DECISION AND ORDER
Texas Property and Casualty Insurance Guaranty Association (Petitioner) appealed a decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission), preauthorizing home health care for_____ (Respondent). After a review of the evidence, the Administrative Law Judge (ALJ) finds that home health care is not reasonable and necessary medical care for the compensable injury and should not be preauthorized. Petitioner is required to reimburse Respondent for only that care provided in accordance with the preauthorization issued by Reliance Indemnity Company (Reliance) for the time period October 6, 2000 to October 6, 2001.
I. PROCEDURAL HISTORY
Prior to going into receivership, Reliance authorized home care services provided by Respondent’s husband for two hours per day, seven days a week, for a period of one year. Respondent sought and received additional authorization for home health care through dispute resolution with the MRD by order dated April 27, 2001. However, the MRD decision did not specify the number of hours per day nor the length of time that home health care was authorized. The Upper Extremities Treatment Guideline requires a treatment plan to include the frequency of treatment, the expected duration of treatment and a specification of a re-evaluation time frame. Petitioner appealed the MRD decision to the State Office of Administrative Hearings (SOAH).
The issue before the ALJ is whether home health care was reasonable and necessary from April 27, 2001 forward, and if so, how many hours and for what length of time. Petitioner has agreed to pay for home health care in accordance with the preauthorization issued by Reliance for the time period October 6, 2000 to October 6, 2001.
The hearing before SOAH convened on July 31, 2003, with ALJ Tommy L. Broyles presiding. Petitioner appeared through its representative, James M. Loughlin. Respondent appeared but was not represented by counsel. No parties objected to notice or jurisdiction. Evidence was taken and the record closed on August 25, 2003, after the filing of briefs.
II. BACKGROUND FACTS
Respondent was working as a secretary for __________ when she developed pain in her right and left hands in 1991 and 1992, respectively. Respondent was diagnosed with bilateral carpal tunnel syndrome. Over the next 11 years, Respondent saw numerous physicians and had dozens of surgical interventions; none were successful at alleviating her complaints. On October 10, 2001, she was examined by Paola Sandroni, M.D., at Mayo Clinic, who noted an unremarkable examination with normal gait and strength. His evaluation did not support a diagnosis of any type of complex regional pain syndrome such as Reflex Sympathetic Dystrophy (RSD). Instead, he found her to suffer from fibromyalgia with a neuropathic component, although he noted difficulty with a diagnosis because of all her past procedures and medications. One year after her visit to Mayo Clinic, Dr. Zvi Kalisky, M.D., performed an independent medical examination and found that Respondent had declined significantly over the past year. Dr. Kalisky noted marked gait disturbance
and an inability to hold her head up or use her hands. He found no medical or physiological explanation for her sharp deterioration, but re-urged the psychiatric referral made by Dr. Brown in 1999.
Respondent underwent a psychological evaluation in December 2002 and January 2003. During this evaluation, Fancisco I. Perez, Ph.D, ABPP/ABCN, found that Respondent’s problems are primarily psychological and that the symptomatic treatment she has undergone has created an iatrogenic condition reinforcing her beliefs of medical problems. Respondent continues to believe she suffers from RSD, initially triggered by the carpal tunnel syndrome, and argues that the condition has now spread throughout her entire body.
A. Respondent’s Evidence
At the hearing, Respondent presented testimony regarding the extent of her illness, her limited functionality, and the extent to which her husband currently provides home health care. In particular, Respondent testified that she has essentially lost the use of both arms and hands, and she must rely on her husband for most daily activities. Moreover, because of frequent pain she oftentimes goes for days without any sleep, has not gone outside for the past year, and cannot read a book as she has difficulty turning the pages. Respondent further testified that she suffers from blurred vision. Respondent’s husband also testified about her disabilities and the extent to which he is required to assist her in daily activities.
Additionally, Respondent presented the testimony of her treating physicians, Drs. Lee and Alo, as well as that of Psychologist Dr. Loughhead and therapist Karen Griggs.
