Your FREE and easy resource for all things Texas workers' compensation
At a Glance:
September 23, 2002


September 23, 2002



Twin City Fire Insurance Company (Carrier) appealed the decision of the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) ordering Carrier to reimburse John P. Hodges, Jr., D.C. (Provider) $6,873.00 for work-hardening services that he provided to_____. (Claimant). The Administrative Law Judge (ALJ) finds that the services were not medically necessary and reasonable, and were not properly documented. Therefore, Carrier is not to reimburse Provider the disputed $6,873.00.


ALJ Sharon Cloninger convened the hearing on July 24, 2002, in the William Clements Building, 300 West 15th Street, Austin, Texas. Carrier was represented by Jane Stone. Provider appeared and represented himself. The Texas Workers’ Compensation Commission (the Commission) was represented by its staff attorney Jacqueline Harrison. The parties did not contest notice or jurisdiction, which are addressed in the Findings of Fact and Conclusions of Law below. After evidence was presented, the hearing concluded and the record closed that same day.


On________, Claimant, a 44-year-old pipe welder employed by______, sustained a compensable injury when he fell from a crate that was six feet above several steel oxygen cylinders, striking his low and mid-back and hitting the ground. As a result of the fall, he suffered mild to moderate disc desiccation at L5-S1, resulting in right-sided back pain (Petitioner’s Ex. 2, at 1). Claimant received treatment for his injury from Tim Hughes, D.C., who referred him to Baseline Diagnostics for an evaluation which was conducted on October 22, 1999.[1] Based on the test results,[2] Dr. Hughes’ referral, and Provider’s evaluation of Claimant, Claimant was enrolled in Provider’s work hardening program for six weeks from November 1, 1999, through December 10, 1999.

An evaluation conducted nearly six weeks after the work hardening program-on January 18, 2000Brevealed that frequent treatment and therapy would be necessary to restore strength and balance to Claimant’s lumbar region; Claimant’s leg lift and floor lift were below the acceptable levels of performance; and Claimant had limited movement accompanied with pain in the flexion and extension lumbar planes of motion (Petitioner’s Ex. 2, at 62).


An employee who sustains 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: (1) cures or relieves the effects naturally resulting from the injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment. Tex. Labor Code §408.021(a).

The Commission has adopted rules governing work hardening programs. The rules, found in the MFG, relate to, among other things, when work hardening is appropriate and what documentation is required of work hardening providers.

Work hardening is defined in the MFG at Medicine Ground Rule II.E. as:

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. Work Hardening provides a transition between management of the initial injury and return to work while addressing the issues of productivity, safety, physical tolerance, and work behaviors. Work Hardening programs use real or simulated work activities in a relevant work environment in conjunction with physical conditioning tasks. These activities are used to progressively improve the biomechanical, neuromuscular, cardiovascular/metabolic, behavioral, attitudinal, and vocational functioning of the person served.

Because Claimant’s compensable injury is to his back, the Commission’s Spine Treatment Guideline (STG) also applies. The STG, found at 28 Tex. Admin. Code (TAC) §134.1001, requires treatment of a work-related injury to be adequately documented pursuant to STG (e)(2)(A)(i), and further states that all health care providers treating an injured employee are responsible for substantiating in their documentation the level of service for which they request reimbursement. STG (e)(2)(O).


Carrier offered the 168-page certified record of the MRD proceeding, Claimant’s medical records, and the curriculum vitae of Carrier’s witness Samuel M. Bierner, M.D., MRM, all of which were admitted. Dr. Bierner testified. Provider offered no evidence.

A. Dr. Bierner’s testimony

Lack of medical necessity

Carrier’s witness Dr. Bierner testified that Claimant should not have been admitted to a work hardening program in the first place because his blood pressure was dangerously high, and the work hardening activities could have caused him to have a stroke or heart attack. Dr. Bierner said he would not allow anyone with blood pressure above 150/90 to exercise; Claimant’s blood pressure was as high as 228/125 after exercising.[3]

In addition to Claimant being medically unsuited for work hardening, Dr. Bierner said work hardening was not medically necessary for Claimant. The Baseline Diagnostics testing showed Claimant to be deficient only for standing and walking, with no indication as to how he was deficient in any specific job activities. The testing did not indicate how Claimant’s job activities would be addressed during work hardening sessions.

Dr. Bierner also found the work hardening to be medically unnecessary because the treatment did not significantly improve Claimant’s physical capacity or function. After six weeks of work hardening, Claimant could stand for five minutes longer, and could walk for 30 minutes longer.

In Dr. Bierner’s opinion, Claimant did not need all the components of work hardening, and could have been treated with physical therapy or work conditioning. In Claimant’s case, work hardening was not the least intensive setting or most cost effective method of treatment.

Lack of proper documentation

Dr. Bierner said Provider’s progress/treatment notes were below the standard of care for work hardening program documentation. While the record contains a printed schedule of activities to be performed by Claimant, the notes do not contain any quantitative information, such as the number of pounds Claimant lifted or carried, or how many times he repeated an exercise, to indicate if the schedule of activities was followed. The notes use phrases such as “Patient progressively improving” without specific measures to back up the statements. For instance, the progress/treatment notes for the November 10, 1999, work hardening session report that Claimant’s cardiovascular functioning is progressively improving, but Claimant’s blood pressure and heart rate are not reported for objective measurement. (Petitioner’s Ex. 2, at 48).

Dr. Bierner also found the work hardening mental health group session notes to be below the standard of care because, while the notes cover what the groups discussed in general, they do not address Claimant’s problems specifically.

B. Documentary evidence

On November 1, 1999, the day Claimant began the work hardening program, he could meet the sitting goal of 60 minutes; the kneeling goal of three minutes; the crawling goal of 20 feet; and the single leg balance goal of one minute.[4] He fell 15 minutes short of the 60-minute goal for standing. He walked for 30 minutes, failing to meet the 60-minute goal for walking (Petitioner’s Ex. 2, at 25).

Claimant’s job description questionnaire completed on the first day of work hardening treatment indicates he worked 10 or more hours per day, with 20-30 hours of overtime per week. He needed to be able to climb stairs and ladders 50 percent of the time, stand 90 percent of the time, and kneel 50 percent of the time. He needed to be able to lift boxes and tools, and to pull a 30-pound welding machine and hose. He needed to be able to carry the cord hose, which weighs 60 pounds. His job required him to sit only five percent of the time (Petitioner’s Ex. 2, at 29-31).

According to the progress/treatment notes, Claimant performed tasks that mimicked his job description on November 2-5, 1999; November 8, 1999; November 10, 1999; November 12, 1999; November 15-18, 1999; November 22-23, 1999; November 26, 1999; November 29-30,1999; December 2, 1999; and December 6-8, 1999 (Petitioner’s Ex. 2, at 32-56). However, the tasks performed and how he performed them were not described.

While Claimant’s daily schedule (Petitioner’s Ex. 1, at 118-135) does appear to contain exercises geared to improving Claimant’s overall strength and flexibility, and his ability to climb ladders, push, pull, and lift, nowhere in the record is there specific information regarding what part of the daily schedule Claimant performed. In other words, while Claimant’s daily schedule calls for him to ride the ergonomic bike for one mile twice a day, the record contains no information as to what portion of the task, if any, was completed.

During the work hardening treatment, Claimant participated in group mental health care sessions on November 5, 1999, November 23, 1999, and December 10, 1999, in which the group explored relaxation exercises to reduce stress, relaxation techniques to reduce stress and rebuild self-esteem, and how accepting pain can reduce stress and enhance coping skills. (Petitioner’s Ex. 2, at 35-36, 46, 56-57, and 59). The notes do not describe how Claimant’s specific mental health needs were addressed.

At the end of work hardening, Claimant’s baseline tolerance for standing had increased from 45 minutes to 50 minutes, still 10 minutes short of the goal. His baseline tolerance for walking had increased from 30 minutes to one hour, meeting the goal. His baseline tolerance for the single leg balance had increased from one minute to two minutes. Dr. Hodges noted that Claimant’s overall muscle strength and endurance had improved, but no measurable information was provided to support that conclusion (Petitioner’s Ex. 2, at 56 and 58). He concluded that while Claimant could return to work on light duty, Claimant would not be able to tolerate repetitive moderate to heavy lifting or overhead work for extended periods of time. He recommended that Claimant participate in a chronic pain management program (Petitioner’s Ex. 2, at 60).

Dorothy Ann Leong, M.D. conducted a peer review dated December 22, 1999 (Petitioner’s Ex. 1, at 49-53). She states the Baseline Diagnostics test performed on October 22, 1999, does not support the need for a work hardening program. She also said Provider’s work hardening program does not meet the Commission guidelines. Instead, the treatment activities that were rendered consisted of an active exercise/aerobic conditioning program. There is also no indication that Claimant posed any psychological issues that would require the necessity of an interdisciplinary program such as work hardening. In addition, there is no documentation in the records indicating that Claimant became so de-conditioned in three months as to require a work hardening program.

In response to Dr. Leong’s peer review, Provider pointed out that work hardening is not a diagnostic specific program, but rather one in which the entire body is conditioned (Petitioner’s Ex. 1, at 36-42). He states Claimant was de-conditioned, as shown by his loss of range of motion in the Baseline Diagnostics testing. The tests also showed loss of muscle strength, supporting the need for work hardening. Baseline testing indicated Claimant was limited in standing and walking, which are activities of daily living.

In his appeal of medical payment dispute (Petitioner’s Ex. 1, at 33-35), Provider states Claimant’s simulated work activities and physical conditioning are listed in the Circuit I and II charts, which are individualized; that Claimant received group mental health care sessions from someone who has extensive chronic pain therapy training; that Claimant participated in work hardening at least four hours per day and that the start and stop times are documented; and the Circuit I and II program sheets are provided to the patient on a clipboard so the patient can check-off tasks as they complete them, therefore, more than 50 percent of the time is self-monitored.[5]


The issues in this case are whether the work hardening program was medically necessary for Claimant, and whether the work hardening treatment was properly documented. The ALJ finds the work hardening was neither medically necessary nor properly documented, and that Provider should not be reimbursed by Carrier.

A. Medical necessity

Claimant should not have been admitted to the work hardening program in the first place, because he did not meet the admission requirement found at MFG II.E.1.c. Claimant was not medically suited for work hardening because his blood pressure was dangerously high, to the point that he could have suffered a heart attack or stroke while performing the work hardening activities.

Once Claimant was admitted to the work hardening program, the primary goal should have been to prepare him to return to work. However, the evaluation of Claimant’s condition prior to entering the work hardening program contains no information regarding what functions Claimant needed to improve in order to be able to return to work. Instead, the test results indicate he could not stand or walk for a full hour.

The lack of medical necessity was borne out by the results of Claimant’s evaluation after work hardening. At the end of the six-week work hardening treatment, Claimant could stand for five minutes longer and walk for 30 minutes longer; he could lift more weight in the leg lift, torso lift and floor lift. His pain level did not improve, and there was no functional capacity improvement noted, as far as his pushing, pulling, or carrying abilities. Indeed, the sitting, kneeling and crawling goals were met on the first day of the work hardening program (Petitioner’s Ex. 1, at 136). Claimant was released to light duty in January 2000, which could have happened without work hardening. Work hardening did not improve Claimant’s ability to return to work.

While Claimant’s strength did increase during the program, the same results could have been obtained through work conditioning or physical therapy, which cost less per hour than work hardening.

