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At a Glance:
Title:
453-02-2320-m5
Date:
October 15, 2002

453-02-2320-m5

October 15, 2002

DECISION AND ORDER

This case involves whether office visits, muscle testing, range of motion testing, physical therapy, medical supplies, copying of medical records, and a functional capacity examination were medically necessary and properly billed. The Back and Joint Clinic (BJC) provided the disputed services to the claimant in 2000 and 2001.[1]

The Administrative Law Judge (ALJ) concludes that the initial office visit and some of the medical supplies were reasonable and necessary, but that the evidence fails to support reimbursement for the other services and supplies.

I. Jurisdiction, Notice, and Procedural History

The Texas Workers’ Compensation Commission (the Commission) has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers' Compensation Act (the Act). Tex. Lab. Code Ann. ch. 401 et seq. The State Office of Administrative Hearings (SOAH) has jurisdiction over this proceeding, including the authority to issue a decision and order. Tex. Lab. Code Ann. §413.031; Tex. Gov’t Code Ann. ch. 2003.

The Commission’s Medical Review Division (MRD) issued its decision January 31, 2002. BJC requested a hearing. Proper and timely notice of the hearing was issued April 2, 2002. The hearing was convened September 19, 2002, with ALJ Shannon Kilgore presiding. Scott Hilliard appeared for BJC, and Shannon Pounds appeared for the carrier, Transcontinental Insurance Company (TIC). The Commission did not participate in the hearing. The hearing was adjourned, and the record closed, the same day.

II. Factual Background

Treatment history. The claimant in this case sustained a compensable knee injury in April 2000. He worked for ______ in a job involving considerable physical demands. Following two surgeries and physical therapy while under the care of other providers, the claimant became a patient at BJC. The first visit was on October 27, 2000. At that visit, Sam Liscum, D.C., took a history and examined the claimant, performed some range of motion and muscle testing (additional testing was done a few days later), and provided a knee brace, an ice pack (a cryopack), and some balm. TWCC Exhibit 1, pp. 68-79. The claimant complained of pain and swelling in his left knee. Dr. Liscum diagnosed internal derangement of the knee and myofascial pain syndrome. Id., p. 68. He performed muscle and range of motion testing, and concluded that the claimant had loss of mobility and strength in his left knee. Id., pp. 74, 79.

During subsequent visits to BJC over the next six months, the claimant participated in home exercises, supervised therapeutic exercises, and passive modalities (myofascial release, electrical stimulation, and joint mobilization), and received more ice packs, balm, and another brace. In April 2001, he underwent range of motion and muscle testing again. Id., pp. 98-107. After some additional therapy in May, he underwent a functional capacity evaluation (FCE). Id., pp. 108-117.

The claimant was working on a light duty basis when he was first seen at BJC; in fact, Dr. Liscum reported at the first visit that the claimant was capable of working, with some restrictions. Id., p. 69, 75, 77. However, on December 11, 2000, the claimant said he was off work. Id., p. 91. Dr. Liscum stated on February 14, 2001, that the claimant was unable to work because of his “pain level and joint dysfunction.” Id., p. 80. Dr. Liscum’s note from April 19, 2001, states, “He is currently off work.” Id., p. 98. On that same date, Dr. Liscum stated that the claimant could return to work on a light duty basis. Id., p. 104. It is unclear from the record whether the claimant in fact resumed working. The May 2001 FCE implies that he was not working, in that it speaks of the claimant’s “goal of returning to work.” Id., p. 115.

The record shows that over the course of the disputed treatments, the claimant’s perceptions of pain remained extraordinarily high.[2] On November 1, BJC’s notes state, “[The claimant] indicates he has an increase in symptoms after today’s treatment . . . After treatment Mr. Elliott reported his pain was a 10 on a scale of 0 to 10.” Id., p. 85. The claimant made similar statements on November 8. On November 15, BJC’s notes say, “Pt. is frustrated with the pain still increasing.” Id., p. 87. On December 11, the claimant said that he was getting worse overall, he rated his pain as 10, and he said was hurting constantly as a result of the treatment program. Id., p. 91. The last reported pain level in the evidentiary record was 8 in May 2001. Id., p. 108.

The strength of claimant’s left knee improved during therapy. Id., p. 100. The range of motion in the left knee also increased, although Dr. Liscum continued to characterize it as “poor. Id., pp. 114, 117.

At then end of the claimant’s therapy in May, Dr. Liscum noted psychosocial dysfunction and recommended 40 sessions of work hardening over eight weeks. Id., p. 115.

