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At a Glance:
July 25, 2003
Retrospective Medical Necessity


July 25, 2003


St. Paul Fire & Marine Insurance Company (Carrier) appealed the findings of the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) which approved Central Dallas Rehab’s (Provider’s) request for reimbursement for medical services, work hardening and certain office visits, provided to Claimant ___ This decision disagrees with the MRD and finds the requested services were not medically necessary.


A hearing in this matter was convened at 1:30 p.m. on May 21, 2003, at the William P. Clements Building, 300 W. 15th Street, 4th Floor, Austin, Texas. The Carrier was represented by its attorney, Steve Tipton. The Provider was represented by its attorney, Scott Hilliard. The Texas Workers’ Compensation Commission (Commission) did not participate in the hearing. Ruth Casarez, an Administrative Law Judge (ALJ) with the State Office of Administrative Hearings (SOAH), presided.

The Provider introduced the packet of business records (276 pages) that it had submitted to the MRD for review and also presented its medical expert, Laurent Pelletier, D.C., by teleconference. The Carrier introduced a video tape with a statement of authenticity (Pet. Ex. A). It also presented Radie Perry, M.D., its medical expert, by teleconference. Presentation of the evidence was concluded on May 21, 2003, but due to the lateness of the hour, the hearing was recessed for one week, after which closing arguments were presented via teleconference. The record of the hearing closed on May 28, 2003.

There are no contested issues of notice or jurisdiction in this proceeding. Therefore, those matters are addressed in the findings of fact and conclusions of law without further discussion here.


A. Issue

The issue presented is whether work hardening (WH) was medically necessary to treat the injury to Claimant’s left wrist and arm. If WH was necessary, then the final functional capacity evaluation (FCE) and office visits to check on Claimant’s progress would also be medically necessary and should be reimbursed.

Carrier’s Evidence

The Carrier’s evidence showed that Claimant, a ___ for ___, reported feeling pain or stiffness in his left hand and wrist on, when he lifted a box containing a large TV set. He was taken to the hospital, was treated and released. Although he stayed off work for several days, he returned to his job and worked for the remainder of the month. In September, however, he reported that pain in his left arm or wrist kept him from doing his job. He began treatment in September with Dean Allen, a chiropractor with Respondent.[1] Dr. Allen provided physical therapy (active and passive modalities) to Claimant. He also ordered the diagnostic tests indicated below:

September 2000

Charles Neagle, M.D.



October 2000

Charles Tuen, M.D.

Electrodiagnostic studies

possible sensory abnormalities in median nerve at wrist

October 2000

Phil Elizondo, orthopedic surgeon

Examination for possible surgery

possible TFCC tear; administered cortisone injection; arthroscopy later, if necessary

On the follow-up visit, Dr. Elizondo found Claimant to be almost back to normal and wrote in his report that he believed Claimant could return to work soon.

On December 21, 2000, pursuant to Carrier’s request for a required medical examination (RME), Radie Perry, M.D., a medical doctor licensed for nineteen years, who has taken workers’ compensation patients for the past fifteen years, examined Claimant. After examining Claimant and viewing a surveillance video[2] of him, Dr. Perry found that Claimant had suffered a minor wrist sprain, which had resulted in no sensory or motor deficits. Dr. Perry opined that Claimant had been “more than adequately worked up” and that after the extensive conservative care treatment he had received, Claimant required no further treatment. He believed Claimant had reached maximum medical improvement (MMI) on December 21, 2000, with a zero impairment rating (IR).[3]

At the hearing, Dr. Perry stated that the only evidence of injury he had found when he examined Claimant had been Claimant’s subjective report of pain; there were no objective findings to support that Claimant required additional treatment. Because the injury had not resulted in (1) a condition that required surgery, (2) range of motion deficit, (3) sensory deficit, (4) motor deficit, (5) nerve damage, (6) atrophy in left hand or wrist, (7) loss of strength in left hand or wrist, or (8) deconditioning, Dr. Perry believed further treatment, including WH, was not necessary. Everything had tested normal, just as it had for Dr. Elizondo several months before. In fact, Dr. Perry testified that, in his experience, WH was never prescribed to a person who had the type of injury or symptoms that Claimant had. Only when a person was covered by workers’ compensation would this type of extensive treatment be provided to the person, he said. In a typical, non-workers’ compensation situation, a person with a minor wrist sprain would generally be treated with physical exercises, such as squeezing a ball, to do at home.

Furthermore, Dr. Perry testified that Claimant had evidenced no psychological problems that would justify Provider’s multi-disciplinary WH program. The psychological evaluation performed by Julie Duncan, Ph. D., on July 27, 2001, was done after the WH had been provided.[4]

Carrier also introduced a videotape that showed excerpts of Claimant’s daily activities on the following dates: October 9, 10, 16 and November 2, 3, 11, 25, 2000, and January 8, 2001. The video shows Claimant carrying various items[5] with his right and left hands without any difficulty. It also showed him using his left hand to open and close the car door, roll down the window, and open and close his car’s hood and trunk. He did all of these things without difficulty and without avoiding the use of or “favoring” his left hand. Claimant was shown carrying out his normal, everyday activities without any visible signs of pain or discomfort when using his left hand or arm.

C. Provider’s Evidence[6]

As indicated above, Dr. Allen and later Osler Kamath,[7] both doctors of chiropractic who worked for Provider at the time, treated Claimant for his injury. After treating him with physical therapy for several months and obtaining diagnostic testing, Dr. Allen referred Claimant to Ken Haycock, D.C., who performed an initial FCE on November 29, 2000.[8]

After conducting the initial FCE, Dr. Haycock found that Claimant was at sedentary physical demand level (PDL), while his job required functioning at the heavy PDL. In addition, Claimant reported pain or discomfort at the left anterior wrist at an 8 (intense) when he lifted 14 pounds to shoulder height and when he carried 40 pounds on a tray.[9] Dr. Haycock noted the following assessments related to Claimant’s functional abilities:

  1. static lifting Claimant could lift 15 pounds knuckle height; 13 pounds bench height; 15 pounds ankle height and 14 pounds shoulder height.
  2. dynamic repetitive lifting--Claimant could lift 20 pounds floor to bench and floor to shelf 40 pounds
  3. cart height static pushing and pulling Claimant pushed 5 pounds and pulled 6 pounds; shoulder height static pushing and pulling: 5 pounds pushed; 8 pounds pulled.
  4. hand grip static strength—Claimant’s grip strength measured 2 pounds for each hand, which placed him in the sedentary PDL.

After the initial FCE report, Dr. Allen referred Claimant to six weeks of WH at Provider’s facility. Claimant enrolled in the WH program on December 5, 2000, and continued until January 8, 2001.

On Claimant’s completion of four weeks of WH, Dr. Haycock performed a final two-hour FCE on Jan 5, 2001.[10] According to the final FCE report, Claimant continued to perform the tests indicated above (static, dynamic lifting, pushing, pulling) at the same levels or rates indicated during the initial FCE, but was able to perform the activities for the full eight hours, as required in a normal working day. Thus, Dr. Haycock indicated that Claimant met all the maximum sedentary level requirements. (Provider’s Ex. 1, p. 205). As to the hand grip, static strength, Claimant showed improvement as he recorded 39 pounds of strength for the right hand and 24 pounds for the left hand. The increase in grip strength placed him in the light to medium PDL as far as grip strength was concerned. However, when he gripped, he reported left anterior wrist pain of 7 (low intense).[11]

Finally, Provider presented a report by Mark L. Hanson, D.C., who evaluated Claimant pursuant to a request for an independent medical evaluation (IME). Dr. Hanson, a designated doctor, found that Claimant’s left wrist injury had resulted in decreased range of motion and some loss of function due to loss of strength in Claimant’s left wrist. He determined those deficits resulted in a 9% IR for the upper extremity. That upper extremity IR translated into a 5% whole person IR.[12] Dr. Hanson further found Claimant had reached MMI on May 9, 2001, the day of the IME.

After Claimant had completed the WH program and had been seen on multiple occasions (December 15 and 29, 2000; January 5 (final FCE); February 5, April 9 and 16; and September 25, 2001) by Dr. Kamath to check on Claimant’s progress, Provider submitted its bills requesting payment for the services. Carrier denied reimbursement, indicating the services had not been medically necessary. Provider requested review

through the MRD on December 7, 2001. The MRD found that the documentation submitted by Provider substantiated the medical necessity of the treatment provided, consistent with the Medical Fee Guidelines (MFG). The Carrier appealed the decision.


A. Entitlement to Medical Benefits.

Section 408.021 of the Texas Workers’ Compensation Act (Act) provides that 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. The employee is specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the compensable injury; (2) promotes recovery; or (3) enhances the ability of the employee to return to or retain employment. Section 401.011(19) of the Act defines “health care to include “all reasonable and necessary medical . . . services.”

The Commission adopted rules, found in the MFG, relating to physical medicine that can be prescribed to injured workers. Specifically, the Medicine Ground Rules, included in the MFG, relate to WH programs. The Ground Rules describe work hardening 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.[13] Relating to participation in a work hardening program, Medicine Ground Rule II. E.(1) provides that admission would be suitable if a person:

  1. is likely to benefit from the program;
  2. whose current levels of functioning due to illness or injury interferes with the

ability to carry out specific tasks required in the workplace;

whose medical, psychological, or other conditions do not prohibit

participation in the program; and

is capable of attaining specific employment upon completion of the program.

The MFG also allows a maximum of three FCEs 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.[14]


As indicated, the Carrier appealed the MRD decision, which found the WH program and specified office visits provided were medically necessary and should be reimbursed. As the party who challenged that decision, the Carrier has the burden of proof in this contested case hearing. 28 TAC §148.21(h).

In challenging the medical necessity of the WH program, Carrier argued that Claimant was not an appropriate candidate for WH. Carrier argued that the injury sustained by Claimant was a minor sprain of the left wrist or arm. As such, the injury should have been and was treated with physical therapy (PT). Dr. Perry testified that several months of PT should have been sufficient to strengthen Claimant’s hand and wrist and allow him to return to work. He stated no serious consequences had resulted from the injury that required additional interventions, and pointed to the various diagnostic tests that had been performed on Claimant’s left arm and wrist soon after the reported injury. Nothing in the test results indicated surgery was required. Indeed, Dr. Elizondo indicated in his follow-up report that the cortisone injection had helped ease Claimant’s pain significantly, and he believed no further treatment (other than some PT, perhaps) would be required. Dr. Perry concurred with Dr. Elizondo’s assessment of the wrist injury, and also stated there had been no evidence that Claimant had become deconditioned because of the wrist sprain.

In addition, Carrier presented a video tape of Claimant within two months of the injury. The video reflected Claimant going about his daily activities without any difficulty whatsoever. It showed him (a) lifting objects of various weights, (b) opening and closing his car’s doors, trunk and hood, and (c) applying a substance to his vehicle engine, all the time using both hands or arms. The video did not show Claimant having difficulty carrying out any of the activities indicated above. Thus, the ALJ finds it unlikely that Claimant’s level of functioning in the fall of 2000 interfered with his ability to perform his job due to the injury of ___. Furthermore, Carrier pointed out that there had been no evidence that Claimant had any psychological problems in the fall of 2000 that made him a good candidate for an interdisciplinary WH program. Thus, while Provider presented evidence that Claimant had physical deficits in late November 2000, the ALJ finds that the more credible evidence established that Claimant did not have such deficits, and therefore, was not a suitable candidate for WH in December 2000.

The ALJ finds that Carrier proved by a preponderance of the credible evidence that the WH Program provided Claimant was not medically necessary. Therefore, the requested reimbursement for five weeks of WH and the specified office visits to check his progress during and after the program should not be reimbursed by the Carrier. Therefore, Provider is not entitled to reimbursement of $9,420.80 from Carrier.


  1. Claimant suffered a compensable injury to his left arm and wrist on, as he lifted a large box containing a television set.
  2. At the time of the injury, Claimant worked as a ___ for ___, which had workers’ compensation insurance through St. Paul Fire & Marine Insurance Co. (Carrier).
  3. Following the injury, Claimant was taken to the hospital, was treated and released. He was off work for several days, but returned to his job and worked for the remainder of August 2000.
  4. In September 2000, Claimant presented to Central Dallas Rehab (Provider), where he began treatment with Dean L. Allen, D.C., and later, Osler Kamath, D.C., who were employed by Provider.
  5. Dr. Allen treated Claimant with physical therapy (PT), active and passive modalities, in September and October 2000 and also referred him to several other doctors for diagnostic testing.
  6. An MRI of Claimant wrist performed in September 2000 showed normal findings.
  7. On October 30, 2000, orthopedic surgeon Phil Elizondo examined Claimant to determine if the injury required surgery. Dr. Elizondo determined that surgery was not necessary at that time and administered a cortisone injection instead.
  8. Dr. Elizondo saw Claimant in a follow-up visit on November 14, 2000, and concluded Claimant’s physical examination was almost normal. He found no objective findings of any remaining problems associated with the injury, recommenced no further treatment, and indicated he believed Claimant could soon be released to return to work.
  9. On November 29, 2000, Dr. Allen referred Claimant to Kenneth Haycock, D.C., for a functional capacity evaluation (FCE).
  10. As reflected in the initial FCE, Claimant (1) had pain at the left wrist, (2) was at a sedentary physical demand level (PDL) while his job required performance at a heavy PDL, and (3) had physical deficits that could be improved if Claimant attended a six-week work hardening (WH) program.
  11. Claimant enrolled in Provider’s WH program and participated in the program from December 5, 2000, to January 8, 2001 (five weeks).
  12. Pursuant to Carrier’s request, employees of Research and Discover, Inc., conducted a surveillance of Claimant on dates in October, November 2000 and January 2001 and prepared a video tape showing Claimant’s activities during that period.
  13. The video tape referenced in Finding No. 12 showed Claimant carrying out his normal, daily activities on dates in October and November 2000 without any difficulty and without evidence of pain or injury.
  14. In October and November 2000, Claimant, using both hands, could carry items of varying weights in and out of his car. He was also able to open and close his car door, trunk, and hood with his right and left hands and demonstrated no difficulty in using his left hand. The video showed Claimant did not favor his left hand or arm as he carried out his activities.
  15. On December 21, 2000, Radie Perry, M.D., performed a required medical examination (RME) to determine Claimant’s condition and determine if Claimant had reached maximum medical improvement (MMI).
  16. After examining Claimant and reviewing his medical records and the videotape indicated in Finding No. 12, Dr. Perry determined that Clamant required no additional treatment, and that Claimant had reached MMI as of December 21, 2000, assigning a 0% impairment rating.
  17. Because Dr. Allen disagreed with Dr. Perry’s assessment, Claimant was referred to Mark L. Hanson, D.C., a Commission-designated doctor, for an independent medical evaluation.
  18. Dr. Hanson examined Claimant on May 9, 2001, diagnosed him with injury of the left wrist, and determined Claimant had some deficits associated with range of motion and loss of strength in the left wrist. He indicated Claimant had reached MMI on May 9, 2001, and assigned a 5 % whole person IR.
  19. Dr. Perry’s testimony concerning Claimant’s condition in December 2000 and thereafter, which was supported by results of an MRI in September 2000, by Dr. Elizondo’s findings following examination of Claimant on October 30 and November 14, 2000, and by the video tape indicated in Finding No. 12, was more credible than Dr. Haycock’s November 29, 2000, assessment of Claimant’s condition.
  20. In late November 2000, Claimant had no significant, objective symptoms that resulted from the injury he reported on ___.
  21. In late November 2000, Claimant had no psychological problems associated with the injury he reported on ___.
  22. After providing WH and other related medical services to Claimant from December 5, 2000, through September 25, 2001, Provider billed Carrier for reimbursement.
  23. Carrier denied reimbursement indicating the medical services had been medically unnecessary.
  24. On December 4, 2001, Provider sought medical dispute resolution through the Texas Workers’ Compensation Commission’s (Commission’s) Medical Review Division (MRD).
  25. After reviewing the records, the MRD found on September 27, 2002, that Provider’s documentation substantiated medical necessity for the WH program and associated office visits and ordered Carrier to reimburse Provider $9,420.80.
  26. On October 7, 2002, Carrier filed a timely request for hearing, appealing the MRD’s decision.
  27. The Commission sent a notice of the hearing in this matter to all parties on February 13, 2003.
  28. The notice of hearing contained a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a plain statement of the matters asserted.
  29. The hearing on the merits was convened on May 21, 2003, was recessed and reconvened on May 28, 2003. The parties were represented by their respective attorneys on both dates. The record of the hearing closed on May 28, 2003, with filing of the parties’ closing arguments.


  1. The Texas Workers’ Compensation Commission has jurisdiction over this proceeding pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code ann. § 413.031.
  2. 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. §413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
  3. The Commission provided proper notice of the hearing in this matter in accordance with Tex. Gov’t Code Ann. § 2001.052.
  4. Pursuant to 28 Tex. Admin. Code §148.21(h), the Carrier has the burden of proof in this case.
  5. Carrier proved Claimant’s injury was a minor sprain to the left wrist or arm.
  6. Because Carrier showed that Claimant had no significant, objective physical deficits, had no psychological problems, or problems related to deconditioning as a result of the left wrist sprain, Carrier proved Claimant was not an appropriate candidate for WH in November 2000.
  7. The five weeks of the multi-disciplinary WH program provided by Central Dallas Rehab Center were not medically necessary to treat Claimant’s left wrist sprain in December 2000.
  8. Because work hardening was not medically necessary, neither were the final FCE nor the office visits to monitor Claimant’s progress during and after the WH that were charged by Provider.


IT IS, THEREFORE, ORDERED, that Petitioner St. Paul Marine and Fire Insurance Company is not required to reimburse Central Dallas Rehab $9,420.80 for the work hardening services provided between December 5, 2000 and January 8, 2001, and for office visits between February 5, 2001, and September 25, 2001.

Signed this 25th day of July 2003.

Administrative Law Judge

  1. This description of Claimant’s treatment history was obtained from Provider’s Ex.1, pp. 235-238.
  2. The surveillance video was made by Research and Discover, Inc., at Carrier’s request.
  3. See Provider’s Ex. 1, pp. 261-63.
  4. See Provider’s Ex. 1., pp. 235-239.
  5. Claimant is shown carryinga plastic bag, a shoulder baby bag, hand-held baby carrier, a bottle of water (appears to be a quart-size bottle), and what appears to be a one gallon jug of anti-freeze.
  6. Although Laurent Pelletier, D.C., Respondent’s Director of Clinical Operations, testified at the hearing, the ALJ gave his testimony somewhat less weight because he had not examined or treated the Claimant. The ALJ instead focused on the treating doctors’ medical records to ascertain Claimant’s symptoms, condition, treatment, and progress following the treatment.
  7. Dr. Kamath continued Claimant’s treatment when Dr. Allen left. At the time of the hearing, Dr. Kamath had also left Provider’s employ.
  8. See report of initial FCE at pp. 170-203.
  9. See Provider’s Ex. 1, pp.170-172.
  10. See report of the final FCE at Provider’s Ex. 1, pp. 204-229.
  11. Provider’s Ex. 1, p. 213.
  12. See Provider’s Ex. 1 pp. 269-276.
  13. See 1996 Medical Fee Guideline Medicine Ground Rule II. E., pp. 37-38, and 28 Tex. Admin. Code §134.201.
  14. See 1996 Medical Fee Guideline Medicine Ground Rule I. E.(2), p. 35.
End of Document