DECISION AND ORDER

Texas Mutual Insurance Company (Carrier) appealed the decision of an Independent Review Organization (IRO) upholding the reimbursement for therapeutic exercises and other procedures administered to Claimant between August 27, 2002, and October 30, 2002. In this decision, the Administrative Law Judge (ALJ) finds that Carrier met its burden of showing that the treatment rendered was not reasonable and medically necessary for Claimant’s compensable injury. Therefore, Carrier is not ordered to reimburse Waco Ortho Rehab (Provider) for the treatment in dispute.

The hearing convened and closed on November 17, 2004, before Steven M. Rivas, ALJ. Carrier appeared and was represented by Scott Placek, attorney. Provider appeared and was represented by William Maxwell, attorney. The record remained open until January 10, 2005, to allow the parties an opportunity to provide written closing arguments. Carrier submitted a written closing on February 16, 2005, after the record closed, which was not considered by the ALJ. Provider failed to submit any written closing.

I. DISCUSSION

A. Background Facts

Claimant sustained a compensable shoulder injury on ___. Shortly after the injury, Claimant was referred to Provider for treatment. Claimant underwent several sessions of physical therapy, including the disputed services. Provider billed Carrier for the treatment rendered, which Carrier denied as not medically necessary. Provider filed a request for medical dispute resolution with the Medical Review Division of the Texas Workers’ Compensation Commission. The dispute was sent to an IRO, which held the treatment rendered on the disputed dates of service was medically necessary and ordered Carrier to reimburse Provider. Carrier filed a request for hearing before the State Office of Administrative Hearings.

B. Applicable Law

The Texas Labor Code contains the Texas Workers’ Compensation Act (the Act) and provides the relevant statutory requirements regarding compensable treatment for workers’ compensation claims. In particular, Tex. Lab. Code Ann. § 408.021(a) 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. The statute further states an 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.”

Under Tex. Lab. Code Ann. §401.011(19), health care “includes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services.”

C. Evidence and Analysis

Provider treated Claimant with a regimen of active and passive modalities. Carrier reimbursed Provider for a majority of the services rendered including joint mobilization and myofascial release. Carrier denied reimbursement for several sessions of therapeutic exercises billed under CPT code 97110 on the basis that they were not medically necessary to treat Claimant’s compensable injury. Specifically, Carrier found that the therapeutic exercises billed under 97110 did not require a one-on-one setting.^[1]

In support of its position, Carrier called William DeFoyd, D.C., who testified he has treated other patients with similar injuries as Claimant. Based on his review of Claimant’s treatment records, Dr. DeFoyd found Provider’s use of one-on-one treatment was not medically necessary. Dr. DeFoyd asserted the types of exercises Claimant was doing did not require one-on-one supervision following Claimant’s initial showing that he could perform the exercises properly. According to Dr. DeFoyd, one-on-one interaction is necessary only when there are safety and health issues, or when a patient shows he or she is unable to understand how to perform the prescribed exercises.

The disputed exercises included the use of a body blade, a theraband, a wobble board, wall walking, and weight training. Dr. DeFoyd described the body blade as a plastic instrument with a handle in the middle that patients are suppose to shake side-to-side and up-and-down. Dr. DeFoyd testified that he routinely prescribes this exercise to his patients and that it usually takes two minutes to learn how to properly “shake” this instrument. According to Dr. DeFoyd, the only reason one-on-one supervision would be necessary was if Claimant did not understand how to perform the exercise or if he was in danger of hitting someone with the body blade. However, there is no evidence that either of these was the case.

Another disputed service included the use of a theraband, which is a large rubber-band instrument used to create resistance during stretching and shoulder exercises. Dr. DeFoyd testified that one-on-one supervision is generally necessary during a patient’s first session when using the theraband, but no longer necessary for any following sessions unless the patient’s condition changes, which was not evident from the treatment notes.

Wall walking was another exercise billed under CPT Code 97110 for which Carrier denied reimbursement. This exercise was performed by having Claimant place his index and middle finger on a wall and “walk” up and down the wall using these two fingers. Dr. DeFoyd asserted this

exercise was “very simple” and did not require one-on-one supervision following the first session, unless there was a change in Claimant’s condition, or a change in how the procedure was to be performed. Neither change was reflected in the treatment notes.

The use of a wobble board and weight training were both exercises that required one-on-one supervision to show Claimant how they should be performed, but did not require one-on-one supervision following the initial sessions. According to Dr. DeFoyd, a wobble board is used to simulate pushup exercises, which did not require a one-on-one setting after the first instructions. Additionally, the weight training exercises performed by Claimant were “basic” and similar to those performed by people at a health facility. Pursuant to Dr. DeFoyd, these exercises typically required 30 minutes of one-on-one instruction, but nothing more following the initial instruction phase.

Provider argued the services were medically necessary because a one-on-one setting is more effective than a group setting. Provider called David Bailey, M.D., who testified that a one-on-one setting is appropriate in order to achieve an “aggressive, faster, and more facilitated outcome.” Additionally, Dr. Bailey found that based on his review of the treatment notes, Claimant’s strength and range of motion improved as a result of performing the excises in a one-on-one setting. Dr. Bailey made an analogy to a golf swing in that it is relatively easy to instruct someone how to hit a golf ball, but the actual act of properly hitting a golf ball is a very difficult exercise and requires one-on-one training to be successful.

Provider additionally pointed to a study in the journal of Medicine & Science in Sports & Exercise, where strength and endurance were measured in two sets of males performing heavy resistance exercises. The study compared the progress of two sets of males of similar age and shape where one group was supervised one-on-one with a personal trainer, and the other group performed identical exercises unsupervised. The study concluded that the group supervised one-on-one displayed a greater increase in strength and endurance than the unsupervised group. The ALJ did not find this study persuasive because there is no evidence that Claimant’s prescribed exercises were designed as “heavy resistance” exercises. Additionally, the differences between one-on-one supervision and group settings is not in dispute. It is likely that a patient undergoing one-on-one supervision could generally exhibit better results than a patient in a group setting. However, the ALJ believes the real issue here is what is appropriate cost-effective treatment.

The ALJ is simply not convinced Claimant required one-on-one supervision to perform the prescribed exercises beyond a reasonable instruction phase. Carrier reimbursed Provider for several initial sessions of one-on-one treatment before it began denying later sessions. In the ALJ’s opinion, the exercises described by Dr. DeFoyd did not require the amount of one-on-one supervision billed by Provider.

Based on the foregoing, the ALJ believes the treatment rendered to Claimant from August 27, 2002, through October 30, 2002, was not medically necessary and should not be reimbursed.

II. FINDINGS OF FACT

1. Claimant sustained a compensable shoulder injury on ___.
2. Claimant was referred to Waco Ortho Rehab (Provider) for treatment of his injury.
3. Claimant underwent months of physical therapy including one-on-one therapeutic exercises, myofacial release, and joint mobilizations with Provider following his injury.
4. Provider billed Texas Mutual Insurance Company (Carrier) for the services rendered to Claimant from August 27, 2002, through October 30, 2002, which Carrier denied as not medically necessary.
5. Provider requested medical dispute resolution through the Medical Review Division of the Texas Workers’ Compensation Commission (the Commission). The dispute was referred to an Independent Review Organization (IRO), which held the services rendered were medically necessary.
6. Carrier timely appealed the IRO decision to the State Office of Administrative Hearings (SOAH).
7. Notice of the hearing in this case was mailed to the parties on April 5, 2004. The notice 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. In the notice, the Commission’s staff indicated that it would not participate in the hearing.
8. The hearing convened and closed on November 17, 2004, with Administrative Law Judge (ALJ) Steven M. Rivas presiding. Carrier appeared and was represented by Scott Placek, attorney. Provider appeared and was represented by William Maxwell, attorney. The record remained open until January 10, 2005, to allow the parties to submit closing arguments. Carrier submitted a closing after the record had closed. Provider failed to submit any closing.
9. Provider administered therapeutic exercises to Claimant that included the use of a body blade, a theraband, a wobble board, wall walking and weight training.
10. Provider rendered one-on-one supervision to Claimant while he exercised with the body blade, a plastic instrument with a handle in the middle that Claimant was ordered to shake side-to-side and up-and-down.
11. Provider rendered one-on-one supervision to Claimant while he exercised with the theraband, a large rubber band instrument used to created resistance that Claimant used for stretching and shoulder exercises.
12. Provider rendered one-on-one supervision to Claimant while he did wall walking exercises, where he placed his index and middle finger on a wall and walked up and down the wall using his fingers.
13. Provider rendered one-on-one supervision to Claimant while he exercised with the wobble board, an instrument used to simulate pushups.
14. Provider rendered one-on-one supervision to Claimant while he performed basic weight training exercises.
15. Carrier reimbursed Provider for several initial one-on-one sessions for the exercises described in Findings of Fact Nos. 9 – 14.
16. One-on-one supervision is necessary during the instructional phase of a treatment plan to ensure a patient is performing the exercises properly.
17. Claimant did not exhibit a change in his condition during his treatment with Provider that required one-on-one supervision.
18. Claimant did not present a safety concern or the inability to perform the prescribed exercises that would have required one-on-supervision.

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. Carrier timely filed its notice of appeal, as specified in 28 Tex. Admin. Code § 148.3.
3. Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov’t Code Ann. §§2001.051, 2001.052 and 28 Tex. Admin. Code § 148.4.
4. Carrier had the burden of proof on its appeal by a preponderance of the evidence, pursuant to Tex. Lab. Code Ann. § 413.031 and 28 Tex. Admin. Code §148.21(h).
5. Under Tex. Lab. Code Ann. § 408.021(a)(3), an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury.
6. The therapeutic exercises administered to Claimant in a one-on-one setting were not medically necessary to treat Claimant’s compensable injury.
7. Based on the Findings of Fact and Conclusions of Law, Carrier should not be required to pay for the treatment rendered to Claimant from August 27, 2003, through October 30, 2002.

ORDER

IT IS ORDERED THAT the Carrier is not required to pay for the treatment rendered to Claimant from August 27, 2002, through October 30, 2002.

Signed March 9, 2005.

STEVEN M. RIVAS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. ¹ CPT Code 97110 is used for therapeutic exercises designed to develop strength and endurance, range of motion, and flexibility. This code does not require one-on-one supervision like therapeutic activities billed under CPT Code 97530.↑