DECISION AND ORDER

Liberty Mutual Fire Insurance Company (Carrier) appealed the decision of the Texas Workers’ Compensation Commission’s (Commission) designee, an independent review organization (IRO), in MDR Docket No. M5___, which granted reimbursement for physical therapy and other services provided on a workers’ compensation claimant (Claimant) by DFW Pain Center, Inc. (Provider). The IRO decision found the services rendered to Claimant were reasonable and medically necessary healthcare. This decision finds Carrier should reimburse Provider for the services.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

There were no contested issues of jurisdiction, notice or venue. Therefore, those issues are addressed in the findings of fact and conclusions of law without further discussion here.

The hearing in this matter convened and closed on June 7, 2004, at the State Office of Administrative Hearings, 300 W. 15^th Street, Austin, Texas, with Administrative Law Judge (ALJ) Ann Landeros presiding. Carrier was represented by its attorney, Kevin Franta. Provider was represented by its designated employee representative, Dean Allen, D.C. The Commission was chose not to participate in the hearing. The record closed that same date.

II. DISCUSSION

A. Background Facts

On ___, Claimant injured her right leg, including her ankle when she slipped at work. Her injuries were compensable under the Texas Workers’ Compensation Act (Act). At the time of the compensable injury, Carrier was the workers’ compensation insurer for Claimant’s employer.

On the date of the injury, Claimant’s only known injury was a laceration about six inches above her right ankle, which was bandaged. She did not receive further treatment until two months later when she sought treatment for pain in her right ankle. While x-rays of the foot and ankle were negative, an MRI showed osteoarthritis but no ligament damage, fractures, or neurological impingement. In October 2002, Claimant was diagnosed with an ankle sprain with a bone contusion. Subsequent surgery in January 2003, revealed Claimant had ligament tear and restricted plantar fascia in her right foot, both of which were corrected during the surgery.

Carrier denied reimbursement to Provider for office visits, myofascial release, gait training, therapeutic activities and exercises, TWCC required reports, somatosensory evoked potentials study (SSEP) and range of motion (ROM) testing rendered Claimant between November 21, 2002, and July 11, 2003. Provider requested the Commission review the denial. That review produced the IRO decision, which found the services were medically necessary and granted reimbursement. The IRO decision noted that Claimant’s surgeon had requested the pre-surgical therapy to improve Claimant’s condition in preparation for surgery and the post-surgical care was reasonable. The IRO further stated:

Chiropractic guidelines allow for passive and active treatment of these types of injuries both pre and post surgical. There is sufficient documentation on each date of service to warrant the treatment that was rendered. The number of visits and diagnostic testing prior to surgical intervention was appropriate for this injury, as was after surgery [sic]. . . .

Carrier timely appealed the IRO decision. As of the date of this hearing, the total amount in dispute was $3,889.40 for the services billed on under CPT codes 97110, 99213, 97250, 97530, 97118, 95851and 97530 between November 21, 2002, and July 11, 2003.

B. Legal Standards

Petitioner has the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i). Pursuant to the Act, 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). Health care includes all reasonable and necessary medical services including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. §401.011(31).

C. Carrier’s Evidence

Carrier’s expert witness, Thomas Sato, D.C, testified that Claimant received excessive treatment given the nature of her injury and that the disputed services were neither reasonable nor medically necessary.

According to Dr. Sato, Claimant’s injury was minor as shown by the facts that: on the date of injury all that was reported or treated was a superficial laceration on the lower leg, to which a band-aid was applied; that Claimant did not seek further treatment for two months following the injury; and that Claimant was able to work after the injury until her surgery.

Dr. Sato believed Claimant’s therapies should have been discontinued after four weeks because she did not show improvement. He criticized Dr. Allen for not referring Claimant to surgery after the initial four weeks of treatment did not produce significant improvement. By November 25, 2002, Dr. Sato believed all treatment should have been discontinued. The November 2002 MRI showed no evidence of inflammation or ligament injury. At that point, Dr. Sato would have limited Claimant’s treatment to home exercises, application of ice, and a heel lift. He noted that Claimant’s

complaints of pain and ankle and foot ROM test results did not improve over time despite the treatment. This indicated that Claimant was not benefitting from the treatment.

Dr. Sato was unsure why the ligament repair surgery was needed as the MRI did not reveal any ligament damage. It appeared to him that the surgery was performed because of functional loss not because diagnostic tests revealed a specific problem. He also did not see documentation to explain why Claimant needed protracted post-surgical training in use of a crutch. Dr. Sato noted that the documentation referred to surgery and therapy on Claimant’s left foot, when the compensable injury was to the right foot. He also felt the amount of post-operative care was excessive. For instance, Provider billed for office visits with Dr. Allen during the time Claimant was getting evaluative care in a work hardening program. Absent a separate problem requiring evaluation, Claimant’s pain complaints should have been dealt with as part of the work hardening program, in Dr. Sato’s opinion. Dr. Sato also questioned the SSEP billed in November 2002. As a diagnostic tool, the SSEP is used for back, not ankle, injuries.

D. Provider’s Evidence

Dr. Allen testified on Provider’s behalf. He stated Claimant’s compensable injury was not just a simple sprained ankle and contusion, but a ligament tear and inflamed joint capsule. He was not surprised that the MRI did not reveal the ligament tears as that diagnostic test is often unable to conclusively reveal ligament tears such as Claimant suffered.

