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September 30, 2002


September 30, 2002



Rafael Loya, D.C. (Petitioner) appealed from the Findings and Decision of the Texas Workers’ Compensation Commission (Commission) Medical Review Division (MRD), denying his claim for reimbursement of work hardening treatments provided to Claimant, ____ Hartford Underwriters Insurance Company (Carrier or Respondent) denied the claims based on its assertion that the work hardening was not medically necessary, and was not interdisciplinary in nature. In addition, Carrier objected to the consideration of any claims not timely appealed. Petitioner contends the MRD’s decision should be reversed because the services were medically necessary.

Administrative Law Judge (ALJ) Wendy K. L. Harvel convened a hearing on July 30, 2002, and the record closed on September 23, 2002, following the submission of written closing arguments, and clarifications of the record. Steven Tipton, attorney, appeared on behalf of the Respondent. Peter Rogers, attorney, appeared on behalf of the Petitioner. The Commission did not appear at the hearing. Based on the evidence presented, the ALJ limited consideration to those dates timely appealed, and finds that the work hardening was medically necessary, and Petitioner should be reimbursed $4,915.20.


There were no contested issues of notice in this case. Therefore, those issues are addressed in the findings of fact and conclusions of law below, without further discussion here.

At the beginning of the hearing on the merits, Respondent objected to the appeal of certain dates of service because Petitioner did not timely file a request for dispute resolution at the Medical Review Division. Petitioner filed a request for dispute resolution on April 2, 2001. A request for dispute resolution shall be submitted no later than one calendar year after the dates of service in dispute.[1] Based on the applicable rules, the ALJ sustained Respondent’s objection. Therefore, the only dates of service included in this appeal are those considered by the Medical Review Division (MRD), April 4, 2000, through April 20, 2000.


A. Introduction

Claimant,_____ sustained a compensable injury to his lumbar spine, left shoulder, and left knee on________, during an automobile accident, in the course of his employment as a painter. Following the accident,_____ received a course of chiropractic treatment, as well as injections in his neck and back, which resulted in temporary relief. The treatments did not, however, enable Claimant to return to work. He was subsequently placed into a work hardening program.

On March 7, 2000, _____ underwent a Functional Capacity Evaluation (FCE), which showed that he did not meet the demands of his regular occupation as a painter. Based on the results of the FCE, Claimant was placed in Petitioner’s work hardening program. 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 Claimant’s functional, physical, behavioral, and vocational needs. The Commission has adopted rules governing work hardening programs. The rules, found in the Medical Fee Guideline (MFG) 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.[2] Claimant participated in the work hardening program from March 9, 2000, through April 20, 2000. Because Petitioner did not file his request until April 2, 2001, only those dates of service after April 2, 2000, are included in this decision.


The MRD found that Claimant did not improve as a result of the work hardening, and further found that because of the Claimant’s high level of pain, he may not have been a proper candidate for work hardening. Therefore, the MRD denied reimbursement based on medical necessity. At the hearing, in addition to the issues of medical necessity and the lack of an interdisciplinary treatment program, Respondent raised for the first time, the issue of Petitioner’s compliance with other aspects of the Medical Fee Guideline.

Section 408.027(d) of the Texas Workers’ Compensation Act provides:

If an insurance carrier disputes the amount of payment or the health care provider’s entitlement to payment, the insurance carrier shall send to the commission, the health care provider, and the injured employee a report that sufficiently explains the reasons for the reduction or denial of payment for health care service provided to the employee. The insurance carrier is entitled to a hearing as provided by Section 413.031(d).

The Carrier must explain the reasons for denial of payment on Form TWCC-62, Notice of Medical Payment Dispute, or its equivalent. 28 Tex. Admin. Code § 133.304(a). Section 413.031 of the Act provides for medical dispute resolution at the Commission. Review at the MRD consists of a paper review of documents submitted by the disputing parties. The documents submitted define the scope of the dispute at the MRD.

It follows, therefore, that a carrier may not raise, for the first time, in the SOAH proceeding, a basis for denying payment that it did not present to the provider or to the MRD. Respondent provided two reasons for denying reimbursement for Claimant’s work hardening program: Code UB payment withheld as retrospective utilization review indicates the treatment was not medically necessary; Code N submitted documentation indicates that services rendered were primarily single disciplinary, emphasizing conditioning tasks normally associated with work conditioning. The only issues in this case are, therefore, whether the work hardening provided by Petitioner was medically necessary, and whether it was interdisciplinary.

C. Medical Necessity

Employees have a right to necessary health treatment:

(a)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 compensable injury;
  2. promotes recovery; or
  3. enhances the ability of the employee to return to or retain employment.[3]

Health care includes "all reasonable and necessary medical . . . services."[4] Thus, if a treatment cures or relieves the effects naturally resulting from the injury, promotes recovery, or enhances the ability of the employee to return to employment, the Claimant is entitled to the treatment, and it is medically necessary.

