DECISION AND ORDER

Texas Mutual Insurance Company (Petitioner) appealed the findings and decision of the Texas Workers’ Compensation Commission’s designee, an independent review organization (IRO), in MDR Docket No. M5___ which granted reimbursement to Patrick Davis, D.C., (Respondent) for physical therapy services and office visits provided a workers’ compensation claimant (Claimant). Petitioner had denied reimbursement on the grounds not all the services billed were reasonable and medically necessary healthcare. This decision and order finds the disputed services were reasonable and medically necessary for Claimant.

I. NOTICE, JURISDICTION, AND PROCEDURAL HISTORY

There were no contested issues of jurisdiction or notice. Those issues are set out only in the Findings of Fact and Conclusions of Law below.

The hearing in this matter convened May 4, 2003, before State Office of Administrative Hearings (SOAH) Administrative Law Judge (ALJ) Ann Landeros. Attorney Katie Kidd represented Petitioner. Dr. Davis represented himself. The Commission Staff did not participate in the hearing. The record, which was left open to allow the parties to submit information regarding the number of physical therapy units in dispute, closed May 26, 2004.

II. DISCUSSION

A. Factual Background

On ___, Claimant sustained a compensable injury when he fell onto his back from about 20 feet. At the time of the injury, Petitioner was the workers’ compensation insurer for Claimant’s employer.

Respondent first examined Claimant on ___, and diagnosed him with multiple strains, sprains, and contusions, and sacral myelopathy. Claimant began physical therapy in early December 2001, which continued through March 2002. Petitioner denied reimbursement for physical therapy services, neuromuscular reeducation, durable medical equipment, and office visits provided from December 2001 through June 2002.

After Petitioner denied reimbursement for the services as being medically unnecessary, Respondent requested the Commission review the denial. That review produced the IRO decision, which granted reimbursement only for:

CPT 97110 (six units of physical therapy per day) from December 3, 2001, through January 25, 2002;

CPT 97112 (two sessions of neuromuscular reeducation) on January 1 and 28, 2002 ;

CPT 99215 (one office visit) on January 25, 2002;

CPT 97530 (six units of one-on-one therapy) on January 28, 2002; and

CPT 99213 (office visit) one per week billed January 28 through March 21, 2002.

As a basis for the decision, the IRO reviewer wrote:

. . . Actual active chiropractic care did not begin, as documented, until 12/3/01. The evidence based Official Disability Guidelines 2003 issue recommends up to 18 visits over a 6-8 week period for treatment of cervical and lumbar intervertebral disc syndrome without myelopathy and radiculopathy syndromes, and anywhere from 9-12 visits of physical therapy for knee internal derangement problems as well as knee and wrist sprain/strain injuries. I will agree that some gradual objective improvements were documented in the chiropractic documentation; however the month to month improvements over a 6 month period were minimal and did not beat or surpass the natural history of the injuries sustained. . . . In other words, the provided chiropractic treatment did not progress the claimant any faster than had the claimant had no treatment at all or had he been seen for a few weeks of active care and then been transferred into a home based exercise program. . . . These [stretching and active movement against gravity type exercises] could have been taught to the claimant and he could have been instructed over an 8 week period with transition into a home based exercise program and the same results would have likely occurred. Slow gradual improvement does not justify prolonged treatment. It is not proper management to run the claimant through 54 documented visits of physical therapy through 3/22/02 and then decide to refer the claimant out for orthopedic opinions.

The IRO denied reimbursement of all the other disputed services as not being reasonable or medically necessary healthcare. Petitioner timely appealed that part of the IRO decision that was adverse to its position. Respondent did not appeal any part of the IRO decision.

At the hearing, the parties stipulated that Petitioner would pay reimbursement at the rate of $48 per visit for one office visit per week billed under CPT code 99213 for the period from January 28 through March 21, 2002. The ALJ accepted the stipulation.

B. Legal Standards

Petitioner has the burden of proof in this proceeding. 28 TEX. ADMIN. CODE (TAC) §§ 148.21(h) and (i). Pursuant to the Act, an employee who has sustained 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 cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to

or retain employment. TEX. LAB. CODE ANN. § 408.021(a). Health care includes all reasonable and necessary medical services including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. § 401.011(31).

Because the disputed services in this case were provided prior to September 1, 2002, the Commission’s 1996 Medical Fee Guideline (MFG) governs this matter. 28 TAC §§ 134.201 and 134.202. For treatment before January 1, 2002, the Commission’s Spine, Upper Extremity, and Lower Extremity Guidelines applied. 28 TAC § 134.1001, 134.1002, and 134.1003 (repealed January 1, 2002).

According to the MFG’s Medicine Ground Rule A.10.a., after the acute phase of an injury, only one (maximum two-hour) session of physical medicine per day is allowed. Neuromuscular reeducation consists of balance and coordination training, perceptual and motor training, and developmental and sensory integration techniques, billed under CPT code 97112. MFG Ground Rule C.2. During the primary non-operative level of care, which generally lasts eight weeks, the Spine Treatment Guideline’s recommended interventions included attended procedures, neuromuscular reeducation, exercise, and concurrent home programs. 28 TAC §134.1001 (repealed). The Upper and Lower Extremity Guidelines contained similar recommendations.

C. Petitioner’s Evidence

Petitioner’s experts, orthopedic surgeon Nicholas Tsourmas, M.D., and chiropractor David Alvarado, both testified that Claimantreceived excessive treatment. Both these doctors felt that after several instructional sessions, Claimant should have been released to perform exercises at home or in a gym, with periodic (no more than once per week) office visits to check his progress.

In the physical therapy sessions, Claimant exercised with a windjammer (a machine that works the upper body in much the same way a stationary bicycle works the lower body), a stationary bicycle, and therabands, all equipment available in most gyms. Dr. Tsourmas stated that Claimant should have been able to transition to a home based exercise program after three or four training sessions on this equipment. He found Petitioner had been more than generous in paying for multiple units of physical therapy sessions for Claimant. With regard to Respondent’s one-on-one physical therapy sessions, Dr. Tsourmas described Respondent as doing no more than serving as Claimant’s personal trainer in a clinical setting.

Because Respondent did not document that Claimant had any learning problems, neither expert could understand why Claimant was not given instructions on a home-based exercise program after the first eight weeks of physical therapy. At that point, Claimant’s physical condition was stable so there were no documented safety issues that would have contraindicated a home exercise program. Both Petitioner’s experts found reimbursement for one office visit per week in February and March 2002 to be more than generous.

Dr. Alvarado found the physical therapy records failed to document Claimant’s progress because they did not mention whether the weights or repetitions increased over time. He found Respondent’s office visit notes insufficient to establish the time spent because there was no notation of when Claimant arrived and left. He described the notes as highly repetitive. He also stated that the office visit notes did not meet the criteria for billing under CPT 99215 because there was no documentation of a multi-system examination. He would have approved two units of one-on-one

physical therapy for four weeks, then reduced the one-on-one therapy to one unit every two to three office visits, until January 25, 2002, after which he believed the physical therapy was not medically necessary.

Respondent described the joint mobilizations as an exercise done independently by Claimant. Dr. Alvarado believed joint mobilization is a procedure done by the physician as a precursor to manipulations. He also found the joint mobilization and myofascial release charges to be inappropriately billed. Myofascial release is appropriate in the acute phase of treatment. The thirty to forty sessions of myofascial release done after the acute phase were excessive and occurred too late in the rehabilitation to be effective. It was not clear why Dr. Alvarado mentioned the joint mobilization and myofascial release services because CPT codes for those specific services were not were not specifically listed on the table of disputed services.

Drs. Alvarado and Tsourmas rejected Respondent’s diagnosis of sacral myelopathy because myelopathy is a compression of the spinal cord and the spinal cord does not extend into the sacrum.

D. Respondent’s Evidence

Respondent Dr. Davis testified on his own behalf.

Although Claimant was encouraged to perform home exercises (walking, stretching, active range of motion in the spine), Dr. Davis stated that Claimant needed one-on-one supervision in the clinical setting during the “more cumbersome” physical therapy exercises so he would not re-injure or exacerbate his injuries. According to Dr. Davis the home exercises differed from the clinical physical therapy in that the former were not load bearing, while the latter involved resistance. He cited the windjammer as an example of a machine that was programmed to provide resistence during Claimant’s work-out. He believed the progress notes showed Claimant’s physical therapy got more difficult over time. He asserted the therabands Claimant used were not home exercise quality as they were connected to a wall to provide resistance.

Dr. Davis presented his progress notes and exercise list for Claimant’s physical therapy sessions. A typical progress note (for January 2, 2002) read:

The patient attempted and performed 6 prescribed active therapeutic procedures, taking no longer than 1 hour and 30 minutes. The prescribed therapeutic procedures are supervised and in a one on one setting. The prescribed active units benefit the lumbar spine region primarily, with regard to primary pain generators-the other compensable injured sites benefit secondarily due the inclusive nature of each prescribed active unit. The active components of the aforementioned prescribed treatment plan are medically indicated and appropriate to address weakness, compromised ranges of motion, and lack of whole person function. In office 4oz arctic deep heat analgesic application to decrease intensity of pain and spasms. The analgesic cream application helps decrease muscle spasms across the injured areas, allowing greater AROMS during prescribed therapeutic activities. . . . The patient requires one-on-one interaction and supervision during the prescribed active procedures to ensure the safety of the patient’s condition (prevention of exacerbation or re-injury) and to ensure continued clinical improvements of function, body mechanics, coordination, weakness, stamina and endurance. (Carrier Ex. 1, p. 67).

