DECISION AND ORDER
Marcos S. Rodriguez, D.C. (the Provider) sought reimbursement for work hardening services provided an injured worker (the Claimant), but Twin City Fire Insurance Company (the Carrier) denied payment based on a lack of medical necessity. Subsequently, the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission) found that the Provider’s records did not substantiate medical necessity and concluded it was not entitled to reimbursement. The Provider challenged the MRD decision in a hearing; however, the Administrative Law Judge (ALJ) finds that the Provider failed to show the services were medically necessary.
On November 12, 2002, ALJ Georgie B. Cunningham convened the hearing at the William P. Clements Building, 300 West 15th Street, Austin, Texas. Attorney Jane Lipscomb Stone represented the Carrier, and Attorney H. Douglas Pruett represented the Provider. The Commission did not participate in the hearing. Neither the Provider nor the Carrier contested notice or jurisdiction. After evidence was presented, the ALJ recessed the hearing to permit the Provider an opportunity to submit a clarifying statement regarding the amount of reimbursement sought. The hearing was closed on November 18, 2002.
The issue to be determined is whether the Carrier should reimburse the Provider for the work hardening services provided between March 5 and April 27, 2001. Work hardening is a highly structured, goal-oriented, individualized treatment program designed to maximize the ability of the person served to return to work. Work hardening programs are interdisciplinary with a capability of addressing the functional, physical, behavioral, and vocational needs of the injured worker. The Carrier denied reimbursement based on its finding that the services were not medically necessary. At the hearing, the Provider relied on the documentary evidence including the certified MRD record. The Carrier presented the testimony of Michael A. Bhatt, D.C.
The Provider’s medical record for service provided on May 5, 2001, shows that the Claimant incurred a right wrist enthesopathy and other unspecified injuries to the elbow and forearm on__________. Dr. Rodriguez first examined the Claimant and began treating him with chiropractic services at the Atlantis Healthcare Clinic on December 15, 2000.
The Provider argued that the MRD decision was incorrect as a matter of law because the Carrier could not initially deny reimbursement based on a lack of medical necessity and then subsequently assert another basis for denial after an appeal was filed. The ALJ concludes this argument fails. The Carrier was consistent in asserting that the services were not medically necessary in its initial reimbursement denial and at the hearing. Although the MRD resolution officer referenced documents, or a lack thereof, several times, the reference did not imply that the Carrier reached its decision on a lack of documentation. Nevertheless, the ALJ opines that the basis for medical necessity must have been documented in this case to permit a retrospective reviewer to come to the same conclusion that a treatment or service was medically necessary. Conversely, sparse documentation may leave one with an inadequate record to make a determination about the medical necessity of treatments.
The MRD resolution officer pointed out that the notes submitted did not indicate the program was interdisciplinary. Although the Provider asserted at the hearing that another entity provided and billed for psychological services, the ALJ concludes the assertion to be without merit. Because the work hardening program is multi-disciplinary, the Provider should have shown the services were being provided even if it did not bill for the services.
Of even more significance, the MRD resolution officer found the Provider did not submit complete Functional Capacity Evaluation (FCE) reports. The ALJ agrees that without the FCE reports, it is difficult to establish the need for the program or measure improvement in the program. Objective measures in addition to a claimant’s subjective responses should be provided to establish need and show improvement. Likewise, the ALJ agrees that the Provider should have established the Claimant’s need for an interdisciplinary program.
The MRD record indicated that the Claimant was employed by ______as a metal fabricator at the time of his injury, but that his employment was terminated at an unspecified time following his injury. Although the Provider established that _____duties are categorized as heavy work as defined in the Dictionary of Occupational Titles, the ALJ finds it did not submit records addressing whether the Claimant planned to return to his previous occupation as a metal fabricator, pursue other employment objectives, or received vocational counseling.
Even though the Provider argued that the Carrier’s preauthorization of two additional weeks of work hardening served as an admission that the services were necessary, that reimbursement is not at issue here. Preauthorization for additional week’s services might demonstrate that the first weeks of the program were medically necessary or it could simply demonstrate that the Carrier was in error in granting the preauthorization. Without having some evidence of that request and approval, the ALJ concludes the subsequent preauthorization is not adequate to justify a finding of medical necessity for the initial work hardening services considering the lack of evidence in the record to support medical necessity.
Dr. Bhatt testified about the criteria for establishing the medical necessity of a work hardening program and the failure of the Provider to meet the criteria. To establish need, for example, one could compare an injured worker’s performance in an FCE with the worker’s job requirements to determine medical necessity in a work hardening program. He pointed to numerous places in the record to support his opinion that the Claimant did not need a work hardening program. The Provider did not administer comprehensive tests on the Claimant’s wrist to demonstrate what deficits he might have nor were any demonstrated deficits related to specific job junctions. The Provider submitted no records related to vocational testing or counseling, in spite of the Claimant’s termination from his job.
The ALJ finds that the Provider failed to show by a preponderance of the evidence that the Claimant’s work hardening program was medically necessary and that it is eligible for reimbursement. Additional facts in support of this decision are set forth in the findings of fact, and the legal conclusions derived from those facts appear in the conclusions of law.
II. FINDINGS OF FACT
- ____ (the Claimant) sustained a sprain to his right wrist in a work-related accident on _________ At the time of the injury, the Claimant’s employer had its workers’ compensation insurance through Twin City Fire Insurance Company (the Carrier).
- Marcos Rodriguez, D.C. (the Provider) furnished work hardening services to the Claimant between March 5, 2001, and April 27, 2001.
- The Provider submitted a claim of $14,984.20 for its work hardening services to the Claimant.
- The Carrier determined the work hardening services were not medically necessary and refused to reimburse the Provider.
- On September 6, 2001, the Provider requested dispute resolution services by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission).
- On April 12, 2002, MRD staff found that the Provider’s records did not substantiate medical necessity and concluded it was not entitled to reimbursement for the work hardening provided the Claimant between March 5 and April 27, 2001.
- On April 19, 2002, the Provider filed a request for a hearing regarding the disputed reimbursement.
- The Commission sent notice of the hearing to the parties on May 23, 2002. The hearing notice informed the parties of the matter to be determined, the right to appear and be represented by counsel, the time and place of the hearing, and the statutes and rules involved.
- The Claimant was employed by ____ as a metal fabricator at the time of his injury.
- The Claimant was injured when he tried to keep a piece of machinery from falling to the floor, and in the process, bent his hand and wrist backward causing pain.
- On December 15, 2000, the Provider examined the Claimant and began providing him chiropractic treatment.
- An upper right extremity nerve conduction study on January 30, 2001, was abnormal, but the medical doctor who conducted the test recommended further clinical correlation.
- The EMG study conducted on January 30, 2001, was normal.
- An MRI of the Claimant’s wrist was normal.
- The Provider began the Claimant’s work hardening program on March 5, 2001.
- The primary goal of work hardening is to physically prepare an individual to return to work.
- The Claimant’s employment at ______ was terminated following his injury.
- The Provider did not submit records whether the Claimant planned to return to his previous occupation as a metal fabricator or pursue other employment objectives.
- The Provider did not show that the Claimant was provided any vocational counseling.
- The Provider did not submit the results of any physical examination and neurological evaluation performed prior to beginning the work hardening program.
- The Provider did not submit the results of any Functional Capacity Examination performed prior to beginning the work hardening program.
- The Provider did not establish what the Claimant’s job requirements were prior to beginning his participation in the work hardening program.
- The Provider did not measure the Claimant’s capacity for performing his job duties prior to his beginning the work hardening program.
- The Provider did not specify the expectations for the Claimant’s improvement.
- The Provider did not show that its work hardening programs was interdisciplinary with a capability of addressing the functional, physical, behavioral, and vocational needs of the Claimant.
III. CONCLUSIONS OF LAW
- The Texas Workers’ Compensation Commission has jurisdiction over this matter, pursuant to the Texas Workers’ Compensation Act, Tex. Lab. 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 Tex. Lab. Code Ann. §§ 402.073 and 413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
- The Provider timely filed its request for hearing, as specified in 28 Tex. Admin. Code (TAC) § 148.3.
- 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).
- The Provider had the burden of proving the case by a preponderance of the evidence, pursuant to 28 TAC §148.21(h) and (i).
- As provided in 28 TAC § 134.600(h)(11), a work hardening program of less than six weeks duration does not require preauthorization.
- As specified in 28 TAC § 134.201 Medicine GR II.E.1., work hardening programs should admit persons: (a) who are likely to benefit from the program; (b) whose current levels of functioning due to injury interfere with their ability to carry out specific tasks required in the workplace; (c) whose medical, psychological, or other conditions do not prohibit participation in the program; and (d) who are capable of attaining specific employment upon completion of the program.
- Based on the findings of fact, the Provider did not show by a preponderance of the evidence that the Claimant met the admission requirements to participate in a work hardening program pursuant to 28 TAC § 134.201 Medicine GR II.E.1.
- Based on the foregoing findings of fact and conclusions of law, the Provider failed to show that the work hardening program was medically necessary, as specified in Tex. Lab. Code Ann. § 408.021.
It is hereby ordered that Marcos S. Rodriguez, D.C. is not entitled to reimbursement for work hardening services provided an injured worker between March 5, 2001, and April 27, 2001.
Signed this 7th day of January, 2003.
GEORGIE B. CUNNINGHAM
Administrative Law Judge
State Office of Administrative Hearing
- Initially, the Provider requested reimbursement of $14,984.20, but subsequently withdrew its request for some of the fees. Although the ALJ left the hearing open several days, the Provider did not file a revised request.↑
- When this matter arose, the Commission’s rule governing work hardening was found at 28 Tex. Admin. Code §134.201 Medical Fee Guideline Medicine Ground Rules.↑