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At a Glance:
October 21, 2002


October 21, 2002



Therapy Experts, Inc. (Provider) sought reimbursement for work hardening services provided to the injured worker ___ (Claimant), but after paying for two sessions, The Insurance Company for the State of Pennsylvania (Carrier) denied payment. Upon review of the claim, the Medical Review Division (MRD) of the Texas Workers' Compensation Commission (the Commission) ordered a $7,680 plus interest reimbursement from the Carrier to Provider. This decision concludes that Carrier should reimburse Provider in the amount of $7,680 plus interest.

On August 26, 2002, Stephen J. Pacey, Administrative Law Judge (ALJ), convened the hearing at the William P. Clements Building, 300 West 15th Street, Austin, Texas. Attorney Martin R. G. Marasigan represented Provider, and attorney Steven Tipton represented the Carrier. The Commission was not a party to the action. The parties did not contest notice or jurisdiction. After the evidence was presented, the ALJ allowed the parties one week to submit additional documentation, and the record closed on September 3, 2002.


A. Background

On________, Claimant, a truck driver for_____, suffered a compensable injury to his shoulder when he was lifting recycle containers which weigh 20 to 50 pounds each. As he threw the empty container out of the truck, he dislocated his shoulder. Gary Gartsman, M.D., an orthopedic surgeon, conducted an MRI on Claimant that showed a traumatic subluxation[1] of the right shoulder. On February 28, 1999, Dr. Gartsman performed surgery on Claimant’s shoulder. For a month-and-a-half after the surgery, Claimant performed a light exercise program at home. Dr. Gartsman then released him to light-duty work, but his supervisor at ____ instructed him to do heavy-duty work. Since Claimant could not perform the job because of constant pain, he lost his job.

After Claimant was laid off, Dr. Gartsman recommended that he undergo a Functional Capacity Evaluation (FCE). The test was conducted on July 1, 1999, by Claudia Starr, PT, who determined that Claimant was operating at a “Medium Heavy” physical demand level with constant pain that worsened with repetitive motion. She recommended that Claimant undergo a work hardening program. After reviewing the results of Claimant’s FCE, Dr. Gartsman recommended Claimant undergo a work hardening program to increase shoulder function and strength. At this time, Claimant changed doctors from Dr. Gartsman to Priscilla Alaniz, D.C. who also recommended work hardening for Claimant.

After Carrier’s representative, Denise Miller, verbally approved the work hardening, Dr. Alaniz sent Carrier a request for confirmation of the authorization of treatment. Carrier’s doctor, M. Krebs, M.D., responded by suggesting that work hardening should not be approved until Claimant had psychological testing. On August 10, 1999, Dan Hamill, PhD, conducted the behavioral testing, reporting that Claimant thought catastrophically of his injury and showed significant anxiety. Dr. Hamill recommended the work hardening program.

Carrier’s Argument

Carrier did not respond to the MRD; all documents in the certified record were filed by Provider. At the hearing, Carrier did file five exhibits. Carrier contended that Claimant was not a suitable candidate for work hardening because he did not meet the requirements of the Medical Fee Guideline (MFG) Medicine Ground Rules.[2] Carrier also asserted that the treatment of the work related injury did not comply with the Upper Extremities Treatment Guideline’s Ground Rules.[3]

Provider’s Argument

Provider indicated that Claimant performed three Functional Capacity Evaluation (FCE) tests. Prior to work hardening, Claimant underwent an FCE on July 2, 1999. Provider argued that this FCE indicated a constant shoulder pain that worsened with repetitive motion. On August 26, 1999, during the work hardening, a second FCE was performed on Claimant. Provider relied on this second FCE in asserting Claimant did not meet the non-material handling job requirements of walking, bending and stooping. Claimant underwent a discharge FCE on September 15, 1999, which, according to Provider, indicated an improvement in his material handling capabilities compared with the FCE conducted on August 26, 1999.

Provider also argued that before work hardening Claimant was able to overhead lift twenty pounds, and at the end of work hardening, he was able to overhead lift thirty-five pounds. Provider further indicated that seven health care professionals recommended work hardening.

Analysis and Conclusion

Carrier did not prove by a preponderance of the evidence its two principal assertions that Claimant was not a suitable candidate for work hardening and that Provider did not follow the Upper Extremities Treatment Guidelines.

Carrier presented little or no evidence that Claimant was not a suitable candidate for work hardening. Carrier’s own doctor, M. Krebs, M.D., indicated that if Claimant was given a psychological test that revealed that work hardening would be beneficial, the doctor would approve the work hardening. Dr. Hamill conducted psychological test on Claimant, concluding that from a behavioral standpoint, Claimant was a suitable candidate for work hardening. Carrier even paid for two weeks of sessions, but for some inexplicable reason discontinued payment.

Carrier did not specify exactly how Provider failed to follow the Upper Extremities Treatment Guidelines, except alluding to the second Ground Rule which requires the treatment be evaluated for effectiveness and modified based on clinical changes. Provider’s weekly reports indicated that Claimant was evaluated and the treatments were modified on a weekly basis. The FCE’s documented an increase in strength an decrease in pain, and according to the discharge report, Claimant was able to meet the physical demands of his job. The weekly conference reports, time cards, exercise sheets, work stimulation forms, patient daily work reports, and the pain sheet forms met the documentation criteria for work hardening as set forth by the MFG and the Upper Extremities Treatment Guidelines.