Included with Claimant’s physical therapy notes was a check-off list entitled “Therapeutic Procedures” listing the various exercises that Claimant performed during that session (e.g. “Dynamic Schwin 330i Stepper-15 minutes”). When appropriate, the weights used during the exercise were noted (e.g., “Dynamic Supine Hip Flexion-flexed knee-position 1-3 x 12 weights-1 lbs., 2 lbs., 4 lbs., 6 lbs.”). The check-off list noted the number of sets and repetitions done during a weight-bearing exercise, but did not indicate the total time spent on the exercise. For stationary equipment such as bicycles, the exercise was noted as lasting 15 minutes. While the types of exercise varied somewhat between sessions, according to the check-off list Respondent used the same weights and did the same number of repetitions and spent the same amount of time on stationary exercise equipment during each session from December 2001 through March 2002. (See Res. Ex. 1, p. 27, 154).

Dr. Davis did not think multiple sessions of clinical physical therapy would produce patient dependency because he doubted the patients enjoyed physical therapy very much.

With regard to Claimant’s office visits billed under CPT 99215, Dr. Davis stated this code was used for the more comprehensive exams. Although he looked at all the body systems during the examination, he concentrated and focused his chart notes on the injured body parts. His office notes are customized narratives based on the 1998 American Medical Association guidelines. He admitted the chart notes are computer-generated.

On March 22, 2002, Respondent discontinued Claimant’s physical therapy and referred him for an orthopedic consultation for his back and left shoulder and wrist. (Res. Ex. 1, p 155). Claimant ultimately had to have lumbar fusion surgery.

E. Analysis

Petitioner failed to meet its burden of proof to show by a preponderance of the evidence that the reimbursement approved by the IRO was not for reasonable or medically necessary healthcare for Claimant.

The IRO reviewer approved only eight weeks (December 3, 2001, through January 28, 2002) of clinical physical therapy, about the same amount of time that Petitioner’s experts said would be sufficient to train Claimant for a home-based exercise program. Dr. Alvarado stated the physical therapy was not medically necessary after January 25, 2002, while Dr. Tsourmas did not dispute that the first eight weeks of physical therapy was appropriate. The Commission’s Treatment Guidelines also recommended exercise during the first eight weeks of active treatment.

Petitioner’s experts testified that the amount of physical therapy given after January was excessive. As Dr. Davis did not appeal the denial of physical therapy reimbursement for dates after January 28, 2002, it is not clear why Petitioner’s experts addressed those dates in their analyses. The amount of physical therapy given daily during December 2001 and January 2002 was not shown to be excessive.

In its stipulation, Petitioner waived its dispute of the IRO’s approval of the weekly office visits billed under CPT 99213 through March 21, 2002. Dr. Davis’s documentation and testimony were sufficient to establish that the office visit billed under CPT 99215 on January 25, 2002, was reimbursable as a comprehensive examination.

The IRO decision in this matter granted appropriate reimbursement to Dr. Davis, which Petitioner should pay.

III. FINDINGS OF FACT

1. On ___, Claimant sustained a compensable injury when he fell onto his back from a height of 20 feet.
2. At the time of the injury, Texas Mutual Insurance Company (Petitioner) was the workers’ compensation insurer for Claimant’s employer.
3. Dr. Patrick Davis, D.C., (Respondent) first examined Claimant on October 31, 2001, and diagnosed him with multiple strains, sprains, and contusions, and sacral myelopathy.
4. Claimant began physical therapy on December 3, 2001, which continued through March 22, 2002.
5. Petitioner denied reimbursement for physical therapy services, neuromuscular reeducation, durable medical equipment, and office visits provided from December 2001 through June 2002.
6. After Petitioner denied reimbursement for the services as being medically unnecessary, Respondent requested the Commission review the denial. That review produced the Independent Review Organization’s (IRO) decision, which granted reimbursement only for:

CPT 97110 (six units of physical therapy per day) from December 3, 2001, through January 25, 2002;

CPT 97112 (to sessions of neuromuscular reeducation) on January 1 and 28, 2002 ;

CPT 99215 (one office visit) on January 25, 2002;

CPT 97530 (six units of one-on-one therapy) on January 28, 2002;

CPT 29213 (office visit) one per week billed January 28 through March 21, 2002.

1. Petitioner timely appealed that part of the IRO decision that was adverse to its position.
2. Respondent did not appeal any part of the IRO decision.
3. Pursuant to the Commission’s notice of hearing, Petitioner and Respondent appeared or were represented at the hearing in this matter .
4. Claimant’s physical therapy sessions included weight lifting, use of a stationary bicycle and windjammer machines, use of resistance equipment such as fixed therabands, and various range of motion exercises.
5. The six units of physical therapy sessions per day billed under CPT code 97110 from December 1, 2001, through January 25, 2002, were needed to instruct Claimant on how to safely perform range of motion exercises with resistence so that he could transition to a home-based exercise program.
6. Six units of physical therapy on January 28, 2002, billed under CPT 97530 were needed to monitor Claimant’s progress in therapy.
7. During Claimant’s weekly office visits , billed under CPT 99213 from January 28, through March 21, 2002, Respondent examined Claimant and evaluated his progress with physical therapy and other treatments.
8. On January 25, 2002, Respondent performed a comprehensive examination of Claimant, including an evaluation of all the major body systems.
9. During the first eight weeks of Claimant’s physical therapy, six quarter-hour units of physical therapy a day was not excessive, especially given the type and variety of exercises Claimant was learning.
10. Claimant benefitted from sessions of neuromuscular education given January 1 and 28, 2002, and billed under CPT 97112.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction over this matter pursuant to the Texas Workers’ Compensation Act (Act), TEX. LAB.CODEANN. § 413.031.
2. The State Office of Administrative Hearings has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to § 413.031(d) of the Act and TEX. GOV’TCODE ANN. ch. 2003.
3. The IRO was authorized to hear the medical disputes pursuant to 28 TEX. ADMIN. CODE (TAC) § 133.308.
4. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV’T CODE ANN. ch. 2001 and the Commission’s rules, 28 TAC § 133.308(u).
5. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. § 2001.051 and 2001.052.
6. Petitioner had the burden of proof in this proceeding. 28 TAC § 148.21(h) and (i); 1 TAC § 155.41.
7. Pursuant to the Act, an employee who has sustained 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 cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. TEX. LAB. CODE ANN. §408.021(a).
8. Health care includes all reasonable and necessary medical services. TEX. LAB. CODE ANN. § 401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. § 401.011(31).
9. Because the disputed services in this case were provided prior to September 1, 2002, the Commission’s 1996 Medical Fee Guideline (MFG) governs this matter. 28 TAC §§ 134.201 and 134.202.
10. For treatment before January 1, 2002, the Commission’s Spine, Upper Extremity, and Lower Extremity Guidelines applied. 28 TAC § 134.1001, 134.1002, and 134.1003 (repealed January 1, 2002).
11. According to the MFG’s Medicine Ground Rule A.10.a., after the acute phase of an injury, only one (maximum two-hour) session of physical medicine per day is allowed.
12. Neuromuscular reeducation consists of balance and coordination training, perceptual and motor training, and developmental and sensory integration techniques, billed under CPT code 97112. MFG Ground Rule C.2.
13. During the primary non-operative level of care, which generally lasts eight weeks, the Spine Treatment Guideline’s recommended interventions included attended procedures, neuromuscular reeducation, exercise, and concurrent home programs. 28 TAC § 134.1001 (repealed).
14. Claimant’s physical therapy billed under CPT 97110 during December 2001 and January 2002 was reasonable and medically necessary healthcare.
15. One office visit per week billed under CPT 99213 was reasonable and medically necessary healthcare for Claimant from January 28 through March 22, 2002.
16. Claimant’s office visit on January 25, 2002, billed under CPT 99215, was reasonable and medically necessary healthcare.
17. Claimant’s neuromuscular reeducation sessions on January 1 and 28, 2002, billed under CPT 97112 were reasonable and medically necessary healthcare.
18. Claimant’s six units of one-on-one physical therapy on January 28, 2002, billed under CPT 97530, were reasonable and medically necessary healthcare.
19. Respondent is entitled to reimbursement from Petitioner for the services described in Conclusions of Law Nos. 9-18.

ORDER

It is ORDERED that Texas Medical Insurance Company reimburse Dr. Patrick Davis for the following services rendered Claimant: six units of physical therapy per session billed under CPT 97110 from December 3, 2001, through January 25, 2002; for one office visit per week billed under CPT 99213 from January 28 through March 22, 2002; for the six units of one-on-one physical therapy billed under CPT 97530 on January 28, 2002; neuromuscular reeducation sessions on January 1 and 28, 2002, billed under CPT 97112; and for the office visit billed under CPT 99215 on January 25, 2002.

Signed June 15, 2004.

ANN LANDEROS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS