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 adopted thereunder.

ISSUES

A contested case hearing was held on October 28, 2011 to decide the following disputed issue:

1. Is the preponderance of the evidence contrary to the decision of the IRO that the claimant is not entitled to one office visit for possible adjustment of spinal cord stimulator and medications for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Petitioner/Claimant appeared and was assisted by RB, ombudsman. Respondent/Carrier appeared and was represented by PW, attorney.

BACKGROUND INFORMATION

Claimant sustained a compensable injury to his low back on (Date of Injury). A spinal cord stimulator was implanted on June 2, 2009. Dr. A requested pre-authorization for one random urine drug screen and one office visit for possible adjustments of spinal cord stimulator and medications. The IRO doctor, an MD board certified in anesthesiology and pain management, overturned the previous denials of the random urine drug screen but upheld the previous denials of the office visit. Claimant appealed the denial of the office visit.

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 (t), “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 does not provide criteria specifically addressing follow up office visits for a patient with an implanted spinal cord stimulator.

The ODG provides the following concerning spinal cord stimulation for low back injury:

Recommended only for selected patients in cases when less invasive procedures have failed or are contraindicated. See the Pain Chapter for Indications for stimulator implantation. There is some evidence supporting the use of Spinal Cord Stimulation (SCS) for Failed Back Surgery Syndrome (FBSS) and other selected chronic pain conditions. Spinal Cord Stimulation is a treatment that has been used for more than 30 years, but only in the past five years has it met with widespread acceptance and recognition by the medical community. In the first decade after its introduction, SCS was extensively practiced and applied to a wide spectrum of pain diagnoses, probably indiscriminately. The results at follow-up were poor and the method soon fell in disrepute. In the last decade there has been growing awareness that SCS is a reasonably effective therapy for many patients suffering from neuropathic pain for which there is no alternative therapy. There are several reasons for this development, the principal one being that the indications have been more clearly identified. The enhanced design of electrodes, leads, and receivers/stimulators has substantially decreased the incidence of re-operations for device failure. Further, the introduction of the percutaneous electrode implantation has enabled trial stimulation, which is now commonly recognized as an indispensable step in assessing whether the treatment is appropriate for individual patients. These implantable devices have a very high initial cost relative to conventional medical management (CMM); however, over the lifetime of the carefully selected patient, SCS may lead to cost-saving and more health gain relative to CMM for FBSS. See the Pain Chapter for complete list of references. Fair evidence supports the use of spinal cord stimulation in failed back surgery syndrome, those with persistent radiculopathy after surgery, according to the recently released joint American College of Physicians/ American Pain Society guideline recommendations on surgery and interventional treatments. (Chou, 2008) The National Institute for Health and Clinical Excellence (NICE) of the UK just completed their Final Appraisal Determination (FAD) of the medical evidence on spinal cord stimulation (SCS), concluding that SCS is recommended as a treatment option for adults with failed back surgery syndrome lasting at least 6 months despite appropriate conventional medical management. (NICE, 2008)

Recent research: New 24-month data is available from a study randomizing 100 failed back surgery syndrome patients to receive spinal cord stimulation (SCS) plus conventional medical management (CMM) or CMM alone. At 24 months, the primary outcome was achieved by 37% randomized to SCS versus 2% to conventional medical management (CMM), and by 47% of patients who received SCS as final treatment versus 7% for CMM. All 100 patients in the study had undergone at least one previous anatomically successful spine surgery for a herniated disk but continued to experience moderate to severe pain in one or both legs, and to a lesser degree in the back, at least six months later. Conventional medical therapies included oral medications, nerve blocks, steroid injections, physical and psychological therapy and/or chiropractic care. (Kumar, 2008) There is fair evidence that spinal cord stimulation is moderately effective for failed back surgery syndrome with persistent radiculopathy, though device-related complications are common. (Chou3, 2009) A nonrandomized, prospective cohort study in workers comp patients with chronic back and leg pain after spine surgery, ie failed back surgery syndrome (FBSS), found no significant difference in pain, disability, or opioid use between patients that received (at least a trial of) SCS, care at a pain clinic, or neither (usual care) at 12 and 24 months. Only 25% of SCS patients in this study received psychological screening prior to the trial, whereas ODG recommends psychological screening prior to all SCS implantations. Because few patients in any group in this study achieved success at any follow-up, the authors suggested that no treatment has a substantial impact on average in this patient group. (Turner, 2010)

The IRO doctor stated the IRO decision was based on the ODG and on medical judgment, clinical experience, and expertise in accordance with accepted medical standards. The IRO doctor thought the medical necessity for follow up visit for spinal cord stimulator adjustment and medication management was not shown “given the lack of supporting documents and potential noncompliance with treatment plan”.

There was no testimony at the hearing. Claimant relied on a letter from Dr. A dated September 27, 2011. Dr. A thought the office visit should be approved and expressed his opinion in strong terms. He also provided an explanation of the basis for his opinion, however the explanation was grounded in his 20 years of experience as a board certified, fellowship pain specialist and the standard of care as he understood it. There was no offer of evidence based medical evidence to overcome the IRO decision.

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

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:
   1. A.Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
   2. B. On (Date of Injury) Claimant was the employee of (Employer), Employer.
   3. On (Date of Injury) Employer provided workers’ compensation insurance with American Home Assurance Company, Carrier.
   4. On (Date of Injury) Claimant sustained a compensable injury.
   5. The Independent Review Organization determined Claimant should not have the requested treatment of one office visit for possible adjustments of spinal cord stimulator and medications.

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.

One office visit for possible adjustment of spinal cord stimulator and medications is 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 one office visit for possible adjustment of spinal cord stimulator and medications is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is not entitled to one office visit for possible adjustment of spinal cord stimulator and medications 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 AMERICAN HOME ASSURANCE COMPANY, 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

Signed this 28th day of October, 2011.

Thomas Hight
Hearing Officer