DECISION AND ORDER

South Coast Spine & Rehab Center, P.A. (Provider) is challenging the determination of the independent review organization (IRO) upholding the decision of TML Intergovernmental Risk Pool (Carrier) to deny as medically unnecessary thirty sessions of a work hardening program for ___ (Claimant). The Administrative Law Judge (ALJ) concludes that preauthorization for the program was medically necessary and should be provided.

I.PROCEDURAL HISTORY, NOTICE, AND JURISDICTION

ALJ Penny A. Wilkov conducted a hearing on September 22, 2004, at the State Office of Administrative Hearings (SOAH), William P. Clements Building, 300 West 15^th Street, Austin, Texas. Robert S. Howell, D.C., appeared on behalf of Provider. Attorney Steven M. Tipton appeared on behalf of Carrier. The record closed the day of the hearing. The parties did not contest notice or jurisdiction.

II. DISCUSSION

A. Background

Claimant, a forty-six year old male, sustained a work-related injury to his lower back on____, while employed as a firefighter for the City of Brownsville, Texas. He was undergoing training as an Airport Rescue Firefighter and was required to pull extremely heavy hoses and wear full bunker gear and personal protective packs during five fire-drills involving a potential airport disaster with spilled airline fuel. The next day he woke up with severe pain to his lower back and shoulder which continues, with a subjective level of pain of eight on a scale of one to ten with ten being the highest level of pain.

Claimant has been diagnosed with a 3 mm. disc bulge at L4-L5 indicative of a small posterior annular tear and a 2.5 mm. central disc protrusion at L5-S1.^[1] The medical records indicate that he has been primarily under the care of Robert S. Howell, D.C.

Provider requested preauthorization for participation for thirty sessions of a work hardening program. Carrier disputes that these services are medically necessary.

B. Medical Necessity of Work Hardening Program

Provider

Provider asserts that a work hardening program is medically necessary to return Claimant to work as an active firefighter, capable of lifting very heavy equipment or people in emergency situations. Provider’s work hardening program is designed to return Claimant to the “very heavy work” category of physical exertion, from the current “heavy work” category, based upon the categories incorporated in the Dictionary of Occupational Titles, U. S. Department of Labor, 4^th Edition, 1991.^[2]

In support of this position, Provider presented the testimony of Claimant, a firefighter for twenty-two years with the Brownsville Fire Department and presently holding the rank of Captain.

As part of his firefighting duties, Claimant testified that he is required to wear very heavy breathing and protective equipment weighing 75-80 pounds, to assist with positioning ladders weighing at least 80 pounds, and to help lift fire hoses capable of weighing as much as 200 pounds. Claimant also testified that he is required, in addition to his firefighting duties, to assist with the “jaws of life,” a heavy device to extricate car accident victims, and to assist with lifting the injured parties for transport to the hospital. As a firefighter, he must work long shifts and be prepared to respond to a fire call within 60 seconds of the alarm without any chance to stretch or warm-up muscles.

In order to assess Claimant’s strength and lifting capacity, three Functional Capacity Examinations (FCEs) were performed by Provider in January 2004, February 2004, and April 2004.^[3] Each FCE showed a steady progression of physical demand capabilities, attributable to Provider’s return to work program from the January 2004 initial categorization of “light work,” capacity of lifting up to 20 pounds; to the February 2004 categorization of “medium work,” capability of lifting up to 50 pounds; to the April 2004 categorization of “heavy work,” capability of lifting up to 100 pounds. Provider asserts that the work hardening program will progress Claimant to the “very heavy work” category, by incorporating very heavy firefighting equipment into the program.

