DECISION AND ORDER
_____ (Petitioner) is appealing the decision of Forte, an independent review organization (IRO) certified by the Texas Department of Insurance, in Texas Workers' Compensation Commission (Commission) Medical Review Division tracking number M2-03-1013-01 denying preauthorization for a left cervical facet block with trigger point injections followed one week later by a right cervical facet block with trigger point injections. The IRO determined from the medical documentation submitted for review that the requested medical procedure was not medically necessary to treat the Petitioner’s condition because prior trigger point injections to the right side did not prove beneficial and a bilateral procedure was not indicated with an injury to only one side. The Administrative Law Judge (ALJ) finds the request for preauthorization should be denied because the requested treatment is not medically necessary.
I.PROCEDURAL HISTORY, JURISDICTION, AND NOTICE
On September 11, 2003, ALJ Michael J. Borkland convened the hearing at the William P. Clements Building, 300 West 15th Street, Austin, Texas. Petitioner, who speaks only Spanish, appeared pro se via telephone and was assisted by Commission Ombudsman Juan Mireles and an interpreter. Ace/USA (Respondent) appeared through F. Javier Gonzalez, Austin Representative to TWCC. Notice and jurisdiction were not contested and will be addressed in the findings of fact and conclusions of law. Following the presentation of evidence, the hearing was closed on the same day.
Petitioner, a 48-year old female seamstress, suffered an injury to the right shoulder, and the cervical and thoracic areas on________, while lifting a heavy object in a repetitive motion type job. Petitioner felt a pop in her back, and experienced immediate onset of pain in the right neck, upper back, and shoulder area.
The evidence presented consisted of four exhibits, and the testimony of the Petitioner and Joseph Siragusa, D.C., Petitioner’s treating physician. Petitioner was first seen by Daniel Buentello, D.C., who works with Dr. Siragusa, on July 27, 2002. She reported pain in the neck and mid-back, which was causing her significant discomfort and interfering with her work. Petitioner stated that her pain was constant and she rated it at level 6. Dr. Buentello diagnosed Petitioner with a sprain to the cervical spine with possible disc lesion, a sprain to the thoracic spine, myospasms, cervical radiculopathy, and segmental dysfunction of the cervical spine. Petitioner was initially treated for eight weeks with passive therapies, consisting of heat, ultrasound, soft tissue mobilization, and joint mobilization. She was also prescribed pain medications by an orthopaedic specialist. (Exh. P1, pages 1-6)
An MRI of the right shoulder and cervical spine performed on August 1, 2002, found impingement syndrome with tendinitis, minimal biceps tendon tenosynovitis and bursitis, no evidence of rotator cuff tear, and a normal cervical spine. A series of x-rays of the lumbar spine, cervical spine, and right shoulder were unremarkable. Petitioner continued treatment with an active therapeutic exercise program after completing passive therapy with fair progress. However, she continued to experience persistent pain. (Exh. P1, pages 7-22)
Trigger point injections provided by Raul Marquez, M.D., failed to provide any relief for Petitioner. She then saw Donald Kramer, M.D., who prescribed Prednisone. Petitioner continued to experience pain and Dr. Kramer sought approval for the requested treatment. Respondent denied preauthorization for the requested treatment because the MRI did not show any degenerative changes in the facet joints. (Exh. P1, pages 33-40)
David H. Trotter, M.D., reviewed Petitioner’s medical records and concluded that she sustained a sprain of the cervical/thoracic spine. He did not agree with Dr. Buentello’s diagnosis. Dr. Trotter believed that Petitioner’s initial treatment was medically necessary, but that continued treatment was not because the injury resolved itself prior to June 30, 2002. He believed that Petitioner had an ongoing significant condition of marked symptom magnification. (Exh. R4, pages 12-15)
A Commission required examination was conducted by Herman J. Keillor, M.D., on June 11, 2003. He stated in his report that Petitioner complained of pain in multiple areas, including the base of the neck and the back of the right shoulder. Dr. Keillor’s examination revealed that the Petitioner had full range of motion of the shoulder and there was no grinding or popping on palpation. He also found that Petitioner had not been injured while lifting a heavy object as had been documented by her treating physicians. Dr. Keillor concluded by stating that Petitioner exhibited symptoms of a levator rhomboid muscle spasm, specifically a sprain of a minor muscle on the vertebral border of her right scapula. He recommended that future treatment be limited to massage therapy and possibly a single injection in the scapula area followed by more therapy. Dr. Keillor firmly stated that the Petitioner does not need surgery or cervical blocks. (Exh. R4, pages 16-26)
The Petitioner has the burden of proof to show that the requested services are medically necessary. There is no doubt that she has been experiencing persistent pain and that she may need additional treatment. However, she has not shown that the requested treatment is medically necessary to treat her injury.
The requested treatment is for a left cervical facet block with trigger point injections followed one week later by a right facet block with trigger point injections. The evidence showed that the injury suffered by the Petitioner was to her right side. Injury to the Petitioner’s left side was not mentioned in the medical records and the evidence does not support a finding of medical necessity for a left cervical facet block. Further, the evidence shows that previous injections provided only temporary relief at most.
The most compelling evidence came from Dr. Keillor, a physician who performed an independent orthopaedic examination at the request of the Commission. Dr. Keillor disputed the previous diagnosis and discovered that the source of the injury was repetitive motion from sewing rather than heavy lifting. His lengthy report, which was prepared after actually examining the Petitioner, fully supported his conclusions about the injury and his recommended treatment. Dr. Keillor did not find that the Petitioner was not injured, only that her injury was different than that previously diagnosed. He recommended further conservative treatment. Accordingly, the request for preauthorization of the requested services is denied.
IV.FINDINGS OF FACT
- In _____, ___ (Petitioner) sustained an on-the-job injury consisting of a sprain to a minor muscle on the vertebral border of her right scapula while performing the repetitive motion of sewing.
- At the time of the Petitioner’s injury, Ace/USA (Respondent) provided workers' compensation insurance to the Petitioner’s employer.
- Petitioner was treated for eight weeks with passive therapies, consisting of heat, ultrasound, soft tissue mobilization, as well as joint mobilization, pain medication, active therapeutic exercise, and trigger point injections.
- The trigger point injections failed to provide any relief to the Petitioner.
- Petitioner continued to experience pain and preauthorization was sought for a left cervical facet block with trigger point injections followed one week later by a right cervical facet block with trigger point injection.
- Petitioner was not injured on her left side.
- An MRI of the cervical spine performed on August 1, 2002, showed a normal cervical spine.
- Petitioner most likely has a levator rhomboid muscle spasm, specifically a sprain of a minor muscle on the vertebral border of her right scapula.
- Respondent denied Petitioner’s request for preauthorization of services referred to in Finding of Fact No. 5.
- The Petitioner requested dispute resolution services from the Texas Workers' Compensation Commission's Medical Review Division.
- On June 6, 2003, Forte, an independent review organization certified by the Texas Department of Insurance, issued its decision denying preauthorization because an MRI of the cervical spine was reported as normal with no mention of a facet hypertrophy or arthropathy, and an examination of the Petitioner’s neck found it supple with full range of motion.
- On June 17, 2003, Petitioner filed a request for a hearing on the preauthorization denial.
- The Commission sent notice of the hearing to the parties on July 16, 2003. The hearing notice informed the parties of the matter to be determined, the right to appear and be represented by counsel, the time and place of the hearing, and the statutes and rules involved.
- On September 11, 2003, the hearing was convened at the William P. Clements Building, 300 West 15th Street, Austin, Texas. Petitioner, who speaks only Spanish, appeared pro se via telephone and was assisted by Commission Ombudsman Juan Mireles and an interpreter. Respondent appeared through F. Javier Gonzalez, Austin Representative to TWCC.
V.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 Ann. § 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 Ann. §§ 402.073 and 413.031(d) and Tex. Gov't Code Ann. ch. 2003.
- Petitioner timely filed notice of appeal, as specified in 28 Tex. Admin. Code (TAC) § 148.3.
- Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov't Code Ann. ch. 2001 and 28 TAC § 148.4(b).
- Petitioner had the burden of proving the case by a preponderance of the evidence, pursuant to 28 TAC § 148.21(h) and (i).
- As provided by Tex. Lab. Code Ann. § 413.014 and 28 TAC § 134.600(h), preauthorization is required for the requested services.
- Based on Findings of Fact Nos. 4, 6, and 7, the requested services are not medically necessary for treatment of the Petitioner’s compensable injury as required by Tex. Lab. Code Ann. § 408.021.
- Based on Findings of Fact Nos. 4, 6, and 7 and Conclusions of Law Nos. 5 - 7, the requested treatment should not be preauthorized.
IT IS, THEREFORE, ORDERED that ____’s request for preauthorization of a left cervical facet block with trigger point injections followed one week later by a right cervical facet block with trigger point injections be, and the same is hereby, denied.
Signed October 10, 2003.
MICHAEL J. BORKLAND
Administrative Law Judge
State Office of Administrative Hearing