DECISION AND ORDER

After an Independent Review Organization (IRO) granted preauthorization for eight weekly sessions of individual counseling, the University of Texas System (Carrier) appealed. This decision finds that the counseling sessions sought by Neuromuscular Institute of Texas (Provider) are medically necessary. Preauthorization is granted.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

There were no contested issues of jurisdiction, notice, or venue. Therefore, those issues are addressed in the findings of fact and conclusions of law without further discussion here.

The hearing in this matter convened September 20, 2004, at the State Office of Administrative Hearings (SOAH), 300 W. 15^th Street, Austin, Texas, with Administrative Law Judge (ALJ) Charles Homer III presiding. The record was closed that date. Assistant Attorney General Bradley D. McClellan appeared for Carrier. Respondent was represented by counsel, Allen T. Craddock.

II. APPLICABLE LAW

Burden of Proof

Carrier argues that Provider, not Carrier,^[1] bears the burden of proof in this proceeding. Carrier cites no statutes or rules for this proposition, nor any case law directly on point. Instead, it argues first from insurance contract law regarding the burden of proof. The ALJ disagrees that contract law should guide this proceeding. There is no contract between Provider and Carrier.

Carrier also offers an analogy with Tex. Labor Code Ann. ch. 410, which provides that appealing parties bear the burden of proof on certain issues. It argues that because there is no such statutory provision governing medical dispute review in Tex. Labor Code Ann. ch. 413,^[2] the burden of proof should remain the same at SOAH as it was before the Texas Workers= Compensation Commission’s Medical Review Division (MRD). This, too, is unpersuasive: in Chapter 413 the Legislature did not expressly assign the burden of proof on appeal, but the Commission has interpreted or implemented Tex. Lab. Code Ann. ‘ 413.031 in its rule at 28 TAC ‘ 148.21(h).^[3] The rule is that the appealing party has the burden of proof in hearings such as this one.

Carrier also argues that the presumption in favor of the IRO does not apply here, notwithstanding the plain language of 28 Texas Administrative Code ‘133.308(w).^[4] The presumption in favor of the IRO could mean nothing if it does not apply to the contested case hearing, the next step in the medical dispute resolution procedure. Further, if the process worked as Carrier argues, Carriers could require Providers to prove their case de novo by requesting a hearing on every IRO decision. The IRO decision would be only a costly prerequisite for a SOAH hearing. The presumption in favor of the IRO decision is only a presumption, but it operates to further the design of the medical dispute resolution process articulated by Tex. Lab. Code Ann. ‘ 413.031. The presumption in favor of the IRO decision applies to this proceeding.^[5]

Medical Necessity

Whether the requested treatment is medically necessary is determined by reference to Tex. Lab. Code Ann. ‘ 408.021(a), which states:

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. 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.

Thus, Carrier, as the petitioner, must prove the requested treatment is not reasonably required within the meaning of Tex. Lab. Code Ann. ‘ 408.021(a).

III. THE PARTIES= EVIDENCE AND POSITIONS

A. Claimant’s Injury and Treatment

On ___, Claimant sustained a back injury compensable under the Texas Workers= Compensation Act while riding in an elevator that suddenly jolted him. He had preexisting lumbar disc degeneration with herniated discs, and a history of back pain since 1984.^[6] He continued to work until May 1, 2000, when he experienced stabbing pain as he was opening a car door. Manipulations, physical therapy, a TENS unit,^[7] and steroid injections have all failed to provide long-term relief.^[8]

B. Evidence

Each party offered documents concerning Claimant’s prior treatment, evaluations, requests for services, and decisions.

Brad Burdin, D.C., testifying for Provider, stated that Michael Freiberg, M.D.,^[9] and Cherith Moore, M.A., L.P.C,^[10] worked for Provider at the time they saw and treated Claimant. He stated that he supports their opinions that individual counseling would benefit Claimant. He has observed a decreased emotional affect in Claimant, and has observed him to be in pain and to be frustrated with the many lengthy legal processes that have obstructed, in Dr. Burdin’s view, Claimant’s treatment. Dr. Burdin stated that he has performed chiropractic manipulations on Claimant, but that in his current condition Claimant will not benefit from those.

