DECISION AND ORDER

I. INTRODUCTION

Pain and Recovery Clinic North (Provider) appealed the Findings and Decision of the Texas Workers’ Compensation Commission (Commission) denying reimbursement to Petitioner for chiropractic treatments and office visits provided to Claimant from March 10, 2003 through April 17, 2003, on the grounds that the services were not medically necessary. This decision denies the relief sought by Provider.

II. BACKGROUND

On ___, Claimant ___ was working at his construction job when he fell approximately twenty to thirty feet from a platform that was not secured. Both of Claimant’s knees were injured. At the time, Claimant was 38-years old. He initially was treated at Ben Taub Hospital where he underwent x-rays and was released after a determination that there were no fractures. On September 3, 2002, Claimant was examined by Dr. Warren Dailey and was diagnosed with internal derangement of both knees and sprain/strain of both thighs. Dr. Dailey referred Claimant for an MRI, an orthopedic consultation by Dr. Lubor Jarolimek, and physical therapy at the Pain and Recovery Clinic North

(Provider).^[1] Claimant received an extensive course of physical therapy and other services until at

least June 2003. The disputed services include CPT Codes 99213 (office visits), 97110 (therapeutic exam), 97250 (joint mobilization), and 97265 (myofascial release) from March 10, 2003, through April 17, 2003^[2].

III. HEARING AND EVIDENCE

The hearing convened on February 10, 2005, before Administrative Law Judge (ALJ) Suzanne Formby Marshall. William Maxwell, attorney, represented Petitioner. Carrier was represented by Rhett Robinson, attorney. There were no contested issues of notice or jurisdiction. The hearing adjourned and the record closed on February 11, 2005.

Provider presented the testimony of Dr. Nestor Martinez and introduced documents contained in Provider’s Exhibit 1 into evidence. According to Dr. Martinez, he is certified by the American Academy of Disability Physicians and is a member of the Texas Chiropractic Association. He is on the Commission’s approved doctors list and is certified to give impairment ratings. Dr. Martinez was not Claimant’s treating physician and does not have personal knowledge about Claimant’s condition

or why the specific course of treatment was appropriate. His testimony merely consisted of a recitation or summary of the documentary evidence admitted into evidence.^[3] As such, it was not persuasive, nor particularly helpful to the ALJ in evaluating whether the treatment was necessary.

On October 15, 2002, Dr. Jarolimek performed arthroscopic surgery to repair a medial meniscal tear on Claimant’s right knee. He also referred Claimant for post-surgery therapy, consisting of passive care. Claimant was then referred by Dr. Jarolimek for active physical therapy in November 2002, yet Claimant continued to complain of persistent pain. In December 2002, a designated doctor, Dr. Liza Banaag, found that Claimant had not yet reached maximum medical improvement, noting that he was still recovering from the arthroscopic surgery.

On January 7, 2003, Dr. Jarolimek observed that Claimant had full motion of the right knee and that the knee was stable, with right quadriceps atrophy. Provider’s Exhibit 1, p. 40. Active physical therapy was continued. Dr. Jarolimek examined Claimant on March 24, 2003, and concluded that most of Claimant’s residual symptoms resulted from chondromalacia. He recommended nonsteroidal anti-inflammatories for occasional discomfort. Provider’s Exhibit 1,

p. 49.

A Functional Capacity Assessment was performed on Claimant on April 8, 2003 by Gulf Coast Functional Testing. The evaluator concluded that Claimant was a candidate for a work hardening program.^[4] Dr. Stephen Densen performed another designated doctor examination of Claimant in August 2003 and found that he had still not reached maximum medical improvement. On November 6, 2003, a Functional Capacity Assessment indicated that Claimant had reached maximum medical improvement with a 6% whole person impairment.

Dr. Roger Cunard performed a peer review on March 10, 2003, and was asked about the necessity of chiropractic care post-operative to the right knee arthroscopy. It appears that Dr. Cunard considered the time frame from September 16, 2002 through January 16, 2003, which is prior to the disputed services at issue. However, Dr. Cunard found that chiropractic treatment in and of itself was not medically necessary to treat Claimant’s condition. He noted that post-operative rehabilitation would be appropriate for four to six weeks, three times a week.^[5]

On May 6, 2003, Dr. Gary Freeman performed a required medical examination. Dr. Freeman noted that Claimant had been off work since his surgery and described this as “an excessive period of time.” Provider’s Exhibit 1, p. 104. He also noted that the medical reports available for review did not indicate any objective, ongoing pathology that would support Claimant’s claims that his condition did not seem to improve. Dr. Freeman disputed the need for the arthroscopic surgery at all, stating that the MRI results indicated degenerative changes that would have existed regardless of the injury. The ongoing treatment provided to Claimant was, in Dr. Freeman’s opinion, unreasonable, unnecessary and excessive. The ALJ finds Dr. Freeman’s assessment to be persuasive in this case.

The medical records admitted into the evidence do not contain preauthorization by Carrier for the physical therapy services provided during the relevant time period, nor do they contain SOAP notes or other notes indicating the type of services provided, the date they were performed, who performed them, or why they were performed. Further, there is nothing in the record to document Claimant’s response to the therapy or whether, and why, any adjustments were made to the services when Claimant’s condition did not improve. Lastly, the evidence indicates that Claimant’s condition had improved to the extent that he regained full range of motion in his right knee and as such, he did not require the extensive course of treatment he received.

IV. CONCLUSION

Provider did not meet its burden of proving that the disputed services were medically necessary. Accordingly, Provider is not entitled to reimbursement for the disputed services provided to Claimant.

V. FINDINGS OF FACT

1. ___ (Claimant) is a 39-year old male who injured his knees on ___, when he fell from an unsecured platform while performing construction work.
2. Claimant was initially treated at a local emergency room, received x-rays and was released upon a finding that there were no fractures.
3. On September 3, 2002, Claimant was examined by Dr. Warren Dailey who diagnosed Claimant as having internal derangement of both knees and sprain/strain of both thighs.
4. Dr. Dailey referred Claimant for an MRI, an orthopedic consultation by Dr. Lubor Jarolimek, and physical therapy at the Pain and Recovery Clinic North (Provider).
5. Dr. Jarolimek performed arthroscopic surgery on Claimant’s right knee on October 15, 2002.
6. Dr. Jarolimek referred Claimant for post-surgery physical therapy.
7. Claimant continued with physical therapy from October 15, 2002, through at least April 17, 2003.
8. By January 7, 2003, Claimant had recovered the full range of motion for his right knee.
9. Provider failed to provide adequate documentation of the rationale for continued passive therapy and for the specific therapies that were provided to Claimant during the relevant time period.
10. Provider failed to provide evidence that St. Paul Fire and Marine Insurance Company (Carrier) had authorized the services for the disputed dates in issue.
11. Provider requested reimbursement for the disputed services.
12. Dr. Gary Freeman reviewed the medical records of Claimant and concluded that there was no medical necessity for the chiropractic treatment provided to Claimant.
13. Carrier denied reimbursement for the disputed services.
14. The Texas Workers’ Compensation Commission (Commission) adopted the decision of the Independent Review Organization and denied reimbursement for the disputed services.
15. Provider timely requested a hearing to contest the Commission’s decision.
16. All parties received not less than ten days’ notice of the time, place, and nature of the hearing; the legal authority and jurisdiction under which the hearing was to be held; the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
17. A hearing was convened by Administrative Law Judge Suzanne Formby Marshall on February 10, 2005, in the hearing rooms of the State Office of Administrative Hearings. The record closed February 11, 2005.
18. The services provided to Claimant during the relevant dates of service were not medically necessary to treat Claimant’s condition.

VI. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers’ Compensation Act, Tex. Lab. 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 Tex. Lab. Code Ann. § 413.031(k) and Tex. Gov’t. Code Ann. ch. 2003.
3. Provider timely requested a hearing in this matter pursuant to 28 Tex. Admin. Code (TAC) § 102.7 and 148.3.
4. Notice of the hearing was proper and complied with the requirements of Tex. Gov’t. Code Ann. ch. 2001.
5. Provider had the burden of proving, by a preponderance of the evidence, that the provided services were medically necessary. 28 TAC §§ 148.21(h) and (i); 1 TAC §155.41(b).
6. Provider failed to meet its burden of proving that the disputed services were medically necessary for the treatment of Claimant’s injury.
7. Based upon the above Findings of Fact and Conclusions of Law, Provider is not entitled to reimbursement for the disputed services.

ORDER

THEREFOREIT IS ORDERED that Provider Pain & Recovery Clinic North, is not entitled to reimbursement from Respondent St Paul Fire & Marine Insurance Company for the disputed services provided to Claimant from March 10, 2003, through April 17, 2003.

Signed APRIL 11, 2005.

SUZANNE FORMBY MARSHALL
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Dr. Diley also put Claimant in an Aoff-duty work status.↑
2. The disputed dates of service are March 10, 12, 13, 17, 20, 22, 24, 26, 28, 31, and April 2, 5, 7, 9, 15, 16, and 17, 2005. The amount in controversy is $5,848.00.↑
3. Further, Dr. Martinez= responses to questions were primarily non-responsive and constituted long, rambling offerings of information that he thought was important. The ALJ had to repeatedly instruct the witness to be responsive. This type of testimony only detracted from Dr. Martinez= credibility and further supported Carrier’s contention that there was not much substance to the services provided.↑
4. Apparently Claimant participated in a work hardening but failed the program, according to Dr. Dailey. Provider’s Exhibit 1, p. 66. Dr. Dailey recommended that Claimant undergo a chronic pain management program.↑
5. This period would have ended well before the time period at issue in this case.↑