DECISION AND ORDER

Liberty Mutual Fire Insurance Company (Carrier) has appealed the decision of the Independent Review Organization (IRO) granting reimbursement for physical therapy treatments provided to injured worker M.S. (Claimant). After considering the evidence and arguments of the parties, the Administrative Law Judge (ALJ) concludes that Carrier has failed to show by a preponderance of the evidence that the services in issue were not medically necessary. Therefore, Sam Liscum, D.C. (Provider), is entitled to reimbursement in the sum of $3,443.

I. BACKGROUND

Claimant suffered compensable, work-related injuries to his back, ribs, and other parts of his body when an 18-wheel truck partially ran over him on ____. Thereafter, Claimant underwent numerous treatments and surgeries. Most recently, in November 2002, he underwent a Lumbar Intradiscal Electrothermography (IDET) procedure to address ongoing back injuries from the incident. After the IDET procedure, Claimant’s treating doctor recommended that he undergo post-surgical physical medicine treatments and therapy. Claimant received physical therapy and chiropractic treatments from Provider between January 6, 2003, and February 15, 2003. Carrier, as the workers’ compensation insurance carrier for Claimant’s employer, declined to reimburse the treatments, contending they were not medically necessary. The total amount in dispute is $3,443.

Based on Carrier’s denial of reimbursement, Provider sought medical dispute resolution through the Texas Workers’ Compensation Commission (Commission). The matter was referred to an IRO designated by the Commission for the review process. The IRO determined that the services in issue were medically necessary treatment for Claimant’s compensable injury. Carrier then requested a hearing before the State Office of Administrative Hearings (SOAH). The hearing convened on January 7, 2003, with ALJ Tommy Broyles presiding.^[1] Provider appeared through his attorney, Doug Pruett. Carrier appeared through its attorney, Kevin Franta. The hearing concluded and the record closed that same day. No parties objected to notice or jurisdiction.

II. DISCUSSION AND ANALYSIS

This case involves a dispute over the necessity of in-office physical therapy and chiropractic treatment following Claimant’s IDET procedure. Carrier argues that the post-IDET therapy could

have been resolved through a home exercise program. Carrier relies mainly on the peer review report obtained by it and the testimony of Dr. Casey Cochran presented at the hearing. Dr. Cochran testified that standard post-IDET rehabilitation involves basic exercises that can be taught by a physical therapist in two or three visits, after which the patient can perform the exercises at home. Then, follow-up examinations performed a few months after the IDET procedure can be used to determine whether a more extensive exercise program should be implemented. Dr. Cochran concluded that virtually all of the therapeutic exercises necessary for post-IDET therapy can be performed at home by the patient and should not require extensive supervision or in-office treatment. Dr. Cochran also concluded that treatments such as myofascial release, joint mobilization, or electrical stimulation are practically worthless to an individual in Claimant’s situation.

Provider disagrees, noting that Claimant’s treating surgeon recommended the additional therapy and that the in-office, supervised treatment was consistent with accepted treatment protocols. Provider argues that Dr. Cochran’s conclusions are unreliable, as he has not examined the Claimant nor has he discussed Claimant’s treatment with any doctors who have examined the Claimant. Further, Provider points out that Dr. Cochran does not perform IDET procedures and has not performed any back surgical procedures since his residency.

Provider testified that he could not have properly treated Claimant in the manner proposed by Carrier. Rather, he was required to treat Claimant in his office because that way he was able to monitor his progress, vary his exercises and therapy, and increase the physical demands of the exercises by actually observing and tracking the Claimant’s performance. Moreover, because Claimant had four prior surgeries even before the IDET procedure, it was important for Provider to be able to observe Claimant performing the exercises to ensure that they were performed properly and in a manner that would not cause additional harm to Claimant. Finally, Provider rendered additional services, such as the myofascial release, joint mobilization, electrical stimulation, and hot/cold packs in an effort to relieve Claimant’s pain and improve his mobility.

After considering the arguments and evidence presented, the ALJ concludes that the disputed services provided to Claimant were medically necessary for treatment of Claimant’s compensable injury. Therefore, the ALJ finds that Provider is entitled to reimbursement. In reaching this decision, the ALJ notes that a number of factors support the medical necessity of the treatment in issue. First, Claimant’s treating surgeon, Dr. Berliner (who is not associated with Provider), prescribed the physical therapy and treatment in issue. Also, the treatment protocol publication in the record reflects that it is generally accepted for a patient to be placed on a supervised physical therapy program 8-12 weeks post-IDET procedure. The Provider testified that the treatments in issue were medically necessary because Claimant had numerous prior surgeries even before the IDET procedure, and it was important for Provider to be able to observe Claimant performing exercises to ensure that they were performed properly in a manner that would not cause additional harm to Claimant. Finally, by observing Claimant, Provider could vary the exercises to match Claimant’s ability in an effort to maximize improvement. Provider testified that he stopped the treatment after 11 visits, because he concluded that they were not benefitting Claimant.

