DECISION AND ORDER

Texas Mutual Insurance Company (Carrier) requested a hearing on the decision of the Independent Review Organization (IRO)^[1] approving the preauthorization request of Advantage Healthcare Systems (Provider) for two weeks of chronic pain management for injured worker ___ (Claimant). After considering the evidence and arguments presented, the Administrative Law Judge (ALJ) concludes that Carrier has shown by a preponderance of the evidence that the requested two weeks of chronic pain management are not medically necessary to treat Claimant’s compensable injury. Accordingly, the ALJ finds that the requested treatment should not be preauthorized.

I. Jurisdiction, Notice, and Procedural History

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

Claimant suffered a work-related injury to his back on ___, while adjusting pallets in the back of a truck. Thereafter, Claimant received chiropractic treatment, numerous lumbar facet and trigger point injections, an IDET procedure, and medication for his injury. Further, Claimant has used a TENS unit and engaged in an active rehabilitation program in efforts to improve his condition. When Claimant continued to suffer chronic pain from his injury, he was placed into a chronic pain management program administered by Provider. He participated in the program from October 27,

2003, through January 30, 2004.^[2] On February 24, 2004, Provider requested authorization for two additional weeks of chronic pain management.

Carrier denied the request, concluding that additional chronic pain management would provide no benefit to Claimant, particularly after he had already received extensive chronic pain management and other treatment. Provider then requested medical dispute resolution through the Commission. The matter was referred to an IRO designated by the Commission for the review process. The IRO determined that chronic pain management was medically necessary and should be authorized. Carrier then requested a hearing on the IRO decision, and the matter was transferred to the State Office of Administrative Hearings (SOAH). The hearing convened at SOAH’s hearings facility on August 9, 2004, before ALJ Craig R. Bennett. Carrier was represented at the hearing by attorney R. Scott Placek, and Provider was represented by Nick Kempisty. The record closed that same day.

II. Discussion and Analysis

The issue in this case is whether two additional weeks of chronic pain management is medically necessary to treat Claimant’s work-related injury. After considering the evidence presented, the ALJ concludes that it is not.

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 only if there is a prospective

showing of medical necessity.^[4] Chronic pain management is one type of treatment for which preauthorization is required.^[5]

At the hearing, Carrier presented the testimony of Robert Joyner, M.D., who is board-certified in both anesthesiology and pain management. In his testimony, Dr. Joyner discussed Claimant’s lengthy treatment history, which includes nearly three years of physical therapy, chiropractic treatment, and rehabilitation. From reviewing the medical documentation, Dr. Joyner concluded that Claimant had shown little to no improvement from the prior months of chronic pain management treatment. Further, Dr. Joyner noted that Claimant had expressed doubts about the efficacy of pain management, had expressed a desire for surgery, and had frequently failed to show satisfactory participation in the pain management program. Given this, Dr. Joyner concluded that there was little likelihood that Claimant would benefit from any additional chronic pain management. Instead, Dr. Joyner opined that surgery was Claimant’s best chance for improvement.

In response, Provider did not present any expert testimony at the hearing, but rather relied on the medical documentation submitted into the record. Provider argues that any prior physical therapy or other treatment for Claimant is irrelevant in the context of deciding whether the additional requested pain management is necessary. Provider asserts that Claimant has shown improvement

over time from the prior sessions of pain management, even if the improvement is not to the extent hoped for. Provider argues this is the reason additional pain management is neededCto assist in continued improvement.

Ultimately, the ALJ finds Dr. Joyner’s testimony to be highly credible and persuasive, and agrees with his conclusion that Claimant will not benefit from additional chronic pain management. Claimant has had extensive treatment, including significant amounts of chronic pain management already. Despite this, the medical records show very little improvement in Claimant as a result of the past chronic pain management treatment. Treatment notes from January 28, 2004 (two days prior to

the end of the initil chronic pain management program) reflect that Claimant Alooks forward to having surgery to fix his disc – this program (especially the exercise) seems like torture, his doc wanted him to try it for a couple of weeks – getting to be hard to take.^[6] And, even though he had more than 20 sessions of chronic pain management, other treatment notes from January 28, 2004 reflect that Claimant continued to have severe pain on Aessentially a constant basis and could seldom sleep Aover one to two hours per night.^[7]

The dily treatment notes from the chronic pain management sessions in which Claimant participated show that he frequently did not demonstrate progress or did not participate to the extent needed.^[8] It is obvious from the record that at the end of the initial chronic pain management program, Claimant did not want to continue with it and believed surgery was his best hope for returning to work. Dr. Joyner and other physicians who have seen Claimant also believe surgery is his best hope. Chronic pain management is intended to be a Alast resort treatment, designed to help injured persons deal with pain when there is no other option for improving their condition. Because the evidence shows that surgery is needed and likely will be beneficial, this is another reason the requested treatment is not appropriate for Claimant. Given the evidence presented, there is no reason to continue with chronic pain management, particularly when the Claimant himself expects no

benefit and does not desire to continue with it. Therefore, the ALJ finds that the requested chronic pain management treatment is not medically necessary and should not be preauthorized. In support of this determination, the ALJ makes the following findings of fact and conclusions of law.

III. Findings of Fact

1. On ___, Claimant ___ suffered a work-related injury to his back.
2. At the time of the Claimant’s compensable injury, Texas Mutual Insurance Company (Carrier) was the workers= compensation insurer for Claimant’s employer.
3. Claimant received chiropractic treatment, numerous lumbar facet and trigger point injections, an IDET procedure, and medication for his injury. Further, Claimant has used a TENS unit and engaged in an active rehabilitation program in efforts to improve his condition.
4. When Claimant continued to suffer chronic pain from his injury, he was placed into a chronic pain management program administered by Advantage Health Care (Provider). Claimant participated in the program from October 27, 2003, through January 30, 2004, having approximately 22 sessions of chronic pain management during that time.
5. Claimant received little benefit from the chronic pain management program, showing minimal, if any, gain in pain levels and ability to sleep.
6. On Jnuary 28, 2004, after having had at least 20 sessions of chronic pain management, Claimant continued to have severe pain on Aessentially a constant basis and could seldom sleep Aover one to two hours per night.
7. Claimant needs surgery to repair a ruptured disc, and such surgery is the treatment most likely to relieve Claimant’s pain, sleep problems, and inability to work.
8. Additional chronic pain management is not medically necessary to treat Claimant’s compensable, work-related injury.
9. On February 24, 2004, Provider requested authorization for two additional weeks of chronic pain management for Claimant.
10. Carrier denied the preauthorization request, concluding that additional chronic pain management would provide no benefit to Claimant.
11. Provider then requested medical dispute resolution by the Texas Workers= Compensation Commission’s Medical Review Division, which referred the matter to an Independent Review Organization (IRO).
12. On April 22, 2004, after conducting medical dispute resolution, the IRO physician reviewer determined that chronic pain management was medically necessary and should be authorized.
13. On May 14, 2004, Carrier requested a hearing on the IRO decision, and the case was referred to the State Office of Administrative Hearings (SOAH).
14. Notice of the hearing was sent on June 7, 2004, 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.
15. The hearing convened at SOAH’s hearings facility on August 9, 2004, before Administrative Law Judge Craig R. Bennett. Carrier was represented at the hearing by attorney R. Scott Placek, and Provider was represented by Nick Kempisty. The record closed that same day.

IV. Conclusions of Law

1. 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(k) of the Act 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.
3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov=t Code Ann. ” 2001.051 and 2001.052.
4. Carrier has the burden of proof. 28 Tex. Admin. Code ” 148.21(h) and 133.308(w).
5. Carrier proved, by a preponderance of the evidence, that additional chronic pain management sessions are not medically necessary treatment for Claimant’s compensable injury.
6. Provider’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 August 18, 2004.

CRAIG R. BENNETT
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The IRO is the statutory designee of the Medical Review Division of the Texas Workers’ Compensation Commission (Commission) for purposes of resolving this preauthorization dispute.↑
2. The evidence shows that Claimant had 22 sessions of chronic pain management treatment during that time.↑
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. Petitioner Ex. 2, at 601.↑
7. Petitioner Ex. 2, at 594.↑
8. See, e.g., Petitioner Ex. 2, at 514, 561, 562, 578, 581, 593, and 601.↑