Your FREE and easy resource for all things Texas workers' compensation
At a Glance:
August 2, 2002


August 2, 2002



Rehab 2112 (Petitioner) sought reimbursement for work hardening services provided an injured worker ___, but Transcontinental Insurance Company (the Carrier) denied payment indicating the services were not medically necessary. Subsequently, the Medical Review Division (MRD) of the Texas Workers' Compensation Commission (Commission) considered Petitioner’s claim of $9,736. and recommended reimbursement of $4,616. Petitioner appealed the MRD’s order, arguing that full reimbursement should be ordered. Carrier appealed the decision arguing that no reimbursement whatsoever should be ordered.

The hearing in this case was originally set on April 4, 2002. However, on March 27, 2002, Attorney H. Doug Pruett representing Petitioner filed a Motion for Summary Disposition, seeking a decision that authorized full payment of Petitioner’s claim without a hearing on the merits. James M. Loughlin, attorney representing the Carrier, filed a response to the motion, as well as a Second Motion to Compel. To consider the parties’ motions, the Administrative Law Judge (ALJ) scheduled argument on the motions on April 4, 2002. The motion to compel was granted. However, because of the nature of Mr. Pruett’s motion, the parties requested and received time to file additional briefing on the issue of summary disposition. The briefing was concluded on May 1, 2002. The ALJ denied the motion for summary disposition on May 24, 2002, and advised the parties that the hearing on the merits would proceed as tentatively scheduled. On June 3, 2002, ALJ Ruth Casarez convened the hearing on the merits at the William P. Clements Building, 300 West 15th Street, Austin, Texas. The Commission was not represented. The parties did not contest notice or jurisdiction. After the evidence was presented, the record of the hearing closed on the following day to allow Mr. Pruitt to submit a legal citation.



Mr. Pruett relied on the Commission’s certified record and presented Cindy Wilson, a licensed workers’ compensation claims adjuster employed by Carrier, who received and processed Claimant’s claim. The Carrier introduced a copy of the MRD's certified record (___.) into evidence and presented Samuel Bierner, M. D., who is certified in physical medicine and rehabilitation. Dr. Bierner testified concerning whether Claimant required work hardening services and whether such services had improved his condition.

The MRD’s decision found that Claimant had been shown to be an appropriate candidate for work hardening and that Petitioner’s documentation substantiated the first three weeks of services had been provided in accordance with the MFG, but that the documentation did not show the services provided during the final three weeks complied with the requirements of the Commission’s Medical Fee Guideline (MFG). The issue in this case is whether Petitioner’s documentation for the work hardening services provided between November 22 and December 7, 2000, substantiates reimbursement, in accordance with the MFG Medicine Ground Rule II.E, for the claim for those three weeks. Carrier argued that the entire claim should be rejected because no medical necessity had been established for the services.[1]

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 functional, physical, behavioral, and vocational needs of the Claimant. 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 Petitioners.[2]

A.Evidence and Discussion

On____________, while standing in a ditch performing his work, Claimant, a ___, was hit on the head by some equipment and knocked onto the ground. (___ p. 54). He experienced pain to his neck and left upper extremity. After the incident, he was seen by Tayana Stefanovic, D.C., who diagnosed Claimant with cervical sprain/strain. Several weeks later, he was referred to Eric Kibodeaux, D.C., whose office was closer to Claimant’s home. Dr. Kibodeaux provided conservative treatment to Claimant (physical therapy (PT), chiropractic care, muscle relaxants, and medications) and then referred him to Petitioner for additional PT, because of continued reports of pain. Petitioner obtained preauthorization to provide Claimant additional PT. Claimant began the PT, three times per week for four weeks, on September 18, 2000. The therapist’s notes indicate Claimant improved with the additional PT.

Although no evidence was presented to explain why, on October 19, 2000, Dr. Kibodeaux referred Claimant to Petitioner for a functional capacity evaluation (FCE). Jose de Silva, D.C., an employee of Petitioner, evaluated Claimant and prepared the initial FCE report[3] on October 25, 2000. Dr. de Silva made the following findings:

  1. Claimant was diagnosed with cervical sprain/strain;
  2. Claimant had decreased range of motion; strength and endurance;
  3. 3. Claimant was at the medium-heavy physical demand level (PDL);

  4. Claimant was able to lift 60 lbs. from knuckle to shoulder; from floor

to knuckle, and from floor to shoulder;

  1. Claimant’s job required a heavy PDL;
  2. Claimant’s disability rating was 36%
  3. Claimant would benefit from work hardening program that would help

decrease the deficits noted in No. 2 above, while providing proper stability

within a simulated work environment.

