DECISION AND ORDER

Petitioner, Work Ready Rehab, sought reimbursement from Wausau Business Insurance Company (the Carrier) for a lengthy treatment given to the injured worker, _____ (Claimant), that included a work hardening program, a related test, and physical therapy. The Independent Review Organization (IRO) found the program, test, and physical therapy were not medically necessary. This decision agrees with the IRO, finding Petitioner failed to carry its burden of proof as to the medical necessity of any of the contested services.

I. PROCEDURAL HISTORY

Barbara C. Marquardt, Administrative Law Judge (ALJ), convened the hearing on November 3, 2003, on the 4^th floor of the William P. Clements Building, 300 West Fifteenth Street, Austin, Texas. Robin Clearman, a rehabilitation supervisor and occupational therapist, appeared telephonically and represented Petitioner. The Carrier was represented by attorney Kevin Franta. The hearing concluded, and the record closed, on the same date.

II. OVERVIEW

This is a troubling case, because the record is incomplete.^[1] While the medical necessity of a six-week program of work hardening is at issue, there are only summaries describing the Claimant’s minimal progress for the first three weeks of the work hardening program. Furthermore, an initial functional capacity exam (FCE) is in evidence, but the FCE done after completion of the work hardening program is missing. Additionally, the date or dates on which the Claimant returned to work and the nature of the work she returned to are unclear in the record.

Coupled with the inadequate record, the ALJ finds Petitioner’s medical testimony (i.e., the testimony of an occupational therapist) unconvincing compared to the testimony of the Carrier’s expert witness (a physician who is board-certified in occupational medicine), the opinion by the Carrier’s peer review medical doctor, and the opinion written by the IRO physician (who is board-certified in orthopedic surgery).

For those reasons, the evidence supporting this decision will be summarized, and the ALJ will merely describe the Petitioner’s arguments.

III. DISCUSSION

The Injury, the General Course of Treatment, & Claimant’s Work Status

The Claimant was 32 years old on the date of her work-related injury, September 20, 2001. She was employed as an inspection supervisor for Servisair USA, where she inspected airplanes to make sure they had been cleaned properly. Petitioner classified this job at a light-medium physical demand level.

While on duty, the Claimant was struck by a van, thrown into the air, and landed on her side. She sustained a severe left foot fracture that included a broken ankle and a severe calcaneal (heel) fracture. The initial treatment, a closed reduction (cast), proved inadequate. On October 9, 2001, she had surgery consisting of an open reduction with internal fixation. Following that surgery, the Claimant had extensive physical therapy, including active and passive modalities B 24 sessions from January 10 through March 27, 2002.

The services at issue occurred between May 3 and July 26, 2002, and consisted of: (1) 15 sessions of physical therapy from May 3 to June 12, 2002, including therapeutic procedure, joint mobilization, and ultrasound therapy; (2) an FCE on June 18, 2002; and (3) a work hardening program between June 19 and July 25, 2002.

Ultimately, the Claimant had a third surgery on January 14, 2003, which included a subtalar fusion and exploration of the tarsal tunnel.^[2]

It is cler from the record that the injury caused the Claimant significant, real, pain throughout her course of treatment. She did not work for the first seven months post injury; held a temporary, sedentary job described as Alight duty work from April 29 – May 8, 2002; and then she stayed away from the workplace due to pain. As of June 26, 2002, her supervisor at Servisair USA confirmed that her supervisory position would be available if she could meet its demand level, including the ability to do frequent lifting of 25 pounds, climbing in and out of a truck, and consistently climbing stairs. While Mr. Clearman testified the Claimant was released to return to that job at the end of the work hardening program, nothing in the record supports that assertion. Given the fact that the Claimant had additional surgery in 2003, the ALJ does not find that testimony credible without additional support in the record.

The IRO Decision.

The IRO physician (Reviewer) is board-certified in orthopedic surgery. The Reviewer stated that it is customary for a foot fracture like the Claimant’s to require between four and six months of physical therapy, including three months of three sessions per week, followed by one or two sessions per week with an intensive home program. Therefore, the Reviewer concluded physical therapy should have been completed by May 1, 2002. As to the work hardening program, the Reviewer noted the Claimant had a significant pain issue, but she did not respond to the work hardening program. Thus, the Reviewer concluded the treatments at issue in the case were not medically necessary.

Review of the Treatment From Treating Physician’s Perspective

William McGarvey, M.D., referred the Claimant for physical therapy on January 8, 2002, and she began a course of 24 physical therapy sessions on January 10. She was discharged from physical therapy to a home exercise program on March 27, 2002.

Because she continued to complain of pain, the Claimant was x-rayed on April 2, 2002, and she was also given a nerve injection that did not produce any pain relief. A CT scan on April 24 revealed mild post-traumatic arthritis but overall looked rather good. Dr. McGarvey felt that at that point she needed some gait training and some subtalar (ankle) joint mobilization. Thus, physical therapy resumed May 3 and continued to June 12, 2002, for a total of 15 additional sessions.

When Dr. McGarvey saw the Claimant on June 13, 2002, he found she had persistent pain and swelling. He felt she had probably reached maximal improvement and thought work hardening would be necessary before she could return to work.^[3] Despite her continued pain complaints, which had caused compliance problems with both her home exercise program and clinic physical therapy sessions, the Claimant entered a six-week work hardening program on June 19, 2002.

On August 22, Dr. McGarvey noted the Claimant still reported prolonged pain. Because her pain continued, she had repeat electrodiagnostic studies in September 2002 and another 11 sessions of physical therapy in October 2002 before her January 2003 surgery.

Carrier’s Peer Reviews

Robert Fortin, M.D., did a record review at the Carrier’s request in April 2002 and found the first physical therapy sessions had been medically necessary for the Claimant. His report indicates the usual range of visits for an injury like the Claimant’s would be between 12 and 24, with six additional sessions if there were documented complications. At the end of his report, he indicated that further physical therapy beyond 30 visits would require additional information to support their necessity.^[4]

Dr. Fortin also did a record peer review regarding the work hardening program on July 30, 2002. He found these items from the June 18 FCE significant: (1) subjective pain ranging between 4/10, 6/10, and 7/10 during the evaluation; (2) right grip strength of 64 lbs, left grip strength of 55 lbs.; (3) physical fitness level 3, or average; (4) maximum floor-to-knuckle lift of 25 lbs.; (5) knuckle-to-shoulder lift of 35 lbs.; (6) maximum shoulder overhead lift of 25 lbs; and (7) current physical demand level ability at light-medium. The FCE report recommended that the Claimant be enrolled in a work hardening program to increase her range of motion, cardiovascular endurance and improve her posture.

Dr. Fortin noted that the Claimant was already functioning at the light-medium level required in her former job at the time of her initial FCE. Thus, she did not require work hardening to go back to that job. Second, he noted that a patient with pain ranging between 6 and 7/10 is not usually a work hardening candidate, because the pain limits the amount of work the patient can perform. For those reasons, Dr. Fortin concluded that the work hardening program was not medically necessary.^[5]

E. Other Treatment Evidence

Physical Therapy

At the end of her physical therapy sessions in March 2002, there was no significant change in the Claimant’s left ankle range of motion, strength, or edema. She reported a slight decrease in her subjective pain level B from 5/10 to 4/10. She still presented with left ankle weakness and decreased mobility; her gait pattern had improved to only a minimal deviation.

Petitioner assessed the Claimant’s physical performance on May 7, 2002. At that time, her complaints were continued pain and swelling in the left ankle. She was found to have a gait deviation. Waddell’s testing revealed no findings. The evaluation concluded the Claimant should have physical therapy three times per week for four weeks with the goals of improving her left ankle range of motion and strength, and her gait deviation. The physical therapy included: therapeutic exercise, ultrasound, joint mobilization, and a little group exercise.

Progress notes from her second (contested) physical therapy sessions include the following: (1) on May 17, her pain ranged between 4/10 and 7/10, there was mild to moderate ankle swelling following prolonged activity, and she had a slight limp and difficulty achieving normal foot flat; (2) on May 31, pain ranged between 4/10 and 6/10, there was still ankle swelling from activity, and she ambulated with a slight antalgic limp; and (3) on June 14, pain increased to 8/10 after walking, there was a decrease in ankle swelling, and she continued to ambulate with a slight antalgic limp.

Work Hardening

Progress notes from the work hardening session on June 28 indicated the Claimant had increased pain (5/10) and swelling in her ankle. On July 5, her strength level had remained the same; her cardiovascular fitness level had gone from average to poor; and her pain was still 5/10. As of July 12, her pain was still at 5/10; she had increased swelling of the ankle; and she had achieved no short term goals for the week.

Testimony by Carrier’s Expert Witness

The Carrier’s witness, Dr. Casey Cochran, D.O., is board-certified in occupational medicine. He agreed with the other medical personnel who had assessed the Claimant’s treatment that she had a complex fracture. His testimony criticized all three of the matters at issue in the case.

As to physical therapy, Dr. Cochran stated that it would be unusual to treat such a patient with more than 24 sessions of physical therapy. In fact, he testified that the 24 sessions were medically reasonable, and perhaps even generous. The next 15 sessions would not have offered the Claimant any more relief than the exercises she was released to do at home in March.

Dr. Cochran testified that the initial FCE given to the Claimant was not valid, meaning the testing did not assure that the patient was giving the maximum effort per task. If that had been done, the FCE would have validly determined what the patient was able to do at that point in time and what tasks the patient needed to be trained in to achieve the ability to return to work. Furthermore, Dr. Cochran stated that the testing results showed the Claimant was able to work at a medium work level according to industry guidelines B not the light-medium level reported in the FCE.

The work hardening program, in Dr. Cochran’s opinion, was inappropriate for a number of reasons. First, as already mentioned, the Claimant’s goal was to return to a job requiring a light-medium demand level, and the FCE revealed she had met or surpassed that level before beginning the program. Second, work hardening is usually appropriate for patients who have developed psychological barriers to returning to work. In this case, psychological testing revealed that the Claimant was in the normal range as to all factors.

Looking at the work hardening report from week three, Dr. Cochran found it showed very little progress. There was not much change in her range of motion; her cardiovascular fitness had gone down; and she had significant pain levels. Finally, Dr. Cochran testified that the Claimant’s pain levels would have precluded her ability to participate fully in work hardening.

Petitioner’s Arguments

Essentially, Petitioner argued the Claimant had a difficult, painful recovery. The physical therapy and work hardening sessions were prescribed by her treating physician in an effort to relieve her pain and get her back to work. Petitioner argued that the Claimant went back to work at her desired job at the end of the work hardening period.

IV. ANALYSIS

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.^[6]

Simply put, the treatments at issue did not meet these goals. Physical therapy achieved nothing more than could have been achieved by a home exercise program. The FCE did not produce valid results, because it did not assure that the Claimant was giving a maximum effort on the tests. Work hardening was inappropriate because the Claimant’s pain level was too high; she already was at the light-medium level called for in her job; she made very little, if any, progress in the areas monitored; and she did not have the type of psychological barriers to returning to work that usually are treated in a work hardening setting.

V.FINDINGS OF FACT

1. ______, the Claimant, was 32 years old on the date of her work-related injury, September 20, 2001. She was employed as an inspection supervisor for________, a job that entailed a light-medium physical demand level.
2. While on duty, the Claimant was struck by a van, thrown into the air, and landed on her side. She sustained a severe left foot fracture that included a broken ankle and a severe calcaneal (heel) fracture.
3. The initial treatment, a closed reduction (cast), proved inadequate. On October 9, 2001, she had surgery consisting of an open reduction with internal fixation. Following that surgery, the Claimant had extensive physical therapy, including active and passive modalities B 24 sessions from January 10 through March 27, 2002.
4. From May 3 to June 12, 2002, the Claimant was given 15 sessions of physical therapy, including therapeutic procedure, joint mobilization, and ultrasound therapy. These sessions were not medically necessary because: (a) treatment beyond the 24 sessions referenced in Finding 3 would have been no more effective than a home exercise program; (b) at the end of the sessions, the Claimant had no significant change in her left ankle range of motion, strength, or edema; (c) she had a significantly high pain level; and (d) she still had left ankle weakness, decreased mobility, and only a slight improvement in her gait deviation.
5. A functional capacity evaluation, or FCE, was done on the Claimant on June 18, 2002. The FCE was not medically necessary because: (a) it did not achieve valid results by assuring that the Claimant was giving a maximum effort on the tasks she was given; (b) it reported that she was able to work at a light-medium level, while the test results actually proved she could work at a medium demand level; and (c) it recommended work hardening when she had already met or exceeded the demand level of her job at the time of her injury.
6. Ultimately, the Claimant had a third surgery on January 14, 2003, which included a subtalar fusion and exploration of the tarsal tunnel.
7. Between June 19 and July 25, 2002, the Claimant attended a work hardening program. It was not medically necessary for the following reasons: (a) the Claimant’s pain level was so high that it precluded her from fully participating in the program; (b) at the time she began the program, the Claimant was either capable of working at the light-medium demand level of her job or had surpassed that ability; (c) the Claimant had no psychological barriers to returning to work; and (d) the Claimant made no discernable progress during the program.

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. CodeAnn. ‘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 ‘413.031 of the Act and Tex. Gov=t Code ch. 2003.
3. As referenced in Findings 4, 5, and 7, the services were not medically necessary and did not meet the goals set out in Act ‘408.021.

ORDER

IT IS THEREFORE, ORDERED that the claim by Work Ready Rehab is DENIED.

Issued this 12^th day of December 2003.

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

APPENDIX A

THE CLAIMANT’s COURSE OF TREATMENT

DATE Injury = 9/20/01	INITIAL TREATMENT & SURGERIES	PHYSICAL THERAPY	OTHER	WORK HARDENING
9/01	Closed reduction.
10/9/01	Surgery – open reduction, internal fixation.
1/10/02 – 3/27/02		24 sessions= active/passive
4/2/02			– x-rays; – nerve injection
4/24/02			CT scan
5/3/02 – 6/12/02		15 sessions
6/18/02			FCE
6/19/02 – 7/26/02				Six weeks
9/02			Repeat electro-diagnostics
10/02		11 sessions
1/14/03	Surgery – subtalar fusion, exploration of tarsal tunnel.

1. Petitioner explained that the person in his office in charge of handling this case had left the office, and

the records were in disarray. Although Petitioner asked for a continuance of the case during the hearing, the Carrier objected, and the request was denied as untimely.↑

2. See Appendix A, which is a chart summarizing the medical care the Claimant has received.↑
3. Ex. 1 at 43.↑
4. Ex. 1 at 6.↑
5. Ex. 1 at 10.↑
6. Tex. Lab. Code Ann. ‘408.021. “Health care” includes “all reasonable and necessary medical . . . services.” Tex. Lab. Code Ann. ‘401.011(19).↑