DECISION AND ORDER

Continental Casualty Company (Carrier) appeals the decision of the Texas Workers’ Compensation Commission’s (TWCC) Medical Review Division (MRD) ordering it to pay America Works (Provider) $5,427.20 for work hardening therapy provided to Claimant_____.

The Administrative Law Judge (ALJ) finds the work hardening program was not medically necessary; therefore, Provider is not entitled to reimbursement of $5,427.20. However, the ALJ finds that Provider is entitled to reimbursement for work conditioning during the relevant time period.^[1]

I. Jurisdiction, Notice, and Procedural History

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

On February 19, 2003, ALJ Suzanne Marshall convened the hearing in this matter at the State Office of Administrative Hearings (SOAH), William Clements Building, 300 West 15th Street, Austin, Texas. The hearing concluded and the record closed on that date. Provider appeared through its representative, Dr. Jim Sher. Carrier appeared through its attorney, Jane Stone. The record closed on that day.

II. Discussion

Background

Claimant, ___ is a _____ year-old custodial worker. He suffered a compensable injury on___________, when a dolly that he was unloading from a golf cart at work fell on his left knee. Claimant began treatment with Dr. Armstrong of Armstrong Medical Clinic on December 28, 2000.

An MRI (magnetic reasoning image) of Claimant’s left knee on February 13, 2001, revealed that Claimant had a macerated tear of the medial meniscus and chondromalacia patella.^[2] Dr. DeBender recommended an arthroscopic evaluation with possible meniscectomy and/or chondroplasty on the left knee. TWCC Exhibit 1, pp. 59-61. Dr. DeBender performed the arthroscopy on March 20, 2001.

On March 22, 2001, Dr. DeBender saw Claimant for a follow-up visit and prescribed physical therapy, five times a week for two weeks.^[3] The physical therapy modalities included hot packs, ultrasound and exercise. Carrier’s Exhibit 1, pp. 73-77; 79-82. Claimant was seen by Dr. DeBender on April 19, 2001, who prescribed another two weeks of physical therapy.^[4]Id. at 78. Dr. DeBender noted that if Claimant showed no improvement during the physical therapy, a work hardening program would be considered. Id. In all, Claimant received 22 physical therapy sessions.

After the second series of physical therapy sessions, Dr. DeBender referred Claimant to Provider for a work hardening program for a period of eight weeks. Id. at 83. Claimant received work hardening therapy from May 17, 2001, through July 13, 2001.^[5] Dr. Sher was the supervising doctor during the work hardening program.

On June 27, 2001, approximately five weeks after beginning work hardening, Claimant had a Functional Capacity Evaluation (FCE). Id. at 90-94. The FCE showed that the job demand was heavy, but Claimant was only functioning in the medium category. Id. at 91. Claimant’s FCE indicated that he was capable of performing at a light-medium to medium-heavy physical demand level involving non-related area(s) of injury. Id. On July 13, 2001, Provider discharged Claimant from the work hardening program due to his completion of the program. Id. at 96.

On July 18, 2001, another FCE was performed. Id. at 97-101. The second FCE showed that Claimant was still functioning in the medium category, but was capable of performing at a light-medium to heavy physical demand level involving non-related area(s) of injury. Id. at 98.

1. Parties’ Positions and Evidence
2. Carrier’s Position and Evidence.

Carrier disputes the medical necessity, the adequacy of the documentation, and the amount of reimbursement for the work hardening treatment.^[6] Carrier, through its witness Dr. Samuel Bierner, contends that the work hardening program was not medically necessary because the eight-week referral was excessive in length, there was no indication from the medical records that Claimant required a multi-disciplinary treatment program, and that less intensive treatment, such as additional physical therapy or work conditioning, was more appropriate for Claimant’s condition.

Carrier asserts that the referral to Provider by Dr. DeBender for eight weeks of work hardening is not consistent with the normal 4-6 week period for work hardening and the records do not contain a rationale for exceeding the standard 4-6 weeks. Carrier disputes the need for psychological services because Dr. DeBender’s medical notes do not reflect that Claimant had a psychological problem that affected his ability to recover and return to work. Carrier contends that the treatment notes from the work hardening program neither contain a psychological evaluation of Claimant, nor discuss any psychological problems that would support the need for group counseling. In general, Carrier questions the need for the multi-disciplinary work hardening program, given the lack of documentation about the existence of psychological problems, both prior to and during work hardening.

According to Carrier and its witness Dr. Bierner, Claimant only needed additional treatment for his knee injury, and that need could be met through less intensive treatments such as additional physical therapy or work conditioning.

