DECISION AND ORDER
Petitioner, Centre Insurance Company (Carrier), sought review of a decision by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) requiring the Carrier to pay for treatments and services performed by Jesus Garcia, D.C. (Provider), on behalf of ____ (Claimant) between December 26, 2000, and April 9, 2001. There are four categories of disputed services: work hardening, a functional capacity exam, office visits, and time spent reviewing a physician’s report. The Carrier disputed the MRD’s conclusion that visits or treatments during that period, particularly work hardening, were medically necessary. Based on the evidence, the administrative law judge (ALJ) holds that the Carrier met its burden of proof to show that the office visits were not medically necessary to treat Claimant’s work-related injury, but failed to meet its burden of proof as to all other items. The Carrier must reimburse Dr. Garcia a total of $10,899.60.
The ALJ convened a hearing on these issues on August 7, 2002, and the record closed that day. Steve Tipton appeared on behalf of the Carrier; Larry J. Laurent appeared for the Provider.
II. Factual Discussion
At the time of his injury on______, Claimant worked as a laborer at a steel fabrication plant. He injured his lower back while lifting steel or steel pipe to load into a machine. (TWCC Exh. 1, P. 390). His work was classified as being a “heavy” physical demand level (PDL) job, which means that in order to perform his job duties, Claimant would be required to occasionally lift 51-100 pounds, and to frequently lift 26-50 pounds during the work day, as well as to stand, reach, bend over, and twist his body. (TWCC Exh. 1, P. 398). Dr. Garcia began treating Claimant immediately after the injury. On September 15, 1999, Dr. Garcia diagnosed Claimant as having a lumbar vertebral subluxation, lumbar sprain/strain, lumbar radiculitis and muscle spasms. Claimant was treated conservatively with physical medicine modalities, specifically, therapeutic exercises and physical therapy, joint mobilization and manipulation, myofascial release, and also interferential current, ultrasound, and neuromuscular re-education. However, Claimant continued to experience lower back pain, so he received lumbar epidural steroid injections in February and March 2000 and bilateral lumbar facet injections in May 2000. (TWCC Exh. 1, Pp. 475-481). Neither course of injections relieved Claimant’s back pain. Beginning on February 21, 2000, Claimant participated in a five-week work conditioning program. . The work hardening at issue was performed the following year. Dr. Garcia was Claimant’s treating doctor throughout 2000 and early 2001, inclusive of all disputed dates of service.
The Carrier disputed as not medically necessary all fee awards made by the MRD, including payment for seven established-patient visits (CPT Code 99213), for 26 days of work hardening (CPT Codes 97545-WH and 967546),  and for administration of an FCE test (CPT Code 97750-FC). The Carrier denied reimbursement for time Dr. Garcia spent reviewing Dr. Gregory Baker’s report of medication evaluation (RME) (CPT Code 99455-RP) on the basis it did not comply with treatment guidelines. The parties were in agreement that, under the Commission rules in effect in January through March 2001, a treating doctor could administer a six-week course of work hardening without pre-authorization by the Carrier. However, any additional weeks required pre-authorization, which in this case the Carrier gave. Notwithstanding that pre-authorization decision, the Carrier argued that any treatment is subject to audit and review for medical necessity. 28 TAC § 133.301.
Prior to the disputed dates of service, Carrier-selected doctors had recommended against continued treatment and proposed a MMI date some six months earlier than the initiation of the disputed treatment. However, the Carrier did not pursue the matter to final resolution. On August 9, 2000, Gregory Baker, D.C., had examined Claimant, performing an independent medical evaluation (IME) on behalf of the Carrier. Dr. Baker concluded that Claimant had been returned to “pre-injury” status and termed Claimant’s prognosis to be “good.” Dr. Baker also asserted Claimant was at MMI by August 9, 2000, and suggested Claimant be assigned a five per cent whole body impairment rating. Although recommending against further chiropractic care, he also complimented Dr. Garcia on the course of treatment he had selected as well as his documenting of that treatment. Dr. Baker prepared a Report of Medical Evaluation (RME) on August 9, 2000. If unchallenged by the treating doctor, the MMI assigned in an RME is final. (TWCC Exh. 1, P. 470; Pet. Exh. 2). Notwithstanding that RME, the Carrier apparently decided against seeking MMI and impairment determinations at that time as there is nothing in the record to suggest that the RME was sent to Dr. Garcia.
