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November 18, 2002


November 18, 2002



Rehab 2112 (Petitioner) seeks to reverse the decision of the Texas Workers’ Compensation Commission’s (Commission), Medical Review Division (MRD), denying payment for work hardening treatments provided to _____(Claimant) between January 3 and February 9, 2001. The carrier, Continental Casualty Company (Respondent), denied Petitioner’s claim asserting that the work hardening was not medically necessary. The total amount in dispute is $5,312.

Administrative Law Judge (ALJ) Catherine Egan convened and closed the hearing on September 17, 2002. Douglas Pruett, attorney, represented Petitioner. Christine Karcher, attorney, represented Respondent. The Commission did not participate in the hearing. Based on the evidence presented, the ALJ finds that the record fails to show the medical necessity of the work hardening program, and concludes that Petitioner is not entitled to reimbursement.


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.


A. Factual Background

Claimant sustained a compensable injury to her left wrist on_________. Mark Rayshell, D.C., Claimant’s primary physician, diagnosed Claimant’s injury as carpal tunnel syndrome, an occupational disease caused by repetitive strain. Claimant’s job duties as a customer service representative for Sprint Long Distance included answering the telephone and entering data about customer complaints into a computer.

Petitioner did not offer Dr. Rayshell’s office notes detailing Claimant’ treatment and progress into evidence so the record is devoid of what treatments Claimant underwent or the results. An MRI of Claimant’s left wrist, taken on October 30, 2000, was normal.[1] On November 11, 2000, Dr. Rayshell prescribed work hardening for Claimant and referred her to Petitioner for evaluation and treatment.[2] Although the form had a space for Dr. Rayshell to describe the reasons for this referral, the space was blank.

On December 20, 2000, Petitioner conducted an initial functional capacity evaluation (FCE) on Claimant. According to the initial FCE, Claimant suffered with limiting factors that included: (a) positive orthopedic tests; (b) pain; (c) decreased ROM; and (d) a minor disability rating on based on the Oswestry questionnaire (deals with back pain). However, the physical demands of Claimant’s job were sedentary to light, and the evaluation showed Claimant’s physical demand level as "medium," suggesting that Claimant did not need further therapy before returning to work.[3] Surprisingly, in the second and final FCE conducted by Petitioner on February 6, 2001, Claimant’s physical demand level digressed to “light,”suggesting that her condition deteriorated during work hardening. Other anomalies also existed in the initial FCE.

The initial FCE also documented Claimant’s inconsistent and submaximal effort during the various tests, specifically:

  • Claimant’s variation on the Standard Hand Grip test was at 15 percent. Anything greater than 15 percent indicates an inconsistent effort.[4]
  • In the Cross-reference Validity Check, Petitioner noted that a positive rapid exchange grip (REG) could show “submaximal effort.” Claimant “displayed a positive REG.”[5]
  • In the left Static Wrist Flexion Strength test Claimant had a coefficient variance of 57 percent. Values greater that 15 percent indicate varied effort.[6]
  • During the EPIC Lift Capacity Test, a person using maximal acceptable effort is expected to have bio mechanical changes, i.e., an increased heart rate. Claimant experienced none.[7]

Despite the test results, Petitioner determined Claimant was an appropriate candidate for work hardening. At the time of the services in dispute, Petitioner was CARP[8] accredited and consequently did not need to obtain precertification from Carrier before providing work hardening. From January 3, 2001 to February 9, 2001, Claimant attended Petitioner’s work hardening program. The record does not detail exactly what the program involved. Weekly entries suggest Claimant did various cardiovascular and muscular exercises (i.e., treadmill, stretches, and weight lifting) and participated in some group counseling.[9] At the end of the program, on February 6, 2001, Petitioner performed a second FCE on Claimant.[10] The final FCE reported that the primary limiting factors (ROM, endurance, and strength) had decreased. Claimant’s left-hand grip test was still below normal, although better than when she began.

On February 16, 2001, Ronnie Shade, M.D., examined Claimant. Dr. Shade noted that Claimant’s chief complaint was pain in her left wrist. Claimant’s ROM was normal, and Dr. Shade found no motor or sensory neurological deficit. Claimant experienced tenderness and mild swelling in her left wrist. After examining Claimant, Dr. Shade recommended “conservative care be continued,” and injections to Claimant’s left wrist.[11]

On April 5, 2001, Claimant received a 6 percent impairment rating by Dr. Smith.

B. Petitioner’s Position

Michelle Ivey, D.C, Petitioner’s Executive Director, testified for Petitioner.[12] Dr. Ivey did not examine or treat Claimant, but did review Claimant’s medical records (Exhibit 1) to form her opinions. The initial and final FCEs conducted by Petitioner were, according to Dr. Ivey, the objective tests she used to determine that the work hardening program was medically necessary. However, Dr. Ivey did not satisfactorily explain the anomalies in the initial FCE mentioned above.

According to Dr. Ivey, carpal tunnel is an occupational disease that is directly connected to

Claimant’s job duties as a customer service representative. Work hardening, explained Dr. Ivey, is a multidisciplinary program provided five days a week, four to eight hours a day. It addresses the patient’s physical, psychological and vocational needs, including activities of daily living (ADL). Dr. Ivey testified that work hardening is an appropriate protocol at the tertiary level of care (LOC). Claimant was at the tertiary LOC, opined Dr. Ivey. However, Dr. Ivey was unfamiliar with Claimant’s past treatment history. Before referring a patient to work hardening, Dr. Ivey agreed, the patient should undergo active therapy.

Dr. Ivey elaborated that conservative treatment at the secondary LOC must either fail or plateau at that treatment level before work hardening is done. Claimant’s condition justified the use of a work hardening program, reasoned Dr. Ivey, because Claimant’s condition met the four criteria set out in the Medical Fee Guideline. Dr. Ivey conceded that Petitioner began work hardening treatments only eight weeks after Claimant’s injury and there is no documentation in evidence to show that the primary and secondary LOCs were performed. Claimant is right-hand dominant, yet the record did not document how the compensable injury was affecting her ADL as suggested by Dr. Ivey. Dr. Ivey explained that Claimant “medium” score on the physical demand level only referred to how much Claimant could lift, which was irrelevant to Claimant’s job. Instead, Claimant’s job required extensive data entry over a long time that related to limitations of ROM, endurance, and the strength of her left hand and wrist. However, Plaintiff’s daily notes indicate that most of the exercises Claimant was doing were not specific to her injury or her job duties, but were general. Dr. Ivey failed to adequately explain why this type of work hardening was appropriate for Claimant’s compensable injury.

The documentary evidence included a letter dated July 3, 2001, from Michael T. Smith, D.C. on Petitioner’s letterhead. According to Dr. Smith “the multi-disciplinary work simulated approach was deemed the program of choice . . . “[13] Dr. Smith further asserted that Claimant’s “physical, psychological, and vocational needs were met in this program.” However, Dr. Smith’s letter offered no clarity on how he reached these conclusions.

C. Respondent’s Position

Respondent argued work hardening was not medically necessary because it was too early in Claimant’s treatment and not indicated by the examination results or medical records in evidence. Respondent noted correctly that under the Commission’s Upper Extremities Guideline work hardening was not an approved diagnostic until the secondary or tertiary LOC. 28 Tex. Admin. Code (TAC) § 134.1002(f).

At Respondent’s request, Dorothy Leong, M.D.[14] reviewed Claimant’s medical records (Exhibit 1) and conducts a medical peer review. Dr. Leong testified that work hardening is a secondary and tertiary LOC, which follows efforts to resolve the condition with medication, splinting, and active therapy. Petitioner’s records failed to show that Claimant was treated with medication, splinting, or active therapy, before Claimant began the work hardening program. Claimant’s medical records do not show the clinical indicators required for the secondary and tertiary LOCs, Dr. Leong opined, because there is no history of Claimant’s injury showing a limited to good response to early primary treatment with objective findings of early loss of motion or strength limiting Claimant’s ADL.[15]

Based on her review of the medical records (Exhibit 1), Dr. Leong stated the work hardening program was not medically necessary for Claimant in January and February 2001. The FCE results were suspect because Claimant was using sub maximal effort during parts of the evaluation. Dr. Leong asserted that basing a work hardening program on this FCE was not medically reasonable.

In addition, explained Dr. Leong, the physical demands of Claimant’s job were “light”and did not justify the intensity of the work hardening program provided by Petitioner. Dr. Leong pointed out that Petitioner did not provide work simulations related to Claimant’s job, i.e., entering data, answering the telephone. Instead, the work hardening program appeared to be a general exercise program, including cardiovascular exercises and weight training for both her upper and lower extremities. Claimant could have returned to her current level of duties without the work hardening program, Dr. Leong opined, given Claimant’s physical demand level (medium) recorded by Petitioner.

D. Legal Standards

Petitioner has the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i); 1 TAC § 155.41. 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. CodeAnn§ 408.021(a). Health care includes all reasonable and necessary medical services. Tex. Lab. CodeAnn. § 401.011(19)(A).

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

Medical Fee Guideline, pp. 37-38 (1996).[16]

The Commission’s Upper Extremities Guideline[17] required that the 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 TAC § 134.1002(e)(2) (West 2002) (abolished by statute effective January 1, 2002).

E. ALJ Analysis

Petitioner failed to meet its burden of proof to show that Claimant had the clinical indicators to justify Claimant’s participation in the work hardening program. Nothing in the record shows that Claimant had completed conservative treatments (i.e., medication, a splint, or active therapy) before she began the work hardening program. Claimant’s job duties were light and at the time the initial FCE was done, Petitioner reported, Claimant was at the medium physical demand level-higher than necessary for her job duties. Moreover, the initial FCE showed that during the various tests Claimant’s effort was erratic and questionable. Without additional medical evidence, the initial FCE

is insufficient to justify beginning work hardening so early in Claimant’s treatment. In addition, the work hardening program was general rather than specific to Claimant’s job duties and compensable injury.

