DECISION AND ORDER

The Insurance Company of the State of Pennsylvania (Carrier), requested a hearing to contest a decision by an Independent Review Organization (IRO) that granted reimbursement to Buena Vista Workskills for eight weeks of work-hardening services provided to Claimant ____between October 3 and December 2, 2002. Carrier contends the services were not medically reasonable or necessary. Buena Vista Workskills (Buena Vista) argues that the services were reasonable and necessary. This Decision and Order finds that the disputed work-hardening services were not medically reasonable and necessary for ____

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 July 29, 2004, at the State Office of Administrative Hearings in Austin, Texas. Attorney Steven Tipton appeared on behalf of Carrier, and attorney Kevin Miller appeared on behalf of Buena Visa. The record closed the same day.

II. Discussion

A. Background Information

____suffered a compensable injury to his left foot on ____, when his foot slipped into a hole on an oil rig and sustained a crush injury with a pipe. He was taken to a hospital in Palestine, Texas, for surgery, during which his left great toe was amputated and his second toe was sutured. On October 3, 2002, Buena Vista performed a Functional Capacity Evaluation (FCE) on ____ The FCE showed that ____could work at a light-medium physical demand level (PDL) above the waist and a medium-heavy PDL below the waist. His occupation of oilfield floor hand required a heavy PDL. Therefore, Buena Vista placed ____in a work hardening program. After completing the program, ____underwent a final FCE on December 2, 2002. That FCE showed that ____qualified for a very heavy PDL. At some point after the work hardening program (the dates are not in the record), ____also participated in a chronic pain management program at Buena Vista.^[1] On February 11, 2003, a Dr. Gross performed a designated-doctor examination on ____ He found that ____reached Maximum Medical Improvement (MMI) on that date and assessed an 8% whole person impairment.

Carrier denied payment for the work hardening services provided to ____by Buena Vista based on lack of medical necessity. Buena Vista appealed the decision to the Texas Workers= Compensation Commission (TWCC) Medical Review Division (MRD), which referred the matter to the Ziroc IRO. On September 10, 2003, Ziroc reversed the Carrier’s decision and found the work hardening services were medically necessary. The evaluator at Ziroc noted that the services were provided before Dr. Gross found ____reached MMI and that the work hardening services improved ____’s PDL from medium heavy to very heavy. The evaluator also believed that any physical, functional, or behavioral deficits that might interfere with ____returning to work were adequately identified before the work hardening program began, even if ____did not have a targeted job or job plan for return to work.

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

B. Parties= Evidence and Arguments

At hearing, both parties elected not to offer any documents or medical records into evidence, except for the initial and final FCEs and the IRO decision. Carrier called Casey Cochran, M.D., to testify and Buena Vista called Mr. Philip Bohart, a Vocational Rehabilitation Counselor. Their testimony is summarized below.

Dr. Casey Cochran: Dr. Cochran testified for Carrier. He is a physician in private practice in Austin, Texas, who is board certified in Occupational, Disability, and Family Medicine. He also works as a consultant with the Texas Workers= Compensation Commission and the Texas State Board of Medical Examiners. Dr. Cochran reviewed ____’s medical records to prepare for his testimony, but he did not exam or treat ____ In his opinion, a work hardening program was not medically reasonable or necessary for ____

Dr. Cochran testified that a work hardening program is normally provided once a patient reaches MMI in order to prepare the patient for return to work after a prolonged period of deconditioning. It includes an aggressive exercise program, some job-specific vocational training, and a limited amount of psychological counseling. In contrast, a chronic pain management program is primarily a behavioral and psychological counseling program. In his view, a patient with a significant psychological barrier that would preclude the patient from returning to work should not be placed in a work hardening program. Instead, such a patient should first receive individual psychological counseling or a chronic pain management program before entering a work hardening program. Dr. Cochran testified that ____’s records showed serious psychological problems that made a work hardening program inappropriate for him. These included serious depression and specific statements that he would not go back to work in the oilfield.

Dr. Cochran also testified that the work hardening program provided by Buena Vista was not appropriate because it did not provide treatment for the psychological problem detected with ____and did not provide vocational assistance for any specific job for ____ In his view, the services provided amounted to little more than a work conditioning program.