Based on Dr. de Silva’s recommendation, Claimant enrolled in Petitioner’s work hardening program and began the program on November 2, 2000. On November 14, 2000, after participating in the program nine days, Dr. de Silva performed an interim FCE. (See C.R. pp. 85-75). The interim FCE report indicates that Claimant continued to be at the medium-heavy PDL, but was able to lift 70 lbs. and he demonstrated improvement[4] in his ability to lift, push or pull. However, Dr. de Silva increased Claimant’s disability rating to 38% and recommended he continue in work hardening for the next three weeks. (See C.R., p. 77).

No evidence was presented as to any intervening events that might have caused Claimant’s condition to significantly deteriorate, but that appears to have happened. When he returned to the work hardening program for the fourth week (beginning November 20, 2000), he reported severe muscle spasms and stiffness in the cervical area, and the therapist recorded that Claimant needed constant supervision and although he attended the sessions, he required motivation to complete all of the activities. The daily notes reflect his attendance dropped during that week: he did not attend at all on November 23, attended only half day on November 20, and although he attended on November 21, he appears not to have participated in work simulation activities, as those entries were left blank. Nevertheless, seven hours of service are recorded in the notes for that date. (C.R. p. 87). In addition, the weekly summary for the fourth[5] week reflects that Claimant’s current PDL changed from medium heavy to light and his lifting capacity decreased from 70 to 25 pounds. His attendance, participation, and progress were indicated as fair. (C.R. p. 86).

During the fifth week, Claimant attended the program every day and made some progress in a number of the program activities, e.g., floor and shoulder lifts, lifting and carrying and pushing. However, Claimant continued to complain of muscle spasms and severe headaches, and the therapist noted that Claimant was “not meeting goals [because of] all the difficulties he has been experiencing during the program.” No explanation was given as to what specific difficulties Claimant was experiencing was given. (C.R. p. 90). The weekly summaries for the fifth and sixth weeks reflect that Claimant continued at the light PDL, and that he was able to lift 27 pounds and 30 pounds, respectively, at the conclusion of the week. In addition, the daily notes for the sixth week (December 4-8) indicate that Claimant reported having more pain and numbness in his arms, neck, and fingers. They also indicate Claimant did not attend the program on December 4 and 8, 2000. And although the notes reflect that he participated seven hours on each of the remaining three days, no data (activity results) was recorded for the daily work simulation activities, and only one topic was indicated for the psychological/social/vocational segment of the program. There was no indication as to when (which dates) the topic was covered. In short, the information included in the daily notes for the final week of work hardening contains very little information about what Claimant did on the days he attended and whether he made any improvement on those days.

The final FCE, performed on December 14, 2000, that described Claimant’s condition after the work hardening program appears to indicate that Claimant made progress in some, but not all, areas. Among the findings in the report were that Claimant could lift 60 pounds (an increase of 30 pounds over what he could lift on just seven days earlier) (See C.R. p. 99), that his ability to push and pull had increased in some areas and decreased in others since the interim FCE (See C.R. pp.101 and 81) and that his disability rating had increased to 40% (C.R. p. 97). Dr. de Silva’s final FCE report (C.R. 105-95) recommended the following:

  1. Claimant was at the medium to medium heavy PDL;
  2. Claimant’s primary limiting factors were decreased: ROM, strength, endurance, positive orthopedic tests to area of complaint; and that
  3. Claimant should return to the treating doctor for recommendations to return to work or for further care.

Considering Claimant’s limited participation in the final week of work hardening, it is difficult to reconcile Dr. de Silva’s findings in the final FCE with the results indicated in the daily notes. For example, no explanation was given as to how Claimant progressed from the light PDL on December 5, 2000, to the medium-medium heavy PDL on December 14, 2000,[6] while at the same time, Claimant’s degree of disability had increased. The documentation for the services rendered from November 22, through December 7, 2000, is incomplete, inconsistent and unreliable. Therefore, the ALJ agrees with the MRD’s decision that the documentation submitted for the final three weeks of work hardening does not justify reimbursement.


  1. Claimant, employed as a ___ for_______, sustained an injury to his neck and arms when he was hit on the head by equipment on _______.
  2. At the time of the injury, Claimant’s employer had workers’ compensation insurance through Transcontinental Insurance Company (Carrier).
  3. Eric Kibodeaux, the treating doctor, referred Claimant to Rehab 2112 (Petitioner) for a functional capacity evaluation (FCE), which was completed on October 25, 2000.
  4. The functional capacity evaluation (FCE) conducted by Dr. de Silva, an employee of Petitioner, established that Claimant was an appropriate candidate for work hardening because Claimant had physical deficits (limited strength, endurance and range of motion) and was not at the physical demand level (PDL) required by his job.
  5. Claimant enrolled in a six-week work hardening program provided by Petitioner from November 2, 2000 through December 7, 2000. Among the goals of the program were to get Claimant to the PDL required by his job and to decrease the deficits he had in range of motion, strength, endurance and positive orthopedic tests to area of complaints.
  6. One of the primary goals of work hardening is to physically prepare an individual to return to work.
  7. Claimant’s PDL rating at the time he enrolled in Petitioner’s work hardening program was at the medium heavy PDL.
  8. Claimant’s job required a PDL of heavy, which was a goal for Claimant to achieve in the work hardening program.
  9. After three weeks of work hardening, Claimant’s PDL remained at medium-heavy, but his weight-lifting ability had increased from sixty to seventy pounds; his ability to push or pull weights also had increased.
  10. Claimant continued in Petitioner’s work hardening program for an additional three weeks, from November 20 through December 8, 2000.
  11. Claimant did not attend all of the work hardening sessions during the week of November 20 through November 24, 2000, and because he did not perform work simulation activities during all of days he attended, the number of his participatory hours on the days he attended is unknown.
  12. Claimant’s PDL changed from medium-heavy to light during the week of November 20, 2000.
  13. Claimant did not attend the work hardening program on two days during the week of December 4 through December 8, 2000, and because he did not perform work simulation activities during the days he did attend, the number of his participatory hours on the days he attended is unknown.
  14. Only one topic is indicated for the psychological/social/vocational segment of the work hardening program during the week of December 4 through December 8, 2000, but no indication was given as to when or for how long the topic was discussed during the week.
  15. Claimant’s PDL remained at the light PDL during the week of December 4 through December 8, 2000, with the indication that Claimant could lift 30 pounds at week’s end.
  16. On December 14, 2000, Dr. de Silva performed a final FCE to report Claimant’s condition or progress during Petitioner’s work hardening program.
  17. The final FCE report indicated the following:
  18. Claimant could lift 60 pounds;
  19. Claimant’s current PDL was at medium to medium-heavy;
  20. Claimant’s ability to push and pull had increased in some areas and had decreased in others;
  21. Claimant’s primary limiting factors continued to be decreased range of motion, strength, endurance, and positive orthopedic tests to areas of complaint; and
  22. Claimant should return to his treating doctor for determination of whether he could return to work or have further treatment.
  23. During the final three weeks of Petitioner’s work hardening program, Claimant’s attendance and participation were fair, at best.
  24. Although Claimant appeared to make progress during the initial phase of the work hardening program, at the conclusion of the program, Claimant had not met the goals that were set out in the initial FCE.
  25. The documentation for the last three weeks of Petitioner’s work hardening program, November 20 through December 8, 2000, and including the final FCE report, provided incomplete, inconsistent, and unreliable data concerning Claimant’s participation and progress in the program.
  26. Petitioner furnished work hardening services to Claimant as indicated in Finding No.5 and billed Carrier $9,736 for the services.
  27. Carrier denied reimbursement of the claim, indicating the services were not medically necessary.
  28. On June 7, 2001, the Petitioner appealed the Carrier’s reimbursement denial to the Medical Review Division (MRD) of the Texas Workers' Compensation Commission (the Commission).
  29. On October 10, 2001, the MRD concluded that Petitioner’s documentation substantiated payment for three weeks of the work hardening services and issued its decision authorizing partial reimbursement ($4,616) of Petitioner’s claim.
  30. On October 19, 2001, the Carrier appealed the MRD’s decision, and on October 29, 2001, the Petitioner also appealed the decision, seeking reimbursement for the entire claim.
  31. The Commission sent notice of the hearing to the parties on November 30, 2001. 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 statutes and rules involved.
  32. The hearing was held on June 3, 2002. Petitioner was represented by attorney H. Doug Pruett, and the Carrier was represented by its attorney, James M. Loughlin. The record of the hearing closed on June 4, 2002.


