DECISION AND ORDER

I. DISCUSSION

Texas Mutual Insurance Company (Petitioner) requested a hearing to contest the Findings and Decision of the Texas Workers’ Compensation Commission (Commission) allowing Central Dallas Rehab, (Respondent or Provider) reimbursement for muscle testing,^[1] range of motion testing,^[2] and joint mobilization,^[3] (Disputed Services).^[4]

On March 31, 2004, the Commission issued an Order that contained two decisions. The first decision was a MDR decision concerning fee disputes. The second decision was an IRO decision where the IRO decided that none of Provider’s services were medically necessary. Neither party contested the decision of the independent review organization (IRO) regarding medical necessity; thus, this decision does not adjudicate medical necessity. Petitioner did request a hearing concerning the decision of the Commission concerning the fee dispute.

The ALJ concludes that Respondent should not be reimbursed for the joint mobilization services conducted from January 6, 2003, through January 31, 2003, but should be reimbursed for the muscle testing conducted on December 18, 2002, and the range of motion testing conducted on January 8, 2003.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY.

The hearing convened on October 5, 2004, before Administrative Law Judge (ALJ) Stephen J. Pacey. R. Scott Placek represented Petitioner. Scott R. Hilliard represented Respondent. There were no contested issues of notice or jurisdiction. Richard Ball testified for Petitioner.^[5] The hearing adjourned the same day. The parties were allowed additional time to file documents, and the record closed on October 19, 2004. Petitioner filed a Motion for Summary Disposition, which was argued at the hearing and taken under advisement. The issues were the same issues discussed in this decision. The ALJ finds that issues of law and fact remained unresolved; therefore; the Motion is DENIED.

II. PARTIES POSITIONS.^[6]

A. Petitioner

Respondent initiated the dispute process and submitted the services at issue to the IRO for review on the basis of medical necessity. Because the IRO determined the services were not medically necessary and Respondent did not appeal, Petitioner contends that Respondent cannot recover for these services.According to Petitioner, a negative finding on either medical review or on the fee dispute relieves Petitioner from any obligation to pay.

Provider filed its table of disputed services (TODS) with the Commission and the IRO. In the TODS Provider marked the disputed services as being denied as unnecessary treatment, even though Petitioner had not asserted unnecessary treatment before the medical dispute resolution was filed. Petitioner argued that when Provider designated the services as unnecessary treatment, it waived its right to assert that the Petitioner denied reimbursement only for reasons other than medical necessity.

Although the Commission’s decision stated that no EOBs were submitted for joint mobilization and range of motion, Petitioner provided EOB’s at the hearing. Mr. Ball testified that EOBs stamped “-request for reconsideration” demonstrated Petitioner had received the original EOB. Mr. Ball also testified that most of the EOBs indicated that some payment was made, and if a payment was made, the EOB would have been attached to the check.

The EOBs indicated that payment for the joint mobilization was denied on the basis of unnecessary medical treatment. The muscle testing and range of motion testing were denied for reasons other than unnecessary medical treatment. Petitioner argued that the MDR decision should be reversed, and that Petitioner be relieved from reimbursing Respondent for services that were not medically necessary.

B. Respondent

Respondent contended that because Petitioner never submitted EOBs it may not raise any reasons for denial. Respondent also argued that the MDR decision addressed services not considered by the IRO. Respondent pointed out that page 2 of the MRD’s decision said:

Based on review of the disputed issues within the request, the Medical Review Division has determined that medical necessity was not the only issue to be resolved. This dispute also contained services that were not addressed by the IRO and will be reviewed by the Medical Review Division.

Respondent argued that joint mobilization, muscle testing and range of motion were not properly before the IRO because these services were denied for reasons other that unnecessary treatment. According to Respondent, there was either no EOB or an EOB that denied reimbursement for reasons other than medical necessity. Respondent asserted that in either case it was impermissible for the IRO to decide medical necessity for those particular services. Further, Petitioner may not raise medical necessity at SOAH. Overall, Respondent contented that the services contained in the fee dispute were not properly before the IRO, and the order granting reimbursement should be affirmed.

C. Analysis

The EOBs show that Petitioner did not deny Respondent’s reimbursement for range of motion and muscle testing based on medical necessity. The EOB’s also show that Petitioner denied Respondent reimbursement for the joint mobilizations on the bases of medically necessity. The ALJ disagrees with Petitioner’s waiver argument. Unless the EOB denies payment on basis of unnecessary medical treatment, the IRO does not have the authority to make a decision on medically necessity with respect to that procedure on that date of service.^[7] The IRO may only address medical necessity when the Carrier properly raises the issue of medical necessity for a procedure on a specific date of service.

Petitioner denied each joint mobilization conducted between January 6, 2003, and January 31, 2003, on the basis of unnecessary medical treatment (coded U). The IRO decided that the treatments were not medically necessary. Respondent did not contest the IRO decision. Petitioner denied reimbursement for the January 8, 2003, range of motion testing only on the basis that the value of the procedure was included in the value of another procedure. The MRD decided this issue because the IRO did not have authority to decide the issue. Petitioner did not present evidence challenging the MRD decision.

Petitioner had the burden of proof in this proceeding. Petitioner sustained its burden only as to its denial of the $387.00 reimbursement for joint mobilizations treatments. Petitioner did not sustain its burden as to its denial of the $36.00 reimbursement for range of motion testing. Petitioner withdrew its denial of muscle testing reimbursement and agreed to reimburse Respondent $43.00 for that service.

III. FINDINGS OF FACT

1. On August 12, 2003, an independent review organization (IRO), Envoy Medical Systems, LLC, determined that none of the treatments administered by Central Dallas Rehab (Respondent) to ___ (Claimant) were medically necessary.
2. Neither Respondent nor Texas Mutual Insurance Company (Petitioner) contested this decision.
3. On March 31, 2004, the Texas Workers’ Compensation Commission (Commission)
4. determined that in a fee dispute Petitioner should reimburse Respondent for one unit of muscle testing, nine units of joint mobilization, and one unit of range of motion testing.
5. On April 16, 2004, Petitioner contested the Commission decision.
6. Petitioner’s Explanation of Benefits (EOB) denied reimbursement to Respondent for muscle testing (CPT Code 97750MT) on the basis that it was global to other services billed.
7. At the hearing, Petitioner withdrew its denial of muscle testing reimbursement and agreed to reimburse Respondent $43.00 for muscle testing.
8. Petitioner’s EOBs denied reimbursement to Respondent for joint mobilization (CPT Code 97265) on the basis that the treatments were not medically necessary.
9. The IRO held that joint mobilization was not medically necessary.
10. Petitioner’s EOB denied reimbursement to Respondent for range of motion testing (CPT Code 97265) on the basis that the procedure was included in the value of another procedure.
11. The Commission issued a notice of hearing on May 24, 2004.
12. A hearing was convened by Administrative Law Judge Stephen J. Pacey on October 5, 2004, in the hearing rooms of the State Office of Administrative Hearings. The hearing adjourned that same day, and the record closed on October 19, 2004.
13. Respondent did not appeal the MDR decision.
14. There was not evidence presented with respect to the range of motion testing.

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. At the IRO and at the Commission, Petitioner was prohibited from raising a reason for denial other the denial contained on Petitioner’s EOB. (28 TAC § 133.307.(j)(2)).
6. The IRO decision concerning lack of medical necessity for the services only applied to joint mobilization because it was the only service for which Petitioner in its EOB denied reimbursement on the basis of medical necessity.
7. Petitioner denied muscle testing and range of motion testing for reasons other than medical necessity, consequently, the IRO decision could not consider these services and Petitioner must reimburse Respondent for these services
8. 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).
9. Based upon the Findings of Fact and Conclusions of Law, Petitioner proved by a preponderance of the evidence that Petitioner’s denial of reimbursement to Respondent for joint mobilization was proper because the services were not medically necessary.
10. Based upon the Findings of Fact and Conclusions of Law, Petitioner did not prove by a preponderance of the evidence that its denial of reimbursement to Respondent for range of motion testing was proper.
11. Because Petitioner withdrew its contest of the Commission’s decision regarding muscle testing and agreed to reimburse Respondent for that service that issue is no longer in dispute.

ORDER

THEREFOREIT IS ORDERED that Texas Mutual Insurance Company pay Central Dallas Rehab $79.00, for muscle testing and range of motion testing.

IT IS ORDERED FURTHER that Texas Mutual Insurance Company is not required to pay for joint mobilization procedures.

Signed December 20, 2004.

STEPHEN J. PACEY
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. CPT Code 97750-MT.↑
2. CPT Code 95851.↑
3. CPT Code 97265.↑
4. The Medical Review Division granted reimbursement for muscle testing conducted on December 18, 2002, on the basis that the service billed was not global to any other service; granted reimbursement for joint mobilization conducted January 6, 2003, through January 31,2003, on the basis that EOBs were not submitted; and granted reimbursement for range of motion testing conducted on January 8, 2003, on the basis that EOBs were not submitted. The Independent Review Organization (IRO) determined that the services noted above, as well as all other services, were not medically necessary.↑
5. Richard Ball is a Senior Dispute Analyst for Petitioner.↑
6. Medical necessity will not be discussed because neither party contested the IRO decision.↑
7. 28 Tex. Admin. Code § 133.307(j)(2).↑