DECISION AND ORDER

Steven S. Callahan, Ph.D. (Provider) appealed the decision of the Texas Workers’ Compensation Commission (Commission) designee, an Independent Review Organization (IRO), which denied his request for preauthorization for four hours^[1] of psychological testing as not medically necessary. The Administrative Law Judge (ALJ) finds that Provider proved that the psychological testing is medically necessary and should be preauthorized.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

On January 24, 2005, ALJ Michael J. O’Malley convened the hearing on the merits at the William P. Clements Building, 300 West 15^th Street, Austin, Texas. Carrier appeared through its attorney, Robert F. Josey. Provider appeared and represented himself. After the evidence was presented, the record of the hearing closed the same day.

II. BACKGROUND, EVIDENCE, AND DISCUSSION

Background

On ___, Claimant ___ (a 51-year old female at that time) sustained a compensable work-related injury. Carrier employed Claimant as a custodian. She had been employed for approximately nine years when the injury occurred. Claimant slipped and fell on a wet floor and suffered injuries to her knees, lower back, and right elbow. An MRI revealed that Claimant had two misplaced discs in her lower back. Claimant received two weeks of therapy but, due to increased pain, the therapy was discontinued. She received four injections for her lower back, but the injections did not reduce her pain. She also received arthroscopic surgery on her right knee and has received some treatment on her left knee. Although she has reduced pain in her right knee, her left knee pain remains the same. Claimant continues to have pain in her lower back, both knees, and her right elbow. Daily activities, such as putting on make up, household chores, and holding a pot of coffee, increase Claimant’s pain. Her level of functioning is approximately 20 percent of her pre‑injury level functioning.

In addition to her physical problems, Claimant has a family history of psychological problems. Claimant takes anti-depressant medication to address her distress. Since her injury, Claimant has decreased appetite, motivation, energy, self-esteem, concentration, memory, and social interaction. She also has difficulty sleeping, and feelings of hopelessness, restlessness, fear, nervousness, helplessness, depression, boredom, irritation, frustration, impatience, anxiety, anger, and discouragement about her future.^[2]

Legal Standards

Provider has the burden of proof in this proceeding. 28 Tex. Admin Code (TAC) § 148.21(h). In addition, 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. Labor Code Ann. § 408.021(a). For a carrier to be liable to reimburse a provider, certain services, including psychological testing, must be preauthorized by the carrier. 28 TAC § 134.600(h)(4).

1. Parties’ Positions and Evidence
2. Provider’s Position and Evidence

After submitting documents in evidence, Dr. Callahan testified on the importance of the psychological testing for Claimant. He stated that he conducted several clinical interviews with Claimant, and the results of the interviews revealed that Claimant appeared to be in chronic pain despite therapy, surgery, injections, and pain medication. He also noticed that Claimant suffered from anxiety and depression and testified that psychological testing could reveal whether Claimant is malingering, whether she is paranoid, and whether a chronic pain management program would benefit her. Dr. Callahan pointed out that Carrier denied preauthorization for a chronic pain management program because not enough information existed to justify the program. He claimed Carrier’s reasoning was inconsistent because the psychological testing would provide the necessary information to determine if Claimant would be an appropriate candidate for a chronic pain management program. Finally, Dr. Callahan relied on the American Medical Association Guidelines to support the psychological testing.

Carrier’s Position and Evidence

After submitting its documents in evidence, Carrier called Edwin Johnstone, M.D., to testify. Dr. Johnstone testified that psychological testing would be appropriate if Claimant had suffered a brain injury. Then, the tests might be necessary to determine the degree of impairment. Although Dr. Johnstone recognized Claimant’s complaints, such as depression and anxiety, he stated that these complaints could not be independently verified, such as through family members or through

surveillance. He further testified that he believed the clinical interviews and evaluations provided enough information; therefore, any psychological testing would be duplicative.

ALJ’s Analysis

The ALJ finds Provider proved by a preponderance of evidence that the psychological testing for Claimant is medically necessary. Claimant presents a complicated case and one that is difficult to assess. She has had surgery, therapy, and various other treatments with little success. She still complains of pain and is depressed and anxious. Claimant’s treating doctor, Pedro Lozano, D.C., referred her to Dr. Callahan for a comprehensive mental health evaluation to determine if Claimant has compensable mental health problems and to develop an effective treatment plan for her. Dr. Callahan was unable to complete is evaluation because Carrier denied his request for preauthorization of psychological testing.

Carrier initially denied preauthorization for the psychological testing until a clinical evaluation could be conducted. Dr. Callahan, therefore, performed a clinical evaluation. The evaluation showed that Claimant was experiencing a pain level of six or seven (out of ten). In addition, she reported that many of her daily activities, including activities required for her to return to work, were restricted by her pain. She indicated that she was functioning at 20 percent of her pre-injury level. Additionally, the clinical evaluation showed that Claimant experienced some relief when she was on her medications and from applications of heat. She also indicated that she received some benefit from the anti-depressants. In general, however, she reported that she was in significant pain and emotional distress and did not feel she could cope with either.

