DECISION AND ORDER
Hartford Underwriters Insurance Company (Carrier) appealed the findings of the Texas Workers’ Compensation Commissions Medical Review Division (MRD), which approved Dr. Brad Burden’s (Provider) request for preauthorization for thirty session of chronic pain management. This decision agrees with the MRD and authorizes _________(Claimant) to receive thirty sessions of chronic pain management.
I. PROCEDURAL HISTORY, NOTICE AND JURISDICTION
A hearing in this matter was convened on November 20, 2001, at the Stephen F. Austin Building, 1700 North Congress Avenue, Austin, Texas. Hartford Underwriters Insurance Company (Carrier) was represented by its attorney, Ms. Jane Stone. Dr. Brad Burdin (Provider) was represented by Allen Craddock. The Texas Workers’ Compensation Commission (Commission) submitted a written waiver of appearance. Suzanne Marshall, an Administrative Law Judge (ALJ) with the State Office of Administrative Hearings, presided. The Provider and two other witnesses appeared via telephone. The record closed at the conclusion of the hearing on November 20, 2001.
There are no contested issues concerning jurisdiction or notice in this proceeding. Therefore, those matters are set out in the findings of fact and conclusions of law without further discussion here.
II. FACTUAL BACKGROUND
The Claimant, a data entry clerk, reported a repetitive stress injury on________________. The Claimant began treatment for carpal tunnel syndrome with Dr. Terry Westfield, who performed carpal tunnel surgery on the left hand in November of 1995 and a carpal tunnel release on her right hand in April of 1996. Claimant received post-operative physical therapy for several months and was referred to Dr. Carrasco of the Texas Pain Institute for ongoing pain to her hands, as well as to the neck and shoulder.
After the carpal tunnel surgeries and post-operative physical therapy, Claimant’s hands had swelling, tingling, discoloration, were cold, and there was decreased range of motion. She was also diagnosed by Dr. Carrasco as having reflex sympathetic dystrophy (RSD). While under the care of Dr. Carrasco , the Claimant received treatment including Botox injections, TENS, heat treatment, three stellate ganglion blocks, physical therapy, medications, including Paxil, for depression, and some individual counseling. She was treated by Dr. Carrasco for approximately five years. Claimant also suffers from a number of other medical conditions and received treatment for these conditions from other physicians throughout the relevant time frame.
Dr. Westfield referred her to the Provider on April 27, 2001, after Claimant requested a referral to another physician besides Dr. Carrasco to treat her for ongoing pain The Provider performed an initial evaluation on April 27, 2001, and a re-evaluation on May 18, 2001. Claimant also received a psychological evaluation on May 5, 2001, by a psychologist who is associated with Provider. The psychologist recommended that Claimant receive chronic pain management treatment; the Provider concurred.
On May 18, 2001, the Provider requested preauthorization to provide the Claimant with thirty sessions of a chronic pain management program. The request was denied by Carrier on May 24, 2001. Another request was resubmitted to Carrier on May 24, 2001; this was denied as well on June 1, 2001. The Carrier disputes the necessity of this treatment. The MRD found that the documentation submitted is sufficient to substantiate medical necessity of the proposed treatment, consistent with the Mental Health Treatment Guidelines. The Claimant appealed the decision. This appeal concerns the denial to preauthorize thirty sessions of chronic pain management.
III. LEGAL STANDARDS
Entitlement to Medical Benefits
Workers’ compensation insurance covers all medically necessary health care, which includes all reasonable and necessary medical aid, examinations, treatments, diagnoses, evaluations and services. Texas Workers Compensation Act (Act), Tex. Lab. Code Ann. ' 401.011 (19)(A) (Vernon Supp. 2000). Section 408.021 of the Act provides:
- (2)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. The employee is specifically entitled to health care that:
- (1)cures or relieves the effects naturally resulting from the compensable injury;
- (1)promotes recovery; or
- (1)enhances the ability of the employee to return to or retain employment.
Health care treatments and services, including pain clinics, are among certain categories of health care identified by the Commission that require preauthorization; these are dependent upon a prospective showing of medical necessity. The Carrier has the burden of proof in this instance.
Upper Extremities Treatment Guidelines
The Upper Extremity Treatment Guideline (UETG), 28 Tex. Admin. Code. ' 134.1002 (TAC) governs reimbursement for the treatment of injuries to the upper extremities, including repetitive stress injuries to the wrists and hands.
Mental Health Treatment Guidelines
The Mental Health Treatment Guideline (MHTG), 28 TAC ' 134.1000 (TAC) sets forth the criteria to be met for referral to chronic pain management programs. As noted in the MHTG, the majority of patients requiring referral for chronic pain can be adequately treated as outpatients. Id. at 134.1000(i). Criteria for referral to a chronic pain management outpatient treatment program are:
- a Global Assessment of Functioning (GAF) rating of 40-90 with any psychosocial stressor (PSS) rating;
- the patient has not responded to primary or secondary stages of outpatient physical therapy and/or mental health treatment in a reasonable period of time (e.g., within four to six months); and/or
- the patient exhibits pain behavior, functional limitations, and/or mental/emtotional dysfunction, which are disruptive to their activities of daily living, and two or more of the following:
(I) the patient is facing significant, permanent loss of functioning that requires major physical, vocation, and psychological readjustment;
(II) diagnostic findings are insufficient to explain the pain or further invasive medical treatment is not an option;
(III) pain has persisted beyond the expected tissue healing time;
(IV) the patient has chronic pain linked to adverse interpersonal relationships which interfere with rehabilitation;
(V) the patient has physical/mental impairment greater than expected on the basis of the diagnosed medical condition and treatment or differential diagnosis and treatment required in a more structured/supervised setting;
(VI) documented history of inappropriate and excessive use of healthcare services by the injured worker such as frequent emergency room visits;
(VII) documented history of inappropriate and excessive use of narcotic sedative/hypnotic medications, or alcohol;
(VIII) the patient continues to express unrealistic expectations regarding outcome of medical/psychiatric intervention in relief of their own symptomatology; or
(IX) referral to such is also appropriate earlier in treatment in order to prevent later development of an excessively disabled lifestyle role if the patient is judged to be at risk for developing such problems.
Id. at 134.1001(i)(3)(B).
IV. THE PARTIES’ POSITIONS
The Carrier maintains that the requested treatment is not medically necessary. According to the Carrier, Claimant had been seeing Dr. Carrasco for over five years and received treatment from him that gave her relief from pain. Under these circumstances, the Carrier contends the chronic pain management treatment program should not be approved because Provider has not adequately documented the need for the treatment, including objective and measurable functional gains. Carrier also contends that the pain Claimant experiences is due to other medical conditions and is not a result of either the carpal tunnel syndrome or reflex sympathetic dystrophy (RSD).
The Carrier called Dr. Samuel Bierner as its only witness. Dr. Bierner practices physical medicine and rehabilitation through the US MedGroup in Dallas, Texas. He received his medical degree in 1983 from the University of Texas Medical School at San Antonio and a Master’s degree in Rehabilitation Medicine in 1988 from the University of Washington Graduate School. He is familiar with nerve injuries and with patients who suffer from RSD (reflex sympathetic dystrophy). Dr. Bierner reviewed Claimant’s medical records but has not examined Claimant.
Dr. Bierner testified that he did not believe that Claimant’s pain is a result of the carpal tunnel surgeries or RSD (reflex sympathetic dystrophy) and that the chronic pain management treatment is neither medically reasonable nor necessary. Dr. Bierner testified that Claimant appears to suffer from a number of other medical conditions, among them lupus, diabetes, and possibly rheumatological arthritis, scleroderma, and Raynaud’s disease or collagen vascular disease, which could contribute to the Claimant’s pain and symptoms.
Dr. Bierner testified that a patient would be referred to a chronic pain management program if psychological issues were identified which contributed to the pain problem and if it is believed to be functionally significant, i.e., the patient can reach a higher level of functionality and return to work force. Dr. Bierner testified that it was difficult to determine whether Claimant was objectively making progress or not since her functional improvements were not documented in the medical records.
Dr. Bierner testified that outpatient psychological intervention combined with medications is a very cost effective treatment for ongoing pain. He stated that Claimant’s claims that the chronic pain management treatment program had helped her dramatically indicated that she was having a placebo response to the treatment, i.e., attention from the people in the program provided emotional satisfaction to her. According to Dr. Bierner, the progress notes from the chronic pain management program do not provide much information about the actual pain level of Claimant.
Dr. Bierner was critical of Provider’s treatment of Claimant’s past medical history in his evaluation since Dr. Bierner believes that other medical conditions contribute to Claimant’s pain. He also testified that Provider’s justification was inadequate to support referral to a chronic pain management program since Provider ignored the issue of whether Claimant’s pain was due to the original injury and instead, lumped in a lot of other symptoms and diagnoses to support the chronic pain management treatment.
According to Dr. Bierner, the Claimant had a slow recovery after the first carpal tunnel operation, although the medical records indicate that her left hand had improved considerably. Carrier’s Exhibit 1, p. 024. After reviewing Claimant’s medical records, Dr. Bierner concluded that the carpal tunnel problems were resolved through the surgeries because the Claimant did not continue to report pain related to the median nerve to the hand, but rather, pain in her joints and tissues. Dr. Bierner believes that Claimant developed arthritis or a connective tissues disease and that it was a matter of unfortunate timing that it appeared after the carpal tunnel surgeries. According to Dr. Bierner, there must be something else going on to affect the range of motion in Claimant’s hands because the carpal tunnel surgeries improved Claimant’s condition.
Reflex sympathetic dystrophy.
Dr. Bierner testified that Claimant’s medical records do not support a diagnosis of RSD because the patient had a period of improvement in her hands on each occasion after treatment by Dr. Carrasco, and the numbness sensation decreased after Claimant’s surgeries. Dr. Bierner testified that it is most likely that Claimant suffers from arthritis or a connective tissue disease because of the Claimant’s stiffness of fingers and loss of range of motion. Although Dr. Carrasco links Claimant’s arms, neck and shoulder with one another, Dr. Bierner stated that there is no physiological reason for the linkage.
Other medical conditions.
Dr. Bierner discussed other possible medical conditions of Claimant which could be a cause of her pain. Scleroderma involves the tissues under the skin in which the skin gets tight, loses flexibility, and becomes stiff and often painful.
Dr. Bierner testified that hypothyroidism can cause depression, swollen joints, and can effect the heart and organ system.
In Raynaud’s disease, there is a disorder of the blood vessels to the hands and sometimes feet. The fingers can change colors and the blood flow changes. The condition is painful and can be associated with environmental conditions or diseases such as rheumatoid arthritis or lupus hematosis. According to Dr. Bierner, Raynaud’s disease can be confused with reflex sympathetic dystrophy.
The medical records contained evidence that Claimant was later diagnosed with schleroderma and hypothyroidism. According to Dr. Bierner, these conditions, along with rheumatoid arthritis and/or a connective tissue disease, were a more likely explanation of Claimant’s symptoms.
The Provider believes that a chronic pain management program is reasonable and necessary to address the ongoing pain and results from the Claimant’s carpal tunnel injury in both hands and from RSD. Provider contends that the program will help increase the Claimant’s pain tolerance endurance. The Provider contends that the Claimant has a fairly long history of complaints with pain, stiffness, and swelling in her hands following her carpal tunnel surgeries in 1995 and 1996 which continue to the present time. Despite numerous treatments, Claimant remains depressed and in fairly constant pain which can be alleviated at times but returns. She has residual loss of range of motion and poor vascular supply to both hands and forearm regions. Although treatment with Dr. Carrasco for five years resulted in some improvement, its effects were not long-lasting and Claimant requested a referral to another physician to seek more long-term benefits.
Provider claims that a chronic pain management program will assist the Claimant in learning how to manage chronic pain in a way that will relieve the effects occurring from the carpal tunnel injury and the RSD and that will result in improved quality of life for Claimant.
The Provider, Dr. Burdin, testified as a witness. Dr. Burdin is a Board certified Chiropractic Neurologist who is employed by the Neuromuscular Institute of Texas in San Antonio, Texas. The Institute is a multi-disciplinary facility. Dr. Burdin testified that he performed an evaluation of Claimant to consider her appropriateness for participation in a chronic pain management program upon referral from Dr. Westfield.
Upon evluation of Claimant, Dr. Burdin observed that her hands were cyanotic in appearance and cold to the touch, with a dense and full feeling in the fingers bilaterally. The Claimant was unable to make a full fist with either hand and had restriction while flexing her fingers. She had a weak grip, due to the stiffness and swelling in her hands. Dr. Burdin testified that the Claimant’s daughter had to complete the paperwork for Claimant during the evaluation because Claimant was able to hold only a very fat pen which is about an inch and a half in diameter. Dr. Burdin described Claimant as suffering from a chronic pain syndrome secondary to the effects of postoperative carpal tunnel syndrome, swelling, and the development of a complex regional pain syndrome condition. Dr. Burdin stated in his evaluation that Claimant’s condition was related by cause to her work activities as a data entry clerk. Dr. Burdin testified that Acomplex regional pain syndrome is the newer medical terminology for RSD.
Dr. Burdin also testified that Claimant had a high level of pain. Dr. Burdin stated that he had not reviewed all of Claimant’s records and that he relied upon the diagnosis made previously by her other treating physicians.
Dr. Burdin stated that the goal of a chronic pain management program is to teach the patient ways to cope with the pain through such methods as exercises, rehabilitation, biofeedback or hypnosis. At the time of the hearing, Claimant had completed the chronic pain management program. Dr. Burdin testified that her affect is better and that Claimant is feeling better as a result of the program. He noted that the previous treatments of Claimant, including two carpal tunnel surgeries, post-operative rehabilitation therapy, and injection therapy (including Botox) was not completely successful and that Claimant’s condition grew progressively worse. Dr. Burdin referred Claimant for a psychological evaluation by Dr. Lin Sutton who recommended the chronic pain management program for her.
Dr. Sutton’s evaluation concluded that Claimant met the criteria for a chronic pain management program because Claimant has a constantly high complaint of pain that has persisted longer than the typical time of healing and has felt minimal, brief relief from pain with customary treatment. Dr. Sutton recommended thirty sessions of six hours each in a chronic pain management program to include biofeedback, individual and group psychotherapy, hypnosis, occupational therapy, physical rehabilitation and psycho-educational groups to educate her on her injury, including physiological changes in times of increased pain levels and stressful events in order to better deal with her pain and related symptoms. Dr. Sutton stated that Claimant’s prognosis was highly favorable if she participated in the program.
_______, Claimant, also testified as a witness. She testified that the chronic pain management program taught her how to better cope with her pain. She learned techniques on how to improve her relaxation, nutrition, biofeedback, and breathing techniques. She testified that the injections she had previously received were effective but did not last long_______ described the pain she felt as a swelling, stabbing, sharp pain with some numbness from her hands to forearms. She rated her overall pain level as an 8 on a scale of 1 to 10 before the chronic pain management program and a 5 after completing the program.
The MRD reviewed the Carrier’s denial, and in its decision issued on September 21, 2001, found that the documentation in the record substantiated the medical necessity of the thirty sessions of the chronic pain management program, that the requested treatment is reasonably required within the meaning of Tex. Lab. Code. § 408.021 and 401.011(19), and that preauthorization is appropriate.
V. ANALYSIS AND RECOMMENDATION
In 1995, Claimant had surgery on one hand for carpal tunnel syndrome which resulted from her work activities as a data entry clerk. The following year, she had another carpal tunnel surgery on her other hand. For the past six years, Claimant has suffered terribly from pain which persisted after the surgeries. She has been unable to work and fully participate in normal life activities due to the pain. The issue in this case is whether a program of chronic pain management is reasonable and necessary. Having reviewed all the evidence submitted in this case, including the extensive medical records provided by the Carrier, the ALJ concludes that the thirty sessions of chronic pain management should be preauthorized as a reasonable and necessary treatment which will relieve the effects resulting from the carpal tunnel injury.
Although the Carrier contests whether the pain is related to the carpal tunnel syndrome and/or RSD and suggests that it is related to other medical conditions of Claimant, the ALJ finds that the pain (as well as swelling, tenderness, discoloration, poor circulation, and loss of range of motion) occurred after and because of the carpal tunnel surgeries following injury. The ALJ also finds that Claimant’s RSD developed after and because of the carpal tunnel surgeries.
After continuing to complain of pain following post-operative care from the carpal tunnel surgeries, Claimant was referred to Dr. Carrasco of the Texas Pain Institute for evaluation by Dr. Westfield, who performed the carpal tunnel surgeries. On July 15, 1996, Dr. Carrasco noted that Claimant had bilateral pain in her hands and arms and that the pain was a mixture of somatic (myofascial pain syndrome) and sympathetically maintained pain (RSD). He also noted that Claimant had chronic pain syndrome with depression and poor pain-coping strategies. Carrier Exhibit 1, p. 044.
Dr. Carrasco concluded that she had a significant amount of pain to both upper extremities, including the hands and wrist region, muscle spasms, and RSD and recommended a multi-disciplinary intervention with the use of stellate ganglion blocks and trigger points, physical therapy, medications, and a consult for a behavioral medicine evaluation to look at the issues of chronic pain and pain-coping strategies. Carrier’s exhibit 1, p. 044.
In August of 1996, Dr. Westfield noted that the Claimant still had a lot of pain in her hands although the numbness had been completely relieved and some of the pain related to the carpal tunnel had been relieved. However, Claimant had pain over the dorsal hand on moving the hand. He referred Claimant to Dr. Allen Gruber, a neurologist, for assessment of the nerve following the release. Dr. Gruber noted that Claimant had cold hands, swelling and decreased range of motion. He also noted that she appeared to have residual carpal tunnel, as well as arthritis in one of the joints of the wrist. In April of 1997, Dr. Gruber noted that Claimant may have some element of chronic RSD.
All doctors that have evaluated Claimant and/or treated her have noted that she has swelling and loss of range of motion in her hands, as well as indications of depression, and that a return to work will be difficult due to her limited abilities. In particular, Claimant’s depression and psychological condition are appropriate for a chronic pain management program. As Dr. Bierner testified, a chronic pain management program is appropriate in the case where psychological issues contributed to the pain problem.
Several doctors have noted that Claimant has chronic pain syndrome, including myofascial pain combined with sympathetically mediated type pain. According to Dr. Bierner and several other doctors, Claimant’s pain in the neck and shoulders does not appear related to the carpal tunnel injury. However, Claimant’s treating physicians, Dr. Westfield and Dr. Carrasco, did believe the head and shoulder injury was related to the carpal tunnel condition as part of the RSD syndrome. The issue of whether the pain from the neck and shoulder (and resulting Botox injections for this pain) is related to Claimant’s carpal tunnel need not be decided here, as the ALJ has concluded the chronic pain management treatment program is reasonable and necessary to treat Claimant’s symptoms occurring from the carpal tunnel injury and other symptoms of RSD.
Further, Dr. Bierner was critical of Provider for not doing a complete medical history of Claimant and not diagnosing Claimant himself (and presumably realizing that her pain was related to other medical conditions). Provider testified that he relied upon a referring physician’s diagnosis, and the ALJ finds this to be reasonable, especially since Provider is not an M.D. Because many of the doctors who have evaluated and treated Claimant do not agree on the degree to which the carpal tunnel syndrome has caused her symptoms, it is not reasonable to expect that Provider should be able to isolate all of Claimant’s medical conditions and pain symptoms relating to each one. It is sufficient that Provider be able to accurately identify Claimant’s pain and recommend appropriate treatment for it in light of the referring physician’s diagnosis.
Although Carrier suggests that Claimant’s symptoms are related to other medical conditions, among them diabetes, lupus, scleroderma, and hypothyroidism, Carrier has not met its burden of proving that her chronic pain is due to those conditions and not the carpal tunnel syndrome. The medical records do not indicate when Claimant was diagnosed with lupus, and there is no mention of the other medical conditions in the medical records until September of 2000. Whether or not these other conditions caused the pain Claimant reported in 1996 is certainly not clear. While it is possible that they did, there is insufficient evidence to establish it is so.
Although Carrier seeks to identify arthritis as a condition causing Claimant’s symptoms, the ALJ notes that arthritis appeared in only one wrist although Claimant complained of pain, swelling, tenderness, coldness and loss of range of motion in both wrists. There is nothing in the record that would show the arthritis began before the carpal tunnel injury. Because the arthritis was diagnosed after the carpal tunnel surgeries and after Claimant’s pain and other symptoms had been reported, the ALJ finds that it is difficult to determine the extent to which, if any, the arthritis contributed to Claimant’s chronic pain. The ALJ finds that Carrier failed to demonstrate Claimant’s pain was a result of arthritis and not carpal tunnel syndrome.
FINDINGS OF FACT
- The Commission issued notice of the hearing in this matter on October 2, 2001.
- On _________________(Claimant), a data entry clerk, reported a repetitive stress work-related injury, carpal tunnel syndrome.
- Dr. Terry Westfield performed carpal tunnel surgeries on both of Claimant’s hands: one surgery on the left hand in 1995 and the other surgery on the right hand in1996.
- Claimant underwent physical therapy after each surgery.
- Claimant suffered from post-operative pain, tenderness, discoloration of hands, swelling, and a lack of range of motion in both hands, which continues until the present time.
- Claimant developed RSD (reflex symptomatic dystrophy) after the carpal tunnel surgeries.
- Claimant’s previous pain treatment from Dr. Carrasco, consisting of injections and physical therapy, did not provide her with any long-lasting relief.
- Claimant cannot work, has limited ability to grasp and use her upper extremities, and her life functions have been severely limited due to the carpal tunnel injury and subsequent post-operative effects, including the development of RSD.
- Claimant faces significant, permanent loss of functioning that requires major physical, vocational and psychological readjustment.
- Claimant’s pain has persisted beyond the expected healing time.
- No doctor has recommended further invasive medical treatment for Claimant.
- Claimant has a physical impairment greater than expected on the basis of the diagnosed medical condition.
- On August 4, 2000, the Provider requested preauthorization to provide the Claimant with thirty sessions of a chronic pain management program..
- The Carrier denied the request for chronic pain management on grounds of lack of documentation of medical necessity.
- Drs. Westfield, Burdin and Sutton documented the need for chronic pain management by Claimant.
- Claimant had completed the chronic pain management program at the time of the hearing.
- During the chronic pain management program, Claimant learned how to improve her relaxation and use breathing techniques to cope with the pain.
- Claimant has a lower overall pain level after undergoing the chronic pain management treatment than she had before the treatment.
CONCLUSIONS OF LAW
- The Commission has jurisdiction to decide the issue presented pursuant to Tex. Lab. Code Ann. §413.031 (Vernon 1996).
- 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 Tex. Lab. Code Ann.§402.073(b) (Vernon Supp. 2000) and 413.031(d) and Tex. Gov’t Code Ann. ch. 2003 (Vernon 2000).
- Adequate and timely notice of hearing was provided in accordance with Tex. Gov’t Code Ann. § 2001.051 and 2001.052.
- Chronic pain management therapy is an appropriate treatment intervention under the Upper Extremities Treatment Guideline. 28 Tex. Admin. Code. § 134.1001.
- Thirty sessions of the chronic pain management program will relieve the effects naturally resulting from the Claimant’s carpal tunnel syndrome and reflex symptomatic dystrophy. Tex. Lab. Code Ann. §408.021.
- Treatment in a chronic pain management program must be preauthorized. 28 TAC § 134.600(h)(10).
- The Provider is authorized to provide the Claimant with thirty sessions of the chronic pain management program.
IT IS, THEREFORE, ORDERED that the Provider is preauthorized to provide the Claimant, __________, with thirty sessions of the chronic pain management program.
Signed this 20th day of December, 2001.
SUZANNE FORMBY MARSHALL
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- While the MRD decision states that the injury is compensable, the parties stated at the hearing that compensability has not yet been determined. Regardless of whether this issue has been determined, this order does not address the compensability of the Claimant’s condition, but instead decides whether the services should be preauthorized if they are compensable. This decision is moot if the Commission later determines that the Claimant’s injury is not compensable.↑
- Tex. Labor Code Ann. '413.014 (Vernon 1996); 28 Tex. Admin. Code ' 134.600 (2000).↑
- 28 Tex. Admin. Code ' 148.21(h) (2000); Tex. Labor Code Ann. ' 413.031 (Vernon 1996).↑
- The original decision was issued on August 13, 2001, but contained clerical errors. It was amended and superceded in the September 21st decision.↑