Dr. Cochran also criticized the initial FCE used by Buena Vista to justify the work hardening program. In particular, Dr. Cochran said that the FCE did not determine whether ____was giving maximum effort, such as monitoring his heart and breathing rates during the various tests. And on the few tests that showed a heart rate, the rate was quite low and did not indicate physical exertion. Dr. Cochran suggested that the lack of maximum effort might have been related to ____’s psychological problems.

Finally, Dr. Cochran stated that ____had been referred to an orthopedic surgeon concerning pins in his toes. He thought this was a contraindication for a work hardening program because, in his view, all treatment should be completed before a work hardening program is undertaken. Similarly, in September 2002, one of ____’s doctors recommended that he attend a special program for amputees, which would have been more appropriate for ____’s condition than a work hardening program.

On cross-exmination, Dr. Cochran agreed that he testifies primarily for insurance carriers and is paid for his time, and he consults with the law firm that represented Carrier in this case one or two times per month. Dr. Cochran restated his criticism of the work hardening program because ____was not an appropriate candidate due to psychological problems, and the initial FCE was invalid for failing to verify maximum effort. He also reiterated that he believed ____did not give maximum effort on those tests for which ____’s heart rate was checked. Dr. Cochran stated that ____’s target heart rate, based on his age, would be 145 beats per minute (bpm), but ____never showed a heart rate faster than 114 bpm. In fact, Dr. Cochran stated, on one test (repetitive squats) ____’s heart rate remained at 90 bpm, which is considered an Aat rest rate.

Mr. Philip Bohart: Buena Vista called Mr. Bohart as its witness. He is Buena Vista’s Director of Operations and has been involved with work hardening programs since 1998. Mr. Bohart holds a B.S. in Rehabilitation Studies and an M.S. in Rehabilitation Counseling and is a certified Vocational Rehabilitation Counselor.

Mr. Bohart disagreed with Dr. Cochran’s opinion that___’s initial FCE was invalid. In his opinion, it was a reasonably complete FCE that adequately identified___’s physical, psychological, and vocational strengths and weaknesses. The FCE showed that ____had a medium heavy PDL but needed a heavy PDL for his prior job. Mr. Bohart also noted that ____had some functional improvement in the work hardening program to a very heavy PDL, although he still had complaints of pain in his foot that needed to be addressed.

Mr. Bohart stated that ____had pain and psychological barriers to returning to work at the conclusion of the work hardening program. His psychological barrier was rated at 48, placing him in a severe category. Therefore, ____was enrolled in a chronic pain management program at Buena Vista from February 24 through April 2003, which the Carrier has paid. Mr. Bohart added that it is not unusual for a patient to enter a pain management program after work hardening. ____made some progress in that program, although he continued to make subjective complaints of pain and was somewhat self-limited in his activities.

On cross-examination, Mr. Bohart stated that he does not know if ____has ever actually returned to work. He also acknowledged that Carrier paid approximately $30,000 for the chronic pain management program. Mr. Bohart also testified that he did not know whether significant pain was a contraindication for a work hardening program, but he agreed that the records showed that ____was reporting a subjective pain level of 8 out of 10 during the program, which would be a severe level of pain. Also, Mr. Bohart stated that the work hardening program was attempting to bring ____up to the heavy PDL level required for his oilfield job, but Mr. Bohart was not aware that ____had stated that he had no intention of returning to that job.

C. ALJ’s Analysis and Decision

The ALJ finds that Carrier established by a preponderance of the evidence that the work hardening program provided to ____was not medically reasonable or necessary. Therefore, the ALJ denies reimbursement to Buena Vista. In particular, the ALJ finds that ____was not a suitable candidate for work hardening because he had psychological barriers to returning to work. Even Mr. Bohart agreed that ____had a psychological problems at the end of the program rated at 48, which is considered severe. Likewise, the initial FCE, completed before the program, stated that ____had severe psychological problems and lifestyle stressors. In addition, Buena Vista planned the program to increase ____’s PDL from medium-heavy to heavy because his prior job required a heavy PDL rating. However, before the program began, ____expressly stated that he had no intention of returning to his prior job, so it appears clear to the ALJ that the program was not designed to prepare ____for a specific job that he intended to pursue after the program.

