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Title: 

453-04-1959-m5

Date: 

July 13, 2004

Type: 

Retrospective Medical Necessity

453-04-1959-m5

DECISION AND ORDER

Southeast Health Services, Inc. (Provider) contested the decision of the Medical Review Division (MRD) of the Texas Workers= Compensation Commission (the Commission) declining to order reimbursement of $2,230 fordetailed office visits, hot/cold packs, therapeutic exercises, myofascial release, joint mobilization, vasopneumatic treatment, and electrical stimulation that were provided to Claimant on nine dates of service between September 6, 2002, and September 30, 2002. Carrier denied reimbursementon the basis that the treatment was not reasonable or medically necessary.The Administrative Law Judge (ALJ) finds the disputed treatmentwasreasonable andmedically necessary, except for the myofascial release administered on September 25, 2002. Therefore, Carrier isto reimburse Provider $2,185.

I. PROCEDURAL HISTORY

ALJ Sharon Cloninger convened and concluded the hearing onJune 1, 2004,in the William P. Clements Building, 300 West 15th Street, Fourth Floor, Austin, Texas.Provider’s representative Bryan Weddle, D.C., appeared via telephone.Carrier was represented by Kevin Franta, attorney.The parties did not contest notice or jurisdiction, which are addressed in the Findings of Fact and Conclusions of Law below.

II. BACKGROUND

Claimant suffered a compensable injury on ___, when he twisted his back using a dolly-converter in his job as a driver for a delivery service. He suffered lower back pain radiating into the right buttocks region, with tenderness over the lower lumbar spine. Craig Duhon, M.D., Claimant’s treating doctor, diagnosed him to have lumbar strain. Claimant was released to return to work on light duty on January 21, 2002.

Claimant reached maximum medical improvement (MMI) on March 8, 2002. A March 12, 2002 functional capacity evaluation (FCE) indicated he could work at a medium-to-heavy physical level; his job only required a medium physical level. A March 21, 2002 MRI scan of Claimant’s lumbar spine revealed a small central herniated disc at the L5-S1 level, and a bulging disc at the L3-4 and L4-5 levels.

In early September 2002, Claimant suffered a flare-up of his disc injury. As a result, Dr. Duhon referred Claimant to Provider on September 4, 2002, for evaluation, and for treatment three times a week for four weeks using a McKenzie[1] protocol, back protocol, and heat. Provider evaluated Claimant on September 5, 2002, and treated him from September 6, 2002, through September 30, 2002.

Provider requested reimbursement from Carrier for Claimant’s treatment, which was denied. Provider appealed Carrier’s denial before the Commission’s Medical Review Division (MRD). The MRD denied Provider’s appeal following its review of adecision issued by an independent review organization (IRO) finding the treatments were not reasonable or medically necessary.

III. APPLICABLE LAW

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 injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment. Tex. Lab. Code ‘408.021(a).

IV. EVIDENCE AND DISCUSSION

Provider called one witness and offered one exhibit, which was admitted. Carrier called one witness and offered two exhibits, which were admitted.

A. Testimony of Bryan Weddle, D.C.

Dr. Weddle testified that Claimant suffered an acute flare-up of his compensable injury on the job in ___. He said Claimant’s condition was acute rather than chronic, so it was appropriate to use some passive therapies in his treatment. He noted that when Claimant re-aggravated the injury, he was on a home exercise program for his back, so continuing the home exercise program alone was not practical. He said Claimant needed one-on-one supervision while exercising to ensure that he performed the therapeutic exercises properly and in a mechanically correct way, so as not to re-exacerbate his injury.

B. Testimony of Thomas B. Sato, D.C.

Dr. Sato testified for Carrier that the disputed treatment was not reasonable or medically necessary. He said there is no documentation to support the need for one-on-one supervision of Claimant when he performed therapeutic exercises. He said Claimant had participated in the McKenzie protocol from January 2002 through May 2002, so he should have been adept at McKenzie exercises by September 2002.

He noted that the joint mobilization performed on September 6, 2002, was to the sacrum and thoracic region, areas not related to the lumbar injury.[2] He said the joint mobilization performed on September 11, 2002, was to Claimant’s entire back, not just the lumbar region.[3] Likewise, Dr. Sato said the joint mobilization done on September 18, 2002, was to more than the lumbar spine.[4] Dr. Sato pointed out that the myofascial release performed by Provider on September 25, 2002, was to Claimant’s neck and shoulders, and did not involve his lumbar spine.[5](Carrier’s Exh. 1, 100-101). He said the joint mobilization done on September 27, 2002, was to regions in addition to the lumbar spine.[6]

Dr. Sto testified that according to a comparison of Claimant’s beginning objective measurements and ending objective measurements, his lumbar flexion, lumbar extension, and lumbar lateral flexion all decreased; his straight leg raise on the left remained the same at 50 degrees; and his straight leg raise on the right improved from 45 degrees to 58 degrees. He said overall, Claimant was Agoing backwards. (See Carrier’s Exh. 1, A0104).[7]

C. Documentary evidence

Peer review

Dr. Sato prepared a Preliminary Chiropractic Modality Review on April 18, 2002. He recommended no further treatment for Claimant as of March 8, 2002, when Claimant reached MMI, unless documentation could support medical necessity, because Claimant’s March 12, 2002 FCE had shown him to be rated over his physical work demand level. (Provider’s Exh. 1, 3-5).

Medical records

Provider examined Claimant on September 5, 2002, the day before the first disputed date of service, and found Claimant’s lumbar flexion to be 60/60; extension 20/25; left lateral flexion 23/35; and right lateral flexion 30/35. Claimant’s lumbar strength was 5/5 as to flexion, right rotation, left rotation, and both right and left lateral flexion. His strength was 4/5 as to extension. Claimant reported increased back pain after driving at work, and said he used a cane if he drove eight or more hours in a day. (Provider’s Exh. 1, 6 and 8).

Provider re-examined Claimant on September 27, 2002, three days before the last disputed date of service, and foundClaimant to be moving more fluidly upon standing from a seated position, although he would still move slowly to an erect position. Claimant’s range of motion in left extension had improved from 20/25 on September 5, 2002, to 25/25; his lateral flexion had improved to 35/35; his lumbar strength on extension had increased from 4/5 to 5/5; his muscle spasms had decreased by 50 percent; he had increased sitting tolerance; and he had discontinued use of the cane. (Provider’s Ex. 1, 11).[8]

Letter from Dr. Weddle

In an October 13, 2003 letter, Dr. Weddle outlined the treatment Provider had given Claimant. The letter stated that during Claimant’s initial evaluation on September 5, 2002, it was determined that Claimant wanted to rid himself both of pain and of the tingling in his leg after working, and to increase his mobility. Claimant’s short-term goals were to increase his range of motion, increase his manual muscle strength, and decrease his lumbar muscle spasms by 50 percent. His long-term goals were to increase his range of motion to full limits, increase his lumbar strength to 5/5, and minimize his muscle spasms.

The letter describes the regimen that was initiated for Claimant to follow three times a week for four weeks:

1) therapeutic exercise to increase strength, endurance, and range of motion;

2) electrical stimulus and vasopneumatic modalities to stimulate endorphin/enkephalin release and decrease pain, edema, and myospasm;

3) myofascial release for increased range of motion and decreased myospasm;

4) joint mobilization for increased range of motion, decreased myospasms, decreased acute trauma/aggravation to disc, and to promote fluid joint motion.

The letter states that when Claimant was re-evaluated September 27, 2002, he had increased his range of motion,increased his manual muscle strength, increased his sitting tolerance with minimal increase in symptoms, and decreased his myospasms. (Provider’s Exh. 1, 1).

V. ANALYSISAND CONCLUSION

A. Analysis

The issue in this cse is whether the disputed treatments were reasonable and medically necessary to treat Claimant’s compensable injury.Although Claimant reached MMI in March 2002, and an FCE conducted that same month indicated his physical work level was above the Amedium level required for his job, his suffering of a flare-up in September 2002 entitled him to further medical treatment for the acute condition to cure or relieve the effects naturally resulting from his compensable injury.

Claimant returned to work in ___, just weeks after his ___ back injury. By September 2002, even though he was doing back exercises at home, his back condition was such that he had to use a cane if he drove for eight or more hours in a day. It was reasonable and medically necessary at that point for Dr. Duhon to refer him to Provider for evaluation and treatment, with the goal of increasing Claimant’s range of motion and strength.

The passive modalities used by Provider to treat Claimant’s flare-up were appropriate for the acute condition. The one-on-one supervision of therapeutic exercises was appropriate to ascertain that Claimant was doing his exercises properly and in a mechanically correct way, since Claimant’s use of home exercises for several previous months had not adequately increased his strength or range of motion to prevent exacerbation of his injury.While it might appear that the medical records are in conflict as to whether Provider’s treatment improved Claimant’s range of motion, a close reading of the records indicates the decrease in range of motion noted on September 27, 2002, was most likely due to the fact that Claimant had not stretched or warmed-up before the testing. Another medical record also dated September 27, 2002, indicates Claimant’s range of motion and strength had increased over the nine disputed dates of service, and that he no longer needed to use a cane.

Although Provider administered joint mobilization to areas of Claimant’s back, in addition to the injured lumbar region, Provider only charged for one joint mobilization on the dates in question, so should be paid for them. However, Provider should not be reimbursed $45 for the myofascial

release administered only to Claimant’s neck and shoulders on September 25, 2002, because the compensable injury was not to his neck or shoulders.

B. Conclusion

The ALJ finds all disputed treatments from September 6, 2002, through September 30, 2002, except for the myofascial release on September 25, 2002, to be reasonable and medically necessary to treat Claimant’s September 2002 exacerbation of injury, especially given that passive care is a vital component of treatment for acute injuries. The ALJ also finds the disputed treatments to have been medically necessary for Claimant’s recovery, as evidenced by his improved strength and range of motion. Provider proved the disputed treatments were reasonable and medically necessary. Therefore, Provider is entitled to reimbursement of $2,185 from Carrier.

VI. FINDINGS OF FACT

  1. Claimant sustained a compensable work-related injury to his lower back on ___, while working as a driver for a delivery service whose workers= compensation insurance carrier at the time was Liberty Mutual Insurance Company (Carrier).
  2. As a result of his compensable injury, Claimant suffered lower back pain radiating into the right buttocks region, with tenderness over the lower lumbar spine.
  3. Craig Duhon, M.D., treated Claimant for his injury, and diagnosed him to have lumbar strain.
  4. Claimant was released to return to work on light duty on ___.
  5. Claimant reached maximum medical improvement (MMI) on March 8, 2002.
  6. A March 12, 2002, functional capacity evaluation (FCE) indicated Claimant could work at a medium-to-heavy physical level; his job only required him to work at a medium physical level.
  7. A March 21, 2002, MRI scan of Claimant’s lumbar spine revealed a small central herniated disc at the L5-S1 level, and a bulging disc at the L3-4 and L4-5 levels.
  8. Claimant exacerbated his injury in September 2002, and had to use a cane to walk after driving for eight or more hours in a day.
  9. Dr. Duhon referred Claimant to Southeast Health Services, Inc. (Provider) on September 4, 2002, for evaluation and four weeks of treatment three times per week using a McKenzie protocol, back protocol, and heat.
  10. Provider’s use of passive modalities was reasonable and medically necessary to treat Claimant’s flare-up, which was an acute condition:
    1. Electrical stimulation and vasopneumatic modalities stimulated Claimant’s endorphin/enkephalin release and decreased pain, edema, and myospasms;
    2. myofascial release increased Claimant’s range of motion and decreased myospasms; and

c.joint mobilization increased Claimant’s range of motion, decreased myospasms and acute trauma/aggravation to the injured disc, and promoted fluid joint motion.

  1. Provider’s use of therapeutic exercises to increase Claimant’s strength, endurance, and range of motion was reasonable and medically necessary.
  2. One-on-one supervision of Claimant while he performed therapeutic exercises was reasonable and medically necessary to ensure Claimant performed the exercises properly, and in a mechanically correct way so as not to re-exacerbate his compensable injury.
  3. Provider’s use of myofascial release on Claimant’s neck and shoulders was not reasonable or medically necessary to treat Claimant’s compensable injury to his lumbar spine.
  4. Between September 5, 2002, and September 27, 2002, Claimant’s lumbar extension had improved from 20/25 to 25/25; his lateral flexion had improved from 23/35 on the left and 23/35 on the right to 35/35; his lumbar strength on extension had increased from 4/5 to 5/5.
  5. Between September 5, 2002, and September 27, 2002, Claimant’s range of motion, manual muscle strength, and sitting tolerance had increased; his myospasms had decreased by 50 percent; and he had discontinued use of the cane.
  6. Provider’s treatment was reasonable and medically necessary to promote Claimant’s recovery from the exacerbation of his compensable injury, and to cure or relieve the effects naturally resulting from his injury.
  7. Provider sought reimbursement of $2,230 from Carrier for the treatments rendered to Claimant, which included:

a. Detailed office visit (CPT Code 99243) on September 27, 2002;

b. therapeutic exercises (CPT Code 97110) onSeptember 6, 9, 11, 16, 18, 23, 25, 27, and 30, 2002;

c. joint mobilization (CPT Code 97265)on September 6, 11, 18, 23, and 27, 2002;

d. electrical stimulation (CPT Code 97032) on September 18, 2002;

e. and myofascial release (CPT Code 97250) on September 6, 23, and 25, 2002;

f. Vasopneumatic therapy (CPT Code 97016) on September 11, 2002; and

g. Hot/cold pack (CPT Code 97010) on September 18, 2002.

