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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 in (Docket #1)the claimant is entitled to left L3, L4, and L5 medial branch blocks for the compensable injury on (Date of Injury); that in (Docket #2) the claimant is not entitled to a back brace and TENS unit for the compensable injury on (Date of Injury); and that in (Docket #3) the claimant is not entitled to an additional 8 physical therapy sessions for the compensable injury on (Date of Injury).

ISSUES

On January 9, 2017, William M. Routon II, a Division hearing officer, held a contested case hearing to decide the following disputed issue:

  1. Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that left L3, L4, and L5 medial branch blocks are not reasonable and necessary medical care for the compensable injury of (Date of Injury)?
  2. 2.Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that a back brace and TENS unit are not reasonable and necessary medical care for the compensable injury of (Date of Injury)?
  3. 3.Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that an additional 8 physical therapy sessions are not reasonable and necessary medical care for the compensable injury of(Date of Injury)?

PARTIES PRESENT

The petitioner/claimant appeared and was assisted by SA, ombudsman. The carrier/respondent appeared and was represented by PB, attorney.

BACKGROUND INFORMATION

The disputed treatments in this case are in connection with the lumbar spine injury sustained by the claimant in (Year of Injury). In 1998, the claimant had surgery to the L4-5 and L5-S1 levels of his lumbar spine. As explained by LR, M. D., the doctor who has requested each of the treatments, the surgery was an “anterior body fusion” and the claimant never had posterior surgery to fuse the posterior elements—the facet joints. That meant, according to Dr. R, that the claimant “has not had fusion of his facet joints and there is still intact capsule and cartilage and sensory innervation”. Dr. R also asserted that the claimant's “fusion may be incomplete and there is still an intact joint at all lumbar levels.” Dr. R stated as recently as December, 2016 that the claimant's pain was facet mediated pain due to micromotion of the facet joints since they were never fused. The claimant also testified that Dr. R, with whom the claimant has treated for the last 20 years in connection with the compensable injury, confirmed to him that the fusion performed was “crooked.”

In reviewing Dr. R’s request for left L3, L4, and L5 medial branch blocks (Docket #1) the utilization review doctor, an orthopedic surgeon, based part of his opinion on the claimant having been diagnosed with lumbar radiculopathy. However, a review of Dr. R’s reports indicate that the “suggestion” of lumbar radicular pain was related to levels of the claimant's lumbar spine that are above the levels where the fusion surgery was performed and which are at issue in this case. The reviewer also apparently assumed a successful anterior and posterior fusion, and that the medial branch blocks were being requested for treatment rather than diagnostic purposes.

In reviewing Dr. R’s request for a back brace and TENS unit (Docket #2), three utilization review doctors all denied Dr. R’s requests. On initial review in May, 2016, the reviewing doctor, a pain management and physical medicine and rehabilitation doctor, opined that the TENS unit was not medically necessary but did not explain the basis for her opinion. She also opined that there was “strong and consistent evidence” that back braces/lumbar supports were not effective in preventing back pain. The reviewer on appeal of that denial, an orthopedic surgeon, in August, 2016 denied the TENS unit due to insufficient information that was presented to him on the claimant's treatment history, and because there was no specific duration that had been requested for a TENS unit trial. That reviewer also denied the back brace/lumbar support because they had not been shown to be effective in preventing back pain, and because there was no documentation of any recent lumbar surgery (because, of course, the surgery had been approximately eighteen years earlier). Finally, a second initial reviewer, ananesthesiologist, in September, 2016 also denied both the TENS unit and the back brace/lumbar support. As to the TENS unit, the reviewing doctor stated that guidelines did not recommend “sole use of a TENS unit for chronic musculoskeletal pain.” This utilization reviewer, like the others before him, was apparently not provided any medical records in regard to the compensable injury, or the earlier treatment, including surgery, because he indicated part of the basis for his denial was that the records provided for his review did not “identify any acute trauma to the spine.”

In reviewing Dr. R’s request for an additional 8 physical therapy sessions(Docket #3) the utilization review doctor, ananesthesiologist, denied the request on the basis that “the recent records” provided to him did not provide any goals to be obtained by physical therapy for an injury “now more than 14 [sic] years old.” The reviewer, in the appeal from the denial, statedgenerally that there was no indication for physical therapy beyond that allowed by the guidelines.

In (Docket #1), the IRO doctor, a Board Certified anesthesiologist, denied the request for the medial branch blocks on the assumption that they were being requested for pain relief despite the fact, the reviewer assumed, that the claimant had apparently had a complete and successful fusion surgery at L4-5 and L5-S1.

In (Docket #2), the IRO doctor, identified as an anesthesiologist and pain management doctor, opined in November, 2016 that the back support should not be authorized since the “literature also indicates supports are not effective in preventing neck and back pain.” The reviewer indicated that he believed insufficient information had been provided to determine whether a TENS unit was appropriate in this case. He stated that clarification was needed in regard to the claimant's previous treatment and whether all conservative measures, such as physical therapy had failed. It is noted that this doctor, who performed his review in November, 2016, only had medical records back to May, 2016, and some of those were only prescriptions and peer reviews.

In (Docket #3), the IRO doctoridentified, as an anesthesiologist, denied the request for additional physical therapy because he was provided little or no information in regard to the claimant's treatment history, a history of his prior physical therapy, and because “there is no clear rationale provided to support a course of physical therapy at this time for this patient who sustained injuries over 24 years ago.”

DISCUSSION

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 (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."

On the date of this medical contested case hearing, the ODG provides the following with regard to medial branch blocks:

Facet joint diagnostic blocks (injections)

Recommend no more than one set of medial branch diagnostic blocks prior to facet neurotomy, if neurotomy is chosen as an option for treatment (a procedure that is still considered “under study”). Diagnostic blocks may be performed with the anticipation that if successful, treatment may proceed to facet neurotomy at the diagnosed levels.

See Facet joint pain, signs & symptoms; Facet joint radiofrequency neurotomy; Facet joint medial branch blocks (therapeutic injections); and Facet joint intra-articular injections (therapeutic blocks). See also Neck Chapter and Pain Chapter.

Criteria for the use of diagnostic blocks for facet “mediated” pain:

Clinical presentation should be consistent with facet joint pain, signs & symptoms.

  1. One set of diagnostic medial branch blocks is required with a response of ≥ 70%. The pain response should last at least 2 hours for Lidocaine.
  2. Limited to patients with low-back pain that is non-radicular and at no more than two levels bilaterally.
  3. There is documentation of failure of conservative treatment (including home exercise, PT and NSAIDs) prior to the procedure for at least 4-6 weeks.
  4. No more than 2 facet joint levels are injected in one session (see above for medial branch block levels).
  5. Recommended volume of no more than 0.5 cc of injectate is given to each joint.
  6. No pain medication from home should be taken for at least 4 hours prior to the diagnostic block and for 4 to 6 hours afterward.
  7. Opioids should not be given as a “sedative” during the procedure.
  8. The use of IV sedation (including other agents such as midazolam) may be grounds to negate the results of a diagnostic block, and should only be given in cases of extreme anxiety.
  9. The patient should document pain relief with an instrument such as a VAS scale, emphasizing the importance of recording the maximum pain relief and maximum duration of pain. The patient should also keep medication use and activity logs to support subjective reports of better pain control.
  10. Diagnostic facet blocks should not be performed in patients in whom a surgical procedure is anticipated. (Resnick, 2005)
  11. Diagnostic facet blocks should not be performed in patients who have had a previous fusion procedure at the planned injection level. [Exclusion Criteria that would require UR physician review: Previous fusion at the targeted level. (Franklin, 2008)]

Current research indicates that a minimum of one diagnostic block be performed prior to a neurotomy, and that this be a medial branch block (MBB). Although it is suggested that MBBs and intra-articular blocks appear to provide comparable diagnostic information, the results of placebo-controlled trials of neurotomy found better predictive effect with diagnostic MBBs. In addition, the same nerves are tested with the MBB as are treated with the neurotomy. The use of a confirmatory block has been strongly suggested due to the high rate of false positives with single blocks (range of 25% to 40%) but this does not appear to be cost effective or to prevent the incidence of false positive response to the neurotomy procedure itself. (Cohen, 2007) (Bogduk, 2000) (Cohen2, 2007) (Mancchukonda, 2007) (Dreyfuss, 2000) (Manchikanti2, 2003) (Datta, 2009)

Etiology of false positive blocks:Placebo response (18-32%), use of sedation, liberal use of local anesthetic, and spread of injectate to other pain generators. The concomitant use of sedative during the block can also interfere with an accurate diagnosis. (Cohen, 2007) The use of sedation during diagnostic injections may increase the rate of false-positive blocks and lead to misdiagnoses and unnecessary procedures, but has no effect on satisfaction or outcomes at 1-month. (Cohen, 2014)

MBB procedure: The technique for medial branch blocks in the lumbar region requires a block of 2 medial branch nerves (MBN). The recommendation is the following: (1) L1-L2 (T12 and L1 MBN); (2) L2-L3 (L1 and L2 MBN); (3) L3-L4 (L2 and L3 MBN); (4) L4-L5 (L3 and L4 MBN); (5) L5-S1: the L4 and L5 MBN are blocked, and it is recommended that S1 nerve be blocked at the superior articular process. Blocking two joints such as L3-4 and L4-5 will require blocks of three nerves (L2, L3 and L4). Blocking L4-5 and L5-S1 will require blocks of L3, L4, L5 with the option of blocking S1. (Clemans, 2005) The volume of injectate for diagnostic medial branch blocks must be kept to a minimum (a trace amount of contrast with no more than 0.5 cc of injectate), as increased volume may anesthetize other potential areas of pain generation and confound the ability of the block to accurately diagnose facet pathology. Specifically, the concern is that the lateral and intermediate branches will be blocked; nerves that innervate the paraspinal muscles and fascia, ligaments, sacroiliac joints and skin. (Cohen, 2007) Intraarticular blocks also have limitations due to the fact that they can be technically challenging, and if the joint capsule ruptures, injectate may diffuse to the epidural space, intervertebral foramen, ligamentum flavum and paraspinal musculature. (Cohen, 2007) (Washington, 2005) (Manchikanti, 2003) (Dreyfuss, 2003) (BlueCross BlueShield, 2004) (Pneumaticos, 2006) (Boswell, 2007) (Boswell2, 2007) A recent meta-analysis concluded that there is insufficient evidence to evaluate validity or utility of diagnostic selective nerve root block, intra-articular facet joint block, medial branch block, or sacroiliac joint block as diagnostic procedures for low back pain with or without radiculopathy. (Chou2, 2009) This study suggests that proceeding to radiofrequency denervation without a diagnostic block is the most cost-effective treatment paradigm, but does not result in the best pain outcomes. (Cohen, 2010)

The claimant has experienced chronic pain since the date of the compensable injury, even after conservative care and then surgery. At least beginning in 2010, the claimant received medial branch neurotomies by Dr. R to relieve the pain and reduce the claimant's need for narcotic medications, including OxyContin, Topamax, and Hydrocodone. The claimant testified, and the treatment records in evidence from Dr. R indicate, that the neurotomies have been very successful, for a year or more at a time, in relieving the claimant's pain, reducing his need for narcotic medications, and in allowing the claimant to work a full work week (after his injury, the claimant returned to school and retrained in IT so that he could return to the workforce).

The claimant testified that Dr. R wants the requested medial branch blocks not as a treatment but as a diagnostic tool for a new medial branch neurotomy. In his December, 2016 report, Dr. R confirmed that he is requesting the blocks “because the ODG guidelines state I am not allowed to proceed with a repeat neurotomy without the diagnostic block.” On the date of this medical contested case hearing, the ODG provides the following with regard to facet joint radiofrequency neurotomy:

Criteria for use of facet joint radiofrequency neurotomy:

  1. Treatment requires a diagnosis of facet joint pain using a medial branch block as described above. See Facet joint diagnostic blocks (injections).
  2. While repeat neurotomies may be required, they should not occur at an interval of less than 6 months from the first procedure. A neurotomy should not be repeated unless duration of relief from the first procedure is documented for at least 12 weeks at ≥ 50% relief. The current literature does not support that the procedure is successful without sustained pain relief (generally of at least 6 months duration). No more than 3 procedures should be performed over the course of a year.
  3. Approval of repeat neurotomies depends on variables such as evidence of adequate diagnostic blocks, documented improvement in VAS score, decreased medications and documented improvement in function.

An examination report from Dr. R in March, 2012 related that prior medial branch blocks achieved the level and duration of relief required by the ODG to support the medial branch neurotomy. The claimant's most recent neurotomy was in December, 2014. The relief and benefits lasted well over the recommended periods set out above. Finally, as the above portions of the ODG state, repeat neurotomies depend on variables like “evidence of adequate diagnostic blocks,” which is the basis of Dr. R’s request.

On the date of this medical contested case hearing, the ODG provides the following with regard to back braces and TENS units:

Back braces (lumbar supports):

Not recommended for prevention. Recommended as an option for treatment. See below for indications.

See also Back brace, post operative (fusion); IntelliSkin posture garments; and SpineCor brace.

Prevention: Not recommended for prevention. There is strong and consistent evidence that lumbar supports were not effective in preventing neck and back pain. (Jellema-Cochrane, 2001) (van Poppel, 1997) (Linton, 2001) (Assendelft-Cochrane, 2004) (van Poppel, 2004) (Resnick, 2005) Lumbar supports do not prevent LBP. (Kinkade, 2007) A systematic review on preventing episodes of back problems found strong, consistent evidence that exercise interventions are effective, and other interventions not effective, including stress management, shoe inserts, back supports, ergonomic/back education, and reduced lifting programs. (Bigos, 2009) This systematic review concluded that there is moderate evidence that lumbar supports are no more effective than doing nothing in preventing low-back pain. (van Duijvenbode, 2008) A total of 23 studies involving 30,850 participants evaluated six different prevention strategies: exercise, education, exercise combined with education, back belts, shoe insoles, and other strategies. Exercise combined with education reduces the risk for a LBP episode at short-term (≤12 months) follow-up (RR: 0.55). Exercise alone reduces the use of sick leave in the long term (RR: 0.22). Other interventions, including education alone (RR: 1.03), back belts (RR: 1.01), and shoe insoles (RR: 1.01), did not appear to be associated with the prevention of LBP. (Steffens, 2016)

Treatment: Recommended as an option for compression fractures and specific treatment of spondylolisthesis, documented instability, and for treatment of nonspecific LBP (very low-quality evidence, but may be a conservative option). Under study for post-operative use; see Back brace, post operative (fusion). Among home care workers with previous low back pain, adding patient-directed use of lumbar supports to a short course on healthy working methods may reduce the number of days when low back pain occurs, but not overall work absenteeism. (Roelofs, 2007) Acute osteoporotic vertebral compression fracture management includes bracing, analgesics, and functional restoration. (Kim, 2006) An RCT to evaluate the effects of an elastic lumbar belt on functional capacity and pain intensity in low back pain treatment, found an improvement in physical restoration compared to control and decreased pharmacologic consumption. (Calmels, 2009) This RCT concluded that lumbar supports to treat workers with recurrent low back pain seems to be cost-effective, with on average 54 fewer days per year with LBP and 5 fewer days per year sick leave. (Roelofs, 2010) This systematic review concluded that lumbar supports may or may not be more effective than other interventions for the treatment of low-back pain. (van Duijvenbode, 2008) For treatment of nonspecific LBP, compared with no lumbar support, an elastic lumbar belt may be more effective than no belt at improving pain (measured by visual analogue scale) and at improving functional capacity (measured by EIFEL score) at 30 and 90 days in people with subacute low back pain lasting 1 to 3 months. However, evidence was weak (very low-quality evidence). (McIntosh, 2011) Bracing is a low-risk, cost-effective method to treat certain thoracolumbar fractures, and it offers equivalent efficacy as surgical management in many cases. The evidence for bracing of osteoporotic-type fractures is less clear, and further investigation will be necessary to delineate its optimal role. (Chang, 2014)

TENS (transcutaneous electrical nerve stimulation):

Not recommended as an isolated intervention, but a one-month home-based TENS trial may be considered as a noninvasive conservative option for chronic back pain, if used as an adjunct to a program of evidence-based conservative care to achieve functional restoration, including reductions in medication use.

Acute:Not recommended based on published literature and a consensus of current guidelines. No proven efficacy has been shown for the treatment of acute low back symptoms. (Herman, 1994) (Bigos, 1999) (van Tulder, 2006)

Chronic: Not generally recommended as there is strong evidence that TENS is not more effective than placebo or sham. (Airaksinen, 2006) There is minimal data on how efficacy is affected by type of application, site of application, treatment duration, and optimal frequency/intensity. (Brousseau, 2002) There are sparse randomized controlled trials that have investigated TENS for low back pain. One study of 30 subjects showed a significant decrease in pain intensity over a 60-minute treatment period and for 60 minutes after. (Cheing, 1999) A larger trial of 145 subjects showed no difference between placebo and TENS treatment. (Deyo, 1990) Single-dose studies may not be effective for evaluating long-term outcomes, or the standard type of use of this modality in a clinical setting. (Milne-Cochrane, 2001) (Sherry, 2001) (Philadelphia Panel, 2001) (Glaser, 2001) (Maher, 2004) (Brousseau, 2002) (Khadikar, 2005) (Khadikar2, 2005) Although electrotherapeutic modalities are frequently used in the management of CLBP, few studies were found to support their use. Most studies on TENS can be considered of relatively poor methodological quality. TENS does not appear to have an impact on perceived disability or long-term pain. High-frequency TENS appears to be more effective on pain intensity when compared with low frequency, but this has to be confirmed in future comparative trials. It is also not known if adding TENS to an evidence-based intervention, such as exercise, improves even more outcomes, but studies assessing the interactions between exercise and TENS found no cumulative impact. (Poitras, 2008) For more information, see the Pain Chapter.

Recent research: A recent meta-analysis concluded that the evidence from the small number of placebo-controlled trials does not support the use of TENS in the routine management of chronic LBP. There was conflicting evidence about whether TENS was beneficial in reducing back pain intensity and consistent evidence that it did not improve back-specific functional status. There was moderate evidence that work status and the use of medical services did not change with treatment. Patients treated with acupuncture-like TENS responded similarly to those treated with conventional TENS. (Khadilkar-Cochrane, 2008) On June 8, 2012, the Centers for Medicare & Medicaid Services (CMS) issued an updated decision memo concluding that TENS is not reasonable and necessary for the treatment of chronic low back pain based on a lack of quality evidence for its effectiveness. Coverage is available only if the beneficiary is enrolled in an approved clinical study. (Jacques, 2012)

The requests for a back brace/lumbar support, and a TENS unit, while not extensively discussed in Dr. R’s reports, were requested for the purpose of providing “nonnarcotic treatment options to reduce and control [the claimant's] pain.” The first suggestion of these options does not appear in Dr. R’s reports until 2015. There is little discussion or support in his reports to support a back brace providing pain relief, and there are little or no specific plans in Dr. R’s report for a TENS unit trial.

On the date of this medical contested case hearing, the ODG provides the following with regard to physical therapy for the low back:

Recommended. There is strong evidence that physical methods, including exercise and return to normal activities, have the best long-term outcome in employees with low back pain.

See also Exercise.ODG Physical Therapy Guidelines –

Allow for fading of treatment frequency (from up to 3 or more visits per week to 1 or less), plus active self-directed home PT. Also see other general guidelines that apply to all conditions under Physical Therapy in the ODG Preface, including assessment after a "six-visit clinical trial".

Lumbar sprains and strains:

10 visits over 8 weeks

Sprains and strains of unspecified parts of back:

10 visits over 5 weeks

Sprains and strains of sacroiliac region:

Medical treatment: 10 visits over 8 weeks

Lumbago; Backache, unspecified:

9 visits over 8 weeks

Intervertebral disc disorders without myelopathy:

Medical treatment: 10 visits over 8 weeks

Post-injection treatment: 1-2 visits over 1 week

Post-surgical treatment (discectomy/laminectomy): 16 visits over 8 weeks

Post-surgical treatment (arthroplasty): 26 visits over 16 weeks

Post-surgical treatment (fusion, after graft maturity): 34 visits over 16 weeks

Intervertebral disc disorder with myelopathy

Medical treatment: 10 visits over 8 weeks

Post-surgical treatment: 48 visits over 18 weeks

Spinal stenosis:

10 visits over 8 weeks

Sciatica; Thoracic/lumbosacral neuritis/radiculitis, unspecified:

10-12 visits over 8 weeks

Curvature of spine:

12 visits over 10 weeks

Fracture of vertebral column without spinal cord injury:

Medical treatment: 8 visits over 10 weeks

Post-surgical treatment: 34 visits over 16 weeks

Fracture of vertebral column with spinal cord injury:

Medical treatment: 8 visits over 10 weeks

Post-surgical treatment: 48 visits over 18 weeks

Torticollis:

12 visits over 10 weeks

Other unspecified back disorders:

12 visits over 10 weeks

Work conditioning (See also Procedure Summary entry):

10 visits over 8 weeks

Direction from physical and occupational therapy providers can play a role in this, with the evidence supporting active therapy and not extensive use of passive modalities. The most effective strategy may be delivering individually designed exercise programs in a supervised format (for example, home exercises with regular therapist follow-up), encouraging adherence to achieve high dosage, and stretching and muscle-strengthening exercises seem to be the most effective types of exercises for treating chronic low back pain. (Hayden, 2005) Studies also suggest benefit from early use of aggressive physical therapy (“sports medicine model”), training in exercises for home use, and a functional restoration program, including intensive physical training, occupational therapy, and psychological support. (Zigenfus, 2000) (Linz, 2002) (Cherkin-NEJM, 1998) (Rainville, 2002) Successful outcomes depend on a functional restoration program, including intensive physical training, versus extensive use of passive modalities. (Mannion, 2001) (Jousset, 2004) (Rainville, 2004) (Airaksinen, 2006) One clinical trial found both effective, but chiropractic was slightly more favorable for acute back pain and physical therapy for chronic cases. (Skargren, 1998) A spinal stabilization program is more effective than standard physical therapy sessions, in which no exercises are prescribed. With regard to manual therapy, this approach may be the most common physical therapy modality for chronic low back disorder, and it may be appropriate as a pain reducing modality, but it should not be used as an isolated modality because it does not concomitantly reduce disability, handicap, or improve quality of life. (Goldby-Spine, 2006) Better symptom relief is achieved with directional preference exercise. (Long, 2004)

As compared with no therapy, physical therapy (up to 20 sessions over 12 weeks) following disc herniation surgery was effective. Because of the limited benefits of physical therapy relative to "sham" therapy (massage), it is open to question whether this treatment acts primarily physiologically, but psychological factors may contribute substantially to the benefits observed. (Erdogmus, 2007) In this RCT, exercise and stretching, regardless of whether it is achieved via yoga classes or conventional PT supervision, helps improve low back pain. (Sherman, 2011) Compared with usual care, treatment of new LBP with early PT resulted in a statistically significant improvement in disability in a RCT with 220 participants. The PT involved only four sessions over 3 weeks, consisting of manipulation and exercise, among patients being seen for LBP in a primary care setting, and the effects persisted for one year. The authors suggest that the potential benefits of early physical therapy should be evaluated in light of the time and effort required to participate in physical therapy. (Fritz, 2015) See also specific physical therapy modalities, as well as Exercise; Work conditioning; Lumbar extension exercise equipment; McKenzie method; Stretching; Aquatic therapy; Group physical therapy. [Physical therapy is the treatment of a disease or injury using therapeutic exercise and other interventions that focus on improving posture, locomotion, strength, endurance, balance, coordination, joint mobility, flexibility, activities of daily living and alleviating pain. (BlueCross BlueShield, 2005) As for visits with any medical provider, physical therapy treatment does not preclude an employee from being at work when not visiting the medical provider, although time off may be required for the visit.]

Active Treatment versus Passive Modalities: The use of active treatment instead of passive modalities is associated with substantially better clinical outcomes. In a large case series of patients with acute low back pain treated by physical therapists, those adhering to guidelines for active rather than passive treatments incurred fewer treatment visits, cost less, and had less pain and less disability. The overall success rates were 64.7% among those adhering to the active treatment recommendations versus 36.5% for passive treatment. (Fritz, 2007) The most commonly used active treatment modality is Therapeutic exercises (97110), but other active therapies may be recommended as well, including Neuromuscular reeducation (97112), Manual therapy (97140), and Therapeutic activities/exercises (97530). A recent RCT comparing active spinal stabilization exercises (using the GDS or Godelive Denys-Struyf method) with passive electrotherapy using TENS plus microwave treatment (considered conventional physical therapy in Spanish primary care), concluded that treatment of nonspecific LBP using the GDS method provides greater improvements in the midterm (6 months) in terms of pain, functional ability, and quality of life. (Arribas, 2009) In this RCT, two active interventions, multidisciplinary rehab (intensive, bio-psychosocial PT) and exercise (exercises targeted at trunk muscles together with stretching and relaxation), reduced the probability of sickness absence, and were more effective for pain than self-care advice at 12 months. (Rantonen, 2012)

Patient Selection Criteria: Multiple studies have shown that patients with a high level of fear-avoidance do much better in a supervised physical therapy exercise program, and patients with low fear-avoidance do better following a self-directed exercise program. When using the Fear-Avoidance Beliefs Questionnaire (FABQ), scores greater than 34 predicted success with PT supervised care. (Fritz, 2001) (Fritz, 2002) (George, 2003) (Klaber, 2004) (Riipinen, 2005) (Hicks, 2005) Without proper patient selection, routine physical therapy may be no more effective than one session of assessment and advice from a physical therapist. (Frost, 2004) Patients exhibiting the centralization phenomenon during lumbar range of motion testing should be treated with the specific exercises (flexion or extension) that promote centralization of symptoms. When findings from the patient’s history or physical examination are associated with clinical instability, they should be treated with a trunk strengthening and stabilization exercise program. (Fritz-Spine, 2003) Practitioners must be cautious when implementing the wait-and-see approach for LBP, and once medical clearance has been obtained, patients should be advised to keep as active as possible. Patients presenting with high fear avoidance characteristics should have these concerns addressed aggressively to prevent long-term disability, and they should be encouraged to promote the resumption of physical activity. (Hanney, 2009)

Post-surgical (fusion) rehab: Following lumbar spinal fusion, delayed start of rehabilitation results in better outcomes, and improvements in the group starting at 12-weeks were 4 times better than that in the 6-week group. (Oestergaard, 2012)

Timing of PT initiation: Preliminary evidence suggests that early physical therapy may decrease cost without compromising outcomes. After initially screening 3855 articles, 14 studies were included in a systematic review. The majority of articles studied low back pain (only 2 articles studied cervical pain). For spinal pain, there was low-quality evidence that early versus delayed physical therapy was associated with decreased cost and decreased frequency of opioid prescriptions, advanced imaging, and surgeries. One subgroup analyzed showed improved function/disability with early physical therapy in an occupational health setting. These results suggest that it may be beneficial for physical therapist providers to be utilized early in an episode of care for a lumbar spinal disorder. (Ojha, 2016)

As with the requests for a back brace and TENS unit, the requests for physical therapywere for the purpose of providing “nonnarcotic treatment options to reduce and control [the claimant's] pain.” Dr. R did note in December, 2016 that his request for physical therapy was “a prerequisite to any interventional spine procedure.” He acknowledged that the denials were due to the age of the injury, but said he would “be happy to send [the claimant] to physical therapy” although he was “not optimistic” that it would be of much help to the claimant.

In regard to the requested medial branch blocks, they are being requested as the ODG-required diagnostic prerequisite for a new medial branch neurotomy. As discussed above, the neurotomy procedure has been shown, by actual experience with the claimant, to provide substantial and substantive relief from his chronic pain for in excess of the time required by the ODG for repeat neurotomies. The denials of this treatment by the utilization review and IRO doctors are based on incomplete records being provided to them, and on the difference between a peer review and the opinion of a doctor who has provided personal treatment to the claimant for 20 years and has seen the benefit of the neurotomies, which have a prerequisite of satisfactory medial branch blocks. Based on a careful review of the evidence presented in the hearing, the claimant has met his burden of overcoming the IRO decision in (Docket #1) by a preponderance of the evidence-based medicine, as well as documentation of the actual results of the treatment based on the requested diagnostic procedure. The preponderance of the evidence-based medicine is contrary to the decision of the IRO and, consequently, the claimant is entitled to left L3, L4, and L5 medial branch blocks.

Based on a careful review of the evidence presented in the hearing, the claimant failed to meet his burden of overcoming the IRO decision in (Docket #2) by a preponderance of the evidence-based medicine. The IRO decision in this case is based on the ODG and the evidence revealed that the claimant failed to meet all of the necessary criteria for a back brace and TENS unit. The preponderance of the evidence-based medicine is not contrary to the decision of the IRO and, consequently, the claimant is not entitled to a back brace and TENS unit.

Based on a careful review of the evidence presented in the hearing, the claimant failed to meet his burden of overcoming the IRO decision in (Docket #3) by a preponderance of the evidence-based medicine. The IRO decision in this case is based on the ODG and the evidence revealed that the claimant failed to meet all of the necessary criteria for an additional 8 physical therapy sessions. The preponderance of the evidence-based medicine is not contrary to the decision of the IRO and, consequently, the claimant is not entitled to an additional 8 physical therapy sessions.

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

  1. The parties stipulated to the following facts:
    1. Venue is proper in the (City) Field Office of the Workers’ Compensation Division of the Texas Department of Insurance.
    2. On (Date of Injury), the claimant was the employee of (Employer).
    3. On (Date of Injury), the claimant sustained compensable injuries to his neck and lumbar spine.
    4. On (Date of Injury), the employer provided workers’ compensation insurance with, Carrier.
    5. The IRO determined that the claimant is not entitled to left L3, L4, and L5 medial branch blocks.
    6. The IRO determined that the claimant is not entitled to a back brace and TENS unit.
    7. The IRO determined that the claimant is not entitled to an additional 8 physical therapy sessions.
  2. The carrier delivered to the claimant a single document stating the true corporate name of the carrier, and the name and street address of the carrier’s registered agent, which document was admitted into evidence as Hearing Officer’s Exhibit Number 2.
  3. Left L3, L4, and L5 medial branch blocks are health care reasonably required for the compensable injury of (Date of Injury).
  4. A back brace and TENS unit are not health care reasonably required for the compensable injury of (Date of Injury).
  5. An additional 8 physical therapy sessions are not health care reasonably required for the compensable injury of (Date of Injury).

CONCLUSIONS OF LAW

  1. The Workers’ Compensation Division of the Texas Department of Insurance has jurisdiction to hear this case.
  2. Venue is proper in the (City) Field Office.
  3. The preponderance of the evidence is contrary to the decision of the IRO that left L3, L4, and L5 medial branch blocks is not health care reasonably required for the compensable injury of (Date of Injury).
  4. The preponderance of the evidence is not contrary to the decision of the IRO that a back brace and TENS unit is not health care reasonably required for the compensable injury of (Date of Injury).
  5. The preponderance of the evidence is not contrary to the decision of the IRO that an additional 8 physical therapy sessions is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

In (Docket #1), the claimant is entitled to left L3, L4, and L5 medial branch blocks for the compensable injury on (Date of Injury).

In (Docket #2), the claimant is not entitled to a back brace and TENS unit for the compensable injury on (Date of Injury).

In (Docket #3), the claimant is not entitled to an additional 8 physical therapy sessions for the compensable injury on (Date of Injury).

ORDER

The carrier is liable for the left L3, L4, and L5 medial branch blocks at issue in this hearing in (Docket #1). The carrier is not liable for the back brace, TENS unit, or additional 8 physical therapy sessions at issue in this hearing in (Docket #2) and (Docket #3), respectively. The claimant remains entitled to medical benefits for the compensable injury in accordance with §408.021.

The true corporate name of the insurance carrier is TEXAS PPROPERTY & CASUALTY INSURANCE GUARANTY ASSOCIATION for LUMBERMENS MUTUAL CAUSALTY COMPANY, and the name and address of its registered agent for service of process is:

MARVIN KELLY, EXECUTIVE DIRECTOR

9120 BURNET ROAD

AUSTIN, TX 78758

Signed this 12th day of January, 2017.

William M. Routon II
Hearing Officer

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.

ISSUE

A contested case hearing was held on June 18, 2013, to decide the following disputed issue:

  1. Is the preponderance of the evidence contrary to the decision of the IRO that the Claimant is not entitled to Anterior Discectomy Interbody Fusion, Posterior Decompression at L5/S1 with 3 days Inpatient Hospital Stay for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Petitioner/Provider appeared and was represented by KB, M.D., attorney.

Claimant appeared and was represented by TD, attorney.

Respondent/Carrier appeared and was represented by DP, attorney.

BACKGROUND INFORMATION

The evidence presented in the hearing revealed that claimant sustained a compensable injury on (Date of Injury), when a motorcycle he was riding collided with another vehicle that turned in front of him. Claimant sustained injuries to his neck, shoulder, and low back. Claimant underwent a lumbar laminectomy and foraminotomy at L5-S1 on November 16, 2011. It is also noted that Claimant underwent a right total hip replacement in February, 2009, an anterior cervical discectomy and fusion at C5-6 and C6-7 in August, 2010. According to Dr. KB, a lumbar MRI on March 5, 2012, showed complete collapse and disc herniation at L5-S1 with disc herniation and bilateral foraminal stenosis. In addition, it was reported that on examination there was diminished sensation along the left L5 distribution and Claimant was recommended by Dr. B to undergo anterior interbody discectomy and interbody fusion.

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(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."

The ODG provides in pertinent part the following:

Discectomy/laminectomy

Recommended for indications below. Surgical discectomy for carefully selected patients with radiculopathy due to lumbar disc prolapse provides faster relief from the acute attack than conservative management, although any positive or negative effects on the lifetime natural history of the underlying disc disease are still unclear. Unequivocal objective findings are required based on neurological examination and testing. (Gibson-Cochrane, 2000) (Malter, 1996) (Stevens, 1997) (Stevenson, 1995) (BlueCross BlueShield, 2002) (Buttermann, 2004) For unequivocal evidence of radiculopathy, see AMA Guides. (Andersson, 2000) Standard discectomy and microdiscectomy are of similar efficacy in treatment of herniated disc. (Bigos, 1999) While there is evidence in favor of discectomy for prolonged symptoms of lumbar disc herniation, in patients with a shorter period of symptoms but no absolute indication for surgery, there are only modest short-term benefits, although discectomy seemed to be associated with a more rapid initial recovery, and discectomy was superior to conservative treatment when the herniation was at L4-L5. (Osterman, 2006) The SPORT studies concluded that both lumbar discectomy and nonoperative treatment resulted in substantial improvement after 2 years, but those who chose discectomy reported somewhat greater improvements than patients who elected nonoperative care. (Weinstein, 2006) (Weinstein2, 2006) A recent RCT compared decompressive surgery with nonoperative measures in the treatment of patients with lumbar spinal stenosis, and concluded that, although patients improved over the 2-year follow-up regardless of initial treatment, those undergoing decompressive surgery reported greater improvement regarding leg pain, back pain, and overall disability, but the relative benefit of initial surgical treatment diminished over time while still remaining somewhat favorable at 2 years. (Malmivaara, 2007) Patients undergoing lumbar discectomy are generally satisfied with the surgery, but only half are satisfied with preoperative patient information. (Ronnberg, 2007) If patients are pain free, there appears to be no contraindication to their returning to any type of work after lumbar discectomy. A regimen of stretching and strengthening the abdominal and back muscles is a crucial aspect of the recovery process. (Burnett, 2006) According to a major recent trial, early surgery (microdiscectomy) in patients with 6-12 weeks of severe sciatica caused by herniated disks is associated with better short-term outcomes, but at 1 year, disability outcomes of early surgery vs conservative treatment with eventual surgery if needed are similar. The median time to recovery was 4.0 weeks for early surgery and 12.1 weeks for prolonged conservative treatment. The authors concluded, "Patients whose pain is controlled in a manner that is acceptable to them may decide to postpone surgery in the hope that it will not be needed, without reducing their chances for complete recovery at 12 months. Although both strategies have similar outcomes after 1 year, early surgery remains a valid treatment option for well-informed patients." (Peul-NEJM, 2007) (Deyo-NEJM, 2007) A recent randomized controlled trial comparing decompression with decompression and instrumented fusion in patients with foraminal stenosis and single-level degenerative disease found that patients universally improved with surgery, and this improvement was maintained at 5 years. However, no obvious additional benefit was noted by combining decompression with an instrumented fusion. (Hallett, 2007) A recent British study found that lumbar discectomy improved patients’ self-reported overall physical health more than other elective surgeries. (Guilfoyle, 2007) Microscopic sequestrectomy may be an alternative to standard microdiscectomy. In this RCT, both groups showed dramatic improvement. (Barth, 2008) There is consistent evidence that for patients with a herniated disk, discectomy is associated with better short-term outcomes than continued conservative management, although outcomes begin to look similar after 3 to 6 months. This is a decision to be made with the patients, discussing the likelihood that they are going to improve either way but will improve faster with surgery. Similar evidence supports the use of surgery for spinal stenosis, although the outcomes look better with surgery out to about 2 years. (Chou, 2008) Standard open discectomy is moderately cost-effective compared with nonsurgical treatment, a new Spine Patient Outcomes Research Trial (SPORT) study shows. The costs per quality-adjusted life-year gained with surgery compared with nonoperative treatment, including work-related productivity costs, ranges from $34,355 to $69,403, depending on the cost of surgery. It is wise and proper to wait before initiating surgery, but if the patient continues to experience pain and is missing work, then the higher-cost option such as surgery may be worthwhile. (Tosteson, 2008) Note: Surgical decompression of a lumbar nerve root or roots may include the following procedures: discectomy or microdiscectomy (partial removal of the disc) and laminectomy, hemilaminectomy, laminotomy, or foraminotomy (providing access by partial or total removal of various parts of vertebral bone). Discectomy is the surgical removal of herniated disc material that presses on a nerve root or the spinal cord. A laminectomy is often involved to permit access to the intervertebral disc in a traditional discectomy.

Patient Selection: Microdiscectomy for symptomatic lumbar disc herniations in patients with a preponderance of leg pain who have failed nonoperative treatment demonstrated a high success rate based on validated outcome measures (80% decrease in VAS leg pain score of greater than 2 points), patient satisfaction (85%), and return to work (84%). Patients should be encouraged to return to their preinjury activities as soon as possible with no restrictions at 6 weeks. Overall, patients with sequestered lumbar disc herniations fared better than those with extruded herniations, although both groups consistently had better outcomes than patients with contained herniations. Patients with herniations at the L5-S1 level had significantly better outcomes than did those at the L4-L5 level. Lumbar disc herniation level and type should be considered in preoperative outcomes counseling. Smokers had a significantly lower return to work rate. In the carefully screened patient, lumbar microdiscectomy for symptomatic disc herniation results in an overall high success rate, patient satisfaction, and return to physically demanding activities. (Dewing, 2008) Workers' comp back surgery patients are at greater risk for poor lumbar discectomy outcomes than noncompensation patients. (DeBerard, 2008) In workers’ comp it is recommended to screen for presurgical biopsychosocial variables because they are important predictors of discectomy outcomes. (DeBerard, 2011)

Spinal Stenosis: For patients with lumbar spinal stenosis, standard posterior decompressive laminectomy alone (without discectomy) offers a significant advantage over nonsurgical treatment. Discectomy should be reserved for those conditions of disc herniation causing radiculopathy. (See Indications below.) Laminectomy may be used for spinal stenosis secondary to degenerative processes exhibiting ligamental hypertrophy, facet hypertrophy, and disc protrusion, in addition to anatomical derangements of the spinal column such as tumor, trauma, etc. (Weinstein, 2008) (Katz, 2008) A comparison of surgical and nonoperative outcomes between degenerative spondylolisthesis and spinal stenosis patients from the SPORT trial found that fusion was most appropriate for spondylolisthesis, with or without listhesis, and decompressive laminectomy alone most appropriate for spinal stenosis. (Pearson, 2010) See also Laminectomy.

Recent Research: Four-year results for the Dartmouth Spine Patient Outcomes Research Trial (SPORT, n= 1244) indicated that patients who underwent standard open discectomy for a lumbar disc herniation achieved significantly greater improvement than nonoperatively treated patients (using recommended treatments - active physical therapy, home exercise instruction, and NSAIDs) in all primary and secondary outcomes except work status (78.4% for the surgery group compared with 84.4%). Although patients receiving surgery did better generally, all patients in the study improved. Consequently, for patients who don't want an operation no matter how bad their pain is, this study suggests that they will improve and they will not have complications (e.g., paralysis) from nonoperative treatment, but those patients whose leg pain is severe and is limiting their function, who meet the ODG criteria for discectomy, can do better with surgery than without surgery, and the risks are extremely low. (Weinstein2, 2008) In most patients with low back pain, symptoms resolve without surgical intervention. (Madigan, 2009) This study showed that surgery for disc herniation was not as successful as total hip replacement but was comparable to total knee replacement in success. Pain was reduced to within 60% of normal levels, function improved to 65% normal, and quality of life was improved by about 50%. The study compared the gains in quality of life achieved by total hip replacement, total knee replacement, surgery for spinal stenosis, disc excision for lumbar disc herniation, and arthrodesis for chronic low back pain. (Hansson, 2008) For radiculopathy with herniated lumbar disc, there is good evidence that standard open discectomy and microdiscectomy are moderately superior to nonsurgical therapy for improvement in pain and function through 2 to 3 months, but patients on average experience improvement either with or without surgery, and benefits associated with surgery decrease with long-term follow-up. (Chou, 2009) According to a new study, surgery provides better results than non-surgical treatment for most patients with back pain related to a herniated disk, but not for those receiving workers’ compensation. (Atlas, 2010) Use of appropriateness criteria to guide treatment decisions for each clinical situation involving patients with low back pain and/or sciatica, with criteria based upon literature evidence, along with shared decision-making, was observed in one prospective study to improve outcomes in low back surgery. (Danon-Hersch, 2010) An updated SPORT trial analysis confirmed that outcomes of lumbar discectomy were better for patients who have symptoms of a herniated lumbar disc for six months or less prior to treatment. Increased symptom duration was related to worse outcomes following both operative and nonoperative treatment, but the relative increased benefit of surgery compared with nonoperative treatment was not dependent on the duration. (Rihn, 2011) Comparative effectiveness evidence from SPORT shows good value for standard open discectomy after an imaging-confirmed diagnosis of intervertebral disc herniation [as recommended in ODG], compared with nonoperative care over 4 years. (Tosteson, 2011)

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. A.L3 nerve root compression, requiring ONE of the following:
    1. L4 nerve root compression, requiring ONE of the following:
    2. L5 nerve root compression, requiring ONE of the following:
    3. S1 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. Severe unilateral quadriceps/anterior tibialis weakness/mild atrophy
  6. Mild-to-moderate unilateral quadriceps/anterior tibialis weakness
  7. Unilateral hip/thigh/knee/medial pain
  8. Severe unilateral foot/toe/dorsiflexor weakness/mild atrophy
  9. Mild-to-moderate foot/toe/dorsiflexor weakness
  10. Unilateral hip/lateral thigh/knee pain
  11. Severe unilateral foot/toe/plantar flexor/hamstring weakness/atrophy
  12. Moderate unilateral foot/toe/plantar flexor/hamstring weakness
  13. 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:
    1. Activity modification (not bed rest) after patient education (>= 2 months)
    2. Drug therapy, requiring at least ONE of the following:
    3. Support provider referral, requiring at least ONE of the following (in order of priority):
  6. NSAID drug therapy
  7. Other analgesic therapy
  8. Muscle relaxants
  9. Epidural Steroid Injection (ESI)
  10. Physical therapy (teach home exercise/stretching)
  11. Manual therapy (chiropractor or massage therapist)
  12. Psychological screening that could affect surgical outcome
  13. Back school (Fisher, 2004)

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

Fusion (spinal)

Not recommended for patients who have less than six months of failed recommended conservative care unless there is objectively demonstrated severe structural instability and/or acute or progressive neurologic dysfunction, but recommended as an option for spinal fracture, dislocation, spondylolisthesis or frank neurogenic compromise, subject to the selection criteria outlined in the section below entitled, “Patient Selection Criteria for Lumbar Spinal Fusion,” after 6 months of conservative care. For workers’ comp populations, see also the heading, “Lumbar fusion in workers' comp patients.” After screening for psychosocial variables, outcomes are improved and fusion may be recommended for degenerative disc disease with spinal segment collapse with or without neurologic compromise after 6 months of compliance with recommended conservative therapy. [For spinal instability criteria, see AMA Guides (Andersson, 2000)] For complete references, see separate document with all studies focusing on Fusion (spinal). There is limited scientific evidence about the long-term effectiveness of fusion for degenerative disc disease compared with natural history, placebo, or conservative treatment. Studies conducted in order to compare different surgical techniques have shown success for fusion in carefully selected patients. (Gibson-Cochrane, 2000) (Savolainen, 1998) (Wetzel, 2001) (Molinari, 2001) (Bigos, 1999) (Washington, 1995) (DeBarard-Spine, 2001) (Fritzell-Spine, 2001) (Fritzell-Spine, 2002) (Deyo-NEJM, 2004) (Gibson-Cochrane/Spine, 2005) (Soegaard, 2005) (Glassman, 2006) (Atlas, 2006) According to the recently released AANS/NASS Guidelines, lumbar fusion is recommended as a treatment for carefully selected patients with disabling low back pain due to one- or two-level degenerative disc disease after failure of an appropriate period of conservative care. This recommendation was based on one study that contained numerous flaws, including a lack of standardization of conservative care in the control group. At the time of the 2-year follow up it appeared that pain had significantly increased in the surgical group from year 1 to 2. Follow-up post study is still pending publication. In addition, there remains no direction regarding how to define the “carefully selected patient.” (Resnick, 2005) (Fritzell, 2004) A recently published well respected international guideline, the “European Guidelines,” concluded that fusion surgery for nonspecific chronic LBP cannot be recommended unless 2 years of all other recommended conservative treatments – including multidisciplinary approaches with combined programs of cognitive intervention and exercises – have failed, or such combined programs are not available, and only then in carefully selected patients with maximum 2-level degenerative disc disease. (Airaksinen, 2006) For chronic LBP, exercise and cognitive intervention may be equivalent to lumbar fusion without the potentially high surgical complication rates. (Ivar Brox-Spine, 2003) (Keller-Spine, 2004) (Fairbank-BMJ, 2005) (Brox, 2006) In acute spinal cord injury (SCI), if the spine is unstable following injury, surgical fusion and bracing may be necessary. (Bagnall-Cochrane, 2004) (Siebenga, 2006) A study on improving quality through identifying inappropriate care found that use of guideline-based Utilization Review (UR) protocols resulted in a denial rate for lumbar fusion 59 times as high as denial rates using non-guideline based UR. (Wickizer, 2004) The profit motive and market medicine have had a significant impact on clinical practice and research in the field of spine surgery. (Weiner-Spine, 2004) (Shah-Spine, 2005) (Abelson, 2006) Data on geographic variations in medical procedure rates suggest that there is significant variability in spine fusion rates, which may be interpreted to suggest a poor professional consensus on the appropriate indications for performing spinal fusion. (Deyo-Spine, 2005) (Weinstein, 2006) Outcomes from complicated surgical fusion techniques (with internal fixation) may be no better than the traditional posterolateral fusion. (van Tulder, 2006) (Maghout-Juratli, 2006) Despite the new technologies, reoperation rates after lumbar fusion have become higher. (Martin, 2007) According to the recent Medicare Coverage Advisory Committee Technology Assessment, the evidence for lumbar spinal fusion does not conclusively demonstrate short-term or long-term benefits compared with nonsurgical treatment for elderly patients. (CMS, 2006) When lumbar fusion surgery is performed, either with lateral fusion alone or with interbody fusion, unlike cervical fusion, there is no absolute contraindication to patients returning even to contact sports after complete recovery from surgery. Like patients with a thoracic injury, those with a lumbar injury should be pain free, have no disabling neurological deficit, and exhibit evidence of bone fusion on x-ray films before returning. (Burnett, 2006) A recent randomized controlled trial comparing decompression with decompression and instrumented fusion in patients with foraminal stenosis and single-level degenerative disease found that patients universally improved with surgery, and this improvement was maintained at 5 years. However, no obvious additional benefit was noted by combining decompression with an instrumented fusion. (Hallett, 2007) Discography may be supported if the decision has already been made to do a spinal fusion, and a negative discogram could rule out the need for fusion on that disc (but a positive discogram in itself would not justify fusion). Discography may help distinguish asymptomatic discs among morphologically abnormal discs in patients without psychosocial issues. Precise prospective categorization of discographic diagnoses may predict outcomes from treatment, surgical or otherwise. (Derby, 2005) (Derby2, 2005) (Derby, 1999) New research shows that healthcare expenditures for back and neck problems have increased substantially over time, but with little improvement in healthcare outcomes such as functional disability and work limitations. Rates of imaging, injections, opiate use, and spinal surgery have increased substantially over the past decade, but it is unclear what impact, if any, this has had on health outcomes. (Martin, 2008) The efficacy of surgery for nonspecific back pain is uncertain. There may be some patients for whom surgery, fusion specifically, might be helpful, but it is important for doctors to discuss the fact that surgery doesn't tend to lead to huge improvements on average, about a 10- to 20-point improvement in function on a 100-point scale, and a significant proportion of patients still need to take pain medication and don't return to full function. (Chou, 2008) This study showed that fusion for chronic lower back pain was the least successful common orthopedic surgery. The study compared the gains in quality of life achieved by total hip replacement, total knee replacement, surgery for spinal stenosis, disc excision for lumbar disc herniation, and arthrodesis for chronic low back pain. For chronic lower back pain, improvements were statistically significant but clinically negligible. Although pain was reduced and function improved slightly, outcomes remained in the moderately affected range, quality of life was not improved and rendered worse, on average. While surgery for spinal stenosis and for disc herniation compare well with archetypical orthopedic operations, the outcomes of surgery for chronic lower back pain do not even approach those of other orthopedic procedures, and the data show that patients with back pain are rendered worse off by surgery. (Hansson, 2008) Recent studies document a 220% increase in lumbar spinal fusion surgery rates, without demonstrated improvements in patient outcomes or disability rates. (Deyo, 2009) In a study of 2,378 Washington State workers' compensation claimants who underwent fusion to assess the frequency, timing, and causes of death, the 3-year cumulative mortality rate post-fusion was 1.93% and analgesic-related deaths were responsible for 21% of all deaths and 31.4% of all potential life lost. (Juratli, 2009) A study to compare the surgical experience, clinical outcomes, and effect on body weight between obese and morbidly obese patients undergoing lumbar spine fusion surgery concluded that clinical outcomes were independent of the BMI of the patient, but the incidence of postoperative complications was significant in 45% of morbidly obese and 44% of obese patients. The authors proposed that morbidly obese patients should undergo bariatric surgery before spine surgery in nonemergent situations. (Vaidya, 2009) For nonradicular low back pain with common degenerative changes, there is fair evidence that fusion is no better than intensive rehabilitation with a cognitive-behavioral emphasis for improvement in pain or function, and less than half of patients experience optimal outcomes (defined as no more than sporadic pain, slight restriction of function, and occasional analgesics) following fusion. (Chou, 2009) Posterolateral bone-grafting fusion is not necessary when a Denis type-B thoracolumbar burst fracture associated with a load-sharing score of <or=6 is treated with short-segment pedicle screw fixation. (Dai, 2009) Discography (and not merely the fusion) may actually be the cause of adjacent segment disc degeneration. This study suggested that the phenomenon of accelerated adjacent segment degeneration adjacent to fusion levels may be, in part, explained by previous disc puncture if discography was used in segments adjacent to the fusion. (Carragee, 2009) Among Medicare recipients, the frequency of complex fusion procedures for spinal stenosis increased 15-fold in just 6 years. The introduction and marketing of new surgical devices and financial incentives may stimulate more invasive surgery. (Deyo-JAMA, 2010) Results of this study suggest that postmenopausal female patients who underwent lumbar spinal instrumentation fusion were susceptible to subsequent vertebral fractures within 2 years after surgery (in 24% of patients). (Toyone, 2010) A four-year follow-up of an RCT of instrumented transpedicular fusion versus cognitive intervention and exercises for disc degeneration with chronic low back pain concluded that this invasive and high-cost procedure does not afford better outcomes compared with the conservative treatment approach to low back pain, and this study should give doctors pause when recommending lumbar fusion surgery without compelling indications, particularly when strong back rehabilitation programs are available. (Brox, 2010) The ECRI health technology assessment concluded that the evidence is insufficient to support lumbar fusion being more effective (to a clinically meaningful degree) than nonsurgical treatments (intensive exercise and rehabilitation plus cognitive behavioral therapy) in patients with and without prior surgery. (ECRI, 2007) There is a high rate of complications (56.4%) in spinal fusion procedures, especially related to instrumentation. (Campbell, 2011) The draft AHRQ Comparative Effectiveness Research concluded that limited data suggests that fusion leads to greater improvement in back pain relief and function than physical therapy at 2-year followup, but whether the difference is clinically significant is unclear, and serious adverse events occurred in the fusion group but not the noninvasive-intervention group. (Clancy, 2012) Lumbar spinal fusion surgeries use bone grafts, and are sometimes combined with metal devices, to produce a rigid connection between two or more adjacent vertebrae. The therapeutic objective of spinal fusion surgery for patients with low back problems is to prevent any movement in the intervertebral spaces between the fused vertebrae, thereby reducing pain and any neurological deficits. See also Adjacent segment disease/degeneration (fusion) & Iliac crest donor-site pain treatment.

