DECISION AND ORDER

Brian Randall, D.C., (Petitioner) appealed the decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) to adopt the decision of its designee, an independent review organization (IRO), in MR Docket No. M5-04-1230-01. The decision upheld American Casualty Company of Reading, PA.’s (Carrier) denial of reimbursement for services provided a workers’ compensation claimant (Claimant) on the basis that the services were not medically necessary healthcare. This decision finds that Petitioner should be reimbursed only for the office visits provided Claimant.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

There were no contested issues of jurisdiction, notice or venue. Therefore, those issues are addressed in the findings of fact and conclusions of law without further discussion here.

The hearing in this matter convened February 9, 2005, at the State Office of Administrative Hearings, 300 W. 15^th Street, Austin, Texas, with Administrative Law Judge (ALJ) Ann Landeros presiding. The record also closed that date. Petitioner represented himself. Attorney Erin Shanley represented Carrier. Commission Staff did not participate in the hearing.

II. DISCUSSION

A. Background Facts

In ___, Claimant sustained an injury to his neck and shoulder that were compensable under the Texas Workers’ Compensation Act (Act), TEX. LABOR CODE ANN. ch. 401 et seq. At the time of the compensable injury, Carrier was the workers’ compensation insurer for Claimant’s employer. The injury left Claimant with pain in his neck and shoulder areas.

In January 2003, Claimant designated Petitioner as his treating doctor. Marjan Malekzadeh, a chiropractor in Petitioner’s clinic, evaluated Claimant and recommended cervical facet injections and six sessions of physical therapy, which were followed by thoracic block injections and eight sessions of physical therapy. Interspersed with the injections, active physical therapy, and passive modalities were office visits to evaluate Claimant’s progress. The services in dispute were provided from January 20 through May 27, 2003.

Carrier denied reimbursement for Petitioner’s services, claiming the services were not medically necessary, as Claimant had already had two years of the same type of treatments without benefit. Petitioner timely appealed Carrier’s denial to the IRO and subsequently filed a timely appeal of the decision issued by the MRD.

B. Legal Standards

Petitioner 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 Act, 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). Health care includes all reasonable and necessary medical services, including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. § 401.011(31).

C. Petitioner’s Evidence

Petitioner testified that he is entitled to reimbursement for Claimant’s initial evaluation and subsequent office visits because an initial evaluation and periodic re-evaluations are necessary for all patients to determine the appropriate treatment and progress in treatment. Dr. Malekzadeh diagnosed Claimant with cervical facet syndrome and moderate myofacsitis and recommended injections and post-injection physical therapy. Dr. Malekzadeh’s recommended treatments, according to Petitioner, had not previously been administered to Claimant. (Pet. Ex. 1, p. 60). Petitioner stated the physical therapy was prescribed to enhance the effects of the injections by strengthening the supporting muscles.

Petitioner pointed out that the Labor Code authorizes treatment to relieve or cure the naturally occurring symptoms of the compensable injury. As evidence that the injections and physical therapy Claimant received were effective in relieving his pain, Petitioner cited to the office note in which Claimant reported his pain level had decreased from 6 out of 10 in January 2003 to 4 out of 10 on March 19, 2003. The March physical examination showed Claimant’s physical strength had increased to normal levels. (Pet. Ex. 1, p. 66). The May 11, 2003, office note reported Claimant’s muscle strength was normal, his cervical pain was resolved, his pain remained at the 3-4 out of 10 level, and he could work without exacerbating his pain. (Pet. Ex. 1, p. 73). By the last office visit, on May 23, 2003, Claimant rated his pain at 2, almost resolved. (Pet. Ex. 1, p. 79).

On cross, Petitioner admitted he had not seen or administered treatment to Claimant, but claimed he was certain that the physical therapy was done on a “one-to-one” basis because it was billed under CPT 97110, the one-to-one code, and because that is how he requires physical therapy be performed in his clinic. He opined that Claimant required supervised one-to-one physical therapy due to his long history of unresolved pain. The one-to-one therapy is normally needed to ensure safety, correct exercise technique, and avoid injury. Claimant did not have any cognitive deficiencies as far as Petitioner knew.

D. Respondent’s Evidence

Respondent introduced various medical records, including four peer reviews from 2003 that found treatment was no longer medically necessary after Claimant reached maximum medical improvement (MMI) in July 2002. (Res. Ex. 1, p. 1, 179, 245, 248, 318). One peer reviewer (Dr. Dorothy Leong, M.D.) found the symptoms Petitioner treated in Claimant were not related to the compensable injury, but were “propagated secondary to secondary gain issues.” (Res. Ex. 1, p. 321).

E. Analysis

Given the nature of his injury and the expected course of recovery, Claimant underwent a considerable amount of treatment during the period between his injury (variously described as occurring in ___ or January 2002) and January 2003, when he chose Petitioner as his treating physician. While the peer reviewers universally condemned the amount of treatment received as excessive, their opinions seemed to be tied in part to the July 2002 MMI finding, which they apparently considered a cut-off date for treatment regardless of Claimant’s symptoms. Because MMI relates to wage, not medical benefits, to the extent the peer reviewers’ opinions that no further treatment was necessary were based on the MMI finding, their opinions have little weight in this proceeding.

Additionally, the peer reviewers provided specific criticism of treatment given before Petitioner became Claimant’s treating physician. While much of this criticism may be valid (c.f. the work hardening program), it is not axiomatic that unnecessary treatment prescribed by doctors other than Petitioner rendered Petitioner’s treatments unnecessary.

Despite Dr. Leong’s accusation of secondary gain being the cause of Claimant’s persistent complaints, there is no objective indication in the medical records that Claimant was either not experiencing pain or was exaggerating his symptoms. Claimant appears to have worked off and on during the two years following his injury. None of the doctors who examined Claimant, including the designated doctor who found him at MMI, performed Waddell’s tests on Claimant nor did the physicians otherwise diagnose symptom exaggeration. While Claimant was prescribed various analgesics, the record does not contain evidence that the kind or dosage of the medications were inappropriate or that Claimant in any way abused these drugs. Thus, the three main indicators of secondary gain issues (positive Waddell’s signs, work avoidance, pain-medication abuse) are lacking in this case. The objective evidence did not support Dr. Leong’s opinion about secondary gain.

With regard to Respondent’s claim that Petitioner’s services were duplicative of prior, unsuccessful treatments, that is documented only with regard to the cervical facet injections. In November 2002, Dr. Jerry Keepers, M.D., administered cervical facet injections and post-injection physical therapy with Dr. James Wildermuth, D.C. (Res. Ex. 1, p. 213). Although the November 2002 injections and physical therapy did not significantly reduce Claimant’s pain, Dr. Malekzadeh repeated that same type of treatment in 2003 with better results. While as a general proposition, one would not advocate repeating previously ineffective treatment, when the repeated treatment works, reimbursement should not be denied simply because the prior treatment was unsuccessful. Although repetitious, Dr. Malekzadeh’s treatments, at least as documented in this record, proved highly effective.

After the cervical facet and thoracic block injections and physical therapy in 2003 by Dr. Andrew McKay, M.D., Claimant reported the first significant reduction in his pain (from 6 to 2 out of 10, with resolution of the cervical pain and the ability to work without pain). It is not clear why the cervical facet injections and physical therapy in 2002 by Dr. Keepers and Dr. Wildermuth did not provide pain relief while a similar course of treatment by Drs. Malekzadeh and McKay did. However, for purposes of this appeal, Petitioner showed by a preponderance of the evidence the necessary elements for reimbursement: Claimant had pain related to his compensable injury in January 2003, and the treatments administered (cervical facet and thoracic block injections and post-injection physical therapy) were intended to relieve Claimant’s pain. The fact that Petitioner’s services successfully relieved Claimant’s pain was additional proof that the services were medically necessary.

Petitioner’s claim that the physical therapy was appropriately billed as therapy administered “one-to-one” was not substantiated. As he was not present when the therapy was administered, Petitioner’s assumption that physical therapy was properly coded on the bill was not persuasive. He admitted that Claimant had no cognitive disability that would require “one-to-one” instruction. The exercises billed (bicycling, using weights, etc.) were not the sort that typically require intensive and repeated instruction. Because he had already undergone post-injection physical therapy with Dr. Wildermuth and because he had no cognitive impairment, Claimant should have been able to perform the exercises Dr. Malekzadeh prescribed in a less intensive setting.

Other than a listing of the exercises performed and the time (or repetitions) involved, there was no documentation to support Petitioner’s claim that the physical therapy was performed with the therapist working alone with Claimant for the full session, nor was there any documentation that such intensive level of instruction was justified. Petitioner is not entitled to recover for the physical therapy administered under CPT code 97110, because that level of therapy was not medically necessary.

