DECISION AND ORDER

Central Dallas Rehab (Petitioner) appealed a Texas Workers’ Compensation Commission (TWCC) Medical Review Division (MRD) decision denying reimbursement in a medical claim dispute. After considering the evidence, the Administrative Law Judge (ALJ) denies Petitioner’s claim for reimbursement because Petitioner (1) has failed to establish that the treatment in issue was medically necessary for Claimant’s compensable injury; (2) has not shown that the treatment was properly documented; and (3) has not shown that the treatment was properly provided in an interdisciplinary fashion as required.

I. JURISDICTION, VENUE, AND NOTICE

TWCC has jurisdiction over this matter pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 413.031. The State Office of Administrative Hearings (SOAH) 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. § 413.031(k) and Tex. Gov’t Code Ann. ch. 2003. Venue was established in this matter according to 1 Tex. Admin. Code § 155.13. Neither party challenged jurisdiction or venue.

TWCC issued its Notice of Hearing on November 4, 2002, directed to the parties at their service addresses of record. The notice contained a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted, as required by Tex. Gov’t Code Ann. § 2001.052.

II. PROCEDURAL HISTORY

On June 21, 2002, MRD issued a decision in TWCC docket number M5-02-0557-01, denying reimbursement for certain claims regarding ____ (Claimant), for service dates February 21, 2001 through June 18, 2001. Petitioner requested a hearing on June 26, 2002.

On March 4, 2003, a hearing convened before SOAH ALJ Tommy L. Broyles, by telephone from 6333 Forest Park Road, Suite 150-A, Dallas, Dallas County, Texas. Petitioner was represented by Scott C. Hilliard, Attorney. Respondent was represented by Tommy W. Lueders, Attorney. TWCC staff elected not to participate. Both parties presented evidence at the hearing. After the parties filed written closing arguments, the record closed on March 14, 2003. The file was transferred to ALJ Monica Garza who reviewed the record and issues this decision and order.

III. DISCUSSION

Background

Claimant alleged a wrist injury after striking her right hand on a brass statue while walking at her workplace on_______. Claimant initially sought medical services related to the injury from Michael Doyle, M.D., who treated Claimant by prescribing medications for pain and inflammation, including steroid injections. Claimant later sought medical services from Dean Allen, D.C., who treated Claimant with specific chiropractic spinal manipulations, myofascial release, joint mobilization, and manual traction. On February 12, 2001, an MRI revealed no abnormal findings in Claimant’s right hand. On February 21, 2001, an FCE was administered, which led to Claimant’s participation in services described by Petitioner as a work hardening program.

From April 2, 2001 through May 9, 2001, Claimant participated in Petitioner’s work hardening program. Petitioner sought reimbursement for these services provided to Claimant from Respondent, who was the carrier for Claimant’s employer at the time of her injury. In denying Petitioner’s claim for work hardening reimbursement, Respondent used one or more of the following denial codes for each date of service: (1) “unnecessary medical treatment or service”; (2) “unnecessary treatment with peer review”; (3) “extent of injury, not related to compensable injury”; and (4) “not appropriately documented, per docs does not meet TWCC standard for interdisciplinary program.” Based on Respondent’s reimbursement denial, Petitioner filed a request with TWCC for medical dispute resolution.

The Treatment Was Not Medically Necessary

Evidence

In support of Petitioner’s claim for reimbursement, Dr. Allen prepared a letter on June 13, 2001, summarizing the decision to provide work hardening services to Claimant. Dr. Allen references discussing Claimant’s case with Dr. Jack Scherschell, a counselor, and indicates that he and Dr. Scherschell agreed that Claimant would benefit from a work hardening program. No other documentation supporting this opinion of Dr. Scherschell appears in the record.

In further support of Petitioner’s claim for reimbursement, a letter addressed to the MRD was prepared on behalf of Dr. Allen and Dr. Haycock on October 2, 2001. In the letter, progress notes and a treatment plan from John C. McConnell, M.D. are referenced in support of Petitioner’s claim for work hardening reimbursement.

The letter references Dr. McConnell’s opinion that Claimant would benefit from physical therapy. The evidence shows that Dr. McConnell examined Claimant on May 24, 2001. However, the progress notes and treatment plan for Claimant were not included in the record. Instead, Dr. McConnell’s records for two other patients were included.

Also included in Petitioner’s documentation are records from Claimant’s range of motion testing conducted on March 19, 2001. The following handwritten notation appears on one page of the testing records: “Still in significant pain. Ability is not increasing greatly. Will recommend a strengthening program to increase strength.”

Petitioner filed several Health Insurance Claim Forms regarding Claimant. On these forms, Section 15 inquires as to dates the patient has been unable to work in her current occupation. In all instances, this portion of the form has been completed as “N/A,” which would indicate that Claimant has not been prevented from working in her occupation as a pharmacy clerk.

In support of its reimbursement denial, Respondent provided a letter prepared by W. Bryan Woods, D.O., on March 17, 2001. In this letter, Dr. Woods expresses the following opinion:

The claimant’s ongoing and chronic care does not appear to be producing measurable or objective improvement, does not appear directed at progression for return to work, and does not appear provided in the least intensive and most cost effective setting as specified by the Treatment Guidelines…The claimant’s care has far exceeded the recommendations of the Treatment Guidelines for Level 1-3 care.

Respondent also references the lack of evidence regarding Claimant’s actual job duties. The record demonstrates that Petitioner used the OSHA guidelines for a pharmacy clerk to determine the necessity of work hardening services, as opposed to ascertaining Claimant’s actual job duties from her employer.

Analysis

TWCC has adopted rules governing work hardening programs. The rules, found in the Medical Fee Guideline (MFG) Medicine Ground Rules relate to, among other things, when work hardening is appropriate, how such programs are to be administered and billed, and what documentation is required of work hardening providers.^[1]

MFG Medicine Ground Rule II. E. (1) provides that work hardening would be suitable if:

person was likely to benefit from the program;

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;

person whose medical, psychological, or other conditions do not prohibit participation in the program; and

person is capable of attaining specific employment upon completion of the program.

In applying these guidelines to Claimant, the ALJ finds that a work hardening program was not the least intensive and most cost effective setting to treat Claimant’s injury.

Regarding the decision to place Claimant in the work hardening program, it appears that the recommendation following the range of motion testing was for Claimant to participate in a strengthening program to increase strength. The work hardening program provided to Claimant is far more intensive and costly than this recommendation. Dr. Allen cited the opinion of the counselor, Dr. Scherschell that Claimant would benefit from the program but no other evidence of this opinion is included in the record. Further, the progress notes and treatment plan from Dr. McConnell, also cited by Dr. Allen in support of the work hardening program, are not included in the record. Finally, the evidence shows that Dr. McConnell did not examine Claimant until May 24, 2001, a few weeks after the work hardening program ended.

One of the primary objectives of a work hardening program is to prepare an injured worker to return to work. In this case, there is insufficient evidence to indicate that Claimant’s injury interfered with her ability to perform her duties as a pharmacy clerk. Petitioner failed to ascertain Claimant’s actual job duties before placing her in this intensive program designed to help her return to her normal job functions. Because Claimant’s actual duties are unknown, it cannot be determined whether placement in an intensive work hardening program was appropriate. Further, Petitioner’s own claim forms indicate that Claimant was able to work in her current occupation even after incurring her injury.

The Treatment Was Not Properly Documented in Accordance With TWCC’s Rules

Evidence

The work hardening program records contain a “subjective evaluation” section, wherein Claimant’s body biomechanics, pace, pain, social interaction, effort, endurance, and limiting factors during exercises are rated in general terms, such as “fair, poor, moderate, and good.” This subjective evaluation rates Claimant’s performance for the entire day, and does not rate the factors for individual activities. Although an overview of Claimant’s activities is provided for each date of service, the same description of each activity appears for each date of service. The records do not document Claimant’s actual measured performance on individual activities for each date of service. Further, the records do not compare Claimant’s abilities on individual activities as she progressed through the work hardening program.

Analysis

TWCC’s treatment ground rules address, among other things, requirements for documentation. 28 Tex. Admin. Code §134.1002(e)(2) provides:

(A) Notwithstanding any other provision of this rule, treatment of a work related injury must be:

(i) adequately documented;

(ii) evaluated for effectiveness and modified based on clinical changes;

(iii) provided in the least intensive setting;

(iv) cost effective;

(v) consistent with this guideline which may include providing a documented clinical rationale for deviation from this guideline;

(vi) objectively measured and demonstrate functional gains; and

(vii) consistent in demonstrating ongoing progress in the recovery process by appropriate re-evaluation of the treatment.

Petitioner failed to meet the documentation criteria for the work hardening program. Petitioner’s records fail to document Claimant’s daily performance for each activity. From these records, it is impossible to ascertain Claimant’s actual performance and compare her abilities as she progressed through the program. Therefore, the records do not demonstrate measurable, objective, substantive, and continued improvement by Claimant over time.

The Treatment Was Not Interdisciplinary in Accordance With TWCC’s Rules

Evidence

According to Petitioner’s records, Claimant participated in the following activities during the work hardening program: ergos station exercises, lifting and stacking exercises, stretching exercises, treadmill exercises, cognitive exercises, wobble board exercises, strength exercises, therapy band exercises, life cycle exercises, boing exercises, therapy ball exercises, inter-segmental traction, cryotherapy, i.e. the use of an ice pack, and group therapy. Again, Petitioner’s actual job duties are not documented as a reference in determining the best course for Claimant during the program.

Regarding the psychological element of Claimant’s program, this component comprised of only two hours. On April 26, 2001 and May 3, 2001, Claimant participated in group therapy, which consisted of a one-hour group session wherein a psychologist discussed “issues that help create the proper mind set for properly healing the area of injury and returning to work.”

Analysis

TWCC’s rules describe the components of a work hardening program. Pursuant to 28 Tex. Admin. Code § 134.1002(h)(56), work hardening is defined as:

[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. Work hardening provides a transition between management of the initial injury and return to work while addressing the issues of productivity, safety, physical tolerances, and work behaviors. Work hardening programs use real or simulated work activities in a relevant work environment in conjunction with physical conditioning tasks. These activities are used to progressively improve the biomechanical, neuromuscular, cardiovascular/metabolic, behavioral, attitudinal, and vocational functioning of the persons served.

In reviewing Petitioner’s records, the ALJ finds that the work hardening program did not provide Claimant the interdisciplinary program contemplated by the TWCC rules. The evidence supports that Claimant primarily received physical therapy from Petitioner. Regarding the functional aspects of Claimant’s program, the evidence supports that Petitioner failed to ascertain Claimant’s necessary job skills when administering these exercises. Thus, these exercises cannot be viewed as individualized and goal-oriented as required by the TWCC rules. Further, the psychological element of Claimant’s program was extremely limited. Finally, Petitioner’s manner of providing the psychological component, group therapy, demonstrates the lack of an individualized program.

Dr. Allen’s Office Visits During the Work Hardening Program

Evidence

During the course of the work hardening program, Dr. Allen billed for weekly office visits. As described by Dr. Allen in a letter dated June 13, 2001, “I also met with her on a weekly basis to ensure that she was progressing within the program and making and meeting her goals…I was also able to meet with her on a weekly basis for pain relief and to make recommendations for her strengthening programs.”

Analysis

The services provided in Dr. Allen’s weekly office visits are described by Dr. Allen as services related to the work hardening program. Dr. Allen was assigned to check on Claimant’s weekly progress in the program and to make weekly recommendations regarding her strengthening programs. However, Dr. Allen’s treatments appear to provide no medical benefit greater than what Claimant should have been receiving in the course of work hardening and there appears to be no medical justification for Claimant to be seeing Dr. Allen while undergoing work hardening. Therefore, the ALJ cannot conclude that Dr. Allen’s treatment was medically necessary.

Conclusion

The ALJ finds Petitioner’s services were not medically necessary for Claimant’s compensable injury, Claimant’s treatment was not properly documented, and Claimant’s treatment was not provided in an interdisciplinary fashion as required. Petitioner’s claim for reimbursement is denied.

IV. FINDINGS OF FACT

1. ____ (Claimant) alleged a wrist injury after striking her right hand on a brass statue while walking at her workplace on_________.
2. Claimant initially sought medical services related to the injury from Michael Doyle, M.D., who treated Claimant by prescribing medications for pain and inflammation, including steroid injections.
3. Claimant later sought medical services from Dean Allen, D.C., who treated Claimant with specific chiropractic spinal manipulations, myofascial release, joint mobilization, and manual traction.
4. On February 12, 2001, an MRI revealed no abnormal findings in Claimant’s right hand.
5. On March 19, 2001, a range of motion test resulted in a recommendation that Claimant participate in a strengthening program to increase strength.
6. From April 2, 2001 through May 9, 2001, Claimant participated in a work hardening program led by Ken Haycock, D.C.
7. Claimant was able to attend work in her current occupation even after her injury.
8. Central Dallas Rehab (Petitioner) did not ascertain Claimant’s actual job requirements prior to initiating the work hardening program.
9. Included in the work hardening services were ergos station exercises, lifting and stacking exercises, stretching exercises, treadmill exercises, cognitive exercises, wobble board exercises, strength exercises, therapy band exercises, life cycle exercises, boing exercises, therapy ball exercises, inter-segmental traction, cryotherapy, and group therapy.
10. On April 26, 2001 and May 3, 2001, Claimant participated in group therapy, which consisted of a one-hour group session wherein a psychologist discussed “issues that help create the proper mind set for properly healing the area of injury and returning to work.”
11. The work hardening program did not include meaningful functional, vocational, and behavioral components.
12. The work hardening program records contain a “subjective evaluation” section, wherein Claimant’s body biomechanics, pace, pain, social interaction, effort, endurance, and limiting factors during exercises are rated in general terms.
13. These records do not document Claimant’s actual measured performance on individual activities for each date of service, nor do they compare Claimant’s abilities on individual activities as she progressed through the work hardening program.
14. During the work hardening program, Dr. Allen billed for weekly office visits for services which provided no medical benefit greater than what Claimant should have been receiving in the course of the work hardening program.
15. Petitioner sought reimbursement for its services provided to Claimant from Association Casualty Insurance Company (Respondent), who was the carrier for Claimant’s employer at the time of her injury.
16. When Respondent denied the reimbursement, Petitioner filed a request with the Texas Workers’ Compensation Commission (TWCC) for medical dispute resolution.
17. On June 21, 2002, MRD issued a decision in TWCC docket number M5-02-0557-01, denying reimbursement for certain claims regarding Claimant for service dates February 21, 2001 through June 18, 2001, including the claims for work hardening services.
18. Petitioner requested a hearing on June 26, 2002.
19. TWCC issued its Notice of Hearing on November 4, 2002, directed to the parties at their service addresses of record.
20. The notice contained a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
21. On March 4, 2003, a hearing convened before State Office of Administrative Hearings (SOAH) Administrative Law Judge (ALJ) Tommy L. Broyles, by telephone from 6333 Forest Park Road, Suite 150-A, Dallas, Dallas County, Texas. Petitioner was represented by Scott C. Hilliard, Attorney. Respondent was represented by Tommy W. Lueders, Attorney. TWCC staff elected not to participate. Both parties presented evidence at the hearing. After the parties filed written closing arguments, the record closed on March 14, 2003. The file was transferred to ALJ Monica Garza who reviewed the record and issues this decision and order.

V. CONCLUSIONS OF LAW

1. TWCC has jurisdiction over this matter. Tex. Lab. Code Ann. § 413.031.
2. SOAH has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order. Tex. Lab. Code Ann. §413.031(k) and Tex. Gov’t Code Ann. ch. 2003.
3. TWCC provided proper and timely notice of the hearing. Tex. Gov’t Code Ann. ch. 2001.
4. Petitioner, the party seeking relief, bore the burden of proof. 28 Tex. Admin. Code §148.21(h).
5. As work hardening services were not the most appropriate, least intensive and cost effective treatment for Claimant, Petitioner’s services were not reasonable and necessary medical care. 28 Tex. Admin. Code § 134.1002(e).
6. Petitioner failed to meet the documentation criteria for the work hardening services because Petitioner’s records did not reflect measurable, objective, substantive, and continued improvement by Claimant over time. 28 Tex. Admin. Code § 134.1002(e)(2).
7. Petitioner’s services did not meet the interdisciplinary criteria of a work hardening program. 28 Tex. Admin. Code § 134.1002(h)(56).
8. Treatments provided by Dr. Allen at weekly office visits during the course of Claimant’s work hardening program were not medically necessary. 28 Tex. Admin. Code § 134.1002(e).

VI. ORDER

IT IS, THEREFORE, ORDERED that Petitioner, Central Dallas Rehab, is denied reimbursement from Respondent, Association Casualty Insurance Company, for medical services provided to Claimant, ____ from February 21, 2001 through June 18, 2001.

Signed this 13th day of May, 2003.

MONICA GARZA
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. See 1996 Medical Fee Guideline Medicine Ground Rule II. E., pp. 37-38, and 28 Tex. Admin. Code §134.201.↑