DECISION AND ORDER

Claimant ___ fell off a ladder onto a concrete surface on ___, and suffered injuries to his back, as well as his extremities. Citing a lack of medical necessity, Dallas Fire Insurance Company (DFIC) denied reimbursement for services provided to ___ from February 3, 2003, through February 19, 2003. These services included: an MRI of the lumbar spine, neurological testing,^[1] range of motion testing, a portable whirlpool, and chiropractic therapy consisting of office visits, joint mobilization, myofascial release, therapeutic exercises, and manual traction.^[2] An Independent Review Organization (IRO) determined that these services were not medically necessary. Main Rehab and Diagnostic (MRD) requested a hearing. The amount in dispute is $3,860.00. The Administrative Law Judge (ALJ) agrees with the IRO that most of the services at issue were not medically necessary.

I.

DISCUSSION

A.Background Facts

Following his accident on ___, ___ went to an emergency room (ER), returning to the ER again on ____. He was diagnosed with acute sprain/contusion of the right ankle and heel, acute lumbar strain, contusion to the right hip, and hand/wrist sprain.^[3] X-rays were done to rule out fractures. He was off work for a brief period. He was seen at Harris Occupational Health several times from December 30, 2002, through January 6, 2003, and was released to return to work without restrictions January 6.^[4] ___ was first seen at MRD on ___, when he presented with (among other symptoms) pain, numbness, tingling, and decreased range of motion in the lumbar spinal area. He was seen by Osler Kamath, D.C., who took ___ off work. ___ began physical therapy at MRD the following day. Due to continuing complaints of pain and numbness, ___ was referred for an MRI, which was performed February 3, 2003; it showed no disc herniation. ___ participated in work hardening for six weeks, beginning in March and concluding in May 2003. He was returned to work without restrictions in June 2003.

As noted above, the dates of service at issue in this case are February 3 through 19, 2003.

A.Procedural History

The IRO issued its decision September 3, 2003. MRD requested a hearing by letter dated September 15, 2003. The hearing was convened on January 12, 2004, before State Office of Administrative Hearings (SOAH) Judge Shannon Kilgore. Scott Hilliard, appearing by telephone, represented MRD. John Fundis represented DFIC. The hearing adjourned, and the record closed, the same day.

A.Applicable Law

The Texas Labor Code contains the Texas Workers’ Compensation Act (Act) and provides the relevant statutory requirements regarding compensable treatment for workers’ compensation claims.^[5] In particular, the Act provides in pertinent part that:

(a) 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. The employee is specifically entitled to health care that:

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

* * *

Health care includes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services.^[6]

D. Burden of Proof

Under the rules of the Texas Workers’ Compensation Commission (Commission), an IRO decision is deemed a Commission decision and order.^[7] The burden of proof in this case is on MRD to prove by a preponderance of the evidence that the disputed services were reasonable and necessary medical treatments.^[8]

E. The Disputed Services

MRD billed under the following CPT codes:

72148 magnetic resonance imaging

E1300 whirlpool, portable

99213 office visit

97265 joint mobilization

97250 myofascial release

97110 therapeutic exercises

97122 traction, manual

95999 neurological or neuromuscular diagnostic procedure

95851 range of motion measurements.

The dates of service were February 3-4, 6-7, 11-14, and 19, 2003. MRD denied reimbursement for these services as “V” – “unnecessary treatment – with peer review.”^[9]

F. IRO Decision

In its report, the IRO noted that the MRI of the lumbar spine was normal. The report also observes that the CPT testing, though suggesting mild hypoesthetic conditions, was unaccompanied by any clinical rationale or correlation of findings. The report states:

Specific chiropractic reporting from 02/03/03 to 02/19/03 suggests no clear clinical rationale for tests performed and services provided. No change or measurable improvement of these conditions is noted in this reporting. In fact, chiropractic reporting appears essentially identical for each date during this period of care.^[10]

G. General Description of the Evidence

The evidence in this case consists of medical records, including reports and SOAP notes by MRD staff,^[11] reports of range of motion and strength testing by MRD staff,^[12] reports of diagnostic testing, as well as reports by Gregory W. Baker, D.C., James Hood, M.D., Matthew Loewen, D.O., and Robert B. Honigsfeld.^[13] In addition, the following witnesses testified:

– Osler Kamath, D.C., a chiropractor with MRD and claimant’s treating doctor; and

– Gregory Baker, D.C., the chiropractor who performed the peer review for DFIC.

