DECISION AND ORDER

An injured worker (Claimant) appealed an independent review organization (IRO) determination that a work hardening program she requested was medically unnecessary. Her insurance carrier, Louisiana Pacific Corporation (Louisiana Pacific), had denied the claim. This decision concludes that the Claimant did not prove the need for a work hardening program because the evidence failed to show that she has responded positively to active therapy or that she needed psychological services.

I. PROCEDURAL HISTORY

A hearing convened in this matter on April 19, 2004, before the undersigned Administrative Law Judge (ALJ) at the State Office of Administrative Hearings (SOAH), Austin, Texas. The Claimant appeared and was assisted by Juan Mireles, Ombudsman. Louisiana Pacific appeared and was represented by its counsel, Tommy Lueders. The hearing closed on April 19, 2004.

As there were no issues concerning notice or jurisdiction, those matters are set forth in the fact findings and legal conclusions without further discussion here.

II. DISCUSSION

Background

The Claimant, a thirty-seven year-old female, was diagnosed with bilateral carpal tunnel syndrome, an at-work injury, and had surgeries on her wrists in 1998 and 1999. In October 2001, she again began to have wrist pain that worsened over time. She had repeat surgery to her left wrist in August 2002 and right wrist in January 2003. She maintained the injury was caused by steady hand movement and by hitting her hand on an iron plate close to her work area.^[2]

The Claimant presented to Accident and Injury Center and Steven J. Enabit, D.C., in July 2003. According to testimony from Huy Le, D.C., an associate of Dr. Enabit’s, the Claimant has

received passive care for several months under Dr. Enabit’s direction. She at first received deep

tissue massage to abate muscle hypertonicity in the right and left wrists and neck area and interferential therapy in the same areas to encourage muscle strengthening and reduction of tissue congestion. The “assessment” portion on each of Dr. Ebnet’s office notes over several months said, “There has been a slight improvement in the patient’s condition and therefore treatment is medically necessary.” Dr. Le testified that on August 18, 2003, the Claimant’s treatment changed to neuromuscular re-education, ulhtrasound, interferential therapy, and deep tissue massage. He indicated her pain had decreased and her range of motion had improved. In September 2003, the ultrasound and neuromuscular reeducation were discontinued. In December 2003, she began receiving paraffin baths for her wrists^[3] in conjunction with deep tissue massage.

Employees have a right to necessary health treatment under Tex. Labor Code Ann. §§ 408.021 and 401.011. Section 408.021(a) provides, “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.” Section 401.011(19) of the Labor Code provides that health care includes “all reasonable and necessary medical . . . services.”

As Appellant, the Claimant has the burden of proof.^[4]

1. Discussion
2. Evidence and Argument

A managed care company, Sedgwick CMS, provided peer reviews dated October 15, 2003, and October 21, 2003. The physician adviser said on October 15, 2003,

Status post bilateral carpal tunnel syndrome. No psychologic screening to establish that patient has psychological issues that would require Work Hardening Program. Patient has no job to return to, so how can job simulation be provided? Patient’s pain level & objective exam findings are mild.

The advisor wrote on October 21, 2003,

No evidence that the patient has had a trial of psychological medications, and no evidence that the patient has responded with active rehabilitation to date. There is no clinical rationale to support the necessity of supervised active rehabilitation as opposed to a home based

protocol.^[5]

The Ombudsman contended the Claimant’s records show the possibility of her improving with work hardening. He said an August 2003 functional capacity evaluation (FCE) shows she may be able to handle light work, including exerting from 11 to 25 pounds of force occasionally. In addition, she has followed the course of treatment prescribed for her.

In a letter dated October 13, 2003, Keith Calda, D.C., of East Texas Chiropractic, stated his belief that the Claimant might be able to return to work with light or modified duty, except for what he believes to be psychological issues. He said she has been depressed and concerned about her ability to return to work when she has presented to his office. He indicated her distress appears to be directly related to the pain and physical limitations she has experienced since her injury. He maintained her psychological issues need to be addressed for her to be able to safely return to work. He explained that the work hardening program would be designed specifically for the Claimant and described what it would do.

Dr. Calda wrote on October 15, 2003, that a psychological profile was performed by an LPC regarding the Claimant’s need for work hardening. Although he indicated the opinion accompanied his letter, it is not contained in the record. In the same letter, Dr. Calda said, in response to peer-review-doctor comments concerning the Claimant’s limited range of motion (ROM), that the limitation was caused by obesity that work hardening should be able to change.

Dr. Le testified that the work hardening program would consist of multi-disciplinary activities, including work simulation. He said the Claimant would also continue to receive passive-modality treatment as needed to relieve her pain, including paraffin baths, deep tissue massage, ultrasound, neuromuscular re-education, and interferential therapy. He asserted that the the Claimant’s records show continued improvement during treatment. He said he believed the work hardening program was reasonable and necessary. He acknowledged he did not know what medications the Claimant is taking and agreed it would be important to have that information.

