DECISION AND ORDER

The State Office of Risk Management^[1] (SORM) denied preauthorization for arthroscopic knee surgery to reconstruct ______(Petitioner’s) left anterior cruciate ligament (ACL) and to perform medial and lateral meniscectomies. The independent review organization (IRO) agreed that the proposed surgery was not medically necessary. ____appealed the IRO’s decision. The Administrative Law Judge (ALJ) determines that the requested surgery is reasonable and necessary and should be preauthorized.

I.JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

On November 3, 2003, ALJ Nancy N. Lynch convened the hearing at the William P. Clements Building, 300 West 15^th Street, Austin, Texas. Petitioner appeared in person and was assisted by Commission Ombudsman Luz Loza. SORM (Respondent) was represented by Stephen Vollbrecht, attorney. Jurisdiction and notice were not contested and will be addressed in the findings of fact and conclusions of law. Following the presentation of evidence, the hearing was closed on the same day.

II.DISCUSSION

Background Facts

Petitioner is a 54-year-old male who suffered a work related injury on__________. He slipped in some water, twisted his left knee and fell, landing on that knee. He was 5 feet 10 inches tall and weighed 230 pounds at the time of his injury. He works as an electrician for the Texas Department of Criminal Justice (TDCJ) and had worked there for approximately ten years when he was injured. He supervises convict electricians who maintain the electrical system of a state jail. Since the injury, Petitioner’s knee has been very unstable and he has been unable to return to work as a supervising electrician. He knew he had arthritis in that knee prior to the injury, but it was well-controlled and did not limit his physical activities.

His treating doctor, David D. Teuscher, M.D., an orthopedic surgeon, requested preauthorization for outpatient arthroscopic knee surgery to reconstruct ____left anterior cruciate ligament (ACL) and to perform medial and lateral meniscectomies. Preauthorization was denied. While waiting for a response to his second request for preauthorization, Dr. Teuscher prescribed a brace for_____ to give him some minimal stability in his left knee while continuing to pursue preauthorization. He also discussed the case with the reviewing doctor and requested that he recommend a second opinion consultation with an orthopedic surgeon who does the full range of knee surgeries.

SORM maintains that the brace that has been supplied to Petitioner is all of the medically necessary health care reasonably required for this injury. In fact, SORM argued that the requested surgery would exacerbate Petitioner’s arthritis, eventually creating a need for a knee replacement. It would, therefore, be harmful to Petitioner.

Legal Standards

The Texas Labor Code (the Act) 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. The employee is specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment.^[2]

“Health care” includes “all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services.”^[3]

Certain categories of health care identified by the Commission require preauthorization, which is dependent upon a prospective showing of medical necessity. The requested procedure involves outpatient surgical services and requires preauthorization.^[4]

Under the Commission’s rules, an IRO decision is deemed a Commission decision and order.^[5] Petitioner, as the party who appealed the IRO decision, has the burden of proving by a preponderance of the evidence that the procedure he seeks is a reasonable and necessary medical service.^[6]C. IRO Decision

The IRO decision, written by a board certified orthopedic surgeon and issued on August 21, 2003, gave the following Rationale/Basis for Decision:

Based on the medical records provided for review, the arthroscopic debridement with anterior cruciate ligament (ACL) reconstruction is not indicated. Severe osteoarthritis is a relative contra-indication to ACL reconstruction. Bracing has been effective and the patient returned to work 04/2000. [sic] If loose fragments can be confirmed, simple arthroscopy for removal of loose fragments and debridement of torn menisci would be indicated. Therefore, it is determined that the proposed left arthroscopic knee surgery is not medically necessary.^[7]

The IRO’s conclusion was based on a major misunderstanding of the facts. It assumed Petitioner had returned to his regular employment in April 2004. Therefore, it concluded, the bracing was effective. In reality, Petitioner’s employer allowed him to return to work for several weeks of Alight duty” after he had used all his annual leave and sick leave. Since June 2003, however, he has been completely off work.