H.Analysis and Decision

General concerns about information from MRD. The documentation of ___’s treatment at MRD is very poor.^[14] The daily notes concerning his physical therapy consist of identical notes copied over and over (including errors such as identifying ___ as female), in most instances with only a change of dates. There is little meaningful information about ___’s progress.^[15] The careless and obviously “canned” nature of the progress notes casts doubt on the credibility of all the documentation generated by MRD, and is therefore relevant to all services at issue in this case. The ALJ agrees with MRD that the issue here is medical necessity, not documentation; however, the reasonableness and necessity of the services should be apparent from the documentation. Where, as here, the daily documentation is inadequate, it is more difficult to discern the existence of medical necessity.

MRI of the lumbar spine. The ALJ determines that the MRI was medically necessary. Dr. Honigsfeld’s report states that the MRI was not necessary, and Dr. Kamath’s notes never addressed the results of the MRI. However, Dr. Baker, who testified for the carrier, stated that ___’s initial subjective reports could have indicated disc injury. While Dr. Baker might have waited until later to perform an MRI, he did not seem to think it was entirely unwarranted. Further, Dr. Kamath testified that his initial exam involved orthopedic testing that yielded some possible indications of disc injury. The evidence supports a conclusion that the MRI was reasonable.

Whirlpool. The ALJ cannot find any documentation relating to the use of a whirlpool. Nor was there testimony concerning a whirlpool. The medical necessity for this treatment has not been established.

Office visits. MRD charged for seven office visits during the period of time at issue in this case under CPT code 99213, which required at least two of the following: an expanded problem focused history, an expanded problem focused examination, and medical decision-making of low complexity.^[16] Except for the notes for February 12,^[17] there is no evidence of these factors. As noted above, for the most part the daily progress notes were “canned” and offered no meaningful information about ___’s response to the therapy and no evidence of decision making on the basis of his response. In addition, there is no discussion or even mention in the daily notes of the results of diagnostic testing. It is not possible to conclude that the discussions, examinations, and decision making were warranted if there is no evidence that they occurred.

The February 12 note does reflect an examination and medical decision-making. However, since that visit was part of an overall course of treatment the medical necessity of which has not been established, the February 12 visit need not be reimbursed, either.

CPT testing. These tests, which show some hypoesthesia, were performed on February 7, 2003. There is nothing in the progress notes indicating why this testing was done. Nor is there any mention in the daily notes of the results of the testing and their effect on the course of treatment. Dr. Honigsfeld did not find support in the medical records for these tests. Dr. Kamath testified that because there was a “significant traumatic injury” with pain, tingling, and numbness, these tests were warranted. However, the ALJ finds his testimony too vague to be very meaningful. The medical necessity of these tests has not been established.

Physical therapy and range of motion measurements. The evidence concerning these services is contradictory. On the one hand, the disputed services were provided at only approximately six to nine weeks post-injury, which is within a reasonable range for strain/sprain injuries.^[18] Further, there was some improvement in ___’s range of motion, although part of the

improvement had already occurred prior to the dates of service at issue here, and ___ experienced some declining lumbar range of motion following the disputed dates of service.^[19]On the other hand, it is difficult to tell if there was any improvement in lumbar strength.^[20] Moreover, one of ___’s primary complaints B and possibly his chief complaint B was pain, but his pain values are reported nowhere in the documentation. Since the documentation insufficiently charts ___’s response to the therapy, it is not possible to tell if its continuation was justified. For these reasons, the ALJ declines to overturn the IRO’s determination that the services were not medically necessary.

Summary. DFIC must pay for the MRI. No reimbursement for the other services at issue is necessary, since there is insufficient evidence to warrant overturning the decision of the IRO with respect to those services.^[21]

II.

FINDINGS OF FACTS

1. The claimant ___ fell off a ladder on ___, and suffered injuries to his right ankle and heel, his back, his right hip, as well as a hand/wrist sprain.
2. Dallas Fire Insurance Company (DFIC) is the workers’ compensation insurer with respect to the claims at issue in this case.
3. From February 3, 2003, through February 19, 2003, Main Rehab and Diagnostic (MRD) ordered or provided the following services to ___: an MRI of the lumbar spine, neurological testing, range of motion testing, a portable whirlpool, and chiropractic therapy consisting of

office visits, joint mobilization, myofascial release, therapeutic exercises, and manual traction.

MRD billed for these services with the following CPT Codes:

72148 magnetic resonance imaging

E1300 whirlpool, portable

99213 office visit

97265 joint mobilization

97250 myofascial release

97110 therapeutic exercises

97122 traction, manual

95999 neurological or neuromuscular diagnostic procedure

95851 range of motion measurements.

