DECISION AND ORDER
Rehab 2112 (Provider) has appealed a decision of the Texas Workers’ Compensation Commission (TWCC) Medical Review Division (MRD), which was based on an independent review organization (IRO) review. That decision denied reimbursement for work hardening services that the Provider furnished to____ (Claimant). The IRO and MRD found the work hardening services were not reasonably medically necessary. The medical necessity of those services is the only disputed issue in this case. The Provider agrees that it has the burden of proof.
As set out below, the Administrative Law Judge (ALJ) cannot conclude from the evidence that the work hardening services were reasonably medically necessary. Accordingly, the Provider’s request for reimbursement is denied.
II. Medical Necessity
Work hardening is a highly-structured, goal-oriented, intensive, multi-disciplinary intervention service in which a claimant participates on a daily basis and which is designed to address whatever limitations the claimant has that are keeping her from returning to work. In this case, the Claimant participated in the program seven hours per day, five days, per week, for six weeks.
The Provider never came close to showing that the Claimant needed such an intensive and expensive program to return to work. She sustained her injury on________. Her initial treating doctor, Katherine H. Smith, M.D., found that she had a lumbar strain, could return to work three days after the injury, and should not lift over 15 pounds for ten days. The Claimant then changed her treating doctor to Shane Marcum, D.C., who remains her treating doctor.
Except in the case of an emergency, the treating doctor shall approve or recommend all health care rendered to the injured employee. This includes, but is not limited to, referrals to consultants made by the treating doctor. The referrals shall be medically reasonable and necessary.
There is no clear evidence that Dr. Marcum ever approved or recommended work hardening for the Claimant. The Provider argues, however, that the Carrier did not cite the absence of Dr. Marcum’s approval or recommendation as a basis for the denial, hence that deficiency is beyond the scope of this case. The Carrier responds that the absence of the treating doctor’s approval makes it very difficult to conclude that the work hardening was necessary, a ground that the Carrier cited for denial. Hence, the Carrier argues that the absence of the treating doctor’s approval, though not conclusive, is relevant and within the scope of this medical-necessity dispute. The ALJ agrees with the Carrier’s interpretation.
It is not impossible to conclude that a claimant needs work hardening despite the lack of the treating doctor’s approval, but it is very difficult, absent other overwhelming evidence of necessity. In this case, the remaining evidence of necessity is insufficient.
There is a letter from Provider doctor Michael T. Smith, D.C., stating that Dr. Marcum referred the Claimant to the Provider for an functional capacity evaluation (FCE) “with resultant recommendations of a work hardening program to expedite the possibility of the patient’s return to the workforce and to approximate pre-injury status.” The letter does not clarify who made that “resultant” work hardening recommendation. But the other evidence shows that the Provider made that recommendation, through Bryan L. Weddle, D.C., after he performed an FCE on the Claimant.
In its 1996 Medical Fee Guideline, which the Parties agree applied to the services at issue; the TWCC established four entrance criteria for compensable participation in a work hardening program:
- the claimant must be likely to benefit from the program;
- the claimant’s current levels of functioning due to illness or injury must interfere with her ability to carry out specific tasks required in the workplace;
- the claimant should not have a condition that would prohibit her from participation in the program; and
- the claimant must be capable of attaining specific employment upon completion of the program.
The Provider never showed that the Claimant’s then-current ability prevented her from performing her job tasks. The Claimant packs chips into boxes and places them on a pallet for her employer, a snack food manufacturer. In performing that job, she must lift 15 pounds. However, when the Claimant began the work hardening program, she already was capable of repeatedly lifting 15 pounds in three different ways, as documented in the Provider’s own FCE. The is no evidence that the Claimant had other job tasks that she could not perform.
Nor did the Provider show that there was reason to believe, prior to the work hardening program, that the Claimant would benefit from one of that program’s key elements. During the program, the Claimant was provided group behavior modification counseling. The Provider did show that the Claimant had no psychological issues that would prohibit her participation in work hardening, a precondition to participation. Provider psychologist, Kyle Babick, Ph.D., so concluded. However, Dr. Babick went further and stated, “Based on the patient’s self-reports, no significant emotional distress or psychosocial issues were identified.” Relatedly, the Claimant filled out a stress and lifestyle survey on which she indicated that she was under no stress. This evidence strongly indicates that the Claimant did not need behavior modification counseling.
The Provider nevertheless argues that the Claimant needed that counseling. At the beginning of the work hardening, the Claimant completed an Oswestry Low Back Pain Disability Questionnaire. Under the standard scoring system that the Provider used, the Claimant’s answers to the questionnaire ranked her as “severely disabled.” Provider witness Michelle Ivey, D.C., who is not a psychologist or psychiatrist, testified that the Claimant’s self ranking on that questionnaire indicated that she had behavioral or psychological problems requiring work hardening. The ALJ fails to see how. The questionnaire dealt with the Claimant’s pain and its impact on her life, not her psychological behavior. Moreover, the ALJ does not find Dr. Ivey’s lay psychological opinion more convincing than Dr. Babick’s expert opinion.
