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At a Glance:
Title:
453-01-3333-m5
Date:
June 21, 2002
Status:
Retrospective Medical Necessity

453-01-3333-m5

June 21, 2002

DECISION AND ORDER

This case is an appeal by the Insurance Company of the State of Pennsylvania (APetitioner) from a decision of the Texas Workers= Compensation Commission's Medical Review Division (AMRD) in a medical fee dispute. The MRD countermanded, in part, Petitioner's denial of reimbursement for a work hardening program, which Respondent Med Sport had provided in the treatment of claimant with a compensable back injury.

Petitioner challenged the MRD's decision on the basis that a work hardening program for this claimant was not medically necessary, within the meaning of Sections 408.021 and 401.011(19) of the Texas Workers= Compensation Act (the Act), TEX. LABOR CODE ANN. ch. 401 et seq., and that the program provided in this case failed to satisfy the criteria for work hardening programs set forth in the Commission's Medical Fee Guideline (AMFG), 28 TEX. ADMINISTRATIVE CODE (ATAC) ' 134.201.

This decision affirms the MRD's decision, finding that Petitioner should reimburse Respondent $5,231.20, as previously ordered.

JURISDICTION AND VENUE

The Commission has jurisdiction over this matter pursuant to ' 413.031 of the Act. The State Office of Administrative Hearings (ASOAH) has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to ' 413.031(d) of the Act and TEX. GOV'T CODE ANN. ch. 2003. No party challenged jurisdiction or venue.

STATEMENT OF THE CASE

The hearing in this docket was convened on June 11, 2002, at SOAH facilities in the William P. Clements Building, 300 W. 15th St., Austin, Texas. Administrative Law Judge (AALJ) Mike Rogan presided. Petitioner was represented by Janice Menzies, attorney. Respondent was represented by Jeffrey Burley, attorney. After presentation of evidence and argument, the hearing was adjourned and the record was closed on that same date.[1]

The record revealed that claimant, suffered a compensable injury to his back on (date of injury), while working as a baggage handler for American Airlines. Diagnosis indicated a lumbar strain. Subsequently, claimant experienced chronic low-level pain, associated with the injury, in his lower back and hip. Desiring to avoid surgery, he sought generally conservative treatment, including participation in a work hardening program administered by Respondent.

Respondent billed $12,364.00 for services under this work hrdening program from June 18 through August 7, 1998. Petitioner, the insurance carrier for claimant's employer, denied all but $240.80 of this amount. Individual service items were denied either on the basis that they were medically unnecessary or that they were Aprimarily single disciplinary, emphasizing conditioning tasks normally associated with work conditioning (97545 WC). In a filing dated January 18, 1999, Respondent then sought a dispute resolution review before the MRD.

The MRD issued a decision on May 15, 2001, concluding that available medical records showed Respondent entitled to $5,231.20 in reimbursement. Petitioner effected a timely appeal from the MRD's decision.

THE PARTIES' EVIDENCE AND ARGUMENTS

A. PETITIONER

Petitioner made two principal arguments, as follows:

  1. A work hardening program was medically unnecessary in this particular case, according to physician peer reviews.
  2. Documentation does not demonstrate that Petitioner's work hardening program satisfied

the criteria specified in the MFG. In particular, Petitioner asserted, the program appeared to be a one-dimensional physical workout regime, rather than Ainterdisciplinary; no specific treatment plan for the claimant was presented; required supervision by a physician or licensed physical therapist was frequently lacking; and the program's work simulation did not sufficiently duplicate the claimant's actual work environment.

Dr. Stephen Tomko, chiropractor, testified for Petitioner that the records in this case did not show the claimant to be so Adeconditioned by his injury as to require a relatively elaborate work hardening program. The patient's need for strengthening at that point could have been just as well served by a home exercise program, Dr. Tomko contended. He also found no Apsychological components of the claimant's condition that would have required special attention in an integrated work hardening program. As to the nature of the program itself, Dr. Tomko said that the activities included in it seemed Ageneric, with nothing to closely approximate the work of a baggage handler.

