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DECISION

This case is decided pursuant to the Texas Workers’ Compensation Act and the Rules of the Texas Department of Insurance, Division of Workers’ Compensation. For the reasons discussed herein, the Administrative Law Judge determines the following:

The preponderance of the evidence is not contrary to the decision of the Independent Review Organization (IRO) that Belbuca 600 mcg film, quantity 60 for a 30-day supply with two refills, and ZTlido patch #60 for a 30-day supply is not health care reasonably required for the compensable injury of (Date of Injury).

ISSUE

A contested case hearing was held on March 16, 2021, to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that Belbuca 600 mcg film, quantity 60 for a 30-day supply with two refills, and ZTLido patch #60 for a 30-day supply is not health care reasonably required for the compensable injury of (Date of Injury)?

PERSONS PRESENT

The claimant appeared and was represented by TM, attorney. The insurance carrier appeared and was represented by RG, attorney. The hearing was held by teleconference in accordance with Commissioner Cassie Brown’s March 24, 2020, memo to system participants regarding workers’ compensation operations in light of COVID-19.

EVIDENCE PRESENTED

The following witnesses testified:

For the claimant: The claimant.

For the insurance carrier: None.

The following exhibits were admitted into evidence:

Administrative Law Judge Exhibit: ALJ-1.

The claimant’s Exhibits: C-1 through C-14.

The insurance carrier’s Exhibits: CR-A through CR-D.

DISCUSSION

The claimant sustained a compensable injury on (Date of Injury), when she was involved in a motor vehicle accident. The compensable injury includes at least an injury to the spine. The claimant is paralyzed from the waist down. According to the claimant she has severe pain and has tried a number of different combinations of pain medications with various success. The claimant stated that the combination of Belbuca and the ZTLido patch are effective in relieving her pain.

To determine if treatment is medically necessary, Texas law requires DWC to use treatment guidelines. These guidelines must be evidence-based, scientifically valid, and outcome-focused. Use of these guidelines ensures that an injured employee will receive reasonable and necessary health care. (See Labor Code §413.011(e) and 413.017(1).) DWC uses the current edition of the Official Disability Guidelines (ODG). If the ODG does not address the requested treatment, then other guidelines or generally accepted standards of practice recognized in the medical community are used.

In September 2020, Dr. SM started treating the claimant, and Dr. M noted that the claimant was taking Belbuca 450 mcg in addition to taking Norco. According to Dr. M, she prescribed Belbuca 600 mcg to prevent breakthrough pain and to get the claimant off the Norco and its side effects. Dr. M stated that Belbuca 600 mcg is a safer alternative to Hydrocodone because it is not used as a street drug; therefore, it has no street value.

Dr. M wrote in her January 18, 2021, letter that in addition to Belbuca 600 mcg, she also prescribed ZTLido 1.8% patch for the claimant’s hip and chin pain. Dr. M stated that the patches are used to help with nerve pain resulting from the claimant’s paraplegia. Dr. M opined that with this type of complicated injury, a doctor has to try several types of medications until the correct one works, even if it is used off label. According to Dr. M, medical records indicated that the claimant was already using Lidocaine patches to control this pain, and the ZTLido 1.8% patch is just an updated version of the Lidocaine patch and it has adherent properties that are superior. Thus, this patch stays in place and better delivers the medications that the claimant needs to control her pain.

Dr. M stated that in her opinion, the ZTLido 1.8% patch and the Belbuca 600 mcg are medically necessary for the reasons explained above, and to allow the claimant to live as close a pain free life as she can with the injuries that she sustained.

On September 25, 2020, physician advisor, Dr. LL, completed a utilization review regarding the medical reasonableness and necessity of the requested Belbuca. In that review, the advisor noted the lack of objective functional gains from ongoing use of medication and treatment, as well as the lack of ongoing assessment of pain and functional outcomes. The physician advisor attempted a peer-to-peer discussion with Dr. M, which was not successful, and recommended non-authorization of the request.

On September 29, 2020, physician advisor, Dr. CC, provided a utilization review regarding the ZTLido. Dr. C noted that topical Lidocaine was listed as an "N" drug in the Workers' Compensation formulary and was not recommended as a first line treatment for neuropathic pain. The advisor also noted that it was not probable that topical Lidocaine would help with pain from a spinal cord injury. Further, he noted that the ODG stated that there needed to be objective improvements in pain and function and decreased use of other medications to justify the continued use of the medication, which had not occurred.

On October 13, 2020, physician advisor, Dr. DB, performed a utilization review of the requested Belbuca increase. Dr. B noted that the claimant had previously used Belbuca at 450 mcg dose and that the requesting physician had failed to specify why the claimant required an increase in the dose of the medication if she was responding favorably to the lower dose of Belbuca previously. The physician advisor stated that the current request for increased dose of Belbuca could not be authorized due to this lack of information. Dr. B also addressed the requested ZTLido, and she noted that the ODG did not recommend the use of ZTLido as a first line treatment for neuropathic pain and that the ZTLido patches were approved by the FDA for treatment of post­herpetic neuralgia, which is not among the claimant’s clinical conditions. Dr. B also opined that the requesting doctor did not explain why a change in patches was necessary. The denial was upheld.

The claimant then requested an Independent Review Organization (IRO) review of the denial. On November 4, 2020, the IRO upheld the previous denials of the requested medications. The claimant is now appealing the IRO decision.

In this dispute, the claimant has the burden of showing by a preponderance of the medical evidence that the IRO decision is wrong. The claimant relied on her testimony and the medical records in evidence to support her position of entitlement to the disputed treatment. The insurance carrier relied on the medical records and the IRO decision in evidence to support its position that the claimant is not entitled to the requested medical services.

According to the IRO reviewer, ZTLido is not FDA approved for the treatment of neuropathic pain due to spinal cord injury and is listed as an "N" drug on the Workers' Compensation formulary. Additionally, the IRO reviewer stated that since the claimant’s lower extremity pain is, in all medical probability centrally mediated due to the spinal cord injury, application of local anesthetic patches such as ZTLido, would be, more medically likely than not, not likely to provide significant pain relief. The IRO reviewer opined that the request for ZTLido patches is not reasonable medically necessary, or in accordance with the ODG guidelines. The IRO reviewer upheld the prior physician advisor recommendations for non-authorization for this medication,

The IRO reviewer added that there is no justification provided by the requesting physician for the increase in Belbuca from 450 mcg every twelve hours to 600 mcg every twelve hours nor is there any documentation of significant pain relief or functional improvement from the use of Belbuca. Since the ODG guidelines require that there be evidence of improved functional outcome and decreased use of medication, it does not appear that the use of Belbuca is providing significant pain relief at all. Moreover, there has not been any decrease in the use of other medications concurrent with the ongoing use of Belbuca, further casting doubt upon its effectiveness and medical necessity, according to the ODG. According to the IRO reviewer, no urine drug screens have apparently been performed on this patient during the time she has been taking both Belbuca and an opioid (Hydrocodone), which is a requirement for physicians to continue prescribing opioids. Therefore, there is no documented medical reason, medical necessity, or indication for increasing the patient's dose of Belbuca to 600 mcg every twelve hours from the current 450 mcg every twelve hours nor any ODG support for such.

The IRO reviewer determined that the requested prescription for Belbuca 600 mcg, quantity 60 for a 30 day supply with 2 refills and the prescription for ZTLido 1.8% patch, quantity 60 for a 30 day supply are not appropriate, medically necessary, or in accordance with the ODG; therefore, the prior adverse determinations are upheld at this time.

In summary, the evidence offered, does not provide a persuasive explanation using evidence-based medicine of how the disputed treatment is necessary.

The ALJ considered all the evidence admitted. The Findings of Fact and Conclusions of Law are based on an assessment of all the evidence, whether or not the evidence is specifically discussed in this Decision.

FINDINGS OF FACT

1. The parties stipulated to the following facts:

A. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.

B. On (Date of Injury), the claimant was the employee of (Employer), the employer.

C. On (Date of Injury), the employer provided workers’ compensation insurance through self-insurance.

D. On (Date of Injury), the claimant sustained a compensable injury.

E. The (Date of Injury), compensable injury includes at least injury to the lumbar spine.

F. The Independent Review Organization decision upheld the insurance carrier’s denial of Belbuca 600 mcg film, quantity 60 for a 30-day supply with two refills, and ZTLido patch #60 for a 30-day supply.

2. The insurance carrier delivered to the claimant a document stating the insurance carrier’s true corporate name and the registered agent’s name. This document was admitted into evidence as the insurance carrier’s exhibit: CR-B.

3. The Independent Review Organization decision was sent to the parties on September 29, 2020.

4. On October 14, 2020, the claimant filed this appeal of the Independent Review Organization decision with the Division of Workers’ Compensation. The appeal was filed within twenty days from the date the Independent Review Organization decision was sent to the parties.

5. The decision of the Independent Review Organization has not become final because the Division of Workers’ Compensation timely received the request for appeal.

6. The preponderance of the evidence-based medical evidence does not support that Belbuca 600mcg film, quantity 60 for a 30-day supply with two refills, and ZTLido patch #60 for a 30-day supply is medically necessary 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. The preponderance of the evidence is not contrary to the decision of the Independent Review Organization (IRO) that Belbuca 600 mcg film, quantity 60 for a 30-day supply with two refills, and ZTLido patch #60 for a 30-day supply is not health care reasonably required for the compensable injury of (Date of Injury).

ORDER

The insurance carrier is not liable for the benefits in dispute in this hearing. The claimant remains entitled to medical benefits for the compensable injury in accordance with Texas Labor Code §408.021.

The true corporate name of the insurance carrier is (Self-Insured), (SELF-INSURED). The name and address of its registered agent for service of process is:

(NAME)
(ADDRESS)
(CITY, STATE, ZIPCODE)

Signed on18th day of March, 2021.

Early Moye
Administrative Law Judge

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 (DWC). For the reasons discussed herein, the Administrative Law Judge (ALJ) determined that the preponderance of the evidence is not contrary to the decision of the Independent Review Organization (IRO) that the Claimant/Petitioner is not entitled to a medial branch block at L2, L3, and L4.

STATEMENT OF THE CASE

On February 7, 2022, Kevin L. Henry, a DWC ALJ, held a contested case hearing to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the IRO that the Claimant/Petitioner is not entitled to a medial branch block at L2, L3, and L4?

PARTIES PRESENT

Claimant/Petitioner appeared and was assisted by RH, ombudsman.

Insurance Carrier/Respondent appeared and was represented by CF, attorney.

EVIDENCE PRESENTED

No witnesses testified.

The following exhibits were admitted into evidence:

Administrative Law Judge’s Exhibit: None.

Claimant/Petitioner’s Exhibits: C-1 through C-8.

Insurance Carrier/Respondent’s Exhibits: CR-A through CR-G.

DISCUSSION

The evidence showed that Claimant/Petitioner sustained a compensable injury on (Date of Injury). The evidence further showed that Claimant/Petitioner had the job of maintaining the engines and pumps in the oilfield for Employer. Claimant/Petitioner sustained the injury while walking on a walkway made of old pallets that collapsed while Claimant/Petitioner was carrying a 100 pound load.

A request for preauthorization of a medial branch block at L2, L3, and L4 was submitted to Insurance Carrier. On August 26, 2021, the request was denied. Claimant appealed the denial. The subsequent utilization review agent again recommended that the requested medial branch blocks be denied. Claimant appealed Insurance Carrier's denial through the DWC IRO process. Independent Reviewers of Texas, the IRO, upheld the Insurance Carrier's denial. Claimant appealed the IRO decision to a contested case hearing in accordance with 28 Texas Labor Code §133.308.

The evidence also showed that Claimant/Petitioner had a previous selective nerve root block and reported relief short term. Claimant/Petitioner was examined by MN, ACNP, with LR, M.D., on July 8, 2021, and complained of low back and leg pain. Claimant/Petitioner continued to complain of pain in the low back and left leg during a follow-up examination, and Dr. R submitted another request for a medial branch block at L2, L3, and L4. In a notice of adverse determination dated July 14, 2021, the utilization review agent, LL, M.D., indicated the requested medial branch block at L2, L3, and L4 was not medically necessary in accordance with the Official Disability Guidelines (ODG). Dr. R submitted a request for reconsideration, and a second utilization review agent, HK, M.D., submitted a denial dated August 26, 2021, which indicated the requested treatment was not medically necessary in accordance with the ODG. Due to the previous denials, Dr. R requested a review by an IRO. The IRO reviewer upheld the previous denials, and Claimant/Petitioner appealed by requesting a medical contested case hearing.

Texas Labor Code §408.021 provides that an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. Health care reasonably required is further defined in Texas Labor Code §401.011(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 Labor Code §401.011(18-a) to be the use of the current best quality scientific and medical evidence formulated from credible scientific studies, including peer-reviewed medical literature and other current scientifically based texts and treatment and practice guidelines. The Commissioner of the Division of Workers' Compensation is required to adopt treatment guidelines that are evidence-based, scientifically valid, outcome-focused, and designed to reduce excessive or inappropriate medical care while safeguarding necessary medical care. Texas Labor Code §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 DWC has adopted treatment guidelines by 28 Texas Administrative Code (TAC) §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 28 TAC §133.308(s), a decision issued by an IRO is not considered an agency decision and neither the Texas Department of Insurance nor DWC are considered parties to an appeal. In a contested case hearing, 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.

For Claimant/Petitioner to meet his burden, he had to present a qualified expert medical opinion with reference to evidence-based medicine to show the preponderance of the evidence-based medical evidence is contrary to the decision issued by the IRO. Such evidence-based medical evidence was lacking in this case. As such, insufficient evidence-based medical evidence existed to explain that the requested medial branch block was health care reasonably required for the compensable injury. Therefore, the preponderance of the evidence is not contrary to the decision of the IRO that Claimant/Petitioner is not entitled to the requested treatment.

The Administrative Law Judge 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:

A. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.

B. On (Date of Injury), Claimant/Petitioner was the employee of (Employer), Employer.

C. On (Date of Injury), Employer provided workers’ compensation insurance through American Home Assurance Company, Insurance Carrier.

D. On (Date of Injury), Claimant/Petitioner sustained a compensable injury.

2. Insurance Carrier/Respondent provided a single document stating the true corporate name of Insurance Carrier/Respondent and the name and street address of Insurance Carrier/Respondent’s registered agent for service to Claimant/Petitioner. That document was admitted into evidence as Insurance Carrier/Respondent’s Exhibit B.

3. The medial branch block at L2, L3, and L4 is not health care reasonably required for the compensable injury of (Date of Injury).

CONCLUSIONS OF LAW

1. The Texas Department of Insurance, DWC, 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 Claimant/Petitioner is not entitled to a medial branch block at L2, L3, and L4.

DECISION

The preponderance of the evidence is not contrary to the decision of the IRO that the Claimant/Petitioner is not entitled to medial branch block at L2, L3, and L4.

ORDER

Insurance Carrier/Respondent is not liable for the benefits at issue in this hearing. Claimant/Petitioner remains entitled to medical benefits for the compensable injury in accordance with Texas Labor Code §408.021.

The true corporate name of the insurance carrier is AMERICAN HOME ASSURANCE COMPANY, and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218

Signed this 15th day of February 2022.

Kevin L. Henry
Administrative Law Judge

DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and Rules of the Division of Workers’ Compensation adopted thereunder. For the reasons discussed herein, the Administrative Law Judge (ALJ) determines that Claimant is not entitled to home health services provided by his wife 24/7 as aid care.

ISSUES

A contested case hearing (CCH) was held on January 26, 2022, 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 home health services provided by his wife 24/7 as aid care?

PARTIES PRESENT

Petitioner/Claimant (Claimant) was present, and assisted by KG, ombudsman. Respondent/Insurance Carrier (Insurance Carrier) appeared and was represented by BL, attorney. RW was also present.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant: Claimant and RW.

For Insurance Carrier: None.

The following exhibits were admitted into evidence: Administrative Law Judge’s Exhibits: ALJ-1 and ALJ-2.

Claimant’s Exhibits C-1 through C-9.

Insurance Carrier’s Exhibits CR-A through CR-D.

DISCUSSION

Claimant sustained a compensable injury on (Date of Injury), which extends to and includes a concussion. Claimant and RW both testified as to Claimant’s need for 24 hour care from April 1, 2021, through July 22, 2021. Claimant returned home to Texas on April 1, 2021. Ms. W began providing 24 hour care, which included tracking his vitals, dispensing medications, making meals, and supervising Claimant as he was at risk of choking and falling. In evidence are Ms. W’s detailed notes regarding her care of Claimant from April 1, 2021, through May 13, 2021, and from May 25, 2021, through July 22, 2021. Claimant suffered a heart attack on May 13, 2021, for which he was hospitalized until May 24, 2021.

The Division of Workers' Compensation has adopted treatment guidelines by DWC 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 DWC 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, 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."

A Notice of Adverse Determination for the initial request for 24/7 home health care provided by Ms. W was issued on May 5, 2021, citing to the Official Disability Guidelines (ODG). Claimant filed an appeal, which was denied on June 14, 2021. The adverse determination was upheld in an Independent Review Decision which was issued on August 2, 2021, in IRO Case # (Case Number). The previous non-certifications were upheld for several reasons:

The duration of the request is not specified. The specific medical treatment to be provided is not specified. ODG guidelines justify the medical necessity of home health services requires documentation of the medical condition that necessitates home health services, including deficits in function and specific activities. There are also requirements of documentation for the expected kinds of services that will be required, with the exception of tasks and services that can be performed without charge by the worker’s spouse or other household member, with an estimated frequency and duration of such services not to exceed 15 initial visits over three weeks. The submitted documentation does not indicate expected services to be rendered by the home health service. Therefore, medical necessity is not established in accordance with current evidence based guidelines.

The decision of the IRO is supported by the preponderance of the evidence. Claimant did not carry his burden of proof to establish, through evidence-based medical evidence, that the decision of the IRO should be overturned.

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:

A. The Texas Department of Insurance, DWC has jurisdiction to hear this matter.

B. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.

C. On (Date of Injury), Claimant was the employee of (Employer), Employer.

D. On (Date of Injury), Employer provided workers’ compensation insurance coverage through Charter Oak Fire Insurance Company, Insurance Carrier.

E. On (Date of Injury), Claimant sustained a compensable injury.

F. The IRO determined that Claimant is not entitled to home health services provided by his wife 24/7 as aid care.

G. The compensable injury of (Date of Injury), extends to and includes a concussion.

2. Insurance Carrier delivered to Claimant a single document stating the true corporate name of Insurance Carrier, and the name and street address of Insurance Carrier’s registered agent, which document was admitted into evidence as Insurance Carrier’s Exhibit CR-B.

3. The preponderance of the evidence is not contrary to the decision of the Independent Review Organization that Claimant is not entitled to home health services provided by his wife 24/7 as aid care.

CONCLUSIONS OF LAW

1. The Texas Department of Insurance, DWC, has jurisdiction to hear this case.

2. Venue is proper in the (City) Field Office.

3. Claimant is not entitled to the requested home health services provided by his wife 24/7 as aid care.

DECISION

Claimant is not entitled to the requested home health services provided by his wife 24/7 as aid care.

ORDER

Insurance 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 CHARTER OAK FIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is:

CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701

Signed on February 9, 2022.

Amber Morgan
Administrative Law Judge

DECISION AND ORDER

Claimant appealed the decision of the Independent Review Organization (IRO) in Case Number (Case Number). The hearing for this appeal was held on January 27, 2022. Pursuant to the agreement of the parties, the administrative law judge (ALJ) determines that:

The preponderance of the other medical evidence is not contrary to the IRO decision dated January 19, 2021, in IRO Case Number (Case Number).

ISSUE

At the hearing, Hector Q. Martinez, an ALJ, considered the following unresolved issue:

Is the claimant entitled to postoperative physical therapy for the left shoulder [3 times a week x 6 weeks], shoulder abduction orthosis [purchase x1], left shoulder arthroscopy with distal clavicle resection, left shoulder debridement (outpatient), and surgeon’s assistant for the compensable injury of (Date of Injury)?

PERSONS PRESENT

Claimant appeared by phone at the hearing on January 27, 2022, and in person representing him was HC, attorney. Insurance Carrier appeared at the hearing on January 27, 2022, and was represented by KG, attorney.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant: Claimant

For Insurance Carrier: None

The following exhibits were admitted into evidence:

Administrative Law Judge Exhibits: ALJ-1 through ALJ-3

Claimant Exhibits: None

Insurance Carrier Exhibits: None

AGREEMENT

The parties reached an agreement. The agreement resolves only those issues to be decided at this hearing. The agreement does not resolve all issues with regard to this claim and is not a settlement.

In this decision, this Agreement section includes findings of fact and the Decision section constitutes the conclusions of law.

1. The parties agreed as follows:

A. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.

B. On (Date of Injury), Claimant was the employee of (Employer), Employer.

C. On (Date of Injury), Employer provided workers’ compensation insurance through National Interstate Insurance Company, Insurance Carrier.

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

E. The requested treatment is for the (Date of Injury), compensable injury that includes at least a left shoulder sprain/strain.

F. The Independent Review Organization decision upheld and agreed with the insurance carrier’s denials of postoperative physical therapy for the left shoulder [3 times a week x 6 weeks], shoulder abduction orthosis [purchase x1], left shoulder arthroscopy with distal clavicle resection, left shoulder debridement (outpatient), and surgeon’s assistant for the compensable injury of (Date of Injury).

G. The Independent Review Organization decision dated January 19, 2021, was sent to the parties and was deemed to be received by January 24, 2021.

H. On February 3, 2021, Claimant filed an Appeal of the Independent Review Organization Decision (DWC049) with the Division of Workers’ Compensation. The appeal was filed within twenty days from the date the Independent Review Organization decision was sent to the parties.

2.The Administrative Law Judge found the following fact:

Insurance Carrier delivered to Claimant a document stating the insurance carrier’s true corporate name and the registered agent’s name. This document was admitted into evidence as ALJ-3.

The parties agreed to the following:

The preponderance of the other medical evidence is not contrary to the IRO decision dated January 19, 2021, in IRO Case Number (Case Number).

DECISION

The preponderance of the other medical evidence is not contrary to the IRO decision dated January 19, 2021, in IRO Case Number (Case Number).

ORDER

Insurance Carrier is not liable for the benefits at issue in this hearing and it is so ordered. Claimant remains entitled to medical benefits for the compensable injury in accordance with Texas Labor Code §408.021.

The true corporate name of the insurance carrier is NATIONAL INTERSTATE INSURANCE COMPANY, and the name and address of its registered agent for service of process is:

CORPORATION SERVICE COMPANY
211 EAST 7th STREET SUITE 620
AUSTIN TX 78701-3218

Signed this 27th day of January 2022.

Hector Q. Martinez
Administrative Law Judge

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 Administrative Law Judge (ALJ) determines that Claimant is not entitled to sacral caudal #2 under fluoroscopy, CPT 62323 and 77003.

STATEMENT OF THE CASE

On December 16, 2021, Britt Clark, a Division ALJ, held a contested case hearing to decide the following disputed issue:

Is the preponderance of the evidence contrary to the opinion of the Independent Review Organization (IRO) reviewer that Claimant is not entitled to sacral caudal #2 under fluoroscopy, CPT 62323 and 77003?

PERSONS PRESENT

Claimant appeared and was assisted by CT, ombudsman. Insurance Carrier appeared and was represented by BL, attorney. DA observed the proceeding with the Office of Injured Employee Counsel.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant: Claimant.

For Insurance Carrier: None.

The following exhibits were admitted into evidence: ALJ’s Exhibit: ALJ-1.

Claimant’s Exhibits: C-1 through C-4.

Insurance Carrier’s Exhibits: CR-A through CR-D.

DISCUSSION

Claimant sustained a compensable injury (Date of Injury). This case involved a dispute as to the medical necessity of a sacral caudal injection. Claimant testified as to his continued symptoms from his work injury and the relief he received from prior injections. Claimant had an injection on May 18, 2021, which was complicated with a hospital trip due to concern for a heart rate issue, though Claimant stated he did obtain some diminished symptoms due to this injection. Dr. CD, Claimant’s treating doctor, requested a repeat injection, which was denied. Claimant contested the opinion of the IRO with the opinion of Dr. D and his medical records. Insurance Carrier relied on the IRO determination and the medical opinions obtained during the preauthorization process.

The requested treatment was initially denied because the May 18, 2021, injection was requested less than one month after the initial injection, and the reviewer did not believe sufficient time had passed to certify the treatment as medically necessary. On reconsideration, a reviewer stated that there was not progressive neurological deficit or ongoing symptoms to support a repeated injection. The IRO reviewer noted that there was 75% improvement after the May 18, 2021, caudal block, but concluded that there were no new or worsening symptoms to consider a repeat injection. These three reviewers cited the Official Disability Guidelines (ODG).

Dr. D stated in his records that Claimant has continued radicular symptoms down the left leg, left lateral calf, and to the left dorsal aspect. Dr. D opined that Claimant is working with a home exercise program and aquatic training, and the lack of a repeat injection is impeding the process.

The Division has adopted treatment guidelines for medical providers to provide treatment in accordance with the current edition of the ODG. The low back section of the ODG provides criteria for low back injections in evaluating medical necessity. The ODG states that a request for the procedure in a patient with chronic radiculopathy requires additional documentation of recent symptom worsening associated with deterioration of neurologic state. The ODG also notes that repeat therapeutic injections are not routinely recommended unless there is evidence of an acute pain exacerbation after a symptom-free period.

After review of the evidence, it is determined that Claimant failed to meet his burden of proof. While Dr. D notes that Claimant has continued radicular symptoms that have impeded his physical training and that another block would improve his condition, there was a lack of evidence of symptom worsening or deterioration of his neurologic state. Dr. D did not cite the ODG or other evidence-based medical studies in his request for this treatment. Furthermore, the records he provided were insufficient to show that ODG criteria for the treatment requested was met. The IRO reviewer concluded that there was a lack of sufficient clinical findings to support repeat injections, and this opinion was more consistent with the ODG.

Claimant was a very credible witness regarding his pain and physical limitations. However, the evidence presented at the hearing cannot be construed to constitute evidence-based medical evidence sufficient to overcome the decision of the IRO reviewer. As Claimant did not overcome the IRO decision by a preponderance of the evidence-based medical evidence, he has accordingly failed to meet his burden of proof.

The ALJ 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:

A. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.

B. On (Date of Injury), Claimant was the employee of (Employer), Employer.

C. On (Date of Injury), Employer provided workers’ compensation insurance through Travelers Indemnity Company of Connecticut, Insurance Carrier.

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

2. Insurance Carrier delivered to Claimant a single document stating the true corporate name of Insurance Carrier, and the name and street address of Insurance Carrier’s registered agent, which document was admitted into evidence as an Insurance Carrier’s exhibit.

3. Sacral caudal #2 under fluoroscopy, CPT 62323 and 77003, 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 opinion of the IRO reviewer that Claimant is not entitled to sacral caudal #2 under fluoroscopy, CPT 62323 and 77003.

DECISION

Claimant is not entitled to sacral caudal #2 under fluoroscopy, CPT 62323 and 77003.

ORDER

Insurance Carrier is not liable for the benefits at issue in this hearing, and it is so ordered. Claimant remains entitled to medical benefits for the compensable injury in accordance with Texas Labor Code §408.021.

The true corporate name of the insurance carrier is TRAVELERS INDEMNITY COMPANY OF CONNECTICUT, and the name and address of its registered agent for service of process is

CORPORATION SERVICE CO.
d/b/a CSC-LAWYERS INCORPORATING SERVICE CO.
211 EAST 7TH STREET, STE. 620
AUSTIN, TX 78701-3218

Signed this 17th day of December, 2021.

Britt Clark
Administrative Law Judge

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 (DWC). For the reasons discussed herein, the Administrative Law Judge (ALJ) determines that:

Claimant is not entitled to arthrodesis of the distal interphalangeal (DIP) joint, left small finger, with bone graft from iliac crest and possible fixation with Acutrak screw for the compensable injury of (Date of Injury).

Claimant did not timely appeal the adverse ruling of the Independent Review Organization (IRO).

STATEMENT OF THE CASE

A contested case hearing was held on October 19, 2021, to decide the following disputed issues:

Is the preponderance of the evidence contrary to the decision of the IRO that Claimant is not entitled to arthrodesis of the DIP joint, left small finger, with bone graft from iliac crest and possible fixation with Acutrak screw for the compensable injury of (Date of Injury)?

Did Claimant timely appeal the adverse ruling of the IRO?

PERSONS PRESENT

Claimant appeared and was assisted by MM, ombudsman. Insurance Carrier appeared and was represented by DO, attorney.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant: Claimant.

For Insurance Carrier: None.

The following exhibits were admitted into evidence:

ALJ’s Exhibits: ALJ-1 and ALJ-2

Claimant’s Exhibits: C-1 through C-8. (87 PDF pages)

Insurance Carrier’s Exhibits: CR-A through CR-G. (104 PDF pages)

The parties affirmed on the record that, despite any possible misnumbering or mislabeling of their respective exhibits, the PDF pages noted next to the exhibits admitted is correct.

DISCUSSION

Claimant is a (age)-year-old bus operator who fell at work while boarding a bus on (Date of Injury). She reached out with her left arm to break her fall and struck her left small finger on the floor of the bus. She was found to have sustained a nondisplaced fracture of the middle phalanx of her left small finger. Claimant is being treated by DZ, M.D., a hand specialist, for her injury. He has proposed the requested procedure to address residual deficits of the left small finger.

In accordance with statutory guidance, the DWC has adopted treatment guidelines by DWC 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, 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."

Dr. Z’s request for approval of the surgery was reviewed by RB, M.D., who performed a utilization review for the Self-Insured. Dr. B wrote that the request for surgery came less than four weeks after the evaluation by the surgeon, and that Claimant had not received six months of conservative therapy recommended by the Official Disability Guides (ODG). This determination was reviewed at Claimant’s request by CP, M.D., who found the requested surgery not to be medically necessary for the same reason. Claimant requested review of the proposed surgery by an Independent Review Organization (IRO). That review was done by an orthopedic surgeon on June 16, 2021. He stated that the records did not show that Claimant had a focused physical examination, and that it was unclear how the surgery would improve Claimant’s overall functioning of the left hand versus risks of surgery. It was also unclear to the reviewer that Claimant’s smoking habit had been addressed since smoking is associated with poor post-operative outcomes. The reviewer opined that medical necessity was not established for the request. The ODG provides as follows in its discussion of arthrodesis of a finger joint: “recommended for painful conditions including severe post-traumatic arthritis of the wrist, thumb, or digit following 6 months of conservative therapy.”

Claimant offered a letter dated September 7, 2021, from her hand specialist, Dr. Z, in support of her IRO appeal. Dr. Z wrote that it is inevitable that arthritis developed from the fracture because it was an interarticular fracture, for which the treatment is arthrodesis of the joint, which will eliminate motion, but will relieve pain. This evidence did not remedy the deficiencies cited by the reviewers to show that evidence-based medicine does not support the requested treatment at this time.

Claimant sought to appeal the IRO determination for a contested case hearing. Claimant received notice of the IRO decision by certified mail on June 18, 2021. Rule 133.308 (s)((1)(A) requires that Claimant file a written appeal with the DWC’s Chief Clerk of Proceedings no later than the 20th day after the date the IRO decision was sent to the appealing party. Claimant’s DWC Form-49 requesting scheduling of a contested case hearing to appeal the IRO Decision was filed with DWC on July 22, 2021, (ALJ-2) which was not timely.

The preponderance of the evidence supports the decision of the IRO. Claimant did not carry her burden to prove through evidence-based medical evidence that the decision of the IRO should be overturned.

The Administrative Law Judge 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:

A. Venue is proper in the (City) Field Office of the Texas Department of Insurance, DWC.

B. On (Date of Injury), Claimant was the employee of (Employer), Employer.

C. On (Date of Injury), Employer provided workers’ compensation coverage through self-insurance.

D. The IRO, in Case No. 313347, on June 16, 2021, determined that the requested arthrodesis of the DIP joint, left small finger with bone graft from iliac crest and possible fixation with Acutrak screw, is not medically reasonable and necessary for treatment of the compensable injury.

2. Self-Insured delivered to Claimant a single document stating the true corporate name of Insurance Carrier, and the name and street address of Self-Insured’s registered agent, which document was admitted into evidence as Self-Insured’s Exhibit CR-B.

3. The compensable injury was a non-displaced intra-articular fracture of the DIP joint of the left small finger.

4. Evidence-based medical evidence does not establish that arthrodesis of the DIP joint, left small finger with bone graft from iliac crest and possible fixation with Acutrak screw, is medically reasonable and necessary for treatment of the compensable injury of (Date of Injury).

5. The preponderance of the evidence is not contrary to the decision of the IRO that Claimant is not entitled to arthrodesis of the DIP joint, left small finger with bone graft from iliac crest and possible fixation with Acutrak screw, is medically reasonable and necessary for treatment of the compensable injury of (Date of Injury).

6. The IRO Decision No. 313347 dated June 16, 2021, sent to Claimant on June 16, 2021, by certified mail which was delivered on June 18, 2021.

7. Claimant filed her appeal of the IRO decision on July 22, 2021.

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 arthrodesis of the DIP joint, left small finger with bone graft from iliac crest and possible fixation with Acutrak screw is not healthcare reasonably required for the compensable injury of (Date of Injury).

4. Claimant’s appeal of IRO Decision 313347 was not timely.

DECISION

Claimant is not entitled to arthrodesis of the DIP joint, left small finger with bone graft from iliac crest and possible fixation with Acutrak screw for the compensable injury of (Date of Injury). Claimant’s appeal of IRO decision 313347 was not timely.

ORDER

Self-Insured is not liable for the benefits at issue in this hearing, and it is so ordered. 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), and the name and address of its registered agent for service of process is:

(NAME)
(ADDRESS)
(CITY, STATE, ZIPCODE)

Signed this 4th day of November, 2021.

Warren E. Hancock, Jr.
Administrative Law Judge

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 (DWC). For the reasons discussed herein, the Administrative Law Judge (ALJ) determines that:

Claimant is not entitled to total left knee arthroplasty, uncemented, for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

A contested case hearing was held on August 10, 2021, 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 total left knee arthroplasty, uncemented, for the compensable injury of (Date of Injury)?

PERSONS PRESENT

Claimant appeared and was assisted by MM, ombudsman. Insurance Carrier appeared and was represented by BJ, attorney. Also present was Claimant’s spouse, (spouse), and TB, observing at Claimant’s request.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant: Claimant.

For Insurance Carrier: BS, M.D.

The following exhibits were admitted into evidence:

ALJ’s Exhibit: ALJ-1.

Claimant’s Exhibits: C-1 through C-7. (224 PDF pages)

Insurance Carrier’s Exhibits: CR-A through CR-I. (135 PDF pages)

The parties affirmed on the record that, despite any possible misnumbering or mislabeling of their respective exhibits, the PDF pages noted next to the exhibits admitted is correct.

DISCUSSION

Claimant is a (age)-year-old electrical service power lineman for Employer. On (Date of Injury), he was working on a power pole using a climbing harness when the wood on a portion of the pole gave way causing him to lose footing on the right foot causing him to drop down with his left leg extended upwards between his body and the pole. This caused injuries to his left knee, and Insurance Carrier has accepted as compensable a left knee anterior cruciate ligament (ACL) tear, and unilateral osteoarthritis of the left knee. Claimant had surgery on July 24, 2015, and September 11, 2015, to address these problems, and extensive physical therapy thereafter. He returned to work in August 2016, but has continued to have left knee problems.

Claimant is being treated by MB, M.D., an orthopedic surgeon, who has proposed the surgery at issue in this case. Dr. B wrote a summary of Claimant’s treatment to date on July 21, 2021, (Claimant’s Exhibit C-3) indicating that Claimant has complete joint space collapse of multiple compartments of the left knee, which he termed severe, post traumatic joint disease, with pain and limitation of motion. He noted that Claimant had failed conservative management and that Claimant now needs a total left knee replacement arthroplasty.

On July 9, 2021, Claimant had a consultation for a second opinion with BW, M.D., an orthopedic surgeon, who concurred that conservative measures have been exhausted and that Claimant is now a candidate for left total knee replacement arthroplasty.

The Insurance Carrier has accepted as compensable in this case an injury in the form of left knee ACL tear and unilateral osteoarthritis of the left knee. There is no issue of relatedness of the requested treatment to the compensable injury in this case. The only issue is reasonableness and necessity of the proposed treatment.

In accordance with statutory guidance, the Division of Workers' Compensation has adopted treatment guidelines by DWC 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 DWC 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, 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 March 12, 2021, a review of the request for total left knee arthroplasty was performed by JR, M.D., an orthopedic surgeon, serving as Insurance Carrier’s utilization reviewer. The treatment requested was non-certified on the grounds that ODG guidelines were not met. The rational was absence of quantifiable findings for range of motion, no active lists of current medications, and no baseline body mass index documented. An appeal was reviewed for Insurance Carrier by GP, M.D., an orthopedic surgeon on April 8, 2021, who upheld the non-certification, noting that ODG guidelines were not met with regard to documentation of baseline body mass index, palpable marginal osteophytes, no documentation of nighttime joint stiffness and pain, and Claimant’s age which was less than 50. Both Dr. R and Dr. P made multiple attempts to contact Dr. B for peer-to-peer consultation without success.

Claimant appealed the non-certification of the requested surgery to an IRO, which had the request reviewed by a medical doctor who is board certified in orthopedic surgery on May 30, 2021. He upheld non-certification of the requested procedure citing the ODG, noting that Claimant had undergone a steroid injection to the knee less than 6 months before the proposed procedure, no documentation of significant weight loss for a patient with body mass index over 35, Claimant’s age was less than 50, no documentation of recent failed conservative treatments, absence of radiology reports, and no extenuating circumstances noted to support the requested procedure as an exception to the guidelines. At the hearing, BS, M.D., an orthopedic surgeon, testified that the requirements of the ODG for the requested treatment are not met in the particulars noted by the IRO examiner.

The preponderance of the evidence supports the decision of the IRO. Claimant did not carry his burden to prove through evidence-based medical evidence that the decision of the IRO should be overturned.

The Administrative Law Judge 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:

A. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.

B. On (Date of Injury), Claimant was the employee of (Employer), Employer.

C. On (Date of Injury), Employer provided workers’ compensation coverage through Texas Mutual Insurance Company, Insurance Carrier.

D. Claimant sustained a compensable injury on (Date of Injury), in the form of at least the Insurance Carrier-accepted conditions of left knee ACL tear and unilateral osteoarthritis of the left knee.

E. There are no other conditions or diagnoses that need to be adjudicated in this case for purposes of determining the reasonableness and necessity of the requested medical treatment.

F. The IRO, in Case No. 312470, on May 30, 2021, determined that total left knee arthroplasty, uncemented, is not medically reasonable or necessary treatment for the injury of (Date of Injury).

2. Insurance Carrier delivered to Claimant a single document stating the true corporate name of Insurance Carrier, and the name and street address of Insurance Carrier’s registered agent, which document was admitted into evidence as Insurance Carrier’s Exhibit CR-B.

3. Evidence-based medical evidence does not establish that total left knee arthroplasty, uncemented, is healthcare 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 Claimant is not entitled to total left knee arthroplasty, uncemented, 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 total left knee arthroplasty, uncemented, is not healthcare reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is not entitled to total left knee arthroplasty, uncemented, for the compensable injury of (Date of Injury).

ORDER

Insurance Carrier is not liable for the benefits at issue in this hearing, and it is so ordered. 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 MUTUAL INSURANCE COMPANY, and the name and address of its registered agent for service of process is:

RICHARD J. GERGASKO
TEXAS MUTUAL INSURANCE COMPANY
2200 ALDRICH STREET
AUSTIN, TEXAS 78723

Signed this 20th day of August, 2021.

Warren E. Hancock, Jr.
Administrative Law Judge

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 Administrative Law Judge determines that Claimant is not entitled to transforaminal lumbar interbody fusion (TLIF) at L3/4, posterior fusion at L2/3 and L3/4, hemilaminectomy with spine monitoring, and a 3-day inpatient length of stay for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

On July 13, 2021, a medical contested case hearing was held 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 transforaminal lumbar interbody fusion (TLIF) at L3/4, posterior fusion at L2/3 and L3/4, hemilaminectomy with spine monitoring, and a 3-day inpatient length of stay for the compensable injury of (Date of Injury)?

PEOPLE PRESENT

Petitioner/Claimant appeared and was assisted by SS, ombudsman.

Respondent/Insurance Carrier appeared and was represented by BC, attorney.

JS, M.D., appeared during his testimony.

The hearing was held by audio/video-teleconference in accordance with Commissioner Cassie Brown’s March 24, 2020, memo to system participants regarding workers’ compensation operations in light of COVID-19.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant: JS, M.D.

For Insurance Carrier: No one

The following exhibits were admitted into evidence:

Administrative Law Judge’s Exhibits ALJ-1 through ALJ-3

Claimant’s Exhibits C-1 through C-7

Insurance Carrier’s Exhibits CR-A through CR-J

BACKGROUND INFORMATION

Claimant sustained a compensable injury on (Date of Injury). He had a lumbar fusion by JS, M.D., in 1999. He returned to see Dr. S on July 25, 2017, for low back pain and leg numbness and weakness. Claimant has undergone epidural steroid injections and radiofrequency ablations. The effects of the last radiofrequency ablation lasted only about a month. Dr. S has recommended Claimant undergo a transforaminal lumbar interbody fusion (TLIF) at L3/4, posterior fusion at L2/3 and L3/4, hemilaminectomy with spine monitoring, and a 3-day inpatient length of stay. Dr. S requested the procedure. On November 02, 2020, GP, M.D., provided a peer review and opined the requested procedure was not medical necessary because there was a lack of evidence of lumbar instability and because Claimant had been authorized to undergo a radiofrequency ablation. Dr. S re-requested the procedure. On December 08, 2020, there was a reconsideration by SL, M.D., that upheld the denial. He also suggested waiting to see how the radiofrequency ablation worked. Dr. S requested an IRO doctor review the request. On January 24, 2021, the IRO board-certified orthopedic surgeon upheld the denial. Claimant requested this proceeding.

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 IRO board-certified doctor wrote Claimant had a previous fusion at L4-5 and LS-S1 with the most recent imaging from June of 2020 detailing adjacent segment disc disease at L2-3 and at L3-4. He noted there were previous laminectomy defects at these levels along with continuing impingement of the left L3 nerve root within the left lateral recess. He also noted there was moderate neuroforaminal stenosis at both levels due to continuing adjacent segment disc disease. He opined it was unlikely that a repeat attempt at radiofrequency ablation would be of substantial benefit. He noted in the medical records available to him that the November 23, 2020, evaluation noted that Claimant's pain radiated to the right leg which did not correlate with imaging findings which were to the left, specifically the left L3 nerve root. He felt the physical exam was equivocal for a left L3 radiculopathy and only a right straight leg raise was noted. The IRO board-certified doctor wrote:

Overall, the records do not indicate a clear pain generator at this point and it is unclear if the proposed revision and extension of the claimant's lumbar fusion to L2 would benefit the claimant functionally vs. the risks involved with the procedure. There are still conservative treatment recommendations pending as well as additional diagnostic testing ordered that should be completed. Therefore, it is this reviewer's opinion that medical necessity for the proposed procedures (Transforaminal lumbar interbody fusion (TLIF) at L3-L4, posterior fusion at L2-L3, L3-L4, hemilaminectomy with spine monitoring, 3-day inpatient length of stay) is not established.

Dr. S testified that he is treating Claimant for severe back pain and leg numbness and weakness. He wants to perform an L2/3 laminectomy/discectomy, removal of the sequestered disc fragment that is in Claimant’s spinal canal, an L2/3 and L3/4 transforaminal interbody fusion and posterior fusion at L2/3 and L3/4. He testified that the MRI demonstrates a disc fragment that displaces the L3 nerve root with bilateral foraminal stenosis compressing the nerves at that point. He testified he does not understand a denial when there is an MRI that demonstrated a disc fragment and there has been a failure of conservative care. He testified that was not the community standard.

On the date of this medical contested case hearing, the Official Disability Guidelines provided the following, in part, regarding transforaminal lumbar interbody fusion (TLIF) at L3/4, posterior fusion at L2/3 and L3/4, hemilaminectomy with spine monitoring, and a 3-day inpatient length of stay:

Fusion - Recommended as an option for spondylolisthesis, pseudarthrosis, unstable fracture, dislocation, acute spinal cord injury with post-traumatic instability, spinal infections with resultant instability, scoliosis, Scheuermann's kyphosis, or tumors, as indicated in the Patient Selection Criteria below. Not recommended in workers' compensation patients for degenerative disc disease (DDD), disc herniation, spinal stenosis without degenerative spondylolisthesis or instability, or nonspecific low back pain, due to lack of evidence or risk exceeding benefit.

Patient Selection Criteria for Lumbar Spinal Fusion:

(A) Recommended as an option for the following conditions with ongoing symptoms, corroborating physical findings and imaging, and after failure of non-operative treatment (unless contraindicated, e.g., acute traumatic unstable fracture, dislocation, spinal cord injury) subject to criteria below:

(1) Spondylolisthesis (isthmic or degenerative) with at least one of these:

(a) instability, and/or

(b) symptomatic radiculopathy, and/or

(c) symptomatic spinal stenosis;

(2) Disc herniation with symptomatic radiculopathy undergoing a third decompression at the same level;

(3) Pseudoarthrosis (single revision attempt);

(4) Unstable fracture;

(5) Dislocation;

(6) Acute spinal cord injury (SCI) with post-traumatic instability;

(7) Spinal infections with resultant instability;

(8) Scoliosis with progressive pain, cardiopulmonary or neurologic symptoms, and structural deformity;

(9) Scheuermann's kyphosis;

(10) Tumors.

(B) Not recommended in workers' compensation patients for the following conditions:

(1) Degenerative disc disease (DDD);

(2) Disc herniation;

(3) Spinal stenosis without degenerative spondylolisthesis or instability;

(4) Nonspecific low back pain.

Dr. S explained that Claimant did not fit in the categories for workers’ compensation patients in that he was not operating specifically on DDD or a disc herniation. He testified Claimant did have spinal stenosis but not central stenosis. His primary concern was the sequestered disc fragment that was displacing the L3 nerve root. In his undated letter found at C-4, Dr. S addressed the six pre-operative clinical surgical indications for spinal fusion, including that the pain generators have been identified through injections and that conservative care has failed.

However, as noted above, the ODG recommends fusion surgery for ten specific conditions. None of the ten apply in this case. Dr. S is wanting to perform the surgery to address the disc fragment, spinal stenosis, and leg weakness/numbness. He did not explain that Claimant has a spondylolisthesis with his spinal stenosis or symptomatic radiculopathy.

The ODG does recommend a laminectomy for spinal stenosis, which is part of the procedure Dr. S is recommending. However, a party cannot prevail where medical necessity of only part of the proposed health care has been established. Medical Contested Case Hearing Decision M6-10-25004-01.

Claimant did not meet his burden of proof to overcome the determination by the IRO board-certified doctor that transforaminal lumbar interbody fusion (TLIF) at L3/4, posterior fusion at L2/3 and L3/4, hemilaminectomy with spine monitoring, and a 3-day inpatient length of stay is not medically necessary.

The Administrative Law Judge 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:

A. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.

B. On (Date of Injury), Claimant was the employee of (Employer), Employer.

C. On (Date of Injury), Employer provided workers’ compensation with Insurance Company of the State of Pennsylvania, Insurance Carrier.

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

E. The Independent Review Organization board-certified orthopedic surgeon determined Claimant should not have transforaminal lumbar interbody fusion (TLIF) at L3/4, posterior fusion at L2/3 and L3/4, hemilaminectomy with spine monitoring, and a 3-day inpatient length of stay.

2. Insurance Carrier delivered to Claimant a single document stating the true corporate name of Insurance Carrier, and the name and street address of Insurance Carrier’s registered agent, which document was admitted into evidence as an Insurance Carrier exhibit.

3. Transforaminal lumbar interbody fusion (TLIF) at L3/4, posterior fusion at L2/3 and L3/4, hemilaminectomy with spine monitoring, and a 3-day inpatient length of 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 transforaminal lumbar interbody fusion (TLIF) at L3/4, posterior fusion at L2/3 and L3/4, hemilaminectomy with spine monitoring, and a 3-day inpatient length of stay is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is not entitled to transforaminal lumbar interbody fusion (TLIF) at L3/4, posterior fusion at L2/3 and L3/4, hemilaminectomy with spine monitoring, and a 3-day inpatient length of stay for the compensable injury of (Date of Injury).

ORDER

Insurance 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 INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701.

Signed this 14th day of July, 2021.

Ken Wrobel
Administrative Law Judge

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 (DWC). For the reasons discussed herein, the Administrative Law Judge determines that the preponderance of the evidence is not contrary to the decision of the Independent Review Organization (IRO) that Claimant is not entitled to right shoulder arthroscopy, subacromial decompression, distal clavicle excision, rotator cuff repair, biceps grooveplasty, polar care cube for right shoulder, a right shoulder post-operative brace for the compensable injury of (Date of Injury).

ISSUE

A contested case hearing was held on May 27, 2021, with the record closing on June 2, 2021, to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the IRO that the Claimant is not entitled to right shoulder arthroscopy, subacromial decompression, distal clavicle excision, rotator cuff repair, biceps grooveplasty, polar care cube for right shoulder, a right shoulder post-operative brace for the compensable injury of (Date of Injury)? (As revised by agreement of the parties)

PERSONS PRESENT

The medical contested case hearing was held by teleconference due to the COVID-19 pandemic. Claimant appeared and was assisted by LI, ombudsman. Insurance Carrier appeared and was represented by BJ, attorney.

EVIDENCE PRESENTED

Witnesses for Claimant: Claimant

Witnesses for Insurance Carrier: BS, M.D.

