DECISION AND ORDER

Petitioner, North Forest Independent School District (Carrier), appealed the Findings and Decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) in a preauthorization dispute. The MRD decision authorized ambulatory surgical center (ASC) care as requested by Anthony J. LaMarra (the Provider) to perform a left ankle arthroscopy with possible arthrotomy and sinus tarsi decompression (surgery) on ____ (Claimant). The MRD decision also granted the 21-day rental of a cryo-therapy CPM machine postoperatively. The Administrative Law Judge (ALJ) finds the request for ASC care to perform surgery and the rental of a cryo-therapy CPM machine are reasonable and medically necessary and should be authorized.

I. JURISDICTION, NOTICE AND HEARING

The parties did not contest jurisdiction and notice of the hearing. Therefore, the ALJ will address those matters in the Findings of Fact and Conclusions of Law without further discussion here.

On January 14, 2002, ALJ Catherine C. Egan convened the hearing at State Office of Administrative Hearings’ (SOAH) hearing rooms in Austin, Texas. Dr. LaMarra appeared telephonically and represented himself. John Gillespie, an attorney, represented Carrier. Respondent Commission waived its appearance. Dr. LaMarra requested that the record remain open to file a letter about Claimant written by John Bergeron, M.D., P.A. Mr. Gillespie agreed that Dr. LaMarra could send Dr. Bergeron’s letters by facsimile to the ALJ for admission into evidence as Exhibit No.3. The record remained open to secure this additional evidence. On January 14, 2002, after the ALJ received Dr. Bergeron’s letter, the ALJ marked it as Exhibit No. 3, admitted it into evidence, and closed the record.

II. LEGAL AUTHORITY

A. Entitlement to Medical Benefits.

Section 408.021 of the Act provides:

(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.

Section 401.011(19) of the Act defines” health care” to include “all reasonable and necessary medical . . . services”

B. Preauthorization.

Certain categories of health care identified by the Commission require preauthorization, which is dependent upon a prospective showing of medical necessity. Tex. Labor Code Ann. § 413.014; 28 Tex.Admin. Code (TAC) § 134.600. Under 28 TAC § 134.600(h)(1), preauthorization is required for ASC care, and under (h)(13) it is required for all durable medical equipment in excess of $500 per item.

C. Lower Extremities Treatment Guideline.

The Lower Extremities Treatment Guideline, 28 TAC §134.1003, states that it is a guideline to clarify those services that are reasonably and medically necessary for treatment of lower extremity injuries. Indications for surgery for an ankle sprain or strain include the failure to respond to non-operative treatment and recurrent sprain with documented instability. 28 TAC § 134.1003(g)(6).

III. DISCUSSION

A. Summary of Findings.

Claimant meets the criteria for ASC care to perform a left ankle arthroscopy with possible arthrotomy and sinus tarsi decompression, and for the 21-day rental of the cryo-therapy CPM machine postoperatively. Conservative care was not successful in lessening Claimant’s pain or in stabilizing her left ankle more than a year post injury; psychosocial issues are not a complicating factor; and, an MRI revealed “an effusion within the ankle with distention posteriority and grade II sprain to the posterolateral ligamentous complex of the ankle.”^[1] Both Jack Barnett, D.C., and Robert L. Brownhill, M.D., a general orthopaedist, have examined Claimant’s left ankle and concur with Dr. LaMarra’s recommendation that Claimant undergo a left ankle arthroscopy. Dr. Brownhill is the Commission’s independent medical examiner. Carrier presented insufficient evidence to rebut the medical necessity of ASC care to perform this surgical procedure or the need for a cryo-therapy CPM machine postoperatively.

B. Evidence.

Background and Provider’s Position

Claimant was an employee of North Forest Independent School District on______, when she injured her left ankle stepping out of a school bus. Claimant’s primary care physician, Dr. Barnett, referred claimant to Dr. LaMarra, a podiatrist, for evaluation and treatment. Dr. LaMarra examined Claimant on June 28, 2001, noting that Claimant experienced constant pain in her left ankle and that her left ankle was unstable. According to Dr. LaMarra, if Claimant’s left foot lands on a rock or any imperfection on the surface, her ankle will “roll”out on her. Dr. LaMarra, diagnosis includes, 1) left ankle sprain with associated ankle instability; 2) internal ankle derangement; 3) left sinus tarsi syndrome; 4) tendonitis; and 5) neuritis.^[2]

Between June and August 27, 2001, Claimant underwent extensive non-operative care including injections, supports, strappings, physical therapy, and use of medications. All conservative treatments failed. Claimant continues to experience pain, swelling of her left ankle, crepitation^[3] with range of motion, weakness, and instability-all clinical signs of internal ankle derangement.^[4] Dr. LaMarra testified that the number one indication for a left ankle arthroscopy and sinus tarsi decompression is continued ankle pain.

On August 16, 2001, Dr. LaMarra discussed surgical correction with Claimant. According to Dr. LaMarra’s office notes, Claimant’s MRI ^[5]“showed this patient does have a joint effusion so therefore, it is of medical necessary that this patient undergo an ankle arthroscopy to view the ankle joint to get more of a definitive diagnosis and surgically treat if necessary.”^[6] The MRI also showed a partial tear to the ligament in the posterior palo fibular ligament. An MRI only shows 50 percent of the joint, explained Dr. LaMarra, while the ankle arthroscopy shows 100 percent of the joint. Consequently, Dr. LaMarra testified, the arthroscopy is both diagnostic (to see what is happening in Claimant’s ankle joint) and therapeutic (to immediately treat what he diagnoses as wrong with Claimant’s ankle).

Dr. LaMarra agreed that the June 7, 2001, EMG/NCV (electromyography and nerve conduction velocity) studies were normal. But, Dr. LaMarra explained, he expected this result with the injuries experienced by Claimant. Dr. LaMarra did not find Claimant to be a malingerer, commenting that Claimant experienced relief from pain when he injected Claimant’s left ankle with lidocaine and marcaine (to numb the area). If Claimant was a malingerer, Dr. LaMarra contends, she would not have experienced pain relief from the injections.

Dr. LaMarra testified he will perform an arthrotomy only if Claimant has a lesion or scar tissue that is too large to remove through the small incisions made for the scope. In a letter, Dr. LaMarra explained that the CPM machine provides continuous passive motion that helps remold the fiber cartilage once he removes the damaged cartilage. Without the machine, irregular cartilage can develop and cause arthritis.^[7] The cryotherapy, a cool therapy unit, keep the patient’s foot at 40 degrees and reduces edema, pain and the development of scar tissue. Dr. LaMarra disputes Dr. Nelson’s determination that Claimant has reached maximum medical improvement (MMI), asserting Claimant will improve by at least 80 percent if she undergoes surgery.

Medical Opinions Assessing MMI

In October 2001, John Bergeron, M.D., P.A., evaluated Claimant’s injury at the Commission’s request to determine whether she had reached MMI, and if so, her impairment rating. During his physical examination of Claimant, Dr. Bergeron noted:

Lower extremities:Left ankle show mild tenderness and swelling over the lateral malleolus. There is pain elicited with range of motion and decreased sensation over the lateral aspect of the foot and lateral toes.

Dr. Bergeron did not find Claimant to be at MMI and recommended she undergo an ankle arthroscopy.^[8]

On February 8 and September 4, 2001, Dr. Nelson, an orthopedic specialist hired by the Carrier, conducted a second evaluation and determined Claimant had reached MMI with a three percent impairment rating.^[9] Dr. Nelson felt Claimant should be seen by an orthopedic surgeon “with expertise in manners of the ankle and foot. “Dr. Nelson wrote”on July 5, 2001, she was not seen by an orthopedic surgeon, but by a podiatrist, Anthony J. LaMarra, DPM, who diagnosed ankle instability.” Dr. Nelson opined that if Claimant underwent surgery, her impairment rating would need to be reassessed.

Commission’s Independent Medical Examiner’s Opinion

The Commission retained Dr. Brownhill to conduct an independent medical examination of Claimant’s condition. Following his medical examination of Claimant in November 2001, Dr. Brownhill concluded that (1) the medical record supported the diagnosis, (2) the proposed plan of treatment is appropriate to the diagnosis, severity of injury and phase of recovery, and (3) the proposed care is medically necessary for the Claimant’s recovery and return to work.

Carrier’s Position

Carrier denied preauthorization for ASC care twice, once on August 27, 2001 and again on September 12, 2001. The first time, Carrier denied ASC care because “there is no identifiable lesion on her MRI or foot examination that would benefit from the arthroscopy/arthrotomy” The second time, Carrier found no identified pathology justifying surgery and directed that a second surgical opinion be obtained.^[10] Irwin S. Novak, M.D., prepared a peer review report at the Carrier’s request dated November 6, 2001. Dr. Novak concluded that the records he reviewed did not support the medical necessity for a left ankle arthroscopy with arthrotomy. Dr. Novak further noted that Claimant clinical history was inconsistent with tarsal tunnel.^[11] Dr. Novak did not examine Claimant’s ankle and was not called to testify.

ALJ’s Analysis.

The Lower Extremities Treatment Guidelines recognize surgery as an appropriate diagnostic and treatment protocol when non-operative treatment fails. As noted above, Claimant met all the Lower Extremities Treatment Guideline criteria for surgery: her ankle pain, swelling and instability persist over a year after her injury despite conservative care; there is no evidence of psychosocial issues complicating treatment; and an MRI revealed some abnormalities in her ankle spine. Three medical doctors have examined Claimant and recommended an arthroscopy, including the Commission’s independent medical examiner. Both the ASC care to perform the arthroscopy with possible arthrotomy and sinus tarsi decompression on Claimant’s left ankle and the 21-day rental of a cryo-therapy CPM machine postoperatively are medical necessity.

IV. FINDINGS OF FACT

1. On________, ___(Claimant) suffered an injury to her left ankle that was compensable under the Texas Workers’ Compensation Act.
2. At the time of Claimant’s compensable injury, North Forest Independent School District (Carrier) was the workers’ compensation insurer for Claimant’s employer.
3. Since her injury, Claimant has undergone extensive nonoperative treatment, including epidural injections, passive and active physical therapy, and medications, but she continues to suffer with pain, swelling and instability in her left ankle.
4. In June 2001, Claimant underwent an MRI that showed “an effusion within the ankle with distention posteriority and grade II sprain to the posterolateral ligamentous complex of the ankle.”
5. Claimant suffers with 1) ankle sprain with associated ankle instability; 2)internal ankle derangement; (3)left sinus tarsi syndrome; 4) tendonitis; and 5) neuritis as diagnosed by Dr. LaMarra.
6. Between June and August 27, 2001, Claimant received non-operative care (injections, supports, strappings, physical therapy, and medications) that failed to relieve the pain, swelling, weakness and instability in Claimant’s left ankle.
7. In April 2001, Provider requested Carrier to preauthorize ambulatory surgical center care to perform a left ankle arthroscopy with possible arthrotomy and sinus tarsi decompression (surgery), and the 21-day rental of cryo-therapy CPM machine postoperatively.
8. The arthroscopy will allow the Provider to see what is happening in Claimant’s ankle joint and to immediately treat what he finds wrong with Claimant’s ankle.
9. The CPM machine provides continuous passive motion to remold the new fiber cartilage once the damaged cartilage is removed and will help prevent the development of irregular cartilage that can cause arthritis.
10. The cryotherapy, a cool therapy unit, helps reduces edema, pain and the development of scar tissue.

V. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act (the Act), Tex. LaborCodeAnn. § 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’tCodeAnn. ch. 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’tCodeAnn. ch. 2001.
4. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’tCodeAnn. §§ 2001.051 and 2001.052.
5. Ambulatory surgical center care to perform a left ankle arthroscopy with possible arthrotomy and sinus tarsi decompression, and the rental of cryo-therapy CPM machine postoperatively require preauthorization pursuant to Tex. LaborCodeAnn. § 413.014 and 28 TAC § 134.600(h)(1) and (13).
6. Based on Findings of Fact Nos. 1 and 3-5, Claimant meets all the criteria for ambulatory surgical center care to perform a left ankle arthroscopy with possible arthrotomy and sinus tarsi decompression (surgery), and the 21-day rental of cryo-therapy CPM machine post-operatively under the Commission’s Lower Extremities Treatment Guideline at 28 TAC § 134.1003(g).
7. Based on the foregoing, the ambulatory surgical center care to perform a left ankle arthroscopy with possible arthrotomy and sinus tarsi decompression (surgery), and the rental of cryo-therapy CPM machine post-operatively requested for Claimant is reasonable and medically necessary health care under § 408.021 of the Act and should be preauthorized.

ORDER

IT IS ORDERED that preauthorization for ambulatory surgical center care to perform a left ankle arthroscopy with possible arthrotomy and sinus tarsi decompression, and for the 21-day rental of cryo-therapy CPM machine postoperatively requested by Dr. LaMarra for ____ are granted.

Signed this 14^th day of February 2002.

CATHERINE C. EGAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Exhibit 1 at 30.↑
2. Exh. 1 at 28.↑
3. Cracking sound when the ankle is rotated.↑
4. Exh. 1 at 18 and 19.↑
5. Exh. 1 at 36. MRI was taken on June 4, 2001.↑
6. Exh. 1 at 17.↑
7. Exh. 1 at 19.↑
8. Exh. 3.↑
9. Exh. 1 at 32.↑
10. Exh. 1 at 9 and 13.↑
11. Exh. 2 at 2.↑