Dr. Callahan cannot provide a precise diagnosis or an effective treatment plan without the psychological testing. His clinical evaluation showed that the psychological tests would reveal whether Claimant is malingering or showing a pattern of symptom exaggeration; whether her pain and other symptoms are the result of her injury, some psychological disorder, or a combination of the two; whether Claimant’s anxiety and depression are contributing factors in Claimant’s slow recovery; whether Claimant is a legitimate threat to herself or others; and whether Claimant’s depression and anxiety are part of an underlying personality disorder or related to her injury. Dr. Callahan conducted a thorough evaluation of Claimant and her need for psychological testing in this case.

Dr. Johnstone, on the other hand, never evaluated Claimant and his opinions are not supported by the medical records. Dr. Lozano and Dr. Callahan, after careful evaluation, determined that Claimant should participate in psychological testing to develop a treatment plan for her to return to work. Dr. Johnstone’s opinions were vague and general and did not necessarily apply to Claimant. For example, he stated that because Claimant’s psychological distress (depression) is already being treated with medication, psychological testing would not be of any help to her. The evidence, however, shows that Claimant’s condition has not been fully resolved by medication or else she would have returned to work. Furthermore, Dr. Johnstone assumes that Claimant is malingering without fully evaluating her. Although Claimant could be malingering, she could also be in chronic pain; therefore, psychological testing is medically necessary to evaluate her and develop a treatment plan to return her to work.

III. FINDINGS OF FACT

1. On ___, Claimant ___ (Claimant) sustained a compensable work-related injury when she slipped and fell on a wet floor.
2. Claimant suffered injuries to her knees, lower back, and right elbow.
3. At the time of the compensable injury, Claimant’s employer, Texas City ISD (Carrier), was self-insured for workers’ compensation insurance.
4. Pedro Lozano, D.C. became Claimant’s treating doctor.
5. An MRI revealed that Claimant had two misplaced discs in her lower back.
6. Claimant received two weeks of therapy, but the therapy had to be stopped because of increased pain.
7. Claimant received four injections in her lower back, but the injections did not reduce her pain.
8. Claimant received arthroscopic surgery on her right knee and has received some treatment on her left knee.
9. The pain has been reduced in her right knee, but her left knee remains the same.
10. Claimant continues to have pain in her lower back, both knees, and her right elbow.
11. Claimant’s level of functioning is approximately 20 percent of her pre-injury level functioning.
12. Claimant has a family history of psychological problems.
13. Since her injury, Claimant has decreased appetite, motivation, energy, self-esteem, concentration, memory, and social interaction. In addition, Claimant has difficulty sleeping, and has feelings of hopelessness, restlessness, fear, nervousness, helplessness, depression, boredom, irritation, frustration, impatience, anxiety, anger, and discouragement about the future.
14. Dr. Lozano referred Claimant to Steven S. Callahan, Ph.D. (Provider) for psychological testing to evaluate Claimant’s psychological condition, to determine the compensable symptoms, and to design an effective treatment plan.
15. Guidelines established by the American Medical Association describe psychological testing as an integral part of evaluating pain.
16. Psychological tests increase the likelihood of appropriate diagnosis, treatment, and prognosis.
17. The use of psychological tests are the standard of care for providing effective treatment plans to patients in Claimant’s condition.
18. In particular, the psychological tests will determine whether Claimant is malingering or showing a pattern of symptom exaggeration; whether her pain and other symptoms are the result of her injury, some psychological disorder, or a combination of the two; whether Claimant’s anxiety and depression are contributing factors in Claimant’s slow recovery; whether Claimant is a legitimate threat to herself or others; and whether Claimant’s depression and anxiety are part of an underlying personality disorder or related to her injury.
19. Carrier denied preauthorization for the psychological testing as not medically necessary.
20. On July 12, 2004, an Independent Review Organization (IRO) denied Provider preauthorization for the psychological testing.
21. On August 3, 2004, Provider appealed the IRO’s decision.
22. The Texas Workers’ Compensation Commission (Commission) sent notice of the hearing to the parties on August 20, 2004. The hearing notice informed the parties of the matter to be determined, the right to appear and be represented, the time and place of the hearing, and the statutes and rules involved.
23. The hearing was held on January 24, 2005. Carrier appeared through its attorney, Robert F. Josey. Provider represented himself.
24. At the hearing, the only contested issue involved the medical necessity of the psychological testing.

IV. CONCLUSIONS OF LAW

1. 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 Tex. Lab. Code Ann. §§ 402.073 and 413.031(k) and Tex. Gov’t Code Ann. ch. 2003.
2. Proper and timely notice of the hearing was provided to the parties in accordance with Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
3. 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 relives 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).
4. Pursuant to 28 Tex. Admin. Code § 148.21(h), Provider has the burden of proving by a preponderance of the evidence that the psychological testing is medically necessary.
5. Provider proved by a preponderance of the evidence that the psychological testing is medically necessary for Claimant.
6. Psychological testing requires preauthorization. Tex. Lab. Code Ann. § 413.014(a); 28 Tex. Admin. Code § 134.600(h)(4).
7. Based on the Findings of Fact and Conclusions of Law, the psychological testing should be preauthorized.

ORDER

IT IS HEREBY ORDERED that Claimant ___ is entitled to preauthorization for three hours of psychological testing.

Signed February 15, 2005.

MICHAEL J. O’MALLEY
Administrative Law Judge
State Office of Administrative Hearing

1. At the hearing, Dr. Callahan acknowledged Claimant would only need three hours of psychological testing; therefore, preauthorization is for three hours of psychological testing.↑
2. Provider Ex. 1 at 2-13.↑