DECISION AND ORDER

Chuck Tillotson, D.C. (Petitioner) requested a hearing to challenge a decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission). The MRD decision denied preauthorization for physical therapy and other treatment for J.T. (the Claimant) because the medical documentation submitted did not support the medical necessity of the proposed treatment or substantiate deviation from the rules. At the hearing, Petitioner asserted the treatment was reasonable and necessary, and the Claimant was entitled to the care. Although Fremont Industrial Indemnity Company (the Carrier) still contended that the medical records did not satisfy the documentation requirements to show the treatment was medically necessary, the Carrier also argued that preauthorization should be denied because Petitioner had already provided the treatments prior to receiving preauthorization. The Administrative Law Judge (ALJ) finds the request for preauthorization should be denied because the requested treatment has been provided.

I.

PROCEDURAL HISTORY, JURISDICTION, AND NOTICE

On March 5, 2002, ALJ Georgie B. Cunningham convened the hearing at the William P. Clements Building, 300 West 15^th Street, Austin, Texas. Petitioner appeared pro se, and Attorney Charles C. Finch represented the Carrier. The Commission was not represented. Notice and jurisdiction were not contested and will be addressed in the findings of fact and conclusions of law. Following the presentation of evidence, the hearing was closed on the same day.

II.

DISCUSSION

The Claimant was injured in a job-related accident on ___________. Between the date of the Claimant’s injury and the date of her first visit with Petitioner, the Claimant received care from numerous doctors, had extensive diagnostic tests and five surgical procedures, took various medication, and was enrolled in physical therapy, biofeedback, and a pain management program. On November 6, 2000, Petitioner began treating the Claimant. Between November 2000, and August 2001, the Carrier preauthorized and Petitioner provided over 100 treatments for the Claimant.

On August 10 and again on August 27, 2001, the Carrier denied Petitioner’s request for preauthorization of physical therapy three times a week for four weeks, active myofascial release, mobilization, therapeutic exercise, and neuromuscular re-education, because the treatment exceeded the clinically acceptable course of treatment specified in the Upper Extremities Treatment Guideline (the Guideline) and because the Claimant had reached a plateau.^[1] After the second denial, Petitioner submitted a request to the Commission for dispute resolution.

MRD staff evaluated the documentation submitted using the Guideline and determined that the treating doctor failed to address the following points: (1) the mechanics of the initial injury or of five subsequent surgeries; (2) a treatment plan to achieve desired results; (3) an explanation of the need for physical therapy; and (4) a justification for care at the tertiary phase that exceeded the Guideline recommendations. MRD staff concluded that the medical documentation submitted did not support the medical necessity of the proposed treatment or substantiate the need for deviation from the Guideline.

The evidence presented at the hearing included a certified copy of the MRD record, additional documentary evidence, and the testimony of Petitioner, the Claimant, and Dr. Ronald Buczek. Petitioner had the burden of proving the requested treatment should be preauthorized; however, it is not necessary to reach that determination. After the hearing began, it became apparent that Petitioner had already provided the requested treatment. As specified in Tex. Lab. Code Ann. § 413.014, the Commission shall adopt rules to specify which treatments and services require preauthorization by a carrier. This section further provides that a carrier is not liable for treatments and services unless preauthorization is sought and obtained from a carrier or ordered by the Commission with the exception of treatment provided in a medical emergency. By rule, the Commission requires preauthorization for physical therapy or occupational therapy beyond eight weeks of treatment.^[2]

It is clear that the Legislature intended the preauthorization process to occur prior to the provision of the service. The Commission has made its position on preauthorization abundantly clear in a rule adopted effective January 1, 2002. Preauthorization is defined as the prospective approval obtained from the carrier by the provider or claimant prior to providing the health care treatment or services.^[3] Although the rule was not in effect at the time the treatment at issue was provided by Petitioner, the rule leaves no doubt as to the Commission’s interpretation of the statutory provision. Neither the Act nor the rules provide for retroactive preauthorization. Accordingly, Petitioner’s request for preauthorization of treatment which has already been provided is hereby denied.

III.

FINDINGS OF FACT

1. On ________ (the Claimant) sustained an on-the-job injury to her arm when her sleeve became tangled in a machine.
2. At the time of the Claimant’s injury, the Fremont Industrial Indemnity Company (the Carrier) provided workers’ compensation insurance to the Claimant’s employer.
3. The Claimant sought emergency care from a hospital where it was determined she did not have a fracture or broken skin.
4. On November 6, 2000, Chuck Tillotson, D.C. (Petitioner) began treating the Claimant.
5. Between November 2000, and August 2001, the Carrier preauthorized and Petitioner provided over 100 treatments for the Claimant.
6. On August 10 and 27, 2001, the Carrier denied Petitioner’s request for preauthorization of physical therapy three times a week for four weeks, active myofascial release, mobilization, therapeutic exercise, and neuromuscular re-education, because the treatment exceeded the clinically acceptable course of treatment specified in the Upper Extremities Treatment Guideline (the Guideline) and because the Claimant had reached a plateau.
7. On August 30, 2001, Petitioner requested dispute resolution services from the Texas Workers’ Compensation Commission’s Medical Review Division (MRD).
8. On October 19, 2001, MRD issued its decision denying preauthorization because the medical documentation submitted did not support the medical necessity of the proposed treatment or substantiate deviation from the Guideline.
9. On November 14, 2001, Petitioner filed a request for a hearing on the preauthorization denial.
10. The Commission sent notice of the hearing to the parties on November 28, 2001. The hearing notice informed the parties of the matter to be determined, the right to appear and be represented by counsel, the time and place of the hearing, and the statutes and rules involved.
11. Prior to the hearing, Petitioner provided the Claimant the requested treatment specified in Finding of Fact No. 7.
12. The treatment was not emergency treatment.

IV.

CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented, pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 413.031.
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 Tex. Lab. Code Ann. §§ 402.073 and 413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
3. Petitioner timely filed notice of appeal, as specified in 28 Tex. Admin. Code (TAC) § 148.3.
4. Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov’t Code Ann. ch. 2001 and 28 TAC § 148.4(b).
5. Petitioner had the burden of proving the case by a preponderance of the evidence, pursuant to 28 TAC § 148.21(h) and (i).
6. A treating physician is responsible for maintaining efficient utilization of health care for a claimant, pursuant to Tex. Lab. Code Ann. § 408.025(c).
7. As provided by Tex. Lab. Code Ann. § 413.014 and 28 TAC § 134.600(h)(10), preauthorization is required for physical therapy or occupational therapy beyond eight weeks of treatment.
8. The Carrier is not liable for the treatment and services, which were neither authorized by the Carrier nor ordered by the Commission, as specified in Tex. Lab. Code Ann. § 413.014(b).

ORDER

It is hereby ordered that preauthorization of the treatment and services requested by Chuck Tillotson, D.C. are denied because the treatment and services have already been provided the Claimant.

This decision is final on the date when the party is notified of the decision according to 28 TAC § 148.22(h). If the decision is mailed, a party or the party’s representative is presumed to have been notified on the date on which the notice was sent.

Signed this 21^st day of March, 2002.

GEORGIE B. CUNNINGHAM
Administrative Law Judge
State Office of Administrative Hearing

1. The Guideline is found at 28 Tex. Admin. Code (TAC) § 134.1002.↑
2. 28 TAC § 134.600(a)(10).↑
3. 28 TAC § 134.600(a)(5).↑