The MMI issue didn’t surface again until Dr. Baker re-examined Claimant in March 2001, after the conclusion of the work hardening treatment at issue. After examining Claimant on March 28, 2001, Dr. Baker again proposed an MMI of August 9, 2000, and also renewed his recommendation for a five per cent whole body impairment rating. On April 9, 2001, Dr. Garcia disputed Dr. Baker’s conclusions as to both MMI date and the proposed impairment rating. In May 2001, the designated doctor determined Claimant had reached MMI on May 9, 2001, with a whole body impairment rating of 14 percent.
In his second report, Dr. Baker also expressed doubts concerning the efficacy of treatments administered between August 2000 and the end of March 2001. He concluded that those treatments had been unreasonable and unnecessary, and had not improved Claimant’s condition in a measurable way. (TWCC Exh. 1, P. 488). He concluded that Claimant had remained “at a stationary plateau” since August 2000. (TWCC Exh. 1, Pp. 483-491).
Claimant’s work status throughout the disputed period is unclear. Claimant’s former employer had apparently agreed to retain Claimant, although it was not clear whether they anticipated or expected him to resume his original heavy-lifting duties. Dr. Garcia was unable to say when, or indeed, if, he had released Claimant to return to work, or, if so, to what physical demand level (PDL) of work. Dr. Baker’s RME of March 28, 2001, suggests that Claimant may not have been released to work since Dr. Baker stated there his belief that Claimant was ready to return to work as of March 2001. He added that an additional functional capacity evaluation (FCE) would be needed to determine the PDL level Claimant would be able to handle. Dr. Baker’s report on his first examination had not addressed return-to-work issues. In his summary of treatment given to the MRD, Dr. Garcia states that, at the time of the work hardening in early 2001, Claimant was unable to perform his job duties. However, he did not state whether he was referring to an actual unsuccessful attempt by Claimant to return to his former job, or merely to testing data for his PDL levels. (TWCC Exh. 1, P. 17). However, it was undisputed that at the time Dr. Garcia initiated the work hardening program in January 2000, Claimant was not seeking work so did not need job counseling services, and that the work hardening program that Dr. Garcia oversaw did not include those services.
However, there was no dispute that the work hardening program Claimant participated in addressed functional, physical and behavioral components as listed in the Medical Fee Guideline (MFG) 28 Tex. Admin. Code (TAC) §134.201 (Eff. date April 1, 1996), Pp. 36-39, or that Claimant met the entry criteria for the program. (TWCC Exh. 1, Pp. 452-493). Nor was there any dispute that Claimant increased his lifting capacity in the course of the treatment, from lifting 35 pounds with moderate difficulty to lifting 50 pounds with mild difficulty. (TWCC Exh. 1, P. 17). Rather, the Carrier’s dispute concerned whether work hardening was the appropriate course of treatment at the time it was provided.
In general, the Carrier relied on peer reviews to deny reimbursement. Diran Lancaster, D.C. performed a peer review on November 27, 2000. Dr. Lancaster concluded that the year’s worth of chiropractic treatments that preceded his review had afforded Claimant “no therapeutic gains,” and had failed to control Claimant’s symptomatology. (TWCC Exh. 1, Pp. 31-34). Dr. Lancaster concluded that no further chiropractic treatment should be considered to be medically necessary. He referenced, but did not discuss, a recommendation made in August 2000 by Dr. Jose Reyes, M.D., for surgical evaluation of Claimant and continued physical therapy. A year earlier, on November 25, 1999, Robert Honigsfeld, D.C., had also conducted a peer review. At that time, Dr. Honigsfeld concluded that the injury of_________, was a flare-up of a previous injury, for which an impairment rating had been given and MMI determined. The reviews by both Dr. Lancaster and Dr. Honigsfeld were conducted well before the earliest date of service in this case. On December 1, 2000, Dr. Garcia disputed comments in Dr. Lancaster’s peer review. (TWCC Exh. 1, P. 468). He responded a second time to Dr. Lancaster’s report, on May 1, 2001, apparently after it was resent to him.
