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At a Glance:
Title:
16024-nnr
Date:
June 9, 2016

16024-nnr

June 9, 2016

DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and the Rules of the Texas Department of Insurance, Division of Workers’ Compensation. For the reasons discussed herein, the Hearing Officer determines that Claimant is not entitled to psychotherapy x 12 sessions and individual psychotherapy x 12 sessions for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

On June 8, 2016, Carol A. Fougerat, a Division Hearing Officer, held a contested case hearing 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 psychotherapy x 12 sessions and individual psychotherapy x 12 sessions for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Petitioner/Claimant appeared and was assisted by LB, ombudsman.

Respondent/Carrier appeared and was represented by BJ, attorney.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant: GW, Ph.D.

Claimant

For Carrier: ML, Ph.D.

The following exhibits were admitted into evidence:

Hearing Officer’s Exhibits: HO-1 and HO-2

Claimant’s Exhibits: C-1 through C-8

Carrier’s Exhibits: CR-1 through CR-10

DISCUSSION

Claimant sustained a compensable injury to his right eye on (Date of Injury). As a result of this injury, Claimant has undergone multiple corneal transplants, which have been unsuccessful. Claimant’s injury has resulted in his blindness, as well as depression and anxiety. Claimant has undergone extensive individual and group psychotherapy. Claimant’s treating psychologist, GW, Ph.D., has recommended additional psychotherapy x 12 sessions and individual psychotherapy x 12 sessions, which was denied by Carrier and appealed to an IRO.

The IRO reviewer, identified as a board certified psychologist, upheld Carrier’s denial and determined that the requested psychotherapy was medically not necessary. The IRO reviewer noted that the records submitted indicate that Claimant has been authorized for 137 mental health sessions to date. The IRO reviewer cited the Official Disability Guidelines (ODG), which would support up to 50 sessions if progress is being made. The IRO reviewer stated that, although the submitted records subjectively report that progress has been made, there are no objective measures of improvement documented to support continuing to exceed ODG recommendations. The IRO reviewer went on to state that the ODG notes that group therapy is an option for patients with post-traumatic stress disorder (PTSD), but that the records fail to document a diagnosis of PTSD. The IRO concluded that medical necessity was not established in accordance with current evidence-based medical guidelines.

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 (22-a) 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 (18-a) 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(s), "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."

ODG Criteria for Psychotherapy and Individual Psychotherapy:

ODG Psychotherapy Guidelines:

Up to 13-20 visits over 7-20 weeks (individual sessions), if progress is being made.

(The provider should evaluate symptom improvement during the process, so treatment failures can be identified early and alternative treatment strategies can be pursued if appropriate.)

In cases of severe Major Depression or PTSD, up to 50 sessions if progress is being made.

Dr. GW testified at the contested case hearing. Dr. GW explained the benefits of individual and group therapy for patients that have experienced life-changing illnesses or injuries. Dr. GW agreed that the request for additional therapy, both individual and group therapy, exceeds the ODG recommendations, and that Claimant was not diagnosed with PTSD prior to March 2, 2016. Dr. GW testified that he had researched evidence-based studies which support the necessity for the therapy he has requested; however, he did not produce or exchange this literature with the Carrier. Dr. GW suggested that the ODG recommendations were just guidelines, and that each patient should be evaluated based on the particular circumstances in that case. Dr. GW also acknowledged that his records do not indicate that Claimant was improving during the period reviewed by the IRO. Dr. GW testified that Claimant had experienced significant functional improvement in the past seven months, which was subsequent to the IRO’s determination.

Carrier relies on the determination of the IRO and the testimony/opinion of ML, Ph.D. Dr. ML’s peer review report is contained in Carrier’s Exhibits CR-8. Dr. ML testified at the contested case hearing. Dr. ML agreed with the IRO that the proposed therapy was not medically necessary at this time, and that the records of Dr. GW did not support approval of additional individual or group therapy. Dr. ML was highly critical of the psychological treatment that Dr. GW provided to Claimant. Dr. ML explained that Dr. Whiting’s records lacked goals or functional activities and failed to identify a plan to guide a course of therapy and treatment. Dr. ML also testified that his review of Dr. GW’s records document no progress, outcome measures or psychometric testing measures, and that there was no objective evidence of any improvement.

Based on the evidence presented, Claimant does not meet the requirements in the ODG for the requested psychotherapies, and Claimant failed to present evidence sufficient to contradict the determination of the IRO. The preponderance of the evidence is not contrary to the IRO decision that Claimant is not entitled to psychotherapy x 12 sessions and individual psychotherapy x 12 sessions for the compensable injury of (Date of Injury).

The Hearing Officer considered all of the evidence admitted. The Findings of Fact and Conclusions of Law are based on an assessment of all of the evidence whether or not the evidence is specifically discussed in this Decision and Order.

FINDINGS OF FACT

  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 (Date of Injury), Claimant was the employee of (Employer), Employer.

C.On (Date of Injury), Employer provided workers’ compensation coverage with (Carrier), Carrier.

D. Claimant sustained a compensable injury on (Date of Injury).

E.The IRO determined that the proposed psychotherapy x 12 sessions and individual psychotherapy x 12 sessions is not medically necessary for the compensable injury of (Date of Injury).

  • 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.
  • Claimant does not meet the recommendations of the ODG for psychotherapy x 12 sessions and individual psychotherapy x 12 sessions, and Claimant failed to present evidence-based medical evidence sufficient to overcome the determination of the IRO.
  • Psychotherapy x 12 sessions and individual psychotherapy x 12 sessions is not health care reasonably required for the compensable injury of (Date of Injury).
  • CONCLUSIONS OF LAW

    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 psychotherapy x 12 sessions and individual psychotherapy x 12 sessions is not health care reasonably required for the compensable injury of (Date of Injury).

    DECISION

    Claimant is not entitled to psychotherapy x 12 sessions and individual psychotherapy x 12 sessions for the compensable injury of (Date of Injury).

    ORDER

    Carrier is not liable for the medical 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 (Carrier), and the name and address of its registered agent for service of process is:

    RICHARD GERGASKO

    6210 EAST HIGHWAY 290

    AUSTIN, TX 78723

    Signed this 9th day of June, 2016

    Carol A. Fougerat
    Hearing Officer

    End of Document
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