DECISION AND ORDER

The Suchowiecky Center (the Petitioner) seeks reimbursement from Texas Mutual Insurance Company (the Carrier) for $13,708.80 in medical services associated with a work hardening program provided to workers’ compensation Claimant_____ between October 10, 1999, and November 30, 1999. The Carrier denied payment on the basis that the services provided were not medically necessary. The Texas Workers’ Compensation Commission’s Medical Review Division (MRD) reviewed the Carrier’s action and denied reimbursement for the same reason. The Petitioner challenges that denial. This decision finds that reimbursement should be denied.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

There were no contested issues regarding notice of the hearing. Therefore, those matters are addressed in the Findings of Fact and Conclusions of Law without further discussion here.

The hearing convened July 16, 2002, at the Hearings Facility of the State Office of Administrative Hearings (SOAH) before SOAH Administrative Law Judge (ALJ) Kerry D. Sullivan. The Petitioner was represented by Mary Ann Spires, who appeared by telephone; the Carrier was represented by Jeff Boggess. After receipt of evidence, the record was closed the same day.

II. EVIDENCE AND BASIS FOR DECISION

The documentary record in this case consists of the 205-page MRD record and supplemental documentation provided by the Petitioner and the Carrier. Additionally, Dr. Spires testified on behalf of the Petitioner and Nick Tsourmas, M.D., testified on behalf of the Carrier.

A. The Evidence

The Claimant is a 44-year old male who sustained a compensable injury to his neck, back, and left shoulder on__________, while employed as a laborer in a machine shop. The Claimant’s initial treating physician, Edward Fritsch, D.C., read the results of an MRI performed shortly after the injury as indicating a “recent annular tear.” The Claimant was not considered a candidate for surgery and received conservative care including active physical therapy from two chiropractors before switching to the Petitioner, where he underwent a work conditioning program beginning September 20, 1999, followed by the work hardening program in dispute, which began on October 19, 1999 and ended on November 30, 1999.

The Claimant was off work when he underwent the work hardening program. His previous employment was classified as a heavy lifting job requiring him to be able to lift 100 pounds. At the conclusion of his work conditioning program, however, the Claimant had progressed only to the point that he could tolerate four hours of activity and comfortably lift 15 pounds. Because returning to heavy physical demand level employment seemed out of reach, the Petitioner set the goal of the work hardening program as an ability to return to employment in a medium physical demand setting. Dr. Spires observed that, at the conclusion of the work hardening program, the Claimant was capable of lifting 50 pounds comfortably and was able to work for 8 hours per day.

Based on these circumstances, Dr. Spires viewed the work hardening program as a success. She considered it reasonable and medically necessary because the Claimant had shown some progress during the work conditioning program and exhibited a strong desire to return to employment in an automotive machine shop. She also observed that, as of February 15, 2000, the Claimant had in fact returned to employment.

The Carrier disagreed and supported its contentions through the evidence of Dr. Nick Tsourmas, an orthopedic surgeon. Based on his review of the medical records, Dr. Tsourmas observed that the Claimant underwent seven weeks of prescribed active therapeutic exercises between April and July 1999. Dr. Tsourmas described these exercises as “very similar” to those administered in the subsequent work conditioning and work hardening programs. Dr. Tsourmas also noted that many of the results from the Functional Capacity Evaluation administered prior to the work conditioning and work hardening programs were invalid or equivocal and indicated the Claimant was exerting less than maximum effort. He testified that these results indicated the Claimant was not a good candidate for a work hardening program because such programs require extensive subjective participation by the patient.

B. Applicable Law

Pursuant to the Act, an employee who has sustained a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. The employee is specifically entitled to health care that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. Tex. Lab. Code Ann. § 408.021(a).

