Your FREE and easy resource for all things Texas workers' compensation
At a Glance:
Title:
453-02-3601-m2
Date:
October 24, 2002
Status:
Pre-Authorization

453-02-3601-m2

October 24, 2002

DECISION AND ORDER

_____ (Claimant) has appealed a decision of the independent review organization (IRO), the designee of the Texas Workers’ Compensation Commission (Commission), denying preauthorization for attendant care for Claimant. In this decision, the Administrative Law Judge (ALJ) finds that Claimant has failed to meet his burden of showing that the requested treatment is reasonable and necessary medical care for his compensable injury. Accordingly, the ALJ finds that attendant care should not be preauthorized and Carrier is not required to reimburse Claimant for such care.

I. Background Facts

Link Staffing Services hired Claimant as a carpenter’s assistant in________. On_______, ____, during Claimant’s first day on the job, he fell approximately ten feet to the ground when an elevated platform on which he was working collapsed. Claimant lost consciousness for a couple of minutes but suffered no fractures or open wounds. However, he immediately began suffering from headaches, and pain in his back and limbs. He also began suffering from some loss of mobility and function because of his pain and muscle spasms. At the time of Claimant’s injury, Empire Lloyds Insurance Company (Carrier) provided workers’ compensation insurance coverage to him. Claimant initially received treatment for his injury when he was driven to a medical clinic on the day of his injury. Thereafter, Dr. Arthur Sarris began providing Claimant with ongoing medical treatment, including spine fusion surgery in 1994. Other physicians also provided treatment to Claimant for his compensable injury, including Dr. Richard Buch who performed right knee arthroscopic surgery on Claimant in 1995. In 1997, Claimant was seen by Dr. James Elbaor, who tested Claimant to determine his level of impairment. Dr. Elbaor issued his report on January 20, 1998, certifying Claimant as having a whole body impairment of 56%.

On February 19, 2002, Claimant requested preauthorization for attendant care, to be provided by Claimant’s mother,_________.[1] Claimant requested that such attendant care be provided seven days per week, nine hours per day, at a rate of $16.50 per hour-for a total weekly expense of $1,039.50. Carrier denied preauthorization, concluding that there was no medical necessity for attendant care and determining that many of the services to be provided by _________were not medical benefits for which reimbursement would be allowed under the Texas Workers’ Compensation Act. In denying the requested preauthorization, Carrier relied on the determination of a physician advisor and on the prior medical reports and opinions of Dr. Robert A. Callewart and Dr. John A. Gragnani, each of whom had previously rendered opinions regarding Claimant’s post-injury condition. Claimant then requested that the Commission review and overrule Carrier’s denial of preauthorization. The matter was referred to an IRO designated by the Commission for the review process. The IRO determined that attendant care was not medically necessary and should not be authorized. Claimant then requested a hearing before SOAH.

The hearing before SOAH convened on October 10, 2002, with ALJ Craig R. Bennett presiding. Carrier appeared through its representative, Beverly L. Vaughn. Claimant appeared and was assisted by Commission ombudsman Barton Levy. No parties objected to notice or jurisdiction. Evidence was taken and the record closed the same day.

II. DISCUSSION

At the hearing, Claimant presented testimony from himself and his mother regarding the extent of his injuries, his limited functionality, and the extent to which his mother currently provides attendant care. In particular, Claimant testified that he has essentially lost the use of his legs and must use a wheelchair to get around. Moreover, because of frequent muscle spasms and muscle tightening, Claimant is unable to reliably use his arms and hands for cooking, driving, or other activities where he could cause serious harm to himself or others if he were to lose control of his limbs. Claimant testified to having constant pain from his injuries and to having to rely on his mother to assist him in performing most of his normal life activities. Among other things, Claimant’s mother helps him move around his house, cooks for him, drives him around, helps him into the shower, helps him with his medications, and monitors him while he sleeps to ensure that he continues breathing.[2] Claimant’s mother also testified to Claimant’s injury and the extent to which she is required to assist Claimant in his daily life activities.

Further, Claimant presented the medical reports of Dr. Sarris and Dr. Elbaor. In his reports, Dr. Sarris notes his conclusion that Claimant suffers from Reflex Sympathetic Dystrophy (RSD) a condition with a large number of diverse symptoms, including the loss of muscle function, dizziness, pain and tingling sensations, blackouts, and occasional trembling and muscle spasm similar to that found in patients suffering from Parkinson’s disease.[3] Dr. Sarris opines that Claimant suffers RSD affecting his spine, upper extremities, and lower extremities, and has developed idiopathic paraplegia, thus necessitating his use of a wheelchair.[4] Dr. Sarris asserts that Claimant needs constant care because of his condition, and Dr. Sarris recommends that Claimant’s mother provide that care because of her familiarity with his condition and his tendencies, and her involvement in his medical treatment to date. Absent attendant care, Dr. Sarris concludes that Claimant will be unable to perform the activities of daily living and may become suicidal.[5]

Claimant also presented the reports of Dr. Elbaor. In his reports, Dr. Elbaor does not attempt to make a full diagnosis of Claimant’s condition, but he does state his conclusions regarding Claimant’s limited functioning and his determination that Claimant has a 56% impairment rating.[6] Dr. Elbaor speculates that RSD might be a possible cause of Claimant’s impairment, but does not specifically support Dr. Sarris’s conclusion that Claimant has RSD.

In response, Carrier presented the written medical reports of Drs. Callewart and Gragnani, along with a report by Dr. Karl Erwin documenting an independent medical examination (IME) of Claimant conducted on July 10, 2002. Dr. Erwin’s IME was conducted pursuant to an order of the Commission in a related proceeding to determine benefits for Claimant. Each of these doctors opined that Claimant did not have RSD and that most of his symptoms were subjective and either were falsified or were the result of his psychological state, rather than the result of an injury or actual medical condition. Dr. Erwin stated that, in his opinion, Claimant “manifests his pain subjectively as part of a deeply rooted psychopathology now intertwined with a tangled web of maternal codependency.”[7] Dr. Gragnani found Claimant’s symptomology to be unexplainable but not likely related to his compensable injury. Dr. Gragnani further speculated that Claimant’s problems were psychological, stating that he “would suggest that psychological and psychiatric evaluation be performed on [Claimant] to determine clearly whether [Claimant] really has psychiatric disease that may be the underlying problem here, not related to the injury but possibly feeding all of the other issues.”[8] Perhaps most scathing of all, Dr. Callewart found that Claimant exaggerated his symptoms and that many of his symptoms could not possibly relate to Claimant’s injury. Finally, Dr. Callewart concluded his opinion by stating “[t]he patient states his construction work is temporary and his real vocation in life is acting. I feel he is now.”[9] Each of these doctors found that Claimant’s symptoms simply were not consistent with his injury nor with the objective physical findings.

In their reports, each of the physicians relied on by Carrier point out inconsistencies with Claimant’s objective physical findings and what would be expected from a person with RSD. In particular, they note that RSD is known to affect a specific part of the body rather than the whole person, as is allegedly the case with Claimant. Moreover, they note that RSD usually results in a person’s muscle and tissue atrophying and the skin coloration changing, neither of which are present in Claimant even though he supposedly has had RSD for more than nine years.[10] They also note that Claimant claims to have lost the use of his legs for some time and claims to have had frequent falls in the past when his legs gave out, but they point out that he has no reported injuries from such alleged falls and that his leg muscles still appear strong and toned-a finding that is inconsistent with lack of use. Ultimately, all three of the physicians relied on by Carrier conclude that Claimant’s symptoms are not consistent with RSD nor with his underlying compensable injury of_____. Although only Dr. Gragnani specifically states that Claimant does not need attendant care, it is clear that none of the three physicians’ reports support Claimant’s request for attendant care.

After reviewing the evidentiary record, the ALJ finds that Claimant has failed to meet his burden of proof.[11] More specifically, the ALJ is not persuaded by the medical opinion of Dr. Sarris, where at least three separate physicians and the IRO physician all disagree with his conclusions and have determined that Claimant’s symptoms are not consistent with his injury and are not supported by objective findings. The weight of the medical evidence in the record supports the conclusion that Claimant’s symptoms are not the result of his injury and possibly may be attributable to a psychological condition. The ALJ does not necessarily discount the physical symptoms that Claimant claims to experience, but the ALJ also is persuaded that it is quite possible that such physical symptoms have a psychological root that is unrelated to his compensable injury. While the ALJ is sympathetic to Claimant’s condition, the ALJ cannot find that even the preponderance of the evidence supports the conclusion that Claimant’s underlying compensable injury has resulted in his symptoms and would justify attendant care as requested. For the foregoing reasons, the ALJ concludes that attendant care is not reasonable and necessary medical treatment for____.’s compensable injury of _____ and should not be authorized.

