DECISION AND ORDER
Hartford Insurance Company (Carrier) requested a hearing from the decision of the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) to approve the preauthorization request of the Suchowiecky Center (Provider) for thirty sessions of chronic pain management for ___, an injured worker. In this decision, the ALJ agrees with MRD and authorizes claimant ___ to receive thirty sessions of chronic pain management as medically reasonable and necessary.
I. PROCEDURAL HISTORY, NOTICE AND JURISDICTION
A hearing in this matter was convened on July 8, 2002, at the William Clements Building, 300 W. 15th Street, 4th Floor, Austin, Texas. Carrier was represented by its attorney, James Loughlin. Provider was represented by Dr. Mary Ann Spires, who appeared by telephone. The Texas Workers’ Compensation Commission (Commission) waived its appearance. Craig R. Bennett, an Administrative Law Judge (ALJ) with the State Office of Administrative Hearings (SOAH), presided. The record closed on July 9, 2002, after the parties were given an opportunity to submit additional documents.
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.
II. FACTUAL BACKGROUND
___ injured his back on_________________, when he slipped while stepping off a ladder at his place of employment. He went to the emergency room at a local hospital for treatment that same day. He then attempted to return to work the next day, but was unable to because of continued pain, so he returned to the emergency room and received additional pain medication. Thereafter, ___ sought ongoing treatment from Dr. Sam Liscum of the Back and Joint Clinic. As part of his ongoing treatment, ___ attended over 30 sessions of physical therapy, received two epidural steroid injections, obtained chiropractic manipulation, and had back surgery. Despite extensive treatment, ___ continued to suffer relatively high levels of pain (rated as a 7 or 8 on a scale of 0-10, with ten being the highest level of pain) in his lower back, legs and feet. In June 2001, after nearly two years of ongoing treatment, Dr. Liscum referred ___ to the Suchowiecky Center for evaluation and treatment of his chronic pain.
In October 2001, Dr. Doris Cowley evaluated ___ and concluded that the appropriate course of treatment was to have ___ participate in 30 sessions of a pain management program, including medication management, individual therapy, group therapy, biofeedback therapy, physical conditioning, massage therapy, and vocational counseling. Her recommendation was based upon ___’s persistent pain, psychosocial impairment and functional limitations.
On October 26, 2001, Provider requested preauthorization to provide ___ with 30 sessions of pain management therapy. Carrier denied the request on October 30, 2001, on the basis that the medical documents did not reflect the etiology of ___’s pain nor provide sufficient justification that the requested treatment would benefit ___ The request was resubmitted to Carrier on November 2, 2001. Carrier continued to dispute the medical necessity of the treatment and denied the second request on November 9, 2001. Provider requested review through the MRD process, and MRD found that the requested treatment was consistent with the Commission’s Mental Health Treatment Guideline (MHTG) and Spine Treatment Guideline (STG), and medically reasonable and necessary treatment for ___’s compensable injury. The decision by MRD was issued on February 28, 2002, and Carrier filed its request for a hearing before SOAH on March 8, 2002.
III. APPLICABLE LAW
This matter is governed by the Texas Workers’ Compensation Act (Act) and the Commission’s rules. Section 408.021(a) of the Act governs an injured worker’s entitlement to benefits for compensable injuries under the Act, and states 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:
- 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.
“Health care” includes all reasonable and necessary medical services. Certain categories of healthcare, however, require preauthorization before they can be provided within the strictures of the Act; preauthorization is granted if there is a prospective showing of medical necessity. Chronic pain management is one type of treatment for which preauthorization is required.
Before treatment will be preauthorized, it must be shown to be medically reasonable and necessary. Because ___ sustained a back injury, the Commission’s STG applies and provides guidance on the types of treatment that are recognized as medically reasonable and necessary. The STG sets forth the standard methods and procedures for providing treatment for injuries to the back arising under the Act. Further, the MHTG applies to requests for referral to chronic pain management programs. Under the MHTG, the 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:
- (1)the patient is facing significant, permanent loss of functioning that requires major physical, vocation, and psychological readjustment;
- (1)diagnostic findings are insufficient to explain the pain or further invasive medical treatment is not an option;
- (1)pain has persisted beyond the expected tissue healing time;
- (1)the patient has chronic pain linked to adverse interpersonal relationships which interfere with rehabilitation;
- (1)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;
- (1)documented history of inappropriate and excessive use of narcotic sedative/hypnotic medications, or alcohol;
- (1)the patient continues to express unrealistic expectations regarding outcome or medical/psychiatric intervention in relief of their own symptomatology; or
- (1)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.
The issue in this case is whether the requested 30 sessions of chronic pain management should be preauthorized as medically necessary and reasonably required to treat ___’s injury of ___. As the party challenging the MRD decision, Carrier has the burden of proof. After considering the evidence and arguments of the parties, the ALJ concludes that Carrier has failed to show, by a preponderance of the evidence, that the chronic pain management therapy is not medically necessary and should not be preauthorized as treatment for ___’s ___ injury. Therefore, the MRD decision stands and the requested treatment is preauthorized.
Carrier challenges the requested treatment on two primary grounds. First, Carrier contends that ___ should have undergone outpatient psychotherapy before entering a pain management program. Carrier argues that the MHTG normally requires such, and the Act and the STG require that treatment be provided in the least intensive setting possible and in a cost-effective manner. Carrier notes that chronic pain management programs generally involve day-long sessions regularly conducted over a six-week time period, and often cost more than $20,000. Carrier asserts that psychotherapy is less intensive and less expensive than a chronic pain management program and, therefore, should be attempted first.
Carrier also argues that a previous discogram showed that ___ had an operable lesion and indicated that this was a likely cause of his pain. Carrier notes that the medical records reflect that Dr. Berliner had requested to perform back surgery on ___, and asserts that such back surgery should be performed before ___ is entitled to undergo chronic pain management. Carrier contends that the STG requires that surgical treatments must have failed before chronic pain management is attempted. Carrier points out that the record is devoid of any outcome of the back surgery recommendation and, without any evidence that surgery was not appropriate or failed to resolve the problem, then chronic pain management should not be authorized.
While Carrier’s arguments give the ALJ pause, ultimately the ALJ concludes that the arguments and evidence presented by Carrier do not establish, by a preponderance of the evidence, that the chronic pain management program is not medically necessary treatment for ___ First, the ALJ notes that the MHTG does not indicate that psychotherapy is an absolute prerequisite to chronic pain management therapy; rather, the MHTG states that some patients will not respond to psychotherapy and will require referral to chronic pain management programs. This is merely recognition that psychotherapy is not successful with all patients, not a requirement that psychotherapy be attempted and exhausted prior to chronic pain management. Treatment decisions of the examining physician or mental health professional are given great weight and the ALJ generally will not second-guess such decisions in the absence of direct conflict with the treatment guidelines, statutes, or opinions of other medical professionals.
Here, both the treating physician and Dr. Spires conclude that chronic pain management is appropriate for ___, even without psychotherapy being conducted. Dr. Spires acknowledges that both the STG and MHTG recommend less intensive treatments be conducted first, but she also notes that both guidelines recognize that some patients will require treatment that does not routinely follow the guidelines’ suggested course of treatment. Dr. Spires concludes that ___ is one such patient. Dr. Spires also notes correctly that the guidelines are not to be used as the sole basis of a denial of care and are not intended to prescribe exact methods and sequence of care. The ALJ agrees. Moreover, the ALJ notes that the requested treatment is not inconsistent with applicable guidelines.
Dr. Spires’ testimony and the other evidence in the record show that ___ meets the criteria for referral to a chronic pain management program. ___ has undergone numerous different treatment options with little ultimate success in relieving his chronic pain; he has not responded to past surgery; his pain has persisted beyond the expected tissue healing time; he has had physical and 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. Further, ___’s GAF score was 51; he has not responded to primary or secondary stages of outpatient physical therapy in a reasonable period of time; and he exhibits pain behavior, functional limitations and/or mental/emotional dysfunction which are disruptive to his activities of daily living. All of this puts ___ squarely within the criteria for referral to a chronic pain management program.
The ALJ also is not persuaded by Carrier’s argument that further surgery may be an effective form of treatment for ___ and should be ruled out prior to chronic pain management. While the evidence raises some question that further surgery might be appropriate for ___, it is not conclusive. Medical records from November 9, 2001, state that ___ “is presently awaiting approval for a lumbar fusion surgery with Dr. Berliner.” Medical records from February 15, 2002, state “awaiting approval for evaluation by Dr. Berliner for back surgery.” These two records appear to conflict, because one states approval is sought for surgery while the other, more recent, document reflects that approval is sought for an evaluation by Dr. Berliner for back surgery. It may just be semantics, but without further clarification, the ALJ cannot conclude that these documents clearly show that ___ was a candidate for back surgery. Further, Dr. Spires testified that ___ already had a lumbar fusion surgery and she thought the procedure Dr. Berliner was considering was an IDET procedure. Given that the burden of proof in this proceeding rests with Carrier, it is not simply enough for Carrier to raise some vague doubts as to whether surgery might be performed which would resolve ___’s treatment better than chronic pain management. Instead, Carrier must show that the requested treatment is not medically necessary. Carrier has not done this.
The record contains significant, persuasive evidence that ___ meets the criteria for referral to a chronic pain management program, and the ALJ does not find that the requested treatment is inconsistent with either the STG or the MHTG. Carrier, while raising some questions as to the possibility of other treatments being attempted first, has failed to carry its burden of proof in this case to show that the requested treatment is not medically necessary and should not be preauthorized. For these reasons, the MRD decision stands and the requested treatment is authorized.
V. FINDINGS OF FACT
- The Texas Workers’ Compensation Commission sent notice of the hearing in this matter to all parties on April 5, 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 was continued from its original setting by agreement of the parties. The hearing convened on July 8, 2002, and all parties appeared and participated in the hearing.
- ___, an injured worker, sustained a compensable work-related injury to his back on_____________, when he slipped off a ladder. At the time of his injury, ___’s workers’ compensation insurance coverage was provided by Hartford Insurance Company (Carrier).
- ___ began undergoing treatment by Dr. Sam Liscum, D.C., who concluded that ___ suffered from “displacement of lumbar invertebral disc without myelopathy.”
- While under the care of Dr. Liscum, ___ underwent physical therapy, chiropractic manipulation, epidural steroid injections, and back surgery. ___ also was prescribed numerous medications for chronic pain, none of which has relieved his pain permanently.
- On June 6, 2001, Dr. Liscum referred ___ to the Suchowiecky Center (Provider) for chronic pain management evaluation.
- In October 2001, ___ was evaluated by Dr. Doris M. Cowley, M.D., of the Suchowiecky Center. Dr. Cowley found that ___ suffered from ongoing pain in his lower back and legs, depression, sleep pattern disturbance, inadequate coping ability, and impaired functionality.
- Dr. Cowley also noted that ___ had a score of 51 on the GAF (global assessment of functioning).
- Dr. Cowley recommended that ___ participate in 30 sessions of pain management, including medication management, individual therapy, group therapy, biofeedback therapy, physical conditioning, massage therapy, and vocational counseling. Her recommendation was based upon ___’s persistent pain, psychosocial impairment and functional limitations.
- Dr. Cowley’s recommendation for chronic pain management contained documented, expected outcomes for ___ which would result in reduced pain by 30 to 40%, better management of pain, education about pain coping patterns, decreased sleep latency and increased number of uninterrupted sleep, and increased strength and endurance.
- On October 26, 2001, Provider requested preauthorization to provide ___ with the recommended thirty sessions of pain management.
- The request for preauthorization was denied by Carrier on October 30, 2001, on the basis that the medical documents did not reflect the etiology of ___’s pain nor provide sufficient justification that the requested pain management program would benefit ___
- Provider resubmitted the request to Carrier on November 2, 2001, and Carrier denied the second request on November 9, 2001.
- Provider requested medical dispute resolution through the Commission’s Medical Review Division (MRD).
- On February 28, 2002, MRD preauthorized 30 sessions of chronic pain management treatment for ___
- On March 8, 2002, Carrier requested a hearing before the State Office of Administrative Hearings on the decision issued by MRD.
VI. CONCLUSIONS OF LAW
- The Texas Workers’ Compensation Commission (the Commission) has jurisdiction over this matter pursuant to Tex. Lab. Code Ann. § 413.031.
- SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. § 413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
- Carrier timely requested a hearing, as specified in 28 Tex. Admin. Code §148.3.
- Proper and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. § 2001.052 and 28 Tex. Admin. Code §148.4.
- Carrier has the burden of proof in this matter pursuant to 28 Tex. Admin. Code §148.21(h).
- Tex. Labor Code Ann.§413.014 and 28 Tex. Admin. Code § 134.600 require that chronic pain management programs be preauthorized, dependent on a showing of medical necessity.
- Carrier failed to establish that the chronic pain management sessions would not cure or relieve the effects naturally resulting from ___’s injury, promote his recovery, or enhance his ability to return to or retain employment.
- Carrier did not establish that the 30 sessions of chronic pain management were not medically necessary to treat ___’s injury.
- Based on the foregoing Findings of Fact and Conclusions of Law, the Findings and Decision of the Commission’s Medical Review Division issued in this matter on February 28, 2002, are upheld; preauthorization for the requested 30 sessions of chronic pain management should be approved, pursuant to§ 413.014 of the Act and 28 Tex. Admin. Code § 134.600.
It is ORDERED that ___ is entitled to preauthorization of 30 sessions of chronic pain management by Provider.
Signed this 18th day of July, 2002.
STATE OFFICE OF ADMINISTRATIVE HEARINGS
CRAIG R. BENNETT
Administrative Law Judge
- The MHTG is at 28 Tex. Admin. Code §134.1000, and the STG is at 28 Tex. Admin. Code § 134.1001.↑
- The Act is found at Tex. Lab. Code Ann. ch. 401 et seq.↑
- Tex. Lab. Code Ann. §401.011(19).↑
- Tex. Labor Code Ann. § 413.014; 28 Tex. Admin. Code §134.600.↑
- 28 Tex. Admin. Code§134.600(h)(10)(B).↑
- 28 Tex. Admin. Code § 134.1000(I)(3)(B).↑
- During the hearing, it was revealed that ___ has already undergone the requested chronic pain management program. This is of no consequence to the ALJ’s analysis because the issue of preauthorization still must be decided because it impacts the Provider’s entitlement to be reimbursed for the treatment provided.↑
- 28 Tex. Admin. Code § 148.21(h).↑
- 28 Tex. Admin. Code §134.1000(I)(3)(A).↑
- Ex. 3.↑
- Ex. 4.↑