DECISION AND ORDER
Associated Casualty Insurance Company (Associated Casualty or Carrier) has appealed the Findings and Decision of the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) in MRD No. M5-01-2350-01. The MRD ordered Carrier to pay $26,974.95 plus interest to Paulo R. Bettega, M.D., for providing thirty-two sessions to Claimant at the multidisciplinary chronic pain management program administered by Valley Integrated Pain Assessment and Care, LLP (Valley IPAC). The MRD found the pain management sessions had been preauthorized and decided, therefore, the issue of medical necessity was moot.
The Carrier paid the $26,974.95, but is asking for reimbursement in this appeal. It argued the services provided were not preauthorized, were not medically necessary, were billed in excess of the Medical Fee Guidelines (MFG), were not shown to be likely to improve the claimant’s condition, and were not properly documented.
As Petitioner, the Carrier has the burden of proof. This decision and order finds the Carrier did not meet that burden, affirms the decision of the MRD, and denies the requested reimbursement.
I. Procedural History
The hearing in this case was held on May 7, 2002. There were no contested issues of jurisdiction or notice. Associated Casualty was represented by attorney Mark Sickles. Dr. Paulo Bettega appeared personally on behalf of Valley IPAC, and through a representative, Shalaish Pathak, Chief Compliance Officer. The hearing was concluded, and the record closed the same day.
II. The Injury and Treatment
The Claimant in this case, a ___ year-old Hispanic male ___, sustained a compensable injury on___________. He was holding a large truck tire on a tire mounting machine, attempting to “break it down.” The machine was not working properly, and as he attempted to “break the bead” of the tire, the machine caught and the tire he was holding suddenly and unexpectedly turned, and caused his lower back to twist. He felt immediate and acute lower back pain, but continued to work the rest of that day. He took pain killers that night and returned to work the next day. He was instructed to work under a car and when he tried to stand up, he could not. He had to have assistance.
His boss then took him to a chiropractor. He received chiropractic treatments for three weeks. His pain worsened. His treating doctor sent him for an MRI on January 10, 2000. The MRI revealed the following abnormalities in the lumbar area:
slight bulging-protrusion of the disc in the left lateral aspect of L5-S1, slightly encroaching on the left lateral recess and medial aspect of the left neural foramen, touching the left S1 nerve root. There is swelling and edema of the left S1 nerve root.
Diffuse circumferential bulging of the annulus and slight degenerative facet arthritis at L4-L5 level. (390)
After receiving the results of the MRI, his doctor referred Claimant to the McAllen Work Hardening Center. Claimant underwent a five-hour functional capacity evaluation by the director of physical therapy on January 19, 2000. The director of physical therapy concluded Claimant showed inconsistent effort and significant symptom exaggeration. Regardless, he recommended Claimant participate in a work hardening program to increase his strength, endurance, and range of motion. He also mentioned psychological counseling to “help take his focus off pain and disability and place it on function.” He reported they would “strongly encourage Patient to exert maximal effort during this program.” Claimant attended the program briefly but left because he continued to be in acute pain. The aggressive therapy and exercises aggravated his condition.
Claimant reported the situation to his treating physician and, when it was not adequately addressed, transferred to Mission Chiropractic Clinic. He was satisfied with his new doctor and treatment and the progress he was making with him. Then, his doctor moved. He did not have the same satisfactory response to treatment with the replacement doctor at Mission Chiropractic.
Claimant then requested Dr. Armando Osio as his treating physician. His request was granted. Dr. Osio referred him to Dr. Paulo Bettega’s chronic pain management program at Valley IPAC in August, 2000. Claimant received outpatient chronic pain management services from Valley IPAC beginning with a mental health assessment/evaluation on August 28, 2000, and receiving thirty-two sessions through December 13, 2000.
III. Evidence and Discussion
- Evidence. The evidence in this case included
- the 561 page certified record from the Medical Review Division,
- the testimony of Peter B. Robinson, M.D., regarding his peer review of claimant’s records, and
- the testimony of Paulo R. Bettega, M.D., on behalf of Valley IPAC.
B.Carrier’s position. The disputed services involved in this appeal are those billed under CPT Code 97799-CP for a multidisciplinary pain management program. Associated Casualty argues the services
- were not preauthorized,
- were not medically necessary,
- were billed in excess of the Medical Fee Guideline (MFG),
- were not shown to be likely to improve the claimant’s condition, and
- were not properly documented.
C. Preauthorization and medical necessity. The provider, Valley IPAC, requested preauthorization for a multidisciplinary pain management program to address claimant’s emotional and psychosocial components, which were exacerbating his overall pain. The request was directed to CorVel Corporation, who performed preauthorization services for Carrier. Initially, CorVel denied the request because there was “no objective evidence that the trauma caused the depressive symptoms” described in the mental health assessment/evaluation. (207-231)
Valley IPAC responded to CorVel by letter dated September 7, 2000, making the following points (226-227):
- Claimant’s injury on ___ was treated as acute. He participated in a work hardening program between 1/31/00 and 2/14/00. This included five group sessions and three individual sessions. He left the program because of the pain he was experiencing.
- The program report indicates Claimant was focusing on his condition and was unwilling to progress to further levels. Claimant needed sessions to minimize his focus on his injury and discomfort in addition to concentrating on his fear of re-injury.
- This indicated he was not able to deal with his emotions at that time and his inability to do so had exacerbated his pain condition which had, by then, become chronic.
- Medical records indicate that there is nothing that can be done to alleviate the pain through further treatment or procedures.
- Claimant will have to learn to live with the pain and the best way to do that is through a chronic pain program as detailed in Valley IPAC’s report.
- Claimant had never been diagnosed with any psychopathology before his injury and, when assessed by Valley IPAC, was diagnosed as suffering severe depression.
- Claimant may have become more depressed as time passed after his injury and he realized he would have chronic pain and would never again be the person he was before his injury.
- Claimant indicated a willingness to participate and learn coping skills and strategies for dealing with his anger, fear, anxiety, and pain.
- Claimant’s program would include anti-depressant medications monitored by a staff psychiatrist.
- The request was modified from 30 sessions to 12 sessions, after which a progress report would be submitted with the “appropriate recommendation.”
By letter dated September 12, 2000, CorVel granted preauthorization for twelve sessions: three times a week for four weeks. An extension for fifteen additional sessions was granted on October 17, 2000, by letter from CorVel. A progress report sent to CorVel on November 7, 2000, described the program and claimant’s considerable improvement during the time he had been participating in the program. CorVel preauthorized another six sessions by letter dated November 9, 2000. (211-218) Each of these preauthorization letters included a finding that the requested services had been “reviewed and deemed medically necessary and appropriate.”
Each of these letters also included the warning that “the Carrier has informed us that compensability issues are pending.” These compensability issues apparently related to Carrier’s resistance to paying for any treatment of depression. However, the only evidence in the record is that Claimant was not depressed before his injury and that his depression was linked directly to the injury, to its chronic nature, and to the long road he had to follow to finally get any relief.
Further, Texas Workers’ Compensation Commission Rule 133.301 provides that the insurance carrier shall not retrospectively review the medical necessity of a medical bill for treatment or services for which the health care provider has obtained preauthorization under Chapter 134 of this title. Carrier’s argument that many of the treatments provided are specific therapies and not reimbursable is without merit.
In fact, the November 7, 2000, progress report sent to CorVel stated that Claimant had participated in pain management group, stress management group, individual chronic pain therapy, light physical exercise, nutrition education, relaxation training, biofeedback and medical management. Further, the provider’s last request, which was preauthorized, called for a modified program in which he would receive biofeedback, medical management, and individual therapy, two times per week for three additional weeks.
- Dr. Peter B. Robinson’s peer review for Carrier. In an attempt to bolster its argument that the disputed services were not medically necessary, the Carrier obtained a peer review report. It asked Dr. Robinson, a general practitioner, to review claimant’s medical records and respond to two specific questions:
- The claimant reached maximum medical improvement and was assigned a 1% whole person impairment rating on 8/18/00. Please determine if any treatment is reasonable and medically necessary for the compensable injury on ___.
Dr. Robinson reviewed claimant’s medical records and, in a report dated September 9, 2000, concluded claimant had only strained or sprained his back, which was a temporary and self-healing injury. (492) The fact that claimant had continued to work the day of his injury and the next suggested the injury was a strain or sprain. Dr. Robinson dismissed the MRI with the conclusion that a bulging protrusion is not “objective evidence for trauma being responsible for complaints of pain” beyond the resolution of the sprain/strain. Dr. Robinson believed claimant’s original treating doctor considered him ready to return to work by the end of January 2000. He hypothesized the treating doctor sent the claimant to a work hardening program to “convince” him he was fit to return to work. Claimant, in Dr. Robinson’s opinion, probably reached MMI by the last day of January 2000, and did not need any further treatment related to his compensable injury after that time. He attributed any ongoing complaints to “degenerative arthritis.”
- Is the chronic pain management program proposed by the provider reasonable and medically necessary for treatment for this compensable injury?
The medical record, according to Dr. Robinson, made it clear claimant would not benefit from a pain management program. In fact, Dr. Robinson opined that a chronic pain management program “could be harmful by prolonging [claimant’s] dependence on the medical establishment.”
In his testimony, Dr. Robinson admitted chronic pain management could be appropriate for someone with a 1% impairment rating. These cases, he testified, are very individual. The records in this case convinced him claimant was not willing to put forth the earnest effort required to obtain benefits from a chronic pain management program.
- Provider’s response to Dr. Robinson’s peer review letter. Valley IPAC responded to Dr. Robinson’s peer review opinions by letter dated February 2, 2001, to Medcheck. As to the first question, Valley IPAC asserted that a claimant can be rated at MMI and still need treatment.
In regard to the second question, Valley IPAC noted the Carrier disallowed its bills for the chronic pain management program “due to a physician advisor review.” However, Valley IPAC argued Dr. Robinson did not have qualifications equal to the psychiatrist who supervised claimant’s treatment and therefore did not meet the requirements of the Texas Labor Code, Section 401.001.
Finally, Valley IPAC argued that if the Carrier was so opposed to the chronic pain management program, it should have been more forceful in asserting its objections sooner and not allow “conditional” preauthorizations to be given for claimant’s care. Valley IPAC also pointed out that the claimant had done well in its program. He attended regularly, participated, and demonstrated considerable involvement in the program. Claimant expressed his own belief that he had benefitted greatly from it. (201-204).
D.Billing. The Carrier argued that the services were not billed correctly. Chronic pain management is a Documentation of Procedure code (MFG, General Instructions, (III)(A)). According to the Medical Fee Guideline, Medicine Ground Rule (II)(G)(9), chronic pain management shall be billed as CPT code 97799-CP for each day and the of number of hours spent in the program indicated on the bill. The provider billed correctly.
E. Documentation. The Carrier also complained that Valley IPAC had not adequately documented claimant’s treatment and participation. Particular requirements for chronic pain management are set forth in the Medical Fee Guideline, pp. 40-41 (Medicine Ground Rules, II. Single and Interdisciplinary Programs, G. Chronic Pain Management), and include, for example, entrance criteria for patients, supervision by a doctor, and daily documentation of treatment and patient response.
An extensive Mental Health Assessment/Evaluation is in the record, dated August 28, 2000. (364-368) Claimant was diagnosed with a chronic pain disorder associated with both psychological factors and a general medical condition, severe depression secondary to back pain, and lumbar spine disc protrusion. Nature, extent, and need were also addressed. The patient exhibited pain behaviors, functional limitations, and mental/emotional dysfunction, which were disruptive to his activities of daily living. He was facing a significant and permanent loss of function that required major physical, vocational, and psychological readjustment. He had chronic pain overly combined with an emotional aspect, linked to adverse interpersonal relationships that interfered with his rehabilitation potential. The multidisciplinary program would focus on teaching the patient new coping skills to manage the pain and stress more effectively as well as issues of depression, anxiety, self-isolation, and regression.
The patient’s program consisted of daily pain management group counseling, stress management group counseling, individual therapy, medication regulation by the staff psychiatrist, light physical reconditioning exercise group, nutrition education, relaxation training, and biofeedback. The patient was to be monitored for all medications. The staff was to work closely with his primary care physician to help the patient develop more appropriate coping skills.
The goal was to improve the patient’s pain thresholds and monitor emotional parameters which had not yet been addressed. Specifically, the goals of the program for this patient were:
- to teach the patient alternative ways to manage his pain and stress more effectively through the use of breathing and relaxation techniques as well as biofeedback,
- to improve symptoms of his depression, moods, and sleep disturbance,
- to change negative thinking patterns that lead to increased pain and stress and to decrease negative pain behavior, and
- to explore the possibility to return to work in any vocational opportunities.
The time required to perform the service: Valley IPAC requested patient attend its multi-disciplinary pain management program for a total of 30 sessions, 5 times a week for 6 weeks.
Carrier argues the Provider failed to properly document the treatment and the patient’s response. The record includes the following documentation:
- Treatment Plan and Treatment Plan Updates (157-177)
- Medication Log Sheets (236-237)
- Progress Notes for Medication Regulation (238-245)
- Functional Capacity Evaluation done on November 14, 2000, 9:00 a.m. to 12:00 p.m. (248-261)
- Individual Biofeedback Therapy (262-292)
- Group Session Monitoring Forms. (293 through 361 - also includes the biofeedback forms listed above) These forms are designed to report on two sessions per form. They provide places to indicate whether the group session relates to pain management, relaxation skills, stress management, or nutrition group. Checklists are provided to note pain behavior, group behavior, and participation level. There is space for comments, which usually seemed to address the group’s general topic and any particular comments made by the patient. The forms were clearly not obviously used for a purpose; they were not simply filled out by rote.
- Individual Chronic Pain Therapy Progress Notes (45-50 min.) (323-328)
- Claimant’s recovery had been delayed because psychological overlays prevented him from reaching maximum medical improvement.
- Claimant’s initial evaluation showed him to be suffering from a chronic pain disorder and related depression as evidenced by the following symptoms: compromised sleep (3-4 hours per night), low energy, low motivation, frequent crying spells and moodiness, decrease in appetite, problems with memory and concentration, decreased libido, social isolation, and excessive worry.
- He initially reported a pain level of 6 on a scale of 0 to 10.
- He responded well to medication (Paxil, an anti-depressant), as well as to therapy.
- His mood and affect significantly improved over the course of the program, changing from flat or anxious to amiable and talkative.
- At the end of the program, his reported pain levels ranged from 3-5.
- He was looking forward to getting back into the work-force, whereas before he did not think he would ever work again.
- He reported replacing negative, irrational thinking patterns with positive, more rational ones.
- He learned how to communicate more effectively, being assertive rather than aggressive.
- He acquired coping skills to help him think and plan before reacting.
- His overall quality of life was improved because he was thinking more clearly about his situation and taking proactive steps to improve his financial and emotional well-being. For example, he was contemplating new career paths.
F.ALJ’s Analysis. The ALJ finds the preponderance of the evidence supports the MRD’s decision to require payment to this provider. The MRD found that the preauthorization granted was conclusive as to medical necessity. The ALJ finds further that claimant’s depression was inextricably linked to his chronic pain and the changes in his life caused by the injury and resulting pain. The Carrier did not prove provider was billing in excess of the amount authorized by the Medical Fee Guideline. Finally, the documentation of the chronic pain management program was sufficient to support reimbursement under the Medical Fee Guideline and, in fact, showed that the program had improved claimant’s condition. The Carrier’s request for reimbursement is denied.
IV. Findings of Fact
- ___, Claimant in this case, sustained a compensable injury to his lower back on ______.
- The Carrier providing workers’ compensation insurance for claimant’s employer was Associated Casualty Insurance Company.
- Claimant’s injury resulted in acute pain that did not respond to chiropractic or work hardening treatments.
- An MRI revealed that Claimant had a slight bulging-protrusion of the disc in the left lateral aspect of L5-S1, slightly encroaching on the left lateral recess and medial aspect of the left neural foramen, touching the left S1 nerve root. There was a swelling and edema of the left S1 nerve root.
- Claimant’s pain continued beyond the expected healing time and interfered with his physical, psychological, social, and vocational functioning.
- Claimant did not have the severe pain or any psychological symptoms prior to the accident.
- Claimant was diagnosed with a chronic pain disorder associated with both psychological factors and a general medical condition, severe depression secondary to back pain, and lumbar spine disc protrusion.
- The Provider, Dr. Paulo R. Bettega, M.D., P.A., and Valley Integrated Pain Assessment & Care, requested and received preauthorization to treat Claimant in its outpatient multidisciplinary chronic pain management program.
- The initial preauthorization was extended for additional sessions after Provider demonstrated the treatments were beneficial for Claimant.
- Each preauthorization contained a finding that the services it preauthorized were deemed medically necessary and appropriate.
- Treatment in a multidisciplinary chronic pain management program as requested by the provider for claimant was medically necessary because Claimant’s pain condition had become chronic, he realized he would never be the same as he was before the injury, and he focused on it to the detriment of the rest of his life.
- Claimant received a total of thirty-two sessions from Provider’s outpatient multidisciplinary chronic pain management program between September 2000 and December 2000.
- Claimant did well in the program and verbally expressed it had helped tremendously. His attendance and participation are well documented.
- Claimant participated actively in individual chronic pain therapy, pain and stress management group, light physical exercise, biofeedback, nutrition education, relaxation training, and medical management by the staff psychiatrist.
- Claimant’s overall quality of life was improved by the program. His pain level decreased; his understanding of stress management and relaxation techniques increased. He had increased ability to sleep and to participate in the activities of daily living. He also had a positive attitude about returning to the work force.
- Provider billed the Carrier for Claimant’s sessions in its chronic pain management program under the appropriate CPT Code: 97799-CP, and at the appropriate rate.
- Associated Casualty Insurance Company refused payment of the bills submitted to it for services provided to claimant and billed under CPT Codes 90801 (60), 97799-CP, and 99362.
- The Carrier disallowed all thirty-two bills submitted for chronic pain management services as “unnecessary medical treatment or service,” due to a physician advisor review.
- Dr. Robinson, the physician who provided peer review in this case, and was relied on by Carrier for the determination of unnecessary medical treatment or service, is not specialized in behavioral treatment, nor is he a psychiatrist. He does not have special training or experience in pain management and was not well-qualified to evaluate whether a multidisciplinary pain management course of treatment would benefit claimant.
- Provider filed a request for Medical Dispute Resolution with the Medical Review Division of the Workers’ Compensation Commission on June 18, 2001, seeking payment for services provided to Claimant.
- Provider submitted adequate documentation to support the services it billed under CPT Code 97799-CP in the amount of $26,974.95.
- Documentation of services provided included the treatment plan and treatment plan updates, medication log sheets, progress notes for medication regulation, the functional capacity evaluation (FCE) done on November 14, 2000, progress notes regarding individual biofeedback therapy, and group session monitoring forms.
- The MRD ordered Associated Casualty to pay the provider the amount of $26,974.95 for the services billed under CPT Code 97799-CP, plus any accrued interest due at the time of payment.
- Associated Casualty paid Provider as ordered by MRD and filed this appeal seeking reimbursement of that payment.
- Carrier did not prove by a preponderance of the evidence that the MRD decision should be overturned.
V. Conclusions of Law
- The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers' Compensation Act (Act), Tex. Labor Code Ann. § 413.031.
- 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 §413.031(d) of the Act and Tex. Gov’t Code Ann. ch. 2003.
- The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001 and the Commission’s rules, 28 Tex. Admin. Code (TAC) § 133.305(g).
- Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
- An employee who has sustained 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 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. Tex. Lab. Code Ann. § 408.021(a).
- Health care includes all reasonable and necessary medical examinations, treatments, diagnoses, evaluations, and services. Tex. Lab. Code Ann. § 401.011(19).
- Preauthorization is required for a Carrier to be liable for certain services and supplies. Tex. Lab. Code § 413.014 and Commission rule, 28 TAC § 134.600.
- Among the services that must be preauthorized are chronic pain and interdisciplinary pain clinics. 28 TAC § 134.600(h)(10).
- The insurance carrier shall not retrospectively review the medical necessity of a medical bill for treatment(s) and/or service(s) for which the health care provider has obtained preauthorization under Chapter 134 of this title.... Texas Workers’ Compensation Rule 133.301(a).
- The Medical Fee Guideline, Chronic Pain Management, requires the presence of the following symptoms to be eligible for such a program:
- The complaint of enduring pain (28 TAC Rule § 134.1000 - pain has persisted beyond the expected healing time)
- that has not responded to previous appropriate medical, surgical and/or injection treatment, and
- that interferes with the injured worker’s physical, psychological, social, and/or vocational functioning.
- Based on the Findings of Fact and Conclusions of Law above, Carrier is liable to Provider for the costs of treating Claimant for thirty-two sessions in its multidisciplinary chronic pain management program.
IT IS, THEREFORE, ORDERED that Associated Casualty Insurance Company was appropriately ordered to pay Provider for the thirty-two multidisciplinary chronic pain management sessions and its request for reimbursement is hereby denied.
Signed this 5th day of July, 2002.
Nancy N. Lynch
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- Dr. Bettega is named Respondent in this appeal, and was Requestor before TWCC’s Medical Review Division. He is the supervising psychiatrist at Valley Integrated Pain Assessment and Care, LLP. Services, however, were provided by an multi-disciplinary team of caregivers who worked under Dr. Bettega’s supervision at Valley IPAC. They will be referred to collectively as the Provider.↑
- Numbers like this in parentheses are references to page numbers in the official record of the MRD.↑