PROPOSAL FOR DECISION

Ihsan Shanti, M.D. (Petitioner) appealed the decision of the Texas Workers’ Compensation Commission’s (Commission) designee, an independent review organization (IRO), in MDR Docket No. M2-04-0343-01, which upheld Liberty Mutual Insurance Corporation’s (Respondent) denial of preauthorization for epidural steroid injections for a workers’ compensation claimant (Claimant). Respondent denied the sessions as not being medically necessary healthcare. This decision finds Provider failed to prove the requested injections are medically necessary.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

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.

The hearing in this matter convened April 6, 2004, at the State Office of Administrative Hearings, 300 W. 15^th Street, Austin, Texas, with Administrative Law Judge (ALJ) Ann Landeros presiding. Dr. Shanti represented himself. Respondent was represented by its attorney, John Fundis. The Commission was did not participate in the hearing. During the hearing, Dr. Shanti asserted he had complied with a prehearing order to file at SOAH all documentary evidence he wished to have considered no later than 5:00 p.m. on April 5, 2004. The record was left open for Dr. Shanti to submit proof (with copies of the proffer) that his documentary evidence was timely submitted. After considering Dr. Shanti’s submission, and Respondent’s response thereto, the ALJ denied the request to admit the documents and closed the record on April 13, 2004.

II. DISCUSSION

A. Background Facts

In ___, Claimant sustained a back injury compensable under the Texas Workers’ Compensation Act (Act). At the time of the compensable injury, Respondent was the workers’ compensation insurer for Claimant’s employer.

After Respondent denied his request for epidural steroid injections for Claimant as being medically unnecessary, Dr. Shanti requested the Commission review the denial. That review produced the IRO decision, dated December 12, 2003, which upheld the denial. Provider timely appealed the IRO decision.

B. IRO Decision

As a basis for the decision, the IRO reviewer noted that there were no records submitted to support the requested bilateral epidural steroid injections.

C. Legal Standards

Petitioner has the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i); 1 TAC § 155.41. Pursuant to the Act, an employee who has sustained 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 cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. TEX. LAB. CODE ANN. § 408.021(a). Health care includes all reasonable and necessary medical services including a medical appliance or supply. TEX. LAB. CODE ANN. § 401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. § 401.011(31). For a carrier to be liable to reimburse a provider, certain services, including epidural steroid injections, must be preauthorized by the carrier. 28 TAC 134.600(h).

D. Provider’s Evidence

At the hearing, Dr. Shanti presented only his own testimony. He testified that Claimant injured her low back when she lifted heavy packages at work. The injury produced a burning sensation. An MRI done on Claimant in June 2003 showed a 3mm posterior disk herniation at the L5-S1 level of the spine along with normal vertebral heights. No bone fracture was found in that diagnostic.

In his clinical examination of Claimant in September 2003, Dr. Shanti found evidence of radiculopathy, a nerve injury that might benefit from epidural injections. Claimant exhibited a positive response to pain during the straight leg raise test and exhibited pain during follow-up examinations. He last examined Claimant in December 2003. He is aware that she has had physical therapy in the last four months before the hearing but otherwise did not know her current medical condition.

E. Carrier’s Evidence

Carrier had the IRO decision and the examination of Claimant by orthopedic surgeon James Hood, M.D., introduced into the record. After examining Claimant in August 2003, Dr. Hood found her back had full motion and normal extension, strength and reflexes. Her straight leg raise test results were also normal. He diagnosed her with “a non-specific and mild strain/sprain event at most and possibly only transient soreness in the lower back without evidence of any significant injury (damage or harm).” Res. Ex. 2 at 4.

F. Analysis

Dr. Shanti failed to meet his burden of proof to show by a preponderance of the evidence that the epidural steroid injections were medically necessary healthcare for Claimant. Dr. Shanti failed to submit documentary evidence in a timely fashion to either the IRO or for the SOAH hearing. This

failure deprived the IRO and the SOAH ALJ of information needed to support his contention. The Commission’s system of review is predicated upon the party requesting relief submitting supporting documentation in a timely fashion. Without such submissions, the decision-maker has nothing upon which to base a decision in favor of the requestor.

Regarding the evidence presented at the hearing, Dr. Shanti’s testimony was by itself insufficient to establish that the epidural steroid injections might tend to cure or relieve the symptoms of Claimant’s compensable injury. Dr. Shanti did not explain how Claimant’s back could have a normal range of motion, reflexes and strength in August 2003, but be abnormal in December 2003. He also did not explain why her straight leg raise test results could be normal in August 2003, but abnormal when he subsequently examined her. Additionally, as described by Dr. Shanti, Claimant’s pain symptoms were too vague and non-specific to be definitely caused by the compensable injury. As the MRI was taken several months before Dr. Hood’s examination of Claimant, there is no evidence that 3mm herniation caused Claimant pain.

The epidural steroid injections requested by Dr. Shanti were not shown to be reasonable and medically necessary healthcare for Claimant.

III. FINDINGS OF FACT

1. In ___, Claimant sustained a back injury compensable under the Texas Workers’ Compensation Act (Act).
2. At the time of the compensable injury, Liberty Mutual Insurance Corporation (Respondent) was the workers’ compensation insurer for Claimant’s employer.
3. After Respondent denied his request for epidural steroid injections for Claimant as being medically unnecessary, Claimant’s physician, Dr. Ihsan Shanti (Petitioner) requested the Texas Workers’ Compensation Commission review the denial. That review produced the Independent Review Organization’s (IRO) decision, dated December 12, 2003, which upheld the denial.
4. Dr. Shanti timely appealed the IRO decision.
5. As a basis for the decision, the IRO reviewer noted that there were no records submitted to support the requested bilateral epidural steroid injections.
6. In August 2003, orthopedic surgeon James Hood, M.D., examined Claimant.
7. Dr. Hood’s examination of Claimant revealed she had full motion of her back, with normal extension, strength, and reflexes. Her straight leg raise test results were also normal.
8. When examined by Dr. Hood, Claimant had a non-specific and mild strain or sprain event and transient soreness in the lower back without evidence of any significant injury.
9. The results of Dr. Hood’s examination of Claimant in August 2003 were inconsistent with Dr. Shanti’s subsequent diagnosis of radiculopathy.
10. The degree and source of Claimant’s pain, as found by Dr. Shanti’s examination, were not established in the record.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act (Act), TEX. LABOR CODE ANN. § 413.031.
2. 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 = 413.031(d) of the Act and TEX. GOV’T CODE ANN. ch. 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV’T CODE ANN. ch. 2001 and the Commission’s rules, 28 TEX. ADMIN. CODE (TAC) §§ 133.305 and 133.308.
4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§ 2001.051 and 2001.052.
5. Petitioner had the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i); 1 TAC § 155.41.
6. The IRO had authority to review the parties’ positions and issue a decision pursuant to the Commission’s rule at 28 TAC §§ 133.305 and 133.308.
7. Pursuant to the Act, an employee who has sustained 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 cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. TEX. LAB. CODE ANN. § 408.021(a).
8. Health care includes all reasonable and necessary medical services, including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. § 401.011(31).
9. For a carrier to be liable to reimburse a provider for epidural steroid injections, the service must be preauthorized. 28 TAC § 134.600(h).
10. Epidural steroid injections were not shown to be reasonable and medically necessary healthcare for Claimant and should not be preauthorized.

ORDER

It is ORDERED that the request of Ihsan Shanti, M.D., for preauthorization of epidural steroid injections for Claimant is denied.

Signed April 28, 2004.

ANN LANDEROS
Administrative Law Judge

STATE OFFICE OF ADMINISTRATIVE HEARINGS