DECISION AND ORDER

American Home Assurance Co., (Carrier) appealed the decision of an Independent Review Organization (IRO) authorizing 20 sessions of work hardening for Claimant J. M. The work hardening was to be performed at the facilities of Omni Physical Therapy (Provider). The Administrative Law Judge (ALJ) finds that Carrier met its burden of showing the requested work hardening sessions are not medically necessary. Therefore, Carrier is not ordered to preauthorize the requested treatment.

The hearing convened and closed on February 3, 2004, before the State Office of Administrative Hearings (SAOH) with ALJ Steven M. Rivas presiding. Carrier was represented by Dan Kelley, attorney. Provider was represented by Dexter M. Brizuella, PT.

I. DISCUSSION

Background Facts

Claimant was employed as a door greeter at Wal-Mart Stores, Inc., and sustained an injury on April 5, 2003. Claimant was treated for his injuries and subsequently came under the care of Joseph Cotler, M.D. Dr. Cotler recommended that Claimant undergo 20 sessions of work hardening and sought preauthorization from Carrier, which was denied as not medically necessary.

Applicable Law

Pursuant to the Texas Workers= Compensation Act (the Act), Tex. Lab. Code Ann. ‘ 408.021et seq., an employee who sustains a compensable injury is entitled to all 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.

Under Tex. Lab. Code Ann. ‘ 401.011(19), health care includes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services.

Certain categories of health care identified by the Commission require preauthorization, which is dependant upon a prospective showing of medical necessity under ‘ 413.014 of the Act and 28 Tex. Admin. Code (TAC) ‘ 134.600. In this instance under 28 TAC ‘ 134.600(h)(9), preauthorization is required for the work hardening requested by Provider.

Analysis and Conclusion

The work hrdening sessions are not medically necessary because Provider did not offer sufficient evidence that Claimant needed work hardening to perform his duty as a door greeter. Claimant had been employed by Wal-Mart for several years and sustained a prior back injury in 2001 when his job duties were that of a merchandise stocker. Following the 2001 injury, Claimant was treated, placed on permanent restrictions, and reassigned to light duty as a door greeter. Claimant apparently re-injured himself on April 5, 2003, but gave two different descriptions of how the injury occurred. On his TWCC-1, AFIRST REPORT OF INJURY Claimant indicated he injured himself while pushing shopping carts. However, he informed one of his treating doctors, David Bush, D.C., that he injured himself while restocking items.

Nevertheless, his job description on the TWCC-1 indicted his position was a Apeople/exit greeter on the date of injury, and no evidence to the contrary was presented. Dexter Brizuella, PT, an employee of Provider, and Dr. Bush both testified Claimant had undergone a work hardening program following his 2001 injury with good results. Additionally, they both testified that the presently requested work hardening sessions were necessary in order to get him to the condition he was in before his 2001 injury. However, this is not the goal of a work hardening program under the Commission’s Medical Fee Guideline (MFG). Under the MFG, a work hardening program is a highly structured, goal-oriented, individualized treatment program designed to maximize the ability of the persons served to return to work. Mr. Brizuella and Dr. Bush apparently want to revisit the 2001 injury by administering a new round of work hardening sessions in order to place Claimant in a condition to perform job duties different than his current prescribed duties or the duties he had when he was injured in April 2003.

Meliss Tonn, M.D., reviewed the records in this matter, and testified that a door greeter was the Aleast physically demanding position at Wal-Mart or anywhere else. Dr. Tonn additionally indicated that Claimant had not lost any time from work and had continued to work as a door greeter throughout his treatment after the 2001 and 2003 injuries. Because a work hardening program is designed to get a claimant back to work, it makes no sense to authorize a work hardening program for a claimant who continues to fully function in the same position he had when he sustained the injury.

It is unclear why Claimant’s treating doctors have recommended another work hardening program, but what is clear is that Claimant does not need another work hardening program in order to function at his current position of door greeter.

II. FINDINGS OF FACTS

1. Claimant sustained an injury on April 5, 2003.
2. As a result Claimant’s injury, he came under the care of Joseph Cotler, M.D., who recommended Claimant undergo 20 sessions of work hardening at Omni Physical Therapy (Provider).
3. Provider sought preauthorization from American Home Assurance (Carrier), which was denied as not medically necessary.
4. Provider sought medical dispute resolution with an Independent Review Organization (IRO), which held the requested treatment was medically necessary.
5. Carrier timely appealed the IRO decision to the State Office of Administrative Hearings.
6. Notice of the hearing in this case was mailed to the parties on January 12, 2004. 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. In the notice, the Commission’s staff indicated that it would not participate in the hearing.
7. The hearing convened and closed on February 3, 2004, before Steven M. Rivas, Administrative Law Judge. Carrier appeared and was represented by Dan Kelley, attorney. Provider was represented by Dexter Brizuella, PT.
8. Claimant was a door greeter when he sustained his injury.
9. Claimant has continued to fully function as a door greeter after his injuries in 2001 and 2003.

III. CONCLUSIONS OF LAW

1. The Commission has jurisdiction over this matter pursuant to Tex. Lab. Code Ann. ‘ 413.031.
2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. ‘413.031(k) and Tex. Gov=t Code Ann. ch. 2003.
3. Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov=t Code Ann. ”2001.051 and 2001.052 and 28 Tex. Admin. Code ‘ 148.4.
4. Carrier had the burden of proof by a preponderance of the evidence, pursuant to Tex. Lab. Code Ann. ‘ 413.031 and 28 Tex. Admin. Code ‘148.21(h).
5. Provider offered insufficient evidence that the request 20 sessions of work hardening would cure or relieve the effects of the injury, promote recovery, or enhance Claimant’s ability to obtain or retain employment in accordance with Tex. Lab. Code Ann. ‘ 408.021 because Claimant has lost no time off work.
6. Carrier offered sufficient evidence that the requested 20 sessions of work hardening was not medically necessary to get Claimant in a condition where he could return to work as a door greeter.
7. Based on the above Findings of Fact and Conclusions of Law, the request for preauthorization should be denied.

ORDER

THEREFORE IT IS ORDERED that Omni Physical Therapy is not entitled to preauthorization for the 20 requested sessions of work hardening.

Signed February 23, 2004.

STEVEN M. RIVAS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS