DECISION AND ORDER

This case concerns whether First Rio Valley Medical, P.A. (Provider), should be reimbursed $3,764.00 for services provided to Claimant____ in________.

As set out below, the Administrative Law Judge (ALJ) cannot find that the disputed services were reasonably medically necessary to relieve Claimant’s pain. Thus, Provider’s request for reimbursement is denied.

I. Jurisdiction, Notice, and Procedural History

The Texas Workers’ Compensation Commission (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, pursuant to Tex. Lab. Code Ann. §413.031(d) and Tex. Gov’t Code Ann. ch. 2003.

The Commission’s Medical Review Division (MRD) issued its decision February 12, 2002. Provider filed a timely request for hearing. Proper and timely notice of the hearing was issued March 6, 2002. The hearing was convened October 8, 2002, with ALJ Lilo D. Pomerleau presiding. William Maxwell appeared for Provider, and Donald W. York appeared for Fairmont Insurance Company (Carrier). The Commission did not participate in the hearing. The hearing was adjourned the same day, but the record was kept open for the submission of citations to relevant statute and rules. The record closed October 22, 2002.

II. Factual Background

___ sustained a compensable injury to his low back on_________, when he was moving a box of paper. Shortly after the injury, Claimant went to a medical doctor, Terence Langan, who prescribed 13 sessions of medical therapy.^[1] Claimant subsequently sought the services of Provider beginning September 12, 2000. On September 22, 2000, Carrier’s peer review report stated Robert S. Howell, D.C., had removed Claimant from work, with no indication that he would be returned to work in the “near future.”^[2] The report noted that Claimant had received approximately four weeks of conservative treatment, including the 13 physical therapy sessions prescribed by Dr. Langan, with little significant benefit. Moreover, Claimant was unable to “tolerate any physical touching with out extreme pain.”^[3] The report stated the injury appeared to be a soft tissue injury and recommended that Claimant undergo an independent medical evaluation, including a functional capacity evaluation. It concluded that Claimant should be back to work in some capacity immediately and indicated that, with this type of injury, treatment should last approximately four to six weeks post-injury.^[4] The report was signed by Kevin Tomsic, D.C. and Katherine Blanchette, M.D.

Dr. Howell’s diagnosis of Claimant does not match that contained in the peer review report. Claimant’s history, as reported in Provider’s interim assessment dated October 25, 2000, indicates Claimant injured his neck, but he also reported pain in his neck and right and left heel.^[5] As stated above, Dr. Howell began treating Claimant on September 22, 2000, and is continuing treatment as of the date of the hearing. Claimant has also been taking Celebrex, an anti-inflammatory; Paxil, an anti-depressant; Skelaxin, a muscle relaxant; and vitamin B-12 with folic acid. According to Claimant, the medication is helping.^[6] Dr. Howell testified that E.R. had neck surgery approximately six months ago.

The disputed services occurred during 12 days within the date range of October 3 through October 31, 2000. The services included joint mobilization, therapeutic massage, and aquatic therapy/exercise totaling $3,764.00. Carrier denied reimbursement on the grounds that the services were either: “T,” not allowed because the procedure or service is not recommended according to Treatment Guidelines; or “U,” unnecessary.

The Commission’s Medical Review Division (MRD) concluded that Provider was not entitled to reimbursement, generally finding that the documentation was rote; noting that Claimant indicated at every visit that he did not wish to speak with the doctor regarding his care; and finding Claimant showed little signs of improvement on a pain scale (as opposed to substantive and continued improvement over time).^[7]

III. Medical Necessity

A. Applicable Law

Workers’ compensation insurance covers all medically necessary health care, which includes all reasonable and necessary medical aid, examinations, treatments, diagnoses, evaluations and services.^[8] Section 408.021 of the Act provides:

1. 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. The employee is specifically entitled to health care that:
   1. cures or relieves the effects naturally resulting from the compensable injury;
   2. promotes recovery; or
   3. enhances the ability of the employee to return to or retain employment.

Section 401.011(19) of the Act defines “health care” to include “all reasonable and necessary medical . . . services.”

B. Disputed Issues

Services Billed under Code “U”

For the services denied under code “U,” Provider argues Carrier used the wrong code, claiming the proper code is “V” not “U.” The code “V” is used when the carrier is denying payment because it deems the service not medically reasonable or unnecessary and the carrier is basing that judgment on a peer review (which must be attached). Code “U” is used when the carrier is denying payment for the same reason(s), but the judgment is not based on a peer review. Provider claims the explanation of benefits (EOBs) did not have the peer review attached. Provider also alleges Carrier failed to adequately provide a reason for the claim. Carrier did not directly respond to these arguments.

The ALJ finds that the codes “V” and “U” are virtually interchangeable, except that Code U, with the September 22, 2000 peer review attached, may provide more information to the provider. However, there is no showing that a peer review was not attached to the EOBs received by the provider; the only documentation is found in the certified record, which does not appear to be in any order. The peer review is in the record, as are the EOBs. In fact , the September 22 peer review is repeatedly found in the record, after a title page “Medical Records.” Accordingly, the ALJ finds there is no credible showing that the EOBs lacked a peer review attachment.

Moreover, the ALJ finds the issue as to the use of “V” or “U” isof little consequence. Under the Commission’s rule at 28 Tex. Admin. Code §133.304(c), “The explanation of benefits . . . shall provide sufficient explanation to allow the sender to understand the reason(s) for the insurance carrier’s action(s).” The rule’s requirements were met here.

Services Billed under “T” Code

Provider argues that the evidence conclusively establishes that the services billed under “T” fall within the Commission’s Spinal Treatment Guideline (Guideline). Thus, it should receive reimbursement for all services denied under code “T” because these service clearly fall within the Guideline. According to the MRD, Carrier denied the services as:

“T, 270-No allowance has been recommended for this procedure/service/supply please see special *note* below; no medical after 03-31-2000 per peer review; *T -Not according to Treatment Guidelines; No more chiro per peer review; denied-lower back-no more chiropractor treatment as of 9/29/00; no more treatment is required per peer review . . . .”

The ALJ agrees this is a fair representation of statements found on the EOBs in the record. Again, the ALJ is not persuaded that use of the EOB code “T” failed to apprize Provider of the reasons for the denial. Rather, the EOBs provide sufficient explanation to allow Provider to understand that the carrier denied payment because it believed the service fell outside the parameters of the Guideline and because the treatment was not deemed necessary after the peer review. The Commission indicated that the “purpose of the guideline is to identify a normal course of treatment for both operative and nonoperative care of the worker with a spine injury. This guideline is not to be used as a fixed treatment protocol, nor is it to be used as the sole reason for denial of or access to care.”^[9] The ALJ finds the EOBs indicated that the treatments and/or services fell outside the Guidelines’ parameters, and also indicated that services were not necessary after the peer review report. These statements sufficiently complied with the Commission’s rules.

C. Services Not Medically Necessary

Carrier argues that the disputed treatment did not cure or relieve the effects of the compensable injury. The ALJ concurs, finding that Provider did not put forth persuasive evidence to meet its burden of proof on this issue.

Regarding the cervical injury, Carrier contends there has been no cure as evidenced by the fact that Claimant had neck surgery approximately six months ago. Claimant’s October 10, 2000 MRI showed a “4-5 protrusion without evidence of nerve root compression however the cord does appear to be contacted by the disc” and a “6-7 disc protrusion causing moderate left lateral recess stenosis” with evidence that the protrusion was contacting the cord.^[10]

Dr. Howell did not specifically address how the spinal manipulations, massage therapy, aquatic therapy, or exercise video cured or relieved the effects of the cervical spinal injury (if this injury arose from the compensable injury, which the ALJ found was never clearly established). The testing on the range of motion for the cervical spine (on dates September 12 and October 25, 20000) indicated five degrees of improvement for flexion and left rotation, two degrees for right lateral flexion, and three degrees for right lateral flexion. There was no improvement on extension or right rotation. Dr. Howell testified that the test shows objectively that his patient improved; however, as of October 25, Claimant was still 15 degrees below normal for flexion; 45 degrees below normal for extension (with no change); 20 degrees below normal for right rotation and 25 degrees for left; and 22 and 23 degrees below normal for right and left lateral flexion, respectively. The Oswestry Neck Pain Scale indicated that the pain level had decreased from September 12 to October 25 by only six degrees overall.

Regarding the lumbar injury, Carrier argues there is no objective or subjective showing that the disputed treatment relieved the effects of the injury as Claimant’s subjective pain complaints were the same from day to day, and the objective reports (the range of motion testing) show only a few degrees of improvement. Carrier also notes that the Claimant’s October 2, 2002 MRI does not show any “evidence of disc herniation or focal spinal stenosis.”^[11] Carrier maintains that the radiologist did not find a full disc lesion in the lumbar spine. Dr. Howell, during cross examination, testified that he knew the diagnosis of this MRI before he treated Claimant for the services in dispute. He pointed out that a small protrusion is a herniated disk, and the joint mobilization was performed to increase Claimant’s range of motion and decrease pain.

According to Provider’s records and the testimony of Dr. Howell, Claimant’s level of pain, on the 12 dates of service, was at a four or five out of a scale from one to ten. The disputed services -which included joint mobilization, massage, interferential current, aquatic excercises and three minutes in the Jacuzzi-would reduce the level of Claimant’s pain by one degree. Therefore, Dr. Howell (and Provider) assert that the treatment was reasonable and medically necessary. Carrier disagrees, arguing there was no overall improvement in Claimant’s level of pain because he would return to the clinic back to the same overall level.

