Texas Workers’ Compensation

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19012
September 26, 2019

DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and the Rules of the Texas Department of Insurance, Division of Workers’ Compensation (DWC). For the reasons discussed herein, the Administrative Law Judge (ALJ) determines that:

Claimant is not entitled to 80 hours of chronic pain management for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

Thomas Hight, a DWC administrative law judge, held a contested case hearing on September 3, 2019 to decide the following disputed issue:

  1. 1.Is the preponderance of the evidence contrary to the decision of the IRO that Claimant is not entitled to 80 hours of chronic pain management for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Petitioner appeared and was represented by MW, lay representative. Claimant did not appear. Respondent/Carrier appeared and was represented by JF, attorney. MW also appeared for Sub-Claimant.

EVIDENCE PRESENTED

The following witnesses testified:

For Petitioner: Dr. KW.

For Claimant: None.

For Sub-Claimant: None.

For Insurance Carrier: None.

The following exhibits were admitted into evidence:

Administrative Law Judge’s Exhibits: ALJ-1 and ALJ-2.

Petitioner’s Exhibits: None

Claimant’s Exhibits: None.

Sub-Claimant’s Exhibits: SC-1 through SC-5.

Insurance Carrier’s Exhibits: CR-A through CR-H.

DISCUSSION

Although properly notified, Claimant failed to appear for the contested case hearing scheduled for 2:00 pm on September 3, 2019. A 10-day letter was sent to Claimant on September 5, 2019, advising him that the hearing had convened, that the record was opened and developed, and that the record would be held open for 10 days after receipt of the letter to afford Claimant the opportunity to respond in writing, show good cause for his failure to appear at the September 3, 2109 hearing, and request that the hearing be rescheduled to permit him to present evidence on the disputed issue. Claimant failed to timely respond in writing to the 10-day letter as required by DWC Rule 142.11(a), and the record was closed on September 26, 2019.

Claimant sustained a compensable lifting injury to his low back on (Date of Injury). KW, PhD, requested pre-authorization for 80 hours of chronic pain management. The IRO upheld the previous denials, and Dr. W appealed.

The hearing file provided to the ALJ contained a review by a DWC employee stating the appeal from the IRO was not timely filed, because the IRO decision was sent to the parties on May 28, 2019 and the appeal was filed on June 25, 2019. However, the IRO decision in the hearing file had a fax header dated June 11, 2019, which was the date Dr. W maintained he received the decision. The ALJ determined that the appeal was timely filed.

Texas Labor Code Section 408.021 provides that 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. Health care reasonably required is further defined in Texas Labor Code Section 401.011 (22a) as health care that is clinically appropriate and considered effective for the injured employee’s injury and provided in accordance with best practices consistent with evidence-based medicine or, if evidence-based medicine is not available, then generally accepted standards of medical practice recognized in the medical community. Health care under the Texas Workers’ Compensation system must be consistent with evidence-based medicine if that evidence is available. Evidence-based medicine is further defined in Texas Labor Code Section 401.011 (18a) to be the use of the current best quality scientific and medical evidence formulated from credible scientific studies, including peer-reviewed medical literature and other current scientifically based texts and treatment and practice guidelines. The Commissioner of the Division of Workers’ Compensation is required to adopt treatment guidelines that are evidence-based, scientifically valid, outcome-focused and designed to reduce excessive or inappropriate medical care while safeguarding necessary medical care. Texas Labor Code Section 413.011(e). Medical services consistent with the medical policies and fee guidelines adopted by the commissioner are presumed reasonable in accordance with Texas Labor Code Section 413.017(1).

In accordance with the above statutory guidance, the Division of Workers’ Compensation has adopted treatment guidelines by Division Rule 137.100. This rule directs health care providers to provide treatment in accordance with the current edition of the Official Disability Guidelines (ODG), and such treatment is presumed to be health care reasonably required as defined in the Texas Labor Code. Thus, the focus of any health care dispute starts with the health care set out in the ODG. Also, in accordance with Division Rule 133.308(s), “A decision issued by an IRO is not considered an agency decision and neither the Department nor the Division are considered parties to an appeal. In a Contested Case Hearing (CCH), the party appealing the IRO decision has the burden of overcoming the decision issued by an IRO by a preponderance of evidence-based medical evidence.”

The ODG entry for chronic pain programs (functional restoration programs) provides the following criteria for general use of multidisciplinary outpatient pain management programs:

Outpatient pain rehabilitation programs may be considered medically necessary in the following circumstances:

  1. (1)The patient has a chronic pain syndrome, with evidence of loss of function that persists beyond three months and has evidence of three or more of the following:
  2. (b)Excessive dependence on health-care providers, spouse, or family;
  3. (c)Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;
  4. (d)Withdrawal from social activities or normal contact with others, including work, recreation, or other social contacts;
  5. (e)Failure to restore preinjury function after a period of disability such that the physical capacity is insufficient to pursue work, family, or recreational needs;
  6. (f)Development of psychosocial sequelae that limits function or recovery after the initial incident, including anxiety, fear-avoidance, depression, sleep disorders, or nonorganic illness behaviors (with a reasonable probability to respond to treatment intervention);
  7. (g)The diagnosis is not primarily a personality disorder or psychological condition without a physical component;
  8. (h)There is evidence of continued use of prescription pain medications (particularly those that may result in tolerance, dependence or abuse) without evidence of improvement in pain or function.
  9. (9)Previous methods of treating chronic pain have been unsuccessful and there is an absence of other options likely to result in significant clinical improvement.
  10. (10)An adequate and thorough multidisciplinary evaluation has been made. This should include pertinent validated diagnostic testing that addresses the following:
  11. (k)A physical exam that rules out conditions that require treatment prior to initiating the program. All diagnostic procedures necessary to rule out treatable pathology, including imaging studies and invasive injections (used for diagnosis), should be completed prior to considering a patient a candidate for a program. The exception is diagnostic procedures that were repeatedly requested and not authorized. Although the primary emphasis is on the work-related injury, underlying non-work related pathology that contributes to pain and decreased function may need to be addressed and treated by a primary care physician prior to or coincident to starting treatment;
  12. (l)Evidence of a screening evaluation should be provided when addiction is present or strongly suspected;
  13. (m)Psychological testing using a validated instrument to identify pertinent areas that need to be addressed in the program (including but not limited to mood disorder, sleep disorder, relationship dysfunction, distorted beliefs about pain and disability, coping skills and/or locus of control regarding pain and medical care) or diagnoses that would better be addressed using other treatment should be performed;
  14. (n)An evaluation of social and vocational issues that require assessment.
  15. (15)If a goal of treatment is to prevent or avoid controversial or optional surgery, a trial of 10 visits (80 hours) may be implemented to assess whether surgery may be avoided.
  16. (16)If a primary reason for treatment in the program is addressing possible substance use issues, an evaluation with an addiction clinician may be indicated upon entering the program to establish the most appropriate treatment approach (pain program vs. substance dependence program). This must address evaluation of drug abuse or diversion (and prescribing drugs in a non-therapeutic manner). In this particular case, once drug abuse or diversion issues are addressed, a 10-day trial may help to establish a diagnosis, and determine if the patient is not better suited for treatment in a substance dependence program. Addiction consultation can be incorporated into a pain program. If there is indication that substance dependence may be a problem, there should be evidence that the program has the capability to address this type of pathology prior to approval.
  17. (17)Once the evaluation is completed, a treatment plan should be presented with specifics for treatment of identified problems, and outcomes that will be followed.
  18. (18)There should be documentation that the patient has motivation to change, and is willing to change their medication regimen (including decreasing or actually weaning substances known for dependence). There should also be some documentation that the patient is aware that successful treatment may change compensation and/or other secondary gains. In questionable cases, an opportunity for a brief treatment trial may improve assessment of patient motivation and/or willingness to decrease habituating medications.
  19. (19)Negative predictors of success (as outlined above) should be identified, and if present, the pre-program goals should indicate how these will be addressed.
  20. (20)If a program is planned for a patient that has been continuously disabled for greater than 24 months, the outcomes for the necessity of use should be clearly identified, as there is conflicting evidence that chronic pain programs provide return-to-work beyond this period. These other desirable types of outcomes include decreasing post-treatment care including medications, injections and surgery. This cautionary statement should not preclude patients off work for over two years from being admitted to a multidisciplinary pain management program with demonstrated positive outcomes in this population.
  21. (21)Treatment is not suggested for longer than 2 weeks without evidence of compliance and significant demonstrated efficacy as documented by subjective and objective gains. (Note: Patients may get worse before they get better. For example, objective gains may be moving joints that are stiff from lack of use, resulting in increased subjective pain.) However, it is also not suggested that a continuous course of treatment be interrupted at two weeks solely to document these gains, if there are preliminary indications that they are being made on a concurrent basis.
  22. (22)Integrative summary reports that include treatment goals, compliance, progress assessment with objective measures and stage of treatment, must be made available upon request at least on a bi-weekly basis during the course of the treatment program.
  23. (23)Total treatment duration should generally not exceed 4 weeks (20 full-days or 160 hours), or the equivalent in part-day sessions if required by part-time work, transportation, childcare, or comorbidities. (Sanders, 2005) If treatment duration more than 4 weeks is required, a clear rationale for the specified extension and reasonable goals to be achieved should be provided. Longer durations require individualized care plans explaining why improvements cannot be achieved without an extension as well as evidence of documented improved outcomes from the facility (particularly in terms of the specific outcomes that are to be addressed).
  24. (24)At the conclusion and subsequently, neither re-enrollment in repetition of the same or similar rehabilitation program (e.g. work hardening, work conditioning, out-patient medical rehabilitation) is medically warranted for the same condition or injury (with possible exception for a medically necessary organized detox program). Prior to entry into a program the evaluation should clearly indicate the necessity for the type of program required, and providers should determine upfront which program their patients would benefit more from. A chronic pain program should not be considered a “stepping stone” after less intensive programs, but prior participation in a work conditioning or work hardening program does not preclude an opportunity for entering a chronic pain program if otherwise indicated.
  25. (25)Suggestions for treatment post-program should be well documented and provided to the referral physician. The patient may require time-limited, less intensive post-treatment with the program itself. Defined goals for these interventions and planned duration should be specified.
  26. (26)Post-treatment medication management is particularly important. Patients that have been identified as having substance abuse issues generally require some sort of continued addiction follow-up to avoid relapse.

