DECISION AND ORDER
This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and Rules of the Division of Workers’ Compensation adopted thereunder.
A contested case hearing was held on January 15, 2009, to decide the following disputed issue:
- Is the preponderance of the evidence contrary to the decision of the IRO that the claimant is entitled to ten (10) sessions of Chronic Pain Management for the compensable injury of __________?
Petitioner/Carrier appeared and was represented by LW, attorney.
Respondent/Claimant appeared and was assisted by TMH, ombudsman.
Claimant sustained a compensable low back injury while working in a (Employer) store. Her treating doctor is Dr. C, DC. Dr. C referred her to Dr. F, MD for medication management. Dr. C requested approval for a four week Chronic Pain Management Program. The Carrier refused to approve the request and the denial was upheld on appeal. The utilization review agent on appeal was Dr. T, MD. Claimant initiated the IRO process in an attempt to have Carrier's decision overturned. On October 15, 2008, MCMC, the IRO appointed by the Texas Department of Insurance, found that Carrier's denial of ten (10) sessions of Chronic Pain Management Program should be overturned. Carrier has appealed the IRO decision.
Dr. T has issued a later report disagreeing with the IRO physician reviewer. In part, Dr. T asserts that the ODG does not support the medical necessity of a chronic pain management program at this time and an addendum to her report discussed Claimant's progress during the first two weeks of the program Claimant began after the IRO recommended that Carrier's denial be overturned. The continuation of the program is not the subject of the denial submitted to the IRO and the allegations of Claimant's success or failure during the trial phase of the program will not be considered.
The IRO report overturning Carrier's denial of the initial ten sessions states that the physician reviewer considered the Official Disability Guidelines (ODG). 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 (Texas Labor Code §408.021). "Health care reasonably required" is defined as health care that is clinically appropriate and considered effective for the injured employee's injury and provided in accordance with best practices consistent with evidence based medicine or, if evidence based medicine is not available, generally accepted standards of medical practice recognized in the medical community (Texas Labor Code §401.011(22-a)). "Evidence based medicine" means the use of the current best qualified scientific and medical evidence formulated from credible scientific studies, including peer-reviewed medical literature and other current scientifically based texts and treatment and practice guidelines (Texas Labor Code §401.011 (18-a)). In accordance with the above statutory guidance, Rule 137.100 directs health care providers to provide treatment in accordance with the current edition of the ODG, and such treatment is presumed to be reasonably required.
The physician reviewer stated that Claimant had undergone a litany of care with mixed results; that she was not a candidate for surgery; that electrodiagnostic testing had been performed and was normal; that records indicate that Claimant is motivated to return to work but cannot, or is unwilling to, return to her prior employer; has demonstrated function below her prior abilities; has undergone extensive behavioral testing; and has not undergone any type of formal behavioral treatment. The physician reviewer found that the requested ten sessions in a chronic pain management program were consistent with the foregoing and that Claimant "appears to be a viable candidate for the application of [a chronic pain] program."
The ODG addresses the use of chronic pain programs, recommending them with the following caveats:
Recommended where there is access to programs with proven successful outcomes (i.e., decreased pain and medication use, improved function and return to work, decreased utilization of the health care system), for patients with conditions that put them at risk of delayed recovery. Patients should also be motivated to improve and return to work, and meet the patient selection criteria outlined below. Also called Multidisciplinary pain programs or Interdisciplinary rehabilitation programs, these pain rehabilitation programs combine multiple treatments, and at the least, include psychological care along with physical & occupational therapy (including an active exercise component as opposed to passive modalities). While recommended, the research remains ongoing as to (1) what is considered the “gold-standard” content for treatment; (2) the group of patients that benefit most from this treatment; (3) the ideal timing of when to initiate treatment; (4) the intensity necessary for effective treatment; and (5) cost-effectiveness. It has been suggested that interdisciplinary/multidisciplinary care models for treatment of chronic pain may be the most effective way to treat this condition.
Patient selection criteria for these programs, as set forth in the ODG, are as follows:
Criteria for the general use of multidisciplinary pain management programs:
Outpatient pain rehabilitation programs may be considered medically necessary when all of the following criteria are met:
(1) Patient with a chronic pain syndrome, with pain that persists beyond three months including three or more of the following: (a) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances; (b) Excessive dependence on health-care providers, spouse, or family; (c) Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain; (d) Withdrawal from social knowhow, including work, recreation, or other social contacts; (e) Failure to restore preinjury function after a period of disability such that the physical capacity is insufficient to pursue work, family, or recreational needs; (f) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or nonorganic illness behaviors; (g) The diagnosis is not primarily a personality disorder or psychological condition without a physical component;
(2) The patient has a significant loss of ability to function independently resulting from the chronic pain;
(3) Previous methods of treating the chronic pain have been unsuccessful and there is an absence of other options likely to result in significant clinical improvement;
(4) The patient is not a candidate for further diagnostic, injection(s) or other invasive or surgical procedure, or other treatments that would be warranted. If a goal of treatment is to prevent or avoid controversial or optional surgery, a trial of 10 visits may be implemented to assess whether surgery may be avoided;(Emphasis added.)
(5) An adequate and thorough multidisciplinary evaluation has been made, including pertinent diagnostic testing to rule out treatable physical conditions, baseline functional and psychological testing so follow-up with the same test can note functional and psychological improvement;
(6) The patient exhibits motivation to change, and is willing to decrease opiate dependence and forgo secondary gains, including disability payments to effect this change;
(7) Negative predictors of success above have been addressed;
Of the seven factors set forth in the ODG, there is evidence in the record to support the physician reviewer's conclusion that Claimant met those criteria with the exception of the requirement that the patient not be a candidate for further diagnostic, injection, or other invasive or surgical procedures.
Claimant was referred to Dr. B, MD for a surgical consultation in 2008. On June 6, 2008, Dr. B wrote Claimant's treating doctor recommending continuation of physical therapy, an evaluation for epidural steroid therapy, a lumbar spine series including flexion and extension views at L5-S1, and EMG and nerve conduction velocity studies. On September 9, 2008, Dr. C indicated in a progress report that Dr. B believed that Claimant "is probably a surgical candidate, but he wanted her to have epidural steroid injections before trying surgery" and that she would "refer [Claimant] to Dr. F for possible lumbar epidural steroid injections." In her peer report of January 2, 2009, Dr. T cited Dr. C's September 9, 2008, report in opining that all selection criteria for a pain management program had not been met and the IRO recommendation did not comply with the ODG.
The IRO physician reviewer's report indicates that Dr. C's September 9, 2008, report was the last report available from her at the time of the IRO review, that the IRO had been requested on September 22, 2008, and that the last record available from Dr. B was his June 6, 2008, letter suggesting an evaluation for epidural steroid injections. Since Claimant continued to remain a candidate for epidural steroid injections and surgery in September of 2008 and the evidence does not show that those procedures have been ruled out, the IRO determination that a chronic pain management program is medically necessary is contrary to the preponderance of the evidence. Dr. T's opinion that the program has not been shown to be medically necessary is consistent with the ODG and is more persuasive.
Even though all the evidence presented was not discussed, it was considered. The Findings of Fact and Conclusions of Law are based on all of the evidence presented.
FINDINGS OF FACT
- The parties stipulated to the following facts:
A.Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
B. On __________, Claimant was the employee of (Employer).
CONCLUSIONS OF LAW
- The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case.
- Venue is proper in the (City) Field Office.
- The preponderance of the evidence is contrary to the decision of the IRO that ten sessions of Chronic Pain Management is health care reasonably required for the compensable injury of __________.
Claimant is not entitled to ten (10) session of Chronic Pain Management for the compensable injury of __________.
Carrier is not liable for the benefits at issue in this hearing. Claimant remains entitled to medical benefits for the compensable injury in accordance with §408.021.
The true corporate name of the insurance carrier is AMERICAN HOME ASSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
701 BRAZOS STREET, SUITE 1050
AUSTIN, TEXAS 78701.
Signed this 21st day of January, 2009
KENNETH A. HUCHTON