DECISION AND ORDER

I. Summary

Liberty Mutual Insurance Company (Carrier) sought review of a decision by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) ordering it to pay Central Texas Rehab (Provider) for work hardening services the Provider had performed for ____(Claimant) on dates of service between February 5 and March 23, 2001. The MRD concluded the Provider had fully documented the need for all services for which it billed, and had provided the service within the time frame created by agency rules. Based on the evidence, the Administrative Law Judge (Judge) concluded that the Carrier sustained its burden of proof in regard to two dates of service, but not as to any others, so should reimburse the Provider in the amount of $1,617.60. ^[1]

The hearing was held on April 15, 2002, and the record closed that day.

II. Factual Background

On____the tip of Claimant’s right thumb was amputated when it was pulled into a chain on a machine he was operating. As well as the injury to his thumb, he also strained his wrist and hand, and experienced radiating pain intermittently to his upper back and neck. (TWCC Exh. 1, P. 90). Claimant underwent reconstructive surgery on his thumb. Following the surgery he had a short course of physical therapy, then was placed in a work hardening program. Claimant’s treating physician, Dr. Dean L. Allen, D.C., declared Claimant to be at maximum medical improvement (MMI) as of April 24, 2001. The services at issue include both the treatment sessions themselves (CPT Codes 97545WH and 974545WH) and examinations of Claimant performed by Dr. Allen (CPT Code 99213).

Claimant began his work hardening program on February 5, 2001, and completed it on March 23, 2001. He participated in the program during each of those weeks, with the exception of the week beginning February 12, 2001.

At the hearing, Carrier asserted that the one-week break in Claimant’s work hardening program precluded any sessions after that week from being compensated as work hardening. That is, the Carrier asserted all sessions in March were outside a contiguous four-week period, so could not be reimbursed as they were not extensions that either could have been, or were, preauthorized. Carrier further asserted that the Provider had failed to document the medical necessity for the services it provided. For his part, the Provider countered that the work hardening sessions were, notwithstanding the one-week break, sufficiently continuous so as to fall within the meaning and intent of the applicable rule. Specifically, the Provider asserted that the Commission, as a matter of policy, treated a one-week break as de minimis stoppage which would not break the continuity of a work hardening program. The Provider also reasserted his contention, upheld by the MRD, that he had fully documented all services rendered, and that all treatment was medically necessary under applicable medical fee guidelines.

The parties agreed on many of the underlying facts. Specifically, they agreed that work hardening was an appropriate treatment for Claimant’s injury, that one office visit with a worker’s treating physician per week during a course of work hardening was reasonable, and that the Provider did not get preauthorization from the Carrier for physical therapy or any work hardening extensions at any time during the two-month period in dispute. The parties also agreed that the treatments provided were continuous, save for the week of February 12, throughout the disputed period. All the Provider’s billings were within the maximum allowable reimbursement (MAR), so are not in dispute as to amount.

III. Legal Issues

A. Break in Service

The decision in this case hinges on whether prior Commission Rule 134.600(h) permits any type of break in a course of work hardening^[2] services or whether the services must be provided on consecutive weeks. Under the version of Rule 134.600 in effect at the time of the questioned treatments, a health care provider could render up to six weeks of work hardening without preauthorization. 28 TAC 134.600(h).^[3] In pertinent part, that Rule read as follows:

(h) The health care treatments and services requiring pre-authorization are:

* * *

(11) work hardening, in excess of six weeks (limited to a one-time two-week extension); . . . (emphasis supplied).

Although the Carrier alleged that any break in service, regardless of reason, would disqualify any further weeks from reimbursement, the language of the rule does not specify that requirement. While the benefits of a work hardening program would likely dissipate if provided on a stop-and-start basis over an extended period of time, the Carrier was unable to substantiate its contention that a minimal stoppage contravened any Commission rule. After the week break, the Claimant immediately resumed the program, and completed it. In addition, Dr. Laurent Pelletier, D.C., testified that it was the Commission’s policy to treat minimal breaks as being within the rule guidelines. While testimony alone is not generally sufficient to prove up agency policy,^[4] the ALJ notes that the Carrier did not offer any countervailing evidence.Dr. Pelletier testified at the request of the Provider. Also, the MRD, presumably familiar with agency interpretation and application of its rules, did not deny the Provider reimbursement based on the break in service. Therefore, the ALJ concludes that the break in service for the week of February 12-16, 2001, did not constitute a sufficient stoppage to preclude the Provider from being reimbursed for work hardening service provided on weeks after that date that otherwise meet Commission’s rules.

B. Work Hardening Sessions

In this case, the Carrier contends that a peer review issued by Dr. Thomas D. Sato, D.C., on January 31, 2001, limited the Provider to providing four weeks of work hardening without preauthorization. (TWCC Exh. 1, P. 27). As the rule in effect in early 2002 permitted a health care provider to administer up to six weeks of work hardening without preauthorization, the Carrier’s basis of its denial is unclear. It appears the rule provided that that Dr. Allen, as the treating physician, could rely on his best medical judgment in determining how many weeks of work hardening was needed, up to the limit of six weeks listed in the rule.^[5] Certainly, Dr. Sato opined that four weeks was likely to be sufficient to allow Claimant to reach his treatment goals, but also stated that the amount of time should be left up to the treating physician.

Treatment notes prepared by Dr. Allen, or under his direction, describe activities and exercises that conform with the definition of work hardening activities in the UETG. (e.g., TWCC Exh. 1, Pp. 62-64, 74-76).

The ALJ concludes that the Carrier is obligated to reimburse Carrier for all sessions of work hardening performed between February 9, 2001, and March 23, 2001.

C. Office Visits

As noted above, the parties were in agreement that for weeks in which work hardening was performed, a weekly office visit with the treating physician to allow him or her to evaluate the worker’s progress would be reasonable. As no work hardening was performed during the week of February 12-16, 2001, the visits were not warranted in connection with that program. Further, the language in the treatment regarding those two visits is generic, and does not discuss the specific need for the treatment outside the work hardening that was under way during February. The ALJ concludes that the Provider failed to show medical necessity for two office visits on February 13 and 15, 2001. All other disputed office visits in February and March of 2001 appear to have been provided in connection with administration of the work hardening program.

During the visit on April 23, 2001, the Provider evaluated Claimant’s progress as part of his ongoing treatment and monitoring of Claimant’s advancement after the conclusion of the work hardening program. (TWCC Exh. 1, Pp. 88-90). Dr. Allen concluded that Claimant had reached maximum medical improvement (MMI) in that period. The ALJ concludes that the Provider documented the office visit of April 23, 2001, as medically necessary.

D. Physical Therapy

The Carrier also suggested that some or all of services billed by the Provider as examination during the period in dispute were, in reality, unauthorized physical therapy which the Provider had mischaracterized. The Carrier did not support this assertion with any proof, nor did it make a persuasive argument that this contested case would be the proper proceeding in which to introduce allegations of that nature for the first time. Certainly there was nothing in the MRD proceeding concluded in December of 2001 – close to a year after the dates of service – which suggested that this was an issue aired at the Commission. The ALJ therefore declines to rule on that matter.

IV. Findings of Fact

1. On_____, the tip of ____s (Claimant) right thumb was amputated when pulled into a chain on a machine he was operating.
2. As well as the injury to his thumb, Claimant also strained his wrist and hand, and experienced radiating pain intermittently to his upper back and neck.
3. Claimant underwent reconstructive surgery on his thumb.
4. Dr. Dean L. Allen, D.C., was Claimant’s treating physician in February through April of 2001. He administered six weeks of part-time work hardening to Claimant, concluding that six weeks was medically necessary to enable Claimant to return to full duty and to regain use of his injured hand after reconstruction surgery.
5. The peer reviewer, Dr. Albert Sato, D.C., agreed with Dr. Allen that work hardening was an appropriate treatment for Claimant, but estimated that four weeks of part-time treatment would allow Claimant to reach treatment goals. Dr. Sato stated the treating physician should determine the number of sessions needed.
6. Work hardening is an approved treatment under the Upper Extremities Treatment Guideline (UETG), 28 Tex. Admin Code (TAC) § 134.1002(d)(2)(A), and, in 2001, could be provided by a health care provider for up to six weeks without preauthorization under 28 TAC 134.600(h).
7. Dr. Allen began Claimant’s work hardening program on February 5, 2001, and concluded it on March 23, 2001. Claimant participated in the program for each of those weeks, with the exception of the week beginning February 12, 2001.
8. The therapeutic exercises and activities Claimant performed on each treatment date of service between February 5 and March 23, 2001, constituted work hardening within the meaning of the UETG.
9. The one-week break in service on the week of February 12, 2001, did not constitute a break in service of sufficient length to disqualify the Provider from receiving further reimbursement for work hardening sessions performed after that date.
10. During each week of work hardening, in which Claimant performed one or more sessions of assigned therapeutic exercises, Dr. Allen examined Claimant to evaluate his progress in the program. Dr. Allen examined Claimant on February 5, March 15 and 27, 2001, in support of the work hardening program.
11. Dr. Allen examined Claimant and provided manipulation twice, on February 13 and 15, 2001, but did not document the specific role those visits played in the ongoing work hardening program.
12. Dr. Allen evaluated Claimant on April 23, 2001, to determine his medical progress and degree of medical improvement. This examination was medically necessary to enable Dr. Allen to render an opinion on Claimant’s state of medical improvement.
13. The Carrier declined to reimburse the Provider for any of the services described in Findings of Fact Nos. 4 through 12, based on its conclusions that the Provider had not documented the need for the services, and that a break in service had occurred, which necessitated pre-authorization for any subsequent work hardening services provided.
14. The Provider appealed the Carrier’s denial of benefits to the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC).
15. On December 4, 2001, the MRD ordered the Carrier to reimburse the Provider for all dates of service at issue.
16. On December 18, 2001, Carrier filed a timely request for a hearing at the State Office of Administrative Hearings (SOAH) on the MRD decision.
17. On February 5, 2002, the Commission issued a notice of hearing which included the date, time, and location of the hearing, and the applicable statutes under which the hearing would be conducted; the notice stated additional facts on the nature of the matters asserted would be issued within 10 days of the hearing. The Commission timely filed statements of matters asserted.
18. SOAH Administrative Law Judge Cassandra Church convened a hearing on these issues on April 15, 2002, and the record closed on that date.

V. Conclusions of Law

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction to decide the issues presented pursuant to Tex. Labor Code §413.031.
2. SOAH has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a Decision and Order, pursuant to Tex. Labor Code § 413.031 and Tex. Gov’t Code ch. 2003.
3. The notice of hearing issued by the Commission conformed to the requirements of Tex. Gov’t Code § 2001.052 in that it 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 section of the statutes and rules involved; and a short plain statement of the matters asserted.
4. The Petitioner (Carrier) has the burden of proving by a preponderance of the evidence that it should prevail in this matter. Tex. Labor Code § 413.031.
5. Work hardening services provided to Claimant on March 15, 21-23, 2001, were medically necessary to treat Claimant’s compensable injury, within the meaning of Tex. Labor Code § 413.015 (the Act), the Medical Fee Guideline (MFG) 28 TAC §134.20, and the Upper Extremities Treatment Guideline(UETG), 28 TAC § 134.1002(d)(2)(A).
6. Office visits or evaluations of Claimant performed in conjunction with each week of the work hardening program were medically necessary to treat Claimant’s compensable injury, within the meaning of§ 413.015 of the Act, the MFG and UETG.
7. The Provider’s examination of Claimant on April 23, 2001, to determine Claimant’s medical improvement status was medically necessary to treat Claimant’s compensable injury, within the meaning of §413.015 of the Act, the MFG and UETG.
8. The Carrier met his burden of proof to show that the Provider had not adequately documented the medical necessity for office visits on February 13 and February 15, 2001, in the manner required by the MFG.
9. Under § 413.015 of the Act, the following services or treatments were medically necessary, and allowable under the MFG and UETG, to treat Claimant’s compensable injury. The Carrier is obligated under the Act to reimburse the Provider for the following treatments or services in the amounts shown:

Date of Service	Service	Reimbursement
Feb. 5, 2001	Examination	$48.00
March 15, 2001	Examination	$48.00
March 15, 2001	Work Hardening (Total units)	$356.40
March 21, 2001	Work Hardening (Total units)	$356.40
March 22, 2001	Work Hardening (Total units)	$356.40
March 23, 2001	Work Hardening (Total units)	$356.40
March 27, 2001	Examination	$48.00
April 23, 2001	Examination	$48.00

ORDER

It is hereby ordered that the Liberty Insurance Company reimburse Central Texas Rehab in the amount of $ 1,617.60 for the medical services performed for Claimant on seven dates of service between February 5 and April 23, 2001.

Signed June 5, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

CASSANDRA J. CHURCH
Administrative Law Judge

1. Post-hearing examination of its records by the Carrier confirmed that it had paid, or did not dispute, the charge of $51.20 made by the Provider for work hardening on February 9, 2001.↑
2. Work hardening–a highly structured, goal-oriented, individualized treatment program designed to maximize the ability of the persons served to return to work. Work hardening programs are interdisciplinary in nature with a capability of addressing the functional, physical, behavioral, and vocational needs of the injured worker. Work hardening provides a transition between management of the initial injury and return to work while addressing the issues of productivity, safety, physical tolerances, and work behaviors. Work hardening programs use real or simulated work activities in a relevant work environment in conjunction with physical conditioning tasks. These activities are used to progressively improve the biomechanical, neuromuscular, cardiovascular/metabolic, behavioral, attitudinal, and vocational functioning of the persons served.

Upper Extremities Treatment Guideline (UETG), 28 Tex. Admin. Code (TAC) § 134.1002 (h)(56).↑

3. The preauthorization rule was first adopted in December 1991, and in April 1, 1997. The most recent amendment, effective January 1, 2002, changed the preauthorization procedures for a course of work hardening.↑
4. The means of adoption and use by the agency of a policy, as wells as its dissemination, duration and stability, are among the factors that must be introduced, via evidence, by a party asserting an agency policy not adopted by rule governs the case at hand. 1 TAC §155.53.↑
5. In general, the applicable medical guidelines provide the treating physician a great deal of leeway in providing treatment, providing he or she justifies the need for it. The recommended “parameters” for treatments of injury to the hands and arms at various stages of recovery “serve only as a guideline and shall not be used as the sole reason for denial or requirement of treatments ands services.”UTEG§134.1002(d)(2)(A).↑