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August 28, 2002


August 28, 2002


This case is an appeal by the Zenith Insurance Company (“Petitioner”) from a decision of the Texas Workers’ Compensation Commission’s Medical Review Division (“MRD”) in a medical fee dispute. The MRD countermanded, in part, Petitioner’s denial of reimbursement for a program of work conditioning, work hardening, and related services, which Respondent James A. Lee, LPT, had provided in the treatment of a claimant suffering from a compensable work-related 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 (“MFG”), 28 TEX. ADMINISTRATIVE CODE (“TAC”) § 134.201, or relevant criteria set forth in the Commission’s Upper Extremities Treatment Guideline (“UETG”), 28 TAC §134.1002.

This decision reverses that of the MRD, finding that Petitioner should not be required to reimburse Respondent $9,316.80 for the services at issue.


The Commission has jurisdiction over this matter pursuant to § 413.031 of the Act. 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. No party challenged jurisdiction or venue.


The hearing in this docket was convened on July 2, 2002, at SOAH facilities in the William P. Clements Building, 300 W. 15th St., Austin, Texas. Administrative Law Judge (“ALJ”) Mike Rogan presided. Petitioner was represented by James Loughlin, attorney. Respondent represented himself, appearing by telephone.[1] After presentation of evidence and argument, the parties were accorded an opportunity to submit written closing arguments. The record closed on July 12, 2002.

The evidence presented revealed that the claimant suffered a compensable injury to her right thumb on_________, tearing a ligament when she fell and landed on her hand. A week later, she underwent surgery to repair the ligament. She then participated in ten weeks of physical therapy, ending September 7, 1999, and an additional week of therapy at the end of October, 1999. Continuing to experience pain and incapacity in the injured thumb, the claimant changed treating doctors at the end of 1999.

The claimant’s new doctor referred her to work conditioning and work hardening programs administered by Respondent. Respondent billed $10,597.80 for medical services provided from February 11 through April 25, 2000. Petitioner, the insurance carrier for the claimant’s employer, denied payment for all but $500.00 of this amount. Almost all of the disputed individually billed service items were denied on the basis that they were medically unnecessary. In a filing dated January 18, 2001, Respondent sought a dispute resolution review before the MRD.

The MRD issued a decision on July 26, 2001, concluding that available medical records showed Respondent entitled to $9,316.80 in reimbursement. Petitioner effected a timely appeal from the MRD’s decision.



Petitioner made two principal arguments, as follows:

  1. Work conditioning and work hardening programs were medically unnecessary in this particular case, according to physicians’ evaluations.
  2. The record does not demonstrate that Petitioner’s work conditioning and work hardening program satisfied the criteria specified in the MFG or UETG. In particular, Petitioner asserted, the program appeared to be a one-dimensional physical workout regime, rather than “interdisciplinary”; no specific treatment plan for the claimant was presented; treatment was not specific to the claimant’s injury; treatment was not provided in the least intensive and most cost-effective setting possible; the effect of treatment was not objectively measured to demonstrate consistent functional gains; and no discharge summary was prepared at the end of the program.

Dr. Samuel M. Bierner, a board-certified practitioner in physical medicine and rehabilitation who has served as the director of a work hardening program, testified for Petitioner. He stated that work conditioning or work hardening programs are appropriate when a large discrepancy exists between a patient’s current capacities and the demands of that patient’s job duties. Typically, such circumstances do not occur in cases involving injuries to such extremities as the hands or thumbs. In this case, particularly (where the programs heavily emphasized leg, back, and cardiovascular exercises), Dr. Bierner concluded that the treatment at issue was not specific to the claimant’s injury and failed to provide a necessary focus upon the claimant’s real “functional deficits.” Indeed, noted Dr. Bierner, the testing used to define the scope of treatment provided by Respondent omitted crucial measurements of the injured thumb’s condition-including range-of-motion testing and testing of pinch strength between the thumb and forefinger.

Dr. Bierner further asserted that the records show no psychological component of the claimant’s condition that would have required special attention in an integrated work hardening program. Work hardening’s characteristic “interdisciplinary nature” stems, in Dr. Bierner’s view, from the counseling and group therapy that is legitimately required as part of such a program to address psychological problems.

