DECISION AND ORDER
Rehab 2112 (Provider) seeks reimbursement of $10,284.00 from Republic Underwriters Insurance Company (Carrier) for a work hardening program provided to the Claimant from June 4, 2001, until July 13, 2001. Carrier denied payment on the grounds that the treatment was not medically necessary. That denial was upheld by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission). This decision also finds that reimbursement should be denied. Provider did not prove that the work hardening program was reasonable and medically necessary to treat the effects naturally resulting from the Claimant’s compensable injury.
I. PROCEDURAL HISTORY
Administrative Law Judge (ALJ) Nancy N. Lynch convened and concluded a hearing on March 3, 2003. Petitioner appeared through its attorney H. Douglas Pruett. Carrier appeared through its representative Neal Moreland. Notice and jurisdiction were not disputed and will be addressed in the fact findings and legal conclusions set out below.
A. Legal Standards
Entitlement to health care reasonably required by injury
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. Specifically, an employee is entitled to health care that cures or relieves the effects naturally resulting from a compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. Texas Labor Code (Act), § 408.021(a)(1-3). “Health care” includes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services. Act, § 401.011(19).
Work hardening programs
The Commission’s 1996 Medical Fee Guideline defined work hardening programs and set out general goals for entrance criteria to such programs:
Work Hardening: 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. . .
A.Entrance/admission criteria shall enable the program to admit:
- persons who are likely to benefit from the program;
- persons whose current levels of functioning due to illness or injury interfere with their ability to carry out specific tasks required in the workplace;
- persons whose medical, psychological, or other conditions do not prohibit participation in the program; and
- persons who are capable of obtaining specific employment upon completion of the program.
The Commission’s Upper Extremities Guideline was also in effect when these services were rendered. It required that treatment of a work related injury be adequately documented, evaluated for effectiveness, modified based on clinical changes, and provided in the least intensive setting. In addition, it must be cost effective, objectively measured, and demonstrate functional gains.
Burden of proof
Provider has the burden of proof because it appealed the decision of the Medical Review Division. 28 Tex. Admin. Code (TAC) § 148.21(h).
The Claimant, a ______ female ______, was injured at work on________. She fell onto her extended right arm and injured her right shoulder.
On April 3, 2001, she was examined by Marcus L. Wilcox, D.C. She described right shoulder pain of 5 on a scale of 10. It was constant and dull, and radiated to the right side of the neck/trapezius muscle. Movement made the pain worse. She also described her neck pain as 5 on a scale of 10, constant and aching. Rest and medications made both pains better.
He listed the following impressions in his narrative report:
- a rotator cuff tear syndrome of the right shoulder
- sprain/strain of the right rotator cuff
- sprain/strain of the right shoulder
- tendonitis, right shoulder
His report also included the following information:
- Claimant was 5' 5" tall and weighed 137 pounds.
- Her range of motion (ROM) in her right shoulder was within normal limits with pain.
- Claimant was a ______, and in the scope of her daily job duties, was required to sit one hour a day, stand eight hours a day, and to occasionally lift 30+ pounds.
- Her injuries had interfered with her work and she missed seven days of work between the day of the accident ________, and the day of the examination, April 3, 2001.
Dr. Wilcox continued treating Claimant, seeing her several times in April. He referred to Rehab 2112 for evaluation, which occurred on May 2, 2001. Rehab 2112 developed a plan of care for her to come in three times a week for four weeks and participate in active and passive physical therapy modalities to increase her active ROM and strengthen her right arm and shoulder.
Weekly progress reports summarized the Claimant’s progress during the preceding week. Each report indicated the days Claimant participated, the program components completed, physical findings related to ROM and strength, check-box assessments of her progress toward goal, check-box recommendations / plan for the future, and a very brief narrative summary of Claimant’s participation and progress. The three weekly progress reports included in the records contained the following information.
- May 11, 2001. Claimant had progressed with ROM at 85% of goal, strength at 65% of goal. Primary limiting factors noted were pain, weakness, and ROM. The narrative notes reported she was doing well, with increased ROM and strength at right shoulder as well as decreased pain. The three daily entries indicated that she completed all activities with “no difficulty.”
- May 18, 2001. This report was basically the same as the one described above. Claimant was “doing well.” Both her ROM and her strength remained at the same level as the first week. Two daily entries for this week indicated that, again, she completed all activities with “no difficulty.” The third daily entry sheet did not appear in the record.
- May 25, 2001. Claimant continued to be “doing well.” This week, her ROM increased to 95% of goal and strength increased to 75% of goal even though she missed the middle of three appointments. The summary note indicated a plan to discuss advancing her to work hardening program “per FCE results.” Again, the daily entries for the third week indicated she completed the activities with “no difficulty.”
- Primary limiting factors listed on all three reports were “pain, weakness, and ROM”
On June 4, 2001, Rehab 2112 performed a functional capacity evaluation (FCE) on Claimant and decided to move her into a work hardening program. The FCE reported that the maximum weight she was required to lift was 50 pounds.
The evaluator’s plan of care recommended a work hardening program for 4-6 weeks, and included the following items:
- Increase active ranges of motion (30% in lumbar extension/20% in flexion)
- Improve functional strength by 10 pounds per week
- Address body mechanics and self-care to minimize exacerbations while in program or at home
- Increase endurance in repetitive tasks (reaching, crouching, etc.)BAAchieve Above Compliance’ status on FROM tests
- Reach PDC (physical demand capacity of job) and return to work.
The FCE listed the following barriers to work:
- Poor body mechanics
- Diminished strength/endurance
- Poor tolerance to static/repetitive activities
- Limited ROM
Rehab 2112 conducted an interim FCE following the fifth week of work hardening. The summary of findings indicated that Claimant still was at a sedentary PDC level while her job required a medium PDC level. She had completed half the work hardening program and shown improvement in several areas, but still lacked ROM and endurance needs to perform the critical demands of her job. The patient was described as on target to meet her goals, with a good prognosis. The plan of care recommended continuation of the current treatment plan. Claimant did not return to the work hardening program after July 13, 2001. She was formally discharged on July 20, 2001, due to lack of progress, and referred to her physician for advice.
A. Evidence and arguments
(Rehab 2112’s evidence. Rehab 2112 offered 130 pages of records (Exhibit 1), and the testimony of Dr. Michelle Ivey, D.C. Dr. Ivey was the only witness offering testimony and the following paragraphs are drawn from her testimony.
Claimant responded positively to the physical therapy sessions Rehab 2112 provided over a period of three weeks. This positive response indicated the patient would continue to progress in a work hardening program, assuming the FCE indicated the patient still had limitations.
Claimant met the criteria for a work hardening program. Dr. Ivey noted that the most obvious discrepancy was in the strength category. Claimant was functioning at a light physical demand capacity and her job required a medium level physical demand capacity. Her restrictions interfered with specific tasks required in her workplace, i.e. the requirement that she lift as much as 50 pounds. Claimant had no medical, psychological, or other conditions that would disqualify her for a work hardening program. Last, it appeared she could be rehabilitated so she could return to her previous employment as a _____. Dr. Ivey explained, however, that even if all entrance criteria are met, there is no guarantee that an injured worker will respond to treatment.
Claimant’s program included exercises to increase cardiovascular endurance, stretches to increase ROM in the shoulder area, stabilization exercises to strengthen and stabilize the upper body shoulder area, strength exercises to increase her physical demand capacity, and functional work activities that simulate the activities the worker is required to do on-the-job. For this Claimant, these activities would include “materials handling” such as lifting boxes off the floor and putting them on the counter and activities designed to achieve the necessary positional tolerances for standing, reaching, and kneeling.
The schedule for a work hardening program is designed to mimic the requirements of the injured employee’s job. Although there is a short lead-in period, the program is designed to require a participant to put in the same number of hours in work hardening activities as she does on the job. If a worker works four hours a day, five days a week, that worker spends an equal amount of time engaged in work hardening activities. If a worker is full time, they participate in work hardening activities on a full time basis. Work hardening is significantly more intensive than a physical therapy or home exercise program.
Injured employees in work hardening programs also are required to participate in group therapy sessions as a standard part of the program. This patient attended group therapy once each week.
Claimant did improve during the course of the work hardening program. She was at a light physical demand capacity when she started and at a light-medium level when she was discharged. However, she did not regain the physical demand capacity of medium needed for her previous employment as a _____. She was discharged for lack of progress and referred to her physician for further care. Dr. Ivey reiterated that Claimant met the criteria for entrance into the program even though she did not successfully complete it.
On cross-examination, Dr. Ivey was asked about Dr. Wilcox’s initial evaluation report stating that Claimant’s ROM of her right shoulder was normal. Dr. Ivey responded that it was actually recorded as “normal with pain.” Dr. Ivey also pointed out that a note on page 24 of Exhibit 1 indicated the ROM in Claimant’s right shoulder had decreased.
Dr. Ivey acknowledged that Claimant had made progress with the physical therapy
treatment she was receiving before she went into the work hardening program. But Rehab
2112's assessment was that the work hardening program would be the quickest way for
Claimant to regain the necessary strength and return to her job. Claimant continued to
have a significant discrepancy between what she could lift and what she said she had to lift
at her job.
- Rehab 2112’s argument. Rehab 2112 argued the work hardening program was reasonable and medically necessary for the following reasons:
- Claimant was in a tertiary level of care and an appropriate candidate for a work hardening program because work hardening is a recognized treatment at that level of care. A work hardening program is presumed to be medically necessary because it is consistent with the Spine Treatment Guidelines.
- Claimant had progressed on her previous physical therapy program, but still had a significant discrepancy between the amount of weight she could lift and the amount required to be able to return to her job.
- The more intensive work hardening program would more nearly simulate Claimant’s actual work environment and therefore would enable her to return to work more quickly.
- Claimant met all entrance requirements for a work hardening program.
- Although the Claimant was ultimately discharged for lack of progress, the medical necessity of a work hardening program is determined by whether the injured worker meets the entrance requirements, not by the ultimate outcome.
- Rehab 2112 also argued that Carrier’s peer review by Joel Brandon Brock, D.C., dated June 5, 2001, should be given no weight because:
- it was not done at the appropriate time (i.e. after the work hardening program had been completed). Dr. Brock could not have reviewed the treatment documentation created during the work hardening program; and
- it was clearly based on insufficient documentation. Even Dr. Brock noted how little documentation he had and carefully framed his opinions as “based on the documentation he had to review;” and
- it was being used by the Carrier to prospectively deny any and all future medical care in relation to this injury.
. The Carrier’s denial was based largely on Dr. Brock’s peer review. Dr. Brock made the following observations:
- Although Dr. Brock called Dr. Wilcox on June 1, 2001, to discuss this patient, Dr. Wilcox never called him back. Dr. Brock was assured by Dr. Wilcox’s staff that Dr. Wilcox would return his call by 3:00 p.m. “if he [Dr. Wilcox] was interested in talking” to the peer review doctor.
- Dr. Brock had a limited amount of documentation to review: a TWCC-73 form filled out by Dr. Wilcox, Dr. Wilcox’s initial medical report, and a nerve conduction (NCV) study performed by Natalia Kogan, D.C. on April 30, 2001, showing no abnormalities in the shoulder and neck area.
- The initial treatment plan appeared appropriate: manipulation and passive care, including heat, cryotherapy, and interferential therapy would have been necessary for the first 6-8 weeks of treatment after the injury.
- An MRI would have been reasonable and medically necessary after the initial treatment plan had been implemented. However, he had no indication that one had been performed.
- Most sprain/strain injuries will resolve within three months after the injury if left untreated. He would expect Claimant should be able to return to work by May 25, 2001, as indicated in a TWCC-73 form he reviewed.
- He concluded, based on the limited documentation he had, that Claimant had a minimal sprain/strain of the right shoulder with slight involvement of the cervical spine. The involvement of the cervical spine would more than likely be related to muscles and ligaments affected by the shoulder injury. Therefore, there was no necessity for continued treatment or diagnostics.
The ALJ concludes that Rehab 2112 did not prove the work hardening program was reasonable and medically necessary for this Claimant because Rehab 2112 did not show that the work hardening program was the most cost effective treatment provided in the least intensive setting, as required by the Commission’s Upper Extremities Guideline.
The evidence indicated Claimant was progressing with the physical therapy. There was no evidence that a more intensive course of physical therapy would have worked as well for her as a work hardening program. The evidence also failed to show she was appropriately challenged in the physical therapy program since each daily report indicated she had completed all the activities with “no difficulty.”
Further, Claimant’s inability to lift the required weight for her job was always identified as a problem but the weekly reports do not indicate that she was required to participate in strength training during physical therapy sessions until the last week of the treatments. In the last week (which had only 2 sessions), strength/ conditioning exercises were added for the first time. The patient moved from attaining 65% of goal to 75% of goal. Such dramatic improvement with so little emphasis on strength /conditioning program components raises the question of what might have happened with additional physical therapy. But by the time that report was written, Rehab 2112 was already planning to move her into a work hardening program.
Rehab 2112 presented insufficient documentation to support the medical necessity of a work hardening program for Claimant. There was no individualized treatment program for this injured employee. The FCE included a few lines titled: Plan of Care (Exhibit 1, page 64). However, that paragraph did not constitute an individualized treatment program. Indeed the paragraph included only goals-statements of where the therapists want the patient to be at the end of the work hardening program. It said:
() Begin work hardening; 4-6 weeks. 2.) increase active ranges of motion (30% in lumbar extension/20% in flexion). 3.) Improve functional strength by 10#/week. 4.) Address body mechanics and self-care to minimize exacerbations while in programs or at home. 5.) Increase endurance to repetitive tasks.
There was absolutely nothing in this “plan of care” that could be described as a program designed to take the Claimant at the fitness level measured by and described in initial FCE, have her engage in a variety of appropriate activities, and thereby have her accomplish the goals articulated in the plan of care.
V. FINDINGS OF FACT
- On________, Claimant, a ____ female _____ worker, suffered a compensable injury under the Texas Workers’ Compensation Act (Act). While at work, she fell and landed on her extended right arm and injured her right shoulder.
- At the time of Claimant’s injury, her employer held workers’ compensation insurance coverage through Republic Underwriters Insurance Company (Carrier).
- Rehab 2112 seeks reimbursement from the Carrier for $10,284.00 in medical services associated with a work hardening program provided to the Claimant from June 4, 2001, until July 13, 2001.
- Carrier denied reimbursement of the expenses identified in Finding of Fact No. 3.
- Rehab 2112 timely requested dispute resolution by the Texas Workers’ Compensation Commission Medical Review Division (MRD).
- The MRD issued its decision on September 26, 2002, concluding that the disputed expenses should be denied. Rehab 2112 has appealed that decision.
- On April 3, 2001, Claimant consulted her treating doctor about pain in her right shoulder, radiating to the neck. She rated her shoulder pain at about 5 on a scale of 10 and described it as constant and dull. It radiated to the right side of the neck. Movement made it worse. She described the neck pain as about a 5 on a scale of 10, constant and aching. Rest and medications made both pains better.
- Claimant’s treating doctor initially listed four possible explanations for her symptoms: rotator cuff tear syndrome of the right shoulder, sprain/strain of the right rotator cuff, sprain/strain of the right shoulder, tendonitis, right shoulder.
- An MRI on April 13, 2001, ruled out the possibility of a rotator cuff tear.
- Claimant’s treating doctor referred her to Rehab 2112 and she was evaluated there on May 2, 2001.
- Claimant participated in physical therapy at Rehab 2112 three times a week for four weeks.
- She progressed some but could not return to her job as a kitchen helper because she was a light physical demand capacity and her job required a medium physical demand capacity.
- Rehab 2112 conducted a function capacity evaluation (FCE) on June 4, 2001, and decided to move her into a work hardening program.
- The work hardening program did not include a highly structured, goal-oriented, individualized treatment program designed to maximize the ability of Claimant to return to work.
- The work hardening program was not shown to be the least intensive setting required for treating Claimant’s injuries or the most cost effective way to enable her to return to work.
- Notice of the hearing was sent to the parties on January 8, 2003. The notice informed the parties of the date, time, and location of the hearing, a statement of the matters to be considered, the legal authority under which the hearing would be held, and the statutory provisions applicable to the matters to be considered.
- The hearing at the State Office of Administrative Hearings was held on March 3, 2003.
VI. CONCLUSIONS OF LAW
- The Texas Workers’ Compensation Commission (Commission) has jurisdiction over this matter pursuant to the Texas Workers' Compensation Act (Act), Tex. Lab. Code Ann. § 413.031.
- The State Office of Administrative Hearings has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to the Act § 413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
- Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§2001.051 and 2001.052.
- Rehab 2112 had the burden of proof in this matter. 28 Tex. Admin. Code §148.21(h).
- The disputed services were not shown to be reasonable and medically necessary health care for Claimant. Act § 408.021.
- Based on the foregoing, Petitioner’s claim for reimbursement from the Carrier for the disputed expenses should be denied.
IT IS, THEREFORE, ORDERED that Rehab 2112's claim for reimbursement from Republic Underwriters Insurance Company for the work hardening program administered to the Claimant from June 4, 2001, until July 13, 2001, be, and the same is hereby DENIED.
Signed May 2, 2003.
Nancy N. Lynch
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- 1 Pages 37-38. See 30 Tex. Admin. Code § 134.201(Commission’s rule adopting the Medical Fee Guideline by reference).↑
- This guideline was abolished effective January 1, 2002. However, this work hardening program was administered while the guideline was in effect.↑
- 28 Tex. Admin. Code § 134.1002(e)(2) (West 2002) (abolished by statute effective January 1, 2002).↑
- A rotator cuff tear was ruled out by an MRI on April 13, 2001.↑
- This FCE reported that Claimant weighed 174 pounds. On May 2, 2001, Rehab 2112 reported she weighed 130 pounds. The FCE reports an increase of 37 pounds in slightly more than a month. Presumably, the 174 figure is a mistake. Exhibit 1, p. 41.↑
- 6 This amount was significantly higher than the 30+ pounds reported by Dr. Wilcox.↑
- Provider also offered Exhibit 3, a one-page print-out of an Internet screen from the Board of Chiropractic Examiners. The Judge sustained Carrier’s objection to the relevance of this exhibit, so it was not admitted into evidence. It is, however, included in the record because the Provider requested a bill of exceptions.↑
- 8 It is unclear how the patient was achieving 65% of the “Strength” goal when she was not doing any strength /conditioning program components during the first two weeks.↑