DECISION AND ORDER

Main Rehab and Diagnostic (Petitioner) appealed the decisions of the Texas Workers’ Compensation Commission’s (Commission) designee, an independent review organization (IRO), in MR Docket Nos. M5-03-3103-01 and M5-04-0315-01, which denied reimbursement for a work hardening (WH) program and associated functional capacity evaluations (FCEs) and office visits Petitioner provided to a workers’ compensation claimant (Claimant). The IRO decisions upheld denials of reimbursement by Zurich American Insurance Company (Respondent) as not being medically necessary healthcare. This decision finds Petitioner is not entitled to reimbursement for the WH services, FCEs, or the office visits.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

There were no contested issues of jurisdiction, notice or venue. Therefore, those issues are addressed in the findings of fact and conclusions of law without further discussion here.

Pursuant to a Prehearing Order No. 3, the appeals of MR Docket Nos. M5-03-3103-01 and M5-04-0315-01 were consolidated for hearing. The hearing in this matter convened and closed on April 1, 2004, at the State Office of Administrative Hearings, 300 W. 15^th Street, Austin, Texas, with Administrative Law Judge (ALJ) Thomas H. Walston presiding. Petitioner was represented by its attorney, Scott Hilliard. Respondent was represented by its attorney Steven Tipton. The Commission chose not to participate in the hearing. The record closed that same date.

II. DISCUSSION

A. Background Facts

On ________, Claimant, who is right-hand dominant, injured her left arm, including her wrist. She reported the injury occurred when she pulled on a pallet. Her injuries were compensable under the Texas Workers’ Compensation Act (Act). At the time of the compensable injury, Respondent was the workers’ compensation insurer for Claimant’s employer. After her injury, Claimant continued to work on light duty until her surgery at the end of May 2002.

Claimant was initially treated by osteopath Terry Roach for wrist pain that occasionally radiated up her arm. He diagnosed a sprain or strain of the wrist. An MRI revealed Claimant had a ganglion on her left wrist, which was surgically removed on May 24, 2002, by osteopathic surgeon Gerhart Smith.

After surgery, Claimant did not return to work until July 29, 2002, when she was released to light duty with restrictions that she wear a splint on her wrist, not perform any pushing or pulling motions, and not lift more than five pounds occasionally. She had physical therapy rehabilitation through mid-August 2002 and reported good progress.

In December 2002, Dr. Smith referred Claimant to osteopath James Czweski for an MMI evaluation. Dr. Czweski found Claimant at MMI with a 0% impairment rating. During that examination, Claimant reported constant pain in her left wrist and elbow with occasional numbness and tingling in her wrist and intermittent pain in her neck and left shoulder. Claimant reported her left wrist pain was keeping her on light duty at work, where she could not lift the required 42 pounds. A functional segmental innervations testing of the muscles from Claimant’s shoulders to her fingers was normal. No joint swelling was noted in the wrist. Dr. Czweski used a goniometer to test loss of range of motion in the left wrist. Compared to her uninjured right wrist, Claimant’s left wrist flexion, extension, and radial and ulnar deviations were within normal ranges.

In January 2003, Claimant requested she be allowed to change her treating doctor from Dr. Smith to a physician at Petitioner’s facility. On January 21, 2003, Dr. Smith recommended Claimant undergo an FCE and apparently scheduled an appointment for the FCE, which Claimant did not keep.

On January 28, 2003, Claimant saw chiropractor Osler Kamath at Petitioner’s clinic for complaints of left upper extremity pain. In his report, Dr. Kamath stated Claimant’s wrist had been injured when a pallet fell on it. He diagnosed her with repetitive motion injury and parathesia, and told her not to work for a month. On that date, Dr. Kamath had Claimant perform Phalen’s test, a “praying hands” position which he found positive for median nerve stretch and symptoms of carpal tunnel syndrome. He also found a positive Tinel’s sign (percussion over the volar wrist for median nerve distribution) in the left wrist. The extension and flexion stress tests were also abnormal in the left wrist, according to Dr. Kamath. He referred Claimant for a nerve conduction study to rule out a repetitive stress injury.

On January 30, 2003, Claimant underwent another MMI examination, this time with osteopath Myron Glickfeld. Tinel’s, Phalen’s and Finkelstein’s tests on Claimant’s left wrist were negative, according to Dr. Glickfeld. He found her wrist strength was normal bilaterally at 60 pounds. Based on a mild deficit in flexion and ulnar deviation, Dr. Glickfeld found Claimant had a 2% impairment rating on that date.

On February 7, 2003, Claimant underwent an FCE at Petitioner’s clinic, which found she did not even met the sedentary work level criteria. She started in Petitioner’s work hardening program on February 11, 2003. Claimant reached only the sedentary level when she underwent a second FCE on February 28, 2003. By the third FCE on March 19, 2003, Claimant had not yet met the light work level criteria. Her job required she be able to work at a medium level.

On February 12, 2003, Dr. Smith wrote Claimant was “playing games”and released her to return work without restrictions. On February 13, 2003, Claimant requested all her medical records from Dr. Smith be forwarded to Petitioner.

From February 7 through April 29, 2003, Claimant attended Petitioner’s work hardening program and had weekly office visits with Dr. Kamath that were billed under CPT code 99213.

After Respondent denied reimbursement for WH services, FCE, and office visits from February 7 through April 29, 2003, as being medically unnecessary, Petitioner requested the Commission review the denial. That review produced the IRO decisions, which upheld the denials. Petitioner timely appealed the IRO decisions.

B.Legal Standards

Petitioner has the burden of proof in this proceeding. 28 TAC §§148.21(h) and (i). 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. CODE ANN. § 408.021(a). Health care includes all reasonable and necessary medical services including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. § 401.011(31).

C. Petitioner’s Evidence

Petitioner’s witness, Dr. Kamath, testified that all the services Petitioner rendered to Claimant from February through April 29, 2003, were reasonable and medically necessary health care. The disputed dates of service were, according to Dr. Kamath, from February 3 through April 29, 2003.^[1]

Dr. Kamath stated that during his initial examination, Petitioner complained that working, even at light duty, was intensifying her wrist pain. He took Claimant off work because she was not being properly accommodated. She also claimed her arm had been hurting since Dr. Czweski twisted her arm and elbow during his examination. He believed her ganglion cyst was caused by work, not by a congenital or degenerative condition.

On February 3, 2003, Dr. Kamath found Claimant’s wrist had deficits of 50-80% in flexion, extension, and ulnar and radial deviations. He believed he and Dr. Glickfeld used different tests on Claimant. Although Dr. Kamath admitted that the American Medical Association guidelines require testing of upper extremity strength with a goniometer, he did not believe that instrument was better than the instrument he used to test Claimant.

According to Dr. Kamath, the February 7, 2003, FCE showed Claimant did not meet all the criteria for a sedentary job, and she rated her wrist pain as intense at all times. Dr. Kamath claimed that the FCE’s static strength, dynamic lift, range of motion, and work endurance tests showed Claimant was not at her pre-injury status when she began the WH program. Several of Claimant’s

test results on the FCEs had a coefficient of variation below 15%. Dr. Kamath admitted that coefficient of variation below 15% suggested the test result was not valid.

On March 3, 2003, osteopath James Laughlin evaluated Claimant and found she had normal range of motion and no neurovascular compromise in her left wrist. He also found she had positive Tinel’s and Phalen’s tests. He recommended a reevaluation after a EMG and nerve conduction study.

Dr. Kamath asserted that Claimant made progress in the WH program, as shown by the results of the three FCE’s she underwent on February 7 and 28, and March 19, 2003. She improved enough to be released to work at the end of the work hardening program.

Although Dr. Robert Bedford worked with Claimant in the WH program, Dr. Kamath stated that he was her case manager and needed to examine her weekly. His examinations consisted of palpations of the wrist, joint mobilizations, and range of motion testing.

D. Respondent’s Evidence

In addition to the information discussed above, Respondent presented the testimony of its expert, chiropractor Kevin Tomsic. In his peer review report dated February 19, 2003, Dr. Tomsic wrote:

This claimant had been very successful in a modified light-duty program before her injury.^[2] It is apparent and obvious from the review of the records that she has made a complete recovery. Initiation of an off-work status by Dr. Kamath is unreasonable and not medically necessary and also appears to be done for other reasons, such as claimant satisfaction. There is no reason to believe that there is now a need for work hardening. The claimant’s employer does not require full duty status to return to work and therefore, work hardening is not appropriate. . . . . Clearly, this claimant needs to be returned to work full duty with no restrictions. She has evidence of full and complete strength and range of motion with no significant orthopedic or neurological findings. (Res. Ex. 1, pp. 209-210)

Dr. Tomsic’s hearing testimony reiterated the opinions expressed in his peer review report. He also pointed out that the goal of WH is to return the patient to work. Because Claimant was already back at work and could work light duty, the WH program was unnecessary. He also stated the FCE results made no sense. Claimant had been able to work at light duty at her job for months yet the first FCE found she was not even able to perform at a sedentary level, which in Dr. Tomsic’s opinion meant she was too incapacitated even to walk. Together, the gross disparities between the designated doctor’s MMI findings regarding strength and range of motion on January 30, 2003, and Dr. Kamath’s and the FCE’s findings a few days later, caused Dr. Tomsic to doubt the validity of the FCEs. A person well enough to work at light duty would not have scored as poorly on a valid FCE as Claimant did.

Respondent also noted that during a post-WH examination by osteopath John Hood, Claimant was still complaining that she could not push or pull with her left hand. Respondent cited this as proof that Claimant did not benefit from the WH program.

E. Analysis

Petitioner failed to meet its burden of proof to show that any its services to Claimant from February through April 2003 were reasonable and medically necessary. The overwhelming evidence showed that Claimant was able to work with restrictions prior to being referred to the WH program, so that the rationale for her attendance in a WH program was not clear.

Neither Dr. Kamath’s evaluation of Claimant’s physical abilities nor the FCEs appear to have been valid. Multiple doctors had found Claimant’s wrist strength and range of motion to be at normal levels in the weeks before she saw Dr. Kamath. Dr. Glickfeld examined Claimant a few days after Dr. Kamath first saw her, and using the same tests (Tinel’s, Phalen’s, and Finkelstein’s) found Claimant to have normal strength in both wrists.

There was no logical explanation for a drop off of over 50% in strength between the January 30, 2003, testing by Dr. Glickfeld and the first FCE. Even Dr. Kamath admitted that some of Claimant’s FCE scores were so low as to call the validity of her efforts into question.

Petitioner’s evidence did not establish that the WH program was effective, so efficacy did not support its case. After the WH program, Claimant’s complaints did not change. She told Dr. Kamath that she continued to have the same left wrist pain, stiffness, and paresthesia that she experienced before the program. She told Dr. Hood that she could not use her left hand to push or pull.

Finally, Petitioner failed to document the need for Claimant’s weekly office visits with Dr. Kamath. As he was merely monitoring her progress in an unnecessary WH program, Dr. Kamath’s office visits were unnecessary.

Petitioner did not prove that it is entitled to reimbursement for the WH services, the FCEs, or the office visits with Dr. Kamath provided to Claimant from February 7 through April 29, 2003.