Carrier did not prove its case, and the ALJ concludes that a reimbursement of $7,600 plus interest should be paid by Carrier to Provider.


  1. Claimant, an employee of____, sustained an injury to his right shoulder while emptying trash containers on_______.
  2. At the time of the injury, Claimant’s employer had workers’ compensation insurance through Risk Services.
  3. In August 1999, ____I changed its worker’s compensation insurance coverage to The Insurance Company for the State of Pennsylvania (Carrier).
  4. In February 1999, Claimant, experiencing no improvement, was examined by Gary Gartsman, M.D., who diagnosed Claimant with traumatic subluxation of the right shoulder and recommended surgery.
  5. On February 18, 1999, Dr. Gartsman performed arthroscopic anterior-inferior glenohumeral reconstruction surgery.
  6. In June 1999, Dr. Gartsman released Claimant to return to light duty work, but his supervisor instructed him to do heavy-duty work, which he could not perform, resulting in the loss of his job.
  7. On June 21, 1999, Dr. Gartsman recommended a Functional Capacity Evaluation (FCE) be performed on Claimant.
  8. On July 1, 1999, Claudia Starr, P.T., concluded that Claimant needed work hardening after an FCE displayed that repetitive motion resulted in constant pain and weakness in Claimant’s right shoulder.
  9. On July 7, 1999, Dr. Gartsman recommended work hardening.
  10. On July 27, 1999, Claimant changed treating doctors from Dr. Gartsman to Pricilla Alaniz, D.C.
  11. Dr. Alaniz recommended work hardening and received verbal approval for work hardening from Carrier’s representative, Denise Miller.
  12. On July 30, 1999, Dr. Alaniz requested written confirmation of Ms. Miller’s verbal approval for work hardening.
  13. Carrier responded that it required a psychological report on Claimant.
  14. On August 10, 1999, Dan Hamill, PhD, conducted psychological exam on Claimant and concluded that Claimant needed work hardening to focus on physical and behavioral challenges.
  15. On August 26, 1999, an FCE revealed that Claimant required improvement in body mechanics to prevent injury and that he did not meet his non-material handling job requirements of walking, bending, and stooping.
  16. On August 2, 1999, Claimant began work hardening and finished the program six weeks later.
  17. When Claimant started the work hardening program he was unable to lift 20 pounds overhead; he had poor body mechanics; testing revealed psychological issues; and he had constant pain.
  18. On September 15, 1999, Claimant’s discharge FCE revealed that he met the physical demand requirements of his job; he was able to lift over 35 pounds overhead; and, he had improvement in body mechanics, psychological testing, and pain.
  19. Therapy Experts, Inc.(Provider) furnished work hardening services to Claimant between August 2, 1999, and September 10, 1999, and billed Carrier $8,064 for such services.
  20. Carrier denied reimbursement of the claim, indicating the services were not medically necessary.
  21. On June 23, 2000, Provider appealed Carrier’s reimbursement denial to the Medical Review Division (MRD) of the Texas Workers' Compensation Commission (the Commission).
  22. On February 7, 2002, the MRD concluded that Provider’s claim should be granted and that Carrier should reimburse Provider $7,680 plus interest.
  23. On February 26, 2002, Carrier appealed the MRD’s decision.
  24. The Commission sent notice of the hearing to the parties on April 5, 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.
  25. The hearing was held on August 26, 2002. Provider was represented by attorney Martin G. Marasigan, and Carrier was represented by its attorney, Steven M. Tipton. The record of the hearing closed on September 3, 2002, with the filing of additional documents.


  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.
  5. The Carrier had the burden of proving by a preponderance of the evidence that Claimant was not entitled to reimbursement of its claim..
  6. The Carrier did not proved that Claimant did not meet the criteria for work hardening services as set out in the Medical Fee Guideline (MFG) Medicine Ground Rule II. E.
  7. The Provider proved that Claimant met the criteria for work hardening services as set out in MFG Medicine Ground Rule II E, and the treatment requirements of the Upper Extremities Treatment Guideline Ground Rules (e) (1) and (2).
  8. Based on the foregoing findings of fact and conclusions of law, Provider proved that its claim for work hardening services provided from August 19, 1999, through September 10, 1999, at $7,680 plus interest, should be reimbursed.


It is hereby ordered that the Insurance Company of the State of Pennsylvania reimburse Therapy Experts, Inc. the sum of $7680 plus interest.

Signed this 21st day of October, 2002.

Administrative Law Judge
State Office of Administrative Hearing

  1. An incomplete or partial dislocation, 28th Edition Dorland’s Illustrated Medical Dictionary.
  2. MFG Medicine Ground Rule II. E.(1) provides that work hardening would be suitable if:
    1. person was likely to benefit from the program;
    2. person whose current levels of functioning due to illness or injury interferes with the person’s ability to carry out specific tasks required in the workplace;
    3. person whose medical, psychological, or other conditions do not prohibit participation in the program; and
    4. person is capable of attaining specific employment upon completion of the program.
    5. 28 Tex. Admin. Code §134.1002(e).
End of Document