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August 8, 2002
Retrospective Medical Necessity


August 8, 2002


American Home Assurance Company (Petitioner or Carrier) appeals from the Findings and Decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD), ordering Carrier to reimburse Dr. James Beyer, D.C. (the Provider) the amount of $ 3,507.20, plus accrued interest, for work hardening services provided to an injured worker. Carrier contends that the services were not medically necessary and requested a hearing to challenge the order. The Administrative Law Judge (ALJ) finds that the work hardening services were not medically necessary and the Carrier does not have to reimburse the Provider.


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.

On June 11, 2002, ALJ Suzanne Formby Marshall convened the hearing at the William P. Clements Building, 300 West 15th Street, Austin, Texas. Attorney Robert Josey represented the Carrier, and Lori Bellows represented the Provider. The Commission was not represented. The parties did not contest notice or jurisdiction. After evidence was presented, the ALJ closed the hearing the same day.


On _________, (the Claimant), who was employed by ______________as a journeyman electrician, twisted and strained her lower back while unloading a ladder from a cart. On January 25, 2000, she was evaluated and treated by Dr. Gerardo Trevino, D.C., for the lower back sprain. Dr. Trevino prescribed an ice-pack, ordered x-rays, and placed her in an off-duty work status for two to three weeks. Claimant’s x-rays revealed no acute bony injury, and a negative exam on the lumbar spine. Dr. Trevino also recommended rehabilitation, although the record does not contain evidence of what rehabilitation treatment, if any, was given to Claimant. In April 2000, Dr. Trevino referred the Claimant to the Provider for a work hardening program. Work hardening is a highly structured, goal-oriented, individualized treatment program designed to maximize the ability of the person served to return to work. Work hardening programs are interdisciplinary with a capability of addressing the functional, physical, behavioral, and vocational needs of the injured worker. The Commission has adopted rules governing work hardening programs.[1]

The Carrier presented the testimony of Dr. Richard Chamblin, D.C. Dr. Beyer testified on behalf of the Provider. The certified MRD record was admitted into evidence.

Testimony of Dr. Chamblin.

Dr. Chamblin testified that, in his opinion, a work hardening program for Claimant was not medically reasonable or necessary. Dr. Chamblin noted that Claimant began the work hardening program after spending approximately three months in a passive state and there was no indication that she had received any therapy (such as stretching or light conditioning) prior to the work hardening program. According to Dr. Chamblin, other programs that were more cost-effective should have been considered before referral to a multi-disciplinary work hardening program. Dr. Chamblin also found no indication from the medical records he reviewed that Claimant needed the benefits of such a program in order to return to work.

Further, even assuming that a referral to a work hardening program was appropriate, Dr. Chamblin testified that the work hardening program at issue did not meet the requirements of the Spine Treatment Guidelines since the program: (1) did not appear to be individualized; (2) did not contain exercises which were job simulations to prepare Claimant for the tasks she would perform once she returned to work; (3) did not contain sufficient support for the need for mental health treatment since Claimant consistently denied being depressed and there was no support in the record for the conclusion that she was depressed; and (4) did not contain quantified documentation that Claimant’s sleep was negatively affected.

With regard to the group counseling Claimant received, Dr. Chamblin said that it did not appear to correlate to the claimed reasons it was needed, i.e., low energy, flat affect, and difficulty sleeping. Dr. Chamblin testified that the work hardening exercises did not seem to be specifically related to the job tasks of Claimant, but were a more generic series of exercises. Dr. Chamblin stated that although Claimant showed improvement as measured when she began the program and afterward, this improvement was related to an exercise program generally and not because she needed the work hardening program. Dr. Chamblin was critical of the first FCE (functional capability examination) saying that since Claimant did not complete the testing, he was not convinced of her true performance ability at that time. Dr. Chamblin testified that one must compare an injured worker’s performance in a functional capacity evaluation with the worker's job requirements to determine medical necessity in a work hardening program. Since Claimant's performance on the FCE was questionable, according to Dr. Chamblin, so was the need for a work hardening program. Dr. Chamblin believed that Dr. Trevino and Dr. Beyer should have done a trial treatment program or a less intensive program before proceeding to a work hardening program in this situation.

B. Peer Review of Dr. Zvi Kalisky.

The Carrier also relied upon the peer review of Zvi Kalisky, M.D., who also concluded that the work hardening program was not medically necessary. Exhibit 1, pp. 5-9. Dr. Kalisky’s opinion was based upon the lack of documentation to support the necessity of a work hardening program. As noted by Dr. Kalisky, there was no rationale in the medical records to explain why Claimant was placed in a complex, interdisciplinary work hardening program instead of a focused physical conditioning exercise program, which would have addressed Claimant’s needs and would have accomplished the same goals at a lesser cost. Dr. Kalisky was also critical of the need for psychological treatment due to the lack of documentation in the records of a mental health problem. Exhibit 1, p. 7. Dr. Kalisky said that there was no documentation which described in detail the Claiman’s performance on simulated work activities, the goals for the simulated activities and the progress Claimant made toward achieving the goals.

C. Testimony of Dr. Beyer.

Dr. Beyer testified that Claimant was referred to him by Dr. Trevino for a work hardening program. He stated that Claimant displayed depressive symptomology including a flat affect, no good eye contact, and weight gain. He said that if Claimant was not motivated to return to work, this lack of motivation would be an obstacle to her performing self-paced exercises. Dr. Beyer said that Claimant’s performance on the FCE placed her at the sedentary-light physical demand capacity (PDC), and she could not safely return to her work which required a light-medium PDC. Dr. Beyer said that, in his experience, Dr. Trevino typically used active modalities of treatment prior to recommending work hardening, but he did not know whether this was true in Claimant’s case.[2]

Dr. Beyer stated that Claimant’s psychological issues affected her return to work. Dr. Beyer noted that during treatment, Claimant decreased her pain complaints and increased her ability for materials handling. Dr. Beyer testified that the exercises performed by Claimant were simulations of work conditions such as picking up electrical parts (lifting from floor to waist level), carrying and lifting electrical parts, wiring, a ladder, and a piece of conduit (lifting from waist to shoulder), and lifting wiring and conduit (lifting shoulder to overhead). According to Dr. Beyer, he is familiar with the requirements for work hardening and this program met those requirements. He said that there was no less costly alternative that would have been appropriate.

D. Evidence in the Certified Record.

The first functional capacity evaluation (FCE) of Claimant on April 20, 2000, indicated that Claimant performed at a sedentary-light PDC, with her job requiring a light-medium PDC. At the time of this FCE, the Claimant’s job description was not available to Dr. Beyer; consequently, the evaluation was performed on the basis of Claimant’s self-described duties which were:

Lifting from the floor to waist level parts, tools, tool box, and ladders

weighing approximately 35 lbs on an occasional basis;

Lifting from the waist to shoulder level parts, tools, and ladders

weighing approximately 35 lbs on an occasional basis;

Lifting from the shoulder level to overhead parts, tools, and ladders

weighing approximately 35 lbs on an occasional basis;

  1. Crawling occasionally during the course of her job;
  2. Bending frequently during the course of her job;
  3. Standing constantly during the course of her job;
  4. Sitting occasionally during the course of her job;
  5. Walking constantly during the course of her job;
  6. Reaching frequently during the course of her job.

Exhibit 1, pp. 120-121. During the FCE, Claimant complained of a constant, moderate low back pain, rating it as a A5" on a scale of A0" to A10". She was observed to rub her lower back, grimace and verbalize pain during the evaluation. Exhibit 1, p. 122. Claimant did not complete the material handling tests due to her reported pain and fear of re-injury.

A treatment plan was prepared for Claimant which described the physical requirements of Claimant’s job (those stated above) and contained a work hardening plan which listed the activities Claimant would need to perform in order to be able to meet the physical requirements of her job and which also established goals for those activities. For example, one of the activities was a torso lift with the goal of lifting thirty-five pounds in order to fulfill items 1 and 5 (above) of her job description. Exhibit 1, p. 142. The treatment plan also provided for physical conditioning, group psychotherapy, biofeedback, and “back school.” The treatment plan indicated that it was developed under the direction of two doctors of chiropractic, an occupational therapist, and a psychologist. Exhibit 1, pp. 142-143.

The certified record also contains weekly progress notes which documented that Claimant made progress throughout the program.[3] During each week, Claimant increased the amount of weights she lifted and decreased the amount of pain reported.

On a subsequent FCE, performed on May 23, 2000, Claimant performed at a light-medium PDC and was able to lift thirty pounds from the floor, waist to shoulder level, and overhead on an occasional basis in a safe manner. The FCE concluded that Claimant was able to perform at the physical demand level required by her employer at that time.[4]

E. Analysis.

The ALJ finds that the evidence does not establish the medical necessity for a work hardening program. While it is undisputed that Claimant improved during the program and was able to meet the physical demand capacity of her job as a journeyman electrician, the record does not establish that it was necessary for her to complete an intensive, multi-disciplinary work hardening program in order for her to achieve this condition. The Spine Treatment Guideline, 28 Tex. Admin. Code (TAC) §134.1001(e)(2), requires that treatment of a work related injury must be provided in the most appropriate, least intensive setting. The ALJ finds that Carrier established that the treatment provided to Claimant, i.e., work hardening services, did not meet the Guidelines’ requirement for the provision of services in the most appropriate, least intensive setting. There was no evidence that Claimant had received any physical conditioning from the referring doctor, Dr. Trevino, prior to the referral for work hardening. According to the Carrier’s medical experts, Claimant was likely to achieve the same results through a physical conditioning program. The evidence showed that this Claimant was permitted to become de-conditioned and then was referred to an expensive work-hardening program without first trying any alternative treatments.

Further, the documentation in support of Claimant’s need for mental health services is particularly scarce. The need for mental health services is contained within the FCE performed on April 20, 2000, which reported that Claimant showed a flat affect during testing, reported difficulty in going to sleep and decreased energy. Exhibit 1, pp. 127-128. The FCE instrument indicates that more than three factors must be present in order to show a positive sign of depression. Exhibit 1, p. 127. Here, only three factors were present, falling short of a positive measurement of depression. Further, the findings of depression are also suspect given Claimant’s own response to a questionnaire on April 17, 2000, indicating that most of the time she felt hopeful about the future, found it easy to make decisions, felt useful and needed and felt her life was pretty full. In contrast, she said she had trouble sleeping at night and felt down-hearted and blue a little of the time. Exhibit 1, p. 157. Even if there was a need for mental health services, which the ALJ does not find, the documentation of the group therapy provided to Claimant failed to describe how the selected topics, i.e., relaxation training and discussions of pain and stress management, related to Claimant’s needs in order to return to work. The failure of the medical records from the work hardening program to discuss the need for mental health services and the relationship between the need and the group therapy that was provided demonstrates that there was not a need for the multi-disciplinary program that was provided to her.

The ALJ finds that the Carrier showed by a preponderance of the evidence that the Provider is not eligible for reimbursement for the Claimant’s work hardening programs. The facts and reasoning in support of this decision are set forth in the findings of fact, and the legal conclusions derived from those facts appear in the conclusions of law.


  1. Dr. James Beyer (the Provider) furnished work hardening services to (the Claimant) between April 17, 2000, and May 19, 2000.
  2. The Claimant sustained an injury to her lower back in a work-related accident on __________.
  3. At the time of the injury, the Claimant’s employer had workers' compensation insurance through American Home Assurance Company (the Carrier).
  4. The Provider submitted a claim of $11,982 for its services to the Claimant.
  5. The Carrier denied reimbursement of $11,989 based on a lack of medical necessity.
  6. On October 9, 2000, the Provider requested dispute resolution services by the Medical Review Division (MRD) of the Texas Workers' Compensation Commission (the Commission).
  7. On May 3, 2001, MRD staff concluded that the documentation substantiated the medical necessity of the work hardening services and ordered the Carrier to remit $ 3,507.20, plus accrued interest to the Provider.
  8. On May 21, 2001, the Carrier filed a request for a hearing regarding the disputed reimbursement.
  9. The Commission sent notice of the hearing to the parties on June 21, 2001, and a statement of matters asserted on February 15, 2002. The hearing notice and the statement of matters asserted informed the parties of the matter to be determined, the right to appear and be represented, the time and place of the hearing, and the statutes and rules involved.Following the ___________ injury, Gerardo Trevino, D.C. became the Claimant’s treating doctor.
  10. In April 2000, Dr. Trevino referred the Claimant to the Provider for a work hardening program.
  11. The primary goal of work hardening is to physically prepare an individual to return to work.
  12. Work hardening programs are interdisciplinary in nature with a capability of addressing the functional, physical, behavioral, and vocational needs of injured workers who have encountered significant deconditioning following their injuries.
  13. Work hardening programs use real or simulated work activities in a relevant work environment in conjunction with physical conditioning tasks, mental health counseling, and vocational counseling.
  14. Claimant was employed by _____________as a journeyman electrician.
  15. Claimant did not receive any physical conditioning or other rehabilitative treatment prior to being referred for work hardening.
  16. Claimant did not require mental health services in order to return to work.


  1. The Texas Workers' Compensation Commission has jurisdiction to decide the issue presented, pursuant to the Texas Workers' Compensation Act, Tex. Lab. Code Ann. § 413.031.
  2. 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(d) and Tex. Gov't Code Ann. ch. 2003.
  3. The Carrier timely filed notice of appeal, as specified in 28 Tex. Admin. Code (TAC) §148.3.
  4. 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).
  5. The Carrier had the burden of proving the case by a preponderance of the evidence, pursuant to 28 TAC ' 148.21(h) and (i).

6 As specified in 28 TAC ' 134.1001(e)(2), Spine Treatment Guideline, treatment of a work related injury must be provided in the most appropriate, least intensive setting.

7 Based on Findings of Fact Nos. 16 and 17, the work hardening program was not the most appropriate, least intensive setting for treatment of Claimant.

8 The treating physician did not maintain efficient utilization of health care for the Claimant, pursuant to Tex. Lab. Code Ann. § 408.025(c).

9 The treatment provided was not medically necessary, as required by Tex. Lab. Code Ann. §' 408.021.


Based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED that American Home Assurance Company does not have to remit $ 3,507.00, plus accrued interest, to Dr. James Beyer, D.C., as ordered by the Medical Review Division of the Texas Workers’ Compensation Commission.

Signed this 8th day of August, 2002.

Administrative Law Judge
State Office of Administrative Hearing

  1. 28 Tex. Admin. Code § 134.201Medical Fee Guideline Medicine Ground Rules.
  2. On re-direct examination, Dr. Beyer said that Claimant had already undergone an active program of exercise with Dr. Trevino prior to beginning treatment with him.
  3. The weekly progress notes are found in Exhibit 1 at pages 144-192. The progress notes contain a document titled “Weekly Work Stimulation Activity Sheet” which listed a number of activities and Claimant’s performance measurements. The activities listed were: floor to waist, waist to shoulder, shoulder to overhead, walk and carry, push/pull, bike, stretching, weights, treadmill, lunch (sitting time), neck sys (sic), theraball, theraband, crunches, and proprioception. Exhibit 1, p. 148.
  4. This FCE also noted that there was not a job description from employer. Exhibit 1, p. 131. There is no evidence in the record of the Claimant’s job description. There was also no evidence to explain the discrepancy between Claimant’s need to lift 35 pounds from floor to waist, waist to shoulder level, and overhead on an occasional basis with the conclusion that she could perform her job while being able to lift only 30 pounds from floor to waist, waist to shoulder level, and overhead.
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