  1. Carrier refused to reimburse Provider for the above services because based on a peer review, further treatment was not needed.
  2. Provider filed a request for medical dispute resolution with the Texas Workers= Compensation Commission’s Medical Review Division (MRD), asking for reimbursement of $2,230 for the above-described services.
  3. The MRD issued a decision on November 4, 2003, after reviewing the IRO decision, stating that Provider did not prevail on the issues of medical necessity.
  4. On December 2, 2003, Provider contested the MRD decision to the State Office of Administrative Hearings (SOAH).
  5. On January 12, 2004, notice of the hearing in this case was mailed to Provider and Carrier.
  6. 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.
  7. On June 1, 2004, SOAH Administrative Law Judge Sharon Cloninger held a hearing in the William P. Clements Building, Fourth Floor, 300 West 15th Street, Austin, Texas. Provider’s representative Bryan Weddle. D.C., appeared via telephone, andCarrier’s attorney Kevin Franta attended the hearing. The hearing concluded and the record closed that same day.

VII. CONCLUSIONS OF LAW

  1. 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.
  2. Provider timely requested a hearing contesting the decision of TWCC’s Medical Review Division (MRD), as specified in 28 Tex. Admin. Code (TAC) ‘ 148.3.
  3. 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).
  4. Provider has the burden of proving the case by a preponderance of the evidence, pursuant to 28 TAC ‘148.21(h) and (i).
  5. Based on the above Findings of Fact and Conclusions of Law, and pursuant to Tex. Labor Code ‘ 408.021(a), Provider’s treatment of Claimant’s compensable injury was reasonable and medically necessary.
  6. Based on the above Findings of Fact and Conclusions of Law, Provider’s request should be granted in part, and Provider should be reimbursed $2,185.

ORDER

Provider had the burden of proof in this case. Provider met its burden. IT IS, THEREFORE, ORDERED THAT Liberty Mutual Insurance Company is to reimburse Southeast Health Services, Inc., payment of $2,185 for treatment provided to Claimant September 6, 2002, through September 30, 2002.

Signed July 13, 2004.

SHARON CLONINGER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. Thomas B. Sato, D.C., who testified for Carrier, described the McKenzie protocol as a series of floor exercises to treat the back, which patients can learn to perform on their own at home.↑
  2. But in his Peer Review, Dr. Sato lists Claimant’s diagnosis to include lumbar sprain/strain, cervical sprain/strain, and joint swelling. (Provider’s Exh. 1, 3-5). All other evidence in the record indicates the compensable injury was to Claimant’s lumbar spine only.

    3. The medical records indicate joint mobilization was also performed at the S-1 level, and that Provider charged for one joint mobilization administered September 6, 2002. (Carrier’s Exh. 1, A0095; Carrier’s Exh. 2, B0001).↑

  3. Provider charged for one joint mobilization administered on September 11, 2002. (Carrier’s Exh. 2, B0001).↑
  4. Provider charged for one joint mobilization administered on September 18, 2002. (Carrier’s Exh. 1, B0001). The medical records indicate the joint mobilization was also done to the L-5, L-2, and L-1 levels. (Carrier’s Exh. 1, A0099).↑
  5. Provider charged $45 for the myofascial release. (Carrier’s Exh. 2, B0018).↑
  6. The joint mobilization was also done to the L-4, L-5, and S-1 areas. (Carrier’s Exh. 1, A0101). Provider charged for one joint mobilization administered on September 27, 2002. (Carrier’s Exh. 1, B0001).↑
  7. Claimant’s evaluation on September 27, 2002, was performed prior to him doing a warm-up or stretch, which could account for the decrease in his range of motion from September 5, 2002, according to the evaluator. (Carrier’s Exh. 1, A0104).↑
  8. Presumably these September 27, 2002, measurements were taken after Claimant had stretched or done a warm-up exercise.↑