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Title: 

453-04-0663-m5

Date: 

January 7, 2004

Type: 

Retrospective Medical Necessity

453-04-0663-m5

DECISION AND ORDER

Ron Fernandez, P.T. (Provider) appealed the decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission) declining to order reimbursement of $1,050forhot/cold pack treatments (CPT Code 97010),ultrasound therapy (CPT Code 97035), therapeutic activities (CPT Code 97110),massage therapy (CPT Code 97124),and myofascial releases (CPT Code 97250)that he provided to Claimant from June 12, 2002, through June 28, 2002.[1]Carrier denied reimbursementon the basis that the treatments were not reasonable or medically necessary.The ALJ finds the disputed treatmentswerereasonable andmedically necessary. Therefore, Carrier isorderedto reimburse Provider $1,050.[2]

I. PROCEDURAL HISTORY

ALJ Sharon Cloninger convened the hearing onNovember 20, 2003,in the William P. Clements Building, 300 West 15th Street, Fourth Floor, Austin, Texas.Provider appeared via telephone. Attorney Steven M. Tipton represented Carrier. The hearing concluded and the record closed that same day.

II. APPLICABLE LAW

Pursuant to Tex. Lab. Code §408.021(a), an employee who sustains a compensable injury is entitled to all health care reasonablyrequired by the nature of the injury, as and when needed. The employee is specifically entitled to health care that:

  1. cures or relieves the effects naturally resulting from the injury;
  2. promotes recovery; or
  3. enhances the ability to return to or retain employment.

III. FINDINGS OF FACT

  1. Claimant sustained a compensable work-related injury to her cervical and lumbar spine on ___, when she slipped on a wet floor and fell on her back while working for a senior citizen home whose workers’ compensation insurance carrier was Commerce & Industry Insurance Company (Carrier).
  2. Claimant’s treating physician is Terry Sobey, M.D., who diagnosed her to have cervical spinal stenosis and lumbosacral neuritis.[3]
  3. An MRI conducted on Claimant on or about February 11, 2002,revealedosteophyte[4] formation both at the C5-6 and C6-7 levels with no evidence of cord compression or disc herniation; mild foramina stenosis[5], more prominent at both the C5-6 and C6-7 levels; and slight left neural foramina narrowing at the C4-5 level.
  4. As of March 4, 2002, Claimant had not reached maximum medical improvement (MMI).
  5. As of March 4, 2002, Claimant had been on light duty since January 15, 2002, and wanted to increase her work hours to at least six hours per day.
  6. On April 3, 2002, Dr. Sobey referred Claimant to Kevin Gill, M.D., an orthopedic specialist, to ascertain whether Claimant needed spinal surgery, because her MRI showed some significant neural foramina stenosis, there had been ample time for her condition to improve with conservative care, and she had not done so with the use of anti-inflammatory medication and physical therapy.
  7. On April 23, 2002, Dr. Gill examined Claimant, found her to have cervical spondylosis[6] that was aggravated by her fall on ___, and recommended that she be given more time with physical therapy.
  8. On May 1, 2002, Dr. Gill prescribed four-to-six weeks of physical therapy evaluation and treatment to be provided to Claimant three times per week.
  9. In a letter dated May 1, 2002, Dr. Sobey agreed with Dr. Gill’s prescription for physical therapy.
  10. On May 6, 2002, Dr. Gill again prescribed four-to-six weeks of physical therapy, this time requesting the cervical program, to be provided three times per week.
  11. Based on Dr. Gill’s prescription, physical therapist Ron Fernandez (Provider) began treating Claimant for her injury on May 13, 2002.
  12. Provider evaluated Claimant on May 13, 2002[7], and identified her problems to be pain/muscle guarding, decreased range of motion, decreased strength, and poor posture. He set her long-term goal as improving function and posture, with short-term goals of increasing range of motion and controlling pain.
  13. From May 13, 2002, through June 12, 2002, Claimant improved moderately under Provider’s care, showing increased strength, improved function, and better pain control. Her cervical range of motion did not improve during that time.
  14. Beginning June 12, 2002, Provider’s treatment of Claimant included:
    1. hot/cold pack treatments (CPT Code 97010) onJune 12, 13, 19, 20, 21, 24, 26, and 28, 2002;
    2. ultrasound therapy (CPT Code 97035) on June 12, 13, 19, 20, 24, 26, and 28, 2002;
    3. therapeutic exercises (CPT Code 97110) on June 12, 13, 19, 20, 21, 24, 26, and 28, 2002;
    4. massage therapy (CPT Code 97124) on June 21, 2002;
    5. myofascial releases (CPT Code 97250)onJune 13, 19, 20, 21, 24, 26, and 28, 2002.
  15. The hot/cold pack treatments were reasonable and medically necessary to control Claimant’s pain.
  16. Ultrasound therapy was reasonable and medically necessary to control Claimant’s pain.
  17. Therapeutic exercises were reasonable and medically necessary to increase Claimant’s strength and range of motion.
  18. Massage therapy was reasonable and medically necessary to control Claimant’s pain and increase her range of motion.
  19. Myofascial releases were reasonable and medically necessary to control Claimant’s pain and increase her range of motion.
  20. Provider’s treatment of Claimant was reasonably required by the nature of her injury to relieve the effects naturally resulting from the injury and to enhance Claimant’s ability to retain employment by preparing her to increase her work day from four hours to six hours.
  21. Provider sought reimbursement of $1,050 from Carrier for the treatments rendered to Claimant.
  22. Carrier refused to reimburse Provider for the above services on the basis that the treatments were not reasonable or medically necessary.
  23. Provider filed a request for medical dispute resolution with the Texas Workers’ Compensation Commission’s Medical Review Division (MRD), asking for reimbursement for the above-described services.
  24. The MRD referred the appeal to an independent review organization (IRO). The IRO issued a decision on August 8, 2003, agreeing in part with Carrier’s denial of reimbursement. The IRO decision stated that the therapeutic procedures, myofascial release, and ultrasound therapy were not medically necessary to treat Claimant.
  25. The MRD issued a decision on August 19, 2003, after reviewing the IRO decision, stating that Provider did not prevail on the issues of medical necessity.
  26. On September 11, 2003, Provider appealed the MRD decision to the State Office of Administrative Hearings (SOAH).
  27. On October 17, 1003, notice of the hearing in this case was mailed to Provider and Carrier.
  28. 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.
  29. ALJ Sharon Cloninger convened the hearing onNovember 20, 2003,in the William P. Clements Building, 300 West 15th Street, Fourth Floor, Austin, Texas.Provider appeared via telephone. Attorney Steven M. Tipton represented Carrier. The hearing concluded and the record closed that same day.

IV. CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction to decide the issues presented in this case, pursuant to the Texas Workers’ Compensation Act (the Act), Tex. Labor Code Ann. § 413.031.
  2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this case, including the authority to issue a decision and order, pursuant to Tex. Labor Code Ann. §413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
  3. Provider filed notice of appeal of the decision of TWCC’s Medical Review Division (MRD), as specified in 28 Tex. Admin. Code (TAC) § 148.3.
  4. Proper and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. § 2001.052 and 28 TAC § 148.4(b).
  5. As the party appealing the MRD decision, Provider had the burden of proving the case by a preponderance of the evidence, pursuant to 28 TAC §148.21(h) and (i).
  6. Based on the above Findings of Fact and pursuant to Tex. Lab. Code § 408.021(a), Provider’s treatment of Claimant’s compensable injury was reasonable and medically necessary.
  7. Based on the above Findings of Fact and Conclusions of Law, Provider’s appeal should be granted, and Provider should be reimbursed $1,050.

ORDER

Provider had the burden of proof in this case. Provider met its burden. IT IS, THEREFORE, ORDERED THAT Carrier should reimburse Provider $1,050.

Signed January 7, 2004.

SHARON CLONINGER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. The MRD decision states the ”physical medicine treatment, including hot/cold packs and ultrasound therapy were found to be medically necessary. The therapeutic treatment rendered, including therapeutic procedures, myofascial release and ultrasound therapy were not found to be medically necessary.” [emphasis added] Because it is unclear as to whether the MRD found ultrasound therapy to be medically necessary, the Administrative Law Judge (ALJ) will address the medical necessity of ultrasound therapy in this decision and order. Although there was no dispute that the hot/cold pack treatments were reasonable and medically necessary, there was a dispute as to the amount of reimbursement for them. (See Footnote 2).↑
  2. The parties agreed at the hearing that the charge for hot/cold pack treatments should be $11 rather than the $18 charged; for ultrasound therapy should be $22 rather than the $24 billed; for therapeutic activities should be $35 per 15 minutes;and for myofascial releases should be $43 rather than the $45 billed. The massage therapy was correctly billed at $28. The parties agreed that the total in dispute after these adjustments is $1,050.↑
  3. Provider only treated Claimant’s cervical spine.↑
  4. An osteophyte is a pathological bony outgrowth. Merriam Webster’s Medical Dictionary (1995), p. 485.↑
  5. Foramina stenosis is the narrowing of an orifice. Id., pp. 244 and 658.↑
  6. Spondylosis is any of various degenerative diseases of the spine. Id., p. 653.↑
  7. Provider’s request for medical dispute resolution was not received by the Texas Workers’ Compensation Commission (the Commission) until June 11, 2003. Therefore, pursuant to 28 Tex. Admin Code § 133.308(e)(1), the disputed dates of service from May 13, 2002, through June 10, 2002, were not within the Commission’s one year jurisdiction. The dates of service considered by the Commission’s Medical Review Division were from June 12, 2002 through June 28, 2002.↑