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At a Glance:
June 21, 2002
Retrospective Medical Necessity


June 21, 2002



Nationwide Health (the Provider) sought reimbursement for work hardening services provided Claimant__. American Home Assurance Company (the Carrier) denied payment indicating the services were not medically necessary per peer review. The Medical Review Division (MRD) of the Texas Workers’ Compensation Commission reviewed the claim and denied reimbursement. The Provider appealed the MRD’s order.

On May 21, 2002, Ruth Casarez, Administrative Law Judge (ALJ), convened the hearing at the William P. Clements Building, 300 West 15th Street, Austin, Texas. Attorney Steven Tipton represented the Carrier. Provider’s employee, Leon Fazzio III, D.C., represented the Provider. The Commission was not represented. The parties did not contest notice or jurisdiction. After evidence was presented, the ALJ closed the hearing on May 21, 2002.


Dr. Fazzio introduced a copy of the MRD’s certified record into evidence and testified concerning the services that were provided. The Carrier presented the testimony of Arthur Keller, M. D. The issue is whether the Provider’s services constituted a work hardening program and, thus, entitled Provider to reimbursement of $9,739.40.

On_____, while hammering to remove a form, Claimant, a carpenter’s helper, felt a sharp pain in his right hand. Eventually, the pain progressed to his elbow, upper arm, and right side of the neck. After receiving several months of conservative treatment (hand therapy and medications) from Dr. Fazzio, he was referred to Momentum Rehab for a functional capacity evaluation(FCE), which was conducted on February 6, 2001. The Provider indicated that based on the recommendation in the FCE report, Claimant was enrolled in Provider’s work hardening program.[1] Claimant participated in the program from February 5, 2001, through March 29, 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 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 providers.[2]

The MRD’s decision found the Provider did not show that the services provided Claimant were interdisciplinary in nature and denied payment of the claim.

Dr. Fazzio pointed out the certified record contained extensive documentation of the various helpful exercises and activities that Claimant performed while enrolled in the program and argued the services had helped Claimant. The Provider’s documentation, which consists mainly of daily office visit SOAP notes,[3] reveals that all the services provided during the program were rendered by Dr. Fazzio. The notes reflect Claimant participated in the following types of activities during the seven weeks: lifting and carrying; standing and walking; pushing and pulling; stooping; squatting; repetitive reaching; sustained reaching; and range of motion (ROM) exercises to maintain joint and soft tissue integrity. They do not, however, specify the total number of hours that Claimant spent in the program each day, which activities and exercises he performed on which particular days, the duration of the activities, or Claimant’s response to the activities. In addition, the notes do not include a comprehensive treatment plan with stated goals, which should describe (a) Claimant’s job duties and the job simulation activities that he would perform during the program; (b) Claimant’s condition at the start of the program; and (c) the improvement that was projected at the end of the program that would allow his return to work. Medicine Ground Rule II. E. 6 of the MFG requires that such a treatment plan be prepared for a person in a work hardening program. Similarly, Provider’s documentation did not include an interim FCE or a final, discharge FCE report, which reported what progress, if any, Claimant had made during the program or whether Claimant was fit to return to his job at the conclusion of the program.

Further, the documentation did not indicate that the services provided addressed Claimant’s behavioral or vocational needs, or whether he had such needs that required work hardening services in the first place. Dr. Fazzio testified he was the only health care professional who worked with Claimant during the entire seven-week program. He admitted he had no training or qualifications in the areas of behavioral, mental or vocational counseling, and that no other professional with expertise in those areas had been brought in to work with Claimant. Dr. Fazzio testified he discussed Claimant’s desire to return to work, as well as any fears of re-injury that Claimant might have had, but the question of changing jobs never came up, so a change in vocation was not discussed. Dr. Fazzio implied that such discussions met the requirement that work hardening be interdisciplinary.

The MRD officer found the services provided during the seven weeks appeared to be nothing more than an extension of the physical therapy that Dr. Fazzio had previously rendered to Claimant. The ALJ agrees. The evidence presented by Provider did not establish the services provided met the definition of or requirements of the work hardening provisions in the MFG Medicine Ground Rule II. E.

Because the ALJ concentrated on the Provider’s evidence to determine if it had met its burden of proof and because the Provider did not meet the burden, there is little, if any, discussion about the evidence the Carrier introduced. The facts and reasoning in support of this decision are set forth in the findings of fact. The legal conclusions derived from those facts appear in the conclusions of law.


  1. Claimant, a carpenter’s helper, sustained an injury to the right wrist, elbow and arm in a work-related accident on _____.
  2. At the time of the injury, Claimant’s employer, _____, had its workers’ compensation insurance through American Home Assurance Company (the Carrier).
  3. Leon Fazzio III, D.C., initially examined Claimant on November 15, 2000, and diagnosed him with sprain/strain to the right wrist, elbow and neck. He treated Claimant conservatively with hand therapy and medication for the following several months.
  4. Dr. Fazzio referred Claimant to Momentum Rehab for a functional capacity evaluation (FCE), which was conducted on February 6, 2001. The FCE report recommended Claimant participate in a four to six-week work hardening program that would include: (a) stretching and fitness exercises; (b) work simulation activities with focus on job performance activities; and (c) educational classes in group stress management.
  5. Claimant was enrolled in Nationwide Health’s (Provider’s) work hardening program. Dr. Fazzio, who worked for Provider, continued to treat Claimant, although he classified the services that began on February 5, 2001, as work hardening.
  6. The primary goal of work hardening is to prepare an individual to return to work.
  7. Claimant participated in Provider’s work hardening program from February 5, 2001, through March 29, 2001. Examples of activities that Claimant performed during that period included: lifting and carrying; standing and walking; pushing and pulling; stooping; squatting; repetitive reaching; sustained reaching; and range of motion (ROM) exercises.
  8. The only health care professional who worked with Claimant during the program was Dr. Fazzio, who had no training or qualifications in the areas of behavioral, mental, or vocational counseling.
  9. Dr. Fazzio’s discussions with Claimant about returning to his carpenter’s helper job and Claimant’s fear of re-injury do not constitute behavioral or vocational counseling.
  10. No evidence was presented that Dr. Fazzio or anyone else with Provider discussed stress management with Claimant, either in a group or individual setting.
  11. No evidence was presented that Dr. Fazzio or any other employee of the Provider prepared an individualized treatment plan that established specific goals for Claimant to achieve in the work hardening program or specific job simulation activities or exercises Claimant would have to complete to meet the program goals.
  12. No evidence was presented that detailed the number of hours per day that Claimant participated in the work hardening program or that included the following: (a) Claimant’s performance of specific tasks; (b) duration of the tasks performed; (c) what, if any, progress Claimant had made; and (d) what, if any, changes needed to be made in the treatment plan, considering Claimant’s progress or lack thereof.
  13. No evidence was presented that an interim or discharge FCE was conducted to assess Claimant’s progress during the work hardening program or whether changes were needed in the treatment plan.
  14. Dr. Fazzio’s SOAP notes indicated that Claimant did not participate in the work hardening program on seven days during the seven-week period, without indicating any explanation for Claimant’s non participation on those days.
  15. The Provider submitted the claim to the Carrier in the amount of $9,739.40 for the services rendered to Claimant.
  16. The Carrier denied reimbursement of the claim, indicating the services were not medically necessary per peer review.
  17. On July 20, 2001, the Provider appealed the Carrier’s reimbursement denial to the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission).
  18. On December 14, 2001, the MRD concluded the documentation did not substantiate that the services provided were interdisciplinary in nature as required by the MFG Medicine Ground Rule II E, which relates to work hardening programs, and denied the Provider’s claim.
  19. On December 31, 2001, the Provider filed a request for a hearing regarding the disputed reimbursement.
  20. The Commission sent notice of the hearing to the parties on March 6, 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.
  21. The hearing was held on May 21, 2002. The Provider was represented by Dr. Fazzio, and the Carrier was represented by its attorney, Steven Tipton.


  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 the case by a preponderance of the evidence, pursuant to 28 TAC § 148.21(h) and (i).
  6. The Provider failed to prove that the services rendered to Claimant were interdisciplinary in nature according to the work hardening provisions of the Medical Fee Guideline (MFG) Medicine Ground Rule II. E. In particular, the Provider failed to prove the services met the requirements in Medicine Ground Rule II.E. 6 and 7.
  7. The Provider failed to meet the documentation requirements of MFG Medicine Ground Rule II. E. 8 - 10.
  8. Based on the foregoing findings of fact and conclusions of law, the Provider did not prove that its claim for $9,739.40 should be reimbursed.


It is hereby ordered that Nationwide Health’s claim is denied in its entirety.

Signed this 21st day of June 2002.

Administrative Law Judge
State Office of Administrative Hearing

  1. While Provider maintained Claimant was enrolled in work hardening based on the FCE recommendation, the records reflect Claimant began the work hardening program on February 5, 2001, before the FCE was conducted.
  2. See Medical Fee Guideline Medicine Ground Rule II. E. and 28 Tex. Admin. Code § 134.201.
  3. SOAP notes are narrative, usually hand-written notes made and maintained by a health care provider when a patient makes an office visit. “S” stands for subjective (patient’s description of condition); “O” stands for objective description (provider’s description, usually based on tests or examination performed by or at the direction of provider); “A”stands for the provider’s assessment; and “P” stands for the plan of treatment proposed by the provider.
  4. In the present case, the SOAP notes supplied to MRD by Dr. Fazzio appear to have been typed in very small print. The notes are extensive or complete for one day per week, e.g., 2/5/01 notes are much fuller than the notes for 2/6; 2/7; 2/9 (none for 2/8). Notes are full for 2/19, abbreviated for 2/22, and none for 2/20, 2/21, or 2/23. Notes are full for 2/26, abbreviated for 2/28; 3/01 and 3/02, none for 2/29. Notes are full for 3/5 but abbreviated for 3/6,3/7,3/8, and 3/9. Notes are full for 3/12, abbreviated for 3/13, 3/14, 3/15 and 3/16. Notes are full for 3/19, abbreviated for 3/21, 3/22, 3/23, 3/26, 3/27, and 3/29. There were no notes for 3/or 3/28.

End of Document