The following exhibits were admitted into evidence:

Administrative Law Judge’s Exhibits: ALJ-1 and ALJ-2

Claimant’s Exhibits: CL-1 through CL-5

Insurance Carrier’s Exhibits: CR-A through CR-H

Insurance Carrier’s Exhibit list did not include the number of pages contained in Exhibit F. However, Insurance Carrier confirmed that there were eight pages in the actual Exhibit F.

DISCUSSION

The record was re-opened in this case to obtain a revised stipulation from the parties. The additional stipulation and responses from the parties were admitted as Administrative Law Judge’s Exhibit 2 without objections from the parties.

The parties stipulated that Claimant sustained a compensable injury on (Date of Injury). The parties further stipulated that the compensable injury extends to and includes at least a right shoulder strain, right shoulder rotator cuff tear, and right shoulder impingement.

Claimant treated with orthopedic surgeon, CB, M.D., who recommended the disputed treatment for Claimant’s compensable injury. Preauthorization from the Insurance Carrier’s utilization review agent was requested and denied. An Independent Review Organization (IRO) assessment was requested. Applied Independent Review was appointed to act as IRO by the Texas Department of Insurance. An orthopedic surgeon was the reviewer through Applied Independent Review. The IRO upheld the Insurance Carrier’s denial of the requested surgery as medical necessity had not been established without documentation showing clear failure of non-operative measures.

The decision of the IRO was sent to the parties on February 18, 2021. On March 9, 2021, Claimant filed the appeal of the decision with DWC. This date is less than twenty days after the decision was sent to the parties.

To determine if treatment is medically necessary, Texas law requires that DWC use treatment guidelines. These guidelines must be evidence-based, scientifically valid, and outcome-focused. Use of these guidelines ensures that an injured employee will receive reasonable and necessary health care. (See Texas Labor Code § 413.011(e) and § 413.017(1).) DWC uses the current edition of the Official Disability Guidelines (ODG). If the ODG does not address the requested treatment, then other guidelines or generally accepted standards of practice recognized in the medical community are used.

On the date of this medical contested case hearing, the ODG provides the following guidance with regard to the requested surgery in dispute: conservative care is recommended for at least six months with exercise directed toward gaining full range of motion with both stretching and strengthening to balance muscles. Subjective clinical findings include shoulder pain and inability to elevate the arm. Objective clinical findings include weakness with abduction/external rotation testing, may also have atrophy of shoulder musculature, and full passive range of motion. Imaging clinical findings include x-rays, MRI, ultrasound, or arthrogram. Criteria also includes no shoulder injections six months prior to surgery.

In this dispute, Claimant has the burden of showing by a preponderance of the medical evidence that the IRO determination is wrong.

Claimant relied on his testimony and the medical records offered from his treating physician, Dr. B, to support his position of entitlement to the disputed treatment. Claimant testified that he was provided with conservative medical treatment and had performed physical therapy and had a Medrol Dosepak which was consistent with injections. Claimant noted that conservative medical treatment failed. Claimant did not provide a persuasive opinion from his treating physician in support of his position.

Insurance Carrier presented the testimony of BS, M.D. Dr. S explained the different surgical procedures and post-operative medical braces requested by Claimant’s physician. Dr. S explained the criteria outlined under the ODG. He persuasively explained that Claimant had not met the criteria as outlined by the ODG. Specifically, he noted that there had not been six months of conservative medical care provided, and that there was a lack of documentation of the conservative measures taken in the treatment provided. He further explained that Claimant did not meet the criteria outlined in the ODG.

Based on the evidence presented, Claimant failed to provide a persuasive explanation using evidence-based medicine of how the disputed treatment meets the ODG requirements. Claimant failed to provide an evidence-based medical opinion sufficient to contradict the determination of the IRO. The preponderance of the evidence is not contrary to the IRO decision that Claimant is not entitled to right shoulder arthroscopy, subacromial decompression, distal clavicle excision, rotator cuff repair, biceps grooveplasty, polar care cube for right shoulder, a right shoulder post-operative brace for the compensable injury of (Date of Injury).

The Administrative Law Judge 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:

A. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.

B. On (Date of Injury), Claimant was employed by (Employer), Employer.

C. On (Date of Injury), Employer provided workers’ compensation coverage with Texas Mutual Insurance Company.

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

E. The requested treatment is for the (Date of Injury), compensable injury that includes at least a right shoulder strain, right shoulder rotator cuff tear, and right shoulder impingement.

F. The IRO upheld Insurance Carrier’s denial of right shoulder arthroscopy, subacromial decompression, distal clavicle excision, rotator cuff repair, biceps grooveplasty, polar care cube for right shoulder, a right shoulder post-operative brace.

G. The IRO decision was sent to the parties on February 18, 2021.

H. On March 9, 2021, Claimant filed this appeal of the IRO decision with DWC. This date is less than twenty days after the decision was sent to the parties.

2. Insurance Carrier delivered to Claimant a document stating the insurance carrier’s true corporate name and the registered agent’s name and street address. This document was admitted into evidence.

3. Applied Independent Review was appointed to act as IRO by the Texas Department of Insurance.

4. The IRO determined that the Claimant was not entitled to right shoulder arthroscopy, subacromial decompression, distal clavicle excision, rotator cuff repair, biceps grooveplasty, polar care cube for right shoulder, a right shoulder post-operative brace.

5. Claimant failed to provide sufficient evidence-based medical evidence in support of the necessity for the procedures of right shoulder arthroscopy, subacromial decompression, distal clavicle excision, rotator cuff repair, biceps grooveplasty, polar care cube for right shoulder, a right shoulder post-operative brace 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 not contrary to the decision of the IRO that the Claimant is not entitled to right shoulder arthroscopy, subacromial decompression, distal clavicle excision, rotator cuff repair, biceps grooveplasty, polar care cube for right shoulder, a right shoulder post-operative brace for the compensable injury of (Date of Injury).

DECISION

The preponderance of the evidence is not contrary to the decision of the IRO that Claimant is not entitled to right shoulder arthroscopy, subacromial decompression, distal clavicle excision, rotator cuff repair, biceps grooveplasty, polar care cube for right shoulder, a right shoulder post-operative brace for the compensable injury of (Date of Injury).

ORDER

Insurance Carrier is not liable for the benefits at issue in this hearing, and it is so ordered. Claimant remains entitled to medical benefits for the compensable injury in accordance with Texas Labor Code § 408.021.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is:

RICHARD J. GERGASKO
TEXAS MUTUAL INSURANCE COMPANY
2200 ALDRICH STREET
AUSTIN, TEXAS 78723

Signed this 2nd day of June, 2021.

Alice Orta
Administrative Law Judge

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 Administrative Law Judge determines that Claimant is not entitled to bilateral greater & lesser occipital nerve blocks for headaches under fluoroscopy, (Healthcare Provider 3), for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

On April 21, 2021, Ana Thornton, an Administrative Law Judge, held a contested case hearing to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that Claimant is not entitled to bilateral greater & lesser occipital nerve blocks for headaches under fluoroscopy, (Healthcare Provider 3), for the compensable injury of (Date of Injury)?

PERSONS PRESENT

Petitioner/Claimant appeared and was assisted by PO, ombudsman. Respondent/Insurance Carrier appeared and was represented by JL, attorney. KE, M.D., was also present. Due to the COVID-19 pandemic, all individuals appeared via video and audio conference.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant: Claimant

For Insurance Carrier: KE, M.D.

The following exhibits were admitted into evidence:

Administrative Law Judge’s Exhibit: ALJ-1

Claimant’s Exhibits: C-1 and C-2[1]

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

DISCUSSION

On (Date of Injury), Claimant was participating in a team building exercise in his work with Employer, (Employer), when he fell from a table and sustained a compensable injury. Claimant explained that the fall caused his head and neck to hit the carpeted concrete floor.

According to Claimant’s testimony, he began receiving medical treatment on the day of the incident. His initial evaluations took place at (Healthcare Provider 1). At one (Healthcare Provider 1) visit, Claimant received an injection of Toradol for pain, which did not provide him relief. Claimant testified that a few months later, he received treatment from an (City) neurologist, Dr. M[2]. Claimant explained that in March 2019, Dr. M administered an occipital nerve block, but Claimant did not have a full injection, as he informed Dr. M that he found the pain from the procedure to be too severe. Claimant testified that he nevertheless felt relief from the injection given by Dr. M.

Claimant indicated that after treatment with Dr. M, he had examinations with another neurologist, Dr. J. Claimant also had treatment with pain management specialist, CY, M.D., at (Healthcare Provider 2) in (City), Texas. Records in evidence reflect that Claimant began seeing Dr. Y on December 5, 2019. At that visit, Dr. Y noted in the “HPI” section of his report that Claimant informed him that he had prior injections for his posterior head pain “in May which he felt did provide relief but he was unable to complete the injections (due to) procedural pain.” Dr. Y administered bilateral greater and lesser occipital nerve injections at that visit. Dr. Y indicated in the “Discussion Notes” that Claimant “potentially has post concussion syndrome causing headaches.”

Claimant returned to Dr. Y’s practice on December 26, 2019, and January 29, 2020. The “Interval History” portion of the January 29, 2020, record states that “Patient seen today for a f/u visit from 12/26/19. He is s/p a bilateral greater occipital nerve injection and bilateral lesser occipital nerve injection. He states he did not get any relief after the numbing medication wore off.” Claimant acknowledged through his testimony that the bilateral greater and lesser occipital nerve injections administered by Dr. Y did not provide him relief.

Records in evidence show that Claimant received several assessments in 2020 with Dr. Y after January 29, 2020. On February 28, 2020, Claimant had a cervical spine MRI. At a June 2, 2020, visit with Dr. Y, Claimant received a medial branch block at C3 through C5. A follow-up examination with Dr. Y on June 29, 2020, shows that Claimant reported a “50% reduction” in pain from the procedure performed on June 2, 2020. The “Discussion Notes” from the June 29, 2020, record indicate that Claimant is to consider bilateral greater and lesser occipital nerve ablation. Claimant had a telemedicine visit with Dr. Y on August 27, 2020. At that appointment, Claimant informed Dr. Y that he “previously had bilateral greater and lesser occipital nerve blocks with benefit” and wanted to repeat them. Dr. Y informed Claimant that he would seek pre-authorization to have such treatment performed at (Healthcare Provider 3). Dr. Y’s notes show that at a telemedicine visit of October 14, 2020, he informed Claimant that the request for bilateral greater and lesser occipital nerve blocks had been denied.

Claimant testified that since the (Date of Injury), injury, he has only missed four days of work as a result of that injury. Claimant, however, is continuing to experience headaches, and memory and reactivity issues that he attributes to the (Date of Injury), injury.

On September 8, 2020, a denial letter was issued for the requested bilateral greater and lesser occipital nerve blocks. In the letter of September 8, 2020, RL, M.D., indicated that based on review of Claimant’s records of December 5, 2019, June 2, 2020, June 29, 2020, August 24, 2020, and August 27, 2020, showing treatment with Dr. Y, and based on review of Official Disability Guidelines (ODG), the request for bilateral occipital nerve blocks was not medically reasonable or necessary to treat Claimant’s condition. A request for reconsideration was made, and by letter dated October 12, 2020, signed by KA, M.D., the request for the bilateral occipital nerve blocks was again denied. The letters from both Dr. L and Dr. A reflect two unsuccessful attempts to reach Dr. Y to discuss Claimant’s treatment.

Claimant asked for an IRO to contest Insurance Carrier’s denial of the bilateral greater and lesser occipital nerve blocks. The Texas Department of Insurance, Division of Workers’ Compensation, appointed IRO Envoy Medical Systems, LP, to act as the IRO. On November 6, 2020, the IRO issued a notice of its review decision and upheld the previous adverse determination. The IRO reviewer, identified as a physician or other health care provider having a specialty in “pain medicine and anesthesiology” determined that the “Bilateral Greater and Lesser Occipital Nerve Blocks for Headaches under Fluoroscopy, (Healthcare Provider 3)” was not medically necessary.

The IRO reviewer noted that he/she reviewed Claimant’s medical records reflecting treatment at Dr. Y’s practice on December 5, 2019, December 26, 2019, January 29, 2020, March 4, 2020, May 7, 2020, June 2, 2020, June 29, 2020, August 24, 2020, August 27, 2020, and October 14, 2020. The IRO report also reflects that the IRO reviewer considered Claimant’s February 28, 2020, cervical spine MRI, a (Healthcare Provider 1) record dated August 19, 2019, and the September 8, 2020, and October 12, 2020, denial letters. The IRO reviewer stated the following in Claimant’s clinical history:

This (age) male sustained a head injury in (Date of Injury), when he fell off a table while blindfolded in a team building exercise. He has persistent cervical and occipital pain. Various modalities have been utilized including physical therapy and medications . . . Greater and lesser occipital bilateral nerve blocks were performed on 12/5/19 at the office. On follow up on 12/26/19 it was noted that the individual had no relief from that procedure. He has been seen periodically since that time and symptoms remain the same; significant cervical and occipital pain . . .

The IRO reviewer indicated the following in his/her analysis:

The Official Disability Guidelines state that occipital nerve blocks are indicated for refractory chronic migraine headaches and not indicated for other types of headaches. Bilateral blocks are not recommended. In additional, the occipital nerve block performed in December provided no relief. Repeating the occipital nerve blocks are not indicated and do not meet peer reviewed material.

Claimant contends that the preponderance of the evidence contradicts the decision of the IRO. In support of his position, Claimant relied on his testimony and medical records, including records reflecting his treatment with Dr. Y from December 2019 through December 2020. To counter Claimant’s position, Insurance Carrier presented the IRO determination and the testimony from KE, M.D., peer review physician. Dr. E provided his opinion with regard to review of Claimant’s medical records and the sufficiency of medical evidence to justify necessity of the requested treatment. Dr. E agreed with the IRO reviewer that the request for bilateral greater and lesser occipital nerve blocks was not medically necessary.

Texas Labor Code §408.021 provides that an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. The term “health care reasonably required” means 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 that evidence is not available, generally accepted standards of medical practice recognized in the medical community. See Texas Labor Code §401.011(22-a). Evidence-based medicine is further defined in Texas Labor Code §401.011(18-a) as the use of 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.

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(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 division 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.

According to the ODG in evidence, the criteria for use of greater occipital nerve block includes:

- Indicated for refractory chronic migraine

- Not indicated for other headache types

- Bilateral blocks are not recommended over unilateral procedures

In this case, Claimant has failed to present sufficient evidence to contradict the decision of the IRO. Claimant’s evidence was not persuasive to overcome the IRO determination. The testimony from Insurance Carrier’s expert witness, Dr. E, was credible to show that the IRO decision was appropriate. Dr. E provided detailed and sound testimony indicating that nothing in Claimant’s medical records presented to the IRO reviewer showed that Claimant had a prior positive response to bilateral greater and lesser occipital nerve blocks, and that Claimant’s medical records did not reveal any diagnosis of “refractory chronic migraine” headaches as indicated per ODG for the requested treatment. The preponderance of the evidence is not contrary to the IRO decision that Claimant is not entitled to bilateral greater & lesser occipital nerve blocks for headaches under fluoroscopy, (Healthcare Provider 3), for the compensable injury of (Date of Injury).

The Administrative Law Judge 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:

A. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.

B. On (Date of Injury), Claimant was the employee of (Employer), Employer.

C. On (Date of Injury), Employer provided workers’ compensation insurance coverage as a Self-Insured.

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

E. The IRO determined that bilateral greater & lesser occipital nerve blocks for headaches under fluoroscopy, (Healthcare Provider 3), was not medically necessary for the compensable injury of (Date of Injury).

2. Insurance Carrier delivered to Claimant a single document stating the true corporate name of Insurance Carrier, and the name and street address of Insurance Carrier’s registered agent, which was admitted into evidence.

3. Claimant does not meet the requirements of the ODG for bilateral greater and lesser occipital nerve blocks for headaches under fluoroscopy, and Claimant failed to present evidence-based medical evidence sufficient to overcome the determination of the IRO.

4. Bilateral greater and lesser occipital nerve blocks for headaches under fluoroscopy 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 of the Texas Department of Insurance, Division of Workers’ Compensation.

3. The preponderance of the evidence is not contrary to the decision of the IRO that bilateral greater and lesser occipital nerve blocks for headaches under fluoroscopy is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is not entitled to bilateral greater & lesser occipital nerve blocks for headaches under fluoroscopy, (Healthcare Provider 3), for the compensable injury of (Date of Injury).

ORDER

Insurance 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:

(NAME)
(ADDRESS)
(CITY, STATE, ZIPCODE)

Signed this 26th day of April, 2021.

Ana Thornton
Administrative Law Judge

1 Claimant offered Claimant’s Exhibit C-3. As explained on the record, Insurance Carrier objected to its submission, and the objection was sustained. Subsequently, Claimant’s Exhibit C-3 was not considered.

2 Claimant identified treatment with two (City) neurologists, Dr. M and Dr. J, with no clarification as to first names.

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