Lumbar fusion in workers' comp patients: In cases of workers' compensation, patient outcomes related to fusion may have other confounding variables that may affect overall success of the procedure, which should be considered. Until further research is conducted there remains insufficient evidence to recommend fusion for chronic low back pain in the absence of stenosis and spondylolisthesis, and this treatment for this condition remains “under study.” It appears that workers’ compensation populations require particular scrutiny when being considered for fusion for chronic low back pain, as there is evidence of poorer outcomes in subgroups of patients who were receiving compensation or involved in litigation. (Fritzell-Spine, 2001) (Harris-JAMA, 2005) (Maghout-Juratli, 2006) (Atlas, 2006) Despite poorer outcomes in workers’ compensation patients, utilization is much higher in this population than in group health. (Texas, 2001) (NCCI, 2006) Presurgical biopsychosocial variables predict patient outcomes from lumbar fusion, which may help improve patient selection. Workers' compensation status, smoking, depression, and litigation were the most consistent presurgical predictors of poorer patient outcomes. Other predictors of poor results were number of prior low back operations, low household income, and older age. (DeBerard-Spine, 2001) (DeBerard, 2003) (Deyo, 2005) (LaCaille, 2005) (Trief-Spine, 2006) Obesity and litigation in workers' compensation cases predict high costs associated with interbody cage lumbar fusion. (LaCaille, 2007) A recent study of 725 workers' comp patients in Ohio who had lumbar fusion found only 6% were able to go back to work a year later, 27% needed another operation, and over 90% were in enough pain that they were still taking narcotics at follow-up. (Nguyen, 2007) A recent case-control study of lumbar fusion outcomes in worker’s compensation (WC) patients concluded that only 9% of patients receiving WC achieved substantial clinical benefit compared to 33% of those not receiving WC. (Carreon, 2009) This large historical cohort study suggests that lumbar fusion may not be an effective operation in workers’ compensation patients with disc degeneration, disc herniation, and/or radiculopathy, and it is associated with significant increase in disability, opiate use, prolonged work loss, and poor RTW status. (Nguyen, 2011) After controlling for covariates known to affect lumbar fusion outcomes, patients on workers' comp have significantly less improvement. (Carreon, 2010) The presidents of AAOS, NASS, AANS, CNS, and SAS issued a joint statement to BlueCross BlueShield recommending patient selection criteria for lumbar fusion in degenerative disc disease. The criteria included at least one year of physical and cognitive therapy, inflammatory endplate changes (i.e., Modic changes), moderate to severe disc space collapse, absence of significant psychological comorbidities (e.g. depression, somatization disorder), and absence of litigation or compensation issues. The criteria of denying fusion if there are compensation issues may apply to workers' compensation patients. (Rutka, 2011) On the other hand, a separate policy statement from the International Society for the Advancement of Spine Surgery disagrees that worker’s compensation should be a contraindication for lumbar fusion. (ISASS, 2011) This study demonstrated a significant difference in outcomes after lumbar spinal fusion between workers' comp populations and those on long-term disability insurance. Both populations only achieved marginal improvement, but workers' comp had a clear, negative influence on outcome even when compared to disability patients. (Gum, 2012)

Lumbar fusion for spondylolisthesis: Recommended as an option for spondylolisthesis. Patients with increased instability of the spine after surgical decompression at the level of degenerative spondylolisthesis are candidates for fusion. (Eckman, 2005) This study found only a 27% success from spinal fusion in patients with low back pain and a positive single-level low-pressure provocative discogram, versus a 72% success in patients having a well-accepted single-level lumbar pathology of unstable spondylolisthesis. (Carragee, 2006) Unilateral instrumentation used for the treatment of degenerative lumbar spondylolisthesis is as effective as bilateral instrumentation. (Fernandez-Fairen, 2007) Patients with degenerative spondylolisthesis and spinal stenosis who undergo standard decompressive laminectomy (with or without fusion) showed substantially greater improvement in pain and function during a period of 2 years than patients treated nonsurgically, according to the recent results from the Spine Patient Outcomes Research Trial (SPORT). (Weinstein-spondylolisthesis, 2007) (Deyo-NEJM, 2007) For degenerative lumbar spondylolisthesis, spinal fusion may lead to a better clinical outcome than decompression alone. No conclusion about the clinical benefit of instrumenting a spinal fusion can be made, but there is moderate evidence that the use of instrumentation improves the chance of achieving solid fusion. (Martin, 2007) A recent systematic review of randomized trials comparing lumbar fusion surgery to nonsurgical treatment of chronic back pain associated with lumbar disc degeneration, concluded that surgery may be more efficacious than unstructured nonsurgical care but may not be more efficacious than structured cognitive-behavior therapy. Methodological limitations of the randomized trials prevented firm conclusions. (Mirza, 2007) A comparison of surgical and nonoperative outcomes between degenerative spondylolisthesis and spinal stenosis patients from the SPORT trial found that fusion was most appropriate for spondylolisthesis, with or without listhesis, and decompressive laminectomy alone most appropriate for spinal stenosis. (Pearson, 2010) The latest SPORT study concluded that leg pain is associated with better surgical fusion outcomes in spondylolisthesis than low back pain. (Pearson, 2011) Comparative effectiveness evidence from SPORT shows good value for laminectomy and/or bilateral single-level fusion after an imaging-confirmed diagnosis of degenerative spondylolisthesis [as recommended in ODG], compared with nonoperative care over 4 years. (Tosteson, 2011)

Lumbar fusion for Scheuermann's kyphosis: Recommended as an option for adult patients with severe deformities (e.g. more than 70 degrees for thoracic kyphosis), neurological symptoms exist, and pain cannot be adequately resolved non-operatively (e.g. physical therapy, back exercises). Good outcomes have been found in a relatively large series of patients undergoing either combined anterior-posterior or posterior only fusion for Scheuermann's kyphosis. (Lonner, 2007)

Patient Selection Criteria for Lumbar Spinal Fusion:

For chronic low back problems, fusion should not be considered within the first 6 months of symptoms, except for fracture, dislocation or progressive neurologic loss. Indications for spinal fusion may include:

  1. Neural Arch Defect - Spondylolytic spondylolisthesis, congenital neural arch hypoplasia.
  2. Segmental Instability (objectively demonstrable) - Excessive motion, as in degenerative spondylolisthesis, surgically induced segmental instability and mechanical intervertebral collapse of the motion segment and advanced degenerative changes after surgical discectomy, with relative angular motion greater than 20 degrees. (Andersson, 2000) (Luers, 2007)]
  3. Primary Mechanical Back Pain (i.e., pain aggravated by physical activity)/Functional Spinal Unit Failure/Instability, including one or two level segmental failure with progressive degenerative changes, loss of height, disc loading capability. In cases of workers’ compensation, patient outcomes related to fusion may have other confounding variables that may affect overall success of the procedure, which should be considered. There is a lack of support for fusion for mechanical low back pain for subjects with failure to participate effectively in active rehab pre-op, total disability over 6 months, active psych diagnosis, and narcotic dependence. Spinal instability criteria includes lumbar inter-segmental movement of more than 4.5 mm. (Andersson, 2000)
  4. Revision Surgery for failed previous operation(s) if significant functional gains are anticipated. Revision surgery for purposes of pain relief must be approached with extreme caution due to the less than 50% success rate reported in medical literature.
  5. Infection, Tumor, or Deformity of the lumbosacral spine that cause intractable pain, neurological deficit and/or functional disability.
  6. After failure of two discectomies on the same disc, fusion may be an option at the time of the third discectomy, which should also meet the ODG criteria. (See ODG Indications for Surgery -- Discectomy.)

Pre-Operative Surgical Indications Recommended: Pre-operative clinical surgical indications for spinal fusion should include all of the following:

  1. All pain generators are identified and treated; &
  2. All physical medicine and manual therapy interventions are completed; &
  3. X-rays demonstrating spinal instability and/or myelogram, CT-myelogram, or discography (see discography criteria) & MRI demonstrating disc pathology correlated with symptoms and exam findings; &
  4. Spine pathology limited to two levels; &
  5. Psychosocial screen with confounding issues addressed.
  6. For any potential fusion surgery, it is recommended that the injured worker refrain from smoking for at least six weeks prior to surgery and during the period of fusion healing. (Colorado, 2001) (BlueCross BlueShield, 2002)

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

Fusion, endoscopic

Not recommended. At best, endoscopic spinal fusion should be limited to conditions outlined for open fusion above (spinal fracture, dislocation, or spondylolisthesis). (Knight-Spine, 2003) (Aryan, 2009) Endius, Inc., Plainville, MA, produces the FDA-approved Atavi™ Atraumatic Spine Fusion System. NuVasive, San Diego, CA, offers the XLIF® procedure for lumbar fusion to overcome the obstacles of anterior and posterior fusion. This minimally invasive lateral access method may provide benefits to patients compared to traditional fusion, including reduced surgery time, less blood loss, shorter hospital stays, and significantly faster recovery time. Return to normal activities is suggested to be 4-6 weeks after XLIF versus 6 months or longer with traditional lumbar fusion. XLIF has a unique set of complications, including neural injuries, psoas weakness, and thigh numbness. Additional studies are required to further evaluate and monitor the short and long-term safety, efficacy, outcomes, and complications of XLIF procedures. (Arnold, 2012)

Not recommended for low back pain in the absence of major trauma (i.e., acute spinal fracture, spinal cord injury, or nerve root injury), acute or progressive neurologic deficit, or the patient’s inability to manage basic ADLs at home and alternative placement in a Skilled Nursing Facility is not available or appropriate. These recommendations are based on medical practice and are consistent with other evidence-based guidelines. (Washington, 2002) (ICSI, 2004)

Criteria for Hospital Admissions:

  1. I.Acute Major Back Trauma is Suspected:Back injury occurred within the past 7 days; & Major trauma was sustained (e.g., fall from a height or back crushed by heavy object); & Examining physician documents or suspects acute spinal fracture, spinal cord injury, or nerve root injury. Hospital Admission Criteria: May be individualized.
  2. II.Acute Major Back Trauma Not Suspected; Patient Has Neurologic Findings Suspected to be Acute or Progressive: No history of recent major injury; & Patient complains of symptoms suggesting acute or progressive neurologic deficit [typically these include: (1) progressive weakness or numbness in one leg (and occasionally both legs), or (2) loss of control of bowel or bladder function, or (3) progressive numbness in the perineal region]; & The examining physician indicates that the patient has (or probably has) an acute or progressive neurologic deficit. Hospital Admission Criteria: If a patient has a new or progressive neurologic deficit, he/she may be hospitalized in order to facilitate surgical decision-making, to provide close observation of further progression, or to help the patient compensate for neurological deficits (e.g., to determine whether the patient needs to learn intermittent catheterization). If a patient does NOT have a new or progressive neurologic deficit, the only valid reason for hospitalization is that he/she cannot manage basic ADLs at home. Duration of hospitalization should be brief. The great majority of these patients who are admitted to a hospital can be discharged in 1 to 3 days (if spine surgery is not performed). Prolonged bed rest usually does more harm than good in a patient with low back pain. Admission for the purpose of bed rest is not acceptable.
  3. III.Acute Major Back Trauma Not Suspected; Patient Has Back Pain without Evidence of Acute or Progressive Neurologic Findings: No history of recent major trauma; & Patient complains of back pain with or without symptoms in the legs (occasionally patients will complain mainly of symptoms in the legs but the evaluating physician concludes that symptoms are not caused by lumbar radiculopathy); & No evidence of acute or progressive neurologic deficit. Hospital Admission Criteria: The primary valid reason for hospitalizing these patients is that they cannot manage basic ADLs at home. Example, the patient lives alone and is unable to get to the bathroom. If a patient is admitted through the emergency department, the decision to admit should be made with the concurrence of the attending physician, unless the attending physician cannot be reached. Duration of hospitalization should be brief. The great majority of these patients who are admitted to a hospital can be discharged in less than 24 hours. Admission for the purpose of bed rest or traction alone is not acceptable. The need for parenteral narcotics is a valid admission criteria. A patient should not be admitted to a hospital that does not have the capacity to assess ADLs, develop a treatment plan, and provide physical therapy within the first 24 hours. For hospital LOS after admission criteria are met, see Hospital length of stay (LOS).

Hospital length of stay (LOS)

Recommend the median length of stay (LOS) based on type of surgery, or best practice target LOS for cases with no complications. For prospective management of cases, median is a better choice that [sic] mean (or average) because it represents the mid-point, at which half of the cases are less, and half are more. For retrospective benchmarking of a series of cases, mean may be a better choice because of the effect of outliers on the average length of stay. Length of stay is the number of nights the patient remained in the hospital for that stay, and a patient admitted and discharged on the same day would have a length of stay of zero. The total number of days is typically measured in multiples of a 24-hour day that a patient occupies a hospital bed, so a 23-hour admission would have a length of stay of zero. (HCUP, 2011) Of recent lumbar discectomy cases, 62% underwent an inpatient hospital stay after surgery, whereas 38% had outpatient surgery, and outpatients had lower overall complication rates than those treated as inpatients. (Pugely, 2013)

ODG hospital length of stay (LOS) guidelines:

Discectomy (icd 80.51 - Excision of intervertebral disc)

Actual data -- median 1 day; mean 2.1 days (± 0.0); discharges 109,057; charges (mean) $26,219

Best practice target (no complications) -- Outpatient

Laminectomy (icd 03.09 - Laminectomy/laminotomy for decompression of spinal nerve root)

Actual data -- median 2 days; mean 3.5 days (±0.1); discharges 100,600; charges (mean) $34,978

Best practice target (no complications) -- 1 day

Note: About 6% of discharges paid by workers’ compensation.

Lumbar Fusion, posterior (icd 81.08 - Lumbar and lumbosacral fusion, posterior technique)

Actual data -- median 3 days; mean 3.9 days (±0.1); discharges 161,761; charges (mean) $86,900

Best practice target (no complications) -- 3 days

Note: About 15% of discharges paid by workers’ compensation.

Lumbar Fusion, anterior (icd 81.06 - Lumbar and lumbosacral fusion, anterior technique)

Actual data -- median 3 days; mean 4.2 days (±0.2); discharges 33,521; charges (mean) $110,156

Best practice target (no complications) -- 3 days

Lumbar Fusion, lateral (icd 81.07 - Lumbar fusion, lateral transverse process technique)

Actual data -- median 3 days; mean 3.8 days (±0.2); discharges 15,125; charges (mean) $89,088

Best practice target (no complications) -- 3 days

Thoracic Fusion, posterior (81.05 - Dorsal and dorsolumbar fusion, posterior technique)

Actual data -- median 6 days; mean 8.1 days (±0.2); discharges 20,239; charges (mean) $159,420

Best practice target (no complications) -- 5 days

Artificial disc (84.65 - Insertion of total spinal disc prosthesis, lumbosacral)

Actual data -- median 3 days; mean 2.6 days (±0.1); discharges 1,653; charges (mean) $65,041

Best practice target (no complications) -- Never recommended

Note: About 30% of discharges paid by workers’ compensation.

Artificial disc revision (84.68 – Revision/replacement artificial spinal disc prosthesis, lumbar)

Actual data -- median 3 days; mean 4.4 days (±0.8); discharges 169; charges (mean) $58,355

Best practice target (no complications) -- Never recommended

X-Stop (84.80 - Insertion or replacement of interspinous process device)

Actual data -- median 1 days; mean 1.8 days (±0.1); discharges 4,177; charges (mean) $47,339

Best practice target (no complications) -- Never recommended

Kyphoplasty (81.66 - Percutaneous vertebral augmentation)

Actual data -- median 4 days; mean 5.4 days (±0.2); discharges 23,458; charges (mean) $46,593

Best practice target (no complications) -- 3 days

Vertebroplasty (81.65 - Percutaneous vertebroplasty)

Actual data -- median 5 days; mean 6.3 days (±0.2); discharges 13,694; charges (mean) $37,444

Best practice target (no complications) -- 3 days

IDET (80.54 - Other and unspecified repair of the annulus fibrosus)

Actual data -- no overnight stays

Best practice target (no complications) -- Never recommended

PIRFT (80.59 - Other destruction of intervertebral disc)

Actual data -- median 3 days; mean 6.6 days (±1.8); discharges 196; charges (mean) $41,249

Best practice target (no complications) -- Never recommended

SCS (03.93 Implantation or replacement of spinal neurostimulator leads)

Actual data -- median 1 day; mean 2.3 days (±0.2); discharges 3,998; charges (mean) $68,730

Best practice target (no complications) -- 1 day

Intrathecal Pump (86.06 - Insertion of totally implantable infusion pump)

Actual data -- median 3 days; mean 5.4 days (±0.4); discharges 6,995; charges (mean) $62,325

Best practice target (no complications) -- 3 days

Fracture of vertebral column (03.53 - Repair of vertebral fracture)

Actual data -- median 9 days; mean 13.4 days (±0.6); discharges 3,458; charges (mean) $156,940

Best practice target (no complications) -- 9 days

Decompression

Decompression

Definition: Decompression may be a surgical procedure that is performed to alleviate pain caused by pinched nerves (neural impingement). There are two common types of spine surgery decompression procedures: Microdiscectomy or Open decompression (Discectomy/Laminectomy). See Discectomy; & Microdiscectomy. When decompression therapy is used as a general term, See Powered traction devices; IDD Therapy (Intervertebral Disc Decompression); Traction; Vertebral axial decompression (VAX-D); Percutaneous diskectomy; & Nucleoplasty.

Dr. KB, a board certified orthopedic surgeon, and Petitioner/Provider, testified that the IRO had missed the complete collapse at L5-S1 because it is not indicated on the radiology report. In addition, Dr. B noted that Claimant had undergone a psychological evaluation in 2009, which should be sufficient to meet the criteria for the proposed surgical procedures.

The IRO indicated there was no evidence of motion segment instability as documented by flexion/extension views and no pre-surgical psychological evaluation addressing confounding issues was documented. In addition, it was reported that there was reference to the Claimant’s tobacco use in medical documents provided but no explanation was given by Dr. B and the Claimant did not provide any testimony regarding his tobacco use. Lastly, it was determined that any fusion procedure at L5-S1 will create increased stresses at the adjacent levels which were already abnormal. It was also noted there was no instability or evidence of fracture on the imaging studies and all pain generators had not been identified or treated. There was no documentation of epidural steroid injections and no recent documentation of any anti-inflammatory muscle relaxants. Based upon these clinical data medical necessity was not established for the proposed surgical procedure.

Dr. VH conducted a preauthorization review for anterior discectomy and interbody fusion, posterior decompression at L5-S1 with 3 day inpatient hospital stay on April 16, 2012. Dr. VH recommended non-authorization because the decompressive surgery performed on November 16, 2011, allegedly did foramen enlargement. However, Dr. VH noted the MRI conducted on March 15, 2013, showed osteophytes and foraminal narrowing residuals. In addition, the L4-5 level now has a size 7mm and L3-4 was interpreted by the radiologist to be borderline stenotic.

The medical documentation and testimony was insufficient to establish that the medical treatment requested was medically necessary. Therefore, the Petitioner and Claimant have failed to meet their burden that the decision of the IRO should be reversed that Claimant is not entitled to Anterior Discectomy Interbody Fusion, Posterior Decompression at L5/S1 with 3 days Inpatient Hospital Stay 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.

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), Claimant sustained a compensable injury.
  2. Carrier delivered to Claimant and Provider 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. Anterior Discectomy Interbody Fusion, Posterior Decompression at L5/S1 with 3 days Inpatient Hospital Stay is not health care reasonably required for the compensable injury of (Date of Injury).

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 decision of the IRO that the Anterior Discectomy Interbody Fusion, Posterior Decompression at L5/S1 with 3 days Inpatient Hospital Stay is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is not entitled to Anterior Discectomy Interbody Fusion, Posterior Decompression at L5/S1 with 3 days Inpatient Hospital Stay for the compensable injury of (Date of Injury).

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)

(ADDRESS)

(CITY), TEXAS (ZIPCODE)

Signed this 21st day of October, 2013.

Jacqueline Harrison
Hearing Officer

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 medical contested case hearing (MCCH) was held on May 10, 2013 to decide the following disputed issue:

Is Self-Insured subject to liability under the Texas Workers’ Compensation Act for modifications under the Americans with Disabilities Act (ADA) requested by Claimant?

Following a request from Claimant and upon a finding of good cause, the issue, above, was amended as follows:

Is Self-Insured subject to liability under the Texas Workers’ Compensation Act for home modifications requested by Claimant?

PARTIES PRESENT

Claimant’s wife, BD, holds a power of attorney over Petitioner/Claimant’s affairs. She appeared at the MCCH and was assisted by AW, ombudsman. Respondent/Self-Insured appeared and was represented by WS, attorney.

BACKGROUND INFORMATION

The evidence presented in the hearing revealed that Claimant sustained a compensable injury on (Date of Injury) and that, as a result of this injury, Claimant is dependent upon the use of a wheelchair for mobility purposes. In order to make their home more accessible to Claimant, Claimant’s wife paid for certain home improvements. The evidence indicated that Self-Insured reimbursed Claimant for a total of $16,301.79 for these improvements. In seeking additional reimbursement for the home modifications at issue in this case, Claimant’s wife, who holds power of attorney over Claimant’s affairs, filed a DWC Form-060 (“Medical Fee Dispute Resolution Request/Response”), which was received by the Division on March 30, 2010. A source of confusion in this case appeared to be the reference to upgrades and a request for payment based on home living area and structural percentages under the Americans with Disabilities Act (ADA). The ADA reference appears to be derived from information provided in a letter dated October 21, 2009 from Ralph Martinez with Custom Residential Design & Remodeling in San Antonio. See Self-Insured’s Exhibit CR-CC. The evidence presented, particularly Carrier’s Exhibit CR-BB, was compelling that the ADA does not apply to the home modifications at issue in this case. The ADA provides “civil rights protections to individuals with disabilities” and also “guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, State and local government services, and telecommunications.” See Self-Insured’s Exhibit CR-BB, p. 1. The ADA does not, however, cover strictly residential private homes. See Self-Insured’s Exhibit CR-BB, p. 19. The evidence available indicates that the reference to the ADA as part of the request for additional reimbursement in this case was made by Claimant’s wife as the result of a good-faith misunderstanding.

The issue to be addressed in this case is whether Self-Insured is subject to liability under the Texas Workers’ Compensation Act (the Act) for the home modifications requested by Claimant. This issue is purely jurisdictional – to ascertain whether the Division has the legal authority to determine Self-Insured’s liability for the home modifications – and a decision on Self-Insured’s actual liability, if any, for reimbursement of those home modifications will not be made in this decision.

The following provisions of the Act were found to be of particular relevance to the jurisdictional determination to be made in this case. Texas Labor Code Section 401.011(19) defines “health care” as including “all reasonable and necessary medical aid, medical examinations, medical treatments, medical diagnoses, medical evaluations, and medical services. The term does not include vocational rehabilitation. The term includes:

  1. (A)medical, surgical, chiropractic, podiatric, optometric, dental, nursing, and physical therapy services provided by or at the direction of a doctor;
  2. (B)physical rehabilitation services performed by a licensed occupational therapist provided by or at the direction of a doctor;
  3. (C)psychological services prescribed by a doctor;
  4. (D)the services of a hospital or other health care facility;
  5. (E)a prescription drug, medicine, or other remedy; and
  6. (F)a medical or surgical supply, appliance, brace, artificial member, or prosthetic or orthotic device, including the fitting of, change or repair to, or training in the use of the appliance, brace, member, or device.”
  7. (G)“Medical benefit” is defined at Texas Labor Code Section 401.011(31) to mean “payment for health care reasonably required by the nature of a compensable injury and intended to:
  8. (H)cure or relieve the effects naturally resulting from the compensable injury, including reasonable expenses incurred by the employee for necessary treatment to cure and relieve the employee from the effects of an occupational disease before and after the employee knew or should have known the nature of the disability and its relationship to the employment;
  9. (I)promote recovery; or
  10. (J)enhance the ability of the employee to return to or retain employment.
  11. (K)Texas Labor Code Section 408.021 (“Entitlement to Medical Benefits”) provides at subsection (a) that, “[a]n employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. The employee is specifically entitled to health care that:
  12. cures or relieves the effects naturally resulting from the compensable injury;
  13. promotes recovery; or
  14. enhances the ability of the employee to return to or retain employment.”
  15. The version of Division Rule 133.307 (“MDR of Fee Disputes”) in effect at the time Claimant’s DWC Form-060 was filed in March 2010 provided as follows in pertinent part at subsection (a) – “Applicability. The applicability of this section is as follows.
  16. This section applies to a request for medical fee dispute resolution for non-network or certain authorized out-of-network health care not subject to a contract, that is remanded to the Division or filed on or after May 25, 2008.”

The key inquiry in this case is whether the home modifications requested on behalf of Claimant constitute “health care” or a “medical benefit” as defined by the Act. In support of his position on jurisdiction in this case, Claimant offered two decisions from the State Office of Administrative Hearings (SOAH)[1] concerning disputes over a Carrier’s liability for home modifications in workers’ compensation cases. One of the decisions was in Docket No. 453-04-6044.M2 by SOAH Administrative Law Judge (ALJ) Thomas H. Walston. That case also dealt with home modifications requested to accommodate the wheelchair of an injured employee. ALJ Walston construed the Act as not excluding such modifications from the definition of “health care” at Texas Labor Code Section 401.011(19). He also determined that no Texas cases had addressed the question of whether home modifications of this nature constituted “health care” under the Act. He cited a number of out-of-state cases dealing with this issue. Among that case law was an Oregon case finding that home modifications for a quadriplegic were “compensable medical services” under a state act providing for “prosthetic appliances, braces, and supports.” The court in that case wrote that “ . . . structural modifications are an extension of the wheelchair itself, without which the wheelchair could not serve as the tool it was intended to serve. Without the structural modifications, a wheelchair could not assist a person without the use of his or her legs to be independently mobile in the home.” See SAIF Corp. v. Glubrecht, 967 P.2d 490 (Ore. App. 1998). A North Carolina case cited by ALJ Walston found that wheelchair-accessible housing came under the “statutory scope of ‘other treatment or care’” and that, “[w]hen structural modification to existing housing is not feasible, ‘other treatment or care’ may include a duty to furnish alternate, wheelchair accessible housing.” See Derebery v. Pitt County Fire Marshall, 347 S.E.2d 814 (N.C. 1986). ALJ Walston also cited cases from Nebraska, Georgia, Pennsylvania, New Jersey, and Maryland related to home modifications under the workers’ compensation statutes of those states. Based on his research, ALJ Walston concluded that “reasonable home modifications necessary to make a medical appliance (such as a wheelchair, lift, or special bed) useable to an employee who has sustained a compensable injury constitutes health care and a medical benefit under the Texas Workers’ Compensation Act . . .”

The evidence was found to be persuasive that the home modifications at issue in this case constitute “health care” and a “medical benefit” under the Act. Claimant therefore met his burden of proof to establish that Self-Insured is subject to liability under the Act for the requested home modifications at issue in this case. Pursuant to the version of Division Rule 133.307 in effect at the time Claimant’s DWC Form-060 was filed, the Division’s Medical Fee Dispute Resolution (MFDR) section has jurisdiction to make a determination on Self-Insured’s liability for those modifications.

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, and sustained a compensable injury.
    3. On (Date of Injury), Employer provided workers’ compensation insurance coverage as a self-insured.
  2. Self-Insured delivered to Claimant a single document stating the true corporate name of Self-Insured, and the name and street address of Self-Insured’s registered agent, which document was admitted into evidence as Hearing Officer’s Exhibit Number 2.
  3. Claimant’s wife, who holds power of attorney over Claimant’s affairs, requested reimbursement for modifications made to their home based on Claimant’s compensable injury on this claim.
  4. The home modifications at issue in this case constitute “health care” and a “medical benefit” pursuant to Texas Labor Code Section 401.011(19) and (31), respectively.

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. Self-Insured is subject to liability under the Texas Workers’ Compensation Act for home modifications requested by Claimant.

DECISION

Self-Insured is subject to liability under the Texas Workers’ Compensation Act for home modifications requested by Claimant.

ORDER

Claimant is entitled to the relief at issue, and it is so ordered. Claimant also remains entitled to medical benefits for the compensable injury in accordance with §408.021.

The true corporate name of the self-insured carrier is SOUTHWESTERN BELL TELEPHONE LP and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH ST PAUL STREET

DALLAS, TEXAS 75201

Signed this 16th day of May, 2013.

Jennifer Hopens
Hearing Officer

  1. The hearing officer notes that the Division is not bound by SOAH decisions as precedent.

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.

ISSUE

A medical contested case hearing was opened on January 22, 2013 with the record closing on April 22, 2013 to decide the following disputed issue:

Is the preponderance of the evidence-based medical evidence contrary to the decision of the Independent Review Organization (IRO) that the Claimant is not entitled to a repeat lumbar MRI with and without contrast for the compensable injury of (Date of Injury)?

PARTIES PRESENT

On January 22, 2013, Claimant/Petitioner (hereinafter “Claimant”) failed to appear. DV, ombudsman, was present to assist the Claimant. Carrier/Respondent (hereinafter “Carrier”) appeared and was represented by KB, attorney.

After the January 22, 2013 hearing, the Claimant was sent a letter by the undersigned allowing him an opportunity to present good cause for his absence and evidence on the disputed issue. The Claimant timely responded to the letter, and the hearing was reset to April 22, 2013.

On April 22, 2013, the Claimant again failed to appear. Ms. DV was present to assist the Claimant, and Ms. KB appeared for the Carrier. The record is devoid of any evidence showing good cause for the Claimant’s absence on January 22, 2013.

BACKGROUND INFORMATION

The Claimant failed to appear at the hearing and he did not avail himself of the opportunity to present his case. Having failed to appear and offer evidence regarding the medical necessity of the disputed repeat lumbar MRI with and without contrast, the Claimant failed to prove that the preponderance of the evidence-based medical evidence is contrary to the decision of the IRO that a repeat lumbar MRI with and without contrast is not reasonable and necessary health care for his compensable (Date of Injury) 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.

FINDINGS OF FACT

  1. The Carrier admitted 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 had workers’ compensation insurance coverage with National Fire Insurance Co. of Hartford, Carrier.
    4. On (Date of Injury), the Claimant sustained a compensable injury while in the course and scope of his employment with (Employer).
    5. The IRO upheld the Carrier’s denial of a repeat lumbar MRI with and without contrast for the Claimant’s compensable (Date of Injury) injury.
  2. No evidence was presented to show that the Claimant meets the criteria found in the Official Disability Guidelines for prescriptions for a repeat lumbar MRI with and without contrast for his compensable (Date of Injury) injury, and no other evidence was presented to support the medical necessity of the said testing.
  3. The Claimant did not have good cause for failing to appear at the January 22, 2013 medical contested case hearing held herein.
  4. A repeat lumbar MRI with and without contrast is not health care reasonably required for the compensable injury of (Date of Injury).
  5. The undersigned mailed a single document stating the true corporate name of the Carrier, and the name and street address of Carrier’s registered agent, which was admitted into evidence as Hearing Officer Exhibit Number 2, to the Claimant at his last known address.

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 decision of the IRO that a repeat lumbar MRI with and without contrast is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is not entitled to a repeat lumbar MRI with and without contrast as the testing is not health care reasonably required for the compensable injury of (Date of Injury).

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 NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, and the name and address of its registered agent for service of process is:

C T CORPORATION SYSTEM

350 N. ST. PAUL STREET

DALLAS, TX 75201

Signed this 22nd day of April, 2013.

Patrice Fleming-Squirewell
Hearing Officer

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.

ISSUE

A contested case hearing was held on April 2, 2013, with the record closing on April 17, 2013, to decide the following disputed issue:

Is the preponderance of the evidence-based medical evidence contrary to the decision of the Independent Review Organization that Claimant is not entitled a continued chronic pain management program, five times per week for two weeks, for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Self-insured appeared, and was represented by Attorney ST. Neither Clamant nor Petitioner either attended the Contested Case Hearing or advised the Division of their intent with regard to this case. When they failed to timely respond to the Division’s inquiry of April 2, 2013, the record of the Hearing was closed, and this decision was issued.

BACKGROUND INFORMATION

Claimant sustained a compensable knee injury, and was recommended to undergo a chronic pain management program.

DISCUSSION

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(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, and 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. 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 [a party] 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."

As noted above, the party or parties appealing the IRO decision, Petitioner and Claimant herein, bear the burden of proof. Since they did not present evidence-based medical evidence in support of their position, the Division has no choice but to decide the issue presented in favor of Self-insured Respondent.

Even though all the evidence presented may not have been discussed in detail, it was considered; the Findings of Fact and Conclusions of Law are based on all of the evidence presented.

FINDINGS OF FACT

  1. On (Date of Injury), Claimant was employed by (Self-Insured), Employer.
  2. On (Date of Injury), Employer was self-insured for workers’ compensation purposes.
  3. On (Date of Injury), Claimant’s residence was located within seventy-five miles of the (City) Field Office of the Texas Department of Insurance, Division of Workers' Compensation.
  4. The Division mailed to Claimant and Petitioner a single document stating the true corporate name of Self-insured, and the name and street address of Self-insured’s registered agent, which document was admitted into evidence as Hearing Officer’s Exhibit Number 2.
  5. On (Date of Injury), Claimant sustained damage or harm to the physical structure of his body while he was within the course and scope of his employment with Employer.
  6. The injury referenced in the previous Finding of Fact arose out of Claimant's employment with Employer.
  7. A continued chronic pain management program, five times per week for two weeks, is not health care reasonably required for Claimant’s compensable injury of (Date of Injury).

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-based medicine is not contrary to the decision of the Independent Review Organization that a continued chronic pain management program, five times per week for two weeks, for Claimant’s compensable injury of (Date of Injury).

DECISION

Claimant is not entitled to a continued chronic pain management program, five times per week for two weeks, for the compensable injury of (Date of Injury).

ORDER

Self-insured 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 self-insured is (SELF-INSURED). The name and address of Self-insured’s registered agent for service of process is:

(SELF-INSURED)

(STREET)

(CITY), TEXAS (ZIP CODE)

Signed this 22nd day of April, 2013.

Ellen Vannah
Hearing Officer

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 contested case hearing was held on March 26, 2013, to decide the following disputed issue:

  1. Is the preponderance of the evidence contrary to the decision of the IRO that the Claimant is not entitled to a lumbar discogram L4-L5, L5-S1 for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Petitioner/Claimant appeared and was assisted by ombudsman VU. Respondent/Carrier appeared and was represented by adjuster EL.

BACKGROUND INFORMATION

Claimant requested this hearing in order to dispute the IRO doctor’s denial of the requested lumbar discogram L4-L5, L5-S1 for the compensable injury of (Date of Injury).

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. 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. (Division Rule 133.308 (t).)

Under the Official Disability Guidelines in reference to a lumbar discogram, the following recommendation is made for Discography:

Not recommended. In the past, discography has been used as part of the pre-operative evaluation of patients for consideration of surgical intervention for lower back pain. However, the conclusions of recent, high quality studies on discography have significantly questioned the use of discography results as a preoperative indication for either IDET or spinal fusion. These studies have suggested that reproduction of the patient’s specific back complaints on injection of one or more discs (concordance of symptoms) is of limited diagnostic value. (Pain production was found to be common in non-back pain patients, pain reproduction was found to be inaccurate in many patients with chronic back pain and abnormal psychosocial testing, and in this latter patient type, the test itself was sometimes found to produce significant symptoms in non-back pain controls more than a year after testing.) Also, the findings of discography have not been shown to consistently correlate well with the finding of a High Intensity Zone (HIZ) on MRI. Discography may be justified if the decision has already been made to do a spinal fusion, and a negative discogram could rule out the need for fusion on that disc (but a positive discogram in itself would not allow fusion). (Carragee-Spine, 2000) (Carragee2-Spine, 2000) (Carragee3-Spine, 2000) (Carragee4-Spine, 2000) (Bigos, 1999) (ACR, 2000) (Resnick, 2002) (Madan, 2002) (Carragee-Spine, 2004) (Carragee2, 2004) (Maghout-Juratli, 2006) (Pneumaticos, 2006) (Airaksinen, 2006) (Manchikanti, 2009) Discography may help distinguish asymptomatic discs among morphologically abnormal discs in patients without psychosocial issues. Precise prospective categorization of discographic diagnoses may predict outcomes from treatment, surgical or otherwise. (Derby, 2005) (Derby2, 2005) (Derby, 1999) Positive discography was not highly predictive in identifying outcomes from spinal fusion. A recent study found only a 27% success from spinal fusion in patients with low back pain and a positive single-level low-pressure provocative discogram, versus a 72% success in patients having a well-accepted single-level lumbar pathology of unstable spondylolisthesis. (Carragee, 2006) The prevalence of positive discogram may be increased in subjects with chronic low back pain who have had prior surgery at the level tested for lumbar disc herniation. (Heggeness, 1997) Invasive diagnostics such as provocative discography have not been proven to be accurate for diagnosing various spinal conditions, and their ability to effectively guide therapeutic choices and improve ultimate patient outcomes is uncertain. (Chou, 2008) Although discography, especially combined with CT scanning, may be more accurate than other radiologic studies in detecting degenerative disc disease, its ability to improve surgical outcomes has yet to be proven. It is routinely used before IDET, yet only occasionally used before spinal fusion. (Cohen, 2005) Provocative discography is not recommended because its diagnostic accuracy remains uncertain, false-positives can occur in persons without low back pain, and its use has not been shown to improve clinical outcomes. (Chou2, 2009) This recent RCT concluded that, compared with discography, injection of a small amount of bupivacaine into the painful disc was a better tool for the diagnosis of discogenic LBP. (Ohtori, 2009) Discography may cause disc degeneration. Even modern discography techniques using small gauge needle and limited pressurization resulted in accelerated disc degeneration (35% in the discography group compared to 14% in the control group), disc herniation, loss of disc height and signal and the development of reactive endplate changes compared to match-controls. These finding are of concern for several reasons. Discography as a diagnostic test is controversial and in view of these findings the utility of this test should be reviewed. Furthermore, discography in current practice will often include injecting discs with a low probability of being symptomatic in an effort to validate other disc injections, a so-called control disc. Although this strategy has never been confirmed to increase test validity or utility, injecting normal discs even with small gauge needles appears to increase the rate of degeneration in these discs over time. The phenomenon of accelerated adjacent segment degeneration adjacent to fusion levels may be, in part, explained by previous disc puncture if discography was used in segments adjacent to the fusion. Similarly, intradiscal therapeutic strategies (injecting steroids, sclerosing agents, growth factors, etc.) have been proposed as a method to treat, arrest or prevent symptomatic disc disease. This study suggests that the injection procedure itself is not completely innocuous and a recalculation of these demonstrated risks versus hypothetical benefits should be considered. (Carragee, 2009) More in vitro evidence that discography may cause disc degeneration. (Gruber, 2012) Discography involves the injection of a water-soluble imaging material directly into the nucleus pulposus of the disc. Information is then recorded about the pressure in the disc at the initiation and completion of injection, about the amount of dye accepted, about the configuration and distribution of the dye in the disc, about the quality and intensity of the patient's pain experience and about the pressure at which that pain experience is produced. Both routine x-ray imaging during the injection and post-injection CT examination of the injected discs are usually performed as part of the study. There are two diagnostic objectives: (1) to evaluate radiographically the extent of disc damage on discogram and (2) to characterize the pain response (if any) on disc injection to see if it compares with the typical pain symptoms the patient has been experiencing. Criteria exist to grade the degree of disc degeneration from none (normal disc) to severe. A symptomatic degenerative disc is considered one that disperses injected contrast in an abnormal, degenerative pattern, extending to the outer margins of the annulus and at the same time reproduces the patient’s lower back complaints (concordance) at a low injection pressure. Discography is not a sensitive test for radiculopathy and has no role in its confirmation. It is, rather, a confirmatory test in the workup of axial back pain and its validity is intimately tied to its indications and performance. As stated, it is the end of a diagnostic workup in a patient who has failed all reasonable conservative care and remains highly symptomatic. Its validity is enhanced (and only achieves potential meaningfulness) in the context of an MRI showing both dark discs and bright, normal discs -- both of which need testing as an internal validity measure. And the discogram needs to be performed according to contemporary diagnostic criteria -- namely, a positive response should be low pressure, concordant at equal to or greater than a VAS of 7/10 and demonstrate degenerative changes (dark disc) on MRI and the discogram with negative findings of at least one normal disc on MRI and discogram. See also Functional anesthetic discography (FAD).

Discography is Not Recommended in ODG.

Patient selection criteria for Discography if provider & payor agree to perform anyway:

The IRO doctor, board-certified in neurological surgery, opined that the requested lumbar discogram at L4-L5 and L5-S1 is not medically necessary in the clinical setting. The IRO doctor stated that Claimant had minimal disc bulge at L4-L5 and L5-S1, with no stenosis at L4-L5 and mild to moderate bilateral neural foraminal stenosis at L5-S1. It was noted that the Claimant had been unresponsive to conservative care, but there was no prior documentation of conservative management submitted for review. Further the clinical notes indicated Claimant had been previously psychologically cleared, but no independent psychological evaluation was submitted for review in accordance with OFFICIAL DISABILITY GUIDELINES (ODG). It was further observed that ODG recommends that patients undergo a single level testing with one control level and in the Claimant’s case it appeared that neither the L4-L5 nor the L5-S1 level was a controlled level. There was no evidence of any instability on imaging studies to indicate that Claimant would be a surgical candidate for multi-level fusion. The IRO reviewer opined, “All told, per ODGcriteria, the requested lumbar discogram L4-L5, L5-S1 (62290) is not medically necessary in this patient’s case.”

In order to prevail, a Claimant must supply evidence based medical evidence to support the medical necessity of the treatment being requested. Having failed to present sufficient evidence- based medical evidence Claimant has been unable to meet her burden of proof that the proposed lumbar discogram L4-L5, L5-S1 is medically necessary.

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 Carrier admitted 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 through Carrier, Hartford Insurance Company of the Midwest.
    4. On (Date of Injury), Claimant sustained a compensable injury.
    5. The Independent Review Organization reviewer, board certified in neurological surgery, determined the lumbar discogram L4-L5, L5-S1 is not medically necessary for evaluation of the Claimant’s medical condition.
  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. A lumbar discogram L4-L5, L5-S1 is not health care reasonably required for the compensable injury of (Date of Injury).

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 decision of the IRO that a lumbar discogram L4-L5, L5-S1 is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is not entitled to a lumbar discogram L4-L5, L5-S1 for the compensable injury of (Date of Injury).

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 HARTFORD INSURANCE COMPANY OF THE MIDWEST, and the name and address of its registered agent for service of process is:

CORPORATION SERVICE COMPANY

211 EAST 7TH ST. #620

AUSTIN, TX 78701

Signed this 27th day of March, 2013

Cheryl Dean
Hearing Officer

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 contested case hearing was held on November 15, 2012 to decide the following disputed issue:

  1. Is the preponderance of the evidence contrary to the decision of the IRO that the claimant is entitled to Additional Chronic Pain Management Program 5xwk x 2wks for the compensable injury of (Date of Injury)?

Though not certified, the following issue was added because it was actually litigated:

  1. Whether the April 4, 2012 pre authorization was timely submitted after the first denial of pre authorization dated December 19, 2011?

PARTIES PRESENT

Petitioner/Claimant appeared and was assisted by TL, ombudsman. Respondent/Carrier appeared and was represented by PM, attorney.

EVIDENCE PRESENTED

The following witnesses testified;

For Petitioner: None.

For Claimant: Claimant.

For Carrier: None.

The following exhibits were admitted into evidence:

Hearing Officer’s Exhibits HO-1 and H0-2.

Petitioner’s Exhibits: None.

Claimant’s Exhibits: C-1 thru C-3.

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

BACKGROUND INFORMATION

The evidence presented in the hearing revealed that Claimant sustained a compensable injury to include her low back on (Date of Injury). The evidence presented indicates that the Claimant has chronic pain syndrome as diagnosed by a psychologist. Claimant entered a comprehensive pain management program in late November, 2011 and completed 10 sessions of comprehensive pain management over a two-week period.

The IRO reviewer overturned the denial of additional Chronic Pain Management Program 5xwk x 2wks based on the Official Disability Guidelines [ODG] and the reviewer’s medical judgment, clinical experience and expertise in accordance with accepted medical standards. The IRO reviewer cited pertinent excerpts from the ODG, which recommend the Chronic Pain Management Program [i.e. “in order for a chronic multidisciplinary treatment program to continue for longer than two weeks, there should be evidence of compliance and significant demonstrated efficacy as documented by subjective and objective gains.” SeeCarrier’s Exhibit CR-D, p 5]. The IRO reviewer found there were letters of reconsideration which clearly indicated that the injured worker made progress in the treatment program. Reportedly, her physical capacity increased from a sedentary level to a medium PDL. In addition there, is indication of a reduction of her medication.

DISCUSSION

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 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.

With regard to chronic pain/functional restoration programs, under “Chronic pain programs [functional restoration programs],” the ODG reads as follows:

Recommended where there is access to programs with proven successful outcomes (i.e., decreased pain and medication use, improved function and return to work, decreased utilization of the health care system), for patients with conditions that have resulted in “Delayed recovery.” There should be evidence that a complete diagnostic assessment has been made, with a detailed treatment plan of how to address physiologic, psychological and sociologic components that are considered components of the patient’s pain. Patients should show evidence of motivation to improve and return to work, and meet the patient selection criteria outlined below. While these programs are recommended (see criteria below), the research remains ongoing as to

  1. what is considered the “gold-standard” content for treatment
  2. the group of patients that benefit most from this treatment;
  3. the ideal timing of when to initiate treatment;
  4. the intensity necessary for effective treatment; and
  5. cost-effectiveness.

It has been suggested that interdisciplinary/multidisciplinary care models for treatment of chronic pain may be the most effective way to treat this condition.

(Flor, 1992) (Gallagher, 1999) (Guzman, 2001) (Sullivan, 2005) (Dysvik, 2005) (Airaksinen, 2006) (Schonstein, 2003) (Sanders, 2005) (Patrick, 2004) (Buchner, 2006) These treatment modalities are based on the biopsychosocial model, one that views pain and disability in terms of the interaction between physiological, psychological and social factors. (Gatchel, 2005) See Biopsychosocial model of chronic pain.

Types of programs: There is no universal definition of what comprises interdisciplinary/multidisciplinary treatment, These pain rehabilitation programs (as described below) combine multiple treatments, and at the least, include psychological care along with physical and/or occupational therapy (including an active exercise component as opposed to passive modalities). The most commonly referenced programs have been defined in the following general ways (Stanos, 2006):

  1. Multidisciplinary programs: Involves one or two specialists directing the services of a number of team members, with these specialists often having independent goals. These programs can befurther subdivided into four levels of pain programs:
  2. (b)Multidisciplinary pain centers (generally associated with academic centers and include research as part of their focus)
  3. (c)Multidisciplinary pain clinics
  4. (d)Pain clinics
  5. (e)Modality-oriented clinics
  6. Interdisciplinary pain programs: Involves a team approach that is outcome focused and coordinated and offers goal-oriented interdisciplinary services. Communication on a minimum of a weekly basis is emphasized. The most intensive of these programs is referred to as a Functional Restoration Program, with a major emphasis on maximizing function versus minimizing pain. See Functional restoration programs.

Types of treatment: Components suggested for interdisciplinary care include the following services delivered in an integrated fashion:

  1. (a) physical treatment;
  2. (b)medical care and supervision;
  3. (c)psychological and behavioral care;
  4. (d)psychosocial care;
  5. (e)vocational rehabilitation and training; and
  6. (f)education.

Outcomes measured: Studies have generally evaluated variables such as pain relief, function and return to work. More recent research has begun to investigate the role of comorbid psychiatric and substance abuse problems in relation to treatment with pain programs. Recent literature has begun to suggest that an outcome of chronic pain programs may be to “demedicalize” treatment of a patient, and encourage them to take a more active role in their recover. These studies use outcomes such as use of the medical care system post-treatment. The role of the increasing use of opioids and other medications (using data collected over the past decade) on outcomes of functional restoration is in the early stages, and it is not clear how changes in medication management have affected outcomes, if at all. (See Opioids for chronic pain.)

Outcomes (in terms of body parts)

Neck and Shoulder: There are limited studies about the efficacy of chronic pain programs for neck, shoulder, or upper extremity musculoskeletal disorders. (Karjalainen, 2003) this may be because rates of cervical claims are only 20-25% of the rates of lumbar claims. In addition, little is know (sic) as to chronicity of outcomes. Researchers using PRIDE Program (Progressive Rehabilitation Institute of Dallas for Ergonomics) data compared a cohort of patients with cervical spine disorders to those with lumbar spine disorders from 1990-1995 and found that they had similar outcomes. Cervical patients were statistically less likely to have undergone pre-rehabilitative surgery. (Wright, 1999)

Multidisciplinary back training: (involvement of psychologists, physiotherapists, occupational therapists, and/or medical specialists). The training program is partly based on physical training and partly on behavioral cognitive training; Physical training is performed according to the “graded activity” principle. The main goal is to restore daily function. A recent review of randomized controlled studies of at least a year’s duration found that this treatment duality produced a positive effect on work participation and possibly on qualify of life. There was no long-term effect on experienced pain or functional status (this result may be secondary to the instrument used for outcome measure). Intensity of training had no substantial influence on the effectiveness of the treatment. (van Green, 2007) (Bendix, 1997) (Bendix 1998) (Bendix 2000) (Frost, 1998) (Harkapaa, 1990) (Skouen, 2002) (Mellin, 1990) (Haldorsen, 2002)

Intensive multidisciplinary rehabilitation of chronic low back pain: The most recent Cochrane study was withdrawn from the Cochrane (3/06) as the last literature search was performed in 1998. Studies selected included a physical dimension treatment and at least on other treatment dimension (psychological, social, or occupational). Back schools were no included unless they included the above criteria. There was strong evidence that intensive multidisciplinary biopsychosocial rehabilitation with functional restoration improved function when compared to inpatient or outpatient nonmultidisciplinary rehabilitation. Intensive (> 100 hours), daily interdisciplinary rehabilitation was moderately superior to noninterdisciplinary rehabilitation or usual care for short- and long term functional status (standardized mean differences, -0.40 to -0.90 at 3 to 4 months, and -0.56 to -1.07 at 60 months). There was moderate evidence of pain reduction. There was contradictory evidence regarding vocational outcome. Lee intensive programs did not show improvements in pain, function, or vocational outcomes. It was suggested that patients should not be referred to multidisciplinary biopsychosocial rehabilitation without knowing the actual content of the program. (Guzman, 2001) (Guzman-Cochrane, 2002) (BendixBendixBendixHarkapaaSkouenMellinHaldorsen, 2002)

Multidisciplinary biopsychosocial rehabilitations for subacute low back pain among working age adults: The programs described had to include a physical component plus either a psychological, social and/or vocational intervention. There was moderate evidence of positive effectiveness for multidisciplinary rehabilitation for subacute low back pain and that a workplace visit increases effectiveness. The trials included had methodological shortcomings, and further research was suggested. (Karjalainen, 2003)

Role of opioid use: See Chronic pain programs, opioids.

Role of comorbid psych illness: Comorbid conditions, including psychopathology, should be recognized as they can affect the course of chronic pain treatment. In a recent analysis, patients with panic disorder, antisocial personality disorder and dependent personality disorder were >2 times more likely to not complete an interdisciplinary program. Personality disorders in particular appear to hamper the ability to successfully complete treatment. Patients diagnosed with post-traumatic stress disorder were 4.2 times more likely to have additional surgeries to the original site of injury. (Dersh, 2007) The prevalence of depression and anxiety in patients with chronic pain is similar. Cohort studies indicate that the added morbidity of depression and anxiety with chronic pain is more strongly associated with severe pain and greater disability. (Poleshuck, 2009) (Blair, 2008)

Predictors of success and failure: As noted, one of the criticisms of interdisciplinary/multidisciplinary rehabilitation programs is the lack of an appropriate screening tool to help to determine who will most benefit from this treatment. Retrospective research has examined decreased rates of completion of functional restoration programs, and there is ongoing research to evaluate screening tools prior to entry. (Gatchel, 2006) There is need for research in terms of necessity and/or effectiveness of counseling for patients considered to b “at-risk” for post-discharge problems. (Proctor, 2004) The following variables have been found to be negative predictors of efficacy of treatment with the programs as well as negative predictors of completion of the programs:

  1. a negative relationship with the employer/supervisor;
  2. poor work adjustment and satisfaction;
  3. a negative outlook about future employment;
  4. high levels of psychosocial distress (higher pretreatment levels of depression, pain and disability);
  5. involvement in financial disability disputes;
  6. greater rates of smoking;
  7. increased duration of pre-referral disability time;
  8. higher prevalence of opioid use; and
  9. elevated pre-treatment levels of pain.

(Linton, 2001) (Bendix, 1998) (McGeary, 2006) (McGeary, 2004) (Gatchel2, 2005) (Dersh, 2007)

Role of duration of disability: There is little research as to the success of return to work with functional restoration programs in long-term disabled patients (> 24 months).

Studies support programs for patients with long-term disability: Long-term disabled patients (at least 18 months) vs. short-term disabled (4 to 8 months) were evaluated using Pride date (1990-1993). No control was given for patients that did not undergo a program. During the time studied program dropouts averaged 8% to 12%. (It does appear that at the time of this study, participants in the program were detoxified from opioids prior to beginning.) The long-term disabled group was more likely to have undergone spinal surgery, with this likelihood increasing with time. Return to work was statistically different between the short-term disabled (93%) and the long-term disabled-18 months (80%). The long-term disabled-25 months group had a 75% return to work. Long-term disabled-18 month patients were statistically more likely to visit new health providers than short-term disabled patients (34% and 25% respectively). Work retention at one year in groups up to 24 months duration of disability was 80%. This dropped to 66% in the group that had been disabled for > 24 months. The percentage of recurrent lost time injury claims increased from around 1% in the groups disabled for < 35 months to 8.3% in the groups disabled for > 36 months. A main criterion for success appeared to be the decision of the patient to actively participate in the program rehabilitation goals. (Jordan, 1998)

Studies suggesting limited results in patients with long-term disability: While early studies have suggested that time out-of-work is a predictor of success for occupational outcomes, these studies have flaws when an attempt is made to apply them to chronic pain programs. (Gallagher, 1989) (Beals, 1972) (Krause, 1994)

Washington State studied the role of duration of work injury on outcome using a statistical model that allowed for a comparison of patients that participated in a multidisciplinary pain program (using data from 1991-1993) vs. those that were evaluated and not treated. This was not an actual study of time of disability, but of duration of injury (mean years from injury to evaluation of 2.6 years for the treated group and 4.0 years for the evaluated only group). The original statistical analysis allowed for a patient to be included in a “treated group” for those individuals that both completed and did not complete the program. Data was collected from 10 sites. Each of the centers was CARF approved and included Psych/behavioral treatment, vocation counseling and physical therapy. A sub-study evaluated a comparison of patients that were treatment completers vs. those that did participate (78.6%, N-=963). No information was given in terms of surgical procedures or medications; The primary outcome was time loss status of subjects 2 years after they had undergone the index pain center evaluation. In the 2001 study, if chronicity of duration of injury was controlled for, there was no significant benefit produced in terms of patients that were receiving time-loss benefits at 2-years post treatment between the two groups. Approximately 605 of both groups were not receiving benefits at the two-year period. As noted, the “treated patient” was only guaranteed to have started a program. A repeat analysis of only the patients who completed the study did not significantly change the results of the study. In a 2004 survey follow-up no significant difference was found between treated and untreated groups, although the treated group had been response. The survey response was 50%, and the treatment responders were more likely to be disabled at the time of the survey. The authors suggest that the results indicated early intervention was a key to response of the programs, and that modes goals (improvement, not cure) be introduced. (Robinson, 2004) (Robinson, 2001) [The authors also concluded that there was no evidence that pain center treatment affects either disability status or clinical status of injured workers.]

Timing of use:Intervention as early as 3 to 6 months post-injury may be recommended depending on identification of patients that may benefit from a multidisciplinary approach (from programs with documented positive outcomes). See Chronic pain programs, early intervention.

Role of post-treatment care (as an outcome): Three variables are usually examined;

  1. New surgery at the involved anatomic site or area;
  2. Percentage of patients seeking care from anew provided;
  3. Number of visits to the new provider over and above visits with the health-care professional overseeing treatment.

It is suggested that a “new provider is more likely to reorder diagnostic tests, provide invasive procedures, and start long-term analgesics. In a study to determine the relationship between post-treatment healthcare-seeking behaviors and poorer outcomes (using prospectively analyzed PRIDE data on patients with work-related musculoskeletal injuries), patients were compared that accessed healthcare with a new provided following functional restoration program completion (approximately 25%) to those that did not. The former group was significantly more likely to have an attorney involved with their case (22.7% vs. 17.1%, respectively), and to have had pre-rehabilitation surgery 920.7% vs. 12.1%, respectively). Return to work was higher in the group that did not access a new provider (90% vs. 77.6% in the group that did access). The group that did not access new providers also was more likely to be working a t one year (88%vs. 62.2% in the group that accessed new providers). It should be noted that 18% of the patients that entered the program dropped out or were asked to leave. The authors suggested monitoring of additional access of healthcare over and above that suggested at the end of the program, with intervention if needed. (Proctor, 2004) the latest AHRQ Comparative Effectiveness Research supports the ODG recommendations. (AHRQ, 2011)

See also Chronic pain programs, intensity: Chronic pain programs, opioids; Functional restoration programs; & Chronic pain programs early intervention.

Criteria for the general use of multidisciplinary pain management programs:

Outpatient pain rehabilitation programs may be considered medically necessary in the following circumstances:

  1. The patient has a chronic pain syndrome, with evidence of loss of function that persists beyond three months and has evidence of three or more of the following:
  2. (b)Excessive dependence on health-care providers, spouse, or family;
  3. (c)Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;
  4. (d)Withdrawal from social activities or normal contact with others, including work, recreation, or other social contacts;
  5. (e)Failure to restore preinjury function after a period of disability such that the physical capacity is insufficient to pursue work, family, or recreational needs;
  6. (f)Development of psychosocial sequelae that limits function or recovery after the initial incident, including anxiety, fear-avoidance, depression, sleep disorders, or nonorganic illness behaviors (with a reasonable probability to respond to treatment intervention);
  7. (g)The diagnosis is not primarily a personality disorder or psychological condition without a physical component;
  8. (h)There is evidence of continued sue of prescription pain medications (particularly those that may result in tolerance, dependence or abuse) without evidence of improvement in pain or function.
  9. Previous methods of treating chronic pain have been unsuccessful and there is an absence of other options likely to result in significant clinical improvement.
  10. An adequate and thorough multidisciplinary evaluation has been made. This should include pertinent validated diagnostic testing that addresses the following:
  11. (k)a physical exam that rules out conditions that require treatment prior to initiating the program. Al diagnostic procedures necessary to rule out treatable pathology, including imaging studies and invasive injections (used for diagnosis), should be completed prior to considering a patient a candidate for a program. The exception is diagnostic procedures that were repeatedly requested and not authorized. Although the primary emphasis is on the work-related injury, underlying non-work related pathology that contributes to pain and decreased function may need to be addressed and treated by a primary care physician prior to or coincident to starting treatment;
  12. (l)Evidence of a screening evaluation should be provided when addiction is present or strongly suspected;
  13. (m)Psychological testing using a validated instrument to identify pertinent areas that need to be addressed in the program (including but not limited to mood disorder, sleep disorder, relationship dysfunction, distorted beliefs about pain and disability, coping skills and/or locus of control regarding pain and medical care) or diagnoses that would better be addressed suing other treatment should be performed;
  14. (n)An evaluation of social and vocational issues that require assessment.
  15. If a goal treatment is to prevent or avoid controversial or optional surgery, a trial of 10 visits (80 hours) may be implemented to assess whether surgery may be avoided.
  16. If a primary reason for treatment in the program is addressing possible substance use issues, an evaluation with an addiction clinician may be indicated upon entering the program to establish the most appropriate treatment approach (pain program vs. substance dependence program). This must address evaluation of drug abuse or diversion (and prescribing drugs in a non-therapeutic manner). In this particular case, once drug abuse or diversion issues are addressed, a 10-day trial may help to establish a diagnosis, and determine if the patient is not better suited for treatment in a substance dependence program. Addiction consultation can be incorporated into a pain program. If there is indication that substance dependence may be a problem, there should be evidence that the program has the capability to address this type of pathology prior to approval.
  17. Once the evaluation is completed, a treatment plan should be presented with specifics for treatment of identified problems, and outcomes that will be followed.
  18. There should be documentation that the patient has motivation to change, and is willing to change their medication regimen (including decreasing or actually weaning substances known for dependence). There should also be some documentation that the patient aware that successful treatment may change compensation and/or other secondary gains. In questionable cases, an opportunity for a brief treatment trial may improve assessment of patient motivation and/or willingness to decrease habituating medications.
  19. Negative predictors of success (as outlined above) should be identified, and if present, the pre-program goals should indicate how these will be addressed.
  20. If a program is planned for a patient that has been continuously disabled for greater than 24 months, the outcomes for the necessity for use should be clearly identified, as there is conflicting evidence that chronic pain programs provide return-to-work beyond this period. These other desirable types of outcomes include decreasing post-treatment care including medications, injections and surgery. This cautionary statement should not preclude patients off work for over two years from being admitted to a multidisciplinary pain management program with demonstrated positive outcomes in this population.
  21. Treatment is not suggested for longer than 2 weeks without evidence of compliance and significant demonstrated efficacy as documented by subjective and objective gains. (Note: Patients may get worse before they get better. For example, objective gains may be moving joints that are stiff from lack of use, resulting in increased subjective pain.) However, it is also not suggested that a continuous course of treatment e interrupted at two weeks solely to document these gains, if there are preliminary indications that they are being made on a concurrent basis.
  22. Integrative summary reports that include treatment goals, compliance, progress assessment with objective measures and stage of treatment, must be made available upon request at least on a bi-weekly basis during the course of the treatment program.
  23. (Sanders, 2005) Treatment duration in excess of 160 hours requires a clear rationale for the specified extension and reasonable goals to be achieved. Longer durations require individualized care plans explaining why improvements cannot be achieved without an extension as well as evidence of documented improved outcomes from the facility (particularly in terms of the speddcific outcomes that are to be addressed).
  24. At the conclusion and subsequently, neither re-enrollment in repetition of the same or similar rehabilitation program (e.g. work hardening, work conditioning, out-patient medical rehabilitation) is medically warranted for the same condition or injury (with possible exception for a medically necessary organized detox program). Prior to entry into a program the evaluation should clearly indicate the necessity for the type of program required, and providers should determine upfront which program their patients would benefit more from. A chronic pain program should not be considered a “stepping stone” after less intensive programs, but prior participating in a work conditioning or work hardening program does not preclude an opportunity for entering a chronic pain program if otherwise indicated.
  25. Suggestions for treatment post-program should be well documented and provided to the referral physician. The patient may require time-limited, less intensive post-treatment with the program itself. Defined goals for these interventions and planned duration should be specified.
  26. Post-treatment medication management is particularly important. Patients that have been identified as having substance abuse issues generally require some sort of continued addiction follow-up to avoid relapse.

Inpatient pain rehabilitation programs: These programs typically consist of more intensive functional rehabilitation and medical care than their outpatient counterparts. They may be appropriate for patients who:

(1) don’t have the minimal functional capacity to participate effectively in an outpatient program;

(2) have medical conditions that require more intensive oversight;

(3) are receiving large amounts of medications necessitating medication weaning or detoxification; or

(4) have complex medical or psychological diagnosis that benefit from more intensive observation and/or additional consultation during the rehabilitation process.

(Keel, 1998) (Kool, 2005) (Buchner, 2006) (Kool, 2007) As with outpatient pain rehabilitation programs, the most effective programs combine intensive, daily biopsychosocial rehabilitation with a functional restoration approach. If a primary focus is drug treatment, the initial evaluation should attempt to identify the most appropriate treatment plan 9a drug treatment/detoxification approach vs. a multidisciplinary/interdisciplinary treatment program). See Chronic pain programs, opioids; Functional restoration programs.

To overcome an IRO decision that approves treatment, a carrier has the burden of proof to show by a preponderance of the evidence-based medicine that the treatment requested is not reasonably required for the compensable injury.

In the instant case, the carrier asserted that the requested treatment is not consistent with the criteria set out by the Official Disability Guidelines. To support its assertion the carrier submitted the two utilization reviews which had denied the treatment. The carrier did not call an expert to testify.

According to the IRO report, the reviewer opined that the requested treatment was consistent with the ODG criteria. In the report, for example, the review writes:

  1. There is indication that the injured worker’s psychological distress reduced during the treatment program;
  2. Records indicate she was depending less on medications to control her pain at the end of the treatment program and she was actually taking less prescribed medications;
  3. The injured worker was compliant, motivated and made both physical and psychological improvement.

The reviewer concludes: “The medical record indicates that this injured worker meets ODG Treatment Guideline criteria for the prospective medical necessity of continuation of a chronic pain management five times a week for two weeks. Therefore, the requested service is medically necessary.”

Concerning the second issue: according to Rule 134.600(o), Claimant has 30 days from the date on which she receives the denial to request reconsideration.

Carrier presented evidence which indicated it initially denied Claimant’s request for additional Chronic Pain Management Program 5xwk x 2wks for health care reasonably required for the compensable injury of (Date of Injury) on December 19, 2011.

Claimant contends the December 19, 2011 denial is not the same as indicated in the April 5, 2012 denial which references a request for the program was denied on December 19, 2011 and not appealed. In the instant matter, a request for treatment was made by the Provider and denied on April 5, 2012. Reconsideration documentation was submitted on April 27, 2012 and denied on May 4, 2012. Lastly, Carrier submitted documents evidencing the IRO approved the requested treatment on June 1, 2012, after the May 4, 2012 denial.

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).
    3. On (Date of Injury), the Employer was a self-insured provider of Texas workers’ compensation insurance coverage.
    4. On (Date of Injury), the Claimant sustained a compensable injury.
    5. The IRO determined that the Claimant should have the requested treatment on June 1, 2012.
  2. Carrier delivered to Claimant and Provider 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 requested treatment is consistent with the criteria set out by the ODG.
  4. The prospective medical necessity of continuation of a chronic pain management five times a week for two weeks is health care reasonably required for the compensable injury of (Date of Injury).
  5. On December 19, 2011 Claimant’s request for prospective care was denied by the Carrier and was not appealed.
  6. On April 4, 2012 Claimant’s subsequent request for prospective care was denied by the Carrier on April 5, 2012 and was timely appealed by the Claimant on May 4, 2012.

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 decision of the IRO that Claimant is entitled to additional Chronic Pain Management Program 5xwk x 2wks for the compensable injury of (Date of Injury).
  4. Claimant’s April 4, 2012 pre authorization was timely submitted.

DECISION

Claimant is entitled to additional Chronic Pain Management Program 5xwk x 2wks for the compensable injury of (Date of Injury). Claimant’s April 4, 2012 preauthorization was timely submitted.

ORDER

Carrier is 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

CT CORPORATION SYSTEM

350 N ST. PAUL STREET

DALLAS, TX 75201

Signed this 17th day of March, 2013.

Jacqueline Harrison
Hearing Officer

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 contested case hearing was held on November 12, 2012, to decide the following disputed issue:

  1. Is the preponderance of the evidence contrary to the decision of the IRO chiropractor that Claimant is not entitled to GJPX 80 units (a chronic pain management program) for the compensable injury of (Date of Injury)?

The medical contested case hearing was originally set for September 12, 2012, but Claimant did not appear. A 10-day letter was sent to the Claimant. He did respond stating he got the dates mixed up so the medical contested case hearing was rescheduled to November 12, 2012.

PARTIES PRESENT

Claimant appeared and was assisted by KW, ombudsman. Petitioner/Subclaimant appeared and was represented by RL, attorney. Respondent/Carrier appeared and was represented by MM, attorney.

BACKGROUND INFORMATION

On (Date of Injury), Claimant sustained a compensable injury that includes an injury to his low back with radiculopathy into the right leg. Claimant has undergone physical therapy, work hardening and 80 hours of chronic pain management program. He does not want surgery. The Subclaimant requested an additional 80 hours that was denied by the Carrier and ultimately denied by the IRO chiropractor. The Subclaimant requested a medical contested case hearing to resolve this dispute.

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. 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. (Division Rule 133.308 (t).)

Under the Official Disability Guidelines in reference to chronic pain management program, the following recommendation is made:

Criteria for the general use of multidisciplinary pain management programs:

Outpatient pain rehabilitation programs may be considered medically necessary in the following circumstances:

  1. The patient has a chronic pain syndrome, with evidence of loss of function that persists beyond three months and has evidence of three or more of the following:
  2. (b)Excessive dependence on health-care providers, spouse, or family;
  3. (c)Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;
  4. (d)Withdrawal from social activities or normal contact with others, including work, recreation, or other social contacts;
  5. (e)Failure to restore preinjury function after a period of disability such that the physical capacity is insufficient to pursue work, family, or recreational needs;
  6. (f)Development of psychosocial sequelae that limits function or recovery after the initial incident, including anxiety, fear-avoidance, depression, sleep disorders, or nonorganic illness behaviors (with a reasonable probability to respond to treatment intervention);
  7. (g)The diagnosis is not primarily a personality disorder or psychological condition without a physical component;
  8. (h)There is evidence of continued use of prescription pain medications (particularly those that may result in tolerance, dependence or abuse) without evidence of improvement in pain or function.
  9. Previous methods of treating chronic pain have been unsuccessful and there is an absence of other options likely to result in significant clinical improvement.
  10. An adequate and thorough multidisciplinary evaluation has been made. This should include pertinent validated diagnostic testing that addresses the following:
  11. (k)A physical exam that rules out conditions that require treatment prior to initiating the program. All diagnostic procedures necessary to rule out treatable pathology, including imaging studies and invasive injections (used for diagnosis), should be completed prior to considering a patient a candidate for a program. The exception is diagnostic procedures that were repeatedly requested and not authorized. Although the primary emphasis is on the work-related injury, underlying non-work related pathology that contributes to pain and decreased function may need to be addressed and treated by a primary care physician prior to or coincident to starting treatment;
  12. (l)Evidence of a screening evaluation should be provided when addiction is present or strongly suspected;
  13. (m)Psychological testing using a validated instrument to identify pertinent areas that need to be addressed in the program (including but not limited to mood disorder, sleep disorder, relationship dysfunction, distorted beliefs about pain and disability, coping skills and/or locus of control regarding pain and medical care) or diagnoses that would better be addressed using other treatment should be performed;
  14. (n)An evaluation of social and vocational issues that require assessment.
  15. If a goal of treatment is to prevent or avoid controversial or optional surgery, a trial of 10 visits (80 hours) may be implemented to assess whether surgery may be avoided.
  16. If a primary reason for treatment in the program is addressing possible substance use issues, an evaluation with an addiction clinician may be indicated upon entering the program to establish the most appropriate treatment approach (pain program vs. substance dependence program). This must address evaluation of drug abuse or diversion (and prescribing drugs in a non-therapeutic manner). In this particular case, once drug abuse or diversion issues are addressed, a 10-day trial may help to establish a diagnosis, and determine if the patient is not better suited for treatment in a substance dependence program. Addiction consultation can be incorporated into a pain program. If there is indication that substance dependence may be a problem, there should be evidence that the program has the capability to address this type of pathology prior to approval.
  17. Once the evaluation is completed, a treatment plan should be presented with specifics for treatment of identified problems, and outcomes that will be followed.
  18. There should be documentation that the patient has motivation to change, and is willing to change their medication regimen (including decreasing or actually weaning substances known for dependence). There should also be some documentation that the patient is aware that successful treatment may change compensation and/or other secondary gains. In questionable cases, an opportunity for a brief treatment trial may improve assessment of patient motivation and/or willingness to decrease habituating medications.
  19. Negative predictors of success (as outlined above) should be identified, and if present, the pre-program goals should indicate how these will be addressed.
  20. If a program is planned for a patient that has been continuously disabled for greater than 24 months, the outcomes for the necessity of use should be clearly identified, as there is conflicting evidence that chronic pain programs provide return-to-work beyond this period. These other desirable types of outcomes include decreasing post-treatment care including medications, injections and surgery. This cautionary statement should not preclude patients off work for over two years from being admitted to a multidisciplinary pain management program with demonstrated positive outcomes in this population.
  21. Treatment is not suggested for longer than 2 weeks without evidence of compliance and significant demonstrated efficacy as documented by subjective and objective gains. (Note: Patients may get worse before they get better. For example, objective gains may be moving joints that are stiff from lack of use, resulting in increased subjective pain.) However, it is also not suggested that a continuous course of treatment be interrupted at two weeks solely to document these gains, if there are preliminary indications that they are being made on a concurrent basis.
  22. Integrative summary reports that include treatment goals, compliance, progress assessment with objective measures and stage of treatment, must be made available upon request at least on a bi-weekly basis during the course of the treatment program.
  23. Total treatment duration should generally not exceed 20 full-day (160 hours) sessions (or the equivalent in part-day sessions if required by part-time work, transportation, childcare, or comorbidities). (Sanders, 2005) Treatment duration in excess of 160 hours requires a clear rationale for the specified extension and reasonable goals to be achieved. Longer durations require individualized care plans explaining why improvements cannot be achieved without an extension as well as evidence of documented improved outcomes from the facility (particularly in terms of the specific outcomes that are to be addressed).
  24. At the conclusion and subsequently, neither re-enrollment in repetition of the same or similar rehabilitation program (e.g. work hardening, work conditioning, out-patient medical rehabilitation) is medically warranted for the same condition or injury (with possible exception for a medically necessary organized detox program). Prior to entry into a program the evaluation should clearly indicate the necessity for the type of program required, and providers should determine upfront which program their patients would benefit more from. A chronic pain program should not be considered a “stepping stone” after less intensive programs, but prior participation in a work conditioning or work hardening program does not preclude an opportunity for entering a chronic pain program if otherwise indicated.
  25. Suggestions for treatment post-program should be well documented and provided to the referral physician. The patient may require time-limited, less intensive post-treatment with the program itself. Defined goals for these interventions and planned duration should be specified.
  26. Post-treatment medication management is particularly important. Patients that have been identified as having substance abuse issues generally require some sort of continued addiction follow-up to avoid relapse.

Inpatient pain rehabilitation programs: These programs typically consist of more intensive functional rehabilitation and medical care than their outpatient counterparts. They may be appropriate for patients who: (1) don’t have the minimal functional capacity to participate effectively in an outpatient program; (2) have medical conditions that require more intensive oversight; (3) are receiving large amounts of medications necessitating medication weaning or detoxification; or (4) have complex medical or psychological diagnosis that benefit from more intensive observation and/or additional consultation during the rehabilitation process. (Keel, 1998) (Kool, 2005) (Buchner, 2006) (Kool, 2007) As with outpatient pain rehabilitation programs, the most effective programs combine intensive, daily biopsychosocial rehabilitation with a functional restoration approach. If a primary focus is drug treatment, the initial evaluation should attempt to identify the most appropriate treatment plan (a drug treatment /detoxification approach vs. a multidisciplinary/interdisciplinary treatment program). See Chronic pain programs, opioids; Functional restoration programs.

The IRO chiropractor stated the reason the request was being denied was due to the lack of documentation to indicate the patient’s objective functional gain in the initial 80 hours. He relies on Claimant’s pain score remaining a 7/10 and says there was no indication that Claimant’s physical demand level had increased or that Claimant had functional gains in terms of increased range of motion and increased strength. However, there is documented objective functional gain, increased range of motion, increased strength, and an increased physical demand level from light to light-medium. The reconsideration of request document the IRO reviewer states was provided for him notes all the gains Claimant made during the initial 80 hours. See CL5p59-61.

Claimant testified how the chronic pain management program helped him eliminate his dependency on the pain medication he was taking. Subclaimant had NM, Ph.D. testify. She is the psychologist in charge of reviewing the files of each patient and determining if they are candidates for the different treatment programs the Subclaimant has available and how treatment should continue while a patient is progressing through their program. She testified how Claimant showed significant documented gains during the 80 hours of chronic pain management program he already completed and how the additional 80 hours would benefit Claimant, especially since he has shown improvement and motivation.

Claimant met his burden of proof and is entitled to the additional medical treatment.

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.
    5. The Independent Review Organization chiropractor determined Claimant should not have GJPX 80 units (a chronic pain management program).
  2. Carrier delivered to Claimant andSubclaimant 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. GJPX 80 units (a chronic pain management program) is health care reasonably required for the compensable injury of (Date of Injury).

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 contrary to the decision of the IRO chiropractor that GJPX 80 units (a chronic pain management program) is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is entitled to GJPX 80 units (a chronic pain management program) for the compensable injury of (Date of Injury).

ORDER

Carrier is 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

CT CORPORATION SYSTEM

350 N. ST. PAUL

DALLAS, TX 75201.

Signed this 12th day of November, 2012.

KEN WROBEL
Hearing Officer

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.

ISSUE

A medical contested case hearing was scheduled for June 13, 2012 but the Claimant failed to appear. On June 13, 2012, the Claimant informed the undersigned by telephone that she no longer wanted to pursue the treatment in dispute at this hearing. The Petitioner, however, requested that the hearing be reset, and it was reset to October 9, 2012 to decide the following disputed issue:

  1. Is the preponderance of the evidence-based medical evidence contrary to the decision of the Independent Review Organization (IRO) that the Claimant is not entitled to chronic pain management program (CPMP) 5 times per week times 2 weeks times 8 units per session for the compensable injury of (Date of Injury)?

PARTIES PRESENT

On October 9, 2012, the Petitioner failed to appear. The Claimant also failed to appear, and her appearance was excused. DV, ombudsman, was present to assist the Claimant on both June 13, 2012 and October 9, 2012. Carrier/Respondent appeared and was represented by PM, attorney, on both June 13, 2012 and October 9, 2012.

BACKGROUND INFORMATION

The Petitioner failed to appear at the hearing and he did not avail himself of the opportunity to present his case. As noted above, the Claimant informed the undersigned that she is no longer interested in pursuing the disputed treatment. Having failed to appear and offer evidence in support of the requested health care services, the Petitioner failed to prove that the preponderance of the evidence-based medical evidence is contrary to the decision of the IRO that the Claimant is not entitled to the requested CPMP 5 times per week times 2 weeks times 8 units per session for her compensable (Date of Injury) 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.

FINDINGS OF FACT

  1. The Carrier admitted 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 had workers’ compensation insurance coverage through self-insurance.
    4. On (Date of Injury), the Claimant sustained a compensable injury while in the course and scope of her employment with (Employer), Inc.
    5. The IRO upheld the Carrier’s denial of the requested CPMP 5 times per week times 2 weeks times 8 units per session for the Claimant’s compensable (Date of Injury) injury.
  2. No evidence was presented to show that the Claimant meets the criteria found in the Official Disability Guidelines for CPMP 5 times per week times 2 weeks times 8 units per session for her compensable (Date of Injury) injury, and no other evidence was presented to support the medical necessity of the said CPMP.
  3. The Petitioner did not have good cause for failing to appear at the October 9, 2012 medical contested case hearing held herein.
  4. CPMP 5 times per week times 2 weeks times 8 units per session is not health care reasonably required for the compensable injury of (Date of Injury).
  5. The undersigned mailed a single document stating the true corporate name of the Carrier, and the name and street address of Carrier’s registered agent, which was admitted into evidence as Hearing Officer Exhibit Number 2, to the Petitioner at his last known address.

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 decision of the IRO that CPMP 5 times per week times 2 weeks times 8 units per session is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is not entitled to CPMP 5 times per week times 2 weeks times 8 units per session for the compensable injury of (Date of Injury).

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

C T CORPORATION SYSTEM

350 N. ST. PAUL STREET

DALLAS, TX 75201

Signed this 5th day of November, 2012.

Patrice Fleming-Squirewell
Hearing Officer

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.

ISSUE

A contested case hearing was continued from August 24, 2012, and held on October 22, 2012, 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 an additional 80 hours of a chronic pain management program for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Petitioner appeared and was represented by RML, attorney. Claimant appeared and was assisted by MP, ombudsman. Respondent/Carrier appeared and was represented by PBS, attorney.

BACKGROUND INFORMATION

Claimant, a certified nursing assistant, sustained a compensable cervical spine and left shoulder injury after assisting a coworker lift a patient on (Date of Injury). Claimant has undergone physical therapy, 80 hours of a chronic pain management program (CPMP), and prescribed medication. Claimant has not undergone surgery for her injury. DB, M.D., is Claimant's treating doctor, and recommended that Claimant undergo an additional 80 hours of a CPMP. Petitioner requested that Claimant undergo an additional 80 hours of a CPMP. Carrier’s utilization review agents denied Petitioner’s request, and Petitioner requested an IRO review.

DISCUSSION

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 (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 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 §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 (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."

With regard to chronic pain management programs, the ODG provides as follows:

“Criteria for the general use of multidisciplinary pain management programs:

Outpatient pain rehabilitation programs may be considered medically necessary in the following circumstances:

  1. The patient has a chronic pain syndrome, with evidence of loss of function that persists beyond three months and has evidence of three or more of the following:
  2. (b)Excessive dependence on health-care providers, spouse, or family;
  3. (c)Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;
  4. (d)Withdrawal from social activities or normal contact with others, including work, recreation, or other social contacts;
  5. (e)Failure to restore preinjury function after a period of disability such that the physical capacity is insufficient to pursue work, family, or recreational needs;
  6. (f)Development of psychosocial sequelae that limits function or recovery after the initial incident, including anxiety, fear-avoidance, depression, sleep disorders, or nonorganic illness behaviors (with a reasonable probability to respond to treatment intervention);
  7. (g)The diagnosis is not primarily a personality disorder or psychological condition without a physical component;
  8. (h)There is evidence of continued use of prescription pain medications (particularly those that may result in tolerance, dependence or abuse) without evidence of improvement in pain or function.
  9. Previous methods of treating chronic pain have been unsuccessful and there is an absence of other options likely to result in significant clinical improvement.
  10. An adequate and thorough multidisciplinary evaluation has been made. This should include pertinent validated diagnostic testing that addresses the following:
  11. (k)A physical exam that rules out conditions that require treatment prior to initiating the program. All diagnostic procedures necessary to rule out treatable pathology, including imaging studies and invasive injections (used for diagnosis), should be completed prior to considering a patient a candidate for a program. The exception is diagnostic procedures that were repeatedly requested and not authorized. Although the primary emphasis is on the work-related injury, underlying non-work related pathology that contributes to pain and decreased function may need to be addressed and treated by a primary care physician prior to or coincident to starting treatment;
  12. (l)Evidence of a screening evaluation should be provided when addiction is present or strongly suspected;
  13. (m)Psychological testing using a validated instrument to identify pertinent areas that need to be addressed in the program (including but not limited to mood disorder, sleep disorder, relationship dysfunction, distorted beliefs about pain and disability, coping skills and/or locus of control regarding pain and medical care) or diagnoses that would better be addressed using other treatment should be performed;
  14. (n)An evaluation of social and vocational issues that require assessment.
  15. If a goal of treatment is to prevent or avoid controversial or optional surgery, a trial of 10 visits (80 hours) may be implemented to assess whether surgery may be avoided.
  16. If a primary reason for treatment in the program is addressing possible substance use issues, an evaluation with an addiction clinician may be indicated upon entering the program to establish the most appropriate treatment approach (pain program vs. substance dependence program). This must address evaluation of drug abuse or diversion (and prescribing drugs in a non-therapeutic manner). In this particular case, once drug abuse or diversion issues are addressed, a 10-day trial may help to establish a diagnosis, and determine if the patient is not better suited for treatment in a substance dependence program. Addiction consultation can be incorporated into a pain program. If there is indication that substance dependence may be a problem, there should be evidence that the program has the capability to address this type of pathology prior to approval.
  17. Once the evaluation is completed, a treatment plan should be presented with specifics for treatment of identified problems, and outcomes that will be followed.
  18. There should be documentation that the patient has motivation to change, and is willing to change their medication regimen (including decreasing or actually weaning substances known for dependence). There should also be some documentation that the patient is aware that successful treatment may change compensation and/or other secondary gains. In questionable cases, an opportunity for a brief treatment trial may improve assessment of patient motivation and/or willingness to decrease habituating medications.
  19. Negative predictors of success (as outlined above) should be identified, and if present, the pre-program goals should indicate how these will be addressed.
  20. If a program is planned for a patient that has been continuously disabled for greater than 24 months, the outcomes for the necessity of use should be clearly identified, as there is conflicting evidence that chronic pain programs provide return-to-work beyond this period. These other desirable types of outcomes include decreasing post-treatment care including medications, injections and surgery. This cautionary statement should not preclude patients off work for over two years from being admitted to a multidisciplinary pain management program with demonstrated positive outcomes in this population.
  21. Treatment is not suggested for longer than 2 weeks without evidence of compliance and significant demonstrated efficacy as documented by subjective and objective gains. (Note: Patients may get worse before they get better. For example, objective gains may be moving joints that are stiff from lack of use, resulting in increased subjective pain.) However, it is also not suggested that a continuous course of treatment be interrupted at two weeks solely to document these gains, if there are preliminary indications that they are being made on a concurrent basis.
  22. Integrative summary reports that include treatment goals, compliance, progress assessment with objective measures and stage of treatment, must be made available upon request at least on a bi-weekly basis during the course of the treatment program.
  23. Total treatment duration should generally not exceed 20 full-day (160 hours) sessions (or the equivalent in part-day sessions if required by part-time work, transportation, childcare, or comorbidities). (Sanders, 2005) Treatment duration in excess of 160 hours requires a clear rationale for the specified extension and reasonable goals to be achieved. Longer durations require individualized care plans explaining why improvements cannot be achieved without an extension as well as evidence of documented improved outcomes from the facility (particularly in terms of the specific outcomes that are to be addressed).
  24. At the conclusion and subsequently, neither re-enrollment in repetition of the same or similar rehabilitation program (e.g. work hardening, work conditioning, out-patient medical rehabilitation) is medically warranted for the same condition or injury (with possible exception for a medically necessary organized detox program). Prior to entry into a program the evaluation should clearly indicate the necessity for the type of program required, and providers should determine upfront which program their patients would benefit more from. A chronic pain program should not be considered a “stepping stone” after less intensive programs, but prior participation in a work conditioning or work hardening program does not preclude an opportunity for entering a chronic pain program if otherwise indicated.
  25. Suggestions for treatment post-program should be well documented and provided to the referral physician. The patient may require time-limited, less intensive post-treatment with the program itself. Defined goals for these interventions and planned duration should be specified.
  26. Post-treatment medication management is particularly important. Patients that have been identified as having substance abuse issues generally require some sort of continued addiction follow-up to avoid relapse.

Inpatient pain rehabilitation programs: These programs typically consist of more intensive functional rehabilitation and medical care than their outpatient counterparts. They may be appropriate for patients who:

  1. don’t have the minimal functional capacity to participate effectively in an outpatient program;
  2. have medical conditions that require more intensive oversight;
  3. are receiving large amounts of medications necessitating medication weaning or detoxification; or
  4. have complex medical or psychological diagnosis that benefit from more intensive observation and/or additional consultation during the rehabilitation process. (Keel, 1998) (Kool, 2005) (Buchner, 2006) (Kool, 2007) As with outpatient pain rehabilitation programs, the most effective programs combine intensive, daily biopsychosocial rehabilitation with a functional restoration approach. If a primary focus is drug treatment, the initial evaluation should attempt to identify the most appropriate treatment plan (a drug treatment /detoxification approach vs. a multidisciplinary/interdisciplinary treatment program).”

The IRO reviewer was a medical doctor who was a board certified specialist in anesthesiology and pain management. The IRO cited the ODG and determined that the additional 80 hours of a CPMP for the compensable injury was not medically necessary because Claimant had not made significant improvement in the CPMP as of the date of the request for the additional 80 hours of a CPMP. Petitioner appealed the IRO decision. Petitioner contended that Claimant met the ODG criteria, and that the determination of the IRO was incorrect. Nicole M. Mangum, Ph.D., testified on behalf of Petitioner. Dr. Mangum testified that she was a pain team psychologist and was Petitioner’s clinical supervisor. Dr. Mangum further testified that she disagreed with the IRO decision and that Claimant met the ODG criteria for the additional 80 hours of a CPMP. Dr. Mangum noted that the ODG criterion under consideration was criteria number 10 of the CPMP Dr. Mangum noted that Claimant was compliant and had made significant documented improvements in the initial 80 hours of a CPMP. Dr. Mangum further noted that Claimant had made subjective and objective gains in the initial 80 hours of the CPMP and these improvements included functional, psychological, medical, and vocational.

Petitioner and Carrier cited the ODG criteria for an additional 80 hours of CPMP in support of their respective positions, and consideration was given to the opinions expressed by Dr. Mangum during her testimony. Petitioner established through the evidence in the record, including the testimony of Dr. Mangum and the documentary evidence, that Claimant met the ODG criteria including criteria number 10 for the additional 80 hours of a CPMP, and that the decision of the IRO was incorrect. Therefore, Petitioner established that the preponderance of the evidence-based medical evidence was contrary to the decision of the IRO that Claimant is entitled to an additional 80 hours of a CPMP for the compensable injury. There was no objection to the testimony, reports, or qualifications of any doctor or witness.

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 (Waco) 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. It is undisputed that Claimant sustained a compensable cervical spine and left shoulder injury on (Date of Injury).
    5. The Independent Review Organization determined that Claimant is not entitled to an additional 80 hours of a chronic pain management program for the compensable injury of (Date of Injury).
  2. Carrier delivered to Petitioner 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 2A.
  3. 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 2B.
  4. The preponderance of the evidence-based medical evidence is contrary to the determination of the Independent Review Organization.
  5. The requested additional 80 hours of a chronic pain management program is health care reasonably required for the compensable injury of (Date of Injury).

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 (Waco) Field Office.
  3. The preponderance of the evidence is contrary to the decision of the Independent Review Organization that an additional 80 hours of a chronic pain management program is not health care reasonably required for the for the compensable injury of (Date of Injury).

DECISION

Claimant is entitled to an additional 80 hours of a chronic pain management program for the compensable injury of (Date of Injury).

ORDER

Carrier is ordered to pay benefits in accordance with this decision, the Texas Workers’ Compensation Act, and the Commissioner’s Rules. Accrued but unpaid income benefits, if any, shall be paid in a lump sum together with interest as provided by law.

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

(Name)

(Address)

(City) (State) (Zip)

Signed this 29th day of October, 2012.

Wes Peyton
Hearing Officer

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