DECISION AND ORDER

I. DISCUSSION

On December 14, 2004, Texas Mutual Insurance Company (TMIC), Petitioner, requested a hearing to contest the Findings and Decision of the Texas Workers’ Compensation Commission (Commission) acting through Medical Review of Texas, Inc., an Independent Review Organization (IRO).^[1] By letter issued on November 13, 2003, the IRO disagreed with TMIC’s prior adverse decision to deny reimbursement to Jack Barnett, D.C., Respondent. The IRO’s decision was based on the medical necessity for services rendered during thirty-three office visits during the thirty-four weeks between September 17, 2002, and May 13, 2003, for ___ (Claimant). On January 13, 2004, the Commission issued a timely and adequate notice of hearing.

A hearing was convened in this matter on December 2, 2004. The Administrative Law Judge (ALJ) was Paul Keeper. Katie Kidd represented TMIC, and Larry Trimble represented Dr. Barnett. The record was left open until December 21, 2004, for the submission of closing arguments, after which the record was closed.

The ALJ finds that the record does not support the arguments of TMIC and that the carrier should reimburse Dr. Barnett the sum of $4,120.

The Claimant sustained a work-related injury to his back on ___. He was examined by Clark D. McKeever, M.D., who ordered an MRI of the lumbar area of the spine. The MRI was performed on February 4, 2000, and a discogram on August 8, 2000, revealed extensive chronic degenerative change in the Claimant’s L5-S1 vertebrae, stenosis, and a large tear in the annulus. The Claimant was in severe pain, rated at 9 or 10 out of 10 during his office visits with his physician, Dr. J.S. Lee. Dr. Lee began intradiscal injections of medication, and the Claimant experienced some pain relief.

On January 3, 2001, the Claimant was examined by Henry Small, M.D., who became his treating physician. Dr. Small recommended surgery and referred the Claimant for a functional capacity evaluation. The Claimant expressed reservations about surgery and requested non-surgical care as an alternative. The Claimant’s reported pain levels were at 10 out of 10, with decreased range of motion, poor hamstring flexibility, lowered strength, and radicular symptoms. The evaluators recommended that the Claimant begin stretching and strengthening exercises. To assist the Claimant in learning these exercises, Dr. Small referred the Claimant to Dr. Barnett for one month of work hardening. However, the Claimant participated in the program for only one week.

By September 6, 2001, the Claimant’s symptoms had not changed, and Dr. Small began discussions with the Claimant about surgical intervention. However, on October 8, 2001, the Claimant underwent multiple bypass cardiac surgery, a procedure that delayed the spinal surgery recommended by Dr. Small.

On June 6, 2002, the Claimant was seen by Sheela Sadhwani, M.D., at the Casa de Amigos Health Center, a community health program operated by the Harris County Hospital District. In her letter to Dr. Small on that date, Dr. Sadhwani recommended that Dr. Small order additional medical tests for the Claimant through the workers’ compensation system rather than through the Harris County Hospital District. Her reason was that the medical tests would take longer to obtain though the hospital district than through the workers’ compensation system. The medical tests were needed to provide cardiac health clearance as a condition of the Claimant’s eligibility for spinal surgery.

On July 5, 2002, the Claimant filed a TWCC-53, a form by which the Claimant notified TWCC that he was substituting Dr. Barnett as his treating physician in place of Dr. Small. The reason given by the Claimant was that Dr. Small was no longer accepting workers’ compensation insurance. On August 1, 2002, Dr. Barnett prepared an Initial Medical Report that documented the Claimant’s pain at 9 out of 10, with a variety of other orthopedic and neurological symptoms.

On September 11, 2002, Dr. Sadhwani reported to Dr. Barnett that the Claimant’s medical tests had revealed an abnormal heart rate during a stress test. This finding further delayed the scheduling of Claimant’s spinal surgery. Additional delays occurred, including postponements to obtain a heart monitor, the results of an EMG, and additional cardiac health clearances. The Claimant’s spinal surgery occurred on June 12, 2003, following which the Claimant’s surgeon referred him to Dr. Barnett for post-operative rehabilitation.

