DECISION AND ORDER

Rehab 2112 (Rehab) appealed a decision of the Texas Workers Compensation Commission (Commission) Medical Review Division (MRD) denying its claim for work hardening treatments. Hartford Insurance Company (Hartford) denied the claims based on its assertion that Rehab’s documentation indicated most treatments were primarily single disciplinary with emphasis on conditioning tasks normally associated with work conditioning and that other treatments were not medically necessary. Rehab argued the work hardening treatments were medically necessary and it is entitled to $3,276.80 in reimbursement. This proposal concludes the claims should be denied.

I. Procedural History

The State Office of Administrative Hearings (SOAH) has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. §413.031(d) and Tex. Gov’t Code Ann. ch. 2003. As there are no issues concerning notice or jurisdiction, those matters are addressed in the findings of fact and conclusions of law without further discussion here.

A hearing on the appeal convened on February 5, 2002, with the undersigned Administrative Law Judge (ALJ) presiding. Rafael de la Garza II, Attorney, represented Rehab. Charles C. Finch, Attorney, represented Hartford. The MRD did not appear at the hearing. The evidentiary portion of the hearing concluded on February 5, 2002, but the record was left open until February 19, 2002, for the parties to file briefs. Both parties filed briefs and the record closed on that date.

II. Right To Health Care

Employees have a right to necessary health treatment under Tex. Lab. Code Ann. (the Act) § 408.021 and 401.011. Section 408.021 of the Act provides:

(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.

Section 401.011(19) of the Act provides that health care includes “all reasonable and necessary medical . . . services.”

III. Discussion

On ___________, Claimant ____ suffered a compensable lower back injury while lifting or pulling heavy metal plates. He has been unable to work since December 20, 1999. The Claimant presented to Cary Fabacher, D.C., who ordered magnetic resonance imaging (MRI). The MRI showed a two millimeter central disc protrusion at the L5-S1 level of his spine, in the presence of disc desiccation change, with no indications of indentations in the thecal sac.^[1]

Dr. Fabacher treated the Claimant with passive care, after which, on January 18, 2000, he referred the Claimant to Rehab for evaluation and treatment. Rehab performed an initial functional capacity evaluation (FCE) on January 20, 2000, to determine whether the Claimant could return to work. He could not do so. It placed him in active rehabilitation therapy and then into work hardening beginning on February 8, 2000, and ending on March 28, 2000.

As Appellant, Rehab had the burden of proof. 28 Tex. Admin. Code (TAC) ‘148.21(h).

1. Rehab
2. Michael T. Smith, D.C.

Dr. Smith is the Rehab medical coordinator. His duties include assisting in quality control, documentation, determining whether referrals are appropriate, and ensuring safety guidelines. He testified as follows:

• Work hardening is more intense than other treatments. It permits a multi-disciplinary program of up to eight hours per day.
• The Claimant’s initial FCE showed he tested “light,” at about 20 pounds, in lifting ability. The physical demand level for his job was “heavy,” requiring lifting up to 100 pounds.
• Based on the FCE, Rehab concluded “This patient is a good candidate for active rehabilitation with possible progression to work hardening.”^[2]
• Rehab prescribed active rehabilitation at three times per week with periodic evaluation to determine progress. Its goal was to treat the Claimant in the most cost effective, least intensive manner consistent with his needs.
• The rehabilitation began on January 26, 2000.
• The Claimant was considered “non-compliant” with the three-time-per-week regimen, meaning he did not have a valid excuse for failing to attend the program.
• Based on the Claimant’s limited response and the initial FCE, Rehab decided to place him in work hardening, which it considered a more structured environment.
• The decision to place the Claimant in work hardening was made by a chiropractor and a physical therapist. The basis of their evaluation was the initial FCE.
• Rehab formulated a daily program of seven hours per day of treatments for six weeks.
• Overall, the Claimant made good but limited progress. His lifting ability increased from 20 to 50 pounds from knuckle to shoulder, 10 to 30 pounds from floor to knuckle, and 10 to 20 pounds from floor to shoulder.^[3]
• The Claimant was taken off the program in February, put on “medical hold,” and returned to Dr. Fabacher because of intense pain and perceived pain. He was returned to the program later and completed it.
• He does not agree with a recommendation against chiropractic care contained in an independent medical review (IME) dated June 2, 2000, from Jack A. Kern, M.D.^[4] Dr. Kern recommended walking for exercise at home, workouts in the swimming pool, and taking medications for pain and inflamation. He pointed out the IME was performed two months after the work hardening treatments ended. He acknowledged the Claimant thought his condition was worse, but disagreed with Dr. Kern’s conclusion that work hardening actually worsened his condition.
• Rehab made a very aggressive attempt to return the Claimant to work. He made some progress. No facility can guarantee a completely successful outcome.
• The Claimant was eventually returned to work on light duty (in August 2000) with an impairment rating of eight percent.

