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At a Glance:
Title:
13052-nnr
Date:
January 30, 2013

13052-nnr

January 30, 2013

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 benefit contested case hearing was held on January 22, 2013 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 laminectomy/discectomy with foramintomy and decompression at L3-L4, L4-5, and L5-S1 for the compensable injury of (Date of Injury)?

At the Carrier’s request, and upon a finding of good cause, the following issue was added:

Was there a substantial change of condition after October 6, 2011 (date of prior CCH) and before June 26, 2012 (date of the prospective/reconsideration) to allow the Division to determine the above issue?

PARTIES PRESENT

Claimant appeared and was represented by CS, attorney. Carrier appeared and was represented by PM, attorney.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant: None.

For Carrier: Dr. KF

The following exhibits were admitted into evidence:

Hearing Officer’s Exhibits: HO-1 and HO-2.

Claimant’s Exhibits: C-1 through C-21.

Carrier’s Exhibits: CR-A through CR-M.

BACKGROUND INFORMATION

It is undisputed that the Claimant sustained an injury to her lumbar spine as a result of a compensable injury sustained on (Date of Injury). The IRO reviewer, an Orthopedic Surgeon, reviewed various office notes and diagnostic studies. The IRO physician opined that the surgical request failed to meet the criteria specified by the Official Disability Guidelines (ODG) and that “there should be subjective complaints and objective physical examination findings that correlate with imaging studies with the patient have failed conservative treatment. At this time, the medical records do not document a clear clinical picture supported by imaging studies for the requested L3-L4, an L4-5 laminectomy discectomy with possible L5-S1 now included.”

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 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 is 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.

With regard to the procedure at issue, the ODG provides as follows:

ODG Indications for Surgery -- Discectomy/laminectomy --

Required symptoms/findings; imaging studies; & conservative treatments below:

  1. I.Symptoms/Findings which confirm presence of radiculopathy. Objective findings on examination need to be present. Straight leg raising test, crossed straight leg raising and reflex exams should correlate with symptoms and imaging.

Findings require ONE of the following:

  1. L3 nerve root compression, requiring ONE of the following:
  2. Severe unilateral quadriceps weakness/mild atrophy
  3. Mild-to-moderate unilateral quadriceps weakness
  4. Unilateral hip/thigh/knee pain
  5. L4 nerve root compression, requiring ONE of the following:
  6. Severe unilateral quadriceps/anterior tibialis weakness/mild atrophy
  7. Mild-to-moderate unilateral quadriceps/anterior tibialis weakness
  8. Unilateral hip/thigh/knee/medial pain
  9. L5 nerve root compression, requiring ONE of the following:
  10. Severe unilateral foot/toe/dorsiflexor weakness/mild atrophy
  11. Mild-to-moderate foot/toe/dorsiflexor weakness
  12. Unilateral hip/lateral thigh/knee pain
  13. S1 nerve root compression, requiring ONE of the following:
  14. Severe unilateral foot/toe/plantar flexor/hamstring weakness/atrophy
  15. Moderate unilateral foot/toe/plantar flexor/hamstring weakness
  16. Unilateral buttock/posterior thigh/calf pain

(EMGs are optional to obtain unequivocal evidence of radiculopathy but not necessary if radiculopathy is already clinically obvious.)

  1. I.Imaging Studies, requiring ONE of the following, for concordance between radicular findings on radiologic evaluation and physical exam findings:
    1. Nerve root compression (L3, L4, L5, or S1)
    2. Lateral disc rupture
    3. Lateral recess stenosis

Diagnostic imaging modalities, requiring ONE of the following:

  1. MR imaging
  2. CT scanning
  3. Myelography
  4. CT myelography & X-Ray
  5. Conservative Treatments, requiring ALL of the following:
  6. Activity modification (not bed rest) after patient education (>= 2 months)
  7. Drug therapy, requiring at least ONE of the following:
  8. NSAID drug therapy
  9. Other analgesic therapy
  10. Muscle relaxants
  11. Epidural Steroid Injection (ESI)
  12. Support provider referral, requiring at least ONE of the following (in order of priority):
  13. Physical therapy (teach home exercise/stretching)
  14. Manual therapy (chiropractor or massage therapist)
  15. Psychological screening that could affect surgical outcome
  16. Back school (Fisher, 2004)

For average hospital LOS after criteria are met, see Hospital length of stay (LOS).

A physician called by the Carrier testified that despite the EMG findings, there was no clear evidence of radiculopathy and opined that the EMG findings should be disregarded as it was unreliable. He further noted that the CT myelogram noted that there was no disc herniation as opined by the surgeon recommending surgery.

Claimant relied on the medical reports and argued that the medical reports support the ODG’s recommendations. However, the Claimant failed to submit other evidence-based medicine in support of the necessity of the procedure and rebut the IRO reviewer’s opinion. Based on the evidence presented, the Claimant does not meet the criteria for a lumbar laminectomy/discectomy with foramintomy and decompression at L3-L4; L4-5, and L5-S1. The preponderance of the evidence is not contrary to the decision of the IRO.

The Claimant had a prior Contested Case Hearing on or about October of 2011 in which the IRO’s determination that Claimant was not entitled to a laminectomy L4-5 and L5-S1. However, the procedure that is being currently sought is different from the procedure that had been requested in the October 2011 hearing.

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:
    1. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
    2. On (Date of Injury), Claimant was the employee of (Employer), Employer.
    3. On (Date of Injury), Employer provided workers’ compensation insurance as a Self-Insurer.
    4. On (Date of Injury), Claimant sustained a compensable injury.
  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. The Independent Review Organization determined that Claimant should not have the proposed treatment.
  4. The Claimant does not meet the ODG criteria as a candidate for a lumbar laminectomy/discectomy with foramintomy and decompression at L3-L4; L4-5, and L5-S1 as recommended by the Claimant's treating surgeon.
  5. The preponderance of the evidence based medical evidence is not contrary to the determination of the IRO.
  6. The a lumbar laminectomy/discectomy with foramintomy and decompression at L3-L4; L4-5, and L5-S1 is not health care reasonably required for the compensable injury of (Date of Injury).
  7. The current requested procedure is different from the procedure that had been requested from the prior Contested Case Hearing held in October of 2011.

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 IRO’s decision that the Claimant is not entitled to a lumbar laminectomy/discectomy with foramintomy and decompression at L3-L4; L4-5, and L5-S1 for the compensable injury of (Date of Injury).
  4. There was a substantial change of condition after October 6, 2011 (date of prior CCH) and before June 26, 2012 (date of the prospective/reconsideration) to allow the Division to determine the above issue since the requested procedure is different from the procedure that had been requested in the October 6, 2011 hearing.

DECISION

Claimant is not entitled to a lumbar laminectomy/discectomy with foramintomy and decompression at L3-L4, L4-5, and L5-S1 for the compensable injury of (Date of Injury). There was a substantial change of condition after October 6, 2011 (date of prior CCH) and before June 26, 2012 (date of the prospective/reconsideration) to allow the Division to determine the above issue since the requested procedure is different from the procedure that had been requested in the October 6, 2011 hearing.

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 (SELF-INSURED), and the name and address of its registered agent for service of process is

(SELF-INSURED)

(STREET ADDRESS)

(CITY), TEXAS (ZIP CODE)

Signed this 30th day of January, 2013.

Teresa G. Hartley
Hearing Officer

End of Document
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