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.

ISSUE

A contested case hearing was held on October 9, 2012, to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that the claimant is not entitled to a chronic pain management program/functional restoration program X 10 for the compensable injury on (Date of Injury)?

PARTIES PRESENT

The petitioner/claimant appeared and was assisted by PA, ombudsman. The respondent/carrier appeared and was represented by AA, attorney.

BACKGROUND INFORMATION

The claimant’ compensable injury on (Date of Injury) has been determined to be limited to a lumbar sprain/strain. He received physical therapy and psychotherapy and a lumbar MRI, but injections and an EMG were denied by the carrier. Despite the nature of the injury sustained and the time which has passed since the date of that injury, the claimant continues to rate his pain levels at a constant 9/10 or 10/10 to all care providers. The medical records describe the claimant appearing for examinations using a walker or a cane. The claimant’s treating doctor, SG, M.D. has requested a chronic pain management program for the claimant. In connection with that request, Dr G sent the claimant to AG, PsyD for a psychological assessment. In her May 2, 2012 report, G agreed with Dr G in recommending a chronic pain management program for the claimant.

In reviewing Dr G’s request and G’s recommendation for a chronic pain management program, the first utilization review doctor, a PhD in psychology, determined that a chronic pain management program for the claimant was not reasonable or necessary care because the extent of the injury—a sprain/strain—did not correlate with the degree of care being requested and, relatedly, there was no evidence to explain the degree of symptomatology being asserted by the claimant in light of the nature of the injury and the amount of time that had passed since the date of injury. In addition, the reviewer noted that the claimant had been returned to work, without restrictions, in October, 2010, and that there was no documentation that Dr G had ruled out all other appropriate care for chronic pain. Finally, the reviewer opined that there had not been a sufficient behavioral psychological evaluation to explain the basis or cause for the claimant’s ongoing pain behaviors and complaints—the “pain disorder” diagnosed by G. This reviewer, as well as the appeal reviewer, called and discussed the case with G and still found the evaluation to be insufficient, and the pain management program request to be unsupported by the evidence and contrary to the requirements of the Official Disability Guidelines (ODG).

The utilization review doctor who reviewed the request on reconsideration, a PhD in psychology, upheld the denial by the first reviewer for the same reasons discussed above. Both utilization reviewers noted that the ODG requires, and the claimant’s request failed to address, an adequate and thorough multidisciplinary evaluation, an absence of of other options likely to result in significant clinical improvement, and that the diagnosis is not primarily a personality disorder or psychological condition without a physical component.

An IRO reviewer, described as an M.D. board certified in anesthesiology and pain management, upheld the carrier’s denial of the pain management program. The IRO reviewer’s decision was based on the same four criteria as the utilization reviewers—the degree of the compensable injury and the failure of any report to explain the ongoing degree and longevity of the pain complaints by the claimant, the prior determination of the claimant’s ability to return to work without restrictions, the absence of a sufficient psychological evaluation, and the failure to rule out other appropriate care short of a comprehensive chronic pain management program.

DISCUSSION

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.”

On the date of this medical contested case hearing, the ODG provides the following with regard to multidisciplinary pain management programs:

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:
2. (b)Excessive dependence on health-care providers, spouse, or family;
3. (c)Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;
4. (d)Withdrawal from social activities or normal contact with others, including work, recreation, or other social contacts;
5. (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;
6. (f)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);
7. (g)The diagnosis is not primarily a personality disorder or psychological condition without a physical component;
8. (h)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.
9. Previous methods of treating chronic pain have been unsuccessful and there is an absence of other options likely to result in significant clinical improvement.
10. An adequate and thorough multidisciplinary evaluation has been made. This should include pertinent validated diagnostic testing that addresses the following:
11. (k)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;
12. (l)Evidence of a screening evaluation should be provided when addiction is present or strongly suspected;
13. (m)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;
14. (n)An evaluation of social and vocational issues that require assessment.
15. 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.
16. 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.
17. Once the evaluation is completed, a treatment plan should be presented with specifics for treatment of identified problems, and outcomes that will be followed.
18. 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.
19. Negative predictors of success (as outlined above) should be identified, and if present, the pre-program goals should indicate how these will be addressed.
20. 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. This cautionary statement should not preclude patients off work for over two years from being admitted to a multidisciplinary pain management program with demonstrated positive outcomes in this population.
21. 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.
22. 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.
23. 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).
24. 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.
25. 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.
26. 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.

Inpatient pain rehabilitation programs: These programs typically consist of more intensive functional rehabilitation and medical care than their outpatient counterparts. They may be appropriate for patients who:

1. don’t have the minimal functional capacity to participate effectively in an outpatient program;
2. have medical conditions that require more intensive oversight;
3. are receiving large amounts of medications necessitating medication weaning or detoxification; or
4. have complex medical or psychological diagnosis that benefit from more intensive observation and/or additional consultation during the rehabilitation process. (Keel, 1998) (Kool, 2005) (Buchner, 2006) (Kool, 2007) As with outpatient pain rehabilitation programs, the most effective programs combine intensive, daily biopsychosocial rehabilitation with a functional restoration approach. If a primary focus is drug treatment, the initial evaluation should attempt to identify the most appropriate treatment plan (a drug treatment /detoxification approach vs. a multidisciplinary/interdisciplinary treatment program). See Chronic pain programs, opioids; Functional restoration programs.

Based on a careful review of the evidence presented in the hearing, the claimant failed to meet his burden of overcoming the IRO decision by a preponderance of the evidence-based medicine. The IRO decision in this case is based on the ODG and the evidence revealed that the claimant failed to meet all of the necessary criteria for a chronic pain management program/functional restoration program prescribed in the ODG. The preponderance of the evidence-based medicine is not contrary to the decision of the IRO and, consequently, the claimant is not entitled to the proposed chronic pain management program/functional restoration program X 10.

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

1. The parties stipulated to the following facts:
   1. A.Venue is proper in the (City) Field Office of the Workers’ Compensation Division of the Texas Department of Insurance.
   2. B.On (Date of Injury), the claimant was the employee of (Employer), Employer.
   3. On (Date of Injury), the employer provided workers’ compensation insurance with Amerisure Mutual Insurance Company, Carrier.
   4. On (Date of Injury), the claimant sustained a compensable injury of a lumbar sprain.
   5. The IRO determined that the claimant is not entitled to a chronic pain management program/functional restoration program X 10.

The carrier delivered to the claimant a single document stating the true corporate name of the carrier, and the name and street address of the carrier’s registered agent, which document was admitted into evidence as Hearing Officer’s Exhibit Number 2.

A chronic pain management program/functional restoration program X 10 is not health care reasonably required for the compensable injury of (Date of Injury).

CONCLUSIONS OF LAW

1. The Workers’ Compensation Division of the Texas Department of Insurance 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 a chronic pain management program/functional restoration program X 10 is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

The claimant is not entitled to a chronic pain management program/functional restoration program X 10.

ORDER

The carrier is not liable for the benefits at issue in this hearing. The claimant remains entitled to medical benefits for the compensable injury in accordance with §408.021.

The true corporate name of the insurance carrier is AMERISURE MUTUAL INSURANCE COMPANY, and the name and address of its registered agent for service of process is:

CINDY GHALIBAF

5221 NORTH O’CONNER BLVD, SUITE 400

IRVING, TX 75039-3711

Signed this 12^th day of October, 2012.

William M. Routon II
Hearing Officer