DECISION AND ORDER

I. SUMMARY

Positive Pain Management (Provider) sought reimbursement for chronic pain management services provided to an injured worker (claimant) after ___, a self-insured employer (Carrier), denied payment. Finding the disputed services were not related to the compensable injury, the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) denied reimbursement to the Provider. This decision agrees with the MRD.

II. NOTICE, JURISDICTION, AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact and Conclusions of Law. On March 1, 2004, the hearing for this case was convened by the undersigned administrative law judge with the State Office of Administrative Hearings (SOAH) at the William P. Clements Building, 300 West 15^th Street, Austin, Texas. MRD was not a party to the SOAH proceeding. Attorney Peter N. Rogers represented the Provider, and attorney William Weldon represented the Carrier. The record closed at the conclusion of the hearing.

III. DISCUSSION

Background

On behalf of the Carrier, ___, on August 30, 2001, preauthorized the Provider’s request to treat the claimant with ten chronic pain management (CPM) sessions. As the rationale for its decision, ___noted the claimant had an abnormal psychological profile and continued pain despite previous primary and secondary levels of care. ___issued a second preauthorization on October 24, 2001, for ten additional days. Both preauthorization’s contain the following statements:

This determination does not guarantee payment of all or part of your charges for any service(s). Compensability of the injury may be denied or the extent of the injury may be disputed. If those questions are resolved in favor of the carrier, all bills may be denied.

The Provider treated the claimant on several dates. Those pertinent to this appeal are October 8, 9, 10, 12, 23, 24, and 29, 2001. The claimant, for first time on October 23, 2001,

acknowledged long-standing psychiatric problems and a current concern over her own safety. She also said her pain was magnified by her personal problems.

The claimant’s admission apparently raised concerns about the extent of her work-related injury because the Carrier raised benefit dispute issues. In an agreement, signed December 20, 2001,

the parties agreed that the claimant’s ___, injury extended to and included the right shoulder, right hip, right knee, cervical area, and lumbar area. In April 2002, ___denied payment for the CPM treatments and listed ”denial after reconsideration” and “extent of injury” as reasons for its denial. On May 7, 2003, a Commission hearing officer considered the extent-of-injury issue and found there was no causal connection between the compensable injury and the claimant’s alleged psychological problems. The compensable injury does not extend to or include a psychological injury of depression and chronic pain, the officer concluded. Similarly, in a decision issued November 4, 2003, the MRD relied on the hearing officer’s decision to deny the Provider’s requests for reimbursement.

Testimony

Julie Duncan, Ph.D., the Provider’s vice-president of clinical management, evaluated and tested the claimant for CPM. According to Dr. Duncan, CPM is for persons who have not improved over a long period of time. The claimant had undergone surgery, medication management, and active and passive care. Nevertheless, pain restricted her activity level, and she had been off work for more than a year. The claimant attributed her psychological symptoms to her injury and resulting limitations. Also, she wanted to increase her functional status. As described by Dr. Duncan, the Provider intervened to prevent a disabling lifestyle and tailored a program to the clamant’s needs. In this case, half of the program was for physical rehabilitation and the other half was for psychological modalities.

Parties’ Arguments

The Provider argued that in preauthorizing treatment, the Carrier waived the right to deny payment based on compensability of the injury. In the alternative, the Provider argued two additional points. First, the Provider asserted that all of the treatments, including psychological care, addressed the physical injury because CPM helps an injured worker cope with physical pain that results from a work-related injury. Secondly, as Dr. Duncan noted, half of the claimant’s treatments were for physical rehabilitation, and the physical injuries are compensable. Therefore, at the least, the Carrier should pay for half of the CPM treatments.

