DECISION AND ORDER

Santiago Guajardo, D. C. (Provider), challenged the decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) denying reimbursement for office visits, physical therapy, and sessions of physical medicine provided to ___ (Claimant) from April 14, 2003, through October 2, 2003. Zurich American Insurance Company (Carrier) is the responsible insurer in this case.

The Administrative Law Judge (ALJ) finds that Provider is not entitled to reimbursement for any of the unpaid dates of service.

The hearing in this matter convened on January 10, 2005, in Austin, Texas, with ALJ Cassandra Church presiding. The record closed on January 18, 2005, to permit the parties to file supplemental materials. Provider was represented by William Maxwell, attorney. Carrier was represented by Steve Tipton, attorney. The Commission did not participate in the hearing.

Neither jurisdiction nor adequacy of notice was a contested issue.

I. DISCUSSION

A. Medical and Treatment History

On ___, Claimant injured her left arm, wrist, shoulder, and ankle in a fall. Provider began treating Claimant on December 9, 2002, and was her treating doctor. Claimant fractured a bone in her left wrist. Claimant’s primary symptom during the disputed period was ongoing pain in her hand and foot. Her hand had some edema and redness at times. Claimant suffered a sprain/strain of her left foot and ankle, later developing tendinitis of her left foot.

Immediately after the injury, Claimant’s left wrist was placed in a cast for two months.^[1] The cast was removed in January 2003. Claimant underwent physical therapy and conservative care through April 2003.^[2]

Claimant continued to report pain in her left ankle and foot throughout the first half of 2003. During that period of time she was seen by a number of specialists whose opinions varied concerning the source of her ankle and wrist pain. Most recommended additional testing, although their recommendations of appropriate treatment varied.

Several tests were conducted during the first half of 2003 in an attempt to ascertain the source of Claimant’s ongoing complaints of pain. On May 1, 2003, an MRI of Claimant’s wrist was normal and showed no tears in cartilage in her left wrist.^[3] The MRI did show possible degenerative change

in the triangular fibrocartilage ligament. On June 2, 2003, an EMG examination showed the suggestion of neuropraxia ^[4] in an area of her wrist.^[5] A nerve conduction study on that date showed no neuropathy.

On 22 dates between April 14, 2003, and June 9, 2003 (treatment period), Provider administered a variety of passive and active modalities to Claimant, as well as conducting office visits on most of all dates of treatment. On these dates of service Provider administered a combination of myofascial release, joint mobilization, one-on-one therapeutic exercises, and electrical stimulation/ultrasound treatment. Claimant performed strengthening and range of motion exercises on both her left wrist and left ankle. On most days she rode an exercise bike and/or elliptical exerciser.^[6]

During the early half of 2003, before and during the treatment period, the doctors who examined Claimant and Carrier disagreed as to the need for further diagnostic testing of Claimant’s foot and ankle.

Shortly after the end of the treatment period, on June 23, 2003, Norma S. Mendoza, M. D., performed a designated doctor examination. She recommended a zero per cent impairment rating for the whole person and for all injured body parts and concluded Claimant had reached maximum medical improvement.^[7] Dr. Mendoza found only a residual tenderness in her left wrist, found her gait, walk, and posture normal, and also found her range of motion and strength in both her left hand and left foot and ankle within normal limits. She diagnosed Claimant as having had a sprain/strain of her left ankle and recommended continuation of a home exercise program.

In August and September 2003, Claimant underwent 20 sessions of chronic pain management.^[8] In that program, Claimant learned to cope with her pain 50 per cent of the time, decreased her depression and anxiety, and mastered several relaxation and coping skills. She decreased both her pain and her perception of her pain.

Provider’s treatment period ended on June 9, 2003, approximately two months before Claimant entered the pain management course in August. Dr. Guajardo stated he ended therapy while the need for surgery was being evaluated.

Provider conducted office visits on August 4, 2003, and October 2, 2003. The only treatment note on the August 4, 2003, visit is the word “eval.” No diagnosis comments, observations, or treatment plan is listed.^[9] On October 2, 2003, Provider billed for the office visit and for traction (CPT Code 97140).^[10] However, the office notes state that joint mobilization and myofascial release were performed to address pain and a swelling the size of a quarter in Claimant’s hand. Claimant stated the pain and swelling began at work.^[11] The evidence is not clear as to why those procedures were appropriate to treat those symptoms.

Provider had released Claimant to light duty in March 2003 and she was still on that status in August 2003.^[12] By December 2003, she was working 30 hours per week and was doing her normal work.^[13]

B. History of Claim

Provider billed for all the treatments and office visits listed above. The therapeutic exercises were billed as one-on-one physical therapy. Carrier denied payment for all treatments and office visits during the treatment period on the basis that they were not medically necessary, based on a peer review.

On May 20, 2004, the Medical Review Division (MRD) determined that office visits on five dates were medically necessary, specifically, the office visits on April 14, May 14, June 9, August 9, and October 2, 2003.^[14] The reviewer for the Independent Review Organization (IRO), Forté, concluded that no additional pain-relieving therapy was warranted after April 8, 2003, and that a home-based exercise plan would have been as beneficial as in-office treatments during that period. The IRO also recommended against reimbursement for any office visits other than the five listed above.

C. Applicable Standard for Qualifying Services

The parties in this case differed on what treatment standard applied to services provided in mid-2003. Carrier argued that the Center for Medicare and Medicaid Services (CMS policies) adopted for use in Texas, effective May 25, 2001, applied. Carrier asserted the CMS policies on physical medicine were among those adopted on May 25, 2001, and had not been modified by the 2002 Medical Fee Guideline (MFG).^[15] Provider argued that the appropriate date to start applying the CMS policies should be August 1, 2003, the effective date for the 2002 MFG. Thus Provider argued that services before that date-most of those at issue in this case-should be evaluated under the 1996 Medical Fee Guideline (MFG).^[16] The question of the applicable standard is a significant element in evaluating the medical necessity of these services because the CMS policies, on their face, limit substantially the role to be played by physical therapy and physical medicine modalities in a patient’s medical care.^[17]

As discussed below, the ALJ concluded that the CMS policies on the medical necessity of physical medicine and physical therapy do apply to services provided in between April and June 2003. However, it is not clear whether any of the medical professionals in this case, i.e., physicians treating or evaluating Claimant’s condition, or those performing peer reviews, specifically applied the CMS policies in arriving at their conclusions. Neither the MRD Decision nor the underlying IRO report references the guidelines they applied to determine medical necessity.^[18] For the most part, the agency record of this dispute is silent on that point.^[19]

House Bill 2600, adopting the CMS policies, was effective on May 25, 2001, and applied to compensable injuries that occurred on or after the effective date of the Act, except as otherwise provided by the Act.^[20] HB 2600 also directed the Commission to adopt rules setting fees, and authorized it to make minimal modifications to the CMS policies to address occupational health issues.^[21] The amended Labor Code provision, Sec. 413.011(a), states as follows:

The commission shall use health care reimbursement policies and guidelines that reflect the standardized reimbursement structures found in other health care delivery

systems with minimal modifications to those reimbursement methodologies as necessary to meet occupational injury requirements. To achieve standardization, the commission shall adopt the most current reimbursement methodologies, models, and values or weights used by the federal Health Care Financing Administration, including applicable payment policies relating to coding, billing, and reporting and may modify documentation requirements as necessary to meet the requirements of Section 413.053. (Emphasis supplied).

As well as permitting the Commission to make minimal modifications by rule for occupational health care, the amended Sec. 413.011 required the Commission to develop conversion factors or other payment adjustment factors in regard to fees, and permitted it to adopt treatment guidelines, including return-to-work guidelines, and medical policies. HB 2600 also abolished, effective January 1, 2002, the treatment guidelines in effect immediately before September 1, 2001.

The 2002 MFG did not modify the treatment standards for physical therapy and physical medicine that appear in the CMS policies.^[22]

In a court challenge to the implementation of the new rule, the 2002 MFG was determined to be valid agency rule and was ruled effective for all professional medical services provided on or after August 1, 2003.^[23]

Instructional materials published by the Commission in April 2004 appear to lend some support to Provider’s position. Those materials do not address the issue of services provided during the period of time between the effective dates of the statute and the rule.^[24] The Commission’s materials state the following procedures apply to services on or after August 1, 2003:

For coding, billing, reporting, and reimbursement of professional medical services, Texas Workers’ Compensation system participants must apply the Medicare program reimbursement methodologies, models, and values or weights, along with its coding, billing, and reporting payment policies in effect on the date on which a service is provided, with any additions or exceptions in Rule 134.202.

As much of the new system depends the adoption of 2002 MFG, Provider’s argument that the effective date of that rule is the appropriate transition point is not without merit. However, the language of the amended Act itself appears to put the CMS treatment policies in effect immediately

as it states the Commission “shall use” the federal guidelines. Carrier’s position that the statute’s express terms prevail is a legally sound one and should be applied here.

To be necessary under the CMS policies, a physical therapy program must comprise the following:

• Relate directly and specifically to an active written treatment regimen established by the physician.
• Be reasonable and necessary to the treatment of the individual’s illness or injury.
• Be of such a level of complexity and sophistication that a physical therapist is needed to perform the services.
• Include an expectation the patient’s condition or level of function can and will improve within a reasonable (and generally predictable) time.
• Limited to up to 18 session within a six-week period, if one-on-one physical therapy (CPT Code 97110).
• Not be “maintenance therapy” to sustain an existing level of functioning.
• Be provided in treatment sessions limited to 30 to 45 minutes, absent justification for longer sessions.

Services related to the general good and welfare of patients such as general exercises to promote overall fitness and flexibility are excluded from compensation. Specified physical medicine procedures are also subject to limitations. For example, joint mobilization, manual manipulation, and soft tissue mobilization are considered to be the same service so are billable only once per date of service.^[25]

The 2002 MFG also states that chiropractors may be reimbursed for services provided within the scope of the Chiropractic Practice Act^[26] and the decisions made by an Independent Review Organization (IRO) regarding medical necessity shall be made on a case-by-case basis.^[27]

Considering the applicable statues and rules in this case, the ALJ concludes that the CMS policies regarding the medical necessity of the treatments at issue were in effect for the dates of service at issue. The treatment guidelines provided for by the 2002 MFG do not apply as none of the modifications to CMS polices made by the 2002 MFG were for services at issue.

However, since it is unclear that the parties, including the Carrier’s peer reviewers, expressly applied the CMS policies in making their analysis, the ALJ also relied on the general authority of those provisions of the Labor Code that entitle an injured worker to all necessary medical care to treat his or her injuries.^[28]

D. Physicians’ Reviews

In arguing for the necessity of the treatment that he provided, Dr. Guajardo pointed both to his own evaluation of Claimant’s condition and to the referrals by the specialists who had examined Claimant in early and mid-2003. He argued that all treatment that he provided was needed to improve Claimant’s functioning and to address her persistent, hard-to-diagnose pain. He said the therapy was an adjunct to care by those specialists and had been done under their direction and at their request.

In December 2002, Dr. Guajardo diagnosed Claimant as having a distal radius fracture, internal shoulder derangement, parethesia, restriction of motion, limb pain, and both deep and superficial muscle spasms.^[29] That diagnosis was substantially unchanged in March 2003.^[30]

In February 2003, K. Bobby Pervez, M.D., a pain management specialist, recommended additional physical therapy to help Claimant manage her pain and increase her range of motion.^[31]

On February 12, 2003, James B. Stafford, M. D., conducted an independent medical evaluation. His recommendation was for therapy by a certified hand specialist. He diagnosed Claimant as having a healed nondisplaced radial styloid fracture of the left wrist, and postoperative subjective discomfort, with weakness. At that time-shortly after Claimant’s wrist cast was removed-he recommended physical therapy to increase her range of motion and strength and to decrease her discomfort.^[32]

No medical practitioner examining Claimant recommended that Claimant should have one-on-one physical therapy. There were no indicators in Claimant’s records from any source as to a need for one-on-one physical therapy.

