DECISION AND ORDER

I. DISCUSSION

Texas Mutual Insurance Company (TMIC), Petitioner, appealed the Findings and Decision of the Texas Workers’ Compensation Commission (Commission) acting through the Texas Medical Foundation, an Independent Review Organization (IRO).^[1] By letter issued on August 13, 2003, the IRO disagreed with TMIC’s prior adverse decision to deny reimbursement to Main Rehab & Diagnostic, (Main Rehab), Respondent, based on medical necessity for thirty sets of office visits and physical medicine services rendered from August 12, 2002, through December 30, 2002, for __(Claimant).^[2] TMIC timely requested a hearing to contest the Commission’s decision. By letter dated March 16, 2004, the Commission issued a timely and adequate notice of hearing.

A hearing was convened in this matter on August 5, 2004. The Administrative Law Judge (ALJ) was Paul Keeper. R. Scott Placek represented TMIC, and Scott C. Hilliard represented Main Rehab. The record was closed at the end of the hearing on that same day.

The Claimant sustained a work-related injury when three refrigerator shelves fell on her left foot and ankle on___.^[3] She was initially diagnosed with a foot or toe contusion.^[4] On July 12, 2002,

she presented to Main Rehab for evaluation and treatment.^[5] Dr. Osler Kamath, D.C., at Main Rehab referred the Claimant for an MRI that was performed on August 2, 2002. The radiologist found that the Claimant had no bone contusions or fractures, no damage to the tendons, and had swelling.^[6] The radiologist’s finding were that tenosynovitis (inflammation of the tendon and the tendon sheath that supply the foot)^[7] could not be ruled out, and that the injury should be considered a soft tissue injury.^[8]

The Claimant underwent a course of physical therapy including joint mobilization, myofascial release, manual traction, and therapeutic exercises.^[9] During the course of this therapy, the Claimant improved her range of motion from 9 degrees to 17 degrees, dorsiflexion from 16 to 120 degrees, and eversion from 17 to 20 degrees.^[10] From December 16, 2002, through December 30, 2002, Dr. Kamath placed the Claimant in a work hardening program to help her attain her goal of returning to work.^[11] Main Rehab is a three year, CARF-accredited program.^[12] Dr. Kamath certified that the Claimant had reached maximum medical improvement on December 30, 2002.^[13]

Dr. Kamath testified that the exercises that the Claimant performed during her care were performed while she was sitting or standing.^[14] The exercises were:

Plantar flex The Claimant was required to move her foot downward, pushing her

toes toward the ground.^[15]

Dorsiflex The Claimant was required to move her toes away from the ground.^[16]

Eversion The Claimant was required to move her toes away from her body in a rotary motion, moving her left foot towards the left.^[17]

Inversion The Claimant was required to perform the opposite motion, moving her left foot towards the right.^[18]

Proprioceptive The Claimant was required to balance on a wobble board with and without assistance.^[19]

In addition, the Claimant was given a Theraband, an elastic band that she would hold under her foot while forcefully extending the foot or that she would tie to a pillar and apply force against resistance.^[20] The Claimant was also asked to perform unilateral or bilateral heel raises.^[21] For each of these exercises, the Claimant was supervised on a one-on-one basis.^[22] The purpose of the one-on-one treatment was to ensure that the Claimant performed the exercises correctly.^[23] Despite the one-on-one supervision, the Claimant was never unable to complete the exercises prescribed for her,^[24] was in no danger as a result of performing the exercises,^[25] was a cooperative patient,^[26] appeared motivated in her recovery,^[27] was of normal intelligence,^[28] had no problems missing appointments,^[29]

and had no problems following instructions.^[30] Dr. Kamath prescribed a home exercise program for the Claimant in which she performed the same exercises at home that she had performed at the office.^[31] Over the course of the Claimant’s treatment, Dr. Kamath’s subjective and objective findings about the Claimant’s condition never changed from August 12, 2002, to December 30, 2002.^[32]

In the work hardening portion of her therapy from December 16, 2002, through December 30, 2002, the Claimant was given additional exercises to improve her stability.^[33] Those exercises included her walking on a treadmill for one hour at speeds from 1 mile per hour to 3 miles per hour while her blood pressure and pulse rate were monitored.^[34] The Claimant was in somewhat good physical shape.^[35]

TMIC called Mark Miller, a licensed physical therapist, as a witness. He concluded that the clinical notes maintained by Main Rehab did not meet the standard of care for documenting physical therapy services. He based this opinion on the fact that Dr. Kamath did not describe the therapeutic exercises performed.^[36] Mr. Miller explained that one-on-one supervision of therapeutic exercise is done to ensure that the exercise is being performed properly, to ensure that it is safe for the patient, to progress the exercise program as necessary, and to determine tissue response.^[37] Mr. Miller concluded that none of these conditions were honored and that the standard of care was not met.^[38]

Based on these conclusions, Mr. Miller determined that the joint mobilizations, myofascial releases, and manual tractions performed during September 3 through October 7, 2002 were not medically necessary because of the lack of documentation by Dr. Kamath, by the lack of muscle bellies (the contractile portion of the muscle) in the foot, and by the Claimant’s initial and ongoing physical ability to use the treadmill successfully.^[39]

Similarly, Mr. Miller concluded that the physical therapy portion of the work hardening- from December 16 through December 30, 2002-was not medically necessary. He concluded that the exercises performed by the Claimant during this period could have been performed at home.^[40]

TMIC also called David Alvarado, D.C., as a witness. Dr. Alvarado testified that one-on-one therapy is appropriate to administer early in a rehabilitation program.^[41] One-on-one therapy is appropriate to monitor a patient’s progress and to monitor a patient’s safety, balance, or coordination.^[42]

Dr. Alvarado found that the documentation of the Claimant’s therapy did not support the type of care being administered.^[43] He also found no medically necessity between August 12 and October 7, 2002, for one-on-one therapy,^[44] for joint mobilization,^[45] or for myofascial release.^[46]

TMIC sustained its burden of proof in this proceeding. That burden was to show by a preponderance of the evidence that the services in dispute rendered were not medically necessary. The evidence demonstrates that Main Rehab failed to document the procedures properly, that the

passive therapies were conducted unnecessarily on a one-on-one basis, and that the therapies offered during the work hardening were not necessary because the Claimant was substantially unimpaired at the time that the therapies were rendered. Taking into account the testimony of the three witnesses and the documentary evidence, the ALJ finds that the disputed services were not medically necessary.

II. FINDINGS OF FACT

1. ___, Claimant, sustained a work-related injury when three refrigerator shelves fell on her left foot and ankle on___.
2. She was initially diagnosed with a foot or toe contusion.
3. On July 12, 2002, she presented to Main Rehab & Diagnostic (Main Rehab) for evaluation and treatment.
4. Dr. Osler Kamath, D.C., at Main Rehab referred the Claimant for an MRI that was performed on August 2, 2002.
5. The radiologist found that the Claimant had no bone contusions or fractures, no damage to the tendons, and had swelling.
6. The radiologist’s finding were that tenosynovitis (inflammation of the tendon and the tendon sheath that supply the foot) could not be ruled out, and that the injury should be considered as one to soft tissue.
7. The Claimant underwent a course of physical therapy including joint mobilization, myofascial release, manual traction, and therapeutic exercises.
8. Dr. Kamath testified that the exercises that the Claimant performed during her care were performed while she was sitting or standing.
9. The exercises required the Claimant to move her foot or toes or to to balance on a wobble board with and without assistance.
10. In addition, the Claimant was given a Theraband, an elastic band that she would hold under her foot while forcefully extending the foot or tie the Theraband to a pillar and apply force against resistance.
11. The Claimant was also asked to perform unilateral or bilateral heel raises.
12. For these exercises, the Claimant was supervised on a one-on-one basis.
13. Despite the one-on-one supervision, the Claimant was never unable to complete the exercises
14. prescribed for her, was in no danger as a result of performing the exercises, was a cooperative patient, appeared motivated in her recovery, was of normal intelligence, did not miss appointments, and had no problems following instructions.
15. Dr. Kamath prescribed a home exercise program for the Claimant in which she performed the same exercises at home that she had performed at the office.
16. Over the course of the Claimant’s treatment, Dr. Kamath’s subjective and objective findings about the Claimant’s condition never changed-from August 12, 2002, to December 30, 2002.
17. In the work hardening portion of her therapy, the Claimant was given exercises to improve her stability. Those exercises included her walking on a treadmill for one hour at speeds from 1 mile per hour to 3 miles per hour while her blood pressure and pulse rate were monitored.
18. The clinical notes maintained by Main Rehab did not meet the standard of care for documenting physical therapy services in that Dr. Kamath did not describe the therapeutic exercises performed.
19. One-on-one supervision of therapeutic exercise is done to ensure that the exercise is being performed properly, to ensure that it is safe for the patient, to progress the exercise program as necessary, and to determine tissue response.
20. Main Rehab honored none of these conditions in the treatment of the Claimant, and the standard of care was not met.
21. The joint mobilizations, myofascial releases, and manual tractions performed during September 3 through October 7, 2002 were not medically necessary because of the lack of documentation by Dr. Kamath, by the lack of muscle bellies (the contractile portion of the muscle) in the foot, and by the Claimant’s physical ability to use the treadmill successfully.
22. .
23. The physical therapy portion of the work hardening-from December 16 through December 30, 2002-was not medically necessary because the exercises performed by the Claimant during this period could have been performed at home.
24. By letter issued on August 13, 2003, the Texas Medical Foundation, an Independent Review Organization (IRO), disagreed with Texas Mutual Insurance Company’s (TMIC) prior adverse decision to deny reimbursement to Main Rehab based on medical necessity for thirty sets of office visits and physical medicine services rendered from August 12, 2002, through December 30, 2002, for Claimant.
25. The IRO decision is deemed a Decision and Order of the Texas Workers’ Compensation Commission (Commission).
26. TMIC timely requested a hearing to contest the Commission’s decision.
27. By letter dated March 17, 2004, the Commission issued a notice of hearing.
28. Administrative Law Judge Paul Keeper convened a hearing on August 5, 2004, in the hearing rooms of the State Office of Administrative Hearings. The record closed upon the adjournment of the hearing.
29. R. Scott Placek represented TMIC, and Scott C. Hilliard represented Main Rehab.

