DECISION AND ORDER

American Zurich Insurance Company (Zurich) appealed a Texas Workers Compensation Commission (Commission) Medical Review Division (MRD) decision that it should pay for chiropractic services provided by Lemmonwood Chiropractic (Lemmonwood). Zurich denied the claims based on a peer review saying the services were medically unnecessary. Lemmonwood argued that the claim should be paid because the treating chiropractor’s opinion was superior to a review of documents by a doctor who did not examine the patient. This proposal concludes the services were medically necessary.

I. Procedural History

The State Office of Administrative Hearings (SOAH) has authority to issue a decision and order under Tex. Lab. Code Ann. (the Act) §413.031(d) and Tex. Gov’t Code Ann. ch. 2003.

A hearing convened on November 4, 2002, with the undersigned Administrative Law Judge (ALJ) presiding. Attorney Rebecca Strandwitz represented Zurich. Lemmonwood did not appear and was not represented. Notice of the hearing was sent to Lemmonwood at its address of record as shown on the MRD order.^[1] All other matters concerning notice and jurisdiction are addressed in the findings of fact and conclusions of law. The record closed on November 4, 2002.

II. Right To Health Care

Employees have a right to necessary health treatment under the Act, §§ 408.021 and 401.011. Section 408.021 of the Act provides:

(a)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 provides that health care includes “all reasonable and necessary medical . . . services.”

III. Discussion

Claimant_____ was injured on_________, during his employment as a machine operator, while pulling a trash can filled with scrap metal weighing about 100 pounds. He sought care with Lemmonwood and Gregory Davidovich, D.C., who provided service beginning on July

17, 2001. The disputed dates of service are October 22, 2001, and October 30, 2001, for which Dr. Davidovich charged $96.00, or $48.00 per service. He recorded the services under CPT Code 99213.^[2] Zurich denied payment under “Code V,” indicating unnecessary treatment based on a peer review.

As Appellant, Zurich has the burden of proof. 28 TAC §148.21(h).

Lemmonwood

In a letter contained in the certified record,^[3] Lemmonwood argued that Dr. Davidovich’s opinion on the necessity of services should prevail over a peer review performed by James Hood, M.D., because Dr. Hood never saw the patient.^[4]

Dr. Davidovich wrote on October 22, 2002, that the Claimant continued to complain of sharp, stabbing mid-back pain, including pain in the mid and lower thoracic spine with palpation. He said the Claimant’s thoracic myelogram revealed thoracic disc disruption.^[5] On October 30, 2002, Dr. Davidovich wrote that the Claimant continued to have pain, his MRI showed evidence of thoracic disc herniation with possible cord compression, and Lemmonwood would try to get him approved for a month of active physical therapy at a rehabilitation center.^[6]

In a September 13, 2001, letter to Dr. Davidovich, Paul A. Vaughan, M.D., an orthopedic surgeon, wrote that the Claimant’s thoracic spine MRI Ashows that he does have a herniated disk at T9-T10 which is a 5 mm right paracentral herniation . . . . I would like to get a thoracic myelogram CT scan to further assess the amount of cord compression at T9-T10 from his disk herniation.”^[7]

An October 8, 2001, CT scan of a thoracic myelogram performed by Dee L. Martinez, M.D., a radiologist, showed a “moderate sized 4 MM right paracentral disk protrusion at T9-T10 with the disk material impinging upon the thecal sac, contacting the anterior surface of the thoracic spinal cord . . . .”^[8]

B. Zurich

Zurich cited a November 1, 2001, peer review from Dr. Hood, an orthopedic surgeon, who wrote that an August 17, 2001, magnetic resonance imaging (MRI) of the lumbar spine and an MRI of the thoracic spine showed no evidence of disk herniation. He said the lumbar MRI showed Aphysiologically normal findings.”

Dr. Hood concluded the patient was at maximum medical improvement (MMI) as of October 15, 2001. He said he thought the Claimant’s symptoms would resolve in time with a good home-exercise program.^[9]

Zurich also cited a December 14, 2001, peer review from Mike O’Kelley, D.C., opining that medical services were necessary from July 12, 2001, through September 13, 2001, except for the passive care provided throughout the entire period. He said there should have been no more than two weeks of post-injury passive care. He argued Dr. Davidovich’s notes do not show progress and cited the Spine Treatment Guideline as requiring a demonstration of functional gains and ongoing progress in pain reduction and return to normal activities. He indicated the thoracic MRI and myelogram revealed some minor disc pathology in the thoracic spine.^[10]

Zurich cited a March 29, 2002, letter from Mark A. Doyne, M.D., an orthopedic surgeon, opining there was no need for ongoing formal rehabilitation services or chiropractic treatment after March 29, although up to six physician visits per year for medication management might be necessary. Dr. Doyne indicated that testing showed a four millimeter “paracentral disc herniation which may or may not have been related to the work injury.”^[11]

Zurich pointed out that Dr. Hood said the tests revealed no herniated disks and the number of chiropractic visits were excessive. It cited Dr. Hood’s opinion that the Claimant reached MMI by October 15, 2001, and should have been maintained on a home exercise program. It also cited Dr. Hood’s statement that the tests showed physiologically normal findings and that Dr. Doyne’s opinion that a disk herniation might or might not be related to the injury. It stressed Dr. O’Kelley’s opinion that passive care after the first two weeks post-injury was not indicated. It contended the office visits at issue did not demonstrate a medical benefit.

Analysis

The ALJ concludes the services were medically necessary and should be paid.

Contrary to Zurich’s contentions, one of its primary witnesses, Dr. Hood, indicated the services and treatments were medically necessary. In his November 1, 2001, letter, he said the medical services, treatments, and diagnostics were medically necessary “up to this point.” He also said the length and frequency of the treatment was “more or less” appropriate. He indicated the 28 chiropractic sessions were “a bit on the excessive side, but not enough to quibble about.”^[12]

Dr. Hood’s statements were made even though he found the Claimant reached MMI on October 15, 2001, and despite his belief that the Claimant did not suffer from a thoracic spine disk herniation.

It is notable that Dr. Hood was Zurich’s expert. Although not strongly stated, his statements lend considerable support to Lemmonwood’s claim.

Contrary to Dr. Hood’s opinion, Drs. Davidovich, Vaughan, Martinez, and Doyne all believed the Claimant had a disk herniation. The ALJ concludes that the Claimant had a herniated right paracentral disk protrusion at the T9-T10 level of his thoracic spine with the disk impinging on the thecal sac.

The only doctor stating unequivocally that the services were not necessary was Dr. O’Kelley. Dr. Davidovich obviously thought they were necessary. As indicated above, Dr. Davidovich’s opinion was supported by Dr. Hood.

IV. Findings of Fact

1. All parties received not less than 10-days notice of the hearing, which contained a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing would be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
2. On_______, the Claimant,________., suffered a compensable injury working as a machine operator while pulling a trash can of scrap metal weighing about 100 pounds.
3. The Claimant sought care with Lemmonwood and Gregory Davidovich, D.C., who provided service beginning on July 17, 2001.
4. The disputed services are for October 22, 2001 and October 30, 2001, for which Dr. Davidovich charged $96.00, or $48.00 per service.
5. The services were for office or other outpatient visits for the evaluation and management of an established patient.
6. The Claimant had a herniated right paracentral disk protrusion at the T9-T10 level of his thoracic spine with the disk impinging on the thecal sac.
7. The Claimant was having sharp, stabbing mid-back pain in his thoracic spine at the time of the services described in Findings of Fact Nos. 4 and 5.
8. The length and frequency of the treatments and services through October 30, 2001, were appropriate.
9. The October 22, 2001, and October 30, 2001, services provided by Dr. Davidovich were reasonably required by the nature of the Claimant’s injury.
10. The October 22, 2001, and October 30, 2001, services provided by Dr. Davidovich were reasonable and necessary medical services.

V. Conclusions of Law

1. The State Office of Administrative Hearings 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.
2. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §2001.052.
3. Zurich has the burden of proof in this matter. 28 Tex. Admin. Code §148.21(h).
4. Zurich failed to carry its burden of proof.
5. The October 22, 2001, and October 30, 2001, services were medically necessary. Tex. Lab. Code Ann. §§ 408.021 and 401.011.
6. Lemonwood’s claim for reimbursement for the October 22, 2001, and October 30, 2001, services should be paid.

ORDER

IT IS, THEREFORE, ORDERED that American Zurich Insurance Company pay Lemmonwood Chiropractic $96.00 for services performed for Claimant_____ on October 22, 2001, and October 30, 2001.

Signed this 21^st day of November, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

James W. Norman
Administrative Law Judge

1. Administrative notice is taken of the notice of hearing issued by the Commission on September 16, 2002.↑
2. The Commission-adopted Medical Fee Guideline describes CPT code 99213 as “Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: an expanded problem focused history; an expanded problem focused examination; medical decision making of low complexity.” 34 Tex. Admin. Code (TAC) § 134.201.↑
3. Ex. 1.↑
4. Ex. 1 at 6.↑
5. Ex. 1 at 11.↑
6. Ex. 1 at 13.↑
7. Ex. 1 at 21.↑
8. Ex. 1 at 23.↑
9. Ex. 1 at 18.↑
10. Ex. 2 at 6.↑
11. Ex. 2 at 9.↑
12. Ex. 1 at 17.↑