The ALJ finds Dr. Liscum’s testimony to be credible and persuasive. Further, the ALJ finds the determinations by Claimant’s treating surgeon and by Dr. Liscum to be more persuasive than the summary conclusions of Dr. Cochran and the peer reviewer utilized by the Carrier, neither of whom actually examined Claimant. In considering the totality of the record, the ALJ concludes that the preponderance of the evidence shows that the treatments in issue were medically necessary.

Therefore, Carrier has not met its burden of showing that the treatments were not medically necessary. As such, Provider is entitled to reimbursement for the treatments. In support of this determination, the ALJ makes the following findings of fact and conclusions of law.

III. FINDINGS OF FACT

1. Claimant ___ suffered a compensable, work-related injury on ____.
2. Liberty Mutual Fire Insurance Company (Carrier) is the provider of workers’ compensation insurance covering Claimant for his compensable injury.
3. In November 2002, Claimant underwent a Lumbar Intradiscal Electrothermography (IDET) procedure to address ongoing back injuries from the incident.
4. After the IDET procedure, Claimant’s surgeon, Dr. Kenneth Berliner, recommended that he undergo post-surgical physical medicine treatments and therapy.
5. Claimant received physical therapy and chiropractic treatments from Sam Liscum, D.C., (Provider) between January 6, 2003, and February 15, 2003.
6. Accepted treatment protocols reflect that it is generally accepted for a patient to be placed on a supervised physical therapy program 8-12 weeks post-IDET procedure.
7. Claimant had four surgeries prior to the IDET procedure.
8. Post-IDET, in-office therapy allowed Provider to observe Claimant performing exercises to ensure that they were performed properly in a manner that would not cause additional harm to Claimant.
9. Post-IDET, in-office therapy allowed Provider to vary the exercises to match Claimant’s ability in an effort to maximize improvement.
10. The therapeutic procedures, examinations, myofascial release, joint mobilization, electrical stimulation, and hot/cold packs provided to Claimant were reasonable, medically necessary, and designed to relieve Claimant’s pain and/or improve his mobility and functioning.
11. The dates of service at issue in this case are from January 6, 2003 to February 15, 2003. The total amount in dispute is $3,443.
12. Carrier denied reimbursement for the services, contending they were not medically necessary.
13. Provider requested medical dispute resolution by the Texas Workers’ Compensation Commission’s Medical Review Division (MRD), which referred the matter to an Independent Review Organization (IRO).
14. MRD ordered reimbursement on August 25, 2003, based on the IRO physician reviewer’s determination that the services in issue were medically necessary.
15. On September 3, 2003, Carrier requested a hearing and the case was referred to the State Office of Administrative Hearings (SOAH).
16. Notice of the hearing was sent by the Commission to all parties on October 15, 2003.
17. On January 7, 2003, Administrative Law Judge Tommy Broyles convened a hearing in this case. Provider appeared through its attorney, Doug Pruett. Carrier appeared through its attorney, Kevin Franta. The hearing concluded and the record closed that same day.

IV. 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. Carrier has the burden of proof. 28 Tex. Admin. Code §§ 148.21(h) and 133.308(w).
6. Carrier has not shown, by a preponderance of the evidence, that the services in issue provided to Claimant between January 6, 2003, and February 15, 2003 were not medically necessary for treatment of Claimant’s compensable injury.
7. Carrier is liable to reimburse Provider the sum of $3,443 for the treatments provided to Claimant between January 6, 2003, and February 15, 2003.

ORDER

IT IS, THEREFORE, ORDERED that Liberty Mutual Fire Insurance Company reimburse Sam Liscum, D.C., the sum of $3,443 plus interest for the treatments provided to Claimant between January 6, 2003, and February 15, 2003.

Signed January 23, 2004.

CRAIG R. BENNETT
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. This case was assigned to ALJ Craig R. Bennett. Because Judge Bennett was sick on the day of the hearing, Judge Broyles presided over the hearing. However, Judge Bennett retained the case, reviewed the entirety of the record (including listening to the tape of the hearing), and now issues this decision.↑