D. The Evidence

Petitioner offered forty pages of medical records and records related to his preauthorization requests and appeal that were admitted without objection as P’s Ex.1. Respondent offered a similar compilation of approximately 100 pages of documents that was admitted without objection as R’s Ex. 1. Petitioner and his treating doctor, David D. Teuscher, M.D., testified.^[8]

Petitioner’s Testimony

Petitioner appeared and testified in person. He described his work at TDCJ and said it requires considerable physical activity, including extensive walking, bending, stooping, climbing, squatting, crawling, and occasionally, getting into some “insane” positions. He had no problems doing any of this before his accident.

He also maintained a very active lifestyle away from work, including activities like volleyball, boating, skiing, using personal watercraft, and other mild sporting activities. He reported he had always been about ten pounds over average weight for his height, but it had never limited his physical activity. He worked out on his home gym and speed-walked two miles three times a week before the accident. The arthritis in his knee did not limit his activities at all.

Petitioner said he is using the knee brace, but it is unworkable as a long-term solution. It is uncomfortable and extremely cumbersome. It limits his activity and motion, causes major blisters, and requires constant adjustment. He believes it is making his knee weaker because he is not able to use it normally. He wears the brace “98 per cent” of the time because it does give him some increased stability. But it is not rehabilitating or reconstructing his knee, and it is not helping him get back to work. He testified he cannot return to work using the knee brace because TDCJ considers it a detriment to his survival, as well as a possible detriment to the survival of others in his workplace environment.

In response to cross-examination, Petitioner emphasized that the brace is not “simply inconvenient.” It makes it impossible for him to fulfill significant requirements of his job. For example, he cannot do ladder work or walk long distances with it. It also requires constant readjustment. The knee brace might be workable if he had a desk job, but he does not.

TDCJ allowed Petitioner to work for twelve weeks in the maintenance office beginning April 7, 2003, after he had used all his personal leave.^[9] He handled paperwork, inventory control, and telephone calls. He has been totally off work since June 2003.^[10]

Petitioner said he had never had a workers’ compensation claim involving time off before this injury. He tried to comply with all requests for information and made countless telephone calls to his human resources office, the local Commission office, and his adjuster at SORM. He tried the brace and found that he could not return to work with it. He understands the risks and possible side effects of the surgery recommended by his doctor-and by Dr. Johnston, and wants the surgery so he can regain the stability he had before the injury, return to work, and function as he did before.

Petitioner expressed frustration with the cumbersome appeals process.^[11] He described it as extremely slow and time consuming due to factors beyond his control. He responded to requests in a timely manner, but had trouble getting that kind of responsiveness from others when he needed it. In addition to exhausting his personal sick and annual leave, he is about to use all his family medical leave benefit. He fears he is in danger of losing his job when he uses up his family leave benefit unless he can get back to work in the near future.

Medical Opinions

a. Argus Services Corporation.^[12] Dr. Marvin Van Hal, M.D., a review specialist for Argus in Aorthopedics and spine,” denied the first request for preauthorization on February 11, 2003. The denial was based solely on a review of medical records. The reasons given were:

• There is bone-on-bone contact.
• The role of ACL reconstruction is to avoid the development of knee arthrosis which is already present.
• Patient is 54 years of age and above average weight for his height.
• The rehabilitation program is key for ACL reconstruction.
• Patient is unlikely to be able to do the rehabilitation program because of his age and size.^[13]

b. David Tuescher, M.D. Petitioner’s treating doctor believed _____to be a good candidate for the requested surgery for the following reasons:^[14]

• He is very healthy and physiologically younger than his chronologic 54 years, and was doing very well until he ruptured his anterior cruciate ligament.
• Prior to this accident, Petitioner’s osteoarthritis pain was well controlled with nonoperative measures. Those symptoms have continued to be well-controlled. His pre-injury arthritis was isolated primarily to his medial femoral tibial joint. He would not characterize Petitioner’s arthritis as “severe.”
• Since the accident, Petitioner’s predominant and almost exclusive symptom has been instability.
• The brace is not working for this patient. The only thing worse than an osteoarthritic joint is an unstable osteoarthritic joint.
• The medical literature supports use of ACL reconstruction in patients who are Petitioner’s age and activity level if their predominant symptom is instability.
• Further delay of the proposed treatment and continued instability will lead to further and more rapid progression of the osteoarthritic changes and may necessitate knee replacement or arthroplasty sooner rather than later. If Petitioner receives the requested treatment, he may not need a total knee arthroplasty for many years.
• Knee surgeons today do not commonly believe the old concept that tightening up an arthritic knee makes the arthritis worse.
• Petitioner also needs arthroscopy to for the possible meniscal tear or loose body pathology indicated on the MRI. If not treated, this will continue to progress.

In his testimony, Dr. Teuscher reiterated the above points and, in response to cross-examination, added the following:

• The brace does not provide adequate stability for Petitioner. It is so flexible he can bend it with his hands, and his hands are not nearly as strong as Petitioner’s legs. It will not re-stabilize Petitioner from a functional standpoint-that is, so he can walk and work in it. It also rubs on the skin and causes the problems like ill-fitting shoes.
• Petitioner, when re-stabilized, should return to the same physical condition as before the injury, with his mild-to-moderate arthritis satisfactorily controlled.
• Even if Petitioner has bone-on-bone contact in his knee, he will have much less trouble due to the arthritis if the knee is re-stabilized. Bone-on-bone contact does not necessarily result in further degeneration of the knee. If the ligaments are normally balanced, the bones can function like a cam and operate smoothly, without side-to-side movement across the bones.
• Side-to-side movement or erratic shifting of bone across bone that sometimes occurs is more likely to cause osteoarthritis to progress than bone to bone contact in a stable knee. This type of movement is more likely to occur in Petitioner’s knee if he does not have the requested surgery and could cause him to need a knee replacement.
• A doctor cannot simply look at x-rays or MRIs and determine the severity of a patient’s arthritis. One also needs to know the patient’s symptoms. Dr. Tuescher has had patients complain about pain in one knee when the x-rays taken of both knees seem to indicate that the other one has the more severe arthritis. These x-rays sometime demonstrate the presence of bone-on-bone contact in the knee without associated pain.
• Knee replacement is not appropriate now because it is customarily used to treat arthritis, and arthritis is not Petitioner’s primary problem. If the re-stabilization procedure is not authorized, however, Petitioner will need a knee replacement. At this time, a knee replacement does not hold the promise for as good an outcome as the requested procedure.
• Doctors prefer to delay replacements as long as possible, especially in men younger than 65, weighing more than 200 pounds. When they have knee replacements, they typically wear out those replacements in ten to fifteen years and have to have it revised.
• The best way to get Petitioner back to work is to re-stabilize his knee and treat any arthritis symptoms with medications and, perhaps, some lubricating injections.

c. Jack C. Johnston, M.D. The second-opinion doctor authorized by the Commission was a specialist in orthopedic surgery and sports medicine. By letter dated July 17, 2003, Dr. Johnston indicated he had just examined Petitioner and he concurred with Dr. Teuscher that it would be reasonable to proceed with ACL reconstruction to try to stabilize Petitioner’s knee. Like Dr. Tuescher, he characterized Petitioner as a Ayoung, 53-year-old.” He also noted that Petitioner’s x-ray revealed severe degenerative joint disease and the possibility the surgery could cause a flare-up of his arthritis. He indicated that the ACL reconstruction would, hopefully, put off the need for a total knee replacement.^[15]

E. Parties’ Arguments

SORM argues that even though Petitioner may be inconvenienced by using the external brace, it does not mean surgery is absolutely necessary. Considering Petitioner’s arthritis, the surgery could do more harm than good because it might exacerbate the arthritis. Then Petitioner will be asking for a knee replacement. This surgery is supposed to prevent further degeneration in a knee that has not already degenerated significantly, but diagnostic tests indicate Petitioner already has some bone-on-bone contact and one doctor indicated he has severe degenerative joint disease. Dr. TeuscheR’s approach-waiting to worry about Petitioner’s arthritis later-is not reasonable.

SORM also argues that the ALJ is required to give presumptive weight to the IRO decision. Even applying a preponderance of the evidence standard, SORM argues that the preponderance of evidence is that the requested surgery is not medically reasonable and necessary. It is not reasonable because if Petitioner has the ACL reconstruction, he will need an arthroplasty in Afive or ten or fifteen years.”

