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August 20, 2002


August 20, 2002



Mockingbird Workskills (Provider) sought reimbursement for work hardening services provided injured worker ___, but Continental Casualty Company (Carrier) denied payment. Upon review of the claim, the Medical Review Division (MRD) of the Texas Workers' Compensation Commission (the Commission) denied the claim of $13,656. Provider requested a hearing to challenge the MRD’s order.

On June 18, 2002, Ruth Casarez, Administrative Law Judge (ALJ), convened the hearing at the William P. Clements Building, 300 West 15th Street, Austin, Texas. Attorney Kevin Stouwie represented the Provider, and attorney Steven Tipton represented the Carrier. The Commission was not a party to the action. The parties did not contest notice or jurisdiction. After the evidence was presented, the ALJ allowed the parties to submit written closing arguments. The record of the hearing closed on June 25, 2002. Provider did not submit a closing argument.


Mr. Stouwie introduced a copy of the MRD's certified record (C.R.) into evidence and rested his case. The Carrier presented Kevin Tomsic, D.C., who testified concerning the two peer reviews he had prepared related to Claimant’s condition in the year 2000. The issue in this case is whether work hardening and related services provided Claimant between August 29, 2000, and October 16, 2000, were appropriate and should be reimbursed by the Carrier, considering that Claimant’s orthopedic surgeon recommended knee surgery be performed in November 2000.

Provider’s Evidence and Argument

On__________, Claimant, a ___ for_________, suffered a compensable injury when he fell between a trailer and the dock as he pulled a load up a ramp at his place of work. Claimant did not seek medical attention until early November, when he visited Concentra Medical Center complaining of pain in the right knee. Because tenderness was noted over the right lateral epicondyle as well as some mild crepitus,[1] an MRI of his right knee was done on November 9, 1999. The MRI did not show a tear of the meniscus (fibrous cartilage within the knee joint), but did reveal a small joint effusion (escape of fluid) and some evidence of mucus change in the medial and lateral menisci.

On January 8, 2000, Claimant was examined by M. Roberts, an orthopedic surgeon, who noted his complaints of mild popping and catching in the right knee and swelling at the end of the day. Dr. Roberts noted Claimant had full range of motion (ROM) in both knees and only mild discomfort at the extremes on the right. The knee was stable to both front and back, as well as to varus (inward bending) and valgus (outward bending) stresses. During standard grind tests, Dr. Roberts noted there was some pain, without popping, and also some mild medial posterior joint line tenderness.

Despite the negative findings of the MRI, Claimant continued to complain of pain in his right knee, and on February 24, 2000, Dr. Roberts performed an arthroscopic procedure to obtain a better diagnosis. The arthroscopy did not show evidence of acute or traumatic structural pathology in the knee.[2] Since no tear in the meniscus was found, Claimant was referred to Curtis Adams, D.C., for rehabilitative physical therapy. When Dr. Adams examined Claimant in April 19, 2000, he detected a number of positive signs that suggested major internal disruption of the right knee. For example, he found Claimant had +1 deep tendon reflexes at the knees bilaterally, hypoesthesia (decreased sensibility to touch) in the right L3 dermatome; also, he was unable to walk heel-to-toe on the right, which indicated muscle weakness in L5 and S1 distribution and had significant loss of ROM in the right hip and right knee. Dr. Adams recommended a second MRI, which was performed on May 25, 2000. However, it also revealed no tear or damage to the meniscus, but it did show that Claimant had a small Baker’s cyst,[3] which indicated signs of degeneration (Grade I) in the medial and lateral menisci of the posterior horn. (See C.R. p. 22).

