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 February 13, 2012 to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that the Claimant is not entitled to lumbar ESI for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Petitioner appeared pro se. Claimant appeared and was represented by TD, attorney.

Respondent/Carrier appeared and was represented by GS, attorney.

BACKGROUND INFORMATION

Claimant sustained a compensable injury on (Date of Injury). The lumbar MRI test notes showed multilevel stenosis with exiting L4 and L5 root impingement. Claimant came under the care of Dr. B on April 7, 2011. On September 2, 2011 Claimant was evaluated by Dr. M, referral from the treating doctor, and determined to be at statutory MMI with 5% impairment for low back pain and non-verifiable radiculopathy. The compensable injury included a left shoulder rotator cuff tear and sprains/strains to the cervical and lumbar spine.

After Dr. B requested pre-authorization for the lumbar epidural steroid injection (ESI), two utilization reviews (URAs) were conducted. Both URAs denied the request stating that additional validation of objective evidence of radiculopathy was needed. Dr. B appealed the carrier’s decision to an IRO.

The IRO reviewer, identified as a board certified orthopedic surgeon, determined that the lumbar ESI was not medically necessary. The IRO reviewer referenced the Official Disability Guidelines (ODG) and stated that the lumbar ESI cannot be supported in this case due to failure to demonstrate objective documentation of active lumbar radiculopathy. The IRO reviewer concluded by stating that given clear divergence between physical examinations provided the medical necessity for lumbar ESI was not established.

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 in making decisions about the care of individual patients. 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 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.”

ODG criteria for the use of ESI’s:

Note: The purpose of ESI is to reduce pain and inflammation, thereby facilitating progress in more active treatment programs, reduction of medication use and avoiding surgery, but this treatment alone offers no significant long-term functional benefit.

(1) Radiculopathy must be documented. Objective findings on examination need to be present. Radiculopathy must be corroborated by imaging studies and/or electrodiagnostic testing.

(2) Initially unresponsive to conservative treatment (exercises, physical methods, NSAIDs and muscle relaxants).

(3) Injections should be performed using fluoroscopy (live x-ray) and injection of contrast for guidance.

(4) Diagnostic Phase: At the time of initial use of an ESI (formally referred to as the “diagnostic phase” as initial injections indicate whether success will be obtained with this treatment intervention), a maximum of one to two injections should be performed. A repeat block is not recommended if there is inadequate response to the first block (< 30% is a standard placebo response). A second block is also not indicated if the first block is accurately placed unless: (a) there is a question of the pain generator; (b) there was possibility of inaccurate placement; or (c) there is evidence of multilevel pathology. In these cases a different level or approach might be proposed. There should be an interval of at least one to two weeks between injections.

(5) No more than two nerve root levels should be injected using transforaminal blocks.

(6) No more than one interlaminar level should be injected at one session.

(7) Therapeutic phase: If after the initial block/blocks are given (see “Diagnostic Phase” above) and found to produce pain relief of at least 50-70% pain relief for at least 6-8 weeks, additional blocks may be supported. This is generally referred to as the “therapeutic phase.” Indications for repeat blocks include acute exacerbation of pain, or new onset of radicular symptoms. The general consensus recommendation is for no more than 4 blocks per region per year. (CMS, 2004) (Boswell, 2007)

(8) Repeat injections should be based on continued objective documented pain relief, decreased need for pain medications, and functional response.

(9) Current research does not support a routine use of a “series-of-three” injections in either the diagnostic or therapeutic phase. We recommend no more than 2 ESI injections for the initial phase and rarely more than 2 for therapeutic treatment.

(10) It is currently not recommended to perform epidural blocks on the same day of treatment as facet blocks or sacroiliac blocks or lumbar sympathetic blocks or trigger point injections as this may lead to improper diagnosis or unnecessary treatment.

(11) Cervical and lumbar epidural steroid injection should not be performed on the same day. (Doing both injections on the same day could result in an excessive dose of steroids, which can be dangerous, and not worth the risk for a treatment that has no long-term benefit.)

Carrier offered the testimony of Dr. H, utilization reviewer, who stated that Dr. B’s clinical examination was not dermatome based. Claimant’s requesting doctor, B, M.D., a board certified orthopedic surgeon, testified that the claimant meets the criteria outlined in the ODG regarding radiculopathy and meets the criteria for a therapeutic epidural steroid injection. Dr. B testified that the claimant’s MRI showed compression of the existing L4 and L5 nerve roots and that the claimant’s physical examination revealed reflex changes. Dr. B provided testimony and documentary evidence concerning the definition of radiculopathy that is found in the ODG which is the definition found in the Fifth edition of the AMA Guides. He also noted that the claimant’s reflexes upon examination were 2+ in his patellae and 1+ in his right Achilles confirming the presence of lumbar radiculopathy. Dr. B testified and the medical records indicate that Claimant has undergone physical therapy and received conservative treatment for his lumbar injury, including medications. Claimant testified that he continues to be symptomatic and wants to receive the injection in hopes of alleviating some of his pain. The medical evidence and testimony presented supports consistent evidence of radiculopathy. Dr. B’s testimony supports the medical necessity of the lumbar epidural steroid injection and constitutes evidence based medical evidence which outweighs the findings of the IRO.

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. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
   2. On (Date of Injury), Claimant was the employee of (Employer), when he sustained a compensable injury.
   3. Claimant sustained a compensable injury on (Date of Injury).
   4. The Independent Review Organization (IRO) determined that the claimant should not have a lumbar ESI.
2. 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.
3. The medical evidence presented supports consistent evidence of lumbar radiculopathy.
4. A lumbar ESI is 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 contrary to the decision of the IRO that a lumbar ESI is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is entitled to a lumbar ESI for the compensable injury of (Date of Injury).

ORDER

Carrier is liable for the benefits at issue in this hearing. Claimant remains entitled to medical benefits for the compensable injury in accordance with §408.021.

The true corporate name of the insurance carrier is AMERICAN ZURICH INSURANCE 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, TX 78701-3232

Signed this 17th day of February, 2012.

Judy L. Ney
Hearing Officer