Andrew K. Lee, M.D.-Orthopedic Surgeon
Dr. Lee testified that multiple surgeries have not helped Respondent at all and that due to post operative complications she developed RSD. He has observed RSD symptoms such as swelling in her arms and legs as well as some stiffness in her joints. Dr. Lee stated that Respondent was discharged from physical therapy due to persistent symptoms without any improvement. The splints she now wears on both arms are for symptomatic relief. He noted that the only thing limiting her left hand is her subjective complaint of pain. His prognosis for her is poor; he believes the RSD is probably a permanent and persistent problem.
Karen Griggs, Occupational Therapist and Certified Hand Therapist
Ms. Griggs testified that Respondent was compliant with instructions and dedicated to doing what the doctors asked of her. She stated that Respondent’s condition is worse now than when she began therapy, ten years ago. While Respondent was in therapy, Ms. Griggs noticed general hypersensitivity, abnormal hair growth, and frequent complaints of severe pain and temperature changes. These conditions occurred more often after Respondent visited the Mayo Clinic. Ms. Griggs also noted that Respondent began to walk stiffly and slouched with rounded shoulders while complaining of back pain. Ms. Griggs opined that Respondent needs assistance with her daily living activities due to pain and cramping. However, she does believe Respondent can eat with her left hand. Because Respondent reached a plateau with therapy, she is no longer receiving treatment.
Steven Loughhead, Ph.D.-Psychologist
Dr. Loughhead worked in the same practice as Dr. Alo and treated Respondent based on Dr. Alo’s diagnosis and referral. The last time he saw Respondent (over a year ago), she was experiencing high pain, in a major depression, and generally overwhelmed by her condition.
Physically, he observed her to shiver, noted changes in skin color and saw facial expressions of pain. While Dr. Loughhead agreed that it is possible for someone to have a physical manifestation of something that is psychogenic for a long period of time, he does not believe that in this case. Instead, he relies on the RSD diagnosis by Dr. Alo.
Dr. Loughhead further testified that Respondent’s pain problem has gotten progressively worse. The medical interventions were not successful, and she reported more pain rather than less by the end of her time with him. Following treatment at the Mayo Clinic, Respondent was becoming more dysfunctionalBunable to comb her hair and had great difficulty doing simple tasks. She was also beginning to display new symptomology, including more confusion. In Dr. Loughhead’s opinion, Respondent needs help in performing the normal activities of daily living.
Dr. Kenneth Alo, M.D., Anesthesiologist
Dr. Alo diagnosed Respondent with RSD. He stated that her right upper extremities are not functional, that she suffers from hot and cold chills, and that she displays areas of abnormal discoloration. In his opinion these are all hallmarks of spreading RSD. Dr. Alo stated that since her September 2001 trip to the Mayo Clinic, her symptoms have gotten worse. In particular, Dr. Alo testified that her difficulty walking is a hard one to explain. In his opinion, Respondent needs assistance with daily functions that require the use of her arms and hands. He described her as a right handed person with little use of her right hand. But, he did note that she uses her left extremity pretty well.
Dr. Alo opined that RSD has centralized and spread to all other parts of Respondent’s body. He is not presently aware of the Mayo Clinic report stating that she does not have RSD, but is sure he reviewed it at the time it was supplied to him. Dr. Alo finds Respondent’s prognosis as guarded to poor.
Respondent argues that the above experts provide compelling evidence that she suffers from centralized RSD and requires assistance with daily living activities. She ask that Petitioner be ordered to pay compensation for home health care services based on the actual hours worked as approved by Dr. Alo. She would like an annual evaluation and renewal of the prescription, also by Dr. Alo.
B. Petitioner’s Evidence
Petitioner argues that Respondent is capable of performing the services for which preauthorization is sought. Petitioner submits that Respondent can perform fine motor functions with both hands, that there is nothing wrong at all with her left hand, and that there is no known medical condition that would start as a wrist injury and lead to a gait disturbance and inability to hold up one’s head. Instead, Petitioner maintains Respondent’s presentation and condition are largely psychological in nature. Petitioner believes Respondent has developed physical symptoms and uses symptom magnification to keep from addressing problematic psychological issues. And, Petitioner asserts that allowing Respondent’s husband to perform her daily activities will only worsen her condition and reinforce her pain behaviors. In support of its position, Petitioner offered the testimony of Drs. Kalisky and Perez.
Zvi Kalisky, M.D.
Dr. Kalisky examined Respondent on October 31, 2002. He determined that while Respondent has a pain disorder, chronic, severe and of obscure origin, she does not suffer from RSD. Dr. Kalisky noted that Respondent did not exhibit the objective findings of RSD during his examination of her but instead had subjective complaints of pain and hypersensitivity. After reviewing her medical records, he also noted several additional facts which undermines Dr. Alo’s diagnosis of RSD:
- Dr. Hildreth and Dr. Masson, two hand surgeons who examined Respondent on separate occasions, did not believe she had RSD;
- Quantitative sudomotor axon reflex test (QSART) and three-phase bone scan did not show findings consistent with RSD;
- Dr. Sandroni, a neurologist at Mayo Clinic, found Respondent to have a completely normal neurological examination with normal strength and gait. He noted that she did not have any tropic changes, vasomoter or sudomoter changes in her limbs but was more hypersensitive to heat than cold, unusual for RSD. Dr. Sandroni did not find anything to confirm a diagnosis of RSD, but instead, opined that Respondent did not have RSD at the time of his evaluation in October 2001; and
- Respondent failed to respond to multiple stellate ganglion blocks, which is unusual for RSD patients.
At the time Dr. Sandroni examined Respondent, he noted she had a normal gait. This puzzled Dr. Kalisky who examined her approximately one year later and found marked gait disturbance and an inability to hold her head up or use her hands. Based on his examination and review of her record, Dr. Kalisky suspected Respondent might be suffering from pain disorder associated with psychological factors. Noting that Dr. Brown had recommended a psychiatric referral in 1999, which never occurred, he recommended an independent psychological evaluation to determine the extent of psychological factors impacting Respondent’s condition. Dr. Kalisky also found no objective reasons to indicate that Respondent could not use her hands in functional activities.
Franciso Perez, Ph.D
Dr. Perez reviewed Respondent’s medical history and conducted a psychological evaluation on December 19, 2002 and January 15, 2003. He noted that her records indicate she was confused by Dr. Brown’s past referral to a psychiatrist and that Dr. Brown had suggested she was exaggerating her pain and overusing her medications. Later, Dr. Perez determined that Respondent had little insight into her difficulties, was self-centered, rigid and inflexible in her approach to problem solving, and could be expected to resist any psychological evaluation. He found this consistent with her repeated refusal to see a psychiatrist for a medical evaluation, recommended by several treating professionals, due to concerns that her complaints might be considered psychiatric rather than physical.
Noteworthy, from Dr. Perez’s initial evaluation of Respondent, is that she first presented herself with stooped posture and gazed at the floor as she spoke. As the discussions continued, Dr. Perez commented that certain topics brought about responses that enabled her to become quite animated and talkative. During these discussions, Dr. Perez observed that Respondent’s posture and eye contact improved and her speech was coherent, with normal volume and tone. Dr. Perez found Respondent’s affect to range from cheerful, affable, and upbeat to complaining, down, and depressed, with the fluctuations occasionally occurring in rapid succession. He noted that she did not appear motivated to participate in the evaluation and that she insisted it was impossible for her to darken in the correct circle in response to the questions due to her constant pain in both arms. According to Dr. Perez, Respondent requested the questionnaires be read to her and complained that she needed them to be interpreted, despite the fact that they were written for comprehension by people with an eighth grade education. After six hours at the first session, Respondent had not completed the first questionnaire.
After she canceled one session, Dr. Perez indicated that Respondent showed up at the next in a wheelchair. He found her appearance was disheveled, and she kept her head down, moaning and groaning. Respondent had a difficult time understanding questions and when touched on her shoulder , Dr. Perez asserts she complained bitterly about the profound pain. In Dr. Perez’s opinion, Respondent’s pain behaviors were clearly out of proportion to her physical status depicted in the medical records he reviewed. Dr. Perez further contended that Respondent was very focused on blaming RSD for her difficulties.