Dr. Allen noted that Claimant’s podiatrist, Lonnie Schwartz, D.P.M., requested pre-surgical therapy to get Claimant in the best shape possible for surgery. Dr. Schwartz’s recommended continued physical therapy in notes dated November 25 and December 3, 2002. (Pet. Ex. 1, pp. 98, 112). Dr. Schwartz ordered post-surgical therapy to speed Claimant’s recovery. (Pet. Ex. 1, pp. 172, 211).

According to Dr. Allen, the November 2002 SSEP was needed to rule out peripheral neuropathy and lumbar spine involvement because Claimant’s pain intermittently went into her knee. He stated that he saw Claimant while she was in the work hardening program because she had some “pain episodes” during that period for which the work hardening program did not provide treatment.

Dr. Allen stated Claimant’s post-operative gait training was not just to teach her how to use crutches but was to help her regain stability on the ankle. Claimant obtained functional improvement with the gait training in Dr. Allen’s estimation. He stated Claimant did eventually return to work after the work hardening program.

E. Analysis

Carrier failed to meet its burden of proof to show that the disputed services were not reasonable or medically necessary healthcare for Claimant.

The pre-surgical therapy was extended for a longer than normal period to prepare Claimant for surgery. The post-surgical services were not shown to be excessive in light of the nature of the surgery. As Dr. Sato noted, the ankle joint must deal with forces gravity and weight. These factors can complicate recovery from surgery in that area. As ligaments affect stability in the ankle, prolonged post-surgical training to help regain stability was not shown to be unreasonable. The work

hardening program did not provide the pain care required by Claimant during that time, so the office visits were not shown to be redundant. Intermittentknee pain justified the use of an SSEP to rule out lumbar involvement.

The services that Provider rendered Claimant from November 21, 2002, through July 11, 2003, were not shown to unreasonable or medically unnecessary. Carrier should reimburse Provider for those services.

III. FINDINGS OF FACT

1. On ___, Claimant sustained an injury to her right ankle compensable under the Texas Workers’ Compensation Act (Act), when she slipped at work.
2. At the time of her compensable injury, Claimant’s employer had workers’ compensation insurance coverage with Liberty Mutual Fire Insurance Company (Carrier).
3. DFW Pain Center, Inc.(Provider), and it’s employee, Dean Allen, D.C., treated Claimant beginning September 2002.
4. Carrier denied reimbursement to Provider for office visits, myofascial release, gait training, therapeutic activities and exercises, TWCC required reports, somatosensory evoked potentials study and range of motion testing rendered Claimant between November 21, 2002, and July 11, 2003.
5. Provider requested the Commission review the denial. That review produced the Independent Review Organization’s (IRO) decision, which found the services were medically necessary and granted reimbursement.
6. Carrier and Provider appeared or were represented at the hearing held June 7, 2004, regarding Carrier’s appeal of the IRO decision.
7. On November 25, 2002, Claimant was diagnosed with an ankle sprain with a bone contusion.
8. Claimant’s compensable injury was not just a simple sprained ankle and contusion, but a ligament tear and inflamed joint capsule.
9. Surgery in January 2003, revealed Claimant had ligament tear and restricted plantar fascia in her right foot, both of which were corrected during the surgery.
10. From November 21, 2002, through July 11, 2003, Claimant received the following services from Provider: office visits, myofascial release, gait training, therapeutic activities and exercises, TWCC required reports, somatosensory evoked potentials studies (SSEPs) and range of motion (ROM) testing.
11. As of the date of this hearing, the total amount in dispute was $3,889.40 for the services billed on under CPT codes 97110, 99213, 97250, 97530, 97118, 95851and 97530 between November 21, 2002, and July 11, 2003.
12. Claimant’s podiatrist, Lonnie Schwartz, D.P.M., requested pre-surgical therapy to get Claimant in the best shape possible for surgery.
13. Dr. Schwartz ordered post-surgical therapy to speed Claimant’s recovery.
14. The November 2002 SSEP was needed to rule out peripheral neuropathy and lumbar spine involvement because Claimant’s pain intermittently went into her knee.
15. Dr. Allen saw Claimant while she was in the work hardening program because she had some “pain episodes” during that period for which the work hardening program did not provide treatment.
16. Claimant’s post-operative gait training was not just to teach her how to use crutches but was to help her regain stability on the ankle.
17. Claimant obtained functional improvement with the gait training.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act (Act), TEX. LABOR CODE ANN. § 413.031.
2. 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(d) of the Act and TEX. GOVT. CODE ANN. ch. 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOVT. CODE ANN. ch. 2001 and the Commission’s rules, 28 TEX. ADMAN. CODE (TAC) § 133.305(g).
4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOVT. CODE ANN. §§ 2001.051 and 2001.052.
5. Carrier had the burden of proof in this proceeding. 28 TAC §§148.21(h) and (i).
6. Pursuant to the Act, 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).
7. Health care includes all reasonable and necessary medical services, including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. § 401.011(31).
8. Carrier failed to show that the disputed services listed in Finding of Fact No. 10 were not reasonable and medically necessary healthcare for Claimant.
9. Provider is entitled to reimbursement from Carrier for services listed in Finding of Fact No. 10 provided to Claimant from November 21, 2002, through July 11, 2003.

ORDER

It is ORDERED that Carrier Liberty Mutual Fire Insurance Company pay reimbursement to Provider DFW Pain Center, Inc. for the office visits, myofascial release, gait training, therapeutic activities and exercises, TWCC required reports, somatosensory evoked potentials study and range of motion testing provided Claimant from November 21, 2002, through July 11, 2003.

Signed June 30, 2004.

ANN LANDEROS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS