DECISION AND ORDER
This case is an appeal by the Hartford Underwriters Insurance Company (Petitioner) from a decision of the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) in a medical fee dispute. The MRD countermanded, in part, Petitioner’s denial of reimbursement for a program of work hardening, which Rehab 2112 (Respondent) provided in the treatment of a claimant suffering from a compensable work-related injury.
Petitioner challenged the MRD’s decision on the basis that a work hardening program for this claimant was not medically necessary, within the meaning of Sections 408.021 and 401.011(19) of the Texas Workers’ Compensation Act (the Act), TEX. LABOR CODE ANN. ch. 401 et seq., and that the program provided in this case failed to satisfy the criteria for work hardening programs set forth in the Commission’s Medical Fee Guideline (MFG), 28 TEX. ADMINISTRATIVE CODE (TAC) § 134.201.
This decision reverses that of the MRD, finding that Petitioner should not be required to reimburse Respondent $5,171.20 for the services at issue.
JURISDICTION AND VENUE
The Commission has jurisdiction over this matter pursuant to § 413.031 of the Act. The State Office of Administrative Hearings (SOAH) 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. No party challenged jurisdiction or venue.
STATEMENT OF THE CASE
The hearing in this docket was convened on August 28, 2002, at SOAH facilities in the William P. Clements Building, 300 W. 15th St., Austin, Texas. Administrative Law Judge (ALJ) Mike Rogan presided. Petitioner was represented by James Loughlin, Attorney. Respondent was represented by Douglas Pruett, Attorney. After the parties’ presentation of evidence and argument, the hearing was adjourned and the record was closed on August 28, 2002.
The evidence presented revealed that the claimant suffered a compensable injury to her right hip and lower back on _________, and complained of persistent pain thereafter. At the end of that year, as part of a rehabilitation effort, the claimant participated in a program of physical exercise therapy administered by Respondent but did not complete all 12 of the scheduled exercise sessions.
From January 16 to February 16, 2001, the claimant participated in a work hardening program administered by Respondent. Again, however, the claimant did not complete the entire program, failing to attend approximately the last two weeks. Respondent billed $7,404.00 for the sessions that the claimant did attend. Petitioner, the insurance carrier for the claimant’s employer, denied payment. Almost all of the individually billed service items in dispute were denied on the basis that they were medically unnecessary. In a filing dated July 26, 2001, Respondent sought a dispute resolution review before the MRD.
The MRD issued a decision on January 11, 2002, concluding that available medical records showed Respondent entitled to $5,171.20 in reimbursement. Petitioner effected a timely appeal from the MRD’s decision.
THE PARTIES’ EVIDENCE AND ARGUMENTS
Petitioner made two principal arguments, as follows:
- A work hardening program was medically unnecessary in this particular case, based upon the overall context of the case and upon physicians’ evaluations.
- The record does not demonstrate that Respondent’s work hardening program satisfied the criteria specified in the MFG. In particular, Petitioner asserted, the program appeared to be a one‑dimensional regime of physical therapy, rather than interdisciplinary; treatment was not provided in the least intensive and most cost-effective setting possible; the treatment resulted in no substantive improvement to the claimant’s condition; and no exit/discharge summary was prepared at the end of the program.
Dr. Samuel M. Bierner, a board-certified practitioner in physical medicine and rehabilitation who has served as the director of a work hardening program, testified for Petitioner. He stated that work conditioning or work hardening programs are appropriate when a patient is de-conditioned due to serious injury and must overcome such condition to return to a relatively strenuous job. In this case, though, Dr. Bierner concluded that the claimant should not have been de-conditioned having participated in several sessions of physical therapy shortly after her injury and immediately before entering the work hardening program and that the claimant’s job, as a cake decorator, was not strenuous.
Dr. Bierner’s most emphatic criticism questioned the validity of the functional capacity evaluation (FCE) that assessed the claimant’s physical condition at the outset of the work hardening program. On this FCE (January 16, 2001), Dr. Bierner rated the claimant’s performance in some respects as worse even than that of typical patients who have recently endured back surgery, indicating that the claimant had not given an honest effort on the physical tests. He noted that on Waddell Signs testing designed to determine the sincerity of effort by patients with lower back injuries the claimant showed three out of five positive signs. Respondent’s own standardized form for recording Waddell Signs results states: If three or more of the categories are positive then the findings are clinically significant for non-organic back pain and further psychological investigation is warranted.
Indeed, the MRD decision in this case cited (with apparent acceptance at face value) the following conclusions about the initial FCE by Petitioner’s peer review physician, Dr. Dorothy Ann Leong:
The FCE results are quite clear that this individual did not give an optimal effort on the FCE. . . . Given the FCE results, it is not appropriate to determine that a work hardening program was reasonable and medically necessary as it related to the injury date of 10/22/00.
The MRD also quoted the FCE report itself, which stated, Her [claimant’s] subjective complaints were inconsistent with the physiological findings. . . The decision then acknowledged, Much of this FCE report indicated that the information obtained was not valid because of less than maximum effort being given by the injured worker. Nonetheless, the MRD found that because the program’s second FCE (on February 9, 2001) reflected generally consistent effort by the claimant, with significant improvement in most test scores, the overall results supported the medical necessity of work hardening in this case. Dr. Bierner, on the other hand, asserted that the lack of reliable results from the first FCE wholly undermined the usefulness of the second FCE for comparing performance and assessing improvement.
According to Dr. Bierner, lack of effort on an FCE often augurs poor motivation and poor performance in a subsequent work hardening program. That pattern was borne out in this case, he asserted, as a number of the daily reports from the program reflect the claimant’s lethargy and pain focus or minimal participation. The claimant missed or arrived late for a number of sessions, then quit the program about two weeks early. No final FCE was performed and no exit/discharge summary was prepared.
Dr. Bierner further stated that the records show no psychological component of the claimant’s condition that would have required special attention in the interdisciplinary format of an integrated work hardening program. No report providing a psychological analysis of the patient was performed before placing her in the program.
Respondent argued that the claimant could not have returned to work without work hardening. Respondent noted that the claimant’s job (cake decorator) was rated at a work demand level of medium, according to the Dictionary of Occupational Titles. However, her initial FCE showed her capable of performing at a less than sedentary level. After three weeks of work hardening, her second FCE revealed an overall capability at the light level, thus indicating significant improvement and confirming that she had been a good candidate for the program.
Dr. Michelle Ivey, a chiropractor and clinic director for Respondent, testified that the claimant’s apparent tendencies toward pain magnification and simulation would in no way disqualify her for participation in work hardening. Rather, those attitudinal aspects represent the kind of barriers to returning to work the results of fear or other psychological difficulties that the behavioral treatment in a work hardening program are intended to address. In this case, the treatment received by the claimant included four half-hour group counseling sessions with a social worker.
Respondent also cited a report, dated April 23, 2001, by one of Petitioner’s own reviewing physicians, Dr. Theodore Parsons, who concluded that the claimant had not yet reached maximum medical improvement and, until doing so, should be limited to work in a light or sedentary capacity.
The certified record compiled by the Commission i.e., the MRD’s Findings and Decision, with accompanying documents, totaling 177 pages was admitted into evidence as Exhibit 1.
The ALJ believes that the record establishes at least three significant deficiencies with respect to the disputed work hardening program, as noted below.
Lack of medical necessity; failure to establish compliance with entrance criteria. In the ALJ’s view, Petitioner has established that the supposedly measured improvement between the claimant’s first and second FCEs cannot logically serve as the very linch-pin for conclusions that work hardening was necessary in this case, when the validity of the first FCE has been so generally discredited. The MRD, too, apparently acknowledged that the first FCE provided no reliable information, but it concluded that the second FCE compensated for that gap. However, the second FCE cannot reasonably reflect improvement when no plausible baseline exists against which to measure such improvement. Under these circumstances, the medical necessity for work hardening has not been established, nor has Respondent satisfied MFG Medicine Ground Rules (II)(E)(1)(a), which requires that Entrance/admission criteria shall enable the program to admit: . . . persons who are likely to benefit from the program. The apparent lack of genuine effort on the claimant’s part during the testing included in the first FCE prevented Respondent from actually determining whether she was so lacking in current physical capacity as to need work hardening. The claimant’s subsequent lack of commitment to participating in the program also indicates that she may have lacked the motivation or attitude necessary in a person likely to benefit from the program a circumstance that Respondent should have suspected and considered after her lackadaisical performance on the first FCE.
Lack of exit/discharge summary.MFG Medicine Ground Rules (II)(E)(10) indicates, as a required element of a work hardening program, that Exit/discharge summary shall delineate the injured worker’s: . . . present functional status and potential, and . . . functional status related to the targeted job, alternative occupations, or current job availability. The record does not indicate that Respondent even attempted to produce such a summary, which also prevents any confident determination as to what exit/discharge criteria the Respondent applied, pursuant to MFG Medicine Ground Rules (II)(E)(9).