During the eight months between September 17, 2002, and May 13, 2003, Dr. Barnett provided 176 units of services for the Claimant. These were: hot or cold packs (CPT code 97010), electric stimulus (CPT code 97032), ultrasound (CPT code 97035), myofascial release (CPT code 97250), joint mobilization (CPT code 97265), and office visits (CPT codes 99211 and 99213). TMIC denied reimbursement to Dr. Barnett for each of these, totaling $5,154. Of this amount, the MRD withdrew from consideration twenty units of services, reducing the total amount in dispute to $4,570. At the contested hearing, TMIC agreed to reimburse Dr. Barnett for ten of the office visits, further reducing the amount in dispute to $4,120.

The basis for TMIC’s denials was payment code “U,”listed on TMIC’s explanation of benefit (EOB) forms as: “unnecessary treatment without peer review.”^[2] As the petitioner, TMIC has the burden of proof to establish the truth of these allegations.

TMIC called two expert witnesses, Nicholas Tsourmas, M.D., and David Alvarado, D.C. Dr. Tsourmas is a board-certified orthopedic surgeon who also serves as the medical director for TMIC. Dr. Tsourmas testified that each of the treatments rendered by Dr. Barnett to the Claimant were passive modalities and that the Claimant benefitted by none of them. Dr. Tsourmas’ testimony was that these services were appropriate during the first three weeks following the Claimant’s injury. After that time-which was well before Dr. Barnett began rendering care to the Claimant-the inflammation caused by the injury had passed.

With particular respect to the office visits (CPT codes 99211 and 99213), Dr. Tsourmas testified that monthly, but not weekly visits, were indicated. On cross-examination, Dr. Tsourmas agreed that the passive treatments may have been palliative in that they helped the Claimant feel better. However, Dr. Tsourmas testified that none of the treatments were medically necessary to control pain. Instead of these physical therapy treatments, Dr. Tsourmas testified, Dr. Barnett should have referred the Claimant to a physician for analgesic medications.

Dr. Alvarado, a chiropractor with sixteen years of experience, echoed the positions of Dr. Tsourmas. Further, Dr. Alvarado testified, the Claimant’s medical condition was of a nature that no amount of manual therapy would have helped the Claimant. Dr. Alvarado also testified that Dr. Barnett’s documentation of the treatment was insufficient to establish the medical necessity of the care that was provided. Specifically, Dr. Alvarado observed that Dr. Barnett’s medical records provided no baseline data, no exit data, no explanation for the reasons for selection of these particular treatments, no goals for treatment, no treatment plan, no description of objective problems other than a general reference to “lumbar” conditions. Finally, Dr. Alvarado stated that as a chiropractor, he would not have taken the Claimant as a patient. The Claimant’s physical condition was of a nature that would have required referral to a physician.

As discussed by counsel in their briefs, the evidence raises four legal issues: (a) can palliative care be considered medically necessary, (b) was the type of care rendered by Dr. Barnett in this case reasonably necessary, (c) may alleged documentary insufficiencies be considered as elements of proof in determining lack of medical necessity, and (d) if so, was the documentation in this case insufficient to establish medical necessity?

Can Palliative Care Be Medically Necessary?

The statute provides that 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, including health care that relieves the effects that naturally result from the compensable injury. Tex. Labor Code Ann. § 408.021(a)(1). The Medicine Ground Rules^[3] provide that to qualify for reimbursement, a Claimant’s

condition must have the potential for restoration of function and that the treatment be specific to the injury and provide for the potential improvement of the Claimant’s condition.

In this case, part of the Claimant’s health condition was the pain resulting from his injury. The Claimant was entitled to health care that would address not only the injury itself but also the pain, an effect that naturally results from the injury. Treatment to address the Claimant’s pain was embodied in the potential improvement of the Claimant’s condition. TMIC’s closing argument

asserts that Dr. Barnett’s treatments “would have only provided a palliative, transient relief from any pain” and that these treatments “were not efficacious treatment designed to give lasting relief from the effects of Claimant’s injury.”

These arguments are rejected. Claimants are entitled to palliative care under the statute as long as the care is “reasonably required by the nature of the injury.” The statute does not preclude reimbursement for transient relief from pain, nor does it require that treatment provide lasting relief from the effects of a compensable injury. The Claimant’s health status showed the potential for restoration of function, albeit through surgery. Dr. Barnett’s care was specific to the injury and provided for the potential improvement of the Claimant’s condition until he could reach surgery.

Was the Care Rendered by Dr. Barnett in this Case Reasonably Necessary?

The testimony of Dr. Barnett was that the Claimant’s case required special consideration because of the Claimant’s other health problems and limited resources. In brief, these included the fact that the Claimant’s herniation was large and painful, that the Claimant’s cardiac condition was unclear, and that the Claimant was relying on an often slow and underfunded county health district for the funding of his health care needs. Under these conditions, Dr. Barnett recognized that physical therapy was one way to control Dr. Barnett’s pain and that this method had shown effectiveness for the Claimant.

Dr. Barnett stated in his testimony that none of the previous physicians had prescribed medicine for this Claimant. This statement was far from accurate.

The medical records reflect that Dr. McKeever prescribed Vioxx a few days after the accident, although the drug did not help “at all.” A therapy evaluation of the Claimant in January 2000 reflected that he was taking Vioxx and aspirin. On May 18, 2000, the Claimant reported in a clinic note that nerve root block injections of steroid provided “profound relief” but only for “approximately two days.” The following month he was given a prescription for Naprosyn, an analgesic. In July 2000, Dr. James A. Ghadially, M.D., prescribed Celebrex, Skelaxin, Vicodin, and Theragesic cream. By the next month, the Claimant reported continued pain despite his use of medication, although he reported that physical therapy provided him with moderate relief. By the end of August 2000, the Claimant was taking Flexeril, Celebrex, Vicodin, and using Theragesic cream for pain control, apparently with little success.

By the end of September 2000, Dr. Ghadially reported that the Claimant had been able to reduce his use of prescription medications through the use of over-the-counter analgesics and exercise therapy. As part of the functional capacity evaluation on April 11, 2001, the Claimant reported that he was taking no medications, that “lying down” helped to relieve the pain, and that his pain level was still at 10 out of 10.

On March 1, 2002, Martin L. Bloom, M.D., reported that aspirin was the only analgesic that the Claimant was taking, despite the fact that “[h]is entire right leg is numb.” In August 2002, the Claimant began treatment with Dr. Barnett. As previously noted in this order, the Claimant sought Dr. Barnett’s care when his primary physician, Dr. Small, withdrew from the workers’ compensation system. Also, the Claimant asked his then-primary physician, Dr. Small, for surgical alternatives, resulting in his referral to Dr. Barnett’s care.

This history describes a claimant for whom pharmacological intervention repeatedly had been attempted and failed. The only therapy that had been shown to offer an effective pain relief program for this Claimant was that offered by Dr. Barnett.

The type of therapy that Dr. Barnett provided is recognized as both a curative and as a palliative treatment for injury. That the course of treatment lasted longer than generally recommended was not the result of Dr. Barnett’s over-provision of care. The Claimant’s pain was becoming chronic, surgery was on the planning horizon, and pharmaceuticals were not providing relief. The type of care rendered by Dr. Barnett was reasonably necessary.

May Alleged Documentary Insufficiencies Be Considered as Elements of Proof in Determining Lack of Medical Necessity?

TMIC urges that documentary insufficiencies may be considered as an element of proof in determining lack of medical necessity. Dr. Barnett argues that TMIC could have raised the issue of documentary insufficiency only through the use of payment exception code “N” (“Not Appropriately Documented”) in the EOBs. TMIC responds that the use of payment exception code “N” is limited to situations in which the provider has not complied with specific documentation requirements established by TWCC.

Without addressing the circumstances under which the use of a payment exception code “N” is appropriate, TMIC’s brief accurately reflects that documentation is one means of determining whether services that have been provided were medically necessary.

Was the Documentation in this Case Insufficient to Establish Medical Necessity?

TMIC’s use of the “U” payment exception code reflects that TMIC considered the services “unnecessary treatment without peer review,” and TMIC’s use of its “RG” explanation code reflects TMIC’s further description that TMIC considered “the treatment/service [that was] provided [to have] exceeded medically accepted utilization review criteria and/or reimbursement guidelines established for severity of injury, intensity of service and appropriateness of care.”