B. Documentation

The documentation does not indicate that the services provided addressed Claimant’s behavioral or vocational needs, or whether he had such needs that required work hardening services in the first place. Claimant’s specific job tasks were not identified to the extent that task specific improvement could be measured. Provider’s documentation does not specify which activities and exercises Claimant performed on which days, the duration of the activities, or Claimant’s ability to complete activities.

As for the mental health component of work hardening, there needs to be objective evidence of a psychological issue to be worked on, and there is none in the record. While the record indicates Claimant attended weekly group mental health care sessions, the notes related to those sessions are not specific as to the Claimant.

C. Conclusion

Carrier proved the work hardening services were not medically necessary, and that they were not properly documented. Therefore, Provider is not entitled to reimbursement of $6,873.00 from Carrier.


  1. _____ (Claimant) sustained a compensable work-related injury on_________, while employed with_________., whose workers’ compensation insurance carrier was Twin City Fire Insurance Company (Carrier).
  2. Tim Hughes, D.C., examined Claimant on_______, and diagnosed him to have mild to moderate disc desiccations at L5-S1.
  3. Dr. Hughes referred Claimant to Baseline Diagnostics for testing that was conducted on October 22, 1999. The resulting report indicated Claimant fell below an acceptable level of performance for the leg lift, torso lift, and floor lift, that he had restricted range of motion in the lumbar, hip, and ankle regions; and that he could not stand or walk for a full hour.
  4. Dr. Hughes referred Claimant to John P. Hodges, Jr., D.C. (Provider) for six weeks of work hardening, to enable Claimant to return to work.
  5. Claimant’s blood pressure was dangerously high at the inception, during, and at the conclusion of the work hardening program, and Claimant was not an appropriate candidate for work hardening.
  6. Claimant participated in Provider’s work hardening program from November 1, 1999, to December 10, 1999.
  7. Provider prepared a schedule of activities and exercises to be performed by Claimant during the work hardening program.
  8. No evidence was presented that detailed (a) Claimant’s performance of specific tasks; (b) duration of the tasks performed; (c) what, if any progress Claimant made; and (d) what, if any, changes needed to be made in treatment, considering Claimant’s progress.
  9. After receiving work-hardening services, Provider’s subjective report was that Claimant had increased his strength and endurance.
  10. Provider’s documentation indicates that after work hardening Claimant could stand for five minutes longer, perform the single leg balance for one minute longer, walk for 30 minutes longer, and lift an acceptable level of weight in the torso lift. He could also lift more weight in the leg and floor lifts, although not an acceptable level of weight. No other objective improvements were documented.
  11. Claimant’s improvements listed in Finding of Fact No. 10 could have resulted from less intensive and more cost effective treatment such as physical therapy or work conditioning, rather than work hardening.
  12. There is no evidence that Claimant returned to work as a pipe welder after completing the work hardening program.
  13. Provider sought reimbursement of $6,873.00 from Carrier for the work-hardening services rendered to Claimant, which included:
    1. 2,432.00for 23two-hour work-hardening sessions, billedunderCPT Code 97545-WH; and
    2. 4,441.60for additional hours of work hardening at the end of those same sessions, billed underCPT Code 97546-WH.
  14. Carrier refused to reimburse Provider for the above services on the grounds that the work hardening program was not properly documented and the work hardening was not medically necessary.
  15. On June 29, 2000, Provider filed a request for medical dispute resolution with the Texas Workers’ Compensation Commission’s Medical Review Division (MRD), asking for reimbursement of $6,873.60 for the above-described services.
  16. The MRD issued a decision on June 15, 2001, which was appealed and subsequently withdrawn by the MRD on July 17, 2001.
  17. In an amended decision dated August 2, 2001, the MRD ordered Carrier to reimburse Provider $6,873.00.
  18. On August 16, 2001, Carrier appealed the MRD’s decision to the State Office of Administrative Hearings (SOAH).
  19. On September 20, 2001, notice of the hearing in this case was mailed to the Carrier, the Provider, and the Commission’s APA Litigation Section. The hearing notice informed the parties of the matter to be determined, the right to appear and be represented, the time and place of the hearing, and the statues and rules involved.
  20. On July 24, 2002, SOAH Administrative Law Judge Sharon Cloninger held a hearing on the Carrier’s appeal in the William Clements Building, Fourth Floor, 300 West 15th Street, Austin, Texas. Representatives of the Carrier, Provider, and theCommission’s staff attended the hearing. The hearing concluded and the record closed on that same day.


  1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction to decide the issues presented in this case, 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 case, including the authority to issue a decision and order, pursuant to Tex. Labor Code Ann. §413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
  3. Carrier timely filed notice of appeal of the decision of TWCC’s Medical Review Division (MRD), as specified in 28 Tex. Admin. Code (TAC) § 148.3.
  4. Proper and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. § 2001.052 and 28 TAC § 148.4(b).
  5. As the party appealing the MRD decision, Carrier had the burden of proving the case by a preponderance of the evidence, pursuant to 28 TAC §148.21(h) and (i).
  6. Pursuant to Medicine Ground Rule II.E.1.c, Claimant should not have been admitted to the work hardening program, because of his extremely high blood pressure.
  7. Pursuant to the above Findings of Fact, Provider’s work hardening program did not enhance the ability of Claimant to return to or retain employment, as required under Tex. Labor Code § 408.021(a).
  8. The work hardening program was neither cost effective nor provided in the least intensive setting, as required by § 134.1001(e)(2)(A) of the Spine Treatment Guideline.
  9. Based on the above Findings of Fact and Conclusions of Law, the work-hardening services that the Provider rendered to the Claimant were not medically necessary and reasonable.
  10. Pursuant to the above Findings of Fact, Provider failed to meet the documentation requirements of MFG Medicine Ground Rule II.E.8 and § 134.1001(e)(2)(A)(i) and (O) of the Spine Treatment Guideline.
  11. Based on the above Findings of Fact and Conclusions of Law, Carrier’s appeal should be granted, and Provider should not be reimbursed $6,873.000.


Carrier had the burden of proof in this case. Carrier met its burden. IT IS, THEREFORE, ORDERED THAT Carrier is not to reimburse Provider $6,873.00.

Signed September 23rd, 2002.

Administrative Law Judge

  1. The parties disagree as to whether the testing constitutes a Functional Capacity Evaluation (FCE). Provider contends that it does; Carrier’s position is that it does not. The ALJ agrees with Carrier that the testing does not meet the requirements of an FCE as set out in the Commission’s Medical Fee Guideline (MFG) at Medicine Ground Rule I.E.2., because there is no evidence that a physical examination, neurological evaluation, or a complete set of functional abilities tests were conducted (Petitioner’s Ex. 2, at 3-24).
  2. The initial testing indicated Claimant needed frequent treatment and therapy to restore strength and dominance to the lumbar, hip, knee, and ankle regions; the physical capacity lower lifts indicated Claimant fell below an acceptable level of performance for the leg lift, torso lift, and floor lift; and range of motion tests revealed Claimant to have restricted movement in the lumbar, hip, knee, and ankle planes. (Petitioner’s Ex. 2, at 3-24).
  3. Claimant was taking medication for high blood pressure at the time he participated in the work hardening program (Petitioner’s Ex. 2, at 32). During the program, he had an appointment at University of Texas Medical Branch in Galveston regarding his blood pressure (Id. at 34, 37, and 42).
  4. The record contains two Progress/Treatment Notes for November 1, 1999. One states Claimant needs to do the single leg balance for one minute (Petitioner’s Ex. 2, at 25). The other states Claimant needs to do the single leg balance for 180 seconds (Petitioner’s Ex. 2, at 26). Both notes indicate he could balance for one minute on each leg.
  5. Claimant’s check-off sheets are not contained in the record.
End of Document