DECISION AND ORDER
I. PROCEDURAL HISTORY
This case is a dispute over whether the Houston Independent School District (Petitioner or HISD) should be required to reimburse Jim Sher, D.C. (Respondent), for the cost of work hardening services that were provided to a workers’ compensation Claimant. The amount in controversy is $9,472.00.
Petitioner refused to pay for the work hardening services because it believed they were medically unnecessary and rendered without being preauthorized. After being denied payment, Dr. Sher filed a request with the Texas Workers’ Compensation Commission (Commission) for medical dispute resolution. The Commission’s medical review division (MRD) reviewed the documentation presented by Dr. Sher and Petitioner and ordered Petitioner to pay the amount in controversy. Petitioner appealed the MRD decision and argued at the hearing that work hardening was not medically necessary treatment for the Claimant. The Administrative Law Judge (ALJ) concludes that Petitioner did not meet its burden of proving the work hardening program was not medically necessary under the Commission’s Medical Fee Guidelines. Petitioner also did not prove that Dr. Sher was required to seek preauthorization before enrolling Claimant in the six-week program. Therefore, Petitioner should reimburse Dr. Sher for the services.
II. EVIDENCE AND DISCUSSION
Claimant ____ sustained a compensable injury on __________, when the bus she was driving was struck by a truck that ran a red light. As a result of the collision, Claimant sustained injury to her neck and back. She was treated by James Stringer, D.C., who diagnosed her as having a cervical and lumbar root lesion, thoracic sprain, and muscle spasms. After treating Claimant conservatively with physical therapy and pain medication for approximately one year, Dr. Stringer referred her to the Comprehensive Pain Reduction Center in September 2000. Dr. Fred Bakht of the Center found Claimant: (a) continued to have pain in her lumber and cervical spine; (b) was having difficulty sleeping and managing her pain; and (c) was becoming depressed due to the prolonged effects of the injury. (C.R. pp. 64-66). A short time later, Dr. Springer also referred Claimant to Marcus Hayes, D.C. for a functional capacity evaluation (FCE) to determine her ability to meet minimum job criteria and if rehabilitation was needed. Dr. Hayes conducted the FCE on November 9, 2000, and reported that Claimant had functional deficits and was at the sedentary physical demand level (PDL). Her ____ job duties required that she perform at the medium PDL. Dr. Hayes recommended Claimant participate in a work hardening program that fostered muscular and connective tissue flexibility; muscular endurance and strength; cardiovascular conditioning; body mechanics training; work simulation activities; and vocational counseling and intervention. (C.R. pp. 155-156). Dr. Springer referred Claimant to Dr. Sher’s work hardening program, and she participated in it from November 13, 2000, through December 22, 2000. Dr. Sher billed Petitioner $9,472 for the services.
Petitioner refused to pay for the work hardening program because Robert L. Brownhill, M.D. had examined Claimant on October 10, 2000, and had prepared a report indicating he had found no evidence of radiculopathy in the cervical or lumbar spine and that he believed Claimant had fully recovered from the injury. Dr. Brownhill rated Claimant at 0% maximum medical impairment (MMI) on that date and opined that she needed no further treatment. (C.R. p. 189). He reiterated his opinion on January 26, 2002, in a letter in which he stated he did not believe work hardening was appropriate for Claimant. (C.R. p. 128). Dr. Springer disagreed with Dr. Brownhill’s findings and requested Claimant be examined by another doctor. The Commission referred Claimant to a designated doctor, Gregory Woodard, M.D. Dr. Woodard examined Claimant on November 15, 2000, and found she suffered from lumbar disc herniation, chronic lumbar sprain, and cervical disc herniation. He found a 7% impairment for the lumbar spine and a 6% impairment for the cervical spine, for a total whole person impairment rating of 13%. In addition, while Dr. Woodard found that Claimant was at maximum medical impairment (MMI) on November 16, 2000, he indicated “she may benefit from completion of the work hardening program.” (C.R. pp. 131-134).
On December 7, 2000, Claimant also underwent an orthopedic evaluation. John DeBender, M.D., found Claimant’s posterior cervical muscles were tender to palpation and the tenderness extended to the shoulders. Dr. DeBender also found a 10% decrease in range of motion of the neck secondary to pain, muscle spasms were also present, and the lower lumbar spine was tender to palpation along a band-like distribution. Although he found that Claimant’s performance of some tests was normal, he recommended she continue the work hardening program. (C.R. pp. 139-140). On a follow-up visit, he noted some limited improvement in her neck and lower back, but noted her symptoms seemed to be the same. He noted the work hardening program seemed to be helping. (C.R. p. 141).
The evidence in the record supports the medical necessity for the work hardening services provided to Claimant. In addition to Dr. Hayes, who conducted an FCE in early November, at least two other doctors examined Claimant in November and December 2000 and found she had not yet reached maximum medical improvement and would likely benefit from participating in work hardening. Dr. Woodard, a Commission-designated doctor, found that Claimant reached maximum medical improvement on November 15, 2000, and indicated she might benefit from completing the work hardening program in which she was enrolled. In December, Dr. DeBender also examined Claimant and opined that work hardening appeared to be helping her.
Because Petitioner appealed the MRD decision, it had the burden of proving that work hardening was not medically necessary treatment for Claimant. 28 Tex. Admin. Code (TAC) §148.21(h). The only evidence offered by Petitioner to show that Claimant required no additional medical services, such as work hardening, after October 10, 2000, was Dr. Brownhill’s opinion that she had reached maximum medical improvement on October 10, 2000, and required no further treatment. However, Dr. Brownhill’s opinion was refuted by a number of doctors who examined Claimant after he examined her and formed his opinion. The ALJ believes the opinion of the other doctors substantiates that work hardening was medically necessary in this case. Therefore, Petitioner did not meet its burden.
In addition, 28 TAC §134.600(h)(11) does not require a provider to obtain preauthorization for a work hardening program that is not longer than six weeks. Therefore, Petitioner should reimburse Dr. Sher for the services.
III. FINDINGS OF FACT
- Claimant, ____., a ______ with the Houston Independent School District (Petitioner), sustained a compensable injury to her neck and back on _____________ while performing her job.
- After the injury, she was treated by James H. Springer, D.C., who treated her conservatively with physical therapy and pain medication.
- On September 6, 2000, Dr. Springer referred Claimant to the Comprehensive Pain Reduction Center for assessment of how to manage her pain. Claimant continued to have neck and lower back pain, was having difficulty managing the pain, and was becoming depressed about her condition.
- Dr. Springer also referred Claimant to Marcus Hayes, D.C., for a functional capacity evaluation; Claimant was not fit to perform the duties of her job because she was at the “Sedentary” physical demand level (PDL), which was below the “Medium”PDL required of her job.
- Dr. Hayes recommended Claimant participate in a work hardening program, which could help strengthen her back, increase her range of motion, improve her ability to sit and walk, and help her learn how to better cope with her pain.
- Claimant was enrolled in Dr. Sher’s (Respondent’s) work hardening program from November 13 through December 22, 2000. As a result of performing work simulation activities and physical exercises in the program, her condition showed some improvement.
- On November 15, 2000, Dr. Gregory Woodard, a designated doctor, examined Claimant and found she had a whole person impairment of 13%. He also found she had achieved maximum medical improvement on that date but concluded she might benefit from completion of the work hardening program.
- The work hardening program helped improve Claimant’s condition.
- Respondent provided the work-hardening services to Claimant, and billed Petitioner $9,472 for the services.
- The work hardening program provided by Respondent was medically necessary to improve Claimant’s physical and mental condition.
- Petitioner declined to pay for the work hardening services, indicating that preauthorization had not been obtained and that the services were not medically necessary.
- Respondent filed a request for medical dispute resolution with the Texas Workers’ Compensation Commission medical review division (MRD).
- The amount in controversy before the MRD was $9,472 and is the same in this hearing.
- The Commission’s MRD found in favor of Respondent and ordered Petitioner to pay the amount claimed. Petitioner filed a timely appeal of the MRD decision.
- Notice of the hearing was sent to the parties on January 14, 2002. The notice contained a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
- The hearing was held on April 16, 2002, with Administrative Law Judge Ruth Casarez presiding and representatives of Petitioner and Respondent participating. The hearing was concluded on the same day.
IV. CONCLUSIONS OF LAW
- The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers' Compensation Act (the Act), Tex. Lab. Code Ann. ch. 401 et seq.
- SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. §413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
- Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §2001.052.
- Houston Independent School District has the burden of proof in this matter. 28 Tex. Admin. Code (TAC) §148.21(h).
- Pursuant to the Medicine Fee Guideline Section II E of the Medicine Ground Rules, work hardening is a highly structured, goal-oriented, individualized treatment program designed to maximize the ability of the person being treated to return to work. Such a program is appropriate for persons
whose current level of functioning due to illness or injury interferes with their ability to carry out specific tasks required in the workplace;
whose medical, psychological or other conditions do not prohibit participation in the program; and
who are capable of attaining specific work upon completion of the program.
- Respondent proved that the six-weeks of work hardening services provided to Claimant were medically necessary.
- Petitioner did not meet its burden of disproving that the work hardening services were medically necessary treatment for Claimant.
- Pursuant to Commission rule at 28 TAC §134.600(h)(11), a provider is not required to obtain preauthorization for a work hardening program that does not exceed six weeks.
- Because Petitioner did not meet its burden of proof, its request to overturn the MRD’s decision authorizing reimbursement to Dr. Sher should be denied.
IT IS, THEREFORE, ORDERED that Houston Independent School District pay $9,472 to Jim Sher, D.C., for the work hardening services that were provided to Claimant.
Signed this 14th day of May 2002.
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- After receiving Dr. Bakht’s report, Dr. Springer referred Claimant to Dr. Sher’s work hardening program.
- In a follow-up FCE after six weeks of work-hardening, Dr. Hayes noted Claimant continued to exhibit a moderate functional deficit in her ability to perform at the minimum PDL required of her job (she remained at the sedentary PDL). He recommended she continue in the work hardening program for another two weeks. The report contains little specific information about what or how much progress Claimant made during the program, but Dr. Hayes noted the severe deficit had decreased to a moderate deficit, and the chart on material handling activities indicated Claimant’s performance of several listed activities improved from her performance during the initial FCE. (C.R. pp. 151 and 157).↑