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.
ISSUES
A contested case hearing was held on January 3, 2012 to decide the following disputed issue:
- Is the preponderance of the evidence contrary to the decision of the IRO that Claimant is not entitled to eight visits of physical therapy for the lumbar spine for the compensable injury of (Date of Injury)?
PARTIES PRESENT
Petitioner/Claimant appeared and was assisted by ED, ombudsman. Respondent/Carrier appeared and was represented by VN, adjuster.
BACKGROUND INFORMATION
Claimant sustained a low back injury on (Date of Injury). He had 12 sessions of physical therapy (PT) and a lumbar epidural steroid injection (ESI) performed on February 15, 2008. On June 23, 2011 he returned to the doctor complaining of renewed onset of pain. He had caudal ESIs on July 29, 2011 and June 26, 2012. The first helped for about a month. The second did not provide much relief. He had a normal EMG/NCV study and was working full time as of June 26, 2012.
Request for medial branch blocks was denied. A lumbar MRI done on July 12, 2012 showed a 4 mm broad based posterior disc protrusion at L5-S1, an annular tear at L4-5 with right posterior lateral disc bulge but no gross nerve root impingement, and degenerative disc desiccation at L3-4, L4-5, and L5-S1 with only a slight progression since the last MRI.
Initial request for eight sessions of lumbar PT was denied. The IRO doctor, a board certified orthopedic surgeon, upheld the previous denials. Claimant appealed.
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 physical therapy guidelines for low back injuries:
ODG Physical Therapy Guidelines –
Allow for fading of treatment frequency (from up to 3 or more visits per week to 1 or less), plus active self-directed home PT. Also see other general guidelines that apply to all conditions under Physical Therapy in the ODG Preface, including assessment after a “six-visit clinical trial”.
Lumbar sprains and strains (ICD9 847.2):
10 visits over 8 weeks
Sprains and strains of unspecified parts of back (ICD9 847):
10 visits over 5 weeks
Sprains and strains of sacroiliac region (ICD9 846):
Medical treatment: 10 visits over 8 weeks
Lumbago; Backache, unspecified (ICD9 724.2; 724.5):
9 visits over 8 weeks
Intervertebral disc disorders without myelopathy (ICD9 722.1; 722.2; 722.5; 722.6; 722.8):
Medical treatment: 10 visits over 8 weeks
Post-injection treatment: 1-2 visits over 1 week
Post-surgical treatment (discectomy/laminectomy): 16 visits over 8 weeks
Post-surgical treatment (arthroplasty): 26 visits over 16 weeks
Post-surgical treatment (fusion, after graft maturity): 34 visits over 16 weeks
Intervertebral disc disorder with myelopathy (ICD9 722.7)
Medical treatment: 10 visits over 8 weeks
Post-surgical treatment: 48 visits over 18 weeks
Spinal stenosis (ICD9 724.0):
10 visits over 8 weeks
See 722.1 for post-surgical visits
Sciatica; Thoracic/lumbosacral neuritis/radiculitis, unspecified (ICD9 724.3; 724.4):
10-12 visits over 8 weeks
See 722.1 for post-surgical visits
Curvature of spine (ICD9 737)
12 visits over 10 weeks
See 722.1 for post-surgical visits
Fracture of vertebral column without spinal cord injury (ICD9 805):
Medical treatment: 8 visits over 10 weeks
Post-surgical treatment: 34 visits over 16 weeks
Fracture of vertebral column with spinal cord injury (ICD9 806):
Medical treatment: 8 visits over 10 weeks
Post-surgical treatment: 48 visits over 18 weeks
Work conditioning (See also Procedure Summary entry):
10 visits over 8 weeks
The IRO doctor thought the requested treatment was not medically necessary, noting Claimant already had 12 sessions of PT for a diagnosis of lumbar strain, worked full duty with no active treatment from 2008 until June 2011, and had a grossly unremarkable physical examination on July 20, 2012.
There was no testimony. The parties relied on their exhibits and arguments. There was no offer of evidence based medical evidence to overcome the IRO decision.
There was no objection to the testimony, reports, or qualifications of any doctor.
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:
- Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
- On (Date of Injury) Claimant was the employee of (Employer), Employer.
- On (Date of Injury) Employer provided workers’ compensation insurance with Commerce and Industry Insurance Company, Carrier.
- On (Date of Injury) Claimant sustained a compensable injury.
- The Independent Review Organization determined Claimant should not have the requested treatment.
- 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.
- Eight visits of physical therapy for the lumbar spine is not health care reasonably required for the compensable injury of (Date of Injury).
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 eight visits of physical therapy for the lumbar spine is not health care reasonably required for the compensable injury of (Date of Injury).
DECISION
Claimant is not entitled to eight visits of physical therapy for the lumbar spine for the compensable injury of (Date of Injury).
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 Section 408.021 of the Act.
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 3rd day of January, 2013.
Thomas Hight
Hearing Officer