1. DFIC declined to pay for these services, asserting that they were medically unnecessary.
2. The amount in dispute is $3,860.00
3. MRD requested medical dispute resolution.
4. On September 3, 2003, an independent review organization (IRO) issued a decision finding that the disputed services were not medically necessary.
5. MRD requested a hearing.
6. Notice of the hearing was issued October 20, 2003.
7. 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.
8. The hearing was convened on January 12, 2004, before State Office of Administrative Hearings (SOAH) Judge Shannon Kilgore. Scott Hilliard, appearing by telephone, represented MRD. John Fundis represented DFIC. The hearing adjourned, and the record closed, the same day.
9. The MRI of the lumbar spine done on February 3, 2003, was medically necessary. ___’s initial subjective reports could have indicated disc injury. The initial exam by Osler Kamath, D.C., of MRD yielded some possible indications of disc injury.
10. Whirlpool therapy was not medically necessary. The medical documentation does not explain the need for this therapy.
11. The office visits at issue were not medically necessary. They were part of a course of treatment not shown to be medically necessary, and the documentation failed to reflect that most visits included the required elements of history, examination, and/or decision making.
12. The Sensory Nerve Conduction Threshold (CPT) testing at issue was not medically necessary. The record does not satisfactorily explain the need for this therapy.
13. The joint mobilization, myofascial release, therapeutic exercises, manual traction, and range of motion testing were not medically necessary. While there was possibly some improvement in ___’s range of motion, there was little or no improvement in strength, and there is no evidence that his pain in the lumbar region improved (or was even evaluated on a continuing basis).

III. CONCLUSIONS OF LAW

1. The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code ch. 401 et seq.
2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order. Tex. Lab. Code §413.031; Tex. Gov’t Code ch. 2003.
3. 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. Tex. Lab. Code § 408.021.
4. MRD timely filed a request for hearing as specified in 28 Texas Administrative Code §148.3.
5. Adequate and timely notice of the hearing was provided in accordance with the Administrative Procedure Act. Tex. Gov’t Code § 2001.052.
6. MRD has the burden of proof in this matter. 28 Tex. Admin. Code §§ 133.308(p)(5) and(w), 148.21(h)-(i).
7. Based on the Findings of Fact, and pursuant to § 408.021 of the Texas Labor Code, DFIC must reimburse MRD for the MRI, but not for any of the other disputed services.

ORDER

IT IS THEREFORE ORDERED that Dallas Fire Insurance Company pay for the lumbar MRI performed on patient ___ on February 3, 2003, but need not pay for any of the other disputed services in this case.

Issued this March 11, 2004.

SHANNON KILGORE

State office of administrative hearings
Administrative Law Judge

1. This was a Sensory Nerve Conduction Threshold (CPT) test.↑
2. The table of disputed services is found at Carrier Ex. 2 at 292. See also id. at 294-296.↑
3. Carrier Ex. 2 at 214-221.↑
4. Carrier Ex. 2 at 240.↑
5. Tex. Lab. Code § 408.021.↑
6. Tex. Lab. Code § 401.011(19).↑
7. 28 Tex. Admin. Code § 133.308(p)(5).↑
8. 28 Tex. Admin. Code §§ 133.308(p)(5), 148.21(h)-(i). The IRO decision is entitled to presumptive weight. 28 Tex. Admin. Code § 133.308(w).↑
9. See Carrier Ex. 2 at 294-296.↑
10. Carrier Ex. 1 at 3-5.↑
11. Provider Ex. 1, 2.↑
12. Provider Ex. 1, 2.↑
13. Carrier Ex. 2 at 225-227 (Baker), 228-230 (Hood), 231-238 (Loewen), 261-265 (Honigsfeld).↑
14. The ALJ also notes that the evidence is highly repetitive, with the same documents from MRD (such as the results of the range of motion testing) appearing multiple times, and also with much of the evidence relating to times well after the dates at issue in this case.↑
15. An exception to this general rule is the note for February 12, 2003, which under “Assessment”describes in general terms ___’s progress with respect to range of motion and muscle strength, but does not mention his pain levels.↑
16. Medical Fee Guideline 1996 at 19.↑
17. Carrier Ex. 2 at 142-143.↑
18. The ALJ notes that although the carrier cited to Dr. Baker’s peer review in denying MRD’s claims for reimbursement, Dr. Baker’s report primarily addressed treatment from February 17, 2003, and forward into the future. Carrier Ex. 2 at 225. Despite DFIC’s misplaced reliance on Dr. Baker’s report, the evidence in the record still does not demonstrate the medical necessity of most of the services at issue in this case.↑
19. See Provider Ex. 2 at 23, 25, 26, 33 (lumbar range of motion). There was also some improvement in right ankle range of motion. Id. at 15, 32.↑
20. See Provider Ex. 2 at 39-41.↑
21. MRD argues that Dr. Baker’s peer review is invalid because he failed to provide his professional license number and a copy of his report was not attached to the explanation of benefits as required by the Commission’s rules. The ALJ does not find that these errors affect the question of medical necessity.↑