DECISION AND ORDER

American Home Assurance Company, (AHAC), petitioner, seeks an order from the State Office of Administrative Hearings (SOAH) to reverse the decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC)ordering preauthoriation for certain medical services.

Following a hearing and consideration of the evidence, the Administrative Law Judge (ALJ) finds that the evidence does not support AHAC’s appeal. The ALJ concludes that AHAC should reimburse Positive Pain Management for all services in dispute.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

Jurisdiction was not disputed and is addressed in the Findings of Fact and Conclusions of Law.

The hearing was originally scheduled to be convened on October 23, 2003. However, on a series of agreed motions for continuance, the hearing was rescheduled to February 4, 2004, before Administrative Law Judge (ALJ) Paul Keeper. Both parties were represented by counsel at the hearing. AHAC was represented by Dan Kelley of the law firm of Hoffman Kelley, and Positive Pain Management was represented by Peter N. Rogers of the law firm of Rogers, Booker & Treviño. The record was opened and closed on February 4, 2004.

II. BACKGROUND

On August 28, 2001, the claimant, W.W., suffered a work-related injury.^[1] The claimant suffered pain in his lower back, and on September 6, 2001, was seen in the emergency room at Garland Community and given pain medication.^[2] He continued to complain of pain in his back and

neck. On September 24 and October 26, 2001, he received x-ray evaluations that revealed no spinal injuries.^[3]

On October 31, 2001, the claimant was seen by Steven G. Bander, D.O., for continuing pain, and was prescribed pain medications.^[4] At that examination, the doctor identified the claimant’s history of a blunt trauma to the head at age 16 that caused some mental slowness and possibly a seizure disorder.

Over the next two years, the claimant had an EMG and NCV evaluation,^[5] an MRI,^[6] multiple medical examinations,^[7] and multiple chiropractic examinations and therapy sessions.^[8] These examinations and treatments resulted in a number of diagnoses, including a possible extruded disc fragment, carpal tunnel syndrome, spinal strain, and bilateral radiculitis. The claimant’s various health care providers recommended surgery, medication, and physical therapy. Despite the best efforts of each of these providers, the claimant continued to have intractable pain.

On March 4, 2003, Crystal Hogan, D.C., recommended that the claimant participate in a chronic pain management program. Dr. Hogan had concluded that the claimant’s chronic pain and depression was preventing his recovery.^[9]

On June 6, 2003, the claimant was evaluated by Positive Pain Management for participation in the chronic pain management program. His conditions included pain in his legs, difficulty breathing, homelessness, living in his car, desperate financial situation, fear for his safety, hearing voices, and paranoid ideations.^[10]

On June 6, 2003, Genex Services, Inc. (Genex), reviewed the request for pre-authorization for medical necessity and appropriateness. Genex recommended that the service not be authorized on the basis that the medical reviewers had found no physical phenomena that explained the claimant’s claimed symptoms.^[11]

On June 11, 2003, Positive Pain Management responded to Genex’s recommended denial and sought a reconsideration.^[12]

Genex’s recommendation was adopted by AHAC, and Positive Pain Management asked that TWCC refer the case for a medical dispute review (MDR) by an Independent Review Organization (IRO). On August 26, 2003, the IRO issued its Independent Review Decision (IRD) finding that “the patient is appropriate for a chronic pain program” and that “a 30-day chronic pain management program is medically necessary in this case.”^[13]

On September 3, 2003, AHAC requested an appeal, and the matter was referred to SOAH for a contested case hearing.

On or about September 17, 2003, the claimant was admitted into Positive Pain Management’s chronic pain program, and on October 17, 2003, the claimant was discharged from the program.^[14]

The sole issue that has been referred by TWCC to SOAH for resolution is whether there should be preauthorization for medical services provided.

III. RELEVANT LAW

Under Texas law, 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 statute provides that the purposes for which health care is to be rendered to a claimant include any 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.^[15]

The types of health care to which an employee is entitled are similarly broad, including “all reasonable and necessary medical aid, medical examinations, medical treatments, medical diagnoses, medical evaluations, and medical services.”^[16]

Although the law describes few limitations on an employee’s entitlements to care, the law requires the referring doctor to obtain preauthorization from a carrier before the carrier may become liable for certain types of health services, including chronic pain management

rehabilitation programs.^[17]

In this dispute, the issues are: (1) whether the provider obtained preauthorization before rendering the care, (2) whether medical necessity should be judged based upon the information available prior to the provider’s rendering of the health care or based upon the information available before and after the rendering of the care, and (3) whether the health care was medically necessary.

IV. DISCUSSION AND ANALYSIS

Did the provider obtain preauthorization?

Texas law requires that a chronic pain management rehabilitation provider must “request and obtain preauthorization from the carrier prior to providing or receiving health care” as a condition of the carrier’s liability to the provider for the health care to be rendered.^[18] If a provider fails to obtain preauthorization prior to providing the care, then the carrier has no reimbursement liability.

To obtain preauthorization following a carrier’s refusal to provide preauthorization, the requesting provider may request reconsideration of the denied health care.^[19] If the carrier denies the reconsideration request, then the requesting provider may appeal the denial of a reconsideration request by filing with TWCC a request for the appointment of an IRO to issue an IRD.^[20]

If the IRD favors the provider and is adopted by TWCC’s MDR section, then the provider has satisfied the requirement of obtaining preauthorization “ordered by the commission.”^[21] The carrier may then appeal that decision by seeking a hearing to be conducted by SOAH.^[22]

However, the liability of the carrier to the provider does not become final until SOAH has rendered its decision and any judicial review is exhausted. If the carrier elects to seek an appeal to SOAH, then the provider has no guaranty of the durability of the carrier’s legal liability until the SOAH decision becomes final.

In this case, the provider relied upon TWCC’s adoption of the IRD as the basis for the provider’s decision to render care to the claimant. The provider made this decision after the carrier filed an appeal with SOAH but before the decision became final. Although the

provider has taken the risk that SOAH may grant the carrier’s appeal of TWCC’s decision and find that the carrier has no liability to the provider, the ALJ finds that the provider did obtain preauthorization.

Upon which information should medical necessity be judged: the information available prior to the provider’s rendering of the health care, or the information available before and after the rendering of the care?

The carrier argues that all information should be considered. The carrier asserts that one measure of medical necessity is whether the health care rendered was effective in treating the claimant’s medical needs. The determination of efficacy may be shown, according to the carrier, by examining how well or how poorly the claimant performed in the chronic pain management program. The claimant’s failure to progress or the claimant’s regression, according to the carrier, should be taken as proof of the lack of medical necessity of the treatment.

Legal support exists for the carrier’s position. As recited supra, the health care to which a claimant is entitled is that which “(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.”^[23] Because the statute is expressed in the present tense and not the conditional, the statute appears to require cure or relief, promotion of recovery, or enhancement of abilityBand not merely the potential for these results.

If this is the test, then Positive Pain Management would not be entitled to reimbursement. In the deposition of Julie C. Duncan, Ph.D., a psychologist for Positive Pain Management, she acknowledged that the claimant’s scores on many of the evaluative criteria in his Discharge Summary indicated a worsening of his condition after his treatment.^[24] AHAC argues that the ALJ should take into consideration this information as evidence that the program was not medically necessary, as predicted by Genex in its recommendation of denial of preauthorization for the care.

The ALJ rejects this analysis on the grounds that an injured worker’s statutory entitlement to health care is broader than the three elements in the quoted language. The entitlement is found in the preceding sentence of the same statute. It states, “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.”^[25] The use of the term “as and when needed” means that the determination of need is based upon the claimant’s health status at the time of the doctor’s assessment of his condition. To read the statute otherwise would transform the statute into a program that would require a health care provider to guarantee cure or relief, promotion of recovery, and enhancement of the ability of the claimant to return to work. The statute does not include such a requirement, and no such requirement may reasonably be read into it.

Was the health care medically necessary?

The testimony of Dr. Duncan was that chronic pain management programs are appropriate for persons whose coping skills need enhancement.^[26] Studies offered into evidence by Positive Pain Management reflect that the leading group with permanent disabilities in the United States are persons who are younger than 45 years and that such persons often end up in the Social Security system.^[27] Chronic pain management is directed to those persons with an employment-related injury and who are unable to cope with their pain because they also suffer from despair, alienation from family and society, loss of job, isolation, invalidism, and suicidal thoughts.^[28]

Upon evaluation for candidacy in the Positive Pain Management program, the claimant was 37 years old, had suffered a head trauma when he was a teenager, had a metal plate in his head, had been diagnosed with post-concussion syndrome, was living in his car, had lost his job, stayed mainly to himself, was depressed and anxious, and had suicidal ideations.^[29], ^[30]

The doctor that prepared the IRD evaluated the claimant in accordance with the AMA Guidelines to Impairment and found that these same behaviors were sufficiently significant “to justify that this patient is appropriate for a chronic pain management program.”^[31]

AHAC presented substantial evidence to the contrary, including a similar set of scientific studies that reached opposite conclusions.^[32] Perhaps most tellingly, Genex found that the claimant’s

thoroughly documented behaviorpresentation, extreme and pervasive pain complaints, depression and overwhelming anxiety, belief that his pain has not [been] comprehensively treated despite the long list of treatments, and radiculopathy inconsistent with known anatomy suggest that factors unrelated to his work injury of 08/01 are prominent and out of proportion with his reported injury.^[33]

The ALJ finds that the Gentex’s observations about the claimant’s condition supportBrather than contraveneBthe conclusion that the claimant was an appropriate candidate for a chronic pain management program. The claimant had a medical need for a chronic pain program precisely because he presented with pain complaints, had depression and anxiety, and suffered a misdirected understanding of the benefits of his medical treatments.

The ALJ concludes that the chronic pain management program was medically necessary and that the chronic pain management program should have been preauthorized.

VI. FINDINGS OF FACT

1. On August 28, 2001, the claimant, W.W., suffered pain in his lower back following a work-related accident.
2. The claimant was taken to an emergency room and later received care at a chiropractic clinic.
3. The claimant continued to complain of pain in his back and neck.
4. On September 24 and October 26, 2001, the claimant received x-ray evaluations that revealed no spinal injuries.
5. Over the next two years, the claimant had an EMG and NCV evaluation, an MRI, multiple medical examinations, and multiple chiropractic examinations and therapy sessions.
6. These examinations and treatments resulted in a number of diagnoses, including a possible extruded disc fragment, carpal tunnel syndrome, spinal strain, and bilateral radiculitis.
7. The claimant’s various health care providers recommended surgery, medication, and physical therapy.
8. Despite the best efforts of each of these providers, the claimant continued to have intractable pain.
9. On March 4, 2003, Crystal Hogan, D.C., recommended that the claimant participate in a chronic pain management program. Dr. Hogan had concluded that the claimant’s chronic pain and depression was preventing his recovery.
10. On June 6, 2003, Genex Services, Inc. (Genex), reviewed the request for pre-authorization for medical necessity and appropriateness.
11. Genex recommended that the service not be authorized on the basis that the medical reviewers had found no physical phenomena that explained the claimant’s claimed symptoms.
12. Genex’s recommendation was adopted by AHAC, and Positive Pain Management asked that the Texas Workers’ Compensation Commission (TWCC) refer the case for a medical dispute review (MDR) by an Independent Review Organization (IRO).
13. On August 26, 2003, the IRO issued its Independent Review Decision (IRD) finding that “the patient is appropriate for a chronic pain program” and that “a 30-day chronic pain management program is medically necessary in this case.”
14. On September 3, 2003, AHAC requested an appeal, and the matter was referred to the State Office of Administrative Hearings (SOAH) for a contested case hearing.
15. On or about September 17, 2003, the claimant was admitted into Positive Pain Management’s chronic pain program, and he was discharged on October 17, 2003.
16. The provider relied upon the MDR’s adoption of the IRD as the basis for the provider’s decision to render care to the claimant.
17. Chronic pain management programs are appropriate for persons who need assistance in improving their ability to cope with chronic pain.
18. The leading group with permanent disabilities in the United States are persons who are younger than 45 years, and such persons often end up in the Social Security system.
19. Chronic pain management is directed to those persons who suffer from despair, alienation from family and society, loss of job, isolation, invalidism, and suicidal thoughts.
20. Upon evaluation for candidacy in the Positive Pain Management program, the claimant was 37 years old, had suffered a head trauma when he was a teenager, was living in his car, had lost his job, stayed mainly to himself, was depressed and anxious, and had suicidal ideations.
21. Genex’s observations that the claimant’s thoroughly documented behaviorpresentation, extreme and pervasive pain complaints, depression and overwhelming anxiety, belief that his pain has not been comprehensively treated despite the long list of treatments, and radiculopathy inconsistent with known anatomy support the conclusion that the claimant was an appropriate candidate for a chronic pain management program.
22. The claimant had a medical need for a chronic pain program precisely because he presented with pain complaints, had depression and anxiety, and suffered a misdirected understanding of the benefits of his medical treatments.
23. Chronic pain management is a program that addresses a claimant’s existing abilities to deal with the perceived pain caused by a work-related injury.
24. The chronic pain management program was reasonably required by the nature of claimant’s injury.
25. TWCC provided notice of the hearing to the parties on October 7, 2003, that the hearing on the merits would be convened on October 23, 2003, at 11:00 a.m. at the SOAH offices at 300 West 15^th Street, Fourth Floor, Austin, Texas.
26. The parties agreed to a series of continuances, and after giving proper notice of hearing, SOAH reset the hearing for February 4, 2004, at 1:30 p.m. at the SOAH offices.

