Your FREE and easy resource for all things Texas workers' compensation
At a Glance:
Title:
453-03-1258-m5
Date:
September 23, 2003
Status:
Retrospective Medical Necessity

453-03-1258-m5

September 23, 2003

DECISION AND ORDER

Both parties appealed a Texas Workers= Compensation Commission Medical Review Division (MRD) decision regarding treatment of a worker's left wrist. Prior to the hearing, the Provider, Waco Ortho Rehab, withdrew its appeal. In its case, TML Intergovernmental Risk Pool (the Carrier) characterized the Provider's services as not medically necessary because they were provided for treatment of a non-compensable medical condition, ganglion cysts, and also because they did not improve the claimant's work-related injury. As the Provider viewed the evidence, the services it provided before the cysts were diagnosed were medically necessary. With the exception of the first two office visits and certain treatments provided on those dates that totaled $368.33, this decision agrees with the Carrier and finds the services were not medically necessary.

I. Procedural History, Notice, And Jurisdiction

Notice and jurisdiction were not contested, and those issues are addressed only in the findings of fact and conclusions of law. The appeal hearing was held July 23, 2003, before the undersigned administrative law judge (ALJ). Attorneys Steven M. Tipton and Scott C. Hilliard represented the Carrier and the Provider, respectively. The record closed at the conclusion of the hearing.

II. Discussion

Compensability Issue

This appeal pertains to service dates July 6 through October 11, 2001. The worker injured her left wrist on__________, at a time when her employer was self-insured through the Carrier. A subsequent MRI showed that the claimant had ganglion cysts in the wrist, and the Carrier contested the compensability of the cysts.

On September 27, 2002, the Medical Dispute Resolution Officer (MDRO) issued a decision that contains both a rationale and a conditional rationale. The rationale states:

The MRD declines to order payment because the documentation presented for review does not clearly delineate the body area or extremity being treated. Documentation shows generalization of evaluations and does not indicate evaluation was specific to the compensable injury. Substantive and continued improvement over time from the treatment should be objectively documented. Through out [sic] the documented history of treatment the subjective, objective, assessment, plan, treatment and diagnosis= remains unchanged.

The conditional rationale adds:

. . . The [MRD] hereby directs the . . . [Carrier] to remit $2,395.33 plus all accrued interest due at the time of payment to the [Provider] within 20 days of a final determination that the underlying claim is compensable and/or that the injury extends to and includes the disputed body part, region, area, or medical condition at issue in this matter.

The MRD decision notes that a contested case hearing to resolve the compensability issue was set but does not mention an Appeals Panel decision regarding compensability, even though the Appeals Panel decision was actually issued before the MRD decision. On February 20, 2002, a hearings officer with the Commission's Appeals Panel determined that the wrist injury did not extend to and include a ganglion cyst of the same wrist. Consequently, the hearings officer ordered the Carrier to pay medical benefits for the left wrist injury but not for the ganglion cysts.[1] The Appeals Panel adopted the hearings officer's decision on April 30, 2002.[2]

Based on the conditional nature of the MRD decision and because it was issued after the Appeals Panel decision, the Carrier moved for summary disposition of the State Office of Administrative Hearings case, arguing that compensability issues remain in dispute. The MDRO failed to cite the Appeals Panel decision and the decision is not in the MRD record; consequently, the ALJ believes it more likely that the MDRO was not aware of the Appeals Panel decision. The wrist injury is compensable.

Because the Carrier is the appealing party, one would generally assume it has the burden of proof. However, the MDRO declined to order payment to the Provider based on that party's failure to prove treatment was provided specifically to the left wrist and resulted in substantive and continued improvement. Therefore, in the ALJ's opinion, the Provider bore the burden of proving those elements.[3]

  1. Medical Necessity of Provider's Treatment
  2. Concentra's Treatment

A physician's assistant associated with Concentra first treated the claimant on April 3, 2001, and decided to treat her with

. . . physical therapy and also have her wear a wrist splint. She is restricted from use of the left hand. She is started on Voltaren 75 mg. twice a day. She is going to return to the clinic on 04/06/01.[4]

Concentra later referred the claimant to orthopedic surgeon William E. Blair, Jr., for evaluation and treatment.

William E. Blair, Jr., M.D.

Called as a witness for the Carrier, Dr. Blair said he had treated conditions like the claimant's for thirty years. He first saw her on May 1, 2001, and she told Dr. Blair about injuring her left wrist in October 2000 and April 2001. She told him she had pain radiating up her forearm but not beyond her elbow. Dr. Blair examined her wrist and tested her strength and mobility. He determined that she had overloaded her triangular fibrous cartilaginous complex (TFCC), the area on the outside of the wrist, and diagnosed her with a minor wrist strain which involved the TFCC. Her problem was isolated to the ulnar aspect of the wrist B an area about the size of a fifty-cent coin, Dr. Blair testified.

Dr. Blair did not think it was necessary for the claimant to undergo therapeutic exercises or other passive treatment. He eventually prescribed a splint to support and stabilize her wrist; he also gave her an exercise squeezer. She continued to work while she was his patient.

Dr. Blair last treated the claimant on June 13, 2001. She had some radial ulnar deviation because of the use of the splint, but had no swelling, tenderness, or pain. Essentially, her injury had resolved. Further, she had normal nerve responses and wrist strength. Dr. Blair advised her to wean herself from using the splint and asked her to return in one month, and he thought he probably would discharge her from treatment at that time.

The claimant then changed treating doctors and began treatment with the Provider. Dr. Blair later evaluated the claimant at the Carrier's request and gave her a three-percent impairment rating because of her range-of-motion issues. Dr. Blair said the cysts probably were not related to the strain but could have been on the claimant's wrist for a long period of time.

In Dr. Blair's opinion, certain of the Provider's treatments were not necessary for the claimant, including myofascial release. That procedure is needed only when there are myofascial contractions based on an injury, such as a fracture, that results in a great deal of tissue destruction. In this case, the claimant was in a splint for a short period of time making myofascial release unnecessary. Also, joint mobilization would have increased the likelihood of further TFCC injury.

Report of Bill H. Berryhill, M.D.

At the Provider's request, Dr. Berryhill evaluated the claimant on August 28, 2001. According to his report, the claimant had specific tenderness along the ulnar aspect of the wrist in the area of the ulnar collateral ligament, but she had no significant swelling. While there was no evidence of crepitation or instability, the claimant told Dr. Berryhill that even mild, passive range of motion was painful. She had a negative Tinel's sign, no median nerve compression, and normal median, ulnar, and radial nerve motor function. Further, the claimant had no atrophy of the hypothenar muscles (the area just beyond the TFCC area), thenar area, or forearm muscles.[5]

The Provider

In the initial medical examination at the Provider's facility on July 6, 2001, the claimant reported Aleft wrist pain with pain in the fourth and fifth digit of the left hand.[6] The pain was rated as a five of ten. Craig Cernosek, D.C., who is associated with the Provider and was the claimant's treating doctor at the time, determined the claimant had strength deficits and deconditioned muscles in her wrist and needed exercise rehabilitation. He conducted range-of-motion tests on her wrist and used dynatron testing to compare strength in her left and right wrists. After evaluating her, Dr. Cernosek directed the claimant to stop working, and he decided to treat her with chiropractic management and physical medicine treatments three times a week for four to six weeks.

The following chart includes pertinent summary information for several treatment dates at the Provider's facility:

Date

Pain Level on a scale

of 1-10, before treatment

Pain Level on a scale of 1-10, after treatment

Other Points of Comparison

7-9-01[7]

not reported

not reported

reports new or different symptoms, requested extra time with doctor; had, at most, Amild difficulties . . . in personal care and headaches; 50% back disability; activities of daily living (ADL) interference at 4/5.[8]

7-10-01[9]

5

5

aching, throbbing, and constant sensations in her hands; no improvement in symptoms.

7-11-01[10]

5

5

was Ahurting all the time lately.

7-13-01[11]

5

6

no improvement in symptoms; 54% back pain disability; ADL disability 3/5.

7-18-01[12]

6

5

58% back pain disability score; could only lift very light weights; had restricted social life; felt better right after treatment, but reported fairly severe pain and said pain made it difficult for her to look after herself.

7-20-03[13]

5

not reported

had sharp, burning, stinging, and constant hand pain.

7-23-03[14]

5

5

was hurting more intensely and hurting all the time.

7-25-03[15]

6

5

60% back pain disability; very severe pain impairment with lifting, working, and sleeping; extremely severe problems with driving and recreation.

7-27-03[16]

not reported

5

pain was always present; had a larger area of pain; had decreased her daily activities.

7-30-03[17]

5

5

42% back pain disability; mild difficulties in standing and traveling; severe difficulty in social life; ADL interference at 4/5 in lifting and sleeping; no improvement in symptoms.

8-1-03[18]

6

6

ganglion cysts had been identified on MRI; had sharp, stinging, throbbing, and constant hand pain.

8-3-01[19]

6

6

had sharp, stinging, burning pain in her left wrist and hand, rated 7/10; no improvement in symptoms; 64% back pain disability.

The three ganglion cysts were identified in a July 24, 2001, MRI. One cyst was on the ulnar side of the wrist between the pisiform and the distal ulna, on the opposite (palmar) side of the wrist from the claimant's dorsal symptoms. The reviewing physician was uncertain whether or not the cyst related to the claimant's pain. Two other small ganglion cysts were noted, one between the radius and scaphoid (also on the palmar surface), and the third along the palmar aspect of the multangulars. No bony or obvious ligamentous abnormality was identified.[20]

On ugust 3, 2001, Dr. Cernosek interpreted the claimant's muscle strength testing in this way, AThese results show a need to initiate, modify and change the exercise rehabilitation program of progressive resistance exercises.[21] By August 21, 2001, the claimant's pain had not improved; she had gained strength as reflected in ADelorme strength testing but not in isometric muscle testing. Dr. Cernosek attributed her lack of pain improvement to the ganglion cysts and her participation in an aggressive exercise-rehabilitation program. He further noted an exacerbation of symptoms, which increased her pain levels. AIt is my opinion that the formation of the ganglion cysts hampered progress, Dr. Cernosek wrote.[22]

Parties= Arguments

As the Carrier noted, the Provider's treatment appeared to have made the claimant worse, not better. Also, the Carrier asserted, the claimant's symptoms were caused by the cysts. Her wrist strain had essentially resolved before the Provider treated her.

According to the Provider, it is entitled to payment because the cysts were not diagnosed until after some weeks of its treatment. In the Provider's initial evaluation, the diagnoses do not include ganglion cysts, and none of the initial treatment was specifically related to cysts. The Provider also characterized Dr. Blair as a biased witness because of his prior disagreements with Dr. Cernosek.

III. Applicable Law

n employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury, as and when needed. AHealth care includes all reasonable and necessary medical services. The employee is specifically entitled to health care 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.[23]

IV. Analysis

As the Provider's records reflect, the claimant had no pain improvement and other symptoms became worse with treatment. The medical records generally do not distinguish treatment for the compensable injury and other medical issues the claimant had, e.g., the ganglion cysts and back pain. Moreover, Dr. Cernosek himself recognized the exacerbation of symptoms and attributed them to the claimant's aggressive exercise-rehabilitation program and the cysts. The health care the claimant received in this case did not cure her left wrist strain, relieve her symptoms, promote her recovery, or enhance her employability.

Nevertheless, Dr. Cernosek was the claimant's treating doctor, and the initial evaluation and testing on July 6, 2001, focused on the wrist.[24] On the next treatment date, July 9, 2001, the claimant began reporting new or different symptoms, and she was given a back-pain disability rating. This indicates to the ALJ that treatment was beginning to expand beyond the wrist. Still, the ALJ believes this office visit is compensable because most of the discussion notes and the supplies provided (re-freezable ice packs, over-the-counter muscle relaxers to control muscle spasm and pain, and analgesic balm) appeared to be applicable to her wrist pain.

According to the Provider's table of disputed services, therapeutic exercises, myofascial release, and joint mobilization first began on July 10, 2001. As Dr. Blair testified, the latter two treatments are contraindicated for a TFCC injury. Moreover, the pain charts from that office visit included additional parts of the body -- first the arm and shoulder area and, later, the back. Services for those body parts are not reimbursable because they are beyond the scope of the compensable injury. In summary, the Provider is entitled to be paid only for the initial evaluation, the second office visit, and the related charges. Any reimbursement for treatment after July 9, 2001, is denied. For the treatment dates of July 6 and July 9, 2001, reimbursable charges totaled $368.33, and the ALJ orders the Carrier to pay those amounts to the Provider.

V. Findings of Fact

  1. On__________, a workers= compensation claimant sustained a work-related injury to her left wrist when her employer was self-insured through TML Intergovernmental Risk Pool (the Carrier).
  2. By May 1, 2001, the claimant had pain radiating up her forearm but not beyond her elbow.
  3. The claimant's injury was a minor wrist strain which involved the triangular fibrous cartilaginous complex (TFCC). Her problem was isolated to the ulnar aspect of the wrist B an area about the size of a fifty cent coin.
  4. By June 13, 2001, the claimant had some radial ulnar deviations because of her use of a prescribed splint, but she had no swelling, tenderness, or pain.
  5. When the claimant was first treated at Waco Ortho Rehab (Provider), on July 6, 2001, she had left wrist pain with pain in the fourth and fifth digit of the left hand, rated at a five on a one-to-ten scale.
  6. The Provider treated the claimant with, among other things, myofascial release, joint mobilization, and therapeutic exercises.
  7. Myofascial release is needed only when there are myofascial contractions based on an injury, such as a fracture, that results in a great deal of tissue destruction, and was unnecessary to treat the claimant's injury.
  8. Joint mobilization would have increased the likelihood of further TFCC injury and is contraindicated for an injury like the claimant=s.
  9. After being treated by the Provider, the claimant's pain increased and spread to other parts of her body, and she became less functional in daily-living activities.
  10. On July 24, 2001, an MRI of the claimant's left wrist showed three ganglion cysts.
  11. The cysts were not related to the claimant's wrist strain and are not compensable as work-related injuries.
  12. By August 28, 2001, after receiving several weeks of treatment from the Provider, the claimant had specific tenderness along the ulnar aspect of the wrist in the area of the ulnarcollateral ligament, and even mild, passive range of motion was painful.
  13. The claimant's failure to improve was attributable, at least in part, to the ganglion cysts and to her participation in the Provider's exercise rehabilitation program.
  14. Craig Cernosek, D.C., who is associated with the Provider, was the claimant's treating doctor.
  15. The following of the Provider's initial medical evaluation, testing, and related service charges on July 6, 2001, as well as the second office visit and related charges on July 9, 2001, focused primarily on the claimant's wrist injury:

Date

Service

CPT Code

Medical Fee Guideline Rate

7-6-01

comprehensive office visit/new patient

99205

$137

7-6-01

initial narrative

99080

70

7-6-01

range-of-motion measurements

95851

36

7-6-01

dynatron human performance test

97750

43

7-9-01

limited office visit/established patient

99213

48

7-9-01

large cryopack

99070

18.33

7-9-01

over-the-counter muscle

99070

6

7-9-01

analgesic balm

99070

8

Total

$368.33

  1. On September 27, 2002, a Medical Dispute Resolution Officer (MDRO) issued a decision that declined to order payment because the documentation presented for review did not clearly delineate the body area or extremity being treated and failed to document substantive and continued improvement over time.
  2. The MDRO also directed the Carrier to pay the Provider $2,395.33 within twenty days of a final determination that the underlying claim was compensable and that the injury extended to and included the disputed body part, region, area, or medical condition.
  3. Both parties timely appealed the MDRO's decision, but the Provider later withdrew its appeal.
  4. The Commission sent notice of the hearing on the appeal to all parties on December 6, 2002.
  5. The notice of hearing 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.
  6. The appeal hearing was held July 23, 2003, at the State Office of Administrative Hearings, and both parties were represented at the hearing.

VI. 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(k) and Tex. Gov=t Code Ann. ch. 2003.
  2. Both parties timely requested a hearing, as specified in 28 Tex. Admin. Code (TAC) ' 148.3.
  3. Proper and timely notice of the hearing was provided in accordance with Tex. Gov=t Code Ann. ' 2001.052 and 28 TAC ' 148.4.
  4. The Provider had the burden of proving its treatment was medically necessary for the compensable injury. 28 TAC ' 148.21(h).
  5. Except for the care provided July 6 and 9, 2001, the Provider's services were not medically necessary to treat the claimant's injury.
  6. The Provider should recover for services provided on July 6, and 9, 2001, in the amount of $368.33.

ORDER

It is ORDERED that TML Intergovernmental Risk Pool reimburse Waco Ortho Rehab the sum of $368.33.

Signed September 23, 2003.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

SARAH G. RAMOS
Administrative Law Judge

  1. Carrier's Ex. (CE) 2.
  2. CE 3.
  3. 28 Tex. Admin. Code ' 148.21(h).
  4. CE 7.
  5. CE 9.
  6. Provider's Ex. (PE) 1, p. 27.
  7. PE 1, p. 103.
  8. Four on a scale of one to five.
  9. PE 1, p. 104.
  10. PE 1, pp. 104-105.
  11. PE 1, p. 107.
  12. PE 1, p. 108.
  13. PE 1, p. 109.
  14. PE 1, pp. 109-110.
  15. PE 1, pp. 110-111.
  16. PE 1, p. 111.
  17. PE 1, p. 112.
  18. PE 1, p. 113.
  19. PE 1, p. 114.
  20. CE 8.
  21. PE 1, p. 92.
  22. PE 1, pp. 55-56.
  23. Tex. Lab. Code Ann. ' 401.011(19); Tex. Lab. Code Ann. ' 408.021.
  24. PE 1, pp. 27-36 and 103.
End of Document
Top