The Carrier distinguished this case from those in which the Carrier, after preauthorizing treatment, denies payment based on medical necessity. When a treatment has been preauthorized, retrospective review is prohibited as to medical necessity. Conversely, Commission rule 28 Tex. Admin. Code § 133.301(a), which applies to the dates of service at issue, requires an insurer to retrospectively review all complete medical bills and pay or deny payment for medical benefits in accordance with the Workers’ Compensation Act, Commission rules, and appropriate Commission fee and treatment guidelines. Based on that rule, retrospective review may include evaluating bills to determine whether treatments were related to the compensable injury.

Analysis

The ALJ agrees with the Carrier that it did not waive it right to contest compensability when it preauthorized treatment. It also gave adequate notice to the Provider that payment may be denied

if the treatment did not pertain to the compensable injury. As events unfolded, it became clear after preauthorization was granted that the claimant had psychological issues that were not related to the work-related injury. Certainly, it is unfortunate that CPM services were provided before this became known. But, the Commission’s rule clearly allows retrospective review based on compensability issues.

Even if half the services were related to the compensable, physical injuries, the bulk of the Provider’s charges were billed using CPT code 97799 for CPM. The Commission’s hearing officer’s May 7, 2003, decision clearly separates chronic pain from the compensable injury, and under the billing code used, the ALJ is unable to segregate treatment for the compensable injury from the noncompensable component. Therefore, because preauthorization does not waive a later denial based on retrospective review of compensability, the compensable injury in this case does not extend to or include a psychological injury of depression and chronic pain, and the Provider’s billing is for CPM, the appeal should be denied.

IV. FINDINGS OF FACT

1. A workers’ compensation claimant sustained a compensable, work-related injury on ___, when she was employed by ___, a self-insured employer (Carrier).
2. The claimant’s injury extended to and included her right shoulder, right hip, right knee, cervical area, and lumbar area.
3. On behalf of the Carrier, ___ preauthorized the Provider’s request to treat the claimant with chronic pain management (CPM) on August 30, 2001, and issued a second preauthorization on October 24, 2001.
4. Both preauthorizations state that bills may be denied if compensability of the injury is denied or the extent of the injury is disputed.
5. The Provider treated the claimant with CPM on October 8, 9, 10, 12, 23, 24, and 29, 2001.
6. For the first time on October 23, 2001, the claimant acknowledged long-standing psychiatric problems and a current concern over her own safety. She also said her pain was magnified by her personal problems.
7. In April 2002, on the basis of “extent of injury,” ___denied payment for the CPM treatments provided to the claimant.
8. The Provider appealed ___’s denial.
9. The claimant’s injury does not extend to or include a psychological injury of depression and chronic pain.
10. In a decision issued November 4, 2003, the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) determined that the Provider was not
11. entitled to reimbursement for psychiatric examination, psychological testing, preparation of report, and chronic pain management because the disputed services were not related to the compensable injury.
12. On November 14, 2003, the Provider appealed the MRD’s decision.
13. The Commission sent notice of the hearing to the parties on December 9, 2003.
14. 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.
15. The hearing was held March 1, 2004, at the State Office of Administrative Hearings (SOAH), and both parties were represented.

V. CONCLUSIONS OF LAW

1. SOAH 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. ch. 2003.
2. The Provider timely requested a hearing, as specified in 28 Tex. Admin. Code (TAC) § 148.3.
3. Proper and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. § 2001.052 and 28 TAC § 148.4.
4. The Provider had the burden of proving the treatments it provided were for the compensable injury. 28 TAC § 148.21(h)-(i).
5. A carrier may retrospectively review bills to determine whether treatments and services were unrelated to the compensable injury. 28 TAC § 133.301(a).
6. A carrier is not required to reimburse a Provider for treatments that are not related to a compensable injury.
7. The Provider failed to meet its burden of proof.
8. The appeal should be denied.

ORDER

It is ORDERED that Positive Pain Management is not entitled to reimbursement from ___ for treatment it provided on October 8, 9, 10, 12, 23, 24, and 29, 2001, to injured worker ___

Signed April 26, 2004.

SARAH G. RAMOS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS