DECISION AND ORDER

___(Petitioner) appealed the findings and decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division’s (MRD) docket number M2-02-0206-01. The MRD decision upheld the denial by Pennsylvania General Insurance Company (Carrier) of Petitioner’s request for preauthorization of ambulatory surgical center care for 25295,Tenolysis Forearm/Wrist, 64721, Neuroplsty TRNSP Median, 14040, TS TRNSFR Face (referenced in the proposal for decision as the surgery and the second surgery).^[1] This decision finds the requested preauthorization should be granted.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

There were no contested issues of jurisdiction or notice. Therefore, those issues are addressed in the findings of fact and conclusions of law without further discussion here.

The hearing in this matter was held June 25, 2002, at the Hearings Facility of the State Office of Administrative Hearings (SOAH) before Administrative Law Judge (ALJ) Michael J. O’Malley. Carrier appeared through its attorney, Mr. Robert Josey. Petitioner appeared telephonically and was represented by her treating doctor, Jorge Guerrero M.D. Respondent Commission did not appear. After receipt of evidence and argument, the record closed that same day.

II. DISCUSSION

A. Background Facts

On_____________, Petitioner suffered an injury to her left wrist compensable under the Texas Workers’ Compensation Act (the Act). At the time of her compensable injury, Carrier was the worker’s compensation insurer for Petitioner’s employer. Petitioner received extensive physical therapy for her injury. She underwent a left wrist tenosynovectomy to correct the extensor mechanism (the muscle serving to extend the wrist) on January 31, 2001. Jacob Varon, M.D. performed the surgery. After the surgery, Petitioner continued to have pain and was reevaluated by Dr. Varon. Dr. Varon determined that Petitioner had extensive tenosynovitis (inflammation of a tendon) in the flexor mechanism (the muscle that produces flexibility in the wrist) as well as compression of the medial nerve. For the most part, his diagnosis was confirmed by an MRI exam that was conducted on October 10, 2000. He recommended a second surgery to treat the flexor mechanism. Dr. Guerrero supported Dr. Varon’s recommendation that a second surgery be performed.

Carrier initially denied the request for preauthorization for the surgery because it was unclear how the request related to the injury and because there was no information on the conservative care. The request was resubmitted, and Carrier denied the request the second time, asserting there were no objective clinical findings to show the surgery was medically necessary.

B. Legal Standards

Petitioner has the burden of proof in this proceeding. 28 TEX. ADMIN CODE (TAC) §§ 148.21(h) and (i). 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).

Pursuant to TEX. LAB. CODE § 413.014 and the Commission rule at 28 TAC § 134.600, for a carrier to be liable for certain services and supplies, it must preauthorize them. The requested service requires preauthorization. 28 TAC § 134.600(h)(1).

Evidence

Dr. Guerrero, Petitioner’s treating doctor, was the only witness who testified at the hearing. Dr. Guerrero’s testimony, along with certain documents in the certified record, establish the necessity of the surgery, the goal of that treatment, and its expected outcome. Dr. Guerrero testified that Petitioner continued to suffer pain in her left wrist after the first surgery. According to Dr. Guerrero, because of the continued pain, Petitioner could not return to work. He stated that the second surgery is an important step in getting Petitioner back to work.

In a letter dated November 2, 2001, to the Carrier, Dr. Guerrero stated that Petitioner suffered a left wrist internal derangement. Although Petitioner has received extensive physical therapy, he stated that it had been insufficient to treat her injury. He noted that Petitioner’s condition improved after the first surgery, but she continued having pain. He agreed with Dr. Varon that Petitioner needs the second surgery to repair the wrist injury and reduce her pain.

Dr. Varon also issued a letter to Carrier on September 4, 2001, explaining the necessity of the second surgery. Dr. Varon noted that Petitioner sustained a direct injury to her left hand. The injury resulted in very significant tenosynovitis that required surgical intervention. Dr. Varon noted that the MRI showed extensive damage in both the flexor and the extensor sides of the left wrist. The first surgery dealt with the extensor mechanism, and the second surgery will deal with the flexor mechanism. He further explained that the MRI Report regarding the flexor mechanism shows a tremendous pathological change with extensive tenolysis, compression of the median nerve, carpal tunnel syndrome, and tenosynovitis.

Carrier did not present any testimony at the hearing. Carrier relied on a normal EMG/Nerve Conduction Study performed on September 1, 2000. Carrier also relied on the Required Medical Examination (RME) performed by Charles Fred Xeller, M.D., which did not concur with the medical necessity of the surgery. Finally, Carrier argued that Petitioner, the party with the burden of proof, did not present any additional evidence at the hearing to support the medical necessity of the second surgery.

ALJ’s Analysis

The ALJ finds that Petitioner established that the surgery is medically necessary to treat the injury, help relieve the pain, and enhance her ability to return to work. Although Dr. Xeller, the independent reviewing doctor, disagreed with the treating doctors, he provided no explanation as to why he disagreed with Petitioner’s treating doctors. Dr. Xeller’s report was also not persuasive because it was conclusory, offering no explanation on why the surgery was not medically necessary. Therefore, in evaluating the evidence, the ALJ assigned very little weight to the RME and Dr. Xeller’s opinion.

The ALJ was persuaded by the testimony of Dr. Guerrero, Petitioner’s treating doctor. He has examined Petitioner on several occasions since July 17, 2000, and he understands the nature of her injury and the pain she has suffered as a result of the injury. Dr. Guerrero further testified that the surgery is necessary to treat Petitioner’s injury and reduce the pain in her left wrist. He also argued that, without the surgery, Petitioner will not be able to return to work.

Even more persuasive was the letter written by Dr. Varon, the doctor who performed the first surgery. In his letter to Carrier, Dr. Varon stated that Petitioner’s left wrist injury resulted in very significant tenosynovitis. He further stated that two surgeries would be required to treat Petitioner’s injury. The first surgery would treat the extensor mechanism, and the second surgery would treat the flexor mechanism. Dr. Varon’s treatment plan, including both surgeries, is supported by the MRI conducted on October 10, 2000.^[2] The MRI indicated that the flexor mechanism shows a pathological change with extensive tenolysis, compression of the median nerve, carpal tunnel syndrome, and tenosynovitis in Petitioner’s left wrist. The MRI results support the need for the second surgery.

Finally, the Act mandates the employee receive all health care reasonably necessary to cure or relieve the effects of the compensable injury. Petitioner met her burden to show that the surgery to the flexor mechanism of her left wrist is the type of health care to which she is entitled under the Act.

III. FINDINGS OF FACT

1. On_________, ___(Petitioner) suffered an injury compensable under the Texas Workers’ Compensation Act (Act).
2. At the time of Petitioner’s compensable injury, Pennsylvania General Insurance Company (Carrier) was the workers’ compensation insurer for Petitioner’s employer.
3. Petitioner received extensive physical therapy for her left wrist injury.
4. Dr. Jacob Varon performed a left wrist tenosynovectomy on the extensor mechanism of Petitioner’s left wrist.
5. After the surgery, Petitioner continued to have pain in her left wrist and was reevaluated by Dr. Varon.
6. Dr. Varon recommended a second surgery to Petitioner’s left wrist to deal with the flexor mechanism (25295,Tenolysis Forearm/Wrist, 64721, Neuroplsty TRNSP Median, 14040, TS TRNSFR Face).
7. Carrier initially denied preauthorization for the second surgery based on its finding that it was unclear how the request related to the injury and on lack of information on the conservative care.
8. The preauthorization request was resubmitted, and Carrier denied the request based on a lack of objective clinical findings.
9. In a decision issued December 14, 2001, the Commission’s Medical Review Division upheld Carrier’s denial of preauthorization for the second surgery on Petitioner’s left wrist.
10. Petitioner appealed the denial of preauthorization.
11. Petitioner suffers carpel tunnel syndrome and tenosynovitis in her left wrist, which prevents her from returning to work.
12. The second surgery, dealing with the flexor mechanism of the left wrist, will help relieve Petitioner’s pain, treat her injury, and enable her to return to work.

IV. 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. 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.
4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§ 2001.051 and 2001.052.
5. The ambulatory surgical center care for 25295,Tenolysis Forearm/Wrist, 64721, Neuroplsty TRNSP Median, 14040, TS TRNSFR Face requires preauthorization pursuant to TEX. LABOR CODE ANN. §413.014 and 28 TEX. ADMIN. CODE (TAC) § 134.600(h)(1).
6. Petitioner had the burden of proof in this case. 28 TAC § 148.21(h) and (i).
7. 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. Petitioner proved that the requested 25295,Tenolysis Forearm/Wrist, 64721, Neuroplsty TRNSP Median, 14040, TS TRNSFR Face is medically necessary healthcare to which she entitled under the Act.
9. Petitioner’s request for 25295,Tenolysis Forearm/Wrist, 64721, Neuroplsty TRNSP Median, 14040, TS TRNSFR Face should be preauthorized.

ORDER

IT IS ORDERED that preauthorization for the ambulatory surgical center care for 25295,Tenolysis Forearm/Wrist, 64721, Neuroplsty TRNSP Median, 14040, TS TRNSFR Face, requested by Petitioner M. M., is granted.

Signed this 25^th day of July 2002.

MICHAEL J. O’MALLEY
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. This surgery would correct the flexor mechanism of the left wrist.↑
2. The EMG/Nerve Conduction Study conducted on September 1, 2000, and relied on by Carrier, was superceded by the by the MRI performed on October 10, 2000. The MRI provided more information on Petitioner’s condition. Based on the MRI, Dr. Varon concluded that surgery was medically necessary.↑