Billing history. TIC declined to pay for any of the office visits, evaluations, treatments, equipment, or copying costs claimed during the period of treatment. See id., pp. 53-67.

BJC billed the office visits under CPT codes: 99205 (comprehensive office visit, new patient) (10-27-00), 99213 (limited office visit, established patient) (11-1-00, 11-8-00, 11-10-00, 11-15-00, 11-17-00, 12-5-00, 12-11-00, 12-29-00, 2-14-01, 3-7-01, 4-25-01, 5-9-01, 5-21-01), and 99215 (comprehensive office visit, established patient) (4-19-01). The visits were denied as medically unnecessary and/or not in compliance with treatment guidelines. Id. In connection with the claimant’s initial visit on October 27, 2000, BJC billed for the preparation of the TWCC-61 medical report (CPT code 99080-61). It appears that TIC neglected to address this item in its EOBs. Id.

Themuscle testing was billed under CPT code 97750-MT. TIC denied reimbursement for muscle testing done on October 27 and 30, 2000, as “not according to treatment guidelines,” and denied muscle testing performed on April 19 and 24, 2001, as medically unnecessary. Id., pp. 53-54, 63-64. Reimbursement for range of motion testing, billed as CPT code 95851, was denied for the October 27, 2000, date of service as not in compliance with treatment guidelines, and for the April 19, 2001, date of service as medically unnecessary. Id., pp. 53-54, 62.

The claimant underwent supervised therapeutic exercises (CPT code 97110), myofascial release (CPT code 97250), joint mobilization (CPT code 97265) on November 1, 8, 10, 15, and 17, and December 5, 2000, and on April 25, 2001. TIC denied reimbursement for these services as lacking pre-authorization and/or medically unnecessary. Id., pp. 53-67. Payment for electrical stimulation (CPT code 97014), provided November 8, 15, and 17, and December 5, 2000, was denied on the same bases.

Medical supplies, including cryopacks, analgesic balm, and knee braces, were billed under CPT code 99070 for dates of service October 27, 2000, and February 14, March 7, and April 19, 2001. TIC denied reimbursement for the supplies as not in compliance with treatment guidelines and/or medically unnecessary. Id., pp. 53-54, 60-63.

Reimbursement for copying costs for medical records, billed under CPT code 99080 for date of service May 8, 2001, was denied as medically unnecessary.[3]Id., p. 65.

TIC denied reimbursement for the May 2001 FCE (CPT code 97750-FC), saying it was medically unnecessary. Id., p. 67.

The MRD found that the office visits, muscle testing, range of motion testing, medical supplies, some of the physical therapy, the copies, and the FCE were not shown to be medically necessary. Id., pp. 4-9. With respect to the rest of the physical therapy, the MRD determined that it had not been pre-authorized. Id. The MRD recommended no reimbursement.

III. Discussion

The Labor Code provides that an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. Tex. Labor Code §408.021(a). The Labor Code defines "health care" to include “ll reasonable and necessary medical ... services.” Tex. Labor Code §401.011(19).

When the claimant first presented at BJC on October 27, 2000, he complained of pain and swelling in his left knee. The ALJ believes that a comprehensive office visit on this date was reasonable. The knee brace, cryopack, and balm provided that day also seem appropriately suited to address the claimant’s pain. As to the preparation of the TWCC-61 medical form prepared after the October 27 visit, the ALJ declines to disturb the MRD’s dismissal of this claim. The MRD based its dismissal on two factors: first, that BJC had failed to provide the EOB for this claim and, second, that the TWCC-61 form was no longer in use at the time of the visit. The ALJ does not agree with the MRD’s first rationale, since it does not appear the carrier ever issued an EOB concerning this claim. However, the provider should not have billed for the preparation of a form no longer in use.

