DECISION AND ORDER
Petitioner Highlands Insurance Company (Highlands), appeals from the Findings and Decision of the Texas Workers’ Compensation Commission’s Medical Review Division (MRD), which ordered preauthorization for bilateral lumbar facet injections and a lumbar myelogram with CT scan for injured worker ____. Highlands contends that MRD’s decision should be reversed because the medical rationale for the proposed services was not adequately documented and because the proposed services are not medically necessary. This Decision and Order denies Highland’s appeal and upholds MRD’s decision.
I. JURISDICTION, NOTICE, AND VENUE
There were no contested issues of jurisdiction, notice, or venue. Therefore, those issues are addressed in the Findings of Fact and Conclusions of Law without further discussion here.
II. STATEMENT OF THE CASE
Administrative Law Judge (ALJ) Thomas H. Walston convened a hearing in this case on January 29, 2002, at the State Office of Administrative Hearings, Stephen F. Austin State Office Building, 1700 North Congress Avenue, Austin, Texas. Attorney John Gillespie represented Highlands_____ appeared in person and was assisted by Ombudsman Anthony Walker. The Texas Workers Compensation Commission waived its appearance. The ALJ concluded the hearing and closed the record the same day
_____:The only evidence offered at the hearing was testimony from ____ and the Official Record of the Medical Review Division. The evidence established that ____ is a 51-year old worker who sustained a compensable injury on_______, in the course of her employment with________ Company. ____ testified that she did computer work and moved heavy boxes, and that her injury resulted from repetitive injuries/stress. Since her injury, ____ has undergone disc surgery and fusion at C5-6 and surgery for carpal tunnel release and ulnar nerve transposition in both arms. She has been given a 64% overall impairment rating, comprised of a 42% psychological impairment and a 36% physical impairment. Her current treating physician is Dr. Jacob Rosenstein of Arlington, Texas.
At some point (it is not clear when), ____. began to complain about low back pain. Because of this pain, she has received five rounds of lumbar facet joint injections from Dr. Rosenstein. ____ received these injections about six months apart beginning in early 1999, and her last injection occurred in January 2001. The level of the spine where____ received these injections is not clear from the record, but the current request is for a round of injections at L3-4, L4-5, and L5-S1.
____ stated that the prior lumbar facet injections gave her significant relief from low back pain for up to four months. Without the injections her pain increased and she reduced her activities. She has constant pain and cannot cook, do other household work, or “do anything.” She also uses a cane to walk, cannot step up on a curb, and is more depressed. ____ has taken numerous medications, including Vioxx, Hydrocordone, Promethazine, Diazepam, Valium, Zoloft, and others. When ____ received the prior facet injections she was able to increase her daily activities and reduce her medications.
Dr. Rosenstein’s Records: Office notes from Dr. Rosenstein dated June 1, 2001, state that____’s January 2001 injections “gave her excellent results at first, but then quickly her radiculopathy returned bilaterally.” At that time____ also reported pain radiating into both buttocks, legs, and thighs. Dr. Rosenstein’s examination of____ showed straight leg raising positive bilaterally at 30 degrees. Motor strength was 5/5, and Hoffman’s reflex, clonus, and brachioradialis reflex were all negative. ____ had 4+/5 dorsiflexion weakness bilaterally with plantar flexion weakness. Deep tendon reflexes were 2 and were symmetric. Concerning the low back, Dr. Rosenstein’s impression was worsening of lumbar radiculopathy, lumbar facet syndrome, and chronic pain syndrome. His plan stated the following:
As the patient’s pain has become intractable and intolerable, she would like to proceed with a lumbar myelogram as she states she does not think that she can stand the pain anymore. She would like to proceed also with the facet injections as these are the only things that give her any type of relief until she is a surgical candidate. . . .
In order to get preauthorization for____’s treatment, Dr. Rosenstein prepared two letters dated June 15, 2001. One letter concerned the requested facet joint injections and the other concerned the requested myelogram with CT scan. In the letter for the lumbar facet injections, Dr. Rosenstein stated the following:
[____] is under my care for an on-the-job injury on_____. She is symptomatic with low back pain and lumbar radiculopathy. I last saw her on 6/1/01. She was complaining of increasing low back pain. Examination revealed signs of lumbar facet irritation and lumbar facet syndrome. She had lumbar facet injections in January of 2001 with excellent results for 3-1/2 months. She had recurrence of her facet syndrome and we therefore requested repeat lumbar facet injections as her pain has become intractable. She is already on the appropriate medications including Vioxx, Hydrocodone, Promethazine and Diazepam. She is already doing her low back exercises. These have not helped. Therefore we would appreciate a reconsideration for lumbar facet injections for this patient who is getting worse.
In the second letter concerning the lumbar myelogram with CT scan, Dr. Rosenstein wrote:
I last saw [____.] on 6/1/01. She complained of a lot of neck pain and low back pain. She is status post C5-6 ACDF in the past. She has a C6-7 disc bulge. She complained of increasing pain in her neck, low back and both legs. Examination revealed bilateral L5 radiculopathy, as well as, signs of a lumbar facet syndrome. As her pain has become intractable, a lumbar myelogram has been requested to evaluate her bilateral L5 weakness. Unfortunately, this was denied. This is unfortunate as the patient’s radiculopathy and condition has been getting worse rather than better. She has signs of bilateral L5 weakness and this needs to be evaluated further with a myelogram to rule out L5 nerve root compression. . . .
Carrier’s evidence: The MRD’s certified record contains a short report from Dr. John Obermiller, dated June 15, 2001. This report was prepared for National Healthcare Resources, which was working for Highlands. The report indicates that Dr. Obermiller reviewed progress notes, presumably the June 1, 2001, notes from Dr. Rosenstein described above. Concerning the request for lumbar facet injections, Dr. Obermiller’s report states: “Denied. The efficacy of this injection has diminished on the recent past. The fusions are solid according to the notes.” Concerning the requested myelogram with CT scan, the report states: “Denied. The CT myelogram is not clinically indicated.”
Dr. Obermiller prepared a second report dated June 21, 2001. Apparently this report was made in response to a request for reconsideration. The report simply states: “Denied. No additional clinical information was submitted to support the efficacy of this procedure or to justify the myelogram.”
IV. ALJ’s Analysis and Decision
The issues in this case are whether repeat lumbar facet joint injections and a lumbar myelogram with CT scan are medically reasonable and necessary for the treatment of ____. Because the MRD ordered preauthorization for the services, Highlands had the burden of proof to show that the procedures are not medically reasonable and necessary. The Administrative Law Judge (ALJ) concludes that Highlands did not establish by a preponderance of the evidence that the procedures are not medically reasonable and necessary. Therefore, the ALJ denies Highlands’ appeal and orders that the procedures be preauthorized.
Under the Texas Workers’ Compensation Act, ____ is entitled to all health care reasonably required by the nature of her injury. She is specifically entitled to health care that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances her ability to return to or retain employment. Tex. Lab. Code Ann. § 408.021(a). Health care includes all reasonable and necessary medical services, appliances, and supplies. Tex. Lab. Code Ann. § 401.011(19)(A).
Concerning the lumbar facet joint injections, the Spine Treatment Guidelines state that these injections are appropriate for “patients who are neurologically intact with pain for at least four weeks unresponsive to noninvasive treatments including NSAIDS, physical medicine treatment or manipulation and/or oral corticosteroids.” The guidelines also state that the initial injections must provide relief to the patient in order for additional injections to be authorized:
Relief for less than seven to 10 days to the initial session precludes the need for additional injections. Furthermore, injections should be limited to three levels not to exceed three sessions in a 12 month period. Repeat injections after the initial injection and/or series would not be indicated if the initial injection did not provide significant and long-term documented relief (28 Tex. Admin. Code (TAC) § 134.1001(e)(2)(T)(ii)).
Finally, the Spinal Treatment Guidelines state that documentation for spinal injections should show substantive and continued improvement over time, which may include decreased use of medication or increased function due to reduction in pain (28 TAC § 134.1001(e)(3)(G)).
In this case, ____ had pain for at least four weeks that was not responsive to other treatment, and she testified that the prior injections gave her significant relief and allowed her to increase her activities and reduce her other medications. Dr. Rosenstein’s’ letter also states that____ received about 3-1/2 months of relief from the last round of injections. And finally, ____ has not had more than three series of injections during a twelve-month period, which is the maximum allowable under the guidelines. In response to this evidence, the Highlands merely offered a report that stated the last injections had reduced efficacy. Based on the record, the ALJ finds that Highlands has not established that the repeat lumbar facet joint injections are not medically reasonable and necessary.
Concerning the lumbar myelogram with CT scan, the Spine Treatment Guidelines state that this diagnostic test should normally be performed six weeks to four months from the date of injury (28 TAC § 134.1001(f)(3)(B)). In the present case, ____ is approximately 5-1/2 years post injury. But the Guidelines also provide that a physician can deviate from the specified timeframes when a clinical rationale adequately substantiates the need for the deviation (28 TAC § 134.1001(c)(4)). Dr. Rosenstein has reported that____ has suffered increasing low back pain with bilateral radiculopathy, as well as bilateral L5 weakness. In addition, the straight leg raising test was positive at 30 degrees bilaterally, which suggests nerve root impingement. Dr. Rosenstein states that he needs a myelogram with CT scan to confirm or rule out L5 nerve root compression, in order to determine if ____ is a surgical candidate. In response to this evidence, Highlands has merely offered a one line statement that the myelogram with CT scan was not clinically indicated. Under this state of the record, the ALJ finds that Highlands did not establish that the myelogram with CT scan is not medically reasonable or necessary.
In summary, Highlands had the burden of proof to establish that the requested procedures are not medically reasonable or necessary. The ALJ finds that Highlands did not meet its burden of proof and, therefore, denies Highlands’ appeal. The ALJ upholds MRD’s decision and orders that the repeat lumbar facet joint injections and lumbar myelogram with CT scan are hereby preauthorized.
V. FINDINGS OF FACT
- ____ suffered a compensable injury on______, in the course and scope of her employment with_____ Company.
- At the time of____’s compensable injury, _______ Company was insured by Highlands Insurance Company for workers compensation insurance.
- Dr. Jacob Rosenstein of Arlington, Texas, is____’s treating physician.
- ____ has received five rounds of lumbar facet joint injections, six months apart, beginning in early 1999. ____’s last lumbar facet joint injections were given in January 2001.
- The lumbar facet joint injections received by ____ provide her with relief from pain for up to 3-1/2 months. The injections also allow ____ to increase her activities and decrease her medications.
- ____ has not received more than three rounds of injections during a 12-month period.
- ____ has experienced increased low back pain since her last injections in January 2001. Dr. Rosenstein has requested preauthorization for another round of lumbar facet joint injections for____ at levels L3-4, L4-5, and L5-S1.
- Another round of lumbar facet joint injections for ____ at L3-4, L4-5, and L5-S1 is medically reasonable and necessary for the treatment of____.
- In June 2001, ____ reported increased low back pain with bilateral radiculopathy, along with bilateral weakness at L5. Dr. Rosenstein requested preauthorization for a lumbar myelogram with CT scan to evaluate _____ for possible nerve root compression at L5.
- A lumbar myelogram with CT scan is medically reasonable and necessary to evaluate____ for possible nerve root compression at L5.
VI. CONCLUSIONS OF LAW
- The Texas Workers' Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers' Compensation Act, Tex. Lab. Code §§ 408.021 and 413.031.
- The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code §§ 408.021 and 413.031(d) and Tex. Gov't Code, Ch. 2003.
- The parties received adequate and timely notice of the hearing pursuant to Tex. Gov’t Code §2001.051.
- Venue was established pursuant to 28 Tex. Admin. Code §148.6.
- Petitioner Highlands Insurance Company had the burden of proof in this matter to establish its claim by a preponderance of the evidence. 28 Tex. Admin. Code §148.21(h) and (i).
- Based on Findings of Fact Nos. 4-8, a round of lumbar facet joint injections at L3-4, L4-5, and L5-S1 is reasonably required to treat____.’s compensable injury, as described at Tex. Lab. Code § 408.021 and 28 Tex. Admin. Code § 134.600.
- Based on Findings of Fact Nos. 9-10, a lumbar myelogram with CT scan is reasonably required to treat____’s compensable injury, as described at Tex. Lab. Code § 408.021 and 28 Tex. Admin. Code § 134.600.
- Based on Conclusions of Law Nos. 6 and 7, Petitioner Highland Insurance Company’s appeal is denied.
- Based on Conclusions of Law Nos. 6 and 7, preauthorization is granted for____ for one round of lumbar facet joint injections at L3-4, L4-5, and L5-S1, and for a lumbar myelogram with CT scan, as requested by Dr. Jacob Rosenstein.
IT IS, THEREFORE, ORDERED that preauthorization is hereby granted for____ for one round of lumbar facet joint injections at L3-4, L4-5, and L5-S1, and for a lumbar myelogram with CT scan, all as requested by Dr. Jacob Rosenstein.
Signed February 8, 2002.
Thomas H. Walston
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS