DECISION AND ORDER
St. Paul Fire & Marine Insurance Company (Petitioner or Carrier) appealed the findings of the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) which approved Positive Pain Management’s (Provider’s) request for preauthorization for twenty sessions of chronic pain management. This decision disagrees with the MRD and finds the requested twenty sessions of chronic pain management are not medically necessary.
I. PROCEDURAL HISTORY, NOTICE AND JURISDICTION
A hearing in this matter was convened at 3:30 p.m. on May 6, 2002, at the William P. Clements Building, 300 W. 15th Street, 4th Floor, Austin, Texas. The Carrier was represented by its attorney, Steve Tipton. The Provider was represented by its attorney, Peter N. Rogers, who appeared via teleconference for the entire hearing. The Texas Workers’ Compensation Commission (Commission) did not participate in the hearing. Ruth Casarez, an Administrative Law Judge (ALJ) with the State Office of Administrative Hearings (SOAH), presided. The Carrier introduced the certified record (C.R.) and presented Wright W. Singleton, M.D., as its medical expert, by teleconference on May 6, 2002; his testimony consumed several hours, and the hearing was recessed due to the lateness of the hour. The hearing was reconvened and concluded on June 26, 2002, during which Arosh Sarabi, D.C., Director of Physical Rehabilitation for Provider, testified as an expert via teleconference. The record closed on July 3, 2002, with the parties’ submission of written closing arguments.
There are no contested issues of notice or jurisdiction in this proceeding. Therefore, these matters are addressed in the findings of fact and conclusions of law without further discussion here.
A. Provider’s Evidence
Claimant ___, a customer service representative for ___, reported experiencing pain in her neck and left arm on__________, as she performed her receptionist duties, which included answering the telephone and doing data entry. After her report, she was referred to Dr. Parrish Pratel, who diagnosed her with cervical strain, forearm strain, and wrist strain. Dr. Pratel treated her with a Toradol injection, a splint on her left wrist, and prescription medications (Celebrex, Skelaxin and Darvocet N-100). He also referred her to physical therapy (PT) for two weeks and took her off work.
According to Claimant the pain continued and on April 10, 2001, she saw Larry Kjeldgaard, D.O., who diagnosed her with degenerative disk disease with posterior osteophytic spurring and foraminal stenosis at the C5-C6 vertebrae causing C6 radiculitis on the left upper extremities. Dr. Kjeldgaard discussed with Claimant the possibility of administering cervical epidurals instead of continuing PT to the spine. However at that time, he kept her on the medications and PT, and also prescribed use of a TENS unit on a trial basis. When he examined her again on May 10, 2001, he found that she had no gross strength deficits on either upper extremity. He also noted her pain had decreased, and thus indicated she could return to work part time on light duty status as of May 14, 2001, but that she should not do repetitive data entry. He continued her on PT and ordered cervical epidural steroid injections (ESI). Dr. Kjeldgaard next saw Claimant on July 6, 2001, and noted the ESI had not helped, but the TENS and traction units had. He also noted that she was doing light duty work on June 7, 2001. However, because Claimant continued to report pain, Dr. Kjeldgaard referred her to Eric Coligado, M.D., for an EMG and nerve conduction study. Dr. Coligado conducted electrodiagnostic studies on July 17, 2001, and although Claimant had neck pain, he found no abnormalities as a result of the study. He did find, however, that there was electrical evidence of active nerve disease in her left arm and possibly De Quervain’s tenosynovitis on her left hand. He noted Claimant was working light duty in customer service at the time, and suggested she continue treatment with Dr. Kjeldgaard. (See Resp. Ex. 1).
After six months of non surgical treatment for Claimant’s reported cervical, forearm, and wrist strain, the Carrier requested a peer review to consider whether further treatment was necessary. Mark Parker, M.D., performed a peer review on July 2, 2001. Dr. Parker found no evidence of a specific work-related trauma, and expressed his belief that, at most, Claimant had sustained a soft tissue sprain due to cervical posture or poor body mechanics and ergonomics. He noted that although an MRI had found degenerative spine disease, he did not believe the disease or abnormalities were the result of any incident at work, but rather were an ordinary disease of life. On July 10, 2001, he updated his report to explain that the appropriate treatment for a soft tissue sprain, such as he had described before, would be an ergonomic assessment and instruction in cervical posture and exercises. He indicated a six to eight-week (maximum) modality-based treatment with an active rehabilitation program would be medically reasonable or necessary for that type of sprain.
Some time after July, for some unknown reason, Claimant changed treating physicians and began seeing Arsalan Gittiban, D.C. (See Resp. Ex. 2). The record is silent as to what treatment Dr. Gittiban provided Claimant, but on September 10, 2001, pursuant to his referral, she enrolled in a six-week work hardening program. And although Claimant in fact completed the program, there was very little evidence that showed what progress, if any, she made during the program. For example, Dr. Sarabi testified that she had received biofeedback and had participated in group therapy sessions in work hardening, but did not know whether she had responded well to such treatment. He did testify that Claimant’s reports of pain had remained the same (level 5 or 6 on a 10 level scale) as they had been before the program, but could not describe her response to group therapy. However, he asserted she would receive much more group therapy in an intensive multi-disciplinary pain management program (PMP) than she had in work hardening, just as she would also get more physical rehabilitation (i.e., she would be taught how to move body parts so as not to hurt herself, and how to do exercises to strengthen her limbs and improve her ROM) than she received in the work hardening program. In response to the argument that Claimant had already received many of the services offered in the proposed PMP during the six-week work hardening program, Dr. Sarabi stated that work hardening and PMP are different and that such difference is recognized by the Commission, as both services are permitted in the tertiary stage.
It appears an interim functional capacity evaluation (FCE) was performed to evaluate Claimant’s progress during work hardening. A copy of the FCE report was introduced. (Resp. Ex. 3). Keith Jensen, D.C., whose affiliation is unknown, completed the FCE on October 1, 2001, after Claimant had completed three weeks of work hardening. Dr. Jensen described Claimant to be in a general state of debilitation, noting she had decreased shoulder and cervical ROM, decreased shoulder strength and decreased ability to tolerate dynamic and static shoulder activity. In addition, he found Claimant was in the sedentary to light physical demand level (PDL) at the time. Her job required the sedentary PDL. Claimant appears to have had the physical capacity to return to her job on October 1, 2001, but Dr. Jensen recommended she continue in work hardening to improve ROM, strength, endurance and tolerance to work related activities. In general, Dr. Jensen’s report supplied little evidence as to whether Claimant had made any progress during the program or whether she would be capable of returning to work after the work hardening services. What was presented into evidence was that as the work hardening program neared its end, Dr. Gittiban referred Claimant to Provider for an assessment of her condition and a determination of whether she required pain management treatment.
On October 29, 2001, Julie Duncan, Ph.D., a psychologist employed by Provider, conducted a psychological evaluation of Claimant, and found the following:
- Claimant was not working;
- Claimant rated her pain as 6 on a scale of 1 to 10 (with 10 being the worst);
- Claimant was currently taking Vioxx, but had taken other medication in the past;
- Claimant had other treatments, e.g., physical therapy, epidural steroid injections, EMG’s, and electrical stimulator. She also had an MRI;
- Claimant had enrolled in a work hardening program and had participated in biofeedback and group therapy during work hardening;
- Claimant reported worries about future employment and about her finances;
- Claimant reported having trouble coping with everyday problems;
- Claimant was not delusional and denied any suicidal or homicidal ideation;
- Claimant reported being depressed and having trouble sleeping;
- Claimant reported feeling sad, disappointed in herself and distant from others;
- Claimant reported the pain in her neck and shoulder interfered with her daily functioning.
Dr. Duncan determined Claimant’s psychosocial stressor scale was 3 and her global assessment of
functioning (GAF) was 50, with 100 being the best possible score. She recommended Claimant participate in an intensive multi-disciplinary chronic PMP that would improve her coping skills and would teach her how to better self regulate her pain. Dr. Duncan indicated that without the PMP, Claimant was at a “significant risk for developing an excessive sense of disablement.” (C.R. p. 19).
Dr. Sarabi testified that Claimant met the criteria for chronic pain management as indicated by Dr. Duncan’s evaluation. He reiterated that Claimant’s pain had continued well beyond the normal healing time; her pain level should have decreased but had not; she had undergone several treatments in the primary and secondary stages, yet she continued to report pain; she had no prior medical history, thus the injury reported on__________, had caused her current pain, and not anything else. Further, Claimant showed poor coping skills as demonstrated by her avoiding or limiting certain normal daily activities that she believed would cause her pain or reinjury; she demonstrated depression and had difficulty sleeping. In short, Dr. Sarabi believed Claimant’s chronic pain had led to psychological problems that manifested themselves in Claimant’s continuing to seek health care and medications for her pain (although he admitted not knowing if her drug use was excessive). He believed she was an ideal candidate for PMP.
On November 7, 2001, Ron R. Ziegler, Ph.D., a psychologist with Provider, submitted a request for preauthorization from Carrier for twenty days of PMP for Claimant. The request included a treatment plan that detailed the activities and goals that would comprise the requested PMP for Claimant. Dr. Ziegler indicated the following as significant parts of the plan:
Physical Rehab (PT) consisting of kinetic & therapeutic exercise,
stationary bike, treadmill, upper extremity bike, weight machine, free weights, massage, & aquatic
exercise, physiotherapy, etc.
4 hours of PT per day
during entire 20 day
short-term: increase range of motion (ROM) by 15-20 degrees; decrease inflammation.
long-term: increase lumbar and up- per extremity, gleno-humeral & scapular stabilization within functional limits & return to progressive activities and work function as tolerated.
individual psychotherapy and counseling
2 hours daily
To improve coping skills & continue efforts toward amelioration of emotional distress, so as to reduce patient’s subjective pain level, reduce depressive symptoms, etc.
educational/didactic group therapy Groups intended to educate patient on pain management techniques, coping skills, behavioral modifica- tion, Tai Chi, meditation, Yoga, etc.
1-2 hours daily
To have patient actively attend & interact in all groups with staff & other patients, so that patient will demonstrate understanding of topics presented.
EMG biofeedback Training
2-3 sessions weekly
To educate & help patient self regulate pain, through use of relaxation, for example.
tion usage monitored daily and reviewed by treatment team
reviewed daily by physician
To help manage & decrease the in- appropriate use of narcotic analgesics & develop a more appropriate medication regimen for patient.
National Healthcare Resources, Inc. (NHR), Carrier’s preauthorization department or agent, considered the request and responded that based on the independent medical examination (IME) report in the records, the request for PMP was not medical necessity. Provider resubmitted the request to the Carrier on November 28, 2001; NHR reconsidered the request, and on Nov. 30, 2001, again decided the medical documentation did not support the need for additional medical treatment beyond date of MMI. Because Clamant had been able to return to work soon after the reported injury NHR noted, there was no necessity for the requested PMP. (C.R. p 13). Provider requested review through the MRD on December 7, 2001. The MRD found that the documentation submitted by Provider was sufficient to substantiate the medical necessity of the proposed treatment, consistent with the Mental Health Treatment Guidelines. The Carrier appealed the decision.
In the fall of 2001, the Carrier asked for an IME of Claimant. Wright W. Singleton, M.D., a doctor licensed for ten years, who works in the treatment and analysis of spinal and soft tissue injuries, was selected to conduct the IME. Although he is not board certified, Dr. Singleton is a fellow in the American Academy of Disability Evaluating Physicians and is also on the Commission’s list of designated doctors. Dr. Singleton performed the IME on October 4, 2001. He diagnosed Claimant as having: “1. Cervical spondylosis (arthritis and non-occupational); and 2. History of left shoulder pain.” (See Pet. Ex. 1, p. 6). He also found there were no objective signs of any injury remaining. In fact, he stated he had found no “mechanism of injury” and that Claimant’s current symptoms appeared to be related to her arthritic condition. (Id.). Dr. Singleton concluded there was no evidence of a work-related injury, and that such had been established by the diagnostic tests (x-ray and MRI) that had been done on Claimant. Further, he concluded that Claimant required no additional treatment as, he believed, she had reached maximum medical improvement (MMI) on July 26, 2001. Because he found no deficits either in her spine or in her shoulder and arm, he gave her an impairment rating (IR) of 0%.
Dr. Gittiban disagreed with Dr. Singleton’s analysis and requested another independent medical examination. Mike Raper, D.C., examined Claimant on October 31, 2001. Dr. Raper, whose 3-page report was more abbreviated than Dr. Singleton’s 6-page report, found that Claimant’s reported past history was non contributory. He found that there was a specific disorder of the spine, which he described as “ Unoperated on, stable, with medically documented injury, pain, and rigidity associated with none to minimal degenerative changes on structural tests, such as those involving roentgenography or MRI, equals 4 % whole person (___) for the cervical spine.” (See Pet. Ex. 2).
III. LEGAL STANDARDS
A. Entitlement to Medical Benefits.
Section 408.021 of the Texas Workers’ Compensation Act (Act) provides that an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. The employee is specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the compensable injury; (2) promotes recovery; or (3) enhances the ability of the employee to return to or retain employment. Section 401.011(19) of the Act defines “health care” to include “all reasonable and necessary medical . . . services.”
The Commission has identified certain categories of health care which require preauthorization, dependent upon a prospective showing of medical necessity. Tex. Labor Code Ann.§413.014; 28 Tex. Admin. Code (TAC) §134.600. In this instance, under 28TAC §134.600(h)(15), preauthorization is required for chronic pain management treatment.
B. Mental Health Treatment Guidelines
The Mental Health Treatment Guidelines (MHTG), 28 TAC § 134.1000 sets forth the criteria to be met for referral to chronic pain management programs. 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/emotional dysfunction, which are disruptive to their activities of daily living, and two or more of the following:
- (4)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;
- (5)pain has persisted beyond the expected tissue healing time;
- (6)the patient has chronic pain linked to adverse interpersonal relationships which interfere with rehabilitation;
- (7)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;
- (8)documented history of inappropriate and excessive use of narcotic sedative/hypnotic medications, or alcohol;
- (9)the patient continues to express unrealistic expectations regarding outcome or medical/psychiatric intervention in relief of their own symptomatology; or
- (10)referral to such programs 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.
IV. ANALYSIS AND CONCLUSION
The issue in this case is whether the requested twenty sessions of chronic pain management should be preauthorized as medically necessary and reasonably required to treat Claimant’s ___, injury. The Commission’s Upper Extremities Treatment Guideline, (UETG), 28 TAC § 134.1002(f)(2), describes the primary, secondary and tertiary levels of nonoperative care. Claimant is in the third stage, or tertiary, level of care. The UETG indicates the requested treatment is among the possible interventions at this level, but preauthorization must be obtained for PMP. (See §413.014 of the Act and 28 TAC § 134.600(h)). When the MRD considered the preauthorization request, it decided that 20 days of PMP should be preauthorized. The Carrier, who challenged that decision, has the burden of proof in this case. 28 TAC § 148.21(h). After reviewing the evidence, the ALJ disagrees with the MRD.
The Carrier highlighted evidence that established Claimant does not meet the criteria for referral to a chronic pain management program. Focusing specifically on the criteria set out under paragraph C the MHTG (See pp.7 supra.), the ALJ finds that Claimant is not facing significant, permanent loss of functioning that requires major physical, vocational, and psychological readjustment. As early as May 2001, it became clear that Claimant’s injury was not very serious: Dr. Kjeldgaard found Claimant had no strength deficits in her upper extremities, and because her pain had decreased, he authorized her to return to light duty work. Additionally, the EMG performed by Dr. Coligado on July 17, 2001, found no abnormality that would result in serious physical impairment or loss of functioning, and Claimant continued to work until late July 2001. No evidence was presented that her condition drastically changed and caused her to stop working after that time. Furthermore, in October 2001, Dr. Jensen found that her physical demand capacity was at the level that was required by her job and that with work hardening, she had potential for gainful employment. Thus, rather than show that Claimant suffered from major physical deficits, the evidence showed Claimant had the physical capacity to return to work, and if she did, it is very likely she would no longer worry about her employment or financial prospects, which might alleviate her depression. Second, several doctors who examined Claimant determined that disk degeneration in her spine and tenosynovitus in her left hand (which were not related to the reported injury) were the likely reasons for the lingering pain in her left upper extremity and wrist. Third, although Claimant’s pain has persisted beyond the expected tissue healing time, the evidence presented suggests that pain is related to diseases that are not related to a job injury. Fourth, there was no evidence that Claimant’s chronic pain is linked to adverse interpersonal relationships which interfere with rehabilitation. Fifth, there was some evidence that Claimant may have physical/mental impairment greater than expected on the basis of the diagnosed medical condition and treatment or differential diagnosis and that treatment may be required in a more structured/supervised setting. However, evidence was presented that Claimant, in fact, already participated in a highly structured six-week work hardening program where she received that type of treatment. She did not respond to such treatment, and no evidence was presented that would suggest she would respond differently to similar treatments offered through a PMP. Sixth, Carrier pointed out there was no documented history of inappropriate and excessive use of narcotic sedative/hypnotic medications, or alcohol. Dr. Sarabi also testified he did not know if Claimant was abusing medications.
In considering the last two criteria under paragraph C, the ALJ notes that since Claimant did not testify, there was insufficient or no evidence: (1) as to what expectations she had about the outcome of the medical/psychiatric interventions to relieve her symptoms that she had received, and (2) whether referral to the PMP would be appropriate in order to prevent development of an excessively disabled lifestyle. The primary evidence supplied that Claimant should be enrolled in the PMP was Dr. Duncan’s observation that Claimant was “at risk for developing an excessive sense of disablement,” if she did not receive the intensive, multi-disciplinary PMP. However, neither Dr. Duncan nor anyone else explained why Claimant had not responded to the intensive, multi-disciplinary treatment she had recently received in the work hardening program. If she did not respond to that treatment, the ALJ has no reason to believe she would respond to similar treatment in the PMP.
The ALJ finds that Carrier proved by a preponderance of the credible evidence that Claimant did not meet the criteria for referral to a PMP. Therefore, the requested 20 days of chronic pain management program is not medically necessary for Claimant and should not be preauthorized.
V. FINDINGS OF FACT
- Claimant ___ reported suffering a compensable injury to her neck, left arm, and wrist on __________
- At the time of the reported injury, Claimant worked as a ___ for ___, which maintained workers’compensation insurance through St. Paul Fire & Marine Insurance Co. (Petitioner or Carrier).
- Claimant was initially treated for her injury by Parrish Pratel, M. D., who diagnosed her as having cervical strain, forearm strain, and wrist strain. He administered an injection of Toradol, prescribed medications, and placed a splint on the left wrist. He also took her off work and referred her to physical therapy (PT) for two weeks.
- On ___, Claimant saw Larry Kjeldgaard, D.O., complaining of pain. He diagnosed her with degenerative disk disease with posterior osteophytic spurring and foraminal stenosis C5-C6 causing C6 radiculitis on the left. He continued her on PT and medications.
