Texas Workers’ Compensation
Legal Research Made Easy
DECISION AND ORDER
This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and Rules of the Division of Workers’ Compensation (DWC) adopted thereunder. For the reasons discussed herein, the Administrative Law Judge determines that diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration are not health care reasonably required for the compensable injury of (Date of Injury).
STATEMENT OF THE CASE
A contested case hearing was held on November 4, 2019 by a Division administrative law judge, Francisca N. Okonkwo, to decide the following disputed issue:
Is the preponderance of the evidence contrary to the decision of the IRO that Claimant is not entitled to diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration for the (Date of Injury) compensable injury?
Claimant appeared and was represented by LT, attorney. Carrier appeared and was represented by GS, attorney.
The following witnesses testified:
For the Claimant: (Claimant).
For Carrier: None.
The following exhibits were admitted into evidence:
Administrative Law Judge’s Exhibits ALJ-1 through ALJ-5.
Claimant’s Exhibits C-1 through C-8.
Carrier’s Exhibits CR-A and CR-D.
On (Date of Injury), Claimant, a crane operator for Employer, fell off his crane while cleaning the front windshield. He sustained fractures of the left lateral 7th and 8th ribs, facial abrasions, concussion, post-concussion syndrome, traumatic brain injury, and depression as a result of the work injury. In an effort to determine when Claimant reached maximum medical improvement (MMI) and to assess his impairment rating (IR), DWC appointed ZK, MD, as designated doctor (DD). Dr. K examined Claimant on December 13, 2018 and referred him to Psychologist, SB, PhD, for psychological evaluation. Dr. B performed a psychological interview and neuropsychological testing, which included 16 total hours of interview, test administration, scoring, interpretation, research, review of records and her opinion regarding MMI and IR, to produce a comprehensive 49-page report.
Insurance Carrier-selected required medical examination (RME) doctor, AB, MD, examined Claimant on April 16, 2019 to determine when he reached MMI and to assign an IR. Dr. B also performed a neuropsychological evaluation and diagnostic testing and provided his report. The contested case hearing on the issues of MMI and IR is pending.
Claimant sought to obtain his own alternate comprehensive psychological evaluation with GB and Associates, which was denied by Carrier, then denied by Utilization Review. Claimant contends that this additional testing is reasonable and necessary in order to determine the date of MMI and to assess an accurate IR and that the AMA Guides to the Evaluation of Permanent Impairment allows for it. Claimant disagrees with the Independent Review Organization (IRO) decision which upheld Carrier’s denial of the additional diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration requested for Claimant’s (Date of Injury) compensable injury.
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.”
With regard to diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration the ODG lists the following criteria:
Psychological evaluations are generally accepted, well-established diagnostic procedures not only with selected use in pain problems, but also with more widespread use in subacute and chronic pain populations. Diagnostic evaluations should distinguish between conditions that are preexisting, aggravated by the current injury or work related. Psychosocial evaluations should determine if further psychosocial interventions are indicated. The interpretations of the evaluation should provide clinicians with a better understanding of the patient in their social environment, thus allowing for more effective rehabilitation. (Main-BMJ, 2002) (Colorado, 2002) (Gatchel, 1995) (Gatchel, 1999) (Gatchel, 2004) (Gatchel, 2005)
For the evaluation and prediction of patients who have a high likelihood of developing chronic pain, a study of patients who were administered a standard battery psychological assessment test found that there is a psychosocial disability variable that is associated with those injured workers who are likely to develop chronic disability problems. (Gatchel, 1999) Childhood abuse and other past traumatic events were also found to be predictors of chronic pain patients. (Goldberg, 1999) Another trial found that it appears to be feasible to identify patients with high levels of risk of chronic pain and to subsequently lower the risk for work disability by administering a cognitive-behavioral intervention focusing on psychological aspects of the pain problem. (Linton, 2002) Other studies and reviews support these theories. (Perez, 2001) (Pulliam, 2001) (Severeijns, 2001) (Sommer, 1998) In a large RCT the benefits of improved depression care (antidepressant medications and/or psychotherapy) extended beyond reduced depressive symptoms and included decreased pain as well as improved functional status. (Lin-JAMA, 2003)
See “Psychological Tests Commonly Used in the Assessment of Chronic Pain Patients” from the Colorado Division of Workers’ Compensation, which describes and evaluates the following 26 tests: (1) BHI 2nd ed – Battery for Health Improvement, (2) MBHI – Millon Behavioral Health Inventory [has been superseded by the MBMD following, which should be administered instead], (3) MBMD – Millon Behavioral Medical Diagnostic, (4) PAB – Pain Assessment Battery, (5) MCMI-111 – Millon Clinical Multiaxial Inventory, (6) MMPI-2 – Minnesota Inventory, (7) PAI – Personality Assessment Inventory, (8) BBHI 2 – Brief Battery for Health Improvement, (9) MPI – Multidimensional Pain Inventory, (10) P-3 – Pain Patient Profile, (11) Pain Presentation Inventory, (12) PRIME-MD – Primary Care Evaluation for Mental Disorders, (13) PHQ – Patient Health Questionnaire, (14) SF 36, (15) SIP – Sickness Impact Profile, (16) BSI – Brief Symptom Inventory, (17) BSI 18 – Brief Symptom Inventory, (18) SCL-90 – Symptom Checklist, (19) BDI–II – Beck Depression Inventory, (20) CES-D – Center for Epidemiological Studies Depression Scale, (21) PDS – Post Traumatic Stress Diagnostic Scale, (22) Zung Depression Inventory, (23) MPQ – McGill Pain Questionnaire, (24) MPQ-SF – McGill Pain Questionnaire Short Form, (25) Oswestry Disability Questionnaire, (26) Visual Analogue Pain Scale – VAS. (Bruns, 2001) Chronic pain may harm the brain, based on using functional magnetic resonance imaging (fMRI), whereby investigators found individuals with chronic back pain (CBP) had alterations in the functional connectivity of their cortical regions – areas of the brain that are unrelated to pain – compared with healthy controls. Conditions such as depression, anxiety, sleep disturbances, and decision-making difficulties, which affect the quality of life of chronic pain patients as much as the pain itself, may be directly related to altered brain function as a result of chronic pain. (Baliki, 2008) Maladjusted childhood behavior is associated with the likelihood of chronic widespread pain in adulthood. (Pang, 2010) Psychosocial factors may predict persistent pain after acute orthopedic trauma, according to a recent study. The early identification of those at risk of ongoing pain is of importance for injured workers and compensation systems. Significant independent predictors of pain outcomes were high levels of initial pain, external attributions of responsibility for the injury, and psychological distress. Pain-related work disability was also significantly predicted by poor recovery expectations, and pain severity was significantly predicted by being injured at work. (Clay, 2010)
The Utilization Review doctor found that based on the clinical information provided, the request for diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration is not recommended as medically necessary. The submitted clinical records indicate that the request was reviewed and denied on April 11, 2019 due to very limited information being available. It is reported that Dr. GB has not yet met Claimant but noted that that Claimant has a history of significant head injury and he believes Claimant will need comprehensive neurological testing and evaluation. Dr. B has agreed to see Claimant and has requested an appeal. However, no new clinical information was submitted. No supporting documentation was provided. Therefore, medical necessity was not established in accordance with current evidence-based guidelines.
Claimant’s testimony was considered. The medical records in evidence were also considered. However, the medical evidence presented was not sufficient to meet Claimant’s burden of proof. Claimant has not shown by a preponderance of evidence-based medical evidence that the requested additional psychological testing is health care reasonably required for the compensable injury.
Even though all the evidence presented was not discussed, it was considered. The Findings of Fact and Conclusions of Law are based on all of the evidence presented.
FINDINGS OF FACT
1.The parties stipulated to the following facts:
B.The Texas Department of Insurance, Division of Workers’ Compensation has jurisdiction in this matter.
C.Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
D.On (Date of Injury), Claimant was the employee of (Employer), Employer.
E.On (Date of Injury), Employer provided worker’s compensation insurance through Insurance Company of the State of Pennsylvania, Carrier.
F.Claimant sustained a compensable injury in the form of fractures of the left lateral 7th and 8th ribs, facial abrasions, concussion, post-concussion syndrome, traumatic brain injury, and depression on (Date of Injury).
G.The Independent Review Organization determined that claimant should not have diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration
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 Administrative Law Judge’s Exhibit Number 2.
9.Diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration are not health care reasonably required for the compensable injury of (Date of Injury).
CONCLUSIONS OF LAW
1.The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case.
2.Venue is proper in the (City) Field Office.
3.The preponderance of the evidence is not contrary to the decision of the IRO that diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration are not health care reasonably required for the compensable injury of (Date of Injury).
Diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration are not health care reasonably required for the compensable injury of (Date of Injury).
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.
The true corporate name of the insurance carrier is INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218
Signed this 13th day of November, 2019.
FRANCISCA N. OKONKWO
Administrative Law Judge