DECISION AND ORDER

Pain & Recovery Clinic (Petitioner) appealed the decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) to the findings of its designee, an independent review organization (IRO). The decision upheld United States Fidelity & Guaranty Company’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 the disputed services were not medically necessary and should not be reimbursed.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

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

The hearing in this matter convened March 14, 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. Attorney William Maxwell represented Petitioner. Attorney Stephen Tipton represented Carrier. Commission Staff did not participate in the hearing.

II. DISCUSSION

A. Background Facts

In ___, Claimant sustained injuries to his back and right hip that were compensable under the Texas Workers’ Compensation Act (Act). At the time of the compensable injuries, Carrier was the workers’ compensation insurer for Claimant’s employer. The injury left Claimant with pain in his lower back and tailbone. Diagnostic tests (MRI, EMG, CT scan) showed Claimant had multiple levels of lumbar disc herniations, no radiculopathy, and possible subluxation of his coccyx vertebrae.

Prior to February 19, 2003, Claimant had received extensive conservative treatment, including a work hardening program and many weeks of physical therapy.

Carrier refused to reimburse Petitioner for one-to-one physical therapy (CPT 97110); extended office visits (CPT 99213), joint mobilization (CPT 97250), and myofascial release (97265) administered from February 19 through April 17, 2003, on the grounds the treatments were not medically necessary. Petitioner timely appealed the decision upholding Carrier’s denial.

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. Discussion

Petitioner

Petitioner presented documentary evidence including physical therapy progress notes, a functional capacity evaluation and work hardening information, a peer review report, a designated doctor report and the treating doctor’s dispute thereof, operative reports for an MRI and epidural steroid injections, and the North American Spine Society’s Phase III Clinical Guidelines. The bulk of Petitioner’s documents consisted of the physical rehabilitation progress notes and bills for dates before and during the period relevant to this dispute (February 19 through April 17, 2003).

The September 2002 MRI of the lumbar spine showed Claimant had disc degeneration with herniations at the L4-S1 levels and disc bulges at the L1-L4 levels. (Pet. Ex. 1, p. 160). A CT scan of the sacrum in November 2002 showed possible mild posterior subluxation of the C1 on the S5 vertebrae. (Pet. Ex. 1, p. 166). The EMG in March 2003 was normal with no evidence of neuropathy or radiculopathy in Claimant’s lower extremities. (Pet. Ex. 1, p. 175)

In January 2003, George Medley, M.D., performed a peer review on Claimant’s medical records. He found Claimant did not need chiropractic treatment or physical therapy and had already received excessive treatment. He recommended rest and a home exercise program. (Pet. Ex. 1, p. 48). In response to Dr. Medley’s report, Claimant’s treating doctor, Warren Dailey, M.D., asserted that Dr. Medley had not reviewed all the pertinent medical records. (Pet. Ex.1, p. 54).

Petitioner’s employee, Clay Meekins, evaluated Claimant for physical therapy in October 2002, but the record lacked a similar evaluation for the disputed period. (Pet. Ex. 1, p. 98). According to Petitioner’s physical rehabilitation notes for the disputed period, Claimant’s physical therapy consisted of exercises using a treadmill, a stationary bicycle, lower body weight machines, and a gymnic ball. (Pet. Ex. 1, pp. 118-151).

fter examining Claimant in January 2003, S. Ali Mohamed, M.D., recommended Claimant receive epidural steroid injections and Acontinue therapy as indicated. (Pet. Ex 1, p. 181). After the steroid injections, Dr. Mohamed recommended A. . . rehabilitation and chiropractic manipulation as indicated and A. . . rehabilitation along with injection therapy and chiropractic manipulation and joint mobilization if indicated by Dr. Dailey. (Pet. Ex. 1, pp. 189, 196, 203).

In March 2003, Dr. Meiyu Tammy Lai performed a designated doctor examination on Claimant. In that visit, Claimant described his pain as localized in his coccyx and lower lumbar region. He also reported Dr. Mohamed’s epidural steroid injections did not help. (Pet. Ex. 1, p. 215).

Petitioner pointed out that, to bill under CPT 99213, only two of the following criteria need be met: a detailed patient history, a detailed physical examination, and medical decision making of moderate complexity. (Medical Fee Guidelines, p. 20). According to Petitioner, the documentation in the record supported billing the office visits under CPT 99213.

Petitioner argued the disputed services were rendered to increase the efficacy of the epidural steroid injections. Citing to Dr. Mohamed’s reports, Petitioner argued the epidural steroid injections and, by implication, its adjunct services, were effective healthcare for Claimant.

Carrier

Carrier presented documentary evidence and the testimony of its expert, occupational medicine specialist Casey Cochran, M.D. Dr. Cochran testified that the disputed services were not medically necessary as Claimant had already received an excessive amount of treatment prior to

February 19, 2003. He based his opinion on nationally recognized guidelines, including those of the American College of Occupational and Environmental Medicine and the North American Spine Society, along with the Official Disability Guidelines.

Dr. Cochran stated the medical literature does not support Petitioner’s argument that the disputed services are a useful adjunct to epidural steroid injections. Even if Petitioner’s argument were valid, the epidural steroid injections were unnecessary because that procedure is used to treat radiculopathy, a condition that Claimant’s negative needle EMG established he did not have. Carrier argued that Claimant could not have benefitted from services in support of a procedure that itself was unnecessary. Dr. Cochran noted that Dr. Mohamed’s report that the injections were effective was contradicted by the designated doctor’s report that Claimant denied receiving any benefit from the epidural steroid injections.

According to Dr. Cochran, for Claimant’s type of injury, only a couple (6 to 12) treatments of myofascial release or joint mobilization would be useful and those sessions should occur during the first 2-4 weeks after injury. By February 2003, Claimant was six months post-injury and had already received 48 sessions of similar treatments. Finally, even if the disputed services had been necessary, Petitioner could not properly bill for both types of service in one session because the services overlap.

Dr. Cochran found that physical therapy sessions should not have been billed under CPT 97110 because Claimant did not need one-to-one therapy. He could have benefitted just as much from a home-based exercise program. The documented physical therapy exercises (treadmill, recumbent bicycle) could have been done in a home-based program. Because Claimant had already had 48 sessions of similar physical therapy, there was no reason to believe he needed further instruction to perform the exercises nor was there any reason for the sessions to last 12 hours.

Dr. Cochran also stated the office visit code billed (99213) was inappropriate. That code requires an extended physical exam and moderately complex medical decision-making, neither of which were documented. According to the MFG, extended office visits billed under CPT 99213 are to be performed infrequently , not every few days or every week as billed by Petitioner.

Analysis

Petitioner failed to meet its burden of proof to show that the disputed services were medically necessary healthcare for Claimant. According to the objective diagnostics, Claimant had a herniated disc in his lower back and may have had an irregularity in his coccyx area. The EMG established he did not have radiculopathy. Petitioner’s documentation failed to establish why the myofascial release, joint mobilization, or intensive level of physical therapy and office visits were necessary more than six months post-injury, when Claimant had already received many weeks of similar treatment without significant improvement.

Petitioner’s claim that the disputed services were medically necessary to improve the efficacy of the epidural steroid injections was not supported by the evidence. The EMG showed Claimant did not have radiculopathy, which is what the epidural steroid injections were supposed to treat. In his response to Dr. Medley’s peer review, Dr. Daily focused on the efficacy of the epidural steroid injections to show the physical therapy and related services were medically necessary. However, the objective evidence showed that the epidural steroid injections were both unnecessary and ineffective. Petitioner failed to show a medical rationale for the disputed services.

Even had the services been medically necessary, with regard to the physical therapy and office visits, Petitioner failed to show that it billed using the appropriate CPT codes. There was no documentation supporting the use of CPT 97110. Petitioner did not show why Claimant, who had already had extensive physical therapy, still needed intensive one-to-one physical therapy. As Dr. Cochran pointed out, the therapy consisted of exercises that could have been done independently

at home or in a gym. There was no evidence Claimant suffered from any cognitive or physical impairment that required the intensive monitoring of his physical therapy sessions that would justify billing under CPT 97110.

The documentation also failed to support billing under CPT 99213 on a weekly basis. The record lacked any office visits notes establishing those visits involved taking of extended medical

history, performing an extended physical examination, or making a medical decision of moderate complexity. The documentation also did not contain an explanation as to why either joint mobilization or myofascial release were appropriate treatments for Claimant.

Petitioner failed to meet its burden of proof and is not entitled to reimbursement the services rendered Claimant from February 19 through April 17, 2003.

III. FINDINGS OF FACT

1. In ___, Claimant sustained back and hip injuries compensable under the Texas Workers’ Compensation Act (Act).
2. At the time of the compensable injuries, Claimant’s employer had workers’ compensation insurance coverage with United States Fidelity & Guaranty Insurance Company (Carrier).
3. Prior to February 19, 2003, Claimant received 48 sessions of physical therapy without significant improvement.
4. Based on an EMG administered in March 2003, Claimant did not have radiculopathy.
5. From February to April 2003, Claimant was prescribed and given epidural steroid injections to treat radiculopathy.
6. From February 19 through April 17, 2003, Claimant received physical therapy billed under CPT code 97110, office visits billed under CPT code 99213, and joint mobilization and myofascial release from Pain & Recovery Clinic (Petitioner).
7. The services described in Finding of Fact No. 6 were administered to increase the efficacy of the epidural steroid injections.
8. The physical therapy, billed under CPT code 97110, did not require one-to-one monitoring by a therapist because Claimant already knew how to perform the exercises, he did not have cognitive or physical limitations impairing his ability to exercise, and the exercises could have been performed independently by Claimant at his home or in a gym.
9. Petitioner’s records did not document that Claimant required office visits that involved evaluations requiring extended medical histories or physical examinations or moderately complex medical decision making, so Petitioner could not properly bill under CPT code 99213.
10. Petitioner’s documents did not adequately document the need for the joint mobilization and myofascial release procedures administered to Claimant.
11. Petitioner failed to show that the services to Claimant from February 19 through April 17, 2005, were medically necessary.
12. Carrier denied Petitioner’s request for reimbursement for the services to Claimant.
13. After Carrier denied his request for reimbursement, Petitioner requested that the Texas Workers’ Compensation Commission review the denial. That review produced the Medical Review Division’s decision adopting the opinion of its Independent Review Organization (IRO), which concurred with Carrier’s denial.
14. Petitioner timely appealed the MRD decision.
15. Pursuant to notice of hearing sent by Commission Staff, all parties appeared or were represented at the hearing held March 14, 2005.

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(d) 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’s services (physical therapy billed under CPT code 97110; office visits billed under CPT code 99213; joint mobilization; and myofascial release) to Claimant were not medically necessary healthcare.
10. Petitioner is not entitled to reimbursement from Carrier for the services rendered to Claimant from February 19 through April 17, 2003.

ORDER

It is ORDERED that United States Fidelity & Guaranty Insurance Company does not owe reimbursement to Pain & Recovery Clinic for physical therapy, office visits, myofascial release and joint mobilization services provided to Claimant from February 19 through April 17, 2003.

Signed April 11, 2005.

ANN LANDEROS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS