DECISION AND ORDER

Ihsan F. Shanti, M.D. (Provider) disputes the decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission, TWCC) affirming the denial by Lumbermen’s Mutual Casualty Company (Carrier) of pre-authorization for cervical transforaminal epidural steroid injections to treat Claimant’s compensable injury. The Administrative Law Judge (ALJ) finds that pre-authorization should be ordered because the requested treatment is reasonable and medically necessary to promote Claimant’s recovery from her compensable injury.

I. JURISDICTION, NOTICE, AND VENUE

The State Office of Administrative Hearings (SOAH) has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. § 413.031(k) and Tex. Gov’t Code Ann. Chapter 2003. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann., Chapter 2001 and SOAH’s rules, 1 Tex. Admin. Code (TAC) Chapter 155.

Notice of the hearing was sent to the parties on January 12, 2004. Notice and jurisdiction are not contested and are addressed in the Findings of Fact and Conclusions of Law set out below.

ALJ Sharon Cloninger convened the hearing April 13, 2004, in the William P. Clements Building, Fourth Floor, 300 West 15^th Street, Austin, Texas. Provider appeared pro se via telephone. Carrier was represented by William E. Weldon, attorney. The hearing concluded and the record closed that same day.

II. BACKGROUND

Claimant incurred a compensable injury on ________, while working at a restaurant, when she slipped and fell backwards, hitting her head and injuring her neck and lumbar spine. Claimant’s orthopedic surgeon, Dr. Jorge Tijmes, ordered an MRI of Claimant’s cervical spine which was conducted June 13, 2003, and showed her to have a bulge at the C3-4 and C5-6 levels, with mild effacement of the CSF^[1] anterior to the cord. The MRI report states nerve root and cord compression is not present.

Claimant became Provider’s patient on July 1, 2003. According to the medical records, Provider assessed Claimant as recently as March 10, 2004, to have cervical discogenic pain, lumbar discogenic pain, cervicogenic headaches, and post-lumbar laminectomy syndrome; to have experienced cervical pain for more than two years and eight months; to experience occipital headaches radiating to the bilateral temporal areas almost on a daily basis; and to rate her cervical pain at 9 on a scale of 1 to 10, with 10 being most painful, with the pain radiating to her upper extremities and into her hands, with numbness, tingling, and weakness.

Treatment for Claimant’s cervical injury has included physical therapy, rehabilitation, and medication; the medical records indicate she has not responded to these non-invasive treatments. Provider requests cervical transforaminal epidural steroid injections with catheter^[2] at the levels of bilateral C-4 and C-6, which Provider states are the ones showing pathology on diagnostic studies and on physical examination. He states the requested treatment will reduce Claimant’s pain, which will allow her to obtain maximum benefit from her rehabilitation and allow her to resume normal activities as soon as possible.

Provider requested pre-authorization for the disputed treatment on July 21, 2003. Carrier denied the request on July 25, 2003, as not medically necessary, because the MRI failed to reveal any significant pathology, leading the reviewing physician to find it to be extremely doubtful that the procedure would be of any benefit. Provider requested an appeal of Carrier’s denial before the Commission’s Medical Review Division, pursuant to 28 TAC §134.600(g). The Commission referred the appeal request to an independent review organization (IRO), as permitted under 28 TAC §133.308. On November 13, 2003, the IRO recommended non-authorization on the basis that the requested treatment is not medically necessary, because there was no clinical documentation or medical records provided to review. On December 4, 2003, Provider requested a hearing before SOAH.

III. DISCUSSION

A. Applicable Law

The only issue in this case is whether, by a preponderance of the evidence, the requested treatment is shown to be medically necessary. Medical necessity is defined at Tex. Labor Code Ann.§ 408.021(a), which states:

(a) 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 employee is specifically entitled to health care that:

1. cures or relieves the effects naturally resulting from the compensable injury;
2. promotes recovery; or
3. enhances the ability of the employee to return to or retain employment.

Under 28 TAC § 148.21(h), the appealing party has the burden of proof in hearings, such as this one, conducted pursuant to Tex. Labor Code Ann. §413.031. Thus, Provider, as the petitioner, must prove the requested treatment is reasonably required within the meaning of Tex. Labor Code Ann. § 408.021(a).

B. Evidence

Provider testified and offered one exhibit, which was admitted. Carrier offered one exhibit, which was admitted.

Provider’s Testimony

Provider testified that he believes Claimant’s cervical pain originates in the C-4 and C-6 nerve roots. He explained that the epidural steroid injections will numb the nerve roots, and that if Claimant still has cervical pain, he will know the pain is originating elsewhere. He called the epidural steroid injection a diagnostic nerve injection, and stated that it is common wisdom in pain management for an MRI to show nothing when a patient has severe inflammation of the spine.

Documentary Evidence

Gregory Goldsmith, M.D., an orthopedist, examined Claimant on November 5, 2003. He observed that the MRI report showed a very small disc protrusion with no involvement of the neural contents. He concluded that Claimant does not warrant epidural steroid injections or any other treatment to her cervical spine other than a home exercise program and over-the-counter analgesics. In addition, he notes Claimant expressed to him that she does not want any further interventional treatment to her cervical spine.

IV. ANALYSIS

Provider has met his burden of establishing that the requested treatment is reasonable and medically necessary. Provider stated in the medical records that the requested treatment would reduce the level of Claimant’s cervical back pain and would allow her to undergo rehabilitation which could lead to the resumption of her normal activities. He also testified that the epidural steroid injections would serve as a diagnostic tool by numbing Claimant’s nerve roots at C-4 and C-6, which he believes to be the origination of her pain; if Claimant’s pain is present after the nerve roots are numb, he will know the source of pain is not in the nerve roots. Therefore, the requested treatment will either lessen Claimant’s pain to a level that will allow her to participate in rehabilitation, which will possibly lead to the resumption of her normal activities, or will eliminate the C-4 and C-6 nerve roots as the source of her pain, information which will assist Provider in determining the best course of treatment for Claimant. The ALJ notes that although Dr. Goldsmith found that the MRI does not indicate a need for the requested treatment, Provider’s physical examination of Claimant supports pathology at the C-4 and C-6 levels. Provider presented sufficient evidence to prove the requested treatment will promote Claimant’s recovery. Thus, Provider is entitled to pre-authorization of the epidural steroid injections pursuant to Tex. Labor Code Ann.§ 408.021(a).

V. FINDINGS OF FACT

1. Claimant suffered a compensable injury to her back on ________, when she fell at work, hitting her head and injuring her cervical and lumbar spine.
2. Lumbermens Mutual Casualty Company (Carrier) was the insurance provider for Claimant’s employer at the time of her injury.
3. Ihsan F. Shanti, M.D., has been Claimant’s treating physician since July 1, 2003.
4. A June 13, 2003 MRI of Claimant’s cervical spine showed her to have a bulge at the C3-4 and C5-6 levels, with mild effacement of the CSF anterior to the cord, and no compression of the cord or nerve roots.
5. As of March 10, 2004, Claimant had experienced cervical pain for more than two years and eight months; experiences occipital headaches radiating to the bilateral temporal areas almost on a daily basis; and rates her cervical pain at 9/10, radiating to the bilateral upper extremities to the level of the bilateral hands with numbness, tingling, and weakness in the same distribution.
6. Cervical transforaminal epidural steroid injections with catheter at the levels of bilateral C-4 and C-6 would reduce the amount of Claimant’s pain, allowing her to participate in a rehabilitation program which could lead to resumption of her normal activities.
7. On July 21, 2003, Provider requested pre-authorization from Carrier for Claimant to undergo bilateral transforaminal epidural spinal injections at the C-4 and C-6 levels of her cervical spine.
8. On July 25, 2003, Carrier denied Provider’s request for pre-authorization on the basis that the treatment is not medically necessary.
9. Following Carrier’s denial, Provider filed a timely request with the Texas Workers’ Compensation Commission (the Commission, TWCC) for medical dispute resolution.
10. Provider’s request was assigned to an independent review organization (IRO) by the Commission’s Medical Review Division (MRD).
11. The IRO issued a decisionNovember 13, 2003,affirming the denial of Provider’s request for pre-authorization.
12. On December 4, 2003, Provider filed a timely request for hearing to contest the IRO decision.
13. Notice of the hearing was sent to the parties onJanuary 12, 2004.
14. The notice contained a statement of the time, place, and nature of the hearing; a statement of the 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 asserted.
15. Administrative Law Judge Sharon Cloninger convened the hearing April 13, 2004, in the William P. Clements Building, Fourth Floor, 300 West 15^th Street, Austin, Texas. Petitioner appeared pro se via telephone. Carrier was represented by William E. Weldon, attorney. The hearing concluded and the record closed that same day.

VI. CONCLUSIONS OF LAW

1. TWCC has jurisdiction over this matter pursuant to Tex. Lab. Code Ann. § 413.031.
2. The State Office of Administrative Hearings has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. § 413.031(k) and Tex. Gov’t Code Ann. Chapter 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t CodeAnn., Chapter 2001 and SOAH’s rules, 1 Tex. Admin. Code (TAC) Chapter 155.
4. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann.§2001.052.
5. Provider met his burden of proving the requested treatment is medically necessary and reasonably required within the meaning of Tex. Lab. Code Ann. § 408.021(a).
6. Based on the foregoing Findings of Fact and Conclusions of Law, the requested treatment should be pre-authorized.

ORDER

IT IS, THEREFORE, ORDERED thatLumbermens Mutual Casualty Company shall pay the reasonable costs of the bilateral cervical transforaminal epidural steroid injections with catheter at C-4 and C-6 requested by Ihsan F. Shanti, M.D., for treatment of Claimant’s compensable injury.

Signed May 5, 2004.

SHARON CLONINGER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. CSF is cerebrospinal fluid, which is a liquid that serves mainly to maintain uniform pressure within the brain and spinal cord. Merriam-Webster’s Medical Dictionary (1995), pp. 106 and 151.↑
2. Provider states in the medical records that he will utilize a Spinal Epidural Catheter in order to make the treatment lesion-specific and proceed with targeted treatment of the Claimant’s condition.↑