The IRO doctor, described in the IRO decision as “PhD, Board Certified Psychiatrist”, thought the requested pain management program was not medically necessary, noting that it was unclear whether Claimant had undergone psychometric testing with validity measures to assess the validity of his subjective complaints, that there were no serial treatment records submitted for review documenting Claimant’s objective, functional response to treatment, and that it was unclear why Claimant’s physical demand level was limited to sedentary given that the accepted diagnosis was a lumbar strain/sprain only.

Dr. KW testified at some length, maintaining that the ODG criteria were met in this case. He did not credibly explain why Claimant needed additional treatment for a lumbar strain sustained three and one-half years ago.

There was no objection to the testimony, reports, or qualifications of any doctor.

The Administrative Law Judge considered all of the evidence admitted. The Findings of Fact and Conclusions of Law are based on an assessment of all of the evidence whether or not the evidence is specifically discussed in this Decision and Order.

FINDINGS OF FACT

  1. 1.The parties stipulated to the following facts:
  2. B.Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
  3. C.On (Date of Injury) Claimant was the employee of (Employer), Employer.
  4. D.On (Date of Injury) Employer provided workers’ compensation insurance with Indemnity Insurance Company of North America, Carrier.
  5. E.On (Date of Injury) Claimant sustained a compensable injury.
  6. F.The Independent Review Organization determined Claimant should not have the requested treatment.
  7. G.The compensable injury is a lumbar strain.
  8. 8.Carrier delivered to Claimant a single document stating the true corporate name of Carrier and the name and street address of Carrier’s registered agent, which document was admitted into evidence as Hearing Officer’s Exhibit Number 2.
  9. 9.80 hours of chronic pain management is not health care reasonably required for the compensable injury of (Date of Injury).
  10. 10.Claimant failed to appear for the September 3, 2019 contested case hearing and did not respond to the Division’s letter offering him the opportunity to have the hearing rescheduled.
  11. 11.Claimant did not have good cause for failing to appear at the contested case hearing.

CONCLUSIONS OF LAW

  1. 1.The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case.
  2. 2.Venue is proper in the (City) Field Office.
  3. 3.The preponderance of the evidence is not contrary to the decision of the IRO that 80 hours of chronic pain management is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is not entitled to 80 hours of chronic pain management for the compensable injury of (Date of Injury).

ORDER

Carrier is not liable for the benefits at issue in this hearing. Claimant remains entitled to medical benefits for the compensable injury in accordance with Section 408.021 of the Act.

The true corporate name of the insurance carrier is INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201

Signed this 26th day of September, 2019.

Thomas Hight

Administrative Law Judge

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At a Glance:

Title:

19012

Decision Type:

MCCH Decision

Date:

September 26, 2019

MCCH Type:

Non-Network
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