As an injured worker, Claimant is entitled to all treatment 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. Labor Code Ann. §§408.021 and 408.011(19). It is the Carrier’s burden in this case to show that the treatments failed to accomplish any of those objectives for Claimant’s compensable injury. 28 TAC § 148.21(h) and (i).
As to the work hardening, the Carrier suggested that the absence of the vocational component demonstrated the multi-disciplinary work hardening program was not medically necessary. The Carrier distinguished this program from the work conditioning program, with focuses solely on the physical skills needed to perform a job. See MFG, Medicine Ground Rules, Sec. II, (A) through (E), Pp. 36-39. The ALJ is unable to agree with the Carrier that the MFG requires a work hardening program to contain all four elements - functional, physical, behavioral and vocational- in order to make it medically necessary. Rather, the MFG language states that a work hardening program must have the capability to address each of those needs, in a manner needed by the particular worker involved. Id. P. 37. Further, even assuming the Carrier to be correct, that point does not raise the issue medical necessity, but rather the issue of whether the provider failed to follow the statutes and rules, including the MFG, for provision of the service. At no point in the MRD proceedings did the Carrier make that argument, and the ALJ will not expand the scope of the hearing to entertain it now.
In sum, as to the medical necessity for the work hardening program, the Carrier has failed to meet its burden of proof. Both of the Carrier’s peer reviewers, and its IME doctor, conducted their reviews well before the disputed dates of service. The only medical evidence presented by the Carrier that covered all dates of service was the RME prepared by Dr. Baker on March 28, 2001, after the conclusion of the treatment. After examining Claimant and reviewing all medical records, Dr. Baker reaffirmed his earlier opinion that Claimant had reached his MMI in by August 9, 2000. However, on April 9, 2001, Dr. Garcia disputed Dr. Baker’s conclusions, both as to the MMI date and proposed impairment rating. As noted, the final determination that MMI had been reached was not made until May 2001. Thus, even assuming that the determination that Claimant had reached MMI would effectively end the debate about the need for treatments designed to return Claimant to work, that determination had not been made in January 2001.
As Claimant’s treating doctor, it was Dr. Garcia’s conclusion in January 2001 that work hardening would assist Claimant meet his job demands, and that further attempts to enable Claimant to reach that goal were medically warranted. At the end of the initial six-week session, the progress data he provided was sufficiently persuasive about the gains being made by Claimant that it induced the Carrier to authorize two additional weeks of work hardening treatment. The FCE performed on February 22, 2001, showed that Claimant could perform at a PDL of “medium,” but that his job requirements were for a “heavy” PDL. (TWCC Exh. 1, Pp. 383-402). Given the negative peer reviews and IME that were in the Carrier’s hands in mid-February when Dr. Garcia sought the extension for work hardening, the ALJ is unable to conclude that the Carrier’s pre-authorization of additional weeks of work hardening constituted anything but an endorsement of the course of treatment. Further, the administration of an FCE test is part and parcel of a doctor’s ongoing evaluation of the progress of the work hardening, and necessary as a basis for seeking pre-authorization of additional treatment weeks.
Based on the evidence in the case, the ALJ concludes that the Carrier failed to sustain its burden of proof as to all dates of work hardening and as to the administration of the FCE test.
However, the Carrier sustained its burden of proof as to the office visits on seven dates of service between December 26, 2000, and February 28, 2001. Neither the notes of the visits themselves nor Dr. Garcia’s testimony demonstrated the need for the services billed. Spine manipulation was noted as being provided at each visit. However, the notes are rote, and although the visits occurred on dates immediately before and during the work hardening, the office notes did not reference that program at any time, or indicate in any way they were visits in support of that program. None of the office visits should be reimbursed.
