DECISION AND ORDER

Rehab 2112 (Petitioner) sought to reverse the decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) denying payment for work hardening treatments provided to workers’ compensation claimant (Claimant) between May 29 and June 12, 2001. The carrier, Twin City Fire Insurance Company (Respondent), denied Petitioner’s claim asserting that the work hardening was not medically necessary. The total amount in dispute is $4,552. Based on the evidence presented, the ALJ finds that Petitioner failed to establish the medical necessity of the work hardening program and is not entitled to reimbursement.

I. NOTICE, JURISDICTION, AND PROCEDURAL HISTORY

There were no contested issues of jurisdiction or notice. Those issues are set out only in the Findings of Fact and Conclusions of Law below.

Administrative Law Judge (ALJ) Ann Landeros convened the hearing on February 24, 2003. Attorney Douglas Pruett represented Petitioner and attorney Christine Karcher represented Respondent. The Commission did not participate in the hearing. The record closed that day.

II. DISCUSSION

A. Factual Background

Claimant sustained a compensable injury to his back and shoulder on__________. At the time of the injury, Respondent was the workers’ compensation insurer for Claimant’s employer. In May 2001, Claimant’s treating physician, chiropractor Dr. Larry Parent, referred Claimant to Petitioner for a functional capacity evaluation (FCE). Based on the FCE, Claimant was sent to Petitioner’s work hardening program (WHP) beginning May 29, 2001. Claimant did not complete the program.

Respondent denied Petitioner’s claim for reimbursement of the WHP, claiming the program was not medically necessary. In its decision upholding the denial, the MRD stated that the documentation submitted did not establish Petitioner’s WHP was multidisciplinary in nature, as required by the Commission’s Spine Treatment Guideline or that Claimant’s response to prior treatment established he would benefit from an extensive program such as work hardening. Petitioner timely appealed the MRD decision.

B. Legal Standards

Petitioner has the burden of proof in this proceeding. 28 TAC §§148.21(h) and (i); 1 TAC § 155.41. Pursuant to the Act, an employee who has sustained 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 cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. Tex. Lab. CodeAnn. § 408.021(a). Health care includes all reasonable and necessary medical services. Tex. Lab. CodeAnn. § 401.011(19)(A).

With respect to work hardening, the Commission’s Medical Fee Guideline provided:

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 . . .

1. Entrance/admission criteria shall enable the program to admit:
2. persons who are likely to benefit from the program;
3. persons whose current levels of functioning due to illness or injury interfere with their ability to carry out specific tasks required in the workplace;
4. persons whose medical, psychological, or other conditions do not prohibit participation in the program; and
5. persons who are capable of attaining specific employment upon completion of the program. 28 TAC § 134.201 (abolished January 1, 2002).

The Commission’s Spine Treatment Guideline^[1] required that the treatment of a work-related injury be adequately documented, evaluated for effectiveness and modified based on clinical changes, provided in the least intensive setting, cost effective, objectively measured, and demonstrating functional gains. 28 TAC § 134.1001(e)(2) (abolished by statute effective January 1, 2002). Under the Commission’s Upper Extremities Guideline work hardening was not an approved diagnostic until the secondary or tertiary level of care. 28 Tex. Admin. Code (TAC) § 134.1001(f).

C. Evidence

In addition to the MRD record, the record included the testimony of an expert witness for each party.

Experts

Petitioner’s executive director, chiropractor Dr. Michelle Ivey, testified that Petitioner’s WHP is a multi-disciplinary program whose goal is to return the patient to work. At the time of the services in dispute, Petitioner was CARF^[2] accredited and consequently did not need to obtain pre-authorization from Respondent before providing work hardening. Dr. Ivey did not examine or treat Claimant, but did review Claimant’s medical records to form her opinions. The initial and final FCEs conducted by Petitioner were, according to Dr. Ivey, the objective tests she used to determine that the work hardening program was medically necessary.

Dr. Ivey stated Claimant’s May 15, 2001, FCE results were valid and showed he was an appropriate candidate for and able to participate in the WHP. The results of that FCE showed Claimant could only work at a light-medium physical level and his job required a medium-heavy ability. The FCE involved both dynamic and static tests of strength. In assessing Claimant’s abilities, Dr. Ivey placed more emphasis on the dynamic movement tests as opposed to the static NIOSH (National Institute of Occupational Safety and Health) tasks. The dynamic tests involved tasks such as pulling a object over a distance, actions which involved joints and which more closely mimicked activities of daily living. The NIOSH tests, which measured consistency of effort and isometric (or static) muscle strength, involved tasks such as pushing against a fixed object and did not involve joint movements. According to Dr. Ivey, Claimant was ready for work hardening because he was twelve weeks post-injury, in the early stages of deconditioning; unable to perform the physical requirements of his job as a stocker, and had significant joint movement problems.