The personality functioning, assessed by Dr. Perez with the MMPI-2 test, suggested Respondent tends to complain of numerous vague physical and psychological symptoms, indicative of symptom magnification. He suggested she is difficult to treat medically and should receive treatment for only those symptoms that can be objectively determined. Dr. Perez found her to be engaged in manipulative behaviors, meeting her needs for attention and emotional support by
complaining of various symptoms. He continued that she has developed physical symptoms and utilized symptom magnification in order to keep from addressing problematic psychological issues.
Specifically, Dr. Perez stated, immature and demanding, she willingly becomes dependent when her needs are not met and attempts to manipulate others in an effort to get them to comply with her wishes. According to Dr. Perez, this behavior pattern was demonstrated during his evaluation of her and is also well documented in her medical records he reviewed.
Dr. Perez concluded that symptomatic medical treatment will continue to reinforce Respondent’s pain behaviors. He testified that past symptomatic treatment has created an iatrogenic condition, reinforcing Respondent’s belief that her problems are entirely medical and contributing to her avoidance of her primarily psychological issues. Dr. Perez concluded that it is not medically reasonable nor in Respondent’s best interest to have home health care.
For these reasons, Petitioner urges that no additional preauthorization be granted beyond the two hours per day that was authorized by Reliance and ended on October 6, 2001.
C. ALJ Analysis
After reviewing the evidentiary record, the ALJ finds the weight of medical evidence supports the conclusion that home health care is not reasonable and necessary treatment for Respondent’s symptoms and should not be authorized beyond the two hours preauthorized by Reliance from October 6, 2000 through October 6, 2001. Instead, the ALJ finds Respondent’s symptoms are attributable to a psychological condition for which home health care would be counter productive.
The ALJ is not persuaded by the medical opinion of Dr. Alo that Respondent suffers from RSD, a diagnosis equally accepted and rejected by the other physicians she has seen. The most recent and thorough assessment of Respondent’s medical condition was conducted by Dr. Sandroni, a neurologist at Mayo Clinic. After conducting various diagnostic tests, Dr. Sandroni determined
that there was no evidence of sympathetic pain nor RSD at the time of his assessment. Having ruled out RSD within all medical probability, Dr. Sandroni prescribed a very aggressive rehabilitation program.
However, the evidence in this hearing reveals Respondent has already participated in a substantial rehabilitation program with little or no success. This fact, coupled with Dr. Sandroni’s findings regarding RSD, suggested that a reassessment of Respondent’s condition with an overview of the last 10-11 years of symptoms and treatments should be performed to determine the cause of Respondent’s condition. Dr. Kalisky conducted such a review and recommended Respondent undergo a psychological evaluation to determine the extent of psychological factors, if any. He also noted that Dr. Brown recommended psychiatric referral in 1999, but that it was not accomplished. Reluctantly and under administrative order, Respondent submitted to the psychological evaluation, which was performed by Dr. Perez.
It is unfortunate that a psychological evaluation was not performed sooner, because Dr. Perez discovered that Respondent’s primary problems are psychological. This is buttressed by the lack of success obtained from the medical intervention over the past ten years, including 35 surgeries and a regimen of medications, currently numbered at 15. It is also supported by other evidence in the record. While sympathetic to Respondent’s condition, the ALJ must point out that she clearly demonstrates symptom magnification. A review of the video tape taken in 2001 suggests she was capable of performing most daily activities and certainly capable of taking care of herself at that time. This clearly contradicts the impression she gave Dr. Alo who wrote her a script for home health care on October 6, 2000.
Furthermore, the ALJ finds it interesting that after the negative RSD findings at Mayo Clinic, Respondent’s symptoms increased dramatically. Most notably, she began walking in a slumped fashion, apparently lost the ability to raise her head, and spoke in a soft and oftentimes confused manner. From a medical perspective, even Dr. Alo found her difficulty with walking hard to explain. However, the psychological evaluation provided an explanation: symptom magnification. As noted by Dr. Perez in his report, and observed by the ALJ at the hearing, Respondent’s control of her head, general coherent speech, and eye contact return quickly when she directs the conversation. The record suggests that as evidence mounted against the RSD diagnosis, Respondent increased her symptom magnification in order to manipulate others in an effort to get them to comply with her wishes. This behavior pattern was noted by Dr. Perez in his report.
Finally, the ALJ notes that even Dr. Alo and Ms. Griggs admitted that Respondent could use her left arm and hand. The record further establishes that she should be encouraged to perform as many tasks as is possible. As good intentioned as Respondent’s husband may be, the psychological evaluation concludes that his performing activities for Respondent will only reinforce her psychological pain behaviors. The evidence in this case establishes that authorization of home health care is precisely the wrong prescription for Respondent
This is a difficult case. However, the ALJ notes that with the diagnosis of the psychological issues as primary, Respondent is offered some hope for recovery. This is substantially different than the prognosis offered by Drs. Alo and Lee, who appear resigned to Respondent’s current dysfunctional condition and house bound status. This observation is not meant as derogatory to the two doctors; rather, it is in recognition of the fact that they have no medical answers to her situation.
It should be noted that the ALJ does not discount the physical symptoms that Respondent claims to experience. But instead, he is persuaded that such physical symptoms have a psychological root. As such, the ALJ cannot find that the preponderance of the evidence supports the conclusion that Respondent’s underlying compensable injury has resulted in her symptoms nor that home health care is reasonable or necessary medical care. For this reason, Petitioner is not required to reimburse Respondent for any home health care beyond that preauthorized by Reliance for the time period October 6, 2000 to October 6, 2001.
IV. FINDINGS OF FACT
- Claimant _____ (Respondent) suffered compensable injuries to her right and then left wrists on ________ and_________, respectively. At the time of Respondent’s injuries, Reliance National Indemnity Company (Reliance) was the workers’ compensation insurance carrier for Respondent’s employer.
- On October 5, 2001, Reliance was designated as an impaired insurer. Thereafter, Texas Property and Casualty Insurance Guaranty Association (Petitioner) stepped in to handle the claim.
- Prior to going into receivership, Reliance preauthorized home health care services to be provided by Respondent’s husband at two hours per day, seven days a week from October 6, 2000 to October 6, 2001.
- Respondent appealed Reliance’s limited authorization for home health care services to the Medical Review Division (MRD).
- MRD issued its order on April 27, 2001, stating that the amount preauthorized by Reliance was insufficient; however, the MRD decision did not specify the number of hours per day or the length of time for which home health care services should be authorized.
- On May 8, 2001, Petitioner appealed the MRD decision to the State Office of Administrative Hearings.
- Notice of the hearing in this case was mailed to the parties on May 31, 2001. The notice 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 sections of the statutes and rules involved; and a short, plain statement of the matters asserted. In the notice, the Commission’s staff indicated that it would not participate in the hearing. After several continuances, subsequent notice of the date and time of hearing was issued by the Administrative Law Judge (ALJ) on April 25, 2003.
- On July 31, 2003, a hearing at SOAH convened before Tommy L. Broyles, ALJ. Petitioner appeared through its representative, James M. Loughlin. Respondent appeared but was not represented by counsel. Evidence was taken and after the filing of briefs, the record closed on August 25, 2003.
- Since the compensable injury, Respondent has seen numerous physicians, had dozens of surgical interventions, and has taken as many as 15 drugs at any one time.
- None of the physicians or medical treatments have been successful in treating Respondent’s symptoms, which have gotten progressively worse.
- Dr. Brown made a psychiatric referral in 1999, but Respondent did not follow up on this referral.
- Dr. Sandroni of Mayo Clinic examined Respondent and performed two tests to determine if she had RSD.
- Respondent does not have RSD:
A.Dr. Sandroni did not find anything to confirm the RSD diagnosis but instead found that Respondent did not have RSD at the time of the examination;
- Quantitative sudomotor axon reflex test and three-phase bone scan did not show findings consistent with RSD; Respondent did not respond to multiple stellate ganglion blocks, which is unusual for a patient with RSD;
- Dr. Hildreth and Dr. Masson, two hand surgeons who examined Respondent on separate occasions, did not find that she had RSD;
- Dr. Kalisky examined Respondent on October 31, 2002 and determined that she does not have RSD.