The Carrier failed to meet its burden of proof to show that Dr. Garcia improperly billed for time he spent in April 2001 reviewing Dr. Baker’s RME report, or that it was unnecessary to evaluate Claimant’s disability status. MFG, Evaluation/Management Ground Rules, Sec. XXII, Pp. 14-15. This time should be reimbursed.
IV. Findings of Fact
- On_______, _____ (Claimant) suffered a compensable injury when he lifted steel or steel pipe to load into a machine at his place of business, a steel fabrication plant.
- Centre Insurance Company (Carrier) was the workers’ compensation insurance carrier for Claimant’s employer on the date of injury.
- Jesus Garcia, D. C. (Provider), began treating Claimant immediately after the injury, and continued to be his treating doctor on all disputed dates of service.
- On_______, Dr. Garcia diagnosed Claimant as having a lumbar vertebral subluxation, lumbar sprain/strain, lumbar radiculitis, and muscle spasms.
- On October 10, 1999, an MRI, performed and interpreted by Dr. Kevin Legendre, M.D., revealed that Claimant had a posterior central disc herniation/protrusion at the L2-L3 level, and broad posterior disc bulges at both the L3-L4 and L4-L5 levels.
- Claimant was treated conservatively with physical medicine modalities, specifically, therapeutic exercises and physical therapy, joint mobilization and manipulation, and myofascial release, and also interferential current, ultrasound, and neuromuscular re-education.
- Notwithstanding the course of conservative care outlined in Finding of Fact No. 6, Claimant continued to experience lower back pain, so he received lumbar epidural steroid injections in February and March 2000 and bilateral lumbar facet injections in May 2000. Neither round of injections relieved Claimant’s lower back pain.
- Beginning on February 21, 2000, Claimant participated in a five-week work conditioning program. The work conditioning program did not enable Claimant to sustain work performance at pre-injury physical demand levels (PDL).
- Beginning on January 8, 2001, the Provider administered an eight-week work hardening program to Claimant. The Carrier pre-authorized the last two weeks of the work hardening program, and did not dispute payment for those two weeks.
- The Provider billed the Carrier for six weeks of work hardening (CPT Codes 97545-WH and 967546), with eight-hour sessions for each day of treatment.
- The Provider also billed the Carrier for seven visits for an established patient (CPT Code 99213) between the end of December 2000 and the end of February 2001. The dates of the office visits were December 26, 27, and 29, 2000; January 2, 2001; and, February 23, 26, and 28, 2001.
- On February 22, 2001, Dr. Garcia administered a functional capacity evaluation (FCE) test to Claimant to evaluate the need for additional work hardening and to support his request for pre-authorization of the additional work hardening. He sought reimbursement from the Carrier for administration of the test.
- At the Carrier’s request, Gregory Baker, D.C., performed an independent medical evaluation of Claimant on March 28, 2001. His report of medical evaluation (RME) was sent to the Provider, who reviewed it on April 9, 2001. Dr. Garcia sought reimbursement from the Carrier for review of Dr. Baker’s RME.
- The Carrier denied reimbursement for each date of service listed in Finding of Fact Nos. 10‑12 on the basis that none of the services provided were medically necessary to treat Claimant’s compensable injury. The Carrier denied payment for the review time listed in Finding of Fact No. 13 on the basis that it was not reimbursable under treatment guidelines.
- Dr. Garcia appealed the Carrier’s denial of benefits to the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC or Commission). After reviewing the evidence, including Dr. Garcia’s treatment notes, the MRD ordered the Carrier to pay for 26 eight-hour days of work hardening, for all seven office visits, for the administration of the FCE test, and for the review of the RME report. The MRD issued its order on December 18, 2001, recommending a total reimbursement of $11,235.60.
