DECISION AND ORDER
Rafael Loya, D.C., (Petitioner) appealed the findings and decision of the Texas Workers’ Compensation Commission’s Medical Review Division (MRD), which upheld the Insurance Company of the State of Pennsylvania’s (Respondent) denial of reimbursement for a work hardening program (WHP) provided a workers’ compensation claimant (Claimant). The basis for Respondent’s denial and the MRD decision was that the WHP was not medically necessary healthcare. This decision and order finds the WHP was not reasonable or medically necessary healthcare for Claimant.
I. Notice, Jurisdiction, and Procedural History
There were no contested issues of notice or jurisdiction. Therefore, those matters are set forth only in the Findings of Fact and Conclusions of Law without further discussion.
On February 13, 2003, the hearing in this matter convened at the State Office Of Administrative Hearings (SOAH), 300 W. 15th Street, 4th Floor, Austin, Texas, before SOAH Administrative Law Judge (ALJ) Ann Landeros. Attorney Peter Rogers appeared for Petitioner. Respondent was represented by attorney Steven Tipton. The Commission chose not to participate in the hearing. The record closed February 28, 2003, after receipt of additional documents and written arguments.
Claimant sustained a compensable injury in ____to his head and cervical spine. On the date of the injury, Respondent was the workers’ compensation insurer for Claimant’s employer. Claimant saw Petitioner as his treating physician. Claimant worked at a heavy machinery manufacturing plant in a job that required lifting heavy objects occasionally.
Petitioner treated Claimant with ultrasound, massage, hot packs, and chiropractic manipulations. Despite conservative care, including three epidural steroid injections, Claimant could not return to work three months post-injury due to neck pain. An MRI showed a disc bulge in Claimant’s cervical neck, but no impingement on the nerve. Petitioner believed the cervical disc bulge generated Claimant’s neck pain.
Based on a functional capacity evaluation (FCE), in March 2001, Petitioner enrolled Claimant in a WHP run by Petitioner. Claimant completed the WHP in June 2001, but Respondent denied reimbursement for the program, asserting that Claimant failed to meet the criteria for entrance into a WHP. Petitioner timely appealed the denial to the MRD.
B. Legal Standards
Petitioner has the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i); 1 TAC 155.41. 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). Health care includes all reasonable and necessary medical services including a medical appliance or supply. TEX. LAB. CODE ANN. ‘401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. § 401.011(31).
During the period relevant to this appeal, work hardening was defined in the Commission’s rule at 28 TEX. ADMIN. CODE § 134.1001(g)(69) and the Commission’s Medicine Ground Rule II.E. as an interdisciplinary program tailored to improve the worker’s functional, physical, behavioral, and vocational needs.
To be a candidate for work hardening, Medicine Ground rule II.E.1. required that the participant be likely to benefit from the program; not be hindered from participation by medical, psychological or other conditions; and have an illness or injury that interferes with performance of identifiable job tasks. 28 TAC §134.201 (repealed effective January 1, 2002).
The MRD agreed with Respondent’s peer reviewers that the medical evidence did not support the need for a work hardening program because there was insufficient documentation of (1) prior physical therapy; (2) a consistent effort on the functional capacity evaluation; and (3) no objective diagnostic findings correlating to Claimant’s subjective pain reports.
According to the Commission’s Spine Treatment Guideline (STG), at the time he was referred to the work hardening program, Claimant was at the secondary level of care for which work hardening is an approved treatment. 28 TAC § 134.1001 (g)(7)(B)(repealed effective January 1, 2002). Respondent argued that prior to being referred to the WHP, Claimant should have undergone a course of physical therapy because the Commission’s Spine Treatment Guideline (STG) required the least restrictive, most economical treatment be tried before referral to a more restrictive and expensive treatment approach such as a WHP.
Petitioner argued that the MRD record did not have the complete medical records that showed Claimant underwent considerable physical therapy prior to being referred to the WHP. For reasons that were not clear, the back side of Petitioner’s patient treatment notes were not included in the MRD record. Petitioner was allowed to supplement the record with those documents, which showed that on treatment dates from March 3 through April 3, 2000, Claimant did 30 repetitions for each of eight neck and shoulder exercises, along with spending 10-15 minutes on the treadmill. The rehabilitation exercises consisted of flexion, extension, and tilting of the neck; shoulder shrugs and press; scapular pinch; and lateral and front raises (presumably of the arms).
Physical therapy was defined in the Commission’s Medicine Ground Rules, in effect at the time of Claimant’s treatment, as any combination of four modalities, procedures, and physical medicine activities billed under specific CPT codes. 28 TAC § 128.201 (repealed effective January 1, 2002). Petitioner’s documents described the activities as “rehabilitation exercises” and did not establish the exercises were billed under the required CPT codes. The exercises lacked any description to show they fell in any of the recognized physical therapy categories. For instance, there was no indication that the exercises involved one-on-one patient contact with the provider, which is required for therapeutic activities. The documentation was inadequate to show that Claimant had appropriate physical therapy before he was referred to the WHP.
The Commission’s Medical Fee Guideline required that treatments and services be economical and delivered in the least intensive setting. 28 TAC § 134.1001(g)(5) (repealed effective January 1, 2002). Petitioner failed to show that Claimant received the most economical and least intensive services, in the form of appropriate physical therapy, prior to be referred to the work hardening program.
Functional Capacity Evaluation
Petitioner cited the Claimant’s March 23, 2000, FCE as establishing his need for the WHP. Respondent noted that the FCE examiner stated Claimant was able to complete all activities but showed inconsistent efforts. The evaluator stated “Regarding the dynamic lifting study, the examinee demonstrated low biomechancial tolerance for sustained activity.” Yet the examiner found Claimant able to perform at a medium activity level. (Exh. 1, p. 108-110). In his referral letter for the WHP, Petitioner stated Claimant “was not able to complete all test activities, he demonstrated an inconsistent effort in this functional capacity evaluation due to high levels of pain and discomfort in his cervical region.” (Exh. 1, p.107). Petitioner did not explain why he attributed Claimant’s inconsistent effort to pain. There was no such notation in the FCE by the examiner.
Respondent’s medical reviewer, orthopedist Dr. James Hood, found it especially noteworthy that Claimant’s efforts during the FCE Claimant’s post-exertion heart rate never even approached the target levels. Dr. Hood characterizes Claimant’s efforts as “very poor.” (Exh. 1, p. 216). Without documentation of a consistent effort, Respondent’s medical reviewers stated the FCE had little value and could not be used to evaluate Claimant’s suitability for a WHP.
According to the examiner, despite a “low biomechanical tolerance for sustained activity,” Claimant was functioning at a medium level of ability. Without a consistent effort from Claimant, it is hard to know why the examiner rated Claimant at the medium level. It was Petitioner, not the FCE examiner, who recommended Claimant enroll in the WHP. The examiner simply concluded that Claimant “cannot function independently in the competitive labor market with[out] accommodation.” (Exh. 1, p. 109).
The ALJ agrees with Dr. Hood’s assessment that to assess an individual’s work ability in the face of an invalid effort on a functional capacity evaluation is pointless. (Exh. 1, p. 216). As shown by his heart rate during the FCE tasks, Claimant’s efforts were below normal. If an inconsistent effort showed an ability to work at a medium level, a more consistent effort might have enabled Claimant to reach the desired “heavy” activity level. Claimant’s inconsistent effort on the FCE rendered that testing an insufficient basis for the WHP referral.
If Claimant’s pain was too severe to allow him to give a consistent effort on the FCE tasks, it is unclear how he could be expected to tolerate hours of similar activity (lifting, etc.) required in a WHP.
The inconsistent FCE results showed Claimant did not meet the WHP entrance criteria of Medicine Ground Rule II.E.1, 28 TAC § 134.201 (repealed effective January 1, 2002), which required that the patient be able to participate in and a benefit from the program. Even if Petitioner was correct and Claimant’s pain rendered him unable to perform consistently on the FCE tasks, that debilitating pain could have led only to one conclusion in evaluating his suitability for a WHP: Claimant was unlikely to be able to benefit. The fact that Claimant did participate in the WHP can not retroactively supply the required entrance criteria. In fact, Claimant’s subsequent participation undermines the reliability of the FCE’s “medium” functional capacity for Claimant.
No Objective Correlating Tests
Petitioner cited to the MRI, which showed a cervical disc bulge to substantiate Claimant’s subjective pain reports. However, Dr. Hood noted that the disc bulge did not impinge upon any nerves and so would not be a pain generator. Neither Petitioner nor Dr. Hood mentioned the cervical radiculopathy shown by the EMG as a source of Claimant’s ongoing pain.
There were no objective diagnostics that correlated to the degree of chronic pain reported by Claimant and neither the MRI nor the EMG proved that Claimant needed a WHP.
Petitioner failed to establish that there was sufficient evidence to justify sending Claimant to the WHP. First, Petitioner did not show that four weeks of neck and shoulder movements constituted adequate physical therapy for Claimant. Second, there were no objective diagnostics correlating to the pain Claimant reported, making it difficult to believe Petitioner had an accurate diagnosis of Claimant’s pain generator. Third, based on the inconsistent results on the FCE, Claimant was either in too much pain to complete the FCE, and thus would not be a candidate for a more physically demanding program such as a WHP, or he was simply not providing enough effort to accurately judge his physical abilities. In either case, the FCE results were too problematic to support a referral to a program whose entrance criteria demanded Claimant not be under any impediment to participation. Because even with an inconsistent effort, Claimant was only a few pounds away from performing at the slightly higher “heavy” level of effort required by his job, it was important to have an unequivocal FCE before determining whether Claimant needed the WHP. In this case, the FCE lacked the reliability needed to justify the WHP referral.