Further, there is no evidence that the limited group counseling sessions involved in the work hardening program were specifically designed to meet ____’s psychological problems, and the severe pain reported by ____during work hardening was a contraindication for continuation of the program. It appears that the work hardening program did improve ____’s physical condition from a medium-heavy PDL to a very heavy PDL, but physical conditioning is only one discipline while work hardening is required to be a multi-disciplinary program, including individualized physical conditioning, psychological counseling, and occupational therapy.

In short, the ALJ finds that the work hardening program provided by Buena Vista to ____was not medically reasonable or necessary because ____had psychological barriers to returning to work that needed to be addressed prior to such a program, because he experienced severe pain during the program, and because the program was designed to return ____to his prior job in the oilfield, but .M. had no intention of returning to that job. Therefore, the ALJ denies reimbursement for the work hardening services provided to him by Buena Vista.

III. FINDINGS OF FACT

1. On ____, Claimant ____sustained a compensable injury during the course and scope of his employment with___. ___’s compensable injury involved a crushing injury to his left foot and the amputation of his left great toe.
2. Insurance Company of the State of Pennsylvania (Carrier) was the workers’ compensation insurance carrier for ___’s employer at the time of ___’s compensable injury.
3. At the time of his injury, ___’s occupation was a floor hand on an oilfield drilling rig.
4. On October 3, 2002, Buena Vista Workskills performed a functional capacity evaluation (FCE) on ____ The FCE reported that ____functioned at a medium-heavy physical demand level (PDL) while his prior floor hand job required a heavy PDL.
5. At the time of ____’s initial FCE, he had severe psychological stressors and limitations that made him an unsuitable candidate for a work hardening program.
6. At the time of his initial FCE, ____had stated that he had no intention of returning to work as a floor hand on an oilfield drilling rig.
7. From October 3, 2002, through December 2, 2002, Buena Vista Workskills provided a work hardening program for ____ The program was designed to return ____to a heavy PDL functional capacity in order for him to return to work as an oilfield floor hand.
8. During the course of the work hardening program, ____complained of severe pain levels that he rated as 8 on a scale of 0-10. Such severe pain is a contraindication for continuing a work hardening program.
9. The work hardening program provided to ____included only minimal psychological counseling that did not address ____’s severe psychological problems.
10. The work hardening program provided to ____by Buena Vista Workskills was not designed to meet ____’s specific needs.
11. After the work hardening program, ____did not return to work. Instead, he was placed in a chronic pain management program at Buena Vista Workskills.
12. Carrier denied payment for the work hardening services provided by Buena Vista Workskills to ____based on lack of medical reasonableness and necessity.
13. Buena Vista Workskills appealed Carrier’s denial of payment.
14. On September 10, 2003, Ziroc, an Independent Review Organization (IRO), granted Buena Vista Workskill’s appeal and found the work hardening services were medically reasonable and necessary.
15. Carrier timely filed a request for a hearing before the State Office of Administrative Hearings.
16. ____was not a suitable candidate for the work hardening services provided by Buena Vista Workskills because ____had severe psychological barriers to returning to work, he stated that he had no intention of returning to his prior employment as an oilfield floor hand, he reported severe pain during the course of the program, and there was no reasonable expectation that the work hardening services would help relieve ____’s symptoms or return him to work.
17. The work hardening services provided by Buena Vista Workskills to ____were not medically reasonable and necessary.
18. A hearing was conducted in this case on July 29, 2004, and the record closed the same day.
19. Carrier and Buena Vista Workskills attended 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.

IV. 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. Carrier 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. Carrier 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. Based on Findings of Fact Nos. 16-17, Carrier established by a preponderance of the evidence that work-hardening services provided by Buena Vista Workskills were not medically reasonable and necessary for ____
7. Based on Conclusions of Law Nos. 7, Carrier is not required to reimburse Buena Vista Workskills for work hardening services provided to ____

ORDER

THEREFORE, IT IS ORDERED that Respondent Buena Vista Workskills shall have and recover nothing from Petitioner Insurance Company of the State of Pennsylvania for the claims made the subject of this proceeding.

Signed August 6, 2004.

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

1. Carrier paid for the chronic pain management program and those expenses are not at issue in this case.↑