DECISION AND ORDER

Medway Health Centers (Medway) requested a hearing to contest a decision by an Independent Review Organization (IRO) that denied reimbursement for seven days of work-hardening services provided by Medway to a workers’ compensation claimant (Claimant) between April 30 and May 21, 2002. Medway contends the services were medically reasonable and necessary while American Home Assurance Company (Carrier) argues that they were not. This Decision and Order finds that the work-hardening services were not medically reasonable and necessary and that Medway is not entitled to reimbursement for those services.^[1]

I. PROCEDURAL HISTORY

There were no contested issues of jurisdiction, notice, or venue. Those issues are addressed in the Findings of Fact and Conclusions of Law without further discussion here.Administrative Law Judge (ALJ) Thomas H. Walston convened a hearing in this case on October 11, 2004, at the State Office of Administrative Hearings in Austin, Texas. Attorney William Maxwell appeared on behalf of Medway, and attorney John Fundis appeared on behalf of Carrier. The hearing concluded and the record closed the same day.

II. DISCUSSION

A. Medical Records

The parties offered into evidence various medical records concerning Claimant. The relevant records show that Claimant is currently a 50-year-old female who developed bilateral carpal tunnel syndrome due to repetitive typing movements while working as a reservation agent for American Airlines. For workers’ compensation purposes, Claimant’s date of injury is___.

Claimant underwent a left carpal tunnel release and anterior transposition of the left ulnar nerve at the elbow on June 21, 2001, and she underwent the same surgery on her right side on December 11, 2001. Dr. Scott Ellis performed the surgeries, while Claimant’s primary treating physician, Dr. Louis Zegarelli, provided her post-surgical care. Dr. Zegarelli started Claimant on physical therapy on January 28, 2002, after allowing the surgical incision to heal. The therapy continued through March 29, 2002, and included hot/cold packs, electric stimulation, ultrasound, myofascial release, and other items. However, Claimant continued to report some discomfort in both arms, with the most prominent discomfort in the left elbow area. On April 10, 2002, Claimant continued to show improvement, although she complained of some ongoing pain with activity, primarily in her right elbow. She also continued to have bilateral grip strength deficits and some stiffness. Because of the continued complaints of pain, Dr. Zegarelli prescribed a work hardening program.

Claimant underwent an initial Functional Capacity Evaluation (FCE) on April 23, 2002. The FCE noted that the Physical Demand Level (PDL) for Claimant’s job was sedentary and Claimant met the higher light-medium work level, as measured by her lifting ability. However, Claimant reported significant pain, and she had reduced grip strength and some reduced ranges of motion in her wrists. The report also noted that Claimant had reduced endurance and required frequent breaks while keyboarding. Claimant also completed a checklist on a Stress and Lifestyle Survey. She checked off problems typical of an injured worker, such as worrying about finances and problems sleeping. Claimant reported a medium stress level prior to her injury but only a mild stress level at the time of the survey. Claimant also rated her overall status at 90 on the day of the survey and for that week. That rating indicated good functioning in all areas with only everyday problems.

Medway provided six weeks of work hardening services to Claimant between April 29 and June 11, 2002. However, only the services between April 30 and May 21, 2002, are at issue in this case. Medway was not required to obtain preauthorization for work hardening because it is CARF certified. The services generally lasted eight hours per day, five days per week, and they included wrist exercises, work simulation, strength training (hamstring, abdominals, legs, back, hips, etc.), cardiovascular (stationary bike and treadmill), aquatics, aerobics, pelvic stabilization, group psychological counseling/stress management, nutrition education, and other items.

Claimant had two final FCEs on May 28 and June 11, 2002. Those FCEs indicated that Claimant remained within the light-medium PDL and she reported mild to moderate discomfort. However, Claimant did show improvement in her wrist range of motion, grip strength, and endurance. Medway then discharged Claimant from the work hardening program, stating that she appeared capable of performing at a sedentary level and returning to her prior job.

On June 11 and September 11, 2002, Dr. Dorothy Ann Leong performed a review of Claimant’s medical records on behalf of Carrier. In her June 11 report, Dr. Leong stated that the records did not support the need for work hardening. She also stated that the work hardening program provided to Claimant was not highly structured or goal oriented because it included such things as aerobic and nutrition classes that were unrelated to Claimant’s injury. For her September 11 report, Dr. Leong reviewed additional records such as the final FCEs. In Dr. Leong’s opinion, the FCEs showed that work hardening was not necessary because Claimant began and remained at a light to medium PDL while her job only required a lesser sedentary PDL.

Carrier denied payment for the work hardening services and Medway appealed to the Texas Workers’ Compensation Commission (TWCC) Medical Review division (MRD), which referred the matter to an IRO. On June 19, 2003, the IRO reviewer agreed with Carrier and found that the work hardening services provided by Medway were not medically reasonable and necessary. The IRO reviewer’s rationale was that work hardening includes a mental health requirement that requires an evaluation by a qualified mental health provider before entering the program. However, no such evaluation was performed on Claimant to determine whether she had any sort of mental or depressive state. Therefore, the IRO reviewer concluded that a multi-disciplinary work hardening program was not medically reasonable and necessary for Claimant

Medway timely requested a contested case hearing before the State Office of Administrative Hearings (SOAH).

B. Testimony

At hearing, Medway called Ms. Gretchen L. Jones as a witness. Carrier did not call a witness, but instead relied on its cross examination of Ms. Jones and the medical records offered into evidence.

Ms. Gretchen L. Jones: Ms. Jones is a certified Occupational Therapist. She received a Bachelor of Health Science degree in Occupational Therapy from the University of Missouri in 1991. Since 1993 she has worked for Medway, which is a CARF accredited facility. Ms. Jones explained that work hardening is a multidisciplinary program that can include an occupational therapist, physical therapist, psychologist, rehabilitation counselor, and a medical director (physician).

Ms. Jones testified that at the time of the initial FCE on April 23, 2002, Claimant had decreased grip strength and endurance for keyboarding, handling, and fingering tasks. Ms. Jones acknowledged that the FCE showed Claimant at a light PDL while her job required only a sedentary PDL. But Ms. Jones stated that Claimant’s job did not require lifting and this PDL rating was not particularly relevant to Claimant’s needs. Instead, she stated, Claimant’s grip strength, elbow range of motion, and endurance were the limiting factors to be addressed by the work hardening program. In particular, Ms. Jones pointed out that Claimant could not keyboard for even one hour without frequent breaks and that she could not work at her duties for eight hours per day. She also stated that the discharge report shows that Claimant improved her hand strength and reduced her discomfort as a result of the work hardening program.

Ms. Jones testified that Medway provided a multi-disciplinary treatment program that included a physical therapist, hand therapist, occupational therapist, psychologist, vocational counselor, and medical director. The team met weekly to discuss this case and plan treatment for the upcoming week. Ms. Jones disagreed with Carrier’s medical reviewer who stated that the program was not highly structured. She stated that the program was highly structured and referred to the documentation of the program that showed each day’s activities, including keyboarding that was

directly related to Claimant’s job. Further, Ms. Smith stated that the arm bicycle, aerobics, and aquatics were important to work Claimant’s arms and build endurance for the upper body. Other exercises involved repetitive handling activities and strength training. Also, Ms. Smith explained that the psychological / stress management classes were six group sessions over a six-week period that dealt with a variety of topics such as stress, relaxation, sleep, pain, etc.

Ms. Jones also referred to a letter received from a TWCC Information Specialist at the Texas Workers’ Compensation Commission, dated February 11, 2002, which states that mental health services are not required in a work hardening program so long as the program is interdisciplinary in other respects. She cited this letter to refute the IRO’s criticism of a lack of a mental health examination. In Ms. Smith’s view, whether mental health services are necessary depends on the facts of each case.

Finally, Ms. Jones emphasized that Claimant’s treating doctor, Dr. Zegarelli, prescribed the work hardening program. She also stated that a Medway employee went to Claimant’s work site to evaluate the working conditions and to design a work hardening program specifically to meet Claimant’s needs. And in her opinion, the work hardening program helped Claimant return to work.

On cross examination, Ms. Jones acknowledged that she is not a medical doctor and that the records in evidence contain no notes or records from Dr. Polatin, the Medway medical director assigned to Claimant’s treatment program. She stated that Dr. Polatin generally met with the team each week to review the program, but she could not say if Dr. Polatin ever met with Claimant. Likewise, there are no notes or records signed by Ms. Jones concerning Claimant, although she testified that she visited the facility once or twice per week to meet with the team. Mr. Ken Wise, a psychologist, met in group sessions with patients, but he also did not prepare any office notes dealing specifically with Claimant. Ms. Susan Drew, a certified fitness trainer, and Ms. Monica Paredez, a rehabilitation technician, supervised patients on a daily basis, but neither is a licensed physical therapist. Also, Ms. Jones conceded that it is not possible to determine from the records which Medway employee supervised Claimant for the various exercises and activities she performed.

Ms. Jones also agreed that Claimant was rated at a light-medium PDL both before and after the work hardening program, but she contended that Claimant made progress in other areas such as range of motion, endurance, and discomfort levels. However, she acknowledged that the space for rating discomfort level was left blank on several reports.

III. ALJ’s Analysis and Decision

The ALJ finds Medway did not establish by a preponderance of the evidence that the work hardening program provided to Claimant was medically reasonable and necessary. Instead, the ALJ finds that the nature and extent of Claimant’s injury in this case did not justify a multi-disciplinary work hardening program. Prior to the work hardening program, Claimant did not have any problems other than wrist pain and stiffness and a somewhat reduced range of motion in her wrists. Yet, the work hardening program Medway provided included strength training for the hamstring, abdominals, legs, back, and hips; cardiovascular training on a treadmill; pelvic stabilization; group psychological counseling and stress management; nutrition education; and other items unrelated to the problems with Claimant’s wrists and arms. There is no evidence in the record to establish the medical necessity for these unrelated services. Although Dr. Zegarelli prescribed a work hardening program, he did so based solely on Claimant’s continued complaints of pain, and his records contain no explanation of why an eight-hour per day, five-day per week, multi-disciplinary work hardening program was medically necessary for Claimant.

Medway attacked the IRO’s rationale that a psychological evaluation was not performed on Claimant by a qualified mental health professional. It cited a letter from a TWCC Information Specialist, which states that a work hardening program need not include a mental health component, depending on the particular needs of each Claimant. However, Medway’s argument misses the point because Medway did provide group psychological counseling to Claimant. The issue in this case is not whether a work hardening program must include a mental health component, but whether the psychological services that Medway provided to Claimant were medically reasonable and necessary. And the ALJ finds that they were not. The IRO reviewer correctly noted that no psychological evaluation was performed on Claimant by a mental health professional to determine whether these services were needed. Medway does refer to a psychological profile completed by Claimant. But even that profile indicated that Claimant was only feeling mild stress. Indeed, on a scale to rate how

well a patient was functioning, ranging from 10 to 90 (with 10 the worst and 90 the best), Claimant rated her status for the day and the week of the survey at 90, which indicated good functioning in all areas with only everyday problems. That response indicated that Claimant did not need psychological counseling, but Medway provided it anyway.

In short, Claimant’s complaints of pain and her limited answers on the psychological profile questionnaire, without more, did not establish the necessity for a multi-disciplinary work hardening program. Therefore, the ALJ finds that the work hardening program provided by Medway to Claimant was not medically reasonable or necessary because Claimant did not have any physical or psychological problems that warranted such a multi-disciplinary program. The ALJ denies reimbursement for the work hardening services provided by Medway to Claimant

IV. FINDINGS OF FACT

1. On___, Claimant sustained a compensable injury during the course and scope of her employment with___. Claimant’s compensable injury involved bilateral carpal tunnel syndrome.
2. American Home Assurance Company (Carrier) was the workers’ compensation insurance carrier for Claimant’s employer at the time of Claimant’s compensable injury.
3. At the time of her injury, Claimant worked as a reservation agent, which has a sedentary Physical Demand Level (PDL).
4. Dr. Louis Zegarelli was Claimant’s treating doctor.
5. Dr. Zegarelli referred Claimant to Dr. Scott Ellis, who performed surgery on Claimant on June 21, 2001, for a left carpal tunnel release and anterior transposition of the left ulnar nerve at the elbow. Dr. Ellis performed the same surgery on Claimant on the right side on December 11, 2001.
6. Dr. Zegarelli provided post surgical care to Claimant. Claimant continued to show some limited range of motion in her wrists and ongoing pain with activity, so on April 10, 2002, Dr. Zegarelli prescribed work hardening for Claimant.
7. On April 23, 2002, Medway Health Centers (Medway) performed a functional capacity evaluation (FCE) on Claimant The FCE indicated that Claimant functioned at a light-medium PDL while her reservation agent position required only a lesser sedentary PDL. However, the FCE also indicated that Claimant had pain, reduced grip strength, and somewhat reduced range of motion in her wrists.
8. As part of the FCE, Claimant completed a checklist on a Stress and Lifestyle Survey. Claimant checked off problems typical of an injured worker, such as worrying about finances and problems sleeping. She listed his stress level prior to his injury at medium, but at the time he completed the survey she listed her stress level at mild. Claimant rated her status on the day and for the week of the survey at the maximum score of 90, which indicated good functioning in all areas with only everyday problems.
9. Between April 30 and May 21, 2002, Medway provided work hardening services to Claimant The program included strength training for the hamstring, abdominals, legs, back, and hips; cardiovascular training on a treadmill; pelvic stabilization; group psychological counseling and stress management; nutrition education; in addition to exercises and work simulation for her wrists and arms.
10. Carrier denied payment the work hardening services provided by Medway to Claimant on April 30, May 1, 2, 6, 15, 16, and 21, 2002, based only on lack of medical reasonableness and necessity.
11. Carrier denied payment the work hardening services provided by Medway to Claimant on other dates during the period in question based on other reasons in addition to lack of medical reasonableness and necessity. At hearing, Medway waived its claim for reimbursement for these work hardening services that were denied for other reasons in addition to medical reasonableness and necessity.
12. Medway appealed Carrier’s denial of payment.
13. On June 19, 2003, Independent Review Incorporated, an Independent Review Organization (IRO), denied Medway’s appeal and found the work hardening services were not medically reasonable and necessary.
14. The Medical Review Division (MRD) of the Texas Workers Compensation Commission (TWCC) reviewed the services described in Finding of Fact No. 11 and denied reimbursement for those services on January 9, 2004, based on lack of submission of appropriate documentation to MRD.
15. Medway timely filed a request for a hearing before the State Office of Administrative Hearings.
16. The nature and extent of Claimant’s compensable injury did not justify a multi-disciplinary work hardening program.
17. The work hardening services provided by Medway to Claimant were not medically reasonable and necessary.
18. A hearing was conducted in this case on October 11, 2004, and the record closed the same day.
19. Carrier and Medway attended and participated in the hearing.
20. All parties received not less than 10 days notice of the time, place, and nature of the hearing; the legal authority and justification under which the hearing would be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
21. All parties were allowed to respond and present evidence and argument on each issue involved in the case.

V. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issues presented pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code §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 §§402.073(b) and 413.031(d) and Tex. Gov’t Code, Ch. 2003.
3. Medway Health Centers timely requested a hearing pursuant to 28 Tex. Admin. Code §§102.3, 102.5(h), 102.7 and 148.3.
4. The parties received adequate and timely notice of the hearing pursuant to Tex. Gov’t Code §2001.051.
5. Medway had the burden of proof in this matter to establish its claim by a preponderance of the evidence. 28 Tex. Admin. Code §148.21(h) and (i).
6. Carrier is not required to reimburse Medway for the work hardening services provided to Claimant.

ORDER

THEREFORE, IT IS ORDERED that Petitioner Medway Health Centers shall have and recover nothing from Respondent American Home Assurance Company for the work hardening services made the basis of this contested case hearing.

Signed November 1, 2004.

THOMAS H. WALSTON
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The dates for these work hardening sessions are April 30, May 1, 2, 6, 15, 16, and 21, 2002. The Texas Workers= Compensation’s Medical Review Division also upheld Carrier’s denial of reimbursement for work hardening services on other dates during this period for reasons other than medical necessity. However, Medway waived its claim for those services at the hearing of this case, so those denials of reimbursement are not discussed in this Decision and Order.↑