Petitioner failed to establish the WHP was reasonable and medically necessary healthcare for Claimant.
III. FINDINGS OF FACT
- In_____, Claimant sustained an injury to his neck and back that was compensable under the Texas Workers’ Compensation Act (Act).
- At the time of Claimant’s compensable injury, the Insurance Company of the State of Pennsylvania (Respondent) was the workers’ compensation insurer for Claimant’s employer.
- In December 1999, Claimant began receiving chiropractic care from Dr. Rafael Loya, D.C. (Petitioner) for ongoing pain.
- Despite conservative care, Claimant continued to report debilitating neck pain three months post-injury.
- Beginning in March 2000, Claimant performed a series of neck and shoulder exercises when he was treated by Petitioner. He also spent about 15 minutes per visit on a treadmill.
- The exercises described in Finding of Fact No. 5 were not documented as physical therapy under the Commission’s rules.
- In a March 2000 functional capacity evaluation (FCE), Claimant’s physical efforts were inconsistent.
- During the FCE, Claimant’s heart rate did not reach the expected levels, an indication that he was not exerting himself during the tests.
- The FCE showed that Claimant could work at a medium level of activity.
- To perform his job, Claimant needed to be able to work at a heavy level of activity, which is the next level above medium.
- Petitioner attributed Claimant’s inconsistent efforts on the FCE to pain.
- In March 200, Petitioner referred Claimant to Petitioner’s work hardening program, which Claimant attended from April 5 through May 12, 2000.
- At the time he was referred to the work hardening program, Claimant was at the secondary level of care.
- The Commission’s Medical Review Division sustained Respondent’s denial of reimbursement for the work hardening program based on lack of documentation to support medical necessity.
- Petitioner timely appealed the MRD decision.
- Pursuant to the Commission’s notice of hearing, Petitioner and Respondent were represented at the hearing held February 13, 2002.
- The notice of hearing stated the date, time, and location of the hearing, along with references to the applicable statutes and rules and short, plain statement of the disputed matters.
IV. CONCLUSIONS OF LAW
- The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act (Act), TEX. LABOR CODE ANN. § 413.031.
- 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.
- The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV’T CODE ANN. ch. 2001.
- Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§ 2001.051 and 2001.052.
- Petitioner has the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i); 1 TAC § 155.41.
- 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).
- Health care includes all reasonable and necessary medical services, including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. §401.011(31).
- Work hardening is an interdisciplinary program tailored to improve the worker’s functional, physical, behavioral, and vocational needs. 28 TAC § 134.1001(g)(69) and the Commission’s Medicine Ground Rule II.E, 28 TAC § 134.201 (repealed effective January 1, 2002).
- Work hardening was an approved treatment in the Commission’s Spine Treatment Guidelines for the secondary level of care. 28 TAC § 134.1001 (g)(7)(B) (repealed effective January 1, 2002).
- Petitioner failed to show that Claimant received the most economical and least intensive services, in the form of appropriate physical therapy, prior to be referred to the work hardening program. 28 TAC § 134.1001(g)(5) (repealed effective January 1, 2002) .
- To be a candidate for work hardening, Medicine Ground rule II.E.1. required the participant be likely to benefit from the program; not be hindered from participate by medical, psychological or other conditions; and have an illness or injury that interferes with performance of identifiable job tasks. 28 TAC § 134.201 (repealed effective January 1, 2002).
- Petitioner failed to show that Claimant met the entrance requirements found in 28 TAC § 134.201 because Claimant’s FCE results did not establish he would be likely to benefit from the program and would not be hindered from participating in a work hardening program.
- Petitioner failed to show that a work hardening program was reasonable or medically necessary healthcare for Claimant at the time Claimant was referred to the program.
IT IS ORDERED that the Insurance Company of the State of Pennsylvania is not liable to reimburse Rafael Loya, D.C. for the work hardening services provided Claimant from April 5 through May 12, 2000.
Signed this 5th day of March 2003.
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- As discussed below, these were the back-sides of documents included in the MRD record.↑
- The rule and Medicine Ground Rule II.E. both stated: Work Hardening--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 employee. Work Hardening provides a transition between management of the initial injury and return to work while addressing the issues of productivity, safety, physical tolerances, 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 persons served. These rules were repealed effective January 1, 2002.↑
- Read in the context of the entire FCE, it is apparent that the examiner meant to write “without,” not “with” in this sentence.↑