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April 18, 2002


April 18, 2002




Rehabilitation Solutions, Inc. (the Provider) sought reimbursement for work hardening services provided an injured worker, but Transcontinental Insurance Company (the Carrier) denied payment based on a lack of medical necessity. Subsequently, the Medical Review Division (MRD) of the Texas Workers' Compensation Commission (the Commission) found that the daily notes substantiated medical necessity and ordered the Carrier to pay the Provider $11,584 plus accrued interest. The Carrier 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.

On March 11, 2002, ALJ Georgie B. Cunningham convened the hearing at the William P. Clements Building, 300 West 15th Street, Austin, Texas. Attorney David L. Swanson represented the Carrier, and Dr. Jesse C. Ingram 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 on March 11, 2002.



On __________, (the Claimant), who was employed by __________ as a packer, incurred a right shoulder strain and rotator cuff strain.[1] Robert Yanney, D.C. ordered extensive tests and provided the Claimant manipulations, physical therapy, and a work conditioning program. In September 1999, Dr. Yanney referred her 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.[2]

The Carrier presented the testimony of its former adjuster, Jeff Stroud, and Sam Bierner, M.D. Dr. Ingram testified on behalf of the Provider, and both parties presented documentary evidence including the certified MRD record. Mr. Stroud testified that he had verified for the Provider the Carrier’s coverage of the Claimant for reasonable and necessary treatment. Mr. Stroud further testified that his response is a standard reply by carriers when preauthorization is not required. In his opinion, it was not his prerogative to make medical decisions because preauthorization was not required. Nonetheless, according to the documentary evidence, the Provider’s staff understood that the program was preauthorized, evaluated the Claimant, and provided the services between October 5 and November 11, 1999.

Dr. Bierner 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. He found Dr. Yanney to be less than forthright on September 22, 1999, when he wrote that the Claimant was unable to return to work and could never lift or carry even five to ten pounds. In Dr. Bierner’s opinion, the Claimant did not need work hardening. He pointed to numerous places in the record to support his opinion. For example, after Amir Dadfarmay, D.C. performed a functional capacity evaluation on May 5, 1999, he reported that the Claimant could return to light duty. On July 7, 1999, Dr. Roger Thomas Canard performed an independent medical examination of the Claimant and determined she was able to return to light duty. Lloyd Payne, D.C. reviewed the records on three occasions and concluded in written reports that the work hardening program was “excessive” and “completely unnecessary.” Dr. Bierner believed it was even more significant that the Provider’s functional capacity evaluation showed that the Claimant could perform the essential tasks of a packer. He concluded that had the Claimant returned to work rather than participate in the work hardening program, the cost would have been less, the Claimant would not have incurred lost time from work, and she would have benefitted from working in an actual rather than artificial environment.

Dr. Ingram contended the Provider followed the relevant guidelines and deserves to be reimbursed for the expensive treatment it provided the Claimant. He has never met Dr. Yanney, did not solicit the referral, and merely provided the services requested. The Provider’s interdisciplinary services were more comprehensive than a modified-work program, and the Claimant needed the work hardening services as requested by the treating doctor.

The ALJ finds that neither the functional capacity evaluations nor Dr. Yanney’s referral established medical necessity for the service. Although some confusion arose regarding ________ correct job description, the September 1999 functional capacity evaluation showed that the Claimant supplied details about her job requirements to the Provider and demonstrated that she could carry, push, and pull the requisite amount of weight. Moreover, the medical records indicated the Provider was aware the Claimant could have returned to work at _________ in a modified-duty program. Because she had a job she stated she liked and an employer that anticipated her return, the need for occupational counseling was not established. Although the Claimant had some psychological problems not related to her work, she was taking medication and was under the care of a physician. Before completing the program, the Claimant inexplicably stopped attending.

