DECISION AND ORDER
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 cervical discectomy at C3-C7 with fusion LOS (length of stay) 2 days for the compensable injury of (Date of Injury).
STATEMENT OF THE CASE
On September 19, 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 decision of the Independent Review Organization (IRO) that the Claimant is not entitled to a cervical discectomy at C3-C7 with fusion LOS 2 days for the compensable injury of (Date of Injury)?
Petitioner did not appear. Claimant appeared and was assisted by MH, ombudsman.
Respondent/Carrier appeared and was represented by LM, attorney.
No witnesses testified at the contested case hearing.
The following exhibits were admitted into evidence:
Hearing Officer’s Exhibits: HO-1 and HO-2
Claimant’s Exhibits: None
Carrier’s Exhibits: CR-A through CR-F
Claimant was employed as a truck driver, and he sustained a compensable injury on (Date of Injury). Claimant was referred to DG, D.O., who recommended a cervical discectomy at C3-C7 with fusion and 2 day LOS, which was denied by the Carrier and appealed to an IRO. Prior to opening on the record in this case, Claimant indicated that he no longer desired to undergo the recommended three-level fusion and that he was seeking alternate health care options for treatment of his cervical spine injury. The parties agreed that a Decision and Order should be rendered to resolve this pending appeal.
The IRO reviewer, identified as a neurosurgeon, upheld Carrier’s denial and determined that the requested procedure was medically not necessary. The IRO reviewer noted that there was no clinical documentation to verify that Claimant had been compliant with the smoking cessation, and therefore, he is not a suitable candidate for undergoing the requested cervical discectomy with fusion at this time. The IRO reviewer also noted that the physician had requested three levels of fusion be performed and that the cervical spine MRI dated June 6, 2014 did not identify any cord compression at C3-4 to warrant surgery at this time. The IRO reviewer referred to the Official Disability Guidelines (ODG) regarding the requested length of stay and opined that two days exceeds the recommendation.
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 §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 §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 §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 §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 Cervical Fusion:
(1) Acute traumatic spinal injury (fracture or dislocation) resulting in cervical spinal instability.
(2) Osteomyelitis (bone infection) resulting in vertebral body destruction.
(3) Primary or metastatic bone tumor resulting in fracture instability or spinal cord compression.
(4) Cervical nerve root compression verified by diagnostic imaging (i.e., MRI or CT myelogram) and resulting in severe pain OR profound weakness of the extremities.
(5) Spondylotic myelopathy based on clinical signs and/or symptoms (Clumsiness of hands, urinary urgency, new-onset bowel or bladder incontinence, frequent falls, hyperreflexia, Hoffmann sign, increased tone or spasticity, loss of thenar or hypothenar eminence, gait abnormality or pathologic Babinski sign) and Diagnostic imaging (i.e., MRI or CT myelogram) demonstrating spinal cord compression.
(6) Spondylotic radiculopathy or nontraumatic instability with ALL of the following criteria:
(a) Significant symptoms that correlate with physical exam findings AND radiologist-interpreted imaging reports.
(b) Persistent or progressive radicular pain or weakness secondary to nerve root compression or moderate to severe neck pain, despite 8 weeks conservative therapy with at least 2 of the following:
- Active pain management with pharmacotherapy that addresses neuropathic pain and other pain sources (e.g., an NSAID, muscle relaxant or tricyclic antidepressant);
- Medical management with oral steroids, facet or epidural injections;
- Physical therapy, documented participation in a formal, active physical therapy program as directed by a physiatrist or physical therapist, may include a home exercise program and activity modification, as appropriate.
(c) Clinically significant function limitation, resulting in inability or significantly decreased ability to perform normal, daily activities of work or at-home duties.
(d) Diagnostic imaging (i.e., MRI or CT myelogram) demonstrates cervical nerve root compression, or Diagnostic imaging by x-ray demonstrates Instability by flexion and extension x-rays; Sagittal plane translation >3mm; OR Sagittal plane translation >20% of vertebral body width; OR Relative sagittal plane angulation >11 degrees.
(e) Not recommend repeat surgery at the same level.
(f) Tobacco cessation: Because of the high risk of pseudoarthrosis, a smoker anticipating a spinal fusion should adhere to a tobacco-cessation program that results in abstinence from tobacco for at least six weeks prior to surgery.
(g) Number of levels: When requesting authorization for cervical fusion of multiple levels, each level is subject to the criteria above. Fewer levels are preferred to limit strain on the unfused segments. If there is multi-level degeneration, prefer limiting to no more than three levels. With one level, there is approximately a 80% chance of benefit, for a two-level fusion it drops to around 60%, and for a three-level fusion to around 50%. But not fusing additional levels meeting the criteria, risks having to do future operations.
(h) The decision on technique (e.g., autograft versus allograft, instrumentation) should be left to the surgeon.
Based on the evidence presented, Claimant failed to prove that he meets the requirements in the ODG for the requested procedure and he failed to present evidence-based medical evidence 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 cervical discectomy at C3-C7 with fusion LOS 2 days for the compensable injury of (Date of Injury).
The Hearing Officer considered all of the evidence admitted. The Findings of Fact and Conclusions of Law are based on an assessment of all of the evidence whether or not the evidence is specifically discussed in this Decision and Order.
FINDINGS OF FACT
- 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 provided workers’ compensation coverage with (Carrier), Carrier.
D. Claimant sustained a compensable injury on (Date of Injury).
E.The IRO determined that the proposed cervical discectomy with fusion LOS 2 days is not medically necessary 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 discectomy at C3-C7 with fusion LOS 2 days is not health care reasonably required for the compensable injury of (Date of Injury).
Claimant is not entitled to a cervical discectomy at C3-C7 with fusion LOS 2 days for the compensable injury of (Date of Injury).
Carrier is not liable for the medical benefits at issue in this hearing. Claimant remains entitled to medical benefits for the compensable injury in accordance with Texas Labor Code §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:
CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TX 75201-3136
Signed this 19th day of September, 2016.
Carol A. Fougerat