DECISION AND ORDER
_______ (Claimant) appealed the findings of the Texas Workers’ Compensation Commission’s Medical Review Division (MRD), which denied Claimant’s request for preauthorization for intradiscal electro thermal therapy finding that it was not reasonable or necessary health care under Tex. Lab. Code Ann. §408.021. This decision finds that the Claimant has met his burden of proof and preauthorizes the requested IDET treatment for the
L3-4 level of the Claimant’s spine.
I. PROCEDURAL HISTORY, NOTICE AND JURISDICTION
The hearing convened before Janet R. Dewey, Administrative Law Judge (ALJ) with the State Office of Administrative Hearings, on June 25, 2002, in the William P. Clements Building, 300 West 15th Street, Austin, Texas. Attorney Jane Lipscomb Stone appeared and represented Continental Casualty Company (Respondent). Commission Ombudsman Luz Loza appeared and aided the Claimant in presenting his case. The Claimant appeared via telephone. The record remained open until June 26, 2002 to receive additional medical documentation from the Claimant.
II. LEGAL STANDARDS
The services at issue require preauthorization, which is dependent upon a prospective showing of medical necessity. In this proceeding, the Claimant bore the burden of proving by a preponderance of the evidence that the requested IDET procedure should have been preauthorized by the Carrier. See 28 Tex. Admin. Code § 148.21(h) and (i).
Workers’ compensation insurance covers all medically necessary health care, which includes all reasonable and necessary medical aid, examinations, treatments, diagnoses, evaluations and services. Texas Workers Compensation Act, Tex. Lab. Code Ann. § 401.011 (19)(A) (Vernon Supp. 2002). An employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the compensable injury, as and when needed. Tex. Lab. Code Ann. § 408.021 (Vernon 1996). The employee is specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment. Id.
III. FACTUAL BACKGROUND
The Claimant suffered an injury to his back on_________, when he slipped on some hydraulic oil and fell at his workplace. Up until the date of the injury, he had never experienced any back trouble and had worked continuously for _________ cleaning and maintaining equipment. For one year after the injury, the Claimant was unable to work. The Claimant then returned to work part-time at his employer crushing boxes, which is lighter duty than his previous work. Since the date of his injury, the Claimant has continued to have severe pain. While epidural steroid injections provided some relief, the pain returned. Up until his request for IDET, the Claimant’s treatment consisted of conservative measures including therapy, medications and epidural steroid injections.
An MRI performed on December 21, 1999 documented minor degenerative changes at the L3-4 and L4-5 intervertebral discs. Ex. 1 at 20. A discogram was performed on November 28, 2001, which revealed concordant pain with an annular fissure at the L3-4 level, and an annular fissure at the L4-5 level, with nonconcordance. Ex. 5. The post discogram CT scan findings were suggestive of low grade tears of the annulus at the L3-4 and L4-5 levels. Ex. 1 at 21.
On January 31, 2002, the Claimant was seen by Dr. Xeller, an orthopaedic surgeon, for an independent medical evaluation. Dr. Xeller found that the Claimant sustained a back strain and may have had a transient aggravation of his otherwise degenerative changes. He did not put a lot of credence in the discogram because it showed bulges to the left, but all of the Claimant’s symptoms are on the right side of the body.
The Carrier refused to preauthorize the IDET procedure because it contended it is not medically necessary. Carrier also claimed the efficacy of IDET has not been demonstrated as there are no long term studies to support it.
IV. THE PARTIES’ POSITIONS
A. The Claimant
In support of his request for the IDET procedure, the Claimant presented testimony from Hassan Chahadeh, M.D., a pain management specialist, who is board certified in anaesthesia. The IDET procedure, he explained, involves inserting a needle into the disc and attaching a wire to the needle which heats up the disc. By ironing the disc in this fashion, cracks or fissures in the disc are repaired, thereby preventing intradiscal material from leaking into the surrounding sensitive tissues. He testified that the Claimant has discogenic pain, which is not explained by degenerative disc disease. Dr. Chahadeh believed that the Claimant has annular fissures at L3-4 and L4-5 levels of the spine. He testified that his condition was appropriate for the IDET procedure because the claimant has discogenic central pain in his back, the discogram reproduced concordant pain, and epidural steroid injections have failed to make his pain go away. Dr Chahadeh testified that the Claimant’s only other option at this point is spinal fusion surgery, as he has exhausted other conservative measures. IDET, he believed, is a conservative measure that would give the Claimant some relief and would allow him to take less medication, and possibly avoid risky, painful and costly fusion surgery.
He disagreed with the independent medical evaluation performed by Dr. Xeller at the request of the MRD. Dr. Xeller failed to identify that the Claimant had discogenic pain caused by the ruptured discs. Dr. Chahadeh distinguished the discogenic pain from myofascial, joint or muscular pain stating that it was independent of the Claimant’s central pain caused by the ruptured discs which would be addressed by the IDET treatment.
As for the studies supporting IDET, Dr. Chahadeh was aware of one study that showed 70 percent improvement with the IDET versus those who did not have any procedure. He was familiar with medical literature both supporting and criticizing the procedure.
The Claimant testified that he wanted the procedure as he believed it would enable him to go back to work full time and be a whole man and that it would help to relieve his pain.
B. The Carrier
The Carrier maintains that the procedure is not reasonable or medically necessary. Nicolas Tsourmas, M.D., a board certified orthopaedic surgeon, testified that IDET procedure was not an appropriate treatment for the Claimant. First, he questioned the efficacy of the procedure based on recent literature and stated that IDET has fallen out of favor. He testified that IDET is invasive and risky and believed that the Claimant has unrealistic expectations that IDET will cure his back. According to Dr. Tsourmas, even a successful IDET procedure will not fix the Claimant’s condition, who will continue to have pain and be on light duty for the rest of his life.
Dr. Tsourmas did not believe that the Claimant was an appropriate candidate for the IDET procedure. First, he testified that the Claimant’s annular lateral tear would not respond as well to IDET as a radial tear. Therefore, the type of tear in the disc is an important consideration. In order to be a good candidate for the IDET, the patient should have experienced six months or longer of axial back pain, should not have any leg pain, and the patient’s pain should not respond well to injections. Dr. Tsourmas did not believe that the Claimant had purely discogenic pain, because he got some relief from the injections.
Dr. Tsourmas also questioned the reliability of the discogram as it was performed by Dr. Chahadeh. He believed the treating doctor should not perform the discogram because the procedure should be blinded to remove the potential for subjective influence on the results of the test. Therefore, the discogram, taken alone, is a poor diagnostic indicator. He testified that certain studies now question how IDET works. He also testified that there is literature that IDET weakens the disc and could make the condition worse.
The Carrier additionally argued that a previous SOAH decision issued in Docket No. 453-00-1565.M2 (ALJ Cynthia Hayes, November 6, 2000) should be considered as precedent in this matter.
V. ANALYSIS AND RECOMMENDATION
The ALJ finds the Claimant has met his burden of proof to demonstrate that IDET is reasonable and medically necessary health care that should be preauthorized.
Both parties provided expert medical testimony to support their positions. Dr. Chahadeh, the treating physician and a pain management specialist, has the advantage of experience with this patient, while Dr. Tsourmas, an orthopaedic surgeon, formed his opinions based upon a review of the medical records. Both sides cite to medical literature in support of their respective positions.
Dr. Tsourmas did not directly disagree with the criteria relied upon by Dr. Chahadeh in determining whether the Claimant was an appropriate candidate for IDET, but added several other criteria, including lack of leg pain, and consideration of the type of tear in the annulus. He primarily criticized the IDET procedure and discography in general.
Both of the doctors agreed that central, or axial, back pain that is discogenic in nature is a criteria for IDET. Dr. Chahadeh also relied found the concordance of pain elicited interdiagnostically though the application of pressure in a discogram to be a required criteria for IDET. Although Dr. Tsourmas did not comment on the concordance of Claimant’s pain, other than to find the discography less than convincing. The discogram report unfortunately was not in the certified record, and therefore, was unavailable for Dr. Tsourmas’ review. Further, Dr. Chahadeh testified about the discogram from memory. Upon review of the discogram, the ALJ finds only that concordance was noted for the L3-4 level. The notes for the L4-5 level show nonconcordance and for all other levels no pain.
The other criteria mentioned by both doctors is that injections should not make the pain go away. Dr. Tsourmas maintained that the injections should not have provided any relief, and Dr. Chahadeh testified that the Claimant did get some relief with the different injections, but that the pain came back. Dr. Chahadeh also testified that this Claimant has central discogenic back pain, as well as myofascial, muscle and joint pain. It, therefore, appears reasonable that the Claimant would get some relief from the various types of injections that he received. Dr. Chahadeh did not testify that the Claimant experienced total pain relief with the injections, but rather, short term, incomplete pain relief. The ALJ finds that the treating physician is in a better position to evaluate the pain relief from the various type of injections and how that pain relief impacts the necessity of the IDET procedure.
The Claimant has undergone conservative measures for over three years, including physical therapy, medications and injections. Dr. Chahadeh testified that the Claimant’s other option at this point is fusion surgery. The IDET procedure is much less risky, costly and painful than spinal fusion surgery. The ALJ found this consideration compelling. While Dr. Tsourmas testified that the Claimant should undergo physical therapy, he failed to address the physical therapy the Claimant has already received.
It does, however, appear that the Claimant may have unrealistic expectations about the results to be achieved through the IDET procedure. Clearly, the procedure may not work, or it could make the Claimant’s condition worse. As Dr. Tsourmas testified, there are inherent risks in any invasive procedure. However, the risks are a great deal less than spinal surgery. Dr. Chahadeh did not testify that the Claimant would be completely healed, or that he would have no pain. He testified that he would have less pain, and, therefore, be required to take less medication and avoid fusion surgery, and that he should be able to return to work on a full time basis.
The Carrier relied upon a previous SOAH decision which considered IDET. The records in these two matters, however, are different. In Docket No. 453-00-1565.M2, the ALJ evaluated the necessity of treatment based upon the Saal and Saal Study. A copy of the article setting forth these treatment parameters for IDET was not offered into evidence, nor were these criteria specifically discussed at the hearing. Therefore, the record in this matter is substantially different than previous SOAH decision cited by the Carrier, and the ALJ cannot apply the same criteria.
Overall, the ALJ finds Dr. Chahadeh’s testimony persuasive as to the criteria he used in evaluating the reasonableness and necessity of IDET. The Claimant has had central back pain for over six months, has undergone conservative measures of treatment, including physical therapy and injections without significant improvement, and a discogram established concordant pain at the L3-4 level of the spine. Further, he had a negative leg raise test at the IME with Dr. Xeller. While the type of tear in the annulus may have a bearing on how successful the procedure will be, it is not a criteria mentioned in any of the literature relied upon by either party.
VI. FINDINGS OF FACT
- On _________, (Claimant) sustained a work-related injury that resulted in severe back pain.
- Continental Casualty Company provided workers’ compensation insurance to the Claimant’s employer on the date of the injury.
- On December 5, 2001 and December 19, 2001, the Carrier denied preauthorization for intradiscal electro thermal therapy (IDET). The Claimant filed a request with the Workers’ Compensation Commission (Commission) for medical dispute resolution.
- On February 5, 2002, the Commission’s Medical Review Division (MRD) issued a decision finding IDET was not reasonably required health care.
- The Claimant filed a timely request for hearing to contest the findings and decision of the MRD.
- On April 4, 2002, the Commission provided notice of the contested hearing in this matter to all parties. The notice of hearing contained a statement of the time, place and nature of the hearing; a statement of legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short plain statement of the matters to be asserted.
- On June 25, 2002, Administrative Law Judge Janet Dewey convened a hearing on the merits in Austin, Texas, and the Carrier appeared. The Claimant appeared via telephone and was aided in the presentation of his case by Luz Loza, Commission Ombudsman.
- IDET involves the insertion of an electro thermal catheter into a painful disc. Heat delivered by the catheter results in a breakdown and restructuring of the collagen fibers in the annulus of the disc.
- The claimant has had discogenic central back pain for longer than six months. A discogram performed by Hassan Chahadeh, M.D., on November 28, 2001 reproduced concordant pain at the L3-4 level, and injections have failed to make his pain go away.
- The Claimant’s condition has not improved with conservative care such as medication, physical therapy and epidural steroid injections.
- Dr. Chahadeh, the Claimant’s treating physician, has provided a sound clinical rational supporting the necessity and reasonableness of IDET for the Claimant.
- IDET is more conservative than spinal fusion surgery, which is another treatment option for the Claimant.
- While it is unlikely to completely cure the Claimant’s back pain, IDET is likely to help the Claimant to have less pain, take less medication and will enhance his ability to return to work.
VII. CONCLUSIONS OF LAW
- The Commission has jurisdiction to decide the issue presented pursuant to Tex. Lab. Code Ann. 413.031 (Vernon 1996).
- 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 Ann. §§402.073(b) (Vernon Supp. 2000) and 413.031(d) and Tex. Gov’t Code Ann. ch. 2003 (Vernon 2000).
- Adequate and timely notice of hearing was provided in accordance with Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
- IDET the L3-4 level of the Claimant’s spine is reasonably required health care under Tex. Lab. Code Ann. § 408.021.
- Claimant is preauthorized to receive IDET as ambulatory surgical center care.
IT IS, THEREFORE, ORDERED preauthorization for IDET at the L3-4 level of the Claimant’s spine to be performed as ambulatory surgical center care is granted.
Signed AT AUSTIN, TEXAS the 25th DAY of JULY, 2002.
STATE OFFICE OF ADMINISTRATIVE HEARINGS
Administrative Law Judge
- By agreement of the parties, the Claimant provided a copy of Dr. Chahedah’s discogram for the record after the close of the hearing. See Ex. 5.↑