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August 27, 2009


August 27, 2009


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 August 21, 2009 to decide the following disputed issue:

  1. Is the preponderance of the evidence contrary to the decision of the IRO that Claimant is entitled to a chronic pain management program 5 times per week, for two weeks, 8 hours per day?


Claimant appeared and was represented by KS, attorney. Carrier appeared and was represented by LW, attorney.


Claimant is a 49-year-old warehouse worker who was injured on ___________ when she was caught between two rows of rolling shelves which closed on her at work. She complained of injury to her neck, low back, and abdomen. She was treated at the emergency room and (Healthcare Provider) before changing treating physicians to Dr. N, a physical medicine specialist. She underwent 27 sessions of physical therapy and 12 sessions of individual psychotherapy. Claimant has had extensive radiographic studies showing degenerative changes as well as bulging discs in the neck and low back without correlation to physical symptoms. Cervical and lumbar EMGs were negative for radiculopathy. Dr. N found no neurological deficits. Dr. N seeks additional treatment in the form of a chronic pain management program which is the subject of this dispute. She stated that this was the only additional treatment she could offer since Claimant did not want surgery. The request was denied by two utilization reviewers, but the denial was overturned by the IRO. Although the treatment has actually been completed pursuant to the IRO determination by the time of this hearing, the proceeding is still in the posture of a prospective review as presented to the IRO for purposes of the appeal from the IRO decision by Carrier.

Texas Labor Code Section 408.021 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. Health care reasonably required is further defined in Texas Labor Code Section 401.011 (22a) 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, then generally accepted standards of medical practice recognized in the medical community. Health care under the Texas Workers' Compensation system must be consistent with evidence based medicine if that evidence is available. Evidence based medicine is further defined in Texas Labor Code Section 401.011 (18a) to be the use of the current best quality 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.

In accordance with the above statutory guidance, the Division of Workers' Compensation has adopted treatment guidelines by Division Rule 137.100. This rule directs health care providers to provide treatment in accordance with the current edition of the Official Disability Guidelines (ODG), and such treatment is presumed to be health care reasonably required as defined in the Texas Labor Code. Thus, the focus of any health care dispute starts with the health care set out in the ODG. Also, in accordance with Division Rule 133.308 (t), "A decision issued by an IRO is not considered an agency decision and neither the Department nor the Division are considered parties to an appeal. In a Contested Case Hearing (CCH), the party appealing the IRO decision has the burden of overcoming the decision issued by an IRO by a preponderance of evidence-based medical evidence."

Criteria for the general use of multidisciplinary pain management programs:

Outpatient pain rehabilitation programs may be considered medically necessary in the following circumstances:

(1) The patient has a chronic pain syndrome, with evidence of loss of function that persists beyond three months and has evidence of three or more of the following: (a) Excessive dependence on health-care providers, spouse, or family; (b) Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain; (c) Withdrawal from social activities or normal contact with others, including work, recreation, or other social contacts; (d) Failure to restore preinjury function after a period of disability such that the physical capacity is insufficient to pursue work, family, or recreational needs; (e) Development of psychosocial sequelae that limits function or recovery after the initial incident, including anxiety, fear-avoidance, depression, sleep disorders, or nonorganic illness behaviors (with a reasonable probability to respond to treatment intervention); (f) The diagnosis is not primarily a personality disorder or psychological condition without a physical component; (g) There is evidence of continued use of prescription pain medications (particularly those that may result in tolerance, dependence or abuse) without evidence of improvement in pain or function.

(2) Previous methods of treating chronic pain have been unsuccessful and there is an absence of other options likely to result in significant clinical improvement.

(3) An adequate and thorough multidisciplinary evaluation has been made. This should include pertinent validated diagnostic testing that addresses the following: (a) A physical exam that rules out conditions that require treatment prior to initiating the program. All diagnostic procedures necessary to rule out treatable pathology, including imaging studies and invasive injections (used for diagnosis), should be completed prior to considering a patient a candidate for a program. The exception is diagnostic procedures that were repeatedly requested and not authorized. Although the primary emphasis is on the work-related injury, underlying non-work related pathology that contributes to pain and decreased function may need to be addressed and treated by a primary care physician prior to or coincident to starting treatment; (b) Evidence of a screening evaluation should be provided when addiction is present or strongly suspected; (c) Psychological testing using a validated instrument to identify pertinent areas that need to be addressed in the program (including but not limited to mood disorder, sleep disorder, relationship dysfunction, distorted beliefs about pain and disability, coping skills and/or locus of control regarding pain and medical care) or diagnoses that would better be addressed using other treatment should be performed; (d) An evaluation of social and vocational issues that require assessment.

(4) If a goal of treatment is to prevent or avoid controversial or optional surgery, a trial of 10 visits (80 hours) may be implemented to assess whether surgery may be avoided.

(5) If a primary reason for treatment in the program is addressing possible substance use issues, an evaluation with an addiction clinician may be indicated upon entering the program to establish the most appropriate treatment approach (pain program vs. substance dependence program). This must address evaluation of drug abuse or diversion (and prescribing drugs in a non-therapeutic manner). In this particular case, once drug abuse or diversion issues are addressed, a 10-day trail may help to establish a diagnosis, and determine if the patient is not better suited for treatment in a substance dependence program. Addiction consultation can be incorporated into a pain program. If there is indication that substance dependence may be a problem, there should be evidence that the program has the capability to address this type of pathology prior to approval.

(6) Once the evaluation is completed, a treatment plan should be presented with specifics for treatment of identified problems, and outcomes that will be followed.

(7) There should be documentation that the patient has motivation to change, and is willing to change their medication regimen (including decreasing or actually weaning substances known for dependence). There should also be some documentation that the patient is aware that successful treatment may change compensation and/or other secondary gains. In questionable cases, an opportunity for a brief treatment trial may improve assessment of patient motivation and/or willingness to decrease habituating medications.

(8) Negative predictors of success (as outlined above) should be identified, and if present, the pre-program goals should indicate how these will be addressed.

(9) If a program is planned for a patient that has been continuously disabled for greater than 24 months, the outcomes for the necessity of use should be clearly identified, as there is conflicting evidence that chronic pain programs provide return-to-work beyond this period. These other desirable types of outcomes include decreasing post-treatment care including medications, injections and surgery.

(10) Treatment is not suggested for longer than 2 weeks without evidence of compliance and significant demonstrated efficacy as documented by subjective and objective gains. (Note: Patients may get worse before they get better. For example, objective gains may be moving joints that are stiff from lack of use, resulting in increased subjective pain.) However, it is also not suggested that a continuous course of treatment be interrupted at two weeks solely to document these gains, if there are preliminary indications that they are being made on a concurrent basis.

(11) Integrative summary reports that include treatment goals, compliance, progress assessment with objective measures and stage of treatment, must be made available upon request at least on a bi-weekly basis during the course of the treatment program.

(12) Total treatment duration should generally not exceed 20 full-day (160 hours) sessions (or the equivalent in part-day sessions if required by part-time work, transportation, childcare, or comorbidities). (Sanders, 2005) Treatment duration in excess of 160 hours requires a clear rationale for the specified extension and reasonable goals to be achieved. Longer durations require individualized care plans explaining why improvements cannot be achieved without an extension as well as evidence of documented improved outcomes from the facility (particularly in terms of the specific outcomes that are to be addressed).

(13) At the conclusion and subsequently, neither re-enrollment in repetition of the same or similar rehabilitation program (e.g. work hardening, work conditioning, out-patient medical rehabilitation) is medically warranted for the same condition or injury (with possible exception for a medically necessary organized detox program). Prior to entry into a program the evaluation should clearly indicate the necessity for the type of program required, and providers should determine upfront which program their patients would benefit more from. A chronic pain program should not be considered a “stepping stone” after less intensive programs, but prior participation in a work conditioning or work hardening program does not preclude an opportunity for entering a chronic pain program if otherwise indicated.

(14) Suggestions for treatment post-program should be well documented and provided to the referral physician. The patient may require time-limited, less intensive post-treatment with the program itself. Defined goals for these interventions and planned duration should be specified.

(15) Post-treatment medication management is particularly important. Patients that have been identified as having substance abuse issues generally require some sort of continued addiction follow-up to avoid relapse.

Functional restoration programs.

Each party has addressed the ODG guidelines as being determinative of the dispute. Dr. N testified by telephone at the hearing and took the position that Claimant has chronic pain syndrome and met the criteria of the ODG for a pain management program. She saw no negative predictors, and stated that the goal of the program would be to assist Claimant to address her pain behavior and avoidance behavior that impedes her return to work.

The IRO reviewer in his analysis noted that Claimant has been under treatment with the same group of practitioners since 2008 with minimal gains, records indicating that her complaints and restricted movements are non-organic, and lack of improvement with physical therapy and individual psychotherapy. Nevertheless, the reviewer then stated that he agreed with the provider that since there was nothing else to offer Claimant but a comprehensive pain program combining physical and psychological therapy and that the utilization denials should be overturned.

Dr. T, one of Carrier's utilization reviewers, testified by telephone at the hearing that the ODG guidelines are not met in this case. She referenced the RME examination of Dr. G on January 30, 2009 which found no atrophy, loss of reflexes, nor any physical component to Claimant's complaints. He reported that Claimant's complaints are subjective and that she self limited her testing. Dr. T pointed to lack of response to the physical therapy or psychological therapy that had previously been authorized, and criticized the IRO reviewer's statement that the program should be allowed because it is the only remaining treatment available. Dr. N admits that Claimant is not on pain medication, which is one of the criteria of the need for a chronic pain program. Also the evidence does not establish a physical component to the pain to substantiate Claimant's subjective complaints, which have been shown to be without physiologic basis. In this case, the IRO reviewer's determination is overcome by a preponderance of the other evidence to the effect that the ODG guidelines are not met, and accordingly, the requested program is not shown to be supported by a preponderance of the evidence based medicine.

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.


  1. 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 (Self-Insured).

C.Claimant sustained a compensable injury on ___________.

D. This claim is a non-network claim.

E.The IRO determined that Claimant is entitled to chronic pain management program 5 times per week, for two weeks, 8 hours per day.

  • Carrier delivered to Claimant a single document stating the true corporate name of Carrier, and the name and street address of Carrier’s registered agent, which document was admitted into evidence as Hearing Officer’s Exhibit Number 2.
  • Chronic pain management program 5 times per week, for two weeks, 8 hours per day is not healthcare reasonably required for treatment of Claimant's compensable injury of ___________.

    1. The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case.
    2. Venue is proper in the (City) Field Office.
    3. The preponderance of the evidence based medical evidence is contrary to the determination of the IRO that chronic pain management program 5 times per week, for two weeks, 8 hours per day is healthcare reasonably required for the compensable injury of ___________.


    Claimant is not entitled to a chronic pain management program, 5 times per week, for two weeks, 8 hours per day for treatment of 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 (SELF-INSURED) and the name and address of its registered agent for service of process is:




    Signed this 27th day of August, 2009.

    Warren E. Hancock, Jr.
    Hearing Officer

    End of Document