DECISION AND ORDER

Texas Mutual Insurance Company, (TMIC), petitioner, seeks an order from the State Office of Administrative Hearings (SOAH) to reverse the decision of the Medical Review Division (MRD) of the Texas Workers= Compensation Commission (TWCC) on the issue of whether there should have been preauthorized for a chronic pain management program.

Following a hearing and consideration of the evidence, the Administrative Law Judge (ALJ) finds that the evidence supports TMIC’s appeal. The ALJ finds that the medical services should not have been preauthorized.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

Jurisdiction was not disputed and is addressed in the Findings of Fact and Conclusions of Law.

On January 15, 2004, TWCC gave notice to the parties that the hearing would be convened on February 17, 2004, at 3:30 p.m. at SOAH’s offices at the William Clements Building, 300 West 15^th, Fourth Floor, Austin, Texas.

In a letter to SOAH dated February 2, 2004, Marilyn LeBourgeois, administrative manager of Health Partners Group, Inc. (Health Partners), prefiled Health Partners= documents, acknowledged

the hearing date, and requested the right to conduct the hearing by phone. The letter was received by SOAH on February 6, 2004.

In a pleading entitled Notice and Waiver and Response to Discovery, dated February 4, 2004, William Maxwell, an attorney, provided notice of Health Partners= voluntary waiver of the following rights: Ato appear in person at a hearing before SOAH, to present any additional testimony, or to cross-examine witnesses or to present any rebuttal evidence to any argument placed [sic] by TMIC.^[1] In that same pleading, Health Partners also requested that SOAH consider certain documents attached to the pleading and to render a decision in favor of Health Partners. The pleading was received by SOAH on February 5, 2004.

In a pleading entitled Expedited Motion to Compel, Continue, Abate and For Sanctions, dated and filed February 13, 2004, TMIC asked that the hearing be continued or abated to permit TMIC additional time in which to complete its discovery. TMIC alleged that Health Partners’s psychologist, Erica Burden, Ph.D., had refused to accept a subpoena for her deposition in this proceeding. The motion was neither granted nor denied because of the brief period of time remaining until the hearing.

The hearing was convened on February 17, 2004, as scheduled, by Administrative Law Judge (ALJ) Paul Keeper. Counsel for TMIC, R. Scott Placek, made an appearance, submitted documentary evidence, and presented the live testimony of two expert witnesses. No representative of Health Partners made an appearance. The record was opened and closed on February 17, 2004.

Mr. Plcek stated on the record that he had spoken with Mr. Maxwell prior to the hearing. Mr. Maxwell informed Mr. Placek that Health Partners had no intention of participating in the hearing. Additionally, Mr. Placek noted Exhibit C to his Expedited Motion. Exhibit C is a letter dated February 4, 2004, from Mr. Maxwell to Mr. Placek. In the letter, Mr. Maxwell wrote, AMy client is not submitting any further testimony or presenting any live testimony. He also wrote, AMy client has waived [its] right to appear at the SOAH hearing to offer any rebuttal testimony.

II. BACKGROUND

On March 5, 2003, the claimant, M.J., suffered a work-related injury to his knee, requiring a repair of the ruptured patellar tendon of his right knee and repair of the quadriceps expansion of the right knee joint.^[2] Following the operation, the claimant had five months of physical therapy and four weeks of a work hardening program.^[3]

On August 1, 2003, Health Partners evaluated the claimant’s condition and reported him to have no problems in the areas of grooming, hygiene, orientation, attention, memory, eye contact, responsiveness, general affect, intelligence, reasoning, problem solving, insight, coping skills, or social supports. However, according to Health Partners, the claimant also reported continuous pain since the accident and changes in his mood and outlook since the injury.^[4]

On September 5, 2003, Health Partners reported that the claimant was still experiencing anxiety about the extent of his recovery and that his behavior was pain-focused. Health Partners recommended that the claimant attend a chronic pain management program.^[5]

On September 25, 2003, the climant’s physician certified to Health Partners the medical necessity for claimant’s evaluation for a multidisciplinary pain rehabilitation program^[6]. On September 29, 2003, TMIC denied preauthorization for the program on the basis that the patient had Aabundant physicial therapy and Arecent completion of work hardening program.^[7] On October 9, 2003, TMIC issued a denial of the preauthorization following a request for reconsideration on September 29, 2004.^[8]

On December 2, 2003, n Independent Review Organization (IRO) issued an Independent Review Decision (IRD), finding that Aresponse to therapy has been less than optimum and Apain behaviors have been present. Based on these findings, the IRO recommended that the chronic pain management program be preauthorized. On December 12, 2003, TMIC filed its request for a hearing before SOAH.

III. RELEVANT LAW

Under Texas law, 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. The statute provides that the purposes of health care to be rendered to a claimant include any that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment.^[9]

The types of health care to which an employee is entitled are similarly broad, including Aall reasonable and necessary medical aid, medical examinations, medical treatments, medical diagnoses, medical evaluations, and medical services.^[10]

Although the law describes few limitations on a claimant’s entitlements to care, the law requires the referring doctor to obtain preauthorization from a carrier before the carrier may become liable for certain types of health services, including chronic pain management rehabilitation programs.^[11]

In this dispute, the fact issue is whether a chronic pain management program was medically necessary for this claimant.

IV. DISCUSSION AND ANALYSIS

The testimony of Dr. Joyner, a board certified anaesthesiologist with a subspecialty in pain management, was that chronic pain management programs are programs that deal with physical and emotional responses to pain. These programs include physical therapy, counseling, psychological help, coping mechanism training, and may include occupational therapy, vocational training, and behavioral modification. Dr. Joyner reviewed the claimant’s medical records, including those from Health Partners, and concluded that the claimant would not be an appropriate candidate for a chronic pain management program. The basis for his conclusion was the list of the claimant’s physical and emotional conditions noted by Health Partners on August 1, 2003.

Dr. Joyner testified that the first time that the claimant was reported to have demonstrated a need for a pain management program was after he had completed four weeks of a work hardening program. That seemed unusual to Dr. Joyner, and he concluded that there was no need for the pain management program.

Dr. Joyner testified that the claimant progressed quite well in the work hardening program. The nurse who worked with the claimant during that four week period did not indicate that the claimant had any psychological barriers to his improvement. The claimant’s performance on his Functional Capacity Evaluation was very good.^[12]

Dr. Joyner testified that persons with have low or diminished abilities to cope with their pain because of their psychosocial circumstances may be candidates for chronic pain management programs. In this case, Dr. Joyner noted, the claimant had none of those indicators.

Also testifying at the hearing was Nicholas Tsourmas, M.D., a board certified orthopedic surgeon, who had reviewed the medical records of the claimant as medical director for TMIC. Dr. Tsourmas testified that a chronic pain management program is medically necessary only where a person has had extreme failure of progress in physical therapy and mental reaction to illness. This claimant showed neither of these types of problems.

Dr. Tsourmas testified that the claimant had returned to work by September 24, 2003, and had showed exemplary progress. He testified that the claimant had no physical or psychological indicators reflecting the necessity for a chronic pain management program or for any form of individual treatment.

TMIC objected to the admission into evidence of the prefiled documents of Health Partners on the basis of hearsay. The objection was sustained.

The ALJ concludes that the chronic pain management program was not medically necessary and that the chronic pain management program should not have been preauthorized.

V. FINDINGS OF FACT

1. On January 15, 2004, TWCC gave notice to the parties that the hearing would be convened on February 17, 2004, at 3:30 p.m. at SOAH’s offices at the William Clements Building, 300 West 15^th, Fourth Floor, Austin, Texas.
2. In a pleading entitled Notice and Waiver and Response to Discovery, dated February 4, 2004, counsel for Health Partners Group, Inc. (Health Partners) voluntarily waived in writing the rights to appear in person at a hearing before SOAH, to present any additional testimony, or to cross-examine witnesses or to present any rebuttal evidence to any argument Aplaced [sic] by TMIC.
3. The hearing was convened on February 17, 2004, as scheduled, by Administrative Law Judge (ALJ) Paul Keeper.
4. Counsel for TMIC, R. Scott Placek, made an appearance, submitted documentary evidence, and presented the live testimony of two expert witnesses.
5. No representative of Health Partners made an appearance at the hearing.
6. The record was opened and closed on February 17, 2004.
7. On March 5, 2003, the claimant, M.J., suffered a work-related injury to his knee, requiring a repair of the ruptured patellar tendon of his right knee and repair of the quadriceps expansion of the right knee joint.
8. Following the operation, the claimant had five months of physical therapy and four weeks of a work hardening program.
9. On August 1, 2003, the claimant’s condition included no problems in the areas of grooming, hygiene, orientation, attention, memory, eye contact, responsiveness, general affect, intelligence, reasoning, problem solving, insight, coping skills, and social supports.
10. As of August 1, 2003, the claimant had continuous pain since the accident and changes in his mood and outlook since the injury.
11. On September 5, 2003, the claimant was still experiencing anxiety about the extent of his recovery and his behavior was pain-focused.
12. On September 25, 2003, the claimant’s physician certified to Health Partners the medical necessity for claimant’s evaluation for a multidisciplinary pain rehabilitation program.
13. On September 29, 2003, TMIC denied preuthorization for the program on the basis that the patient had Aabundant physicial therapy and Arecent completion of work hardening program.
14. On October 9, 2003, TMIC denied preauthorization for the claimant’s participation in the chronic pain management program following a request for reconsideration on September 29, 2004.
15. On December 2, 2003, an Independent Review Organization issued an Independent Review Decision, recommending that the chronic pain management program be preauthorized for the claimant.
16. On December 12, 2003, TMIC filed its request for a hearing before SOAH.
17. Chronic pain management programs are programs that deal with physical and emotional responses to pain.
18. These programs include physical therapy, counseling, psychological help, coping mechanism training, and may include occupational therapy, vocational training, and behavioral modification.
19. The claimant progressed quite well in the work hardening program.
20. The claimant’s performance during the work hardening program did not reflect that the claimant had any psychological barriers to his improvement.
21. The claimant’s performance on his Functional Capacity Evaluation was very good.
22. Persons with low or diminished abilities to cope with their pain because of their psychosocial circumstances may be appropriate candidates for chronic pain management programs.
23. In this case, the claimant had none of those indicators.
24. A chronic pain management program is medically necessary where a person has had failure of progress in physical therapy and mental reaction to illness.
25. This claimant showed neither of these types of problems.
26. The claimant had returned to work by September 24, 2003, and had showed exemplary progress.
27. The claimant had no physical or psychological indicators reflecting the necessity for a chronic pain management program or for any form of individual treatment.
28. Based on these criteria and the claimant’s condition, the claimant was not an appropriate candidate for a chronic pain management program.

VI. CONCLUSIONS OF LAW

1. TWCC has jurisdiction over this matter. Tex. Labor Code ch. 413.031.
2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order. Tex. Lab. Code ‘ 413.031; Tex. Gov=t Code ch. 2003.
3. TWCC provided adequate and timely notice of the hearing to the parties on January 15, 2004, that the hearing would be convened on February 17, 2004, at 3:30 p.m. at the offices of SOAH at 300 West 15^th Street, Fourth Floor, Austin, Texas, in accordance with the Administrative Procedure Act. Tex. Gov=t Code ‘ 2001.052.
4. TMIC has the burden of proof in this matter. 28 TAC ‘148.21(h).
5. Under Texas law, 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. Tex. Labor Code’408.021(a).
6. Under Texas law, health care to be rendered to a claimant with a compensable injury includes any that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. Tex. Labor Code’ 408.021(a).
7. The types of health care to which an employee is entitled are similarly broad, including Aall reasonable and necessary medical aid, medical examinations, medical treatments, medical diagnoses, medical evaluations, and medical services.Tex. Labor Code’401.011(19).
8. Although the law describes few limitations on a claimant’s entitlements to care, the law requires the referring doctor to obtain preauthorization from a carrier before the carrier may become liable for certain types of health services, including chronic pain management rehabilitation programs. 28 TAC ‘ 134.600(e).
9. In the facts described in this case, the referring doctor complied with the provisions of 28 TAC ‘ 134.600(e) and obtained preauthorization for the chronic pain management rehabilitation program.
10. In this dispute, the fact issue is whether the claimant’s medical condition was such that a chronic pain management program was medically necessary.
11. The chronic pain management program was not medically necessary, and the chronic pain management program should not have been preauthorized.
12. Health Partners knowingly and voluntarily waived its right to appear at the hearing, to present live testimony, to cross-examine witnesses, and to offer rebuttal testimony.
13. In the absence of presenting a witness or counsel at the hearing, Health Partners could not provide the necessary evidentiary predicate for an offer of documentary evidence, and TMIC objected to the prefiled submission as hearsay.
14. TMIC’s objection of Health Partners= prefiled evidence as hearsay was sustained.
15. No legal basis exists in the administrative record for an order that TMIC should preauthorize the claimant for a chronic pain management program.

ORDER

IT IS, THEREFORE, ORDERED that TMIC is not required to cover the costs of a chronic pain management program for the claimant.

Signed February 26, 2004.

PAUL D. KEEPER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Respondent’s Notice and Waiver and Response to Discovery at unpaginated 3.↑
2. Petitioner’s Exhibit 1.↑
3. Testimony of Robert W. Joyner, M.D.↑
4. Petitioner’s Exhibit 6.↑
5. Petitioner’s Exhibit 11.↑
6. Petitioner’s Exhibit 16.↑
7. Petitioner’s Exhibit 18.↑
8. Petitioner’s Exhibit 20.↑
9. Tex. Labor Code ‘ 408.021.↑
10. Tex. Labor Code ‘ 401.11(19).↑
11. 28 TAC ‘ 134.600(h)(10)(B).↑
12. Petitioner’s Exhibit 12.↑