- On May 10, 2001, when Dr. Kjeldgaard conducted a follow-up examination, he found that Claimant’s pain had decreased, that she had moderate cervical range of motion, but had no gross strength deficits on either upper extremity.
- He approved her return to work on light duty status (no repetitive data entry) as of May 14, 2001, and ordered additional PT and cervical epidural steroid injections.
- As of July 6, 2001, when Dr. Kjeldgaard examined Claimant, he found she continued to have cervical, left arm and wrist pain, and weakness, and dyesthesias (impairment of sensitivity) in her left upper extremity. However, she was able to continue working on a restricted basis.
- Dr. Kjeldgaard continued to treat Claimant through the end of July 2001. He referred her to Dr. Eric Coligado, M.D., for an EMG and nerve conduction study.
- Dr. Coligado performed an EMG and nerve conduction study on July 17, 2001. He found no abnormalities, but did find evidence of active left C6 radiculopathy, and suggestion of De Quervain’s tenosynovitis on the left.
- On July 2, 2001, Mark Parker, M.D., performed a peer review of Claimant’s medical records to determine if she required additional treatment. Dr. Parker found no evidence that Claimant had suffered any specific work-related trauma. Furthermore, the MRI that had been done showed she had degenerative spine disease, which was an ordinary disease of life.
- Dr. Parker diagnosed Claimant with, at most, a soft tissue sprain due to cervical posture or poor ergonomics, which should have been resolved with a six to eight-week modality-based treatment with active physical therapy. In his opinion, Claimant needed no further treatment.
- Some time after July 2001, Claimant began treatment with Arsalan Gittiban, D.C. No evidence was presented about what direct treatment, if any, Dr. Gittiban provided Claimant.
- Dr. Gittiban referred Claimant to six weeks of work hardening. Claimant participated in a work hardening program from September 10, 2001, through October 19, 2001.
- On October 4, 2001, Wright W. Singleton, M.D., examined Claimant, pursuant to a request by the Carrier for an independent medical examination (IME), and found:
- Claimant had cervical spondylosis (arthritis, non work-related);
- Claimant had a history of left shoulder pain;
- There was no mechanism of injury for the report of ___;
- The diagnostic tests showed no evidence of trauma following Claimant’s report of ___;
- That even if there had been a soft tissue sprain, there were no objective signs of any injury remaining;
- That Claimant had reached MMI on July 26, 2001;
- That Claimant had a 0% impairment rating (IR), because he found no deficits in her spine or in her left shoulder and arm.
- That Claimant required no additional treatment.
- Dr. Gittiban disagreed with Dr. Singleton’s assessment and requested another IME to determine MMI and impairment rating.
- Mike Raper, D.C., examined Claimant on October 31, 2001. Although providing little information to support his findings, he found there was a medically documented injury. . ., which resulted in a 4% whole person IR (for the cervical spine) and concluded Claimant had reached MMI on October 31, 2001.
- Claimant has no significant objective symptoms that result from the injury she reported on___________. Further, Claimant currently has the physical capacity to return to work.
- Although Claimant enrolled in a six-week hard working program on September 10, 2001, no evidence was presented about what progress, if any, Claimant made during the program, or if she was determined ready to return to work at the conclusion of the program. In addition, no evidence of a discharge functional capacity evaluation(FCE) was introduced.
- As the work hardening program was to conclude, Dr. Gittiban referred Claimant, on October 17, 2001, to Provider to assess whether she needed to enroll in a pain management program, and if the assessment were positive, to provide such treatment.
- On October 29, 2001, Provider’s employee, Julie Duncan, Ph.D., conducted a psychological evaluation of Claimant to determine if she were a suitable candidate for pain management.
- Dr. Duncan determined that although Claimant had received physical therapy and work hardening, during which she had received biofeedback and group therapy, and other non surgical treatments, Claimant continued to have pain and felt depressed about her condition.
- Dr. Duncan rated Claimant as functioning at a GAF of 50, and determined Claimant was a good candidate for a pain management program (PMP).
- Shortly thereafter, Provider sought preauthorization for 20 days of PMP.
- In its request for preauthorization for the PMP, on November 7, 2001, the Provider submitted a detailed treatment plan prepared by Ron Ziegler, a psychologist employed by Provider. He stated that Claimant met the classic criteria for pain management treatment.
- National Healthcare Resources Inc., Carrier’s preauthorization agent, considered the request, and on November 8, 2001, issued its decision denying the requested preauthorization because the documentation submitted did not show the requested services were medically necessary.
- The Provider resubmitted the request on November 28, 2001, and Carrier again denied preauthorization on November 30, 2001, indicating the services were not medically necessary.
- On December 7, 2001, Provider sought medical dispute resolution through the Texas Workers’ Compensation Commission’s (Commission’s) Medical Review Division (MRD).
- After reviewing the records, the MRD found on February 13, 2002, that Provider’s documentation substantiated medical necessity and preauthorized the 20 days of PMP.
- On February 28, 2002, Carrier, filed a timely request for hearing, appealing the MRD’s decision.
- The Commission sent a notice of the hearing in this matter to all parties on April 3, 2002.
- The notice of hearing 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.
- The hearing on the merits was convened on May 6, 2002, but was recessed and reconvened on June 26, 2002. The parties were represented by their respective attorneys on both dates. The record of the hearing closed on July 3, 2002, with the filing of closing arguments.
- Claimant attended a work hardening program, during which she received biofeedback, physical rehabilitation therapy, and group therapy, services which are also included in the requested PMP.
- Although Claimant participated in a six-week work hardening program, she did not experience any decrease in her pain level, reported to be 6 on a 10 point scale before she attended the program.
- Claimant did not experience significant improvement in the rigidity or range of motion of her neck or left shoulder during work hardening, even though she participated in physical therapy and ergonomic exercises during the work hardening program.
- Claimant did not experience a decrease in her level of depression or anxiety during the work hardening program, even though she participated in group therapy sessions while in the program.
- Dr. Jensen completed an interim FCE on Claimant after she had completed three weeks of work hardening; his evaluation reflected she was functioning at the light to sedentary physical demand level (PDL). The PDL requirements of her job were at the sedentary level.
- Dr. Jensen found Claimant was in a general state of debilitation, and recommended she participate in work hardening to build up her strength, endurance and tolerance to work-related activities.
- Claimant did not respond positively to many of the treatments she received in the work hardening program. After completing the work hardening program, Claimant was not released to return to work.
- No evidence was presented as to the reason(s) for Claimant’s lack of progress during the work hardening program.
- On October 17, 2001, before the conclusion of the work hardening program, Dr. Gittiban referred Claimant to Provider for pain management treatment because of her mental state.
- No evidence was presented to show that Claimant would respond differently to the same type of treatment (physical therapy, biofeedback and group therapy) that she had already received, if such treatment were provided through the requested PMP.
- The evidence did not show that PMP was necessary for Claimant to achieve withdrawal from her medications or to decrease the number of medications she was taking.
- The PMP would be no more beneficial than the work hardening program in which Claimant has already participated and would not make a major difference in her ability to return to work or substantially resolve her chronic pain.
VI. CONCLUSIONS OF LAW
- The Texas Workers’ Compensation Commission has jurisdiction over this proceeding pursuant to the Texas Workers’ Compensation 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 Tex. Labor Code Ann. § 413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
- The Commission provided proper notice of the hearing in this matter in accordance with Tex. Gov’t Code Ann. § 2001.052.
- Tex. Lab. Code Ann. § 408.021 provides:
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:
- 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. Labor Code Ann. §413.014 and 28 Tex. Admin. Code §134.600 require that certain health care treatments and services identified by the Commission, including pain clinics, require preauthorization; these are dependent upon a prospective showing of medical necessity.
- Pursuant to 28 Tex. Admin. Code § 148.21(h), the Carrier has the burden of proof in this case.
- The 20 days of PMP would not cure or relieve the effects naturally resulting from Claimant’s injury, promote her recovery, or enhance her ability to return to or retain employment.
- Therefore, the requested 20 days of a comprehensive multi-disciplinary pain management program (PMP) at Positive Pain Management Center are not medically necessary for Claimant.
IT IS, THEREFORE, ORDERED, that Respondent Positive Pain Management, is not entitled to preauthorization for 20 days of a comprehensive multi disciplinary pain management program for Claimant.
Signed this 31st day of July, 2002.
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- Although initially Dr. Sarabi testified he was employed by the Provider, later he stated he worked for ___, which is an interlocking company of Provider.↑
- The parties submitted their closing arguments in a timely manner, but Petitioner attached a 21-page article from a medical journal that had not been introduced into evidence to his closing argument. On July 17, 2002, Mr. Rogers responded to Petitioner’s closing argument, which among other things, challenged the attached article. On July 22, 2002, the ALJ issued an order stating that neither the article nor the responsive closing would be considered in making her decision.↑
- According to definitions in Stedman’s Medical Dictionary, 27th Ed., “posterior osteophytic spurring and foraminal stenosis C5-C6 causing C6 radiculitis on the left upper extremities” means that Claimant had a bony outgrowth that narrowed the spaces between the sacral vertebrae (S1-S2) in her lower spine through which the sacral nerves are transmitted to a person’s extremities. The narrowing and spurring in Claimant’s spine had resulted in nerve damage to Claimant’s left upper extremities.↑
- According to the Commission’s Medical Fee Guideline (MFG), a TENS unit (transcutaneous neurostimulator) is Durable Medical Equipment and billed at CPT code E1399. (See 1996 MFG, pp. 179, 254, 278). However, when TENS application is being performed on a trial basis, it is billed as CPT code 97139-TN. (1996 MFG, p. 44).↑
- According to Stedman’s Medical Dictionary, 27th Ed., tenosynovitis is inflammation of the tendon and its enveloping sheath. De Quervain’s tenosynovitis is inflammation of the tendons of the first dorsal compartment of the wrist.↑
- See Dr. Gittiban’s October 17, 2001, referral to Provider indicating that Claimant appears to need pain management due to her “depression/desperation [illegible] and anxiety” in the certified record, p. 29.↑
- Ground Rule (f)(2)(E) of the Mental Health Treatment Guideline(MHTG) provides that in deciding level of service, two indicators, the Severity of Psychosocial Stressor Scale (PSS) and the Global Assessment of Functioning Scale (GAF, which provides a way to measure a patient’s current ability to function in the presence of the illness) must be included in establishing rationale for level of service and treatment plan. Both the PSS and the GAF scales are derived from the Diagnostic and Statistical Manual (DSM) of the American Psychiatric Association.↑
- See Ground Rule (i), (j) and (k) of the MHTG for explanation of the significance of the PSS and GAF scores. Generally, a PSS score of 3 represents moderate mental illness, as does a GAF score of 50.↑
- According to Dr. Sarabi, Claimant’s was a micro trauma, i.e., repetitive motion trauma due to poor ergonomic environment at work or by sustained flexion of the neck. The ALJ notes, however, that Claimant had reported a prior work-related injury in ___. While working at ___, she had hit her head on a metal bar and reported neck pain and headaches in ___. (See Pet. Ex. 1, p. 2).
With regard to Claimant’s work environment in 2001, Dr. Sarabi stated he had not ever viewed, but had reached his conclusion based on the general description for “customer service representative” that he had found in the Dictionary of Occupations.↑