbursement rate.
The parties agreed to the admission of the MRD certified record introduced as Exhibit 1. Petitioner offered additional exhibits referred to as:
- Medical Director Duties
- VAX-D Standard Operating Procedure
- VAX-D Justification
- Alaska Medicare VAX-D Payment Data
- Traction Graph
- VAX-D Therapy Curve
- Dr. Boudreau VAX-D Study
- Smart, Kitchner, Sherry VAX-D Study
- Brudenell & Ratliff VAX-D Study
- Naguszewski VAX-D Study
Exhibits 2-11, with the exception of Exhibit 5, were admitted without objection. An objection to Exhibit 5 based on relevance was overruled. The evidence adduced in the case consisted of the exhibits and the testimony of Petitioner.
A. Background Facts
Claimant suffered an injury that was compensable under the Texas Workers’ Compensation Act on_______, when she injured her lower back in a work-related incident. Carrier was the workers’ compensation insurer for Claimant’s employer at the time of the injury. After receiving chiropractic care for approximately seven months without relief from pain, the Claimant was referred by the Claimant’s treating doctor to Petitioner for back treatment. Thereafter, during May and June 1999, the Petitioner provided 20 VAX-D treatments to Claimant and billed Carrier $235.00 per treatment. Carrier denied payment stating that preauthorization was required but not obtained, that the treatment was unnecessary, that the treatment charge was not in accordance with Commission Fee Guidelines, and that Petitioner did not obtain a referral from the treating doctor.
B. Legal Standards
The Petitioner has the burden of proof in this proceeding. 28 Tex. Admin. Code (TAC) §148.21 (h) and (I). Pursuant to the TEX. LAB. CODE §408.021 (a) (the Act), an employee who has sustained a compensable injury is entitled to all health care reasonably required by the nature of the compensable injury, as and when needed. The employee is specifically entitled to all 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.
Pursuant to TEX. LAB. CODE §413.014 and the Commission rule at 28 TAC §134.600, for a Carrier to be liable for payment of certain medical services, it must be preauthorized. At the time of the treatment in question, the version of Commission Rule 134.600 that was in effect required preauthorization for physical therapy in excess of eight weeks, but did not require preauthorization of physical medicine. The issue of whether VAX-D is physical therapy and requires preauthorization after the first eight weeks, or is physical medicine and does not require preauthorization, has been previously addressed in Docket No. 453-99-0063.M2. The decision inthat case held that VAX-D is physical medicine that does not require preauthorization. In this hearing, Dr. Boudreau testified that VAX-D should be considered physical medicine rather than physical therapy because physical therapy is generally an appropriate treatment for soft tissue injuries during the first few months after an injury, while VAX-D is effective for disc injury after primary treatment options, such as physical therapy, have proven ineffective.
Reasonableness and Necessity
Medical notes in Exhibit 1, the Commission record, and Petitioner’s testimony indicated that the VAX-D treatments were successful in Claimant’s case and two studies published in peer review journals established that VAX-D is a valid treatment for back pain. The Carrier did not dispute the validity of VAX-D as a treatment for back pain but argued that the timing of Claimant’s recovery was not consistent with expected VAX-D clinical results (Exhibit 4). The preponderance of the evidence, however, established that Claimant had received six or more months of chiropractic treatment prior to being referred to Petitioner, that the chiropractic treatment was ineffective, and that full recovery was experienced during the VAX-D treatments.
Referral From The Treating Doctor
The Petitioner provided credible testimony that he provided the VAX-D treatments after referral from the treating doctor.
Appropriate Rate For Reimbursement
The Petitioner and Carrier presented several theories for determining the value of a VAX-D treatment. These included reference to similar treatments and their values as set forth in the Commission’s Medical Fee Guidelines, fees charged by other VAX-D clinics, a fee based on the time of the procedure, the expertise required, and the cost of the equipment ($125,000.00), and a reference in Docket No. 453-99-0063.M2 to a usual fee of $200.00 for a VAX-D session. Considering all the evidence presented, $200.00 per treatment is fair and reasonable. If future casesaddress this issue, however, more definitive evidence of value should be adduced.
C. Summary of Decision
VAX-D is a physical medicine procedure. As such, it does not require preauthorization. The parties stipulated that all that was at issue were 20 VAX-D treatments on referral from the treating doctor. Those treatments are valued at $200.00 per treatment and were reasonable and necessary treatment for the compensable injury.
IV. FINDINGS OF FACT
- On_______, Claimant, ____, suffered a back injury that was found compensable under the Texas Workers’ Compensation Act.
- At the time Claimant sustained the compensable injury, Liberty Mutual Fire Insurance Company (Carrier) was the workers’ compensation insurer for Claimant’s employer.
- In 1999, Claimant was referred to Daniel A. Boudreau, D.O. (Petitioner), by Claimant’s treating doctor, for treatment for ongoing back pain by Claimant.
- After examining Claimant, Petitioner determined that she was a suitable candidate for VAX-D treatments and provided 20 VAX-D sessions during May and June 1999.
- During June and July of 1999, and again in October of 1999, Carrier denied payment for the 20 VAX-D treatments based on lack of preauthorization, lack of medical necessity, lack of a referral from the treating doctor, and reductions based on the Commission’s Medical Fee Guidelines.
- The Commission’s Medical Fee Guidelines do not list a CPT Code for VAX-D.
- Petitioner billed the 20 VAX-D treatments under CPT Code 97799, a code used for unlisted physical medicine/rehabilitation service or procedure.
- The version of Commission Rule 134.600 (h)(10) in effect during the period of time in question required preauthorization for physical therapy or occupational therapy beyond eight weeks of treatment.
- Petitioner had received at least eight weeks of physical therapy prior to the referral to the Petitioner for VAX-D treatment.
- VAX-D is more similar to physical medicine procedures/services listed in the Commission’s Medical Fee Guidelines than to physical therapy treatments listed in those same guidelines.
- VAX-D treatments are recognized in the medical community, including peer review literature, as effective treatment for certain low back conditions.
- VAX-D treatments were appropriate for Claimant’s low back condition, which consisted of a herniated lumbar disc.
- Claimant’s low back condition improved during the 20 VAX-D treatments.
- VAX-D treatments of $200.00 per treatment were shown to be reasonable in this case.
- Petitioner provided one-on-one therapist-patient contact during each VAX-D treatment and was present on site to provide overall direction and control for treatments that averaged 45 minutes in duration.
- The VAX-D Table and Control Module equipment have a purchase price of about $125,000.00.
- By order dated May 31, 2001, the Texas Workers’Compensation Commission’s Medical Review Division (MRD) denied payment to Petitioner for 20 VAX-D treatments provided by Petitioner to Claimant.
- Petitioner timely requested a hearing appealing the MRD decision.
V. CONCLUSIONS OF LAW
- The Texas Workers’ Compensation Commission has jurisdiction to decide the issues presented pursuant to the Texas Workers’ Compensation Act. TEX. LAB. 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 TEX. LAB. CODE ANN. §413.031 (d) and TEX. GOV’T CODE ANN. ch. 2003.
- Petitioner timely requested a hearing in this matter pursuant to 28 TEX. ADMIN. CODE (TAC) §§102.7 and 148.3.
- Petitioner had the burden of proof in this matter pursuant to 28 TAC §148.21 (h) and (I).
- An employee who has sustained a compensable injury is entitled to all health care reasonably required by the nature of the compensable 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).
- Based on Findings of Fact 6-10, the Petitioner was not required to seek preauthorization for the 20 VAX-D treatments.
- Based on Findings of Fact 11-13, the 20 VAX-D treatments provided to Claimant were medically necessary.
- Based on Finding of Fact 3, Petitioner was authorized to bill Carrier in the capacity of a referral doctor.
- Based on Findings of Fact 14-16, $200.00 is a reasonable charge for a single VAX-D session.
IT IS ORDERED that the decision of MRD is reversed. Carrier is ordered to pay Petitioner for 20 VAX-D treatments at a rate of $200.00 per treatment, including interest with a credit of $471.00 to Carrier for payments already made.
Signed this 21st day of February, 2002.
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS