DECISION AND ORDER

Gabriel Gutierrez D.C. seeks reimbursement for work hardening services provided to Claimant_____. _______, which is self-insured, denied payment. The Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) denied reimbursement. Dr. Gutierrez appealed the MRD’s order. This decision concludes that Dr. Gutierrez is not entitled to reimbursement because he failed to establish the medical necessity of the work hardening program.

I.PROCEDURAL HISTORY

Administrative Law Judge Katherine L. Smith (ALJ) convened the hearing on November 6, 2002, at the William P. Clements Building, 300 West 15^th Street, Austin, Texas. Dr. Gutierrez testified by telephone and was represented by Phillip Orth, an attorney. ____ was represented by Tom Lueders, an attorney. The Commission did not appear. The parties did not contest notice or jurisdiction.

II. BACKGROUND

Claimant, who is_____, sustained a work-related injury on____. She was diagnosed with a right inguinal hernia, upon which Dr. Steven Thomas performed surgery on March 3, 2000. At issue are work hardening sessions that Dr. Gutierrez provided Claimant between August 16, 2000, to September 20, 2000. _____ Initially denied payment using denial code E, disputing liability for the claim, and on reconsideration asserted code V, claiming the treatment was unnecessary per peer review. Relying on the Spine Treatment Guideline,^[1] the MRD ruled that it was unable to determine the necessity of the treatment because the documentation did not support the need for such an extensive program.

III. DISCUSSION

A. Dr. Gutierrez’s position

Dr. Gutierrez began treating Claimant in June 2000 because she still reported pain after the surgery. He first treated Claimant with passive modalities and then active physical therapy, which still did not relieve her pain. Relying on the Lower Extremities Treatment Guideline (LETG),^[2] Dr. Gutierrez tried work hardening because Claimant had lost physical conditioning. He testified that work hardening is an appropriate treatment in the secondary and tertiary phases for LETG Diagnosis Code 843.0 -strain/sprain iliofemoral ligament,^[3] which he said was the same place as the hernia, and for myofascial pain syndrome.^[4] He asserted that the work hardening was reasonable and necessary because Claimant was functioning at a level below her job requirement, which included lifting and folding-up heavy cafeteria tables. He testified further that after work hardening Claimant functionally improved to a degree so that she had a better chance of tolerating her job duties.

B. Carrier’s position

Carrier’s expert witness, Jeffrey Cunningham, D.C. testified that work hardening is not appropriate treatment after a hernia repair. The normal course of treatment is rest, return to work with light duties for six weeks, and then full duty, as Dr. Thomas recommended. If Claimant had continued weakness, active rehabilitation was appropriate. Although he recognized the value of a psychological evaluation when someone has a fear of pain, Dr. Cunningham questioned the effectiveness of group therapy and suggested that biofeedback or individual sessions with a therapist would be more appropriate. He stated further that fear of working was not an indicator for work hardening and that Claimant exhibited symptom magnification.

C. ALJ’s Analysis

Work hardening programs are interdisciplinary and intended to address the functional, physical, behavioral, and vocational needs of the injured worker. The Commission has adopted rules governing work hardening programs. The rules, found in the LETG and Medical Fee Guideline (MFG), relate to, among other things, when work hardening is appropriate, how such programs are to be administered and billed, and what documentation is required of work hardening providers.^[5]

The ALJ agrees with _____ that work hardening was not medically reasonable and necessary in this case. As Dr. Cunningham testified, there is no basis for work hardening being an appropriate treatment for an inguinal hernia. Although Dr. Gutierrez testified that he relied on the LETG because the hernia was in the same place as the iliofemoral ligament, he neither testified nor does the medical record indicate that Claimant suffered from a strain/sprain of the iliofemoral ligament. Throughout the medical record the primary diagnosis was a hernia and secondarily abdominal pain. Ex. 1 at 71. Dr. Thomas’s surgical notes place the injury near the inguinal ligament and Cooper’s ligament, not the iliofemoral ligament. Ex. 1 at 187.

Even if a hernia could properly be treated with work hardening, the documentation supporting the program is questionable. According to MFG Medicine Ground Rule II. E. 1., work hardening is appropriate for a person whose level of functioning due to an injury interferes with his or her ability to perform specific tasks in the work place. When determining whether an injured worker is an appropriate candidate for work hardening, a health care provider should identify specific tasks required in the work place and then test the worker’s ability to perform those tasks. Dr. Gutierrez did not obtain a job description from Claimant’s employer, although he may have tried to. Although there was a treatment plan, none of the documentation contains either a detailed job description or identifiable tasks that Claimant could not perform. Ex. 1 at 76-77. In addition, the treatment plan and final FCE give inconsistent Occupational Physical Demand levels, that is, “medium” versus “heavy.” Ex. 1 at 72, 77.

Furthermore, the record did not include the initial FCE from which to evaluate the goals that were set and Claimant’s initial condition to determine whether progress was made. That Claimant may have improved her ability to function is not surprising considering the amount of attention she received. As Dr. Cunningham suggested, a good rehabilitation program may have provided the same result. Moreover, that Claimant was still complaining at the end of the program that her “health now limits gripping or opening a can” and “handling of small items such as a pen or coins” suggests little improvement or symptom magnification. Ex. 1 at 129.

Because there was no initial FCE, the documentation also fails to demonstrate the need for mental health treatment. Subsequent documentation suggests inconsistent mental health needs. On the one hand she reported that she “felt calm and peaceful most of the time “and “had very mild bodily pain that interfered a little bit with normal work activities,” but at the very same time she also reported that she “felt downhearted and depressed most of the time” and that her “physical health resulted in limited work or other regular daily activities.” Ex. 1 at 121.

The MFG Medicine Ground Rules also provide that daily treatment and response to treatment be documented and reviewed to ensure continued progress. MFG Medicine Ground Rule II. E. 8. Although Dr. Gutierrez’s work hardening notes document daily treatment, the notes demonstrate little, if any, of Claimant’s response to the treatment and that she understood the treatment, which is a requirement pursuant to LETG Ground Rule (e)(2)(C) and (3)(B). If anything the documentation reflects that Claimant had little understanding about the program and its goals. Ex. at Ex. 1 at 118‑129.

Accordingly, the ALJ finds that Dr. Gutierrez failed to show that work hardening was medically necessary.

IV. FINDINGS OF FACT

1. Claimant, _____, sustained a compensable injury on_____.
2. At the time of the injury, Claimant was employed by ____ which is self-insured.
3. Claimant was diagnosed with a right inguinal hernia, upon which Dr. Steven Thomas performed surgery on March 3, 2000.
4. Dr. Gutierrez began treating Claimant in June 2000 because she still reported pain after the surgery.
5. Claimant underwent 22 work hardening sessions from August 16, 2000, to September 20, 2000.
6. The ______ denied reimbursement for the work hardening sessions based on lack of medical necessity.
7. Dr. Gutierrez appealed the reimbursement denial to the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) on August 16, 2001.
8. On March 21, 2001, the MRD concluded that the work hardening program was not medically necessary based on a review of the medical documentation.
9. Dr. Gutierrez filed a request for a hearing on April 18, 2002.
10. The Commission sent notice of the hearing to the parties on May 23, 2002. 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.
11. Work hardening is not an appropriate treatment for a hernia.
12. The treatment plan did not include a description of Claimant’s job duties and did not identify the tasks that Claimant could not perform.
13. The documentation contained inconsistent occupational physical demand levels.
14. There was no initial FCE from which to evaluate Claimant’s initial condition and the goals that were set to determine whether progress was made.
15. The documentation failed to demonstrate the need for mental health treatment.
16. The documentation failed to demonstrate Claimant’s understanding of and response to the treatment.

V. CONCLUSIONS OF LAW

1. The Commission has jurisdiction over this matter 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. §§ 402.073 and 413.031(k) and Tex. Gov’t Code Ann. ch. 2003.
3. Adequate and timely notice of the hearing was provided according to Tex. Gov’t Code Ann. ch. 2001 and 28 TAC § 148.4(b).
4. Dr. Gutierrez had the burden of proving the case by a preponderance of the evidence, pursuant to 28 Tex. Admin. Code (TAC) § 148.21(h) and (i).
5. Claimant did not meet the criteria for admission into a work hardening program because her injury was not covered by the Lower Extremities Treatment Guideline (LETG), 28 TAC 134.1003.
6. The documentation provided failed to show that the admission criteria of a work hardening program were met according to Medical Fee Guideline (MFG) Medicine Ground Rule II. E. 1 and 2 at 28 TAC § 134.201.
7. The documentation provided failed to meet the requirements of MFG Medicine Ground Rule II. E. 8 and LETG Ground Rule (e)(2)(C) and (3)(B).
8. Enrollment in a work hardening program was not reasonably required health care under Tex. Lab. Code Ann. § 408.021.
9. Based on the foregoing findings of fact and conclusions of law, Dr. Gutierrez is not entitled to reimbursement for the work hardening program.

ORDER

It is, therefore, ordered that the ________is not required reimbursing the amounts billed for the work hardening program.

Signed this 17^th day of January 2003.

KATHERINE L. SMITH
Administrative Law Judge
State Office of Administrative Hearing

1. 28 Tex. Admin. Code (TAC) § 134.1001.↑
2. 28 TAC § 134.1003.↑
3. 28 TAC § 134.1003 (f)(6)(A), Figure 25.↑
4. 28 TAC § 134.1003 (f)(7)(T), Figure 50 & 28 TAC § 134.1003 (f)(7)(U), Figure 51.↑
5. Medical Fee Guideline Medicine Ground Rule II. E. at 28 TAC § 134.201.↑