DECISION AND ORDER

The Petitioner in this case, Liberty Mutual Insurance Company (LMIC), was ordered by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC or the Commission) to reimburse Neuromuscular Institute of Texas (Neuromuscular) $5,376 for work hardening services performed for the workers’ compensation claimant. LMIC has already paid $1,536 of that amount. The Administrative Law Judge (ALJ) concludes LMIC should not be required to reimburse Neuromuscular the remaining $3,840.

I. Factual Background

The Claimant injured her right lower ankle and toe on_______, while working for________. Originally her injury was thought to be merely a severe sprain, which usually resolves after six to eight weeks. Her injury did not resolve, however, and was later diagnosed as including “Capsulitis, first metatarsal phalangeal joint, right foot,” and “Sesamoiditis versus possible fracture, right tibial sesamoid.”^[1] The Claimant underwent conservative treatment, including physical therapy and injections, then ultimately underwent work conditioning followed by work hardening.

The work hardening lasted from June 26, 2000, through September 11, 2000.

At the time these services were rendered, preauthorization was not required for the initial period of work hardening. Therefore, Neuromuscular did not request, and did not receive, preauthorization for the first several weeks of those services. It requested, and received, preauthorization for the final week, which lasted from September 5 through September 11, 2000. The Claimant showed improvement during the work hardening, but did not return to work until several months later.

LMIC initially denied reimbursement for all the work conditioning and work hardening services as medically unnecessary. Neuromuscular filed a Request for Dispute Resolution with the MRD. On June 29, 2001, the MRD dismissed the work conditioning claims without taking any action because of documentation problems. It found LMIC to be liable for all the work hardening claims, and ordered it to pay Neuromuscular $5,376 for those services. The MRD decision was confusing, however, because it also stated several of the work hardening dates of service were being dismissed because Neuromuscular had failed to provide sufficient information. LMIC characterized that discrepancy as a “mathematical error.” It argued that the services performed on those dates should not be reimbursed even if the work hardening were found to be medically necessary.

LMIC filed a request for a hearing before the State Office of Administrative Hearings (SOAH). ALJ Henry D. Card conducted that hearing on September 3, 2002, at SOAH’s offices in Austin, Texas. Representatives of LMIC and Neuromuscular participated in the hearing, which was adjourned the same day.

At the hearing, LMIC stated, and Neuromuscular agreed, that LMIC had paid $1,536 for the preauthorized work hardening services performed from September 5 through September 11, 2000. See Ex. 1, page 306. LMIC has also paid for the work conditioning services.

LMIC, the Appellant, has the burden of proof in this matter. 28 Tex. Admin. Code §148.21(h).

II. Analysis

“Work hardening” is

a highly structured, goal-oriented, individualized treatment program designed to maximize the ability of the persons served to return to work. Work Hardening programs are interdisciplinary in nature with a capability of addressing the functional, physical, behavioral, and vocational needs of the injured worker. . . .

TWCC 1996 Medical Fee Guideline, p. 37

The record shows the Claimant’s injury to have been more severe than the mere sprain claimed by LMIC. It also shows that Neuromuscular’s work hardening program was a well-documented, interdisciplinary program. However, the record also shows that the Claimant did not need the behavioral component that is an integral part of work hardening. The Claimant’s written progress notes do not identify any behavioral or psychological problems preventing her from returning to work. On a scale of 1-5, with 5 being the worst, her mental status was consistently assessed at a A1″ or “2,” with an occasional “3.” Although her doctors recommended work hardening, none of them addressed that issue in their recommendations or evaluations.

LMIC did preauthorize the final week of work hardening, and has paid for that week. Although those actions provide some evidence in support of the need for work hardening, they do not take the place of psychological evaluations or assessments from the Claimant’s care providers. If that psychological need had been present, it should have been mentioned in the Claimant’s medical records.

The ALJ concludes LMIC met its burden of proving the work hardening was not medically necessary. LMIC should not be required to reimburse Neuromuscular for the remaining dates of service.

Because the ALJ finds in LMIC’s favor, he does not address whether the MRD decision contained a mathematical error.

III. FINDINGS OF FACT

1. The Claimant injured her right lower ankle and toe on___________, while working for___________.
2. Originally the Claimant’s injury was thought to be merely a severe sprain, which usually resolves after six to eight weeks.
3. The Claimant’s injury did not resolve, however, and was later diagnosed as including “Capsulitis, first metatarsal phalangeal joint, right foot,” and “Sesamoiditis versus possible fracture, right tibial sesamoid.”
4. The Claimant underwent conservative treatment, including physical therapy and injections, then ultimately underwent work conditioning followed by work hardening.
5. The work hardening lasted from June 26, 2000, through September 11, 2000.
6. At the time these services were rendered, preauthorization was not required for the initial period of work hardening. Therefore, Neuromuscular did not request, and did not receive, preauthorization for the first several weeks of those services.
7. Neuromuscular requested, and received, preauthorization for the final week of work hardening, which lasted from September 5 through September 11, 2000.
8. The Claimant showed improvement during the work hardening, but did not return to work until several months later.
9. LMIC initially denied reimbursement for all the work conditioning and work hardening services as medically unnecessary.
10. Neuromuscular filed a Request for Dispute Resolution with the MRD.
11. On June 29, 2001, the MRD dismissed the work conditioning claims without taking any action because of documentation problems. It found LMIC to be liable for all the work hardening claims, and ordered it to pay Neuromuscular $5,376 for those services. The MRD decision was confusing, however, because it also stated several of the work hardening dates of service were being dismissed because Neuromuscular had failed to provide sufficient information.
12. LMIC filed a request for a hearing before SOAH.
13. Notice of the hearing was sent to all parties August 13, 2001.
14. 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.
15. ALJ Henry D. Card conducted the hearing on September 3, 2002, at SOAH’s offices in Austin, Texas. Representatives of LMIC and Neuromuscular participated in the hearing, which was adjourned the same day.
16. LMIC has paid $1,536 to Neuromuscular for the preauthorized work hardening services performed from September 5 through September 11, 2000.
17. LMIC has also paid for the work conditioning services.
18. Although the Claimant’s doctors recommended work hardening, none of them addressed the issue of whether she needed the psychological component of that treatment.
19. The Claimant’s written progress notes do not identify any behavioral or psychological problems preventing her from returning to work.
20. On a scale of 1-5, with 5 being the worst, the Claimant’s mental status was consistently assessed in the progress notes at a “1″ or “2,” with an occasional “3.”
21. Although the Claimant’s doctors recommended work hardening, none of them addressed that issue in their recommendations or evaluations.
22. The Claimant did not need the behavioral component that is an integral part of work hardening.

IV. Conclusions of Law

1. 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.
2. 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.
3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §2001.052.
4. LMIC has the burden of proof in this matter. 28 Tex. Admin. Code §148.21(h).
5. LMIC met its burden of proving the work hardening was not medically necessary.
6. LMIC should not be required to reimburse Neuromuscular for work hardening for the remaining dates of service.

ORDER

IT IS, THEREFORE, ORDERED that Liberty Mutual Insurance Company shall not be required to reimburse Neuromuscular Institute of Texas for work hardening services provided the Claimant from June 26, 2000, through August 18, 2000.

Signed this 17^th day of December, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

Henry D. Card
Administrative Law Judge

1. Ex. 1, page 185.↑