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At a Glance:
Title:
17017-nnr
Date:
December 13, 2017

17017-nnr

December 13, 2017

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 Administrative Law Judge determines that Claimant is not entitled to six sessions of individual psychotherapy for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

On December 6, 2017, Jeff Carothers, a Division administrative law judge, 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 Claimant is not entitled to six sessions of individual psychotherapy 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 MM, attorney.

DISCUSSION

Carrier denied Claimant’s request for six sessions of individual psychotherapy and Claimant sought review by an IRO. The IRO reviewer, identified as an individual licensed by the Texas State Board of Examiners of Psychologists, upheld the Carrier’s denial. The IRO reviewer referred to the recommendations in the Official Disability Guidelines, Pain Chapter, and specifically noted that up to 13-20 sessions over 7-20 weeks of psychological treatment was appropriate if progress was being made and documented. The IRO reviewer noted that Claimant had undergone six previous individual psychotherapy sessions and 13 sessions of behavioral intervention, and there was very little objective documentation regarding Claimant’s response to that treatment. The IRO reviewer also noted that based upon a treatment progress report on July 5, 2017, Claimant’s previous symptoms of anxiety and sleep disturbance had increased and her depression symptoms decreased by one point based on inventories taken. The IRO reviewer concluded that given the fact that Claimant’s symptoms had increased despite previously provided individual psychotherapy and behavioral intervention, continuation of this treatment would not be appropriate or supported by the Official Disability Guidelines.

Texas Labor Code §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 §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 §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. See Texas Labor Code §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 §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."

For the requested psychological treatment, the ODG provides:

ODG Recommendations for Psychological Treatment (Pain Chapter):

Recommended for appropriately identified patients during treatment for chronic pain.

See the Mental Illness & Stress Chapter for detailed information and references.

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.

Psychological intervention for chronic pain includes setting goals, determining appropriateness of treatment, conceptualizing a patient’s pain beliefs and coping styles, assessing psychological and cognitive function, and addressing co-morbid mood disorders (such as depression, anxiety, panic disorder, and posttraumatic stress disorder). Cognitive behavioral therapy and self-regulatory treatments have been found to be particularly effective. Psychological treatment incorporated into pain treatment has been found to have a positive short-term effect on pain interference and long-term effect on return to work. The following “stepped-care” approach to pain management that involves psychological intervention has been suggested:

Step 1: Identify and address specific concerns about pain and enhance interventions that emphasize self-management. The role of the psychologist at this point includes education and training of pain care providers in how to screen for patients that may need early psychological intervention.

Step 2: Identify patients who continue to experience pain and disability after the usual time of recovery. At this point a consultation with a psychologist allows for screening, assessment of goals, and further treatment options, including brief individual or group therapy.

Step 3: Pain is sustained in spite of continued therapy (including the above psychological care). Intensive care may be required from mental health professions allowing for a multidisciplinary treatment approach. See Behavioral interventions (CBT). See also Multi-disciplinary pain programs. (Otis, 2006) (Townsend, 2006) (Kerns, 2005) (Flor, 1992) (Morley, 1999) (Ostelo, 2005) See also Psychosocial adjunctive methods in the Mental Illness & Stress Chapter. Several recent reviews support the assertion of efficacy of cognitive-behavioural therapy (CBT) in the treatment of pain, especially chronic back pain (CBP). (Kröner-Herwig, 2009)

Claimant presented her testimony and medical records, including a treatment progress report and “Response to Denial Letter” written by AZ, M.S., LPC-S, in support of her position that the preponderance of the evidence is contrary to the decision of the IRO. However, upon review of all the evidence presented, the Administrative Law Judge finds that Claimant has not met her burden to overcome the decision of the IRO by a preponderance of evidence-based medical evidence. The IRO reviewer determined that the proposed treatment is not medically necessary under the ODG because Claimant has not demonstrated any progress from prior treatment. Claimant has not presented any probative medical evidence establishing that she has met the ODG requirements for the proposed treatment. While the evidence presented by Claimant shows that Claimant’s providers believed the proposed treatment to be necessary to treat Claimant’s symptoms of depression, anxiety, and chronic pain, the evidence does not establish this proposed care is consistent with the ODG or that there is other evidence-based medicine that should be considered over the ODG that makes the proposed treatment medically necessary. Claimant has also not shown that the ODG and other evidence-based medicine is not on point and the proposed treatment meets generally accepted standards of medical practice recognized in the medical community. Therefore, it is determined that Claimant is not entitled to the six sessions of individual psychotherapy for the compensable injury of (Date of Injury).

The Administrative Law Judge 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:
    1. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
    2. On (Date of Injury), Claimant was the employee of (Employer), Employer.
    3. On (Date of Injury), Employer provided workers’ compensation insurance coverage with Ace American Insurance Company, Carrier.
    4. Claimant sustained a compensable injury on (Date of Injury).
    5. The IRO determined that six sessions of individual psychotherapy are not medically necessary for the compensable injury of (Date of Injury).
  2. 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 Administrative Law Judge’s Exhibit Number 2.
  3. Claimant does not meet the requirements of the ODG for six sessions of individual psychotherapy.
  4. Six sessions of individual psychotherapy 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 of the Texas Department of Insurance, Division of Workers’ Compensation.
  3. The preponderance of the evidence is not contrary to the decision of the IRO that six sessions of individual psychotherapy is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

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

ORDER

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 ACE AMERICAN INSURANCE COMPANY, and the name and address of its registered agent for service of process is:

CT CORPORATION SYSTEM

1999 BRYAN ST., #900

DALLAS, TX 75201-3136

Signed this 13th day of December, 2017.

Jeff Carothers
Administrative Law Judge

End of Document
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