DECISION AND ORDER

First Rio Valley Medical, P. A., (Provider) challenges the decision by an Independent Review Organization (IRO) to deny preauthorization for ___ (Claimant) to receive forty sessions of a chronic pain management program. Travelers Indemnity Company of Connecticut (Carrier) denied the request as medically unnecessary and the IRO upheld that decision. The Administrative Law Judge (ALJ) agrees with the IRO and concludes preauthorization for a chronic pain management program should be denied.

I.JURISDICTION, NOTICE, & HEARING

ALJ Penny A. Wilkov convened a hearing in this case on December 8, 2004, at the State Office of Administrative Hearings (SOAH), William P. Clements State Office Building, 300 West 15th Street, Austin, Texas. The Provider was represented by counsel, Keith T. Gilbert. The Carrier was represented by Daniel J. Flanagan. The parties did not contest notice or jurisdiction. Following post-hearing filings by the parties, the record closed on December 17, 2004.

II.DISCUSSION

Background

Claimant sustained a compensable injury on ___, when he fell off a twelve-foot ladder, landing on his back. Claimant’s substantial history of treatments has included a lumbar discetomy, laminectomy, interbody fusion and post-lateral fusion, implantation of a intrathecal medtronic synchromed infusion pump, lumbar fusion with Vitross syntactic bone, epidural steroid injections, medications, a TENS unit, and physical and chiropractic therapy, including work hardening and a prior chronic pain management program.^[1] He has also had numerous diagnostic testing including multiple MRI’s, electodiagnostic studies, and x-rays. Claimant has been diagnosed with a lumbar nerve root injury with right leg radicular symptoms, lumbar myofascial pain syndrome, and post lumbar laminectomy syndrome.^[2] Claimant describes symptoms of constant pain to the lower back and right leg, despite a morphine pump and medications, and reports his subjective level of pain as five, on a scale of one to ten, with ten the most painful. Claimant uses a walking cane, has difficulty

standing for short periods, and has been unable to work since the injury.

On or about October 10, 2003, Robert S. Howell, D.C., requested preauthorization for a chronic pain management program for forty sessions. The request for preauthorization was denied by Carrier based on medical necessity.

Applicable Law

Under the workers’ compensation system, an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury. The employee is specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment. Tex. Lab. Code Ann. § 408.021. “Health care” includes “all reasonable and necessary medical . . . services.” Tex. Lab. Code Ann.§ 401.011(19).

Certain healthcare, however, must be preauthorized before it can be provided and such preauthorization will be granted only if there is a prospective showing of medical necessity. Tex. Lab. Code Ann. § 413.014. A chronic pain management program is included in the type of treatment that requires preauthorization. 28 Tex. Admin. Code § 134.600(h)(10)(B). Medical Dispute Resolution includes a review of the medical service for which authorization of payment is sought if a health care provider is denied authorization for the service requested. Tex. Lab. Code Ann. § 413.031.

C.Medical Necessity of a Chronic Pain Management Program

Provider

Provider submitted Claimant’s medical records and called Claimant as a witness. Claimant testified that as, a result of the injury, he has had numerous back surgeries and remains in persistent pain. The pain has been alleviated to some degree by an implanted morphine pump and strong narcotic medications but the drugs have adversely affected his memory, marital relations, and ability to resume employment. In order to cease dependency on the medications and to avoid potential liver damage, Claimant is requesting the chronic pain management program to help him stop the medications, including the morphine. In 2001, Claimant testified that he completed Provider’s six-week chronic pain management program, after the first surgery, and the program helped him with pain, relaxation, and with counseling. He testified that he refuses to have any further surgeries, however, other than the eventual removal of the pump.

Provider argued that the conclusions made by the IRO reviewer, a board-certified anesthesiologist, as well as the designated doctor and Carrier’s peer review chiropractor were erroneous. First, the IRO physician stated that Claimant’s source of pain, as suggested by Claimant’s orthopedic surgeon, may be related to irritation from the implanted hardware, surgically implanted six months prior to the review, with further surgery planned six months for removal of the hardware. Provider refutes that further surgery was planned by the orthopedic surgeon, noting that the surgeon remarked that there was localized pain with the screw head but made no mention of surgery.^[3] Provider points out that Claimant does not want further surgery and no future surgery is

scheduled or planned, as erroneously stated by the IRO.

Second, Provider takes issue with the IRO reviewer’s conclusion that the source of the pain is the hardware, including the screws, which should be removed surgically. The IRO noted, as the basis for the opinion, that Claimant began using the narcotic medications only after the installation of the hardware, pointing out that prior to the surgery, Claimant used only over-the-counter medications. The increased necessity for pain medicine was considered by the IRO as another indication that the source of the present pain is the hardware, including the hardware screws. However, Provider points out that the chronic pain management program would take Claimant off all medications, including the morphine, without the necessity for surgery other than the eventual removal of the pump.

Lastly, Provider takes issue with the conclusions of Carrier’s peer review chiropractor, Anthony Bottorff, D.C., and the designated doctor, Robert W. Whitsell, M.D., that all treatment options have not been exhausted, as their opinions relied on the representation that Claimant was scheduled for another surgery. Provider points out that Claimant declines further surgery.

Carrier

Carrier presented Claimant’s medical records and argued that Claimant’s request for preauthorization for a chronic pain management program is not medically necessary. First, Carrier points to the office notes of Claimant’s orthopedic surgeon, Gilbert Meadows, M.D., as the foundation of the IRO’s conclusion that further surgical intervention is necessary to resolve the pain. Dr. Meadows’s office notes stated that since Claimant is making progress he should have the morphine pump removed as Ait is an ongoing irritant to him.^[4] Dr. Meadows also noted that Claimant could begin using over-the-counter medications for pain instead of the narcotic medications. Carrier contends that Claimant does not need a chronic pain management program since Claimant’s orthopedic surgeon affirms that the pump can be removed, thereby resolving the source of irritation, and then over-the-counter medication can resume.

Second, Carrier argues that Claimant has already had the same chronic pain management program administered by this Provider, after the first surgery, which proved to be unsuccessful in long-term pain relief or employment resumption. Claimant testified, on cross-examination, that the program reduced his pain to a level of three, on a one to ten pain scale, for three months, but then the pain returned to prior higher levels. Carrier argued that the program is not effective at significantly reducing the ability to cope with the pain.

Third, Claimant argued that Claimant has proven in the past that he is capable of reducing his dependence on pain medications without the assistance of a program. Claimant testified that he was taken off all medications, other than over- the-counter, before the second back surgery so the surgeon could gauge the progress of the surgery on pain reduction. Therefore, Carrier argues that Claimant does not require the program to reduce his dependance on medications since he is capable of discontinuing the medication without assistance.

Lastly, Carrier argues that all treatment options have not been exhausted as was noted by the

IRO physician, the designated doctor, and the Carrier’s peer-review chiropractor, all of whom concurred that Claimant has not reached a medical endpoint due to the ongoing irritation with the hardware.

Analysis

Based on the evidence and testimony, the ALJ concludes that the requested chronic pain management program is not, at the present time, medically necessary. It is undeniable that Claimant is in persistent pain based on his testimony and medical records. However, the medical evidence substantiates that Claimant has not adequately addressed the potential source of his present pain, which all medical health professionals, except Provider, concur, is most likely is caused by the irritation of the implanted hardware, including the screws. The IRO reviewer, a board-certified anesthesiologist, reasons that the progressive use of the narcotic medications is necessitated by the hardware irritation as prior to the implantation of the hardware, Claimant was using only over-the-counter medication. After the surgical implantation, Claimant began requiring stronger narcotic medications to reduce the pain. Further, the designated doctor, Dr. Whitsell, M.D., based on his examination of Claimant, also concurred that he had not reached a medical endpoint in his treatment but did feel that Claimant could resume light to medium work. Also, Carrier’s peer review chiropractor, Anthony Bottorff, D.C., stated that the source of the continued pain might be the screws and that all primary and secondary means of intervention should be exhausted prior to a pain management program.

Lastly, Claimant had an identical chronic pain management program and it proved to only offer only short-term success. Claimant even testified that he continually feels the pain from the screws. Since the first pain management program was after Claimant’s first surgery, followed by four subsequent surgeries, it has proven in the past to be an inefficient course of action to participate in a chronic pain management program without the certainty that all options to resolve the pain have been exhausted.

Therefore, the ALJ concludes that the proposed chronic pain management program is not medically necessary and should not be preauthorized.

III.FINDINGS OF FACT

1. Claimant sustained a compensable injury on ___, when he fell off a twelve-foot ladder, landing on his back.
2. Claimant’s history of treatments has included a lumbar discetomy, laminectomy, interbody fusion and post-lateral fusion, implantation of a intrathecal medtronic synchromed infusion pump, lumbar fusion with Vitross syntactic bone, epidural steroid injections, medications, a TENS unit, and physical and chiropractic therapy, including work hardening and a prior chronic pain management program. Claimant has also had numerous diagnostic testing including multiple MRI’s, electodiagnostic studies, and x-rays.
3. Claimant has been diagnosed with a lumbar nerve root injury with right leg radicular symptoms, lumbar myofascial pain syndrome, and post lumbar laminectomy syndrome.
4. Claimant describes symptoms of constant pain to the lower back and right leg, despite a morphine pump and medications, and reports his subjective level of pain as five, on a scale of one to ten, with ten the most painful.
5. Claimant’s treating doctor, Robert S. Howell, D.C., (Provider) on or about October 10, 2003, requested preauthorization for a chronic pain management program for forty sessions.
6. Travelers Indemnity Company of Connecticut (Carrier) denied Provider’s request for a chronic pain management program based on medical necessity.
7. Provider requested medical dispute resolution.
8. The Independent Review Organization (IRO) denied Provider’s request for preauthorization for a chronic pain management program.
9. Provider requested a hearing before the State Office of Administrative Hearings and requested approval of preauthorization for a chronic pain management program.
10. The parties received not less than 10 days notice of the time, place, and nature of the hearing; 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.
11. Administrative Law Judge Penny A. Wilkov convened a hearing in this case on December 8, 2004, at the State Office of Administrative Hearings (SOAH), William P. Clements State Office Building, 300 West 15th Street, Austin, Texas. The Provider was represented by counsel, Keith T. Gilbert. The Carrier was represented by Dan Flanagan. The parties did not contest notice or jurisdiction. Following post-hearing filings by the parties, the record closed on December 17, 2004.
12. Claimant continually feels the pain from the hardware and screws, attesting that the source of the pain is the irritation of the implanted hardware, including the screws.
13. The progressive use of the narcotic medications and morphine is related to the hardware irritation, since prior to the implantation of the hardware, Claimant was using over-the-counter medication only.
14. Claimant has already had the same chronic pain management program in 2001, by this Provider, after the first surgery, which proved to be unsuccessful in long-term pain relief or employment resumption.
15. The chronic pain management program in 2001, reduced Claimant’s pain to a level of three, on a one to ten pain scale, for three months, but then the pain returned to prior higher levels.
16. Since all treatment options have not been exhausted, Claimant has not reached a medical endpoint necessitating a chronic pain management program.
17. Claimant has previously reduced his dependance on medications without the assistance of a chronic pain management program.
18. A chronic pain management program is not medically reasonable or necessary.

IV. CONCLUSIONS OF LAW

1. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing, including the authority to issue a decision and order. Tex. Labor Code Ann. §413.031(k).
2. Both parties received proper and timely notice of the hearing. Tex. Gov’t Code Ann. §§2001.051 and 2001.052.
3. Claimant has the burden of proof by a preponderance of the evidence.
4. Claimant did not establish by a preponderance of the evidence that a chronic pain management program is medically reasonable or necessary. Tex. Labor Code Ann. §§401.011(19) and 408.021.
5. Preauthorization of a chronic pain management program is not medically necessary and should not be preauthorized.

ORDER

IT IS, THEREFORE, ORDERED that preauthorization is hereby DENIED for a chronic pain management program as requested by First Rio Valley Medical, P. A., for Claimant.

Signed January 10, 2005.

PENNY A. WILKOV
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Respondent’s Exhibit 1, pages 1-3.↑
2. Petitioner’s Exhibit 2, pages 1-3 (Tim S. Chowdhury, M.D., January 5, 2001).↑
3. Petitioner’s Exhibit 1, page 81 (Examination by Gilbert Meadows, M.D. on July 7, 2003).↑
4. Petitioner’s Exhibit 1, page 81.↑