Following the second MRI, Dr. Adams continued to work with Claimant providing active rehabilitation therapy in efforts to strengthen the knee and help Claimant improve in other daily functions. Claimant cooperated in the physical therapy, but maintained that he had pain in the right knee. In fact, at one point while doing stretching exercises, he reported the pain in his right knee had increased significantly. John C. McConnell, M.D., Claimant’s orthopedic surgeon, also examined Claimant on June 6, 2000, but found nothing to suggest surgery would be appropriate at that time. Thus, considering the negative findings of the arthroscopy, the two MRIs, and the recent examination by Dr. McConnell, there were very few treatment options left for Dr. Adams to consider in late summer and early fall of 2000. Additionally, because Claimant had been off work for more than nine months and had become deconditioned, Dr. Adams referred him to Provider for an evaluation of his current functional capacity and his possible return to work. Jeana Fulenwider, employed by Provider, conducted a functional capacity evaluation (FCE) on August 29, 2000. She found Claimant was at light physical demand level (PDL) above the waist and at sedentary PDL below the waist. Claimant’s job required a medium heavy PDL.[4] Claimant also showed limited lifting capacities and had difficulty in performing critical functional demands of his job, such as prolonged standing, repetitive squatting, and prolonged walking. She also noted “decreased right knee ROM/Strength (+), Apley’s compression for medial pain R, (+); McMurray’s Test R, 50% of full squatting capacity and decreased lateral glide of R patella.” (C.R. p. 93). Ms. Fulenwider concluded Claimant was a good candidate for work hardening and recommended a six-week program, which, she believed, would improve his physical demand and functional level and could result in his returning to work. On August 31, 2000, prior to enrolling Claimant in the work hardening program, Provider called a representative of the Carrier (Ms. Reddy) and obtained approval for the program. In addition, Provider had surmised that an FCE was appropriate because Dr. Tomsic had suggested in the August 30, 2000, peer review that an independent medical examination (IME) and an FCE be performed to determine if Claimant had any “true significant objective findings, focal neurologic deficits, or residual limitations.” (See C.R. p. 25).

Claimant participated in Provider’s work hardening program[5] from Sept 5, 2000, to October 16, 2000. Provider’s billing records reflect Claimant participated six or seven hours each day he attended the program. Four weeks after his enrollment, Ms. Fulenwider completed an interim FCE on Sept 29, 2000, to record Claimant’s progress. She noted Claimant was not yet ready to return to work because he was at light PDL and still could not meet the functional demands of his job. He continued to have difficulty with prolonged standing and walking and with repetitive squatting, and complained that pain in the right knee was exacerbated with activity. She also noted he was still tender in the right knee and shin area, but recommended Claimant continue work hardening for another two weeks. (See C.R. pp. 117-118). Claimant remained in the work hardening program for the additional two weeks, and Provider billed the Carrier $13,655 for the FCEs and work hardening services that were rendered.

The final FCE, completed on October 17, 2000, showed Claimant had improved to medium light physical capacity. Ms. Fulenwider noted Claimant had made good progress during the program by increasing his lifting capabilities and showing increased tolerance to critical functional demands. For example, his walking tolerance had increased to “good”; his squatting tolerance had increased to “fair+”; his climbing skills had increased to “good”; and his below-waist lifts had increased to light, and the above-waist lifts had increased to light medium. However, she concluded Claimant should not return to work, but instead should undergo the meniscus repair surgery recommended by Dr. McConnell and tentatively scheduled for November 2000. (See C.R. p. 132.)

After obtaining authorization, Dr. McConnell performed a second arthroscopy on Claimant’s right knee on February 3, 2001. During the second arthroscopy, he found a tear of the medial meniscus and anterior cruciate ligament (ACL) avulsion,[6] which had not previously been detected. Dr. McConnell wrote in his post-operative report: “the MRI did not identify surgical pathology needing treatment including ACL avulsion, medial and lateral meniscal pathology and synovitis.” (C.R. p. 36).

Provider argued it should be paid for the work hardening services because until October 4, 2000, there was no evidence that a second surgery was required for Claimant. The possibility of such a surgery became known to Provider at a multi disciplinary meeting during the fourth week of work hardening, when Claimant mentioned that Dr. McConnell was considering another surgery.

Respondent’s Evidence and Argument

Carrier refused to pay the claim, arguing the work hardening was not appropriate at the time it was rendered. Carrier also argued that Provider had not adequately assessed the extent or severity of Claimant’s injury and, thus, had failed to document that Claimant was an appropriate candidate for work hardening services. It argued further that even after Claimant had enrolled in the program, there were signs the condition of his knee was worsening. On daily examination of Claimant, any worsening should have been obvious, and Provider should not have continued Claimant in work hardening.