Inadequacy of work simulation. MFG Medicine Ground Rules (II)(E) states, Work hardening programs use real or simulated work activities in a relevant work environment. . . Similarly, Ground Rules (II)(D) states that work conditioning is a program using real or simulated work activities in conjunction with conditioning tasks. In the ALJ’s view, therefore, the work simulation in a conditioning or hardening program must be sufficient to recreate at least some of the most crucial, salient aspects of the claimant’s work, such as the fundamental physical motions involved, the duration of exertion, and the relevant dimensions of the workplace. However, nothing in the record to which the ALJ’s attention has been directed specifically describes how the programs at issue in this case included even the most superficial simulations of the claimant’s actual work.
The ALJ finds that, under the record provided in this case, the work hardening program provided by Respondent for the claimant’s treatment was medically unnecessary and inconsistent with the requirements of the MFG. Accordingly, in contravention of the MRD’s initial determination in this matter, Petitioner should not be required to reimburse Respondent $5,171.20 for such services.
FINDINGS OF FACT
- On____________, claimant suffered an injury to the right hip and lower back that was a compensable injury under the Texas Worker’s Compensation Act (the Act), TEX. LABOR CODE ANN. § 401.001et seq. Subsequent to the injury, claimant complained of persistent pain.
- In the course of rehabilitation from her injury, the claimant was referred to a work hardening program administered by Rehab 2112 (Respondent). Claimant participated in that program from January 16 through February 16, 2001.
- Respondent sought the reimbursement of $7,404.00 for the program noted in Finding of Fact No. 2 (and for related services) from the Hartford Underwriters Insurance Company(Petitioner), the carrier for the claimant’s employer.
- Petitioner denied the requested reimbursement.
- By filing dated July 26, 2001, Respondent made a timely request to the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) for medical dispute resolution with respect to the requested reimbursement.
- The MRD countermanded Petitioner’s denial of reimbursement, in part, approving reimbursement of $5,171.20, in a decision dated January 11, 2002, in dispute resolution docket No. M5-01-2457-01.
- Petitioner requested in timely manner a hearing with the State Office of Administrative Hearings, seeking review and reversal of the MRD decision regarding preauthorization.
- The Commission mailed notice of the hearing’s setting to the parties at their addresses on April 2, 2002.
- A hearing in this matter was convened on August 28, 2002, at the William P. Clements Building, 300 W. 15th St., Austin, Texas, before Mike Rogan, an Administrative Law Judge with the State Office of Administrative Hearings. Petitioner and Respondent were represented.
- The dates of the work hardening program at issue in this case were January 16 through February 16, 2001.
- In the initial functional capacity evaluation (FCE) associated with the work hardening program at issue in this case (on January 16, 2002), the claimant failed to make a genuine effort in the testing, thus negating the reliability of any information obtained from that FCE.
- 12Respondent did not produce an exit/discharge summary for the claimant at the end of her participation in the work hardening program.
- The work hardening program in which the claimant participated did not include specific real or simulated work activities related to her job as a cake decorator.
CONCLUSIONS OF LAW
- The Texas Workers’ Compensation Commission has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act (the Act), TEX. LABOR CODE ANN. § 413.031.
- 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.
- The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV'T CODE ANN. ch. 2001 and the Commission’s rules, 28 TEX. ADMINISTRATIVE CODE (TAC) § 133.305(g) and §§ 148.001-148.028.
- Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§ 2001.051 and 2001.052.
- Petitioner, the party seeking relief, bore the burden of proof in this case, pursuant to 28 TAC § 148.21(h).
- Based upon the foregoing Findings of Fact, the treatments for the claimant noted in Finding of Fact No. 2 were not medically necessary.
- Based upon the foregoing Findings of Fact, the treatments for the claimant noted in Finding of Fact No. 2 (to the extent approved for reimbursement by the MRD, as noted in Finding of Fact No. 6) did not meet criteria for work conditioning and work hardening programs contained in the Commission’s Medical Fee Guideline, 28 TAC § 134.201, Medicine Ground Rules (II)(E).
- Based upon the foregoing Findings of Fact and Conclusions of Law, the Findings and Decision of the Medical Review Division, issued in this matter on January 11, 2001, are reversed; reimbursement of $5,171.20 for the services noted in Conclusion of Law No. 6, to be paid for by the Hartford Underwriters Insurance Company, should be denied.
IT IS THEREFORE, ORDERED that the order of the Medical Review Division of the Texas Workers’ Compensation Commission, issued in this matter on January 11, 2001, be reversed, and that Respondent Rehab 2112 be denied the reimbursement of $5,171.20 from Petitioner Hartford Underwriters Insurance Company for work hardening services provided to a claimant under the Texas Workers’ Compensation Act.
Signed this 18th day of September, 2002.
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- The staff of the Commission was initially designated as a Respondent in the proceeding but formally elected not to participate, although it filed a Statement of Matters Asserted that recommended upholding the MRD’s decision.↑