DECISION AND ORDER

St. Paul Fire & Marine Insurance Company (St. Paul) denied payment for a work hardening program for a worker with back and shoulder injuries. St. Paul asserted that the work hardening services were not reasonable or necessary. The provider, Central Dallas Rehab (CDR), a chiropractic clinic, requested medical dispute resolution. An independent review organization (IRO) concluded that the work hardening services were reasonable and necessary medical care. St. Paul requested a hearing. The amount in dispute is between $16,000.00 and $17,000.00^[1] The Administrative Law Judge (ALJ) determines that the IRO decision was supported by the evidence.

I. DISCUSSION

A.General Facts

The claimant___, was injured on ___. He was a ___ employed in construction and he fell off a scaffold, injuring his back and neck. He is in his early fifties. He had back and neck pain, with pain radiating into both legs and hands. An MRI scan of the lumbar spine performed on July 9, 2002, showed a “broad-based 3-mm disc herniation” at L4-L5, touching and flattening the thecal sac and causing a mild to moderate amount of spinal stenosis.^[2] Electrodiagnostic testing of the lower extremities performed in August 2002 suggested nerve root or sensory pathway dysfunction at the bilateral L5 and S1 level.^[3] Neurodiagnostic studies of the upper limbs performed in August 2002 strongly supported a finding of wrist nerve entrapment or injury.^[4] ___ was treated from June through August with medications and physical therapy, as well as with a TENS unit. He was examined on July 22, 2002, by Dr. James Laughlin, D.O., and was diagnosed with lumbar disc displacement with trigger points. The claimant made some gains in cervical, lumbar, and shoulder range of motion and had some improvement in his pain. The disputed work hardening program, which seems to have been related to the cervical and low back injuries, commenced October 22, 2002, and continued until February 17, 2003. The work hardening services were provided at CDR at the direction of a CDR chiropractor, Ted Krejci, D.C., the claimant’s treating doctor. Following the work hardening program, the claimant was not ready to return to work and was referred for pain management.

Procedural History

The IRO issued its decision July 2, 2003.^[5] St. Paul requested a hearing July 31, 2003. The hearing was convened on November 3, 2003, before State Office of Administrative Hearings (SOAH) Judge Shannon Kilgore. St. Paul was represented by Steve Tipton. Scott Hilliard appeared by telephone for CDR. The hearing adjourned, and the record closed, the same day.

C. Applicable Law

The Texas Labor Code contains the Texas Workers’ Compensation Act (Act) and provides the relevant statutory requirements regarding compensable treatment for workers’ compensation claims.^[6] In particular, the Act provides in pertinent part that:

(a) 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 compensable injury;
2. promotes recovery; or
3. enhances the ability of the employee to return to or retain employment.

* * *

Health care includes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services.^[7]

D. Burden of Proof

Under the Commission’s rules, an IRO decision is deemed a Commission decision and order.^[8] The burden of proof in this case is on St. Paul to prove by a preponderance of the evidence that the disputed services were not reasonable and necessary medical treatments.^[9]

E. IRO Decision

The IRO reviewer noted that on October 16, 2002, an examining doctor recommended continuing treatment that the claimant was not a surgical candidate, and that during the work hardening program the claimant had experienced some positive results.^[10] Therefore, the reviewer concluded that the work hardening program was medically necessary.

F. General Description of the Evidence

The evidence in this case consists of medical records, including reports of evaluations of the claimant’s condition by Dr. Krejci,^[11] Gunda Kirk, D.O. (a designated doctor who examined the claimant),^[12] Mark A. Doyne, M.D. (an orthopaedic surgeon who examined the claimant),^[13] and Terry Troutt, M.D. (a specialist in physical medicine who performed a peer review based on the medical records).^[14] In addition, the following witnesses testified:

Dr. Toutt; and

Lewis Cone, D.C. (the supervisor of the work hardening program at CDR).