Petitioner lso submitted written peer reviews from two other physicians. Dr. Sofia Weigel noted that during a functional capacity evaluation (AFCE) conducted on June 29, 1998, the claimant passed six of seven tests involving activities specific to his job. To Dr. Weigel, this indicated merely a need for one or two weeks of therapy targeted at the one job requirement that the patient had failed on the FCE, not a need for six to eight weeks of overall work hardening. In addition, Dr. Weigel noted that, even before beginning the work hardening program, the claimant had undergone six weeks of active physical therapy (May 6 to June 17, 1998) for two hours a day, three times a week. Under these circumstances, no indication existed that the patient suffered deconditioning that would call for Awork hardening to re-acquaint the patient with the requirements of his work duty. Dr. Weigel concluded that a lumbar strain Ashould not require active therapy for greater than a twelve week period.

Dr. Mury Guzick, a chiropractor, also submitted a peer review dated September 1, 1998, declaring that the Anecessity for work hardening is not clinically established. However, both witnesses presented by Petitioner at the hearing acknowledged, upon cross-examination, that Dr. Guzick later reversed his opinion as to the need for work hardening in this case.

B. RESPONDENT

In closing argument, Respondent asserted that the claimant's job in this case demanded constant heavy exertion as soon as he got back to work, and that Respondent's rigorous work hardening program properly prepared him for that. Respondent rejected the idea that using barbell-type weights in a gymnasium setting failed to provide a sufficiently detailed simulation of the claimant's actual work environment.

Respondent presented the testimony of the claimant, who stated that he remains pleased with his recovery, which he attributed in large part to Respondent's work hardening program. Returning to the same job shortly after completion of the program, he has been able to continue that work without significant medical problems for almost four years.

Claimant noted that Dr. Glen Garlington, a chiropractor with Med Sport, arranged his physical therapy to produce weight loss, as well as increased strength and conditioning. At the time of his injury, claimant weighed 260 pounds, but he shed a considerable amount of weight during his rehabilitation. The loss of weight was intended, he said, to reduce the stress on his body, especially on his joints, in order to improve the long-term ability to perform his job.

According to claimant, his work in the program was generally supervised by Kevin Wagner, a licenced physical therapist, or by a physical therapist assistant who was directed by Mr. Wagner. The program's work simulation included pulling weights attached to a low-mounted cableBto simulate the pulling of baggage carts on the jobBand lifting a series of varying weights to a raised shelfBto simulate placing luggage on a loading pier.

Ronld Schweyher, a principal of Med Sport, also testified. He asserted (without detailed elaboration) that Respondent's work hardening program, at the time claimant participated in it, included all the components required of such a program by the MFG. Mr. Schweyher contended that he was well-qualified to help design a regimen simulating the types of exertion demanded by a baggage handler's job, because he had once worked for several months with American Airlines, supervising Afleet service employees, including baggage loaders and handlers. In addition to the work simulation exercises claimant's program included a variety of other weight-lifting exercises, in order to promote general strength and conditioning. On cross-examination, Mr. Schweyher acknowledged, at least implicitly, that Med Sport has never maintained a wholly specialized setting for rehabilitating baggage handlers, using actual luggage and exactly the same type of baggage-handling equipment used by airlines.

The certified record compiled by the CommissionBi.e., the MRD's Findings and Decision, with accompanying documents, totaling 702 pagesBwas admitted into evidence as Exhibit 1.

ANALYSIS

Petitioner bears the burden of proving those deficiencies that it contends should invalidate the MRD's decision in this case. In the ALJ's view, it has not discharged that burden.

As a threshold matter, the ALJ notes that some of the services found reimbursable by the MRD are not related to work hardening. These include services under CPT Codes 97530 and 97112 on June 18, 22, 24, and 25, 1998, for which the MRD recommended total reimbursement of $1,120.00. Petitioner has offered no rationale for challenging the reimbursement of these services.

With respect to the work hardening services at issue, the ALJ does not find sufficiently convincing the argument and evidence supporting Petitioner's various rationales for reversing the MRD. The ALJ's view on each of these rationales is set out separately, as follows:

Medical necessity. While Petitioner correctly noted that claimant performed on his FCE six of the seven weight-lifts prescribed as job-standards by his employer, nothing in the record indicates that a deficiency with respect to only one such lift is trivial or marginalBor that a failure on only one criterion negates the need for work hardening. Since, as the FCE stated, claimant=s

job flls within the Avery heavy physical demand capacity (APDC) level, the ALJ must assume that a deficiency in even one category of required exertion could lead to serious performance and safety problems. At the end of the initial FCE, Terri Hambrick, the licenced physical therapist who conducted the testing for Victory Medical, concluded that claimant qualified at only the Amedium PDC level and recommended that he not return to work until completing a six- to eight-week work hardening program to improve strength, endurance, and range of motion. A second FCE done by Victory after the work hardening program qualified claimant at the Aheavy PDC level.

With respect to Dr. Weigel's conclusion that a lumbar strain should require active therapy for no more than twelve weeks, the ALJ observes that the last date of service at issue in this proceeding (July 27, 1998) is about 12 weeks after claimant began post-injury therapy.

Interdisciplinry nature of program. To the ALJ, the record indicates that claimant's work hardening program focused upon general body conditioning, simulation of certain specific motions typical of his work duties, and efforts to adjust his body weight for better resistance to the long-term stresses of his job. While all these aspects of promoting work capability are related and may entail the use of some similar exercises, the overall considerations and techniques appropriate to each are sufficiently distinct to justify classifying claimant's program as Ainterdisciplinary, under the rather generalized use of that term in MFG Medicine Ground Rules (II)(E).

In addition, the record indicates that during at least part of the program claimant attended weekly sessions with a clinical psychologist to address, among other things, the uses of relaxation training in managing stress and chronic pain, and for improved sleep at night.[2]

Specific tretment plan. Although a reasonably detailed, express treatment plan would seem to be a logical prerequisite for a Ahighly structured, goal-oriented, individualized treatment program, as MFG Medicine Ground Rules (II)(E) describes work hardening, neither the MFG nor other cited authority appears to mandate any definitive documentation of such a plan. In this case, generalized testimony and inferences from documentation indicated that Dr. Garlington did prepare a plan for claimant's rehabilitation, but that specific plan is not included in the record. On the other hand, Petitioner has provided no significant evidence as to that plan's existence.

Adequacy of required supervision. The record does not reveal precisely how often a physician or licensed therapist was present to supervise claimant's work hardening activities. However, testimony and documentation indicate that Kevin Wagner, a licensed physical therapist, was routinely present for part of those daily activities. Claimant initialed almost all of the numerous daily progress reports and exercise schedules in this case. Claimant's licensed assistant, Vonna Ballard, apparently was present for a greater portion of most work hardening sessions.

Particularly in light of the provision in MFG Medicine Ground Rules (II)(E)(6) that more than half a patient's work hardening activity will be Aself-monitoredBand thus outside of immediate supervisionBPetitioner has failed to show that claimant's work hardening did not meet the MFG's generalized requirements for program supervision.

dequacy of work simulation. At the hearing, Petitioner emphasized that claimant's work simulation used exercise weights rather than actual baggage and took place within a typical exercise facility, rather than within an environment more closely resembling an airport baggage-handling center. Petitioner took this to be inconsistent with the statement in MFG Medicine Ground Rules (II)(E) that AWork hardening programs use real or simulated work activities in a relevant work environment. . . However, the ALJ has been referred to no authorities that interpret this language as meaning that work simulation must duplicate a patient's workplace in hyper-realistic detail. The record convinces the ALJ that claimant's program was sufficient to recreate the most crucial, salient aspects of his workBi.e., the fundamental physical motions involved, the duration of exertion, and the relevant dimensions of the workplace.

CONCLUSION

The ALJ finds that, under the record provided in this case, the requested medical services, to be paid for by the insurer, the Insurance Company of the State of Pennsylvania, should be reimbursed in the amount of $5,231.20, as initially determined by the MRD.

