DECISION AND ORDER

Petitioner Suhail S. Al-Sahli, D.C., appealed from the Findings and Decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission or TWCC). The MRD determined that Dr. Al-Sahli was not entitled to reimbursement for work hardening and office visits provided to Claimant ____because the services provided were not sufficiently documented. This decision concludes that Dr. Al-Sahli sufficiently documented the medical necessity of the work hardening program, but not the office visits.

I. PROCEDURAL HISTORY, NOTICE, AND JURISDICTION

The hearing on the merits was held on June 12 and October 17, 2002, in Austin, Texas at the State Office of Administrative Hearings (SOAH), William P. Clements Office Building, 300 W. 15^th Street, Austin, Texas, with Administrative Law Judge (ALJ) Katherine Smith presiding. Dr. Al‑Sahli appeared pro se. Respondent American Home Assurance Co. (Carrier) appeared through its attorney, Rebecca Strandwitz. The Commission did not appear. At the hearing Dr. Al-Sahli was allowed to introduce additional documentation into evidence including an initial functional capacity evaluation (FCE) and treatment notes. Petitioner Ex. 1. The parties did not contest notice or jurisdiction.

II. BACKGROUND

Claimant sustained a work-related injury on_____, when a piece of concrete fell on his left shoulder. The shoulder was operated on twice, the last of which was on November 18, 1998. Claimant sought treatment from Dr. Al-Sahli in February 2000. Dr. Al‑Sahli referred Claimant to work hardening and treated him with manipulations during several office visits. Carrier denied reimbursement for the work hardening and the office visits, deeming the treatments to be medically unreasonable or unnecessary. Dr. Al‑Sahli submitted a request for Medical Dispute Resolution of the denial to the Commission on July 30, 2001. The MRD issued its decision on January 9, 2002. It denied reimbursement for dates of service from April 10 through July 28, 2000, because the request for reimbursement of those services was not filed within one year of the dates of service as required by 28 Tex. Admin. Code (TAC) § 133.305(d)(1).^[1] The MRD also denied reimbursement for services provided from July 31, 2000, to March 19, 2001, because of lack of documentation. Dr. Al-Sahli appealed the decision on January 28, 2002, and the Commission issued its Notice of Hearing on April 8, 2002.

At issue in this proceeding are 13 work hardening sessions provided from July 31 to August 18, 2000; three office visits of December 28, 2000, February 19, 2001, and March 19, 2001; and a psychiatric evaluation and report rendered on March 1, 2001. Dr. Al-Sahli also billed for manipulations provided during the office visits of December 28, 2000, and March 19, 2001, and billed for physical therapy provided during the office visit of March19, 2001.

III. DISCUSSION

A. Work Hardening

Dr. Al-Sahli’s Position

With the submission of Petitioner Ex. 1, Dr. Al-Sahli contends there is sufficient documentation to establish the medical necessity of the work-hardening program because the documentation shows substantive, continued improvement over time. He also points out that even though Carrier denied reimbursement for the first six weeks of work hardening in question, it preauthorized two subsequent weeks of work hardening for which it paid. Although Claimant may have reached statutory maximum medical improvement (MMI), Dr. Al-Sahli points to the records of Keith Bergeson, D.C., the designated doctor making the impairment rating, who stated that Claimant still exhibited limited range of motion, loss of strength, and chronic pain associated with the injury that affected Claimant’s ability to work. TWCC Ex. 1 at 175-76. Relying on the August 9, 2000, medical record of Moshe Allon, M.D., Dr. Al-Sahli points out that Claimant had several trigger points and severe recurrence of pain. Id. at 120.

Carrier’s Position

Carrier argues that work hardening was not warranted because Claimant reached MMI at the latest in July 1999. Carrier’s expert witness, Art Keller, D.C., testified that when Claimant reached MMI in1999, the record indicates he had full range of motion, no spasms, and no atrophy, and therefore no need for work hardening. Id. at 171. Dr. Keller also testified that the record reflects that Claimant’s pain was poorly accounted for, which suggests symptom magnification. Id. 1 at 121, 151, 162, 171. Dr. Keller noted that Claimant had had extensive previous treatment, including physical therapy and chiropractic care. With the extreme amount of care that Claimant received and with range of motion resumed, work hardening was not necessary. And even assuming that work hardening was reasonable at that late date, Dr. Keller stated that insufficient documentation was provided to support reimbursement. Dr. Keller testified that the work hardening notes were not specific about the treatment provided; the psychotherapy notes were vague; and Claimant’s responses were general. Most importantly, there was no input from Claimant’s employer describing the requirements of Claimant’s job so that treatment could be designed to meet his needs. Dr. Keller also complained that Claimant’s failure to attend one session a week for four weeks out of the six showed non-compliance and lack of motivation that would limit the benefit derived from the program and affect improvement.

ALJ’s Analysis

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 and intended to address the functional, physical, behavioral, and vocational needs of the injured worker. The Commission has adopted rules governing work hardening programs. The rules, found in the Medical Fee Guideline (MFG) and Upper Extremities Treatment Guideline (UETG) relate to, among other things, when work hardening is appropriate.^[2]

Although the MRD found that the work hardening program in question appeared to be multi-disciplinary, it also found that the program was not in compliance with the daily documentation requirements for such a program. Because the provider failed to submit documentation establishing the patient’s functional level before the work hardening program, such as with an FCE, and failed to provide documentation of the daily treatment and the patient’s response to the treatment and progress, the MRD determined that medical necessity of the work hardening program was not established.

With the submission of Petitioner Ex. 1, the ALJ finds that Dr. Al-Sahli sufficiently addressed the inadequacies raised by the MRD. An initial FCE was performed, which noted objective findings. Daily notes indicate the duration of each activity. Claimant’s time in and out each day was noted. Although the ALJ shares Carrier’s concern that there was minimal response from the Claimant to his treatment, at least an attempt was made to engage him in the process. Although Carrier criticizes Claimant’s compliance by pointing to a number of missed sessions and attendance for only six hours one day (TWCC Ex 1 at. 98), the ALJ notes that MFG Medicine Ground Rule II.E.3. requires only four hours of participation a day. Moreover, the few days Claimant missed for medical treatment did not establish a pattern of non-compliance. The documentation supports improvement. The documentation also includes a detailed description of the duties of Claimant’s job and goals to return Claimant to work. Petitioner Ex. 1; TWCC Ex. 1 at 73-76. The plan was to advance Claimant to the medium level required of a warehouse worker.TWCC Ex. 1 at 78. Even Dr. Keller admitted that Claimant’s improvement from his initial sedentary demand level to a light-medium demand level indicated progress. Although Carrier complains that much of Claimant’s treatment occurred to body parts that were not compensable, the ALJ agrees with Dr. Al-Sahli that one cannot isolate treatment to one body part and that it was reasonable to treat the whole body so that Claimant could learn better ways of performing work-related duties.

Carrier does not appear to contest Dr. Al-Sahli’s assessment that Claimant was in the tertiary level of care, which is described in UETG Ground Rule(f)(2)(C). The tertiary level addresses the injured worker who demonstrates physical and psychological changes consistent with a chronic condition and who has a documented history of persistent failure to respond to nonoperative or operative treatment and psychosocial issues such as substance abuse. The record reflects that Claimant had developed a drug dependency and psychological problems. Id. at 162-63.

Although the ALJ recognizes that pain magnification may have been occurring in Claimant’s case, which suggests that Claimant would not benefit from the treatment, a number of practitioners indicated that September 2000 was a reasonable time for the date of resolution and end of treatment. Id. at 153-4; Dr. David McLennan’s report of medical evaluation dated September 18, 2001, in Petitioner Ex. 1.

B. Office Visits and Chiropractic Manipulations

As noted, a number of practitioners, including one relied on by Dr. Al-Sahli, state that September 2000 was a reasonable time for end of treatment, which brings into question reimbursement for the office visits of December 28, 2000, February 19 and March 19, 2001, and the billing for a psychiatric evaluation and report on March 1, 2001. Dr. Al-Sahli testified that during the four visits in question he coordinated referrals, discussed future plans, and performed manipulations to keep Claimant from deteriorating further. Dr. Keller questioned, however, the medical necessity of chiropractic manipulations because the record reflects that Claimant previously received extensive chiropractic manipulation treatment that provided little improvement. With a history of failed chiropractic treatment, the notes should have been more specific as to why the care was necessary. Dr. Keller stated further that unless there was an acute exacerbation of Claimant’s condition, there was no medical reason to provide manipulations, a form of passive treatment, at this late stage in Claimant’s treatment.

The ALJ agrees with the Carrier that at this stage in Claimant’s care, more documentation was required. The medical notes are cursory and virtually identical for each visit. TWCC Ex. 1 at 71. Furthermore, there is no indication that any psychological evaluation occurred on March 1, 2001, because there is no report in the record. Nor is there any record of physical therapy being provided on March 19, 2001. Nor is there any mention of referrals.

C. Conclusion

The ALJ, therefore, concludes that no reimbursement is required for the treatments provided on December 28, 2000 and February 19, March 1, and 19, 2001, because the documentation does not show that the services were provided and does not support the medical necessity of those services. The ALJ also concludes, however, that reimbursement is required for the 13 work hardening sessions provided from July 31 to August 8, 2000, because the documentation supports the medical necessity of the program.

IV. FINDINGS OF FACT

1. Claimant_____. sustained a work-related injury on ____ when a piece of concrete fell on his left shoulder.
2. At the time of the injury, Claimant’s employer had its workers’ compensation insurance through American Home Assurance Co. (Carrier).
3. Claimant sought treatment from Suhail Al-Sahli, D.C., in February 2000.
4. Dr. Al‑Sahli referred Claimant to work hardening, which occurred from April to August 2000, and treated him during four office visits occurring on December 28, 2000, and February 19, March 1 and March 19, 2001.
5. Carrier denied reimbursement for the work hardening and the office visits, deeming the treatments to be medically unreasonable or unnecessary.
6. Dr. Al‑Sahli submitted a request for Medical Dispute Resolution of the denial to the Texas Workers’ Compensation Commission (Commission) on July 30, 2001.
7. The Commission’s Medical Review Division (MRD) issued its decision on January 9, 2002.
8. The MRD denied reimbursement for work hardening provided from April 10 through July 28, 2000, because the request for reimbursement of those services was not filed within one year of the dates of service. That finding is not contested.
9. The MRD also denied reimbursement for work hardening provided from July 31 to August 18, 2000, and the four office visits of December 28, 2000, and February 19, March 1 and March 19, 2001, because Dr. Al-Sahli failed to provide documentation supporting the medical necessity of the services provided.
10. Dr. Al-Sahli appealed the decision on January 28, 2002.
11. The Commission issued a Notice of Hearing on April 8, 2002. The 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 in the matter.
12. Claimant was in the tertiary level of care. The tertiary level is designed for the injured worker who demonstrates physical and psychological changes consistent with a chronic condition and who has a documented history of persistent failure to respond to nonoperative or operative treatment and psychosocial issues such as substance abuse. Claimant had developed a drug dependency and psychological problems.
13. Work hardening is an appropriate treatment during the tertiary level of care.
14. As preparation for the work hardening program, Dr. Al-Sahli performed an initial functional capacity evaluation, which noted objective findings.
15. Daily notes were made during the work hardening program documenting Claimant’s progress, including the duration of each activity and Claimant’s time in and out. An attempt was made to engage Claimant in the treatment process.
16. The documentation supports improvement and indicates that goals were set to return Claimant to work. The plan was to advance Claimant to the medium level required of a warehouse worker.Claimant’s improvement from his initial sedentary demand level to a light-medium demand level indicated progress.
17. September 2000 was a reasonable time for the date of resolution and end of treatment.
18. Insufficient documentation was provided establishing the medical need for the office visits of December 28, 2000, and February 19, and March 1, and 19, 2001, manipulations and physical therapy provided during those visits. The medical notes are cursory and virtually identical for each visit.
19. No documentation exists showing that a psychological evaluation occurred on March 1, 2001.
20. No documentation exists showing that a physical therapy was provided on March 19, 2001.

V. 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(k) and Tex. Gov’t Code Ann. ch. 2003.
3. Dr. Al-Sahli requested a hearing, 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. Dr. Al-Sahli had the burden of proving by a preponderance of the evidence, pursuant to 28 TAC § 148.21(h) and (i), that the services provided were medically necessary and should be reimbursed.
6. An employee who has sustained a compensable injury is entitled to all health care reasonably required by the nature of the compensable 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. Ground Rule (e)(2)(A) of the Upper Extremities Treatment Guideline, 28 TAC § 134.1002, (UETG) establishes that treatment of a work related injury must be adequately documented.
8. Ground Rule (f)(2)(C) of the UETG, states that the tertiary “level of care is . . . designed for the injured worker who demonstrates physical and psychological changes consistent with a chronic condition. . . . This level includes a documented history of persistent failure to respond to nonoperative or operative treatment which surpasses the usual healing period for that injury. Psychological issues such as substance abuse, affective disorders, and other psychological disorder may be present. This level of care is indicated by a documented inhibition of physical functioning evidenced by pain sensitivity.”
9. Based on Findings of Fact Nos. 12 – 17 and Conclusions of Law Nos. 6 – 8, Dr. Al-Sahli met his burden of showing that the work hardening program provided from July 31 to August 18, 2000, was medically necessary.
10. Based on Findings of Fact Nos. 17 – 20 and Conclusions of Law Nos. 6 and 7, Dr. Al-Sahli failed to meet his burden of showing that the treatments provided during the office visits of December 28, 2000, and February 19, and March 1, and 19, 2001, were medically necessary.

ORDER

It is hereby ordered that American Home Assurance Co. is not required to reimburse Dr. Al‑Sahli for the office visits of December 28, 2000, and February 19 and March 19, 2001, and a psychiatric evaluation and report rendered on March 1, 2001; but is required to reimburse Dr. Al‑Sahli for 13 work hardening sessions provided from July 31 to August 18, 2000.

Signed this 19^th day of February 2003.

.

KATHERINE L. SMITH
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. 133.307)d)(1). Because Dr. Al-Sahli provided no evidence or argument challenging MRD’s decision, that ruling is not addressed here.↑
2. 28 Tex. Admin. Code (TAC) 134.201 and 134.1002.↑