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At a Glance:
Title:
453-02-0686-m2
Date:
July 18, 2002
Status:
Pre-Authorization

453-02-0686-m2

July 18, 2002

DECISION AND ORDER

Hartford Insurance Company of the Midwest (“Carrier”) appeals a Texas Workers’ Compensation Commission’s Medical Review Division (“MRD”) decision in a preauthorization dispute. The MRD granted the preauthorization request filed by Lowell Haro, M.D., on behalf of an injured worker ("Claimant") for an intra-discal electro-thermal procedure (“IDET”). This decision agrees with MRD, finding that the requested procedure was medically necessary.

I. Notice, Jurisdiction, and Procedural History

Notice and jurisdiction were not disputed and are discussed only in the findings of fact and conclusions of law. The hearing was convened on May 13, 2002, at State Office of Administrative Hearings facilities, 300 West Fifteenth Street, Austin, Texas, by Administrative Law Judge (“ALJ”) Sarah G. Ramos. The Commission's staff did not to participate in the proceedings. Attorney Jane Lipscomb Stone represented the Carrier, and Dr. Haro represented himself. The hearing concluded on the same day, but the record remained open until May 28, 2002, for the parties to submit proposed findings of fact and conclusions of law.

II. Discussion

The issue was presented to MRD as a preauthorization request. After MRD issued its decision, Dr. Haro performed IDET on the Claimant. The parties agreed that the issue before the ALJ is whether the procedure was medically necessary, pursuant to Tex. Labor Code Ann. §408.021.

A. Carrier's Witness

On behalf of the Carrier, N. F. Tsourmas, M.D.,[1] testified that IDET is appropriate for midline axial back pain, provided a patient has:

  • had pain for at least six months;
  • failed all attempts at conservative care;
  • no nerve root compression; and
  • has appropriate discogram findings.

In Dr. Tsourmas's opinion, the Claimant was not an appropriate candidate for IDET because he had degeneration at two, and possibly three levels. The Claimant's CT scan showed degeneration at three levels, and his discogram showed degeneration at L4-5 and L5-S1. The discogram report indicated a normal pattern at L3-4. But, Dr. Tsourmas thought there was degeneration at L3-4 because the Claimant received three cubic centimeters of contrast material without experiencing pain. When a patient accepts so much contrast material, it suggests a lack of disk pressure, and thus degeneration, Dr. Tsourmas testified. According to Dr. Tsourmas, a patient with two or more levels of degeneration is not a good candidate for IDET.

Further, a recent medical study on cadavers showed decreased spine stability after IDET.[2] Dr. Tsourmas does not think IDET will "stand the test of time" as a viable spine treatment.

B. Dr. Haro[3]

When referred to Dr. Haro for IDET, the Claimant was a candidate for only one other treatment option -- spinal fusion, but the Claimant did not want to pursue this option. The Claimant had been treated with conservative care for more than six months. Dr. Haro admitted the Claimant had severe degeneration at two levels, plus mild, nonpainful degeneration at L3-4. Nevertheless, in Dr. Haro's opinion, IDET, performed during day surgery, is a preferable alternative to fusion even when more than one level is involved, especially because fusion recovery could take six months to a year.

Dr. Haro emphasized his belief that IDET could eliminate the need for fusion. Clinical studies indicate that IDET relieves pain, improves physical function, and results in very low amounts of disk instability.[4] Further, the Claimant's straight-leg raising was negative, and there was no other objective evidence of nerve root compression.

Dr. Haro also noted that when he performed the IDET on September 26, 2001, the Claimant suffered no side effects or complications. In Dr. Haro's opinion, IDET involves the same risk and less pain than a discogram. He also pointed out that the SAAL's study, one of the initial IDET studies, involved patients with multilevel disk degeneration.[5]

III. Analysis

Both physicians who testified were credible witnesses. The exhibits included summaries of IDET clinical studies with both favorable and unfavorable conclusions. However, in the ALJ's opinion, Dr. Haro's evidence was more convincing. Apparently, the Claimant had only two options, one that he did not wish to pursue. The Claimant, who was more than eighteen months post-injury and had tried many types of conservative care without success, did not want a spinal fusion. Clinical studies show IDET can decrease pain and improve physical function.

Given the length of recuperation time for a spinal fusion, IDET was a reasonable alternative.

Therefore, the ALJ finds that IDET treatment for the Claimant was medically necessary.

IV. Findings Of Fact

  1. The worker ("Claimant") sustained a work-related injury on ___________
  2. At the time of the Claimant's injury, his employer had workers' compensation coverage through Hartford Insurance Company of the Midwest ("Carrier").
  3. As a result of his work-related injury, the Claimant had disk degeneration at L4-5 and L5-S1, and possibly at L3-4.
  4. Even though he had been treated with conservative care for more than six months, the Claimant continued to suffer pain.
  5. Medical professionals recommended spinal fusion for the Claimant, but he did not want to undergo that surgery.
  6. As an option to fusion, the Claimant was referred for intra-discal electro-thermal procedure (“IDET”) to Lowell Haro, M.D., who sought preauthorization for the treatment.
  7. The Carrier denied preauthorization, and Dr. Haro appealed to the Texas Workers’ Compensation Commission’s Medical Review Division (“MRD”).
  8. MRD's decision, issued September 3, 2001, granted the preauthorization request.
  9. Before the Carrier filed its appeal with the State Office of Administrative Hearings ("SOAH"), Dr. Haro performed the IDET procedure.
  10. Notice of the hearing on the Carrier's appeal was issued November 9, 2001.
  11. At the May 13, 2002, hearing, both the Carrier and Dr. Haro participated.
  12. Even though the Claimant had disk degeneration in at least two levels, he had no nerve compression.
  13. Clinical studies on IDET show conflicting results, but many studies show that IDET reduces pain and improves physical function.
  14. IDET is appropriate for midline axial back pain, provided a patient has:
  15. had pain for at least six months;
  16. failed all attempts at conservative care;
  17. no nerve root compression; and
  18. has appropriate discogram findings.
  1. IDET, performed during day surgery, was a preferable alternative to fusion because fusion recovery could take six months to a year.
  2. The Claimant underwent IDET on September 26, 2001, and Claimant suffered no side effects or complications.

V. Conclusions Of Law

  1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers’ Compensation Act, Tex. Labor Code Ann. §413.031.
  2. SOAH has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to §413.031(d) of the Act and Tex. Gov't Code Ann. ch. 2003.
  3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§2001.051 and 2001.052.
  4. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001.
  5. Petitioner, the party seeking relief, bore the burden of proof in this case, pursuant to 28 Texas Admin. Code §148.21(h).
  6. The Petitioner failed to establish that the treatment provided to the Claimant was not reasonably required. The Act §408.021.
  7. Based upon the foregoing findings of fact, IDET was medically necessary health care as contemplated in §408.021 of the Act.

ORDER

IT IS THEREFORE, ORDERED that the intra-discal electro-therapy was medically necessary, and Hartford Insurance Company of the Midwest should reimburse Dr. Haro accordingly.

Signed this 18th day of July 2002.

.

SARAH G. RAMOS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. Dr. Tsourmas is Certified by the American Board of Orthopaedic Surgery.
  2. Exhibit 3.
  3. Dr. Haro is an American Board of Anesthesiology Diplomate and holds a certificate of added qualifications in pain management.
  4. Exhibit 1, pp. 7-10.
  5. Ex. 1, p. 7.
End of Document
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