DECISION AND ORDER

I. INTRODUCTION

Brett M. Downey, D.C. (Provider) challenges a decision of the Texas Workers= Compensation Commission (TWCC) Medical Review Division (MRD), based on an independent review organization (IRO) review regarding reimbursement for chiropractic services the Provider furnished to ___(Claimant). Agreeing partially with Insurance Company of the State of Pennsylvania (Carrier), which had denied reimbursement, the IRO found that only one service per month was medically necessary to treat the Claimant’s compensable injury. The only disputed issue is whether the chiropractic services were medically necessary.

The Administrative Law Judge (ALJ) finds that approximately one chiropractic service per week was medically necessary to relieve the Claimant’s pain and finds that all others to be unnecessary.

II. MEDICAL NECESSITY

On ___, the Claimant sustained a work-related injury to her back. She underwent lower back surgery on March 15, 2000, and has received ongoing care in the way of chiropractic care since May 3, 2000, for treatment of severe lower back pain radiating to the lower left extremity down to the toes. Those services consisted of manipulation, traction, myofascial release, and therapeutic activities. She has received these services as often as three times per week.

This claim is for chiropractic services provided from May 3, 2002, through March 17, 2003. Provider is seeking reimbursement of $8,217.00 for the services.

The evidence suggests tht Provider’s services in question intermittently helped Claimant’s back pain. Provider’s records show Claimant’s reports of pain management randomly ranging anywhere from Adramatic worsening to Aa lot better, with everything in between. While this might have been the normal progression of a fully successful course of treatment, Provider failed to document it as such.

Jeffrey Cunningham, D.C., testifying on behalf of the Carrier, saying that treatment, any more than once per month (agreeing with the IRO doctor), was not medically necessary. Dr. Cunningham said the Provider’s records showed some improvements, but then on the next visit the Claimant

seemed to revert to where she had previously been. Both Dr. Cunningham and IRO reviewing chiropractor said that neither the National Treatment Guidelines nor the TWCC Treatment Guidelines that were abolished on February 1, 2002, allow for the frequency of treatment that Carrier provided.^[1]

The Provider, who seeks relief from the MRD decision, has the burden of proof. From the evidence, the ALJ concludes that some of the chiropractic services in question were medically necessary because they provided some periodic relief. Contrary to what the IRO found, however, the ALJ notes that the treatments were not usually more than twice per week, and sometimes less frequent. Because the treatments seemed to be helpful in relieving some pain about half the time, the ALJ finds that approximately one treatment per week, and associated office visit, was medically necessary. The ALJ has randomly picked dates based on that approximate frequency rather than what was specifically reported for a given date.

III. FINDINGS OF FACT

1. On ___, the Claimant sustained a work-related injury to her lower back.
2. On the date of injury, the Claimant’s employer was insured by the Insurance Company of The State Of Pennsylvania (Carrier).
3. As a result of the compensable injury, the Claimant suffered pain in her back.
4. Claimant underwent lower back surgery on March 15, 2000.
5. The Claimant began to receive chiropractic manipulations from the Provider for her back pain on May 3, 2000.
6. Jeffery Cunningham, D.C. (the Provider) sought reimbursement for the dates of service May 3, 2002, through May 17, 2003, from the Carrier in the amount of $8,217.00.
7. Carrier denied Provider’s request for reimbursement, claiming Provider’s documentation did not show the treatments were medically necessary to treat the compensable injury.
8. Provider filed a request for medical dispute resolution with the TWCC, seeking reimbursement for the dates of service May 3, 2002, through May 17, 2003.
9. TWCC referred the dispute to an independent review organization (IRO), which reviewed the medical dispute and found that only one chiropractic treatment per month, and the associated office visit, was medically necessary or effective to treat the Claimant’s compensable injury.
10. After the IRO decision, Provider, on September 4, 2003, requested a hearing before the State Office of Administrative Hearings (SOAH).
11. On September 11, 2003, TWCC mailed a notice of hearing concerning the dispute to Carrier and Provider.
12. On March 17, 2004, SOAH ALJ Bill Zukauckas held a contested-case hearing on the dispute at the William P. Clements Office Building, Fourth Floor, 300 West 15th Street, Austin, Texas. The hearing concluded and the record closed on that same day.
13. The Provider appeared at the hearing, by telephone.
14. The Carrier appeared at the hearing through its attorney, W. Jon Grove.
15. The Claimant’s pain symptoms were intermittently and randomly helped by Provider’s chiropractic services for the dates of service in question.
16. Chiropractic treatments and office visits of approximately one per week, rather one per month as the IRO recommended, were shown to be medically reasonable and necessary.

IV. CONCLUSIONS OF LAW

1. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to Tex. Labor Code Ann. (Labor Code) ” 402.073(b) and 413.031(k) and Tex. Gov=t Code Ann. (Gov=t Code) ch. 2003..
2. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov=t Code Ann. ” 2001.051 and 2001.052.
3. As the party seeking relief, the Provider has the burden of proof in this matter. 28 Tex. Admin. Code (TAC) ‘148.21(h) (2002).
4. 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. Labor Code ‘ 408.021 (a).
5. While not every treatment was medically necessary or effective, approximately one visit per week for the dates of service was reasonable.
6. Based on the above Findings of Fact and Conclusions of Law, the Provider’s request for reimbursement for additional reimbursement should be granted on a limited basis for the following dates: May 3, June 10, July 3, 11, 19, 25, August 7, 14, September 3, October 1, 8, 15, 25, 31, November 6, 13, 18, 25, December 2, 11, 16, 23, 2002, and January 6, 15, 22, 29, February 5, 10, 21, 28, March 10 and 17, 2003.

ORDER

IT IS ORDERED THAT the Provider’s request for additional reimbursement is granted on a limited basis and that Provider be reimbursed for the following dates of service: May 3, June 10, July 3, 11, 19, 25, August 7, 14, September 3, October 1, 8, 15, 25, 31, November 6, 13, 18, 25, December 2, 11, 16, 23, 2002, and January 6, 15, 22, 29, February 5, 10, 21, 28, March 10 and 17, 2003. Carrier is liable to Provider for each charge on these dates of service, but is to be given a credit for any payments already made to Provider for dates of service between May 3, 2002 and March 17, 2003.

Signed June 18, 2004.

BILL ZUKAUCKAS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Both the IRO doctor and Dr. Cunningham, however, believed some very limited continuing chiropractic management of Claimant’s condition (one visit per month) was warranted.↑