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At a Glance:
Title:
453-02-2804-m5
Date:
November 20, 2002
Status:
Retrospective Medical Necessity

453-02-2804-m5

November 20, 2002

DECISION AND ORDER

I. SUMMARY

Positive Pain Management (Provider) sought reimbursement for chronic pain management services provided to the injured worker_____. (Claimant), for which American Home Assurance (Carrier) denied payment. Upon review of the claim, the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission) recommended no reimbursement be made to Provider because the documentation was insufficient to show that the treatment was related to the compensable injury. This decision concludes that Carrier should reimburse Provider in the amount of $12,960.

On September16, 2002, Stephen J. Pacey, Administrative Law Judge (ALJ), convened the hearing at the William P. Clements Building, 300 West 15th Street, Austin, Texas. Attorney Peter N. Rogers represented Provider, and attorney Steven Tipton represented Carrier. The Commission was not a party to the action. After the evidence was presented, the ALJ allowed the parties two weeks to submit written closing statements, and the record closed on October 1, 2002.

II. JURISDICTION

Claimant was involved in a roll-over truck accident in ____ and suffered a compensable slip and fall injury in____. Carrier asserted that it was impossible to determine whether the treatment was directed at the ___ compensable injury or the ____ injury. The MRD denied reimbursement on the basis that the documentation was insufficient to determine whether the treatment related to the compensable injury. Carrier argued that the State Office of Administrative Hearings (SOAH) does not have jurisdiction to reverse the Medical Review Division’s decision and order the reimbursement requested. Carrier asserted that an issue of extent of injury is a dispute that is subject to TWCC jurisdiction. Carrier indicated that an order of payment from SOAH would have to be based upon an affirmative finding in favor of the Claimant on the liability issue. Carrier alleged that Claimant has not exhausted its remedy regarding the issue because in the future, TWCC could determine that the condition, which is the subject of the treatment in this dispute, is not a part of the compensable injury.

While Carrier’s argument was novel,[1] the ALJ disagrees with the analysis, and concludes that this case does not involve a compensable issue. Carrier places its emphasis on the two conditions, the ____ injury and the ____ injury. The emphasis be on the treatment not the conditions. The issue in the case is whether the treatment related to the compensable injury. Pain management is a generic type of treatment, and might help pain related to and unrelated to the compensable injury. The determination to be made is simply did the treatment relate to the compensable injury, and whether it helped with unrelated pain is irrelevant. The case does not involve a question of compensability, and SOAH may make the decision whether the treatment was medically necessary to alleviate Claimant’s pain caused by the compensable injury.

III. DISCUSSION

On______, Claimant, ______, suffered a compensable injury to his right leg and lower back when he slipped while sweeping water out of his guard booth. A few days later, he re-injured his back when he fell on a sliding door. Claimant experienced severe lower back pain with pain radiating into the right lower extremity. An MRI scan showed a bulging disk at L4-5 and a sacralized L5 vertebral body. An additional MRI revealed a C5B6 herniated disk. On June 15, 2000, Dr. Giri performed a diskectomy with fusion on the Claimant.

When Claimant’s pain continued subsequent to his surgery, he was referred to Ron R. Ziegler, Ph.D. at Positive Pain Management, Inc. On February 16, 2001, Dr. Ziegler examined Claimant and concluded that without a chronic pain management program, “the Claimant would continue to meander across the health care system, with little chance of returning to work.” On February 26, 2001, Carrier preauthorized 10 days or 80 hours of pain management, and paid Provider for those services. On March 19, 2001, Carrier preauthorized an additional 10 days of pain management. After preauthorizing the services, Carrier denied payment for the services performed on April 2-6, 9-13, and 16 and 17, 2001. These are the dates of service in dispute.[2]

IV. ANALYSIS AND CONCLUSION

Carrier preauthorized pain management programs on three occasions, including the disputed dates of treatment. By preauthorizing the treatments, Carrier acknowledged that the program was medically necessary to treat the pain associated with the compensable injury. Carrier’s actions indicated that it believed that there was still pain associated with the compensable injury. Carrier’s argument that it does not determine whether the treatment relates to compensability at the time of preauthorization, is not logical, and it does not agree with 28 Tex. Admin. Code (TAC) §134.600(a)[3] which states in pertinent part:

The insurance carrier is liable for the reasonable and necessary costs relating to the health care treatments and services listed in subsection (h) of this section required totreat the compensable injury. (Emphasis added)

If the treatment is unrelated to the compensable injury, the issue should be considered during the preauthorization process not after preauthorization has been approved and the services rendered.

Further, 28 TAC §133.301(a) provides:

The insurance carrier shall retrospectively review all complete medical bills and pay for or deny payment for medical benefits in accordance with the Act, rules, and the appropriate Commission fee and treatment guidelines. The insurancecarriershall 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 preauthorizationunder Chapter 134 of this title (relating to Guidelines for Medical Services, Charges, and Payments). (Emphasis added)

Since Carrier cannot retrospectively review the medical necessity of a medical bill for treatment for which the Provider has obtained preauthorization, the only determination to be made is whether treatments administered to the Claimant related to the compensable injury.

The type of multi-disciplinary pain management program performed on Claimant taught him to define pain, to identify the stressors that exacerbate it and how to accommodate some level of pain, and to provide instruction in management techniques. Pain management is not specific in nature; it teaches a person to cope with pain in a general manner, and it would apply to any type of pain a person may have including pain from the ____ slip and fall injury.

A review of the treatment records for the period April 2B17, 2001, indicated that Claimant’s psychological reactions to his pain were addressed in group psychotherapy; yoga was provided to increase blood flow and pain control; individual psychotherapy was provided to increase coping skills; group therapy addressed anger control and self-management of pain; the role of nutrition was emphasized; relaxation techniques were taught; and methods for controlling and dealing with pain were taught. In short, the focus of the chronic pain management program was appropriately pain in general rather than specific pain, and the physical parts of the program addressed the compensable body parts.

In summation, Provider proved by a preponderance of the evidence that the compensable injury caused pain and the general pain management program helped Claimant cope with this pain, consequently the treatment related to the compensable injury, and the ALJ concludes that the Carrier should reimburse Provider $12,960.

V. FINDINGS OF FACT

  1. Claimant sustained an injury on________, to his head, neck, and upper back that was compensable under the Texas Workers’ Compensation Act (Act).
  2. At the time of the injury, Claimant’s employer had workers’ compensation coverage with American Home Assurance Company (Carrier).
  3. As a result of his injury, Claimant received an anterior cervical fusion with posterior instrumentation on June 15, 2000.
  4. After the surgery, Claimant experienced pain in his neck and upper back and pain radiating down his right leg with associated numbness.
  5. Nerve blocks and injection therapy were provided to Claimant, but these treatments did not alleviate the long-term pain.
  6. Due to Claimant's failure to respond to therapy and complaints of pain out of proportion to apparent pathology, Dr. Jeffrey Wasserman, referred Claimant to Positive Pain Management for an evaluation.
  7. Claimant was a suitable candidate for participation in a chronic pain management program.
  8. On February 26, 2001, Carrier’s preauthorization agent recommended that ten days (eighty hours) of pain management was medically necessary for Claimant.
  9. On March 19, 2001, Carrier’s preauthorization agent recommended that ten additional days of pain management were medically necessary for Claimant.
  10. On April 5, 2001, Carrier’s preauthorization agent recommended that ten additional days of pain management were medically necessaryfor Claimant.
  11. Claimant attended all thirty days of the chronic pain management program that were preauthorized by Carrier and that were provided by the Positive Pain Management (Provider).
  12. The pain management program consisted of yoga, psychotherapy, group therapy, nutrition, and relaxation techniques.
  13. The pain management program was not specific in nature; it teaches a person to cope with pain in a general manner, and it would apply to any pain Claimant experienced.
  14. The treatment received by Claimant during the period April 2, 2001, through April 17, 2001, addressed his pain from his compensable injury.
  15. Carrier paid for dates of service from March 1, 2001, through March 30, 2001.
  16. Provider billed Carrier $12,960 for dates of service April, 2001.
  17. Carrier denied reimbursement of the claim, indicating that the treatment was unrelated to the compensable injury.
  18. On March 5, 2002, the MRD concluded that Provider’s claim should be denied.
  19. On March 21, 2002, Provider appealed the MRD’s decision.
  20. The Commission sent notice of the hearing to the parties on May 1, 2002. The hearing notice informed the parties of the matter to be determined, the right to appear and be represented, the time and place of the hearing, and the statutes and rules involved.
  21. The hearing was held on September 16, 2002. Provider was represented by attorney Peter N. Rogers, and Carrier was represented by its attorney, Steven M. Tipton. The record of the hearing closed on October 1, 2002, with the filing of briefs.

VI. CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented, pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. §413.031.
  2. 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 and 413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
  3. The Provider timely filed notice of appeal of the MRD decision, as specified in 28 Tex. Admin. Code (TAC) § 148.3.
  4. Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov’t Code Ann. ch. 2001.
  5. Carrier’s act of preauthorizing the program indicated that Carrier’s belief that the pain management program was medically necessary to treat the pain associated with the compensable injury. 28 TAC § 134.600.
  6. Pain management was medically necessary because the services were preauthorized.

28 TAC § 133.301(a).

  1. Based on Findings of Fact Nos. 8-14, the pain management treatment related to the compensable injury
  2. Based on the foregoing findings of fact and conclusions of law, Provider proved its claim for pain management services and Carrier should reimburse Provider $12,960.

ORDER

It is hereby ordered that the American Home Assurance Company reimburse Positive Pain Management the sum of $12,960.

Signed this 20th day of November, 2002.

STEPHEN J. PACEY
Administrative Law Judge
State Office of Administrative Hearing

  1. Most, if not all, SOAH decisions where compensation is an issue has been brought up at a preauthorization hearing, not after three preauthorization are granted be Carrier.
  2. Provider also charged $100 per visit for Claimant’s transportation. This claim was dropped at the hearing because TWCC’s rules do not allow for a healthcare provider to be reimbursed for a patient’s travel expense.
  3. This rule is titled Procedure for Requesting Preauthorization of Specific Treatments and Services.
End of Document
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