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At a Glance:
April 6, 2011


April 6, 2011


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 opened on December 16, 2010 and continued and was completed on April 6, 2011, with the record closing on that date, to decide the following disputed issue:

  1. Is the preponderance of the evidence contrary to the decision of the IRO that the Claimant is not entitled to work conditioning, 10 visits over four weeks, for the compensable injury of ________________?


On December 16, 2010 Petitioner/Claimant appeared and was assisted by RB, ombudsman. Respondent/Carrier appeared and was represented by CL, attorney.

On April 6, 2011 Petitioner/Claimant did not appear. RB, ombudsman, appeared during a portion of the hearing. Respondent/Carrier appeared and was represented by CL, attorney.


The hearing opened on December 16, 2010 and proceeded through stipulations and the offer and admission of the Hearing Officer’s exhibits and Carrier’s exhibits, Claimant electing not to offer exhibits at that time. Claimant had moved for a continuance due to the unavailability of Dr. E to testify. After some discussion the continuance was granted.

On April 6, 2011 the hearing was completed. RB, the ombudsman assisting Claimant in this matter, announced at the beginning of the hearing that Claimant did not wish to pursue the dispute further and was not coming to the hearing.

Claimant sustained a compensable injury to his right ankle on ________________. Dr. E requested approval for work conditioning, 10 visits over four weeks. The IRO doctor upheld the previous denials of the request.

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 making decisions about the care of individual patients. The Commissioner of the Division of Workers' Compensation is required to adopt treatment guidelines that are evidence-based, scientifically valid, outcome-focused and designed to reduce excessive or inappropriate medical care while safeguarding necessary medical care. Texas Labor Code Section 413.011(e). Medical services consistent with the medical policies and fee guidelines adopted by the commissioner are presumed reasonable in accordance with Texas Labor Code Section 413.017(1).

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 the following concerning work conditioning for a leg injury:

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)

ODG Work Conditioning (WC) Physical Therapy Guidelines

WC amounts to an additional series of intensive physical therapy (PT) visits required beyond a normal course of PT, primarily for exercise training/supervision (and would be contraindicated if there are already significant psychosocial, drug or attitudinal barriers to recovery not addressed by these programs). See also Physical therapy for general PT guidelines. WC visits will typically be more intensive than regular PT visits, lasting 2 or 3 times as long. And, as with all physical therapy programs, Work Conditioning participation does not preclude concurrently being at work.

Timelines: 10 visits over 4 weeks, equivalent to up to 30 hours.

The IRO doctor thought the ODG criteria were not met. The evidence presented consisted of the IRO report, the two pre-authorization reviews (both of which denied the request), and some medical records. No evidence was offered by Claimant or on his behalf. There was no showing of evidence based medical evidence to overcome 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 not have the requested treatment.

  • Carrier delivered to Claimant 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.
  • Work conditioning, 10 visits over four weeks, 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 not contrary to the decision of the IRO that work conditioning, 10 visits over four weeks, is not health care reasonably required for the compensable injury of ________________.


    Claimant is not entitled to work conditioning, 10 visits over four weeks, 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 CHARTER OAK FIRE INSURANCE COMPANY, and the name and address of its registered agent for service of process is



    211 EAST 7th STREET, SUITE 620

    AUSTIN, TEXAS 78701

    Signed this 6th day of April, 2011.

    Thomas Hight
    Hearing Officer

    End of Document