Multi-Disciplinary Treatment

• In addition to deficiencies in strength and endurance, the FCE showed positive psychological indicators.
• A key reason for deciding to treat the Claimant with work hardening was his psychological barriers to improvement. The FCE and the stress and life style survey^[5] were important elements in determining the need for psychological help. The survey and FCE were evaluated by a licensed psychologist.
• Professionals involved in the Claimant’s treatment included a chiropractor, physical therapists, and a psychologist.
• The Rehab treatment plan for the Claimant included psychological counseling. A Rehab psychologist was involved in weekly group counseling sessions and in case management. Case management is a weekly study to assist in furthering a patient’s progression.
• He does not agree with certain conclusions in a peer review dated April 5, 2000, and follow-up dated May 12, 2000, performed by Leonard Hershkowitz, M.D.^[6] In his opinion, the Claimant clearly needed the structured environment that was provided by a work hardening program. The Claimant had emotional or psychological difficulties with a lower intensity program, as shown in a stress survey, which revealed his fears and other limiting issues concerning his returning to work. The Claimant was not a threat to himself or others. He would have achieved a poor outcome without a structured setting even with psychological help available.
• Work hardening daily notes^[7] show exactly what the Claimant did. They include group counseling and vocational need counseling based on a review of the Claimant’s records.
• The Claimant made progress in his psychological disability percentage rating, based on his perception of his disability, improving from 38 percent in his initial FCE to 32 percent in his final FCE.^[8]

1. Contentions

Rehab maintained the Claimant’s limited progress with active and passive modalities justified the work hardening program. It contended he had two to three weeks of passive care, an initial FCE with identifiable physical and psychological deficiencies, and a recommendation for active rehabilitation with possible progression to work hardening.

Rehab pointed out that the Commission-adopted Medical Fee Guideline (MFG)^[9] requires an injured worker to be likely to benefit from the program rather than that he will benefit, and that the worker’s functioning level must be below job requirements.^[10] The Claimant’s physical demand level was “light” but his job requirements were “heavy.” There were also range of motion, endurance, and psychological limitations.

Rehab contended it proved that a less intensive setting would not have been appropriate due to the Claimant’s limited progress prior to work hardening. It asserted the non-compliance issues coupled with his initial FCE results showed a more structured program was necessary. This was also shown by his continued limitations even after the work hardening course ended.

Rehab maintained the Oswestry Disability Questionnaire^[11] showed the Claimant had psychological barriers which required a multi-disciplinary approach. It argued the questionnaire is an industry standard for evaluating a patient’s perception of function and disability designed to determine whether workers are a threat to themselves or others, could benefit from stress counseling, and could benefit from individual services resulting from psychological deficiencies. Rehab asserted it requires all psychological tests to be reviewed by a psychologist.

Rehab acknowledged the Claimant was not released to return to work but asserted he did make some progress. It contended the fact a worker does not meet the goal of returning to work does not mean he or she was not a candidate for work hardening. It cited Dr. Hershkowitz’s testimony acknowledging that he has had patients who did not respond to work hardening, and that some patients thought work hardening worsened their condition.

Rehab cited STG provisions saying it is a guide only and sometimes circumstances fall outside its parameters.^[12]

1. Hartford
2. Dr. Hershkowitz

Dr. Hershkowitz is Board certified in neurology. He testified as follows:

• The Claimant had a soft tissue injury resulting in low back pain, which he believes was lumbar strain syndrome.
• An MRI showed a two millimeter protrusion at the L5/S1 level of the Claimant’s spine that did not abut any neurological structure. There was nothing in the MRI to suggest a pinched nerve. Asymptomatic protrusions of this type are very common in the lumbar region, particularly in older people. The disc dessication indicated the two millimeter protuberance was likely there before the injury. Results of other electro-diagnostic studies of the Claimant’s lower extremities were normal.
• Work hardening is appropriate when the usual course of physical therapy has not worked for an injured worker. There may be de-conditioning and psychological issues preventing the worker from returning to work.
• It is inappropriate not to pursue a reasonable course of physical therapy, usually from six to eight weeks, before engaging in work hardening.^[13]
• One should look at objective criteria when deciding whether work hardening is appropriate. The criteria he looks for are: objective evidence of de-conditioning, whether there are psychological factors preventing a return to work, and whether there are physical problems preventing a successful work hardening program.
• He cannot tell from the documentation whether the Claimant was de-conditioned. The initial FCE is supposedly an objective test to measure what a worker is able to do against what he or she should be able to do. The clinical exam he saw demonstrated pain but not de-conditioning. After the initial FCE, the Claimant was said to need work hardening, but after the final FCE he was permitted to go back to work (on light duty) even though he was worse after the final FCE. The Claimant’s range of motion at the place of his injury-the lumber spine-actually decreased. His ability to lift his legs also worsened. A decrease in physical ability is not supposed to happen.
• Although it is possible to become de-conditioned within six to seven weeks after an injury, it usually takes longer.
• The only reference he saw in the initial FCE relating to psychological barriers was a self-inventory questionnaire. A questionnaire can be useful to have a sense of how a patient feels, but it is very subjective, i.e. it might be a basis to have the Claimant evaluated, but it is not enough to determine there are psychological barriers. He saw no evidence that a trained psychologist took any history or performed any objective evaluation. The FCE did not demonstrate psychological barriers.
• He has not sent patients to work hardening simply because they were “non-compliant” in physical therapy. The guidelines do not permit prescribing work hardening for the purpose of obtaining a more structured setting, and it does not make sense to do so. Physical therapy can be “extremely structured.” The same factors that are conducive to structure in work hardening-supervision, guidance, documentation, and emphasis on control-are also present for physical therapy.
• He believes it would have been more appropriate for the Claimant to have physical therapy with an emphasis on stretching exercises and exercises such as the McKenzie exercises to strengthen his back at the place of his symptoms.
• Dr. Smith

Dr. Smith acknowledged the following:

• There was no record of nerve root entrapment in the Claimant’s spine.
• The primary differences between work hardening and work conditioning is work conditioning is single disciplinary, with no need for psychological intervention, and is limited to four hours a day (as opposed to eight hours for work hardening^[14]).
• The recommendations for the initial FCE stated a psychological evaluation would follow if indicated.^[15] He is not aware of any individual psychological evaluation that was performed.
• The recommendations for the initial FCE said the Claimant was a good candidate for active rehabilitation with possible progression to work hardening.^[16] This means there would be a less intensive regime before attempting work hardening. The Claimant went to Rehab on January 26, 2000, and February 8, 2000, for about an hour each time for active rehabilitation.
• The goal of work hardening and work conditioning is to return the worker to work. The Claimant was not released to work after the work hardening, but returned to Dr. Fabacher. He was eventually returned to work on light duty on August 20, 2000.
• The stress and lifestyle survey was done on February 24, 2000, after the Claimant’s admission to work hardening.
• The Claimant met in group sessions with the Rehab psychologist, Kenneth Wise, on only two occasionsBFebruary 8, 2000, and March 28, 2000. There are ordinarily six weekly meetings, but there were compliance issues with the Claimant and he was put on “medical hold” for about a week during the work hardening period because of his pain.
• A factor in determining whether work hardening is necessary is the extent to which a worker becomes “de-conditioned.” This is primarily a function of the time between the injury and the beginning of the work hardening. The Claimant’s initial evaluation was six or seven weeks after his injury. Ordinarily, six to seven weeks is not enough time for de-conditioning, but it is not unusual to need work hardening after that period. On February 8^th and 9^th, the Claimant worked on a treadmill for 60 minutes and a bicycle for 30 minutes. His treadmill and bicycle work never improved over time during work hardening.

1. Contentions

Hartford asserted four grounds for denying the claim. It argued Rehab failed to prove a less intensive treatment setting would not be adequate. It cited the Commission adopted Spine Treatment Guideline (STG)^[17]at ‘ (e)(2)(A)(iii), which provides that treatment must be “provided in the most appropriate, least intensive setting.”^[18] It maintained Rehab’s only explanation at the hearing for providing work hardening was the patient’s non-compliance and the consequent need for a more structured setting. It cited Dr. Hershkowitz’s testimony that a structured setting was achievable in a less intensive program. It urged a finding that Rehab failed to prove that work hardening provided any greater guarantee against non-compliance.

