DECISION AND ORDER

Petitioner, South Austin Therapy Group (Provider) appealed the Findings and Decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC) denying reimbursement from Highlands Underwriters Insurance Company (Carrier) for medical services rendered to an injured worker (Claimant). Provider disputes the conclusion of the Independent Review Organization (IRO) that these services were not medically necessary. This decision agrees with the IRO and finds that the services in dispute provided to Claimant between June 10, 2003, and August 7, 2003, were not medically reasonable and necessary. Thus, Provider should not be reimbursed.

I. PROCEDURAL HISTORY

Administrative Law Judge Penny Wilkov convened a hearing in this case on January 20, 2005, at the State Office of Administrative Hearings (SOAH), Austin, Texas. Linda S. Longoria, a physical therapist, appeared on behalf of Provider. Attorney William Weldon appeared on behalf of Carrier. The record closed after the hearing. No party challenged jurisdiction or notice.

II. DISCUSSION

Background

Claimant sustained a work-related back injury on ___, while employed as an electrician, when she was digging a ditch and experienced right lower back pain. Claimant has been diagnosed with discogenic LS disease with herniated disc at L4-5, L5-S1 with radiation to the right and left buttocks.^[1] The medical records reflect that Claimant has seen several doctors and therapists since the date of the injury, but at the time period in issue, Claimant has been under the care of South Austin Therapy Group. Claimant’s history of treatments has included injections, bi-level IDET procedure, medications, work hardening, chiropractic treatments, and physical therapy in conjunction with various diagnostic tests including a discogram, MRIs, x-rays, and nerve conduction tests.

Claimant underwent an IDET procedure, an outpatient surgical procedure which uses heat to destroy nerves and alleviate nerve compression, on March 25, 2003, performed by Neal H. Blauzvern, D.O. Claimant did not begin treatment with Provider until June 10, 2003, approximately eleven weeks after the IDET procedure.^[2] This delay in treatment is the basis of the IRO’s May 10, 2004, decision that:

[a]ctivity guidelines after IDET procedure as dispensed to the Claimant indicates a 6 week period of recovery; sedentary work activity is allowed after one week and lifting restrictions are instituted for the first 6 weeks. Documentation indicates the Claimant exhibited a functional range of motion 6 weeks after the IDET procedure.

Carrier denied payment, using denial code V^[3] for the following treatments administered between June 10, 2003, and August 7, 2003: office visits, therapeutic exercises, myofascial release, and hot and cold pack therapy.

1. Evidence and Argument
2. Provider

Provider called two witnesses to testify, Lisa Harris, a therapist, and Claimant, J.P., and submitted Claimant’s medical records, consisting of a 168-page compilation of documents.

Provider argues that Carrier should be required to reimburse Provider for all medical services provided between June 10, 2003, and August 7, 2003, since the therapy and treatments were medically necessary following Claimant’s IDET surgical procedure. First, Provider points out that the delay in approval of the therapy contributed to complications. Provider points to a May 13, 2003, report from Dr. Blauzvern stating that seven weeks after the IDET, rehab treatments had still not been approved by Carrier and Claimant has now developed muscle spasm and has continued to wear her hard brace contributing to muscle weakness and pain.^[4] The designated doctor examination made by Jose Pascual-Baratt, M.D., on May 14, 2003, also stated that Claimant needed physical therapy on her back after the IDET procedure.^[5] Second, Provider argues that the treatments were necessary to prevent Claimant from injuring herself. Provider referred to an IDET Therapy Post-Procedural Care guide which states that 12-16 weeks after the procedure, patient should be monitored to ensure exercises are done properly, to prevent flare-ups and problems, and to monitor recurrent pain.^[6] Third, Provider takes issue with the IRO’s conclusion that Claimant had functional range of motion six weeks after the IDET procedure. Provider argues that the Functional Capacity Exam performed

on the first day of disputed service shows that Claimant could only bend 10 from her waist and could not rotate or bend sideways.^[7]

Lastly, Provider points to a letter dated three weeks after the surgery, from Dr. Blauzvern who states that Carrier’s refusal to authorize post-IDET rehab based on a peer review would likely, “cause worsening of Claimant’s clinical condition, ultimate failure of IDET to provide benefit, and may expose her to further spine injury.”

Carrier

Carrier argues that it should not be required to reimburse Provider for all medical services provided between June 10, 2003, and August 7, 2003, and concurs with the IRO for several reasons. First, Carrier argues that the physical therapy begun in June, eleven weeks after the IDET procedure, was of no value since the therapy began after Claimant had already regained functionality. Carrier points to two medical opinions that the objective findings did not warrant the therapy. One medical opinion is a peer review by Gregory W. Baker, D.C., who noted that post-IDET treatment usually lasts between eight and twelve weeks after the procedure, and in the absence of objective or subjective findings, the continuation of care beyond this period would not be reasonable or necessary.^[8] The other medical opinion is the IRO reviewer, an orthopedic surgeon, who stated that there was no documentation of problems with Claimant’s range of motion or functionality to warrant “assisted therapeutic exercise and modalities in a clinical setting where a percutaneous IDET procedure was performed three months prior.”^[9] Second, Carrier argues that the subjective findings do not support the initiation of the disputed therapy in June. Carrier asserts that Claimant was reporting on April 15, 2003, to her surgeon, Dr. Blauzvern, that “she reports essentially complete resolution of presenting lumbar pain.”^[10] Carrier also relies on Provider’s medical notes, under the comments section: on June 20, 2003, shortly after the start of the disputed services, Claimant stated that “I have no pain;” on June 23, 2003, Claimant stated that she was receiving physical therapy at another place and that “it is pretty high level treatment.”^[11] Thus, Carrier argued that when physical therapy had begun, Claimant was not in pain and had admitted that she was getting high-level physical therapy at another undisclosed location. Lastly, Carrier argued that the Commission’s designated doctor, Dr. Pascual-Baralt, stated that Claimant had reached maximum medical improvement on May 14, 2003, with a 10% permanent impairment, and therefore, even with the disputed treatments, Claimant was not going to improve.

Applicable Law

Under the workers’ compensation system, an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury. The employee is specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the

injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment. Tex. Lab. Code Ann. § 408.021. “Health care” includes “all reasonable and necessary medical . . . services.” Tex. Lab. Code Ann.§ 401.011(19).

Analysis

Provider has not met its burden of proof with respect to the services in dispute provided to Claimant between June 10, 2003, and August 7, 2003. The IDET procedure was performed in March 2003, and shortly thereafter, post-surgical treatment should have started. Although Claimant’s surgeon, who did not testify, stated in his notes that Carrier had preauthorized post-IDET rehabilitation prior to the procedure, Carrier did not concede that the services had been pre-approved and argued that the services were not medically necessary based on a peer review.

Even though, in April 2003, Dr. Blauzvern expressed uncertainty that the lack of rehabilitation efforts would likely cause worsening of Claimant’s condition and could expose her to spine injury, the subjective or objective findings do not bear this out. As to subjective findings, Claimant was reporting on April 15, 2003, to Dr. Blauzvern, that she had complete resolution of her lumbar pain. This was reiterated to Provider in June 2003, when Claimant reported that she was not in pain. As to objective findings, both the IRO reviewer and peer review doctor failed to see any objective findings that Claimant had any difficulties with motion or functionality by the initiation of the disputed services. Even the IDET Therapy Post-Procedural Care guide provides guidance as to Claimant’s stage of recovery since the treatment guide states that twelve weeks after the procedure exercise can be more vigorous. Thus, when Claimant started treatment in June, it appears that the disputed services were no longer medically necessary.

In conclusion, Carrier should not reimburse Provider for services provided to Claimant between June 10, 2003, and August 7, 2003.

III. FINDINGS OF FACT

1. Claimant sustained a work-related back injury on ___, while employed as an electrician, when she was digging a ditch and experienced right lower back pain.
2. At the time of the injury, Claimant’s employer had its workers’ compensation insurance through Highlands Underwriters Insurance Company (Carrier).
3. Claimant has been diagnosed with discogenic LS disease with herniated disc L4-5, L5-S1, with radiation to the right and left buttocks.
4. Claimant’s history of treatments has included injections, bi-level IDET procedure, medications, work hardening, chiropractic treatments, and physical therapy in conjunction with various diagnostic tests including a discogram, MRI’s, x-rays, and nerve conduction tests.
5. Claimant has seen several physicians and therapists since the date of the injury, but at the time period in issue, Claimant had been receiving physical therapy and treatment at South Austin Therapy Group (Provider).
6. Provider submitted a claim to Carrier for treatment rendered to Claimant from June 10, 2003, to August 7, 2003, including office visits, therapeutic exercises, myofascial release, and hot and cold pack therapy.
7. Carrier denied Provider’s request for reimbursement.
8. On or about May 10, 2004, Petitioner requested medical dispute resolution with the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD).
9. An Independent Review Organization concluded that treatments rendered from June 10, 2003, to August 7, 2003, were not medically necessary.
10. Provider filed a request for a hearing before the State Office of Administrative Hearings on June 16, 2004.
11. The Commission sent notice of the hearing to the parties on July 9, 2004. The hearing notice informed the parties of the time, place, and nature of the hearing; the legal authority and jurisdiction under which the hearing was to be held; the statutes and rules involved; and the matters asserted.
12. The hearing convened on January 20, 2005, before Administrative Law Judge Penny A. Wilkov at the State Office of Administrative Hearings, Austin, Texas. Linda S. Longoria, a physical therapist, appeared on behalf of Provider. Attorney William Weldon appeared on behalf of Carrier. The hearing concluded and the record closed on the same day.
13. Claimant underwent an IDET procedure, an outpatient surgical procedure which uses heat to destroy nerves and alleviate nerve compression, on March 25, 2003, performed by Neal H. Blauzvern, D.O.
14. Claimant did not begin treatment with Provider until June 10, 2003, approximately eleven weeks after the IDET procedure.
15. Post-IDET treatment usually lasts between eight and twelve weeks after the procedure, and in the absence of objective or subjective findings, the continuation of care beyond this period would not be reasonable or necessary.
16. As to subjective findings, by the time physical therapy had begun in June, Claimant was not in pain as reported to Provider and to her treating physician.
17. No objective findings supported that Claimant had any difficulties with motion or functionality by the initiation of the disputed services.
18. Provider has not shown that the disputed services rendered between June 10, 2003, and August 7, 2003, were medical necessary.

IV. CONCLUSIONS OF LAW

1. The State Office of Administrative Hearings (SOAH) has jurisdiction over matters related to the hearing, 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. Provider timely filed a request for hearing before SOAH, as specified in 28 Tex. Admin. Code § 148.3.
3. The parties received proper and timely notice of the hearing pursuant to Tex. Gov’t Code Ann. ch. 2001 and 1 Tex. Admin. Code § 155.27.
4. Provider had the burden of proving the case by a preponderance of the evidence pursuant to 28 Tex. Admin. Code § 148.21.
5. 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).
6. Health care includes all reasonable and necessary medical services. Tex. Lab. Code Ann. § 401.011(19)(A).
7. Provider failed to establish that the office visits, therapeutic exercises, myofascial release, and hot and cold pack therapy rendered were reimbursable under Tex. Lab. Code Ann. §§ 401.011(19) and 408.021(a).
8. Provider is not entitled to reimbursement for services provided to Claimant for her compensable injury.

ORDER

IT IS ORDERED that South Austin Therapy Group is not entitled to reimbursement by Highlands Underwriters Insurance Company for office visits, therapeutic exercises, myofascial release, and hot and cold pack therapy, provided to Claimant between June 10, 2003, and August 7, 2003.

Signed February 24, 2005.

PENNY WILKOV
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. ¹ Respondent’s Exhibit A, page 254 (April 26, 2002, Review by Armando Angel, M.D.).↑
2. ² Petitioner’s Exhibit A, page 51, on April 15, 2003 Dr. Blauzvern stated that “[h]er WC Carrier, however, has apparently refused authorization for necessary post-IDET rehab, which they agreed to before the procedure was done.”↑
3. ³ Denial Code V is used when the insurance carrier is denying payment because the treatment or service is medically unreasonable and unnecessary based on a peer review.↑
4. ⁴ Respondent’s Exhibit A, page 319.↑
5. ⁵ Respondent’s Exhibit A, pages 320-321.↑
6. ⁶ Petitioner’s Exhibit A, pages 63-64.↑
7. ⁷ Petitioner’s Exhibit A, page 8.↑
8. ⁸ Petitioner’s Exhibit A, pages 56-59.↑
9. ⁹ Respondent’s Exhibit A, page 3.↑
10. ¹⁰ Petitioner’s Exhibit A, page 51.↑
11. ¹¹ Petitioner’s Exhibit A, page 16.↑