DECISION AND ORDER

Continental Casualty Company (Carrier) refused to preauthorize a chronic pain management program (CPM) requested by First Rio Valley Medical, P.A.^[1] (Petitioner) for a workers= compensation insurance claimant (Claimant). The denial was upheld in a decision issued by the Texas Workers= Compensation Commission’s (TWCC) Medical Review Division (MRD), which decision was based on the determination by TWCC’s designee, an independent review organization (IRO), that the requested service was not medically necessary. Petitioner appealed the MRD decision. This decision finds the preauthorization should be denied.

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 first convened August 10, 2004, at the State Office of Administrative Hearings, 300 W. 15^th Street, Austin, Texas, with Administrative Law Judge (ALJ) Ann Landeros presiding. Petitioner was represented by its principal, Robert Howell, D.C. Carrier was represented by attorney David Swanson. Commission Staff did not participate in the hearing.

After presentation of evidence at the August 10^th hearing, the parties agreed to abate the case pending a surgical evaluation of the Claimant. The parties were ordered to submit, no later than October 11, 2004, a joint status report stating whether a decision on the request for the CPM is needed. For reasons still unclear, and not really relevant to anything but the delay in the disposition of this matter, Claimant had not undergone the surgical evaluation by the time the parties filed their status reports.

The hearing reconvened on January 25, 2005, for the limited purpose of introducing evidence as to whether or not the Claimant received the surgical evaluation and if so, what that evaluation showed. At the reconvened hearing, evidence was introduced that the doctor performing the surgical evaluation had only been able to do a partial examination due to lack of some crucial diagnostic

records. The hearing once again recessed pending completion of Claimant’s surgical evaluation. The parties agreed to submit by March 7, 2005, the final surgical evaluation, a joint status report regarding Claimant’s decision on whether he wanted to have any recommended surgery, and written closing arguments. The surgical evaluation and closing arguments items were received and admitted into the record.

On March 24, 2005, the record was reopened to allow the parties to submit documents to reconstitute the August 10, 2004, hearing record. After receipt of the documents, which were admitted into the record without objection, the record closed April 13, 2005.

II. DISCUSSION

A. Background Facts

In ___, Claimant sustained a back injury compensable under the Texas Workers’ Compensation Act (Act). At the time of the compensable injury, Claimant’s employer had workers’ compensation insurance coverage with Carrier. An MRI in 2000 revealed Claimant had several herniated discs in his lumbar spine. Claimant underwent chiropractic care, epidural steroid injections, and physical therapy without permanent resolution of his lower back pain.

In January 2004, Dr. Howell requested preauthorization for a 40-session CPM program to treat Claimant’s on-going lower back pain. In his request, Dr. Howell wrote:

The patient has undergone numerous of [sic] injections with John Wells, M.D., Pain Management Specialist before he changed to me. I referred the patient to Donald Kramer, M.D., Pain Management Specialist who evaluated [Claimant] on 11/12/03 and has stated that [Claimant] Ahas used significant amounts of narcotic analgesics for a prolonged period of time and lacks coping skills necessary to wean from these medications.” [Claimant] continues to take medication to control his chronic low back pain. Some of the medications he is currently taking are vicoprofen tablets, mobic, and cyclobenzarpine.^[2] (Pet. Ex. 1, p. 13).

In July 2004, Climant underwent aquired medical examination by B.N. Lashmikanth, M.D. At that time, Claimant reported that since January 2004 he had been taking only Tylenol on an Aas needed basis.

Chronic back pain and narcotic-dependency were the only justifications cited by Dr. Howell in his preauthorization request, which Carrier denied. The IRO reviewer upheld the denial, writing:

All traditional medical interventions, however, have not been pursued in this case, according to the records provided for review. Therefore, I agree with the denial of the proposed pain management program. Spinal surgery might be a more definitive

way of dealing with the patient’s problem. . . . While there is no guarantee with an operative procedure, its potential as a method of definitive care is far greater than the proposed multiple sessions of a pain management program.

At the original hearing, Dr. Howell testified that Claimant did not want surgery, so the only treatment option left was the CPM program. However, Claimant testified at that time that he had not rejected surgery as an option, but that he first wanted to know more about the risks and complications. Therefore, the hearing was adjourned for Claimant to undergo a surgical evaluation and have the risks and complications explained to him.

In his surgical evaluation report dated February 18, 2005, Humberto Tijerina, M.D., diagnosed Claimant with Aprotrusion and stenosis” at the L2-S1 levels of his spine, lumbalgia, and Aequivocal” left S1 radiculopathy. As a suggested treatment plan, Dr. Tijerina wrote:

The suggested treatment plan for this patient is EMG/NCV to both lower extremities if not done yet. I discussed with patient the risk and complications of surgery. At present patient does not want surgical treatment and wants first Chronic Pain Management. Referrals are none. Medications are the same. Parafon Forte #30, Naprosyn #30 and Tylenol.^[3] . . .

Carrier argued that Claimant is not a CPM candidate because his pain levels are not intractable and because less intensive levels of treatment have not been tried in that Claimant has not received psychological counseling. Carrier’s expert witness, Samuel Bierner, M.D., testified the CPM is the treatment of last resort. In his opinion, because Claimant’s depression has not yet been treated with either psychotherapy or anti-depressant medications, it is premature to send Claimant to a CPM. Dr. Bierner also noted that the examinations of Claimant by Drs. Howell, Kramer, and Tijerina were inconsistent and lacked objective documented functional deficits.

B. Legal Standards

Petitioner has the burden of proof in this proceeding. 28 TEX. ADMIN. CODE (TAC) ” 148.21(h) and (i); 1 TAC ‘ 155.41. Pursuant to the Act, an employee who has sustained 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 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. TEX. LAB. CODE ANN. ‘ 408.021(a). Health care includes all reasonable and necessary medical services including a medical appliance or supply. TEX. LAB. CODE ANN. ‘401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. ‘ 401.011(31). For a carrier to be liable to reimburse a provider, certain services, including CPM programs, must be preauthorized by the carrier. 28 TAC 134.600(h).

C. Analysis

Petitioner failed to meet his burden of proof to establish the CPM program should be preauthorized because it is medically necessary healthcare for Claimant. The purpose of a CPM is to help the patient deal with unexplained, intractable pain that has impaired activities of daily living and created a dependence on pain medications. The source of Claimant’s pain has been identified, his pain level is commensurate with his diagnosed physical problem, and he is not dependent on pain medications. Although he has chronic pain, Claimant was not shown to be within the subset of patients suffering from chronic pain who are appropriate candidates for a CPM program. Additionally, Petitioner failed to show that Claimant has received the appropriate, less intensive forms of treatment, such as psychological counseling or anti-depressants that might help him deal with his chronic pain.

Only one of the two reasons Dr. Howell cited for the CPM referral (chronic pain and narcotic dependency) is still applicable to Claimant’s condition. If Claimant ever was addicted to narcotics, he no longer is. At the hearing, Claimant denied taking any medications for his back pain from January 2004 to the date of the hearing (August 10, 2004), a fact that is consistent with Dr. B. N. Lakshmikanth’s report in June 2004 that Claimant was taking only Tylenol occasionally.

In support of the medical necessity of the CPM program for Claimant, Petitioner cited to the Commission’s repealed Mental Health Guidelines^[4] (MHG) and Medicine Ground Rules^[5] (MGR). (Pet. Ex. 1, p. 160- 162). Although no longer binding criteria for CPM program referrals, the MHG and MGR do provide guidance as to the purpose of CPM programs and the criteria for participation. Reading the guidelines, it is apparent that chronic pain is only one of the criteria for a CPM program. The CPM protocol is designed to deal with patients whose pain is incommensurate with the diagnosed condition, who have significantly impaired activities of daily living, and who are chemically dependent on pain medication.

The MHG’s criteria does not support Petitioner’s position. As Carrier points out, the MHG made it clear that only some patients with chronic pain require CPM programs. Basically, the MHG criteria for CPM required: (1) intractable pain that has or will cause significant, permanent loss of functioning; (2) pain levels that are not explained by the diagnostic findings; and (3) inappropriate use of medical services or narcotics, sedatives, or alcohol. Although not as detailed as the MHG, the MGR also contained criteria that did not support Petitioner’s position because that criteria required the CPM program to focus on reducing or eliminating dependence on pain medications. Although he has chronic pain, Claimant does not have a pain medication dependence or unexplained severity of pain that would justify his participation in a CPM under the MGR criteria.

Claimant’s chronic pain is readily explained by his disc protrusions. He has managed his pain with little or no medication, so there is no reason to believe he is addicted to narcotics, sedatives, or alcohol. While the evidence supported a finding that Claimant suffers chronic pain, it appears his pain has been adequately managed over months with only minor analgesics. Finally, Claimant has

been diagnosed with, but not treated for, mental depression. Because a CPM is intended as the treatment of last resort, this claimant will not be a candidate for a CPM until there is some evidence that conventional approaches to the treatment of his depression have failed.

Based on this record, Claimant is not a candidate for a CPM program at this time.

III. FINDINGS OF FACT

1. In ___, Claimant sustained a back injury compensable under the Texas Workers’ Compensation Act (Act).
2. At the time of the compensable injury, Claimant’s employer had workers= compensation insurance coverage with Continental Casualty Company (Carrier).
3. In January 2004, Claimant’s treating doctor, Robert Howell, D.C., requested Carrier to preauthorize a 40-session chronic pain management (CPM) program for Claimant at First Rio Valley Medical, P.A. (Petitioner).
4. After Carrier denied the preauthorization request as being medically unnecessary, Petitioner requested the Texas Workers= Compensation Commission review the denial. That review produced the Independent Review Organization’s (IRO) decision, which upheld the denial of preauthorization.
5. Petitioner timely appealed the IRO decision.
6. The purpose of a CPM is to help the patient deal with unexplained, intractable pain that has impaired activities of daily living and created a dependence on pain medications.
7. Claimant suffers from chronic back pain emanating from lumbar disc protrusions.
8. Claimant’s chronic back pain is commensurate with his diagnosed disc protrusions.
9. Claimant is a surgical candidate but wants to avoid surgery, if possible.
10. Claimant is not dependent on pain medications.
11. Claimant has been diagnosed with, but not treated for, mental depression.
12. Because a CPM is intended as the treatment of last resort, conventional treatment of Claimant’s depression should be tried before he is sent to a CPM.
13. Pursuant to the notice of hearing sent by Commission Staff, all parties appeared or were represented at the hearing in this matter held August 10, 2004, and January 25, 2005.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act (Act), TEX. LABOR CODE ANN. § 413.031.
2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to ‘ 413.031of the Act and TEX. GOV’T CODE ANN. ch. 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV’T CODE ANN. ch. 2001 and the Commission’s rules, 28 TEX. ADMIN. CODE (TAC) ” 133.305 and 133.308.
4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV=T CODE ANN. ” 2001.051 and 2001.052.
5. Petitioner had the burden of proof in this proceeding. 28 TAC ” 148.21(h) and (i); 1 TAC ‘ 155.41.
6. The IRO had authority to review the parties= positions and issue a decision pursuant to the Commission’s rule at 28 TAC ” 133.305 and 133.308.
7. Pursuant to the Act, an employee who has sustained 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 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. TEX. LAB. CODE ANN. ‘ 408.021(a).
8. Health care includes all reasonable and necessary medical services, including a medical appliance or supply. TEX. LAB. CODE ANN. ‘401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. ‘ 401.011(31).
9. For a carrier to be liable to reimburse a provider for a CPM, the service must be preauthorized. 28 TAC ‘ 134.600(h).
10. A CPM program was not shown to be reasonable and medically necessary healthcare for Claimant and should be not preauthorized.

ORDER

It is ORDERED that the request of First Rio Valley Medical, P.A., for preauthorization of a chronic pain management program for Claimant is denied.

Signed April 20, 2005.

ANN LANDEROS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Since initiating this appeal, First Rio has become South Spine & Rehab, another entity with Dr. Howell as its principal.↑
2. Vicoprofen is a narcotic (hydrocodone with ibuprofen) while Mobic is a non-steroidal anti-inflammatory and cyclobenzarpine (Flexeril) is a non-narcotic skeletal muscle relaxant.↑
3. Parafon and Tylenol are a non-narcotic analgesics. Naprosyn is a non-steroidal anti-inflammatory drug.↑
4. Repealed January 1, 2002.↑
5. The Medicine Ground Rules at issue here were part of the 1996 Medical Fee Guidelines, which apply to workers’ compensation services rendered before September 1, 2002. 28 TAC § 134.201.↑