Hartford contended Rehab failed to prove the Claimant needed a multi-disciplinary approach and thus did not demonstrate that the treatments were provided in the least intensive, most cost effective setting. It argued the documented testing did not support Rehab’s assertion that there were psychological barriers to the Claimant’s reentering the work place. The initial FCE indicated that a psychological evaluation was deferred until needed. The stress and lifestyle survey could not form the basis for admission to work hardening because it was done on February 24, 2000, and is merely a checklist completed by the Claimant. There is nothing to show that either a mental healthcare provider or the treating doctor evaluated the survey. A mental healthcare provider should have evaluated the Claimant. There is little in the record to show much mental health care counseling was provided to Claimant. There were only two group therapy sessions, on February 8, and March 28, 2000, and these appear to be prepared educational programs rather than focused on individual needs. The “case management weekly summary review,” cited by Rehab, deals almost exclusively with the Claimant’s physical activity and therapy with only infrequent and cursory references to psychological and vocational counseling issues.

Hartford maintained Rehab failed to prove the Claimant was de-conditioned. Dr. Smith and Dr. Hershkowitz both agreed that only a de-conditioned patient would need work hardening, and it would be unusual for a patient only two months post-injury to be de-conditioned. Thus, the Claimant did not qualify for work hardening because the treatment was not “evaluated for effectiveness and modified based on clinical changes” and was not “provided in the most appropriate, least intensive setting,” as required by the STG.^[19]

Hartford indicated that Rehab did not prove work hardening resulted in improvement in the Claimant’s functional ability. This showing is required by STGprovisions stating that treatment must result in demonstrated and measured functional gains and ongoing progress^[20] and documentation should show objective substantive and continued improvement over time.^[21] It argued that on both the initial and final FCE, he was shown as functioning at a “light” capacity. Moreover, the initial FCE showed his leg and torso lift at 68.5 and 45.3 pounds respectively,^[22] compared to 63.5 pounds and 41.1 pounds respectively on his final FCE.^[23] Dr. Smith and Dr. Kern both said the Claimant’s pain worsened.

Analysis

This decision concludes the claim should be denied because the treatments were primarily single disciplinary rather than interdisciplinary as required by the MFG work hardening definition.^[24] In addition, because psychological services were not fully provided, the work hardening was not shown to be medically necessary. The following considerations are relevant:

• Documentary evidence and testimony from both Dr. Smith and Dr. Herschkowitz showed psychological services were lacking. Although psychological services were part of the work hardening, there was no psychological evaluation before the Claimant was placed into work hardening. The January 20, 2000, FCE said a psychological evaluation would follow if indicated. The work hardening started on February 8, 2000. Dr. Smith testified that psychological intervention was a key difference between work hardening and work conditioning but acknowledged he was not aware of any psychological evaluation being performed at any time.
• Rehab’s reliance on the stress and lifestyle survey to demonstrate a need for psychological services was unpersuasive. The survey was done on February 24, 2000, more than two weeks after the work conditioning program began. Dr. Hershkowitz testified persuasively that a self-inventory questionnaire is a subjective assessment that is not an adequate substitute for an evaluation by a trained mental health care professional.
• Dr. Smith testified the FCE showed positive psychological indicators but did not say what they were, and the indicators were not expressly identified in the FCE. Rehab’s argument that the Oswestry Disability Questionnaire (contained within the initial FCE) showed the need for psychological intervention was not persuasive. It appears that all of the questions concern the Claimant’s physical pain levels. Dr. Hershkowitz’s testimony that the FCE itself did not demonstrate psychological barriers was convincing.
• The need for structure is not a sufficient psychological ground for placing a worker in work hardening. The same factors that are conducive to structure in work hardening-supervision, guidance, documentation, and emphasis on control-are present in physical therapy.
• There were only two group counseling sessions. Dr. Smith acknowledged there are ordinarily six sessions during work hardening.
• Although Dr. Smith testified a psychologist participated in the Claimant’s case management, the case management weekly summary reviews^[25] contained legible references to the Claimant’s psychological condition on three weeks only. Each indicated a need for work rather than showing work performed. The first review, dated February 15, 2000, said “Needs to complete psychological screening.” A February 22, 2000, review appears to state “Complete psychological stress survey” next to the team’s recommendation. A February 29, 2000, review appears to say “Talk to treating doctor about psych scn [screening].”
• Work hardening daily notes show “patient education” under a heading titled “Psychological/Social/Vocational” on three days only-February 8, 9, and 27, 2000. The only indication of what was done was on February 8^th and 9^th where the notation “time to move on” is stated.

Because of the above-stated conclusion, it is not necessary to address the other grounds Hartford asserted for denying the claim.

IV. Findings of Fact

1. All parties received not less than 10 days notice of the hearing, which contained a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing would be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
2. On _________, the Claimant,____ suffered a compensable lower back injury while lifting or pulling heavy metal plates. He has been unable to work since December 20, 1999.
3. The Claimant presented to Cary Fabacher, D.C., who ordered magnetic resonance imaging (MRI). The MRI showed a two millimeter central disc protrusion at the L5-S1 level of his spine, in the presence of disc desiccation change, with no indications of indentations in the thecal sac.
4. After treating the Claimant with passive care, Dr. Fabacher referred him to Rehab 2112 (Rehab) on January 18, 2000, for evaluation and treatment.
5. Rehab performed an initial functional capacity evaluation (FCE) on January 20, 2000.
6. Rehab placed the Claimant in active rehabilitation therapy and then into work hardening from February 8, 2000, until March 28, 2000.
7. The work hardening received by the Claimant was substantially single disciplinary rather than inter-disciplinary in nature.
8. There was no psychological evaluation of the Claimant before he entered work hardening or at any later time.
9. The Claimant completed a self-inventory stress and lifestyle survey on February 24, 2000, more than two weeks after he entered work hardening.
10. The Claimant completed a self-inventory Oswestry Disability Questionnaire as part of his initial FCE. The questions were about the Claimant’s physical pain levels under a variety of circumstances, including walking, lifting, personal care, sitting, standing, sleeping, sex life, social life, and traveling.
11. A self-inventory is not an adequate substitute for an evaluation by a trained mental health care professional.
12. The Claimant attended only two group counseling sessions during the work hardening even though six sessions are standard.
13. Psychological issues were mentioned on three case management weekly summary reviews. Each indicated a need for work such as psychological screening or a stress survey rather than indicating completed work.
14. Psychological issues addressed in daily notes on three days of the six weeks of work hardening.
15. Because of the substantially single disciplinary nature of the program provided to the Claimant, work hardening was not shown to be medically necessary.

V. Conclusions of Law

1. The State Office of Administrative Hearings has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. §413.031(d) 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. Rehab has the burden of proof in this matter. 28 Tex. Admin. Code § 148.21(h).
4. The work hardening program did not meet the definition of work hardening stated in Medical Fee Guideline Medicine Ground Rule II.E. 28 Tex. Admin. Code § 134.201.
5. The work hardening was not shown to be medically necessary. Tex. Lab. Code Ann. §§ 408.021 and 401.011.
6. Rehab’s claim for reimbursement for work hardening provided to the Claimant should be denied.

ORDER

IT IS, THEREFORE, ORDERED that the Rehab 2112 claim against Hartford Insurance Company to be reimbursed for work hardening for the Claimant from February 8, 2000, until March 28, 2000, be, and the same is hereby, denied.

Signed this 18^th day of April, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

JAMES W. NORMAN
Administrative Law Judge

1. Ex. 1 at 75.↑
2. Ex. 1 at 26.↑
3. Ex. 1 at 21, 34.↑
4. Ex. 1 at 76-77.↑
5. Ex. 3.↑
6. As discussed below, Dr. Hershkowitz concluded the Claimant should have had physical therapy with emphasis on stretching and exercises to help strengthen the part of his back where he had symptoms. Ex. 1 at 59.↑
7. Ex. 3.↑
8. Ex. 1 at 23 and 36.↑
9. 28 TAC ‘ 134.201.↑
10. MFG Medicine Ground Rule II.E.1.a. and b.↑
11. Ex. 1 at 36. The questionnaire asks the patient about his or her pain level during various activities, including personal care, lifting, walking, sitting, standing, sleeping, sex life, social life, and traveling.↑
12. 28 TAC ‘ 134.100(e)(2)(A)(iii).↑
13. The period could be longer or shorter depending on the circumstances of each case.↑
14. MFG Medicine Ground Rule II.D.2. states work conditioning requires a minimum of four hours per day.↑
15. Ex. 1 at 26.↑
16. Ex. 2.↑
17. 28 TAC ‘ 134.1001.↑
18. Hartford cited Part II.E. 5 of the Medicine Ground Rule portion of the MFG, which providedthat work hardening may be charged at $64 per hour and Ground Rule II.D.4, providing that work conditioning may be charged at $36 per hour.↑
19. 28 TAC ‘ 134.1001(e)(2)(A)(ii) and (iii).↑
20. 28 TAC ‘ 134.1001(e)(2)(A) (vi) and (vii).↑
21. 28 TAC ‘ 134.1001(e)(3)(D).↑
22. Ex. 1 at 32.↑
23. Ex. 1 at 19.↑
24. MFG Medicine Ground Rule II.E.↑
25. Exs. 2 and 3.↑