DECISION AND ORDER

East Texas Chiropractic (Provider) seeks reimbursement for office visits, physical medicine, physical education, travel, information analysis, team conference, and hospital initial observation (collectively, disputed services)^[1] for the dates of service from January 26, 2002, through September 26, 2002, for ________ (Claimant). Security National Insurance Company (Carrier) denied payment, stating that the disputed services were not medically necessary. Subsequently, Ziroc, certified as an independent review organization (IRO), determined that the disputed services were not medically necessary.^[2] Provider appealed the IRO’s decision, arguing that the disputed services were medically necessary and should be reimbursed.^[3] The Administrative Law Judge (ALJ) finds that the disputed services performed from January 26, 2002, through April 5, 2002, were medically necessary and should be reimbursed. The disputed services performed from April 9, 2002, through September 26, 2002, were not medically necessary and should not be reimbursed.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

On October 20, 2003, ALJ Michael J. O’Malley convened the hearing at the William P. Clements Building, 300 West 15^th Street, Austin, Texas. Carrier appeared through its attorney, William E. Weldon, and Provider appeared through its attorney, H. Douglas Pruett. After the evidence was presented, the record of the hearing closed on November 7, 2003, when the last closing argument was filed. There were no contested issues of jurisdiction or notice in this proceeding. Therefore, those matters are set out in the findings of fact and conclusions of law without further discussion here.

II. BACKGROUND, EVIDENCE, AND ANALYSIS

A. Background

On ________, Claimant suffered a compensable injury when he fell while moving a tire for a tractor trailer. Claimant began seeking treatment with Provider on December 27, 2001, and reported injuries to his mid and lower back. At that time, the pain radiated to Claimant’s lower extremities. Documentation showed positive orthopedic and neurological tests. As a result of the positive test results, MRIs were ordered. Based on the MRI results, Claimant began an initial course of passive treatment. Provider subsequently moved Claimant into an active therapy program, and it was at this time that Carrier began to deny further treatment.

B. Parties’ Positions and Evidence, and ALJ’s Analysis

Provider’s Position and Evidence

Provider relied on its medical documentation in evidence in this case and did not present a witness at the hearing. Provider notes that this is not a simple back injury. Provider explains that diagnostic testing showed disc lesions at multiple levels as well as concordant pain and possible neuropathy. According to Provider, although Claimant had been recommended for surgery, surgery was not an option for Claimant because there were lesions at multiple levels. Provider argues that the active therapy, specifically the aquatic therapy, improved Claimant’s functional ability, including an increase in his walking and exercise tolerance. Provider realizes, however, that Claimant’s pain level did not entirely decrease. For these reasons, Provider discontinued active therapy and resumed passive therapy. According to Provider, although Claimant did not experience permanent relief of his pain, he did have a reduction in pain during his daily visits.

With regard to the peer review performed by Stephen Tomko, B.S., D.C., Provider argues that no weight should be given his opinion because his analysis is not based on a complete review of the medical records; he never examined Claimant; and his opinion is contrary to the doctors who did examine Claimant.^[4]

Provider also disagrees with the examination performed by John P. Obermiller, M.D., on June 26, 2003. Provider notes that most of the disputed services were performed more than a year before his examination. Provider further notes that in Dr. Obermiller’s initial report, he makes no reference to the disputed services, nor does he refer to receipt of Provider’s medical records. In addition, Provider contends that Dr. Obermiller assesses the need for future chiropractic service but not the necessity of the disputed services involved in this dispute. Provider also claims that Dr. Obermiller did not establish any expertise that would allow him to opine on the necessity of the chiropractic services provided to Claimant.^[5]

Provider reaches similar conclusions on the peer review performed by Marvin Van Hal, M.D. Provider claims that Dr. Van Hal’s peer review was inadequate because he did not examine Claimant, failed to establish his expertise for reviewing Claimant’s condition, and addresses future treatment, not the disputed services involved in this case.^[6]

Carrier’s Position and Evidence

Carrier also relies on it medical records admitted in evidence and did present a witness in this case. Carrier argues that the treatment given by Provider did not promote recovery from the compensable injury and is therefore not medically necessary. Carrier claims that Provider should have sough alternative treatment options when the initial passive and active physical treatment failed to improve Claimant’s condition. Instead, according to Carrier, Provider reverted back to ineffective passive modalities. Carrier relies on the peer reviews of Drs. Tomko and Van Hal, and the physical examination performed by Dr. Obermiller.

According to Carrier, Dr. Tomko’s peer review showed that Provider continued a course of treatment that had already proved to be ineffective. Dr. Van Hal conducted a peer review and found that no regular course of treatment was reasonable and necessary. Dr. Obermiller physically examined Claimant on behalf of the Carrier. According to Carrier, Dr. Obermiller found no improvement in Claimant’s back since the date of injury despite extensive chiropractic care. Based on Dr. Obermiller’s examination, he recommended no further physical therapy or chiropractic care.

Carrier opines that Provider’s care was not appropriate medical care because Claimant still had high pain levels even after Provider’s chiropractic care. Carrier claims that Provider failed to explore alternative types of care despite reports that the current care was ineffective.

ALJ’s Analysis

The issue is whether the disputed services from January 26, 2002, through September 26, 2002, were medically necessary. The ALJ finds that Provider met its burden of proof for the disputed services provided between January 26, 2002, through April 5, 2002. It did not meet its burden of proof for the disputed services provided between April 9, 2002, through September 26, 2002.

Claimant was injured on ________, and began treatment with Provider on December 27, 2001. MRIs were performed and showed disc lesions at multiple levels. Because the disc lesions were at multiple levels, surgery was not an option for Claimant at that time. It was, therefore, reasonable and medically necessary for Provider to begin passive treatment to relieve Claimant’s pain. Provider treated Claimant conservatively on a daily basis with ultrasound, electrical stimulation, and ice on the lumbar spine. Provider also applied whirlpool and joint mobilization to the lumbar spine. The passive treatment relaxed Claimant’s muscle spasms and temporarily reduced his pain.

Because Provider determined that Claimant was improving with passive treatment, it decided to begin active treatment to determine if further relief could be achieved. Attempting active treatment is consistent with Carrier’s position that Provider should have tried alternative types of treatment. Provider placed Claimant in an aquatic program because it had less impact on the joints and muscles of the spine. Although Claimant improved functionally (walking further and tolerating further distances in the pool) with the aquatic therapy, permanent reduction in his pain level was not achieved. Because there was no permanent reduction in Claimant’s pain level, Provider altered Claimant’s treatment protocol and placed him back in passive therapy. After Provider discontinued the active treatment, Provider should have discontinued all treatment and referred Claimant to a spinal surgeon or other specialist to determine a course of treatment for Claimant. Because the passive treatment did not cure or relieve the effects naturally resulting from the compensable injury, it was not reasonable or medically necessary for Provider to attempt passive treatment again.^[7] Accordingly, the disputed services provided from January 26, 2002, through April 5, 2002, were reasonable and medically necessary to cure or relieve the effects naturally resulting from the compensable injury and should be reimbursed.^[8] The disputed services provided from April 9, 2002, through September 26, 2002, were not medically necessary and should not be reimbursed.

