DECISION AND ORDER

I. INTRODUCTION

After an Independent Review Organization (IRO) reviewer and the Commission’s Medical Review Division (MRD) determined physical-medicine treatment was medically necessary for a workers’ compensation claimant, Liberty Mutual Fire Insurance Company (Carrier) appealed. In this Decision and Order, the Administrative Law Judge (ALJ) finds that charges for traction should not be reimbursed and charges for a lesser number of other services should be reimbursed. The total reimbursement ordered is $6,462.

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact and Conclusions of Law. The hearing convened on November 2, 2004, at the State Office of Administrative Hearings, 300 West Fifteenth Street, Austin, Texas, before the undersigned Administrative Law Judge (ALJ). Attorney Kevin Franta represented the Carrier, and attorney Peter Rogers represented the Provider, Ghanda Koudsi, D.C. The hearing concluded and the record closed the same day.

II. DISCUSSION

A. Overview

The 57-year-old claimant sustained a work-related injury on ___, when she lost her balance, swung backward, and injured her lower back. After receiving conservative treatment, she underwent spinal fusion at L4-5 on December 20, 2002. She then underwent post-surgical rehabilitation with Dr. Koudsi and was deemed to be at maximum medical improvement roughly seven months later, on July 30, 2003.

The services in dispute were billed as follows:

Date of Service CPT Codes Billed and MAR^[1]

Feb. 4, 6, 7, 11, 13, 14, 18, 19, 20, 27; 99212 office or other outpatient visit for the

Mar. 4, 5, 6, 10, 11, 14, 18, 19, 24, 25, evaluation and management of an established

26, 27, 28, 31; Apr. 2, 3, 4, 11, 14, 15, patient ^[2] ($32);

16, 24, 25, 28, 29, 30; May 2, 6, 7, 14, 97122 manual traction ($35);

15, 16, 21, 23, 27, 28, 29, 30; June 19, 97250 myofacial release ($43);

20, 23, 24, 25, 27, July 10, 11, 15 97010 hot or cold packs ($11);

97110 active therapeutic exercises ($35 x2)

57 visits in all

Apr. 9, 17 (two additional physical- 99212; 97122; 97250; and 97010

medicine visits)

May 14 99080 completing TWCC 73 form ($15)

Feb. 28 and June 18^[3] 99215 comprehensive office visit ($103

June 18 99080 ($15)

According to the IRO’s decision, the documentation substantiated the need for physical therapy in the manner prescribed and utilized. Further, the IRO found treatment was consistent with the injury and with a flare up that occurred in April 2003.^[4]

B. Casey Cochran, D.O.

Board-certified in occupational medicine, Dr. Cochran testified for the Carrier. He noted that, in addition to other treatments, Dr. Koudsi treated the claimant with traction. In Dr. Cochran’s opinion, it is inappropriate to provide traction for a patient who has had a fusion, because traction could damage a fusion. Traction and immobilization are opposite of each other, and with a fusion, the goal is to stabilize the back, Dr. Cochran testified.

Dr. Cochran also said that a common protocol would be for a patient to have had 34 physical-medicine appointments with a provider during 16 weeks. In addition to exercise, normal modalities one would expect to see during post-fusion rehabilitation are hot packs, electrical stimulation, ultrasound, and early in the treatment phase, myofascial release.

Dr. Cochran characterized the post-operative visits, of which there were more than 70, as extremely excessive. He also noted that Dr. Koudsi charged for one-on-one supervision (CPT Code 97110) when the claimant was performing common exercises, such as walking on a treadmill, even though there was no indication that the claimant was unable to do the exercises on her own. That level of supervision is not needed after the first two to three visits, he stated.

Further, Dr. Cochran said myofascial release and cold packs were not necessary at the claimant’s stage of treatment. In rehabilitation, hot packs are sometimes used to warm a patient before exercising. But, six months after surgery, those are not needed. As for the claimant’s flare up in April 2003, Dr. Cochran noted that the treatment lasted several months without significant improvement.

Every time the claimant was in Dr. Koudsi’s office, Dr. Koudsi billed CPT Code 99212 or a code with a higher MAR for the office visit. This code requires an examination and history, which are not needed every day, Dr. Cochran testified.

