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At a Glance:
Title:
453-03-0376-m5
Date:
December 2, 2002
Status:
Retrospective Medical Necessity

453-03-0376-m5

December 2, 2002

DECISION AND ORDER

The Suchowiecky Center (Petitioner) appeals from the Findings and Decision of the Texas Workers’ Compensation Commission’s Medical Review Division (MRD), which denied reimbursement for work conditioning services provided to Claimant ____Petitioner contends that MRD’s decision should be reversed because the services were adequately documented and were medically reasonable and necessary. The dates of service are January 29, 2001, through February 24, 2001, and the amount in dispute is $2,975.00. Respondent ___________ (Respondent or Carrier) contends that the services were not medically necessary, were not preauthorized, and were not treating-doctor approved. This Decision and Order finds that the work conditioning services were not medically necessary and denies Petitioner’s appeal.

I. JURISDICTION, NOTICE, AND VENUE

There were no contested issues of jurisdiction, notice, or venue. Therefore, those issues are addressed in the Findings of Fact and Conclusions of Law without further discussion here.

II. STATEMENT OF THE CASE

Administrative Law Judge (ALJ) Thomas H. Walston convened a hearing in this case on November 21, 2002, at the State Office of Administrative Hearings, William Clements State Office Building, 300 15th Street, Austin, Texas. The Suchowiecky Center appeared by telephone through its representatives, Dr. Mary Ann Spires, D.C., and Ms. Lyliam Caridad. Attorney Steven M. Tipton represented Respondent. The Commission waived its appearance. The ALJ concluded the hearing and closed the record the same day.

III. DISCUSSION

A. Introduction/Background

Claimant ____sustained a compensable injury to her right shoulder while carrying a bucket of water on_______, in the course of her employment as a cashier at______________.

On July 16, 1996, _____saw a Dr. Razzi, who diagnosed her condition as shoulder strain. Dr. Razzi released _____to return to work with a restriction of not lifting over 30 pounds.

Apparently, ______did not seek additional medical care for her injury until October 29, 1997. On that date she saw a Dr. Shpats and made complaints of burning pain in her shoulder at night and difficulty performing her daily activity. Dr. Shpats diagnosed her condition as chronic persistent post-traumatic right shoulder tendonitis, and he referred her to an orthopedic surgeon.

____then saw Dr. Ronald Frasher on November 10, 1997. Dr. Frasher recommended a local steroid injection, Medrol Dosepak, and physical therapy. ____received the injection on November 20, 1997. X-rays of ____shoulder were normal, and Dr. Frasher diagnosed her condition as shoulder strain with some bursitis.

An MRI of ____shoulder taken on January 9, 1998, showed no abnormality; a second MRI taken on February 6, 1998, showed a possible full thickness 8 mm tear of the supraspinatus tendon. ___then underwent arthroscopic surgery by a Dr. Sardini on February 11, 1998. The surgery revealed no significant abnormality within the joint itself but did show some bursitis, so a subacromial decompression was performed. No full thickness rotator cuff tears were noted. ___continued with physical therapy and continued to report pain.

On August 27, 1998, Dr. William Bryan performed a repeat shoulder arthroscopy. Again, no full thickness rotator cuff tears were noted and ____had full range of motion, but a capsular shrinkage was carried out due to some reported laxity.

_____saw Dr. Michael Kladis on October 5, 1998. He thought ____had cervical radiculitis and an impingement syndrome of the right shoulder. On October 7, 1998, an arthrogram was performed, which was normal and showed no rotator cuff tears. Dr. Kladis concluded that ____reached Maximum Medical Improvement (MMI) as of December 7, 1998, and he thought she was qualified for a light to medium work category. His records for that date also note full range of motion with good muscle function.

On October 30, 1998, _____underwent a Functional Capacity Evaluation (FCE) and was referred to a work hardening program. This work hardening program was provided by Whole Body Rehab in Houston, and it ran from October 30, 1998 through December 1, 1998.

_____next saw Dr. Robert Zayas on December 8, 1998, and he thought she would benefit from medical management. Dr. Zayas prescribed Naprosyn, Norflex, and Tylenol # 4, and he referred her for physical therapy and recommended additional diagnostic studies.

Dr. Nicholas Checkles saw _____on March 15, 1999. He placed _____at MMI and assessed a whole person impairment of 3%. ____then saw Dr. Buck Derek, D.C., on April 14, 1999. He also placed her at MMI but assessed 31% whole person impairment.

It is not clear from the record when ____was referred to the Suchowiecky Center, but the Center provided ____with 30 sessions of pain management services between October 5, 2000, and January 10, 2001. Then, the Center provided the work conditioning services in dispute in this case between January 29 and February 24, 2001.

Finally, Dr. Michael T. McCann performed an independent medical examination on ____on March 7, 2001. He found that she had full range of motion in her shoulder with no weakness, and he suspected that she had some cervical degenerative disc disease and spondylosis producing pain in the right trapezius. Dr. McCann also noted that _____had been through extensive therapy without additional benefit.

The record does not indicate what additional medical evaluation or treatment, if any, that ____has received since March 2001.

B. Suchowiecky Center’s Contentions

The Suchowiecky Center contends that the work conditioning program was medically necessary, and it argues that the MRD erred in finding that it was not. Dr. Mary Ann Spires, D.C., testified for Petitioner on this issue. She relied on an FCE that she performed on ___on January 19, 2001, which showed ___at a sedentary demand level while her job required a higher light-duty demand level. She also noted that_____ had two surgeries on her shoulder in addition to steroid injections. Therefore, Dr. Spires thought that _____would likely benefit from the work conditioning program.

In response to Carrier’s argument that preauthorization should have been obtained, Dr. Spires pointed out that the rules did not require preauthorization for work conditioning services when they were provided to _____In response to Carrier’s argument that there was no continuing treating-doctor approval after the program began, Dr. Spires stated that she was not aware at the time that _____had terminated her treating doctor and that it would be inequitable to deny reimbursement on that ground.

On cross examination, Dr. Spires stated that she was aware that____ had undergone a work hardening program when she recommended work conditioning. She also testified that____ had undergone 30 sessions of pain management between October 5, 2000, and January 10, 2001, and that the pain management program included about 45 minutes of physical conditioning during each session.

C. Carrier’s Contentions

Carrier relied on the official record, which includes a medical-records-review report from Dr. Donald Mauldin and a designated-doctor medical report from Dr. Michael McCann. Carrier also offered into evidence additional documentation concerning the work hardening program that ____attended in late 1998.

Carrier argues that Petitioner is not entitled to reimbursement because the work conditioning services were not medically reasonable or necessary to cure or relieve the effects of the compensable injury. Carrier cites Dr. Mauldin’s report, in which he states that ____had no major objective abnormalities and that the work conditioning program would be of no value to ____Carrier also points to Dr. McCann’s report, which states that____ never had a rotator cuff tear, that she had no evidence of radiculopathy or myelopathy, and that her active range of motion was within normal limits. Further, Carrier emphasizes that____ was not a suitable candidate for a work-conditioning program and that the MRD found these services were not medically necessary.

Carrier also contends that Petitioner should have obtained preauthorization for the work conditioning program. Carrier concedes that preauthorization was not required at that time for work conditioning, per se, but notes that preauthorization was required when work conditioning extended beyond four weeks. In Carrier’s opinion, ____prior four-week work hardening program should be considered as “work conditioning-plus,” thus requiring Claimant to get preauthorization to provide additional work conditioning, because the two programs combined exceeded four weeks.

Finally, Carrier argues that Petitioner’s claim should be denied because Petitioner did not have a treating doctor referral as the program progressed. Carrier points out that ____terminated Dr. Zayas as her treating doctor shortly after the work conditioning program began, and that Petitioner did not get any other treating-doctor approval to continue the work conditioning program.

IV. ALJ’S ANALYSIS AND DECISION

The ALJ concludes that the Suchowiecky Center’s has not shown that the work conditioning program was medically reasonable and necessary. In particular, the ALJ finds that Petitioner did not establish that ____was a person likely to benefit from work conditioning, as required by the Medical Ground Rules.

The Texas Workers’ Compensation Medicine Ground Rules provide the following admission criteria for work conditioning:

a.persons who are likely to benefit from the program;

b.persons whose current level of functioning due to illness or injury interferes with their ability to carry out specific identifiable tasks required in the work place; and

c.persons whose medical, psychological, or other conditions do not prohibit participation in the program.

In this case, ____underwent an FCE ten days prior to the work conditioning program. The FCE indicated that ____could perform at a sedentary level but not at the light duty level required of her job.[1] Although this may have established item b. of the admission criteria, it did not establish either item a. or c. Further, the ALJ finds that petitioner did not establish criterion that ____was likely to benefit from work conditioning. Instead, the evidence showed that _____was not likely to benefit. She had already undergone 30 sessions of pain management (which included physical conditioning) immediately prior to the work conditioning program, as well as work hardening and extensive physical therapy earlier in her treatment. Yet, after all this, ____apparently had not even progressed beyond a sedentary work level. Further, notes from the work conditioning program showed that____ was not motivated. Dr. Spires’ weekly notes for February 6 and 12, 2001, state that____ body mechanics and motivation were “poor” and that she needed encouragement just to complete her exercises. In fact, it appears that ____never progressed enough during the entire program even to lift weights. In addition, the daily notes from the program are practically indecipherable, and it is not possible to determine what progress, if any_____made in the work conditioning program.

Under this record, the ALJ finds that Petitioner has not established that____ was a person likely to benefit from the work conditioning program. Instead, the evidence showed that___ was not motivated, and apparently she received no benefit from the extensive physical therapy, work hardening, and pain management that she had already received. Under these facts, the ALJ concludes that _____did not meet the Medicine Ground Rule criteria for entering a work conditioning program, that the program was not medically reasonable and necessary, and that Petitioner’s appeal should be denied.

V. CONCLUSION

In summary, the ALJ denies Petitioner’s appeal because Petitioner did not establish that the work conditioning program was medically reasonable and necessary. Therefore, Petitioner is not entitled to any additional reimbursement.

VI. FINDINGS OF FACT

  1. On_______, Claimant _____sustained a compensable injury during the course and scope of her employment with ______________.
  2. At the time____ sustained the compensable injury, _________was self-insured for workers’ compensation insurance coverage.
  3. On January 19, 2001, _____underwent a Functional Capacity Evaluation (FCE) at the Suchowiecky Center in Houston, Texas. Dr. Mary Ann Spires, D.C., performed the FCE.
  4. The FCE performed on ____on January 19, 2001, established that _____performed at a sedentary level while her job required a light-duty work level. However, the FCE did not establish that _____would likely benefit from a work conditioning program.
  5. Between January 29 and February 24, 2001, the Suchowiecky Center provided work conditioning services for ____
  6. Prior to the work conditioning program, ____had undergone a work hardening program from October 30 through December 1, 1998, and 30 sessions of pain management from October 5, 2000, through January 1, 2001. The pain management program included at least 45 minutes of physical conditioning during each session. In addition___had received extensive physical therapy. In spite of all these services____had not progressed beyond a sedentary work level by January 19, 2001.
  7. ____had poor motivation during the work conditioning program provided by the Suchowiecky Center.
  8. The Texas Workers’ Compensation Commission’s Medicine Ground Rules provide the following admission criteria for work conditioning:

a.persons who are likely to benefit from the program;

b.persons whose current level of functioning due to illness or injury interferes with their ability to carry out specific identifiable tasks required in the work place; and

c.persons whose medical, psychological, or other conditions do not prohibit participation in the program.

  1. ____was not a person likely to benefit from a work conditioning program.
  2. The work conditioning program provided to ____did not meet the Medicine Ground Rules criteria and was not medically reasonable and necessary.
  3. The Carrier refused to pay for the services described in Finding of Fact No. 5.
  4. The Suchowiecky Center requested medical dispute resolution at the Texas Workers Compensation Commission Medical Review Division.
  5. In its Findings and Decision dated July 19, 2002, in MDR Docket No. M5-02-1423-01, the Commission denied the Suchowiecky Center’s request for reimbursement for the services described in Finding of Fact No. 5.
  6. The Suchowiecky Center filed a timely request for hearing to appeal the decision of the Medical Review Division.

VII. CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issues presented pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code §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 §§402.073(b) and 413.031(d) and Tex. Gov’t Code Ann., Ch. 2003.
  3. Petitioner timely requested a hearing pursuant to 28 Tex. Admin. Code §§102.3, 102.5(h), 102.7 and 148.3.
  4. The parties received adequate and timely notice of the hearing pursuant to Tex. Gov’t Code § 2001.051 and 2001.052.
  5. Venue was established pursuant to 28 Tex. Admin. Code §148.6.
  6. The Suchowiecky Center had the burden of proof in this matter to establish its claim by a preponderance of the evidence. 28 Tex. Admin. Code §148.21(h) and (i).
  7. Based on Findings of Fact Nos. 6-10, the Suchowiecky Center failed to establish by a preponderance of the evidence that a work conditioning program was medically reasonable and necessary for ___
  8. Based on Conclusion of Law Nos. 7, the Suchowiecky Center’s request for reimbursement should be denied.
  9. Based on Conclusion of Law No. 8, Carrier is not liable to reimburse the Suchowiecky Center for the work conditioning services provided to ____.

ORDER

IT IS, THEREFORE, ORDERED that Petitioner Suchowiecky Center’s request for reimbursement is denied with respect to work conditioning services provided by the Suchowiecky Center to ____from January 29, 2001, through February 24, 2001. IT IS FURTHER ORDERED that the Suchowiecky Center shall have and recover nothing from _________for the claims made the basis of this proceeding.

Signed December 2, 2002.

_______________________________________THOMAS H. WALSTON
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. Carrier objected to the FCE being admitted into evidence because Petitioner never provided it to the MRD. The ALJ admitted the FCE into evidence but concludes that the FCE and other evidence do not establish that work conditioning was appropriate for ___
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