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 March 18, 2013 to decide the following disputed issue:
Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that Claimant is not entitled to cervical and lumbar myelogram with computed tomography scan for the compensable injury of (Date of Injury)?
Petitioner/Claimant appeared and was assisted by JT, ombudsman.
Respondent/Carrier appeared and was represented by JF, attorney, via telephone.
The parties agree that Claimant is not entitled to a lumbar myelogram with computed tomography scan but do not agree on whether Claimant is entitled to a cervical myelogram with computed tomography. Carrier relies on the decision of the IRO which determined that the procedure is not medically and reasonably necessary. Claimant relies on the opinion of Dr. L who requested the procedure.
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 for neck and upper back myelography:
Not recommended except for selected indications below, when MR imaging cannot be performed, or in addition to MRI. Myelography or CT-myelography may be useful for preoperative planning. (Bigos, 1999) (Colorado, 2001) Myelography and CT Myelography has largely been superseded by the development of high resolution CT and magnetic resonance imaging (MRI), but there remain the selected indications for these procedures, when MR imaging cannot be performed, or in addition to MRI. (Mukherji, 2009)
ODG Criteria for Myelography and CT Myelography:
- Demonstration of the site of a cerebrospinal fluid leak (postlumbar puncture headache, postspinal surgery headache, rhinorrhea, or otorrhea).
- Surgical planning, especially in regard to the nerve roots; a myelogram can show whether surgical treatment is promising in a given case and, if it is, can help in planning surgery.
- Radiation therapy planning, for tumors involving the bony spine, meninges, nerve roots or spinal cord.
- Diagnostic evaluation of spinal or basal cisternal disease, and infection involving the bony spine, intervertebral discs, meninges and surrounding soft tissues, or inflammation of the arachnoid membrane that covers the spinal cord.
- Poor correlation of physical findings with MRI studies.
- Use of MRI precluded because of:
- Technical issues, e.g., patient size
- Safety reasons, e.g., pacemaker
- Surgical hardware
The ODG provides the following for computed tomography for the neck and upper back:
Not recommended except for indications below. Patients who are alert, have never lost consciousness, are not under the influence of alcohol and/or drugs, have no distracting injuries, have no cervical tenderness, and have no neurologic findings, do not need imaging. Patients who do not fall into this category should have a three-view cervical radiographic series followed by computed tomography (CT). In determining whether or not the patient has ligamentous instability, magnetic resonance imaging (MRI) is the procedure of choice, but MRI should be reserved for patients who have clear-cut neurologic findings and those suspected of ligamentous instability. (Anderson, 2000) (ACR, 2002) See also ACR Appropriateness Criteria™. MRI or CT imaging studies are valuable when potentially serious conditions are suspected like tumor, infection, and fracture, or for clarification of anatomy prior to surgery. MRI is the test of choice for patients who have had prior back surgery. (Bigos, 1999) (Colorado, 2001) For the evaluation of the patient with chronic neck pain, plain radiographs (3-view: anteroposterior, lateral, open mouth) should be the initial study performed. Patients with normal radiographs and neurologic signs or symptoms should undergo magnetic resonance imaging. If there is a contraindication to the magnetic resonance examination such as a cardiac pacemaker or severe claustrophobia, computed tomography myelography, preferably using spiral technology and multiplanar reconstruction is recommended. (Daffner, 2000) (Bono, 2007) CT scan has better validity and utility in cervical trauma for high-risk or multi-injured patients. (Haldeman, 2008) Repeat CT is not routinely recommended, and should be reserved for a significant change in symptoms and/or findings suggestive of significant pathology (eg, tumor, infection, fracture, neurocompression, recurrent disc herniation where MRI is contraindicated). (Roberts, 2010)
Indications for imaging -- CT (computed tomography):
- -Suspected cervical spine trauma, alert, cervical tenderness, paresthesias in hands or feet
- -Suspected cervical spine trauma, unconscious
- -Suspected cervical spine trauma, impaired sensorium (including alcohol and/or drugs)
- -Known cervical spine trauma: severe pain, normal plain films, no neurological deficit
- -Known cervical spine trauma: equivocal or positive plain films, no neurological deficit
- -Known cervical spine trauma: equivocal or positive plain films with neurological deficit
In the present case, the IRO report indicated that the reviewer, a board certified neurosurgeon, agreed with two utilization reviewers who denied the requested procedure. The reviewer wrote in October of 2012 that there was not documentation concerning how the results of the requested procedure would assist in making surgical plans. The reviewer commented that the ODG recommended such documentation.
On December 10, 2012, Dr. L wrote that he had tried repeatedly to obtain the requested procedure because of Claimant’s increasing neurologic deficit, concluding there was no reason to deny the request. He did not explain how the requested procedure would assist in making surgical plans. Although Claimant testified that he is prevented from undergoing a magnetic resonance imaging, Dr. L’s writing did not confirm such testimony.
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, who was the employee of (Employer), sustained a compensable injury.
- On (Date of Injury), Employer provided workers’ compensation insurance with Indemnity Insurance Company of North America.
- The Independent Review Organization determined that the requested services were not reasonable and necessary health care services for the compensable injury of (Date of Injury).
- Claimant is not entitled to lumbar myelogram with computed tomography (CT) scan for the compensable injury of (Date of Injury) because there is not documentation explaining how the requested procedure will assist in surgical planning.
- 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.
- A cervical myelogram with computed tomography scan 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 a cervical and lumbar myelogram with computed tomography scan is not health care reasonably required for the compensable injury of (Date of Injury).
Claimant is not entitled to cervical and lumbar myelogram with computed tomography scan 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 INDEMNITY INSURANCE COMPANY OF NORTH AMERICA and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEM
350 NORTH ST. PAUL STREET
DALLAS, TX 75201
Signed this 19th day of March, 2013.
CAROLYN F. MOORE