DECISION AND ORDER

Brian Randall, D.C. (Petitioner), appealed the June 17, 2003, Findings and Decision of the Texas Workers’ Compensation Commission (Commission) acting through Envoy Medical Systems, L.L.C., an Independent Review Organization (IRO), on June 6, 2003, denying reimbursement for services provided to injured worker ___ (Claimant) between May 15, 2002, and June 20, 2002.^[1]

After considering the evidence and arguments of the parties, the Administrative Law Judge (ALJ) concludes that Liberty Mutual Insurance Company (Respondent) is liable for reimbursing Petitioner the sum of $1531.00, plus any applicable interest, for the services in issue.

I. DISCUSSION

The hearing convened on November 10, 2003, with ALJ Howard S. Seitzman presiding. Petitioner appeared pro se. Respondent appeared through its counsel, Charlotte Salter. Petitioner testified and Thomas B. Sato, D.C., testified for Respondent. The hearing concluded and the record closed that day. Neither party objected to notice or jurisdiction.

Claimant suffered a compensable, work-related injury when she slipped on a wet floor on ___, and developed lower back pain. Claimant received physical therapy and chiropractic treatments with Brent Powell, D.C., but the pain persisted. On August 30, 2001, Claimant underwent postereolumbar interbody fusions with postereolateral fusions with instrumentation performed by Mark McDonnell, M.D. Despite the lumbar fusion with instrumentation, Claimant continued to experience severe pain. Dr. McDonnell advised Claimant that the pain would decrease. On March 19, 2002, Dr. McDonnell recommended that the Claimant “stick out the therapy” and return for evaluation in six months. Dr. McDonnell did note that Claimant might need hardware removal. On March 21, 2002, when Claimant consulted Petitioner, who took over Dr. Powell’s practice, Petitioner was not aware of Dr. McDonnell’s March 19, 2002 report. Petitioner suspected a “failed spine surgery Workers’ and referred Claimant to Son Nguyen, M.D., for a consultation and an MRI. An April 5, 2002 MRI suggested a left interbody cage was compressing an L5 nerve root. Valerie Drnovsek, M.D., the radiologist who interpreted the MRI, requested confirmation of a left L5 radiculopathy. Petitioner considered the MRI finding significant and as of April 15, 2002, stopped therapy pending Claimant seeing Dr. McDonnell.

On May 9, 2002, Petitioner noted in Claimant’s medical file that he had spoken with Dr. McDonnell about Claimant’s condition. Dr. McDonnell indicated he had reviewed the MRIs and examined Claimant. The surgeon opined that (1) “the radiologist had over read the films;Workers’ (2) the cage had not slipped posteriorly; (3) there was no compression on the L5 nerve root sleeve; and (4) it was safe for Claimant to continue with her physical therapy. Petitioner resumed Claimant’s physical therapy program but decreased the frequency to twice a week and proposed to perform a functional capacity evaluation after four weeks of therapy.

On May 20, 2002, Petitioner noted the throbbing pain in Claimant’s lower back continues and that it “shoots into her right leg.Workers’ On June 4, 2002, Dr. McDonnell recommended removal of the hardware and noted that he had discussed with Claimant that a repeat instrumentation of the fusion might be required. Dr. McDonnell notes that he discussed with Claimant, through a translator, the risks associated with the procedure including death, paralysis, infection, bleeding, transfusion, pseudoarthrosis, hardware failure, failure of the procedure to relieve the symptoms, spinal fluid leak, unforeseen medical circumstances (including thrombosis and pneumonia), and the possible need for additional surgery.

On June 6, 2002, Petitioner’s medical notes indicated Claimant had questions regarding Dr. McDonnell wanting to perform a second surgery to replace the instrumentation and that a consultation with Dr. Nguyen was recommended. Petitioner’s next visit with Claimant occurred on June 20, 2002. By that time, Dr. McDonnell had scheduled Claimant’s hardware removal surgery for July 18, 2002, and Dr. Nguyen had scheduled Claimant for an injection on July 8, 2002. Petitioner also notes that Claimant’s range of motion has decreased since therapy ceased. On June 30, 2002, Petitioner recommended a functional capacity examination (FCE).

On August 29, 2002, Petitioner observed that Claimant was trying to avoid surgery by receiving injections from Dr. Nguyen. Resumption of physical therapy was recommended by Dr. Nguyen. Claimant continued with Dr. Nguyen for pain management. On December 5, 2002, Guy R. Fogel, M.D., examined Claimant, discussed with her the risks of surgery; including complications, morbidity and mortality, and he noted that Claimant seemed “very apprehensive about any surgery. Workers’

Claimant finally had surgery on March 6, 2003.

Dr. Sato concluded that Claimant received some 60 post-surgical treatments from Dr. Powell premised on approximately three times per week beginning October 19, 2001, and that no treatment was medically necessary from March 11, 2002 and beyond. Dr. Sato opined that once Petitioner determined that the interbody cage was causing the pain, physical therapy should have ended regardless of the Claimant’s desires.

Dr. Sato’s April 9, 2002 peer review, upon which Respondent relied in denying Petitioner’s claims, does not consider or discuss the possibility that the interbody cage was causing the pain. Nor does Dr. Sato’s report discuss or consider Dr. McDonnell’s discounting of that theory and Dr. McDonnell’s recommendation of continued therapy. Because Dr. Sato’s April 9, 2002 peer review failed to consider these critical facts, it is of no assistance.

The treatments in issue occurred between May 15, 2002, and June 20, 2002. Petitioner made the correct diagnosis regarding the cause of Claimant’s post-surgical pain in late-March of 2002. The April 5, 2002 MRI and the radiologist’s interpretation of that MRI confirmed Petitioner’s diagnosis. The surgeon, Dr. McDonnell, apparently disagreed with the diagnosis and recommended continued treatment. Not until June 4, 2002, does Dr. McDonnell evidence a change in opinion and an intention to surgically remove the hardware. Given that the first surgery was unsuccessful and given the June 4, 2002 warnings from Dr. McDonnell about the risks of a second surgery, including complications, morbidity and mortality communicated to Claimant via translation, it is understandable why Claimant had concerns and desired, if possible, to avoid a second surgery. Claimant discussed these concerns with Petitioner two days later on June 6, 2002, and Petitioner recommended a consultation with Dr. Nguyen. It is not until this June 6, 2002 office visit that Petitioner learns of Dr. McDonnell’s decision to perform a second operation.

Respondent, relying upon the IRO decision, contended the treatments were reasonable until the diagnostic test-the April 5, 2002 MRI-was performed and the recommendation for surgery was made. Both the IRO and Respondent set that date as April 5, 2002, the day the MRI was performed. However, their analysis ignores the fact that the surgeon disagreed with the interpretation of the MRI and did not recommend surgery until June 4, 2002.^[2] The ALJ rejects Respondent’s position that Petitioner should have ignored and disregarded Dr. McDonnell. Thus, if one adopts the Respondent’s theory of the case, the $75.00 office visit on June 20, 2002, for an evaluation is the only disputed visit with Petitioner that occurs after the April 5, 2002 MRI and after Petitioner is aware that the surgeon is recommending surgery. The evidence proves the June 20, 2002 office visit was reasonable and medically necessary.

Petitioner acted appropriately and responsibly under the circumstance presented, and given the facts, the services provided by Petitioner from May 15, 2002, through June 20, 2002, were reasonable and medically necessary.

Petitioner met his burden of proof and is entitled to recover $1531.00, plus any applicable interest, for the services provided to Claimant from May 15, 2002, through June 20, 2002.

II. FINDINGS OF FACT

1. ___ (Claimant) suffered a compensable, work-related injury when she slipped on a wet floor on ___, and developed lower back pain. Claimant received physical therapy and chiropractic treatments with Brent Powell, D.C., but the pain persisted.
2. On August 30, 2001, Claimant underwent postereolumbar interbody fusions with postereolateral fusions with instrumentation performed by Mark McDonnell, M.D.
3. Claimant continued to experience severe pain and on March 19, 2002, Dr. McDonnell recommended that the Claimant continue therapy and return for evaluation in six months.
4. On March 21, 2002, when Claimant consulted Brian Randall, D.C. (Petitioner), who took over Dr. Powell’s practice, Petitioner was not aware of Dr. McDonnell’s March 19, 2002 report.
5. Petitioner suspected a failed spine surgery and referred Claimant to Son Nguyen, M.D., for a consultation and an MRI.
6. An April 5, 2002 MRI suggested a left interbody cage was compressing an L5 nerve root. Valerie Drnovsek, M.D., the radiologist who interpreted the MRI, requested confirmation of a left L5 radiculopathy.
7. Petitioner considered the MRI finding significant and, as of April 15, 2002, stopped therapy pending Claimant seeing Dr. McDonnell.
8. On May 9, 2002, Petitioner noted in Claimant’s medical file that he had spoken with Dr. McDonnell about Claimant’s condition and that Dr. McDonnell, upon reviewing the MRI and examining Claimant, believed the radiologist was in error, that the cage had not slipped posteriorly, that there was no compression on the L5 nerve root sleeve and that it was safe for Claimant to continue with her physical therapy.
9. Petitioner resumed Claimant’s physical therapy program but decreased the frequency to twice a week and proposed performing a functional capacity evaluation after four weeks of therapy.
10. Claimant’s treatments resumed on December 1, 2000, when she began seeing Salvador Baylan, M.D. Her symptoms included sharp pain in the lower back and into the buttocks.
11. On June 4, 2002, Dr. McDonnell recommended removal of the hardware and cautioned Claimant, through a translator, that the risks associated with the procedure included death, paralysis, infection, bleeding, transfusion, pseudoarthrosis, hardware failure, failure of the procedure to relieve the symptoms, spinal fluid leak, unforeseen medical circumstances (including thrombosis and pneumonia), and the possible need for additional surgery.
12. On June 6, 2002, Claimant questioned a second surgery to replace the instrumentation and Petitioner recommended a consultation with Dr. Nguyen.
13. On June 20, 2002, Petitioner’s conducted an office visit with Claimant. By that time, Claimant’s hardware removal surgery was scheduled for July 18, 2002, and Dr. Nguyen had scheduled Claimant for pain relief injections on July 8, 2002.
14. Claimant ultimately had surgery on March 6, 2003.
15. Liberty Mutual Insurance Company (Respondent) denied reimbursement for services provided by Petitioner to Claimant between May 15, 2002, and June 20, 2002.
16. Respondent relied upon an April 9, 2002 peer review by Thomas B. Sato, D.C. in denying Petitioner’s claims.
17. Dr. Sato’s April 9, 2002 peer review failed to consider critical facts and is of no assistance.
18. Petitioner acted appropriately and responsibly when he did not ignore or disregard Dr. McDonnell’s opinion and continued physical therapy.
19. Respondent contended the treatments were reasonable until the diagnostic test, the April 5, 2002 MRI, was performed and the recommendation for surgery was made.
20. Petitioner learned of Dr. McDonnell’s June 4, 2002 decision to perform a second operation during a June 6, 2002 office visit with Claimant.
21. The $75.00 office visit on June 20, 2002, for an evaluation is the only disputed visit with Petitioner that occurs after the April 5, 2002 MRI and after Petitioner is aware that the surgeon is recommending surgery.
22. Based upon a peer review, Respondent denied reimbursement for services provided by Petitioner to Claimant between May 15, 2002, and June 20, 2002.
23. Petitioner sought medical dispute resolution through the Texas Workers’ Compensation Commission (Commission). The matter was referred to Envoy Medical Systems, L.L.C., an Independent Review Organization (IRO) designated by the Commission for the review process. The IRO determined that the disputed services were not medically necessary.
24. Petitioner then requested a hearing before SOAH. The hearing convened on November 10, 2003, with Administrative Law Judge Howard S. Seitzman presiding. Petitioner appeared pro se. Respondent appeared through its appeared through its counsel, Charlotte Salter. The hearing concluded and the record closed that day.
25. The amount in dispute is $1531.00, plus any applicable interest.

III. CONCLUSIONS OF LAW

1. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to the Texas Workers’ Compensation Act, specifically Tex. Labor Code Ann. §413.031(k), and Tex. Gov’t Code Ann. ch. 2003.
2. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001 and 28 Tex. Admin. Code ch. 148.
3. The request for a hearing was timely made pursuant to 28 Tex. Admin. Code § 148.3.
4. Adequate and timely notice of the hearing was provided according to Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
5. Petitioner has the burden of proof in this matter. 28 Tex. Admin. Code §§ 148.21(h) and 133.308(w).
6. Petitioner established, by a preponderance of the evidence that the services provided by Petitioner to Claimant from May 15, 2002, through June 20, 2002, were reasonable and medically necessary and Respondent, therefore, is liable for reimbursing Petitioner for them.

ORDER

THEREFORE IT IS ORDERED that Liberty Mutual Insurance Company reimburse Brian Randall, D.C., the sum of $1531.00, plus any applicable interest, for services provided by Petitioner to Claimant from May 15, 2002, through June 20, 2002.

Signed January 8, 2004.

HOWARD S. SEITZMAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. In the June 6, 2003 IRO decision, the IRO determined that services provided on April 2 and 3, 2002, were medically necessary. That portion of the decision was not appealed and is, therefore, not discussed on this Decision and Order.↑
2. It should also be noted that Dr. Drnvosek’s interpretation of the April 5, 2002 MRI was not dictated or transcribed until April 6, 2002.↑