In short, there seemed to have been a consensusamong the health care providers treating or evaluating Claimant in early 2003 that she needed physical therapy immediately after her cast was removed. However, as the months progressed, the recommendations on the need for additional physical medicine sessions begin to diverge.

On March 3, 2003, Dr. Pervez strongly argued for additional testing to determine the cause of Claimant’s continuing left wrist pain as well use of more effective pain medications. His recommendations as to physical therapy in March appear contradictory. On the one hand,

he stated that Claimant presented pain that cannot be handled by either her chiropractor, Provider, or a specialized hand therapist. On the other hand, he stated that Claimant should continue physical therapy to assist with wrist pain control and range of motion.^[33] Dr. Pervez did not identify any performance goals for either pain control or range of motion improvement that he expected from continued therapy.

On May 5, 2003, Anthony J. LaMarra, D. P. M., recommended that a CAT scan and a bone scan be performed on Claimant’s left ankle to rule out a possible fracture to the talar dome (bone near the ankle). He diagnosed Claimant as having Achilles and posterior tibial tendinitis. He prescribed a soft ankle brace and recommended a custom brace. Although he suggested that more physical therapy might be needed, his recommendation for additional physical therapy depended on the results of the CAT and bone scans.

On May 17, 2003, Jacobo Varon, M. D., a hand specialist, authorized physical medicine sessions of up to three times per week for four weeks.^[34] Dr. Varon also recommended that Claimant be educated in a home program. He recommended a variety of treatments and modalities, including manual therapy, a desensitization program, fluidotherapy, therapeutic exercises, an edema reduction program, neuromuscular re-education, and application of moist heat and ultrasound. Provider’s records showed that on July 10, 2003, Dr. Varon recommended or prescribed the identical mix of therapies.^[35]

However, Dr. Varon apparently did not develop treatment plans or establish goals in connection with either recommendation. Provider’s records are not clear as whether all of the treatments that Dr. Varon recommended, i.e., neuromuscular re-education or edema reduction, were administered.

Dr. Gujardo stated that Claimant was participating in a home program during the treatment period. However, he acknowledged that details of this program were not documented. He also stated that the prescriptions by Dr. Varon and Dr. Pervez comprised a menu of possible treatments that could be performed in order to benefit Claimant. He stated that many from the list were performed although may not have been listed in the daily treatment notes.

He stated that he also questioned the conclusions of evaluators who concluded Claimant had suffered no nerve damage because those conclusions were contradicted by his clinical observations of Claimant’s condition over time.

On September 9, 2003, Kent Tomsic, D. C., a peer reviewer, concluded that five months of physical medicine, from December 2002 through April 2003, had been an adequate trial and that Claimant was unlikely to have made further gains with treatment after April 2003. He stated that later medical records failed to show significant improvement in Claimant’s strength or range of motion or a decrease in pain. He noted that Claimant’s pain levels in September

2003 were 8 out of 10, on a 10-point scale, which were the same levels reported shortly after theinjury. Dr. Tomsic recommended certain diagnostic tests to ascertain whether the source of the pain in Claimant’s hand and ankle arose from the injury or were degenerative.

On September 14, 2003, Wayne Soignier, M. D., a hand, plastic, and upper extremity surgeon, concluded that five months of physical therapy for a healed fracture was excessive, particularly in light of the lack of change in Claimant’s subjective complaints and objective findings over the months of therapy. Dr. Soignier noted that even recovery from a surgical procedure on the hand would normally be limited to between four to six months.^[36]

On December 11, 2003, Gerard T. Gabel, M. D., stated that additional treatment after the first two months after Claimant’s cast was removed was inappropriate. The absence of a tear in the cartilage in her hand was another indication that no further treatment had been needed.^[37]

Provider’s own treatment notes did not lay out a discernible strategy to improve Claimant’s functioning, but rather referred to monitoring Claimant’s symptoms and condition, then responding to changes. The physical therapy provided appears to have been primarily theraband exercises for maintaining and possibly improving Claimant’s general flexibility and range of motion in her wrist and ankle. Provider did not establish that only a licensed physical therapist could administer theraband exercises. Themyofascial release, joint mobilization, and electrical stimulation/ultrasound treatmentappeared to have been administered for general pain relief and comfort of the patient, rather than in support of a defined treatment protocol.

None of the specialists evaluating Claimant explicitly recommended physical therapy for treatment of her ankle.

As noted, there were ongoing disputes between Carrier and various medical providers regarding the need for diagnostic testing, particularly of Claimant’s left foot and ankle. Some treatments notes and comments suggest that some of the treatment by Provider was merely to maintain Claimant’s status while those disputes were resolved.^[38]

E. Analysis of Services

The ALJ evaluated the evidence in this case under the Labor Code dictate requiring all necessary medical treatment be provided and also considered the necessity of this course of treatment under the CMS policies. Under neither standard did the evidence support a conclusion that the treatments were medically necessary.

The therapy and treatments in this case were not directed toward achieving specific improvements in Claimant’s wrist or ankle function. Although there were recommendations from some consulting physicians that therapy be continued past April 2003, those referrals

were general and were not backed up by defined goals or objectives. The ALJ was unable todiscern, either from any individual practitioner’s notes or from the notes taken as a whole, Claimant’s prognosis, what level of improvement in her functioning was expected, or how the physical therapy and physical medicine sessions conducted by Provider were expected to contribute toward her healing.

Before the treatment period, only the most general recommendations were made for therapy on Claimant’s left foot and ankle. Tendinitis and sprain/strain of her ankle were the only conditions diagnosed.

All doctors, including the peer reviewers in this case, were consistent in their view that therapy during the first two months was reasonable. However, developments thereafter did not warrant additional treatment. Claimant’s objective and subjective complaints did not change appreciably during the treatment period, nor did the treatment and therapy show any sort of progression. The only hand injury revealed by diagnostic tests was the healed wrist fracture.

Under the CMS policies, physical therapy beyond a two-month period must be supported by documentation as to its need. As noted above, the documentation of Claimant’s treatment after that two-month period did not demonstrate why three additional months of physical therapy and physical modalities would significantly improve her physical functioning. To the extent that gymnasium-type exercises such as theraband resistance exercises and use of an exercise bike were directed toward maintaining Claimant’s range of motion or flexibility, they would not appear to be qualifying therapeutic activities under the CMS policies.

Provider failed to explain the why joint mobilization and myofascial release would have been appropriate and necessary to treat the swelling and pain Claimant reported on October 2, 2003. The need and purpose for an office visit on August 4, 2003, was not explained.

In sum, the course of therapy Provider administered to Claimant during the treatment period was not medically necessary. Provider failed to meet its burden of proof to show that it is entitled to reimbursement for services provided during the treatment period and in August and October 2003 either under the general standard for medical necessity or under the terms of the CMS policies.

III. FINDINGS OF FACT

1. On ___, ___ (Claimant) injured her left wrist, arm, shoulder, and left ankle in a fall.
2. Zurich American Insurance Company (Carrier) was the responsible insurer.
3. Claimant fractured a bone (radial styloid) in her left wrist.
4. Claimant suffered a sprain/strain of her left ankle and later developed Achilles and posterior tibial tendinitis.
5. Santiago Guajardo, D. C. (Provider), began treating Claimant on December 9, 2002.
6. Shortly after her injury, Claimant’s left wrist was placed in a cast. The cast was removed in mid-January 2003.
7. After Claimant’s cast was removed in January 2003, she underwent physical therapy and also received conservative care through April 2003.
8. Between mid-January and April 2003, physical medicine and physical therapy were appropriate and necessary treatments to restore Claimant’s range of motion in her hand and decrease her discomfort after the removal of her cast.
9. Throughout the first half of 2003, Claimant reported pain levels of up to 8 on a 10-point scale on a periodic basis. Claimant’s pain was not relieved by pain medication or physical medicine treatments.
10. On 22 dates between April 14, 2003, and June 9, 2003 (treatment period), Provider administered a variety of passive and active modalities, and also conducted an office visit in conjunction with all or most treatment sessions.
11. During each session during the treatment period, Provider administered a combination of myofascial release, joint mobilization, therapeutic exercises, and electrical stimulation/ultrasound treatment.
12. During each treatment session, the therapeutic exercises consisted of strengthening and range of motion exercises on both her left wrist and left ankle, usually resistance exercises using a theraband. On most days she also rode an exercise bike and/or used an elliptical machine.
13. The therapeutic exercises that Claimant performed were maintenance exercises or exercises to promote her overall fitness and flexibility.
14. Claimant billed for administration of one-on-one physical therapy, i.e., CPT Code 97110, for all dates on which therapeutic exercises were administered.
15. Claimant did not need one-on-one physical therapy.
16. On March 3, 2003, K. Bobby Pervez, M.D., a pain specialist, recommended continued physical therapy but did not outline a specific treatment plan or set pain-reduction goals for that therapy.
17. On May 1, 2003, an MRI of Claimant’s wrist was normal, although there was some indication of degenerative changes in cartilage in one area of her wrist.
18. On May 5, 2003, Anthony J. LaMarra, D. P. M., recommended additional physical therapy but only after CAT and bone scans were conducted to rule out a possible fracture of the talar dome in Claimant’s foot.
19. On May 17, 2003, Jacobo Varon, M. D., a hand specialist, authorized physical medicine and therapy sessions of up to three times per week for four weeks.
20. On May 17, 2003, Dr. Varon recommended range of motion exercises and treatments including a desensitization program, fluidotherapy, therapeutic exercises, an edema reduction program, neuromuscular re-education and application of moist heat and ultrasound. He also recommended that Claimant be educated in conducting a home program.
21. Dr. Varon did not outline a specific treatment plan or set improvement goals but rather provided a menu of possible treatments that Provider was authorized to administer.
22. On June 2, 2003, Claimant had no neuropathy in her left wrist, but a possible neuropraxia (temporary nerve lesion) in an area of her wrist.
23. Claimant’s signs and symptoms, including pain levels, remained substantially unchanged during the treatment period.
24. Provider did not outline goals for pain reduction or for improved wrist or foot and ankle functioning for the treatment period.
25. Physical therapy beyond April 2003 was not warranted by Claimant’s signs and symptoms or by the results of the diagnostic tests.
26. A home exercise program would have had similar benefits as in office treatment in April, May, and June 2003.
27. In August and September 2003, Claimant underwent a course of chronic pain management and learned to cope with her pain 50 per cent of the time and decreased both her pain and her perception of her pain.
28. Provider conducted an office visit on August 4, 2003. The purpose of this office visit was not explained and did not include a diagnosis or propose treatment.
29. Provider conducted an office visit on October 2, 2003, and also administered myofascial release and joint mobilization to treat Claimant for hand pain and swelling in an area the size of a quarter on her hand. Provider stated the condition being treated was an exacerbation of her compensable injury.
30. The evidence was inconclusive that the treatment administered on October 2, 2003, was medically necessary to treat pain and swelling.
31. Carrier denied payment for services provided on the basis that the services were not medically necessary, as determined by a peer reviewer.
32. On May 20, 2004, the MRD determined that the case was limited to medical necessity issues and that Provider was entitled to reimbursement for office visits on April 14, May 14, June 9, August 9, and October 2, 2003, on the basis that they were medically necessary.
33. On June 2, 2004, Provider requested a hearing on the May 20, 2004, MRD decision.
34. On July 5, 2004, the Commission issued a notice of hearing on the request for hearing that included the date, time, and location of the hearing, the applicable statutes under which the
35. hearing would be conducted, and a short, plain statement of matters asserted.
36. On January 10, 2005, Administrative Law Judge Cassandra Church conducted a hearing on the merits. The record closed January 18, 2005, to permit the parties to file supplemental materials.

III. 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. § 413.031 and Tex. Gov’t Code Ann. ch. 2003.
2. Provider timely requested a hearing, as specified in 28 Tex. Admin Code § 148.3.
3. Proper and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
4. Provider has the burden of proof, pursuant to Tex. Lab. Code Ann. § 413.031, 1 Tex Admin. Code § 155.41(b), and 28 Tex. Admin Code § 148.21(h).
5. Provider failed to meet its burden of proof to show that the treatment sessions comprising physical therapy, an office visit, and physical medicine modalities that it provided to Claimant between April 14, 2003, and June 9, 2003, were medically necessary to treat Claimant’s compensable injury, within the meaning of Tex. Labor Code Ann. § 401.011(19) and408.021.
6. Provider failed to meet its burden of proof to show that the treatment sessions comprising physical therapy, an office visit, and physical medicine modalities that it provided to Claimant between April 14, 2003, and June 9, 2003, were medically necessary within the terms of the Center for Medicare Services policies adopted by HB 2600, Act of May 25, 2001, 77th Leg., R.S., ch. 1456, § 6.02, 2001 Tex. Gen. Laws 4874, 4891(to be codified as an amendment to Tex. Lab. Code Ann. § 413.011.
7. Provider failed to meet its burden of proof to show that the office visit on August 4, 2003, and the myofasical release and joint mobilization provided on October 2, 2003, were medically necessary to treat Claimant’s compensable injury, within the meaning of Tex. Labor Code Ann. § 401.011(19) and 408.021.

ORDER

IT IS ORDERED that all requests by Santiago Guajardo, D. C., for reimbursement for services provided to Claimant between April 14, 2003, and June 9, 2003, for the office visit on August 4, 2003, and for the treatment provided on October 2, 2003, are hereby denied.

Signed March 18, 2005.

CASSANDRA J. CHURCH
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Carrier Exh. 1, pp. 35 and 46.↑
2. Provider Exh. 1, p. 20.↑
3. Provider Exh. 1, p. 97.↑
4. Neurapraxia is the mildest type of nerve lesion that produces clinical deficits. The effects are local and recovery is usually complete. Stedman’s Medical Dictionary, 27^th Edition (2000), p. 1206.↑
5. Provider Exh. 1, pp. 105-108.↑
6. Carrier Exh. 1, p. 19.↑
7. Carrier Exh. 1, pp. 27-31.↑
8. Provider Exh. 1, pp. 155-157.↑
9. Provider Exh. 1, p. 56.↑
10. The ALJ was unable to locate this code in the 1996 Medical Fee Guideline (MFG), 28 Tex. Admin. Code § 134.201 (Eff. date April 1, 1996). This apparently was a code used in earlier coding schemes for joint mobilization or a combination of procedures.↑
11. Provider Exh. 1, p. 57.↑
12. Provider Exh. 1, pp. 117 and 152; Carrier Exh. 1, p. 19.↑
13. Carrier Exh. 1, p. 9.↑
14. The MRD held that the office visit on August 4, 2003, which was billed as under CPT Code 99214, should be paid, but only to a level of a less-involved office visit, CPT Code 99213. The difference in complexity results in different levels of payment.Since some reimbursement was awarded, the ALJ considered this a claim on which Provider prevailed thus not at issue here since Provider appealed only matters on which it did not prevail. See Provider’s Request for Hearing, June 2, 2004 (State Office of Administrative Hearings (SOAH) file).↑
15. 28 Tex. Admin. Code § 134.202 (Adopted eff. date, January 5, 2003).↑
16. 28 Tex. Admin. Code § 134.201 (Eff. date April 1, 1996).↑
17. Local Medical Review Policy (LMRP) Y-13B-R5. Carrier’s Supplemental Materials, January 14, 2005, Exh. A. Provider did not dispute the authenticity of the CMS policy excerpts submitted by Carrier or that they would be the standards that would govern medical necessity in workers’ compensation cases.↑
18. There is some internal evidence in the language used by the IRO reviewer that he or she used CMS Policies, but it was far from conclusive. The reviewer referred to Level II and III office visits, CMS terminology not found in the 1996 MFG’s Evaluation/Management Ground Rules or coding sections.↑
19. The first reference the ALJ found to the CMS guidelines in the proceedings before the agency appears in Carrier’s position summary sent on March 8, 2004, to the MRD in response to Provider’s request for medical dispute resolution. Carrier Exh. 1, pp. 144-146.↑
20. Act of May 25, 2001, 77th Leg., R.S., ch. 1456, § 6.02, 2001 Tex. Gen. Laws 4874, 4901. The Act was to take effect immediately upon receiving a two-thirds vote of all the members of each house. The Senate passed HB 2600 by a two-thirds vote on May 18, 2001; the House passed HB 2600 on May 25, 2001, by a two-thirds vote.↑
21. Act of May 25, 2001, 77th Leg., R.S., ch. 1456, § 6.02, 2001 Tex. Gen. Laws 4874, 4891(to be codified as an amendment to Tex. Lab. Code Ann. § 413.011).↑
22. The Commission’s instructional materials state that chiropractors may be compensated for any service provided for by their practice act, but that the provision of those services will be governed by the CMS policies. “Medical Fee Guideline: Training module for health care and insurance professionals,” p. 2.↑
23. Texas Medical Ass’n v. Texas Workers’ Compensation Com’n, 137 S.W.3d 342 (Tex. App.BAustin 2004, rehearing overruled June 24, 2004). This decision affirmed the District Court judgment and denied a permanent injunction to restrain implementation of the 2002 MFG. Further, it did not change the District Court Judge’s determination of the effective date of the 2002 MFG. Final Judgment, Cause No. GN 202203, June 1, 2003 (J. Dietz). The 2002 MFG as adopted would have applied retrospectively to professional medical services provided on or after September 1, 2002. 28 Tex. Admin. Code § 134.202 (a)(2).↑
24. “Medical Fee Guideline: Training module for health care and insurance professionals,” Texas Workers’ Compensation Commission (April 2004), pp. 1-2.↑
25. Carrier also pointed out that under the CMS policies a physical therapy provider must document that an office visit on the same day as the therapy was unrelated to that therapy. Carrier’s Supplemental Materials, January 14, 2005, Exh. B, Carrier’s Manual, Part 3, Ch. XV, Sect. 15008. However Carrier failed to explain why this concern, as well as its concern about separate billing for multiple procedures now global under the CMS policies, should not be considered fee issues. The issue here is medical necessity.↑
26. 28 Tex. Admin. Code § 134.202 (a)(3). In Texas, the practice of chiropractic includes use ofobjective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body. A chiropractor performs nonsurgical, nonincisive procedures, including adjustment and manipulation, to improve the subluxation complex or the biomechanics of the musculoskeletal system. As well as incisive or surgical procedures, the practice of chiropractic also excludes the prescription of controlled substances, dangerous drugs, or any other drug that requires a prescription, or the use of X-ray therapy or therapy that exposes the body to radioactive materials. Tex. Occ. Code Ann. § 201.002.↑
27. 28 Tex. Admin. Code § 134.202(a)(4).↑
28. Tex. Lab. Code Ann. §§ 401.011(19) and 408.021.↑
29. Provider Exh. 1, pp. 47-48.↑
30. Provider Exh. 1, p. 128.↑
31. Provider Exh. 1, pp. 79-80.↑
32. Provider Exh. 1, pp. 76-78.↑
33. Provider Exh. 1, pp. 84-85.↑
34. Provider Exh. 1, p. 102.↑
35. Provider Exh. 1, pp. 54 and 151.↑
36. Carrier Exh. 1, p. 15.↑
37. Carrier Exh. 1, p. 9.↑
38. Provider Exh. 1, p. 144.↑