DECISION AND ORDER

___ (Petitioner) is appealing the decision of the Texas Workers’ Compensation Commission (Commission), which adopted the decision of an independent review organization (IRO) denying preauthorization for surgery, specifically, amputation of the left leg below the knee. The IRO determined from the medical documentation submitted for review that the requested medical procedure was not medically necessary to treat the Claimant’s condition. The Administrative Law Judge (ALJ) finds the request for preauthorization should be granted because the requested treatment is medically necessary.

I.PROCEDURAL HISTORY, JURISDICTION, AND NOTICE

On December 11, 2003, ALJ Wendy K. L. Harvel convened the hearing at the William P. Clements Building, 300 West 15^th Street, Austin, Texas. Petitioner appeared via telephone along with his attorney, Barry Hart. Insurance Company of the West (Respondent or Carrier) was represented by Dan Kelley, attorney. Notice and jurisdiction were not contested and will be addressed in the findings of fact and conclusions of law. Following the presentation of evidence, the hearing and the record closed on December 11, 2003.

II.DISCUSSION

Background

The Claimant, who is a 52-year old male, suffered a compensable injury on ___. Following the injury, Claimant sought treatment for two crushed ankles from Dr. Owen Dewitt. Dr. Dewitt attempted two fusions on each ankle, all of which failed. Following the failure of the two fusions on the right ankle, Dr. Dewitt performed an amputation of the foot and part of the lower leg. Claimant was fitted with a prosthesis for that foot and lower leg. After the surgery, Claimant’s complaints with respect to the right ankle resolved. He continues to complain of pain in his left ankle, and he is unable to stand or walk for long periods of time as a result of the pain. He is also unable to drive. He is on narcotic medications for the pain. Dr. Dewitt wishes to perform an amputation of the left ankle with the hope that the surgery and a prosthesis will resolve Claimant’s pain.

Medical Records

The documentary evidence consisted of Claimant’s voluminous medical records.^[1] The records reflect that Claimant underwent two fusions on each ankle. They further indicate that treatment options other than amputation have been tried, and have failed.

The Carrier denied preauthorization of the requested surgery. The reason given was that there was insufficient documentation of conservative treatment.

Testimony of Dr. Dewitt

Dr. Dewitt is the Claimant’s current treating physician. He testified that an amputation of the left foot and ankle is the only option remaining to treat Claimant’s compensable injury. He testified that he has already treated Claimant’s left foot with two failed surgeries. He also testified that no other procedures could be performed on Claimant’s ankle other than amputation. He testified that he has tried in the past to use braces to stabilize the ankle, which did not work. Other types of braces that require pins to be placed through the skin would not work because Claimant is a diabetic and cannot tolerate an open wound.

On cross-examination, Dr. Dewitt testified that diabetic neuropathy is a factor in Claimant’s condition because of the lack of blood supply to the feet.

Testimony of Claimant

Claimant testified that he has had no pain in his right leg since the amputation of the lower right leg. He further testified that with the prosthesis, his right leg works well, and he has no complaints. His left leg is currently as painful as his right leg was at the time he underwent the first amputation. When asked on cross-examination whether he had sought a second opinion, he stated that Dr. Dewitt’s consultation was a second opinion. His first doctor wanted to amputate both feet at the same time.

Carrier’s Evidence

Carrier presented documentary evidence only. Carrier’s case consisted of the medical records and statements in the records from Carrier’s reviewing physician that an amputation is not medically necessary based on the lack of documentation of conservative treatments.

III. CONCLUSION

The burden is on the Petitioner to show medical necessity for the procedure and to show that conservative treatments have been tried. Dr. Dewitt has treated the Claimant. He believes that an amputation is the only option remaining to treat Claimant’s injury. He has tried conservative treatments, all of which have failed. Carrier’s evidence consisted of a paper review by a physician who has not examined Claimant. A preponderance of the evidence supports preauthorization of the requested procedure.

IV.FINDINGS OF FACT

1. On ___, the Claimant sustained an on-the-job injury.
2. At the time of the Claimant’s injury, Insurance Company of the West (Respondent or Carrier) provided workers’ compensation insurance to the Claimant’s employer.
3. The Claimant was treated with two fusion surgeries on both ankles.
4. Neither fusion successfully united the bones in Claimant’s ankles.
5. Dr. Dewitt, Claimant’s treating physician, performed an amputation of Claimant’s right leg below the knee on April 10, 2002.
6. After the amputation, Claimant received a prosthesis, and his complaints related to his right ankle resolved.
7. Claimant continues to have severe pain in his left ankle. He is unable to drive, and he cannot stand or walk without considerable pain
8. Claimant has undergone conservative treatments for his left ankle, including two surgeries. Because he is a diabetic, many other treatment options, such as external braces with pins through the skin are not viable treatment options.
9. The only treatment option remaining for Claimant’s left ankle is a left leg amputation below the knee.
10. Claimant sought preauthorization for the amputation of Claimant’s left leg below the knee.
11. The Carrier denied the Petitioner’s request for preauthorization.
12. The Petitioner requested dispute resolution services from the Texas Workers’ Compensation Commission’s Medical Review Division.
13. On August 4, 2003, an independent review organization issued its decision denying preauthorization because documentation did not show the patient had undergone conservative treatment for the injuries to the left ankle.
14. The Texas Workers’ Compensation Commission adopted the decision of the independent review organization.
15. Petitioner filed a request for hearing to contest the denial of preauthorization of the requested services.
16. The Commission sent notice of the hearing to the parties on September 25, 2003. The hearing notice informed the parties of the matter to be determined, the right to appear and be represented by counsel, the time and place of the hearing, and the statutes and rules involved.
17. The hearing on the merits convened on December 11, 2003, before Wendy K. L. Harvel, Administrative Law Judge. Petitioner appeared with his attorney, Barry Hart. Respondent appeared through Dan Kelley, attorney.

V.CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented, pursuant to the Texas Workers’ Compensation Act, Tex. Lab. 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 Tex. Lab. Code Ann. §§402.073 and 413.031(k) and Tex. Gov’t Code Ann. ch. 2003.
3. Petitioner timely filed notice of appeal, as specified in 28 Tex. Admin. Code §148.3.
4. Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov’t Code Ann. ch. 2001 and 28 Tex. Admin. Code § 148.4(b).
5. Petitioner had the burden of proving the case by a preponderance of the evidence, pursuant to 28 Tex. Admin. Code § 148.21(h) and (i), and 1 Tex. Admin. Code § 155.41.
6. As provided by Tex. Lab. Code Ann. § 413.014 and 28 Tex. Admin. Code §’ 134.600(h)(1), preauthorization is required for all non-emergency hospitalizations.
7. Based on the Findings of Fact, the requested medical procedure is medically necessary.
8. Based on the Findings of Fact and Conclusions of Law, Claimant is entitled to preauthorization for the medically necessary treatment.

ORDER

IT IS, THEREFORE, ORDERED that Respondent, Insurance Company of the West, pay the reasonable and necessary cost of providing the Claimant the requested surgery.

Signed December 17, 2003.

WENDY K. L. HARVEL
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Pet. Exs. 1 and 2, Resp. Ex. 2.↑