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Title: 

453-04-5356-m5

Date: 

December 2, 2004

Type: 

Retrospective Medical Necessity

453-04-5356-m5

DECISION AND ORDER

I. SUMMARY

This case involves challenges by Texas Mutual Insurance Company (Carrier) from decisions of Independent Review Organizations (IROs) on behalf of Texas Workers’ Compensation Commission (Commission) in a dispute regarding the medical necessity for physical therapy/chiropractic treatment by Central Dallas Rehab (Provider). The disputed services,[1] including muscle testing, joint mobilization, manual traction, myofascial release, range of motion measurements, and therapeutic exercises, were performed between March 6, 2003, and July 30, 2003. Although all disputed services involve the same Claimant and the same compensable injury, there were originally two separate cases, which have since been consolidated.

The first IRO decision (Docket No. 453-04-5356.M5) found all services provided from March 6, 2003 through May 7, 2003, to be medically necessary and recommended reimbursement. The second IRO decision (Docket No. 453-04-5184.M5) found most of the services provided from May 14, 2003, through July 30, 2003, to be medically necessary and recommended reimbursement.

Carrier challenges these decisions on the basis that the treatments were not medically necessary, and that the duration of treatments exceeded the prescribed trial period for the Claimant’s

injury. The Administrative Law Judge (ALJ) finds the treatments were medically necessary and did not exceed the prescribed trial period for the Claimant’s injury, and orders reimbursement.

II. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

On September 27, 2004, ALJ Michael J. O’Malley convened the hearing at the William P. Clements Building, 300 West 15th Street, Austin, Texas. Carrier appeared through its attorney, R. Scott Placek. Provider appeared by telephone through its attorney, Scott C. Hilliard. After the evidence was presented, the parties filed post-hearing briefs, and the record closed on November 1, 2004.

III. BACKGROUND, EVIDENCE, AND DISCUSSION

Background

On ___, the Claimant was injured in a work-related accident when he was struck in the face by a large metal object. As a result, Claimant suffered a fractured nose and a herniated disc in the neck. On February 28, 2003, Christopher Plate, D.C., began to treat Claimant. Dr. Plate diagnosed him with cervical disc disorder with myelopathy, nerve root compression, cervical hyperflexion/hypertension, headaches, dizziness, and other unspecified injuries to the face and neck. Dr. Plate recommended and commenced a treatment plan, which required treatment four times per week for six weeks with active and passive rehabilitation. On April 1, 2003, Larry M. Kjeldgaard, D.O., examined Claimant and diagnosed him with cervical sprain/strain, thoracic sprain/strain, cervical spondylosis, concussion, and left arm radiculopathy. He recommended suspension of all physical therapy (such as therapeutic exercises) because of concern regarding Claimant’s head injury. He also recommended Dr. Plate refer Claimant to a neurologist for Claimant’s complaints of

memory loss and blurred vision. On April 11, 2003, Claimant was seen by Robert Lowry, M.D., of Texas Neurodiagnostic Associates, Inc., and cleared to resume physical therapy under Dr. Plate. Claimant resumed and continued treatment under Dr. Plate through July 30, 2003.

  1. Parties’ Positions and Evidence
  2. Carrier’s Position and Evidence

In its post-hearing brief, Carrier focuses its argument on the medical necessity of one-on-one therapy. Essentially, Carrier argues that Claimant’s injury was not severe enough to warrant one-on‑one therapy. David Alvarado, D.C., testified that one-on-one therapy is appropriate when instructing a patient on how to perform the exercises, when the safety of the patient is of concern, and when it is necessary to monitor the progress of the patient. For this case, Dr. Alvarado testified that other than a brief instructional period, one-on-one therapy was not medically necessary. Carrier further contends that Dr. Plate had no criteria when determining that one-on-one therapy was needed and that he had no notes indicating Claimant’s response to the exercises.

Provider’s Position and Evidence

Provider argues that Claimant suffered a severe, traumatic injury warranting one-on-one therapy. In fact, Provider states that the injury was so severe that physical therapy had to be halted so that Claimant’s head injury could be more closely analyzed. Provider also notes that many of the doctors that treated Claimant recognized the severity of his injury. In addition, Provider points out that two IRO decisions found that reimbursement for a majority of the services was warranted.

ALJ’s Analysis

For the remaining disputed services (physical therapy), the ALJ finds that the services were medically necessary and should be reimbursed. The ALJ notes that he considers Claimant’s injury to be significant, justifying physical therapy, and the physical therapy did not exceed the prescribed trial period. As a result of his injury, Claimant suffered a fractured nose and herniated disc in the neck. In addition, Claimant suffered lightheadedness, loss of memory, severe headaches, bruising around the nose and eye, numbness around his head and neck, blurred vision, back pain down to the waist, muscle spasms, decreased cervical range of motion, and left arm radiculopathy. Dr. Kjeldgaard diagnosed Claimant with cervical sprain/strain, thoracic sprain/strain, cervical spondylosis, concussion, and left arm radiculopathy and recommended that physical therapy be halted until Claimant’s neurological condition could be fully evaluated. An ENG suggested pathology in the left vestibular system, and a cervical MRI showed a diffuse disc bulge at C6-7 with facet arthropathy resulting in moderate right neutral foraminal stenosis. Although some of the neurological exams resulted in normal findings, Claimant’s symptoms clearly justified physical therapy. Claimant was eventually cleared to resume his physical therapy after his neurological condition had been evaluated.

The ALJ also finds that Carrier did not fully appreciate Claimant’s injury or its severity because it denied reimbursement for physical therapy as early as March 6, 2003. Provider began physical therapy on February 28, 2003. Given the severity of the injury and Claimant’s symptoms, it was unreasonable for Carrier to deny reimbursement as early as March 6, 2003. The severity of his injury was confirmed on April 22, 2003, when Pedro Nosnik, M.D., diagnosed Claimant with post-concussion syndrome, cervical and lumbar strain, and post-traumatic lightheadedness. Dr. Plate and Dr. Kjeldgaard also considered Claimant’s injury to be significant.

With regard to the issue of one-on-one therapy, Carrier had the burden to prove that one-on-one therapy was not medically necessary for Claimant.[2] Claimant failed to meet this burden. Carrier generally argues that one-on-one therapy is justified if the patient is uncooperative, lacks knowledge on how to perform a particular activity, or presents a safety concern. Although Carrier indicates certain guidelines when one-on-one therapy is medically necessary, these guidelines may not be the only circumstances when one-on-one therapy is warranted. The Medical Fee Guideline defines CPT Code 97110 (one-on-one therapy) as “therapeutic exercises to develop strength and endurance, range of motion and flexibility.” Dr Plate testified that given Claimant’s injuries, one-on-one therapy was the best option for this Claimant. In addition, Claimant had been diagnosed with post-concussion syndrome with vestibular imbalances and therapy had to be halted to evaluate Claimant’s neurological condition. Dr. Plate stopped the physical therapy until it had been determined that Claimant could safely participate in physical therapy. Furthermore, given that Claimant suffered from persistent dizziness, blurred vision, lightheadedness, and memory loss, one-on-one therapy was medically necessary for Claimant’s safety.[3]

IV. FINDINGS OF FACT

  1. On ___, (Claimant) suffered a work-related injury when he was struck in the face by a large metal object.
  2. At the time of the injury, Claimant’s employer had workers’ compensation insurance through Texas Mutual Insurance Company (Carrier).
  3. On February 28, 2003, Christopher Plate, D.C., began to treat Claimant and diagnosed him cervical disc disorder with myelopathy, nerve root compression, cervical hyperflexion/hypertension, headaches, dizziness, and unspecified injuries to the head and neck.
  4. Dr. Plate treated Claimant with active and passive rehabilitation, including muscle testing, joint mobilization, manual traction, myofascial release, range of motion measurements, and therapeutic exercises. The initial rehabilitation required treatment four times per week for six weeks.
  5. On April 1, 2003, Larry M. Kjeldgaard, D.O., examined Claimant and diagnosed him with cervical sprain/strain, thoracic sprain/strain, cervical spondylosis, concussion, and left arm
  6. radiculopathy.
  7. Dr. Kjeldgaard recommended that physical therapy be halted until neurological tests could be performed to determine the extent of Claimant’s head injury.
  8. Dr. Kjeldgaard also recommended that Claimant see a neurologist to treat Claimant’s complaints of memory loss and blurred vision.
  9. On April 11, 2003, Robert Lowry, M.D., of Texas Neurodiagnostic Associates, Inc. evaluated Claimant, and Claimant was cleared to resume physical therapy.
  10. The severity of Claimant’s injury was confirmed by Pedro Nosnik, M.D., on April 22, 2003, when he diagnosed Claimant with post-concussion syndrome, cervical and lumbar strain, and post-traumatic lightheadedness.
  11. An ENG suggested pathology in the left vestibular system, and a cervical MRI showed a diffuse disc bulge at C6-7 with facet arthropathy resulting in moderate right neutral foraminal stenosis.
  12. Claimant continued physical therapy with Dr. Plate until July 30, 2003.
  13. Carrier did not fully appreciate Claimant’s injury or its severity because it denied reimbursement for physical therapy as early as March 6, 2003.
  14. Given that Claimant suffered persistent dizziness, lightheadedness, blurred vision, and memory loss, it was medically necessary for Dr. Plate to conduct one-on-one therapy.
  15. On August 19, 2003, and November 24, 2003, two separate Independent Review Organizations (IROs) granted Provider reimbursement for the majority of the physical therapy, finding that the physical therapy was medically necessary.
  16. Carrier challenged both of the IRO decisions.
  17. The Commission sent notice of the hearing to the parties on May 4 and May 6, 2004 (the hearings were consolidated on June 2, 2004). The hearing notice informed the parties of the matter to be determined, the right to appear and be represented, the time and place of the hearing, and the statutes and rules involved.
  18. The hearing was held on September 27, 2004, and the record closed on November 1, 2004. Carrier appeared through its attorney, R. Scott Placek. Provider appeared through its attorney, Scott C. Hilliard.

V. CONCLUSIONS OF LAW

  1. 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. §§ 402.073 and 413.031(k) and Tex. Gov’t Code Ann. ch. 2003.
  2. Proper and timely notice of the hearing was provided to the parties in accordance with Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
  3. Pursuant to 28 Tex. Admin. Code § 148.21(h), Carrier had the burden of proving by a preponderance of the evidence that the physical therapy performed from March 6, 2003, through July 30, 2003, was not medically necessary.
  4. Carrier failed to prove by preponderance that the physical therapy performed from March 6, 2003, through July 30, 2003, was not medically necessary.
  5. Based on the Findings of Fact and Conclusions of Law, the physical therapy provided to Claimant from March 6, 2003, through July 30, 2003, was medically necessary; therefore, Provider should be reimbursed.

ORDER

IT IS HEREBY ORDERED that Texas Mutual Insurance Company shall reimburse Central Dallas Rehab for physical therapy performed from March 6, 2003, through July 30, 2003.

Signed December 2, 2004.

MICHAEL J. O’MALLEY
Administrative Law Judge
State Office of Administrative Hearing

  1. Attached is a list of the disputed services.↑
  2. In this case, the burden was not on Provider to show why one-on-one therapy was medically necessary.↑
  3. The ALJ agrees that one-on-one therapy may not be medically necessary in all cases but, given Claimant’s head injury and associated dizziness, it was medically necessary in this case for Claimant’s safety.↑