DECISION AND ORDER
Alta Healthcare Clinic, LP (Provider) sought reimbursement for work hardening services, physical therapy services, and office visits provided to Claimant ____. Security Insurance Company of Hartford (Carrier) denied payment for all treatments as medically unnecessary. The Independent Review Incorporated, an Independent Review Organization (IRO), reviewed the claim. The IRO denied reimbursement for work hardening, unusual travel, myofascial release, and traction, and granted Provider’s claim for joint mobilization, office visits and therapeutic exercises. Both Provider and Carrier appealed the IRO’s decision.
After reviewing the evidence and arguments, the Administrative Law Judge (ALJ) concludes the work hardening program was not medically necessary, but all physical therapy and office visits conducted prior to the work hardening and the four office visits provided after work hardening were medically necessary. Therefore, Petitioner is entitled to reimbursement in the amount of $736.00.
II. PROCEDURAL HISTORY
On March 27, 2003, ALJ Stephen J. Pacey convened the hearing at the William P. Clements Building, 300 West 15th Street, Austin, Texas. Provider was represented by H. Douglas Pruett, attorney, and Carrier was represented by Mark H. Sickles, attorney. The Texas Workers’ Compensation Commission (Commission or TWCC) did not participate in the hearing. The parties did not contest notice or jurisdiction, and those matters are discussed in the findings and conclusions without further discussion here. At the conclusion of the evidence, the parties were allowed to submit additional evidentiary documents until April 28, 2003, when the record closed for document submission. The record of the hearing closed on June 3, 2003, with submission of closing arguments from both parties.
There was a dispute whether the Explanation of Benefits (EOBs) were admissible at the hearing. The EOBs were introduced by Carrier and objected to by Provider on the basis that the Provider never received the EOB’s. Tom Arrington, senior claims adjustor for Royal Sun Alliance, indicated that in the normal course of business the EOBs would have been sent to Provider. At the hearing, ALJ took the admission under advisement, and the EOBs are hereby admitted for all purposes.
III. APPLICABLE LAW, EVIDENCE, AND ARGUMENTS
On________, Claimant, an employee of________, crushed his right ring finger while using a power jack. On ___, Basith M. Ghazali, M.D., performed an open reduction internal fixation of the right ring finger fracture with a repair of the extensor tendons. Dr. Ghazali subsequently performed a reconstruction of the extensor tendon apparatus using a free palmeris tendon graft on June 28, 2001.
On August 20, 2001, Philip Gonzales, D.C. began physical therapy treatments on Claimant. These treatments included office visits (CPT Code 99213), joint mobilization (CPT Code 97265), myofascial release (CPT Code 97250), traction (CPT Code 97122), and therapeutic exercise (CPT Code 97110). On November 5, 2001, Claimant entered a work hardening program that ended on December 13, 2001. Carrier denied all charges on the basis of lack of medical necessity. Provider filed a medical dispute seeking $11,558.80 in reimbursement for medical services.
The IRO reviewed the documents, and issued a decision that some of the treatments were necessary for the injury. The IRO indicated that joint mobilization and therapeutic exercises from September 18, 2001, through October 31, 2001, and nine office visits from August 24, 2001, through January 18, 2002, were medically necessary. The IRO decided that unusual travel for August 24, 2001, and September 25, 2001, was not medically necessary. The IRO also made a determination that myofascial release and traction from September 18, 2001, through October 31, 2001, was not medically necessary and that work hardening from November 5, 2001, through December 13, 2001, was not medically necessary. Both parties appealed the IRO decision.
Sections 408.021 and 408.025(c) of the Tex. Lab. CodeAnn. (Code) respectively provide that (1) an injured worker with a compensable injury is entitled to health care that cures or relieves the effects naturally resulting from the injury, promotes recovery, or enhances the ability of the employee to return to work, and (2) a treating doctor is responsible for maintaining efficient utilization of the worker’s health care. The Code also authorizes the Commission to adopt rules and policies that explain how, when, and under what circumstances certain health care may be provided to an injured worker.
The Commission adopted rules, found in the Medical Fee Guidelines (MFG), relating to work hardening programs. According to the Medicine Ground Rules, included in the MFG, work hardening is described as 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, intended to address the functional, physical, behavioral, and vocational needs of the person. The Medicine Ground Rules also indicate, 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. Medicine Ground Rule II. E.(1) provides that a person is suitable for admission to a work hardening program admission if:
- A person is likely to benefit from the program;
- A person’s current levels of functioning due to illness or injury interferes with the person’s ability to carry out specific tasks required in the workplace;
- A person’s medical, psychological, or other conditions do not prohibit
participation in the program; and
A person is capable of attaining specific employment upon completion of the program.
The MFG also allows a maximum of three functional capacity evaluations (FCE) for an injured worker. Reimbursement is at $100 per hour for a maximum of five hours for the initial FCE and a maximum of two hours for an interim or discharge FCE. A summary report of the evaluator’s findings is required for each FCE conducted, with no additional charge allowed for the reports.
In 2001, physical therapy over eight sessions required preauthorization pursuant to the provisions of 28 Tex. Admin. Code (TAC) §134. Pursuant to 28 TAC § 133.301(a), a carrier may not retrospectively review the medical necessity of bills for which preauthorization was granted.
Provider’s Evidence and Arguments
Provider’s Exhibit 1 (181 pages), contains the medical records relating to Claimant’s treatment and the submission of Provider’s claim to the Carrier and to the Commission when it sought medical dispute resolution. Provider also submitted 33 pages of supplemental submissions, which primarily contained EOB’s from Carrier and Health Insurance claim forms from Provider. In addition, Ben Higbee, D.C., testified on behalf of Provider.
Physical Therapy Prior To Work Hardening.
Provider indicated that the physical therapy prior to work hardening was preauthorized. On September 11, 2001, Carrier preauthorized four weeks of occupational therapy. On October 9, 2001, Carrier preauthorized an additional four weeks of physical therapy. Provider therefore argued that the dates of service in dispute for September 16, 2001 - October 30, 2001, were preauthorized, and Carrier may not dispute their medical necessity. As authority, Provider cited Commission Rule 133.301(a), which says that a carrier may not retrospectively review the necessity of bills for which preauthorization was granted.
According to Provider,TWCC improperly submitted for IRO review the physical and occupational therapy services. Provider maintained the IRO should not have reviewed the medical necessity of the services because the Carrier may not dispute the medical necessity of any of these preauthorized services. Provider argued that full reimbursement must be ordered for services from September 16 through October 30, 2001, because Carrier may not dispute the medical necessity of preauthorized services and because no other grounds for denial were raised by Carrier.
Provider also asserted that the preauthorized services benefitted Claimant. In Provider’s opinion, the benefit is reflected in both the evidentiary medical records and the testimony of Dr. Higbee. Dr. Higbee testified that Claimant's finger was nearly severed during the work related injury. This injury resulted in multiple surgeries, which weakened the hand, reduced the range of motion, and caused a build-up of scar tissue.
Dr. Higbee testified that prior to work hardening, traction was utilized to improve range of motion; joint mobilization was administered to the pain receptors in the scar tissue; and therapeutic exercises were performed to strengthen the fingers. In Dr. Higbee’s opinion, the daily records show progressive improvement in the patient’s reported pain scales. Dr. Higbee also testified that a comparison of the range of motion studies showed patient improvement during the initial therapy period. Thus, as explained by Dr. Higbee and as supported by the medical documentation, the treatment provided to the patient prior to work hardening was successful in improving his condition.
Dr. Higbee testified as to the need for a work hardening program in this case. OnOctober 4,2001, a Functional Capacity Evaluation (FCE) was performed on Claimant to address return to work capabilities. The TWCC Treatment Guidelines recommend an FCE to address return to work capabilities.
In Provider’s opinion, the FCE demonstrated that Claimant’s then current physical capacity level was light duty; however, his job was rated as heavy. Therefore, Provider concluded, work hardening was recommended to facilitate Claimant’s return to work. Claimant began the work hardening program on November 5, 2001 and concluded the program on December 13, 2001.
Provider asserted § 408.021(a)(3), Code, states that an injured worker is entitled to medical care that enhances the ability of the employee to return to or retain employment. This is the very purpose of a work hardening program.
According to Provider, the IRO denied reimbursement for two reasons: (1) the physical therapy had failed, so work hardening was not likely to succeed; and (2) there was no identified psychological barrier that would justify the need for work hardening.
Provider asserted that both IRO findings were in error. Provider first addressed the psychological issue. Provider indicated that work hardening, as defined by the TWCC Medical Fee Guidelines, requires a program to be able to provide, among other things, behavioral modification. In Provider’s opinion it is often misstated that there must be a psychological component; however, in this case, Claimant needs a work hardening program with a psychological component.
Provider pointed out that the record contains a psychological assessment that confirms a psychological component to this injury. Claimant was noted to suffer from depression, weight gain, difficulty concentrating, and had short term memory impairment. Provider asserted that all of these conditions were caused by his work related injury and the four hand surgeries. The psychological assessment substantiated the need for an interdisciplinary program such as work hardening. Dr. Higbee testified that Claimant engaged in group counseling during the work hardening program to address these issues.
Provider also addressed the work hardening program’s benefit to Claimant. Provider contrasted the need for work hardening and physical therapy or home exercise. Provider explained that therapy or home exercise programs last between 30 minutes to two hours, while work hardening simulates a normal working day, seven to eight hours. Dr. Higbee’s testimony indicated that it would not be reasonable to expect a person only capable of light duty work to return to a heavy duty job by merely engaging in therapy one to two hours three days a week. Dr. Higbee also indicated that therapy and home exercises programs do not include work simulation, group counseling, or many of the other factors of a work hardening program.
While Claimant ultimately did not achieve heavy work level, Provider contended the work hardening program did improve Claimant from a light duty level to a medium duty level. Provider pointed out that §408.021, Code says that a patient is entitled to treatment that enhances the ability to return to work. According to Provider, this treatment enhanced Claimant’s ability to return to work, and the program should be reimbursed.
Carrier’s Evidence and Arguments.
Carrier’s Exhibit 1 contained medical records, doctors’ reports, EOBS, and Health Insurance Claim Forms relating to Claimant’s treatment. In addition, Hooman Sedighi, M.D. and Jeff Cunningham, D.C. testified on behalf of Carrier.
Carrier argued that additional reimbursement for services sought by the Provider is neither reasonable nor necessary because the services rendered by the Provider were not medically necessary to treat Claimant’s injuries. The injured worker injured his ring finger. Carrier asserted that the medical documentation and testimony failed to show why the services and the work hardening for his ring finger were medically necessary. The documentation fails to include medical documentation supporting work hardening and how the program is initially justified to return Claimant to work, or how the program will assist Claimant after he returns to work.
Carrier cited Medicine Ground Rule II (E) which states that work hardening is a highly structured, goal oriented, individualized treatment program designed to maximize the ability of the persons served to return to work. Carrier pointed out that these programs assess the functional, physical, behavioral, and vocational needs of the worker. Additionally, 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. In Carrier’s opinion, the work hardening provided by Provider did not return Claimant back to work because it was ineffective for his type of injury.
Dr. Sedighi’s testimony involved the extent of Claimant’s injury. He testified that Claimant had an injury to his ring finger, and that work hardening would have no effect on the finger. He also said that passive modalities such as myofascial release were not an appropriate modalities for Claimant’s injury. Dr. Sedighi physically examined the injured worker through an Independent Medical Examination and stated that the Claimant had lifting restrictions of 30 pounds and that Claimant should be able to return to work by October 26, 2001, without restrictions. Dr. Sedighi further testified that if the finger had been cut off, then the Claimant would have returned to work. Dr. Sedighi concluded that Claimant desired to have his finger be the same as before accident, and that his finger will never be the same. He indicated that work hardening did not and could not significantly improve the finger.
Carrier asserted that Provider attempted to discredit Dr. Sedighi, indicating that his report was biased. Carrier pointed out Dr. Sedighi’s testimony and his report indicated that for this type of injury, work hardening was not medically necessary and unwarranted. According to Carrier, Provider tried to discredit Dr. Sedighi by claiming that he was not competent to testify about chiropractic treatments. Dr. Sedighi testified that he had worked in a rehabilitation clinic and performed the same physical therapy modalities that were the subject of this controversy. Carrier argued that Dr. Sedighi’s experience, and medical degree enabled him to testify about the effectiveness or lack of effectiveness of chiropractic treatments.
Kelly Timberlake-Lancaster, D.C. performed a review of the records and opined that the injured worker may need work conditioning, but not work hardening. Her report indicated that work hardening for a finger was an unnecessary modality.
Dr. Cunningham testified that work hardening is not meant for a finger, but is meant for serious debilitating injury. Dr. Cunningham said that the active rehabilitation in the past had reduced Claimant’s pain level from nine to two, and a person with a pain level of two is not a proper candidate for work hardening.
Carrier also argued that the physical therapy modalities performed prior to the work hardening were not medically necessary. Dr. Sedighi indicated that after Claimant’s surgeries, his rehabilitation should have consisted of therapy by a certified hand specialist. Dr Sedighi said that the chiropractor’s treatment was not medically necessary because Claimant’s injury was an ortho- genic fracture; consequently soft tissue modalities would not permanently improve Claimant’s condition. Dr. Sedighi explained that while myofascial and traction modalities may be of temporary benefit, they do not afford Claimant any significant objective benefit, and there is no significant improvement in the range of motion. Dr Sedighi concluded that the chiropractic measures were unnecessary and said: “it is unclear as to why he began treating with a chiropractor for the post-op care of the finger when he should have continued to follow up with the same surgeon who had treated him.”
Carrier insisted that none of the services prior to work hardening were medically necessary, and the work hardening was not medically necessary. Carrier requested that Provider be denied reimbursement for all services.
This analysis distinguishes between the physical therapy services rendered before work hardening from physical therapy services included in the work hardening program. Most of the physical therapy sessions were medically necessary, while none of the services included in work hardening were medically necessary.
Physical Therapy Prior To Work Hardening.
Provider produced sufficient evidence to indicate that on September 11, 2001, Carrier preauthorized 12 sessions of occupational therapy, and on October 9, 2001, Carrier preauthorized 12 sessions of physical therapy. The dates of service are September 16, 2001, through October 30, 2001. In addition to the preauthorization, Carrier’s own witness, Dr. Cunningham, indicated that the therapy before the work hardening was appropriate because Claimant’s pain level went from nine to two.
Even though the IRO decided that myofascial release and traction services from September 18, 2001 through October 31, 2001, were not medically necessary, and irrespective of Dr. Sedighi’s testimony, these services and dates of service were preauthorized by Carrier. A carrier may not retrospectively review the medical necessity of bills for which preauthorization was granted. The IRO, only determined medical necessity. IRO proceedings are medical in nature and are not forums for discussion of legal issues and the Commission’s rules. An IRO decision cannot supercede a TWCC rule. Because the dates of service noted above were preauthorized, the medical necessity of the services cannot be retrospectively determined.
Based on the FCE, Provider decided that work hardening was medically necessary. Prior to Claimant’s injury, his job, as described by the Department of Transportation, required a heavy physical demand level. The FCE reflected that after the injury and the subsequent physical therapy, Claimant was at a light physical demand level. At this point, Provider decided that Claimant required work hardening to enable him to return to work. For a number of reasons, the ALJ does not agree that the work hardening was necessary.
Claimant’s only injury was to his finger. It was a serious finger injury, but a work hardening program will not produce results significant enough to justify additional medical care.
Moreover, Provider overlooked a very important fact contained in the FCE. The tests involving the uninjured left arm and hand revealed that Claimant did not perform at a heavy physical demand level with his healthy hand. Consequently, the heavy demand level goal justifying the work hardening was not attainable because Claimant could not operate at that level with his healthy arm.
