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.
A benefit contested case hearing was held on September 15, 2008, to decide the following disputed issue:
Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that Claimant is not entitled to a lumbar discogram with post-CT scan for the compensable injury of ____________?
Claimant appeared and was represented by RB, attorney. Carrier appeared and was represented by attorney, JL.
It is undisputed that Claimant sustained a compensable low back injury on ____________ while working for the local school district as a custodian. Claimant initially received conservative care including medication, physical therapy and injections.
A July 2, 2007 MRI revealed degenerative disk bulging at L5-S1causing mild contact with the S1 nerve roots bilaterally. A December 20, 2007 EMG/NCV test was suggestive of some lower lumbar root irritation.
On December 21, 2007, Dr. B, Claimant’s neurosurgeon, recommended a CT discogram of the lumbar spine to better evaluate internal disc disruption. He recommended the procedure due to the failure of conservative treatment, pain duration greater than six months, evidence of disc protrusions and significant foraminal stenosis.
The first utilization review doctor cited the ODG and denied the requested lumbar discogram with post-CT scan. The reviewer opined that the July 2, 2007 MRI revealed no evidence of significant nerve root compression, and stated that there was no evidence of progressive neurological deficit and no pre-operative psychological evaluation.
On reconsideration, the second reviewer also denied the requested treatment. He also cited the ODG and stated that since the treating doctor had not provided documentation to address the initial denial, the procedure would continue to be denied.
An IRO reviewer and board certified orthopedic surgeon reviewed the records and upheld the adverse determinations of the utilization review doctors. The IRO denied the requested lumbar discogram with post-CT scan citing the ODG and opined that in Claimant’s case, the discogram would not provide any additional data for further treatment. The reviewer stated that previous studies had not shown any nerve root compression. The reviewer stated that provocative discography could only be for surgical planning for lumbar fusion, which is only contemplated by the ODG in the carefully selected patient where instability is documented, and Claimant did not meet those criteria.
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. Section 401.011(22-a) defines health care reasonably required 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: (A) evidence based medicine; or (B) if that evidence is not available, generally accepted standards of medical practice recognized in the medical community.”
“Evidence based medicine” is further defined, by Section 401.011(18-a) as 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 Division of Workers’ Compensation has adopted treatment guidelines under Division Rule 137.100. That rule requires that health care providers provide treatment in accordance with the current edition of the Official Disability Guidelines(ODG), and treatment provided pursuant to those guidelines is presumed to be health care reasonably required as mandated by the above-referenced sections of the Texas Labor Code.
The initial inquiry, therefore, in any dispute regarding medical necessity, is whether the proposed care is consistent with the ODG. The ODG does not recommend lumbar discography.
The ODG Treatment Guidelines for the low back discuss discography as follows:
Not recommended. In the past, discography has been used as part of the pre-operative evaluation of patients for consideration of surgical intervention for lower back pain. However, the conclusions of recent, high quality studies on discography have significantly questioned the use of discography results as a preoperative indication for either IDET or spinal fusion. These studies have suggested that reproduction of the patient’s specific back complaints on injection of one or more discs (concordance of symptoms) is of limited diagnostic value. (Pain production was found to be common in non-back pain patients, pain reproduction was found to be inaccurate in many patients with chronic back pain and abnormal psychosocial testing, and in this latter patient type, the test itself was sometimes found to produce significant symptoms in non-back pain controls more than a year after testing.) Also, the findings of discography have not been shown to consistently correlate well with the finding of a High Intensity Zone (HIZ) on MRI. Discography may be justified if the decision has already been made to do a spinal fusion, and a negative discogram could rule out the need for fusion (but a positive discogram in itself would not allow fusion). (Carragee-SpineCarragee2-SpineCarragee3-SpineCarragee4-SpineBigosResnickMadanCarragee-SpineMaghoutJuratliPneumaticosAiraksinenCarrageeHeggenessanesthetic discography (FAD).
Discography is Not Recommended in ODG.
Patient selection criteria for Discography if provider & payor agree to perform anyway:
o Back pain of at least 3 months duration
o Failure of recommended conservative treatment including active physical therapy
o An MRI demonstrating one or more degenerated discs as well as one or more normal appearing discs to allow for an internal control injection (injection of a normal disc to validate the procedure by a lack of a pain response to that injection)
o Satisfactory results from detailed psychosocial assessment (discography in subjects with emotional and chronic pain problems has been linked to reports of significant back pain for prolonged periods after injection, and therefore should be avoided)
o Intended as a screen for surgery, i.e., the surgeon feels that lumbar spine fusion is appropriate but is looking for this to determine if it is not indicated (although discography is not highly predictive) (Carragee, 2006) NOTE: In a situation where the selection criteria and other surgical indications for fusion are conditionally met, discography can be considered in preparation for the surgical procedure. However. all of the qualifying conditions must be met prior to proceeding to discography as discography should be viewed as a non-diagnostic but confirmatory study for selecting operative levels for the proposed surgical procedure. Discography should not be ordered for a patient who does not meet surgical criteria.
o Briefed on potential risks and benefits from discography and surgery
o Single level testing (with control) (Colorado, 2001)
o Due to high rates of positive discogram after surgery for lumbar disc herniation, this should be potential reason for non-certification.
As noted previously herein, “health care reasonably required” means 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 that evidence is not available, generally accepted standards of medical practice recognized in the medical community. Treatment provided pursuant to the ODG is presumed to be health care reasonably required.
The carrier’s reviewers and the IRO doctor denied the requested lumbar discogram with post-scan CT citing the relevant provisions of the ODG. It is incumbent on the Claimant, therefore, to provide evidence-based medicine sufficient to overcome the ODG and the opinions of the doctors correctly applying the ODG.
Other Evidence Based Medicine
When weighing medical evidence, the hearing officer must first determine whether the doctor giving the expert opinion is qualified to offer it, but also, the hearing officer must determine whether the opinion is relevant to the issues in the case and whether the opinion is based upon a reliable foundation. An expert’s bald assurance of validity is not enough. SeeBlack v. Food Lion, Inc., 171 F.3rd 308 (5th Cir. 1999);E.I. Du Pont De Nemours and Company, Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995). When determining reliability, the hearing officer must consider the evidence in terms of (1) general acceptance of the theory and technique by the relevant scientific community; (2) the expert’s qualifications; (3) the existence of literature supporting or rejecting the theory; (4) the technique’s potential rate of error; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the theory or technique can be explained to the trial court; and (7) the experience and skill of the person who applied the technique on the occasion in question. Kelly v. State, 792 S.W.2d 579 (Tex. App.-Fort Worth 1990).
Claimant failed to present an evidence-based medical opinion from a competent source to overcome the IRO’s decision. Dr. B is a neurosurgeon and may well be qualified to render an opinion regarding low back surgery and treatment. The treatment proposed by Dr. B, however, is a departure from the ODG in that the procedure is specifically not recommended. Dr. B does not explain his justification for departure from the ODG. There are patient selection criteria listed in the ODG in those instances where the provider and payor agree to the procedure despite the ODG recommendation against discography. Obviously, this is not such a case.
Under the Act, treatment provided pursuant to the ODG is presumed to be health care reasonably required as mandated by the above-referenced sections of the Texas Labor Code. Mere citation to the ODG, however, does not carry the day. Claimant has not presented evidence-based medicine justifying departure from the ODG, nor has she met the requisite evidentiary standard required to overcome the IRO. The preponderance of the evidence is not contrary to the IRO decision and the requested lumbar discogram with post-CT scan does not meet the criteria set out in the ODG.
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
- The parties stipulated to the following facts:
A.Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers' Compensation.
B.On ____________, Claimant was the employee of (Employer) when he sustained a compensable injury.
C.The IRO determined that the requested services were not reasonable and necessary health care services for the compensable injury of ____________.
CONCLUSIONS OF LAW
- The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case.
- Venue was proper in the (City) Field Office.
- The preponderance of the evidence is not contrary to the decision of IRO that a lumbar discogram with post-CT scan is not health care reasonably required for the compensable injury of ____________.
Claimant is not entitled to a lumbar discogram with post-CT scan for the compensable injury of ____________.
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 TASB RISK MANAGEMENT FUND and the name and address of its registered agent for service of process is
JAMES B. CROW
12007 RESEARCH BOULEVARD
AUSTIN, TEXAS 78759.
Signed this 13th day of January, 2009.