III. FINDINGS of Fact

  1. Claimant _____ suffered a compensable injury on__________. At the time of____.’s injury, Empire Lloyds Insurance Company (Carrier) was the workers’ compensation insurance carrier for____.’s employer.
  2. As a result of his injury, Claimant lost consciousness for several minutes but suffered no fractures or open wounds.
  3. Claimant began receiving ongoing medical treatment from Dr. Arthur Sarris, including spine fusion surgery in 1994. Dr. Sarris diagnosed Claimant with Reflex Sympathetic Dystrophy (RSD). Dr. Sarris continues to treat Claimant and maintains his diagnosis of RSD for Claimant.
  4. Claimant has also received treatment for his compensable injury from other physicians, including right knee arthroscopic surgery performed by Dr. Richard Buch in 1995.
  5. In 1997, Claimant was seen by Dr. James Elbaor, who tested Claimant to determine his level of impairment. Dr. Elbaor’s report was issued on January 20, 1998, certifying Claimant as having a whole body impairment of 56%.
  6. Claimant was seen by Dr. Robert Callewart in April 1996, who determined that Claimant did not have RSD and that Claimant’s symptoms were likely psychologically-based and not related to his compensable injury of 1993.
  7. Dr. John Gragnani reviewed Claimant’s medical records and issued a report on October 10, 2000, discussing Claimant’s condition. Dr. Gragnani concluded that it was highly unlikely that Claimant had RSD or that his symptoms were related to his compensable injury of 1993.
  8. On February 19, 2002, Claimant requested preauthorization for attendant care, to be provided by Claimant’s mother, __________. Claimant requested that such attendant care be provided seven days per week, nine hours per day, at a rate of $16.50 per hour-for a total weekly expense of $1,039.50.
  9. Carrier denied preauthorization, concluding that there was no medical necessity for attendant care and determining that many of the services to be provided by ________were not medical benefits for which reimbursement would be allowed under the Texas Workers’ Compensation Act. In denying the requested preauthorization, Carrier relied on the determination of a physician advisor and on the prior medical reports and opinions of Drs. Callewart and Gragnani.
  10. On April 2, 2002, Claimant requested that the Commission review and overrule Carrier’s denial of preauthorization. The matter was referred to an Independent Review Organization (IRO) designated by the Commission for the review process.
  11. On June 8, 2002, the IRO issued its decision, determining that attendant care was not medically necessary and should not be authorized for Claimant.
  12. On June 14, 2002, in response to the IRO decision, Claimant filed a request for a hearing before the State Office of Administrative Hearings (SOAH).
  13. On July 10, 2002, Claimant was examined by Dr. Karl Erwin pursuant to a Commission-ordered independent medical examination in a related proceeding. Dr. Erwin concluded that Claimant does not have RSD and that his loss of leg function was not related to his compensable injury of_____.
  14. Notice of the hearing in this case was mailed to the parties on July 15, 2002. The notice 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. In the notice, the Commission’s staff indicated that it would not participate in the hearing.
  15. On October 10, 2002, a hearing at SOAH convened before Craig R. Bennett, Administrative Law Judge presiding. Carrier appeared through its representative, Beverly L. Vaughn. Claimant appeared and was assisted by Commission ombudsman Barton Levy. Evidence was taken and the record closed the same day.
  16. Claimant’s objective physical appearance and condition are inconsistent with a diagnosis of RSD or with many of his subjective complaints.
  17. Claimant’s current symptoms, which are allegedly the cause of his limited functioning, are not consistent with his compensable injury of ______ nor with the existence of RSD.
  18. Attendant care is not reasonable or necessary medical care for Claimant’s compensable injury of______.

IV. CONCLUSIONS of Law

  1. The Commission has jurisdiction over this matter pursuant to Tex. Lab. Code § 413.031.
  2. SOAH has jurisdiction over this proceeding pursuant to Tex. Lab. Code Ann §413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
  3. Claimant timely filed his request for a hearing, as specified in 28 Tex. Admin. Code § 148.3.
  4. Proper and timely notice of the hearing was effected upon the parties according to Tex.
  5. Gov’t Code § 2001.052 and 28 Tex. Admin. Code § 148.4.
  6. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001 and Tex. Admin. Code §§133.305, 133.308, and 148.1et seq.
  7. Claimant, as the party appealing, had the burden of proof at the hearing pursuant to Tex. Lab. Code Ann. § 413.031 and 28 Tex. Admin. Code §§ 148.21(h) and 133.308(v).
  8. Under Tex. Lab. Code § 408.021(a), 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.
  9. Under 28Tex. Admin. Code§ 134.600(h)(12), home health care (such as attendant care) must be preauthorized, dependent on a showing of medical necessity.
  10. The requested attendant care is not medically necessary and should not be preauthorized. Tex. Lab. Code Ann. § 413.014.
  11. Based on the above Findings of Fact and Conclusions of Law, Claimant is not entitled to attendant care and the request for preauthorization is appropriately denied.

ORDER

IT IS, THEREFORE, ORDERED that attendant care is not medically necessary, and preauthorization for such is denied.

Signed this 24th day of October, 2002.

CRAIG R. BENNETT
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. Claimant apparently had numerous communications with Carrier in which he requested authorization for attendant care. The only one which is pertinent to this proceeding, and which provides jurisdiction, is his written request dated February 19, 2002.
  2. According to Claimant and his mother, one of the consequences of Claimant’s injury is temporary and sporadic respiratory failure, where Claimant will stop breathing while sleeping.
  3. Claimant’s Ex. 2.
  4. Id. at 1.
  5. Id. at 3-4.
  6. Claimant’s Exs. 6, 7 and 8.
  7. Carrier’s Ex. 1, at 30.
  8. Carrier’s Ex. 1, at 40.
  9. Id. at 33.
  10. See, e.g., Carrier’s Ex. 1, at 29-30.
  11. The parties dispute the applicable burden of proof. The Commission’s rules state that the IRO decision is entitled to presumptive weight. See 28 Tex. Admin. Code § 133.308(v). The Carrier contends this means that the IRO decision can only be overcome by the great weight of the evidence. Claimant argues that the IRO decision can be overcome by a preponderance of the evidence, citing to a recent decision by a Commission Appeals Panel. The ALJ does not decide which evidentiary standard (“great weight of the evidence” or “preponderance of the evidence”) applies because he concludes that Claimant has not met even the lesser burden of proof-the preponderance of the evidence-in this case.
End of Document
Top