DECISION AND ORDER

Liberty Mutual Insurance Company (Carrier) requested a hearing on a decision of an independent review organization (IRO) on behalf of the Texas Workers’ Compensation Commission (Commission) in a dispute regarding medical necessity for chiropractic services, including office visits and testing. The IRO found that Carrier improperly denied reimbursement for physical therapy given Claimant by Main Rehab & Diagnostic (Provider) from January 8 through May 5, 2003. Carrier challenged the decision on the basis that the services at issue were not medically necessary, within the meaning of §§ 408.021 and 401.011(19) of the Texas Workers’ Compensation Act, Tex. Labor Code Ann. ch. 401 et seq.

The hearing was held on June 13, 2005. Carrier, represented by Kevin J. Franta, entered an appearance. Provider did not appear.Carrier submitted documents into evidence and Nick Tsourmas, M.D., testified.

This decision finds that Provider should not be reimbursed for the disputed office visits, chiropractic services, and testing given to Claimant from January 8 through May 5, 2003. In support of this determination, the Administrative Law Judge makes the following findings of fact and conclusions of law.

I. FINDINGS OF FACT

1. On ___, Claimant was injured at work when she moved a wooden bookshelf. The injury was a compensable injury under the Texas Worker’s Compensation Act (the Act), Tex. Labor Code Ann. 401.001et seq.
2. Claimant’s injury caused tendinitis in her left shoulder.
3. On October 16, 2002, Claimant’s treating doctor, Lloyd Weldon, D.O., noted Claimant was in pain at a level 10, the highest level.
4. Claimant subsequently changed treating doctors.
5. On January 7, 2003, Claimant’s new treating doctor, Crawford Sloan, M.D., noted Claimant had been off work for two months and was currently at work but on limited duty. His examination revealed decreased range of motion with pain at abduction.
6. On January 21, 2003, James Laughlin, D.O. took x-rays of Claimant’s shoulder, finding the left shoulder to be normal with no evidence of fracture or dislocation.
7. On January 29, 2003, an MRI of Claimant’s left shoulder revealed mild joint effusion, bursitis, and mild impingement due to normal aging. There was no evidence of a rotator cuff tear.
8. Claimant was given appropriate tests, all of which indicated her injury was a soft muscle injury.
9. A soft muscle injury in the shoulder should ordinarily heal in six to 12 weeks after the date of injury.
10. On ___, Provider’s notes indicated that Claimant’s response to conservative care was marginal and her overall condition had not improved greatly.
11. On June 26, 2002, Claimant was examined for a previous injury dated July 12, 2000, by an independent medical examiner, Hooman Sedighi, M.D., who found symptom magnification with all the Waddel signs tested being positive and subjective complaints way out of proportion to objective findings. At the time of this examination, Claimant was taking Zoloft, Elavil, Vicodin, Celebrex, and Theragesic for her two year-old injury.
12. On November 15, 2002, Gaston Machado, M.D., examined Claimant, who stated during the examination that she did not follow the physical therapy instructions because her injury hurt too much. Claimant used a sling on her left shoulder and arm.
13. In visits from January 8 through May 5, 2003,Provider furnished the following services to Claimant: office visits, therapeutic procedures, myofascial release, physical performance testing, electrical stimulation, physical medicine treatments, and range of motion measurements.
14. On February 13, 2003, after approximately one month of passive and active modalities, Provider’s notes indicated her response to conservative care was marginal, and Claimant’s overall condition had not improved greatly.
15. On March 24, 2003, Provider noted that Claimant’s overall pain levels and condition had not improved, and Claimant was reluctant to follow Provider’s advice to remove the arm sling and use the shoulder.
16. On April 8, 2003, Gaston Machado, M.D., examined Claimant again, noting that Claimant’s arm was in a sling, and she used little motion. Claimant admitted to not following the instructions of her physical therapists because the treatment hurt too much. Dr. Machado agreed that Claimant’s symptomatology appeared to be magnified.
17. Muscle testing, a performance test, is not appropriate one year post-injury.
18. Office visits under CPT Code 99213 require evaluations such as patient history and reevaluation, but the notes do not indicate why these codes were used for Claimant during the dates in dispute.
19. One-on-one therapy is only necessary to initially train a patient and was not needed in 2003 after several therapeutic sessions in 2002.
20. Passive care to reduce swelling is usually provided in the acute phase of treatment, generally from the date of injury to four weeks post-injury.
21. On June 6, 2003, Claimant rated her pain at a ten out of ten.
22. The disputed services were not reasonable or necessary for treatment of Claimant’s compensable injury.
23. Provider sought reimbursement for the physical therapy provided from January 8 through May 5, 2003, from Carrier, the insurer for Claimant’s employer.
24. Carrier denied the requested reimbursement.
25. Provider made timely requests to the Texas Workers’ Compensation Commission (Commission) for medical dispute resolution with respect to the requested reimbursement.
26. The independent review organization (IRO) to which the Commission referred the dispute issued a decision on January 30, 2004, concluding that the services rendered by Provider were medically necessary.
27. The Commission’s Medical Review Division reviewed and concurred with the IRO’s determination and issued a decision dated February 3, 2004, in dispute resolution Docket No. M5-04-0692-01.
28. Carrier requested in a timely manner a hearing with the State Office of Administrative Hearings (SOAH), seeking review and reversal of the MRD decision regarding reimbursement.
29. The Commission mailed notice of the hearing date to the parties on March 18, 2004.
30. On April 16, 2004, SOAH Administrative Law Judge (ALJ) Gary W. Elkins granted Carrier’s request for a continuance.
31. On February 17, 2005, ALJ Gary Elkins reset the hearing for June 13, 2005, at 1:30 p.m.
32. On June 13, 2005, at 1:30 p.m., ALJ Lilo D. Pomerleau held a contested-case hearing concerning the dispute at the William P. Clements Building, 300 W. 15^th Street, Austin, Texas. Carrier was represented by Kevin J. Franta. Provider did not enter an appearance. The record closed that same day.

II. CONCLUSIONS OF LAW

1. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to § 413.031(k) of the Act and Tex. Gov’t Code Ann. ch. 2003.
2. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001 and the Commission’s rules, 28 Tex. Admin. Code (TAC) §§ 148.001-148.028.
3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
4. Carrier, the party seeking relief, bore the burden of proof in this case, pursuant to 28 TAC § 148.21(h).
5. Carrier showed by a preponderance of the evidence that the disputed treatments were not reasonable and necessary for Claimant’s compensable injury.
6. Based upon the foregoing findings of fact, Provider is not entitled to reimbursement for physical therapy given Claimant from January 8 through May 5, 2003.

ORDER

IT IS THEREFORE, ORDERED that Liberty Mutual Insurance Company is not required to reimburse Main Rehab & Diagnostic for the physical therapy given Claimant from January 8 through May 5, 2003.

Signed July 29, 2005.

LILO D. POMERLEAU
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS