DECISION AND ORDER

American Home Assurance Company (Petitioner) appealed the Findings and Decision of the Texas Workers’ Compensation Commission (Commission) acting through Ziroc, an Independent Review Organization (IRO), approving the preauthorization request of Advantage Healthcare Systems (Respondent) for a chronic pain management program for J.H., Claimant.^[1] After considering the evidence and arguments of the parties, the Administrative Law Judge (ALJ) concludes that Petitioner has shown by preponderance of the evidence that chronic pain management is not medically necessary treatment for J.H.’s work-related, compensable injury. Accordingly, the ALJ finds that chronic pain management should not be preauthorized.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

There were no contested issues regarding jurisdiction or notice of the hearing. Therefore, those matters are addressed in the Findings of Fact and Conclusions of Law without further discussion here.

The hearing convened January 6, 2004, at the Hearings Facility of the State Office of

Administrative Hearings (SOAH) before SOAH ALJ Stephen J. Pacey. Petitioner was represented by Attorney Dan Kelley, and Respondent was represented by Nick Kempisty. The Commission did not appear. The record was closed on January 15, 2004, when the ALJ received requested additional information from Petitioner.

II. BACKGROUND FACTS

Claimant suffered a work-related injury on May 10, 2002. Claimant injured his back while lifting a pallet of food. Claimant complained of sudden low back pain, and Respondent evaluated Claimant and initiated physical therapy. When Claimant did not respond as anticipated, a June 2, 2002, magnetic resonance imaging (MRI) test was performed on Claimant. The MRI revealed an five millimeter herniated disk at levels L4 and L5 of Claimant’s lumbar spine and a three millimeter annular bulge at levels L3 and L4.

Claimant received three epidural steroid injections, underwent chiropractic treatment, and received other conservative care designed to alleviate the pain from his injury. Thereafter Claimant participated in 33 hours of work hardening and 33 hours of work conditioning. As of July 2003, Claimant had 127 physical therapy sessions. On August 28, 2003, Claimant was evaluated by Robert W. Wright, D.C., who determined on August 27, 2003, that Claimant was at maximum medical improvement (MMI) with a 10 per cent whole person impairment.

On July 18, 2003, and August 8, 2003, psychologists^[2] performed psychological evaluations on Claimant. Both recommended that Claimant participate in an interdisciplinary chronic pain management program (CPM). Based on these two evaluations, Respondent requested preauthorization for Claimant to enter a CPM. On August 18 and September 18, 2003, Petitioner denied the requests on the bases that Claimant suffers from symptom magnification, personality factors, and psycho-social factors influencing his subjective pain reporting. Consequently, it concluded the CPM was not medically necessary.

Respondent then requested that the Commission review and overrule Petitioner’s denial of preauthorization. The matter was referred to an IRO designated by the Commission for the review process. The IRO determined that CPM was medically necessary and should be authorized. Carrier then requested a hearing before SOAH.

II. DISCUSSION AND ANALYSIS

The issue in this case is whether chronic pain management program is medically necessary to treat Claimant’s work-related injury. This matter is governed by the Texas Workers= Compensation Act (Act) and the Commission’s rules.^[3] Section 408.021(a) of the Act governs an injured worker’s entitlement to benefits for compensable injuries under the Act, and provides that 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. Certain healthcare, however, must be preauthorized before it can be provided within the strictures of the Act, and such preauthorization will be granted if there is a prospective showing of medical necessity.^[4] Chronic pain management is one type of treatment for which preauthorization is required.^[5]

As noted, before treatment will be preauthorized, it must be shown to be medically reasonable and necessary. On this issue, Petitioner presented the testimony of Melissa Tonn, M.D. In her testimony, Dr. Tonn discussed Claimant’s detailed treatment history, pointing out that Claimant already had received significant conservative care, undergone three functional capacity evaluations, received multiple spinal injections, completed work hardening, and completed work conditioning. Dr. Tonn said that she had reviewed the documentation for Petitioner and determined that CPM was not medically necessary. According to Dr. Tonn, the October 12, 2002, report of William Blair, M.D., indicated Claimant should return to work on a limited basis in order to reduce his pain-focused disability. Dr. Blair performed an FCE and determined that it was invalid because Claimant made no honest effort to perform the exercises. Dr. Tonn noted that Claimant exhibited no physiological changes during the isometric testing. She indicated that his heartbeat should rise to approximately 135 beats-a-minute, but Claimant’s heartbeat did not increase.

Dr. Tonn pointed out that the April 30, 2003, SOAP note of Jerry Franz, M.D. indicated Claimant was at MMI. This note is consistent with the June 25, 2003, report of Neda Bahadori, D.C., who concluded that Claimant could return to work. Robert Wright, D.C., indicated in his August 28, 2003, report to the Commission that Claimant attained MMI on August 27, 2003, with a full body impairment of 10 per cent. Dr. Tonn testified that CPM treatment was not expected to provide any medical benefit to Claimant. Petitioner concluded its argument by asserting that CPM is not necessary because Claimant returned to work on a full time basis October 14, 2003.

In response, Respondent asserted that Claimant’s failure to improve in his pain levels from prior treatment is a primary reason that chronic pain management is appropriate. As its name implies, chronic pain management is for individuals who continue to suffer chronic pain even though they have received significant treatment for their injury and further surgical or medical intervention is no longer appropriate for their injury. Respondent pointed out that both psychologists, Berit Johnson^[6] and Monica Jeter-Johnson, recommended that Claimant enter a CPM program.

They indicated that because other programs had not successfully alleviated Claimant’s pain; thus he is a proper candidate for CPM.

After considering the documentary evidence and the testimony of Dr. Tonn, the ALJ concludes Petitioner has shown that CPM treatment is not medically necessary for Claimant’s work-related injury. In particular, the ALJ notes that Claimant had extensive treatment including work hardening and work conditioning. One aspect of work hardening addresses psychological and behavioral matters related to the employee’s ability to return to work, including ongoing pain issues. Claimant had 127 physical therapy sessions, 33 work hardening sessions, and 33 work conditioning sessions. Despite all of the extensive treatment and placement at MMI, Claimant continued to have subjective complaints of pain. The ALJ agrees with Petitioner’s strongest argument that CPM is not needed because Claimant is back to work.

Under the circumstances, the ALJ agrees with Dr. Tonn and concludes that personality factors such as symptom magnification and psycho-social factors are markedly influencing Claimant’s subjective pain reporting. There is also no objective medical evidence that Claimant needs CPM. Therefore, the ALJ finds that such services should not be preauthorized.

III. FINDINGS OF FACT

1. On May 10, 2002, Claimant J.H., while working at Walmart, sustained a compensable injury to his lower back when he was lifting a food pallet.
2. At the time of the Claimant’s compensable injury, American Home Assurance Company (Petitioner) was the workers= compensation insurer for Claimant’s employer.
3. Brian A. Bullitt, D.C., an employee of Advantage Healthcare systems (Respondent), evaluated Claimant and initiated physical therapy.
4. The treatment was of minimal benefit, and a June 2, 2002, MRI revealed a five millimeter herniated disk at L4 and L5 and a three millimeter annular bulge at L3 and L4.
5. Claimant received three epidural steroid injections, underwent chiropractic treatment, and received other conservative care designed to alleviate the pain from his injury.
6. Claimant participated in 33 hours of work hardening, 33 hours of work conditioning, and 127 physical therapy sessions.
7. Monica Jeter-Johnson and Berit Johnson, both psychologists, recommended that Claimant participate in an interdisciplinary chronic pain management program (CPM).
8. Robert Wright, D.C., determined that Claimant attained MMI on August 27, 2003, with a full body impairment of 10 per cent.
9. Claimant returned to work on a full time basis October 14, 2003.
10. Respondent requested preauthorization for Claimant to enter a CPM program.
11. Petitioner denied the preauthorization request, concluding that Claimant was not expected to improve with additional chronic pain management.
12. Respondent requested medical dispute resolution by the Texas Workers= Compensation Commission’s Medical Review Division (MRD), which referred the matter to an Independent Review Organization (IRO).
13. On November 3, 2003, after conducting medical dispute resolution, the IRO physician reviewer determined that chronic pain management was medically necessary and should be authorized.
14. On November 13, 2003, Petitioner requested a hearing on the IRO decision, and the case was referred to the State Office of Administrative Hearings (SOAH).
15. The hearing convened January 6, 2004, at the Hearings Facility of the State Office of Administrative Hearings (SOAH) before SOAH ALJ Stephen J. Pacey. Petitioner was represented by Attorney Dan Kelley, and Respondent was represented by Nick Kempisty. The record was closed on January, 15, 2004, when the ALJ received requested additional information from Petitioner.
16. Notice of the hearing was sent December 8, 2003, and 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.

IV. CONCLUSIONS OF LAW

1. The Texas Workers= Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code Ann. ‘ 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(d) of the Act and Tex. Gov’t Code Ann. ch. 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001.
4. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. ” 2001.051 and 2001.052.
5. Petitioner has the burden of proof in this matter. 28 Tex. Admin. Code ” 148.21(h) and 133.308(w).
6. Petitioner established, by a preponderance of the evidence, that the requested sessions of CPM are not medically necessary for the treatment of Claimant’s work-related injury.
7. Respondent’s request for preauthorization should be denied.

ORDER

IT IS, THEREFORE, ORDERED that the requested sessions of chronic pain management are not medically necessary, and preauthorization for such is denied.

Signed February 4, 2004.

STEPHEN J. PACEY
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The IRO decision was silent as to how many sessions of chronic pain management it believes should be preauthorized.↑
2. Monica Jeter-Johnson, a psychologist with Buddy Duncan and Associates, and Berit Johnson, a psychologist with Respondent’s company.↑
3. The Act is found at Tex. Lab. Code Ann. ch. 401 et seq.↑
4. Tex. Labor Code Ann. ‘ 413.014; 28 Tex. Admin. Code ‘ 134.600.↑
5. 28 Tex. Admin. Code ‘ 134.600(h)(10)(B).↑
6. It appears that Dr. Johnson is employed by Respondent. His report was written on Advantage Healthcare Systems= letterhead.↑