Thus, 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. Rehabilitation Solutions, Inc. (the Provider) furnished work hardening services to (the Claimant) between October 5, 1999, and November 11, 1999.
  2. The Claimant sustained an injury to her right shoulder in a work-related accident on __________.
  3. At the time of the injury, the Claimant’s employer had its workers' compensation insurance through Transcontinental Insurance Company (the Carrier).
  4. The Provider submitted a claim of $12,084 for its services to the Claimant.
  5. The Carrier reimbursed the Provider $500 for its evaluation of the Claimant’s condition.
  6. The Carrier denied reimbursement of $11,584 based on a lack of medical necessity.
  7. On January 19, 2000, the Provider requested dispute resolution services by the Medical Review Division (MRD) of the Texas Workers' Compensation Commission (the Commission).
  8. On April 6, 2001, MRD staff concluded that the documentation substantiated the medical necessity of the work hardening services and ordered the Carrier to remit $11,584 plus accrued interest to the Provider.
  9. On April 27, 2001, the Carrier filed a request for a hearing regarding the disputed reimbursement.
  10. On May 10, 2001, MRD staff withdrew its decision issued on April 6, 2001.
  11. On May 17, 2001, MRD staff issued an amended decision again concluding that the documentation substantiated the medical necessity of the work hardening services and ordering the Carrier to remit $11,584 plus accrued interest to the Provider.
  12. On May 25, 2001, the Carrier again filed a request for a hearing regarding the disputed reimbursement.
  13. The Commission sent notice of the hearing to the parties on June 28, 2001, and a statement of matters asserted on March 4, 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.
  14. Following the _________ injury, Robert Yanney, D.C. became the Claimant’s treating doctor.
  15. Dr. Yanney provided the Claimant manipulations and physical therapy between April 19, 1999, and July 26, 1999.
  16. Dr. Yanney provided the Claimant a work conditioning program between July 28, 1999, and August 23, 1999.
  17. Work conditioning programs are highly structured, goal-oriented, individualized treatment programs using real or simulated work activities in conjunction with conditioning tasks to reduce an injured worker’s pain and restore function.
  18. In September 1999, Dr. Yanney referred the Claimant to the Provider for a work hardening program.
  19. The primary goal of work hardening is to physically prepare an individual to return to work.
  20. Work hardening programs are interdisciplinary with a capability of addressing the functional, physical, behavioral, and vocational needs of the injured workers who have encountered significant deconditioning following their injuries.
  21. 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.
  22. Work hardening programs are eight-hour per day programs of up to six weeks duration.
  23. The Claimant was employed by __________ as a packer.
  24. A ________ packer’s job duties include retrieving unassembled packing boxes from a height of five feet three inches, assembling the boxes, packing the assembled boxes with corn or potato chips, closing the packed boxes, and placing the boxes weighing five pounds on a skid five to six feet high. When a product changeover occurs or seasoning builds up, the packers have to scrape and wipe down equipment. Packers have to sweep floors and pick up debris with a dust pan and occasionally push a wheeled dumpster to a trash compactor.
  25. A _________ packer performs seven hours of packing daily, rotating every hour.
  26. A _________ packer stands on anti-fatigue mats while packing.
  27. As defined in the Dictionary of Occupational Titles, a packer’s duties are categorized as sedentary work.
  28. _________ had a modified-duty program for injured workers designed to help an injured worker return to full duty.
  29. The _________ modified-duty program provided for the following:

a. cooperation with an injured worker’s doctor regarding restrictions;

  1. pairing the injured worker with another employee to work in two-hour shifts, then three-hour shifts, and eventually increasing to regular duty;
  2. 90 days of modified-duty to help the injured worker achieve full-duty;
  3. the use of actual job duties rather than simulated duties; and
  4. no lost time from work during participation.
  5. To determine the medical necessity of a work hardening program, one must consider the following issues: (a) the injured worker’s job requirements; (b) the worker’s present capacity for performing the job duties; and (c) the expectations for improvement.
  6. The Provider evaluated the Claimant to determine whether she met the admission requirements for the work hardening program.
  7. At the time she was evaluated for the work hardening program, the Claimant could carry as much weight as she was required to carry on the job.
  8. At the time she was evaluated for the work hardening program, the Claimant could push and pull more weight than she was required to push or pull on the job.
  9. The Provider noted that the Claimant’s cervical and bilateral upper extremity range of motion was limited.
  10. The Provider did not specify the limitations the Claimant had to her range of motion or what action would be taken to address the limited range of motion.
  11. An MRI of the Claimant’s shoulder indicated the shoulder was normal.
  12. During the second and third weeks of the work hardening program, the Claimant stacked boxes twice as heavy as she was required to stack at _________.
  13. On October 8, 22, 29, 1999, and November 8, 12, and 15, 1999, the Claimant failed to attend the work hardening program.
  14. On November 17, 1999, the Provider had to discharge the Claimant from the work hardening program for non-attendance.
  15. The Claimant was able to return to light duty as early as May 1999.



  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 provided in 28 TAC § 134.600(h)(11), a work hardening program of less than six weeks duration does not require preauthorization.
  7. As specified in 28 TAC § 134.201Medicine GR II.E.1., work hardening programs should admit persons: (a) who are likely to benefit from the program; (b) whose current levels of functioning due to injury interfere with their ability to carry out specific tasks required in the workplace; (c) whose medical, psychological, or other conditions do not prohibit participation in the program; and (d) who are capable of attaining specific employment upon completion of the program.
  8. Based on the Findings of Fact, the claimant did not meet the admission requirements to participate in a work hardening program pursuant to 28 TAC ' 134.201 Medicine GR II.E.1.
  9. The treating physician did not maintain efficient utilization of health care for the Claimant, pursuant to Tex. Lab. Code Ann. § 408.025(c).
  10. 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 Transcontinental Insurance Company does not have to remit $11,584 plus accrued interest to Rehabilitations Solutions, Inc., as ordered by the Medical Review Division of the Texas Workers’ Compensation Commission.

Signed this 18th day of April, 2002.

Administrative Law Judge
State Office of Administrative Hearing

  1. The Claimant may have also had cervical discogenic spondylosis at multiple levels, cervical disc bulge at multiple levels, chronic right C-6 radiculopathy, and right wrist tenosynovitis. The Carrier’s medical doctor challenged the diagnosis by the chiropractor; however, it is not necessary to address that issue to resolve this case.
  2. 28 Tex. Admin. Code § 134.201 Medical Fee Guideline Medicine Ground Rules.
End of Document