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 August 10, 2010, 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 a low pressure lumbar discogram at L4-S1 for the compensable injury of ______________?
Petitioner, Dr. B M.D., appeared without representation. Claimant appeared and was assisted by SG, ombudsman. Respondent/Carrier appeared and was represented by JB, attorney.
It is undisputed that Claimant sustained a compensable injury on ______________. The injury included the lumbar spine. The Claimant was referred to Dr. B, M.D., for a neurosurgical consultation.
Carrier's utilization review determined that the lumbar discogram did not meet the criteria of the Official Disability Guidelines (ODG) concerning a lumbar discography, and was not medically necessary for Claimant's compensable injury of ______________. Carrier’s utilization review denied Dr. B’s request. Dr. B requested an IRO review. On April 30, 2010, the IRO reviewer, a board certified orthopedic surgeon, rendered a decision, determined that the low pressure lumbar discogram at L4-S1 was not medically necessary, and cited the current edition of the Official Disability Guidelines (ODG) concerning a lumbar discography. The IRO reviewer further determined that Claimant's medical records did not document any evidence of a surgical lesion, an ongoing radiculopathy, or evidence of any instability on the range of motion studies performed on Claimant’s low back.
Texas Labor Code §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 (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 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 medicine evidence."
With regard to the low back, under Discography, the ODG identifies numerous medical articles and studies by various authors conducted from 1997 through 2009, and provides that discography is not recommended. The ODG cites patient selection criteria for discography if the provider and the payor agree to perform anyway.
The ODG clearly states that lumbar discography is not a recommended procedure, and may only be justified if the decision has been made for the patient to undergo lumbar spinal fusion surgery. At the time the Dr. B requested the lumbar discography, a surgical lesion was not documented or identified and he had not made a recommendation that Claimant undergo lumbar spinal fusion surgery. The argument presented was not persuasive and in direct contradiction to the ODG. In addition, Dr. B had determined that he would utilize the lumbar discogram to perform multiple level testing as opposed to single level testing with control. Dr. B offered articles which were overcome by the utilization review reports, evidence based medical journal articles, lack of explanation of the veracity of the studies or articles, and other evidence in the case.
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).
C.Claimant sustained a compensable injury on ______________.
D. The IRO determined that the low pressure lumbar discogram at L4-S1 was not medically necessary treatment for Claimant's 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 not contrary to the decision of the IRO that the Claimant is not entitled to a low pressure lumbar discogram at L4-S1 for the compensable injury of ______________.
Claimant is not entitled to a low pressure lumbar discogram at L4-S1 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 of ______________, in accordance with Texas Labor Code Ann. §408.021.
The true corporate name of the insurance carrier is COMMERCE AND INDUSTRY INSURANCE COMPANY, and the name and address of its registered agent for service of process is:
CORPORATION SERVICE COMPANY
211 East 7th STREET, SUITE 620
AUSTIN, TEXAS 78701
Signed this 10th day of August, 2010.