Provider failed to address any psychological component prior to Claimant entering the work hardening program. Claimant’s psychological evaluation was performed on December 5, 2001, which was 30 days after the commencement of the work hardening program and eight days before the end of the program. For almost three-fourths of the work hardening program, Provider did not know whether Claimant had a psychological or other condition that would prohibit his participation in the program. The psychological component is a required eligibility requirement for entering a work hardening program. Thus, Claimant was never eligible to enter work hardening. Provider apparently overlooked the evaluator’s caveat found in the psychological assessment’s recommendation. The evaluator said that the Claimant presented more acute injury related psychological factors than the average patient. The evaluator recommended that the Claimant receive additional psychological support consisting of individual cognitive psychotherapy to address depression.
It appears that Claimant did have a psychological condition that if not resolved, should have prohibited Claimant from entering the work hardening program. In addition, a review of the documents discloses that Claimant had only one session of group therapy in the entire work hardening program. Even assuming Claimant was eligible for work hardening, this particular program was unsuited for Claimant because it did not address his depression.
The ALJ finds the testimony of Drs. Sedigh and Cunningham, as well as the report of Dr. Timberlake, most credible. The ALJ concludes that the work hardening program was not medically necessary. If Claimant needed any more therapy, which is doubtful, a work conditioning or home exercise program would have been more suitable.
Carrier shall reimburse Provider in the amount of $736.00. This amount represents the reimbursement for the office visits on August 24, September 6, December 20, and December 28, 2001, and on January 3 and 8, 2002; occupational and physical services on September 18 through October 30, 2001; less services for unusual travel and $391.00 previously paid by Carrier. Provider’s request for reimbursement for work hardening is denied.
V. FINDINGS OF FACT
- On_________, Claimant, an employee of_________, sustained compensable injuries when he crushed his right ring finger while using a power jack.
- At the time of her injury, Claimant’s employer had workers’ compensation insurance through Security Insurance Company of Hartford (Carrier).
- On March 8, 2001, Basith M. Ghazali, M.D., performed an open reduction internal fixation of the right ring finger fracture with a repair of the extensor tendons.
- On June 28, 2001, Dr. Ghazali performed a reconstruction of the extensor tendon apparatus using a free palmeris tendon graft.
- On August 20, 2001, Philip Gonzales, D.C.,of Alta Healthcare Clinic, LP (Provider), began physical therapy treatments on Claimant.
- The treatments lasted until October 31, 2001, and included office visits, joint mobilization, myofascial release, traction, and therapeutic exercise.
- On September 11, 2001, Carrier preauthorized four weeks of occupational therapy, and on October 9, 2001, Carrier preauthorized four weeks of physical therapy.
- The following treatments were performed on Claimant: traction was utilized to improve range of motion; joint mobilization was administered to the pain receptors in the scar tissue; and therapeutic exercises were performed to strengthen the fingers.
- Claimant achieved progressive improvement in his reported pain scales, reducing the pain level from nine to two.
- On October 4, 2001, an FCE was conducted on Claimant that revealed he could only perform light duties while the physical demand level of his job was heavy duty.
- The FCE revealed that Claimant could not perform heavy duty with his uninjured left arm and hand.
- Claimant’s only injury was to his finger.
- Claimant began a work hardening program on November 5, 2001, and completed the program on December 13, 2001.
- Provider failed to initially evaluate any psychological component of Claimant prior to entering Claimant into the work hardening program.
- Claimant’s psychological evaluation was not performed until December 5, 2001, 30 days after the commencement of the work hardening program and eight days before the end of the program.
- For almost three-fourths of the program, Provider did not know whether Claimant had a psychological, or other condition that would prohibit his participation in the program.
- Claimant was not eligible to enter the work hardening program.
- When the psychological evaluation was finally performed, it revealed that Claimant presented more acute injury related psychological factors than the average patient, and the evaluator recommended that the Claimant receive additional psychological support consisting of individual cognitive psychotherapy to address depression.
- Claimant was not provided additional psychological support consisting of individual cognitive psychotherapy to address depression during the work hardening program.
- Claimant’s behavioral and psychological problems should have been evaluated before entering work hardening, and should have been addressed during work hardening.
- Petitioner submitted a claim for payment of $11,558.80 for the treatments provided Claimant by its doctors (physical and occupational therapy, work hardening program and office visits, from August 24, 2001, through January 8, 2001).
- Carrier denied payment for the services on the basis that they were not medically necessary.
- Provider timely requested medical dispute resolution by the Medical Review Division of the Texas Workers’ Compensation Commission (Commission).
- On September 30, 2002, after reviewing Provider’s claim, the Independent Review Incorporated, an Independent Review Organization (IRO), denied reimbursement for work hardening, unusual travel, myofascial release, and traction, and granted Provider’s claim for joint mobilization, office visits and therapeutic exercises. The Commission adopted the IRO’s decision, and on October 21, 2002, notified Petitioner of the decision.
- Carrier and Provider timely appealed the IRO decision.
- The Commission sent notice of the hearing to the parties on January 13, 2003. The hearing notice informed the parties of the time, place, and nature of the hearing; the legal authority and jurisdiction under which the hearing was to be held; the statutes and rules involved; and the matters asserted.
- The hearing was held on February 19, 2003 with ALJ Stephen J. Pacey presiding. Carrier appeared through its attorney, Mark H Sickles. Provider appeared through its attorney, H. Douglas Pruett. At the conclusion of the evidence, the parties were allowed to submit additional documents until April 28, 2003, when the record closed for document submission. The record of the hearing closed on June 3, 2003, with submission of closing arguments from both parties.
VI. CONCLUSIONS OF LAW
- The Texas Workers' Compensation Commission has jurisdiction to decide the issue presented, pursuant to the Texas Workers' Compensation Act (the Act), Tex. Lab. Code Ann. §413.031.
- 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(d) and Tex. Gov't Code Ann. ch. 2003.
- Carrier and Provider timely filed notice of appeal of the IRO decision, as specified in 28 Tex. Admin. Code (TAC) §148.3.
- Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov't Code Ann. ch. 2001 and 28 TAC §148.4(b).
- Pursuant to § 408.21 of the Act, an injured worker is entitled to treatment that will cure, relieve, promote recovery or enhance the injured worker’s ability to return to work. Pursuant to § 408.025 of the Code, the treating doctor is responsible for ensuring the worker’s efficient utilization of health care.
- Based on its preauthorization, Carrier is prohibited from a retrospective review of medical necessity for those services conducted from September 18, 2001 through October 30, 2001.
- The services set forth in Conclusion of Law No. 7, and the four office visits after the work hardening were medically necessary.
- The Commission adopted rules relating to work hardening programs. Medicine Ground Rule II.E.(1) in the Commission’s Medical Fee Guideline set out criteria that apply to persons who may participate in a work hardening program. Among the criteria are that (a) person is likely to benefit from the program, (b) person has no medical, psychological or other condition that prohibits participation in the program, and (c) person is capable of attaining specific employment after completing the program.
- Claimant did not meet the entrance criteria for a work hardening program.
- The work hardening program was not medically necessary for Claimant’s finger injury.
- Based on the foregoing Findings of Fact and Conclusions of Law, Provider should be reimbursed in the amount of $736.00. This total represents payment for all services except for work hardening, less $391.00 the Carrier has already paid and less $34.00 for unusual travel expenses.
IT IS HEREBY ORDERED that Security Insurance Company of Hartford reimburse Alta Healthcare Clinic $736.00.
Signed this 30th day of July, 2003.
STEPHEN J. PACEY
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- This is the net total after deducting sums Carrier has already paid or CPT codes that were withdrawn at the hearing. On August 24 and September 25, 2001, Provider charged Carrier under CPT code 99082 for unusual travel expenses totally $34.00. This claim was withdrawn at the hearing. Services rendered on October 31, 2001, consisting of CPT codes 97265, 97250, 97110 were apparently paid by Carrier. These charges totaled $191.00, and the FCE charge on December 14, 2001, under CPT code 97750-FC, and totaling $200.00 was paid by Carrier.↑
- Royal Sun Alliance owns Carrier.↑
- See 1996 Medical Fee Guideline Medicine Ground Rule II. E., pp. 37-38, and 28 Tex. Admin. Code § 134.201.↑
- See 1996 Medical Fee Guideline Medicine Ground Rule I. E.(2), p. 35.↑
- Provider Exhibit 1, p.16.↑
- Provider’s Exhibit 1, p. 15.↑
- Provider’s Exhibit 1, page 12.↑