DECISION AND ORDER

_______ (Petitioner) is appealing the decision of Maximus, an independent review organization (IRO) certified by the Texas Department of Insurance, in Texas Workers’ Compensation Commission (Commission) Medical Review Division tracking number M2-04-0008-01 denying preauthorization for eight Botox trigger point injections to the lumbar region.^[1] The IRO determined from the medical documentation submitted for review that the requested medical procedure was not medically necessary to treat the Petitioner’s condition because Botox trigger point injections have not been shown to provide substantial and prolonged relief for discogenic back pain. The Administrative Law Judge (ALJ) finds the request for preauthorization should be denied because the requested treatment is not medically necessary.

I.PROCEDURAL HISTORY, JURISDICTION, AND NOTICE

On March 9, 2004, ALJ Michael J. Borkland convened the hearing at the William P. Clements Building, 300 West 15^th Street, Austin, Texas. Petitioner appeared pro se via telephone and was assisted by Commission Ombudsman Luz Louza. West Texas Educational Insurance Association (Carrier) appeared through Robert Graves, Attorney. Notice and jurisdiction were not contested and will be addressed in the findings of fact and conclusions of law. Following the presentation of evidence, the hearing was closed on the same day.

II.DISCUSSION

Petitioner, a 59-year old female, suffered a low back injury on _______, while attempting to stop a fight between students. Treatment has included epidural steroid injections, physical therapy, and oral pain medication.

The evidence consisted of four exhibits and the testimony of the Petitioner. Petitioner was treated by Arnulfo T. Carrasco, M.D., of the Texas Pain Institute, who recommended treatment with Botulinum Toxin Type A because it has been effective at the neuromuscular junction by preventing

the release of acetylcholine.^[2] Additionally, Dr. Carrasco provided that published reports indicated that Botox has supplied significant and prolonged pain relief in patients with myofascial pain.^[3] (P. Exh. 1, pages 7 – 10). Petitioner testified that she previously received Botox injections in the thoracic area for pain resulting from a 1995 compensable injury, and Dr. Carrasco indicated that Petitioner achieved significant pain relief from those prior Botox injections. (P. Exh. 1, page 29).

Petitioner initially saw Pablo Vazquez-Seoane, M.D., for the 2001 injury on July 11, 2002. He diagnosed Petitioner with lumbar spondylolisthesis^[4] with radiculopathy. (P. Exh. 1, page 72). An MRI performed on June 2, 2003, revealed that Petitioner had bilateral L5 spondylolysis with Grade 1 spondylolisthesis at the L5 and S1 level. (P. Exh. 1, page 78). A lumbar myelogram completed on June 19, 2003, confirmed the findings of the MRI. (P. Exh. 1, page 66). Dr. Vazquez-Seoane referred Petitioner for a second opinion to Frank K. Kuwamura, III, M.D., who recommended a lumbar discogram because he believed that Petitioner was a candidate for spinal fusion. (P. Exh. 1, pages 60 and 61).

An MRI of the thoracic spine following Petitioner’s 1995 back injury showed no abnormalities as far as bulging disc, but indicated some possible muscle spasm. (P. Exh. 1, page 55). Dr. Carrasco recommended Botox injections for spasticity treatment. (P. Exh. 1, page 53). On April 27, 1998, Petitioner was granted pre-authorization for eight injections. (P. Exh. 1, pages 45 and 46). Dr. Carrasco found that the injections provided some relief for Petitioner for approximately six months, but that she then needed another series of injections for additional pain relief. (P. Exh. 1, pages 32, 35, 38, 40, and 43).

On June 30, 2003, the Carrier denied pre-authorization for Botox injections to the lumbar area because the documentation and past treatment to the thoracic area failed to establish that the requested treatment would be effective. (R. Exh. 3, page 2). Pre-authorization was again denied on July 1 and August 27, 2003, with the peer review doctor stating that there is no scientific basis for Botox injections of paralumbar muscles for chronic myofascial syndrome. (R. Exh. 3, pages 3 – 6).

The Carrier argued that, while Petitioner may have gotten some relief from Botox injections to the thoracic area, injections to the lumbar area would not prove beneficial because the two areas had different injuries. The thoracic area’s injury primarily consisted of muscular spasticity, while the lumbar area’s injury involved disc displacement. The Carrier argued that Botox has proven effective for treatment of muscular ailments, but not for degenerative spinal changes.

