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At a Glance:
Title:
453-01-3334-m5
Date:
December 10, 2002
Status:
Retrospective Medical Necessity

453-01-3334-m5

December 10, 2002

DECISION AND ORDER

This case is an appeal by the North Houston Medical Rehabilitation & Pain Center (“Provider” or “Petitioner”) from a decision of the Texas Workers’ Compensation Commission’s Medical Review Division (“MRD”) in a medical necessity dispute. The MRD denied reimbursement because adequate documentation was not provided for verification that work hardening services were performed and because the billing for case management by a treating doctor inside the interdisciplinary program was inappropriate. The Administrative Law Judge (“ALJ”) denies Petitioner’s request for reimbursement as the work hardening program was not reasonable and medically necessary for the injury incurred.

I. JURISDICTION AND VENUE

The Commission has jurisdiction over this matter pursuant to § 413.031 of the Texas Workers’ Compensation Act (“the Act”), TEX. LABOR CODE ANN. ch. 401 et seq. The State Office of Administrative Hearings (“SOAH”) 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.

Respondent argued that SOAH did not have jurisdiction over this case or, in the alternative, that the case was not ripe for a decision because the compensability issue was yet to be determined. According to Respondent, any decision granting relief to Petitioner is contingent on the compensability decision and thus is improper. The ALJ denied Respondent’s motion to dismiss or abate the case.

II. STATEMENT OF THE CASE

The hearing in this docket was convened on June 30, 2002, and re-convened on August 27, 2002, at SOAH facilities in the William P. Clements Building, 300 W. 15th St., Austin, Texas. ALJ Casey Church presided. Petitioner was represented by H. Douglas Pruett, Attorney. American Home Assurance Co. (Respondent or Carrier) was represented by Steven M. Tipton, Attorney.[1] After the parties’ submission of written closing statements, the record was closed on September 30, 2002. The file was transferred to ALJ Tommy Broyles who reviewed the record and issues this decision.

The evidence presented revealed that ____ (Claimant) suffered an injury to his lower back while lifting pallets on_______. His complaints included shooting pains in the upper back radiating into the lower lumbar area, elicited to the right; shooting pain in the right buttock radiating into the right lower extremity; and numbness in the right hamstring region.

From January 25 to March 24, 2000, Claimant participated in a work hardening program administered by Petitioner. Respondent denied payment based on a peer review that concluded the the services performed were not reasonable and necessary for the injury in question. MRD denied reimbursement because insufficient documentation was provided to MRD at the time of its review.

Petitioner filed a Motion for Summary Disposition claiming that there was no genuine issue of material fact because the basis for MRD’s decision, lack of documentation, was improperly considered. According to Petitioner, Respondent did not indicate lack of documentation as an issue in its TWCC-62/EOB coding and instead denied the claim solely on the ground that the services were not reasonable and necessary. Petitioner thus argues that all reviews (by MRD or ALJ) are limited to whether the services were reasonable and necessary.

Petitioner’s motion was denied. MRD’s decision does not inject the lack of documentation issue addressed by TWCC-62 coding. Rather, MRD asserts that Provider must submit sufficient documentation to the reviewing body at the time of review to establish certain minimum facts, such as that service were actually provided. Having insufficient documentation to review Provider’s claim, MRD denied the claim without reaching the medical necessity issue. The ALJ agrees with MRD’s decision and finds that the case is properly before SOAH.

During the SOAH proceeding, Petitioner properly supplemented the record with the documentation missing at MRD. Therefore, lack of documentation before the reviewing body is no longer an issue, and the ALJ evaluated the medical necessity issue as the basis for deciding this case.

III. THE PARTIES’ EVIDENCE AND ARGUMENTS

A. RESPONDENT

Respondent made two principal arguments:

  1. A work hardening program was medically unnecessary because there was no need for treatment concerning three of the four pillars of a work-hardening program; and
  2. Petitioner failed to meet its burden of proving the existence of what would be defined as a work hardening program.

Respondent argues that work hardening was inappropriate because of the interdisciplinary nature of the program which sets it apart from physical rehabilitation and work conditioning. Art Keller, D.C. testifying on behalf of Respondent, explained that work hardening addresses a patient’s physical, vocational, behavioral and functional needs. In his opinion, Claimant did not need assistance from the behavioral, functional or vocational programs. Other experts testifying on behalf of Respondent, Troy Clarke, D.C., and John Braswell, D.C., agreed, noting that Claimant’s sole deficiency was physical strength. They testified that a work conditioning or home based stretching and strengthening program was the most cost effective treatment for Claimant. Dr. Braswell added that Claimant would have obtained the same or better results from these treatments as he did from the work hardening program.

All three doctors further testified that the work hardening program was unreasonable as Claimant was receiving epidural steroid injections at the time of entry into the program. They explained that the injections could interfere with the work hardening program by changing the patient’s perception of pain. They also testified that the injections are generally performed as a precursor to surgery.

Respondent’s second argument is that Provider failed to prove the existence of a work hardening program because all four elements of such a program were not offered to Claimant. Respondent believes a requirement that each of the four elements be provided is implied in the fact that the interdisciplinary nature of the program is what separates it from work conditioning. In this case, Respondent asserts Petitioner failed to provide services meeting the requirements for the vocational element.

While Petitioner asserted that the vocational element was satisfied by work simulation, Respondent disagrees. Drs. Keller, Clarke, and Braswell testified that work simulation satisfies the functional element of a work hardening program and is provided by a physical therapist. Respondent insists that the vocational element is performed by a vocational rehabilitation expert but was not needed by Claimant as he had a specific job to return to. As further proof that work simulation does not satisfy the vocational element of work hardening, Respondent notes that a work conditioning program does not require a vocational element but does require work simulation. Accordingly, Respondent believes the program performed by Claimant was not work hardening.

In conclusion, Respondent asserts that a work hardening program was neither provided nor necessary for Claimant and asks that Provider’s demand for reimbursement for its billed services be denied.

B. PETITIONER

Petitioner responds that Claimant met all four entrance criteria for a work hardening program, which are: (1) persons likely to benefit from the program; (2) persons whose injury interferes with their ability to carry out specific tasks required in the workplace; (3) persons whose condition, psychological or otherwise, does not prohibit participation in the program; and (4) persons capable of attaining specific employment upon the completion of the program. Petitioner focuses on the second criteria and asserts that Claimant was weakened from his injury, de-conditioned as a result of his off-work status, and might have been re-injured if released to return to work without proper work hardening.

Dennis M. Smith, D.C., testified on behalf of Petitioner that Claimant demonstrated significant deficits in a functional capacity evaluation (FCE) performed by John E. Slaughter, D.C. In this evaluation, Claimant showed significant decrease in strength on six separate tests. Dr. Smith agreed with Dr. Slaughter’s determination that the FCE established Claimant’s need for work hardening. Petitioner argues that Dr. Smith’s opinion is buttressed by that of Dr. Benny Sanchez, M.D., who examined Claimant on January 7, 2000, and determined that physical therapy was necessary.

Petitioner asserts that even Respondent’s experts concede this lack of strength impaired Claimant from performing his specific job duties. Dr. Keller testified that Claimant’s employment as a luggage handler would require constant and significant lifting, and Petitioner notes that Dr. Keller did not release Claimant to return to these job duties. This constitutes further evidence, according to Petitioner, that work hardening was necessary.

As its final evidence that the work hardening program was necessary and reasonable, Petitioner notes that at the conclusion of the program, Claimant showed improvement and was released to return to work. Given the determinations by Drs. Smith and Slaughter that the work hardening program was medically necessary and the corroboration by Dr. Sanchez of the need for physical therapy, Petitioner concludes that Claimant met the four work hardening entrance criteria and was properly admitted to the program.

IV. ANALYSIS

The ALJ finds Petitioner failed to demonstrate that a work hardening program was reasonable and necessary to treat Claimant’s injury. Instead, the record indicates Claimant needed, and primarily received, a one‑dimensional regime of physical therapy. Work hardening is an interdisciplinary program [2] with assistance and training unnecessary to treat Claimant’s injury. As such, treatment was not provided in the most appropriate, least intensive setting and was not cost-effective as required by the Commissions’s Spine Treatment Guideline. 28 TAC §134.1001(e)(3).

Petitioner initially offered the following bases to support the reasonableness and necessity of the services provided:[3]

1) Dr. Slaughter’s referral to a work hardening program based on Claimant’s muscle weakness and a decrease range of motion in the lumbar spine;

2) the examination by Dr. Benny Sanchez, M.D., who determined that Claimant needed additional physical therapy; and

3) the fact that Claimant returned to work after completing the work hardening program.

However, further investigation leaves Dr. Slaughter’ determination of muscle weakness as the sole basis to justify the work hardening program. Dr. Slaughter initially determined a 5% impairment in Claimant’s FCE range of motion (“ROM”) and after six weeks of work hardening cited a decrease in this impairment to 2% as proof of its benefit. But, after Dr. Braswell’ review and report questioning the initial impairment value, Dr. Slaughter admitted to a “glitch”in his software used to perform the FCE and stated that the software was arbitrarily assigning impairment values for ROM. The evidence established that Claimant’s ROM was normal or very near normal and certainly would not support a work hardening program.

The second basis provided by Petitioner also falls short of supporting the necessity of a work hardening program. Dr. Sanchez determined that Claimant needed additional physical therapy, not a work hardening program. The two are not the same. The need for physical therapy does not make a work hardening program reasonable and necessary.

The ALJ agrees with the premise of Petitioner’ final basis of support- that the success of a program is some indication of whether it is reasonable and necessary. However, while Claimant did return to work after the work hardening program, he re-injured himself within a month, leaving

the success of the program in question. Furthermore, while there is little doubt that the work hardening program provided Claimant with some benefit in strength conditioning, the primary question is whether work hardening was the appropriate program to address this singular deficit.

Reviewing the four elements of a work hardening program (vocational, behavioral, functional and physical), it is clear that Claimant did not need vocational or behavioral assistance. Vocational assistance was unnecessary in this instance as Claimant had a job waiting for him that he eventually returned to. He did not need help in finding employment. Nor did Claimant need behavioral assistance. On February 11, 2000, Claimant was examined by Pedro M.Caram, M.D., who noted that psychological treatment was not needed. Drs. Keller, Clarke and Braswell all concurred.

In this instance, the final two elements of a work hardening program, functional and physical assistance, are both assisted to some degree by strength conditioning. Clearly, the one element where treatment was proven to be reasonable and necessary was physical assistance. Claimant suffered from muscle weakness and needed to improve his performance in this area prior to being released to his former work.

Whether the functional element was necessary or provided is less clear. In the ALJ’s view, work simulation would be the primary program by which to satisfy this element. Work simulation in a hardening program must be sufficient to recreate some of the most crucial, salient aspects of Claimant’s abilities, such as the fundamental physical motions involved, the duration of exertion, and the relevant layout of the workplace. Nothing in the record to which the ALJ’s attention was directed specifically describes how the program at issue in this case included simulations of Claimant’s work, other than lifting weights.

V. CONCLUSION

The ALJ concludes that Claimant’s single deficiency, lack of physical strength, was not appropriately addressed by a work hardening program. Pursuant to the record provided in this case, the work hardening program provided by Petitioner for Claimant’s treatment was medically unnecessary and inconsistent with the requirements of the MFG. Accordingly, Petitioner’ request for reimbursement for services provided through that program is denied.

VI. FINDINGS OF FACT

  1. On_______ (“Claimant”) suffered an injury to his lower back.
  2. In the course of rehabilitation from his injury, Claimant was referred to a work hardening program administered by North Houston Medical Rehabilitation and Pain Clinic (“Petitioner”). Claimant participated in that program from January 25 through March 24, 2000.
  3. Petitioner sought reimbursement for the program noted in Finding of Fact No. 2 from American Home Assurance Co.(“Respondent”), the carrier for Claimant’s employer at the time of his lower back injury.
  4. Respondent denied the reimbursement requested by Petitioner.
  5. By filing dated May 10, 2000, Petitioner made a timely request to the Texas Workers’ Compensation Commission’s Medical Review Division (“MRD”) for medical dispute resolution with respect to the requested reimbursement.
  6. The MRD denied Petitioner’s request for reimbursement in a decision dated May 8, 2001, in dispute resolution docket No. M5-00-1041-01.
  7. Petitioner requested in timely manner a hearing with the State Office of Administrative Hearings, seeking review and reversal of the MRD decision.
  8. The Commission mailed notice of the hearing’s setting to the parties at their addresses on June 29, 2001.
  9. A hearing in this matter was convened on June 30, 2002 and then re-convened on August 27, 2002, at the William P. Clements Building, 300 W. 15th St., Austin, Texas, before Cassandra J. Church, an Administrative Law Judge with the State Office of Administrative Hearings. Petitioner and Respondent were represented.
  10. Following the closing of the record on September 30, 2002, this case was transferred to Tommy L. Broyles, Administrative Law Judge, who reviewed the record and prepared the Decision and Order.
  11. The dates of the work hardening program at issue in this case were January 25 through March 24, 2000.
  12. At the time of referral to the work hardening program, Claimant’s sole concern to be addressed by the program was muscle weakness.
  13. Claimant did not need vocational or behavioral assistance.
  14. During the work hardening program, Claimant did not receive functional assistance in the form of work simulation specifically designed for his job duties of baggage handling.
  15. Claimant did receive physical assistance during the work hardening program.

VII. CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission has jurisdiction over 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 (“TAC”) § 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 work hardening program noted in Finding of Fact No. 2 was not reasonable and necessary medical care under TEX. LABOR CODE ANN. §§408.021(a)(1-3) and § 401.011(19). Claimant’s single deficiency, lack of physical strength, was not reasonably addressed by the interdisciplinary nature of a work hardening program.
  7. Based upon the foregoing Findings of Fact and Conclusions of Law, Petitioner’s request for reimbursement for services provided from January 25 through March 24, 2000, should be denied.

ORDER

IT IS THEREFORE, ORDERED that Petitioner, North Houston Medical Rehabilitation & Pain Center, is denied reimbursement from Respondent, American Home Assurance Co., for work hardening services provided to Claimant, ____, from January 25 through March 24, 2000.

Signed this 10th day of December, 2002.

Tommy L. Broyles
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. The staff of the Commission was also designated as a Respondent in the proceeding but elected not to participate.
  2. Texas Workers’ Compensation Commission’s (“Commission”) Medical Fee Guideline (“MFG”), 28 TEX. ADMINISTRATIVE CODE (“TAC”) § 134.201.
  3. In its closing arguments, Petitioner also spent a great deal of time attacking the credibility of Respondent’s witnesses. However, the record establishes that Drs. Keller, Clarke, and Braswell are qualified to testify about the matters in controversy and while they were paid for their time spent testifying, the financial reward to these doctors was no greater than that of Petitioner’s expert witness, Dr. Smith. For in spite of Dr. Smith’s best efforts to distance himself from the North Houston Medical Rehabilitation and Pain Center (“North Houston”) and its physician, Dr. Slaughter, he ultimately admitted that North Houston was a subsidiary of Rehab Alliance of Texas, Dr. Smith’s place of employment.
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