Your FREE and easy resource for all things Texas workers' compensation
At a Glance:
October 21, 2009
Concurrent Medical Necessity


October 21, 2009


This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and Rules of the Division of Workers’ Compensation adopted thereunder.


A contested case hearing was held on October 21, 2009 to decide the following disputed issue:

  1. Is the preponderance of the evidence contrary to the decision of the IRO that the Claimant is entitled to 80 hours of work hardening for the compensable injury of ______________?


Petitioner/Carrier appeared and was represented by TS, attorney. Respondent appeared and was represented by ML, attorney. Claimant also appeared. Claimant's attorney KS declined the opportunity to appear.


Claimant suffered a compensable injury on ______________, when he cut the tips of his left index, middle, and ring fingers while using a power saw. He has had several surgeries, the most recent in February 2009. He has not worked in about three years. Respondent requested 80 hours of work hardening for Claimant. The IRO doctor, an MD board certified in physical medicine and rehabilitation, overturned the previous adverse determination and found that medical necessity exists for the requested treatment.

Texas Labor Code Section 408.021 provides that 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. Health care reasonably required is further defined in Texas Labor Code Section 401.011 (22a) as health care that is clinically appropriate and considered effective for the injured employee's injury and provided in accordance with best practices consistent with evidence based medicine or, if evidence based medicine is not available, then generally accepted standards of medical practice recognized in the medical community. Health care under the Texas Workers' Compensation system must be consistent with evidence based medicine if that evidence is available. Evidence based medicine is further defined in Texas Labor Code Section 401.011 (18a) to be the use of the current best quality scientific and medical evidence formulated from credible scientific studies, including peer-reviewed medical literature and other current scientifically based texts and treatment and practice guidelines.

In accordance with the above statutory guidance, the Division of Workers' Compensation has adopted treatment guidelines by Division Rule 137.100. This rule directs health care providers to provide treatment in accordance with the current edition of the Official Disability Guidelines (ODG), and such treatment is presumed to be health care reasonably required as defined in the Texas Labor Code. Thus, the focus of any health care dispute starts with the health care set out in the ODG. Also, in accordance with Division Rule 133.308 (t), "A decision issued by an IRO is not considered an agency decision and neither the Department nor the Division are considered parties to an appeal. In a Contested Case Hearing (CCH), the party appealing the IRO decision has the burden of overcoming the decision issued by an IRO by a preponderance of evidence-based medical evidence."

The ODG provides concerning work hardening:

Recommended as an option, depending on the availability of quality programs, and should be specific for the job individual is going to return to. (Schonstein-Cochrane, 2003) There is limited literature support for multidisciplinary treatment and work hardening for the neck, hip, knee, shoulder and forearm. (Karjalainen, 2003) Work Conditioning should restore the client’s physical capacity and function. Work Hardening should be work simulation and not just therapeutic exercise, plus there should also be psychological support. Work Hardening is an interdisciplinary, individualized, job specific program of activity with the goal of return to work. Work Hardening programs use real or simulated work tasks and progressively graded conditioning exercises that are based on the individual’s measured tolerances. (CARF, 2006) (Washington, 2006) The need for work hardening is less clear for workers in sedentary or light demand work, since on the job conditioning could be equally effective, and an examination should demonstrate a gap between the current level of functional capacity and an achievable level of required job demands. As with all intensive rehab programs, measurable functional improvement should occur after initial use of WH. It is not recommended that patients go from work conditioning to work hardening to chronic pain programs, repeating many of the same treatments without clear evidence of benefit. (Schonstein-Cochrane, 2008)

Criteria for admission to a Work Hardening Program:

(1) Work related musculoskeletal condition with functional limitations precluding ability to safely achieve current job demands, which are in the medium or higher demand level (i.e., not clerical/sedentary work). An FCE may be required showing consistent results with maximal effort, demonstrating capacities below an employer verified physical demands analysis (PDA).

(2) After treatment with an adequate trial of physical or occupational therapy with improvement followed by plateau, but not likely to benefit from continued physical or occupational therapy, or general conditioning.

(3) Not a candidate where surgery or other treatments would clearly be warranted to improve function.

(4) Physical and medical recovery sufficient to allow for progressive reactivation and participation for a minimum of 4 hours a day for three to five days a week.

(5) A defined return to work goal agreed to by the employer & employee:

(a) A documented specific job to return to with job demands that exceed abilities, OR

(b) Documented on-the-job training

(6) The worker must be able to benefit from the program (functional and psychological limitations that are likely to improve with the program). Approval of these programs should require a screening process that includes file review, interview and testing to determine likelihood of success in the program.

(7) The worker must be no more than 2 years past date of injury. Workers that have not returned to work by two years post injury may not benefit.

(8) Program timelines: Work Hardening Programs should be completed in 4 weeks consecutively or less.

(9) Treatment is not supported for longer than 1-2 weeks without evidence of patient compliance and demonstrated significant gains as documented by subjective and objective gains and measurable improvement in functional abilities.

(10) Upon completion of a rehabilitation program (e.g. work hardening, work conditioning, outpatient medical rehabilitation) neither re-enrollment in nor repetition of the same or similar rehabilitation program is medically warranted for the same condition or injury.

The case comes down to whether Claimant meets the ODG criteria. The IRO doctor acknowledged in his decision that "there is no guarantee of a job to return to, but rather an understanding that (Claimant) can reapply for that or a similar job", and that Claimant was more than two years past the date of injury. There was no showing of a defined return to work goal agreed to by an employer and Claimant, or of the availability of documented on the job training. In view of ODG criteria (5), (5)(a) or (b), and (7), it is hard to see how the IRO doctor could conclude that "the patient meets the ODG criteria for admission to a work hardening program".

Dr. O testified for Petitioner. His qualifications place him at an expert level to testify as to evidence based medicine and the ODG. Among other things, he is on the editorial advisory board for the ODG. Dr. O demonstrated a thorough familiarity with Claimant's course of treatment and discussed the ODG criteria in relation to the facts of this case. Based on Dr. O's analysis, Claimant does not meet ODG criteria (5), (5)(a) or (b), or (7) for the requested treatment. The preponderance of the evidence based medical evidence is contrary to the IRO decision.

Even though all the evidence presented was not discussed, it was considered. The Findings of Fact and Conclusions of Law are based on all of the evidence presented.


  1. The parties stipulated to the following facts:

A.Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.

B. On ______________ Claimant was the employee of (Employer).

C.On ______________ Claimant sustained a compensable injury.

D.The Independent Review Organization determined Claimant should have the requested treatment.

  • Carrier delivered to Claimant and Respondent a single document stating the true corporate name of Carrier, and the name and street address of Carrier’s registered agent, which document was admitted into evidence as Hearing Officer’s Exhibit Number 2.
  • Claimant did not meet the ODG criteria for the requested treatment.
  • 80 hours of work hardening is not health care reasonably required for the compensable injury of ______________.

    1. The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case.
    2. Venue is proper in the (City) Field Office.
    3. The preponderance of the evidence is contrary to the decision of the IRO that 80 hours of work hardening is health care reasonably required for the compensable injury of ______________.


    Claimant is not entitled to 80 hours of work hardening for the compensable injury of ______________.


    Carrier is not liable for the benefits at issue in this hearing. Claimant remains entitled to medical benefits for the compensable injury in accordance with Section 408.021 of the Act.

    The true corporate name of the insurance carrier is ROCHDALE INSURANCE COMPANY, and the name and address of its registered agent for service of process is



    AUSTIN, TEXAS 78749

    Signed this 21st day of October, 2009.

    Thomas Hight
    Hearing Officer

    End of Document