Work hardening is an individualized, highly structured, goal-oriented treatment program designed to maximize the ability of the person receiving the treatment to return to work. Work hardening programs are interdisciplinary, intended to address the functional, physical, behavioral, and vocational needs of the Claimant. The Commission has adopted rules governing work hardening programs. The rules, found in the Medical Fee Guideline (MFG) Medicine Ground Rules relate to, among other things, when work hardening is appropriate, how such programs are to be administered and billed, and what documentation is required of work hardening providers. MFG Medicine Ground Rule II. E.(1) provides that work hardening would be suitable if the :

1. person was likely to benefit from the program;
2. person whose current levels of functioning due to illness or injury interferes with the

person’s ability to carry out specific tasks required in the workplace;

person whose medical, psychological, or other conditions do not prohibit

participation in the program; and

person is capable of attaining specific employment upon completion of the program.

The Commission’s Spine Treatment Guideline provides that treatment must be provided in the least intensive setting and must be cost effective.

The Petitioner bears the burden of proof in this proceeding pursuant to 28 Tex. admin. code §§ 148.21(h) and (i).

C. Analysis

The ALJ concludes that the Petitioner failed in its burden of proving that the work hardening program was medically necessary. The ALJ accepts Dr. Tsourmas’s testimony that the month long work conditioning program on top of seven weeks of physical therapy was adequate to get the Claimant’s muscles back into shape to work. Additionally, the Claimant had no particular job to go back to when the program was undertaken. In fact, the goal of the program was to satisfy medium physical demand criteria whereas the job the Claimant held when he was injured required heavy physical demands. The lack of a specific job to focus the program upon, the extensive

physical exercise and conditioning programs the Claimant had already undergone, and the Claimant’s less than enthusiastic performance in his FCEs combine to persuade the ALJ that the work hardening program as a whole was not medically necessary.^[1]

III. FINDINGS OF FACT

1. On________, Claimant______ sustained a compensable injury to his neck, back, and left shoulder while employed as a laborer in a machine shop.
2. At the time of the Claimant’s compensable injury, Texas Mutual Insurance Fund (the Carrier) was the workers’ compensation insurer for Claimant’s employer.
3. The Claimant was not considered a candidate for surgery and received conservative care, including seven weeks of active physical therapy, between April and July 1999.
4. On September 13, 1999, the Claimant underwent a Functional Capacity Evaluation. Many of the results from the evaluation were invalid or equivocal and indicated the Claimant was exerting less than maximum effort.
5. Beginning September 20, 1999, the Claimant underwent a four week work conditioning program provided by the Petitioner.
6. Petitioner provided the Claimant with the work hardening program in dispute between October 10, 1999, and November 30, 1999.
7. The physical therapy and exercise aspects of the work hardening program were not shown to be medically necessary in view of the earlier seven weeks of physical therapy and four weeks of work conditioning.
8. The psychological components of the work hardening program could have been provided separately from the overall work hardening program.
9. The goal of the work hardening program was to enable the Claimant to satisfy the requirements of medium level physical demand employment.
10. At the time of his injury, the Claimant was employed as a laborer in a machine shop, a position classified as a heavy level physical demand job.
11. The Claimant did not have a medium level physical demand job lined up when he underwent the work hardening program.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act (the 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 § 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.
4. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§2001.051 and 2001.052.
5. The Petitioner has the burden of proof in this proceeding. 28 TAC §2☺ 148.21(h) and (i).
6. The disputed services were not shown to be medically necessary health care for Claimant.
7. Based on the foregoing, the Petitioner’s claim for reimbursement from the Carrier for the disputed work hardening program should be denied.

ORDER

Theclaim by Petitioner Suchowiecky Center is denied.

Signed this 10^th day of September, 2002.

KERRY D. SULLIVAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The Claimant underwent pre-and post program FCEs. In view of the Claimant’s reluctance to provide maximum effort during these evaluations- whether for fear of rein jury or due to pain or simple malingering-it appears that some psychological counseling was probably in order. But Dr. Tsourmas provided unrebutted testimony that any necessary counseling could have been provided separately from the comprehensive and expensive work hardening program the Claimant underwent.↑