Your FREE and easy resource for all things Texas workers' compensation
At a Glance:
Title:
453-02-3194-m4
Date:
April 24, 2003
Status:
Medical Fees

453-02-3194-m4

April 24, 2003

DECISION AND ORDER

Community Rehab and Work Conditioning (Community Rehab) sought reimbursement for work hardening and work conditioning services provided to Claimant___. United Pacific Insurance Company (the Carrier) denied payment. The Medical Review Division (MRD) of the Texas Workers' Compensation Commission (Commission) ordered reimbursement. The Texas Property and Casualty Insurance Guaranty Association (TPCIGA), on behalf of United Pacific Insurance Company, appealed the MRD’s order. This decision concludes that Community Rehab is not entitled to reimbursement because the evidence at the hearing established that the work conditioning and work hardening programs did not meet the requirements for those programs set forth in the Spine Treatment Guideline.

I.PROCEDURAL HISTORY

Administrative Law Judge Bill Zukauckas (ALJ) convened the hearing on April 15, 2003, at the William P. Clements Building, 300 West 15th Street, Austin, Texas. Community Rehab was represented by Mr. S. Michael Graham, an attorney. TPCIGA for United Pacific Insurance Company was represented by James M. Loughlin, an attorney. The parties did not contest notice or jurisdiction. The ALJ admitted into evidence Exhibits 1 through 4. Exhibit 1 is the Certified Record as compiled by the Commission; this exhibit was introduced by TPCIGA. Exhibit 2 is the Claimant’s medical records ordered by date; this exhibit was also introduced by TPCIGA. Exhibit 3 is the billing records for Community Rehab; this exhibit was introduced by TPCIGA. Exhibit 4 is the Claimant’s medical records ordered by provider; this exhibit was introduced by Community Rehab. The record closed on April 15, 2003.

II.BACKGROUND

Claimant sustained a work-related injury on_________, as the result of a fall from a scaffold. At the time of his injury, Claimant was _____ old. On July 11, 2000, the Claimant first saw Jack LoCascio, D.C., who became Claimant’s treating doctor. Dr. LoCascio is the owner of both Community Rehab and the LoCascio Care Clinic which are both operated out of the same location. Dr. LoCascio diagnosed the claimant with 1) Sciatica (ICD-9 Code 724.3), 2) Disturbance of skin sensation (ICD-9 Code 782.0), 3) Lumbosacral plexus lesions (ICD-9 Code 353.1), and 4) Sprains and strains of shoulder and upper arm, other specified sites of shoulder and upper arm (ICD-9 Code 840.8). Dr. LoCascio took Claimant off work on January 11, 2000. Claimant underwent approximately two months of passive physical therapy at Community Rehab continuing through September 13, 2000. On September 18, 2000, Claimant then began what was described as a re-conditioning program. The re-conditioning program consisted of approximately a month of active physical therapy at Community Rehab with each physical therapy session lasting approximately 2 hours and 45 minutes. The re-conditioning program continued through October 18, 2000. On October 24, 2000, the Claimant began an approximately four-week work conditioning program at Community Rehab continuing through November 17, 2000. The work conditioning program typically lasted eight hours per day. The total charges in dispute for the work conditioning program were $5,292. On November 20, 2000, Claimant began an approximately six week work hardening program at Community Rehab continuing through December 29, 2000. The work hardening program typically lasted eight hours per day. The total charges in dispute for the work hardening program were $8,512.

At issue is Community Rehab’s entitlement to reimbursement for both the work conditioning and work hardening programs. The Carrier denied payment for the services using denial code T for treatment guidelines and F for fee guidelines. The Medical Review Division (“MRD”) ruled that Community Rehab had followed the Spine Treatment Guideline and Medical Fee Guideline Medicine Ground Rules and was therefore entitled to reimbursement for both the work conditioning and work hardening programs. TPCIGA timely filed its appeal to the MRD’s decision and requested this hearing.

III. DISCUSSION

A. TPCIGA’s Position

TPCIGA asserted that neither the work conditioning program nor the work hardening program met the requirements for those programs set forth in the Spine Treatment Guideline[1] and Medical Fee Guideline Medicine Ground Rules. Rule 134.1001(F)(3)(E) of the Spine Treatment Guideline states that once the injured employee has sufficiently recovered, a Functional Capacity Evaluation (FCE) is usually performed to determine whether or not the injured employee is considered a candidate for a work hardening or work conditioning program. A FCE was not performed prior to either the work conditioning or work hardening programs. Instead, only computerized muscle testing was performed. This testing did not include a physical examination and neurological evaluation, range of motion testing, hand function tests, cardiovascular endurance testing, or static positional tolerance testing, which are all required as part of an FCE pursuant to the Medical Fee Guideline Medicine Ground Rules at I.E.2. Because FCEs were not performed prior to the work conditioning and work hardening programs, an accurate assessment of Claimant’s functional abilities and needs could not be made. Rule 134.1001(e) (L) of the Spine Treatment Guideline mandates that programs such as work hardening and work conditioning should be tailored to physical demands required by job specificity. TPCIGA asserted the Provider did not comply with this rule because it never contacted the employer to ascertain the Claimant’s specific job requirements and did not specifically ask the worker what type of laborer he was.

TPCIGA also contended that the work conditioning and work hardening programs failed to comply with Rule (e) (3) (D) of the Spine Treatment Guideline, which states that documentation for rehabilitation programs such as work conditioning, work hardening, or outpatient medical rehabilitation should show objective, substantive, and continued improvement over time that correlates to the job description the injured employee will most likely enter upon completion of the program. TPCIGA contended that the work conditioning and work hardening programs provided by Community Rehab did not meet this requirement. Specifically, TPCIGA argues that the daily work conditioning notes did not contain objective measurements such as the amount of weight being lifted by Claimant in the various activities which would allow a determination of his progress, or lack thereof. TPCIGA further argued that while the work hardening notes do list the amount of weight lifted in various activities, the numbers cannot be relied upon as they appear to be contrived, inconsistent, and cannot be correlated with the other test results. Finally, TPCIGA argued that to the extent the results from the computerized muscle testing performed on October 20, 2000, November 17, 2000, and December 29, 2000, can be relied upon as valid, a comparison of the results reveals a lack of substantive and continued improvement over time in the areas tested.

B. Community Rehab’s Position

Community Rehab complained that the Carrier failed to comply with TWCC Rule 133.304(c) because it did not provide sufficient notice of its denial when it used generic payment exception codes T and F. Community Rehab asserted that it submitted a complete bill in accordance with 28 Tex. Admin. Code § 133.1(a)(3)(E)(I). Community Rehab asserted further that use of code T was inappropriate because it had in fact complied with all of the requirements of the Spine Treatment Guideline. Community Rehab also disputed that it insufficiently documented Claimant’s job requirements. Community Rehab knew the Claimant was a _______, and Community Rehab knew the general job description and duties of a _______. Community Rehab argued that STG Ground Rule (e)(2)(L) allows a claimant to get back to a reasonable level of physical functioning.

C. ALJ’s Analysis

Work conditioning is a highly structured, goal-oriented, individualized treatment program using real or simulated work activities in conjunction with conditioning tasks. Work conditioning programs are single discipline in nature and are intended to address the functional, physical, behavioral, and vocational needs of the injured worker. Work hardening is an individualized, highly structured, goal-oriented treatment program designed to maximize the ability of the person receiving the treatment to return to work. In contrast to work conditioning programs, work hardening programs are interdisciplinary in nature but, like work conditioning programs, they are also intended to address the functional, physical, behavioral, and vocational needs of the injured worker. The Commission has adopted rules governing work conditioning and work hardening programs. The rules, found in the Spine Treatment Guideline and Medical Fee Guideline, relate to, among other things, when work conditioning and work hardening programs are appropriate, how such programs are to be administered and billed, and what documentation is required of work conditioning and work hardening providers.

The evidence establishes that neither the work conditioning nor work hardening programs met the requirements of the Spine Treatment Guideline. The Spine Treatment Guideline provides that once the injured employee has sufficiently recovered, an FCE is usually performed to determine whether or not the injured employee is a candidate for a work hardening or work conditioning program. In this case, an FCE was not performed prior to the start of either program. The computerized muscle testing that was performed did not meet the requirements for FCEs because it did not include, among other requirements, range of motion testing, cardiovascular endurance testing, or static positional tolerance testing. Without such information, appropriate base line measurements could not be established to gauge Claimant’s progress in the programs.

The evidence also establishes that the work conditioning and work hardening programs were not tailored to the Claimant’s specific job demands. Community Rehab did not obtain a job description from Claimant’s employer and did not specifically ask Claimant what type of laborer he was. Community Rehab asserts that their knowledge that the Claimant was a _____ is sufficient. This argument is unconvincing however, as there might be differences in the job requirements of different types of _______. For example, a mason would most likely have different job requirements than a framing carpenter, even though both of these jobs are in the construction field.

The ALJ also finds that the work conditioning and work hardening programs failed to comply with Rule (e) (3) (D) of the Spine Treatment Guideline, which states that documentation for work conditioning and work hardening programs should show objective substantive and continued improvement over time that correlates to the requirements of the job the injured employee will most likely enter upon completion of the program. The work conditioning notes do not contain objective measurements which would allow a determination of the Claimant’s progress over time. Although the work hardening notes do list the amount of weight lifted in the various activities, the numbers simply cannot be relied upon as accurate for the following reasons.

The weekly exercise chart for each week shows the claimant lifting the same amount of weight for all eighteen of the listed exercises for the entire week. For example, the weekly exercise chart for the week of December 4, 2000, through December 8, 2000, shows Claimant doing 50 lbs. 24 times on the arm curl and also 50 lbs. 24 times on the bench press and leg press. Absent some unique circumstance which was not documented or otherwise explained at the hearing, it simply does not make sense that Claimant would be doing the same amount of weight on something like an arm curl or tricep extension as on the leg press or squats.

Not only is the amount of weight listed the same for all eighteen exercises for each day, but there is no change listed in the amount of weight lifted from day to day during the week. For example, for the week of December 4, 2000, through December 8, 2000, the weekly exercise chart lists 50 lbs. 24 times for every exercise, for every day of the week. Interestingly, although there is no change during the week, there is significant fluctuation from week to week. For example, for the week of December 11, 2000, through December 15, 2000, the weekly exercise chart lists a drop to 40 lbs. 24 times for every exercise, for every day of the week Claimant was present. The following week of December 18, 2000, through December 22, 2000, the Claimant is purportedly up to 60 lbs. 12 times for every exercise, for every day of the week Claimant was present.

The figures reported in the weekly exercise notes for the work hardening program also cannot be correlated with the results from the computerized muscle testing. The weekly exercise notes for the week of December 26, 2000, through December 29, 2000, show Claimant doing 60 lbs. 12 times for every exercise, for every day of the week. However, the computerized muscle testing performed on December 29, 2000, shows that the maximum Claimant can do is significantly less for similar activities. For example, on the push out which Dr. Bhatt testified is similar to the chest press, it indicates that Claimant could only do a maximum of 23.2 lbs., although earlier in the day he reportedly did 60 lbs. 12 times.

The inconsistencies between the weekly exercise charts and the computerized muscle testing, which cannot be reconciled, make both unreliable. However, to the extent the results from the computerized muscle testing performed on October 20, 2000, November 17, 2000, and December 29, 2000, could be relied upon as valid, a comparison of the results reveals a lack of substantive and continued improvement over time in the areas tested.

For example, comparing the results from the muscle testing performed on October 20, 2000, prior to the work conditioning program, to the muscle testing performed afterwards, on November 17, 2000, shows an increase of only 3 lbs. in the high far lift, from 18.5 lbs. to 21.5 lbs.; an increase of only 1.6 lbs. in the push down, from 20.2 lbs. to 21.8 lbs.; an increase of only 2.8 lbs. in the pull in, from 18.0 lbs. to 20.8 lbs.; and so on down the list.

Comparing the results from the muscle testing performed on November 17, 2000, prior to the work hardening program, to the muscle testing performed afterwards, on December 29, 2000, shows an increase of only 3 lbs. in the high far lift, from 21.5 lbs. to 24.5 lbs.; an increase of only 2 lbs. in the back lift, from 25.8 lbs. to 27.8 lbs.; an increase of only 2 lbs. in the pull down, from 32.5 lbs. to 34.5 lbs.; and so on down the list.

To the extent that the numbers reported in the muscle testing reports could be considered valid, the negligible improvements reported in the muscle testing reports cannot be considered significant for a twenty-year-old male who has been through an eight-hour per day work conditioning program lasting approximately four weeks and an eight hour per day work hardening program lasting almost six weeks. According to the muscle testing report of December 29, 2000, the Claimant was still in the bottom 10% for the applicable population in every category.

The documentation of the work conditioning and work hardening programs reveals a lack of substantive and continued improvement over time. If the program was being administered properly and the Claimant’s response to treatment was being properly documented and reviewed, the treatment plan could have been changed or he could have been discharged if there was limited potential for further benefit.

For these reasons, the ALJ finds that the disputed work conditioning and work hardening programs did not meet the requirements of the Commission’s Spine Treatment Guideline.The ALJ also finds that Carrier's use of the denial code T sufficiently notified Community Rehab that it was not in compliance with the Commission’s Spine Treatment Guideline. Thus, the Carrier satisfied the requirements of 28 TAC 133.304(c) and Tex. Lab. Code Ann. § 408.027(d).

IV. FINDINGS OF FACT

  1. Claimant, a construction worker, sustained a compensable injury on_________.
  2. At the time of the injury, Claimant’s employer had its workers' compensation insurance through United Pacific Insurance Company (Carrier).
  3. United Pacific Insurance Company subsequently went into receivership.
  4. The Texas Property and Casualty Insurance Guaranty Association (TPCIGA) has been appointed as receiver to handle the claims of United Pacific Insurance Company.
  5. Community Rehab treated Claimant with approximately four weeks of work conditioning from October 24, 2000 through November 17, 2000.
  6. Community Rehab treated Claimant with approximately six weeks of work hardening from November 20, 2000 through December 29, 2000.
  7. The amount in dispute for the work conditioning program is $5,292.
  8. The amount in dispute for the work hardening program is $8,512.
  9. The Carrier denied reimbursement for both the work conditioning and work hardening programs.
  10. The Carrier denied payment for the services using denial code T for treatment guidelines and F for fee guidelines.
  11. Community Rehab and Work Conditioning appealed the Carrier’s reimbursement denial to the Medical Review Division (MRD) of the Texas Workers' Compensation Commission.
  12. On April 29, 2002, the MRD ruled that Community Rehab had followed the Spine Treatment Guideline and Medical Fee Guideline Medicine Ground Rules and was therefore entitled to reimbursement for both the work conditioning and work hardening programs.
  13. TPCIGA timely filed its appeal to the MRD’s decision and requested this hearing.
  14. On May 10, 2002, TPCIGA filed its request for hearing concerning the Decision and Order of the Medical Review Division with the TWCC Chief Clerk of Proceedings.
  15. The Commission sent notice of the hearing to the parties. The hearing notice informed the parties of the time, place, and nature of the hearing; the legal authority and jurisdiction under which the hearing was to be held; the statutes and rules involved; and the matters asserted.
  16. A Functional Capacity Exam (FCE) was not performed prior to the start of the work conditioning or work hardening program.
  17. The computerized muscle testing that was performed did not meet the requirements for FCEs because it did not include, among other requirements, range of motion testing, cardiovascular endurance testing, or static positional tolerance testing.
  18. The work conditioning and work hardening programs were not tailored to Claimant’s specific job demands.
  19. Community Rehab did not obtain a job description from Claimant’s employer and did not specifically ask Claimant what type of laborer he was.
  20. The work conditioning notes do not contain objective measurements which would allow a determination of Claimant’s progress over time.
  21. Although the work hardening notes do list the amount of weight lifted in the various activities, the numbers simply cannot be relied upon as accurate.
  22. The weekly exercise chart for each week shows the claimant lifting the same amount of weight for all eighteen of the listed exercises for the entire week.
  23. There is no explanation for why Claimant would be doing the same amount of weight on something like an arm curl or tricep extension as on the leg press or squats.
  24. There is no change listed in the amount of weight lifted from day to day during the week.
  25. There is significant fluctuation in the amount lifted from week to week.
  26. The figures reported in the weekly exercise notes for the work hardening program cannot be correlated with the results from the computerized muscle testing.
  27. The inconsistencies between the weekly exercise charts and the computerized muscle testing, which cannot be reconciled, make both unreliable.
  28. To the extent the results from the computerized muscle testing performed on October 20, 2000, November 17, 2000, and December 29, 2000, could be relied upon as valid, a comparison of the results reveals a lack of substantive and continued improvement over time in the areas tested.
  29. According to the muscle testing report of December 29, 2000, the Claimant was still in the bottom 10% for the applicable population in every category, which was unusually low for a _____ male and inadequately explained by Community Rehab records.
  30. If the Claimant’s response to treatment was being properly documented and reviewed, the treatment plan could have been changed or he could have been discharged if there was limited potential for further benefit.

V. CONCLUSIONS OF LAW

  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(k) and Tex. Gov't Code Ann. ch. 2003.
  3. TPCIGA timely filed a 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 and 28 TAC § 148.4(b).
  5. TPCIGA had the burden of proving the case by a preponderance of the evidence, pursuant to 28 TAC § 148.21(h) and (I).
  6. The Carrier satisfied the requirements of 28 TAC 133.304(c) and Tex. Lab. Code Ann. § 408.027(d) (Vernon 1996 & Supp. 2002) when it used denial code T to notify Community Rehab and Work Conditioning that it was not in compliance with the Commission’s Spine Treatment Guideline

7 TPCIGA proved by a preponderance of the evidence that Community Rehab and Work Conditioning failed to comply with the requirements of the Spine Treatment Guideline. 28 Tex. Admin. Code §134.1001 (abolished by statute effective January 1, 2002).

8 Based on the foregoing findings of fact and conclusions of law, TPCIGA has proven its claim that the $14,004 listed in dispute in the MRD’s decision should not be reimbursed.

ORDER

It is hereby ordered that Community Rehab and Work Conditioning’s request for reimbursement is denied.

Signed this 24th day of April 2003.

Bill Zukauckas
Administrative Law Judge
State Office of Administrative Hearing

  1. The Spine Treatment Guideline was abolished by statute, effective January 1, 2002. However, it was in effect at all times relevant to this case. 28 Tex. Admin. Code § 134.1001 (abolished by statute effective January 1, 2002).
End of Document
Top