- In January 2003, Dr. Perez conducted a psychological evaluation of Respondent.
- Dr. Perez determined during his evaluation that Respondent’s symptoms are primarily psychological.
- Future medical treatment for Respondent should be limited to only those symptoms that can be objectively determined.
- As found during the psychological evaluation, symptomatic medical treatment will only continue to reinforce Respondent’s pain behaviors.
- Past symptomatic treatment has created an iatrogenic condition and has reinforced Respondent’s belief that her problems are entirely medical and contribute to her avoidance of the primarily psychological issues.
- Respondent has demonstrated symptom magnification:
A. A 2001 video tape revealed that Respondent was capable of performing most daily activities and was capable of taking care of herself.
- Dr. Alo noted that her difficulty walking after her visit to the Mayo clinic was difficult to explain;
- Respondent appeared to lose control of her head, avoid eye contact, and have difficulty understanding questions for much of the hearing but her general condition improved significantly when she directed the conversation;
- Dr. Alo and Respondent’s therapist, Ms. Griggs, found that Respondent could use her left arm and hand;
- Dr. Perez determined Respondent demonstrated symptom magnification during his examination of her; and
- The psychiatric evaluation suggested Respondent used symptom magnification to manipulate others.
- Allowing Respondent’s husband to perform daily household activities for her will only reinforce her psychological disorder and is precisely the wrong prescription for her.
- Home health care is not reasonable or necessary medical care for Respondent’s compensable injury.
V. CONCLUSIONS OF LAW
- The Commission has jurisdiction over this matter pursuant to Tex. Lab. Code ' 413.031.
- SOAH has jurisdiction over this proceeding pursuant to Tex. Lab. Code Ann. '413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
- Petitioner timely filed his request for a hearing, as specified in 28 Tex. Admin. Code ' 148.3.
- Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov’t Code '2001.052 and 28 Tex. Admin. Code ' 148.4.
- The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’ t Code Ann. ch. 2001 and Tex. Admin. Code '' 133.305, 133.308, and 148.1et seq.
- Petitioner, as the party appealing, had the burden of proof at the hearing pursuant to Tex. Lab. Code Ann. ' 413.031 and 28 Tex. Admin. Code '' 148.21(h) and 133.308(v).
- Under Tex. Lab. Code ' 408.021(a), 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.
- Under 28 Tex. Admin. Code ' 134.600(h)(12), home health care must be preauthorized, dependent on a showing of medical necessity.
- The requested home health care is not medically necessary and should not be preauthorized. Tex. Lab. Code Ann. ' 413.014.
- Based on the above Findings of Fact and Conclusions of Law, Respondent is not entitled to home health care and the request for preauthorization is appropriately denied.
IT IS, THEREFORE, ORDERED that home health care is not medically necessary, and preauthorization for such is denied beyond that authorized by Reliance (two hours per day, seven days a week) for the time period October 6, 2000 to October 6, 2001.
Signed October 20, 2003.
TOMMY L. BROYLES
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- RSD is a debilitating disease where the sympathetic nervous system reacts to an injury and becomes overactive causing a variety of symptoms.↑
- Fibromyalgia is a condition that causes pain in the muscles, joints, ligaments and tendons.↑
- Dr. Brown is a hand surgeon who was seen for a second opinion. His full name was not provided in Dr. Kalisky's report.↑
- American Board of Professional Psychology; Diplomate in Clinical Neuropsychology.↑
- Induced in a patient by a physician’s words or actions.↑
- Dr. Perez is board-certified by the American Board of Professional Psychology and the American Board of Clinical Psychology. He is also board-certified in pain management.↑
- The medication currently taken by Respondent include: Baclofen, Benadryl, Catapres, Claritin, Dulcolax, Elavil, Elocon lotion, Lamictal, Lidoderm patch, Peri-Colace, Topamax, Ultram, Valium, Vicodin, and Zanaflex.↑
- Respondent was unaware of the taping when it occurred. The video tape shows her using her arms and hands to discipline a dog, to carry a grocery list, and to move her hair.↑
- Ex. P-7, p. 8.↑