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July 27, 2011


July 27, 2011


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 July 26, 2011 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 an L3-4 epidural steroid injection (ESI) for the compensable injury of (Date of Injury)?


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

Respondent/Carrier appeared and was represented by NM, adjuster.


The Claimant sustained a compensable injury to his lumbar spine on (Date of Injury). Claimant has undergone physical therapy with increased pain and chiropractic treatment with no benefit. An MRI revealed severe spinal stenosis at L4-5 with no other levels of significant canal stenosis or neural foraminal narrowing. An EMG performed on January 28, 2011 revealed no definite evidence of underlying lumbosacral radiculopathy. The Claimant’s treating doctor has recommended an L3-4 ESI for diagnostic purposes which was denied by the Carrier and submitted to an IRO who upheld the Carrier's denial.

The IRO reviewer, identified as a doctor of osteopathy, board certified anesthesiologist and specializing in pain management, determined that the L3-4 ESI was not medically necessary. The IRO reviewer noted that the MRI showed only a small bulge at the L3-4 level with similar findings at L5-S1 and that there was no EMG to indicate that the L3-4 level is the only pathologic one. The IRO reviewer went on to state that there was no nerve root compromise at any level and the physical exam of February 2011 indicates normal motor, sensory and neurologic exams. The IRO reviewer went on to state that the March 2011 note indicates the Claimant has reduced sensation in the plantar aspect of his bilateral feet but that this is an S1 dermatomal distribution and did not exist a month before; therefore, not only is this an uncorroborated finding but it does not correlate to the L3-4 level.

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 making decisions about the care of individual patients. 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 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."

ODG 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. 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.)

The Claimant testified that he suffers from bilateral lower extremity pain and weakness; however, he offered no medical evidence to support the necessity for an ESI at L3-4 even as a diagnostic tool to identify the pain generator. The Claimant also failed to offer a medical opinion regarding the requirements in the ODG for an ESI at L3-4 or any other evidence-based medical opinion regarding the medical necessity of an ESI at L3-4 for his compensable injury. Based on the evidence presented, Claimant failed to provide an evidence-based medical opinion sufficient to contradict the determination of the IRO and the preponderance of the evidence is not contrary to the decision of the IRO.

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.


  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 (Date of Injury), Claimant was the employee of (Employer), when he 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.
  • The treating doctor requested the Claimant undergo an L3-4 ESI for the compensable injury of (Date of Injury).
  • Claimant does not meet the requirements of the ODG for an L3-4 ESI and he failed to present other evidence based medicine sufficient to overcome the determination of the IRO.
  • An L3-4 ESI is not health care reasonably required for the compensable injury of (Date of Injury).

    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-based medical evidence is not contrary to the decision of the IRO that an L3-4 ESI is not health care reasonably required for the compensable injury of (Date of Injury).


    Claimant is not entitled to an L3-4 ESI for the compensable injury of (Date of Injury).


    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 COMMERCE & INDUSTRY INSURANCE COMPANY and the name and address of its registered agent for service of process is:


    211 EAST 7TH STREET, SUITE 620

    AUSTIN, TX 78701-3218

    Signed this 27th day of July, 2011.

    Carol A. Fougerat
    Hearing Officer

    End of Document