VII. CONCLUSIONS OF LAW

1. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order. Tex. Lab. Code § 413.031; Tex. Gov’t Code ch. 2003.
2. TWCC provided adequate and timely notice of the hearing to the parties under the provisions of the Administrative Procedure Act. Tex. Gov’t Code § 2001.052.
3. AHAC has the burden of proof in this matter. 28 TAC §148.21(h).
4. Texas law requires that a chronic pain management rehabilitation program must “request and obtain preauthorization from the carrier prior to providing or receiving health care” as a condition of the carrier’s liability to the provider for the health care to be rendered. 28 TAC § 134.600(e).
5. To obtain preauthorization following a carrier’s refusal to provide preauthorization, the requesting provider may request reconsideration of the denied health care. 28 TAC § 134.600(g).
6. Positive Pain Management obtained the necessary preauthorization.
7. AHAC should pay Positive Pain Management for the chronic pain managment program.
8. If the IRD supports the provider’s appeal and is adopted by TWCC’s Medical Dispute Resolution (MDR) section, then the provider has satisfied the requirement of obtaining preauthorization “ordered by the commission.” Tex. Labor Code §413.014(d).
9. The carrier may then appeal that decision by seeking a hearing to be conducted by SOAH and from SOAH to a judicial review and further judicial appellate review. Tex. Labor Code § 413.031(k).
10. The ALJ finds that the provider did obtain preauthorization.
11. 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. Tex. Labor Code§408.021(a).
12. The use of the term “as and when needed” means that the determination of need is based upon the claimant’s condition at the time of the doctor’s assessment of his condition.
13. The fact that discharge information was available and that showed that the claimant had not improved does not prove that the health care was not medically necessary.
14. The chronic pain management program was reasonably required by the nature of the claimant’s injury and should have been preauthorized.

ORDER

IT IS ORDERED that AHAC reimburse Positive Pain Management for the chronic pain management program services rendered to the claimant.

Signed February 26, 2004.

PAUL D. KEEPER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Respondent’s Exhibit 1, Deposition Exhibit 5 at 2.↑
2. Petitioner’s Exhibit 1 at 12.↑
3. Petitioner’s Exhibit 1 at 10, 25.↑
4. Petitioner’s Exhibit 1 at 12.↑
5. Petitioner’s Exhibit 1 at 65.↑
6. Petitioner’s Exhibit 1 at 50, 72-73.↑
7. Petitioner’s Exhibit 1 at 48-49, 78, 102-104, 126-127.↑
8. Petitioner’s Exhibit 1 at 107-109.↑
9. Respondent’s Exhibit 2 at 64.↑
10. Respondent’s Exhibit 2 at 122.↑
11. Petitioner’s Exhibit 1 at 5.↑
12. Respondent’s Exhibit 2 at 124-125.↑
13. Respondent’s Exhibit 1, Deposition Exhibit 5.↑
14. Respondent’s Exhibit 1, Deposition Exhibit 4.↑
15. Tex. Labor Code § 408.021.↑
16. Tex. Labor Code § 401.11(19).↑
17. 28 TAC § 134.600(h)(10)(B).↑
18. 28 TAC § 134.600(e).↑
19. 28 TAC § 134.600(g).↑
20. Tex. Labor Code § 413.031; 28 TAC §§133.305, 133.307 and 133.308↑
21. Tex. Labor Code § 413.014(d).↑
22. Tex. Labor Code § 413.031(k).↑
23. Tex. Labor Code § 408.021.↑
24. Respondent’s Exhibit 1 at 42-48.↑
25. Id.↑
26. Respondent’s Exhibit 1 at 12-14.↑
27. Respondent’s Exhibit 1, Deposition Exhibit 2, Attachment 2 at 2111.↑
28. Respondent’s Exhibit 1, Deposition Exhibit 1 at 15/307.↑
29. Respondent’s Exhibit 1, Deposition Exhibit 3.↑
30. Respondent’s Exhibit 1 at 37-38, 40.↑
31. Respondent’s Exhibit 1, Deposition Exhibit 5 at 2.↑
32. Petitioner’s Exhibit 3. One of the studies offered into evidence by AHAC reviewed many of the “more than 100 published outcome studies” concerning the effectiveness of chronic pain management programs. The study notes that the other studies’ “conflicting results highlight the fact that research to date does not permit definitive, generalizable conclusions to be reached about the effectiveness of pain centers in the rehabilitation of injured workers.” At 10.↑
33. Petitioner’s Exhibit 2.↑