III. CONCLUSION

The Petitioner has the burden of proof to show that the requested treatment is medically necessary. There is no doubt that she has been experiencing persistent pain and that she may need

additional treatment, including surgery. However, she has not shown that the requested treatment is medically necessary to treat her injury.

The requested treatment is for eight Botox trigger point injections to the lumbar spine to treat pain resulting from degenerative spinal changes. The evidence showed that previous Botox injections given to Petitioner for a muscular injury to the thoracic spine provided only temporary relief and had to be repeated many times. Petitioner is still suffering from the thoracic injury and has sought additional injections for that area of the body.

Petitioner has not shown that Botox injections provide effective treatment for degenerative spinal changes, such as spondylolisthesis. Accordingly, the request for preauthorization is denied.

IV.FINDINGS OF FACT

1. In ___, _______ (Petitioner) sustained an on-the-job injury diagnosed as lumbar spondylolisthesis with radiculopathy.
2. At the time of the Petitioner’s injury, West Texas Educational Insurance Association (Carrier) provided workers’ compensation insurance to the Petitioner’s employer.
3. Petitioner’s treatment for the compensable injury consisted of epidural steroid injections, physical therapy, and oral pain medication.
4. Treatment has failed to provide relief to the Petitioner.
5. Spinal fusion has been recommended for treatment of Petitioner’s injury.
6. Petitioner continued to experience pain, and preauthorization was sought for eight Botox trigger point injections.
7. Botox injections do not provide effective treatment for degenerative spinal changes such as spondylolisthesis.
8. The Carrier denied Petitioner’s request for preauthorization of services referred to in Finding of Fact No. 6.
9. The Petitioner requested dispute resolution services from the Texas Workers’ Compensation Commission’s Medical Review Division.
10. On October 10, 2003, Maximus, an independent review organization certified by the Texas Department of Insurance, issued its decision denying preauthorization because there is no evidence in the medical literature that Botox injection therapy provides substantial and prolonged pain relief for discogenic back pain.
11. On October 24, 2003, Petitioner filed a request for a hearing on the preauthorization denial.
12. The Commission sent notice of the hearing to the parties on November 17, 2003. The hearing notice informed the parties of the matter to be determined, the right to appear and be represented by counsel, the time and place of the hearing, and the statutes and rules involved.
13. On March 9, 2004, the hearing convened at the William P. Clements Building, 300 West 15^th Street, Austin, Texas. Petitioner appeared pro se via telephone and was assisted by Commission Ombudsman Luz Louza. Respondent appeared through Robert Graves, Attorney.

V.CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented, pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 413.031.
2. 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.
3. Petitioner timely filed notice of appeal, as specified in 28 Tex. Admin. Code (TAC) § 148.3.
4. Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov’t Code Ann. ch. 2001 and 28 TAC §148.4(b).
5. Petitioner had the burden of proving the case by a preponderance of the evidence, pursuant to 28 TAC § 148.21(h) and (i).
6. As provided by Tex. Lab. Code Ann. § 413.014 and 28 TAC § 134.600(h), preauthorization is required for the requested services.
7. Based on Findings of Fact Nos. 5, 6, and 7, the requested services are not medically necessary for treatment of the Petitioner’s compensable injury as required by Tex. Lab. Code Ann. § 408.021.
8. Based on Findings of Fact Nos. 5, 6, and 7 and Conclusions of Law Nos. 5 – 7, the requested treatment should not be preauthorized.

ORDER

IT IS, THEREFORE, ORDERED that _______’s request for preauthorization of eight Botox trigger point injections be, and the same is hereby, denied.

Signed April 7, 2004.

_________________________________________MICHAEL J. BORKLAND
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The IRO reviewed Claimant’s request for 16 Botox trigger point injections to the lumbar and thoracic regions. The parties agreed that this appeal only concerned the injury to the lumbar spine and the eight requested injections to that area.↑
2. Acetylcholine is a neurotransmitter released at automatic synapses and neuromuscular junctions, which is active in the transmission of nerve impulse. Merriam Webster’s Medical Dictionary (1995) at page 5.↑
3. Myofascial is defined as of or relating to the fasciae of muscles. Merriam Webster’s Medical Dictionary (1995) at page 443.↑
4. Forward displacement of a lumbar vertebra on the one below it. Merriam Webster’s Medical Dictionary (1995) at page 653.↑