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July 10, 2003


July 10, 2003


This case involves a dispute over compensation for work hardening services provided by the Suchowiecky Center (Provider) to injured worker _____ (Claimant). The Administrative Law Judge (ALJ) concludes that Provider failed to meet the entrance/admission criteria set out in the Texas Workers’ Compensation Commission (Commission) Medical Fee Guideline. Therefore, the ALJ finds that Provider is not entitled to reimbursement.

I.Background Facts

Claimant was in an accident while working as a mover on________. After the injury, he underwent a knee surgery on August 9, 2000, after which he was placed on light duty. Following a re-injury that was not work related, he had a second knee surgery on May 16, 2001. He participated in a work conditioning program for seven days from November 13 through 21, 2001. While in the work conditioning program, Claimant was recommended for the work hardening program because of his psychological condition.

Claimant began the work hardening program on November 26, 2001, and continued through January 4, 2002. Carrier denied payment for the services, claiming they were not medically necessary. An Independent Review Organization (IRO) disagreed, finding that Claimant was an appropriate candidate for a work hardening program. The IRO reasoned that Claimant was appropriate for work hardening because he had not worked in many months; he exhibited features of deconditioning with respect to his previous physical demand level; he had an intention and opportunity to return to gainful employment; his injury had reached a point of stability, and it was appropriate to switch him from work conditioning to work hardening because of the psychosocial component of work hardening. Carrier appealed, requesting a hearing before the State Office of Administrative Hearings (SOAH).

II. Discussion

The main focus of this case centers on the issue of whether the program met the requirements of the Medical Fee Guideline, which requires providers to use real or simulated work activities in a relevant work environment.[1] Carrier contends that Provider was trying to return Claimant to work as a mover; however, Claimant stated that he was interested in becoming a full-time college student or training to work on computers.[2] Provider failed to address the disconnect between Claimant’s stated work goals (retraining toward what would likely be a less strenuous activity) and Provider’s work hardening program goals (returning Claimant to work at a heavy physical demand level). The ALJ concludes that Provider’s documentation does not satisfy the Commission’s entrance criteria because it failed to specify a job or type of job as a goal for the work hardening program.

The Commission’s Medicine Ground Rules, in effect at all times relevant to this dispute, set out the purpose of and criteria for work hardening. Work hardening is:

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.[3]

Three Functional Capacity Evaluations (FCEs) performed on Claimant provide information necessary to evaluate the medical necessity of the work hardening program. Provider performed an initial FCE on November 8, 2001, finding that Claimant’s current physical demand level (PDL) was light-medium for activities above the waist and medium PDL below the waist, and his job demand PDL was heavy.[4] Provider conducted another FCE on November 19, 2001. In the November 19 FCE, Provider found the same PDLs for Claimant. In the discharge FCE, Claimant was listed at the medium-heavy PDL. All three FCEs mention Claimant’s job as a mover requiring a heavy PDL. Furthermore, in the November 19 FCE, there is an indication that a job is available at a lower duty level, but the Provider determined that Claimant should continue with the work hardening program to attempt to return to his job as a mover at the heavy demand level.

The ALJ finds that Provider failed to address the specifics of this particular case, in that Claimant stated he wanted to work on computers or to go to college as a full time student. Claimant’s job goal at the time he entered the work hardening program was not to be a mover, but to either go to college or to repair computers. His goals did not match the goal of the work hardening program to return Claimant to his job as a mover at the heavy demand level.

The Texas Workers’ Compensation Act (Act) states that a worker who has sustained a compensable injury is entitled to all health care reasonably required by the nature of the injury, and the worker is entitled to health care that enhances the ability of the employee to return to or retain employment.[5] These are broad and general guidelines. However, Carrier questions Provider’s responsibility to meet the Commission’s rules, which are adopted to carry out the statute. Under those rules, a work hardening program is defined as being highly structured, goal-oriented, [and] individualized.[6] A program must have a defined return-to-work goal as part of its entrance/admission criteria. Unfortunately, in this instance, there was a disconnect between Claimant’s goals and Provider’s goals for the Claimant, which Provider failed to explain.

The ALJ finds that Provider failed to explain how Claimant was an appropriate candidate in a program designed to return him to a heavy duty level, given his stated goal of wanting to go to college or to work on computers. Because it was unclear what job Claimant would seek in the future, or even if he would seek one, the program could not identify the specific tasks Claimant would be required to perform in the workplace, as required by the Medical Fee Guideline.

Accordingly, the ALJ finds that reimbursement for the work hardening program is denied.

III. Findings of Fact

  1. Claimant, a ___, sustained a compensable injury on________.
  2. At the time of the injury, Claimant’s employer had its workers' compensation insurance through Liberty Mutual Insurance Company (Carrier).
  3. On November 8, 2001, The Suchowiecky Center (Provider) performed a Functional Capacity Evaluation (FCE) for Claimant. The FCE indicated that Claimant had been employed by as mover, with a physical demand level of heavy.
  4. Provider treated Claimant with work hardening sessions beginning November 26, 2001.
  5. Throughout his time in the work hardening program, Claimant indicated he would like to go to college or to learn to repair computers.
  6. Claimant’s stated employment goals, of returning to college or working in computer repair, were inconsistent with the work hardening program goals, with a job demand or physical demand level of heavy.
  7. There is no evidence of a specific employment goal for Claimant upon completion of the program, other than an indication that he wished to go to college or learn about computers.
  8. Work simulation exercises should be focused on returning an injured employee to work. Thus, a targeted job goal should be defined during an initial evaluation of a claimant for a work hardening program.
  9. There is no evidence of specific tasks to which Claimant would be returning to in the workplace.
  10. Claimant was treated with work hardening sessions between November 26, 2001, and January 4, 2002.
  11. Provider submitted a claim to Carrier for the work hardening services provided to Claimant.
  12. Carrier denied reimbursement for the work hardening sessions because the work hardening program was not medically necessary.
  13. Provider timely appealed Carrier’s reimbursement denial to the Medical Review Division (MRD) of the Texas Workers' Compensation Commission (Commission).
  14. Provider filed a request for medical dispute resolution.
  15. On January 28, 2003, the MRD reviewed the decision of the Independent Review Organization (IRO) and concluded that Provider prevailed on the issue of medical necessity.
  16. On February 5, 2003, Carrier filed a request for a hearing before the State Office of Administrative Hearings (SOAH).
  17. The Commission sent notice of the hearing to the parties on April 8, 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.
  18. The hearing convened on June 18, 2003, at the William P. Clements Building, 300 West 15th Street, Austin, Texas. Carrier appeared and was represented by Charlotte Salter, attorney. Provider appeared and was represented by Scott Hilliard, attorney. The Commission did not appear. The hearing adjourned, and the record closed that same day.

IV. Conclusions of Law

  1. The Texas Workers' Compensation Commission has jurisdiction to decide the issue presented, pursuant to the Texas Workers' Compensation 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 Tex. Lab. Code Ann. §§ 402.073 and 413.031(k) and Tex. Gov't Code Ann. ch. 2003.
  3. Carrier timely filed a notice of appeal of the MRD decision, as specified in 28 Tex. Admin. Code § 148.3.
  4. Proper and timely notice of the hearing provided to the parties according to Tex. Gov't Code Ann. ch. 2001.052 and 28 TAC § 148.4.
  5. Carrier had the burden of proving the case by a preponderance of the evidence, pursuant to 28 Tex. Admin. Code § 148.21(h) and (i).
  6. Carrier satisfied the requirements of 28 Tex. Admin. Code § 133.304(c) and Tex. Lab. Code Ann. §408.027(d) (Vernon 1996 & Supp. 2002) when it denied the treatments on the grounds that work hardening was not medically necessary.
  7. Provider failed to show that Claimant met the criteria for admission into a work hardening program, as set forth in the Medical Fee Guideline, Medicine Ground Rule II. E. 1 (a) and (b), because he did not have any specific employment defined after completion of the program, and Claimant’s goals of going to college or repairing computers were inconsistent with Provider’s goals of returning Claimant to a heavy demand level. 28 Tex. Admin. Code §134.201.
  8. Based on the foregoing findings of fact and conclusions of law, Provider’s request for reimbursement should be denied for the dates of service of November 26, 2001 through January 4, 2002.


IT IS ORDERED that the Suchowiecky Center is not entitled to reimbursement by Liberty Insurance Company for the work hardening program administered to Claimant.

Signed this 10th day of July 2003.

Administrative Law Judge
State Office of Administrative Hearing

  1. TWCC 1996 Medical Fee Guideline, p. 37.
  2. Carrier Ex. 2 at 342
  3. TWCC 1996 Medical Fee Guideline, pp. 37-38.
  4. Carrier Ex. 2 at 164.
  5. Tex. Lab. Code Ann. §408.021(a).
  6. Medical Fee Guideline at 37.
End of Document