III. FINDINGS OF FACT

1. On ________, Claimant sustained an injury to her left wrist compensable under the Texas Workers’ Compensation Act (Act), when she pulled on a pallet.
2. At the time of her compensable injury, Claimant’s employer had workers’ compensation insurance coverage with the American Zurich Insurance Company (Respondent).
3. Claimant’s left wrist was treated with physical therapy both before and after she had surgery on it to remove a ganglion cyst on May 24, 2002.
4. Between her date of injury and the date of her wrist surgery, Claimant was able to work at restricted duty.
5. After her wrist surgery, Claimant returned to work on restricted duty on July 29, 2002.
6. During a designated doctor examination in December 2002, Claimant’s left wrist was found to have normal range of motion and strength.
7. During a designated doctor examination on January 30, 2003, Claimant’s left wrist had negative results on the Tinel’s, Phalen’s and Finkelstein’s tests, normal bilateral wrist strength at 60 pounds, and only mild deficits in flexion and ulnar deviation.
8. Dr. Osler Kamath, a chiropractor working at Main Rehab and Diagnostic (Petitioner), first examined Claimant on January 28, 2003, and found Claimant had less than 50% range of motion in her left wrist.
9. Dr. Kamath referred Claimant for a functional capacity evaluation (FCE), which she underwent on February 7, 2003.
10. Claimant’s initial FCE showed Claimant was so weak she could not even meet sedentary job requirements.
11. Dr. Kamath referred Claimant to Petitioner’s work hardening program, which she attended from February 7 through April 29, 2003.
12. While Claimant was in the work hardening program, she saw Dr. Kamath for weekly office visits.
13. According second FCE on February 28, 2003, Claimant met the requirements for a sedentary job but did not meet the requirements for light duty work.
14. A person who can work at light duty job requirements should not have FCE scores that show she cannot even perform sedentary job requirements.
15. Several of Claimant’s FCE scores were below the 15% coefficient of variation threshold that indicates the test results are not valid.
16. After completing the work hardening program, Claimant told another doctor that she could not use her left hand to push or pull objects.
17. Claimant changed treating doctors after being examined by two designated doctors who found she was at MMI.
18. Dr. Gerhart Smith, D.O., Dr. Kamath’s predecessor as Claimant’s treating doctor, released her to return to work without restrictions on February 13, 2003.
19. The purpose of a work hardening program is to enable the patient to return to work.
20. Claimant did not need a work hardening program in February 2003 because: she was already able to work at light duty employment; she had normal range of motion and strength in her hand; and her injured body part, her left wrist, had been restored to its pre-injury status.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act (Act), TEX. LABOR 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 §13.031(d) of the Act and TEX. GOVT. CODE ANN. ch. 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOVT. CODE 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. GOVT. CODE ANN. §§2001.051 and 2001.052.
5. Petitioner had the burden of proof in this proceeding. 28 TAC §148.21(h) and (i).
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. CODE ANN. § 408.021(a).
7. Health care includes all reasonable and necessary medical services, including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. §401.011(31).
8. Petitioner failed to document Claimant needed a work hardening program or the associated functional capacity evaluations or office visits.
9. Petitioner is not entitled to reimbursement for the work hardening services, functional capacity evaluations, or office visits provided Claimant from February 7 through April 29, 2003.

ORDER

It is ORDERED that Petitioner Main Rehab and Diagnostic is not entitled to reimbursement for the work hardening services, functional capacity evaluations, or office visits provided Claimant from February 7 through April 29, 2003, because those services were not reasonable or medically necessary healthcare.

Signed May 18, 2004.

THOMAS H. WALSTON
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. In MR No. M5-03-3103-01, the IRO reviewer concluded that the office visits/FCEs/Work Hardening from 2/7/03 through 4/29/03 were not medically necessary to treat the patient’s condition. In MR No. M5-04-0315-01, the IRO reviewer wrote that the only disputed dates of service were March 12, 26, and 27, 2003. SOAH only has jurisdiction to review the dates included in the IRO decisions. Because neither IRO decision ruled on a date of service prior to February 7, 2003, this appeal is limited to dates of service from February 7 through April 29, 2003.↑
2. Although he wrote “injury,” from the context, the ALJ presumed Dr. Tomsic meant Claimant had done well on light-duty before her surgery, not before the injury.↑