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.

ISSUE

A contested case hearing was held on November 18, 2009 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 discogram/computerized tomography of the lumbar spine for the compensable injury of _________________?

PARTIES PRESENT

Petitioner/Claimant appeared and was assisted by JT, ombudsman.

Respondent/Carrier was represented by SB, attorney.

BACKGROUND INFORMATION

Claimant testified that the current symptoms from his slip and fall at work in (month) of (year) are burning and pain in his legs and in his left arm and hand. He agrees with Dr. Z’s request for a discogram/computerized tomography of the lumbar spine. He believes the procedure will be a diagnostic tool that will help determine what is wrong with him.

In August of 2009, an IRO upheld two adverse determinations that denied the request for a discogram/computerized tomography of Claimant’s lumbar spine. The IRO reviewer, a board certified neurologist, noted that the Official Disability Guidelines (ODG) do not recommend discography.

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, 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 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.”

The ODG provides the following for discography:

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.

The ODG provides the following criteria if the parties agree to perform a discogram:

o Back pain of at least 3 months duration

oFailure of recommended conservative treatment including active physical therapy

oAn 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)

oSatisfactory 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)

oDue to high rates of positive discogram after surgery for lumbar disc herniation, this should be potential reason for non-certification.

The ODG provides the following for computerized tomography:

Not recommended except for indications below. Patients who are alert, have never lost consciousness, are not under the influence of alcohol and/or drugs, have no distracting injuries, have no cervical tenderness, and have no neurologic findings, do not need imaging. Patients who do not fall into this category should have a three-view cervical radiographic series followed by computed tomography (CT). In determining whether or not the patient has ligamentous instability, magnetic resonance imaging (MRI) is the procedure of choice, but MRI should be reserved for patients who have clear-cut neurologic findings and those suspected of ligamentous instability.

As indicated above, the ODG does not recommend discography, and in this case the parties did not agree to perform the procedure anyway. In addition, the ODG does not recommend computerized tomography. Claimant presented documentary evidence from Dr. Z concerning the doctor’s opinion on why Claimant should undergo the procedures and evidence to explain that Claimant’s pace maker prevents Claimant from having an MRI. Claimant, however, did not offer sufficient evidence-based medicine to overcome the IRO determination.

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:

A.Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.

B. On _________________, Claimant, who was the employee of (Employer), 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 _________________.

D.The discogram/computerized tomography requested is for L2-3, L3-4, L4-5, and L5-S1.

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.

A discogram/computerized tomography of the lumbar spine is not health care reasonably required for the compensable injury of _________________.

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 not contrary to the decision of the IRO that a discogram/computerized tomography of the lumbar spine is not health care reasonably required for the compensable injury of _________________.

DECISION

Claimant is not entitled to discogram/computerized tomography of the lumbar spine for the compensable injury of _________________.

ORDER

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 §408.021.

The true corporate name of the insurance carrier is ZURICH AMERICAN INSURANCECOMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

701 BRAZOS STREET, SUITE 1050

AUSTIN, TEXAS 78701-3232

Signed this 24th day of November, 2009.

CAROLYN F. MOORE
Hearing Officer