The ALJ finds a lack of credible evidence showing that the services were reasonably necessary to treat Claimant’s pain. Dr. Howell began to treat Claimant in mid-September. Regarding the disputed services in the month of October, he claimed his patient had improved each day. Yet Claimant showed relatively no overall signs of improvement (for pain or range of motion) after approximately six weeks of treatment. The ALJ did not find Dr. Howell’s testimony persuasive because he did not explain why the services were reasonably necessary to treat the lumbar spine, which had no disc herniation, or the neck injury, which showed only very slight improvement, according to Provider’s records.^[12] Moreover, the ALJ observes that testimony from Claimant may have cleared up several inconsistencies in the record: (1) was the neck injury part of the compensable injury; (2) did the treatment and/or services provide relief even though his neck was very painful to the touch; and (3) did the medication aid in the pain relief.

Additional evidence would have assisted the ALJ in better understanding why what appeared to be a moderate injury needed so much treatment. Because Provider had the burden of proving that the requested treatment and services were reasonably medically necessary. Petitioner failed to provide such evidence. Accordingly, the ALJ denies Provider’s request for reimbursement.

IV. Findings of Fact

1. On__________, the Claimant _____suffered an injury to his lower back that was a compensable injury under the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code Ann. ch. 401.001et seq.
2. On the date of injury, Claimant’s employer was ________________ and Fairmont Insurance Company (Carrier) was the workers’ compensation insurance carrier.
3. Shortly after his injury, Claimant was treated by Dr. Terence Langan, who prescribed 13 physical therapy sessions and medication.
4. Claimant first received services from First Rio Valley Medical, PA (Provider) on September 12, 2000.
5. The services in dispute occurred on 12 days with the date range of October 3 through October 31, 2000. The services in question included joint mobilization, therapeutic massage, aquatic therapy/exercise, and an exercise video. The amount of the disputed services total $3,764.00.
6. Claimant’s pain symptoms did not improve much, if at all, during the treatment provided beginning September 12, 2000.
7. Claimant’s overall range of motion did not significantly improve during the treatment provided beginning September 12, 2000.
8. Fairmont Insurance Company (Carrier) denied reimbursement on the grounds that the services provided were not allowed because the procedure or treatment is not recommended according to Texas Workers’ Compensation Commission Spinal Treatment Guidelines and because the treatment was not medically necessary.
9. After unsuccessfully resubmitting the claims, Provider filed a Request for Medical Dispute Resolution with the Commission’s Medical Review Division (MRD).
10. The MRD denied the request on the grounds that the Provider’s documentation did not show that the services were medically necessary to treat the compensable injury.
11. Provider filed a timely request for hearing.
12. Notice of the hearing was issued April 5, 2002.
13. 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.
14. The hearing was convened October 8, 2002, with ALJ Lilo D. Pomerleau presiding. William Maxwell appeared for Provider, and Donald W. York appeared for the Carrier. The Commission did not participate in the hearing. The hearing was adjourned the same day, but the record was kept open until October 22, 2002, for the submission of relevant citations to statute and rules.
15. Claimant’s October 2, 2002 MRI of the lumbar spine does not show any evidence of disc herniation.
16. Claimant received approximately six weeks of treatment after the date of his injury and before receiving the disputed services.
17. Claimant has showed relatively no overall signs of improvement of pain relief or range of motion after the disputed treatment and/or services.

IV. Conclusions of Law

1. 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.
2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. §413.031(k) and Tex. Gov’t Code Ann. ch. 2003.
3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
4. Petitioner, the party seeking relief, 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 reasonable required by the nature of the injury as and when needed. Tex. Lab. Code Ann. § 408.021(a).
6. Based on the above Findings of Fact and Conclusions of Law, Provider’s request for reimbursement for the disputed services referenced in Finding of Fact No. 5 should be denied.

ORDER

IT IS, THEREFORE, ORDERED that First Rio Valley Medical, P.A.’s request for reimbursement for the sessions provided from October 3 through October 21, 2000 totaling $3,764.00 is denied.

Signed this 20^th of December, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

LILO D. POMERLEAU
Administrative Law Judge

1. Provider Ex. 1 (certified record) at 140.↑
2. Id.↑
3. Id. at 142.↑
4. Id.↑
5. Id. at 183.↑
6. Id. at 187.↑
7. Id. at 4,5.↑
8. Texas Workers Compensation Act (Act), Tex. Lab. Code Ann. § 401.011.↑
9. Spine Treatment Guideline Preamble at 30 (Rule effective June 1, 1995).↑
10. Provider Ex. 1 (certified record) at 114.↑
11. Id. at 113.↑
12. See Id. at 162a-182.↑