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Title: 

453-04-3736-m5

Date: 

July 27, 2005

Type: 

Retrospective Medical Necessity

453-04-3736-m5

DECISION AND ORDER

I. DISCUSSION

In SOAH Docket No. 453-04-3736.M5, Hartford Underwriters Insurance Company (HUIC) requested a hearing following a January 30, 2004 Findings and Decision of the Texas Workers’ Compensation Commission (Commission). The Commission’s January 30, 2004 Findings and Decision (January Decision), relied upon a January 27, 2004 decision of Maximus, an Independent Review Organization (IRO), and ordered reimbursement for chiropractic services and work hardening provided by Main Rehab & Diagnostic(MR&D) to injured worker ___ (Claimant) for dates of service ranging from January 21, 2003, through March 11, 2003, exclusive of January 22, 2003, in the amount of $19,697.00 (Medical Necessity Disputed Services). The Commission also reviewed a fee dispute issue and ordered reimbursement for a February 11, 2003 work hardening session.[1]

In SOAH Docket No. 453-04-8231.M4, both MR&D and HUIC requested a hearing following a July 8, 2004 Findings and Decision of the Commission (July Decision). In its July Decision, for dates of service ranging from August 21, 2002, through January 22, 2003, the Commission denied reimbursement for all treatment services[2] with the exception of work hardening sessions on January 15, 16, 17, 20 and 22, 2003, under CPT Codes 97545-WH and 97546-WH. As HUIC had already paid one-half of the invoiced charges, $1280.00, the Commission ordered HUIC to reimburse MR&D $1280.00, plus interest, for the balance due on the work hardening services (Fee Disputed Services).[3]

At the commencement of the hearing on the merits, MR&D withdrew its request for hearing on those items in the July Decision for which the Commission denied it reimbursement. This Decision and Order will address only the treatment services for which the Commission ordered reimbursement. Therefore, the dispute in this case concerns the provision of work hardening to Claimant by MR&D from January 14, 2003, through March 11, 2003.

After considering the evidence and arguments of the parties, the Administrative Law Judge (ALJ) concludes that all of the Fee Disputed Services are reimbursable and that none of the Medical Necessity Disputed Services provided by MR&D are reimbursable.

The hearing on the merits convened on May 18, 2005, with State Office of Administrative Hearings (SOAH) ALJ Howard S. Seitzman presiding. Scott Hilliard represented MR&D and James M. Loughlin represented HUIC. Following the conclusion of the evidentiary proceeding, the parties agreed to file written closing arguments and replies. The record closed on June 22, 2005. Neither party objected to notice or jurisdiction.

Claimant suffered a work-related injury to his right shoulder on or about ___. Claimant was initially treated with prescription medication, physical therapy, and anti-inflammatory medications and subsequently prescribed additional physical therapy. Thereafter, Claimant presented himself to MR&D’s Osler Kamath, D.C., on August 6, 2002. Claimant received active and passive physical therapy through October 2002. In October 2002, James E. Laughlin, D.O., recommended surgery and Dr. Laughlin performed the surgery on November 11, 2002. Following surgery, Claimant received approximately 22 sessions of post-surgical physical therapy from Dr. Kamath in December 2002 and January 2003.

On January 9, 2003, Claimant underwent an evaluation that MR&D referred to as a Functional Capacity Evaluation (FCE). Leslie Miner, D.C., of MR&D performed the FCE and recommended a six-week work hardening program. Dr. Kamath immediately prescribed a work hardening program with Dr. Miner.

Work hardening is a highly structured, goal-oriented, individualized treatment program designed to maximize the ability of an injured worker to return to work. Work hardening addresses a psychological component as well as the biomechanical, neuromuscular, metabolic and vocational components of the injured worker. In January 2003, preauthorization for work hardening services was not required for approved facilities meeting the standards of the Commission on Accreditation of Rehabilitation Facilities (CARF).[4]MR&D is such a facility. Failure to obtain preauthorization is not an issue in this case.

HUIC contended MR&D failed to establish the baseline physical and functional performance Claimant needed to attain in order to return to his employment. HUIC also contended that MR&D failed to perform evaluations that meet the requirements of an FCE and, having failed to do so, failed to establish Claimant’s functional abilities and disabilities.

The evaluations conducted by MR&D do not satisfy the Commission’s requirements for an FCE. Those requirements are set forth at 28 TAC § 134.202(e)(4). Dr. Miner performed neither a physical nor a neurological examination of Claimant. Dr. Miner performed a series of evaluations he referred to as Whole Body Range of Motion Performance Ratings. The testing performed by Dr. Miner does not meet the Commission’s FCE requirements for range of motion testing for the Claimant’s injured shoulder. Dr. Miner also failed to perform functional ability tests that comply with the Commission’s requirements for an FCE.

Work hardening is an eight-hour per day, five-day per week program. Claimant attended his work hardening program for 39 days, approximately eight work weeks. Thus, before a worker is enrolled in such a labor intensive and financially demanding program, it is important to properly establish (1) that the worker needs and qualifies for the program; (2) the worker’s current capabilities; and (3) the capabilities or goals the worker needs to achieve through the program. During the work hardening program, it is important to insure that the worker is adequately progressing from his or her baseline toward the preset goals.

As previously noted, the examination performed by Dr. Miner was not an FCE. Further, the examination performed by Dr. Miner was not sufficient to adequately assess Claimant’s current capacity and allow for a proper determination as to whether Claimant was an appropriate candidate for work hardening. Because it is not possible to determine that Claimant was an appropriate candidate for work hardening or what his actual physical capabilities were at the inception of the work hardening program, it was not possible to establish a specific program tailored to Claimant to

allow him to achieve the preset goals necessary for a return to work.[5] Even if one overlooked all of MR&D’s other deficiencies, the daily notes prepared by MR&D during the work hardening program are rote, lack specificity and do not provide an adequate basis for determining whether the work hardening program improved Claimant.

The preponderance of the evidence demonstrated that the Medical Necessity Disputed Services provided to Claimant were neither reasonable nor medically necessary.

The issue with respect to the Fee Disputed Services is not medical necessity. HUIC did not deny MR&D reimbursement for the Fee Dispute services based upon medical necessity. The Fee Disputed Services arose from an AH denial code by HUIC, denial pending an audit or review by HUIC. As noted by the Commission and proved by the evidence in the record, the Fee Disputed Services were provided to Claimant and adequately documented. As noted by the Commission, no audit or review by HUIC was noted in the file. The preponderance of the evidence demonstrated that MR&D is entitled to reimbursement for the Fee Disputed Services.

II. FINDINGS OF FACT

  1. ___ (Claimant) suffered a work-related injury to his right shoulder on or about ___.
  2. Claimant was initially treated with prescription medication, physical therapy, and anti-inflammatory medications and subsequently prescribed physical therapy.
  3. Later, Claimant presented himself to Main Rehab & Diagnostic’s (MR&D) Osler Kamath, D.C., on August 6, 2002.
  4. Claimant received active and passive physical therapy through October 2002.
  5. In October 2002, James E. Laughlin, D.O., recommended surgery and he performed the surgery on November 11, 2002.
  6. Following surgery, Claimant received physical therapy from Dr. Kamath in December 2002 and January 2003.
  7. On January 9, 2003, Claimant underwent an evaluation that MR&D referred to as a Functional Capacity Evaluation (FCE).
  8. Leslie Miner, D.C., of MR&D performed the FCE and recommended a six-week work hardening program.
  9. Based upon Dr. Miner’s recommendation, Dr. Kamath immediately prescribed a work hardening program with Dr. Miner.
  10. Work hardening is an eight-hour per day, five-day per week program.
  11. Work hardening is a highly structured, goal-oriented, individualized treatment program designed to maximize the ability of an injured worker to return to work. Work hardening addresses a psychological component as well as the biomechanical, neuromuscular, metabolic and vocational components of the injured worker.
  12. In January 2003, MR&D did not need to obtain preauthorization for work hardening services as it was an approved facility meeting the standards of the Commission on Accreditation of Rehabilitation Facilities (CARF).
  13. MR&D failed to establish the baseline physical and functional performance Claimant needed to attain to return to his employment.
  14. MR&D failed to perform evaluations that meet the Commission’s requirements for an FCE.
  15. MR&D failed to establish Claimant’s functional abilities and disabilities.
  16. Dr. Miner performed neither a physical nor a neurological examination of Claimant.
  17. The Whole Body Range of Motion Performance Ratings Dr. Miner performed on Claimant do not meet the Commission’s FCE requirements for range of motion testing for the Claimant’s injured shoulder.
  18. Dr. Miner failed to perform functional ability tests that comply with the Commission’s requirements for an FCE.
  19. Claimant attended his work hardening program for 39 days, approximately eight work weeks.
  20. Before a worker is enrolled in a work hardening program, it is important to properly establish (1) that the worker needs and qualifies for the program; (2) the worker’s current capabilities; and (3) the capabilities or goals the worker needs to achieve through the program.
  21. During the work hardening program, it is important to insure that the worker is adequately progressing from his or her baseline toward the preset goals.
  22. The examination performed by Dr. Miner was not sufficient to adequately assess Claimant’s current capacity and allow for a proper determination as to whether Claimant was an appropriate candidate for work hardening.
  23. Because Dr. Miner failed to establish Claimant’s physical capabilities at the inception of the work hardening program, it was not possible to establish a specific program tailored to Claimant to allow him to achieve preset goals necessary for a return to work.
  24. The daily notes prepared by MR&D during the work hardening program are rote, lack specificity and do not provide an adequate basis for measuring Claimant’s progress, if any, during the work hardening program.
  25. As of the date of the hearing on the merits, the treatment dates in issue were the work hardening services provided between January 21, 2003, and March 11, 2003, exclusive of January 22, 2003, (Medical Necessity Disputed Services), and work hardening sessions on January 14,15, 16, 17, 20 and 22, 2003 (Fee Disputed Services).
  26. Hartford Underwriters Insurance Company (HUIC) denied MR&D reimbursement for the Medical Necessity Disputed Services based upon medical necessity.
  27. The Fee Disputed Services rose from an AH denial code by HUIC and are not a medical necessity dispute.
  28. HUIC paid MR&D one-half of the requested reimbursement for the Fee Disputed Services and denied payment of the balance pending an audit or review by HUIC.
  29. HUIC did not subsequently conduct an audit or review.
  30. The Fee Disputed Services were provided to Claimant by MR&D.
  31. The Texas Workers’ Compensation Commission (Commission), acting through both its Medical Review Division and through Maximus, an Independent Review Organization (IRO), found that both the Medical Necessity and the Fee Disputed Services provided by MR&D were documented and medically necessary for the treatment of Claimant.
  32. In SOAH Docket No. 453-04-3736.M5, Hartford Underwriters Insurance Company (HUIC) timely requested a hearing following a January 30, 2004 Findings and Decision of the Commission (January Decision). In SOAH Docket No. 453-04-8231.M4, both MR&D and HUIC timely requested a hearing following a July 8, 2004 Findings and Decision of the Commission (July Decision).
  33. At the hearing on the merits, MR&D withdrew its request for hearing of the July Decision.
  34. The Commission issued a notice of hearing on March 22, 2004, in SOAH Docket No. 453-04-3736.M5.
  35. The Commission issued a notice of hearing on August 11, 2004, in SOAH Docket No. 453-04-8231.M4.
  36. The dockets were joined for hearing and decision.
  37. The hearing convened on May 18, 2005, with SOAH Administrative Law Judge Howard S. Seitzman presiding. James M. Loughlin represented HUIC and Scott Hilliard represented MR&D. The record closed on June 22, 2005, following the filing of closing arguments and briefs.