Like the MRD, the ALJ does not see in the record sufficient documented justification for the extensive muscle testing and range of motion evaluations. Nor does the ALJ believe that BJC has demonstrated the necessity for the further office visits and physical therapy (including the exercises, myofascial release, joint mobilization, and electrical stimulation).[4] The claimant’s chief complaint was pain. Yet Dr. Bailey testified that the physical therapy was designed primarily to improve the patient’s strength and flexibility. While his strength and range of motion improved over the duration of his treatment, his reported pain at times worsened and remained severe (if somewhat magnified, perhaps) throughout. BJC persisted in its course of treatment despite signs that the patient’s pain was intensifying. That the claimant was working when he became a patient at BJC in October 2000, but had to stop working after a month of treatment due to pain and dysfunction in his knee, does not reflect well on the effectiveness of the treatment.[5]

Further use of cryopacks and a knee brace was reasonable. David Bailey, D.C., of BJC testified that the brace enabled the claimant to move without guarding. BJC’s notes document that the ice therapy helped ease the claimant’s pain. See id., p. 90. As to the balm, the claimant stated on December 5, 2000, that it did not help. Id. Nevertheless, BJC continued to provide it. As an analgesic, the balm’s only purpose was to alleviate pain, and if it was not effective it should have been discontinued.

With respect to the claim for costs incurred on May 8, 2001, associated with the copying of medical records, the MRD stated that the record failed to establish what those copies were for. In fact, the record indicates that they were sent to a designated doctor named by the Commission. Id., p. 96. BJC asserts that the provider can charge for such copying costs. The ALJ, however, does not find any provision in the Commission’s rules allowing a provider to charge an insurance company

for copies of medical records sent to a designated doctor named by the Commission. See 28 Tex. Admin. Code § 133.106 (providing for reimbursement for certain reports and records).

The May 2001 functional capacity exam was done to assess the claimant’s suitability for a work hardening program. The MRD noted that the claimant’s pain had not been alleviated by all the previous therapy administered by this provider, and it was unclear how an FCE at this point could be medically necessary. The ALJ agrees.

Summary. The initial office visit on October 27, 2000, as well as the knee brace, cryopack, and analgesic balm provided that day, are reimbursable. Cryopacks and a knee brace provided at later visits are also reimbursable. All other claims were properly denied.

IV. Findings of Fact

  1. The claimant in this case sustained a compensable knee injury in _____while working for ________ in a job involving considerable physical demands.
  2. The claimant’s employer’s workers compensation insurance carrier was Transcontinental Insurance Company (TIC).
  3. Following two surgeries and three weeks of physical therapy while under the care of other providers, the claimant became a patient at the Back and Joint Clinic (BJC) on October 27, 2000.
  4. At the time of the claimant’s first visit to BJC, he was working in a restricted duty capacity.
  5. At the visit on October 27, 2000, the claimant complained of pain and swelling in his left knee. Sam Liscum, D.C., took a history and examined the claimant, performed some range of motion and muscle testing (additional testing was done a few days later), and provided a knee brace, an cryopack (ice pack), and some balm. Dr. Liscum diagnosed internal derangement of the knee and myofascial pain syndrome. He performed muscle and range of motion testing and concluded that the claimant had loss of mobility and strength in his left knee.
  6. During subsequent office visits to BJC over the next six months, the claimant participated in home exercises, supervised therapeutic exercises, and passive modalities (myofascial release, electrical stimulation, and joint mobilization), and received more ice packs, balm, and another brace.
  7. BJC billed the office visits under CPT codes: 99205 (comprehensive office visit, new patient) (10-27-00), 99213 (limited office visit, established patient) (11-1-00, 11-8-00, 11-10-00, 11-15-00, 11-17-00, 12-5-00, 12-11-00, 12-29-00, 2-14-01, 3-7-01, 4-25-01, 5-9-01, 5-21-01), and 99215 (comprehensive office visit, established patient) (4-19-01). Payment for these visits was denied as medically unnecessary and/or not in compliance with treatment guidelines. In connection with the claimant’s initial visit on October 27, 2000, BJC billed for the preparation of the TWCC-61 medical report (CPT code 99080-61). TIC did not issue an EOB for this claim.
  8. The TWCC-61 form used by BJC on October 27, 2000, had been repealed.
  9. BJC administered muscle testing on October 27 and 30, 2000, and April 19 and 24, 2001. BJC billed it under CPT code 97750-MT. TIC denied reimbursement for the October muscle testing as “not according to treatment guidelines,” and denied the April muscle testing as medically unnecessary.
  10. BJC administered range of motion testing on October 27, 2000, and April 19, 2001, and billed it as CPT code 95851. TIC denied the October claim as not in compliance with treatment guidelines, and the April claim as medically unnecessary.
  11. BJC administered therapeutic exercises (CPT code 97110), myofascial release (CPT code 97250), joint mobilization (CPT code 97265) on November 1, 8, 10, 15, and 17, and December 5, 2000, and on April 25, 2001. TIC denied reimbursement for these services as lacking pre-authorization and/or medically unnecessary.
  12. BJC administered electrical stimulation (CPT code 97014) on November 8, 15, and 17, and December 5, 2000. TIC denied reimbursement for these services as lacking pre-authorization and/or medically unnecessary.
  13. The claimant’s chief complaint was pain.
  14. The physical therapy (comprising the office visits, exercises, myofascial release, joint mobilization, and electrical stimulation) was designed primarily to improve the claimant’s strength and flexibility.
  15. While the claimant’s strength and range of motion improved over the duration of his treatment, his reported pain at times worsened and remained severe throughout. BJC persisted in its course of treatment despite signs that the patient’s pain was intensifying. The claimant had to stop working after a month of treatment due to pain and dysfunction in his knee.
  16. The physical therapy did not improve the claimant’s primary problem, his pain.
  17. BJC supplied a knee brace and analgesic balm on February 14, 2001, more balm on March 7, 2001, and a cryopack and more balm on April 19, 2001. BJC billed these medical supplies under CPT code 99070. TIC denied reimbursement for these, as well as the supplies provided on October 27, 2000, as not in compliance with treatment guidelines and/or medically unnecessary
  18. The knee brace helped the claimant move without guarding.
  19. The ice therapy was effective in temporarily relieving the claimant’s pain.
  20. The analgesic balm did not diminish the claimant’s pain.
  21. On May 8, 2001, BJC made copies of medical records to send to a designated doctor named by the Texas Workers’ Compensation Commission (Commission). BJC billed the copying costs under CPT code 99080. TIC denied the claim as medically unnecessary.
  22. On May 31, 2001, BJC administered a functional capacity exam (FCE), billing it under CPT code 99750-FC. The FCE was designed to assess the claimant’s suitability for work hardening. TIC denied reimbursement, saying the FCE was medically unnecessary.
  23. BJC sought review from the Commission’s Medical Review Division (MRD).
  24. The MRD issued its decision on January 31, 2002. The MRD recommended no reimbursement.
  25. BJC requested a hearing before the State Office of Administrative Hearings.
  26. Notice of the hearing was issued April 2, 2002. The notice 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 sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
  27. The hearing was convened September 19, 2002, with ALJ Shannon Kilgore presiding. Scott Hilliard appeared for BJC, and Shannon Pounds appeared for the carrier, Transcontinental Insurance Company (TIC). The Commission did not participate in the hearing. The hearing was adjourned, and the record closed, the same day.

