DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and Rules of the Division of Workers’ Compensation adopted thereunder.

ISSUES

A contested case hearing was scheduled for February 24, 2012 but reset to and held on March 23, 2012 to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that the Claimant is not entitled to an office visit for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Petitioner/Claimant appeared and was assisted by TT, ombudsman.

Respondent/Carrier appeared and was represented by JF, attorney.

BACKGROUND INFORMATION

Claimant sustained a compensable lumbar spine injury on (Date of Injury). Claimant underwent spinal surgery in November 2002. Claimant’s last office visit with Dr. G, her treating physician, occurred on October 11, 2010. Claimant testified that she has intermittent exacerbations of low-mid back pain, radiating pain and muscle spasms and that her office visits with her treating surgeon have been denied by the Carrier so she appealed the denial. The request was reviewed by an IRO who upheld the Carrier’s denial citing the Official Disability Guidelines (ODG) and providing an analysis of the explanation for the denial. The IRO reviewer, identified as a medical doctor specializing in physical medicine and rehabilitation, noted that follow-up visits can be recommended by the ODG if they are determined to be medically necessary; however, there was no clinical information provided to suggest any clinical indication for any additional follow-up office visits. The IRO reviewer noted that Claimant went 18 months not seeing the treating physician, had some very vague complaints of pain and that the physical examination did not identify any particular clinical reason to explain these complaints. The IRO reviewer noted that the requesting provider elected not to speak with the reviewing provider and, given that there was no clear clinical data presented to support that the additional follow-up visits would be reasonably required to address the “sequelae” of the compensable event, an office visit is not medically necessary. The IRO reviewer concluded by stating that there would need to be a comprehensive, competent, clinical analysis that would endorse the treatments currently being pursued.

Texas Labor Code Section 408.021 provides that 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. Health care reasonably required is further defined in Texas Labor Code Section 401.011 (22a) as health care that is clinically appropriate and considered effective for the injured employee’s injury and provided in accordance with best practices consistent with evidence based medicine or, if evidence based medicine is not available, then generally accepted standards of medical practice recognized in the medical community. Health care under the Texas Workers’ Compensation system must be consistent with evidence based medicine if that evidence is available. Evidence based medicine is further defined in Texas Labor Code Section 401.011 (18a) to be the use of the current best quality scientific and medical evidence formulated from credible scientific studies, including peer-reviewed medical literature and other current scientifically based texts and treatment and practice guidelines in making decisions about the care of individual patients. The Commissioner of the Division of Workers’ Compensation is required to adopt treatment guidelines that are evidence-based, scientifically valid, outcome-focused and designed to reduce excessive or inappropriate medical care while safeguarding necessary medical care. Texas Labor Code Section 413.011(e). Medical services consistent with the medical policies and fee guidelines adopted by the commissioner are presumed reasonable in accordance with Texas Labor Code Section 413.017(1).

In accordance with the above statutory guidance, the Division of Workers’ Compensation has adopted treatment guidelines by Division Rule 137.100. This rule directs health care providers to provide treatment in accordance with the current edition of the Official Disability Guidelines (ODG), and such treatment is presumed to be health care reasonably required as defined in the Texas Labor Code. Thus, the focus of any health care dispute starts with the health care set out in the ODG. Also, in accordance with Division Rule 133.308 (t), “A decision issued by an IRO is not considered an agency decision and neither the Department nor the Division are considered parties to an appeal. In a Contested Case Hearing (CCH), the party appealing the IRO decision has the burden of overcoming the decision issued by an IRO by a preponderance of evidence-based medical evidence.”

ODG Recommendation for Office Visits:

Recommended as determined to be medically necessary. Evaluation and management (E&M) outpatient visits to the offices of medical doctor(s) play a critical role in the proper diagnosis and return to function of an injured worker, and they should be encouraged. The need for a clinical office visit with a health care provider is individualized based upon a review of the patient concerns, signs and symptoms, clinical stability, and reasonable physician judgment. The determination is also based on what medications the patient is taking, since some medicines such as opiates, or medicines such as certain antibiotics, require close monitoring. As patient conditions are extremely varied, a set number of office visits per condition cannot be reasonably established. The determination of necessity for an office visit requires individualized case review and assessment, being ever mindful that the best patient outcomes are achieved with eventual patient independence from the health care system through self care as soon as clinically feasible. The ODG Codes for Automated Approval (CAA), designed to automate claims management decision-making, indicates the number of E&M office visits (codes 99201-99285) reflecting the typical number of E&M encounters for a diagnosis, but this is not intended to limit or cap the number of E&M encounters that are medically necessary for a particular patient. Office visits that exceed the number of office visits listed in the CAA may serve as a “flag” to payors for possible evaluation, however, payors should not automatically deny payment for these if preauthorization has not been obtained. Note: The high quality medical studies required for treatment guidelines such as ODG provides guidance about specific treatments and diagnostic procedures, but not about the recommended number of E&M office visits. Studies have and are being conducted as to the value of “virtual visits” compared with inpatient visits, however the value of patient/doctor interventions has not been questioned. (Dixon, 2008) (Wallace, 2004) Further, ODG does provide guidance for therapeutic office visits not included among the E&M codes, for example Chiropractic manipulation and Physical/Occupational therapy.

In response to the determination of the IRO, Dr. G, orthopedic surgeon, explained that Claimant has continued complaints of intermittent back pain, flare-ups into her buttocks, left thigh and knee which are easily exacerbated with household activities. Dr. G opined that Claimant needs to be afforded the right to have follow-up visits for progression of any lumbar post-laminectomy instability or recurrent HNP at this level (L5-S1) and that she periodically needs medications or physician derived exercise program. Dr. G noted that Claimant is not in need of surgical treatment but she needs to be afforded the standard of care which is access to her treating physician of record for continued complaints referable to her work-related injury of (Date of Injury). Dr. G concluded by stating that all of Claimant’s clinical visits are reasonable and medically indicated and necessary as it relates to her lower back issues and prior work-related injury of (Date of Injury).

The ODG indicates that the need for a clinical office visit with a health care provider is individualized based upon a review of the patient concerns, signs and symptoms, clinical stability, and reasonable physician judgment. It appears that the IRO’s opinion was somewhat based on the lack of communication with the Claimant’s physician. Dr. G’s February 12, 2012 letter of medical necessity addresses the IRO’s concerns, explains Claimant’s need for further medical attention, including medications, and how the ODG requirements for an office visit are met based on reasonable physician judgment. Based on the evidence presented, Claimant does meet the recommendations in the ODG for an office visit and she did provide a medical opinion, based on the ODG criteria, contrary to the determination of the IRO. The preponderance of the evidence is contrary to the IRO decision that Claimant is not entitled to an office visit for the compensable injury of (Date of Injury).

Even though all the evidence presented was not discussed, it was considered. The Findings of Fact and Conclusions of Law are based on all of the evidence presented.

FINDINGS OF FACT

1. The parties stipulated to the following facts:
   1. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
   2. On (Date of Injury), Claimant was the employee of (Employer), Employer.
   3. Claimant sustained a compensable injury on (Date of Injury).
   4. The IRO determined that the requested office visit was not medically necessary for the compensable injury of (Date of Injury).

2.Carrier delivered to Claimant a single document stating the true corporate name of Carrier, and the name and street address of Carrier’s registered agent, which document was admitted into evidence as Hearing Officer’s Exhibit Number 2.

Claimant provided sufficient medical evidence that she does meet the requirements of the ODG for an office visit.

An office visit is health care reasonably required for the compensable injury of (Date of Injury).

CONCLUSIONS OF LAW

1. The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case.
2. Venue is proper in the (City) Field Office.
3. The preponderance of the evidence is contrary to the decision of the IRO that an office visit is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is entitled to an office visit for the compensable injury of (Date of Injury).

ORDER

Carrier is liable for the benefits at issue in this hearing. Claimant remains entitled to medical benefits for the compensable injury in accordance with §408.021.

The true corporate name of the insurance carrier is PACIFIC INDEMNITY COMPANY and the name and address of its registered agent for service of process is:

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TX 75201

Signed this 23rd day of March, 2012.

Carol A. Fougerat
Hearing Officer