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At a Glance:
Title:
453-02-2315-m5
Date:
September 11, 2002
Status:
Retrospective Medical Necessity

453-02-2315-m5

September 11, 2002

DECISION AND ORDER

The primary question in this case is whether a work hardening program was necessary for the claimant, a 73-year-old restaurant worker who had suffered a shoulder injury. The total amount in dispute is $11,364.00.

The Administrative Law Judge (ALJ) concludes that the record fails to show the medical necessity of the work hardening program, and the provider is not entitled to reimbursement.

I. Jurisdiction, Notice, and Procedural History

The Texas Workers’ Compensation Commission (the Commission) has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers' Compensation Act (the Act). Tex. Lab. Code Ann. ch. 401 et seq. The State Office of Administrative Hearings (SOAH) has jurisdiction over this proceeding, including the authority to issue a decision and order. Tex. Lab. Code Ann. §413.031(d); Tex. Gov’t Code Ann. ch. 2003.

The Commission’s Medical Review Division (MRD) issued its decision February 13, 2002. The provider, Southwest Work Rehab (SWR), requested a hearing. Proper and timely notice of the hearing was issued April 2, 2002. The hearing was convened July 9, 2002, with ALJ Shannon Kilgore presiding. Mark Sprain appeared for SWR, and James Loughlin appeared for ZNAT Insurance Co. (ZNAT). The Commission did not participate in the hearing. The hearing was adjourned the same day. The record remained open for post-hearing briefing. The record closed on July 22, 2002.

II. Factual Background

The claimant in this case sustained a compensable shoulder injury on____________. He worked as a restaurant cleaner, and was injured when he slipped on a wet floor and landed on his right shoulder. He underwent surgery for a torn rotator cuff November 10, 2000. Both before and after the surgery, he participated in physical therapy.

On February 2, 2001, Marcus Hayes, D.C., administered a functional capacity examination (FCE) to the claimant. TWCC Exhibit 1, pp. 136-141. In an apparent error, Dr. Hayes classified the claimant’s job as sedentary rather than light duty. Dr. Hayes found that claimant had a “mild functional deficit,” including reduced range of motion involving the right shoulder. Dr. Hayes recommended an additional four to eight weeks of a progressive resistance activity program, followed by a Phase III work hardening/conditioning program, to bring the claimant up to the light physical demand level.

On February 26, 2001, Timothy Fahey, D.C., issued a report of his peer review concerning the claimant’s treatment. Dr. Fahey stated that a work hardening program would be inappropriately intensive for this claimant, but that an additional exercise regimen was called for. TWCC Exhibit 1, pp. 73-76.

On March 23, 2001, the doctor who performed the surgery, Lubor Jarolimek, M.D., referred the claimant to work hardening. TWCC Exhibit 1, p. 77.

On March 28, 2001, Bruce Weiner, M.D., an orthopedist, examined the claimant. TWCC Exhibit 1, pp. 69-72. Dr. Weiner stated that the physical therapy the claimant had undergone was not helping with his continuing pain and weakness. Dr. Weiner went on to say that the claimant needed to be in a home exercise program, and that he was ready to perform a light duty job with some restrictions on climbing ladders, reaching, and lifting. Dr. Weiner noted that the claimant could not lift more than 10 pounds.

During the same week, the claimant commenced a work hardening program at Southwest Work Rehab under the supervision of Raul Torres, a physical therapist. The program, which consisted of five eight-hour sessions per week, lasted from March 26 through May 4, 2001 for a total of six weeks. It is difficult to tell from the record exactly what the program involved, although the weekly progress notes indicate the claimant did various exercises (lateral pull, chest fly press, seated row, biceps curls, triceps extension, leg extension, back extension, abdominal crunch, treadmill, stairmaster, and recumbent bike), and participated in psychological counseling. See TWCC Exhibit 1, pp. 86-135. His reports of pain decreased over time, from five on a scale of ten at the beginning of the work hardening program to one or two on a scale of ten at the end. See id., pp. 89, 133.

At the end of the work hardening program, Dr. Hayes performed a second evaluation of the claimant. He determined that the claimant was at maximum medical improvement (MMI) and had a 3% whole body impairment rating. TWCC Exhibit 1, pp. 50, 142-152.

SWR billed a total of $11,364.00 for the work hardening program.[1] TWCC Exhibit 1, pp. 35-48. The carrier denied payment, saying that the treatment was unnecessary. Id., pp. 51-68.

On May 17, 2001, Dr. Fahey issued an addendum that took into account the progress the claimant had made during the work hardening program. TWCC Exhibit 1, p. 49 (and the preceding, unnumbered, page). Dr. Fahey reiterated his view that the work hardening program was unnecessarily and inappropriately intensive, and that the claimant could have been brought to the light duty demand level through some further physical therapy and a home exercise program.

In July 2001, Dr. Craig Thiry, D.C., a doctor selected by the Commission, examined the claimant, who was still reporting pain and weakness. See TWCC Exhibit 1, pp. 29-30. Dr. Thiry disagreed with the conclusion that the claimant was at MMI. He stated the work hardening had “certainly” been medically necessary, and the claimant still required further physical therapy and, possibly, cortisone injections.

The MRD concluded that SWR was not entitled to reimbursement. The MRD determined that the documentation failed to show medical necessity, in that it did not provide sufficient evidence of the claimant’s functional status prior to the work hardening program and of his clinical progress during the program. TWCC Exhibit 1, pp. 1-5.

III. Medical Necessity

Applicable law.Section 408.021(a) of the Texas Labor Code provides that an employee who sustains 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:

  1. cures or relieves the effects naturally resulting from the compensable injury;
  2. promotes recovery; or
  3. enhances the ability of the employee to return to or retain employment.

Section 401.011(19) of the Labor Code defines "health care" to include "all reasonable and necessary medical ... services."

With respect to work hardening, the Commission’s Medical Fee Guideline provides:

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 worker. . .

  1. Entrance/admission criteria shall enable the program to admit:
    1. persons who are likely to benefit from the program;
  2. persons whose current levels of functioning due to illness or injury interfere with their ability to carry out specific tasks required in the workplace;
  3. persons whose medical, psychological, or other conditions do not prohibit participation in the program; and
  4. persons who are capable of obtaining specific employment upon completion of the program.

Medical Fee Guideline, pp. 37-38 (1996).[2]

The Commission’s Upper Extremities Guideline, which was in effect at all times relevant to this case,[3] provided that treatment of a work related injury be adequately documented, evaluated for effectiveness and modified based on clinical changes, provided in the least intensive setting, cost effective, objectively measured, and demonstrating functional gains. 28 Tex. Admin. Code § 134.1002(e)(2) (West 2002) (abolished by statute effective January 1, 2002).

SWR’s position. Dr. Hayes testified that prior to the work hardening program, the claimant displayed limited range of motion and mild weakness in his right shoulder. According to Dr. Hayes, the claimant needed work hardening to bring him from the sedentary demand level at which he was functioning prior to the program to the light duty demand level of his job as a restaurant cleaner. Dr. Hayes testified that the claimant’s May 2001 FCE and impairment evaluation showed improved range of motion and strength, such that the claimant was released to return to work (although it is unclear from the record whether he actually did resume working).

James Compian, D.C., the supervisory doctor for the claimant’s work hardening program, testified that the claimant’s pain and functional abilities improved over the course of the program. He also testified that a home exercise program was not optimal for this claimant, who needed supervision because his advanced age made overexertion and re-injury more likely. Dr. Compian also testified that prior to the work hardening program, the claimant complained of weakness.

SWR notes that Dr. Thiry, a doctor chosen by the Commission to evaluate the claimant in July 2001, stated that the work hardening was medically necessary.

ZNAT’s position. ZNAT argues that SWR has failed to offer objective, quantitative measurements to demonstrate that the claimant needed an intensive work hardening program, or benefited from it. In addition, notes ZNAT, there is no written treatment plan for the work hardening program, so there is little way to know exactly what was done, and why. Dr. Fahey testified that prior to work hardening, the claimant’s functional deficits were mild, and he did not require an intensive program to return to the physical demand level of his job. He further testified that there was no documentation of any overall deconditioning in this claimant that would have warranted the recumbent bike, treadmill, and stairmaster exercises that were part of the work hardening program. He also stated there was no documentation of any psychological element that would have justified the group therapy component of the program. Dr. Fahey stated that an exercise program focused on the shoulder and transitioning into a home program would have been a more appropriate course of treatment. ZNAT points to Dr. Weiner’s report, which recommended a home exercise program.

ALJ’s analysis. This is a close case. The emphatic opinions of Drs. Thiry and Hayes that work hardening was necessary for this claimant are matched by the equally strong views of Drs. Weiner and Fahey that work hardening was unjustifiably intensive. In weighing the evidence, the ALJ is particularly troubled, as was the MRD, by the sketchiness of the documentation concerning the claimant’s need for this very strenuous kind of program. His functional deficits -- involving shoulder range of motion and weakness -- were described by Dr. Hayes in vague terms in the first FCE. Dr. Hayes did not note any generalized weakness or deconditioning that would have warranted the whole body training the claimant received. Nor is there any documentation of psychological issues that could support the claimant’s participation in group therapy. The ALJ is unpersuaded by Dr. Compian’s assertion that this claimant’s age meant that he could not perform exercises at home; even if this were true, he could have participated in supervised physical therapy short of a full-blown work hardening regimen. The need for many of the elements of the work hardening program are not established in the record. The record does not show that the claimant was treated in the least intensive setting, as required by the Upper Extremities Guideline. The ALJ concurs with the decision of the MRD, and concludes that reimbursement should be denied.

IV. Other Arguments Raised by SWR

SWR, at the conclusion of the hearing and in a post-hearing brief, raised additional arguments. First, SWR asserts that § 408.027(b) of the Labor Code requires a carrier, when it disputes a claim for reimbursement, to pay 50% of the claim and file a request for review by the MRD. That section of the Labor Code, however, relates to situations in which the carrier is disputing the amount of the payment and requesting an audit of the services rendered. In this case, ZNAT disputed SWR’s entitlement to payment, and not the specific amount billed. Moreover, ZNAT did not request an audit. Therefore, the requirement in § 408.027(b) that the carrier pay 50% of the amount billed is not applicable to the instant case.

SWR also argues that the decision of the Austin Court of Appeals in Patient Advocates of Texas v. Texas Workers Compensation Commission, 2002 WL 704678 (Tex. App. B Austin 2002), invalidates the process by which ZNAT is disputing SWR’s claim. The Patients Advocates decision, however, relates to the Commission’s rules governing audits of providers by insurers, and is not relevant to this case, where ZNAT has neither requested nor undertaken an audit.

V. Findings of Fact

  1. The claimant in this case sustained a compensable shoulder injury on________________. He worked as a restaurant cleaner, and was injured when he slipped on a wet floor and landed on his right shoulder. He suffered a torn rotator cuff.
  2. The claimant’s job as a restaurant cleaner was classified at the light duty level.
  3. The claimant underwent surgery to repair the torn rotator cuff November 10, 2000.
  4. Both before and after the surgery, the claimant participated in physical therapy.
  5. A functional capacity examination (FCE) administered on February 2, 2001, indicated that the claimant was operating at the sedentary level, with reduced range of motion involving the right shoulder.
  6. On February 26, 2001, Timothy Fahey, D.C., issued a report of his peer review concerning the claimant’s treatment. Dr. Fahey stated that a work hardening program would be inappropriately intensive for this claimant, but that an additional exercise regimen was called for.
  7. On March 23, 2001, the doctor who performed the surgery, Lubor Jarolimek, M.D., referred the claimant to work hardening.
  8. On March 28, 2001, Bruce Weiner, M.D., an orthopedist, examined the claimant. Dr. Weiner stated that the physical therapy the claimant had undergone was not helping with his continuing pain and weakness. Dr. Weiner further stated that the claimant needed to be in a home exercise program, and that he was ready to perform a light duty job with some restrictions on climbing ladders, reaching, and lifting.
  9. The claimant underwent a work hardening program at Southwest Work Rehab (SWR) under the supervision of a physical therapist. The program, which consisted of five eight-hour sessions per week, lasted from March 26 through May 4, 2001, for a total of six weeks. The claimant did various exercises (lateral pull, chest fly press, seated row, biceps curls, triceps extension, leg extension, back extension, abdominal crunch, treadmill, stairmaster, and recumbent bike) and participated in psychological counseling.
  10. An FCE and impairment evaluation performed at the end of the work hardening program resulted in a finding that the claimant was at maximum medical improvement (MMI), and had a 3% whole body impairment rating.
  11. SWR billed a total of $11,364.00 for the work hardening program.
  12. The employer’s workers compensation insurance carrier, ZNAT Insurance Company (ZNAT), denied payment, saying that the treatment was unnecessary.
  13. On May 17, 2001, Dr. Fahey issued an addendum to his report that took into account the progress the claimant had made during the work hardening program. Dr. Fahey reiterated his view that the work hardening program was unnecessarily and inappropriately intensive, and that the claimant could have been brought to the light duty demand level through some further physical therapy and a home exercise program.
  14. In July 2001, Dr. Craig Thiry, D.C., a doctor selected by the Commission, examined the claimant, who was still reporting pain and weakness. Dr. Thiry disagreed with the conclusion that the claimant was at MMI. He stated the work hardening had been medically necessary, and the claimant still required further treatment.
  15. The Medical Review Division (MRD) of the Texas Workers’ Compensation Commission issued its decision February 13, 2002. The MRD concluded that SWR was not entitled to reimbursement.
  16. SWR requested a hearing before the State Office of Administrative Hearings.
  17. Notice of the hearing was issued April 2, 2002. The notice contained a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
  18. The hearing was convened July 9, 2002, with Administrative Law Judge Shannon Kilgore presiding. Mark Sprain appeared for SWR, and James Loughlin appeared for ZNAT ). The Commission did not participate in the hearing. The hearing was adjourned the same day. The record remained open for post-hearing briefing. The record closed on July 22, 2002.
  19. There is insufficient evidence of any generalized weakness or deconditioning to justify the whole body exercise component of the work hardening program.
  20. There is insufficient evidence of any psychological issues to justify the group therapy component of the work hardening program.
  21. The claimant should have been treated with an exercise program less intensive than a work hardening regimen.
  22. The work hardening regimen was unnecessary for the claimant.

VI. Conclusions of Law

  1. The Commission has jurisdiction over this matter pursuant to § 413.031 of the Texas Workers' Compensation Act (the Act). See Tex. Lab. Code ch. 401 et seq.
  2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order in this case. Tex. Lab. Code Ann. §413.031(d); Tex. Gov’t Code ch. 2003.
  3. Adequate and timely notice of the hearing was provided in accordance with the Texas Administrative Procedure Act. Tex. Gov’t Code §§ 2001.051 and 2001.052.
  4. SWR has the burden of proof in this matter. 28 Tex. Admin. Code § 148.21(h).
  5. Based on Findings of Fact 19 through 22, the work hardening treatment did not comply with the Commission’s Upper Extremities Guideline, 28 Tex. Admin. Code § 134.1002(e)(2) (West 2002) (abolished by statute effective January 1, 2002), and is not reimbursable under §§401.011(19) and 408.021(a) of the Texas Labor Code.

ORDER

IT IS, THEREFORE, ORDERED that Southwest Work Rehab is not entitled to reimbursement by ZNAT Insurance Company for the work hardening program administered to the claimant___ from March 26 through May 4, 2001.

Signed this 11th of September, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

Shannon Kilgore
Administrative Law Judge

  1. SWR billed $51.20 per hour. The Medical Fee Guideline provides that work hardening be reimbursed at $64.00 per hour, but also provides that reimbursement for interdisciplinary programs not accredited by the Commission of Accreditation of Rehabilitation Facilities (CARF) be reduced by 20%. Medical Fee Guideline, pp. 36, 38 (1996). SWR’s work hardening program is not CARF-accredited, and its billing seems to reflect the 20% reduction.
  2. See 30 Tex. Admin. Code §134.201(Commission’s rule adopting the Medical Fee Guideline by reference).
  3. The guideline was abolished effective January 1, 2002. However, the administration of the work hardening program, the claims for reimbursement, and the denial of reimbursement in this case all occurred prior to the rescission of the Guideline.
End of Document
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