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July 18, 2016


July 18, 2016


This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and the Rules of the Texas Department of Insurance, Division of Workers’ Compensation. For the reasons discussed herein, the Hearing Officer determines that Claimant is not entitled to a lumbar epidural steroid injection (ESI), fluoroscopy for the compensable injury of (Date of Injury).


On July 18, 2016, Carol A. Fougerat, a Division hearing officer, held a contested case hearing to decide the following disputed issue:

Is the preponderance of the evidence contrary to the determination of the Independent Review Organization (IRO) that the Claimant is not entitled to a lumbar ESI, fluoroscopy for the compensable injury of (Date of Injury)?


Petitioner/Claimant appeared and was assisted by I E, ombudsman.

Respondent/Carrier appeared and was represented by B Q, attorney.


The following witnesses testified:

For Claimant: Claimant

For Carrier: None

The following exhibits were admitted into evidence:

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

Claimant’s Exhibits: C-1 through C-3

Carrier’s Exhibits: CR-A through CR-E


Claimant sustained a compensable injury to his lumbar spine on (Date of Injury). Claimant has undergone multiple surgeries as a result of this injury, and he is currently diagnosed with chronic back and lower extremity pain, and status-post laminectomy and fusion at two levels (L4-5 and L5-S1). Claimant has a spinal cord stimulator, which has diminished his pain to the point that he was able to reduce the pain medication. Claimant testified that he has undergone 17 surgeries related to the back injury and spinal cord stimulator maintenance. Claimant sees his pain management doctor, AC, M.D., once every three months, and Dr. AC has recommended a lumbar ESI under fluoroscopic imaging with trigger point injections (lumbar ESI, fluoroscopy). The request was denied by the Carrier and ultimately appealed to an IRO.

The IRO reviewer, identified as board certified in anesthesiology, upheld the Carrier’s denial. The IRO reviewer stated that the clinical information submitted for review does not support the request. Official Disability Guidelines (ODG) recommend that radiculopathy must be documented. Objective findings on examination need to be present, and the IRO reviewer noted that there were no physical examination submitted for review indicating that Claimant has any motor, sensory, or reflex changes, or an MRI or CT scan indicating that there is nerve root entrapment or compression that would warrant an ESI. The IRO reviewer concluded that the request for a lumbar ESI, fluoroscopy is not medical necessary.

Texas Labor Code §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 (22-a) 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 (18-a) 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(s), "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 (due to herniated nucleus pulposus, but not spinal stenosis) 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.)

Claimant testified that he has undergone prior ESIs, which provided approximately six months of relief. Claimant has also undergone trigger point injections. In response to the IRO’s decision, Dr. AC submitted a letter dated May 6, 2016, outlining the ODG criteria for a lumbar ESI, and explaining how Claimant meets these requirements. This letter appears to be a request for approval of an ESI, as opposed to addressing the IRO’s concerns, which included a lack of documentation to warrant approval of a lumbar ESI at the time of the review, which was dated March 5, 2016. While Claimant may meet the ODG recommendations for a lumbar ESI at this time, Claimant failed to prove that he met the requirements of the ODG for the requested procedure at the time it was submitted for review by the IRO. Therefore, Claimant failed to provide an evidence-based medical opinion sufficient to contradict the determination of the IRO. The preponderance of the evidence is not contrary to the IRO decision that Claimant is not entitled to a lumbar ESI, fluoroscopy for the compensable injury of (Date of Injury).

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), Employer.

C.On (Date of Injury), Employer had workers’ compensation coverage with (Carrier), Carrier.

D. Claimant sustained a compensable injury on (Date of Injury).

E.The IRO determined that the proposed lumbar ESI, fluoroscopy is not medically necessary for the compensable injury of (Date of 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.
  • Considering the documentation submitted to the IRO for review, Claimant did not meet the recommendations of the ODG for a lumbar ESI, fluoroscopy, and he failed to present other evidence-based medicine supporting the necessity for this procedure at that time.
  • A lumbar ESI, fluoroscopy 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 is not contrary to the decision of the IRO that a lumbar ESI, fluoroscopy is not health care reasonably required for the compensable injury of (Date of Injury).


    Claimant is not entitled to a lumbar ESI, fluoroscopy for the compensable injury of (Date 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 (Carrier), 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 18th day of July, 2016.

    Carol A. Fougerat
    Hearing Officer

    End of Document