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. Under 28 Tex. Admin. Code §148.21(h), TMIC has the burden of proof, pursuant to Tex. Lab. Code Ann. §413.031.
4. The disputed services were not reasonable or necessary medical treatments under Tex. Lab. Code Ann. §401.011(19).
5. TMIC should not be required to reimburse Main Rehab for the physical therapy sessions in dispute.

ORDER

Texas Mutual Insurance Co. is not required to reimburse Main Rehab & Diagnostic for the disputed services provided Claimant from August 12, 2002, through December 30, 2002.

Signed October 6, 2004.

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. At the hearing on the merits on August 5, 2004, Main Rehab withdrew its claim for the office visit claims.↑
3. Main Rehab Ex. 3 at 5; Main Rehab Ex. 1 at 113.↑
4. TMIC Ex. 3 at 6.↑
5. Main Rehab Ex. 1 at 113.↑
6. Main Rehab Ex. 1 at 115-116.↑
7. TMIC Ex. 3 at 6.↑
8. Main Rehab Ex. 1 at 115-116.↑
9. Main Rehab Ex. 3 at 8.↑
10. Id. at 11-12.↑
11. Id.↑
12. Id.↑
13. Id. at 13.↑
14. Id. at 24.↑
15. Id. at 25.↑
16. Id.↑
17. Id.↑
18. Id. at 26.↑
19. Id. ↑
20. Id. at 27-28.↑
21. Id. at 28.↑
22. Id.↑
23. Id.↑
24. Id. at 24.↑
25. Id. at 24.↑
26. Id. at 18.↑
27. Id.↑
28. Id.↑
29. Id.↑
30. Id. at 19.↑
31. Id. at 30.↑
32. Id. at 20-23; Main Rehab Ex. 1 at 156 (August 12, 2002); Main Rehab Ex. 2 at 133 (December 30, 2002).↑
33. Id. at 31-32.↑
34. Id. at 33-34.↑
35. Id. at 35.↑
36. TMIC Ex. 2 at 10.↑
37. Id. at 11.↑
38. Id.↑
39. Id. at 13-16.↑
40. Id. at 22.↑
41. TMIC Ex. 3 at 9.↑
42. Id.↑
43. Id. at 10.↑
44. Id. at 13.↑
45. Id. at 14.↑
46. Id.↑