  1. The Texas Workers' Compensation Commission has jurisdiction to decide the issue presented, pursuant to the Texas Workers' Compensation Act, Tex. Lab. Code Ann. § 413.031.
  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 Tex. Lab. Code Ann. §§ 402.073 and 413.031(d) and Tex. Gov't Code Ann. ch. 2003.
  3. The Petitioner timely filed notice of appeal of the MRD decision, as specified in 28 Tex. Admin. Code (TAC) § 148.3.
  4. Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov't Code Ann. ch. 2001 and 28 TAC § 148.4(b).
  5. Pursuant to 28 TAC § 148.21(h) and (i), Petitioner had the burden of proving by a preponderance of the evidence that it should receive total reimbursement of its claim, and the Carrier had the burden of proving by a preponderance of the evidence that no reimbursement at all was due the Petitioner.
  6. Medicine Ground Rule II.E. of the MFG provides, in pertinent part that:
  7. The program supervisor shall:
    1. * * *
    2. Write the treatment plan for the patient and write changes to the plan based on documented changes in the patient’s condition;
    3. Review the patient’s program on a systematic basis.
  8. Daily treatment and patient response to treatment shall be documented and reviewed to ensure continued progress.
  9. Exit/discharge criteria shall include but not be limited to the injured worker’s:
    1. Returning to work;
    2. Meeting program goals;
    3. Declining further services;
    4. Noncompliance with program policies;
    5. Limited potential to benefit; or
    6. Requiring further health care interventions.
  10. Exit/discharge summary shall delineate the injured worker’s:
    1. Present functional status and potential; and
    2. Functional status related to the targeted job, alternative occupations, or current job availability.
  11. The Petitioner failed to prove that the services rendered Claimant from November 20 through December 7, 2002, met the requirements set out in the Medical Fee Guidelines (MFG) Medicine Ground Rule II E 7 and 8.
  12. The Petitioner failed to meet the documentation requirements of MFG Medicine Ground Rule II. E. 8 - 10.
  13. The Carrier failed to prove that reimbursement for the first three weeks of services rendered was not proper.
  14. Based on the foregoing findings of fact and conclusions of law, the Petitioner did not prove that the remainder of its claim for $5,120 should be reimbursed.


IT IS HEREBY ORDERED that the appeal of Carrier Transcontinental Insurance Company is denied as it did not prove that the services provided Claimant from November 2 to November 17, 2000, were not medically necessary and provided in accordance with the Commission’s Medical Fee Guidelines.

IT IS, FURTHER, ORDERED that the appeal of Rehab 2112 is denied, as it did not prove it was entitled to reimbursement for its entire claim. Accordingly, Carrier Transcontinental Insurance Company is required to reimburse Rehab 2112 the amount of $ 4,616, as previously ordered by the Medical Review Division.

Signed this 2nd day of August 2002.

Administrative Law Judge
State Office of Administrative Hearing

  1. 1 At one point, Carrier also urged that a peer review demonstrated work hardening services were not medically necessary. This argument will not be considered because Carrier had not previously raised the peer review as a reason for denial.
  2. 2See Medical Fee Guideline Medicine Ground Rule II. E. and 28 Tex. Admin. Code § 134.201.
  3. 3 See Initial FCE Report in the certified record beginning at p. 68 and going backward to p.58. The Epic Lift Capacity (ELC) test results appear to indicate that Claimant could lift 60 lbs occasionally.
  4. 4 See recorded results of the Focus Standard NIOSH strength tests at C.R. pp. 64 and 81, which showed Claimant’s strength had increased since the initial FCE.
  5. 5 Petitioner’s summary report at C.R. p. 86 indicates it is the report for the third week, but it appears Petitioner began its count with the first full week. The MRD counted the weeks beginning with November 2, 2000, hence the discrepancy.
  6. 6 The weekly summary for the final week of work hardening did not indicate Claimant’s PDL. (See C.R. p. 94).
End of Document