In addition to CPT code 97110, Petitioner billed for services to Claimant under CPT codes 99204, 99213MP, 97250, 97035, 97010, 97014, 99212, and 99080B. With regard to the other services billed, Petitioner established only that the office visits billed under CPT code 99204, 99212, and 99213MP were medically necessary to diagnose, treat, and evaluate Claimant’s progress. The medical records speak to Claimant’s needing and benefitting from active modalities to strengthen his cervical and thoracic areas, but the records do not establish the purpose or efficacy of the passive modalities (myofascial release, ultrasound therapy, electric stimulation) or why a special report was required.

Petitioner is entitled to reimbursement only for services to Claimant rendered under CPT codes 99204, 99212, and 99213.

III. FINDINGS OF FACT

1. In ___, Claimant sustained a back injury compensable under the Texas Workers’ Compensation Act (Act), TEX. LABOR CODE ANN, ch. 401 et seq.
2. At the time of the compensable injury, Claimant’s employer had workers’ compensation insurance coverage with American Casualty Company of Reading, PA. (Carrier).
3. As a result of the compensable injury, Claimant suffered neck and shoulder pain.
4. Despite considerable treatment, Claimant continued to suffer from neck and shoulder pain throughout 2002 and into 2003.
5. In the fall of 2002, Claimant underwent cervical facet injections and post-injection physical therapy with Drs. Jerry Keepers (M.D.) and James Wildermuth (D.C.), but those treatments did not relieve his neck and shoulder pain.
6. In January 2003, Brian Randall, D.C. (Petitioner), became Claimant’s treating physician.
7. In the winter and spring of 2003, Claimant underwent cervical facet injections and thoracic block injections administered by Andrew McKay, M.D.
8. In the winter and spring of 2003, Claimant underwent post-injection physical therapy with Dr. Marjan Malekzadeh, D.C., who worked in Petitioner’s clinic.
9. The purpose of Dr. Malekzadeh’s post-injection physical therapy was to strengthen Claimant’s muscles to enhance the effects of the injections.
10. By May 2003, the injections and physical therapy had almost eradicated Claimant’s pain.
11. Dr. Malekzadeh billed the physical therapy under the CPT code 97110, which is for physical therapy provided on a “one-to-one” basis .
12. Claimant’s physical therapy consisted of exercises such as bicycling that typically do not require instruction or intensive one-to-one monitoring.
13. Claimant did not suffer from a cognitive impairment that would justify using CPT code 97110.
14. At the time he began physical therapy with Dr. Malekzadeh, Claimant was already familiar with the physical therapy exercises, as he had received the same type of therapy from Dr. Wildermuth.
15. Claimant did not need one-to-one physical therapy from Dr. Malekzadeh.
16. Claimant benefitted from the active modalities used in his physical therapy.
17. Claimant was not shown to have benefitted from the passive modalities (ultrasound, electric stimulation, myofascial release) used by Dr. Malekzadeh.
18. Petitioner billed for office visits from January 20 through May 27, 2003, that were medically necessary to diagnose, treat, and evaluate Claimant.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act (Act), TEX. LABOR 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 § 413.031 of the Act and TEX. GOV’T CODE ANN. ch. 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV’T CODE ANN. ch. 2001 and the Commission’s rules, 28 TEX. ADMIN. CODE (TAC) §§ 133.305 and 133.308.
4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§ 2001.051 and 2001.052.
5. Petitioner had the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i); 1 TAC § 155.41.
6. The IRO had authority to review the parties’ positions and issue a decision pursuant to the Commission’s rule at 28 TAC §§ 133.305 and 133.308.
7. Pursuant to the Act, 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).
8. Health care includes all reasonable and necessary medical services, including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. § 401.011(31).
9. Petitioner is entitled to be reimbursed for Claimant’s office visits occurring from January 20 through May 27, 2003.
10. Petitioner is not entitled to reimbursement for physical therapy provided Claimant and billed under CPT code 97110 because, while the physical therapy was medically necessary, there was no justification for one-to-one physical therapy.
11. Petitioner is not entitled to reimbursement for passive modalities provided Claimant.

ORDER

It is ORDERED that American Casualty Company of Reading, Pa. reimburse Brian Randall, D.C., only for office visits by Claimant from January 20 through May 23, 2003.

Signed February 24, 2005.

ANN LANDEROS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS