DECISION AND ORDER
The Texas Workers’ Compensation Insurance Fund (TMI), appealed the Findings and Decision of the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) in Medical Dispute Resolution Docket No. M4-00-1411-01. TMI appealed the decision ordering it to reimburse Work Out Work Hardening, Inc. (the Provider), $5,684.80 for work conditioning and work hardening services provided to an injured worker. TMI asserted that the documentation submitted by the Provider does not show that the patient’s programs met all the criteria for work conditioning and work hardening set forth in the Texas Workers’ Compensation Commission’s Medical Fee Guideline Medicine Ground Rules, and that the patient did not meet the admission criteria for a work hardening program. This decision concludes that the appeal should be granted because the work conditioning and work hardening programs did not meet the criteria set forth in the Medicine Ground Rules.
I. JURISDICTION AND HEARING
The hearing was held on November 28, 2001, at the Hearings Facility of the State Office of
Administrative Hearings (SOAH), Stephen F. Austin Building, Suite 1100, 1700 North Congress Avenue, Austin, Texas, before Lisa Lyons, Administrative Law Judge (ALJ). TMI was represented by its counsel, Christopher Trickey. Susan Goggan, Attorney for the Texas Workers’ Compensation Commission (Commission), represented the MRD. The Provider was represented by its attorney, Steven C. Simmons. The hearing concluded and the record closed on November 28, 2001.
The MRD rendered its decision on March 5, 2001. TMI appealed the decision. Although the Provider was not awarded the total amount it billed for work conditioning and work hardening services, it did not appeal the decision. At the hearing, the Provider requested that it be awarded the full amount it originally billed, or $7,995.20. Because the Provider did not appeal the portions of the MRD’s decision adverse to its claim, the ALJ does not have jurisdiction to consider this request. Therefore, the only amount subject to the jurisdiction of this tribunal is $5,684.80.
The Provider’s attorney argued that adequate notice of the hearing on the merits was not given to the Provider. He contended that the Provider did not receive notice of the hearing until November 27, 2001, when he personally received a copy of the ALJ’s order scheduling a hearing on TMI’s Second Motion to Compel Answers to Interrogatories and Requests for Production of Documents and Motion for Sanctions. The time and date of the hearing on the merits was referred to in the order.
The Provider’s objections to the adequacy of notice are overruled. Notice of the hearing, dated April 19, 2001, was sent by certified mail, return receipt requested, to the Provider at 3201 A Swiss Ave., Dallas, Texas 75204.This address was the Provider’s mailing address at that time. The green card for the notice of hearing sent to the Provider was shown to be signed by the Provider, and the date of delivery was marked “4-23.” In addition, the notice of the hearing was sent to TMI and to the Commission. Counsel for the Commission stated that the Provider’s attorney had filed notice of his representation with the Commission on or about September 19, 2001, several weeks before the hearing. The Commission’s statement of matters asserted, sent by facsimile transmission to the Provider’s attorney and TMI on November 16, 2001, also referred to the date and time of the hearing on the merits.
A. Factual and Legal Background
On__________, while leaving her workplace for lunch, the patient tripped over a concrete parking block and injured her knee, hip, and shoulder. She received treatment for her injury from the Provider beginning August 20, 1999. The patient’s treating physician, Elvin E. Keeton, M.D., is on the Provider’s staff. Initially, her treatment consisted of various treatment modalities including heat and electric stimulation. The Provider was reimbursed for these services. The patient started a “work conditioning” program on November 11, 1999, and began a “work hardening” program on November 29, 1999.
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. TEX. LABOR CODE ANN. § 408.021. “Health care” includes “all reasonable and necessary medical ... services.” TEX. LABOR CODE ANN. § 401.011(19).
B. Disputed Issues
Whether the Provider’s Work Hardening Program was an Interdisciplinary Program
TMI asserted that the Provider’s work hardening program did not meet the interdisciplinary requirement set forth in the Medicine Ground Rules of the Commission’s Medical Fee Guideline because it included only a single discipline. Medicine Ground Rule II. E. states:
...Work Hardening programs are interdisciplinary in nature with a capability of addressing the functional, physical, behavioral, and vocational needs of the injured worker. ... Work Hardening programs use real or simulated work activities in a relevant work environment in conjunction with physical conditioning tasks. These activities are used to progressively improve the biomechanical, neuromuscular, cardiovascular/metabolic, behavioral, attitudinal, and vocational functioning of the persons served.
Alfred Richard Ball, testified on behalf of TMI and stated that “interdisciplinary” means that more than one discipline, or a minimum of two, must be included in a patient’s treatment.
The Provider’s staff included an occupational therapist, an exercise trainer, a licensed social worker, a licensed counselor, a registered nurse with experience in multi-disciplinary rehabilitation, and a licensed physician. The Provider’s licensed occupational therapist and exercise trainer, working under the occupational therapist’s supervision, supervised the patient on a daily basis. In addition, the patient’s treatment was supervised by Dr. Keeton, who was present at the facility 3-4 days a week for a total of about 27 hours per week, and by Michael Anderson, a registered nurse, who was present at the facility 36 to 54 hours a week.
The Provider’s daily reports for work hardening showed the patient’s work hardening program included functional activity such as grasping, kneeling, lifting, pushing and pulling, and standing. Mr. Ball acknowledged that this activity, supervised by Provider’s licensed occupational therapist, qualifies as a functional discipline. In addition, the patient’s work hardening treatment included floor exercises, weight training, and cardio-training activities. Mr. Ball testified that these activities are physical therapy activities, and acknowledged that these activities would constitute a separate discipline for work hardening, a physical discipline.
The patient’s treatment included work simulation tasks such as sitting and standing, computer, pegboard, bolt box, pipe tree, crate carry, letter sorting, clipboard, and mail sorting activities. Mr. Ball testified that work simulation tasks would be part of a vocational discipline, but he doubted that these particular activities qualified as work simulation for the patient’s job, a silk screener. However, Michael Anderson, the Provider’s owner and a registered nurse, testified that the patient’s work simulation activities were based on a job description for a silk screener obtained by the Provider.
The evidence did not show that the patient participated in group therapy which is a separate discipline under Medicine Ground Rule II. E. The patient was interviewed by Vonda Aderinboye, the licensed social worker (LSW) on the Provider’s staff, about her work history and plans to return to the work force. This interview took place on November 16, 1999. At that time, the patient expressed an interest in enhancing her job skills in computer technology and/or cosmetology. The LSW instructed the patient about services provided by the Texas Rehabilitation Commission and similar agencies. While the LSW’s report cites as a goal to “[p]rovide patient short term counseling focused on assisting pt. re-enter the work force,” there was no evidence shown that the patient received any group therapy from the Provider as part of her work hardening program that would qualify as a psychological discipline.
On November 16, 1999, Randy Neblett, a licensed professional counselor (LPC) on the Provider’s staff, performed a psychosocial assessment of the patient and wrote a report as part of the work hardening intake. This individual psychological evaluation was conducted to determine the patient’s readiness for the work hardening program that began on November 29, 1999. As stated in Medicine Ground Rule II. E. 2. a., “[a]n initial evaluation to determine the injured worker’s readiness for the program” is not part of the work hardening program; therefore, it does not qualify as a separate discipline.
The ALJ concludes that TMI failed to prove that the requirements of Medicine Ground Rule II. E. were not met. The patient’s work hardening program included activities addressing her functional, physical and vocational needs. At least two licensed professionals were involved in the patient’s work hardening treatment: the licensed occupational therapist and the doctor. TMI had the burden of proof. It failed to cite authority or otherwise show that these activities supervised by these individuals did not meet the Medicine Ground Rule requirement that the treatment program be interdisciplinary.
Whether the Patient Met the Admission Criteria for Work Hardening
TMI contended that the patient did not meet the admission criteria for a work hardening program, specifically, that the patient was not capable of attaining specific employment upon completion of the program. Medicine Ground Rule II. E. 1. states:
*1.Entrance/admission criteria [for work hardening] shall enable the program to admit:
persons who are capable of attaining specific employment upon completion of the program.
___ testified that this provision implies there is a job available for the patient that the patient is working towards returning to. At the time of her injury, the patient was working as a silk screener at a DART store, a job she held through LRJ Staffing Services, Inc. (LRJ), a personnel or temporary service. She had worked for LRJ for approximately one month before her injury.
After reviewing the evidence discussed below, the ALJ concludes that TMI failed to prove that the patient would not be able to work after completing the work hardening program.
___ testified that the patient never indicated during her treatment that she did not plan to go back to work. There was no evidence of physical or mental restraints against the patient’s return to work at LRJ. ___ stated in a letter dated March 16, 2000, that “...the patient did make progress and was successfully rehabilitated back to Maximum Medical Improvement and is presently reported to be employed.” He testified at the hearing that the patient did, in fact, return to work at LRJ at some point after completing the work hardening program.
In his work hardening intake report, Randy Neblett, LPC, stated that the patient doubted her job was still available, that she reported some indecision about returning to work, and that the patient indicated she and her husband would do fine financially if she did not return to work . The counselor also stated in his report that since the patient “apparently has no financial incentive to return to work, I recommend that it be established early in her treatment whether or not she plans to return to work, so that her treatment goals can be planned accordingly.”
On November 16, 1999, the same day she was interviewed by the LPC, the patient told Vonda Aderinboye, LSW, that because her spouse had full-time employment she and her spouse had been able to handle their financial responsibilities. Ms. Aderinboye stated in her report that the “[p]atient verbalized plans to return to LRJ Staffing Services.”
The patient was not shown to be incapable of attaining specific employment upon completion of the program. She did return to her employment at LRJ. Mr. Ball’s assertion that a patient must work toward a specific job is not supported by the rule, which requires only that she be capable of attaining “specific employment.” Although there was some evidence in the form of an adjustor’s note found in TMI’s claim file that the patient was unemployed in November 2001, the patient’s employment status almost 2 years after the treatment is irrelevant to the issue.
Whether There Was an Initial Treatment Plan by the Provider
TMI asserted that there is inadequate documentation that there was an “initial treatment plan by the [Provider]” as required by Medicine Ground Rule I. A. 3. The patient began receiving treatment from the Provider in August 1999, immediately after her injury. Before beginning the patient’s work conditioning program, the Provider had been using various treatment modalities including heat and electric stimulation. The Provider received payment for these services from TMI. Dr. Keeton, the patient’s treating physician and a doctor on the Provider’s staff, saw the patient on November 12, 1999. The work conditioning program began one day earlier. Dr. Keeton’s notes from that date refer to a plan to continue work conditioning for two weeks, then work hardening, with a follow-up visit 3 weeks later. In addition, the plan included a scheduled visit with Randy Neblett on November 16 and an appointment with Dr. Osborne for a required medical exam on November 30. The plan called for the patient to remain off work until January 5, 2000. Mr. Ball testified he did not believe these notes qualified as a treatment plan under the Medicine Ground Rules, and he believes they were merely doctor’s notes for a patient visit.
Although the plan referred to in the documentation is brief and perhaps not the formal type of initial treatment plan Mr. Ball is used to reviewing, the documentation contains enough information for the ALJ to conclude that there was an initial treatment plan for the patient. The term “initial” was not shown to preclude a plan reduced to writing one day after work conditioning began. The plan substantially complies with the requirements of Medicine Ground Rule I. A. 3.
(Whether The Individualized Plan of Work Simulation (or Plan of Treatment for Work Hardening) Was Supervised by a Licensed Physical or Occupational Therapist and/or Doctor
TMI argued that there is inadequate documentation that the patient’s “individualized plan of work simulation [or plan of treatment] ...[was] supervised by a licensed physical or occupational therapist and/or doctor” as required by Medicine Ground Rules II. D. 5. and II. E. 6. The daily work sheets kept by the Provider show that Daniel J. Marshall, a licensed occupational therapist, supervised the patient on a one-on-one basis for some time each day. His signature and writing appear on each of the daily notes for work conditioning and work hardening. The patient was also supervised by D. Anderson (the first name was shown only by an initial), an exercise trainer working under Mr. Marshall’s supervision.