In this case, the treating doctor, the carrier-required medical examination doctor, and the designated doctor all recommended completion of the work hardening program. Dr. Kalisky, the peer review doctor, testified that the work hardening program was not medically necessary, and that the Claimant was not an appropriate candidate for work hardening because he may have had chronic pain. However, Dr. Kalisky, Carrier’s expert, never evaluated the Claimant, and appears to have ignored portions of the record.

The certified record demonstrates that the Claimant improved with work hardening. At the beginning of the program, he was in poor physical condition.[5] During the course of the program, he increased the amount of weight he could lift, as well as his cardio-vascular capacity.[6] When he was discharged from the program, he had progressed and improved.[7] Petitioner testified the Claimant could function at a level that would allow him to work in a painting job following completion of the program. Before commencing the program, Claimant had been unable to function at a level that would have permitted him to return to work as a painter.

Because the Claimant progressed throughout the program, and was able to return to his usual employment, the ALJ finds that the work hardening program was medically necessary.

D. Interdisciplinary Nature

Work hardening is an interdisciplinary approach to treatment. There must be functional, behavioral, physical, and vocational aspects to the program.[8] In this case, all of those aspects were contained in the program. Claimant received counseling to address behavioral issues.[9] Petitioner testified Claimant received treatment particularly designed to enhance his return to work at his chosen profession as a painter. This included, for example, exercises designed to improve the amount of weight he could carry, and range of motion exercises. He also received work simulation training.[10] Thus, the services provided were interdisciplinary, and not single-disciplinary. Therefore, Petitioner is entitled to reimbursement in the amount of $4,915.20.


  1. On_________, the Claimant suffered a compensable injury to his lower back and left hip.
  2. The Claimant’s injury is covered by worker’s compensation insurance written for the Claimant’s employer by Hartford Underwriters Insurance Company (Respondent or Carrier).
  3. Between March 9, 2000, and April 20, 2000, Rafael Loya, D.C. (Petitioner) provided work hardening services to the Claimant for his injury.
  4. Claimant’s medical condition improved as a result of the work hardening program, and enhanced his ability to return to work.
  5. The work hardening program included behavioral, functional, vocational, and physical elements.
  6. Respondent declined to pay for the work hardening for lack of medical necessity and for failing to provide an interdisciplinary approach.
  7. Petitioner requested dispute resolution by the Texas Workers’ Compensation Commission’s Medical Review Division (the MRD) on April 2, 2001.
  8. The MRD issued its findings and decision on August 6, 2001, determining that the services were medically unnecessary.
  9. On August 27, 2001, the Petitioner appealed the findings and decision of the MRD.
  10. The Texas Workers’ Compensation Commission (Commission) issued the notice of the hearing on September 25, 2001.
  11. Administrative Law Judge Wendy K. L. Harvel convened the hearing on the disputed issues on July 30, 2002, and the record closed on September 23, 2002.


  1. 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 Tex. Labor Code §413.031 and Tex. Gov’t Code ch. 2003.
  2. The Notice of Hearing issued by the Commission conformed to the requirements of Tex. Gov’t Code §2001.052 in that it 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 section of the statutes and rules involved; and a short plain statement of the matters asserted.
  3. Petitioner has the burden of proving by a preponderance of the evidence that it should prevail in this matter. 28 Tex. Admin Code § 148.21(h).
  4. The dates of service properly appealed in this case are April 4, 2000, through April 20, 2000, pursuant to 28 Tex. Admin. Code §133.305(a) (2001).
  5. The work hardening was medically necessary. Tex. Lab. Code Ann. §§408.021and401.011.
  6. The work hardening was interdisciplinary, as required by the Medical Fee Guideline Medicine Ground Rule II. E. 28 Tex. Admin. Code § 134.201.
  7. The Petitioner is entitled to reimbursement in the amount of $4,915.20.


IT IS, THEREFORE, ORDERED, that Rafael Loya, D.C. shall recover from Hartford Underwriters Insurance Company the amount of $4,915.20.

Issued September 30th, 2002.


Administrative Law Judge

  1. 28 Tex. Admin. Code §133.305(a) (2001). The code has subsequently been revised, but the requirement to request dispute resolution within one year is still contained within the code. 28 Tex. Admin. Code §133.307(d)(1).
  2. See Medical Fee Guideline Medicine Ground Rule II. E., and 28 Tex. Admin. Code § 134.201.
  3. Tex. Lab. Code §408.021(a).
  4. Tex. Lab. Code §401.011(19).
  5. Ex. 1 at 198.
  6. Ex. 1 at 208, 215, 227, 228.
  7. Ex. 1 at 228.
  8. See Medical Fee Guideline Medicine Ground Rule II. E., and 28 Tex. Admin. Code § 134.201.
  9. E.g. Ex. 1 at 195, 197, 204.
  10. E.g. Ex. 1 at 207.
End of Document