DECISION AND ORDER

Texas Injury and Rehab Centers (TIRC) appealed a Texas Workers’ Compensation Commission (Commission) Medical Review Division (MRD) decision upholding a Twin City Fire Insurance Company (Twin City) denial of a claim for work hardening TIRC provided to an injured worker (Claimant) from January 8, 2001, until February 15, 2001. Twin City contended the claim should be denied because TIRC did not address the Claimant’s functional and vocational needs as required by the work hardening definition at Medicine Ground Rule II.E. of the Commission adopted Medical Fee Guideline (Guideline)^[1] (functional/vocational need issue). TIRC argued the services did qualify as work hardening and that Twin City is precluded from raising the functional/vocational need issue because it failed to do so at the time it denied coverage. This proposal concludes the claim should be denied because Twin City sufficiently raised the functional/vocational need issue when it denied coverage and TIRC failed to prove it provided the Claimant with a work hardening program by addressing his functional and vocational needs.

I. Procedural History

A hearing convened in this case on July 23, 2003, before the undersigned Administrative Law Judge (ALJ) at the State Office of Administrative Hearings (SOAH), 300 West 15^th Street, Austin, Texas. TIRC appeared by telephone and was represented by Mark E. Plummer, D.C. Twin City appeared and was represented by Attorney David Swanson. The hearing closed on July 23, 2003. As there were no disputed issues concerning notice or jurisdiction, those matters are stated in the fact findings and legal conclusions without further discussion here.

II. Discussion

A.Background

• Factual
• The Claimant suffered a compensable injury on________, while working as a valet when he slipped on concrete steps, causing him to land on his buttocks and twist his left knee.
• He began to see a TIRC chiropractor who referred him to an orthopedic surgeon.
• He had surgery on his left knee on August 24, 2000.
• He was placed in a work hardening program at TIRC and underwent treatment from January 8, 2001, until February 15, 2001.
• Twin City denied the TIRC claim because TIRC’s documentation indicated the services were primarily single disciplinary, with emphasis on tasks normally associated with work conditioning.”^[2][3]
• It is undisputed that TIRC met the Medicine Ground Rule requirements of addressing the Claimant’s physical and behavioral needs.

Legal

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. Tex. Labor Code Ann. §408.021. “Health care” includes “all reasonable and necessary medical . . . services.” Tex. Labor Code §401.011(19).

TIRC has the burden of proof.^[4]

Scope of Dispute

TIRC contended Twin City should be precluded from asserting the functional/vocational need issue because it did not deny the claim on that basis.^[5] Twin City’s claim denial said, “N B submitted documentation indicates that services rendered were primarily single disciplinary, emphasizing conditioning tasks normally associated with work conditioning.” TIRC argued that Twin City has dropped its assertion that the services were single disciplinary (acknowledging that behavioral and physical needs were both addressed) and is now stating a new argument, that the services were not sufficiently multi-disciplinary because they did not address all four disciplines required by work hardening, i.e. functional and vocational as well as physical and behavioral.

TIRC’s argument was not persuasive because Twin City’s denial statement sufficiently apprized TIRC of its position that the disputed services did not qualify as work hardening. The fact that Twin City at first said the services were (primarily) single disciplinary and later conceded that the Claimant’s behavioral as well as physical needs were addressed did not detract from its essential assertion that the services were not sufficiently multi-disciplinary for work hardening.

1. Services Not Shown to Meet Work Hardening Definition
2. Parties

Twin City’s expert witness William David DeFoyd testified that the work hardening section of the Guideline Medicine Ground Rules requires first that an injured worker’s specific job tasks be identified and then addressed through a highly individualized program of real or simulated work activities. He cited Guideline Medicine Ground Rule 1.b., saying that to enter work hardening an injured worker’s injury must interfere with his or her ability “to carry out specific tasks required by the work place,” and stressed the necessity of being as specific as possible in ascertaining job tasks in order to structure a highly individualized treatment program directed toward returning the worker to work. He contended TIRC did not sufficiently identify the Claimant’s job tasks and thus failed to show whether there was a discrepancy between what the Claimant could do and what he was required to do at work.^[6] As an example, he pointed to TIRC records saying that the Claimant occasionally lifted up to 60 pounds and that TIRC used a box with handles to help him practice lifting. He argued it is necessary to know the mechanics of what is being lifted and that lifting a box is not the same as lifting objects such as a suitcase or barricade.^[7]

Dr. DeFoyd also cited a TIRC job analysis and description of the Claimant’s job duties saying that the Claimant parked cars and did light cleaning; on an occasional basis did cart height pushing and shoulder height pushing and pulling, climbed stairs, stooped, crouched, crawled, reached overhead, handled and fingered; on a frequent basis, did cart height pushing, carried, sat, climbed ladders, kneeled, bended and felt; and on a constant basis stood, walked, reached forward, and talked.^[8] Dr. DeFoyd asserted this information does not sufficiently address the fundamental basis of an evaluation, which is to identify the Claimant’s specific job tasks. As an example, he said the “light cleaning” description did not specify whether the Claimant carried a bucket, washed a car, or mopped a garage floor.

Dr. DeFoyd also contended that the TIRC functional capacity evaluation (FCE) did not identify the Claimant’s job tasks or show specific testing to determine the Claimant’s capacity to perform them.^[9]

In a related context, Dr. DeFoyd criticized TIRC’s failure to adequately address the Rapid Exchange Grip vs. MVE Results portion of the Claimant’s December 14, 2000, FCE, which showed a suspected submaximal effort by the Claimant.^[10] Dr. DeFoyd contended it is not possible to know what the Claimant can do if he or she is giving less than maximum effort.

Dr. DeFoyd criticized the TIRC program, which included circuit weights,^[11] dumbbell exercises, treadmill, bike riding, UBE,^[12] box lifting, box carrying, static sits, and static stands,^[13] as being a generalized conditioning program rather than a relevant, simulated work environment. As an example, he said if the Claimant mopped the garage floor at work, he should do that during work hardening. If he moved barricades (as Dr. Plummer speculated), he should engage in similar activities during work hardening.

Twin City cited TIRC’s short-term goal of the program as increased range of motion (ROM) and flexibility of the lumbar spine. It cited the fact that TIRC’s initial evaluation showed lumbar ROM as already within normal limits.^[14] It pointed out that TIRC’s long-term goal was a medium physical demand level,^[15] even though TIRC’s records show he was already at that level on December 14, 2000.^[16]

Twin City cited to the Claimant’s December 14, 2000, lifting capacity report as stating a maximum acceptable weight of 40 pounds on an occasional basis over the specified ROM and his maximum acceptable weight as 40 pounds on a frequent basis. This corresponded to a medium demand level.^[17] Although the Claimant’s February 22, 2000, lifting capacity evaluation said he had the very same lifting capacity, TIRC nonetheless released him to return to work on light duty.^[18]

Dr. Plummer testified that the following work-hardening activities related to the Claimant’s work activities: treadmill, box lifting, static sitting and standing, and knee and leg extension and curls. He cited the Claimant’s lower extremity strength level as 3+/5 and weekly staffing reports showing improvement in the Claimant’s condition and treatment plans. He pointed to the Claimant’s pre- and post-work hardening FCE, which he said showed improved physical capabilities.^[19] He said he thought lifting 60 pounds simply meant lifting 60 pounds and this requirement was addressed by box carrying and in other ways.

Analysis

This proposal concludes that TIRC failed to show its services met the requirement of the work hardening definition stated in Guideline Medicine Ground Rule II.E. Twin City’s arguments and testimony were persuasive that the Claimant’s specific job tasks were inadequately documented (including the mechanics of job duties such as lifting.) Without knowing specific job tasks, it is not possible to know whether there was a discrepancy between what the Claimant could do and what his work required him to do. As a result, the TIRC services did not constitute a highly individualized program designed to maximize the Claimant’s ability to return to work as required by the work hardening definition. TIRC’s services resembled more of a generalized treatment conditioning rather than a relevant, simulated work environment.

The conclusion stated above was based on Dr. DeFoyd’s testimony. TIRC had the burden of proof in the case. It put on very little testimony or other evidence to counter Dr. DeFoyd’s assertions.

TIRC’s deficiencies in planning the Claimant’s work hardening program were also shown by related matters. It failed to address the Claimant’s apparent lack of effort indicated by the Rapid Exchange Grip vs. MVE Results of his initial FCE. An initial short-term goal of the program was increased ROM and flexibility of the lumbar spine even though the initial lumbar ROM was within normal limits. A long-term goal was operating at a medium physical demand even though he was at that level on December 14, 2000. The Claimant was released to go back to work in February 2001, although his lifting capacity level was recorded as the same as when he started the program.

There was little or no documentation of the Claimant’s daily life activities or functional needs. Thus, TIRC did not show it addressed those needs as required by the work hardening definition.

In summation, the TIRC records and evidence failed to show that its services met the Guideline work hardening definition requirements that it document that the Claimant could not perform specific job tasks and then show that its program targeted those job specific tasks in a real or simulated work environment. In a similar vein, it failed to show that it documented daily life activities and addressed them in its work hardening program.

III. Findings of Fact

1. Texas Injury and Rehab Center (TIRC) appealed a Texas Workers’ Compensation Commission (Commission) Medical Review Division decision upholding a Twin City Fire Insurance Company decision denying reimbursement for work hardening services it provided to an injured worker (Claimant).
2. It is undisputed that TIRC appealed not later than the 20^th day after it received notice of the decision.
3. All parties received not less than 10 days’ notice of the time, place, and nature of the hearing; the legal authority and jurisdiction under which the hearing was to be held; the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
4. All parties had an opportunity to respond and present evidence and argument on each issue involved in the case.
5. The Claimant suffered a compensable injury on________, while working as a valet when he slipped on concrete steps, causing him to land on his buttocks and twist his left knee.
6. The Claimant began to see a TIRC chiropractor who referred him to an orthopedic surgeon.
7. The Claimant had surgery on his left knee on August 24, 2000.
8. The Claimant was placed in a work hardening program at TIRC and underwent treatment from January 8, 2001, until February 15, 2001.
9. The issue to be determined is whether the services and treatments met the work hardening requirements in the Commission adopted Medical Fee Guideline (Guideline) Medicine Ground Rule II.E prescribed at 28 Tex. Admin. Code (TAC) § 134.201.

.

1. TIRC did not document the nature of the Claimant’s specific job tasks.
2. There was little or no documentation of the Claimant’s daily life activities or functional needs.
3. TIRC’s services to the Claimant did not constitute a highly individualized program designed to maximize his ability to return to work.
4. TIRC’s program did not consist of real or simulated work activities in a relevant work environment.
5. The program TIRC provided to the Claimant was a generalized conditioning program.
6. There was insufficient evidence that TIRC’s program adequately addressed the Claimant’s vocational and functional needs.
7. Twin City denied TIRC’s claim based on its assertion that the documentation indicates the services rendered were primarily single disciplinary in nature, with emphasis on conditioning tasks that are normally associated with work conditioning.

IV. Conclusions of Law

1. The State Office of Administrative Hearings has jurisdiction over this proceeding, including the authority to issue a decision and order. Tex. Lab. Code Ann. §413.031(k) and Tex. Gov’t Code Ann. ch. 2003.
2. All parties received adequate and timely notice of the hearing. Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
3. TIRC had the burden of proof in the case. 28 Tex. Admin. Code §148.21(h).
4. Twin City provided adequate notice before the dispute went to medical dispute resolution of its position that the services and treatments TIRC provided were not sufficiently multi-disciplinary to qualify as work hardening. 28 TAC § 133.304(c).
5. TIRC did not prove that the services it provided to the Claimant from January 8, 2001, until February 15, 2001, qualified as work hardening. 22 Tex. Admin. Code § 134.201.
6. TIRC’s claim for treatments and services to the Claimant from January 8, 2001, until February 15, 2001, should be denied.

ORDER

IT IS, THEREFORE, ORDERED that the claim of Texas Injury and Rehab Center against Twin City Fire Insurance Company for treatments and services provided to the Claimant from January 8, 2001, until February 15, 2001, be, and the same is hereby, denied.

Signed September 10^th , 2003.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

JAMES W. NORMAN
Administrative Law Judge

1. 28 Tex. Admin. Code (TAC) § 134.201.↑
2. Ex. 2 at 4.↑
3. Work conditioning is defined at Guideline Medicine Ground Rule II.D. as

[A] highly structured, goal-oriented, individualized treatment program using real or simulated work activities in conjunction with conditioning tasks. Work conditioning is a single disciplinary approach.

Work hardening is defined at Guideline Medicine Ground Rule II.E. as

[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. Entrance/admission criteria for work hardening stated at Guideline Medicine Ground Rule II.E.1.b. include 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. 28 TAC §148.21(h).↑
5. The Commission’s rules at 28 TAC §133.304(c) require a sufficient explanation to allow the sender to understand the reason or reasons for the insurer’s actions.↑
6. Dr. Plummer acknowledged TIRC never attempted to contact the Claimant’s employer to get a job description or to have his duties modified in any way.↑
7. Dr. Plummer testified that the Claimant may have lifted barricades, luggage, or groceries, but was not sure.↑
8. Ex. 3 at 111-112.↑
9. Ex. 3 at 84 et seq.↑
10. Ex. 3 at 88.↑
11. TIRC’s records show the Claimant said he occasionally had to lift weights up to 60 pounds (Ex. 3 at 89), but Dr. Plummer is not certain how often he did so.↑
12. The meaning of this designation is not clear from the record.↑
13. Ex. 1 at 58 et seq.↑
14. Ex. 3 at 112, 114.↑
15. Ex. 3 at 114.↑
16. Ex. 3 at 92.↑
17. Ex. 3 at 92.↑
18. Ex. 3 at 139, 150, 157.↑
19. Ex. 3 at 84-101, 131-149.↑