DECISION AND ORDER

After an Independent Review Organization (IRO) granted preauthorization for a chronic pain management program, The Travelers Indemnity Company (Carrier) appealed. This decision finds that the Carrier failed to sustain its burden of proving that the program is not medically necessary and preauthorizes the treatment.

I. PROCEDURAL HISTORY, NOTICE, AND JURISDICTION

There are no contested issues of notice or jurisdiction in this proceeding, and these matters are addressed only in the findings of fact and conclusions of law. The hearing convened and closed March 22, 2004, before Administrative Law Judge (ALJ) Kerry D. Sullivan. Daniel Flanagan represented the Carrier. Ihsan Shanti, M.D., represented the respondent service provider.

II. BASIS FOR DECISION

Background

The Claimant is a 28 year-old female who sustained an injury to her lower back, right hip, right knee, and right ankle in a work-related injury that occurred on ___.^[1] She was diagnosed with a sprain/strain to the lumbar and sacroiliac joint and internal derangement of the right knee and ankle. She underwent an MRI and an EMG that her treating physician described as “positive.” The Claimant has undergone conservative care consisting of pain medications, steroid injections, physical therapy, and psychotherapy. She also began a work hardening program that she could not complete. Her treating doctor now recommends that the Claimant undergo a 30-session chronic pain management program, which the Carrier asserts is unnecessary for the compensable injury.

The documentary record in this proceeding consists of 30 pages of the Claimant’s medical records presented to the IRO. In addition, Dr. Shanti testified via telephone on behalf of the service provider. The Carrier called no witnesses.

Regulations

Employees have a right to necessary health treatment under Tex. Labor Code Ann. §§ 408.021 and 401.011. Section 408.021(a) provides:

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.

Section 401.011(19) of the Labor Code provides that health care includes “all reasonable and necessary medical . . . services.”

The Texas Workers’ Compensation Commission (Commission) adopted 1996 MFG defines and states entrance criteria for a chronic pain management program as follows:

Chronic Pain Management: A program which provides coordinated, goal-oriented, interdisciplinary team services to reduce pain, improve functioning, and decrease the dependence on the health care system of persons with chronic pain syndrome.

1. Chronic pain syndrome is defined as any set of verbal and/or nonverbal behaviors that:
2. involves the complaint of enduring pain;
3. differs significantly from the injured worker’s premorbid status;
4. has not responded to previous appropriate medical, surgical, and/or

injection treatments; and

interferes with the injured worker’s physical, psychological, social,

and/or vocational functioning.

1. Entrance/admission criteria shall enable the program to admit persons:
2. who are likely to benefit from this program design;
3. b. whose symptoms meet the above description of chronic pain syndrome; and
4. whose medical, psychological, or other conditions do not prohibit participation in the program.^[2]

Components of the program include individual and group psychotherapy, reduction of drug dependance, one-on-one time with the treating doctor, physical therapy, and occupational therapy.^[3]

As the appellant, the Carrier has the burden of proof in this proceeding.^[4]

1. Discussion
2. Parties’ Evidence and Positions

The Carrier asserts that the requested chronic pain management program has not been shown to be necessary. It also asserts that there is an extent-of-injury proceeding pending at the Commission in which the Carrier is contesting the compensability of the Claimant’s back problems. It points out that the Designated Doctor’s report filed by Kaare Kolstad, M.D., identifies the Claimant’s main pain complaint as “the back buttock area radiating down to the knee.” Dr. Kolstad observed that the Claimant’s MRIs reflected “some grade 2 signal changes within the menisci medially, but no frank tears were noted in the menisci or the ligaments.” The Designated Doctor’s overall impression was that the Claimant “has more sciatic nerve root pain coming from her back, in that her knee is essentially undamaged.” Dr. Kolstad stated that her knee was at maximum medical improvement and assigned a 0% impairment rating for the knee.^[5]

The Carrier also points to the peer review conducted by A. Brylowski, M.D., on behalf of the Carrier. Dr. Brylowski acknowledged Dr. Shanti’s report that the Claimant has “bilateral radiculopathy on EMG, disc protrusion on MRI.” Dr. Brylowski in turn “pointed out the Designated Doctor’s exam and the significant symptoms magnification by Waddell’s signs.”^[6]

Other documentation in the record includes a psychotherapy note by John Ann Morgan recommending a chronic pain program. It states that the Claimant is unable to control her emotions and stressors and that she feared the future. Mr. Morgan stated that individual psychotherapy was unable to resolve these problems and that a chronic pain management program was appropriate. He observed that the Claimant suffers from a chronic pain syndrome and a complex medical condition which have not responded significantly to appropriate conservative treatment; that her chronic pain behavior interferes with her physical, psychological, vocational and social functioning; that these conditions differ significantly from her pre-morbid condition; and that the pain has persisted beyond the expected tissue healing time. Mr. Morgan concluded that the Claimant “has physical and mental impairment greater than expected on the basis of diagnosed medical condition. Her maladaptive coping style should be addressed in a behavioral chronic pain program.”^[7]

In his live testimony, Dr. Shanti reaffirmed these points and observed that the Claimant’s pain is very stressful and has led to depression, which in turn has lowered the Claimant’s motivation and energy level. He believed the one-on-one and group therapy associated with the program could effectively address this problem. He further opined that the vocational component of the program would help to gear her to a return to work, and the medical component would be aimed at tapering the Claimant’s long-term use of opiate pain medication.

ALJ’s Analysis

The ALJ finds that the Carrier has failed to prove that the prescribed chronic pain management program is not medically necessary. Dr. Shanti and Mr. Morgan addressed the expected benefits of the program. They also related the Claimant’s condition to the regulatory criteria for the program, and showed that she meets these criteria.

The limited documents relied upon by the Carrier do not disprove the need for the plan. Dr. Shanti, who also sometimes serves as a designated doctor for the Commission, explained that the purpose of the designated doctor’s assessment was to assign an impairment rating for the knee.

According to Dr. Shanti, the designated doctor’s impairment evaluation is not intended to assess the need for ongoing care. Where the issue is pain, an impairment rating of zero does not indicate that the pain problem does not need to be addressed.^[8] The ALJ also observes that, while Dr. Brylowski’s peer review notes the presence of symptom magnification alongside objective clinical abnormalities, it presents no analyses why these findings render the Claimant an unsuitable candidate for chronic pain management.

Finally, the ALJ concludes the decision in this proceeding should not be abated pending resolution of the extent-of-injury proceeding apparently pending at the Commission. Dr. Brylowski did not rely on an extent of injury rationale, and Dr. Shanti testified he was aware only that the injury to the claimant’s back was being contested; he was unaware of any contest to the compensability of her knee, ankle, and hip injuries. In Dr. Shanti’s view, the Claimant required the requested program even excluding the back injury from the mix. The ALJ cannot disagree with that assessment based on the record of this proceeding.

Based on the foregoing, the ALJ finds that the requested Chronic Pain Management Program should be preauthorized.

III. Findings of Fact

1. The Claimant sustained an injury to her, right hip, right knee, and right ankle in a work-related injury that occurred on ___. She may also have injured her back in the accident.
2. At the time of the accident, Travelers Indemnity Company (the Carrier) was the worker’s compensation carrier for the Claimant’s employer.
3. The Claimant underwent an MRI and an EMG which were positive for damage to her knee.
4. The Claimant has undergone conservative care consisting of pain medications, steroid injections, physical therapy, and psychotherapy. She also began a work hardening program that she could not complete.
5. The Claimant continues to suffer debilitating levels of pain that interfere with her activities of daily living and currently preclude her from returning to the work force.
6. The Claimant’s treating doctor, Ihsan Shanti, MD, has now requested preauthorization for a 30-session chronic pain management program.
7. The Carrier timely denied the preauthorization request, and the Provider requested medical dispute resolution.
8. In a decision issued January 27, 2004, the Independent Review Organization reviewer (IRO) determined that the requested chronic pain management program is medically necessary and should be preauthorized.
9. The Carrier timely appealed the IRO decision, which the Commission had adopted.
10. The Commission sent notice of the hearing on the appeal to all parties on February 23, 2004.
11. 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.
12. The hearing convened and closed on March 22, 2004.
13. Based on Findings of Fact Nos. 4-5, extensive conservative care has failed to adequately relieve the Claimant’s pain to this point.
14. Nothing was shown to medically or psychologically prohibit the Claimant from successfully participating in the requested chronic pain management program.
15. The Carrier failed to establish that the requested chronic pain management program is not medically necessary.

IV. Conclusions of Law

1. 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. ch. 2003.
2. The Carrier 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. §§ 2001.051, 2001.052, and 28 TAC § 148.4.
4. The Carrier had the burden of proof in this matter pursuant to 28 TAC § 148.21(h).
5. Tex. Lab. Code Ann. § 413.014 and 28 TAC § 134.600 require that CPM programs be preauthorized, dependent on a showing of medical necessity.
6. The Carrier failed to establish that the chronic pain management sessions would not cure or relieve the effects naturally resulting from the Claimant’s injury, promote his recovery, or enhance his ability to return to or retain employment.
7. The Carrier did not establish that the requested chronic pain management is not medically necessary to treat the Claimant’s injury.
8. Based on the foregoing Findings of Fact and Conclusions of Law, preauthorization for the requested 30 sessions of chronic pain management should be approved, pursuant to Tex. Lab. Code Ann. § 413.014 and 28 TAC § 134.600.

ORDER

It is ORDERED that 30 chronic pain management sessions with Shanti Pain & Wellness Clinic are preauthorized for the Claimant. All other pending motions or requests for relief, if any, not specifically granted herein are denied for want of merit.

Signed May 5, 2004.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

KERRY D. SULLIVAN
Administrative Law Judge

1. As discussed below, the Carrier is apparently contesting the extent of the Claimant’s injury in a proceeding currently pending at the Commission.↑
2. MFG, Medicine Ground Rules, II.G.↑
3. Id.↑
4. 1 Tex. Admin. Code (TAC) § 155.41; 28 TAC § 148(h).↑
5. Pet. Ex. 1, pp 3-5.↑
6. Pet. Ex. 1, p. 13.↑
7. Pet. Ex. 1, pp. 25-27.↑
8. Despite the limited purpose of the Designated Doctor’s examination, it is clear that this doctor viewed the Claimant’s knee injury as less debilitating than did Dr. Shanti. To the extent their views conflict, the ALJ assigns more weight to Dr. Shanti’s testimony in that he testified at the hearing and was a credible witness who stood for cross examination.↑