DECISION AND ORDER
Petitioner Insurance Company of the State of Pennsylvania (Petitioner or Carrier) appeals from the Findings and Decision of the Texas Workers’ Compensation Commission’s Medical Review Division (MRD), ordering Carrier to reimburse the Suchowiecky Center for work conditioning and work hardening services provided to Claimant____. Carrier contends that MRD’s decision should be reversed because the services were not adequately documented and were not medically necessary. The dates of service are March 20, 2000, through May 10, 2000, and the amount in dispute is $5,120.00. This Decision and Order grants Petitioner’s appeal with respect to the work hardening services but denies the appeal with respect to the work conditioning services. As a result, Carrier is ordered to reimburse the Suchowiecky Center in the amount of $1,843.20.
I. JURISDICTION, NOTICE, AND VENUE
There were no contested issues of jurisdiction, notice, or venue. Therefore, those issues are addressed in the Findings of Fact and Conclusions of Law without further discussion here.
II. STATEMENT OF THE CASE
Administrative Law Judge (ALJ) Thomas H. Walston convened a hearing in this case on January 24, 2002, at the State Office of Administrative Hearings, Stephen F. Austin State Office Building, 1700 North Congress Avenue, Austin, Texas. Attorney Ronald M. Johnson represented the Carrier. The Suchowiecky Center appeared by telephone through its representative, Ms. Lyliam Caridad. The Commission waived its appearance. The ALJ concluded the hearing and closed the record the same day
Introduction/Background: Claimant____ sustained a compensable injury to her cervical spine on, in the course of her employment as a nurse with Hospitals. _____ was attempting to turn a patient onto her side when the patient fell back into ____, resulting in____’s neck “popping.” ____ was initially treated by a Dr. A. Bindal, and an EMG and MRI confirmed radiculopathy at C4-5 and C5-6.
On August 20, 1998, ____ underwent an anterior cervical discectomy and fusion procedure at C4-5 and C5-6. _____’s radicular complaints resolved by late December 1998, but she then began to complain of recurrent numbness and weakness in her left arm. As a result, she underwent a repeat cervical myelogram with CT scan on August 27, 1999. This revealed significant preexisting degenerative changes, in both the bony and soft tissue structures.
On September 1, 1999, Dr. H. Anchondo examined____ on behalf of the Carrier. Dr. Anchondo found a significant amount of symptom magnification and he recommended that____ be placed at maximum medical improvement and returned to work. But ____ did not return to work. Instead, she was examined by Dr. D. Suchowiecky on February 24, 2000 ____ continued to complain of moderate to severe neck pain with constant headaches. She also reported a sensation of tingling and pins and needles in both arms. ____ was also diagnosed with a major depressive disorder and was recommended for a chronic pain management program.
On March 17, 2000, ____ underwent a Functional Capacity Evaluation (FCE), which showed that she did not meet the nonmaterial handling or the material handling demands of her regular occupation. ____ was then placed in a work conditioning program at the Suchowiecky Center, under the supervision of Dr. Mary Ann Spires, D.C. ____ participated in this work conditioning program from March 20, 2000, through April 14, 2000. She showed little improvement from this program, so she was then placed in a work hardening program from April 17, 2000, through May 10, 2000____ did not finish this program because she had a death in her family and moved away from the Houston area to Louisiana. The Suchowiecky Center lost track of ____ after she moved.
Carrier’s Contentions: Carrier called Dr. Katherine Blanchette, M.D., as a witness. Dr. Blanchette is Board Certified in Physical Medicine & Rehabilitation and in Quality Assurance & Utilization Review. Dr. Blanchette reviewed available medical records and testified to____’s medical history as described above, but she did not actually examine ____.
Dr. Blanchette questioned the validity of the FCE performed on ____ She noted that the FCE report showed a heart rate at the beginning of the overall examination, but it did not show a “before”and “after” heart rates for each task. Dr. Blanchette said this is important to see because an increase in heart rate gives some objective confirmation that the patient was feeling pain and was giving maximum effort.
In both her report and in her testimony, Dr. Blanchette gave somewhat conflicting testimony concerning the work conditioning program. At one point she stated that the work conditioning program was not reasonable or medically necessary for____ But at another point she stated that “an initial work conditioning program of four weeks may have been reasonable and necessary since the claimant was off work for such a long period of time after her surgical procedure.”
Dr. Blanchette testified that the work hardening program definitely was not medically reasonable and necessary. She stated that the work conditioning and work hardening programs both have the same end-treatment goal and should not be duplicated. She also stated that ____’s failure to return to full duty after the work conditioning program made it highly unlikely that the work hardening program would provide her any significant benefit.
Carrier also introduced into evidence an article entitled “Work Hardening and Work Conditioning Interventions: Do They Affect Disability?,” written by Deborah E. Lochner. The point in the article emphasized by Carrier is a statement that work conditioning is an alternative to work hardening. In Carrier’s view, this means that a patient should be given work conditioning or work hardening when appropriate, but should not be given both as was done with____.
Finally, Carrier argued that the Suchowiecky Center did not adequately document ____.’s treatment. Carrier emphasized that____ was not given an FCE at the end of the work conditioning program to document her progress, or at the beginning or end of her work hardening program. Also, there was no documentation of any psychological evaluation or treatment given to____ during the work hardening program.
SuchowieckyCenter’s Contentions: Dr. Mary Ann Spires, D.C., testified for the Suchowiecky Center. Dr. Spires explained that she supervised the initial FCE performed on____. The evaluation was performed with a computerized J-Tech Tracker. This device automatically records the initial heart rate and the heart rate after each task. Although the printout does not show the heart rate before each task, it does indicate “Yes” or “No” for whether each test was valid, based in part on heart rate. Because the computer program on the machine automatically compiles the report in this format, it is not possible to show before and after heart rates for each test.
In Dr. Spires’ opinion,____ was generally an honest and reliable patient. She found that 88% of____’s subjective complaints were valid, and the computer found that 92% of____.’s test results were valid. She stated that some of the invalid findings could have been due to apprehension and nervousness about heavy lifting after a cervical fusion. Dr. Spires testified that____ loved her job as an LVN working with elderly patients, and she believed that____ was motivated to return to work.
Dr. Spires also stated that____ had chronic neck pain even though her fusion was solid. ____ could not drive her car due to difficulty turning her neck, and Dr. Spires disagreed with Dr. Anchondo’s opinion that ____had reached maximum medical improvement.
Dr. Spires stated that ___ did relatively well during the work conditioning program. ____ progressed some during the fourth week, and she showed good effort, even though she continued to have pain. However, Dr. Spires testified that____ had a psychological overlay to her physical problems and she thought counseling with a psychologist would help. Therefore, Dr. Spires recommended a work hardening program for____.
Dr. Spires stated that____ progressed well during her three weeks of work hardening. She increased her floor-to-waist frequent-lifting weight to 30 pounds from 10 pounds at the time of the initial FCE. Dr. Spires testified that____ did not finish the work hardening program and was not given a final FCE because ____ had a death in her family and moved away to Louisiana.
On cross examination Dr. Spires conceded that____ did not reach her goal of being able to lift, push, or pull a 200-pound patient. She also conceded that the TWCC file did not contain a psychological evaluation or treatment records, nor did it contain any weekly review records for____ However, Dr. Spires stated that these services were provided, even though they were not documented in the TWCC file.
IV. ALJ’S ANALYSIS AND DECISION
The ALJ denies Carrier’s appeal with respect to the work conditioning program, but grants Carrier’s appeal concerning the work hardening program. The ALJ finds that the Carrier has shown that the work hardening program was not medically necessary and the services provided in that program were not adequately documented.
Concerning work conditioning, the Medicine Ground Rules provide that it is a single disciplinary approach with the following admission criteria:
a.persons who are likely to benefit from the program;
b.persons whose current level of functioning due to illness or injury interferes with their ability to carry out specific identifiable tasks required in the work place; and
c.persons whose medical, psychological, or other conditions do not prohibit participation in the program.
In this case, ____ underwent and FCE immediately prior to the work conditioning program, which established that she could not carry out specific identifiable tasks required for her job - in particular, lifting, pulling, or pushing a 200-pound patient. In addition, _____ apparently was motivated to return to work and was likely to benefit from the program, and no medical or psychological conditions were identified that would have prohibited her participation in the program. Indeed, even Dr. Blanchette, who testified on behalf of the carrier, stated that “an initial work conditioning program of four weeks may have been reasonable and necessary since the claimant was off work for such a long period of time after her surgical procedure.” In addition, the Suchowiecky Center provided daily reports of ____’s work conditioning activities, which adequately documented the services provided. Therefore, the ALJ finds that Carrier did not establish by a preponderance of the evidence that a work conditioning program was not medically reasonable or necessary, or that it was not adequately documented, and the ALJ denies Carrier’s appeal with respect to the work conditioning program.
Concerning work hardening, however, the ALJ grants Carrier’s appeal because the program was not medically reasonable and necessary for____ and the services provided were not adequately documented. First, ____ was not given an FCE immediately prior to her entry into the work hardening program, even though Spinal Treatment Guideline (f)(3)(E) states that this is the normal procedure:
Once the injured employee has sufficiently recovered, a Functional Capacity Evaluation is usually performed to determine whether or not the injured employee is considered a candidate for a work hardening or a work conditioning program. These tests are usually performed just prior to entry into the program to determine the injured employee’s level of physical ability and his/her capability to return to work.
____did undergo an FCE immediately before the work conditioning program on March 17, 2000, but that was a full month before ____ began the work hardening program on April 17, 2000. The Suchowiecky Center did not perform an FCE on____. at the conclusion of the work conditioning program, which would have documented her progress in the work conditioning program and could have established her qualification as a candidate for work hardening. Thus, there was inadequate documentation of____’s condition at the start of the work hardening program, and there was no showing of the basis of the physical aspects of the prescribed work hardening program.
In addition, work hardening is a multi disciplinary treatment program, unlike work conditioning which is a single disciplinary program. But the only documentation provided by the Suchowiecky Center in connection with _____’s work hardening program concerned physical conditioning B a single discipline. Dr. Spires stated that ____ had psychological problems and received psychological counseling, but the record contains no documentation on this whatsoever. Therefore, the ALJ finds that the Carrier established by a preponderance of the evidence that the services provided in the work hardening program were not adequately documented as required by the Spine Treatment Guidelines, 28 TAC §134.1001(e)(2)(A)(i).
The Carrier argued that work conditioning and work hardening programs are alternative treatment programs that should be considered mutually exclusive. While the Carrier’s argument has some appeal, the TWCC rules do not contain an express prohibition to providing both programs to the same patient in all cases. However, the ALJ agrees with the Carrier that if both programs are provided, substantially more documentation is needed than was provided in this case. Therefore, the ALJ grants the Carrier’s appeal with respect to the fees charged for the work hardening services provided to_____.
In summary, the ALJ denies Carrier’s appeal with respect to the work conditioning program provided by the Suchowiecky Center to____, but the ALJ grants Carrier’s appeal with respect to the work hardening program. The MRD approved charges of $1,843.20 for work conditioning and $3,276.80 for work hardening, and Carrier did not challenge these calculations. Therefore, based on the ALJ’s decision in this appeal, Carrier will be ordered to reimburse the Suchowiecky Center in the amount of $1,843.20.
VI. FINDINGS OF FACT
- On______, Claimant _____ sustained a compensable injury during the course and scope of her employment with______ Hospitals.
- At the time _____ sustained the compensable injury, the Insurance Company of the State of Pennsylvania (Carrier) was the workers’ compensation insurance carrier for____’s employer.
- On March 17, 2000, ____ underwent a Functional Capacity Evaluation (FCE) at the Suchowiecky Center in Houston, Texas. Dr. Mary Ann Spires, D.C., performed the FCE.
- The FCE performed on ____ on March 17, 2001, established that she was a suitable candidate for a work conditioning program.
- Between March 20, 2000, and April 14, 2000, 2000, the Suchowiecky Center provided work conditioning services for____. This work conditioning program was medically reasonable and necessary for ____ and was adequately documented. The appropriate charges for the work conditioning services provided to ___ are $1,843.20.
- The Carrier refused to pay for the services described in Finding of Fact No. 5.
- Between April 17, 2000, and May 10, 2000, the Suchowiecky Center provided work hardening services for____. ____ failed to complete the work hardening program because she moved away from the area. The appropriate charges for the work conditioning services provided are $3,276.80.
- No FCE or other evaluation was performed on____ to determine her suitability for the work hardening program immediately prior to her entry into the program.
- The Suchowiecky Center failed to provide documentation of any psychological evaluation of____, or of any psychological counseling or services provided to ____ in connection with the work hardening program.
- The work hardening services provided to____ by the Suchowiecky Center were not medically reasonable and necessary.
- The Suchowiecky Center failed to adequately document the work hardening services provided to ____
- The Carrier refused to pay for the services described in Finding of Fact No. 7.
- The Suchowiecky Center requested medical dispute resolution at the Texas Workers Compensation Commission Medical Review Division.
- In its Findings and Decision dated April 9, 2001, in MDR Docket No. M5-01- 1060-01, the Commission ordered the Carrier to pay $5,120.00 for the services described in Findings of Fact Nos. 5 and 7.
- Carrier filed a timely request for hearing to appeal the decision of the Medical Review Division.
VII. CONCLUSIONS OF LAW
- The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers' Compensation Act, Tex. Lab. Code §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. Lab. Code §§402.073(b) and 413.031(d) and Tex. Gov't Code, Ch. 2003.
- Petitioner timely requested a hearing pursuant to 28 Tex. Admin. Code §§102.3, 102.5(h), 102.7 and 148.3.
- The parties received adequate and timely notice of the hearing pursuant to Tex. Gov’t Code §2001.051.
- Venue was established pursuant to 28 Tex. Admin. Code §148.6.
- Carrier had the burden of proof in this matter to establish its claim by a preponderance of the evidence. 28 Tex. Admin. Code §148.21(h) and (i).
- Based on Findings of Fact Nos. 3-5, Carrier failed to establish by a preponderance of the evidence that a work conditioning program was not medically reasonable and necessary for____.
- Based on Findings of Fact Nos. 7-11, Carrier did establish by a preponderance of the evidence that a work hardening program was not medically reasonable and necessary for____, and that the Suchowiecky Center did not adequately document the work hardening services provided to____.
- Based on Conclusions of Law Nos. 7 and 8, Carrier’s appeal is denied with respect to the work conditioning services provided to____ by the Suchowiecky Center, but Carrier’s appeal is granted with respect to the work hardening services provided to____ by the Suchowiecky Center.
- Based on Conclusion of Law No. 8 and Finding of Fact No. 5, Carrier is liable to reimburse the Suchowiecky Center in the amount of $1,843.20.
IT IS, THEREFORE, ORDERED that Petitioner Insurance Company of the State of Pennsylvania’s appeal of Medical Dispute Resolution Docket No. M5-01-1060-01is Denied with respect to work conditioning services provided by the Suchowiecky Center but is granted with respect to work hardening services provided by the Suchowiecky Center. IT IS FURTHER ORDERED that the Insurance Company of the State of Pennsylvania shall remit $1,843.20, plus all accrued interest due at the time of payment to the Suchowiecky Center.
Signed February 15, 2002.
THOMAS H. WALSTON
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS