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December 21, 2009


December 21, 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 December 11, 2009 to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the IRO that Claimant is entitled to chronic pain management 5 x 2 for the compensable injury of _________?


Claimant appeared and was represented by GS, attorney. Petitioner/Carrier appeared and was represented by LW, attorney. Respondent MN, M.D. was assisted by SKK, PhD. who appeared at the hearing.


Claimant is a 56-year-old former store worker who was injured while attempting to turn a line of grocery carts into the storage area. Claimant has previously been determined to have sustained aggravation injury to his low back spinal conditions. Claimant has undergone diagnostics, medications and physical therapy which did not return him to the medium physical demand level required of his work. He was recommended for a 10 day chronic pain program consisting of 5 eight hour sessions per week for two weeks. This request was reviewed by JD, PhD, a psychologist, and denied. Dr. D stated that Claimant had not attempted to return to work, which is incorrect. She also criticized the lack of a work plan and a showing of motivation to change on the part of Claimant. There followed an extensive rebuttal from Claimant's treating physician, and a reconsideration by Carrier conducted by MT, M.D., a board certified occupational medicine specialist. Dr. T contended that Claimant should not have missed work at all and that he did not meet the guidelines for a chronic pain program as stated in criteria 1, 2 and 7 of the Official Disability Guidelines (ODG). An independent review organization (IRO) reviewed these decisions upon the request of Respondent and Claimant. The review was conducted by a board certified specialist in physical medicine and rehabilitation, pain management, and electodiagnostic medicine, who determined that Claimant does meet the criteria of the ODG for a chronic pain program, and overturned the Carrier denials, from which Carrier appeals.

Respondent and Claimant took the position at the hearing that jurisdiction of this appeal would be proper before the State Office of Administrative Hearings rather than through contested case hearing with the Division of Workers' Compensation. They pointed out that some of the treatment has been provided pursuant to the determination of the IRO as required by the Labor Code. However, no proof was received as to the value of services already provided. The total cost of the chronic pain management program would be $1000.00 per day for ten days, for a total of $10,000.00. In any event, it is the posture of the case at the time of the review by the IRO that determines whether a concurrent/prospective review or a retrospective review is involved. In this case there had been no chronic pain treatment at the time of the IRO review. Accordingly, under Texas Labor Code 413.0311 review is proper by the Division.


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. The Commissioner of the Division of Workers' compensation is required to adopt treatment guidelines that are evidence-based, scientifically valid, outcome-focused and designed to reduce excessive or inappropriate medical care while safeguarding necessary medical care. Texas Labor Code Section 413.011(e). Medical services consistent with the medical policies and fee guidelines adopted by the commissioner are presumed reasonable in accordance with Texas Labor Code Section 413.017(1).

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."

The ODG criteria for the use of chronic pain programs is as follows:

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 trial 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.

Dr. N and Dr. K have provided extensive written rebuttals to the Carrier utilization and reconsideration reviews that specifically address the requirements of the ODG and their application to the facts of this case. In addition, Dr. K testified in person at the hearing, addressed each criterion in detail, and rebutted the utilization review criticism. After consideration of all the evidence presented, the preponderance of the evidence supports the determination of the IRO that the requested chronic pain program is healthcare reasonably required for treatment of Claimant's injury.

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.On _________, Claimant was the employee of (Employer).

B.Claimant sustained a compensable injury on _________

C.This appeal involves a non-network claim.

D.The IRO determined that chronic pain management program 5 x 2 is healthcare reasonably required for treatment of Claimant's compensable injury of _________.

  • 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.
  • The proceeding is an appeal of an IRO decision involving determination of a concurrent or prospective medical necessity for a health care service.
  • At the time of the injury, Claimant lived within 75 miles of the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation and no party requested or showed good cause for a change of venue.
  • The Claimant's treating doctor recommended ten sessions in a chronic pain management program.
  • For treatment of chronic pain the ODG recommends chronic pain management programs only where a claimant meets an extensive set of selection criteria.
  • The medical records show that Claimant meets the selection criteria required by the ODG for chronic pain management.
  • Chronic pain management 5 x 2 is healthcare reasonably required for the 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 is not contrary to the decision of the IRO that chronic pain management 5 x 2 is healthcare reasonably required for the compensable injury of _________.


    Claimant is entitled to chronic pain management 5 x 2 for the compensable injury of ________.


    Carrier is ordered to pay benefits in accordance with this decision, the Texas Workers’ Compensation Act, and the Commissioner’s Rules. Accrued but unpaid income benefits, if any, shall be paid in a lump sum together with interest as provided by law.

    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:



    AUSTIN, TEXAS 78701

    Signed this 21st day of December, 2009.

    Warren E. Hancock, Jr.
    Hearing Officer

    End of Document