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 November 10, 2009 to decide the following disputed issue:
- Is the preponderance of the evidence contrary to the decision of the IRO that the claimant is not entitled to a lumbar epidural steroid injection for the compensable injury of ________________?
Claimant/Petitioner appeared and was represented by AC, attorney. Respondent/Carrier appeared and was represented by JT, attorney.
Claimant is employed as a benefit review officer for the Division of Workers’ Compensation. On ________________, claimant sustained compensable injuries when she tripped going down stairs, catching herself by grabbing the railing. The compensable injuries are numerous, but include radiculopathy at S1, lumbar spondylosis at L4/5 and L5/S1 with disc bulging, thoracic spine spondylosis, and C5/6 and C6/7 sponsylosis with C7 radiculopathy on the right. Claimant continues to have pain in her lower back. She has had epidural steroid injections in the past – most recently approximately two years ago. Claimant obtained good relief for about six weeks from the injections. Claimant’s treating doctor, Dr. C, M.D., requested preauthorization for one epidural steroid injection to determine if it would provide claimant pain relief. In submitting the request dated July 28, 2009, Dr. C listed the eleven criteria for epidural steroid injections from the Official Disability Guidelines (ODG) and explained how the claimant’s condition met each one. Preauthorization was denied by the carrier’s utilization review company. A request for reconsideration was also denied. A request was made for an Independent Review Organization (IRO) review. The IRO upheld the previous denials, reasoning that the claimant does not have radiculopathy, but rather has neuropathy. Because neuropathy is not treated by epidural steroid injections, the IRO found that the requested lumbar epidural steroid injection was not reasonable or necessary.
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, and 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, 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 epidural steroid injections, the ODG provides as follows:
Recommended as an option for treatment of radicular pain (defined as pain in dermatomal distribution with corroborative findings of radiculopathy). See specific criteria for use below. In a recent Cochrane review, there was one study that reported improvement in pain and function at four weeks and also one year in individuals with chronic neck pain with radiation. (Peloso-Cochrane, 2006) (Peloso, 2005) Other reviews have reported moderate short-term and long-term evidence of success in managing cervical radiculopathy with interlaminar ESIs. (Stav, 1993) (Castagnera, 1994) Some have also reported moderate evidence of management of cervical nerve root pain using a transforaminal approach. (Bush, 1996) (Cyteval, 2004) A recent retrospective review of interlaminar cervical ESIs found that approximately two-thirds of patients with symptomatic cervical radiculopathy from disc herniation were able to avoid surgery for up to 1 year with treatment. Success rate was improved with earlier injection (< 100 days from diagnosis). (Lin, 2006) There have been recent case reports of cerebellar infarct and brainstem herniation as well as spinal cord infarction after cervical transforaminal injection. (Beckman, 2006) (Ludwig, 2005) Quadriparesis with a cervical ESI at C6-7 has also been noted (Bose, 2005) and the American Society of Anesthesiologists Closed Claims Project database revealed 9 deaths or cases of brain injury after cervical ESI (1970-1999). (Fitzgibbon, 2004) These reports were in contrast to a retrospective review of 1,036 injections that showed that there were no catastrophic complications with the procedure. (Ma, 2005) The American Academy of Neurology recently concluded that epidural steroid injections may lead to an improvement in radicular lumbosacral pain between 2 and 6 weeks following the injection, but they do not affect impairment of function or the need for surgery and do not provide long-term pain relief beyond 3 months, and there is insufficient evidence to make any recommendation for the use of epidural steroid injections to treat radicular cervical pain. (Armon, 2007) There is evidence for short-term symptomatic improvement of radicular symptoms with epidural or selective root injections with corticosteroids, but these treatments did not appear to decrease the rate of open surgery. (Haldeman, 2008) See the Low Back Chapter for more information and references.
Criteria for the use of Epidural steroid injections, therapeutic:
Note: The purpose of ESI is to reduce pain and inflammation, thereby facilitating progress in more active treatment programs, and avoiding surgery, but this treatment alone offers no significant long-term functional benefit.
(1) Radiculopathy must be documented by physical examination and 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) for guidance
(4) If used for diagnostic purposes, a maximum of two injections should be performed. A second block is not recommended if there is inadequate response to the first block. Diagnostic blocks should be at 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) In the therapeutic phase, repeat blocks should only be offered if there is at least 50% pain relief for six to eight weeks, with a general recommendation of no more than 4 blocks per region per year.
(8) Repeat injections should be based on continued objective documented pain and function response.
(9) Current research does not support a “series-of-three” injections in either the diagnostic or therapeutic phase. We recommend no more than 2 ESI injections.
(10) It is currently not recommended to perform epidural blocks on the same day of treatment as facet blocks or stellate ganglion blocks or 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.
At the contested case hearing, Dr. B, a former treating doctor, testified that the claimant has radiculopathy and that she could benefit from the epidural steroid injection. He discussed the diagnosis of neuropathy, stating that although claimant might have some neuropathy, she has been diagnosed with radiculopathy and has consistently demonstrated symptoms associated with that diagnosis. In evidence were medical records diagnosing the claimant with radiculopathy. Dr. C’s request discussed the ODG requirements for the lumbar epidural steroid injection in detail and the reasons why the claimant met those. Because the IRO’s reason for denying the lumbar epidural steroid injection was disagreement with the claimant’s diagnosis of radiculopathy and claimant’s injury does extend to include radiculopathy, the preponderance of the evidence based medicine is contrary to the decision of the IRO that the claimant is not entitled to a lumbar epidural steroid injection for the compensable injury of ________________.
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; however, this case was heard in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
B. On ________________, Claimant was the employee of (Self-Insured), Employer.
C.Claimant sustained a compensable injury on ________________.
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; however, the contested case hearing was held in the (City) Field Office.
- The preponderance of the evidence is contrary to the decision of the IRO that a lumbar epidural steroid injection is not health care reasonably required for the compensable injury of ________________.
Claimant is entitled to a lumbar epidural steroid injection for the compensable injury of ________________.
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 (a self-insured governmental entity) and the name and address of its registered agent for service of process is:
JB, EXECUTIVE DIRECTOR
(SELF-INSURED GOVERNMENTAL ENTITY)
(BUILDING & FLOOR)
(CITY), TX (ZIP CODE)
For service by mail, the address is:
JB, EXECUTIVE DIRECTOR
(SELF-INSURED GOVERNMENTAL ENTITY)
(CITY), TEXAS (ZIP CODE)
Signed this 12th day of November, 2009.