DECISION AND ORDER

Petitioner, Texas Mutual Insurance Company (Carrier), appealed the Findings and Decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC) ordering reimbursement to Julio Fajardo, D.C., (Provider) for medical services provided to N.C., (Claimant). Carrier disputes the IRO’s conclusion that these services were medically necessary. The Administrative Law Judge (ALJ) concludes that Carrier has met its burden of proof that the services in dispute provided to Claimant between November 13, 2002, and January 23, 2003, in the amount of $1,685.00, were not medically necessary. Accordingly, Carrier should not reimburse Provider for these services.

I. PROCEDURAL HISTORY

ALJ Penny Wilkov conducted a hearing in this case on August 12, 2004, at the State Office of Administrative Hearings, Austin, Texas. Attorney Patricia Eads represented Carrier. Provider appeared pro se. The hearing concluded and the record closed on the same day.

The parties did not contest notice or jurisdiction, which are addressed in the Findings of Fact and Conclusions of Law.

II. DISCUSSION

Background

Claimant sustained a work-related back injury on____, while performing his duties as a landscaper and was diagnosed with left L5 or S1 nerve root irritability. Shortly after the injury, x-rays, an MRI scan, an EMG, and nerve conduction studies were performed and all test results were within normal limits. However, Claimant continued to describe symptoms of persistent pain in the lower back radiating into the upper portion of the buttocks on the left.^[1] The medical records reflect that, since the date of the injury, Claimant has received left-sided facet injections and has been receiving physical therapy from Julio Fajardo, D.C.

Carrier denied payment in the amount of $1,685.00, using denial code V^[2] for the following treatments administered between November 13, 2002, and January 23, 2003: therapeutic exercises,^[3] aquatic therapy,^[4] office visits,^[5] along with related report filing.^[6]

Evidence and Argument

Carrier

Carrier argues that it should not be required to reimburse Provider for medical services provided between November 13, 2002, and January 23, 2003, since the types of treatments provided were medically inappropriate. Specifically, Carrier disputes the medical necessity of providing supervised, one-on-one, therapeutic exercises and aquatic physical therapy, related office visits, and preparation of a report, for a strained back muscle, when Claimant had already received six months of identical therapies without significant improvement.

Carrier submitted Claimant’s medical records and presented the testimony of Nicholas Tsourmas, M.D., and Judy A. Cirullo, through oral deposition, and David Alvarado, D.C.

Dr. Tsourmas, a board-certified orthopedic surgeon, testified that Claimant had a low back strain caused by bending over,^[7] and not facet syndrome, as suggested by a medical examination six months after the injury.^[8] This was established by Claimant’s MRI of the lumbosacral spine, one month after the injury, and spinal x-rays, weeks after the injury, revealing normal and unimpressive results.^[9] Dr. Tsourmas further considers that the source of the pain might be non-organic, as disclosed by a psychological questionnaire, and treatable by psychotherapy.

As to the necessity of the disputed services, Judy A. Cirullo, a physical therapist, testified that the thirty nine sessions of therapeutic exercises and aquatic physical therapy, rendered by Provider prior to the dates of disputed service, yielded minimal results, as did the services in dispute.^[10] Further, Ms. Cirullo noted that the October 2002 Functional Capacity Exam (FCE), prior to the disputed services, revealed that since Claimant was able to lift and carry eighty pounds, he could return to regular work activities as a landscaper.

David Alvarado, D.C., testified that the disputed services were not medically necessary. Since aquatic therapy is ordinarily reserved for individuals unable to tolerate any weight-bearing exercises, it was inappropriate to have therapeutic exercises with weights on the same day. This is particularly apparent when Claimant had measurable normal range of motion and strength in April and October 2002. Further, according to Dr. Alvarado, the appropriateness for one-on-one supervision is limited to either a safety concern or for instructional purposes for a home exercise program, neither of which were present here.

