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. For the reasons discussed herein, the Hearing Officer determines that Petitioner / Claimant is not entitled to left L4-L5 and L5-S1 lumbar facet steroid injection under fluoroscopy for the compensable injury of (Date of Injury).
STATEMENT OF THE CASE
A medical contested case hearing was held on September 8, 2016, 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 left L4-L5 and L5-S1 lumbar facet steroid injection under fluoroscopy for the compensable injury of (Date of Injury)?
Petitioner / Claimant appeared and was assisted by LS, ombudsman. Respondent / Carrier appeared and was represented by SS, attorney.
The following witnesses testified:
For Petitioner / Claimant: None.
For Carrier / Respondent: None.
The following exhibits were admitted into evidence:
Hearing Officer’s Exhibits HO-1 through HO-3.
Petitioner / Claimant’s Exhibits C-1 through C-4.
Carrier / Respondent’s Exhibits CR-A through CR-J.
On (Date of Injury), Petitioner / Claimant worked for the employer, (Employer), and sustained an injury to his lower back. He received medical treatment for his injury and has been seen by ML, M.D., his treating doctor, on several occasions, including for injections to his lower back that were performed on July 28, 2014 and November 19, 2015. On November 19, 2015, Dr. ML performed a left lumbar facet steroid injection under fluoroscopy at the L4-L5 and L5-S1 levels. Petitioner / Claimant received some pain relief from the procedure, but then returned to see Dr. ML with a return of pain complaints on March 31, 2016. A request for a left lumbar facet steroid injection under fluoroscopy at the L4-L5 and L5-S1 levels was proposed again. Such request underwent utilization review and was denied on April 6, 2016 by GP, M.D., an orthopedic surgeon. Reconsideration was requested and such reconsideration was denied on April 27, 2016 by HK, M.D., a pain medicine, and physical medicine and rehabilitation doctor. Petitioner / Claimant then appealed the denials to an IRO and the IRO reviewer, also a physical medicine and rehabilitation doctor, upheld the previous adverse determinations. Consequently, Petitioner / Claimant appealed the IRO decision and this is the reason for the present discussion and decision.
An injured employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. TEX. LAB. CODE §408.021(a). "Health care reasonably required" is defined 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. TEX. LAB. CODE §401.011(22a). Health care under the Texas Workers' Compensation system must be consistent with evidence-based medicine if that evidence is available. "Evidence-based medicine" means 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. TEX. LAB. CODE §401.011(18a). 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. TEX. LAB. CODE §413.011(e). Medical services consistent with the medical policies and fee guidelines adopted by the commissioner are presumed reasonable in accordance with the Texas Labor Code. TEX. LAB. CODE §413.017(1).
In accordance with the above statutory guidance, the Division has adopted treatment guidelines by rule. 28 TEX. ADMIN. CODE §137.100 (Division Rule 137.100). This Rule directs health care providers to provide treatment in accordance with the current edition of the Official Disability Guidelines (hereinafter "ODG") and that 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.
Some of the pertinent provisions of the ODG applicable to this case are as follows, to wit:
Facet joint injections, lumbar:
See Pain Chapter.
Facet joint injections, multiple series:
Diagnostic blocks: One set of medial branch blocks is recommended prior to a neurotomy. Intra-articular blocks are not recommended as the diagnostic procedure. Confirmatory blocks, while recommended for research studies, do not appear to be cost effective or to prevent the incidence of a false positive response to the neurotomy procedure itself. See Facet joint diagnostic blocks (injections).
Therapeutic injections: With respect to facet joint intra-articular therapeutic injections, no more than one therapeutic intra-articular block is suggested. If successful (pain relief of at least 50% for a duration of at least 6 weeks), the recommendation is to proceed to a medial branch diagnostic block and subsequent neurotomy (if the medial branch block is positive). See Facet joint intra-articular injections (therapeutic blocks). There is no peer-reviewed literature to support a “series” of therapeutic facet blocks.
Facet joint therapeutic steroid injections:
See Facet joint intra-articular injections (therapeutic blocks).
Facet joint intra-articular injections (therapeutic blocks):
Under study. Current evidence is conflicting as to this procedure and at this time no more than one therapeutic intra-articular block is suggested. If successful (pain relief of at least 50% for a duration of at least 6 weeks), the recommendation is to proceed to a medial branch diagnostic block and subsequent neurotomy (if the medial branch block is positive). If a therapeutic facet joint block is undertaken, it is suggested that it be used in consort with other evidence based conservative care (activity, exercise, etc.) to facilitate Staal-Cochrane, 2009)
Systematic reviews endorsing therapeutic intra-articular facet blocks:
Pain Physician, 2005: In 2005 there were two positive systematic reviews published in Pain Physician that stated that the evidence was moderate for short-term and limited for long-term improvement using this intervention. (Edwards, 2005)
Pain Physician, 2007: Pain Physician again published a systematic review on this subject in 2007 and added one additional randomized trial comparing intra-articular injections with sodium hyaluronate to blocks with triamcinolone acetonide. The diagnosis of facet osteoarthritis was made radiographically. (Boswell2, 2007)
Complications: These includedsuppression of the hypothalamic-pituitary-adrenal axis for up to 4 weeks due to steroids with resultant elevated glucose levels for less than a week. (Boswell2, 2007)
Single photon emission computed tomography: (bone scintigraphy, SPECT scan): Not recommended although recent research is promising. This technique is recommended based on the ability of radionuclide bone scintigraphy to detect areas of increased function, depicting synovial areas of inflammation as well as degenerative changes. Thirteen of 15 patients had a > 1 standard deviation pain score improvement at 1 month versus 7 of 32 patients with a negative or no scan. The benefit of the injection lasted for approximately 3 months and did not persist to 6 months. (Pain Chapter.
Criteria for use of therapeutic intra-articular and medial branch blocks, are as follows:
- No more than one therapeutic intra-articular block is recommended.
- There should be no evidence of radicular pain, spinal stenosis, or previous fusion.
- If successful (initial pain relief of 70%, plus pain relief of at least 50% for a duration of at least 6 weeks), the recommendation is to proceed to a medial branch diagnostic block and subsequent neurotomy (if the medial branch block is positive).
- No more than 2 joint levels may be blocked at any one time.
- There should be evidence of a formal plan of additional evidence-based activity and exercise in addition to facet joint injection therapy.
In the instant case, the utilization review doctors (i.e., Dr. P and Dr. K) denied the requested treatment and the IRO reviewer upheld the denial of the requested treatment. The IRO reviewer, who is a physical medicine and rehabilitation doctor, reviewed Petitioner / Claimant’s records and opined that the proposed treatment was not indicated as medically necessary based on the clinical data provided and the ODG. The IRO reviewer noted that the requested treatment was the same treatment that had already been performed on November 19, 2015 and that ODG does not recommend such. Thereafter, the IRO reviewer cited medical judgment, clinical experience and expertise in accordance with accepted medical standards, as well as the ODG, in upholding the denials of the requested treatment. These opinions were further supported by the opinion of
JO, M.D., a peer reviewer, who reviewed the ODG, the opinions previously noted, the IRO, opined that the proposed treatment was not indicated as medically necessary, and provided an explanation for such opinion.
When weighing expert testimony, the hearing officer must first determine whether the doctor rendering an expert opinion is qualified to offer such. In addition, the hearing officer must determine whether the opinion is relevant to the issues at bar and whether it is based upon a reliable foundation. An expert’s bald assurance of validity is not enough. See Black v. Food Lion, Inc., 171 F.3d 308 (5th Cir. 1999); E.I. Du Pont De Nemours and Company, Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995). A medical doctor is not automatically qualified as an expert on every medical question and an unsupported opinion has little, if any, weight. See Black, 171 F.3d 308. In determining reliability of the evidence, the hearing officer must consider the evidence in terms of (1) general acceptance of the theory and technique by the relevant scientific community; (2) the expert’s qualifications; (3) the existence of literature supporting or rejecting the theory; (4) the technique’s potential rate of error; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the theory or technique can be explained to the trial court; and (7) the experience and skill of the person who applied the technique on the occasion in question. Kelly v. State, 792 S.W.2d 579 (Tex. App.-Fort Worth 1990) aff'd, 824 S.W.2d 568 (Tex. Crim. App. 1992).
Additionally, "[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." See Division Rule 133.308 (s). "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." Id. Evidence-based medical evidence entails the opinion of a qualified expert that is supported by evidence-based medicine, if evidence-based medicine exists.
Accordingly, Petitioner / Claimant, as the party appealing the IRO decision, had the burden of overcoming the IRO decision by a preponderance of evidence-based medical evidence. Although Petitioner / Claimant presented documentary evidence, including his medical records, there was little to no explanation through the use of evidence-based medical evidence as to how Petitioner / Claimant met the requirements of the ODG for the requested treatment. Petitioner / Claimant also did not establish the necessity of the requested treatment at issue through other evidence-based medical evidence outside of the ODG. As such, evidence-based medical evidence explaining that the requested treatment was medically reasonable and necessary was lacking in this case. Therefore, the preponderance of the evidence is not contrary to the decision of the IRO that Petitioner / Claimant is not entitled to left L4-L5 and L5-S1 lumbar facet steroid injection under fluoroscopy 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), Petitioner / Claimant was an employee of (Employer), the employer.
C.On (Date of Injury), employer provided workers’ compensation insurance with (Carrier), the Respondent / Carrier.
D.On (Date of Injury), Petitioner / Claimant sustained a compensable injury in the form of lumbar facet disease in the form of arthropathy at L4-L5 and L5-S1, and lumbar epidural fibrosis at L5-S1.
E.The IRO determined that Petitioner / Claimant is not entitled to left L4-L5 and L5-S1 lumbar facet steroid injection under fluoroscopy 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 Petitioner / Claimant is not entitled to left L4-L5 and L5-S1 lumbar facet steroid injection under fluoroscopy for the compensable injury of (Date of Injury).
Petitioner / Claimant is not entitled to left L4-L5 and L5-S1 lumbar facet steroid injection under fluoroscopy for the compensable injury of (Date of Injury).
Respondent / Carrier is not liable for the benefits at issue in this hearing. Petitioner / Claimant remains entitled to medical benefits for the compensable injury in accordance with §408.021.
The true corporate name of the Respondent / 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 16th day of September 2016.
Julio Gomez, Jr.