DECISION AND ORDER

I. DISCUSSION

Texas Mutual Insurance Company (Petitioner) requested a hearing to contest the Findings and Decision of an independent review organization (IRO), assigned by the Texas Workers Compensation Commission (Commission), allowing Excel Therapy Associates (Respondent) reimbursement for joint mobilization from May 8, 2003, through June 12, 2003, and therapeutic exercises from April 8, 2003, through September 12, 2003. Respondent withdrew requests for reimbursement for joint mobilization from April 8, 2003 through May 6, 2003, hot and cold pack therapy for all dates of services, and durable medical equipment. Petitioner conceded payments of durable medical equipment on May 14, 2003 and June 12, 2003, the only days for this service.

This decision denies the relief sought by Petitioner and orders payment for therapeutic exercises and joint mobilization for all remaining contested dates.

The hearing convened on December 16, 2004, before Administrative Law Judge (ALJ) Deborah Ingraham. Ryan Willett represented Petitioner. Grace Rees, O.T.R., represented Respondent. There were no contested issues of notice or jurisdiction. The hearing adjourned the same day. The parties were allowed additional time to submit closing arguments and the record closed on January 7, 2005. After reading and reviewing the record in this matter, ALJ Bill Zukauckas renders this decision and order.

(Claimant) sustained a work-related injury to his right hand on ___, while working as an oilfield mechanic. He felt a pop with a sharp pain while tightening a bolt with a socket wrench. He had minimal swelling and a dull ache the next day. As time progressed and the more he used his wrist, the worse his pain became. His right wrist was originally treated conservatively, but was subsequently diagnosed with a very severe chronic scapholunate gap of six millimeters, a scapholunate angle of 85 degrees, and carpal tunnel syndrome.

On February 4, 2003, David Peeler Green, M.D., performed a modified AO arthrodesis on Claimant’s right wrist with a proximal carpectomy. Dr. Green also performed a carpel tunnel release. Following surgery, Claimant underwent a course of physical therapy, including the disputed services.

II. ANALYSIS

Petitioner had the burden of proof in this proceeding. Petitioner failed to sustain its burden.

As the IRO decision noted, Claimant sustained a very unusual type of injury and underwent an unusual type of surgery, not lending itself well to a set number of rehabilitative treatments. And as Ms. Rees argued, Dr. Green’s instructions to her were very specific closely followed, with the results carefully evaluated. The ALJ agrees with the IRO reviewer that this was not the open-ended referral or treatment plan that is often seen in TWCC cases.

Petitioner’s expert, Gary Pamplin, M.D., testified that the treatments in question were unnecessary because Claimant had attained enough range of motion to perform the exercises at home. Specifically, Dr. Pamplin explained on his own that Claimant, on his own, could have used his left hand to help the right hand move beyond the range of motion it could achieve by itself. In response to that argument, Ms. Rees offered persuasive evidence that because Claimant had intrinsic muscle tightness he was unable to attain maximum fisting strength without therapy to gain full MP, PIP, and DIP flexion. Specifically, Claimant was instinctively “backing off” attempts to obtain end- range active range of motion because of pain consequently, he was not helpfully re-stretching the shortened tissues in a way that one-on-one physical therapy allowed.

Given the facts of this case and the unique injury involved, the one-on-one therapeutic exercise was necessary for increasing Claimant’s hand strength and flexion. The evidence does not support Petitioner’s position that home exercise and/or group exercise could have obtained the same or similar results. Petitioner failed to demonstrate that a lesser degree of supervision would have allowed Claimant to make the necessary improvements noted. Petitioner failed to sustain its burden of proof as to CPT Code 97110 (therapeutic exercises) or CPT Code 97265 (joint mobilization) for the dates of service at issue.

III. FINDINGS OF FACT

1. ___ (Claimant) sustained a work-related compensable injury to his right wrist on ___, while working as an oilfield mechanic and tightening a bolt with a socket wrench.
2. Claimant’s right wrist was originally treated conservatively, but was ultimately diagnosed with a very severe chronic scapholunate gap of six millimeters, a scapholunate angle of 85 degrees, and carpal tunnel syndrome.
3. On February 4, 2003, David Peeler Green, M.D., performed a modified AO arthrodesis on Claimant’s right wrist with a proximal carpectomy. Dr. Green also performed a carpel tunnel release to Claimant’s right wrist.
4. Claimant was referred by Dr. Green to Excel Therapy Associates (Respondent) for physical therapy to his right hand and wrist following surgery.
5. Following surgery, Claimant underwent a course of physical therapy, including the disputed services.
6. Claimant increased his grip strength from 35.5 pounds to 68.7 pounds during the course of his physical therapy with Respondent, showing a marked improvement.
7. One-on-one therapeutic exercise was necessary for increasing Claimant’s grip strength. Claimant needed Respondent’s physical therapy services to help him progress past the pain that presented itself at the end-range of the active range of motion – – the point where Claimant needed the most work and was instinctively unable to continue through the pain.
8. The Commission issued an original notice of hearing on May 14, 2004.
9. A hearing was convened by Administrative Law Judge (ALJ) Deborah Ingraham on December 16, 2004, in the hearing rooms of the State Office of Administrative Hearings. The hearing adjourned the same day. The record closed on January 7, 2005. ALJ Bill Zukauckas reviewed the record and renders this decision and order.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers’ Compensation Act, Tex. Lab. 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 Tex. Lab. Code Ann. § 413.031(k) and Tex. Gov’t. Code Ann. ch. 2003.
3. Petitioner timely requested a hearing in this matter pursuant to 28 Tex. Admin. Code (TAC) §§ 102.7 and 148.3.
4. Notice of the hearing was proper and complied with the requirements of Tex. Gov’t. Code Ann. ch. 2001.
5. 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).
6. Petitioner had the burden of proof in this matter, which was the preponderance of evidence standard. 28 TAC §§ 148.21(h) and (i); 1 TAC § 155.41(b).
7. Based upon the Findings of Fact, Petitioner was unable to prove by a preponderance of the evidence that the physical therapy services in question were unnecessary.
8. Respondent is entitled to reimbursement for one-on-one therapeutic exercises billed from April 8, 2003, through June 12, 2003, for joint mobilization billed from May 8, 2003, to June 12, 2003, and for durable medical equipment billed on May 14, 2003 and June 12, 2003.

ORDER

THEREFORE,IT IS ORDERED that Petitioner Texas Mutual Insurance Company pay Respondent Excel Therapy Associates for (1) therapeutic exercises from April 8, 2003, through June 12, 2003; (2) joint mobilization from May 8, 2003, to June 12, 2003; and (3) durable medical equipment supplied on May 14, 2003, and June 12, 2003, plus any and all applicable interest.

Signed March 9, 2005.

BILL ZUKAUCKAS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS