DECISION AND ORDER

Recovery Analysis (Provider) appealed the decision of the Medical Review Division (MRD) of Texas Workers’ Compensation Commission’s (Commission) upholding Liberty Mutual Corporation’s (Carrier) denial of reimbursement for a course of work hardening in late January and early February 2002, on the basis that the treatment was not medically necessary. Provider argued that the treatment was necessary to enable _____ (Claimant) meet the demands of his previous job.

Based on the evidence, the ALJ concluded that Provider failed to demonstrate that work hardening was needed between January 23 and February 15, 2002, to treat Claimant’s injury and that Provider should not be reimbursed.

The hearing in this matter convened July 15, 2003, in Austin, Texas, with Administrative Law Judge (ALJ) Cassandra Church presiding. Provider was represented by H. Douglas Pruett, attorney. Carrier was represented Charlotte Salter, attorney. The Commission did not participate in the hearing. The record closed on the August 15, 2003, to allow the parties to file additional materials.

I. DISCUSSION

On________, Claimant was injured when tendons leading to his left thumb and superficial nerves on the back of his hand were lacerated by an electric knife or saw. Claimant worked as a materials cutter at a manufacturing company. Robert Yanney, D.C., became Claimant’s treating doctor on October 3, 2001, after Claimant had undergone at least one surgery on his hand. On October 4, 2001, Claimant underwent a second hand surgery that included repair to two branches of the radial nerve. Provider Exh. 1, p. 33. Dr. Yanney administered conservative care in October, November, and December of 2001, including both active and passive modalities. Provider Exh. 1, pp. 31 to 72. Notwithstanding the surgeries and the conservative care, Claimant continued to experience frequent moderate to severe pain and tenderness in his hand, swelling on use, difficulty with lifting, and also elbow and shoulder pain. Claimant’s symptoms were sufficiently persistent and severe that on December 28, 2001, Dr. Yanney referred Claimant to John McConnell, M.D., for evaluation of his post-surgical status. Provider Exh. 1, p. 70. On that date, Dr. Yanney also designated Claimant as a candidate for work hardening.

Dr. McConnell examined Claimant on two dates, one before the first date of service at issue, January 10, 2002, and one during the course of treatment, February 11, 2002. On both visits, Dr. McConnell recommended that Claimant be evaluated by a hand surgeon and that he continue “follow up” care with Dr. Yanney. Provider Exh. 1, p. 162. In his treatment notes, Dr. McConnell acknowledges that on those Claimant was, respectively, scheduled to enter and was in the middle of a work hardening program. However, he neither recommended that Claimant proceed with the program nor barred him from participation. There is nothing in those treatment notes that resolves the apparent conflict between further consultation with a hand surgeon and Claimant’s concurrent participation in a work hardening program. While there may be medical reasons for such a course of action, administration of work hardening at the same time an injured worker may be facing additional surgery and recovery is not consistent with the terms of the Medical Fee Guideline (MFG), in regard to a worker’s readiness to enter a transition-to-work program. 28 Tex. Admin. Code § 134.201, pp. 36-41.

The functional capacity evaluation (FCE) conducted on Claimant before the work hardening showed some deficits in lifting and ability to maintain work positions related to his previous job as a trimmer. However, he did come close to meeting the job criteria in several areas. Further, the vocational target of the this session of work hardening was not clear. Presumably it was to make him capable of returning to his old job, although it is not known if that position or an equivalent was open. As early as October 2001, his previous employer apparently offered Claimant offered light, one-handed duty.^[1] IRO Report, p. 2. Claimant apparently did not take his employer up on that offer, since in January 2002, he reported to Provider that his last date of employment had been the date of the injury. Provider Exh. 1, p. 80. In addition, Provider failed to demonstrate that Claimant presented behavioral or attitudinal deficits that required a multi-disciplinary approach.^[2] Although a stress evaluation showed that Claimant was finding the injury and its aftermath stressful, it was not clear that Claimant’s levels of stress were above what would be expected when a manual laborer loses the ability to work with his hands.

In sum, Provider failed to demonstrate that as of January 2002, Claimant was ready to transition from medical management to job-specific work preparation, since he was still a potential candidate for surgery. Further, Claimant did not present evidence of vocational, attitudinal, or behavioral deficits sufficiently marked to warrant a multi-disciplinary program. In short, Provider failed to demonstrate that Claimant was a proper candidate for a work hardening program. Thus, the ALJ finds these treatments for the dates of service of January 23, 2002, through February 15, 2002, were not medically necessary.

II. FINDINGS OF FACT

1. On ________, _____ (Claimant) lacerated the back of his hand with an electric knife or saw while at his job as a materials cutter; an injury compensable under the Texas Workers’ Compensation Act. Liberty Mutual Corporation (Carrier) was the responsible insurer at the time.
2. Three tendons leading to Claimant’s left thumb and two branches of the radial cutaneous nerves were lacerated.
3. Claimant underwent two surgeries to repair the tendons, one on September 27, 2001, and one on October 4, 2001.
4. The surgery on October 4, 2001, included repair to two branches of the radial cutaneous nerve.
5. Robert Yanney, D.C., began treating Claimant on October 3, 2001, after Claimant’s first surgery. Dr. Yanney’s treatment plan for Claimant included both passive modalities such as myofascial release and joint mobilization, and also active therapy such as hand dexterity, arm and hand range of motion (ROM), and strengthening exercises.
6. Despite therapy and surgeries, Claimant continued to feel pain and numbness in his left hand, swelling on use, shooting pain in his elbow shoulder, and moderate to severe burning pain on some parts of his hand. These symptoms persisted throughout the Fall of 2001 and during the dates of service in 2002.
7. In October 2001, Claimant’s previous employer offered Claimant light, one-handed duty. Claimant did not accept this work.
8. On December 28, 2001, Dr. Yanney referred Claimant to John McConnell, M.D., for medical review for his post-surgery medical condition and recommended him for work hardening.
9. On January 10, 2002, Dr. McConnell recommended that Claimant be re-evaluated by a hand surgeon. At the time of his recommendation, Dr. McConnell was aware of Claimant’s imminent participation in a work hardening program, but neither barred Claimant’s participation in it, nor endorsed it as appropriate treatment.
10. A functional capacity evaluation (FCE) performed on January 17, 2002, showed that Claimant was functioning at a light-medium demand level. He was able to lift 40 pounds from floor to bench height, and 20 pounds from bench to shelf height. Claimant was able to carry 40 pounds, a requirement for a medium demand level job, but did not meet some of the other criteria for a medium demand level job.
11. Claimant’s former job required lifting from floor to bench height, and 40 pounds from bench to shelf height, and carrying 40 pounds.
12. Before the course of work hardening, Claimant did not exhibit vocational, behavioral, or attitudinal deficits. It was unknown whether Claimant could be re-employed as a trimmer.
13. A life stress test was administered to Claimant before the subject work hardening began, Claimant exhibited, no abnormal mental health conditions as a result of testing other than some normal stress associated with his injury.
14. As of January 23, 2002, Claimant did not exhibit the factors needed to make him a suitable candidate for a multi-disciplinary work hardening program.
15. Recovery Analysis (Provider), administered a course of work hardening treatment between January 23, 2002, and February 15, 2002.
16. Provider appealed the Carrier’s denial of reimbursement to the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission’s (Commission).
17. On February 28, 2003, the MRD denied reimbursement to Provider, based on the review by an Independent Review Organization (IRO), Texas Medical Foundation. The MRD determined that the work hardening was not medically necessary.
18. On March 17, 2003, Provider requested a hearing on the MRD decision.
19. On May 14, 2003, the Commission issued a notice of hearing that included the date, time, and location of the hearing, the applicable statutes under which the hearing would be conducted, and a short, plain statement of matters asserted.
20. Administrative Law Judge Cassandra Church conducted a hearing on the merits of this case on July 15, 2003. The record closed on August 25, 2003, to permit the parties to file additional materials.

III. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to Tex. Labor 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. Labor Code ‘413.031 and Tex. Gov’t Code Ann. ch. 2003.
3. Provider timely requested 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 Ann. ‘ 2001.052.
5. Provider, as the petitioning party, has the burden of proof in this proceeding pursuant to Tex. Labor Code Ann. ‘ 413.031 and 28 Tex. Admin Code ‘ 148.21 (h).
6. Work hardening sessions for dates of service between January 23, 2002, and February 15, 2002, were not medically necessary and nor reasonably required to relieve the effects of or promote recovery from a compensable injury suffered by Claimant, within the meaning of Tex. Labor Code Ann. ” 408.021 and 401.011(19).

ORDER

IT IS ORDERED that Liberty Mutual Corporation is not required to reimburse Recovery Analysis for work hardening sessions administered on behalf of Claimant _____ on dates of service between January 23, 2002, and February 15, 2002.

Signed October 24, 2003.

_______________________________________________ CASSANDRA J. CHURCH
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Provider in this case argued that work hardening was needed to assist Claimant regain all the skills and strength needed to perform to the level required in his previous job. Provider argued that work hardening was needed since Claimant had no appropriate offer for a light duty job, arguing that to be valid such an offer must be writing, as specified in a Commission rule on bona fide offers of employment, 28 Tex. Admin. Code § 129.6. However, this rule expressly applies to income and temporary income benefits, not to medical benefits. The ALJ declines to extend that requirement to medical benefits without any textual support. It should be noted that Provider did not dispute that Claimant’s previous employer had made a good faith, verbal offer of light-duty employment.↑
2. Provider also argued that the Carrier had given verbal authorization before Provider initiated the work hardening treatment, and that as a facility accredited by the Commission on Accreditation of Rehabilitation Facilities (CARF), it was not even required to get that. Presumably, Provider’s position is that even an unofficial “approval” for a treatment, even if such approval is not required, would support its claim for payment on a detrimental reliance theory. Whether Provider’s theory is correct, the ALJ does not need to reach it to decide this case based solely on the issue of medical necessity.↑