G. Analysis and Recommendation

St. Paul’s position. The carrier’s position is that the claimant had received extensive treatment up until the dates of service, and that a full work hardening program was not necessary. Instead, argues St. Paul, the claimant should have been engaged in home exercises and perhaps trigger point injections for a simple strain/sprain injury. St. Paul points to Dr. Troutt’s report of September 4, 2002, and his testimony at the hearing. Dr. Troutt’s report notes that Dr. Laughlin did not find evidence of radiculopathy in his examination of July 22, 2002, and Dr. Laughlin concluded that the herniated disc was not impinging on the nerve root. Dr. Laughlin recommended trigger point injections, which the claimant for some reason declined. Dr. Troutt testified that the records show no evidence to support a finding of radiculopathy or nerve-related symptomatic spinal injury. He also testified that the claimant had, prior to the work hardening program, undergone considerable treatment, consisting of physical medicine and prescription analgesics, and was noted initially to be making gains in his function and level of pain, but then his improvement from physical therapy reached a plateau. His limiting factors were identified in the work hardening notes as flexibility, strength, endurance, pain, and biomechanic issues. From October 22 to November 27, however, his biomechanics were unchanged as good, his pace was unchanged as moderate, and his pain was unchanged as minimal; according to Dr. Troutt, the claimant had no significant gains during that time span. Dr. Troutt recommended a home exercise program, oral analgesics, a TENS unit, and possible trigger point injections. St. Paul contends that CDR failed to document the need for the emotional counseling and vocational training that were included in the work hardening services provided. The carrier notes that no party disputes that more treatment was needed, but the parties dispute whether work hardening was reasonable and necessary.

CDR’s position. CDR emphasizes that claimant’s injuries were serious. CDR points to the abnormal nerve conduction studies and MRI. CDR further points to Dr. Kirk’s report of October 16, 2002, which found that the claimant had not yet reached maximum medical improvement and recommended that he receive injections for cervical dorsolumbar spasms and trigger points and for treatment of sacroiliitis, if needed. Dr. Kirk further recommended that the claimant continue current care under the direction of his treating physician. This, according to CDR, suggests the appropriateness of the work hardening that commenced October 22. Dr. Cone testified that the claimant’s pain and lack of strength were barriers to his return to his physically demanding job, and that he showed increases of strength during the work hardening, as evidenced by his ability to do exercises that involved increasing weight and repetitions. Dr. Cone testified that had the claimant shown no improvement over the course of the work hardening, the program would have been discontinued.

Analysis and recommendation. St. Paul has failed to show that the IRO was wrong to determine that the work hardening program was reasonable and necessary. The positive MRI finding, coupled with abnormal nerve conduction tests of the lower extremities,^[15] suggest possible physical causes of the claimant’s pain and dysfunction. While the record does not conclusively establish that the claimants symptoms were related to these objective findings, Dr. Kirk, the designated doctor who examined the claimant in October, noted that ___ had multiple findings on physical exam, indicating more treatment.^[16] Dr. Kirk recommended work hardening.^[17] Dr. Kirk’s report describes the considerable physical demands of the claimant’s work as a carpenter and indicates that the claimant experienced pain when lifting or exercising. The record documents some improvement, albeit limited, in the claimant’s strength over the course of the work hardening program. Although St. Paul asserts that there was no documented reason for the psychosocial element of work hardening, there is evidence in the record that the claimant may have been experiencing some symptom magnification and he showed signs of depression and anxiety.^[18]

On balance, the ALJ finds that the IRO decision was supported by the evidence.

II. FINDINGS OF FACT

1. The claimant, ___, suffered a compensable back injury on ___. He was a ___employed in construction and he fell off a scaffold, injuring his back and neck.
2. St. Paul Fire & Marine Insurance Company (St. Paul) is the workers’ compensation insurer with respect to the claims at issue in this case.
3. Central Dallas Rehab (CDR), a chiropractic clinic, administered a work hardening program to the claimant from October 22, 2002, until February 17, 2003.
4. St. Paul declined to pay for these services. St. Paul asserts that they were medically unnecessary.
5. The amount in dispute is approximately $16,047.00.
6. CDR requested medical dispute resolution.
7. On July 2, 2003, an independent review organization (IRO) issued a decision finding that the disputed services were reasonable and necessary.
8. St. Paul requested a hearing.
9. Notice of the hearing was issued August 27, 2003.
10. The notice 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 sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
11. The hearing was convened on November 3, 2003, before State Office of Administrative Hearings (SOAH) Judge Shannon Kilgore. St. Paul was represented by Steve Tipton. Scott Hilliard appeared by telephone for CDR. The hearing adjourned, and the record closed, the same day.
12. Prior to his injury, the claimant had a very physically demanding job.
13. An MRI scan of the claimant’s lumbar spine performed on July 9, 2002, showed a broad-based 3-mm disc herniation at L4-L5, touching and flattening the thecal sac and causing a mild to moderate amount of spinal stenosis.
14. Electro diagnostic testing of the lower extremities performed in August 2002 suggested nerve root or sensory pathway dysfunction at the bilateral L5 and S1 level.
15. Gunda Kirk, D.O., a designated doctor who examined the claimant in October 2002, recommended work hardening for the claimant.
16. Prior to commencing the work hardening program, the claimant may have been experiencing some symptom magnification, and he showed signs of depression and anxiety.
17. Over the course of the work hardening program, the claimant made some gains in his strength.
18. The work hardening program was reasonable and necessary.

III. CONCLUSIONS OF LAW

1. (The Texas Workers’ Compensation Commission (Commission) has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers’ Compensation Act (the Act),
2. Tex. Lab. Code ch. 401 et seq.
3. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order. Tex. Lab. Code §413.031; Tex. Gov’t Code ch. 2003.
4. 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. Tex. Lab. Code § 408.021.
5. St. Paul timely filed a notice of appeal as specified in 28 Texas Administrative Code § 148.3.
6. Adequate and timely notice of the hearing was provided in accordance with the Administrative Procedure Act. Tex. Gov’t Code § 2001.052.
7. St. Paul has the burden of proof in this matter. 28 Tex. Admin. Code §§ 133.308(p)(5) and (w),148.21(h)-(i).
8. Based on the Findings of Fact, and pursuant to §408.021 of the Texas Labor Code, St. Paul must reimburse CDR for the disputed dates of service.

ORDER

IT IS THEREFORE ORDERED that St. Paul Fire & Marine Insurance Company pay for the work hardening program administered to the claimant ___. by Central Dallas Rehab from October 22, 2002, until February 17, 2003.

Issued this December 18, 2003.

SHANNON KILGORE

State office of administrative hearings
Administrative Law Judge

1. CDR sought medical dispute resolution concerning St. Paul’s denial of reimbursement for a number of different kinds of services, including office visits, office visits with manipulations, MRIs, and an FCE. While the IRO determined that the work hardening was reasonable and necessary, it concluded that some of the other charges should not be reimbursed. Both parties agree that only the work hardening services are at issue here. In his opening statement, counsel for the carrier stated that the amount in controversy was $16,047.00, which counsel for the provider did not dispute. Counsel for the carrier did not explain exactly how he arrived at this figure, but both parties agreed that his calculation is accurate or close to accurate.↑
2. Provider Ex. 1 at 135.↑
3. Id. at 131-132.↑
4. Id. at 133-134.↑
5. Provider Ex. 2 at 12-15. It was mailed by the Texas Workers’ Compensation Commission on July 14, 2003.↑
6. Tex. Lab. Code §408.021.↑
7. Tex. Lab. Code §401.011(19).↑
8. 28 Tex. Admin. Code § 133.308(p)(5).↑
9. 28 Tex. Admin. Code §§’ 133.308(p)(5) and (w), 148.21(h)-(i).↑
10. Provider Ex. 2 at 15.↑
11. Provider Ex. 1 at 63-64.↑
12. Id. at 138-144.↑
13. Carrier Ex. 1 at 14-23.↑
14. Id. at 4-13.↑
15. See Provider Ex. 1 at 132.↑
16. Provider Ex. 1 at 143.↑
17. Dr. Kirk examined the claimant about a week before he began work hardening. However, she apparently believed that the claimant had already started the program. Dr. Kirk stated, Examinee is not at MMI. He is currently in a work hardening program. She then stated that he needed more treatment. And a little further down in the report she said that he should [c]ontinue current care under the direction of his treating physician. Id. Since Dr. Kirk clearly believed the claimant was already in work hardening, this can only be interpreted to mean that she was recommending a continuance of the program.↑
18. Provider Ex. 1 at 151.↑