V. Conclusions of Law

  1. The Commission has jurisdiction over this matter pursuant to § 413.031 of the Texas Workers' Compensation Act (the Act). See Tex. Lab. Code ch. 401 et seq.
  2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order in this case. Tex. Lab. Code Ann. § 413.031; Tex. Gov’t Code ch. 2003.
  3. Adequate and timely notice of the hearing was provided in accordance with the Texas Administrative Procedure Act. Tex. Gov’t Code § 2001.052.
  4. TIC has the burden of proof in this matter. 28 Tex. Admin. Code § 148.21(h).
  5. An employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. Tex. Labor Code § 408.021(a). “Health care” includes “all reasonable and necessary medical ... services.” Tex. Labor Code § 401.011(19).
  6. Based on the Findings of Fact, the claimant’s initial office visit at BJC on October 27, 2000, billed under CPT code 99205, was medically necessary and reimbursable.
  7. Based on the Findings of Fact, the knee brace, cryopack, and balm provided to the claimant by BJC on October 27, 2000, the knee brace provided on February 14, 2001, and the cryopack provided on April 19, 2001, all billed under CPT code 99070, were medically necessary and reimbursable.
  8. Based on the Findings of Fact, BJC’s preparation of a repealed TWCC-61 form on October 27, 2000, was not reimbursable.
  9. Based on the Findings of Fact, the muscle testing (CPT code 97750-MT) administered by BJC to the claimant on October 27 and 30, 2000, and April 19 and 24, 2001, was not medically necessary and not reimbursable.
  10. Based on the Findings of Fact, the range of motion testing (CPT code 95851) administered by BJC to the claimant on October 27, 2000, and April 19, 2001, was not medically necessary and not reimbursable.
  11. Based on the Findings of Fact, office visits billed by BJC under CPT code 99213 (limited office visit, established patient) (11-1-00, 11-8-00, 11-10-00, 11-15-00, 11-17-00, 12-5-00, 12-11-00, 12-29-00, 2-14-01, 3-7-01, 4-25-01, 5-9-01, 5-21-01), and CPT code 99215 (comprehensive office visit, established patient) (4-19-01) were not medically necessary and not reimbursable.
  12. Based on the Findings of Fact, the physical therapy administered by BJC to the claimant, consisting of therapeutic exercises (CPT code 97110), myofascial release (CPT code 97250), and joint mobilization (CPT code 97265) on November 1, 8, 10, 15, and 17, and December 5, 2000, and on April 25, 2001, as well as electrical stimulation (CPT code 97014) on November 8, 15, and 17, and December 5, 2000, was not medically necessary and not reimbursable.
  13. Based on the Findings of Fact, copying costs associated with providing copies of medical records to a designated doctor named by the Commission, billed under CPT code 99080 for date of service May 8, 2001, were not reimbursable costs under the Commission’s rules. 28 Tex. Admin. Code § 133.106.
  14. Based on the Findings of Fact, a functional capacity exam administered by BJC to the claimant on May 31, 2001, billed under CPT code 99750-FC, was not medically necessary and not reimbursable.

