DECISION AND ORDER

This case is a dispute over whether North American Specialty Insurance Company (Carrier) should reimburse Medway Rehabilitation (Provider) $7,168 for work hardening services provided to Claimant from December 20, 2002, through January 30, 2003, and $400 for functional capacity evaluations (FCEs) performed on January 20, 2003, and February 3, 2003. The medical necessity of the disputed services is the only issue to be resolved. The Administrative Law Judge (ALJ) concludes Carrier failed to meet its burden of proving the work hardening services and FCEs were not medically necessary. Therefore, reimbursement of $7,568 is ordered.

I. FINDINGS OF FACT

1. On ___Claimant suffered a compensable work-related injury to his back while lifting computer equipment.
2. Claimant’s employer carries workers’ compensation insurance through North American Specialty Insurance Company (Carrier).
3. Claimant’s compensable injury was diagnosed as a sprain to the thoracic spine.
4. A sprain generally will heal itself, often without outside intervention, within six to eight weeks.
5. If Claimant’s sprain had been typical, he would have recovered and been back to work on full duty with a home exercise program and over-the-counter medications by May 26, 2002.
6. Claimant’s recovery was not typical; by August 28, 2002, he had not reached maximum medical improvement (MMI).
7. As of September 11, 2002, Claimant had made minimal progress with treatment.
8. An FCE performed on September 26, 2002, by Medway Rehabilitation, Inc. (Provider) indicated Claimant was capable of meeting light physical demand levels, but not the medium-to-heavy physical demand levels his job required.
9. Claimant wanted to return to work, but his employer was not willing to have him return to work on light duty.
10. On or about November 26, 2002, Claimant’s treating doctor, John Ferrell, M.D., referred him to Provider for an FCE and six weeks of work hardening to restore Claimant to his pre-injury physical demand level so that he could return to work.
11. Claimant was seen for an FCE on December 12, 2002, to determine his specific abilities and limitations for goal setting and placement into a multi-disciplinary work hardening program, including psychological and vocational group counseling. The FCE indicated:
    1. Claimant had decreased strength and endurance to perform his work requirements.
    2. A home exercise program would not have prepared Claimant for return to employment due to significant physical limitations, and psychological and vocational needs.
    3. Claimant suffered moderate stress related to his injury, with stress symptoms including problems sleeping, fatigue, low energy, worrying, loss of appetite, and muscle tension and spasms.
    4. Claimant’s strength and position activity tolerance did not meet his medium-to-heavy physical demand level pre-injury job requirements of lifting 75 pounds to bench and shelf heights, and frequent handling and fingering activities. He was able to lift 50 pounds from the floor to bench height with moderate discomfort. Fingering activities were also below competitive ratings, and sitting and reaching activities increased his pain level.
    5. Claimant’s pain level was moderate in the thoracic area, at level 5 on a scale of 1 to 10, with 10 being extreme; pain increased to level 6 out of 10 in the left wrist, right shoulder and back.
12. A patient is appropriate for psychological intervention such as that offered in a work hardening program when there is pain extending beyond the primary intervention phase (0-3 months) with continued significant impairment in daily functioning and failure to return to work and/or progress adequately in health care treatments.
13. Following the December 12, 2002 FCE, the evaluator recommended Claimant for work hardening because Claimant did not meet strength or positional tolerances for his pre-injury job, and he could benefit from education in anatomy and prevention of strain to the back, abdominal strengthening to support the trunk, exercise in water to decrease pressure to the back, and facilitated mobility and endurance.
14. Claimant participated in a work hardening program under Provider’s direction from December 20, 2002, through January 30, 2003.
15. Provider furnished Claimant with a highly structured, goal-oriented, individualized treatment program designed to maximize Claimant’s ability to return to work.
16. Claimant was likely to benefit from the program; his medical, psychological and other conditions did not prohibit participation in the program; and he was capable of attaining specific employment upon completion of the program.
17. The main job-related goals of Claimant’s work hardening program were to increase the amount of weight he could lift from the floor to the bench and shelf levels, and the amount he could carry for 10 feet, to 75 pounds; to increase his strength by 5 percent; to prepare him to sit/forward reach/use the computer for 60 minutes; to bend/stoop/squat/kneel for 15 minutes; and to perform dynamic standing/walking for 20 minutes without breaks, and 60 minutes with breaks.
18. Claimant’s work hardening activities were overseen by Louise A. Fell, occupational therapist.
19. Claimant’s daily treatment and response to that treatment were documented.
20. Claimant participated in the work hardening program at least four hours per day.
21. Work hardening facilitated the following improvements in Claimant’s condition, which are individualized to his deficits and job simulation requirements:
22. Blood pressure, possibly related to stress, returned from 148/98 to 125/73, within the normal range.
23. Grip strength increased on the right from 76 pounds to 103 pounds, and on the left from 65 pounds to 94 pounds. The norm is between 73 pounds and 157 pounds.
24. Lifting to bench height increased from 50 pounds to 65 pounds; to shelf height from 25 pounds to 40 pounds; and carrying increased from 50 pounds to 75 pounds.
25. Keyboarding MTM^[1] improved from 60 percent to 74.8 percent. Work simulation tolerance increased from 10-minute to 60-minute intervals.
26. Handling/reaching MTM increased from 83 percent to 90 percent. Work simulation tolerance increased from 10-minute to 80-minute intervals.
27. Pain level decreased from level 5 out of 10 (moderate) to between levels 2 and 4 out of 10 (minimal to moderate) by the end of the program.
28. Claimant progressed in functional strength, tolerance for sustained activity and cardiovascular endurance, although he continued to need improvement in his pain management ability. By the end of the program Claimant had full-time work abilities and tolerances without restrictions that could be applied in gainful employment.
29. On January 20, 2003, after four of the six weeks of work hardening, an FCE re-evaluating Claimant was performed and indicated the following:
    1. Claimant had improved from light-to-medium to medium physical activity level. He tolerated lifting 60 pounds to bench height, 30 pounds to shelf height, and carried 60 pounds, up from the December 2002 FCE results of lifting 50 pounds to bench height and 25 pounds to shelf height, and carrying 50 pounds.
    2. Under activity tolerance, Claimant’s keyboarding MTM improved from 60 percent to 69.3 percent, and handling/reaching tolerance improved from 83 percent to 95.7 percent over the December 2002 FCE.
    3. Discomfort was minimal (level 3 on a scale of 1 to10), as compared to being at level 5 out of 10 on the December 2002 FCE.
    4. Claimant’s grip had improved from 75 pounds to 84.3 pounds in his right hand, and from 65 pounds to 85 pounds in his left hand.
    5. All weekly short-term goals had been met, and Claimant was making good progress toward his long-term goals.
30. The February 3, 2003 FCE, conducted four days after the work hardening program ended, indicated the following:
    1. Claimant improved from light-to-medium to medium-to-heavy level functional capacity. (His job requires medium-to-heavy level.) He tolerated lifting 65 pounds to bench height, 40 pounds to shelf height, and carrying 75 pounds.
    2. Keyboarding MTM improved from 60 percent to 74.8 percent and handling/reaching tolerance improved from 83 percent to 90 percent.
    3. He reached the medium-to-heavy level of endurance.
    4. His discomfort was minimal, at level 3 out of 10.
    5. His right grip had improved during work hardening from 76 pounds to 103 pounds, and his left grip had improved from 65 pounds to 94 pounds.
31. Claimant reached MMI as of February 27, 2003, with a whole person impairment rating of 5 percent in regards to the thoracic spine, due to para-vertebral muscle spasms throughout his treatment course and continuing chronic myofascial pain.
32. Provider billed Carrier $7,168 for the work hardening program and $200 apiece for the FCEs performed on January 20, 2003, and February 3, 2003.
33. Carrier denied reimbursement to Provider for the work hardening program and FCEs on the basis that they were not medically necessary.
34. On August 7, 2003, Provider filed a Request for Medical Dispute Resolution with the Texas Workers’ Compensation Commission (the Commission).
35. On October 27, 2003, the Commission’s Medical Review Division (MRD) granted Provider’s request for reimbursement after reviewing an October 20, 2003 Independent Review Organization decision finding the work hardening was medically necessary.
36. On November 3, 2003, Carrier filed a timely request for a hearing before the State Office of Administrative Hearings (SOAH).
37. Notice of the hearing was sent to the parties on December 1, 2003.
38. The notice 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 short, plain statement of the matters asserted.
39. The hearing convened before ALJ Sharon Cloninger on January 8, 2004.Provider was represented by H. Douglas Pruett, attorney.^[2]Carrier was represented by Karen Booher, attorney, who appeared via telephone. The hearing adjourned and the record closed that same day.

II. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (the Commission) has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. ch. 401 et seq.
2. The State Office of Administrative Hearings has jurisdiction over 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. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. § 2001.052.
4. Carrier, as the petitioner, has the burden of proof in this matter, pursuant to 28 Tex. Admin. Code (TAC) §148.21(h).
5. Carrier failed to meet its burden of proving reimbursement is not warranted.
6. Based on the above Findings of Fact and Tex. Lab. Code Ann. § 408.021(a), the work hardening program was medically necessary to promote Claimant’s recovery and enhance his ability to return to or retain employment.
7. Based on the above Findings of Fact and Tex. Lab. Code Ann. § 408.021(a), the functional capacity evaluations were medically necessary to promote Claimant’s recovery and enhance his ability to return to or retain employment.
8. Based on the above Conclusions of Law, Carrier’s request that Provider not be reimbursed should be denied.

ORDER

IT IS, THEREFORE, ORDERED thatNorth American Specialty Insurance Companyis to pay $7,568to Medway Rehabilitationfor work hardening servicesprovided to Claimant from December 20, 2002, through January 30, 2003, and for FCEs provided to Claimant on January 20, 2003, and February 3, 2003.

Signed March 3, 2004.

SHARON CLONINGER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. ^1. MTM (method-time-measurement) is a time and motion method used to determine without bias what an average worker should be able to perform under normal work conditions. A competitive level is 80-to-100 percent.↑
2. ^2. After the hearing, Mr. Pruett withdrew as Provider’s counsel and William Maxwell became its attorney of record.↑