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At a Glance:
Title:
453-02-1323-m5-etal
Date:
October 14, 2002
Status:
Retrospective Medical Necessity

453-02-1323-m5-etal

October 14, 2002

DECISION AND ORDER

I. SUMMARY

Jesus E. Garcia, D.C. (Provider) sought reimbursement for a neuromuscular stimulator, office visits, and work hardening provided to Claimant. Hartford Casualty Insurance Company (Carrier) denied payment. The Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission) declined to order reimbursement. Provider requested a hearing to challenge the MRD’s order.

On September 19, 2002, Bill Zukauckas, Administrative Law Judge (ALJ), convened the hearing at the William P. Clements Building, 300 West 15th Street, Austin, Texas. Attorney Larry Laurent represented Provider. Attorney David Swanson represented Carrier. The Commission was not represented. The parties did not contest notice or jurisdiction. After evidence was presented, the ALJ closed the hearing on September 19, 2002.

II. EVIDENCE AND DISCUSSION

At issue in this case is whether a neuromuscular stimulator, various office visits, and six weeks of work hardening were reasonably required by the nature of Claimant’s compensable injury.

Because the MRD declined to order reimbursement for any of the disputed services, Provider had the burden to prove that the services were necessary.

Claimant worked as a produce sorter. On______, she injured her back and right hand when she slipped on a potato and fell to the floor. She began treating with Provider on March 17, 2000, at which time he prescribed passive physical therapy. In or about April 2000, Provider began prescribing active physical therapy. Claimant continued with active physical therapy on a regular basis through August 2000. In September 2000, Provider prescribed work conditioning. Claimant completed six weeks of work conditioning on or about October 20, 2000. In December 2000, Provider prescribed work hardening. Claimant completed six weeks of work hardening on or about February 2, 2001. At the end of the work hardening, Claimant still was not able to return to her previous work.

The neuromuscular stimulator

Provider billed for a neuromuscular stimulator on October 6, 2000. At the hearing, Provider did not address the medical necessity of that device. Carrier’s expert witness, Bill Defoyd, D.C., credibly testified that the device was not medically necessary. Therefore, the ALJ finds that Provider has not demonstrated that the device was reasonably required by the nature of the compensable injury.

The office visits

Provider billed CPT Code 99213 (intermediate level office visits) on eight occasions between October 25, 2000 and November 24, 2000. At the hearing, Provider did not address the medical necessity of those office visits. Again, Carrier’s expert, Dr. Defoyd credibly testified that, at this stage of the treatment, frequent intermediate level office visits were not medically necessary. Therefore, the ALJ finds that Provider has not demonstrated that the office visits were reasonably required by the nature of the compensable injury.

Work hardening

Provider billed for six weeks of work hardening from December 26, 2000 through February 2, 2001. 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 MFG 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.[1]

The MFG ground rules provide that work hardening is appropriate for persons whose levels of functioning interfere with their ability to perform specific tasks in the work place. Thus, in order to determine if a patient is an appropriate candidate for work hardening, a health care provider should identify specific tasks required in the work place and then test the patient’s ability to perform those tasks. In this case, it is not clear that Provider properly identified specific tasks required in the work place. Provider acknowledged that he did not obtain a job description from Claimant’s employer. Moreover, although he asserted that he obtained a description of the occupation of produce sorter from the U.S. Department of Health and Human Services, he acknowledged on cross examination that he was unsure of the source of the job description and he was unable to produce the job description. Provider also did not test Claimant’s ability to perform specific tasks prior to prescribing work hardening. He performed a Functional Capacity Evaluation (FCE) on April 17, 2000, eight months before Claimant began work hardening, and did not perform another such evaluation until February 27, 2001, after Claimant had completed work hardening. The FCE on April 17, 2000, was not a reliable indicator of Claimant’s ability to perform tasks in December 2001 because by December 2001 Claimant had received several months of active physical therapy and Claimant had been through six weeks of work conditioning.

The MFG ground rules also provide that daily treatment and response to treatment shall be documented and reviewed to ensure continued progress. Provider’s work hardening notes document weekly, not daily, treatment and response to treatment. Moreover, the weekly notes demonstrate

little, if any, progress during the program. For example, each weekly note states that Claimant was able to lift 20 pounds with moderate difficulty and each note states that Claimant performed a bicycle test with moderate difficulty.

Although Provider asserted generally that Claimant benefitted from the work hardening program, he did not provide objective evidence of significant functional gain. In addition, Dr. Defoyd testified that the work hardening program was not medically necessary. Furthermore, the FCE performed after Claimant completed work hardening does not demonstrate that Claimant was functioning better than she was functioning at the time of the FCE on April 17, 2000. To the contrary, the description of Claimant’s ability to perform activities of daily living is the same, verbatim, in both reports. Accordingly, the ALJ finds that Provider has not demonstrated that the work hardening program was reasonably required by the nature of the compensable injury.

III. FINDINGS OF FACT

  1. Claimant, an employee of_____, sustained a work-related injury on ________.
  2. At the time of the injury, Claimant’s employer, _________, subscribed to workers’ compensation insurance with Hartford Casualty Insurance Company (Carrier).
  3. Claimant’s treating doctor was Jesus E. Garcia, D.C.(Provider).

4Provider billed Carrier for a neuromuscular stimulator furnished to Claimant on October 6, 2000.

  1. Provider billed Carrier for eight intermediate level office visits (CPT Code 99213) from October 25, 2000 through November 24, 2000.
  2. Provider billed Carrier for six weeks of work hardening from December 26, 2000 through February 2, 2001.
  3. The neuromuscular stimulator was not reasonably required by the nature of the compensable injury.
  4. The intermediate-level office visits were not reasonably required by the nature of the compensable injury.
  5. The primary goal of a work hardening program, which is interdisciplinary in nature, is to prepare an individual, physically and otherwise, to return to work.
  6. Prior to Claimant’s entry into work hardening, Provider did not identify specific tasks required of Claimant in the workplace.
  7. Prior to Claimant’s entry into work hardening, Provider did not test Claimant’s ability to perform specific tasks required in the workplace.
  8. The only functional capacity evaluation (FCE) performed prior to Claimant’s entry into work hardening was too remote in time to be a reliable indicator of Claimant’s need for work hardening.
  9. While Claimant was in work hardening, Provider did not document daily treatment and response to treatment.
  10. While Claimant was in work hardening, Provider did not review Claimant’s response to treatment to ensure continued progress.
  11. Upon discharge from work hardening, Claimant was not able to return to perform her previous work.
  12. Carrier denied Provider’s request for reimbursement for the neuromuscular stimulator, office visits, and work hardening.
  13. Provider appealed Carrier’s denial to the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission).
  14. On October 9, 2001, the MRD concluded that Provider’s documentation did not substantiate the need for work hardening for dates of service December 26, 2000 through January 12, 2001 and issued its decision denying the Provider’s request for reimbursement in the amount of $6,144.00.
  15. On April 25, 2002, the MRD concluded that Provider’s documentation did not substantiate the need for the neuromuscular stimulator, office visits, or work hardening on dates of service January 15, 2001 through February 2, 2001 and issued its decision denying Provider’s request for reimbursement in the amount of $5,593.00.
  16. The Commission sent notice of the hearing to the parties on January 14, 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.
  17. By order dated June 20, 2002, the State Office of Administrative Hearings continued the hearing to September 19, 2002.
  18. The hearing was held on September 19, 2002. Provider was represented by attorney Larry Laurent. Carrier was represented by attorney David Swanson. The record closed on the same day.

IV. CONCLUSIONS OF LAW

  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. Provider timely filed notice of appeal of the MRD decisions, 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. Provider had the burden of proving the case by a preponderance of the evidence, pursuant to 28 TAC §148.21(h) and (i).
  6. Provider failed to prove that the neuromuscular stimulator was reasonably required by the nature of the compensable injury.
  7. Provider failed to prove that the intermediate-level office visits were reasonably required by the nature of the compensable injury.
  8. Provider failed to prove that the work hardening was reasonably required by the nature of the compensable injury.
  9. Provider failed to meet the documentation requirements of MFG Medicine Ground Rule II. E. 8.
  10. Based on the foregoing findings of fact and conclusions of law, Provider did not prove that his claim for $6,144.00 should be reimbursed.
  11. Based on the foregoing findings of fact and conclusions of law, Provider did not prove that his claim for $5,593.00 should be reimbursed.

ORDER

It is hereby ordered that the claim of Jesus E. Garcia, D.C. is denied.

Signed this 14th day of October, 2002.

BILL ZUKAUCKAS
Administrative Law Judge
State Office of Administrative Hearing

  1. See Medical Fee Guideline Medicine Ground Rule II. E. and 28 Tex. Admin. Code §' 134.201.
End of Document
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