ORDER

IT IS, THEREFORE, ORDERED that Transcontinental Insurance Company reimburse the Back and Joint Clinic the maximum allowable reimbursement, plus accrued interest, for: Claimant _____ initial office visit on October 27, 2000, billed under CPT code 99205; and (2) the knee brace, cryopack, and balm provided on October 27, 2000, the knee brace provided on February 14, 2001, and the cryopack provided on April 19, 2001, all billed under CPT code 99070. As to all other disputed claims at issue in this case, Transcontinental Insurance Company owes nothing.

Signed this 15th of October, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

Shannon Kilgore
Administrative Law Judge

  1. The total amount in controversy is approximately $4,000.00 BJC’s request for dispute resolution identified the total as $4,007.16. TWCC Exhibit 1, p. 16.
  2. The Administrative Law Judge notes, however, that the decision of the Medical Review Division (MRD) of the Texas Worker’s Compensation Commission states that the total disputed amount is $2,944.83, a figure much lower than the $4,007.16 that appears in BJC’s request for dispute resolution. See id., p. 9. Part of the difference may be accounted for by the fact that the MRD dismissed one claim for $70.00 (99080-61 on October 27, 2000), and that claim did not figure in the MRD’s total. Otherwise, the Administrative Law Judge is unable to account for the MRD’s low total. The Administrative Law Judge believes $4,007.16 to be the correct number. BJC has, however, dropped a claim for $16.50 related to copying costs incurred on January 9, 2000, and this amount should be subtracted from the total.

  3. The claimant consistently reported pain in the left knee and in other areas, as well.
  4. During the hearing in this case, BJC stated it is withdrawing its pursuit of copying costs ($16.50) incurred on January 9, 2001.
  5. While the ALJ does not believe that BJC has met its burden to show that the physical therapy was medically necessary, the ALJ sees no merit in the carrier’s position that these services should have been pre-authorized. The Commission’s rules provide that physical or occupational therapy be pre-authorized beyond eight weeks of treatment. 28 Tex. Admin. Code §134.600(h)(10). The carrier asserts that the claimant had already undergone physical therapy while under the care of another provider, and that it was BJC’s burden to prove that the prior therapy had not exceeded the eight-week threshold. The ALJ is not at all persuaded by this argument. Dr. Bailey of BJC testified that the claimant stated on October 27, 2000, that he had received only three weeks of physical therapy prior to being seen at BJC. See also TWCC Exhibit 1, p. 69. As BJC points out, the carrier is in a far better position than BJC to assess the accuracy of the claimant’s representation.
  6. BJC argued that the carrier only denied the physical therapy claims on the basis of a lack of pre-authorization, and suggested that the ALJ cannot therefore consider the medical necessity arguments raised by TIC. In fact, many of the carrier’s EOBs do appear to raise medical necessity with respect to the physical therapy sessions. See, e.g., TWCC Exhibit 1, p. 57. Moreover, medical necessity is the fundamental basis for reimbursement under the Labor Code; where, as here, the carrier has raised a credible question about medical necessity, the ALJ will consider it.

  7. The MRD also expressed concern about the numerous times in BJC’s clinic notes that the claimant is referred to as a female. See TWCC Exhibit 1, pp. 4, 92, 94, 95, 96. The ALJ agrees that these persistent errors, while not fatal to BJC’s case in and of themselves, do tend to diminish the overall credibility of the provider’s documentation.
End of Document
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