DECISION AND ORDER

I. DISCUSSION

Texas Mutual Insurance Company (TMIC), Petitioner, requested a hearing to contest the Findings and Decision of the Texas Workers’ Compensation Commission (Commission) acting through Ziroc, an Independent Review Organization (IRO).^[1] By letter issued on April 12, 2004, the IRO disagreed with TMIC’s prior adverse decision to deny reimbursement to Jack Barnett, D.C., Respondent. The IRO’s decision was based on the medical necessity for services rendered during fifteen office visits between June 11, 2003, and July 30, 2003, for ___ (Claimant). On May 17, 2004, TMIC timely requested a hearing to contest the Commission’s decision. By letter dated June 21, 2004, the Commission issued a timely and adequate notice of hearing.

A hearing was convened in this matter on December 2, 2004. The Administrative Law Judge (ALJ) was Paul Keeper. Ryan Willette represented TMIC, and Larry Trimble represented Respondent. The record was closed at the end of the hearing on that same day.

The ALJ finds that the record supports the reimbursement request of Respondent, except as to $633.00 in office visits.

The Claimant sustained a work-related injury to her left ankle on ___. She was carrying a six-foot long 4″x4″ that weighed 25 pounds, when her foot slipped, inverting her ankle. She was examined at a hospital, and an x-ray revealed no fracture of her ankle. Respondent treated the Claimant from April 23, 2003 through July 30, 2003. His working diagnosis was a sprain with soft tissue swelling. Later, an MRI revealed a stress fracture of the distal tibial metaphysis and sprain.

Respondent referred the Claimant to a podiatrist, Anthony LaMarra, D.P.M. On May 20, 2003, Dr. LaMarra recommended that Respondent continue the Claimant’s physical therapy, although range of motion exercises and ultrasound should be deferred “at the present time” in light of the discovery of the fracture. On June 19, 2003, Dr. LaMarra reiterated that the Claimant continue to see Respondent for physical therapy because the care improved the Claimant’s condition. However, he also recommended that the physical therapy continue for an additional six weeks with increasing range of motion and strength exercises. Finally, he noted that: (1) the patient had been improving with physical therapy with minor relapses “when the physical therapy stops” and (2) “the improvement with the physical therapy is conclusive enough that this patient needs to continue to go forth with more physical therapy to help increase her function, strength, stability and lower her overall disability.”

On June 25, 2003, the Claimant was examined by James Knott, M.D., a designated doctor, who concluded that the Claimant was not at maximum medical improvement. Dr. Knott also recommended that Respondent’s treatment of Claimant should continue because “the patient indicated [that] massage, physical therapy, aqua therapy, cold packs, rest, and medication made her pain better.” Dr. Knott did not change his opinion of the Claimant’s status until after Respondent had concluded his treatment of the patient.

The types of treatment that Respondent provided to the Claimant (and that form the basis for the reimbursement dispute) were rendered during the seven-week period of June 11, 2003, through July 30, 2003: therapeutic exercises (97110), joint mobilization (97265), myofascial release (97250), ultrasound therapy (97035), hot and cold packs (97010), aquatic therapy and exercises (97113), and office visits (99213, 99215). To all of Respondent’s requests for reimbursement for services except one office visit, TMIC denied the claims based on code “U,” “unnecessary treatment without peer review.” The denial of reimbursement for the single office visit was based on code “N,” “not appropriately documented.” The amount in dispute is $2,782.00.^[2]

David Alvarado, D.C., testified on behalf of TMIC by deposition. Dr. Alvarado posited that Dr. LaMarra’s recommendation against the Claimant’s engaging in range of motion exercises also included any therapeutic exercises after May 20, 2003, the date on which Dr. LaMarra examined the Claimant. A period of immobility would have been appropriate for the Claimant since she was diagnosed as having a fractured ankle. Dr. Alvarado asserted that Respondent’s continued treatment of the Claimant with joint mobilization exercises was unnecessary and counter to the Claimant’s needs.

