DECISION AND ORDER

The worker’s compensation claimant (Claimant) in this case sustained a compensable injury to her left upper extremity on ___. At issue are approximately three months of therapeutic services mostly aquatic therapy and land-based therapeutic exercises provided in 2002 by the petitioner, Truman Davidson, D.C. The carrier, Texas Mutual Insurance Company (TMIC), citing a lack of medical necessity, declined to pay for the disputed therapies. A reviewer with an Independent Review Organization (IRO) concluded that the services were not medically necessary. Dr. Davidson requested a hearing.

The Administrative Law Judge (ALJ) determines that the disputed services were not medically necessary.

I. DISCUSSION

A. Procedural History

The hearing was convened on May 24, 2005, before State Office of Administrative Hearings (SOAH) Judge Shannon Kilgore. Dr. Davidson appeared by telephone on his own behalf. Tim Riley, attorney, represented TMIC. The hearing adjourned, and the record closed, the same day. No party raised any issue concerning notice or jurisdiction.

B. Factual Background and Disputed Services

Claimant was injured in ___ when she began experiencing left hand, wrist, arm, shoulder, and neck pain. The record suggests that her injury resulted from repetitive use in her job as a machine operator assembling computer parts. In late August 2002 Claimant began a course of physical therapy administered by Dr. Davidson focusing on the wrist, arm and/or hand,^[1] but after three months of treatment Claimant was still experiencing considerable pain. A designated doctor determined in December 2002 that Claimant was still not at maximum medical improvement, and that further therapy and/or injections appeared warranted.^[2]

The disputed dates of service in this case are August 23, 2002, through November 15, 2002.^[3] Dr. Davidson billed for the disputed services under the following CPT codes:

CPT CodeService

97113 Aquatic therapy

97110 Therapeutic exercises

99213 Office visits (level 3)

99215 Office visit (level 5) (one)

99082 Unusual travel

97112 Neuromuscular re-education (one unit)

97265 Joint mobilization (one unit)

97250 Myofascial release (one unit)

97032 Electrical stimulation (one unit)

99080-73 TWCC-73 work status report.

TMIC denied reimbursement for these services under denial code U, indicating unnecessary treatment.

C. Applicable Law

Dr. Davidson has the burden of proof in this proceeding.^[4] The Texas Labor Code provides in pertinent part that:

(a)An employee who sustains 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:

1. cures or relieves the effects naturally resulting from the compensable injury;
2. promotes recovery; or
3. enhances the ability of the employee to return to or retain employment.^[5]

* * *

Health care includes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services.^[6]

D. IRO Decision

In a decision dated September 3, 2003, and amended May 24, 2004, the IRO determined that the disputed services were not medically necessary. The IRO reviewer indicated that the reasons for the disputed services were not sufficiently spelled out in the record.

E. Expert testimony

Dr. Davidson testified that the services he provided were medically necessary. He asserted that TMIC paid for services both before and after the dates of service that are disputed here. He stated that because Claimant’s wrist was disabled, she needed transportation so that she could

safely arrive for her therapy, and Dr. Davidson’s office helped with the expenses of the transportation. He testified that the ultrasound treatment was designed to promote healing, the myofascial release was used to reduce cramping, the aquatic therapy was used to reduce the risk

of re-injury, and the land-based exercises were designed to decrease pain and increase functionality. On cross-examination, he explained that the aquatic therapy involved “deep water” work, with

active stretching, walking, lap swimming, leg exercises, hand weights, kick boards, and hand-over-hand pulling. Claimant required one-on-one supervision because she could not swim. (She used a flotation belt while in the water.) As for the land-based therapeutic exercises, Dr. Davidson testified that he always employs one-on-one supervision because of the risk of re-injury. He justified the level-three office visits by testifying that good doctoring dictates spending time with a patient. He also stated that it is the policy of his office to provide (and, apparently, bill for) monthly work status reports, regardless of whether there has been a request by the carrier or employer.

Timothy Fahey, D.C., testified for TMIC. He noted that the diagnostic tests failed to identify the pathology responsible for Claimant’s pain and that the nature of the injury is therefore difficult to specify. Most likely she suffered from tendinitis and a strain/sprain injury and possibly paresthesis. TMIC paid for some aquatic therapy and some land-based therapeutic exercise for a reasonable trial period, but Dr. Fahey stated that all such therapy after August 23, 2005, was unnecessary. He pointed out that much of the aquatic therapy did not even involve Claimant’s hand or wrist, and that aquatic therapy is usually appropriate for weight-bearing parts of the body. He stated that the neuromuscular re-education was unnecessary because there was no evidence of a loss of neurological function, although he acknowledged in cross-examination that a needle EMG exam might indicate some neurological problem. Further, the ultrasound, joint mobilization, and myofascial release provided in late September might have been appropriate for a flare-up of her condition, but there was no evidence of such an acute exacerbation of her problems. With respect to the office visits, Dr. Fahey testified that there was no documentation supporting the level-three billing.

F. Analysis and Conclusion

The ALJ agrees with the IRO’s determination that there is insufficient evidence to support the necessity of the aquatic therapy. Claimant underwent aquatic therapy every few days for over a month.^[7] As described by Dr. Davidson, many of the aquatic exercises related to body areas other than Claimant’s wrist and arm. This fact, coupled with the lack of documentation of any specific reason why deep water work would be necessary for this patient, makes the use of this therapy appear highly questionable.

As for the land-based therapeutic exercises, Dr. Davidson’s blanket statement that he has a policy of always providing one-on-one attendance to prevent re-injury is insufficient medical justification for billing under the 97110 CPT code. With respect to the passive therapies provided on one occasion in late September, Dr. Fahey was persuasive when he testified that such therapies were unwarranted so long after the initial injury in the absence of an exacerbation of symptoms, and the documentation revealed no such event. In fact, Dr. Davidson’s clinic notes from that day indicate that Claimant’s condition was improved.^[8]

According to the Table of Disputed Services, Dr. Davidson billed for higher-level office visits on the following dates: September 23, 24, 26, 27, and 30; October 1, 4, 8, 10, 12, 15, 17, and 18; and November 11, 14 and 15, 2002.^[9] All of these office visits were billed under CPT Code 99213, except for the visit on October 1, which was billed for under 99215. The 1996 Medical Fee Guideline (MFG), which is applicable to these services,^[10] provides that office visits under 99213 require two of the following three components: an expanded problem focused history, an expanded problem focused examination, and medical decision making of low complexity.^[11] Dr. Fahey testified that 99213 is not meant for routine visits, but should be employed on approximately a monthly basis. The ALJ agrees that Dr. Davidson’s documentation does not show any justification for such frequent use of 99213, nor does it reveal the presence of two of the three necessary components for those visits.

The highest-level office visit under the MFG is 99215, which is to be used for comprehensive exams and decision making of high complexity.^[12] Even though Dr. Davidson prepared a work status report on the day he billed for an office visit at the 99215 level, that report itself was unnecessary, as discussed below. Moreover, it is unclear why a patient seen every few days would require a visit of the highest possible scope and complexity for the preparation of a work status report.

Dr. Davidson stated that he prepared work status reports regardless of whether they had been requested by the carrier or employer. However, the Commission’s rules provide:

The doctor shall file the Work Status Report:

1. after the initial examination of the employee, regardless of the employee’s work status;
2. when the employee experiences a change in work status or a substantial change in activity restrictions; and
3. on the schedule requested by the insurance carrier (carrier), its agent, or the employer requesting the report through its carrier, which shall not exceed one report every two weeks and which shall be based upon the doctor’s scheduled appointments with the employee.^[13]

It is not clear from the record that any of these conditions were met for the report prepared on October 1, 2002.

Finally, the charges for Claimant’s transportation to the clinic are not reimbursable. They do not constitute “health care” as defined under the Labor Code.^[14]

As to all of the disputed services in this case, Dr. Davidson has failed to meet his burden to show that they were reasonable and necessary health care.

II.

FINDINGS OF FACT

1. Texas Mutual Insurance Company (TMIC) is the workers’ compensation insurer with respect to the claims at issue in this case.
2. Claimant was injured in ___ when she began experiencing left wrist/upper extremity pain resulting from repetitive use in her job as a machine operator assembling computer parts.
3. In late August 2002 Claimant began a course of physical therapy administered by Truman Davidson, D.C., focusing on the wrist, arm and/or hand.
4. The disputed dates of service in this case are August 23, 2002, through November 15, 2002.
5. Dr. Davidson billed for the disputed services under the following CPT codes:

CPT CodeService

97113 Aquatic therapy

97110 Therapeutic exercises

99213 Office visits (level 3)

99215 Office visit (level 5) (one)

99082 Unusual travel

97112 Neuromuscular re-education (one unit)

97265 Joint mobilization (one unit)

97250 Myofascial release (one unit)

97032 Electrical stimulation (one unit)

6. 99080-73 TWCC-73 work status report.
7. TMIC denied reimbursement for these services under denial code U, indicating unnecessary treatment.
8. Dr. Davidson sought medical dispute resolution.
9. In a decision dated September 3, 2003, and amended May 24, 2004, an independent review organization (IRO) determined that the disputed services were not medically necessary. The IRO reviewer indicated that the reasons for the disputed services were not sufficiently spelled out in the record.
10. The Medical Review Division of the Texas Workers’ Compensation Commission (Commission) issued its order, based on the IRO decision, on June 2, 2004.
11. Dr. Davison requested a hearing.
12. Notice of the hearing was issued on July 16, 2004.
13. The notice contained a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
14. The hearing was convened May 24, 2005, before State Office of Administrative Hearings (SOAH) Judge Shannon Kilgore. Dr. Davidson appeared by telephone on his own behalf. Tim Riley, attorney, represented TMIC. The hearing adjourned, and the record closed, the same day.
15. Claimant underwent aquatic therapy every few days for over a month.
16. Much of the aquatic therapy billed for under CPT Code 97113 involved exercises related to body areas other than Claimant’s wrist and arm.
17. There is insufficient medical justification for land-based exercises, billed for under the 97110 CPT Code, requiring one-on-one attendance.
18. Dr. Davidson’s clinic notes from September 26, 2002, indicate that Claimant’s condition that day was improved.
19. There is insufficient medical justification for the therapies provided on September 26, 2002 B neuromuscular re-education (97112), joint mobilization (97265), myofascial release (97250), and electrical stimulation (97032).
20. Dr. Davidson billed for at least 15 office visits under CPT Code 99213 in September, October, and November 2002.
21. For the office visits billed for under CPT Code 99213, Dr. Davidson’s documentation does not demonstrate the occurrence of two of the following three components: an expanded problem focused history, an expanded problem focused examination, and medical decision making of low complexity.
22. Dr. Davidson billed for an office visit on October 1, 2002, under CPT Code 99215, which is the highest-level office visit code, to be used for comprehensive exams and decision making of high complexity. The documentation does not demonstrate the necessity of a visit of the highest possible scope and complexity that day.
23. The work status report prepared by Dr. Davidson on October 1, 2002, was not prepared pursuant to an initial examination, a change in work status or substantial change in activity restrictions, or a request from the carrier or employer.
24. The disputed therapies provided by Dr. Davidson to Claimant from August 23 through November 15, 2002, were not reasonable and necessary to treat Claimant’s compensable injuries.

III.

CONCLUSIONS OF LAW

1. The Commission has jurisdiction over this matter. Tex. Lab. Code ch. 401 et seq. (the Act).
2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order. Tex. Lab. Code § 413.031; Tex. Gov’t Code ch. 2003.
3. Adequate and timely notice of the hearing was provided in accordance with the Administrative Procedure Act. Tex. Gov’t Code § 2001.052.
4. Provider has the burden of proof in this matter. 28 Tex. Admin. Code ch.148; Tex. Labor Code § 413.031.
5. An employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. Tex. Lab. Code § 408.021.
6. The 1996 Medical Fee Guideline (MFG) is applicable to these services. 28 Tex. Admin. Code §§ 134.201 and 134.202.
7. Office visits under 99213 must involve two of the following three components: an expanded problem focused history, an expanded problem focused examination, and medical decision making of low complexity. 1996 MFG at 19.
8. The highest-level office visit CPT code under the MFG is 99215, which is to be used for comprehensive exams and decision making of high complexity. 1996 MFG at 20.
9. The Commission’s rules provide that a doctor shall file a work status report after the initial examination of the employee, when the employee experiences a change in work status or a substantial change in activity restrictions, and on the schedule requested by the insurance carrier or the employer requesting the report through its carrier. 28 Tex. Admin. Code § 129.5(d).
10. Charges by providers for claimants’ transportation to health care facilities do not constitute reimbursable “health care” as defined under the Labor Code. Tex. Labor Code § 401.011(19).

ORDER

IT IS THEREFORE ORDERED that Texas Mutual Insurance Company need not reimburse Truman Davidson, D.C., for the disputed services provided to claimant ___ from August 23 through November 15, 2002.

Issued July 22, 2005.

SHANNON KILGORE ADMINISTRATIVE LAW JUDGE

STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. TMIC Exhibit A at 81-133.↑
2. Petitioner Exhibit 9.↑
3. The parties agree that work conditioning services provided between November 15 and November 27, 2002, are not at issue here.↑
4. 28 Tex. Admin. Code §148.14; Tex. Labor Code § 413.031.↑
5. Tex. Lab. Code § 408.021.↑
6. Tex. Lab. Code § 401.011(19).↑
7. In the early weeks TMIC paid for some, but not all, of the aquatic therapy. By so doing, however, TMIC has not waived its arguments about medical necessity.↑
8. Petitioner Exhibit 12 at 80.↑
9. TMIC Exhibit A at 12-35.↑
10. 28 Tex. Admin. Code§§ 134.201 and 134.202. For services rendered following August 1, 2003, the 2002 Medical Fee Guideline is applicable. 28 Tex. Admin. Code § 134.202; Texas AFL-CIO v. Texas Workers Compensation Commission, 137 S.W.3d 342 (Tex. AppBAustin 2004).↑
11. 1996 Medical Fee Guideline at 19.↑
12. 1996 Medical Fee Guideline at 20.↑
13. 28 Tex. Admin. Code § 129.5(d).↑
14. Tex. Labor Code § 401.011(19).↑