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At a Glance:
Title:
453-01-2696-m5
Date:
February 1, 2002
Status:
Retrospective Medical Necessity

453-01-2696-m5

February 1, 2002

DECISION AND ORDER

EBI Companies ("the Carrier") appealed the Findings and Decision of the Texas Worker's Compensation Commission's ("Commission") Medical Review Division ("MRD") after MRD ordered the Carrier to pay Respondent Stuart J. Nathan, Ph.D., $555.00, plus accrued interest, for psychological testing.[1] As stated in the MRD decision, payment was to be made "within 20 days of a final determination that the underlying claim is compensable and/or that the injury extends to and includes the disputed body part, region, area, or medical condition at issue in this matter."

The Carrier argued that the psychological testing was for an injury or condition unrelated to the worker's compensable shoulder injury. Dr. Nathan's representative focused on the fact that the Carrier preauthorized the services.

The decision and order finds a sufficient relationship between the compensable injury and the testing and orders the Carrier to pay Dr. Nathan the sum of $555.00, plus interest.

I. PROCEDURAL HISTORY, JURISDICTION, AND NOTICE

Notice and jurisdiction were not contested; therefore, those issues are addressed only in the findings of fact and conclusions of law.

The hearing before the undersigned State Office of Administrative Hearings (SOAH) administrative law judge was held on December 3, 2001. The Commission's staff member assigned to represented MRD waived her appearance. Attorney Mark H. Sickles represented the Carrier, and Pamela Jones, Dr. Nathan's office manager, represented him.

II. LEGAL STANDARDS

An employee who has sustained a compensable injury is entitled to health care that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment.[2]

A carrier is liable for psychological testing and psychotherapy that is reasonable, necessary, and preauthorized.[3]But the carrier is not liable when the injury is not compensable or the health care was provided for a condition unrelated to the compensable injury.[4]

III. EVIDENCE AND ARGUMENTS

The worker tore ligaments in her right shoulder on_________; her diagnosis was rotator cuff syndrome of shoulder and allied disorders, plus other synovitis and tenosynovitis. She had rotator cuff surgery in May 1999. After she received nine months of treatment, Warwick L. Payne, D.C., her treating doctor, changed the medical report to include cervical discitis.

In a report dated March 15, 2000, the date he referred the worker for testing, Dr. Payne noted the worker's pain in the right cervical area, trapezius, shoulder, forearm, and scapula region. He also noted her crying episode in his office and his concern about psychosocial dysfunction impeding her rehabilitation progress.[5]

The Carrier disputed compensability to the worker's cervical area, and in a district court decision rendered November 9, 2001, prevailed in its dispute.[6] But, according to Ms. Jones, the Carrier preauthorized Dr. Nathan's services. On Dr. Nathan's copy of the March 15, 2000, preauthorization request, Ms. Jones wrote:

Eval

3 hr Testing

Auth #142086

thru 4-17-00

Per Bernie[7]

Ms. Jones said she wrote the note after consulting with the Carrier's preauthorization staff.[8]

On March 21, 2000, Dr. Nathan's associate performed the testing "per Dr. Payne's request to assess [the worker's] level of depression and to obtain information regarding her daughter's suicidal attempts as well as [the worker's] suicidal ideation. Additionally, procedures were administered to determine appropriateness for individual psychological services."[9]

During the psychological exam, the worker's mood and affect reflected sadness, and she mentioned several psychological stressors apart from her injury.[10] Yet, the worker focused significantly on her pain, which she rated an eight to nine out of ten.[11] She completed sentences as follows:

I suffer in pain, in stress.

I hate being in pain.

The only trouble is pain in body and no money coming in.[12]

On the Beck Depression Inventory-II, the worker scored in the severe range of depression.[13] On the pain and impairment relationship scale, she also scored in the extremely elevated range. The reviewer recommended a psychiatric evaluation for assessment of appropriate psychotropic medications, plus psychological therapy and biofeedback, noting:

This indicates that [the worker] will continue to perceive herself as disabled as long as she experiences any subjective discomfort. Without significant change in her beliefs, this would be an extremely poor prognostic sign for recovery of function. Scores in this range normally are associated with poor outcome from traditional medical/surgical interventions, and strongly suggest the possibility of psychological factors contributing to a continued disability without essential changes in this mind set.[14]

. . .

The worker is indicating severe emotional distress in response to her injury and the impact it has had on her life. . . . [H]er current symptoms of depression are directly related to her ongoing pain syndrome.[15]

Based on an audit performed December 8, 2000, the Carrier disputed payment, asserting the psychological disorder was unrelated to the on-the-job injury.[16] Also, the Carrier asserted that it preauthorized medication management on April 13, 2000, not the earlier psychological testing.[17]

Finally, according to the Carrier, the ALJ has no authority to decide the appeal because MRD's order was conditional. Although MRD's order did not specify the disputed body part to which it referred, the decision does mention the Carrier's objection to the cervical area. However, MRD's record does not mention underlying depression.

IV. ANALYSIS

The worker's treating physician referred her for psychological testing because he thought her poor psychological skills may have interfered with physical rehabilitation. The psychological tests indicated a preoccupation with pain that prevented the worker's returning to work. To that end, the test results should help promote her recovery, particularly since the psychological evaluator recommended medication evaluation, and the Carrier subsequently authorized medication management. As the tests demonstrated, the worker had more than one reason for psychological distress, but, certainly, her pain was a dominant factor.

It would be difficult to separate the worker's perception of shoulder versus cervical pain (the compensable versus the noncompensable injury). In Dr. Payne's report written contemporaneously with the psychological-testing referral, he mentions both areas. But, the shoulder injury was included. This link is sufficient to support a decision in Dr. Nathan's favor. Especially based on the worker's perception of her pain, it is reasonable to find that the testing was necessary because of the compensable shoulder injury.

As for preauthorization, the ALJ found no reason to doubt Ms. Jones's credibility, especially in light of the note she made after speaking with the Carrier's representative. In addition, even though Carrier argued that the ALJ could not make a final determination because of the conditional nature of MRD's decision, the SOAH hearing and record included all necessary issues. Even if MRD had denied Dr. Nathan's request because his testing was somehow tied to the cervical injury, the decision would have simply shifted the burden of proof in the SOAH case. The evidence was convincing enough that, in the ALJ's opinion, Dr. Nathan would have prevailed on this record even if the burden of proof rested on him. Thus, a remand to MRD is not necessary, even in light of the district court's decision.

V. FINDINGS OF FACT

  1. EBI Companies ("the Carrier") appealed the Findings and Decision of the Texas Worker's Compensation Commission's ("Commission") Medical Review Division ("MRD") after MRD ordered the Carrier to pay Respondent Stuart J. Nathan, Ph.D., $555.00, plus accrued interest, for psychological testing.
  2. MRD ordered payment to be made "within 20 days of a final determination that the underlying claim is compensable and/or that the injury extends to and includes the disputed body part, region, area, or medical condition at issue in this matter."
  3. The worker tore ligaments in her right shoulder on_________; her diagnosis was rotator cuff syndrome of shoulder and allied disorders, plus other synovitis and tenosynovitis. She had rotator cuff surgery in May 1999.
  4. After the worker received nine months of treatment, Warwick L. Payne, D.C., her treating doctor, changed the medical report to include cervical discitis.
  5. The worker's shoulder injury is compensable, but her cervical injury is not compensable.
  6. Dr. Payne referred the worker for psychological testing because he thought psychosocial disfunction impaired her rehabilitation for her right shoulder, cervical area, trapezius, forearm and scapula region.
  7. The Carrier preauthorized Dr. Nathan's services.
  8. On March 21, 2000, Dr. Nathan's associate performed the testing, including three hours of psychological evaluation at $60 an hour and three units of psychological testing at $125 per unit.
  9. During the psychological exam, the worker focused significantly on her pain, which she rated an 8-9 out of 10. She completed sentences as follows:

I suffer in pain, in stress.

I hate being in pain.

The only trouble is pain in body and no money coming in.

  1. The worker's depression was directly related to her ongoing pain syndrome.
  2. The worker's shoulder injury contributed to her pain syndrome.
  3. The Commission's staff served the Statement of Matters Asserted on the parties on November 21, 2001. The statement contained a statement of the time, place and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular section of the statutes and rules involved; and a short plain statement of the matters asserted.

VI. CONCLUSIONS OF LAW

  1. The Texas Workers' Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers' Compensation Act, Tex. Labor Code Ann.("Code") §413.031 (Vernon 1996).
  2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to Code §413.031(d) and Tex. Gov't Code Ann. ch. 2003 (Vernon 2001).
  3. The notice of hearing conformed to the requirements of Tex. Gov’t Code Ann. §2001.052.
  4. The treatment provided to the Claimant was reasonably required. Code §408.021.
  5. Petitioner should pay Dr. Nathan the sum of $555.00 for psychological testing and evaluation services provided on March 21, 2000. Code §§ 408.021 and 413.031.

ORDER

IT IS, THEREFORE, ORDERED that the Carrier pay Stuart J. Nathan, Ph.D., the sum of $555.00, plus interest.

Signed this 1st day of February, 2002.

SARAH G. RAMOS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. Payment was for three hours of psychological evaluation at $60 an hour and three units of psychological testing at $125 per unit.
  2. Tex. Labor Code Ann. ("Code") §'408.021(a) (Vernon 1996).
  3. 28 Tex. Admin. Code (TAC) §134.600 (b) and (h).
  4. Code §413.014(b); 28 TAC §134.600 (c).
  5. Ex. 3, pp. 19-20.
  6. Ex. 2.
  7. Ex. 3, p. 11.
  8. Ex. 3, p. 8.
  9. Ex. 3, p. 12.
  10. Ex. 3, pp. 15-16.
  11. Ex. 3, p. 13.
  12. Ex. 3, p. 16.
  13. Ex. 3, p. 16.
  14. Ex. 3, p. 16.
  15. Ex. 3, p. 17.
  16. Ex. 3, p. 10.
  17. Ex. 3, p. 23.
End of Document
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