In closing argument, Petitioner also noted that the muscles of the thumb are very small and isolated. In that context, no evidence suggests that the claimant’s thumb injury necessitated any program activities to address the claimant’s general aerobic capacity or such program exercises as leg presses, leg curls, leg extensions, walking, standing, unsupported sitting, kneeling, biking, back stabilization, and use of a treadmill. In support of this position, Petitioner cited a peer review conducted by Dr. Donald McPhaul, who stated the following:

[The claimant was], according to this record, at maximum medical improvement on December 13, 1999. There is no indication in this record that the thumb injury affected posture, endurance, or overall body strength, and I see no indication for a work hardening program based on the information in this record.

Petitioner particularly emphasized the asserted lack in this case of an individualized plan for the claimant’s treatment, as required by the MFG Medicine Ground Rules. Dr. Bierner dismissed Respondent’s attempt to argue that functional capacity evaluations (“FCEs”) constituted such a treatment plan-i.e., that the various activities listed for testing on the FCE form corresponded precisely to the activities needed for an effective conditioning and hardening program in this case. Respondent conceded that these measured tasks are simply part of the pre-printed FCE form, modified in this case only by adding 20 minutes of “thera-putty” hand exercises to the ultimately adopted work-conditioning and work-hardening regimens.

The program’s lack of specific focus was further illustrated, according to Petitioner, by the fact that the daily progress notes for the work conditioning program from February 16 through March 3, 2000, purportedly chart pain in the patient’s lower back-although nothing in the medical record for the case indicates that the claimant had suffered back problems as an element of her compensable injury. The notes for these dates make no mention of pain related to the hand or thumb. On March 8, however, the progress notes begin to chart the claimant’s wrist and hand pain and drop further mention of back pain. Petitioner asserts that the treatment of the claimant in Respondent’s programs was so generically undifferentiated that staff members making the progress notes simply assumed for some time that the claimant suffered from a back injury.

Finally, Petitioner asserted that examination of the claimant at the end of the program showed no improvement in her injured thumb. Notes prepared by Dr. Douglas Burke at that time indicated that “right hand symptomatology” and “right hand objective findings,” as well as “right thumb symptoms,” remained “unchanged.”


In closing argument, Respondent noted that the claimant’s job (cafeteria work) was rated at a work demand level of “medium,” according to the Dictionary of Occupational Titles. However, her initial FCE showed her capable of performing at only a “light” demand level. By the end of the work hardening program, her final FCE revealed an overall capability at the “medium” level, thus indicating that she had been returned to 100 percent of her former work capacity.

Citing the MFG’s definition of an FCE as an evaluation of the “whole person,” not merely of an injured body part, Respondent contended that a crucial objective of any work conditioning or hardening program is to bring the injured part into functional coordination with the body as a whole. To this end, such programs require some sort of general exercise program. Respondent also testified that most of the weight-lifting exercises included in the claimant’s programs involve hand control, thus promoting to some degree coordination and strength in the thumb.

With respect to the sufficiency of the treatment plan in this case, Respondent noted that no Commission authorities dictate the required formulation and structure of such a plan. Accordingly, the claimant’s FCEs and the physical therapy evaluations appended to them may be considered a treatment plan, with weekly progress notes for the patient establishing a new plan for each following week of care. Respondent also referred to “flow sheets” detailing the claimant’s weekly activities in the conditioning and hardening programs. Upon cross-examination, Respondent agreed that these flow sheets do not reflect any work simulation activities.

Countering assertions of other deficiencies in the contested programs, Respondent contended that the work hardening program definitely was interdisciplinary, entailing five half-hour group counseling sessions with a social worker. In addition, Respondent stated that therapists intentionally charted the claimant’s lower back pain early in the work conditioning program, because general deconditioning had caused the claimant to suffer such discomfort upon commencing intense exercise.

The certified record compiled by the Commission-i.e., the MRD’s Findings and Decision, with accompanying documents, totaling 844 pages-was admitted into evidence as Exhibit 1.


Petitioner bears the burden of proving those deficiencies that it contends should invalidate the MRD’s decision in this case. While Petitioner’s wide-ranging critique of the treatment provided by Respondent raises doubts about many aspects those services, the balance of the evidence in many instances is too close for a clear determination that Petitioner has satisfied its burden of proof.

On the other hand, the ALJ believes that the record establishes at least two significant deficiencies, as noted below.

Lack of specific treatment plan.MFG Medicine Ground Rules (II)(E)(6) requires, for a work hardening program, “An individualized plan of treatment . . . supervised by a licensed physical or occupational therapist and/or doctor. . .” Ground Rules (II)(D)(5) sets essentially the same requirement for a work conditioning program. The ALJ is unable to find that Respondent prepared anything resembling such individualized plans in this case. By definition, a plan is prospective, while an examination and assessment, such as an FCE, is immediately retrospective. Respondent’s admitted reliance upon the FCE and appended therapy evaluations as “plans” (continually modified by weekly progress reports) seems clearly to indicate a reflexive and ad hoc approach to the claimant’s treatment, rather than any premeditated and systematic application of programs.

Inadequacy of work simulation. MFG Medicine Ground Rules (II)(E) states, “Work hardening programs use real or simulated work activities in a relevant work environment. . .” Similarly, Ground Rules (II)(D) states that work conditioning is a program “using real or simulated work activities in conjunction with conditioning tasks.” In the ALJ’s view, therefore, the work simulation in a conditioning or hardening program must be sufficient to recreate at least some of the most crucial, salient aspects of the claimant’s work, such as the fundamental physical motions involved, the duration of exertion, and the relevant dimensions of the workplace. However, nothing in the record to which the ALJ’s attention has been directed indicates that the programs at issue in this case included even the most superficial simulations of the claimant’s actual work.


The ALJ finds that, under the record provided in this case, reimbursement of Respondent for work conditioning and hardening services provided to the claimant is inappropriate and inconsistent with the requirements of the MFG. Accordingly, in contravention of the MRD’s initial determination in this matter, Petitioner should not be required to reimburse Respondent $9,316.80 for such services.


  1. On___________, claimant suffered a torn ligament in the right thumb, which was a compensable injury under the Texas Worker’s Compensation Act (“he Act”), TEX. LABOR CODE ANN. §401.001et seq. Subsequent to the injury, claimant experienced chronic pain in the thumb and upper extremity.
  2. After undergoing surgery and 11 weeks of physical therapy for her injury, the claimant changed treating doctors at the end of 1999. The claimant’s new doctor referred her to work conditioning and work hardening programs administered by James A. Lee (“Respondent”).
  3. Respondent sought reimbursement of $10, 597.80 for the services noted in Finding of Fact No. 2 from the Zenith Insurance Company (“Petitioner”), the carrier for the claimant’s employer.
  4. Petitioner denied all but $500.00 of the requested reimbursement.
  5. By filing dated January 18, 2001, Respondent 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 countermanded Petitioner’s denial of reimbursement, in part, approving reimbursement of $9,316.80 in a decision dated July 26, 2001, in dispute resolution docket No. M5-01-1688-01.
  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 to the parties at their addresses on September 10, 2001.
  9. A hearing in this matter was convened on July 2, 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 conditioning program at issue in this case were February 14 through February 18, 2000.
  11. The dates of the work hardening program at issue in this case were March 13 through April 25, 2000.
  12. The work conditioning and work hardening programs in which the claimant participated were not based upon any individualized plan of treatment and did not include real or simulated work activities.


  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. §13.031.
  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 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) did not meet criteria for work conditioning and work hardening programs contained in the Commission’s Medical Fee Guideline, 28 TAC §34.201, Medicine Ground Rules (II)(D) and (E).
  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, 2001, are reversed; reimbursement of $9,316.80 for the services noted in Conclusion of Law No. 6, to be paid for by the Zenith Insurance Company, should be denied.


IT IS THEREFORE, ORDERED that the order of the Medical Review Division of the Texas Workers’ Compensation Commission, issued in this matter on July 26, 2001, be reversed, and that Respondent James A. Lee, LPT, be denied the reimbursement of $9,316.80 from Petitioner Zenith Insurance Company for work conditioning and work hardening services provided to a claimant under the Texas Workers’ Compensation Act.

Signed this 28th day of August, 2002.

Administrative Law Judge

  1. The staff of the Commission was initially designated as a Respondent in the proceeding but formally elected not to participate, although it filed a “Statement of Matters Asserted” that recommended upholding the MRD’s decision.
End of Document