FINDINGS OF FACT

  1. On (date of injury), claimant suffered an injury to the back that was a compensable injury under the Texas Worker's Compensation Act (the Act), TEX. LABOR CODE ANN. ' 401.001et seq. Subsequent to the injury, claimant experienced chronic pain in the back and hip.
  2. In an effort to avoid surgery, claimant sought generally conservative treatment, including physical therapy and a work hardening program administered by Med Sport (ARespondent).
  3. Respondent sought reimbursement of $12,364.00 for services noted in Finding of Fact No. 2 from the Insurance Company of the State of Pennsylvania (APetitioner), the carrier for the claimant's employer.
  4. Petitioner denied all but $240.80 of the requested reimbursement.
  5. By filing dated January 18, 1999, Respondent made a timely request to the Texas Workers= Compensation Commission's Medical Review Division (AMRD) for medical dispute resolution with respect to the requested reimbursement.
  6. The MRD countermanded Petitioner's denial of reimbursement, in part, approving reimbursement of $5,231.20 in a decision dated May 15, 2001, in dispute resolution docket No. M5-01-1169-01.
  7. Petitioner requested in timely manner a hearing with the State Office of Administrative Hearings, seeking review and reversal of the MRD decision regarding preauthorization.
  8. The Commission mailed notice of the hearing's setting (originally for March 12, 2002) to the parties at their addresses on June 29, 2001. The hearing was subsequently continued to June 11, 2002, with proper notice to parties.
  9. A hearing in this matter was convened on June 11, 2002, at the William P. Clements Building, 300 W. 15th St., Austin, Texas, before Mike Rogan, an Administrative Law Judge with the State Office of Administrative Hearings. Petitioner and Respondent were represented.
  10. The dates of the work hardening program at issue in this case were June 29 through July 27, 1998.
  11. On functional capacity evaluation (AFCE) conducted on June 29, 1998, at the outset of the work hardening program, the claimant passed six of seven weight-lifting tests prescribed by his employer, involving activities specific to his job. The FCE report noted that the claimant's job fell within the Avery heavy physical demand capacity (APDC) level but concluded that the claimant at that time qualified at only the Amedium PDC level, thus recommending that the claimant not return to work until completing a six- to eight-week work hardening program to improve strength, endurance, and range of motion.
  12. The work hardening program in which the claimant participated met the criteria for work hardening programs contained in the Commission's Medical Fee Guideline (AMFG), 28 TEX. ADMINISTRATIVE CODE (ATAC) ' 134.201, Medicine Ground Rules (II)(E), including an interdisciplinary character (addressing the claimant's general conditioning, his re-adaptation to specific motions and exertions required by his job, and his need for weight loss to reduce physical stress associated with the job), supervision by a licensed physical therapist, a treatment plan, and work simulation that adequately recreated the fundamental physical motions the relevant workplace dimensions associated with the job.

CONCLUSIONS OF LAW

  1. The Texas Workers= Compensation Commission has jurisdiction related to this matter pursuant to the Texas Workers= Compensation Act (the Act), TEX. LABOR 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 ' 413.031(d) of the Act and TEX. GOV'T CODE ANN. ch. 2003.
  3. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV'T CODE ANN. ch. 2001 and the Commission's rules, 28 TEX. ADMINISTRATIVE CODE (ATAC) ' 133.305(g) and '' 148.001-148.028.
  4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV=T CODE ANN. '' 2001.051 and 2001.052.
  5. Petitioner, the party seeking relief, bore the burden of proof in this case, pursuant to 28 TAC ' 148.21(h).
  6. Based upon the foregoing Findings of Fact, the treatments for the claimant noted in Finding of Fact No. 2 (to the extent approved for reimbursement by the MRD, as noted in Finding of Fact No. 6) represent elements of health care medically necessary under ' 408.021of the Act.
  7. Based upon the foregoing Findings of Fact and Conclusions of Law, the Findings and Decision of the Medical Review Division, issued in this matter on May 15, 2001, are affirmed; reimbursement of $5,231.20 for the services noted in Conclusion of Law No. 6, to be paid for by the Insurance Company of the State of Pennsylvania, should be approved.

ORDER

IT IS THEREFORE, ORDERED that the Insurance Company of the State of Pennsylvania reimburse Med Sport $5,231.20, plus all accrued interest due at the time of payment, for physical therapy and work hardening services, in accordance with the Findings and Decision of the Medical Review Division of the Texas Workers= Compensation Commission, issued in this matter on May 15, 2001.

Signed this 21st day of June, 2002.

MIKE ROGAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. The stff of the Commission was initially designated as a Respondent in the proceeding but formally elected not to participate, although it filed a AStatement of Matters Asserted that recommended upholding the MRD's decision.
  2. Certified record, Exhibit 1, p. 211.
End of Document
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