DECISION AND ORDER

Petitioner Neuromuscular Institute of Texas (Provider) appealed the findings and decision of the Texas Workers= Compensation Commission’s (TWCC=s) designee, an independent review organization (IRO), which found that the office visits, hot/cold packs, electrical stimulation, ultrasound, myofascial release, and electrodes provided between January 13, 2004, and March 21, 2003, to ____, a workers= compensation claimant (Claimant), were not medically necessary health care. The Administrative Law Judge (ALJ) finds that the treatments provided Claimant were not medically necessary, except for the January 13, 2003 office visit that resulted in the work status report approved for payment by the IRO.

I. NOTICE, JURISDICTION, AND PROCEDURAL HISTORY

There were no contested issues of jurisdiction or notice. Those issues are set out in the Findings of Fact and Conclusions of Law.

On July 14, 2004, the hearing in this matter convened before the State Office of Administrative Hearings (SOAH) ALJ Catherine C. Egan. Attorney Alan Craddock represented Provider. Attorney Dean Pappas represented Bexar County (Carrier). Following the receipt of evidence and the parties= arguments, the record closed the same day.

II. DISCUSSION

A. Background

Claimant sustained a compensable injury on ____, when she fell off a curb while at work. Claimant initially reported that she hurt her wrist, shoulder, and knee. Later, Claimant reported pain in her lower back. On January 12, 2001, Provider began treating Claimant’s multiple injuries. Claimant was treated with six to eight weeks of therapeutic passive modalities. Carrier denied payment for treatment related to Claimant’s lower back asserting that Claimant’s reports of pain to her lower back were not related to her compensable injury.

On January 10, 2003, Carrier conceded that Claimant’s lower back was part of her compensable injury. According to Provider, only after Carrier agreed that Claimant’s lower back pain was part of the compensable injury did Provider proceed with more aggressive treatment to address Claimant’s lower back pain.

B. Legal Standards

Provider has the burden of proof in this proceeding. 28 Tex. Admin. Code (TAC) ” 148.21(h) and (i); 1 TAC ‘ 155.41. Pursuant to the Texas Workers= Compensation Act, 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 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, chiropractic, and physical therapy services. Tex. Lab. Code Ann. ‘ 401.011(19)(A).

IRO Decision

The IRO found the Provider’s special report done during the January 13, 2003 office visit was medically necessary to treat Claimant. As for the rest of the services provided between January 13 and March 21, 2003, the IRO determined that Claimant had Aprogressed beyond passive unidisciplinary therapeutic applications.^[1] The IRO stated that lumbar injection did not justify the use of concurrent passive therapeutics. Instead, the IRO recommended that Claimant engage in Aactive, patient-driven applications.^[2] On March 4, 2004, TWCC’s Medical Review Division reviewed the IRO decision and confirmed the disputed services were not medically necessary (except the special report).

D. Provider’s Position

On January 12, 2001, Claimant went to Provider for evaluation and treatment.^[3] Conrad Kothmann, D. C. examined Claimant and documented that:

Passive lumbar rotary extension procedures of the hips and low back do cause an increase in pain bilaterally . . .

In general, palpitation of the lumbar spine does elicit a painful response to palpation at the patient’s left SI joint plane lines. There are also myofascial presentations, more

so on the patient’s left paraspinal L1 though L5 areas.^[4]

ccording to Dr. Kothman, Claimant Ahas old effects of a lumbar strain, among many other diagnoses.

Daniel Bradley Burdin, a chiropractic neurologist practicing with Provider, co-treated Claimant with Dr. Kothman. Dr. Burdin explained that Claimant’s compensable injury caused multiple injuries, complicating Aher overall recovery.^[5] Claimant was not a candidate for spinal surgery; consequently, Drs. Kothman and Burdin recommended treatments to help Claimant manage and cope with her pain. This included passive therapeutic modalities for her lower back, while Provider addressed Claimant’s medical problems with her wrist and knee. At some point, Provider learned that Carrier was denying coverage for any medical treatment to Claimant’s lower back. According to Provider, this prevented further aggressive treatment to Claimant’s lower back such as epidural steroid injections (ESIs).

On January 10, 2003, Carrier conceded that Claimant’s lower back was part of the compensable injury. When Carrier agreed that Claimant’s lower back was part of the compensable injury, Provider began treating this condition again. On January 13, 2003, during an office visit, Provider evaluated Claimant’s current spinal condition and prepared a work status report. As noted above, the IRO agreed that the work status report was necessary, but disallowed payment for the office visit.

On January 16, 2003, Claimant underwent a CT lumbar examination which revealed disk bulges at L3 and L5-S1 and subluxation of 3 mm at L3.^[6] On February 12, 2003, David Hirsch, D.O., who is board certified in pain management, began the first of three ESIs. Dr. Hirsch prescribed

concurrent passive modalities for Claimant to complement the ESIs, but provided little information to explain the medical necessity for these passive modalities. Provider did treat Claimant with passive modalities on March 17, 20 and 21, 2003. According to Dr. Burdin, this therapy was medically necessary because if the patient’s pain lessens, following the ESIs, the patient may be able

to endure more therapy to aid in recovery. In addition, passive therapy helps to distribute the different medications. Dr. Burdin attested that this approach was originally recommended to him by Dr. Hirsch and is supported in medical literature.

Under cross-examination, Dr. Burdin agreed that Provider treated Claimant with passive therapeutic modalities for six to eight weeks beginning in January 2001, when Provider first began treating Claimant. These modalities included soft tissue mobilization to the lumbar spine, manipulations to the lumbar spine, ultrasound, electro-stimulation, and hot and cold packs. Dr. Burdin agreed that Claimant had an MRI and an EMG done on her lower back between 2001 and 2002. According to Dr. Burdin, Claimant did not respond well to this conservative care, but because Carrier denied coverage, other treatment options were not considered.

Once Carrier agreed that Claimant’s lower back was part of the compensable injury, Provider examined her lower back and referred Claimant to Dr. Hirsch, who began administering injection therapy to Claimant. The passive modalities in issue were done to complement the injection therapy. These modalities included office visits (CPT Code 99213), myofascial release (CPT Code 97250), ultrasound (CPT Code 97035), electric muscle stimulation (CPT Code 97014), hot packs (CPT Code 97010), and electrodes (CPT Code A4556). Dr. Burdin elaborated that had Claimant undergone spinal surgery, passive therapy would have been part of the rehabilitation process. Just because passive therapy is administered once, Dr. Burdin argued, it does not mean it should never be done againBit depends on the other treatments being administered.

Dr. Hirsch documented that Claimant initially reported feeling better after the first ESI. However, after the third ESI done on May 9, 2003, Claimant was in Apretty bad shape.^[7] According to Dr. Hirsch, Claimant has subligamentous disk herniation at L2-L3; L3-L4; and L4-L5, and left

sided acute L3-L4 motor radiculopathy.^[8] Dr. Hirsch recommended Claimant seek consultation with an orthopedic surgeon.

On July 15, 2003, Claimant went to Jerjis Denno, M.D., for a surgical consultation. Dr. Denno examined Claimant and determined that Claimant suffered with multiple small disk protrusions and herniations in her lumbar spine. However, Dr. Denno recommended against surgery and recommended the continuation of conservative treatment.^[9]

C. Carrier’s Position

Crrier presented the testimony of its expert, Aaron Lee Combs, M.D., an orthopedic surgeon, regarding the spine. Dr. Combs conducted a physical examination of Claimant on July 31, 2003, and reviewed her medical records, although the MRI and the CT scan were not in the materials he reviewed. According to Dr. Combs, even if the MRI reported a herniated disk it would not change his opinion because that term Aherniated disk is used too loosely.

Claimant reported to Dr. Combs that she injured her lower back and right wrist and knee during a fall at work. She had subjective complaints of pain. However, noted Dr. Combs, Claimant had no objective findings to support her complaints of pain. Dr. Combs diagnosed Claimant as suffering with lumbalgia (low back pain) and spondylosis (degenerative changes to the lower back).

