DECISION AND ORDER

The issue in this case is whether Argonaut South Insurance Company (Carrier) should reimburse Waco Ortho Rehab (Provider) for services rendered to the Claimant from October 16, 2001 to May 9, 2002. The Administrative Law Judge (ALJ) finds that the Provider is entitled to reimbursement in part.

Factual Background

The Claimant sustained an on-the-job injury on________, when he stepped on a rock and twisted his knee and his low back. Shortly after beginning therapy with the Provider in October of 2001, an MRI revealed a torn meniscus of the left knee, which required arthroscopic surgery in November of 2001.

From October 16, 2001 until May 9, 2002 the Claimant received extensive treatment from the Provider, including muscle testing, range of motion testing, chiropractic modalities and physical therapy. The specific services at issue are set forth in the table provided by the medical review division.

An independent review organization (IRO) determined that chiropractic services provided between January 28, 2002 and May 9, 2002 were not medically necessary because the Claimant’s condition did not improve after January 11, 2002. The Medical Review Division, in a separate decision reviewed the remainder of the services at issue and found that muscle testing and range of motion testing billed on October 16, 2001 and January 11, 2001 should have been included in the charge for the office visit. The MRD issued a decision detailing both its findings and those of the IRO and this matter addresses both the findings of the IRO and the MRD. The ALJ finds that certain of the services should have been reimbursed as is set forth below.

Discussion

The Provider argues that all of the services were provided in accordance with the medical fee guideline (MFG)^[1] or were medically necessary and reasonable to treat the Claimant’s compensable injury.

Specifically, the Provider points to documentation in the record substantiating the performance of muscle and range of motion testing and the fact that the testing was performed by Craig Cernosek, D.C. and not a physical or occupational therapist. The Provider also maintains that all of the chiropractic and physical medicine services rendered were necessary. The Provider relies on the improvement demonstrated in the documentation, specifically pointing to the results of the muscle and range of motion testing. Further, the Provider believes the Claimant’s return to full-time work demonstrates the necessity of the treatments provided. In support of its position, the Provider offered the testimony of David Bailey, D.C., owner of the clinic, who reviewed the Claimant’s treatment records, but did not provide any of the underlying treatment to the Claimant.

The Carrier did not provide any witnesses and relied upon the record and the rational of the IRO and the MRD. The record also contains a peer review performed by Mike O’Kelley, D.C. that found that the services provided were excessive to treat the Claimant’s injury. Specifically, Dr. O’Kelley believed that chiropractic therapy and rehabilitation were medically necessary until six weeks after the surgery, roughly December 21, 2001. Dr. Kelley did not believe that the extensive range of motion testing was warranted, and thought that it should be limited to certain circumstances. Further, he believed that range of motion testing is standardized and should be included in the cost of an office visit. Additionally, he did not believe that muscle testing should be randomly performed and is never appropriately applied in the acute phase following a trauma, because acute can skew findings due to the presence of pain and poor function and, therefore, is not a reliable indicator of progress.. Carrier Ex. 1 at 4.

Muscle Testing

The ALJ finds that the muscle testing provided on January 28, February 15 and 26, 2002 was not medically necessary. The Provider testified that the testing is important to discern the progress of the Claimant; however, in light of the criticism raised by the peer review report, the Provider failed to explain why extensive muscle testing is necessary to gauge the progress of the Claimant or why it should be assumed that it was accurate during the acute phase of treatment. The ALJ finds that the Provider did not meet its burden to show that these services were appropriate and medically necessary.

The ALJ also denies payment for the muscle testing performed on October 16, 2001 because the Provider did not provide start and stop times as is required by the MFG.^[2] The ALJ notes that

the record does not contain any treatment notes for this date of service, only the test result, which does not reflect the time spent on the testing.

Range of Motion Testing

The ALJ approves reimbursement for the range of motion testing provided on October 16, 2001 and January 11, 2002. The Carrier denied the claim as it believed that range of motion testing is included within an office visit and should not be billed separately. The fee guidelines do not, however, support that position. The documentation reflects that the testing was performed by the Dr. Cernosek, and not a physical therapist, in accordance with the requirements for reimbursement contained in the MFG.

The ALJ approves payment of the range of motion testing performed on February 26, 2002. The peer review report raised good questions about the need for computerized range of motion testing; however, the MFG provides for a flat reimbursement level for all range of motion testing whether computerized or not, so the Carrier’s concerns are not relevant in this matter.

Chiropractic and Physical Medicine Services

The ALJ finds that the chiropractic and physical medicine services provided on January 30, February 4, 6, 8, 11, 13, 18, 22, April 4, and May 9, 2002 were medically necessary. The peer reviewer found that there was limited progress as a result of the treatment. The Provider relies primarily upon the results of the diagnostic testing performed. However, it is not necessary for the Provider to show that the treatment achieved these goals, because necessity should be analyzed based upon the information available prior to treatment. Progress, however, indicates that treatment is helping the Claimant and should be continued.

In reviewing the documentation the ALJ finds that the treatment appears to have been necessary to treat the Claimant’s pain and aid him in returning to work. Ten sessions during this time period did not appear excessive in relation to the extent of his complaints and the apparent progress that he was making toward his goal of returning to work full-time without significant restrictions. The ALJ therefore finds that the treatment was medically necessary and should be reimbursed.

III. Findings of Fact

1. The Claimant sustained an on-the-job injury on________, when he stepped on a rock and twisted his knee and his low back.
2. Argonaut South Insurance Company (Carrier) denied payment for treatment rendered from September 24, 2001 to October 19, 2001. The denial codes were primarily “V” (not medically necessary with peer review) and “F” (related to fee guidelines).
3. The Waco Ortho Lab (Provider) requested medical dispute resolution from the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission. An Independent Review Organization (IRO) decision found that the chiropractic services rendered between January 30, 2002 and May 9, 2002 were not medically necessary. The MRD found that documentation was insufficient to support reimbursement for diagnostic testing rendered between October 16, 2001 and January 11, 2002.
4. The Provider appealed the decisions of the IRO and the MRD.
5. Notice of the hearing was sent April 29, 2003. 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.
6. The hearing was convened on April 15, 2003 with Administrative Law Judge (ALJ) Janet Dewey presiding and representatives for the Carrier and Provider participating and the record closed the same day.
7. From October 16, 2001 until May 9, 2002 the Claimant received extensive treatment from the Provider, including muscle testing, range of motion testing, chiropractic modalities and physical therapy.
8. Shortly after beginning therapy with the Provider in October of 2001, an MRI revealed a torn meniscus of the left knee, which required arthroscopic surgery in November of 2001.
9. The Provider did not document start and stop times for the muscle testing performed on October 16, 2001.
10. Muscle testing provided on January 28, February 15 and 26, 2002 was unnecessary to gauge the progress of the Claimant and the accuracy of the results are questionable because the testing was performed during the acute phase of the injury.
11. Craig Cernosek, D.C. performed range of motion testing on October 16, 2001, January 11 and February 26, 2002. The testing was medically necessary.
12. The Claimant made progress through out his treatment and returned to work on a full time basis.
13. The treatment provided on the ten dates of service in question (January 30, February 4, 6, 8, 11, 13, 18, 22, April 4, and May 9, 2002) was necessary to treat the Claimant’s pain and aid him in returning to work.

IV. Conclusions of Law

1. 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 (Vernon 2000).
2. The Provider timely filed its request for a hearing as specified in 28 Tex. Admin. Code (TAC) § 148.3.
3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §2001.052.
4. The Provider did not comply with 1996 Medical Fee Guideline, Medicine Ground Rule, I E 2 and 3 and explanation of CPT code 97750 (muscle testing) adopted pursuant to 28 TAC § 134.201.
5. Muscle testing provided on February 26, 2002 was not medically necessary.
6. Range of motion testing provided on October 16, 2001 and January 11, 2002 was provided in accordance with the MFG, Medicine Ground Rule, I A 8 and I E 3.
7. Range of motion testing provided on February 26, 2002 was medically necessary.
8. The Provider is entitled to reimbursement for chiropractic and physical medicine services provided on January 30, February 4, 6, 8, 11, 13, 18, 22, April 4, and May 9, 2002

ORDER

IT IS, THEREFORE, ORDERED that Argonaut South Insurance Company shall reimburse the Waco Ortho Rehab for range of motion testing performed on October 16, 2001, January 11 and February 26, 2002 as well as chiropractic and physical medicine services performed on January 30, February 4, 6, 8, 11, 13, 18, 22, April 4, and May 9, 2002. Reimbursement for all other services is denied.

Signed August 11^th, 2003

STATE OFFICE OF ADMINISTRATIVE HEARINGS

JANET R. DEWEY
Administrative Law Judge

1. 1996 Medical Fee Guideline, Medicine Ground Rules, II. E. at 37.↑
2. See MFG, Medicine Ground Rules, I E 2 and 3 and explanation of CPT code 97750 (muscle testing), which references the reimbursement requirements for functional capacity evaluations and thereby requires the Provider to include start and stop times for muscle testing as well as functional capacity evaluations.↑