- On January 7, 2002, the Carrier requested a hearing on the MRD decision. On March 3, 2002, the Commission issued a notice of hearing which included the date, time, and location of the hearing, the applicable statutes under which the hearing would be conducted, and the nature of the matters asserted.
- Administrative Law Judge (ALJ) Cassandra Church conducted a hearing on the merits of the consolidated cases on August 7, 2002; the record closed that day.
- At the time of his injury in______, Claimant’s work was classified as being a “heavy”physical demand level (PDL) job, which means that in order to perform his job duties, Claimant would be required to occasionally lift 51-100 pounds, and to frequently lift 26-50 pounds during the work day, as well as to stand, reach, bend over, and twist his body.
- There is no evidence as to the PDL of the job Claimant was offered by his former employer, or if he was, or has been subsequently, released by Dr. Garcia or any other doctor to return to work.
- Dr. Baker, who examined Claimant, and Diran Lancaster, D.C., who reviewed records in the case through November 27, 2000, recommended against additional chiropractic treatment.
- Dr. Baker had examined Claimant in August 2000 and issued a medical report in which he asserted Claimant had reached maximum medical improvement (MMI) by August 9, 2000. There is no evidence the Carrier sought determination of an MMI date or a final impairment rating at that time.
- Dr. Baker re-examined Claimant in March 2001. In his second RME, issued on March 28, 2001, Dr. Baker again asserted that Claimant had reached MMI by August 9, 2000, and recommended a five per cent whole body impairment rating. On April 9, 2001, Dr. Garcia disputed that Claimant had reached MMI in August 2000, and also the proposed impairment rating.
- Claimant was determined by the designated doctor to be at MMI on May 9, 2001, with a whole body impairment rating of 14 percent.
- The work hardening program included functional, physical and behavioral components tailored to Claimant’s needs. No vocational component was included as Claimant’s former employer had promised to re-employ Claimant. The physical skill objective of the work hardening program Claimant undertook in January through March 2001 was to return him to handling a “heavy” PDL, as described in Finding of Fact No. 18.
- The work hardening program was administered in accordance with guidelines for multi-disciplinary physical medicine programs as set out in the Medical Fee Guideline (MFG) 28 Tex. Admin. Code (TAC) §134.201 (Eff. date April 1, 1996). In 2001, a treating physician was authorized to administer six weeks of work hardening without pre-authorization by the Carrier.
- Claimant improved his lifting capacity during the course of the work hardening program, moving from lifting 35 pounds with moderate difficulty to lifting 50 pounds with mild difficulty.
- There was no evidence the office visits listed in Finding of Fact No. 11 were related to the work hardening program. The Provider’s treatment notes are substantially the same for all visits, and fail to show a course or pattern of treatment, or of progressive medical decision making.
- The Provider did not demonstrate the specific nature of the problems of “low to moderate severity” which Claimant presented on four office visits within a two-week period of time in late December 2000 and early January 2001.
V.Conclusions of Law
- 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.
- 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 and Tex. Gov't Code Ann. ch. 2003.
- Petitioner timely filed notice of appeal, as specified in 28 Tex. Admin. Code (TAC) § 148.3.
- 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).
- Petitioner had the burden of proving the case by a preponderance of the evidence, pursuant to 28 TAC § 148.21(h) and (i).
- Petitioner proved by a preponderance of the evidence that the office visits on December 26, 27 and 29, 2000; January 2, 2001; and February 23, 26 and 28, 2001, were not health care services that were reasonably required to relieve the effects of or promote recovery from a compensable injury suffered by Claimant, within the meaning of Tex. Labor Code §§ 408.021 and 401.011(19).
- The work hardening services Petitioner provided on 26 days between January 8, 2001, and March 9, 2001, were health care services that were reasonably required to relieve the effects of or promote recovery from a compensable injury suffered by Claimant, within the meaning of Tex. Labor Code §§ 408.021 and 401.011(19).
- The administration of a functional capacity evaluation (FCE) test on February 22, 2001, was necessary testing to support the Provider’s ongoing course of medical treatment for Claimant’s compensable injury, within the meaning of Tex. Labor Code §§408.021 and 401.011(19).
- The time spent by the Provider on April 9, 2001, to review Dr. Baker’s RME, was medically necessary as a disability evaluation service, and conducted according to requirements set forth in the Medical Fee Guideline.
IT IS HEREBY ORDERED THAT the Centre Insurance Company reimburse Dr. Jesus Garcia a total of $10,899.60 for the following services provided on behalf of Claimant: administration of a FCE test on February 22, 2001; review of a medical report on April 9, 2001; and work hardening services performed on January 8-11, 17-19, 29-31, February 1 and 2, 5-8, 12-14, and16, and March 2, 5-9, 2001, inclusive.
Signed October 7, 2002.
STATE OFFICE OF ADMINISTRATIVE HEARINGS
CASSANDRA J. CHURCH
Administrative Law Judge
- On October 10, 1999, an MRI, performed and interpreted by Dr. Kevin Legendre, M.D., revealed that Claimant had a posterior central disc herniation/protrusion at the L2-L3 level, and broad posterior disc bulges at both the L3-L4 and L4-L5 levels. (TWCC Exh. 1, P. 32).↑
- Claims for some of the days within the course of treatment were apparently not timely filed for payment, so the dates of service reviewed by the MRD are not entirely sequential. Further, dates of services for which the MRD received no clinical notes were not reviewed. Dr. Garcia billed a total of eight treatment hours per day for each day of the course of work hardening.↑
- The ALJ notes that the MRD decision listed the denial code for this item as medical necessity, denial code “U.” (TWCC Exh. 1, P. 5). However, the explanation of benefits (EOB) issued by the Carrier lists denial code “T”, which means treatment not according to guidelines. (TWCC Exh. 1, P. 279). The ALJ evaluated this matter on the denial code appearing in the EOB.↑
- Even after further work conditioning and/or work hardening that apparently had been performed in May 2001, Claimant may not have been able to return to work, according to the Carrier’s representative at the MRD proceeding. (TWCC Exh. 1, P. 462). Again, the PDL level of work that Claimant sought was not discussed.↑
- Although the Carrier had ordered peer reviews well before the dates of service, it did not cite them as the basis for all denials, particularly for the disputed service dates before mid-February. It was not clear on which peer review the Carrier relied, although Dr. Lancaster’s was performed the closest in time to the disputed services dates.↑
- Dr. Honigsfeld recommended further treatment, including two weeks of passive therapy and two week of active rehabilitative therapy, to return Claimant to “pre-flare-up status.” (TWCC Exh. 1, Pp. 494-496). Although Dr. Honigsfeld’s peer review was included in the record sent to the MRD by the Carrier, it is not clear how, or if, this peer review figured into the Carrier’s handling of the disputed claims. There is no direct reply by Dr. Garcia to this report, although Dr. Lancaster referred to it, and Dr. Garcia did respond to those points Dr. Lancaster had imported from the earlier analysis.↑
- Dr. Garcia’s records from shortly before and during the dates of the disputed services reflect repeated difficulties in getting a copy of a peer review from the Carrier, although which review he referenced was not recorded. On January 4, 200, four days before the start of the work hardening program, Dr. Garcia’s notes begin to reflect contacts with the Carrier attempting to secure the unidentified peer review. And despite repeated contacts with the Carrier’s adjustors, Risk Enterprises Management personnel apparently did not send, or resend, Dr. Lancaster’s peer review to Dr. Garcia until April 26, 2001, approximately seven weeks after the last date of service in issue. (TWCC Exh. 1, P. 28) As noted above, the Carrier itself did not reference a peer review all its denials for disputed dates of service prior to mid-February. However, there was indirect evidence that the Carrier had denied payment for some office visits in early December 2000 on the basis of the peer review, suggesting that Dr. Garcia may have aware of the Carrier’s concerns about the ongoing course of treatment. See TWCC Exh. 1, Pp. 39-41.↑