The Carrier relied on peer review reports prepared by Dr. Tomsic (See C.R. pp. 25-26 and 27-30) as well as on his testimony. Dr. Tomsic indicated in his updated report of September 21, 2000, that he believed Claimant had engaged in symptom magnification and based his belief, in part, on the negative findings of the two MRIs that were done in November 1999 and on May 25, 2000. In addition, because there were no objective findings to support Claimant’s symptoms (lack of strength in the right leg and pain in the right knee), Dr. Tomsic opined that Claimant’s preexisting degenerative disease caused the symptoms.[7] Although he acknowledged Claimant could have re-injured his right knee during stretching exercises after surgery, he did not believe such reinjury had occurred because the second MRI had found no tear or damage in the knee. He believed that Claimant had sustained nothing more than a soft tissue injury, which should have already healed. He also believed Claimant should have been placed at maximum medical improvement (MMI) in May 2000. Consequently, he recommended no further diagnostic studies or psychological tests at that point. (See C.R. pp. 29-30).

Dr. Tomsic also expressed his general opinion that because a surgical procedure had been necessary after the work hardening services, work hardening had not been appropriate for Claimant.

Applicable Law

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) Medicine Ground Rules 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.[8] MFG Medicine Ground Rule II. E.(1) provides that work hardening would be suitable if:

  1. person was likely to benefit from the program;
  2. person whose current levels of functioning due to illness or injury interferes with the

person’s ability to carry out specific tasks required in the workplace;

person whose medical, psychological, or other conditions do not prohibit

participation in the program; and

person is capable of attaining specific employment upon completion of the program.

The MFG also allows a maximum of three functional capacity evaluations (FCE) for an injured worker. Reimbursement is at $100 per hour for a maximum of five hours for the initial FCE and a maximum of two hours for an interim or discharge FCE. A summary report of the evaluator’s findings is required for each FCE conducted, with no additional charge allowed for the reports.[9]


One of the primary objectives of a work hardening program is to prepare the injured worker to return to work. In this case, after completing work hardening Claimant was not ready to return to work, because his doctor recommended surgery for him after the program. It appears, although not expressly stated, that the MRD reasoned that because Claimant required surgery following the work hardening program, he had not met the entrance criteria for work hardening. Thus, the services were not reimbursable.

To determine if the services should be paid, the ALJ must decide if Provider properly assessed Claimant’s suitability for the work hardening program and whether, in early September 2000, Claimant was an appropriate candidate for work hardening. Clearly, if Provider had known Claimant would need surgery on his right knee within a few months after completing work hardening, and yet enrolled him in the program, this determination would be quite simple.

The evidence in this case indicates that when Claimant began work hardening, there was no indication surgery was an appropriate treatment option. Several diagnostic tests performed on Claimant’s right knee had shown nothing that would suggest knee surgery was needed. Carrier’s own peer reviewer had indicated on August 30, 2000, that no further treatment was necessary for Claimant, other than perhaps an independent medical examination and an FCE to determine if Claimant exhibited any significant, objective signs of pathology. In fact, in the August 30, 2000, report Dr. Tomsic intimated Claimant had exaggerated his symptoms because neither the MRI nor the initial arthroscopy had shown any damage in his right knee. Dr. Tomsic also suspected that Dr. Adams, who believed there was damage to the knee, had not properly evaluated Claimant’s condition. Thus, in the summer and fall of 2000, Claimant’s medical condition did not prohibit his participation in work hardening. Indeed, among the few viable treatment options for Claimant at that time appeared to be continued physical rehabilitation and programs aimed at preparing him to return to work. The functional capacity evaluation (FCE) performed on August 29, 2000, found Claimant was not at the physical demand level required by his job, and that he had functional capacity limitations that needed to be reduced or eliminated before he could return to work. Several of those limitations required that his right leg and knee be strengthened to improve his ability to stand and walk for sustained periods. Once the activities and exercises in the work hardening program achieved that strengthening and endurance, Claimant would be in a much better position to return to work. Thus, at the beginning of September 2000, Claimant was an appropriate candidate for work hardening.

Thus, the ALJ concludes that Claimant met the qualifying criteria for work hardening when he enrolled in the program. It was not until early October that Dr. McConnell suggested to Claimant that a second arthroscopy might be necessary. When Claimant informed Provider’s representative(s) of this development on October 4, 2000, however, Provider should have discharged him from the program. Claimant’s changed medical diagnosis had rendered him ineligible for the program. Accordingly, the ALJ believes Provider should be reimbursed for the services rendered through October 4, 2000, but not for the services rendered after that date.