C. Dr. Koudsi

A licensed chiropractor since 1990, Dr. Koudsi is on the Commission’s designated-doctor list. The claimant was previously employed in Dr. Koudsi’s office and was aware of all the services a chiropractor could provide. According to Dr. Koudsi, the claimant herself asked for traction; she told Dr. Koudsi that traction helped her to sleep at night and improved her circulation. Dr. Koudsi said the traction was administered manually to the claimant’s comfort level.

Overall, the treatments were effective enough that the claimant needed no pain medication after a time, Dr. Koudsi said. Even when pain management was prescribed, the claimant did not act upon the prescription. Had the claimant not had the April 2003 flare up, she would not have needed the additional therapy. Further, even though the claimant did not return to her former type of employment, she is working full time as a child-care provider. Thus, in Dr. Koudsi’s opinion, the treatments were provided in accordance with the Commission guidelines.

D. The Claimant

The claimant herself wrote a letter expressing her concern that Dr. Koudsi had not been paid. She said the treatment had helped her significantly, and her best days were those when she had treatment. She also indicated that she now can bend to tie her shoes and walk or sit for longer periods of time than before. “Actually Dr. Koudsi taught me all different type [sic] of exercise and did a lot of muscle work on me that did help me significantly that most of the time I forget that I have an implant in my back.”^[5]

E. Medical Records

On January 6, 2003 (17 days after the claimant’s fusion), the claimant’s surgeon, who was also her treating doctor, prescribed the following at two-to-three times a week for four-to-six weeks:

Physical Therapy Evaluation/Treatment & Home Program;

Spine Stabilization Exercises;

ROM & Strengthening of C/T/L Spine(s); Upper/Lower Extremities; and

Back School/Body Mechanics.^[6]

The claimant began post-surgical, physical-medicine treatment with Dr. Koudsi on January 8, 2003. According to therapy notes for that day, the claimant was treated with myofascial release, manual traction, active therapeutic range-of-motion exercises, and “HMP/C.”^[7] Similar treatment followed on January 15, 16, 22, 24, 29, and 30. Then, the disputed dates of service began without a significant change in treatment.

Although the daily treatment comments are largely illegible,^[8] certain portions are readable. They show the claimant’s assessment for most days, including those at later stages of treatment, was only fair. Typed periodic reports show some progression until April 2003, and then record the claimant’s difficulty with pain and movement.

On March 3, 2003, the claimant’s surgeon prescribed the same procedures for the same frequency and duration. The next day, Dr. Koudsi added treadmill activity to the claimant’s exercises. On March 24, 2003, the surgeon noted that the claimant was doing well and progressing appropriately in physical therapy, she was stable on flexion and extension, and her instrumentation was intact. Pending a functional capacity evaluation that was to be completed later that same week, the claimant planned to return to work.^[9] On April 1, 2003, the surgeon again prescribed the same treatment,^[10] and on April 7, 2003, the Carrier preauthorized the requested treatment for four to six more weeks.^[11] The date of May 13, 2003, is six weeks from April 1, 2003, the date of the preauthorization request.

On April 8, 2003, Dr. Koudsi noted the claimant’s exacerbating injury. The claimant was “crying, complaining of recurrent worsening low back pain with sharp stabbing pain and burning sensation down her buttocks into the posterior right leg.” She said her pain was intolerable and she could feel the hardware in her back. Her range of motion was restricted, she was unable to straight-leg raise at any angle secondary to severe pain, and she had decreased sensation down the lateral

dorsal surface of her right foot and leg. Nevertheless, the claimant’s deep tendon reflexes were symmetrical, and there were no pathological reflexes.^[12]

When the surgeon saw the claimant on April 15, 2003, the claimant reported the new onset of severe, radiating low back pain. An x-ray indicated mild lucency around her screws. But there was no evidence of instability, and she had mild-to-moderate posterior resorption of her graft.^[13] That day, Dr. Koudsi again treated the claimant with the same procedures.^[14]

On May 2, 2003, the claimant’s occupational-therapy evaluation showed that she had abnormal sitting and walking posture with limited weight bearing on her right hip. Her standing posture was within normal limits. Her pain profile and self-reported pain in activities of daily living indicated an impaired level of function. The claimant said bending was so difficult that she sat on the floor to remove items from the washer and dryer. She was able to sweep, but mopping and vacuuming caused pain. Her pain ranged from four to eight on a one-to-ten scale. The therapist recommended continued treatment with Dr. Koudsi.^[15]

On June 2, 2003, the claimant told her surgeon the flare up had been getting worse with the pain radiating to the right leg. Her x-ray showed reduction of her graft and lucency around the screws.^[16]

A June 17, 2003, MRI revealed some minimal degenerative end plate changes around the fused level. Otherwise, the fusion was normal and aligned. There was a small-central and left-paracentral-posterior-annular tear with a small protrusion at L5-S1. But it placed no significant pressure on the thecal sac, and there was no lateral recess stenosis or foraminal narrowing.^[17]

Nerve conduction studies and an EMG performed on June 19, 2003, showed normal levels in the lower extremities. However, the claimant’s lower extremities were weak secondary to pain, primarily at inversion and eversion.^[18] On June 23, 2003, the claimant’s surgeon prescribed work hardening and work conditioning, again at the rate of two-to-three times a week for four-to-six weeks. The surgeon also referred the claimant to a specialist for pain management.^[19]

In response to the work hardening and work conditioning prescription, the claimant continued to see Dr. Koudsi and was treated with the same therapies. On July 11, 2003, the claimant

told Dr. Koudsi that she remained somewhat functional as long as she was able to attend her therapy sessions.^[20] On July 30, 2003, Dr. Koudsi wrote an impairment rating report which indicated that the claimant was doing much better. The active therapeutic exercises reportedly helped her maintain strength and function. Even so, the claimant continued to have prolonged sitting and standing intolerance, intermittent sharp pain down the right buttock when bending or lifting, and occasional giving way of the right leg due to weakness. She had restricted flexion and extension at the waist due to residual discomfort and hardware. Dr. Koudsi assigned the claimant a 20% impairment rating.^[21]

In August 2003, a peer reviewer for the Carrier determined that traction should not have been used. In the reviewer’s opinion, the claimant could have begun active therapeutic exercises two months postsurgery, “as this would have allowed time for the pedicle screws to completely coalesce with vertebral bodies.” Dr. Koudsi’s treatment was neither reasonable nor appropriate and could have caused an iatrogenic irritation, the reviewer concluded.^[22] In December 2003, another peer reviewer calculated an impairment rating of five percent for the lumbrosacral region, the spine, and the whole person.^[23]

F. Arguments

For Dr. Koudsi, Mr. Rogers noted that this case falls under the Medical Fee Guideline (MFG) because of the dates of service, and the MFG does not state a specific number of visits that should be authorized. Further, he argued, myofascial release is a standard warm up for one-on-one therapy and the treatment was prescribed.

For the Carrier, Mr. Franta argued that prescribed medical care does not equate to necessary medical care; the Provider’s case was excessive and inappropriate. Further, it was not necessary to bill CPT Code 97110 for so many days, he asserted.

G. Legal Standard

The carrier is liable for all reasonable and necessary medical costs relating to the health care when the preauthorization was approved prior to providing the health care. 28 Tex. Admin. Code §134.600(b). Pursuant to Tex. Labor Code Ann. § 408.021(a), 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 compensable injury; (2) promotes recovery; or (3) enhances the ability of the employee to return to or retain employment.

H. Analysis

Was manual traction medically necessary?

The ALJ agrees with the Carrier that manual traction was not medically necessary. Even though the claimant said it helped her, the evidence more clearly establishes that traction is contraindicated after a fusion because the fused area must be stabilized. And the claimant’s surgeon never prescribed traction. Therefore, no reimbursement should be paid for traction.

Was other care medically necessary and reasonable?

On three different occasions (January 1, March 3, and April 1), the surgeon prescribed therapy at the rate of two-to-three times a week for four-to-six weeks. On June 23, 2003, he prescribed work hardening and work conditioning, again at the same rate. The surgeon’s/treating doctor’s prescriptions after periodic examinations convinces the ALJ that a number of treatments in the range of those prescribed, 24 – 72, was appropriate.

The ALJ also finds that, except for traction, the Carrier did not effectively rebut the IRO’s findings regarding the appropriateness of other types of care. After the claimant began using the treadmill, the billing did not change, even though the time spent in range-of-motion exercises was 30 minutes and the treadmill was used for 15 minutes. Further, myofascial release and heat packs can be used to assist with therapeutic exercises. Therefore, the ALJ concludes that the Carrier should reimburse Dr. Koudsi for all the charges in a typical office visit, except the charges for traction. For most visits, this equates to a MAR of $156.^[24]

It was not clear from the record that Dr. Koudsi billed the improper code for the office visits. Some of her handwriting is legible, and she recorded objective and subjective complaints at each visit. From the complaints recorded, it appears that Dr. Koudsi spent at least ten minutes with the claimant and made some type of examination and decision about treatment. Even though Dr. Cochran said this type of examination was not necessary every time, the Carrier’s evidence did not overcome the presumption of reasonableness, based on the IRO’s decision. In addition, the longer periodic reports and examinations were necessary for evaluation.

Finally, the Carrier reimbursed Dr. Koudsi for seven physical-medicine treatments provided in January 2003. In addition, based on the evidence, the ALJ orders the Carrier to reimburse her for treatments through May 13, 2003, i.e., an additional 41 treatments. May 13, 2003, is six weeks from the last physical-therapy-preauthorization request. Considering the exacerbation and the subsequent preauthorization, the amount is reasonable. After that time, the claimant’s improvement was not adequately demonstrated. In fact, in June, the claimant said she was getting worse. Further, the treatment did not change when work hardening and work conditioning was prescribed.

Summary

The ALJ calculates the amount due as follows:

Physical Medicine

Codes 99212 ($32), 97250 ($43), 97010 ($11) and two Codes 97110 ($70) [total $156] for: Feb. 4, 6, 7, 11, 13, 14, 18, 19, 20, 27; Mar. 4, 5, 6, 10, 11, 14, 18, 19, 24, 25, 26, 27, 28, 31; Apr. 2, 3, 4, 11, 14, 15, 16, 24, 25, 28, 29, 30; May 2, 6, 7 [$156 x 39 ‘$6,084];

Codes 99212 ($32), 97250 ($43), and 97010 ($11) [total $86] for Apr. 9 and 17 [$86 x 2 = $172]

Comprehensive Office Visits

Code 99215 ($103) for Feb. 28 and Apr. 8 [$103 x 2 = $206]

$6,084 + $172 + $206 = $6,462 Total

III. FINDINGS OF FACT

1. Procedural History and Notice
   1. A 57-year-old claimant sustained a work-related injury on ___, when she lost her balance, swung backward, and injured her lower back.
   2. After receiving conservative treatment, the claimant underwent a spinal fusion at L4-5 on December 20, 2002. She then received post-surgical rehabilitation from the Provider, Ghanda Koudsi.
   3. On the date of injury, the claimant’s employer had workers’ compensation insurance with Liberty Mutual Fire Insurance Company, the Carrier.
   4. By decision dated November 26, 2003, an Independent Review Organization reviewer determined the documentation substantiated the need for physical therapy in the manner prescribed and utilized, and the treatment provided was consistent with the injury and with a flare up that occurred in April 2003.
   5. On December 9, 2003, the Commission’s Medical Review Division adopted the IRO’s decision, and the Carrier timely requested a hearing before the State Office of Administrative Hearings (SOAH).
   6. Notice of the hearing was sent to both parties on January 30, 2004.
   7. The notice of hearing 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.
   8. The hearing was continued upon the parties’ requests and finally convened on November 2, 2004. Both parties were represented at the hearing.
2. Prescriptions
   1. After evaluations on January 6, March 3, and April 1, 2003, the claimant’s surgeon, who was also her treating doctor, prescribed the following therapies at two-to-three times a week for four-to-six weeks (or a maximum of 54 visits):
   2. Physical Therapy Evaluation/Treatment & Home Program;
   3. Spine Stabilization Exercises;
   4. ROM & Strengthening of C/T/L Spine(s); Upper/Lower Extremities; and
   5. Back School/Body Mechanics.
3. The Carrier granted the April 1, 2003, preauthorization request.
4. On June 23, 2003, the claimant’s surgeon prescribed work hardening and work conditioning, again at the rate of two-to-three times a week for four-to-six weeks.
5. In response to the June 23, 2003, prescription, the claimant again was treated by Dr. Koudsi, and the nature of the treatment did not change after that prescription was issued.
6. Disputed Services
7. The Carrier reimbursed Dr. Koudsi for seven physical-medicine treatments provided in January 2003.
8. Disputed dates of service are:
   1. Date of Service CPT Codes Billed and MAR^[25]
   2. Feb. 4, 6, 7, 11, 13, 14, 18, 19, 20, 27; 99212 office or other outpatient visit for the
   3. Mar. 4, 5, 6, 10, 11, 14, 18, 19, 24, 25, evaluation and management of an established
   4. 26, 27, 28, 31; Apr. 2, 3, 4, 11, 14, 15, patient ^[26] ($32);
   5. 16, 24, 25, 28, 29, 30; May 2, 6, 7, 14, 97122 manual traction ($35);
   6. 15, 16, 21, 23, 27, 28, 29, 30; June 19, 97250 myofacial release ($43);
   7. 20, 23, 24, 25, 27, July 10, 11, 15 97010 hot or cold packs ($11);
   8. 97110 active therapeutic exercises ($35 x2) 57 visits in all
   9. Apr. 9, 17 (two additional physical- 99212; 97122; 97250; and 97010 medicine visits)
   10. May 14 99080 completing TWCC 73 form ($15)
   11. June 18 99080 ($15)
   12. Traction
9. It is inappropriate to provide traction for a patient who has had a fusion, because traction could damage a fusion. Traction and immobilization are opposite of each other, and with a fusion, the goal is to stabilize the back.
10. The claimant’s surgeon never prescribed traction for her.
11. Other Treatments
    1. Myofascial release and heat packs can be used to assist with therapeutic exercises.
    2. On March 4, 2003, Dr. Koudsi added treadmill activity to the claimant’s exercises, but she did not change the amount billed for treatments.
    3. For each office visit in which she billed CPT Code 99212, Dr. Koudsi recorded subjective and objective complaints and made treatment decisions.
    4. The time necessary to talk with the claimant and record her complaints could have taken ten minutes.
12. Claimant’s Progress
    1. On March 24, 2003, the claimant was doing well and progressing appropriately in physical therapy, she was stable on flexion and extension, and her instrumentation was intact. Pending a functional capacity evaluation that was to be completed later that same week, the claimant planned to return to work.
    2. The claimant experienced some progression until April 2003, when she had a significant flare up with severe pain in her leg. However, her EMG was normal and showed no active denervation and no evidence of remote radiculopathy.
    3. Even after her flare up, the claimant had mild-to-moderate posterior resorption of her graft with no evidence of instability.
    4. As recorded by Dr. Koudsi, the claimant’s assessment for most days, including those at later stages of treatment, was only fair.
    5. On May 2, 2003, the claimant’s occupational-therapy evaluation showed that she had an impaired level of function.
    6. The claimant’s flare up became worse in June 2003, with the pain radiating to the right leg.
    7. The claimant was determined to be at maximum medical improvement on July 30, 2003.

IV. CONCLUSIONS OF LAW

1. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to the Texas Workers’ Compensation Act, specifically Tex. Labor Code Ann. §§ 402.073(b) and 413.031(k), and Tex. Gov’t Code Ann. ch. 2003.
2. The hearing request was timely made pursuant to 28 Tex. Admin. Code § 148.3.
3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
4. The Carrier had the burden of proof in this matter. 28 Tex. Admin. Code § 148.21(h).
5. Manual traction was neither medically reasonable nor necessary to treat the claimant.
6. The Carrier sustained its burden of proving charges for traction should not be reimbursed.
7. The Carrier did not sustain its burden of proving the CPT Code used for office visits, 99212, was inappropriate.
8. The Carrier did not sustain its burden of proving charges for myofascial release, hot packs, or active therapeutic exercises were inappropriate.
9. After the last preauthorized physical therapy session, the claimant did not show significant improvement.
10. The Carrier sustained its burden of proving that treatments after May 13, 2004, the last date of preauthorization for physical therapy, were not medically necessary.
11. The Carrier should reimburse Dr. Koudsi as follows:
    1. Codes 99212 ($32), 97250 ($43), 97010 ($11) and two Codes 97110 ($70) [total $156]for Feb. 4, 6, 7, 11, 13, 14, 18, 19, 20, 27; Mar. 4, 5, 6, 10, 11, 14, 18, 19, 24, 25, 26, 27, 28, 31; Apr. 2, 3, 4, 11, 14, 15, 16, 24, 25, 28, 29, 30; May 2, 6, 7 [$156 x 39 ‘$6,084];
    2. Code 99215 ($103) on Feb. 28 and Apr. 8 [$103 x 2 = $206]
    3. Codes 99212 ($32), 97250 ($43), and 97010 ($11) [total $86] on Apr. 9 and 17 [$86 x 2 = $172] $6,084 + $206 + $172 = $6,462 Total

ORDER

THEREFORE, IT IS ORDERED that the Carrier’s appeal is denied in part, and the Carrier shall reimburse Dr. Koudsi the amount of $6,462, plus applicable interest.

Signed December 31, 2004.

SARAH G. RAMOS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. ¹Maximum allowable reimbursement.↑
2. ²This code requires at least two of three key components: a problem-focused history; a problem-focused examination; and straightforward medical decision making. Usually, the presenting problems are self-limited or minor. Physicians typically spend ten minutes with the patient or family.↑
3. ³Dr. Koudsi withdrew fee issues for the service dates of April 8, and July 8, 18, 23, 24, and 25, 2003.↑
4. ⁴The claimant had a significant flare up in April 2003, while riding in a vehicle. She noted severe pain in her leg and was diagnosed with bilateral radiculitis, on the right greater than the left. However, the EMG was normal and showed no active denervation and not evidence of remote radiculopathy.↑
5. ⁵Ex. 2, p. 179.↑
6. ⁶Ex. 1, pp. 146-147.↑
7. ⁷Ex. 1, pp. 150-152.↑
8. ⁸E.g., Ex. 1, pp. 155-157.↑
9. ⁹Ex. 1, p. 167.↑
10. ¹⁰Ex. 1, p. 171.↑
11. ¹¹Ex. 1, p. 170.↑
12. ¹²Ex. 1, pp. 177-178.↑
13. ¹³Ex. 1, p.179.↑
14. ¹⁴Ex. 1, pp. 183-189.↑
15. ¹⁵Ex. 1, pp. 190-192.↑
16. ¹⁶Ex. 1, pp. 194.↑
17. ¹⁷Ex. 1, pp. 198-199.↑
18. ¹⁸Ex. 1, pp. 217-218.↑
19. ¹⁹Ex. 1, p. 211.↑
20. ²⁰Ex. 1, pp. 195-196.↑
21. ²¹Ex. 1, pp. 222-224.↑
22. ²²Ex. 1, p. 36-39.↑
23. ²³Ex. 2, pp. 162-167.↑
24. ²⁴CPT Codes 97212 [$32], 97250 [$43], 97010 [$11], and 97110 [$35 x 2 = $70]. For two office visits, those of April 9 and 17, Code 97110 was not billed.↑
25. ²⁵Maximum allowable reimbursement.↑
26. ²⁶This code requires at least two of three key components: a problem-focused history; a problem-focused examination; and straightforward medical decision making. Usually, the presenting problems are self-limited or minor. Physicians typically spend ten minutes with the patient or family.↑
27. ²⁷Dr. Koudsi withdrew fee issues for the service dates of April 8, and July 8, 18, 23, 24, and 25, 2003.↑