DECISION AND ORDER

I. SUMMARY

Central Dallas Rehab (Provider) appealed the decision of Maximus, and independent review organization certified by the Texas Department of Insurance, in Texas Workers’ Compensation Commission (TWCC) Medical Review Division (MRD) tracking number M5-03-2681-01, denying reimbursement for medical services provided to the Claimant. This decision orders American Home Assurance Company (Carrier) to reimburse the Provider $5,310.00.

The Administrative Law Judge (ALJ) convened a hearing on January 20, 2004. The hearing was concluded and the record closed that date. The Provider was represented by Scott C. Hilliard, attorney. The Carrier was represented by Dan C. Kelley, attorney.

II. EVIDENCE AND BASIS FOR DECISION

The issue presented in this preceding is whether the Carrier should reimburse the Provider $5,310.00 plus interest for medical services provided between October 9, 2002, and December 13, 2002, and billed under CPT Codes 97110 (therapeutic exercises), 97750 (physical performance test), 97265 (joint mobilization), 97530 (therapeutic activity), 97250 (myofascial release), 97122 (neuromuscular re-education), 97750-MT (physical performance test), and 95937 (neuromuscular conditioning test). The Carrier argued that the medical services provided to the Claimant were not medically necessary and reasonably required to treat the compensable injury.

The documentary record in this case consisted of three packets of medical records (Exh. 1-147 pages, Exh. 2 – 150 pages, and Exh. 3 – 184 pages). Also, Ted Krejci, D.C., testified for the Provider and Melissa Tonn, M.D., testified for the Carrier.

The Claimant suffered a left elbow injury on July 22, 2002, while doing repetitive lifting with his arm as a stocker. He was diagnosed with left elbow sprain/strain and referred to the Provider for conservative therapy modalities and treatment by his treating physician, Crawford Sloan, M.D. (Exh. 3, pages 14 – 16).

The Claimant was first seen by the Provider on August 30, 2002, and, following an examination, the Provider recommended passive and active rehabilitation three times per week for six to eight weeks. (Exh. 3, pages 11-13). An examination of the Claimant on October 7, 2002, revealed that he was still experiencing left elbow pain, reduced range of motion, and muscle spasms. The Provider recommended that treatment continue three times per week for an additional six to eight weeks. (Exh. 3, page 31) An examination on December 11, 2002, revealed that the Claimant continued to experience left elbow pain, reduced range of motion, and muscle spasms. The Claimant reported that extension of the elbow was painful and that his grip strength was reduced. (Exh. 3, page 79).

Dr. Sloan then referred the Claimant for an MRI performed on December 13, 2002, which revealed joint space effusion,^[1] and an annular ligament tear of the radial head. (Exh. 3, page 81) The Claimant had not previously been referred for an MRI because Dr. Sloan did not believe that the test was necessary. He believed that the Claimant would quickly respond to therapy. Treatment modalities were then changed to a work hardening program and injections, which returned the Claimant to work. (Exh. 3, page 3)

The Carrier paid for the initial period of physical therapy from August 30, 2002, to October 7, 2002, and for the treatment following the MRI performed on December 13, 2002. The Carrier denied payment for the second period of physical therapy on the grounds that it was not medically necessary and that based on the diagnosis, treatment patterns, and the number of visits, the treatment exceeded physician parameters. (Exh. 2, pages 9 – 61).

Reimbursement for both neuromuscular and strength testing performed during the contested period were denied. The neuromuscular test indicated that the Claimant did not suffer from decreased sensation. According to the Provider, this test, which was performed on October 17, 2002, helped guide treatment by ruling out radial lesions and compression.

The Claimant underwent four strength tests during the contested period. The first test, which was completed on October 14, 2002, showed that the Claimant had decreased elbow flexion and grip strength in his left arm and hand. (Exh. 1, pages 13 – 15). The Claimant was tested again on October 30, 2002, and showed improvement in elbow flexion strength. (Exh. 1, pages 16 – 18). According to the November 11, 2002 muscular test, the Claimant had average grip strength in his left hand and his elbow extension strength had increased. (Exh. 1, pages 19 – 22). The final muscular test, which was performed on December 9, 2002, showed normal grip strength in the left hand and an increase in elbow extension and flexion strength. (Exh. 1, pages 23 – 26).

Dr. Krejci testified the strength tests showed that Claimant continued to improve from the medical treatment provided. He stated that the type and frequency of therapy was adjusted during the treatment period. According to Dr. Krejci, the Claimant’s improvement showed that the treatment was medically necessary.

Dr. Tonn is certified in occupational medicine. She reviewed the Claimant’s medical records and concluded that all physical therapy and other services delivered from October 9, 2002, up to the

December 13, 2002 MRI were not medically necessary. According to Dr. Tonn, under the treatment guidelines, to continue physical therapy past 42 days requires objective progress. On cross-examination, Dr. Tonn admitted that the treatment guidelines had been abolished and not been replaced as of the date of the hearing.

Based on the evidence, the ALJ concludes that the treatment provided to the Claimant from October 9 to December 13, 2002, was medically necessary. Following the Claimant’s injury, his treating physician referred him for conservative treatment, primarily consisting of physical therapy. After the initial treatment period, the Claimant continued to suffer and a second treatment period was provided. Testing conducted during the second treatment period showed that the Claimant was getting positive results from the treatment. However, by the end of the second treatment period, the Claimant had not progressed well enough to return to work. His treating physician then ordered additional diagnostic testing, and an MRI revealed that the Claimant’s injury was more serious than initially believed.

Hindsight makes it clear that an MRI may have been appropriate at the conclusion of the first round of physical therapy. However, hindsight is not the standard of review. The treating physician believed that the Claimant’s injury was a strain/sprain of the elbow and that it would respond to conservative treatment. While the Claimant’s response to physical therapy was positive, it did not enable him to return to work and more intensive treatment became necessary. The second round of physical therapy was medically necessary under these circumstances and the Provider should be reimbursed for the services delivered to the Claimant.

III. FINDINGS OF FACT

1. On July 28, 2002, the Claimant suffered a compensable injury to his left elbow from repetitive lifting.
2. The Claimant’s injury is covered by worker’s compensation insurance written for the Claimant’s employer by American Home Assurance Company (Carrier).
3. Crawford Sloan, M.D., the Claimant’s treating physician, referred him to Central Dallas Rehab (Provider) for physical therapy, which was provided from August 30, 2002, through December 13, 2002.
4. The Provider treated the Claimant’s injury and billed its services under CPT Codes 97110 (therapeutic exercises), 97750 (physical performance test), 97265 (joint mobilization), 97530 (therapeutic activity), 97250 (myofascial release), 97122 (neuromuscular re-education), 97750-MT (physical performance test), and 95937 (neuromuscular conditioning test).
5. The Carrier paid for the initial period of treatment from August 30, 2002, to October 7, 2002.
6. The Carrier denied payment in the amount of $5,310 for the medical services delivered from October 9, 2002, to December 13, 2002, on the basis that treatment was not medically necessary.
7. The Carrier paid for medical services delivered to the Claimant after December 13, 2002.
8. An examination of the Claimant on October 7, 2002, revealed that he was still experiencing left elbow pain, reduced range of motion, and muscle spasms, and the Provider recommended that treatment continue three times per week for an additional six to eight weeks.
9. An examination on December 11, 2002, revealed that the Claimant continued to experience left elbow pain, reduced range of motion, and muscle spasms. The Claimant reported that extension of the elbow was painful and that his grip strength was reduced.
10. An MRI performed on December 13, 2002, revealed joint space effusion, and an annular ligament tear of the radial head, which was a more serious injury than initially believed.
11. The Claimant had not previously been referred for an MRI because Dr. Sloan did not believe that the test was necessary. Dr. Sloan believed that the Claimant would quickly respond to therapy.
12. Testing conducted during the period referred to in Finding of Fact No. 6 showed that the Claimant was getting positive results from the treatment.
13. The Claimant returned to full duty following treatment.
14. The Provider documented that the medical services referred to in Finding of Fact No. 4 were medically necessary and reasonably required.
15. The Provider timely requested dispute resolution by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC).
16. On August 20, 2003, Maximus, an independent review organization certified by the Texas Department of Insurance, issued its decision finding that the medical services referred to in Finding of Fact No. 6 were not medically necessary. The MRD issued its findings and decision on September 5, 2003, concluding that the disputed expenses should not be paid, and the Provider timely appealed this decision.
17. TWCC sent notice of the hearing to the parties on October 28, 2003. The hearing notice informed the parties of the matter to be determined, the right to appear and be represented by counsel, the time and place of the hearing, and the statutes and rules involved.
18. The hearing on the merits convened on January 20, 2004, before Michael J. Borkland, Administrative Law Judge. The Provider was represented by Scott C. Hilliard, attorney, and the Carrier was represented by Dan C. Kelley, attorney. The hearing concluded that same day.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (TWCC) has jurisdiction to decide the issues presented pursuant to Tex. Labor Code §413.031.
2. 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 §413.031 and Tex. Gov’t Code ch. 2003.
3. Based on Finding of Fact No. 17, the Notice of Hearing issued by TWCC conformed to the requirements of Tex. Gov’t Code §2001.052.
4. The Provider has the burden of proving by a preponderance of the evidence that it should prevail in this matter. Tex. Labor Code §413.031.
5. Based on Findings of Fact Nos. 8 – 14, the Provider proved that reimbursement for treatment should be allowed.
6. Based on the foregoing Findings of Facts and Conclusion of Law, the Provider is entitled to reimbursement in the amount of $5,310 for the services provided on the disputed dates of service between October 9, 2002, and December 13, 2002.

ORDER

IT IS, THEREFORE, ORDERED that American Home Assurance Company shall reimburse Central Dallas Rehab for fees incurred in treating the Claimant in the amount of $5,310.

Signed February 17, 2004.

MICHAEL J. BORKLAND
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The seeping of serous, purulent, or bloody fluid into a body cavity or tissue. The American Heritage Dictionary of the English Language, Third Edition, page 588 (1996).↑