Carrier also contends that the documentation supporting the work hardening referral and subsequent therapy is inadequate and does not comply with the Medical Fee Guideline. Carrier contends that the lack of a Functional Capacity Evaluation (FCE), performed before Claimant began the work hardening program, is significant because there is nothing in the medical records which definitively establishes medical necessity for a work hardening program. Carrier also notes that the medical records did not contain a job description for Claimant, which would enable the Provider to prepare an individualized treatment plan for Claimant that met the physical demands of his job.

Further, Carrier contends that there was not an identified treatment plan containing program goals that would enable the Provider (and others) to know whether the program was successful.

For these reasons, Dr. Bierner opined that the work hardening program for Claimant was not medically necessary and did not comply with the documentation requirements for a work hardening program.

Provider’s Position and Evidence.

Provider contends that the work hardening program was medically necessary and cost-efficient, and that Claimant met the entrance criteria for the program. Provider asserts that the Claimant’s condition improved during the program, thereby enabling him to return to his job. According to Provider, the documentation for the work hardening program meets the requirements of the Medical Fee Guideline.

Provider states that Dr. DeBender appropriately referred Claimant to America Works for work hardening. Provider contends that Claimant met the established criteria for work hardening as follows: Claimant was likely to benefit from the program; his functioning level interfered with his ability to carry out specific tasks required by his job; his medical and psychological condition did not prohibit participation in the program; and the program was designed to assist Claimant in completing specific job duties. Physical therapy and home exercises were attempted before the referral to the work hardening program. Provider contends that work hardening was an appropriate treatment intervention for Claimant as a secondary level of care, pursuant to 28 Tex. Admin. Code (TAC) § 134.1003(f)(5)(E).

Dr. Sher testified that Claimant displayed a great deal of apprehension about returning to work and he needed peer support through group counseling, which is a component of a work hardening program. Dr. Sher admitted that this information came as a result of personal conversations and was not documented. He stated that no psychological evaluation or diagnosis was made by a health care professional prior to Claimant entering the program, but that this was not required by the Guidelines.

According to Dr. Sher, there was a treatment plan for Claimant. Dr. Sher testified that the program focused on Claimant’s posture, lifting and training in accordance with his job duties as a custodial worker. Dr. Sher testified that the work hardening program was successful because Claimant’s condition improved, he has almost no functional limitations, and he has returned to work.^[7]

In response to the Carrier’s assertion that an eight-week referral to a work hardening program was inappropriate, Dr. Sher testified that a representative of Carrier, Peggy Vega Huson, telephoned his office and spoke to the office manager, saying that the work hardening program had been approved for four weeks, after which an FCE should be performed and the Claimant’s status would be evaluated.^[8]

ALJ’s Analysis

The issues in this case are whether the work hardening program was medically necessary for Claimant, and whether the work hardening treatment was properly documented. The ALJ finds that the work hardening program was not medically necessary and Carrier should not reimburse Provider for the work hardening program.^[9] However, the ALJ further finds that the prerequisites for a work conditioning program were met and Provider should be reimbursed accordingly.

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. Work hardening programs are interdisciplinary in nature and are intended to address the functional, physical, behavioral, and vocational needs of the Claimant.^[10] The Commission has adopted rules governing work hardening programs. The rules, found in the Medical Fee Guideline (MFG), 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 programs.^[11] In this case, Carrier has met its burden of proof that the multi-disciplinary work hardening program was not medically necessary because there was no clear indication that Claimant had a psychological or behavioral problem that acted as a barrier to his return to work.

Dr. Sher testified that Claimant expressed apprehension about returning to work, but acknowledged that these comments were not documented in the medical records. As such, these comments, if indeed they were ever made, do not support the need for group counseling. The weekly progress notes and the individual counseling notes are devoid of any discussion about Claimant’s psychological condition.^[12] Further, there was no evidence that Claimant received counseling that would be relevant to his apprehension about returning to work, such as fear of re-injury. Instead, the records reflect the following topics of the group counseling sessions: relaxation techniques for pain control, stress management and cognitive distortions, coping with loss due to a natural disaster,^[13] relaxation techniques for stress management, and the detection and management of hypertension associated with pain. Carrier’s Ex. 1, pp. 84-89; 95-96. There was no evidence that Claimant suffered from stress, hypertension or anxiety. According to Medicine Ground Rule II. E. 2, an initial mental evaluation may be performed prior to entrance into the work hardening program. In this case, because Claimant did not have specific psychological problems, it would have been appropriate to have a thorough evaluation before beginning the program.

Without such an evaluation, the program notes, especially the counseling notes, should include more information which would support the need for the psychological component of the program.

As for the claims of inadequate documentation, Carrier failed to meet its burden of proof to show that Provider did not follow the requirements of the Medicine Ground Rules. Provider did have an individualized treatment plan for Claimant as required by Medicine Ground Rule II. E. 6. The treatment plan includes the weekly progress notes and the Work Hardening/Conditioning Daily Schedules.^[14] The first weekly progress note of May 18, 2001, indicates that Claimant began the work hardening program with an active range of motion of his left knee at 10 to 90, with pain at the end range. The goals of the program were to increase his pain-free range of motion, cardiovascular endurance, functional strength and tolerance of work simulation skills with awareness of proper body mechanics and posture. TWCC Ex. 1, p. 76. Claimant’s progress was documented after each work hardening session and his progress toward meeting those goals was documented, as required by Medicine Ground Rule II. E.

The records show that Claimant consistently improved his performance, whether by increasing the repetitions or weights for the exercises. Further, additional work simulation tasks were added as Claimant made progress. See, e.g., TWCC Ex. 1, p. 77 (small stairs, lifting a 10-lb. box from waist to shoulder were added to prolonged sitting, prolonged standing.) His range of motion increased to -2 to 120 of flexion. Id. at 80. The documentation specifies which weight machines Claimant used, the amount of weight lifted in the exercises, and the amount of time necessary to complete the exercises.^[15] Consequently, the ALJ finds that the documentation in this case complied with the Medicine Ground Rules.

On the way to meeting its burden of proof that there was no medical necessity for work hardening, Carrier proved that there did exist medical necessity for work conditioning. Work conditioning is a single disciplinary treatment program that is individualized, highly structured, and goal-oriented. It uses real or simulated work activities in conjunction with conditioning tasks. The entrance criteria are similar to that of work hardening, with the exception that it does not require the capability of attaining specific employment upon completion of the program. Medicine Ground Rule II.D.1.^[16] The documentation requirements are also similar. The evidence supports the need for additional treatment of Claimant and given that the previous 22 physical therapy treatments did not result in improving Claimant’s condition, a work conditioning program was appropriate. This program meets the Medical Fee Guideline’s requirement to provide treatment in the least intensive and cost-effective setting. 28 TAC ‘ 134.1003(e)(2)(A)(iii) and (iv). Moreover, the evidence shows that the treatments billed as work hardening qualify as work conditioning.

For the reasons above, the ALJ finds that the Carrier proved that there was not medical necessity for the work hardening program, but that there was medical necessity for a work conditioning program. Consequently, Provider is entitled to reimbursement at the rate for work conditioning during the relevant time period.

III. FINDINGS OF FACT

1. Claimant_____ (Claimant), employed as a custodian, sustained a compensable injury to his left knee on___________.
2. At the time of the injury, Claimant’s employer had workers’ compensation insurance through Continental Casualty Company (Carrier).
3. Dr. John DeBender performed an arthroscopy on Claimant’s left knee on March 20, 2001. He prescribed physical therapy, five times a week for two weeks, for Claimant following the surgery.
4. Between March 27, 2001, and May 7, 2001, Claimant had approximately 22 physical therapy sessions.
5. Claimant did not show improvement during the physical therapy sessions.
6. On May 7, 2001, De DeBender referred Claimant to a work hardening program at America Works (Provider).
7. The work hardening program began on May 17, 2001, and lasted until July 13, 2001.
8. Provider did not perform a psychological evaluation of Claimant.
9. Claimant did not have documented psychological problems that warranted a multi-disciplinary work hardening program.
10. The documentation did not adequately detail the need for Claimant’s participation in group counseling sessions.
11. Provider developed an individualized treatment plan for Claimant.
12. The documentation adequately detailed Claimant’s performance, his conditioning and work simulation exercises, the goals of the work hardening program, and the progress made by Claimant.
13. Claimant’s Functional Capacity Evaluation (FCE) on July 18, 2001, showed improvement in Claimant’s ability to perform his job duties.
14. Claimant’s condition improved as a result of the work hardening program.
15. Claimant completed the work hardening program.
16. The work hardening program is a more intensive treatment than work conditioning and contains all of the elements of a work conditioning program.
17. Provider seeks reimbursement for Claimant’s work hardening in the amount of $5,427.20.
18. Carrier denied reimbursement of the claim, indicating the services were not medically necessary and the work hardening documentation did not comply with the Medicine Ground Rules.
19. On September 26, 2002, the Medical Review Division of the Texas Workers’ Compensation Commission entered an order directing the Carrier to reimburse Provider for the costs of the work hardening program.
20. On October 18, 2002, Carrier appealed the MRD decision.
21. The Texas Workers’ Compensation Commission (Commission) sent notice of the hearing to the parties on November 15, 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.
22. The hearing was held on February 19, 2003, and the record was closed on that day. Carrier appeared through its attorney, Jane Stone. Provider appeared through its representative, Dr. Jim Sher.

IV. CONCLUSIONS OF LAW

1. The 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 and Tex. Gov’t Code Ann. ch. 2003.
3. Carrier timely filed its request for hearing, pursuant to 28 TAC § 148.3.
4. Proper and timely notice of the hearing was provided to the parties in accordance with Tex. Gov’t Code Ann. ch. 2001 and 28 Tex. Admin. Code §148.4(b).
5. Pursuant to 28 Tex. Admin. Code § 148.21(h) and (i), Carrier had the burden of proving by a preponderance of the evidence that the work hardening program was not medically necessary and that it did not comply with the documentation requirements of the Medicine Ground Rules.
6. Because there was no documented proof of psychological or behavioral problems, Claimant should not have been referred to a work hardening program.
7. Carrier met its burden of proving that the work hardening program was not medically necessary.
8. Carrier failed to meet its burden of proof that the services rendered to Claimant from May 17, 2001, through July 13, 2001, did not meet the documentation requirements set out in the Medical Fee Guideline Medicine Ground Rule II. E. 6, 7 and 8.
9. Provider’s work hardening program enhanced the ability of Claimant to return to work as required under Tex. Lab. Code Ann. § 408.021(a).
10. Based on the Findings of Fact and Conclusions of Law, Provider’s work hardening program was not medically necessary.
11. Based on the foregoing Findings of Fact and Conclusions of Law, a work conditioning program was medically necessary to treat Claimant’s condition.
12. Based on the foregoing Findings of Fact and Conclusions of Law, Provider should be reimbursed for the services provided to Claimant using the work conditioning rate of reimbursement.

ORDER

IT IS HEREBY ORDERED that Continental Casualty Company reimburse America Works for services provided to Claimant from May 17, 2001, through July 13, 2001, at the rate of reimbursement for work conditioning.

Signed this 16^th day of April, 2003.

SUZANNE FORMBY MARSHALL
Administrative Law Judge
State Office of Administrative Hearing

1. May 17, 2001, through July 13, 2001.↑
2. John DeBender, M.D., of Spring Valley MRI in Houston, Texas, performed and evaluated the MRI.↑
3. The records indicate that Claimant received physical therapy on March 27, 29, 30, April 2, 6, 9, 10, 11, 12, and 16, 2001. Carrier’s Exhibit 1, pp. 73-77. On each occasion, the Claimant reported sharp and constant pain.↑
4. Claimant had physical therapy on April 17, 18, 23, 24, 25, 26, 27, 30, May 1, 3, 4, and 7, 2001. Carrier’s Exhibit 1, pp. 79-82. Claimant reported sharp, constant pain at each of these sessions. Id. Additionally, there is a notation on April 27^th that Claimant was in a lot of pain and could not sleep the previous night. On May 7^th, the therapy note indicates that Claimant was in pain during most of the session.↑
5. There is a reference in the medical notes of August 23, 2001, that “[t]he patient has continued to improve with the work hardening program.” Res. Exhibit 1, p. 3. From this reference, it appears that Claimant may have continued work hardening past the time frame in issue in this case. Even if this is so, it does not affect the outcome of this case.↑
6. Because the ALJ finds that Carrier should not reimburse Provider for the work hardening program, this issue becomes moot.↑
7. The medical records indicate that Dr. DeBender released Claimant to return to work on September 11, 2001.↑
8. The evidence indicates that an FCE was done approximately five weeks after the work hardening program which is consistent with Dr. Sher’s testimony. However, this portion of Dr. Sher’s testimony contained significant hearsay and the ALJ is unable to accord it any evidentiary weight. The ALJ does not address whether, and to what extent, the statements made by the Carrier’s representative could have a preclusive effect on Carrier’s objection to the work hardening program.↑
9. In this case, Provider did not meet its burden of proof that the work hardening program was medically necessary, nor did it meets its burden to show that it properly documented the treatment and progress of Claimant.↑
10. Medical Fee Guideline Medicine Ground Rule II. E.↑
11. Id.See also 28 Tex. Admin. Code § 134.201.↑
12. The counseling notes are titled “Work Hardening Individual Counseling” although they appear to document group counseling sessions. TWCC Exhibit 1, pp. 103, 110, 115, 116, and 131.↑
13. This topic was related to the necessity of closing the clinic the previous week due to severe flooding associated with Tropical Storm Allison.↑
14. TWCC Exhibit 1, pp. 76-81; 87-88; 104-109, 111-112,117-130, 132-133.↑
15. Id.↑
16. The entrance criteria do not establish medical necessity for the program.↑