Based on the above, the ALJ cannot conclude that the Claimant needed work hardening. In fact, other credible evidence tends to show that the Claimant did not need that service. In addition to the IRO, the Carrier-appointed, peer-review doctor (Dorothy Ann Leong, M.D.), the Carrier’s witness (Zvi Kalisky, M.D.), and the TWCC designated doctor (Mike O’Kelly, D.C.) found that the Claimant needed no further care and at most needed a home exercise program. However, since the Provider wholly failed to carry its burden of proving that the work hardening was necessary, the ALJ will not discuss that non-necessity evidence in detail.
III. Findings of Fact
- On________, ____ (Claimant) sustained a work-related injury to her lower back as a result of her work activities.
- On the date of injury, the Claimant’s employer was_________, and its workers’ compensation insurance carrier was American Casualty Company of Reading, Pa (Carrier).
- Between September 4, 2001, and October 10, 2001, Rehab 2112 (Provider) furnished work hardening services to the Claimant.
- Work hardening is a highly-structured, goal-oriented, intensive, multi-disciplinary intervention service in which a claimant participates on a daily basis and which is designed to address whatever limitations the claimant has that are keeping her from returning 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. 28 TAC §134.201; Medical Fee Guidelines, Medicine Ground Rules, II.E (2003).
- Work hardening is a highly intensive and expensive program.
- Prior to participating in the work hardening program, the Claimant was able to meet the primary physical need of her job: an ability to lift 15 pounds of weight.
- Prior to participating in the work hardening program, the Claimant had no need for behavioral counseling in that she had no significant emotional distress or psychosocial issues.
- The Provider sought reimbursement from the Carrier for the work hardening services.
- The Carrier denied the request for reimbursement.
- The Provider filed a request for medical dispute resolution with the Texas Workers’ Compensation Commission (TWCC).
- An independent review organization (IRO) reviewed the medical dispute and found the work hardening was not medically necessary.
- Based on the IRO’s findings, TWCC’s Medical Review Division (MRD) declined to order the Carrier to reimburse the Provider for the work hardening.
- After the IRO decision and MRD order were issued, the Provider asked for a contested-case hearing by a State Office of Administrative Hearings (SOAH) Administrative Law Judge (ALJ).
- Notice of a February 10, 2003, contested-case hearing concerning the dispute was mailed to the Carrier and the Provider on January 10, 2003.
- The Parties later agreed and the ALJ ordered that the hearing be continued until March 13, 2003.
- On March 13, 2003, SOAH ALJ William G. Newchurch held a contested-case hearing concerning the dispute at the William P. Clements Office Building, Fourth Floor, 300 West 15th Street, Austin, Texas. The hearing concluded and the record closed on that same day.
- The Carrier appeared at the hearing through its attorney, James M. Loughlin.
- The Provider appeared at the hearing through its attorney, Doug Pruett.
IV. Conclusions of Law
- 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. Labor Code Ann. (Labor Code) §§ 402.073(b) and 413.031(k) (West 2002) and Tex. Gov’t Code Ann. (Gov’t Code) ch. 2003 (West 2001).
- Adequate and timely notice of the hearing was provided in accordance with Gov’t Code §§ 2001.051 and 2001.052.
- SOAH’s Chief ALJ has jurisdiction to adopt procedural rules for SOAH hearings, and a referring agency’s procedural rules govern a hearing only to the extent that SOAH’s rules adopt them by reference. Gov’t Code ' 2003.050 (a) and (b).
- Under TWCC’s rules, the party seeking relief has the burden of proof. 28 Tex. Admin. Code (TAC) §148.21(h) (2002).
- Under TWCC’s rules, the IRO’s decision has presumptive weight in all appeals from reviews of medical necessity disputes. 28 TAC ' 133.308(v).
- The Chief ALJ has not adopted TWCC’s burden-of-proof or IRO-decision-presumptive-weight rules, and no statute requires the use of those rules.
- In determining the burden of proof, the referring agency’s documented policy is to be considered, but it must be modified to consider the parties’ access to and control over pertinent information and so that no party is required to prove a negative. 1 TAC § 155.41(b).
- Based on the above Findings of Fact, Conclusions of Law, and TWCC’s documented policy set out in its rules, the Provider should have the burden of proof in this matter.
- 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. Labor Code §408.021 (a).
- Under 28 Texas Administrative Code (TAC) 133.3 (b), which was in effect on the dates of service and has now been recodified as 28 TAC § 180.22 (c)(1):
Except in the case of an emergency, the treating doctor shall approve or recommend all health care rendered to the injured employee. This includes, but is not limited to, referrals to consultants made by the treating doctor. Thereferrals shall be medicallyreasonable and necessary.
- The Provider failed to show that the Claimant’s treating physician approved or recommended work hardening for the Claimant.
- The Provider failed to show that the Claimant reasonably needed the work hardening program that it provided to her.
- Based on the above Findings of Fact and Conclusions of Law, the Provider’s request to be reimbursed by the Carrier for the work hardening program that it provided to the Claimant between September 4, 2001, and October 10, 2001, should be denied.
IT IS ORDERED THAT the Provider’s request to be reimbursed by the Carrier for the work hardening program that it provided to the Claimant between September 4, 2001, and October 10, 2001, is denied.
Signed March 27, 2003.
WILLIAM G. NEWCHURCH
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS