Your FREE and easy resource for all things Texas workers' compensation
At a Glance:
Title:
453-02-1695-m5
Date:
May 15, 2002
Status:
Retrospective Medical Necessity

453-02-1695-m5

May 15, 2002

DECISION AND ORDER

Texas Builders Insurance Company (Petitioner) appealed the findings and decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) in MDR Docket No. M5-01-2283-01 which denied reimbursement for work hardening services and a functional capacity evaluation (FCE) provided ___ (Claimant). The MRD decision, issued November 16, 2001, granted reimbursement to Bridgestone Healthcare Management (Provider) in the amount of $10,286.80. This decision finds Petitioner should pay the requested reimbursement to Provider.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

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

The hearing in this matter was held April 2, 2002, at the State Office of Administrative Hearings, 300 W. 15th Street, Austin, Texas, with Administrative Law Judge (ALJ) Ann Landeros presiding. Petitioner appeared through its designated representative, licensed insurance adjuster John Fowler.[1] Provider was represented by attorney Scott Hilliard. The Commission was not a party to this matter. After receipt of charts designating the disputed issues and citing to the relevant portions of the MRD record were filed, the record closed April 30, 2002.

II. DISCUSSION

A. Background Facts

In_____, Claimant fell on his buttocks, sustaining an injury to his back, right elbow, and neck that was compensable under the Texas Workers’ Compensation Act (Act). At the time of the compensable injury, Claimant’s employer had workers’ compensation insurance coverage with Petitioner.

In June 2000, Claimant began receiving chiropractic care from Dr. Dean Allen, D.C. Dr. Allen referred Claimant to Provider’s work hardening program in July 2000. Petitioner disputed the MRD decision finding that reimbursement is owed for work hardening services billed under CPT codes 97545-WH and 97546-WH from August 1 through September 7, 2000, and for a functional capacity evaluation (FCE) billed under CPT code 97750-FC on September 7, 2000.[2]

B. Petitioner’s Position

Petitioner claimed Provider failed to document that the work hardening program was necessary for Claimant. Petitioner based its claim on the August 2000 peer review report of Dr. Brian Glenn, D.C. Dr. Glenn did not examine Claimant but rather reviewed unspecified records of Claimant’s treatment by Dr. Allen.

In response to a specific inquiry as to whether a work hardening program was reasonable and necessary treatment, Dr. Glenn stated that inconsistencies in the July 28, 2000, FCE and lack of supporting documentation made him believe a work hardening program was not necessary to return Claimant to medium duty status. (Exh. 1, p. 165). He found the treatment notes to be vague and non-specific and lacking in support for charges for “treatment visits.” Dr. Glenn stated a reasonable treatment plan would include “a four week trial of care to assess patient response and progress. This was not done. Without clinical evidence of neurological compromise or other complicating factors, this patient should have reached MMI as of 8/19/00 which is three months post injury. . . .The problem I have with the care rendered is that the documentation is extremely repetitive, nonspecific and vague.” (Exh. 1, p. 165).

Petitioner also argued Provider’s work hardening services were inadequate as the program did not provide the required psychological component. It also complained that Claimant did not undergo a required psychological evaluation prior to entering the work hardening program. Finally, Petitioner claimed the work hardening program failed to cure Claimant who was limited to light duty work status as a result of a post-program FCE.

C. Provider’s Position

Provider argued Petitioner could not challenge reimbursement based on asserted inadequacies of the work hardening program (e.g. lack of psychological component) because that specific challenge was not raised in the EOB or at the MRD. In the EOB, Petitioner used the code for “unnecessary per peer review” as the basis of the denial of payment for the work hardening program. Provider noted that Dr. Glenn’s peer review did not challenge the adequacy of its work hardening program services but rather just stated he did not see the need for the program based on the records he reviewed.

Petitioner should have challenged the adequacy of the program at least during the MRD review. Provider was entitled to timely notice of the inadequacy claim so it could defend itself by supplementing the record. In this case, Petitioner did not establish any justification for failing to notify Provider of its claim the work hardening program was inadequate prior to the SOAH hearing. Therefore, Petitioner waived that claim.

D. Analysis

Petitioner has the burden of proof in this proceeding. 28 TAC §§148.21(h) and (i). 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 defined in 28 TAC § 134.1001(g)(69) and the Commission’s Medicine Ground Rule II.E. as a interdisciplinary program tailored to improve the worker’s functional, physical, behavioral, and vocational needs.[3]

Provider’s documentation for Claimant did not show that Claimant received any mental health services before entering, or while in, the work hardening program, services which Petitioner claimed were mandatory. Ground Rule II.E.2 provides instructions on how to bill for mental health evaluations and treatment provided as part of the work hardening program. Provider correctly noted that Ground Rule II.E.2 did not require a participant undergo a psychological evaluation prior to entering a work hardening program. Such an evaluation is optional.

Petitioner failed to establish that psychological services were not provided Claimant during the program. While group therapy is considered to be a part of a work hardening program, the record was silent as to whether Claimant did or did not receive psychological services in the work hardening program. Medicine Ground Rule II. E. 2.b. Because Petitioner failed to inform Provider that the benefits would be denied for lack of documentation of psychological services during the claims review process or at the MRD level, Provider had no reason to submit documentation supporting its position at those levels of review. Unless the claim of inadequacy is raised at a time when a provider can respond by providing evidence to support its position, the ALJ will not assume the program was inadequate.

Petitioner failed to show that the work hardening program was not reasonable or medically necessary health care for Claimant. In response to Dr. Glenn’s letter, Dr. Allen’s explained the Claimant’s need participate in the work hardening program as follows:

He [Dr. Glenn] states earlier in his letter that he [Claimant] is rated sedentary in some items and medium to heavy in others. This is very common in Functional Capacity Evaluations. If he is strong is some areas, they will naturally read so. If they are weak in other areas, they will naturally read deficient. This is so for [Claimant], and that was the rationale for [Claimant’s] referral to a Work Hardening Program. . . .The bottom line is this; [sic] [Claimant] was in extreme pain when he presented to me. During his therapy and treatment with me he progressed very nicely and at a better than expected pace. He was transitioned into a Work Hardening program where he continued to progress and get stronger, more able to do his job duties. All treatment was very beneficial and within the guidelines set by the TWCC. (Exh. 1, p. 168).

Daily treatment and patient response to treatment must be documented during the work hardening program. Medicine Ground Rule II.E.8. Although somewhat conclusory, Dr. Allen’s statements were supported by the daily progress reports and SOAP notes included in the record for the period of time before, during, and after Claimant entered the work hardening program, as well as the results of his pre-and-post-program FCEs. The daily progress reports and SOAH notes, which tracked Claimant’s progress before, during, and after the program, described his pain level, his response to treatments, his work-hardening activities, and his progress in the program. This documentation sufficiently refuted Petitioner’s claims that Provider failed to document the rationale for Claimant’s participation in the work hardening program.

Claimant’s FCE results showed his condition improved enough during the work hardening program to justify his participation. On July 28, 2000, an FCE showed Claimant did not meet the Department of Labor standards for strength to perform light duty tasks. (Exh. 1, pp. 194). During the work hardening program, Claimant’s physical abilities needed to be tested again with an FCE to see if he had improve enough to be released to work. Claimant’s FCE results on September 7, 2000, showed he met the light duty strength standards after completing the work hardening program. (Exh. 1, p. 283). This change in physical abilities was a significant improvement and met the required criteria for his participation in the program.

To be reimbursable, the work hardening program was not required to cure Claimant, as claimed by Petitioner. As long as the program either relieved his pain or enhanced his ability to return to work, it qualified as reasonable, medically necessary health care. In this case, after the work hardening program, Claimant’s condition had improved enough to enable him to perform light duty work. This improvement was sufficient to show the work hardening program enhanced Claimant’s ability to return to work.

Petitioner failed to meet its burden to show that the MRD findings and decision were incorrect. Petitioner should pay Provider for the work hardening services provided Claimant from July to September 2000.

III. FINDINGS OF FACT

  1. In_____, ___ (Claimant) fell on his buttocks, sustaining an injury to his back, right elbow, and neck that was compensable under the Texas Workers’ Compensation Act (Act).
  2. At the time of Claimant’s compensable injury, Texas Builders’ Insurance Company (Carrier) was the workers’ compensation insurer for Claimant’s employer.
  3. In June 2000, Claimant began receiving chiropractic care from Dr. Dean Allen, D.C. for ongoing pain.
  4. On July 28, 2000, Claimant underwent a functional capacity evaluation (FCE) that showed Claimant was unable to perform even light duty work.
  5. In July 2000, Dr. Allen referred Claimant to a work hardening program at Bridgestone Healthcare Management’s (Provider) clinic.
  6. Claimant participated in the work hardening program from August 1 through September 7, 2000.
  7. An FCE dated September 7, 2000, after Claimant completed the work hardening program showed Claimant was able to perform light duty work.
  8. Dr. Allen and Provider’s staff prepared daily progress reports and SOAP notes documenting Claimant’s physical status, activities, pain levels, and progress for treatment before, during, and after the work hardening program.
  9. Provider’s documentation showed that Claimant’s participation in the work hardening program was intended to, and did, reduce his pain and enhance his ability to return to work.
  10. Claimant’s September 7, 2000, FCE was necessary to measure the change in his physical capacities during the work hardening program.
  11. Petitioner declined to reimbursement Provider for the work hardening services billed under CPT codes 97545-WH and 97546-WH from August 1 through September 7, 2000, and the September 7, 2000, FCE billed under CPT code 97750-FCE.
  12. Petitioner timely appealed the Commission’s Medical Review Division’s award of reimbursement to Provider for the disputed services.
  13. Pursuant to the notice of hearing issued by the Commission, Petitioner and Provider appeared or were represented at the hearing in this matter. The Commission waived its appearance at the hearing.

IV. CONCLUSIONS OF LAW

  1. 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.
  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 § 413.031(d) of the Act and TEX. GOV'T CODE ANN. ch. 2003.
  3. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV'T CODE ANN. ch. 2001 and the Commission’s rules, 28 TEX.ADMIN.CODE (TAC) § 133.305(g).
  4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§ 2001.051 and 2001.052.
  5. Petitioner has the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i).
  6. 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).
  7. 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).
  8. Work hardening is defined in 28 TAC§ 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
  9. Petitioner failed to show that the work hardening services billed under CPT codes 97545-WH and 97546-WH from August 1 through September 7, 2000, and the functional capacity evaluation (FCE) billed under CPT code 97750-FC on September 7, 2000, for claimant, J.T. provided by Provider were not reasonable or necessary health care.
  10. Petitioner should reimburse Provider for the services to Claimant from August 1 through September 7, 2000.

ORDER

IT IS ORDERED that Texas Builders Insurance reimburse Bridgestone Healthcare Management for the work hardening services billed under CPT codes 97545-WH and 97546-WH from August 1 through September 7, 2000, and for a September 7, 2000, functional capacity evaluation (FCE) billed under CPT code 97750-FC for claimant,___.

Signed this 15th day of May 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

ANN LANDEROS
Administrative Law Judge

  1. See, TEX. LAB. CODE ANN. § 410.006(b) and 28 TAC § 150.3, which allow a Carrier to be represented by a licensed insurance adjuster.
  2. The scope of the issues in dispute was established by the chart filed by Petitioner on April 8, 2002.
  3. The rule and Medicine Ground Rule II.E. both state: 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.
End of Document
Top