Petitioner argues that his treating doctor is the best judge of the appropriate treatment for his knee. He asserts that SORM’s attorney cannot ”know” how severe his arthritis is and cannot predict with certainty that the requested surgery would cause future problems with his arthritis. He is not a doctor and has never examined his knee. His treating doctor, Dr. Teuscher, has described his arthritis as Acontrolled.” It did not interfere with his work or recreational activities before the injury. Dr. Tuescher said he expected the arthritis to be controlled after the surgery just like it was before the injury. Petitioner argues that he is entitled to this surgery because it will return stability to his knee and, with a stabilized knee, he can return to work.

F. ALJ’s Analysis and Conclusion

The requested surgery will make Petitioner’s knee stable again and by doing so, it will relieve the effects of his knee injury, promote his recovery, and enhance his ability to return to work. Petitioner has met his burden of proof. The Administrative Law Judge (ALJ) finds the request for preauthorization should be granted.

Petitioner is highly motivated to return to work and to the active life he had before this injury. This determination indicates he will do whatever is necessary to enable him to return to his former life style, including any rehabilitation program required after the surgery.

Dr. Teuscher was highly credible. He has known Petitioner for several years and he believes this surgery is the appropriate course of treatment for his patient. He is familiar with the arthritis in Petitioner’s knee and characterized it as mild-to-moderate and completely controlled with medication before and since this injury. He believes it will be controlled in the same manner after his knee is stabilized. He also believes Petitioner’s knee will be successfully stabilized by this surgery and the subsequent rehabilitation. His opinion is very persuasive.

Although the doctor who originally denied the request for preauthorization, Dr. Van Hal, is an orthopedic surgeon, it appears that he does not do this kind of surgery or does a limited amount of it. He was listed as a review specialist in Aorthopedics and spine.” Dr. Tuescher, in describing his telephone conversation with Dr. Van Hal, asked that he recommend an second opinion consultation with “another orthopedic surgeon who does the full range of knee surgery.” In addition, he did not examine Petitioner, but reached his opinion based only on the review of medical records. His opinion is not very persuasive. Therefore, his opinion was not as persuasive as Dr. TuescheR’s.

On the other hand, Dr. Johnston, the second opinion doctor, is an orthopedic surgeon who runs a sports medicine clinic. Although he noted Petitioner’s degenerative joint disease, he concurred with Dr. TuescheR’s recommendation for ACL reconstruction.

The ALJ concludes that the opinion given by Dr. Teuscher, and concurred in by Dr. Johnston is the most persuasive. Each of these doctors actually examined Petitioner rather than merely reviewing his medical records. Dr. Tuescher has known Petitioner for some time and has an understanding of this particular patient’s ability to recover from the surgery, including doing the necessary rehabilitation. He also is well-versed in the management of Petitioner’s arthritis. Finally, each of these doctors has particular expertise in the type of reconstructive surgery under consideration in this case.

The ALJ rejects SORM’s argument that Petitioner should “make do” with the brace and that he should not have this surgery because it might exacerbate his arthritis and require further medical services-specifically, a knee replacement-some unknown number of years from now. SORM’s argument that Petitioner should be willing to put up with a little “inconvenience” to prevent the possible further deterioration of his knee is not persuasive. This “inconvenience” would likely include Petitioner’s loss of his job since he cannot return to his job without a stable knee.

The ALJ also rejects SORM’s argument that the IRO decision should be given presumptive weight. For one thing, the IRO decision rests upon a critical mistake: that Petitioner returned to work-at his regular job-in April 2003. Because of that mistaken premise, the IRO decision in this case is not entitled to any weight. Further, it is generally accepted at SOAH that the appropriate standard of proof in these proceedings-by a preponderance of the evidence-is not altered by the “presumptive weight” language in the Commission’s rules.^[16] Under any standard, however, the weight of the evidence in this record clearly favors the surgery.

No one can predict with certainty what will happen to Petitioner’s knee in future years if he has this surgery. He may need subsequent treatment. However, the question before this ALJ is what medical treatment is reasonably required by the nature of the injury now-as and when it is needed. This is the health care Petitioner is entitled to under the Act. This surgery carries the promise of relieving the effects of Petitioner’s injury, promoting his recovery, and enhancing his ability to return to work. The surgery is, therefore, reasonable and medically necessary and will be preauthorized.

V. FINDINGS OF FACT

1. On____________, Petitioner sustained an on-the-job injury to his left knee when he slipped in some water, twisted his left knee and fell, landing on that knee.
2. At the time of Petitioner’s injury, the State Office of Risk Management provides workers’ compensation insurance for Texas Department of Criminal Justice (TDCJ), Petitioner’s employer.
3. Petitioner had just turned 54 years old at the time of his injury. He was 5 feet 10 inches tall and weighed approximately 230 pounds.
4. Petitioner was physiologically younger than his years and had an active physical life at work and in his recreational activities before the injury.
5. Petitioner is employed as a supervising electrician, supervising inmates who performed electrical maintenance at a state jail.
6. Petitioner has been totally unable to work in his position as a supervising electrician since the date of the injury and, since the injury, has used personal leave, worked several weeks in a light duty position, and taken family medical leave.
7. His job requires extensive walking, bending, stooping, ladder climbing, squatting, crawling, and maneuvering into some very unusual positions, while supervising inmates.
8. He participated in numerous recreational activities such as volleyball, personal watercraft use, walking and weight-lifting before the accident.
9. He had osteoarthritis at the time of the injury, but it did not interfere with his work or recreational activities before the injury, even though he had some bone-on-bone contact.
10. An MRI taken on January 29, 2003, showed medial and lateral meniscal tears, a complete anterior cruciate ligament (ACL) tear, and a possible loose body.
11. The MRI also revealed some chrondromalacia and degenerative joint disease in Petitioner’s left knee.
12. The ACL tear in his left knee caused Petitioner’s knee to be extremely unstable following the accident.
13. Petitioner’s knee will be re-stabilized by the requested ACL reconstruction.
14. Medial and lateral meniscectomies are also necessary to relieve the effects of the injury and prevent further symptoms from the torn menisci.
15. Since February 2, 2003, Petitioner’s treating doctor has tried to obtain preauthorization for outpatient arthroscopic knee surgery to reconstruct Petitioner’s left ACL and to perform medial and lateral meniscectomies.
16. The knee brace authorized by SORM and proposed as appropriate final treatment is suitable only as a stopgap measure until surgery can be performed.
17. The knee brace does not give Petitioner sufficient stability to relieve the effects of the injury or to allow Petitioner to return to work.
18. Petitioner’s arthritis was controlled before the injury, has been controlled since the injury, and will be controlled after the surgery in a manner that will allow him to return to his pre-injury functional level.
19. It is no longer unusual to perform ACL reconstruction on people of Petitioner’s age when they are also at his fitness and activity level.
20. Petitioner filed timely appeals from SORM’s denial of preauthorization and the IRO decision denying preauthorization.
21. Notice of the hearing was mailed to the parties on October 14, 2003. The notice contained a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.

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. Petitioner timely filed notice of appeal, as specified in 28 Tex. Admin. Code ‘ 148.3.
3. 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).
4. Petitioner carried his burden of proof by proving his 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.
5. 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).
6. Outpatient surgery requires preauthorization. Tex. Lab. Code Ann. ‘413.014; 28 Tex. Admin. Code ‘134.600(a)(4).
7. Based on the above findings and conclusions, the requested surgery is medically necessary and should be preauthorized.

ORDER

IT IS, THEREFORE, ORDERED that preauthorization for the outpatient arthroscopic knee surgery to reconstruct Petitioner’s left anterior cruciate ligament and to perform medial and lateral meniscectomies is GRANTED.

Signed, November 24, 2003.

Nancy N. Lynch
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

Appendix A

Chronology of Events

January 27, 2003Date of Petitioner’s injury.

January 29, 2003MRI reveals complete ACL tear, medial and lateral meniscus tears and a possible loose body.

February 6, 2003Dr. Teuscher requested preauthorization for an endoscopic allograft ACL reconstruction and medial and lateral meniscectomies in the left knee.

February 11, 2003Preauthorization was denied by Argus Services Corporation on record review.

March 3, 2003Dr. Teuscher had a telephone conference with Dr. Van Hal regarding his denial of preauthorization. Dr. Van Hal recommended he give B.L.M. a knee brace. Dr. Teuscher requested that Dr. Van Hal include a recommendation for a second opinion consultation with another orthopedic surgeon who does the full range of knee surgery.

March 5, 2003Second request for preauthorization of arthroscopic surgery.

March 24, 2003Dr. Teuscher prescribed the knee brace to buy time and prevent further injury to knee, having heard nothing on his second request for preauthorization.

April 4, 2003 Requested preauthorization for knee brace.

April 8, 2003 Left knee brace authorized by Argus Services Corporation.

May 12, 2003 Petitioner learned from SORM representative that he had not received two denials as he thought, but only one. Began series of telephone calls to address this problem.

May 27, 2003 SORM representative assist B.L.M. with his effort to get action on the second preauthorization request.

i

June 2, 2003 Conversation between reviewing doctor Dr. Van Hal and Dr. Teuscher. Dr. Van Hal said that Abased on operative chondrosis as well as age, the proposed surgery would need validation with an RME to be considered medically necessary.”

June 6, 2003 Denial of second preauthorization report. It indicates some missed telephone calls, then finally a conversation between the reviewer and Dr. Teuscher.

June 11, 2003 First copy of second denial report sent to B.L.M. It is incorrectly dated May 6, 2003. He called SORM and Argus and was told correction would be made immediately.

June 18, 2003 SORM notified Petitioner he get referral for second opinion from original workers’ compensation doctor.

June 24, 2003 Local TWCC office gave Petitioner a number for Austin Central. Petitioner called and was told to file TWCC-60 form.

June 27, 2003 Petitioner received notice of second opinion appointment with Dr. Jack C. Johnston, of Johnston Sports Medicine Clinic.

July 7, 2003 Second opinion examination of Petitioner by Dr. Johnston.

July 10, 2003 Petitioner’s request for medical dispute resolution received by Commission’s Medical Review Division.

July 17, 2003 Dr. Johnston, an orthopedic surgeon and sport medicine specialist, agrees with Dr. TeuscheR’s recommendation for ACL reconstruction of Petitioner’s left knee.

ii

1. The state agency that administers the government employees workers’ compensation insurance program for Petitioner’s employer, the Texas Department of Criminal Justice (TDCJ). TEX. Labor Code (the Act) ‘ 412.011.↑
2. Tex. Lab. Code Ann. ‘ 408.021.↑
3. Tex. Lab. Code Ann. ‘ 401.011(19).↑
4. Tex. Lab. Code Ann. ‘ 413.014; 28 Tex. Admin. Code ‘134.600(a)(4).↑
5. 28 Tex. Admin. Code ‘ 133.308(p)(5).↑
6. 28 Tex. Admin. Code ‘ 148.21(h), (i). See also 28 Tex. Admin. Code ‘ 133.308(p)(5), (w); Tex. Labor Code ‘ 413.031(a).↑
7. P’s Ex.1, p.1-2.↑
8. Dr. Teuscher briefly described his training and experience. He attended medical school at the University of Texas in San Antonio and did professional training at Brooke Army Medical Center, Fort Sam Houston, San Antonio. He has been licensed for approximately twenty years and has never had any disciplinary actions. He has been in the private practice of orthopedics with the Beaumont Bone & Joint Institute, P.A., since he left the U.S. Army in 1993.↑
9. Plaintiff indicated he had used his sick leave and annual leave because of misinformation given him by an agency Human Resources employee. He asked, during his testimony, if there was any way he could recover the sick leave and annual leave he has used as a result of this injury. The ALJ has no jurisdiction to address that concern in this case.↑
10. P’s Ex. 1, pp. 31, 40.↑
11. The chronology of events at Appendix A gives some indication of what a cumbersome process this has been. It also shows a period of approximately three months between early March and early June when this case was not being processed at all while Petitioner had to continue to use his valuable personal and family medical leave benefits.↑
12. Argus is the medical cost containment service that reviewed requests for medical treatments or services subject to preauthorization for SORM.↑
13. P’s Ex.1, p. 23.↑
14. P’s Ex.1, pp. 24, 41-44.↑
15. P’s Ex. 1, p. 38.↑
16. 28 Tex. Admin. Code ‘148.21(h) and (i).↑