Your FREE and easy resource for all things Texas workers' compensation
At a Glance:
Title:
453-03-2022-m5
Date:
September 5, 2003
Status:
Retrospective Medical Necessity

453-03-2022-m5

September 5, 2003

DECISION AND ORDER

This case involves a dispute over $13,438 in work hardening services and office visits provided by Texas Injury Rehab Centers (Provider) to____, a workers' compensation claimant (Claimant) between February and October 2001.[1] Continental Casualty Company (Carrier) denied payment for these services. The Administrative Law Judge (ALJ) concludes that the work hardening program and some of the office visits provided to Claimant were not shown to be medically necessary. The ALJ further concludes that Carrier failed to file the explanation of benefits (EOB) for some office visits and therefore Carrier owes Provider for these office visits.

I. Jurisdiction, Notice, and Procedural History

On July 7, 2003, ALJ Catherine Egan convened the hearing in Austin, Texas. Mark Plummer, M.D. represented Provider. Attorney David Swanson represented Carrier. The Commission chose not to participate in the hearing. Jurisdiction and notice were not contested and will be addressed in the findings of fact and conclusions of law.

II. Background Facts

In ___, Claimant worked at_____________ as a journeyman. Part of her job duties included lifting 25 to 50 pounds of dough into ovens.[2] On ___, while at work, Claimant slipped on some oil, fell, landed on her buttocks and lower back area, and injured her lower back. As a result of this injury, Claimant suffered a lower back injury compensable under the Texas Workers’ Compensation Act and for which Carrier was the responsible insurance carrier. Claimant was initially treated at N.W. Memorial Hospital in Houston, Texas. After her injury, Claimant went to Arthur Taitel, M.D.[3] and later Brent Dreier, D. C. for treatment.[4] Dr. Dreier reported on February 24, 1999, that Claimant suffered from discogenic syndrome and lumber segmental dysfunction.[5] Dr. Dreier remains her primary treating physician.

Dr. Dreier referred Claimant to Richard Evans, M.D. In January 1999, Dr. Evans examined Claimant and found she suffered with:

  1. Low back sprain with radiculopathy.
  2. Traumatic arthritis of right sacroiliac.
  3. Acute and chronic injury to the lateral extensor muscles of right forearm.[6]

Dr. Evans recommended chiropractic care, physical therapy and exercise. On February 19, 1999, Claimant underwent an MRI that showed bulging discs at L1-L2, L2-L3, L3-L4, L5-S1 with herniation at L1-L2.[7] On November 10, 1999, Claimant had a lumbar discogram which showed an abnormality at L5-S1.[8] Dr. Dreier referred Claimant to a surgeon, Stephen Esses, M.D.[9]

After unsuccessfully trying physical therapy and epidural steroid injections, Claimant underwent spinal surgery (L5/S1 fusion) on July 11, 2000.[10] On August 21, 2000, Dr. Esses reported to Dr. Dreier that Claimant was doing well after the lumbosacral fusion, and referred her to Dr. Dreier for post surgical rehabilitation.[11] On October 12, 2002, Dr. Dreier reported that Claimant was responding well to acute post-operative rehab efforts.[12] According to Dr. Dreier, he was going to transition Claimant into active assisted rehabilitation to improve her flexibility and range of motion.[13]

While under Dr. Dreier’s care, Claimant began experiencing paralumbar myospasms and segmental dysfunction.[14] Dr. Esses examined Claimant again on December 4, 2000, and reported to Dr. Dreier that Claimant still has intermittent complaints of pain from the donor site.[15] The x-rays taken of Claimant's spine showed that the facet screws were in place and the lumbosacral fusion was fine. According to Dr. Esses, Claimant had no restrictions as far as returning to activities.[16] The following day, Dr. Dreier reported that Claimant was ready to begin aggressive post operative rehabilitation to improve her flexibility, strength, and trunkal stabilization.[17]

On January 4, 2001, Dr. Dreier certified that Claimant reached maximum medical improvement (MMI) on January 8, 2001, with a 29 percent impairment rating. On January 25, 2001, Claimant underwent a functional capacity evaluation (FCE) that showed she was capable of lifting weights of 30 lbs. on a frequent basis, and was a good candidate for a work hardening program. The FCE did not detail why a work hardening program would be beneficial to Claimant. Tracy Galle, Provider's office manager, signed the FCE.[18] On February 5, 2001, Claimant began the work hardening program, according to Dr. Plummer. After Claimant had begun the work hardening program, Kim Seaton, Ph.D., Provider's psychologist, recommended that a complete preliminary screen be done to assess Claimant's mood and somatic focus.[19] Claimant's psychological or behavioral needs did not appear to be a factor in Provider's decision to put Claimant in a work hardening program.

On February 23, 2001, R.J. Halbert, D.C., serving as the TWCC-designated doctor, evaluated Claimant’s medical condition to decide if she had reached MMI, and if so, the percentage of impairment. After conducting a physical examination, Dr. Halbert found that Claimant reached MMI on December 30, 2000, with a whole body impairment rating of 15 percent.[20]

Provider conducted a second FCE on March 22, 2001, and found that Claimant’s performance during this evaluation has demonstrated that she is capable of lifting weights of 40 lbs. on a frequent basis and 50 lbs. on occasion.[21]

III. Discussion

MRD Decision

The MRD reviewed Claimant’s medical records as provided by the parties. MRD found that Provider's documentation for the work hardening services provided from February 5, 2001 to March 16, 2001,[22] established the medical necessity for work hardening, but failed to show that the work hardening program was a multidisciplinary program. It was, according to MRD, more like work conditioning than work hardening. MRD noted that Claimant was released to return to full duty work on March 22, 2001. MRD found the office visits and reports for April 17, and August 6, 2001, were not medically necessary as Provider did not document any exacerbation of Claimant’s condition to justify the visits.

MRD approved payment for some of the office visits because Carrier did not provide an explanation of benefits (EOB) for the office visits on June 11, 26, and 27, August 15, September 17 and 25, and October 15, 2001. In conclusion, MRD found the Provider was entitled to reimbursement for $351 out of the requested $13,582. Both the Provider and the Carrier appealed MRD’s decision. At the hearing, over 350 pages of medical records were admitted into evidence Provider’s Position Provider maintains that it did provide a multidisciplinary program and called Patricia Susman, M.A., L.P.C.[23] as an expert witness. Ms. Susman works for Steward J. Nathan Ph.D. & Associates. She was not Claimant’s treating psychologist, but she did review some of Claimant’s medical records. Unfortunately, she did not review Claimant’s group therapy notes or the environment intervention notes.[24] According to Ms. Susman, people coming into a work hardening program generally have few coping strategies and suffer from anxiety and depression. Therefore, she explained, psychologists try to educate the patient so the patient can work through this difficult situation, while giving them an outlet for their frustration, depression and anxiety.

Under cross-examination, Ms. Susman admitted she had never seen Claimant; she had not reviewed Claimant’s psychological or behavioral records; and she did not know if Claimant had any psychological problems that justified being in a work hardening program. In short, Ms. Susman could only state that the interventions read to her during the hearing were reasonable, but she did not know what psychological diagnoses Claimant had, if any.

Dr. Plummer testified that he is in charge of Provider's post surgical rehabilitation programs, including the work hardening program. According to Dr. Plummer, after spinal surgery it takes three to six months of post-surgical rehabilitation before the patient is ready to start any other type of rehabilitating programs, i.e., a pain management program or a work hardening program. Consequently, Claimant was first treated with passive physical therapy, then progressed to an active physical therapy program before she was sent to Provider’s work hardening program.

Although Dr. Plummer did not treat Claimant, he testified that he had reviewed some of her records. This did not include Claimant's physical therapy notes for her performance in the active therapy program. Dr. Plummer agreed that Dr. Esses released Claimant to return to her everyday activities without restrictions and did not recommend further physical therapy or work hardening on December 4, 2000.[25] However, Dr. Plummer explained Dr. Esses did not do an FCE, as Provider did.

The January 25, 2001, FCE states that the reviewer stopped reviewing Claimant’s medical records after the July 11, 2000, surgery. Dr. Plummer explained that looking at Claimant's past performance in physical therapy was not necessary for the reviewer because the FCE documents a patient’s objective activities at that one moment in time. In addition, Provider did not secure a job description for Claimant’s job at Ms. Baird's Bakeries, Inc. In the FCE, Provider listed the goal for Claimant to reach was medium physical demand level, not a heavy level, as Provider later set as Claimant's goal.[26] According to Dr. Plummer, the first goal was listed incorrectly, as Claimant’s job duties placed her at a medium to heavy level.

Dr. Plummer opined that Claimant’s physical condition improved with work hardening thereby showing the need for the work hardening. In addition, Dr. Plummer argued that because Claimant had not worked since the injury and had undergone spinal surgery, it was medically necessary for her to participate in Provider's work hardening program.

Carrier’s Position

Carrier generally agreed with MRD's decision, except to the extent that MRD ordered payment for some of the office visits. According to Carrier, the work hardening program and Claimant's office visits to Provider were not medically necessary. Samuel Bierner, M.D., Carrier’s expert, reviewed Claimant’s medical records, including Dr. Esses’ reports and letters. According to Dr. Bierner, the normal rehabilitation and healing process for this type of surgery is five to six months. Noting that Dr. Esses examined Claimant on December 4, 2000, and reported that Claimant was in such good condition that he released her to return to her activities without restriction, Dr. Bierner opined that the work hardening program was not medically necessary.

In evaluating whether to refer a patient to work hardening, Dr. Bierner explained that consideration of whether the patient has psychological or behavior problems that interfere with the patient’s treatment or progress is important. The records show that Claimant's mood was elevated and her motivation to improve was excellent. Provider’s records are void of a psychological evaluation and do not include any psychological or behavioral goals. If Claimant needed further treatment to improve her strength, Dr. Bierner suggested she could have gone through work conditioning, a four-hour program per day that does not require a psychological component in the treatment plan.

Dr. Bierner also found Provider’s January 25, 2001 FCE confusing because Provider failed to mention that any passive and active therapy was provided Claimant post operatively or to mention results of any therapy.[27] The findings in the FCE also contradicted Dr. Esses’ findings from his December 4, 2000, examination of Claimant. The FCE found Claimant to be in much worse condition. Moreover, Provider failed to reveal who performed the examination, although Ms. Galle (Provider’s office manager) signed it. Provider's work hardening weekly reports kept changing the goals for Claimant as she attained them, going from a medium physical demand level to a heavy physical demand level. Despite participating in the work hardening program and meeting the originally stated goals, Claimant was returned to work with restrictions.[28] For all these reasons, Dr. Bierner found that the work hardening program was not medically necessary.

Because Provider was not a CARF-accredited facility, Carrier and Provider agreed that Provider is entitled to receive only $51.20 per hour rather than $64 per hour, if reimbursement is ordered. Carrier denied reimbursement for the entirety of the program, asserting that work hardening was not medically necessary treatment for Claimant and for lack of documentation.

IV. ALJ’s Analysis and Decision

Pursuant to the Texas Workers’ Compensation Act, an employee who has sustained a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. The employee is specifically 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. Tex. Lab. Code (Labor Code). § 408.021(a). Health care includes all reasonable and necessary medical services. Labor Code. § 401.011(19)(A). Provider has the burden of proof regarding work hardening and two office visits. Carrier carried the burden of proof regarding the approved office visits. 28 Tex. Admin. Code (TAC) §§ 148.21 (h) and (i); 1 TAC § 155 41.

The first issue to resolve is whether the work hardening provided to Claimant was reasonably necessary medical treatment. The Commission’s Medicine Ground Rules, in effect at all times relevant to this dispute, defines “Work hardening” as:

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. 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. Work Hardening programs use real or simulated work activities in a relevant work environment in conjunction with physical conditioning tasks. These activities are used to progressively improve the biomechanical, neuromuscular, cardiovascular/metabolic, behavioral, attitudinal and vocational functioning of the persons served.

  1. Entrance/admission criteria shall enable the program to admit:
    1. persons who are likely to benefit from the program;
    2. persons whose current levels of functioning due to illness or injury interfere with their ability to carry out specific tasks required in the workplace;
    3. persons whose medical, psychological, or other conditions do not prohibit participation in the program; and
    4. persons who are capable of attaining specific employment upon completion of the program.[29]

In this case, Claimant underwent an FCE which suggested she needed to improve her strength, i.e., her ability to lift 50 pounds. However, the FCE did not include a behavioral or psychological evaluation. The record does not support a need for an interdisciplinary approach with the capability of addressing Claimant's behavioral needs. Nor does the record show that Provider created an individualized treatment plan for Claimant. While Claimant’s job duties required her to lift 50 pounds, Claimant’s physical limitation on January 25, 2001, only indicate that she required some type of physical therapy such as work conditioning. It did not justify work hardening, which is an interdisciplinary program.

Nothing in the record shows that Claimant needed an interdisciplinary team approach to treat her. Claimant appears from the record to be motivated and in good psychological and behavioral condition. While Claimant may have needed to be able to lift up to 50 pounds, the evidence did not show that she needed psychological or behavioral intervention.

The ALJ finds that Provider’s documentation was inadequate. Provider apparently disagreed with Dr. Esses about Claimant’s physical condition, but did not explain sufficiently who did the physical evaluation of Claimant or why Provider and Dr. Esses’ opinions were so disparate. Provider did not properly document that it provided an interdisciplinary work hardening program, or why Claimant needed one.

The ALJ finds that the evidence does not sufficiently establish that the work hardening program was medically necessary treatment for Claimant. Further, the evidence does not show that Provider properly documented or properly provided the work hardening treatment for the behavioral/psychosocial component of the program. Therefore, the ALJ upholds Carrier's denial of reimbursement.

The Carrier objected to the payment for the office visits on April 17, June 11, 26, 27, August 15, September 17, 25, and October 15, 2001. According to the Commission’s rules, a carrier is required to take final action on a medical bill not later than the 45th day after the date the insurance carrier received a completed medical bill.[30] If the Carrier denies payment on a medical bill, the carrier must send an EOB that provides sufficient explanation to allow the sender to understand the reason(s) for the insurance carrier’s action(s).[31]

Carrier failed to issue EOB's for the office visits on June 11, 26, 27, August 15, September 17, 25, and October 15, 2001. Therefore, Carrier should have paid those claims. Specifically, the Carrier must pay for Claimant's office visits on June 11, 26, 27, August 15, September 17, 25, and October 15, 2001. As for the April 17 and August 6, 2001, office visits, MRD found that these office visits were not medically necessary because Claimant was released to full duty on March 22, 2001, and Claimant had not exacerbated her condition. Provider carried the burden to show that these two office visits were medically necessary and failed to do so. The ALJ concludes that the April 17 and August 6, 2001, office visits were not medically necessary.

V. Findings of Fact

  1. On_________,_______ (Claimant) while at work, Claimant slipped on some oil, fell, landed on her buttocks and lower back area, and injured her lower back. As a result of this injury, Claimant suffered a lower back injury compensable under the Texas Workers’ Compensation Act and for which Continental Casualty Company (Carrier) was the responsible insurance carrier.
  2. Claimant worked as a journeyman for___________, having to lift 25 to 50-pound of dough.
  3. Claimant was initially treated at N.W. Memorial Hospital in Houston, Texas, and later went to Brent Dreier, D.C. for treatment. Dr. Dreier was Claimant's treating physician during the dates of service in controversy.
  4. Claimant was diagnosed with discogenic syndrome and lumbar segmental dysfunction.
  5. When conservative care failed to relieve Claimant's symptom, Dr. Dreier referred her to a spinal surgeon, Stephen Esses, M.D.
  6. On July 11, 2000, Dr. Esses performed spinal surgery on Claimant, specifically a L5/S1 fusion called a lumbosacral fusion.
  7. On August 21, 2000, Dr. Esses found Claimant to be doing well after surgery and referred her to Dr. Dreier for post surgical rehabilitation.
  8. Claimant responded well to rehabilitation, and on December 4, 2000, Dr. Esses released Claimant to return to her activities with no restrictions.
  9. Claimant reached maximum medical improvement on December 30, 2000, with a whole body impairment rating of 15 percent.
  10. On January 25, 2000, Claimant underwent a functional capacity evaluation that showed she could lift 30 pounds.
  11. Claimant's job as a journeyman required her to be able to lift 50 pounds.
  12. Claimant needed additional strength training so she could lift 50 pounds.
  13. Claimant had no behavioral or psychosocial limitations that prevented her from returning to work or impeded her ability to improve.
  14. Provider admitted Claimant into a work hardening program, which began on February 5, 2001, and continued through March 16, 2001.
  15. Provider failed to document the details of the behavioral component of the work hardening program to show that the program was interdisciplinary in nature and was being provided as required by the Commission’s guidelines.
  16. The work hardening treatment provided to Claimant was not medically necessary as Claimant did not need an interdisciplinary approach to improve her physical strength.
  17. Provider's records do not show that work hardening program provided to Claimant involved an individualized treatment program.
  18. Provider timely sent Carrier claim forms requesting payment for the medical services and treatment provided to Claimant between February 5, 2001 and October 15, 2001.
  19. Provider billed Carrier for the work hardening program provided from February 5, 2001, to March 16, 2001.
  20. Provider billed Carrier for office visits provided on April 17, June 11, 26, 27, August 6, 15, September 17, 25, and October 15, 2001.
  21. Carrier denied Provider’s request for reimbursement for the work hardening program and for the office visits provided on April 17 and August 6, 2001.
  22. Carrier failed to send Provider an explanation of benefits for the office visits conducted by Provider on June 11, 26, 27, August 15, September 17, 25, and October 15, 2001.
  23. Provider failed to show that Claimant's April 17 and August 6, 2001, office visits to Provider were medically necessary.
  24. Provider filed a request for medical dispute resolution.
  25. On September 20, 2002, after conducting medical dispute resolution, MRD declined to order Carrier to reimburse Provider for the work hardening treatments and the April 17 and August 6, 2001, office visits. MRD did order Carrier to pay $351 to Provider for the June 11, 26, 27, August 15, September 17, 25, and October 15, 2001, office visits because Carrier had failed to issue an explanation of benefits.
  26. On October 4, 2002, Provider filed a request for hearing before the State Office of Administrative Hearings (SOAH). On October 11, 2002, Carrier filed a request for hearing before SOAH.
  27. Notice of the hearing was sent on February 13, 2003.
  28. A hearing was conducted by SOAH, before Administrative Law Judge Catherine C. Egan, on July 7, 2003. Mark Plummer, M.D. appeared for Provider. Attorney David Swanson appeared for the Carrier. The Commission did not appear. The hearing adjourned and the record closed the same day.

VI. Conclusions of Law

  1. The Texas Workers' Compensation Commission has jurisdiction to decide the issues presented pursuant to the Texas Workers' Compensation Act (the Act), Tex. Lab. Code Ann.§ 413.031.
  2. SOAH has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to § 413.031 of the Act and Tex. Gov’t Code Ann. ch. 2003.
  3. Provider and Carrier timely filed their requests for a hearing, as specified in 28 Tex. Admin. Code § 148.3.
  4. Proper and timely notice of the hearing was provided in accordance with Tex. Gov’t Code §2001.052 and 28 Tex. Admin. Code § 148.4.
  5. Provider has the burden of proving that the work hardening services and the April 17 and August 6, 2001, office visits were medically necessary by a preponderance of the evidence, pursuant to Tex. Lab. Code Ann. § 413.031 and 28 Tex. Admin. Code § 148.21(h) and (i).
  6. Carrier has the burden of proving that the office visits for June 11, 26, 27, August 15, September 17, 25, and October 15, 2001, should not be reimbursed by a preponderance of the evidence, pursuant to Tex. Lab. Code Ann. § 413.031 and 28 Tex. Admin. Code §148.21(h) and (i).
  7. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001 and 28 Tex. Admin. Code ch. 148.
  8. Based on the above findings, Provider failed to establish, by a preponderance of the evidence, that the work hardening program provided to Claimant between February 5 and March 16, 2001, and the office visits for April 17 and August 6, 2001, were reasonably medically necessary treatment for Claimant.
  9. Based on the above findings, Provider failed to establish, by a preponderance of the evidence, that it properly documented the work hardening treatments provided to Claimant between February 5 and March 16, 2001.
  10. Based on the above findings, Provider’s request for reimbursement should be denied for the work hardening services provided between February 5 and March 16, 2001 and the office visits provided on April 17 and August 6, 2001.
  11. Based on the above findings, Provider’s request for reimbursement for the office visits provided on June 11, 26, 27, August 15, September 17, 25, and October 15, 2001, should be granted because Carrier failed to provide Provider with an explanation of benefits as required by 28 Tex. Admin. Code § 133.304.

ORDER

IT IS ORDERED that Continental Casualty Company shall reimburse Texas Injury Rehab Centers the amount of $351 for the office visits provided to Claimant on June 11, 26, 27, August 15, September 17, 25, and October 15, 2001. All requests for reimbursement for the work hardening services provided to Claimant between February 5 and March 16, 2001, and the April 17 and August 6, 2001, office visits are denied.

Signed this 5th day of September 2003.

CATHERINE C. EGAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. Most of the work hardening services occurred between February and March 2001. The office visits occurred on April 17, June 11, 26, 27, August 6, 15, September 17, 25, and October 15, 2001. The amount in dispute listed in the MRD decision was $13,582. However, Provider stated that the amount in dispute is $13,438.
  2. Ex. 1 at 67.
  3. Ex. 1 at 6.
  4. Ex. 1 at 9-10.
  5. Ex. 1 at 32.
  6. Ex. 1 at 13.
  7. Ex. 1 at 25 and 30.
  8. Ex. 1 at 147-151.
  9. Ex. 1 at 22-25.
  10. Ex. 1 at 198-199, and 207.
  11. Ex. 1 at 210.
  12. Ex. 1 at 227.
  13. Ex. 1 at 228.
  14. Ex. 1 at 232.
  15. Ex.1 at 236.
  16. Id.
  17. Ex. 1 at 238.
  18. Ex. 1 at 244-249.
  19. Ex. 1 at 268.
  20. Ex. 1 at 284-285.
  21. Ex. 1 at 51.
  22. The dates of service include February 5-7, 9, 12-16, 19-23, and 26-28, 2001; March 2, 5-9, and 12-16, 2001.
  23. Licensed professional counselor.
  24. Claimant’s treating psychologist, Kim Seaton, no longer works with Provider.
  25. Ex. 1 at 236.
  26. Ex. 1 at 262.
  27. Ex. 1 at 244.
  28. Ex. 1 at 331.
  29. TWCC 1996 Medical Fee Guideline, pp. 37-38.
  30. 28 TAC § 133.304.
  31. 28 TAC § 133.304(c).
End of Document
Top