The ALJ concludes that the supervision of the patient’s treatment met the requirements of Medicine Ground Rules II. D. 5. and II. E. 6.
Whether the Program Supervisor Participated in the Initial and Final Evaluation of the Patient, Whether the Program Supervisor Designed or Wrote the Treatment Plan and Wrote Changes to the Plan Based on Documented Changes in the Patient’s Condition,and Whether the Patient’s Response to Treatment Was Documented and Reviewed to Ensure Continued Progress
TMI contended that the documentation is inadequate to show the program supervisor did the things required by Medicine Ground Rules II. D. 6. and II. E. 7., specifically that the program supervisor “participate[d] in the initial and final evaluation of the patient” and that the program supervisor designed (or wrote) “the treatment plan for the patient and [wrote] changes to the plan based on documented changes in the patient’s condition.” Further, TMI maintained that the documentation is insufficient to show that “the patient[‘s] response to treatment [was] documented and reviewed to ensure continued progress” as required by Medicine Ground Rules II. D. 7. and II. E. 8. Mr. Ball testified that there was no documentation that the Provider’s program supervisor participated in the patient’s initial and final evaluation. In addition, he testified that the Provider’s program supervisor did not write a treatment plan and document changes to the treatment plan based on changes in the patient’s condition. Mr. Ball admitted in his testimony that there is sufficient documentation of the patient’s daily treatment, but in his opinion, the Provider’s documentation does not show the patient’s responses to treatment were properly documented and reviewed to ensure continued progress.
The Provider’s daily notes contain detailed documentation of the patient’s daily functional, physical, and work simulation activities. The Provider’s licensed occupational therapist supervised and documented the patient’s daily treatment. Under the occupational therapist’s supervision, D. Anderson also monitored the patient on a daily basis and documented treatment. However, Michael Anderson testified that the notes did not include the program supervisor’s individualized treatment plan and that the Provider did not provide TMI with a copy of the patient’s complete chart. He testified that the Provider’s business practice has changed since this dispute, and the occupational therapist now includes an individualized treatment plan on the daily notes.
Very brief progress notes regarding the patient’s responses to treatment were written by Daniel Marshall or D. Anderson on November 12, 16, 18, 19, and 22, and December 8, 9, 20, and 22. Even if these sparse notes are considered to be “documented changes in the patient’s condition,” there is no evidence anywhere in the documentation that the program supervisor participated in the patient’s initial and final evaluation, and wrote changes to, or updated, a treatment plan based on documented changes in the patient’s condition. Also, there is no evidence in the documentation that the patient’s responses to treatment were reviewed to ensure continued progress.
Based on the foregoing, the ALJ concludes that TMI proved that the Provider did not comply with the requirements of Medicine Ground Rules II. D. 6. and II. E. 7. In addition, the ALJ concludes that TMI showed that the Provider did not fully comply with the requirements of Medicine Ground Rules II. D. 7. and II. E. 8.
III. FINDINGS OF FACT
- ________, the patient, suffered a compensable injury on_________, when she stumbled over a concrete parking block at work, and injured her knee, hip, and shoulder.
- Work Out Work Hardening, Inc. (the Provider), provided what was intended to be a work conditioning program to the patient from November 11, 1999, through November 22, 1999. In addition, the Provider made available to the patient what it considered to be a work hardening program from November 29, 1999, through December 22, 1999.
- The Provider requested payment in the amount of $7,995.20 from the Texas Workers’ Compensation Insurance Fund, known as Texas Mutual Insurance Company (TMI), the carrier for the patient’s employer.
- TMI denied reimbursement for the dates of treatment that included all the work hardening and work conditioning charges.
- On or about March 24, 2000, the Provider filed a request for medical dispute resolution with the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission).
- On March 5, 2001, the MRD concluded that the documentation supported reimbursement for some of the hours billed for work conditioning and work hardening and issued its decision ordering TMI to remit $5,684.80 plus accrued interest to the Provider.
- On March 27, 2001, TMI appealed the MRD’s decision.
- Notice of the hearing was mailed to the parties on April 19, 2001. The Commission sent a statement of the matters asserted to the parties on November 16, 2001. The notice of hearing and the statement of matters asserted informed the parties of the matters to be determined, the right to appear and be represented, the time and place of the hearing, and the statutes and rules involved.
- The Commission correctly allowed the Provider reimbursement for properly documented services in the amount of $540.00 for the patient’s initial mental health evaluation.
- The Provider’s program supervisor did not participate in the patient’s initial and final evaluation and did not design or write a treatment plan for the patient.
- The Provider’s program supervisor did not write changes to a treatment plan based on documented changes in the patient’s condition.
- The patient’s response to treatment was not reviewed by the Provider to ensure continued progress.
IV. CONCLUSIONS OF LAW
- The Texas Workers' Compensation Commission has jurisdiction over this matter pursuant to the Texas Workers' Compensation Act, Tex. Labor Code Ann. §413.031.
- 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. Labor Code Ann. § 413.031(d) and Tex. Gov't Code Ann. ch. 2003.
- TMI timely filed notice of appeal, as specified in 28 Tex. Admin. Code § 148.3.
- Adequate and timely notice of the hearing was provided in accordance with Tex. Gov't Code Ann. ch. 2001 and 28 TEX. ADMIN. CODE § 148.4(b).
- TMI had the burden of proving the case by a preponderance of the evidence, pursuant to 28 TEX. ADMIN. CODE §148.21.
- The Provider’s treatment of the patient for work conditioning and work hardening did not meet the criteria set forth in 28 TEX. ADMIN. CODE § 134.201 Medicine Ground Rules II. D. 6., II. D. 7., II. E. 7., and II. E. 8.
- TMI is not liable to reimburse the Provider for the work conditioning and work hardening services provided to the patient, Jean Simmons.
- TMI is liable for $540.00 of medically necessary services for the patient.
IT IS, THEREFORE, ORDERED that the appeal of the Texas Workers’ Compensation Insurance Fund (Texas Mutual Insurance Company) be, and the same is hereby, granted, and that Texas Mutual Insurance Company is not required to reimburse Work Out Work Hardening, Inc., 5144.80 for work conditioning and work hardening services provided to__________. Texas Mutual Insurance Company is ordered to pay $540.00 for medically necessary services provided to _____________.
Signed this 7th day of January, 2002.
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- The Texas Workers’ Compensation Insurance Fund is now known as Texas Mutual Insurance Company.↑
- 28 TEX. ADMIN. CODE §134.201.↑
- 28 TEX. ADMIN. CODE § 148.3(a) states, in part: “The person requesting a hearing must file a written request...not later than 20 days after...receipt of the decision from the medical review division...”↑
- There was no evidence in the record that the Provider’s attorney filed notice of his designation as Provider’s attorney of record with SOAH.↑
- TMI’s counsel pointed out that TMI’s Second Motion to Compel Answers to Interrogatories and Requests for Production of Documents and Motion for Sanctions, dated October 30, 2001, referred to the date of the hearing on the merits and was sent by certified mail, return receipt requested, to the Provider and the Provider’s attorney.↑
- The Provider billed TMI for work hardening services from November 29 through December 3, but these dates were not addressed in the MRD’s decision. This appeal covers reimbursement for work hardening services beginning December 6, 1999.↑
- Mr. Ball analyzes and reviews workers’ compensation disputes for TMI and is a licensed RN. Formerly, he was employed as a supervisor in the Medical Review Division at the Commission.↑
- TMI’s attorney stated at the hearing that TMI is not contesting the MRD’s decision to award the Provider reimbursement in the amount of $540.00 for this initial mental health evaluation.↑