III. FINDINGS OF FACT

1. On ________, Claimant ________ (Claimant) suffered a compensable injury to his back when he fell moving a tire for a tractor trailer.
2. Security National Insurance Company (Carrier) insured Claimant on the date of the injury.
3. East Texas Chiropractic (Provider) began treating Claimant on December 27, 2001.
4. Claimant continued physical therapy with Provider until September 26, 2002.
5. As a result of Claimant’s injury, pain radiated to his lower extremities.
6. Diagnostic testing showed disc lesions at multiple levels.
7. Surgery was not an option for Claimant immediately following the injury because of the lesions at multiple levels.
8. As a result of Claimant’s back injury, Provider began passive treatment to relieve Claimant’s pain.
9. Provider treated Claimant conservatively on a daily basis with ultrasound, electrical stimulation, and ice on the lumbar spine. Provider also applied whirlpool and joint mobilization to the lumbar spine.
10. The passive treatment provided Claimant relief from his symptoms, relaxed his muscle spasms, and temporarily reduced his pain.
11. Because Provider determined that Claimant’s improvement with passive treatment was limited, it decided to begin active treatment to determine if further relief could be achieved.
12. Provider placed Claimant in an aquatic program because it had less impact on the joints and muscles of the spine.
13. Claimant improved functionally (walking further and tolerating further distances in the pool) with the aquatic therapy; however, permanent reduction in his pain level was not achieved.
14. Because there was no permanent reduction in Claimant’s pain level resulting from the active therapy, Provider altered Claimant’s treatment protocol and placed him back in passive therapy.
15. After Provider discontinued the active treatment, Provider should have discontinued all treatment and referred Claimant to a spinal surgeon or other specialist to determine a course of treatment for Claimant.
16. Carrier denied payment for office visits, physical medicine, physical education, travel, information analysis, team conference, and hospital initial observation (disputed services) from January 26, 2002, through September 26, 2002, as not medically necessary.
17. On June 2, 2003, the Independent Review Organization (IRO) denied the request for reimbursement for the disputed services.
18. On June 27, 2003, Provider appealed the IRO’s decision and requested a hearing before the State Office of Administrative Hearings (SOAH).
19. On September 4, 2003, the Texas Workers’ Compensation Commission (Commission) issued the notice of hearing.
20. 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 held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
21. On October 20, 2003, Administrative Law Judge Michael J. O’Malley convened the hearing on the merits. Representatives of the Provider and Carrier participated. The hearing adjourned the same day, and the record closed on November 7, 2003.

IV. CONCLUSIONS OF LAW

1. The Commission has jurisdiction to decide the issue presented, pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 413.031.
2. SOAH has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. §§ 402.073 and 413.031(d) 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. Pursuant to 28 Tex. Admin. Code § 148.21(h), Provider had the burden of proving by a preponderance of the evidence that the disputed services performed from January 26, 2002, through September 26, 2002, were medically necessary.
5. The disputed services performed from January 26, 2002, through April 5, 2002, were medically necessary because they temporarily relieved the pain resulting from the compensable injury. The disputed services performed from April 9, 2002, through September 26, 2002, were not medically necessary and should not be reimbursed because it was apparent by April 9, 2002, that passive treatment would not cure or relieve the effects naturally resulting from the compensable injury. Tex. Lab. Code Ann. § 408.021.
6. Based on the foregoing findings of fact and conclusions of law, Provider is entitled to reimbursement for the disputed services performed from January 26, 2002, through April 5, 2002, but is not entitled to reimbursement for services performed from April 9, 2002, through September 26, 2002.

ORDER

IT IS HEREBY ORDERED that East Texas Chiropractic is entitled to reimbursement for the disputed services performed from January 26, 2002, through April 5, 2002, but is not entitled to reimbursement for services performed from April 9, 2002, through September 26, 2002.

Signed December 11, 2003.

MICHAEL J. O’MALLEY
Administrative Law Judge
State Office of Administrative Hearing

1. In the closing briefs, the parties discuss the medical necessity of the passive and active chiropractic services.↑
2. The record references certain travel, MRIs, and x-rays that were found to be medically necessary by the IRO. The Carrier did not appeal the IRO’s decision on these issues; therefore, they will not be discussed as part of this decision.↑
3. The amount in dispute is $10,017.00, plus interest.↑
4. Provider Ex. 1, Medical Documents at 30.↑
5. Carrier Ex. A, Medical Documents at 5.↑
6. Carrier Ex. A, Medical Documents at 15.↑
7. The ALJ did not find the peer review reports of Dr. Tomko and Dr. Van Hal to be helpful and therefore gave them very little weight in the analysis. Both reports were conclusory and did not adequately address the medical necessity of the services involved in this case. Additionally, the physical exam performed by Dr. Obermiller did not reference the disputed services involved in this case and therefore his report was given little weight.↑
8. Tex. Lab. Code Ann. § 408.021.↑