III. CONCLUSIONS OF LAW

  1. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to the Texas Workers’ Compensation Act, specifically Tex. Labor Code Ann. §413.031(k), and Tex. Gov’t Code Ann. ch. 2003.
  2. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001 and 28 Tex. Admin. Code ch. 148.
  3. The parties’ requests for a hearing were timely made pursuant to 28 Tex. Admin. Code § 148.3.
  4. Adequate and timely notice of the hearing was provided according to Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
  5. The party requesting the contested case hearing has the burden of proof. 28 Tex. Admin. Code §§ 148.21(h) and 133.308(w).
  6. The evaluations conducted by MR&D do not satisfy the Commission’s requirements for an FCE as set forth at 28 Tex. Admin. Code § 134.202(e)(4).
  7. The preponderance of the evidence demonstrated that the Medical Necessity Disputed Services provided to Claimant were neither reasonable nor medically necessary.
  8. The preponderance of the evidence demonstrated that the Fee Disputed Services provided to Claimant were provided and properly documented.

ORDER

THEREFORE IT IS ORDERED that Main Rehab & Diagnostic is not entitled to reimbursement from Hartford Underwriters Insurance Company for work hardening services associated with the Medical Necessity Disputed Services provided to injured worker ___. from January 21, 2003, through March 11, 2003, exclusive of January 22, 2003. IT IS FURTHER ORDERED that Hartford Underwriters Insurance Company reimburse, including any applicable interest, Main Rehab & Diagnostic for work hardening services associated with the Fee Disputed Services provided to injured worker ___ from January 14, 2003, through January 20, 2003, and for January 22, 2003.

Signed July 27, 2005.

HOWARD S. SEITZMAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. 1 CPT Code 97545-WH in the amount of $0 and CPT Code 97546-WH in the amount of $307.20.↑
  2. 2 The Commission denied reimbursement for approximately $5192.00 in services.↑
  3. 3 Although the parties indicated that January 14, 2003, the initial day of work hardening, was in dispute, the July Decision reflects January 15, 2003, as the first disputed day of work hardening. This Decision and Order assumes the parties are correct and that January 14, 2003, is a date of service included under the Fee Disputed Services.↑
  4. 4 134 Tex. Admin. Code (TAC) §600(h)(9).↑
  5. 5 Because an FCE was not administered at or near the end of the work hardening program, Claimant’s progress, if any, cannot be reasonably determined by comparing the FCEs.↑