  1. Claimant, an employee of__________, sustained an injury to his right knee when he fell while performing his work,_________.
  2. At the time of the injury, Claimant’s employer had workers’ compensation insurance through Continental Casualty Company.
  3. Claimant did not seek immediate medical attention for his injury, but on November 3, 1999, he was examined at Concentra Medical Center for pain in his right knee.
  4. On November 9, 1999, an MRI on his right knee was done to determine if there was internal damage. The results of the test were negative.
  5. On January 8, 2000, Dr. Roberts, an orthopedic surgeon, examined Claimant and found that Claimant had full range of motion in both knees; had mild discomfort at the extremes on the right; the knee was stable to both anterior and posterior, as well as varus and valgus stresses; and that during standard grind tests, there was some pain in the knee, but no popping.
  6. Because Claimant continued to report pain, on February 24, 2000, Dr. Roberts performed an arthroscopy of the right knee; it showed no tear or damage of the meniscus.
  7. After the arthroscopic surgery, Claimant was referred to Curtis Adams, D.C., who undertook Claimant’s treatment at that time.
  8. Dr. Adams examined Claimant in April 2000 and found positive signs of structural damage in the right knee, such as extreme weakness in the right leg and significant loss of range of motion in the right hip and knee. He recommended a second MRI of the right knee.
  9. A second MRI was performed on May 25, 2000. It showed no evidence of any structural damage to the meniscus, but did show a small Baker’s cyst, which was evidence of degenerative disease.
  10. John C. McConnell, M.D., examined Claimant on June 6, 2000, and found nothing to suggest Claimant required surgery at that time.
  11. Dr. Adams continued to provide rehabilitative physical therapy to Claimant in an effort to strengthen his right knee and help him improve in other functional capacities.
  12. Dr. Adams referred Claimant to Mockingbird Workskills (Provider) for a functional capacity evaluation (FCE) to determine if he was an appropriate candidate for work hardening.
  13. The five-hour FCE was conducted on August 29, 2000.
  14. The FCE revealed that Claimant could benefit from a six-week work hardening program because Claimant’s sedentary physical demand capacity level (PDL) was below that required by his job (medium-heavy PDL), and because he had difficulty with several of his critical job requirements, e.g., prolonged standing, walking and repetitive squatting or climbing.
  15. On September 5, 2000, Claimant was enrolled in Provider’s work hardening program for six weeks.
  16. Provider is CARF-certified and is allowed to bill its services at $64 per hour.
  17. Provider’s documentation showed that Claimant participated in its work hardening program as indicated below:
  18. from September 5, 2000, through September 8,& 11, 2000, 6 hours per day: 30 hrs
  19. from September 12, 2000 through Sept. 15, 2000, 7 hours per day: 28
  20. from Sept. 18, 2000 through Sept. 22, 2000, 7 hours per day: 35
  21. from Sept. 25, 2000, through Sept. 28, 2000, 7 hours per day: 28
  22. on Sept. 29, 2000, 6 hours plus 1 hour for mid-FCE: 6
  23. from October 2, 2000 through October 4, 2000, 7 hours per day: 21
  24. from October 9, 2002 through October 13, 2000, 7 hours per day: 35
  25. on October 16, 2000, 7 hours: 7
  26. On Sept. 29, 2000, a one-hour interim FCE was conducted to record Claimant’s progress. The interim FCE showed Claimant had improved to light PDL above and below the waist. Although his lifting ability registered an increase, Claimant continued to have difficulty with prolonged standing, walking and squatting. The evaluator suggested he continue in work hardening for another two weeks.
  27. The Provider furnished work hardening services to Claimant between September 5, 2001, and October 16, 2001, and billed Carrier $13,656 for such services.
  28. A primary goal of work hardening is to physically prepare an individual to return to work.
  29. Claimant’s physical demand level rating at the time he enrolled in Provider’s work hardening program was light above the waist and sedentary below the waist. His job required a physical demand level of medium-heavy.
  30. Claimant’s job required that he do prolonged standing and walking as well as lifting and carrying parcels throughout the day.
  31. Provider conducted an initial five-hour FCE, a one-hour interim FCE and a one-hour discharge FCE on August 29, 2000, September 29, 2000, and on October 17, 2000, respectively, to assess Claimant’s need for and progress during the work hardening program. The interim FCE showed that Claimant had made some progress during the first four weeks of the program.
  32. On October 4, 2000, Claimant advised Provider’s representatives that Dr. McConnell intended to perform a second surgery on his right knee within the next two months.
  33. Provider continued Claimant in the work hardening program after it learned that Claimant would have surgery within the next two months.
  34. The Carrier denied reimbursement of the claim, indicating the services were not medically necessary based on a peer review.
  35. On June 28, 2001, the Provider appealed the Carrier’s reimbursement denial to the Medical Review Division (MRD) of the Texas Workers' Compensation Commission (the Commission).
  36. On October 30, 2001, the MRD concluded that because Claimant required knee surgery after the work hardening services, Provider’s claim should be denied.
  37. On November 20, 2001, Provider appealed the MRD’s decision.
  38. The Commission sent notice of the hearing to the parties on January 10, 2002. 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.
  39. The hearing was held on June 18, 2002. Provider was represented by attorney Kevin Stouwie, and the Carrier was represented by its attorney, Steven M. Tipton. The record of the hearing closed on June 25, 2002, with the filing of closing arguments.


  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 Provider 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. The Provider had the burden of proving that it was entitled to reimbursement of its claim by a preponderance of the evidence, pursuant to 28 TAC § 148.21(h) and (I).
  6. The Provider proved that Claimant met the criteria for work hardening services as set out in the Medical Fee Guidelines (MFG) Medicine Ground Rule II. E.
  7. The Provider proved that it performed an initial and an interim functional capacity evaluation (FCE) in accordance with the requirements of the MFG and that it billed for such FCEs as authorized in the MFG Medicine Ground Rule I. E.(2).
  8. The Provider failed to prove that Claimant continued to meet the criteria for work hardening services as set out in the MFG Medicine Ground Rule II. E. after October 4, 2000, when Claimant’s need for knee surgery became known to Provider.
  9. Based on the foregoing findings of fact and conclusions of law, the Provider proved that its claim for the initial ($500) and interim FCE ($100) and for work hardening services (148 hours) from September 5, 2000, through October 4, 2000, ($10,072) should be reimbursed.
  10. Provider did not prove that it was entitled to payment for services rendered Claimant after October 4, 2000.


It is hereby ordered that Continental Casualty Company reimburse Mockingbird Workskills the sum of $ 10,072. The remainder of the claim is denied.

Signed this 20th day of August 2002.

Administrative Law Judge
State Office of Administrative Hearing

  1. According to Stedman’s Medical Dictionary, 28th Edition, an epicondyle is an articular prominence on the distal part of a long bone serving for the attachment of muscles and ligaments; “crepitus” is grating or crackling sound, such as that produced by the broken ends of a bone moving against each other.
  2. Dr. Roberts did perform a resection of a plica that was not related to the injury, however. Stedman’s Medical Dictionary, 28th Edition, indicates a plica is a congenital abnormality involving the synovial compartment surrounding the knee joint capsule.
  3. Stedman’s Medical Dictionary, 28th Edition, indicates a Baker’s cyst is a collection of synovial fluid which has escaped from the knee joint or a bursa and formed a new synovial-fluid lined sac in the popliteal space; seen in degenerative or other joint diseases that produce increased amounts of synovial fluid.
  4. Some of Claimant’s job duties included delivering mail and packages throughout the day, which required him to do substantial standing, walking, and lifting.
  5. Provider is certified by the Commission of Accreditation of Rehabilitation Facilities (CARF), and as such is allowed to bill $64 per hour for its services. See 1996 MFG Medicine Ground Rule II.C. and II.E. (4)-(5) and the note at the end of work hardening provisions on page 39.
  6. According to Stedman’s Medical Dictionary, a tear in the medial meniscus is a tear in the crescent-shaped fibrocartilaginous structure in the middle of the knee joints. An avulsion of anterior cruciate ligament (ACL) is a tear or separation in the ACL, which is the ligament that extends from the anterior intercondylar area of the tibia to the posterior part of the medial surface of the lateral condyle of the femur.
  7. Dr. Tomsic believed Claimant’s preexisting degenerative disease had been confirmed by the Baker’s cyst that was found in the second MRI.
  8. See 1996 Medical Fee Guideline Medicine Ground Rule II. E., pp. 37-38, and 28 Tex. Admin. Code § 134.201.
  9. See 1996 Medical Fee Guideline Medicine Ground Rule I. E.(2), p. 35.
End of Document