DECISION AND ORDER

This case involves the appeal by Maximum Therapeutic Initiative, LLC (Petitioner), from the decision of an Independent Review Organization (IRO) that denied a request for preauthorization for work conditioning for six weeks. The decision agrees with the IRO, finding the injured worker (Claimant) has had previous work conditioning and ample time to strengthen his knee since his surgery, and that the work conditioning is not medically necessary or reasonable considering the degenerative condition in his knee. Therefore, preauthorization for further work conditioning is denied.

I. PROCEDURAL HISTORY

On June 17, 2003, Barbara C. Marquardt, Administrative Law Judge (ALJ), convened the hearing on the 4^th floor of the William P. Clements Building, 300 West 15th Street, Austin, Texas. Charles Blevins appeared pro se and represented the Petitioner. Highlands Insurance Company (Carrier) was represented by Beverly L. Vaughn, attorney. The record closed on the same day.

II. LEGAL STANDARDS

A. Entitlement to Medical Benefits

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 injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment.^[1] “Health care” includes “all reasonable and necessary medical . . . services.”^[2]

B. Preauthorization

Certain categories of health care identified by the Commission require preauthorization, which is dependent upon a prospective showing of medical necessity.^[3] Work conditioning requires preauthorization.^[4]

III. EVIDENCE

A. Basic Facts

The Claimant, who is 49-years-old, worked for 20 years as a ___, and during that time he endured repeated trauma to his knees (standing, squatting, and kneeling for long periods of time during his standard 12 B 16 hour days, 6 days per week), culminating in the need for three arthroscopic surgeries on his left knee in 1999. There was no definitive injury, just a gradual progression of deterioration and pain in his knees.

The operative notes from the surgeries indicate he has a diffuse degenerative process in his left knee. According to the IRO opinion, which was written by a board-certified orthopedic surgeon, the degenerative condition of the Claimant’s left knee will make it unlikely he can return to his previous work, regardless of work conditioning. The surgeries involved ACL shrinkage/repair, a partial medial meniscectomy and chondroplasty. He was found to have grade II – III chondromalacia^[5] diffusely in his medial and lateral compartments, as well as his patello-femoral joint. He received physical therapy after each of the surgeries B several months, in total. He also was given a self-directed home exercise program.

At a physical exam to determine his impairment rating in August of 2000, his condition was described as occasional swelling and constant pain in the left knee. The pain is worse when he wakes up in the morning and with squatting. During the exam, he had substantial crepitus (noise, which can mean bone rubbing against bone) through most ranges of motion. The examiner gave the Claimant a 16% impairment of the whole person, based on a 40% impairment for his left knee.

On November 19, 2002, the Claimant completed a Functional Capacity Evaluation (FCE), which found him to be a candidate for a daily, two-week work conditioning program to address deficits in the strength of his left knee and safe tolerance for the positions of crouching, crawling, pushing, and pulling. The Carrier approved work conditioning based on this FCE.

A discharge FCE given on December 17, 2002, followed the Claimant’s two-week course of work conditioning. That FCE report made a number of significant points:

• At that time, the Claimant said he would not try to work as a cement finisher again, but would look for a new position within his demonstrated capabilities.
• He made positive gains in his overall aerobic capacity, L E strength, and frequent lifting ability.
• He continued to have difficulty with any position that required putting pressure on his left knee, such as crawling and two-point kneeling.
• During a crouching position and performing squatting tasks, he had popping with pain in his left knee.

The FCE report did not recommend further work conditioning. Instead, it stated he would benefit from an independent gym program to help him continue with the gains he made during work conditioning.

B. The Medical Records & Analysis

This is a troubling case. The Claimant appeared at the hearing, but he was unable to speak or understand English. Petitioner stated that he did not expect the Claimant to appear, and, thus, there was no translator available. The parties chose to proceed with the hearing rather than delay the preauthorization request further.

There are conflicts in the record that were not explained. Testimony from the Claimant’s treating physician, Dr. Pies L. Kujawa, might have clarified matters, but none was offered. As described further below, the rest of the records do not prove more work conditioning is appropriate for the Claimant.

According to a note in the record generated on February 5, 2003, the Carrier’s physician advisor spoke to Dr. Kujawa. They mutually agreed that the Claimant’s efforts in his previous therapy and his first course of work conditioning were less than maximum and determined he did not need another course of work conditioning. When that information was presented to Dr. Kujawa’s nurse, she stated the Carrier should deny the request for work conditioning.^[6]

Petitioner performed another FCE on the Claimant on January 7, 2002. A letter purportedly written by Dr. Kujawa reviewed that FCE and sought preauthorization for a structured, daily, six-to-eight-hour work conditioning program so that the Claimant might return to his strenuous occupation. A second letter from Petitioner’s Clinic Coordinator, using remarkably similar language to the January 7^th letter allegedly from Dr. Kujawa, states, among other things, that Petitioner guarantees an average of ten pounds improvement per week in every lift measured.^[7] The letter fails to address the Claimant’s medical condition (a degenerated knee) at all; does not explain why the Claimant changed his mind and decided to return to his previous type of job; and does not explain what will be different about the second work conditioning program (other than its length) that will arrive at a better resolution than the first program.