Dr. Combs was aware that Claimant had three ESIs, and opined that the passive therapeutic treatments performed by Provider following the ESIs in early 2003 were not medically necessary. According to Dr. Combs, too much time that had past since the compensable injury for these modalities to be medically necessary. Typically, these passive modalities are done during the first eight weeksBduring the acute phase of treatment. If these passive modalities are unsuccessful, and the patient exhibits the appropriate symptoms, then ESIs are administered. Passive modalities are not done after ESIs, unless the patient experiences an intervening, or acute, injury that would lend itself to an acute treatment program. After the acute period has past, Dr. Combs opined, the benefits from these passive modalities do not have a significant impact on the chronic complaints and are not medically reasonable.

E. ALJ’s Analysis

Claimant’s compensable injury occurred on___. Provider treated her lower back pain with passive therapeutic modalities for six to eight weeks, during the acute phase of the injury. When passive therapy did not work to relieve Complaint’s pain, Provider recommended more aggressive treatmentCESIs. Carrier denied coverage, asserting that Claimant’s lower back was not part of the compensable injury, a position Carrier changed on January 10, 2003.

After Carrier conceded that Claimant’s lower back was part of the compensable injury, Provider examined Claimant, prepared a special report, conducted a CT examination on Claimant’s spine, and referred Claimant to Dr. Hirsch. By February 12, 2003, Dr. Hirsch had begun performing lumbar ESIs. The only medical services in issue concern those provided after the Carrier acknowledged that the injury to Claimant’s lower back was part of the compensable injury, those occurring between January 13, 2003, and March 21, 2003. The amount in dispute totals $530.

The testimony of Dr. Combs, challenging the necessity and efficacy of the disputed treatments, was very credible. Claimant underwent passive therapy during the acute phase of treatment shortly after her injury with little success. Passive modalities are beneficial during the

acute phase of an injury, or following an intervening acute injury. The dispute regarding the scope of Claimant’s compensable injury did not prevent Claimant from receiving this treatment. However, when Claimant’s lower back pain became a chronic problem, without an intervening incident such a spinal surgery, passive modalities were not medically necessary. Provider did not offer sufficient evidence to show that it was medically necessary to used passive therapy following the ESIs. The ALJ does agree with the Provider that the January 13, 2003 office visit was medically necessary because that was when the Provider conducted the examination to prepare the special report.

Therefore, the ALJ finds the Provider did not meet its burden of proof and denied further reimbursement of the disputed claims, except for the January 13, 2003 office visit.

III. FINDINGS OF FACT

1. On ____, Claimant____ sustained an injury compensable under the Texas Workers= Compensation Act.
2. At the time of the compensable injury, Claimant’s employer had workers= compensation insurance coverage through Bexar County (Carrier).
3. On January 20, 2001, Claimant began treatment at the Neuromuscular Institute of Texas (Provider). Bradley Burdin, D.C., a chiropractic neurologist practicing with Provider, was one of Claimant’s treating physician.
4. Claimant initially reported that she injured her wrist, shoulder, and knee during the fall at work, but also had complaints of pain to her lower back.
5. Provider diagnosed Claimant with multiple injuries, primarily regarding her wrist and knee. However, Provider assessed Claimant as suffering lumbar strain.
6. Provider initially treated Claimant with six to eight weeks of passive therapy for the pain in her lower back during the acute phase of her compensable injury.
7. The passive therapy did not relieve Claimant’s lower back pain.
8. When the passive therapy failed to relieve Claimant’s lower back pain, Provider requested coverage for epidural steroid injections (ESIs).
9. Carrier denied coverage for treatments to Claimant’s lower back, asserting it was not part of the compensable injury.
10. Between 2002 and 2003, Provider treated Claimant’s compensable injuries covered by insurance, specifically Claimant’s wrist and knee.
11. On January 10, 2003, Carrier conceded that Claimant’s lower back was part of Claimant’s compensable injury.
12. On January 13, 2003, Provider conducted an examination during an office visit to evaluate Claimant’s current condition and to prepare a work status report.
13. The office visit and special report were medically necessary to evaluate Claimant’s current condition.
14. As a result of the chronic nature of Claimant’s lower back pain, Provider referred her to David Hirsch, D.O., who is board certified in pain management.
15. Dr. Hirsch recommended that Claimant undergo lumbar ESIs. The first injection was performed on February 12, 2003.
16. Following the ESIs, Dr. Hirsch recommended Claimant undergo passive therapeutic modalities to complement the ESIs.
17. The disputed treatments provided between January 13, 2003 and March 21, 2003, to complement the ESIs cost $530, and were billed under the following CPT codes: 97010 (hot packs); 97014 (electric muscle stimulation); 97035 (ultrasound); 97250 (myofascial release); 99213 (office visit), and A4556 (electrodes).
18. After Carrier denied reimbursement for the treatments, Provider appealed to the Texas Workers= Compensation Commission (Commission), which referred the dispute to its designee, an independent review organization (IRO).
19. The IRO agreed with the Carrier’s denial of reimbursement, except for the special report taken on January 13, 2003, which was found to be medically necessary.
20. On March 4, 2004, the Commission’s Medical Review Division reviewed the IRO decision and confirmed that the IRO had found that the disputed services were not medically necessary, except for the special report.
21. On March 15, 2004, Provider timely appealed.
22. On April 29, 2004, the Commission issued the notice of hearing, which stated the date, time, and location of the hearing and cited to the statutes and rules involved, along with a short, plain statement of the factual matters involved.
23. The medical record failed to show that the passive therapeutic therapies, including the ultrasound, hot packs, electric muscle stimulation, myofascial release, were medically necessary to reduce Claimant’s pain or increased the benefits of the ESIs Claimant received.
24. Other than the office visit on January 13, 2003, the treatments provided between January 13 and March 21, 2003, and billed under CPT codes 97035 (ultrasound); 97010 (hot packs); 97014 (electric muscle stimulation); 97250 (myofascial release); 99213 (office visit), and A4556 (electrodes) were not shown to be medically necessary to treat Claimant’s injury.

IV. CONCLUSIONS OF LAW

1. The Texas Workers= Commission has jurisdiction over this matter pursuant to the Texas Workers= Compensation Act (Act), Tex. Lab. Code Ann. ‘ 413.031.
2. The State Office of Administrative Hearings has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to ‘ 413.031(k) of the Act and Tex. Gov=tCodeAnn. ch. 2003.
3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov=t Code Ann. ” 2001.051 and 2001.052.
4. Provider had the burden of proof in this proceeding. 28 TAC ” 148.21(h) and (i); 1 TAC ‘ 155.41.
5. Based on the Findings of Fact, except for the January 13, 2003 office visit, Provider failed to show that the disputed treatments provided to Claimant between January 13 and March 21, 2003, were medically necessary health care under Tex. Lab. Code Ann. ” 401.011 and 408.021(a).
6. Based upon the foregoing Findings of Fact and Conclusions of Law, Provider’s request for additional reimbursement should be denied, except for the January 13, 2003 office visit.

ORDER

IT IS THEREFORE, ORDERED that Carrier pay for the office visit on January 13, 2003. Provider’s request for all other additional reimbursement for the dispute treatments provided between January 13, 2003, and March 21, 2003, is denied.

Signed September 13, 2004.

CATHERINE C. EGAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Res. Ex. A.↑
2. Id.↑
3. Pet. Ex. 2 at 1-6.↑
4. Pet. Ex. 2 at 4. Claimant suffered with multiple areas of injury, but this matter only concerns the lower back. Therefore, the ALJ focuses the discussion on the lower back.↑
5. Pet. Ex. 3 at 2.↑
6. Pet. Ex. 9.↑
7. Pet. Ex. 4 at 1.↑
8. Pet. Ex. 4 at 5.↑
9. Pet. Ex. 6 at 2.↑