Analysis

On two bases, the ALJ concludes that the Claimant did not prove her need for work hardening. The Sedgwick CMS peer review doctor pointed out there is no evidence she has responded to active rehabilitation to dateBthe records and Dr. Le’s testimony show the Claimant has received extensive passive therapy from her chiropractors. The peer review doctor’s opinion was persuasive that the need for work hardening cannot be known without seeing how the Claimant responds to active modalities.^[6] Moreover, if the Claimant’s injury has been too painful for active modalities, as Dr. Le seemed to imply by his testimony that she might need continued passive-modality treatment during work hardening to control her pain, it seems likely that work hardening would also be too painful.

The second reason for concluding the need for work hardening was not proved is the evidence failed to show the Claimant’s need for psychological treatment. The LPC psychological evaluation of the Claimant was not included in the record. Dr. Calda was not shown to be qualified to state an opinion on the Claimant’s psychological condition.

III. FINDINGS OF FACT

1. The Claimant, a thirty-seven year old female, was diagnosed with bilateral carpal tunnel syndrome, an at-work injury, and had surgery on her wrists in 1998 and 1999.
2. The Claimant had repeat surgery to her left wrist in August 2002 and right wrist in January 2003.
3. The Claimant presented to Accident and Injury Center and Steven J. Enabnit, D.C., in July 2003.
4. The Claimant received passive care under Dr. Enabnit’s direction for several months.

a.At first, she received deep tissue massage to abate muscle hypertonicity in her wrists and neck area and interferential therapy in the same areas to encourage muscle strengthening and reduction of tissue congestion.

b.On August 18, 2003, her treatment changed to neuromuscular re-education, ultrasound, interferential therapy, and deep tissue massage.

c.In September 2003, the ultrasound and neuromuscular reeducation were discontinued.

d.In December 2003, she began receiving paraffin baths for her wrists in conjunction with deep tissue massage.

1. The Claimant’s condition has improved slightly over time; although her range of motion has improved, it has been restricted by her being overweight.
2. The Claimant submitted a request to her employer’s insurance carrier, Louisiana Pacific Corporation (Louisiana Pacific), for approval or a work hardening program.
3. Louisiana Pacific denied the request.
4. The Claimant requested medical dispute resolution.
5. An independent review organization (IRO) determined that work hardening program should be denied.
6. The Claimant requested a hearing not later than the twentieth day after receiving notice of the IRO decision.
7. The work hardening would consist of a multi-disciplinary approach, including work simulation activities and group psychotherapy.
8. During work hardening, the Claimant would also continue to receive passive therapy, including paraffin baths, deep tissue massage, ultrasound, neuromuscular reeducation, and interferential therapy, on an as-needed basis to control pain.
9. There is no evidence that the Claimant has responded to active modality rehabilitation.
10. There was insufficient evidence to show the Claimant has a need for psychological services.
11. The work hardening program was not shown to be reasonably required by the nature of the Claimant’s injury.
12. All parties received not less than ten 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.
13. All parties had an opportunity to respond and present evidence and argument on each issue involved in the case.

V. 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. The Claimant has the burden of proof. 1 Tex. Admin. Code (TAC) § 155.41(b); 28 Tex. Admin. Code §148.21(h).
4. The requested work hardening program was not shown to be medically necessary. Tex. Lab. Code Ann. § 408.021.
5. The Claimant’s request for approval of a work hardening program should be denied.

ORDER

IT IS THEREFORE ORDERED that the Claimant’s request that a work hardening program be provided by Louisiana Pacific Corporation be, and the same is hereby, denied.

Signed May 3, 2004.

JAMES W. NORMAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The Claimant’s name is not used to protect her confidentiality.↑
2. Her job position was a “lay up operator.” This was not otherwise described in the record.↑
3. The bath consists of placing the Claimant’s hands and wrists into hot wax to increase blood circulation.↑
4. 1 Tex. Admin. Code (TAC) § 155.41; 28 TAC § 148(h).↑
5. The IRO opinion was based on a doctor’s previous determination that the Claimant has achieved clinicalmaximum medical improvement (MMI). MMI is defined as the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer be anticipated. The IRO doctor cited the Medical Fee Guidelines as requiring that persons be able to benefit from the program. The doctor said the Claimant is not likely to benefit from a work hardening program because she has reached MMI and has had extensive physical therapy this year. On questioning from the ALJ, the parties acknowledged that attainment of clinical MMI is not, and historically in workers’ compensation cases has not been seen as, an impediment to further necessary treatment.↑
6. It seems possible that active therapy treatment might have obviated the need for further treatment.↑