On cross-examination, Dr. Burdin agreed with Carrier that Claimant had lumbar spinal problems before his current compensable injury, but disagreed that Claimant is clinically at maximum medical improvement.

Comments and opinions from the following physicians are pertinent to the decision:

• IRO reviewer B the reviewer . . . is of the opinion that the individual counseling [Provider requests] is medically necessary in this case.^[11]
• Cherith Moore, M.A., L.P.C. B Found Claimant to be tearful, worried, and recognizing that he is depressed about his continuing pain and inability to work. Her goal for counseling sessions would be to Aaddress the link between physical and emotional pain while emphasizing the need to deal with both.^[12]
• J. Michael Freiberg, M.D. B Claimant has herniated disks at L3-4 and L5-S1, and moves with Aobviously a lot of pain.^[13]
• Jerjis J. Denno, M.D., wrote after he first examined Claimant in February 2001, AI had a long discussion with the patient and his wife regarding his ongoing back problem. At this time, his options are to live with the pain or to consider a lumbar surgery.^[14]

1. Parties= Positions

Carrier argues that counseling is not medically necessary because Claimant’s status stabilized in 2002, and that while surgery may help him, counseling will not. It argues further that Claimant

worked for more than four months without feeling the need for treatment, and that Claimant’s behavioral deficits, if any, predate his compensable injury.

Provider argues that whether Claimant’s present condition pre-existed the injury or not, Carrier’s liability for medically necessary treatment has been litigated and Carrier lost. Provider argues that Claimant’s treating physician observed a decreased affect and referred him to Ms. Moore,

who recommended individual counseling. Counseling, argues Provider, is all that is presently available for Claimant,^[15] and should be preauthorized.

IV. ANALYSIS

The requested counseling is medically necessary and will be authorized.This ALJ, like others before him on this case, is uncertain whether Claimant’s work-related injury caused or even aggravated his pre-existing lumbar spine disease. But this proceeding is not about that issue, which was decided against Carrier. The issue here is whether there is a reasonable probability that Claimant may benefit from individual counseling related to his compensable injury. On Claimant’s first visit, Dr. Freiberg advised him that he would have to deal with his pain or have surgery. For whatever reasons surgery has not been tried. Ms. Moore, the IRO reviewer, Dr. Burdin, and another psychotherapist employed by Provider^[16] all believe that Claimant might reasonably be expected to benefit from individual counseling.

Carrier has brought forward no contradictory opinion. Rather, it relies on prior findings of maximum medical improvement^[17] and the clinically weak causal linkage between the compensable injury and Claimant’s pain. These are immaterial to this dispute. Carrier also suggests that Claimant is either malingering or has non-compensable behavioral issues, and cites one physician who on one occasion found positive Waddell’s signs.^[18] This evidence has been superseded by a later examination from the same doctor who originally recorded the positive Waddell’s signs.^[19] The requested eight sessions of individual counseling are medically necessary, and Provider should be granted preauthorization for the requested services.

V. FINDINGS OF FACT

1. On December 2, 2003, the Texas Workers= Compensation Commission (Commission) sent notice of the hearing to be held on January 5, 2004, to all parties.
2. 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
3. the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
4. The parties received notices of intervening motions for continuance and orders granting continuances, including notice that the hearing was continued until September 20, 2004.
5. Claimant suffered a compensable work-related injury on ___, whenan elevator in which he was riding lurched.
6. On that same date the University of Texas System (Carrier) wasClaimant’s employer and was self-insured as his workers= compensation insurance carrier.
7. Since his compensable injury, Claimant has been treated with chiropractic manipulations, physical therapy, a TENS unit, and epidural steroid injections without long-term relief of his pain.
8. Claimant has degenerative spinal disease in his lumbar spine with herniated discs at L3-4 and L5-S1.
9. Claimant’s only recovery options are to try lumbar spinal surgery or to learn to live with his pain.
10. Claimant is unable to work due to his chronic pain.
11. Claimants chronic pain has adversely affected his morale and his ability to cope with challenges.
12. Claimant has expressed his desire to return to work.
13. Individual counseling sessions will help Claimant deal with his pain.
14. Neuromuscular Institute of Texas requested preauthorization of eight sessions of individual counseling.
15. Carrier denied preauthorization for the above services on the basis that the treatments were not reasonable or medically necessary.
16. After Provider filed a request with the Commission’s Medical Review Division (MRD) for medical dispute resolution, the MRD referred the matter to an Independent Review Organization (IRO).
17. On October 28, 2003, the IRO found that the disputed treatment and services were medically necessary and recommended preauthorization.
18. On November 4, 2003, Carrier filed a request for a hearing before SOAH to contest the MRD decision.

VI. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction over this matter pursuant to Tex. Lab. Code Ann. ‘ 413.031.
2. The State Office of Administrative Hearings has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. ‘ 413.031(k) and Tex. Gov’t Code Ann. Chapter 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t CodeAnn., Chapter 2001 and SOAH’s rules, 1 Tex. Admin. Code (TAC) Chapter 155.
4. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov=t Code Ann.’ 2001.052.
5. The counseling session requested by Provider are medically necessary within the meaning of Tex. Lab. Code Ann. ‘ 408.021(a).
6. Based on the foregoing Findings of Fact and Conclusions of Law, preauthorization should be ordered.

ORDER

IT IS, THEREFORE, ORDERED thatthe request for preauthorization of eight sessions of up to one hour of individual counseling by the Neuromuscular Institute of Texas is granted.

Signed October 20, 2004.

CHARLES HOMER III
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. ¹ In opening statement and in a written brief submitted at the hearing.↑
2. ² Tex. Labor Code ch. 413 governs medical disputes; ‘ 413.031 governs medical dispute resolution.↑
3. ³ the burden of proof rests with the commission except where the controlling statute or rule specifies otherwise. Exceptions include, but are not limited to, hearings conducted pursuant to the [Texas Workers= Compensation] Act, ‘ 413.031, when the burden of proof rests with the party seeking relief . . . .↑
4. ⁴ AIn all appeals from reviews of prospective or retrospective necessity disputes, the IRO decision has presumptive weight.↑
5. ⁵ 28 TAC 133.308(w).↑
6. ⁶ Pet. Exh. 1, at p. 16.↑
7. ⁷ Res. Exh. 1, at p. 104.↑
8. ⁸ Pet. Exh. 6, at p. 133.↑
9. ⁹ Res. Exh. 5.↑
10. ¹⁰ Res. Exh. 3.↑
11. ¹¹ Res. Exh. 1, p 2.↑
12. ¹² Res. Exh. 3, p. 38-39.↑
13. ¹³ Res. Exh. 5, at p. 98.↑
14. ¹⁴ Res. Exh. 9, p. 134.↑
15. ¹⁵ Pet. Exh. 1,at p. 2. A January 2003 IRO decision upheld Carrier’s denial of Provider’s request for a behavioral pain management program.↑
16. ¹⁶ Pet. Exh. 1, at p. 46.↑
17. ¹⁷ Pet. Exh. 1, pp. 1-5.↑
18. ¹⁸ Res. Exh. 1, pp. 52-53. Frank. K. Kuwamura, M.D., initially found Waddell’s signs, which are an indication that a patient is exaggerating his pain.↑
19. ¹⁹ Id. When he re-examined Claimant in August 2001, Dr. Kuwamura wrote that he was Aunable to demonstrate any of them.↑