DECISION AND ORDER

Petitioner, MEGA REHAB, sought reimbursement from American Casualty Company of Reading, Pa. (the Carrier) for $11,080 for a six-week work hardening program and related tests given to the injured worker, ____ (Claimant). The Independent Review Organization (IRO) found the program and subsequent test were not medically necessary for two reasons: (1) the Claimant was not a suitable candidate for work hardening; and (2) the program caused no significant change in the Claimant’s work capacity or her pain level. The decision disagrees with the IRO, finding Petitioner proved the work hardening program was medically necessary.

I. PROCEDURAL HISTORY

The Administrative Law Judge (ALJ) convened a hearing on the appeal on January 28, 2003. Dr. Stephen Dudas represented Petitioner, and the Carrier was represented by attorney Steven M. Tipton. The hearing concluded, and the record closed on the same date.

The record in this case consisted of the 149-page copy of the records submitted to the IRO (TWCC Ex. 1), a copy of records submitted to the IRO by the Carrier (TWCC Ex. 2), Petitioner’s hearing request (TWCC Ex. 3), records from Dr. Hurschmann (Carrier Ex. 4) and testimony by Dr. Dudas.

II. DISCUSSION

A. Background

The Injury and Initial Treatment.

The Claimant, who is ______ old, began working for ________ as a ______ on_________. Her job was to set up _________at local stores and to fill coolers with bottles of coke. Thus, her daily duties included frequently sitting and driving to over 20 locations per day, writing orders, and lifting heavy products; i.e., lifting cases of bottles weighing between 20 and 50 pounds, reaching, rotating and filling coolers with bottles of coke. When she began her employment, she had no physical limitations or restrictions.^[1]

As of January 2001, the Claimant was working 55 hours per week. She sustained a work-related injury to her lower back on_________, when she lifted two cases of heavy bottles. She first felt pain in her lower back two days later, and the injury has caused persistent back pain and muscle spasms in the lumbar region. Her initial treatment included a cortisone shot, pain medications, rest, and six sessions of physical therapy. An x-ray of the lumbar spine revealed no fractures. The Claimant returned to work on light duty.

On March 20, 2001, Gordon McWatt, D.O., found the Claimant had reached MMI with a 0% whole body impairment and returned her to work without restrictions. Shortly after that she re-injured her back with a heavy lift and was taken off work again. Four weeks later she went back to work without restrictions and re-aggravated her condition a third time.

Current Treating Physician.

At that point, the Claimant changed treating physicians and began seeing Alan B. Hurschman, M.D., who is board certified in physical medicine and rehabilitation. In a report dated June 13, 2001, Dr. Hurschman described the Claimant’s pain (rated at 8 on a scale of 0-to-10) as intermittent and like a burning sensation B made worse by any lifting, sitting for 20 minutes, or standing for an hour and one-half. The pain on the left side shot around into her groin area, and the pain on the right side shot all the way down to her big toe. Her flexion in the lumbar region was limited to 55 degrees, and her extension was severely limited to 16 degrees. She also had tenderness bilaterally at the sciatic, inferior, and superior gluteal nerves.

Dr. Hurschman diagnosed chronic lumbar strain and planned to do the following: give peripheral nerve injections at the lumbar and gluteal region, provide an EMS unit for use at home to decrease the muscle spasms, continue Motrin and Skelaxin, order biofeedback twice a week, and refer her to a chiropractor for eight musculoskeletal adjustments.^[2] Specifically, Dr. Hurschman administered a left superior gluteal nerve injection and a left inferior gluteal nerve injection on June 19^th, and on June 26^th he administered a left sciatic nerve root block, a left superior gluteal nerve injection, and a left inferior gluteal nerve injection. About a month later, Dr. Hurschman found the Claimant had had a mild relapse of pain on the right, and he ordered nine more chiropractic adjustments. Overall, Dr. Hurschman administered nine localized peripheral nerve injections without any noted improvement in the Claimant’s symptoms.

In mid August 2001, Dr. Hurschman reported the Claimant felt “pretty good.” He indicated in his treatment notes: “She is now a good candidate for work conditioning, 4 times a week x 4 weeks.^[3] However, when the Claimant returned for her next appointment in September, she reported that work conditioning caused her to have intermittent, burning pain at the lower back and chest. Therefore, Dr. Hurschman sought an MRI to rule out disc pathology. The MRI, which was completed on September 20, 2001, found tears in the annulus of the discs at two levels: L4/L5 and L5-S1.^[4] In a review of the Claimant’s work hardening program (described in further detail below), Dr. Charles D. Marable, a board certified neurologist, explained that an annual tear directly affects the recurrent meningeal nerve.^[5]

Eventually, Dr. Hurschman referred the Claimant for either a work conditioning or a work hardening program by the Petitioner. She was given an FCE, or functional capacity evaluation, on August 27, 2001. Based on the FCE’s finding of a psychological component, the Petitioner gave the Claimant a six-week work hardening program from September 4 B October 12, 2001, followed up by a second FCE on October 17, 2001.

Coca Cola did not accept the Claimant back on the job, because she only attained the strength to work at a medium work level, and the job required ability at the heavy work level. At the time of the hearing, the Claimant was in training for another job.

Synopsis of the Work Hardening Program.

When she began the program on September 4^th, the Claimant was functioning in the light work level, meaning she could lift up to 10 pounds frequently. Her previous job was available, and the plan was to prepare her for work in the heavy level, because that job required lifting between 25 and 50 pounds frequently.

Her initial FCE was actually given to determine whether work conditioning or work hardening would be the proper program for the Claimant. The Oswestry pain questionnaire indicated she perceived her low-back pain as a mild disability. Her high scores on the Pain and Impairment Relationship Scale (PAIRS) indicated she had a tendency to equate pain with impairment, which is likely to promote deconditioning.

Comparing the scores on the initial FCE with those on her follow-up FCE, the following progress in her condition from the work hardening program can be seen:

August 28, 2001 FCE	October 17, 2001 FCE
Bimanual floor to knuckle lift of 6 lbs – Movement tolerated for 22 times in 1 minute.	Movement tolerated 25 times in 1 minute.
Bimanual knuckle to shoulder lift of 6 lbs -Movement tolerated for 35 times in 1 minute.	Movement tolerated for 46 times in 1 minute.
Bimanual shoulder to overhead lift of 6 lbs -Movement tolerated 26 times in 1 minute.	Movement tolerated 38 times in 1 minute.
Carrying (20 feet) 25 lbs – Patient ended at this point, feeling left leg “was going to give out.”	Patient carried a safe maximum weight of 27.5 pounds.
Pushed (20 feet) 45 lbs.	Pushed 50 lbs. without problems.
Pulled (20 feet) 45 lbs.	Pulled 50 lbs. with mild increase in discomfort in lower back.
Lumbar Flexion – 45 degrees	40 degrees
Lumbar Extension – 12 degrees	15 degrees
Lumbar Right Lateral Flexion – 25 degrees.	30 degrees
Lumbar Left Lateral Flexion – 20 degrees.	26 degrees
Pain Scale (from 0-10) – 8 during activity/ 4 when sedentary	6 during activity/ 5 when sedentary

The later FCE contained the following Progress Report on what it described as the Claimant’s critical job tasks:

Test Performed	8/27/01	10/17/01	Progress (% improvement)
Push Down	28.8	28.7	-0.6%
High Far Lift	12.5	19.5	56%
Floor Lift	38.8	64.7	66.9%
Pull Down	21	37	76.2%
Leg Lift	33.8	65.3	93.6%
High Near Lift	11.5	23.2	101.4%
Arm Lift	6.8	25.8	282.7%

The Claimant’s psychological progress during the program was described as follows:

Week 1 – Pain, recurrent injury; may need to learn moderation; very compliant and motivated.

Week 2 -Still experiencing pain, including in chest/arm; highly motivated but upset and worried.

Week 3 – Improving, but still in pain and confused about diagnosis and treatment; needs second opinion.

Week 4 – Depressed and stressed; needs to re-evaluate her career plan.

Week 5 -Very stressed and depressed; may need individual therapy, and medical reassessment and new treatment plan.

Week 6 – Patient is somewhat less depressed, but still obsessively worried.^[6]

End of Week 6 -Now functioning in the medium work level.

The final recommendations from the Claimant’s work hardening program team included continued home exercise and treatment while returning to work with limited lifting requirements. The team also recommended continued intervention and monitoring by her treating physician to help her manage any recurrence of symptoms and prevent aggravation and exacerbation of her symptoms.

The IRO Decision.

The IRO decision found that only the first FCE was medically necessary. The IRO doctor, who has the same credentials as Dr. Hurschman, focused primarily on the fact that the patient was not a suitable candidate for a work hardening program; however, the decision does not explain why the IRO doctor found she was not a suitable candidate. In addition, the doctor stated the values in each of the Claimant’s FCEs were essentially the same, and that there was no evidence of patient improvement. Also, the IRO doctor noted that Dr. Hurschman was pursuing invasive injection therapy around the early phases of the work hardening program, drawing an inference that the Claimant had not received significant enough improvement to gain benefit from participating in an intensive work hardening program.

B. Carrier’s Evidence.^[7]

Dorothy Leong, M.D., performed a required medical examination at the Carrier’s request on the Claimant on June 5, 2001. At that point in time, the Claimant was still taking Vicodin and Flexeril with no relief from her symptoms. She rated her pain as an 8 or 9 on a scale of 1B10 after lifting. The Claimant reported tenderness to palpation of the paraspinal muscles at the L3 and L5 levels bilaterally. Dr. Leong found the Claimant had some symptom magnification, because she had three out of eight positive signs on Waddell’s test. Dr. Leong concluded that the MMI and 0% impairment rating found by Dr. McWatt in March were still accurate, and she agreed with the MMI’s conclusion that the Claimant had “psychosomatic” issues. Dr. Leong also agreed that the Claimant was able to return to work at full capacity.^[8] Albert Bisson, M.D., who did a peer review of the Claimant’s records (but not a physical examination) on August 19, 2001, agreed with Dr. Leong’s assessment.

Patrick Donovan, M.D., examined the Claimant on December 17, 2001, apparently to determine whether she needed lumbar epidural steroid injections. At that point in time, the Claimant, who had not worked since May 2001, described her primary complaint as intermittent lumbosacral axial back pain, meaning muscle stiffness and tightness that was most noticeable when she bended, stooped, twisted, or sat in place. She denied having any significant bilateral lower extremity radicular-type pain. She was taking Vicodin, Norflex (as needed, for spasms), and Xanax (as needed, for anxiety).

In Dr. Donovan’s opinion, the high intensity zones seen on the Claimant’s MRI did not indicate that she had tears in the lumbar annular fibers for two reasons: (1) often such zones can be seen on MRI scans, when they do not indicate any major problem; and (2) she would have had an immediate onset of low back pain at the time of her injury with torn fibers, whereas she first noted significant back pain two days later. In his opinion, she had soft tissue chronic recurrent muscle strain, which he would expect to improve over time. He noted she had completed an “extensive period” of formal physical therapy on two separate occasions as well as a work hardening program. Ultimately, Dr. Donovan found the Claimant was capable of returning to work on light duty^[9] at that point in time, without further therapy, peripheral nerve injections, or invasive lumbar injections.

Petitioner’s Evidence.

Dr. Stephen Dudas, D.C., stated the Claimant exhibited psychological deficits along with physical deconditioning and poor lifting technique at the time she began the work hardening program. He felt the Claimant displayed significant anxiety and preoccupation with her symptoms.

Dr. Dudas noted the MRI scan explained the Claimant’s discogenic pain, and he noted that Dr. Marable explained that the recurrent meningeal nerve directly enervates the disc. Because the primary and secondary levels of care did not resolve the Claimant’s pain, he felt tertiary care was the “treatment of choice,”and that the multi-disciplinary approach in work hardening was more likely to improve her status, since single disciplinary programs and injections had not been successful. In a letter dated August 19, 2002, he stated the Claimant had thrived in the multi-disciplinary program and could return to work with medium duty restrictions. He was particularly impressed by her static lifting gains from 56% to 282%.

Additionally, Dr. Dudas explained that the statement by the IRO doctor that Dr. Hurschman was giving the Claimant invasive injection therapy during the early stages of the work hardening program was wrong. In fact, Dr. Hurschman gave the last injections on July 24^th B over four weeks prior to the beginning of the work hardening program.

On October 16, 2001, Dr. Hurschman wrote a letter explaining that the prior impairment rating and MMI date were invalid, because the doctors were not aware of the Claimant’s torn disc when they made those determinations in March 2001.

On March 12, 2002, Dr. Charles Marable, neurologist, reviewed the Claimant’s records. In reviewing the results of her first FCE, he noted that significant psychological screening was done at that time, which indicated she needed a psychological component in conjunction with physical activities and work-simulation to attain MMI in a timely manner. He described the documentation of the work hardening program (including weekly progress notes by a clinical psychologist) as detailed, accurate, and within the standards required for work hardening programs. Dr. Marable described the Claimant as an excellent candidate who definitely met the criteria for a multi-disciplinary work hardening program. He found she was obviously deconditioned and unable to meet the heavy physical demands of her employer, _________. According to Dr. Marable, progress was shown during each step of the FCE in addition to the weekly progress notes.

Dr. Marable found two problems in Dr. Donovan’s review of this case. First, Dr. Donovan recommended a return to work on light duty, limited to lifting no more than 10 pounds. This was wrong, because the NIOSH standards define light duty as ability to lift 20 pounds. Second, Dr. Marable stated that Dr. Donovan was apparently ignorant of current literature on discogenic pain; because current research documents that an annular tear directly affects the recurrent meningeal nerve.

In sum, Dr. Marable opined that the Claimant had a complex condition, noting that her two premature returns to work indicated she was not psychologically or physically prepared to deal with returning to the work force, even on restricted duty. In his opinion, without work hardening, it is highly likely she would have become a chronic pain patient. He found the work hardening notes documented excellent progress.^[10]

D. Analysis.

The decision in this case is informed by two applicable legal tenets. First, 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 injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment.^[11] Second, workers’ compensation legislation is liberally construed to carry out its purpose of compensating injured workers and their dependents.^[12]

In addition to considering the evidence, the Commission’s Spine Treatment Guideline (STG) and Medicine Ground Rules in the Medical Fee Guideline must be considered.^[13] As Dr. Dudas noted, the Claimant was in the tertiary level of treatment, because she had demonstrated physical and psychological changes consistent with a chronic condition.

She also had a documented history of persistent failure to respond to treatment and, according to her FCE, had psychosocial issues. Thus, the work hardening program was consistent with the treatment contemplated in STG Ground Rule (g)(4).

The Medicine Ground Rules describe work conditioning as a single disciplinary approach to restore function in an injured worker. In contrast, Medicine Ground Rule II.E describes work hardening as interdisciplinary in nature. It addresses the functional, physical, behavioral, and vocational needs of the injured worker to improve the biomechanical, neuromuscular, behavioral, attitudinal, and vocational functioning of the injured worker.

The Carrier focused much of its attention on the fact that the work hardening program did not “significantly” reduce the Claimant’s pain level. The level went from 8 during activity and 4 when sedentary to 6 during activity and 5 when sedentary. Clearly, the most troubling issue in this case is that despite extensive treatment and therapy, the Claimant has not become pain free. However, the ALJ finds the program was medically necessary for the Claimant based on the above-described law and for all of the following reasons:

• The Claimant had not reached MMI and did not have a 0% impairment in March 2001, because the source of her discogenic pain was not determined until she had an MRI on September 20, 2001.
• Despite significant medical treatment and therapy, the Claimant returned to work twice when she was not physically able to handle her job’s heavy workload.
• She had psychological issues, in addition to her physical condition that impeded her return to work, as demonstrated both by her scores on the Oswestry pain questionnaire and PAIRS and her psychological state described in her weekly progress reports.
• The weight of the evidence is that the Claimant is not a malingerer – despite her torn disc fibers that cause her pain and apparently are not amenable to surgery, she was compliant and eager to improve during the work hardening program.
• The IRO decision was wrong in that the Claimant is exactly the type of person the Commission deemed an appropriate candidate in STG Ground Rule (g)(4) and in Medicine Ground Rule II.E.
• While the Claimant did not attain the ability to return to her job at Coca Cola, she progressed from the ability to handle light duty to medium duty; improved in nine of the ten strength and flexion factors tested before and after the program; and progressed in all but one of the static lifting skills most critical to her job from a 56% improvement up to a 282.7% improvement.
• The Claimant’s pain level during activity had reduced from 8 to 6 at the end of the program.
• Dr. Marable, who is a board certified neurologist, gave convincing evidence that the Claimant needed the work hardening program. In particular, his conclusion that without work hardening she would have become a chronic pain patient was compelling.

III.FINDINGS OF FACT

1. The Claimant began working for __________ as an _______ on_________. Her daily duties included frequently sitting and driving to over 20 locations per day, writing orders, and lifting heavy products; i.e., lifting cases of bottles weighing between 20 and 50 pounds, reaching, rotating and filling coolers with bottles of coke.
2. As of January 2001, the Claimant was working 55 hours per week. She sustained a work-related injury to her lower back on_________, when she lifted two cases of heavy bottles. She first felt pain in her lower back two days later, and the injury has caused persistent back pain and muscle spasms in the lumbar region.
3. Her initial treatment included a cortisone shot, pain medications, rest, and six sessions of physical therapy.
4. At first, the Claimant returned to work on light duty.
5. In late March, the doctor returned her to work without restrictions. Shortly after that she re-injured her back with a heavy lift and was taken off work again.
6. Four weeks later she went back to work without restrictions and re-aggravated her condition a third time.
7. Eventually, an MRI found tears in the annulus of the discs at two levels in her lumbar spine: L4/5 and L5-S1.
8. As of June 13, 2001, the Claimant’s pain (rated at 8 on a scale of 0-to-10) was intermittent and like a burning sensation B made worse by any lifting, sitting for 20 minutes, or standing for an hour and one-half.
9. The pain on the left side shot around into her groin area, and the pain on the right side shot all the way down to her big toe.
10. She also had tenderness bilaterally at the sciatic, inferior, and superior gluteal nerves.
11. Despite conservative care with all of the following modalities, the Claimant’s pain and muscle spasms remained so intense that she could not return to work: nine peripheral nerve injections at the lumbar and gluteal region, use of an EMS unit at home to decrease the muscle spasms, medications for pain and muscle relaxation, biofeedback twice a week, and numerous chiropractic musculoskeletal adjustments.
12. Because the treatments referenced in Findings 3 and 6 were not effective, her treating physician referred the Claimant for either a work conditioning or a work hardening program by MEGA REHAB (Petitioner).
13. She was given an FCE, or functional capacity evaluation, on August 27, 2001.
14. Based on the FCE’s finding of a psychological component to her condition, the Petitioner gave the Claimant a six-week work hardening program from September 4 B October 12, 2001.
15. Petitioner then gave the Claimant a second FCE on October 17, 2001.
16. The work hardening program was medically necessary for the Claimant for all of the following reasons:
    1. Despite significant medical treatment and therapy, the Claimant was returned to work twice when she was not physically able to handle her job’s heavy workload.
    2. She had psychological issues, in addition to her physical deconditioning, that impeded her return to work, as demonstrated both by her scores on the Oswestry pain questionnaire and PAIRS and her psychological state described in her weekly progress reports.
    3. The Claimant was compliant and eager to improve during the work hardening program.
    4. The Claimant progressed from the ability to handle light duty to medium duty; improved in nine of the ten strength and flexion factors tested before and after the program; and progressed in all but one of the static lifting skills most critical to her job from a 56% improvement up to a 282.7% improvement.
    5. The Claimant’s pain level during activity had reduced from 8 to 6 at the end of the program.
    6. The work hardening program kept the Claimant from becoming a chronic pain patient.

IV.CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issues presented pursuant to the Texas Workers’ Compensation Act (the Act), Tex. Lab. CodeAnn. §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 §413.031 of the Act and Tex. Gov’t Code ch. 2003.
3. An employee who sustains a compensable injury is entitled to health care that relieves the effects naturally resulting from the injury, promotes recovery, and enhances the ability to return to or retain employment. Act §408.021.
4. As referenced in the Findings, the Claimant is exactly the type of person the Commission deemed an appropriate candidate in Spine Treatment Ground Rule (g)(4) and in Medicine Ground Rule II.E. 28 Tex. Admin. Code §§134.1001 and 134.201.
5. Because the work hardening program was medically necessary, the Petitioner is entitled to recover payment for its work hardening program and both of the FCEs it administered.

ORDER

IT IS THEREFORE, ORDERED that American Casualty Company of Reading, Pa. reimburse MEGA REHAB the sum of $11,080.

Issued this 28th day of March 2003.

BARBARA C. MARQUARDT
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. TWCC Ex. 2 at 16.↑
2. Carrier Ex. 4.↑
3. Id. at 18.↑
4. Specifically, the MRI found two high-intensity zones in the posterior annular fibers of L4-5 and L5-S1, but there were no frank disc herniations, lumbar bulges, or other neuroforaminal compromise. As described further in the discussion, Dr. Donovan questioned the significance of these findings, but other physicians (Drs. Hurschman, Marable, and Dudas) considered this evidence of tears in the annular fibers. TWCC Ex. 2 at 28.↑
5. TWCC Ex. 1 at 45.↑
6. Dr. Dudas testified the Claimant wanted to return to her job because it paid well. He related the depression and anxiety she displayed beginning in Week 3 to her concern about the new diagnosis of torn disc fibers as well as her anxiety about retaining her job.↑
7. All three of the doctors the Carrier relied on are board certified in physical medicine and rehabilitation.↑
8. TWCC Ex. 2, 16-21.↑
9. Dr. Donovan’s specific conclusion was that the Claimant would need to be restricted to lifting no more than ten pounds and no repetitive bending for at least another two months.↑
10. TWCC Ex. 1, 42-45.↑
11. Tex. Lab. Code Ann. §408.021. “Health care” includes “all reasonable and necessary medical . . . services.” Tex. Lab. Code Ann. §401.011(19).↑
12. Patient Advocates of Texas v. Texas Workers Compensation Commission, 80 S.W.3d 66 (Tex. App. – Austin 2002, pet. Ref’d.); Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex. 1999).↑
13. 28 Tex. Admin. Code §§ 134.1001 and 134.201. The parties agreed that the STG is applicable to this case.↑