The “very heavy work” category, encompassing the ability to lift objects over 100 pounds, is an occupational requirement of a firefighter and there are no jobs available for restricted duty. Claimant testified that if he were unable to lift this type of weight, it would be grounds for termination. Claimant also testified that he is highly motivated to return to work because of his job enjoyment and the prospect of retirement with full benefits in three years. Along those lines, he underwent a psychological evaluation to assess his candidacy for work hardening and was determined to be a good candidate due to his willingness to participate in hopes of returning to productive employment.^[4] However, the psychological evaluation revealed symptoms of anxiety, depression, and sleeplessness, symptomatic of his pain, limitations on daily activities, and inability to work. As part of the work hardening program, these problems would be addressed in a cognitive-behavioral psychotherapy group session for the purpose of improving skills for coping with the injury, modifying pain behaviors, overcoming barriers to effective rehabilitation, and increasing success in the recovery process.^[5]

Carrier

Carrier’s position is twofold: the work hardening program offered by Provider is ineffective and Claimant would be better served with a work conditioning program. Carrier points to the types of activities offered by Provider on the daily progress notes for a return to work program as proof that the planned work hardening program will be unproductive.^[6] Claimant participated in Provider’s program for fifteen sessions in March and April 2004. These activities, billed as therapeutic exercises and activities, included cooking breakfast, bowling, playing darts, washing a car, playing golf, mowing the lawn, and shopping at Home Depot. Carrier disputes that these types of activities could progress Claimant to the “very heavy” category of physical demand capabilities. Carrier argues instead that Claimant would be better served with self-directed therapeutic activities to increase Claimant’s strength and functionality, such as offered by a gym and weight training.

Further, Carrier refutes the necessity for the psychological component in the work hardening program, an individualized multi-disciplinary treatment plan. Although Carrier concedes that Claimant may have self-esteem issues with his disability, Carrier fails to see any evidence of any psychological barriers to Claimant’s full recovery and suggests a work conditioning program instead. A work conditioning program offers therapeutic activities to increase functionality and ability for sustained physical activities without any unnecessary psychological or vocational treatment offered by a work hardening program.

C. Applicable Law

Under the workers’ compensation system, an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury. 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. Lab. Code Ann. § 408.021. “Health care” includes “all reasonable and necessary medical . . . services.” Tex. Lab. Code Ann.§ 401.011(19). Certain healthcare, however, must be preauthorized before it can be provided and such preauthorization will be granted only if there is a prospective showing of medical necessity. Tex. Lab. Code Ann. § 413.014. Work Hardening is included in the type of treatment which requires preauthorization. 28 Tex. Admin. Code § 134.600(h)(9).

D. Analysis

After considering the documentary evidence and the testimony, the ALJ concludes that Provider has shown that the work hardening program is medically necessary for Claimant’s work-related injury. Provider has shown that his return to work program, although employing fairly unorthodox methods and therapies, has proven to be an effective program to increase Claimant’s strength and functionality as measured by the upward progression in categories of physical exertions. The Provider also has shown that cooking, cleaning, and recreational activities are the types of activities typically performed by a firefighter in the firehouse to pass the time between emergencies and thus the program is individualized to Claimant’s job situation. It also appears that the disputed services will promote recovery and the ability to return to work since the program has various components designed to help Claimant gain physical strength with which to resume occupational activities and deal with depression, pain, anxiety, and sleeplessness. A program specifically designed to return Claimant, a forty-six year-old worker, to a more productive life both physically and psychologically would promote recovery and enable him to return to work.

E. Conclusion

The work hardening program is medically necessary for the treatment of Claimant’s injury and should be preauthorized.

III. FINDINGS OF FACT

1. Claimant, a forty-six year old firefighter for the City of Brownsville, Texas, sustained a work-related injury to his lower back on____, while undergoing training as an Airport Rescue Firefighter.
2. As part of the Airport Rescue training, Claimant was required to pull extremely heavy hoses and wear full bunker gear and personal protective packs during five fire-drills involving a potential airport disaster with spilled airline fuel.
3. Claimant woke up the next day with severe pain to his lower back and shoulder which continues, with a subjective level of pain of eight on a scale of one to ten, with ten being the highest level of pain.
4. Claimant has been diagnosed with a 3 mm. disc bulge at L4-L5 indicative of a small posterior annular tear and a 2.5 mm. central disc protrusion at L5-S1.
5. Claimant has been primarily under the care of Robert S. Howell, D.C.
6. Claimant suffers from depression, sleeplessness, and anxiety, which are symptomatic of his pain, limitations on daily activities, and inability to work.
7. At the time of the injury, Claimant’s employer had its workers’ compensation insurance through TML Intergovernmental Risk Pool (Carrier).
8. South Coast Spine & Rehab Center, P.A., (Provider) requested preauthorization to treat Claimant with thirty sessions of a work hardening program.
9. Carrier denied Provider’s request for preauthorization.
10. Provider requested medical dispute resolution before the Texas Workers’ Compensation Commission (Commission).
11. The Commission’s designee, an independent review organization (IRO), upheld the Carrier’s decision and denied Provider’s request for preauthorization.
12. Provider requested a contested case hearing before the State Office of Administrative Hearings and requested preauthorization for the work hardening program.
13. 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 statutes and rules involved; and the matters asserted.
14. The hearing on the merits convened on September 22, 2004, before Penny A. Wilkov, Administrative Law Judge. Robert S. Howell, D. C., appeared on behalf of Provider. Attorney Steven M. Tipton appeared on behalf of Carrier. The record closed on September 22, 2004.
15. Provider’s work hardening program is designed to return Claimant to the “very heavy work” category of physical exertion, from his current “heavy work” category.
16. Provider’s work hardening program is medically necessary to return Claimant to work as an active firefighter, capable of lifting very heavy equipment or people in emergency situations.
17. Provider’s program also addresses the types of activities typically done by a firefighter in the firehouse to pass the time between emergencies, and thus the program is individualized to Claimant’s job situation.
18. The work hardening program at issue will promote recovery and the ability to return to work since the program has various components designed to help Claimant gain physical strength and functionality to resume occupational requirements, and deal with the depression, anxiety, and sleeplessness.
19. The Claimant could benefit from the psychological component of a work hardening program offered by Provider.

IV. CONCLUSIONS OF LAW

1. 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 Tex. Lab. Code Ann. §§ 402.073 and 413.031(k) and Tex. Gov’t Code Ann. ch. 2003.
2. Provider timely requested a hearing on the IRO decision, as specified in 28 Tex. Admin. Code (TAC) § 148.3.
3. Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov’t Code Ann. ch. 2001 and 28 TAC § 148.4(b).
4. Provider had the burden of proving the case by a preponderance of the evidence, pursuant to 28 TAC § 148.21(h) and (i).
5. An employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the compensable 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).
6. As provided by Tex. Lab. Code Ann. §413.014 and 28 TAC 134.600(h)(9), preauthorization is required for a work hardening program.
7. Based on Findings of Fact Nos.15 through 19, the requested work hardening program is medically necessary.
8. Based on the foregoing findings of fact and conclusions of law, Provider is entitled to preauthorization for the medically necessary treatment.

ORDER

It is hereby ordered that Provider’s request for preauthorization of thirty sessions of the work hardening program for Claimant is granted.

Signed October 20, 2004

PENNY WILKOV
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. ¹ Petitioner’s Exhibit 1, page 8 (Examination by Jorge E. Tijmes, M.D., February 5, 2004).↑
2. ² Physical Exertion Requirements, 20 C.F.R § 404.1567 (as adopted by the Social Security Administration):

Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.

Medium work: Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.

Heavy work: heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds.

Very Heavy work: very heavy work involves lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more.↑

3. ³ Petitioner’s Exhibit 1, Pages 20-56.↑
4. ⁴ Petitioner’s Exhibit 1, pages 10-14 (Diagnostic Review to Evaluate Readiness for Work Hardening, Rick Moses, Ph.D. on February 24, 2004).↑
5. ⁵ Petitioner’s Exhibit 1, page 96 (Rick Moses, Ph.D.)↑
6. ⁶ Petitioner’s Exhibit 1, pages 57-79.↑