Respondent’s expert, chiropractor Dr. Dorothy Leong, testified by deposition. Dr. Leong noted that the objective physiological and biomechanical measurements were flat on Claimant’s May 15, 2001, FCE. In other words, the FCE showed no change in heart rate at all, which indicated either no measurement occurred or Claimant was not making the required physical effort. Without the objective measurement, the examiner must rely solely on the patient’s subjective report of effort. According to Dr. Leong, the NIOSH tests were dynamic in nature and Claimant’s NIOSH test results showed he had no significant strength deficits, belying the need to send him to a WHP.

Based on her review of the medical records, Dr. Leong stated the work hardening program was not medically necessary for Claimant because the FCE results gave reason to believe that Claimant did not use maximum effort during parts of the evaluation. Dr. Leong asserted that basing a work hardening program on this FCE was not medically reasonable.

Claimant’s Change of Treating Doctors

On May 21, 2001, about a week before starting the WHP, Claimant signed an “Employee’s Request to Change Treating Doctors” TWCC Form 53, which stated he wished to change his treating physician from Dr. Parent to Dr. George Elandary, D.C. As the treating doctor, Dr. Parent had to sign the TWCC 53, which he did on May 21, 2001. On the TWCC Form 53, Claimant wrote his reason for changing doctors was that “I have been off work since 2-20-01 and I still have the same pain to this day, I missed [illegible] appointments to see the M.D. because of transportation problems on their part [illegible] . . . M.D. recommended me to have surgery or injection but Dr. Parent . . . .”(Ex. 1, p. 25).^[3] The request to change doctors was granted on June 12, 2001, which was the last day Claimant attended the WHP.

Prior to being referred to Petitioner for the FCE, Claimant underwent an MRI that showed he had a slight tear in his right shoulder rotator cuff. In December 2001, Claimant had the rotator cuff surgically repaired, which resulted in some improvement in his condition. In a medical report prepared by his surgeon, Dr. John McConnell, Claimant stated he left the WHP due to inability to tolerate the activities. (Ex. 1, p. 60).

Lack of Documentation

The record lacked any helpful documents reflecting the kind, amount, or efficacy of treatments Claimant received prior to being referred to the WHP. Except for the initial examination report, Dr. Parent’s records were all preprinted forms with marks next to unexplained abbreviations. (Ex. 1, pp. 26-99; 114). A “Diagnosis and Treatment Sheet” presumably by Dr. Parent contained a few written notes, but did not document the types of physical therapy administered, if any. (Ex. 1, p. 98). On the referral to the WHP, which Dr. Parent signed, he did not fill in the “Please Document Reason for Referral” line. (Ex. 1, p. 121). The only date on the referral, May 29, 2001, was at the top, not next to Dr. Parent’s signature, so it is unclear what that date signified.

D. Analysis

Petitioner failed to meet its burden to show that the WHP was medically necessary for Claimant. Claimant’s May 15, 2001, FCE results were suspect as there was no objective measurement of his efforts. Because the FCE showed Claimant almost met his job’s physical demands, anything less than a maximum effort on the test would have skewed the results sufficiently downwards to keep him out of the medium-heavy range demanded by his job. Because the FCE lacked objective measurements to corroborate effort, and because one of the interpretations of the NIOSH tests indicated Claimant was functioning at a normal level, the FCE simply was not a reliable indicator of Claimant’s need for a WHP.

The evidence also showed that at the time he was referred to and enrolled in the WHP, Claimant no longer wanted to pursue treatment options recommended by Dr. Parent and so was not a good candidate for the WHP. The fact that Claimant dropped out of the WHP the very day he was released from Dr. Parent’s care indicated that Claimant did not intend to complete the program, but was only marking time until he could change treating physicians.

Finally, the record lacked sufficient evidence to show what treatment Claimant underwent prior to being referred to the WHP or how he had progressed in treatment. Finally, the MRI showed that Claimant’s injury involved a tear of his rotator cuff, which injury was not treatable with a WHP.

Claimant did not start the WHP until May 29, 2001. It was clear from the evidence that Claimant was unhappy with the treatment options provided by Dr. Parent and that Dr. Parent was aware, over a week before the WHP began, that Claimant was not likely to remain his patient. Nevertheless, Claimant’s referral to the WHP was not rescinded or postponed pending approval of the change in treating doctors.

Claimant left the program the very day his request to change treating doctors was approved. A reasonable conclusion is that he never wanted to participate in it and did not intend to complete the program if allowed to change doctors. As of May 21, 2001, Dr. Parent was on notice that Claimant did not want to follow his recommendations, including participation in the WHP. Under these circumstances, Claimant should never have been allowed to begin the program.

In the initial FCE, performed May 15, 2001, Claimant’s present “physical demand level” was rated “light medium,” while the physical demand level of his job stocking shoes was rated “medium heavy.” During the FCE’s physical tests, certain physiological and biomechanical reactions are expected as the patient exerts himself to lift, pull, or push certain weights. These reactions are recorded and serve as a control to show that the patient is actually making an effort. Claimant showed none of the expected responses. His heart rate not only did not increase as expected, it never changed at all during the testing, which is almost a physical impossibility if he exerted himself. (Ex. 1, p. 153). This lack of change indicated either Claimant did not make an effort or that the recording mechanism was defective. In either case, there was no objective measure to confirm Claimant was making a valid effort to exert himself. Without valid exertion, the FCE could not accurately measure the limits of Claimant’s physical abilities and so his need for a WHP could not be determined from that test.

The record failed to substantiate Petitioner’s claim that a WHP was medically necessary for Claimant in May and June 2001.

III. FINDINGS OF FACT

1. On__________, Claimant sustained an injury compensable under the Texas Workers’ Compensation Act (Act).
2. At the time of the compensable injury, Claimant’s employer had workers’ compensation insurance coverage with the Twin City Fire Insurance Company (Respondent).
3. Dr. Larry Parent, D.C., was Claimant’s treating physician for his back and shoulder injuries.
4. An MRI revealed Claimant had a right shoulder rotator cuff tear.
5. On May 21, 2001, Claimant and Dr. Parent both signed a TWCC Form 53, in which Claimant asked to, change his treating doctor from Dr. Parent to Dr. Greg Elandery.
6. Despite knowing Claimant no longer wanted to be his patient, Dr. Parent referred Claimant to a Rehab 2112’s (Petitioner) work hardening program (WHP).
7. Claimant began the WHP on May 29, 2001, and left the program without completing it on June 12, 2001.
8. The Texas Workers’ Compensation Commission (Commission) granted Claimant permission to change treating doctors on June 12, 2001.
9. Claimant participated in the WHP only until he was released from Dr. Parent’s care.
10. Claimant underwent a functional capacity evaluation by Petitioner on May 15, 2001.
11. Claimant’s referral to the WHP was based on the May 15, 2001, FCE results.
12. The FCE lacked any objective measurements of physiological or biomechanical changes to verify that Claimant was exerting himself during the tests.
13. The FCE showed Claimant was at a light-medium ability level, which was one level below his job’s required level of medium-heavy.
14. Had Claimant been classified in the medium-heavy category, he would not have been eligible for the WHP and could have been released to return to work.
15. A failure by Claimant failed to exert himself on the FCE would have skewed the test results downward.
16. The medical records failed to show either the type, frequency, or efficacy of Claimant’s treatment prior to his referral to the WHP.
17. A WHP could not treat Claimant’s rotator cuff tear.
18. After Respondent denied reimbursement to Petitioner for the work hardening program provided Claimant, Petitioner sought medical dispute resolution with the Commission’s Medical Review Division (MRD).
19. The MRD’s decision upheld Respondent’s denial of reimbursement. Petitioner timely appealed that decision.
20. Pursuant to the Commission’s notice of hearing, which stated the date, time, and location of the hearing and cited to the legals statutes and rules involved along with a short, plain statement of the factual matters involved.
21. Petitioner and Respondent were represented at the hearing but the Commission chose not to participate.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction over this matter pursuant to the Texas Workers’ Compensation Act (Act), Tex. Lab.CodeAnn. § 413.031.
2. The State Office of Administrative Hearings has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to § 413.031(d) of the Act and Tex. Gov’tCode Ann. ch. 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’tCode Ann. ch. 2001 and the Commission’s rules, 28 Tex.Admin.Code (TAC) § 133.305(g).
4. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’tCode Ann. §§ 2001.051 and 2001.052.
5. Petitioner had the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i); 1 TAC § 155.41.
6. Pursuant to the Act, an employee who has sustained 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 cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. Tex. Lab.CodeAnn. § 408.021(a).
7. Health care includes all reasonable and necessary medical services. Tex. Lab.CodeAnn. § 401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. Tex. Lab.CodeAnn. §401.011(31).
8. Based on the Findings of Fact, the work hardening program did not comply with the Commission’s Spine Treatment Guideline, 28 TAC §134.1001(e)(2), and is not reimbursable under Tex. Lab.CodeAnn. §§ 401.011(19) and 408.021(a).

ORDER

It is ORDERED that Rehab 2112 is not entitled to reimbursement by Twin City Fire Insurance Company for the work hardening program administered to Claimant from May 29 to June 12, 2001.

Signed this 26^th day of March, 2003.

ANN LANDEROS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The guideline was abolished effective January 1, 2002, along with the Medical Fee Guideline. However, the administration of the work hardening program, the claims for reimbursement, and the denial of reimbursement in this case all occurred prior to the rescission of the Guideline.↑
2. Commission Accreditation for Rehabilitation Facilities.↑
3. Due to poor copying, the end of each line on the right margin was truncated, and it appears that part of the statement was written on the back or on another piece of paper, which was not included in the record.↑