DECISION AND ORDER
This case is a dispute over whether reimbursement is appropriate for a work hardening program rendered to ___ (Claimant) at Buena Vista Workskills (Provider), between January 24, 2001, through February 20, 2001. Provider sought reimbursement from Hartford Fire Insurance Co. (Carrier), in the amount of $6,984, which Carrier denied. The Texas Workers’ Compensation Commission (the Commission) Medical Review Division (MRD) adopted the findings of the Independent Review Organization (IRO) that held Provider was not entitled to reimbursement. In this Order, the Administrative Law Judge (ALJ) concludes Provider is not entitled to any reimbursement.
I. JURISDICTION, NOTICE AND PROCEDURAL HISTORY
There were no contested issues of jurisdiction or notice. Therefore, those matters will be addressed in the findings of facts and conclusions of law without further discussion here. Provider appealed the findings and decision of the IRO, which was set out in MRD docket number M5-02-1970-01, issued on October 9, 2002.
A hearing convened and closed on April 17, 2003, before the State Office of Administrative Hearings (SOAH) with Steven M. Rivas, ALJ, presiding. Provider appeared and was represented by Kevin Stouwie, attorney. Carrier appeared and was represented by James Loughlin, attorney.
On_________, Claimant, while employed as a _____________ of a ____ company, sustained a compensable back injury when he attempted to lift a patient from a wheelchair to an examination table. Following the injury, Claimant underwent conservative treatment for his injury with Thimios Partalas, D.C. On January 10, 2001, Claimant began a work hardening program with Provider that lasted until February 20, 2001. Provider administered a work hardening program structured to a heavy physical demand level, and Carrier denied reimbursement for the services as not medically necessary.
The Texas Labor Code contains the Texas Workers’ Compensation Act (the Act) and provides the relevant statutory requirements regarding compensable treatment for workers’ compensation claims. In particular, the Act, as noted in § 408.021, provides an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. Under the same statute, the employee is entitled to health care that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment.
Under the Act '401.011(19), health care “includes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services.”
This dispute was referred to an IRO, which found the work hardening program rendered to Claimant was not medically necessary. As its rationale, the reviewer stated that Claimant “was functioning at the medium physical demand level,” and that, “a work hardening program was not necessary.”
- Evidence and Arguments
- Physical Demand Level (PDL)
Provider argued it structured its work hardening program to restore Claimant to a position that required a heavy physical demand level (PDL). Provider created its program based on the information it received from Claimant. However, Carrier denied the work hardening program because, Carrier asserted, Claimant’s actual PDL was medium rather than heavy.
Under the Commission’s Medical Fee Guideline (MFG), a work hardening program must be a highly structure, goal-oriented program. Additionally, under the MFG, work hardening programs use real or simulated work activities in a relevant work environment.
If Claimant’s job required a medium PDL, and the work hardening program was structured around a heavy PDL, the program would not have simulated work activities in a relevant work environment as noted in the MFG. Both parties presented evidence regarding Claimant’s PDL; however, none of it was persuasive.
Michael Smith, D.C., Provider’s CEO, testified Claimant’s PDL was heavy based on the information contained on Claimant’s initial Functional Capacity Evaluation (FCE) on December 1, 2000. Dr. Smith testified he had personal knowledge about Claimant’s treatment even though he was hired by Provider in June of 2002, after Claimant’s program concluded.
The primary reason Dr. Smith believed Claimant had a heavy PDL was due to the notation of “100 3's” under Job Description Critical Demands - Lifting. Dr. Smith first testified that this notation meant Claimant routinely lifted 300 pounds as part of his job requirement as a _______. However, on cross examination, Dr. Smith admitted that notation may have meant 100 pounds rather than 300.
Upon closer examination of the FCE, it indicated Claimant was 68" tall (5'8") and weighed 180 lbs. Additionally, Claimant’s essential functions listed on the FCE indicated he managed and directed the functions of the facility, assisted with patients and employees, assisted with computer data, and oversaw the construction and installation of equipment. Without any evidence to indicate Claimant’s PDL other than the vague notation, and considering Claimant’s physical makeup and essential functions, it is not clear to the ALJ how Claimant’s PDL could have been considered heavy. Furthermore, given the above findings, the ALJ does not find it likely that Claimant was required to routinely lift 300 pounds as part of his job.
Work hardening for a fired employee
Carrier argued that because Claimant had been fired from his prior job, there was no job or job duties around which a work hardening program could be tailored. This was another point on which the parties did not present any compelling evidence.
Ahmed Khalifa, M.D., testified the work hardening program did not meet the requirements of the MFG because Claimant had been fired from his prior employment and there were no specific job requirements to match a work hardening program. However, on cross-examination, Dr. Khalifa admitted there are some exceptions if patients undergoing a work hardening program are fired from their job. Additionally, Dr. Khalifa testified that despite the strict guidelines that cover work hardening programs, the Commission’s overall objective is to restore a patient to his or her pre-injury state. Therefore, this ALJ is not persuaded that the work hardening program was not medically necessary based on Claimant’s lack of employment at the time he underwent the program.
Claimant’s physical level
Carrier argued that if Claimant had no specific employment following the work hardening program, it should be structured to meet a reasonable functional level. Provider argued that if Claimant had no specific employment after the work hardening program, it should be structured to meet the physical level of his last employer.
In either case, Carrier argued Claimant was not a suitable candidate for work hardening based on his level of physical activity and physical therapy progress prior to beginning the program. Claimant started the work hardening program four months after the injury. Prior to its commencement, Claimant underwent a physical therapy regimen with Dr. Partalas.
On December 19, 2000, Dr. Paratalas’ progress notes indicated Claimant may need a work hardening program but also indicated Claimant was making “great progress” in the physical therapy program. On December 29, 2000, Dr. Partalas’ progress notes indicated Claimant was “making good progress,” and “tolerated active care well.” Finally, in a subjective evaluation filled out by Claimant on January 4, 2001, he indicated pain sets in after he jogs, exercises, or plays racquetball.
The above findings were noted before the work hardening program started on January 10, 2001. While the progress notes did indicate Claimant still suffered from some pain or discomfort, there was nothing in the notes that gave the impression Claimant was unable to perform the essential functions of his prior employment. The notes do state Claimant sometimes had hip and buttock pain, and that Claimant had some difficulty sleeping. However, there is no mention that Claimant was unable to participate in the physical therapy exercises.
Analysis and Conclusion
Claimant’s condition was improving through a physical therapy program, and there is no evidence he needed to participate in work hardening program. To the contrary, Claimant’s essential job duties as a ______ were not physically demanding enough to warrant a work hardening program. Overseeing employees and instruments is not a duty that requires much physical effort. Claimant was able to jog and play racquetball before the work hardening program began
Therefore, in the ALJ’s opinion, Claimant possessed the requisite physical skills necessary to be a facilities manager. The work hardening program was not medically necessary.
III. FINDINGS OF FACT
- Claimant ____ suffered a compensable back injury on__________.
- Claimant initially came under the care of Thimios Partalas, D.C., who referred Claimant to Buena Vista Workskills (Provider).
- On December 1, 2000, Claimant underwent a functional capacity evaluation (FCE), which recommended Claimant participate in a work hardening program with Provider.
- On January 10, 2001, Claimant began the work hardening program, which lasted through February 20, 2001.
- Provider billed Hartford Fire Insurance Co., (Carrier) $6,984 for the treatment it rendered to Claimant from January 24, 2001, and February 20, 2001, which Carrier denied as not medically necessary.
- Provider filed a Request for Medical Review Dispute Resolution with the Texas Workers’ Compensation Commission (the Commission), seeking reimbursement for the treatment rendered to Claimant.
- The dispute was referred to an Independent Review Organization (IRO), which found Provider was not entitled to any reimbursement for the treatment it rendered to Claimant from January 24, 2001, through February 20, 2001.
- The Commission’s Medical Review Division (MRD) in docket number M5-02-1970-01 adopted the IRO decision in its findings and decision issued on October 9, 2002.
- Provider timely appealed the IRO decision and filed a request for hearing before the State Office of Administrative Hearings (SOAH) seeking reimbursement.
- Notice of the hearing was sent February 24, 2003.
- 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.
- The hearing convened and closed on April 17, 2003, with Steven M. Rivas, Administrative Law Judge (ALJ) presiding. Provider appeared and was represented by Kevin Stouwie, attorney. Carrier appeared and was represented by James Loughlin.
- Claimant was employed as a _____ and _____ at the time of his injury.
- Claimant’s essential functions included supervising other employees and overseeing the installation of equipment.
- Claimant was participating in physical activities like jogging and playing racquetball before the work hardening program started.
- Claimant was making progress in a physical therapy program before the work hardening program started.
- If Claimant was able to perform physical activities, he did not need a work hardening program to prepare him for the physical requirements of a ____ or ________.
- Provider presented insufficient evidence that the work hardening program was medically necessary.
IV. CONCLUSIONS OF LAW
- The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers' Compensation Act, Tex. Lab. Code Ann. ch. 401 et seq.
- SOAH has jurisdiction over 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.
- Provider timely filed its request for hearing as specified by 28 Tex. Admin. Code ' 148.3.
- Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. § 2001.052 and 28 Tex. Admin. Code § 148.4.
- The Provider, as Petitioner, has the burden of proof in this matter under 28 Tex. Admin. Code § 148.21(h).
- Under Tex. Lab. Code Ann. ' 408.021(a), an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury that: (1) cures or relieves the effects naturally resulting from the compensable injury; (2) promotes recovery; or (3) enhances the ability of the employee to return to or retain employment.
- Provider has failed to show, by a preponderance of the evidence, that the treatment Provider rendered to Claimant was medically necessary for the dates in dispute.
- Pursuant to the foregoing Findings of Fact and Conclusions of Law, Provider is not entitled to any reimbursement for the treatment it rendered to Claimant.
IT IS, THEREFORE, ORDERED that Provider, Buena Vista Workskills, is not entitled to receive any reimbursement from the Carrier, Hartford Fire Insurance Co., for the treatment it rendered to Claimant from January 24, 2001, through February 20, 2001.
Signed this 6th day of June, 2003.
Steven M. Rivas Administrative Law Judge
State office of administrative hearings
- For purposes of this hearing, the eligible dates of service begin on January 24, 2001, because Provider untimely appealed the disputed dates of service and was not able to include the entire length of treatment, which began on January 10, 2001.↑
- The Commission’s Medical Fee Guideline, effective 4/1/1996. E. Work Hardening.↑
- See id.↑