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 contested case hearing was held on September 21, 2009, 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 hardware injection (block) to the lumbar spine for the compensable injury of _______________?
Claimant appeared and was represented by LT, an attorney. Petitioner/Provider Dr. D, D.O. appeared by telephone. Respondent/Carrier appeared and was represented by CF, an attorney.
Claimant sustained a compensable injury and underwent lumbar fusion surgery on _______________. He continued to suffer back and leg pain.
After Dr. D requested pre-authorization for the proposed procedure, two utilization reviews were conducted. The first was performed by an orthopedic surgeon. He opined that the proposed procedure was not medically necessary as there was no discernable documentation which mentioned any complaints with the lumbar surgical hardware or findings on physical examination to support problems with the hardware.
The second utilization review was conducted by the same orthopedic surgeon who noted that there was still no discernable documentation that the hardware was causing any problems.
Following this denial, a request for review by an IRO was made. The IRO reviewer, a physician board certified in physical medicine and rehabilitation, pain management, and electro-diagnostic medicine upheld the denial of the lumbar hardware block. In his explanation for his denial he opined that “I have reviewed the ODG and the justification for the procedure when there is pain from the hardware when there is a failure of the fusion. However, the medical records indicate that this patient’s fusion has healed. Therefore, there is no justification for the procedure. This request does not meet the guidelines.”
Claimant's requesting doctor, Dr. D, D.O. a physician board certified in pain management, testified that the claimant meets the criteria outlined in the ODG regarding lumbar hardware injection (block). The ODG states that the procedure is for diagnostic purposes only. He further testified that the claimant has failed back syndrome. He explained that this syndrome does not mean that the fusion didn’t heal. It simply means that the surgery failed to relieve the claimant’s pain relating to his back injury. Dr. D further explained that the use of this block would indicate if the pain was being caused by the presence of the hardware.
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 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."
With regard to hardware injection (block), the ODG provides,
Recommended only for diagnostic evaluation of failed back surgery syndrome. This injection procedure is performed on patients who have undergone a fusion with hardware to determine if continued pain is caused by the hardware. If the steroid/anesthetic medication can eliminate the pain by reducing the swelling and inflammation near the hardware, the surgeon may decide to remove the patient’s hardware. (Guyer, 2006)
Based on a careful review of the evidence presented in the hearing, the provider and the claimant met their burden of overcoming the IRO decision by a preponderance of the evidence-based medicine. Dr. D’s proposed procedure in this case is based on the ODG and the evidence revealed that the claimant meets all of the necessary criteria for treatment listed in the ODG. The preponderance of the evidence-based medicine is contrary to the decision of the IRO and, consequently, the claimant is entitled to hardware injection (block).
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:
- Venue is proper in (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
- On ___________, Claimant was the employee of (Employer).
- On ___________, Claimant sustained a compensable injury.
- 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.
- Lumbar hardware block is health care reasonably required for the compensable injury of ___________.
CONCLUSIONS OF LAW
- The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case.
- Venue is proper in the (City) Field Office.
- The preponderance of the evidence is contrary to the decision of the IRO that lumbar hardware injection (block) is not health care reasonably required for the compensable injury of ___________.
Claimant is entitled to hardware injection (block) to the lumbar spine.
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 SENTRY INSURANCE, A, MUTUAL COMPANY and the name and address of its registered agent for service of process is
350 NORTH ST. PAUL STREET
DALLAS, TX 75201
Signed this 30th day of September, 2009.