Dr. Alvarado testified about myofascial release, a manual medicine technique. The treatment is medically indicated in the first four weeks of care, depending on the extent of the injury. By the date on which TMIC began denying reimbursement, June 11, 2003, the Claimant was seven weeks post-injury.

Dr. Alvarado testified that the use of cold packs are most beneficial in the first few weeks following an injury. However, he noted that so long as there is an inflammatory response, cryotherapy (cold packs) may be appropriate.

Dr. Alvarado testified that the purpose of aquatic therapy is to move a patient from a limited weight-bearing position until she is able to support herself in a full-gravity environment. The aquatic therapy did not begin until June 24, 2003, two months after she had been performing non-aquatic exercises. He pointed out that nothing in the Claimant’s medical records reflect her difficulty in performing land-based exercises. In addition, the Claimant’s medical records reflect that she was simultaneously receiving from Respondent both aquatic and land-based exercises.

Dr. Alvarado testified that one of the problems with Respondent’s medical records is that the documentation does not reflect the specific types of exercise that the Claimant received, the planes of motion in which she had physical deficit, or the long- or short-term goals of her therapy.

Dr. Alvarado testified that the office visits for which Respondent billed TMIC were necessary no more often than every two weeks for a four- to six-week period.

Finally, TMIC pointed out that the Claimant’s self-reported levels of pain changed were essentially unchanged during the course of the disputed period of treatment; her pain level started at 8 out of 10 (with ten points being the worst pain) and ended at about the same level. Despite the presence of these self-reported levels of her overall pain, the same documents also reflect that the Claimant asserted that her ability to perform her daily tasks were relatively unhindered.

TMIC’s burden was to show by a preponderance of the evidence that the services in dispute rendered were not medically necessary. With the exception of the request by Dr. LaMarra that the range of motion exercises and ultrasound therapy be halted for a time, the record generally supports Respondent’s claim for reimbursement. With respect to Dr. LaMarra’s request, Dr. Alvarado acknowledged that Respondent’s records do not reflect whether the exercises complied with Dr. LaMarra’s instructions. Dr. Alvarado’s suggestion that Dr. LaMarra’s instructions included all therapeutic exercises does not comport with Dr. LaMarra’s later written observations.

Dr. Alvarado’s testimony that myofascial release may not have been medically necessary after the first four weeks of care was moderated by his acknowledgment that the care depended on the extent of the injury. In this case, other two physicians supported the treatment as necessary. Similarly, with regard to cold pack therapy, he acknowledged that the treatment may be appropriate so long as there is an inflammatory response. In this case, Dr. LaMarra agreed with Respondent that this type of treatment was useful in relieving the Claimant’s pain.

Although aquatic therapy may be exclusively for transition of patients who need help in dealing with gravity, Dr. Knott specifically mentioned the therapy as useful for the Claimant’s needs.

The only reimbursement requests that were not supported by Respondent’s treatment records or testimony were those regarding office visits. If office visits during that period were necessary every two weeks, then three office visits would have been necessary over the seven-week period. Respondent billed fourteen office visits under CPT code 99213 ($48.00 per visit) and one visit under CPT code 99215 ($105.00 per visit).^[3] Taking into account the testimony of the witnesses and the documentary evidence, the ALJ finds that TMIC did not meet its burden of proof except as to eleven of the fourteen office visits under CPT code 99213 and one visit under CPT code 99215.

II. FINDINGS OF FACT

1. The Claimant, ___, sustained a work-related injury to her left ankle on ___.
2. Jack Barnett, D.C., Respondent, treated the Claimant from April 23, 2003 through July 30, 2003.
3. Although the initial diagnosis was a sprain with soft tissue swelling, a later MRI revealed a stress fracture of the distal tibial metaphysis and sprain.
4. Respondent referred the Claimant a podiatrist, Dr. Anthony LaMarra, D.P.M.
5. On May 20, 2003, Dr. LaMarra recommended that Respondent continue the Claimant’s physical therapy, although range of motion exercises and ultrasound should be deferred in light of the discovery of the fracture.
6. On June 19, 2003, Dr. LaMarra recommended that the Claimant continue to see Respondent for physical therapy because the care improved the Claimant’s condition.
7. On June 25, 2003, the Claimant was examined by James Knott, M.D., a designated doctor.
8. Dr. Knott also recommended that Respondent’s treatment of Claimant should continue.
9. The types of treatment that Respondent provided to the Claimant (and that form the basis for the reimbursement dispute) were rendered during the seven week period of June 11, 2003, through July 30, 2003: therapeutic exercises (97110), joint mobilization (97265), myofascial release (97250), ultrasound therapy (97035), hot and cold packs (97010), aquatic therapy and exercises (97113), and office visits (99213, 99215).
10. Texas Mutual Insurance Company (TMIC), Petitioner, denied the claims based on code “U,” “unnecessary treatment without peer review” except for one office visit based on code “N,” “not appropriately documented.”
11. The amount in dispute is $2,782.00.
12. Myofascial release is medically indicated in the first four weeks following an injury of this type, depending on the extent of the injury.
13. Although cold packs are most beneficial in the first few weeks following an injury, they may be appropriate as long as there is an inflammatory response.
14. Although the purpose of aquatic therapy may be to move a patient from a limited weight-bearing position to a full-gravity environment, the therapy helped alleviate the Claimant’s pain.
15. Office visits for which Respondent billed TMIC were necessary no more often than every two weeks for a four- to six-week period.
16. Three office visits were necessary over the seven week period, instead of the fourteen office visits under CPT code 99213 ($48.00 per visit) and one visit under CPT code 99215 ($105.00 per visit).
17. Taking into account the testimony of the witnesses and the documentary evidence, TMIC did not meet its burden of proof except as to eleven of the fourteen office visits under CPT code 99213 and one visit under CPT code 99215.
18. By letter issued on April 12, 2004, the Independent Review Organization (IRO) disagreed with TMIC’s prior adverse decision to deny reimbursement to Respondent. The IRO’s decision was based on the medical necessity for services rendered during fifteen office visits between June 11, 2003, and July 30, 2003, for Claimant
19. The IRO decision is deemed a Decision and Order of the Texas Workers’ Compensation Commission (Commission).
20. By letter dated May 17, 2004, TMIC timely requested a hearing to contest the Commission’s decision.
21. By letter dated June 21, 2004, the Commission issued a notice of hearing.
22. Administrative Law Judge Paul Keeper convened a hearing on December 2, 2004, in the hearing rooms of the State Office of Administrative Hearings. The record closed upon the adjournment of the hearing.
23. Ryan Willette represented TMIC, and Larry Trimble represented Respondent.

III. CONCLUSIONS OF LAW

1. SOAH has jurisdiction over 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.
2. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §’2001.052.
3. Under 28 Tex. Admin. Code §’148.21(h), TMIC has the burden of proof, pursuant to Tex. Lab. Code Ann. §413.031.
4. The disputed services were reasonable and necessary medical treatments with the exception of eleven of the fourteen office visits under CPT code 99213 (billed at $48.00 per visit) and one visit under CPT code 99215 (billed at $105.00 per visit). Tex. Lab. Code Ann. §401.011(19).
5. TMIC should be required to reimburse Respondent for the physical therapy sessions in dispute other than the twelve service items noted.

ORDER

Texas Mutual Insurance Co. is required to reimburse Jack Barnett, D.C., for the disputed services provided Claimant from June 11, 2003, through July 30, 2003, with the exception of eleven of the fourteen office visits under CPT code 99213 (billed at $48.00 per visit) and one visit under CPT code 99215 (billed at $105.00 per visit).

Signed January 31, 2005.

PAUL D. KEEPER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The IRO decision is deemed a Decision and Order of the Commission.↑
2. Respondent sought reimbursement of the IRO fee as part of this order. The ALJ does not have authority to order reimbursement for that item.↑
3. This was the service that was denied under Code AU.↑