There are clinic notes from Dr. Kujawa dated February 12, 2003, indicating that the Claimant is not yet ready to return to his previous job because of continued pain in his knee, some of it from degenerative arthritis. The note does not explain clinically why more work conditioning would benefit the Claimant. It praises the Petitioner’s very high rate of success at returning patients to their pre-injury level of work, and states Dr. Kujawa believes, with proper conditioning, the Claimant has a reasonable chance of getting Aback to where he was before.

Conclusion

The Medicine Ground Rules describe work conditioning as a single disciplinary approach to restore function in an injured worker.^[8] As noted above, the record is unclear what methodology would address Claimant’s painful knee condition. Carrier argued, and the ALJ found it persuasive, that returning the Claimant to his prior work makes no sense, because the repeated trauma from that prior work caused him to develop the knee problem he has.

Without further evidence explaining whether Dr. Kujawa really supports this preauthorization request, and explaining how the Claimant’s knee can be made to function as before, it is not clear that additional work conditioning will be of any benefit to the Claimant. Therefore, the ALJ finds that Petitioner did not meet its burden of proof, and preauthorization should be denied.

IV. FINDINGS OF FACT

1. ____ (Claimant), who is 49-years-old, worked for 20 years as a ___, and during that time he endured repeated trauma to his knees (standing, squatting, and kneeling for long periods of time during his standard 12 – 16 hour days, 6 days per week).
2. The Claimant’s work caused a gradual progression of deterioration and pain in his knees, culminating in the need for three arthroscopic surgeries on his left knee in 1999.
3. The operative notes from the surgeries indicate he has a diffuse degenerative process in his left knee that will make it unlikely he can return to his previous work, regardless of work conditioning.
4. The surgeries involved ACL shrinkage/repair, a partial medial meniscectomy and chondroplasty.
5. He was found to have grade II – III chondromalacia diffusely in his medial and lateral compartments, as well as his patello-femoral joint.
6. The Claimant received physical therapy after each of the surgeries – several months, in total. He also was given a self-directed home exercise program.
7. At a physical exam to determine his impairment rating in August of 2000, his condition was described as occasional swelling and constant pain in the left knee.
8. The pain is worse when he wakes up in the morning and with squatting.
9. During the exam, he had substantial crepitus (noise, which can mean bone rubbing against bone) through most ranges of motion.
10. The examiner gave the Claimant a 16% impairment of the whole person, based on a 40% impairment for his left knee.
11. On November 19, 2002, the Claimant completed a Functional Capacity Evaluation (FCE), which found him to be a candidate for a daily, two-week work conditioning program to address deficits in the strength of his left knee and safe tolerance for the positions of crouching, crawling, pushing, and pulling. The Carrier approved work conditioning based on this FCE.
12. A discharge FCE given on December 17, 2002, followed the Claimant’s two-week course of work conditioning. That FCE report made a number of significant points:
13. At that time, the Claimant said he would not try to work as a cement finisher again, but would look for a new position “within his demonstrated capabilities.”
14. He made positive gains in his overall aerobic capacity, LE strength, and frequent lifting ability.
15. He continued to have difficulty with any position that required putting pressure on his left knee, such as crawling and two-point kneeling.
16. During a crouching position and performing squatting tasks, he had popping with pain in his left knee.
17. The FCE report did not recommend further work conditioning. Instead, it stated he would benefit from an independent gym program to help him continue with the gains he made during work conditioning.
18. On or about February 5, 2003, the Claimant’s treating physician, Dr. Pies L. Kujawa, agreed with the Carrier that the Claimant’s efforts in his previous therapy and his first course of work conditioning were less than maximum and determined he did not need another course of work conditioning.
19. Petitioner did not explain how more work conditioning would increase the Claimant’s ability to return to his former job, given the deteriorated condition of his knee.
20. It is not logical to attempt to return the Claimant to his former job, which caused the impairment of his knee in the first place.

V. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (the Commission) has jurisdiction to decide the issue presented 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(k) and Tex. Gov’t Code Ann., Ch. 2003.
3. As referenced in the Findings, the Claimant is not entitled to take a second round of work conditioning, because it is not likely to relieve the effects naturally resulting from his compensable injury or enhance his ability to return to work. Tex. Lab. Code Ann. §408.021(a).
4. Therefore, it should not be preauthorized. Tex. Lab. Code Ann. §413.014; 28 Tex. Admin. Code §134.600(h)(9).

ORDER

IT IS, THEREFORE, ORDERED that the Claimant,____, is not entitled to preauthorization for another work conditioning program.

Signed this 29th day of July 2003.

BARBARA C. MARQUARDT
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Tex. Lab. Code Ann. §408.021.↑
2. Tex. Lab. Code Ann. §401.011(19).↑
3. Tex. Lab. Code Ann. §413.014.↑
4. 28 Tex. Admin. Code §134.600(h)(9).↑
5. “Chondromalacia” is softening of the cartilage. Stedman’s Concise Medical Dictionary (3^rd. ed. 1997).↑
6. Ex. 2, 14.↑
7. Id. at 28.↑
8. 28 Tex. Admin. Code §134.201.↑