Provider

Provider argues that Carrier should be required to reimburse Provider for all medical services provided between November 13, 2002, and January 23, 2003, since the therapies, office visits, and

report were medically necessary. Provider states that the success of the treatment was threefold: an improvement in range of motion and strength, a return to work with the same capacity and employer, and the avoidance of further costly treatments. Provider also argues that he has co-managed the treatments with Claimant’s physicians and pain specialists by following their directions.

Provider testified that he carefully makes treatment decisions, co-managing with physicians, specialists, and peers, and adheres to the guidelines established by the North American Spine Society Guidelines (guidelines), which offer a medical protocol for treating lumbar injuries. Here, Claimant received facet injections and, according to the guidelines, the injections should be given in conjunction with physical therapies.

As far as the success, the March 2003 FCE, given after completion of the disputed services, demonstrated that Claimant had made significant improvements in lift and strength capabilities, eventually enabling him to return to his prior employment that required a heavy physical demand category. This is in contrast to the October 2002 FCE, where Claimant was measured in the light-to-medium physical demand category. Thus, Provider takes exception to Ms. Cirullo’s testimony that Claimant could have returned to his landscaping job prior to the disputed treatments.

As to the nature of the disputed services, these treatments were recommended by a board- certified physical rehabilitation specialist, Michael O. Seibel, D.O., who specified that Claimant needed aggressive treatment including increased weights and repetitions.^[11] A home exercise program to increase flexibility and range of motion would not have been appropriate for the increased strength and endurance required by a heavy physical demand category of work. Further, costly procedures were avoided by the treatments, such as a work hardening program recommended by the October 2002 FCE and a discogram recommended by a neurologist in August, 2002.

Provider also notes that the Independent Review Organization (IRO) concurred that the physical therapies and office visits were medically necessary.

Applicable Law

Under the workers’ compensation system, an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury. 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. Tex. Lab. Code Ann. § 408.021. “Health care” includes “all reasonable and necessary medical . . . services.” Tex. Lab. Code Ann.§ 401.011(19).

Analysis and Conclusion

Carrier has met its burden of proof with respect to the services in dispute provided to Claimant between November 13, 2002, and January 23, 2003. The evidence established that the treatments were overly supervised and excessive in light of the nature of the injury, a low back strain. The evidence also established that the Claimant had completed numerous identical therapy sessions prior to the disputed treatments, with no significant improvement, and more of the same therapies were not productive or medically necessary.

Carrier should not reimburse Provider for disputed services in the amount of $1, 685.00, provided between November 13, 2002, and January 23, 2003

III. FINDINGS OF FACT

1. Claimant sustained a work-related back injury on____, while performing his duties as a landscaper and was diagnosed with left L5 or S1 nerve root irritability.
2. At the time of the injury, Claimant’s employer had its workers’ compensation insurance through Texas Mutual Insurance Company (Carrier).
3. Shortly after the injury, x-rays, an MRI scan, an EMG, and nerve conduction studies were performed and all test results were within normal limits.
4. Claimant continued to describe symptoms of persistent pain in the lower back radiating into the upper portion of the buttocks on the left.
5. Since the date of the injury, Claimant has received left-sided facet injections and has been receiving physical therapy from Julio Fajardo, D.C. (Provider).
6. Provider submitted a claim to Carrier for treatment in the amount of $1,685.00 rendered to Claimant from October 2, 2002 until December 19, 2002, including procedures billed under CPT codes 99211 and 99213 (office visits), 97110 (therapeutic procedure and exercises), 97113 aquatic therapeutic exercises), and 99080 (additional report).
7. Carrier denied Provider’s request for reimbursement.
8. On June 30, 2003, Carrier requested medical dispute resolution with the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD).
9. An Independent Review Organization concluded that treatments rendered from October 2, 2002 until December 19, 2002, were medically necessary.
10. Carrier filed a request for a hearing before the State Office of Administrative Hearings on November 14, 2003.
11. The Commission sent notice of the hearing to the parties on December 19, 2003. The hearing notice informed the parties of the time, place, and nature of the hearing; the legal authority and jurisdiction under which the hearing was to be held; the statutes and rules involved; and the matters asserted.
12. The hearing convened on August 12, 2004, at the State Office of Administrative Hearings, Austin, Texas. Attorney Patricia Eads represented Carrier. Provider appeared pro se. The hearing concluded and the record closed on the same day.
13. Claimant had a low back strain caused by bending over and not facet syndrome, as suggested by a medical examination six months after the injury, since an MRI of the lumbosacral spine, taken one month after the injury, and spinal x-rays, taken weeks after the injury, revealed normal and unimpressive results.
14. Claimant had normal range of motion and strength as measured in April and October of 2002, prior to the disputed services.
15. The thirty nine sessions of therapeutic exercises and aquatic physical therapy, rendered by Provider prior to the dates of disputed service, yielded minimal results, as did the services in dispute, including aquatic therapy, therapeutic exercises therapy, office visits, and preparation of a related report.
16. Carrier has shown that the disputed services rendered between October 2, 2002 until December 19, 2002, were not medical necessary.

IV. CONCLUSIONS OF LAW

1. The State Office of Administrative Hearings (SOAH) has jurisdiction over matters related to the hearing, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. § 413.031(K) and Tex. Gov’t Code Ann. ch. 2003.
2. Provider timely filed a request for hearing before SOAH, as specified in 28 Tex. Admin. Code § 148.3.
3. The parties received proper and timely notice of the hearing pursuant to Tex. Gov’t Code Ann. ch. 2001 and 1 Tex. Admin. Code § 155.27.
4. Carrier had the burden of proving the case by a preponderance of the evidence pursuant to 28 Tex. Admin. Code § 148.21.
5. 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).
6. Health care includes all reasonable and necessary medical services. Tex. Lab. Code Ann. § 401.011(19)(A).
7. Carrier establish that the physical therapy modalities billed under CPT codes including procedures billed under CPT codes 99211 and 99213 (office visits), 97110 (therapeutic procedure and exercises), 97113 (aquatic therapeutic exercises), and 99080 (additional report) are not reimbursable under Tex. Lab. Code Ann. §§ 401.011(19) and 408.021(a).
8. Carrier should not reimburse Provider for all services provided to Claimant, as noted in Finding of Fact No. 6.

ORDER

IT IS ORDERED that Julio Fajardo, D.C. is not entitled to reimbursement by Texas Mutual Insurance Company for the physical therapy modalities in the amount of $1,685.00, billed under CPT codes including procedures billed under CPT codes 99211 and 99213 (office visits), 97110 (therapeutic procedure and exercises), 97113 (aquatic therapeutic exercises), and 99080 (additional report) which were provided to Claimant between November 13, 2002, and January 23, 2003.

Signed October 5, 2004.

PENNY WILKOV
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. ¹ Petitioner’s Exhibit 1, page 254 (Examination by Karl D. Erwin, M.D., January 30, 2003).↑
2. ² Denial Code V is used when the insurance carrier is denying payment because the treatment or service is medically unreasonable and unnecessary based on a peer review.↑
3. ³ CPT Code 97110 (therapeutic procedure and exercises to develop strength and endurance, range of motion and flexibility).↑
4. ⁴ CPT Code 97113 (aquatic therapeutic exercises).↑
5. ⁵ CPT Code 99211 (evaluation and management of an established patient) and 99212 (established patient with two components: a problem focused history, a problem focused examination, or medical decision making).↑
6. ⁶ CPT Code 99080 (additional report requested).↑
7. ⁷ Petitioner’s Exhibit 2, page 211, Claimant described that he was shoveling some dirt when the injury occurred (examination by Ved V. Aggarwal, M.D., July 1, 2002).↑
8. ⁸ Petitioner’s Exhibit 2, page 219, (Examination of Michael O. Siebel, D.O.).↑
9. ⁹ Petitioner’s Exhibit 2, page 226, (Texas Imaging and Diagnostic Center, May 17, 2002).↑
10. ¹⁰ Ms. Carillo contrasted a May 17, 2002, physical diagnostic test and an October 2, 2002, functional capacity test with the comparison yielding no tangible improvement in Claimant’s condition.↑
11. ¹¹ Petitioner’s Exhibit 1 (page 209, December 10, 2002).↑