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 January 10, 2011, 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 (ESI), epidurogram & interpretation under fluoroscopy for the compensable injury of _________________?
Petitioner/Claimant appeared and was assisted by NW, ombudsman. Respondent/Carrier appeared and was represented by RL, attorney.
Claimant sustained a significant lumbar injury on _________________. She underwent a lumbar fusion on April 22, 1998, by Dr. S, M.D. She returned to Dr. S for treatment due to continuing low back pain radiating into her left leg. Dr. S recommended a lumbar epidural steroid injection (ESI), epidurogram & interpretation under fluoroscopy. Carrier denied the treatment. An IRO was appointed. The IRO doctor determined Claimant was not eligible under the Official Disability Guidelines for this treatment, “noting the lack of clinical history regarding previous possible injections, and noting the lack of neurocompressive pathology identified on recent imaging studies.” (HO Ex. 1.) Claimant requested this hearing.
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. 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. (Division Rule 133.308 (t).)
Under the Official Disability Guidelines in reference to a lumbar epidural steroid injection (ESI), epidurogram & interpretation under fluoroscopy, the following recommendation is made:
Criteria for the use of Epidural steroid injections:
Note: The purpose of ESI is to reduce pain and inflammation, thereby facilitating progress in more active treatment programs, reduction of medication use and avoiding surgery, but this treatment alone offers no significant long-term functional benefit.
(1) Radiculopathy must be documented. Objective findings on examination need to be present. For unequivocal evidence of radiculopathy, see AMA Guides, 5th Edition, page 382-383. (Andersson, 2000) Radiculopathy must be 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) and injection of contrast for guidance.
(4) Diagnostic Phase: At the time of initial use of an ESI (formally referred to as the “diagnostic phase” as initial injections indicate whether success will be obtained with this treatment intervention), a maximum of one to two injections should be performed. A repeat block is not recommended if there is inadequate response to the first block (< 30% is a standard placebo response). A second block is also not indicated if the first block is accurately placed unless: (a) there is a question of the pain generator; (b) there was possibility of inaccurate placement; or (c) there is evidence of multilevel pathology. In these cases a different level or approach might be proposed. There should be 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) Therapeutic phase: If after the initial block/blocks are given (see “Diagnostic Phase” above) and found to produce pain relief of at least 50-70% pain relief for at least 6-8 weeks, additional blocks may be supported. This is generally referred to as the “therapeutic phase.” Indications for repeat blocks include acute exacerbation of pain, or new onset of radicular symptoms. The general consensus recommendation is for no more than 4 blocks per region per year. (CMS, 2004) (Boswell, 2007)
(8) Repeat injections should be based on continued objective documented pain relief, decreased need for pain medications, and functional response.
(9) Current research does not support a routine use of a “series-of-three” injections in either the diagnostic or therapeutic phase. We recommend no more than 2 ESI injections for the initial phase and rarely more than 2 for therapeutic treatment.
(10) It is currently not recommended to perform epidural blocks on the same day of treatment as facet blocks or sacroiliac blocks or lumbar 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. (Doing both injections on the same day could result in an excessive dose of steroids, which can be dangerous, and not worth the risk for a treatment that has no long-term benefit.)
In this case, Claimant’s doctor, Dr. S, testified Claimant has radiculopathy based upon subjective complaints, objective clinical findings and objective MRI findings. He testified the MRI showed foraminal stenosis that supported the diagnosis of radiculopathy required by the Official Disability Guidelines. Both URA doctors and the IRO doctor opined the MRI relied upon by Dr. S did not show nerve root impingement or any significant neurocompressive lesions above the level of the previous fusion. Dr. S testified he was not relying on an evidence-based medicine studies or peer reviewed literature when requesting this procedure. He was relying upon his 34 years experience treating workers’ compensation, and other, patients.
Pursuant to the Official Disability Guidelines recommendations for ESIs, radiculopathy must be documented and objective findings on examination need to be present. The medical records fail to document objective evidence of radiculopathy. Without documented, objective evidence of radiculopathy, the criteria for ESIs, as set forth in the Official Disability Guidelines, have not been met. Claimant failed to present an evidence-based medical opinion contrary to the determination of the IRO that the Claimant is not entitled to a lumbar ESI for treatment of 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.
D.The Independent Review Organization determined Claimant should not have a lumbar epidural steroid injection (ESI), epidurogram & interpretation under fluoroscopy.
- On _________________, Claimant was the employee of (Employer).
- On _________________, Claimant sustained a compensable injury.
- Venue is proper in the (City) Field Office.
2.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.
3.A lumbar epidural steroid injection, epidurogram & interpretation under fluoroscopy 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.
3.The preponderance of the evidence is not contrary to the decision of the IRO that a lumbar epidural steroid injection, epidurogram & interpretation under fluoroscopy is not health care reasonably required for the compensable injury of _________________.
Claimant is not entitled to a lumbar epidural steroid injection, epidurogram & interpretation under fluoroscopy 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 §408.021.
The true corporate name of the insurance carrier is ROYAL INDEMNITY 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, TX 78701-3232.
Signed this 11th day of January, 2011.