TMIC’s witness Dr. Alvarado complaint about the deficiencies of Dr. Barnett’s medical records is largely accurate. Although some baseline data exists, the other items–exit data, the reasons for selection of the particular treatments, goals for treatment, and treatment planBare certainly less than they might have been had the Claimant’s care been for a standard course of diagnosis and treatment.

In this case, however, Dr. Barnett’s care was extended beyond that standard course for a number of defensible reasons. First, the Claimant’s physicians had recognized the nature of the Claimant’s pain control problems. Typical interventions had been shown to be of little value. Dr. Barnett’s care was the exception, and the Claimant’s physicians continued to recognize its value. In light of that recognition, the Claimant’s physicians continued to approve of the care as part of the treatment of the Claimant’s work-related injury, and, more importantly, they continued to refer the Claimant to Dr. Barnett for treatment.

Second, Dr. Barnett’s medical records inadequacies were supplemented by the fact that Dr. Barnett was providing copies of his treatment records to TMIC. The exhibits submitted in the hearing on the merits reflect that Dr. Barnett sent his treatment records to TMIC by certified mail

within a month of the rendition of care. Dr. Barnett’s selection of particular treatments, goals, or plans may not have been sufficiently summarized in documents designed for that express purpose. However, the treatment records reflect that Dr. Barnett was providing to TMIC on a regular basis copies of his treatment notes that reflected the Claimant’s then-current condition and the types of ongoing therapy being provided to him. Although Dr. Barnett was stretching the normal course of this type of therapy, he was doing so only to assure that the Claimant could obtain the surgical intervention that his physicians were trying to provide.

Finally, the ALJ considers TMIC’s explanation of its denial based on severity of injury, intensity of service, and appropriateness of care. Each of these criticisms may have held greater weight in situations in which the Claimant could have had access to some other type of care-palliative or otherwise. However, the medical records reflect that the Claimant did have access to other types of care that were appropriate to his injury-and he gained little from them.^[4] The clearest course would have been for the Claimant to have had more ready access to his cardiac surgery, to post-surgical monitoring and clearance, and to his spinal surgery. In that case, Dr.

Barnett’s services would have been limited in scope and duration. Under the circumstances, however, Dr. Barnett’s services were necessary for longer than was anticipated or desired-but not beyond the limits of medical necessity.

II. FINDINGS OF FACT

1. On ___, ___ (Claimant) sustained a work-related injury to his back.
2. The Claimant was diagnosed with chronic degenerative change in the L5-S1 vertebrae, stenosis, and a large tear in the annulus.
3. The Claimant was in severe pain, rated at 9 or 10 out of 10 during his office visits with his physician.
4. The Claimant’s treating physician, Dr. Small, recommended surgery.
5. However, before the spinal surgery could be scheduled, the Claimant underwent multiple bypass cardiac surgery on October 8, 2001.
6. In June 2002, the Claimant was evaluated for his delayed spinal surgery.
7. During this period, the Claimant had continued to have extreme pain that was not successfully managed by prescription or over-the-counter medications.
8. In July 2002, the Claimant notified the Texas Workers Compensation Commission (Commission) of his change of treating physicians to Jack Barnett, D.C. (Respondent).
9. On August 1, 2002, Dr. Barnett prepared an Initial Medical Report that documented the Claimant’s pain at 9 out of 10, with a variety of other orthopedic and neurological symptoms.
10. On September 11, 2002, the Claimant’s medical tests revealed an abnormal heart rate during a stress test, an outcome that further delayed the scheduling of Claimant’s spinal surgery.
11. Additional delays occurred, including postponements to obtain a heart monitor, the results of an EMG, and additional cardiac health clearances.
12. The Claimant’s spinal surgery occurred on June 12, 2003, following which the Claimant’s surgeon referred him to Dr. Barnett for post-operative rehabilitation.
13. During the eight months between September 17, 2002, and May 13, 2003, Dr. Barnett provided 176 units of services to the Claimant, including hot or cold packs (CPT code 97010), electric stimulus (CPT code 97032), ultrasound (CPT code 97035), myofascial release (CPT code 97250), joint mobilization (CPT code 97265), and office visits (CPT codes 99211 and 99213).
14. Texas Mutual Insurance Company (TMIC), Petitioner, denied reimbursement to Dr. Barnett for each of these services; later, some of these claims were withdrawn or paid, leaving a total of amount in dispute of $4,120.
15. Part of the Claimant’s health condition was the pain resulting from his injury.
16. The Claimant was entitled to health care that would address not only the injury itself but also the pain, an effect that naturally results from the injury.
17. Pharmacological intervention had been attempted repeatedly and had failed repeatedly for the Claimant.
18. The only therapy that provided Claimant effective pain relief was the therapy offered by Dr. Barnett.
19. Dr. Barnett’s care was extended beyond that standard course because: (1) typical pain control methods had been shown to be of little value, and Dr. Barnett’s care was the exception, (2) the Claimant’s physicians continued to approve of Dr. Barnett’s care as part of the treatment of the Claimant’s work-related injury, (3) the Claimant’s physicians continued to refer the Claimant to Dr. Barnett for treatment, and (4) Dr. Barnett’s medical records inadequacies were supplemented by the fact that Dr. Barnett was providing copies of his treatment records to TMIC.
20. The treatment records reflect that Dr. Barnett was expanding the length of a normal course of therapy so that the Claimant could obtain the surgical intervention that his physicians were trying to provide.
21. By letter issued on November 13, 2003, Medical Review of Texas, Inc., an Independent Review Organization (IRO), disagreed with TMIC’s prior adverse decision to deny reimbursement to Dr. Barnett.
22. The IRO decision is deemed a Decision and Order of the Commission.
23. By letter issued on January 13, 2004, the Commission issued a notice of hearing.
24. Administrative Law Judge Paul Keeper convened a hearing in this matter on December 2, 2004. The record was left open until December 21, 2004, for the submission of closing arguments, after which the record was closed.
25. Katie Kidd represented TMIC, and Larry Trimble represented Dr. Barnett.

III. CONCLUSIONS OF LAW

1. SOAH has jurisdiction over this proceeding, 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. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §2001.052.
3. Petitioner timely requested a hearing in this matter pursuant to 28 Tex. Admin. Code §§ 102.7 and 148.3.
4. Notice of the hearing was proper and complied with the requirements of Tex. Gov’t. Code Ann. ch. 2001.
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. Petitioner had the burden of proof in this matter, which was the preponderance of evidence standard. 28 TAC §§ 148.21(h) and (i); 1 TAC § 155.41(b).
7. Documentary insufficiencies may be considered as an element of proof in determining lack of medical necessity.
8. The disputed services were reasonable and necessary medical treatments.
9. Petitioner failed to prove by a preponderance of the evidence that Dr. Barnett should not have been reimbursed for the $4,120 in contested services.
10. TMIC should be required to reimburse Dr. Barnett for the therapy sessions in dispute.

ORDER

Texas Mutual Insurance Co. is required to reimburse Jack Barnett, D.C., for the disputed services provided Claimant from September 17, 2002, through May 13, 2003, with the exception of the June 11, 2003, through July 30, 2003, with the exception of the twenty units of services withdrawn by the Medical Review Division and the ten units of services that TMIC later agreed to pay, reducing the total amount in dispute to $4,120.

Signed February 17, 2005.

PAUL D. KEEPER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The IRO decision is deemed a Decision and Order of the Commission.↑
2. Also, for seven of the dates of service, September 17, 2002, through October 29, 2002, TMIC used payment exception code “L” for 28 of the services for which Dr. Barnett sought reimbursement. Payment exception code “L” means “not treating doctor approved treatment.” This issue does not address medical necessity and is not considered in this order.↑
3. Adopted as part of the Texas Workers’ Compensation Commission (TWCC) Medical Fee Guideline 1996, 28 Tex. Admin. Code 134.201. Medicine Ground Rules, I.A. at 31.↑
4. Additionally, it appears from the evidence that the Harris County Hospital District paid for some of the Claimant’s medical tests that were related to his spinal surgery. To this extent, TMIC has gained some benefit from the manner in which the Claimant’s physicians chose to order the necessary tests.↑