Based on the above, the ALJ finds that the work hardening program was not medically necessary because (1) Petitioner failed to document that Claimant had undergone conservative treatment (i.e., medication treatments, splinting, or active therapy), or to provide sufficient justification for deviating from the Upper Extremities Guideline, (2) the initial FCE did not demonstrate that Claimant needed work hardening and the test results were suspect given Claimant’s submaximal and erratic effort on some tests; and (3) the work hardening program as documented was not specific to Claimant’s job duties or to her compensable injury. Therefore, Petitioner’s claim for $5,312 for work hardening administered to Claimant is denied.


  1. On_______, Claimant sustained an injury compensable under the Texas Workers’ Compensation Act (Act).
  2. At the time of her compensable injury, Claimant’s employer had workers’ compensation insurance coverage with the Continental Casualty Company (Respondent).
  3. Dr. Mark Rayshell, D.C., treated Claimant for her injuries to her left wrist and diagnosed her condition as carpal tunnel syndrome.
  4. An MRI taken on October 30, 2000, of Claimant’s left wrist was normal.
  5. Dr. Rayshell prescribed work hardening treatments for Claimant and referred her to Rehab 2112 (Petitioner) for evaluation and treatment less than eight weeks after he began treating Claimant.
  6. The record does not show that Claimant underwent conservative treatment (i.e., medication, splinting, active physical therapy) before being referred to the work hardening program.
  7. Dr. Rayshell did not explain the reason for his referral of Claimant to Petitioner for work hardening.
  8. On December 20, 2000, Petitioner performed an initial functional capacity evaluation (FCE) on Claimant.
  9. Claimant’s job as a customer service representative was classified at the sedentary, light duty level.
  10. On December 20, 2000, Claimant physical demand level was at a medium, above the physical demand category of her job-sedentary and light.
  11. During the initial FCE, Claimant exhibited signs of inconsistent and submaximal effort during the tests.
  12. The work hardening program provided to Claimant was a general exercise program and was not designed to treat Claimant’s compensable injury.
  13. After Respondent denied reimbursement to Petitioner for the work hardening program provided Claimant, Petitioner sought medical dispute resolution with the Texas Workers’ Compensation Commission (Commission).
  14. The Commission’s Medical Review Division issued its decision February 15, 2002, upholding Respondent’s denial of reimbursement. Petitioner timely appealed that decision.
  15. Pursuant to the Commission’s notice of hearing, which stated the date, time, and location of the hearing and cited to the legals statutes and rules involved along with a short, plain statement of the factual matters involved, Petitioner and Respondent appeared or were represented at the hearing in this matter.
  16. There is insufficient evidence of any generalized weakness or deconditioning to justify the whole body exercise component of the work hardening program.
  17. The Claimant should have been treated with an exercise program less intensive than a work hardening regimen.


  1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction over this matter pursuant to the Texas Workers’ Compensation Act (Act), Tex. Lab.CodeAnn. § 413.031.
  2. The State Office of Administrative Hearings has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to § 413.031(d) of the Act and Tex. Gov’tCode Ann. ch. 2003.
  3. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’tCode 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’tCode Ann. §§2001.051 and 2001.052.
  5. Petitioner had the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i); 1 TAC § 155.41.
  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.CodeAnn. §408.021(a).
  7. Health care includes all reasonable and necessary medical services.
  8. 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.CodeAnn. § 401.011(31).
  9. Based on the Findings of Fact, the work hardening treatment did not comply with the Commission’s Upper Extremities Guideline, 28 TAC §134.1002(e)(2), and is not reimbursable under Tex. Lab.CodeAnn. §§ 401.011(19) and 408.021(a).


It is ORDERED that Rehab 2112 is not entitled to reimbursement by Continental Casualty Company for the work hardening program administered to the claimant___ from January 3 to February 9, 2001.

Signed NOVEMBER 18th, 2002.

Administrative Law Judge

  1. Ex. 1 at 61.
  2. Id. at 66.
  3. Id. at 42.
  4. Id. at 36.
  5. Id. at 37.
  6. Id. at 38.
  7. Id. at 42.
  8. Commission Accreditation for Rehabilitation Facilities.
  9. Ex. 1 at 67-84.
  10. Id. at 49-57.
  11. Id. at 62-63.
  12. Dr. Ivey was licensed in October 1999.
  13. Ex. 1 at 25.
  14. Dr. Leong graduated from medical school in 1985. She completed her residency in Physical Medicine and Rehabilitation in 1990 and has treated injuries similar to Claimant’s injury. Concentra hired Dr. Leong to do the peer review.
  15. Ex. 1 at 103.
  16. See 28 TAC §134.201(Commission’s rule adopting the Medical Fee Guideline by reference).
  17. The guideline was abolished effective January 1, 2002, along with the Medical Fee Guideline. 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